Opinion
No. CR-10-01165-01-PHX-NVW.
May 20, 2011
ORDER
Before the Court is Defendant Shahin's Motion for Production of Cooperating Witness (Co-Defendant's) Statements/Motion for Production of Government's Notes Taken During Debriefing of Cooperating Witnesses (Doc. 122), Defendant Shahin's Motion for Preservation and Production of Rough Notes (Doc. 127), and Defendant Shahin's Motion for Severance of Defendant Shahin from Co-Defendants or, in the Alternative, Motion to Preclude Co-Defendants' Statements (Doc. 132). Each motion will be discussed in turn.
I. Doc. 122: Motion for Production of Cooperating Witness (Co-Defendant's) Statements/Motion for Production of Government's Notes Taken During Debriefing of Cooperating Witnesses
Defendant Shahin asks the Court to order the Government to disclose notes taken during the November 30, 2010 debriefing of cooperating witness Rodriguez. Although notes recorded by a government agent during a debriefing of a co-defendant are not required to be disclosed unless "the notes amount to substantially verbatim recitals of [the defendant's] oral statements," see United States v. Mincoff, 574 F.3d 1186, 1200 (9th Cir. 2009), the Government has in fact disclosed the interview notes and other relevant materials. Because the Government has met and exceeded its disclosure obligations, the Court will deny Shahin's motion as moot.
II. Doc. 127: Defendant Shahin's Motion for Preservation and Production of Rough Notes
In this motion, Defendant asks the Court to "enter an Order directing the Government to preserve all hand-written notes of all cooperating witnesses and/or Government agents, and to produce those notes, as may be required pursuant to the Jencks Act, Title 18, United States Code, § 3500." (Doc. 127.) The Government responds that it has and will continue to comply with all of its preservation and discovery obligations (Doc. 143). The Court agrees that the Government has sufficiently complied with its obligations and that no further order to that effect is necessary. Accordingly, Shahin's motion will be denied.
III. Doc. 132: Defendant Shahin's Motion for Severance of Defendant Shahin from Co-Defendants or, in the Alternative, Motion to Preclude Co-Defendants' Statements
In his motion, Shahin argues that he should be tried separately from his co-defendant, Mr. Harris, because 1) Shahin and Harris will present antagonistic defenses; and 2) introduction of Harris's post-arrest statements would violate Shahin's rights under the Confrontation Clause because it is very unlikely that Harris would testify at trial and be subject to cross-examination. Alternatively, Shahin requests that Harris's post-arrest statements be excluded from trial.
Although Shahin asks that both Harris and Rodriguez's statements be excluded, Shahin's arguments only apply to Harris because he is the only co-defendant. Rodriguez is no longer a co-defendant to this action, and would thus presumably be available for cross-examination.
Shahin has not presented any evidence that he and Harris will present antagonistic defenses so as to necessitate a severance. A joint trial may be severed where co-defendants present mutually exclusive defenses. See United States v. Tootick, 952 F.2d 1078 (9th Cir. 1991). Defenses are mutually exclusive where the "acquittal of one co-defendant would necessarily call for the conviction of the other [co-defendant]." Id. at 1081. "Mere inconsistency in defense positions is insufficient to find codefendants' defenses antagonistic." Id. Here, Shahin's motion is highly general and does not make any clear articulation of the opposing defenses, let alone establish the mutual exclusivity of the defenses. Further, to the extent Shahin's defense is that he was not involved in his codefendant's conspiracy, that defense is not mutually exclusive of Harris's defense that he was not involved in Shahin's conspiracy. The trial will therefore not be severed on these grounds.
