Opinion
02 Cr. 349 (JSM)
October 30, 2002
For the Government: Stephen A. Miller Assistant United States Attorney Southern District of New York White Plains, NY.
For Defendant Rivas: Susanne Brody, Esq. Federal Defender Services White Plains, NY.
For Defendant Garcia: Theodore S. Green Green Willstatter White Plains, NY.
OPINION AND ORDER
Rudy Garcia seeks to sever his trial from that of his co-defendant Edgar Rivas on the ground that the Government intends to introduce against Rivas a statement he made after his arrest, that a piece of paper with the name German on it had been given to him by Garcia and that Garcia had used Rivas's cell phone, as well as testimony by an agent who overheard a conversation between Garcia and Rivas in which Garcia asked Rivas why he had said these things to the agent and Rivas replied that he said them because they were true. The Government argues that these statements are admissible at a joint trial because they are not incriminating as to Garcia on their face.
In Bruton v. United states, 391 U.S. 123, 88 S.Ct. 1620 (1968), the Supreme Court held that it was a violation of the Confrontation Clause to introduce at a joint trial the confession of one defendant that implicated a co-defendant, even with a limiting instruction. In arguing that Bruton does not apply here, the Government cites a number of cases which state that the use of a co-defendant's statement is permissible if the confession on its face does not implicate the other defendant. See, e.g., United States v. Smith, 198 F.3d 377, 385 (2d Cir. 1999). However, in each of the cases on which the Government relies, the name of the co-defendant had been redacted so that the statement on its face did not implicate the co-defendant in any way.
Here, however, the Government does not intend to redact Garcia's name. While the significance of German's name and the use of the cell phone is not clear on the present record, the fact that the Government intends to offer this evidence itself indicates that it will tend to prove the crime at issue. Since Rivas's statements are clearly inadmissible hearsay as to Garcia, admission of the proposed testimony at a joint trial would violate his right to confront the witnesses against him. See Ryan v. Miller, 303 F.3d 231, 248 (2d Cir. 2002) ("[T]estimony that indirectly includes an accusation against the defendant may violate the Confrontation Clause even if the testimony is not a direct reiteration of the accusatory assertion"); Mason v. Scully, 16 F.3d 38, 42-3 (2d Cir. 1994) ("To implicate the defendant's confrontation right, the statement need not have accused the defendant explicitly but may contain an accusation that is only implicit")
Thus, Garcia would be entitled to a severance if the Government intended to offer testimony concerning Rivas's statements at a joint trial. However, at oral argument, the Government indicated that it would forego the use of these statements against Rivas, if the court determined that the statements could not be offered at a joint trial. Therefore, the motion for a severance is denied on the express understanding that the Government is precluded from offering the above statements at the joint trial.