Et Tu, Bruton?: Seventh Circuit Finds Admission Of Non-Facially Incriminatory Statement Didn't Violate Bruton Doctrine

Pursuant to the Bruton doctrine, in a jury trial, the admission of a co-defendant's confession that also facially incriminates another defendant violates the Confrontation Clause unless (1) the co-defendant testifies, or (2) the confession is independently admissible against the other defendant. When, however, the co-defendant's confession does not facially incriminate the other defendant, there is no Bruton doctrine problem as is made clear by the recent opinion of the Seventh Circuit in United States v. Spagnola, 2011 WL 181480 (7th Cir. 2011).

 In Spagnola, the government indicted Michael Spagnola and his brother, Robert George, on charges of conspiracy to possess with intent to distribute 5 kilograms or more of cocaine and attempted possession with intent to distribute 5 kilograms or more of cocaine. The government charged Spagnola separately with possessing a firearm during and in relation to a drug trafficking crime and possessing a firearm as a felon.

Before George was arrested, the government recorded him making incriminatory statements to a confidential informant. After George expressed surprise at being arrested, the government told him about the recording, to which he responded, "Oh, then you have me on conspiracy."

George did not testify at trial, but the prosecution introduced this statement. After Spagnola was convicted, he appealed, claiming that the admission of this statement violated the Bruton doctrine. The Seventh Circuit disagreed, finding that

A Bruton violation occurs only if the confession of a non-testifying co-defendant facially incriminates the non-confessing co-defendant. See, e.g., United States v. Brooks, 125 F.3d 484, 501 (7th Cir.1997). George's statement neither facially incriminates Spagnola nor implies that he was a co-conspirator. George made the statement after being advised that the government had recorded his communications with the informant; thus, the most reasonable inference to be drawn from the statement is that George was confessing to conspiring, not with Spagnola, but with the informant. Because there was no obvious link between the statement and Spagnola, the district court's limiting instruction-that pre-trial statements were to be considered only against the defendant who made them-was sufficient. See Richardson v. Marsh, 481 U.S. 200, 208, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987).

-CM