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UNITED STATES v. GARCIA FERNANDEZ

February 18, 1987

UNITED STATES OF AMERICA
v.
MIGUEL GARCIA FERNANDEZ, et al.



The opinion of the court was delivered by: NEWCOMER

 Newcomer, J.

 I have before me defendant's motion for severance. The defendant has been indicted along with three other defendants for conspiracy to distribute cocaine and distribution of cocaine. Following his arrest, co-defendant Edson Cardenas stated to the authorities *fn1" that "I had driven to Philadelphia in the Ford Econoline Van with defendant Miguel Garcia-Fernandez from Miami." Defendant argues that introduction of this statement at a joint trial would deny Garcia Fernandez his right to confront witnesses against him, as guaranteed by the Sixth Amendment. Defendant also contends that trial should be severed pursuant to Fed.R.Crim.P. 14. Defendant's motion will be denied.

 In Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968), during a joint trial with a co-defendant Evans, the District Court admitted an oral confession by Evans to be introduced into evidence. The Evans confession implicated both defendants. Evans did not testify at trial. The Court instructed the jury that, while the confession was admissible against Evans, it was inadmissible hearsay as to Bruton, and should not be considered against him. Both defendants were convicted. The Supreme Court reversed as to Bruton, holding that the instruction to disregard the incriminating confession as to Bruton was not adequate to protect Bruton's right to confront witnesses against him. Id. at 126. As the Court wrote:

 
We hold that, because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extra judicial statements in determining petitioner's guilt, admission of Evans' confession in this joint trial violated [Bruton's] right of cross-examination secured by the Sixth Amendment.

 Id.

 The government concedes that the introduction of the extra judicial statement in this case would violate Bruton. However, the government seeks to avoid the problem by redacting the statement to delete the reference to the non-confessing defendant, Mr. Garcia Fernandez. Such a procedure has been employed and approved by numerous courts including the Third Circuit and the Eastern District of Pennsylvania. See United States v. Segal, 534 F.2d 578, 583 (3d Cir. 1976); United States v. Borish, 452 F. Supp. 518, 524 (E.D. Pa. 1978). See also United States v. Brooklier, 685 F.2d 1208, 1218 (9th Cir. 1982); United States v. Danzey, 594 F.2d 905, 919 (2d Cir.) cert. denied, 441 U.S. 951, 99 S. Ct. 2179, 60 L. Ed. 2d 1056 (1979); United States v. Craig, 573 F.2d 455, 480 (7th Cir. 1977). Redaction is an appropriate way to deal with problems of incriminating statements by a codefendant or other witness who will not testify at trial, so long as the statement as introduced does not implicate the non-declarant defendant. See Hodges v. Rose, 570 F.2d 643, 646-47 (6th Cir. 1978).

 The out of court statement at issue here, attributed by Garcia Fernandez to codefendant Edson Cardenas, is: "I had driven to Philadelphia in the Ford Econoline Van with defendant Miguel Garcia Fernandez from Miami." The government proposes to redact that statement so that it reads as follows: "I had driven to Philadelphia in the Ford Econo Line Van from Miami." Because the redacted statement in no way implicates any codefendant, any need for severance on account of that statement will be obviated. Fed.R.Crim.P. 14.

 Garcia Fernandez also seeks severance pursuant to Rule 14, *fn2" which states in pertinent part:

 
If it appears that a defendant . . . is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trial of counts, grant a severance of defendants or provide whatever other relief justice requires.

 Rule 14 must be read in light of Rule 8(b), which specifically envisions joinder in cases of common criminal conduct. Rule 14 provides for severance or other relief only "if it appears that a defendant . . . is prejudiced" by the joinder.

 The purpose of the liberal joinder provisions contained in the Federal Rules of Criminal Procedure is to conserve judicial and prosecutorial resources by avoiding multiple trials. United States v. Niederberger, 580 F.2d 63, 66 (3d Cir.), cert. denied, 439 U.S. 980, 58 L. Ed. 2d 651, 99 S. Ct. 567 (1978). These goals apply with particular vigor when the evidence presented at subsequent trials would be duplicative of the original trial. Id. at 67. Joinder is particularly appropriate where, as here, codefendants are alleged to have conspired together. See United States v. Somers, 496 F.2d 723, 729-30 (3d Cir. 1974).

 Because joinder was proper under Rule 8(b), I must now consider Garcia Fernandez' claim of prejudice resulting from that joinder, ...


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