MEMORANDUM AND ORDER
January 31, 1996
The grand jury indicted Michael Artis and Theodore Wileczek for a variety of crimes related to mail theft. See 18 U.S.C. §§ 1708-09. During their trial, Wileczek pled guilty and the jury convicted Artis. Artis now moves for a new trial. For the reasons discussed below, I will refuse his motion.
The jury's verdict establishes its acceptance of evidence that would have led it to find these basic facts:
Artis worked at one of the post office's bulk mail centers. Mail from such a center is delivered to a neighborhood post office and from there to the various homes and businesses in that area. (N.T. 6/13/95, at 2-3). On a number of occasions, Artis removed packages of Columbia House compact discs from the mail and packed them into a large, brown, cardboard box typical of those used to deliver materials to the mail center (N.T. 6/13/95, at 19; 6/14/95, at 90) and readily available to those who worked there. (N.T. 6/14/95, at 33-34). He would then address the large box to Wileczek or to Wileczek's wife, Theresa. Because of the number, size, and weight of the boxes, Wileczek's mail carrier remembered delivering many of them over a period of several months. (N.T. 6/14/95, at 33-35, 55-56, 143).
The postal inspectors uncovered the thefts after one of the large boxes broke open at the post office. (N.T. 6/14/95, at 25-28). The inspectors resealed it and staged a controlled delivery of the box to the Wileczek home. Later, they took a statement from Mrs. Wileczek. Although not indicted, at trial, Mrs. Wileczek asserted both her Fifth Amendment privilege against self-incrimination and her marital privilege. I ruled, therefore, that she was unavailable to testify. Fed. R. Evid. 804(a)(1). Artis, Wileczek, and the government stipulated to the admission of a redacted version of Mrs. Wileczek's statement. (5/10/95, Document 37). The redacted version contained no reference by name to either Artis or Wileczek.
Artis maintains in his motion for a new trial that, notwithstanding the redaction of his name (and Wileczek's) from Mrs. Wileczek's statement, his rights -- secured by the Sixth Amendment's Confrontation Clause as articulated by the Supreme Court in Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968) -- were violated when: (i) two government witnesses made indirect references to him during testimony about the statement; and (ii) the statement was allowed to go to the jury after Mr. Wileczek had already pled guilty.
1. Mrs. Wileczek's Statement Not Bruton Statement
Artis' reliance on Bruton v. United States is misplaced. In Bruton, the Supreme Court addressed a situation where, at a joint criminal trial, a nontestifying defendant's confession (which implicated his codefendant) was introduced into evidence against the confessor. The confession was admissible against the confessor as an admission. Fed.R.Evid. 802; Bruton, 391 U.S. at 125; see also United States v. De Peri, 778 F.2d 963, 982 (3d Cir. 1985), cert. denied, 475 U.S. 1110 (1986). The statement was, however, inadmissible hearsay as against the nonconfessing defendant. The Supreme Court held that although the trial court cautioned the jury to consider the confession only against the confessor, the cautionary instruction was insufficient to protect the nonconfessing defendant's Confrontation Clause rights; the risk was too great that the jury would impermissibly consider the confession against the nonconfessing defendant.
Bruton applies to a confession made by a nontestifying codefendant. See Bruton, 391 U.S. at 124. The idea behind the holding is that, at a joint trial, the court needs to limit realistically the jury's consideration of evidence that is only admissible against one defendant. The Supreme Court has consistently urged that Bruton be construed narrowly. Richardson v. Marsh, 481 U.S. 200, 207, 95 L. Ed. 2d 176, 107 S. Ct. 1702 (1987).
Mrs. Wileczek was not a codefendant and, although her statement was incriminating, it did not amount to a confession of any crime. Her statement was not admissible as an admission by either defendant. Thus, Bruton does not apply to Mrs. Wileczek's statement.
2. Statement Admissible
Although an out-of-court inculpatory statement may not be covered by Bruton, the hearsay rule and Confrontation Clause impose limits on the admissibility of such evidence. In the instant case, however, Artis, Wileczek, defense counsel, and the government stipulated to the admission of a redacted version of Mrs. Wileczek's statement. (5/10/95 Document 37). Artis argues that, notwithstanding the stipulation's language, (which agrees to the admission of the redacted statement without limitation),
he only stipulated to admitting the statement against Wileczek. (N.T. 6/15/95, at 3-5). He concludes that once Wileczek pled guilty, the statement was no longer relevant and should not have gone out with the jury.
Artis, however, misapprehends the law. His argument is based on the faulty presumption that the instant case is analogous to Bruton and, Mrs. Wileczek's statement was only admissible against his codefendant. However, as discussed above, unlike the statement at issue in Bruton, Mrs. Wileczek's statement was not made by a nontestifying codefendant and was not admissible against Artis' codefendant as an admission. Rather, Mrs. Wileczek's redacted statement was the product of a joint stipulation that contained no limiting language. Moreover, when the redacted statement was read to the jury and moved into evidence, Artis raised no objection nor did he request a limiting instruction. (N.T. 6/15/95, at 126). By not objecting to the statement's admission, not putting any limiting language in the stipulation, and not requesting a limiting instruction when the statement was admitted into evidence, Artis waived any objection to the jury considering the statement against him. Hassel v. Holt, 371 F.2d 543, 544 (3d Cir. 1967), Fed.R.Evid. 103(a)(1) (party must raise timely objection to admission of arguably objectionable evidence), 105 (party must request limiting instruction). Therefore, the jury properly considered the statement as part of its deliberations over Artis' guilt.
Moreover, even assuming that the jury should not have considered the statement after Wileczek pled guilty, I find that any potential error was harmless. Mrs. Wileczek's statement provided in relevant part that:
Approximately 6 - 7 months ago a man began sending boxes of CD's to my house at 2000 Simpson Street Philadelphia Pa 19142. This man is employed by the U.S. Postal Service. He was sending the CD's from the place where he works, the Post Office. He was taking them from the U.S. mail. I saw mailing labels on the CD's, addressed to other people.