Opinion
Criminal No. 04-208 (JRT/FLN).
November 24, 2004
William H. Koch, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, 300 South Fourth Street, Minneapolis, MN 55415. for plaintiff.
Matthew D. Forsgren, BRIGGS MORGAN, 2200 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402, for defendants Prime Plating, Inc. and Scott Benjamin Hanson.
Paul C. Engh, ENGH LAW OFFICE, 220 South Si xth Street, Suite 215, Minneapolis, MN 55402. for defendant Sam Opare-Addo.
Douglas H.R. Olson, RIDER BENNETT, 2000 Metro Center, 333 South Seventh Street, Minneapolis, MN 55402, for defendant Arlyn Hanson.
ORDER
Defendants Prime Plating, Inc., Scott Hanson, Sam Opare-Addo, and Arlyn Hanson are charged in a 16 count indictment with conspiracy to violate the Clean Water Act, violations of the Clean Water Act, and other related charges. Prime Plating and Scott Hanson (jointly), Opare-Addo, and Arlyn Hanson moved to sever their trial from that of their co-defendants, to suppress certain statements, and to dismiss the superseding indictment or, in the alternative, strike surplusage from the indictment. United States Magistrate Judge Franklin L. Noel, in an Order dated July 16, 2004, denied the motions to sever, in a Report and Recommendation dated July 19, 2004, recommended that the motion to suppress be denied, and, in a Report and Recommendation dated November 1, 2004, recommended that the motions to dismiss or strike be denied. All defendants appeal the Order; Opare-Addo also objects to the July 19 recommendation; and the Hansons and Prime Plating object to the November 1 recommendation.
This case is scheduled to begin trial on Monday, November 29, 2004. The Court held a status conference on November 22, 2004 to address the pending matters. The Court has reviewed the Magistrate Judge's Order to determine whether it is clearly erroneous or contrary to law. See 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); D. Minn. LR 72.1(b)(2). The Court has also conducted a de novo review of the defendants' objections pursuant to 28 U.S.C. § 636 (b)(1)(C) and D. Minn. LR 72.1(c)(2). For the following reasons, the Court modifies the Order and adopts the Reports and Recommendations of the Magistrate Judge.
I. Motion to Suppress Statements
Opare-Addo moved to suppress the statements he made to the agents during the search of Prime Plating's facility because he did not receive the Miranda warnings. The Magistrate Judge determined that the warnings were not required because Opare-Addo was not in custody. Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him in custody. Oregon v. Mathiason, 429 U.S. 492, 495 (1977). As noted during the status conference, the Court agrees with the Magistrate Judge that Opare-Addo was not in custody when he made statements on July 14, 2003 statement, that the Miranda warnings therefore were not required, and that suppression is not warranted.
II. Motions to Dismiss Superseding Indictment
In light of Blakely v. Washington, 542 U.S. ____, 124 S. Ct. 2531 (2004), the government filed a superseding indictment containing certain sentencing allegations. All defendants moved to suppress the superseding indictment or, in the alternative, to strike the sentencing allegations as prejudicial surplusage. The Magistrate Judge recommended denying the motions. As it articulated during the status conference, the Court agrees with the Magistrate Judge that neither dismissal of the indictment nor striking the sentencing allegations from the indictment is appropriate in this case, and therefore denies the motions. However, the Court grants the oral motion of the government, with which the defendants agreed, to strike the language relating to total suspended solids (TSS) in counts two through nine of the superseding indictment. The government will prepare and file a revised indictment.
III. Motions to Sever
All defendants moved to sever their trials from that of their co-defendants. Defendants assert that a joint trial will result in violation of their Sixth Amendment Confrontation Clause rights by admission of Opare-Addo's July 14, 2003 out-of-court statements to FBI agents allegedly implicating the other defendants in the conspiracies and underlying violations. Defendants argue that because Opare-Addo, as a defendant, is not likely to testify at trial, their inability to cross-examine him will be prejudicial pursuant to Bruton v. United States, 391 U.S. 123 (1968). Defendants complain specifically about Opare-Addo's statements to the effect of "I've seen it done, and I have warned Scott; I have told Scott if you continue pumping, you will go to jail." (FBI Report of July 14, 2003 Interview of Sam Opare-Addo at Docket No. 106.)
Federal Rule of Criminal Procedure 14 permits the Court, in its discretion, to sever otherwise properly joined defendants or offenses where a joint trial may result in real prejudice to one of the defendants. United States v. Wadena, 152 F.3d 831, 848 (8th Cir. 1998). Severance is not easily granted, and alternative, less drastic measures addressing the potential for prejudice are preferred. See Zafiro v. United States, 506 U.S. 534, 537 and 538-39 (1993); United States v. Flores, 362 F.3d 1030, 1039 (8th Cir. 2004). There is a presumption that, "[p]ersons charged in a conspiracy or jointly indicted on similar evidence from the same or related events should be tried together, even if each defendant did not participate in or was not charged with each offense." United States v. Gravatt, 280 F.3d 1189, 1191 (8th Cir. 2002).
The Eighth Circuit has recently reiterated the difficult standard that a defendant must meet in order to be granted a separate trial. In, United States v. Mickelson, the court stated:
Because defendants who are jointly indicted on similar evidence from the same or related events should normally be tried together, to warrant severance a defendant must show real prejudice, that is, something more than the mere fact that he would have had a better chance for acquittal had he been tried separately. A defendant can demonstrate real prejudice to his right to a fair trial by showing (a) his defense is irreconcilable with that of his co-defendant or (b) the jury will be unable to compartmentalize the evidence as it relates to the separate defendants. . . . The risk of prejudice posed by joint trials is best cured by careful and thorough jury instructions.378 F.3d 810, 817-18 (8th Cir. 2004).