With respect to admission of Harris's post-arrest statements, however, Shahin has raised a legitimate concern that admission of these statements would violate his rights under the Confrontation Clause. In order to protect a defendant's rights under the Confrontation Clause, where a co-defendant's confession implicated another defendant at a joint trial, the Court should either sever the trial, exclude the co-defendant's statements, or redact the statements so as to eliminate any direct implication of the defendant. See Bruton v. United States, 391 U.S. 123 (1968). Because interests in economy and efficiency favor joint trials, see U.S. v. Mayfield, 189 F.3d 895, 899 (9th Cir. 1999), redacting a co-defendant's statements to sufficiently protect the implicated co-defendant's rights is generally preferred to severing the trial. See Zafiro v. United States, 506 U.S. 534, 539 (1993) ("[A] district court should grant severance under [Fed.R.Crim.P. 14] only if there is serious risk that a joint trial would prejudice a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.").
Here, redaction of Harris's post-arrest statements is not a plausible solution to protect Shahin's rights. Both Defendant's motion and the Government's response are written in highly general and abstract terms; neither provides the Court with the substance of Harris's statements. That the Government has proposed to introduce Harris's statements at trial orally through testimony of the officer who interviewed Harris post-arrest, and thus will not be able to present the Court with a proposed redacted written statement, further complicates any proposed redaction. Because the Court has not been provided, and, due to the fact that the statements will be made orally, cannot be provided with, the proposed redacted statements for review prior to trial, the Court is unable to determine whether the proposed redactions would adequately protect Shahin's rights. See Mayfield, 189 F.3d at 902 (finding redacted statements did not sufficiently protect defendant's rights because ". . . even statements that do not explicitly name a codefendant are forbidden if they are redacted in such a way as to make the naming of the codefendant obvious to the jury") (citing Gray v. Maryland, 523 U.S. 185 (1998)).
Further, redaction is only a viable alternative to severance of the trial or exclusion of the statements where the statements can be redacted to avoid direct implication of the codefendant. See United States v. Mitchell, 502 F.3d 931, 965 (9th Cir. 2007) ("[T]he admission of a statement made by a non-testifying codefendant violates the Confrontation Clause when that statement facially, expressly, clearly, or powerfully implicates the defendant." (internal quotations omitted)). "[T]he substitution of a neutral pronoun or symbol in place of the defendant's name is not permissible if it is obvious that an alteration has occurred to protect the identity of a specific person." United States v. Peterson, 140 F.3d 819, 822 (9th Cir. 1998). Considering the fact that cooperating defendant Rodriguez will likely testify at trial, it is difficult to imagine how Harris's statements could be redacted in any way that, when coupled with Rodriguez's non-redacted statements, direct implication of Shahin in Harris's statements is avoidable. Accordingly, the Court will grant Shahin's motion to the extent it will preclude Harris's post-arrest statements implicating Shahin from being introduced at trial.
Because the Court has not had the opportunity to review Harris's statements, and therefore does not know the impact of their exclusion on the Government's case-in-chief, the Government may prefer to sever the trial as opposed to having Harris's statements excluded. To that end, the Government will have the opportunity to join in Shahin's request to sever the trial. If the Government so elects, it may file a motion to join in the request to sever by Tuesday, May 24, 2011. In the event the Government joins Shahin's motion to sever, the trial will be severed and the previously discussed dates that have been tentatively set aside for a second trial in this matter will be utilized.
IT IS THEREFORE ORDERED that Defendant Shahin's Motion for Production of Cooperating Witness (Co-Defendant's) Statements/Motion for Production of Government's Notes Taken During Debriefing of Cooperating Witnesses (Doc. 122) is denied as moot.
IT IS FURTHER ORDERED that Defendant Shahin's Motion for Preservation and Production of Rough Notes (Doc. 127) is denied moot.
IT IS FURTHER ORDERED that Defendant Shahin's Motion for Severance of Defendant Shahin from Co-Defendants or, in the Alternative, Motion to Preclude CoDefendants' Statements (Doc. 132) is granted to the extent that Harris's post-arrest statements implicating Shahin will be excluded from trial.
IT IS FURTHER ORDERED that the Government may file a motion to join in Defendant Shahin's motion for severance, if it prefers severance of the trial to exclusion of Harris's statements, by Tuesday, May 24, 2011.