In Bruton, the Supreme Court held that the admission of statements from a nontestifying defendant that inculpated a co-defendant violated the latter's Confrontation Clause rights, despite a curative instruction otherwise. 391 U.S. at 135-36. Bruton does not apply when a co-defendant's statements do not incriminate the defendant either on their face or when considered with other evidence. United States v. Rashid, 383 F.3d 769, 777 (8th Cir. 2004). Further, "[i]f a co-defendant's confession does not incriminate the defendant on its face, but does so only when linked to additional evidence, it may be admitted if a limiting instruction is given to the jury and the defendant's name is redacted from the confession." Id.
In this case, the Court finds that certain of Opare-Addo's statements to the agents directly inculpate his co-defendants such that redaction and a limiting instruction would not sufficiently protect their Sixth Amendment rights. However, in light of the difficult standard for severance, the Court finds that severance is not a necessary or appropriate remedy. Rather, the Court will suppress introduction of any portion of Opare-Addo's statement related to or referring to his above-cited statements to the agents.
If the government would prefer to admit the statement in its entirety, it should immediately make a motion for reconsideration of this portion of the Order. Additionally, if Opare-Addo chooses to testify during trial, then these statements, obviously, will be admissible in their entirety because he will be subject to crossexamination.
Defendants also contend that severance is warranted because Opare-Addo and the other defendants will offer mutually antagonistic defenses. Mutually antagonistic defenses, sufficient to warrant severance, "exist when the jury must disbelieve the core of one defense in order to believe the core of the other." United States v. Flores, 362 F.3d 1030, 1040 (8th Cir. 2004). "The mere existence of generally antagonistic defenses . . . does not necessitate a severance." United States v. Abfalter, 340 F.3d 646, 652 (8th Cir. 2003) (internal quotations omitted). Similarly, "[t]he mere fact that . . . one defendant may try to save himself at the expense of another is not sufficient grounds to require separate trials." Gravatt, 280 F.3d at 1191 (citation omitted); accord Zafiro, 506 U.S. at 538. In the instant matter, Opare-Addo has indicated that he plans to cast blame on the Hansons, and the Hansons appear likely to blame Opare-Addo. As most of the charges in this matter are against all of the defendants, any one defendant's assertion that another was responsible for the alleged criminal activity does not necessarily absolve him of responsibility. Thus, the jury is not required to disbelieve one defendant in order to believe the others and severance is not appropriate on this basis.
Additionally, defendants assert that the two conspiracies alleged in this case are improperly joined in one indictment. Under Federal Rule of Criminal Procedure 8(a), offenses are properly joined in the same indictment if they "are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan." Fed.R.Crim.P. 8(a). Under Rule 8(b), defendants are properly joined "if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." Fed.R.Crim.P. 8(b). Generally, the "same series of acts or transactions" means acts or transactions that are pursuant to a common plan or a common scheme. United States v. Wadena, 152 F.3d 831, 848 (8th Cir 1998). "[T]he defendants need not be charged in each count." Fed.R.Crim.P. 8(b).
The first conspiracy charged in the indictment alleges that all defendants conspired together to violate the Clean Water Act. The second conspiracy charged in the indictment alleges that Prime Plating, Scott Hanson, and Opare-Addo conspired to conceal the first conspiracy. The two conspiracies clearly constitute "parts of a common scheme" and the fact that Arlyn Hanson is not alleged to have participated in the second conspiracy is immaterial with respect to the propriety of joinder under Rule 8. Fed.R.Crim.P. 8.
Severance may be appropriate when many defendants are tried in a complex case with markedly different degrees of culpability. Flores, 362 F.3d at 1040-41. Defendants argue that this case is complex because it involves four defendants and sixteen counts. The Court disagrees. The first ten counts of the indictment are against all defendants and involve the conspiracy to violate the Clean Water Act. Counts 11 and 12 allege discrete inactions by Prime Plating, Scott Hanson, and Opare-Addo. Counts 13 through 16 allege conspiracy to conceal the violations of the Clean Water Act, and the false statements made to do so. The jury will be carefully instructed as to each count and as to any evidence that is to be considered only for certain purposes or against particular defendants. The jury will also be cautioned that each defendant is to be considered individually. Thus, the Court is confident that the jury will be able to distinguish between the defendants, between the charges brought against the defendants, and between the evidence pertaining to the particular charges and defendants.
ORDER
Based on the foregoing, all the records, files, and proceedings herein, the Court OVERRULES defendants' objections [Docket Nos. 114, 132, and 134] and ADOPTS the Magistrate Judge's Reports and Recommendations [Docket Nos. 103, 128, 129, and 130]. Accordingly, IT IS HEREBY ORDERED that:
1. Defendant Opare-Addo's motions to suppress statements [Docket Nos. 77, 78, and 81] are DENIED;
2. Defendants Prime Plating, Inc.'s, Scott Hanson's, and Arlyn Hanson's motion to dismiss indictment or strike prejudicial surplusage [Docket No. 121] is DENIED.
Additionally, as there were no objections filed, the Court ADOPTS the Magistrate Judge's Reports and Recommendations [Docket Nos. 102 and 104] and IT IS HEREBY ORDERED that:
3. Defendant Scott Hanson's motion to suppress statements [Docket No. 67] is DENIED.
4. Defendant Arlyn Hanson's motion to suppress statements [Docket No. 38] and motion to suppress physical evidence [Docket No. 41] are DENIED. IT IS FURTHER HEREBY ORDERED that the Magistrate Judge's July 19, 2004 Orders [Docket No. 99, 100, and 101] are MODIFIED to suppress defendant Opare-Addo's statements in accordance with the opinion above. The Magistrate Judge's Orders are AFFIRMED in all other respects.