The opinion of the court was delivered by: Judge Conner
Presently before the court is the motion (Doc. 206) of defendant Donald A. Scott ("Scott") to sever all charges against him for a separate trial. Scott contends that he will be prejudiced if he is tried jointly with co-defendant Chance Bonner ("Bonner"), whose confessions the government intends to introduce for inculpatory effect. For the reasons that follow, the motion will be denied. The court concludes, however, that admitting several of Bonner's statements will run afoul of the rule set forth in Bruton v. United States, 391 U.S. 123 (1968), and its progeny. Accordingly, entry of these offending statements will not be permitted in a joint prosecution featuring Scott and Bonner as co-defendants.
The indictment (Doc. 1) contains fifteen separate counts against various permutations of the five defendants named therein. Count 1 charges all defendants with conspiracy to commit an offense against the United States in violation of 18 U.S.C. § 371. Twelve of the remaining counts accuse Scott and some combination of co-defendants with five Hobbs Act robberies under 18 U.S.C. § 1951, two carjackings under 18 U.S.C. § 2119, and use of a firearm in relation to crimes of violence under 18 U.S.C. § 924(c). The final count in the indictment charges Scott and two others with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). In total, Scott is charged in fourteen of the indictment's fifteen counts.*fn1
Scott moves to sever all charges against him, alleging that he will be prejudiced if tried jointly with his co-conspirators. Specifically, Scott contends that one co-defendant, Bonner, provided law enforcement with six statements that directly incriminate Scott in the charged crimes. Scott argues that the government's admission of these statements at trial will subvert his right to confront the witnesses against him. (See Doc. 207.) The government argues that severance is inappropriate in this matter, invoking the preference in the federal system for joint trials. (See Doc. 210.) The parties have fully briefed this motion, which is now ripe for disposition.
"There is a preference in the federal system for joint trial of defendants who are indicted together." Zafiro v. United States, 506 U.S. 534, 537 (1993); see also United States v. Lore, 430 F.3d 190, 204-05 (3d Cir. 2005) (explaining that "the federal system prefers joint trials of defendants who are indicted together because joint trials promote efficiency and serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts" (internal quotation omitted)). Rule 8 of the Federal Rules of Criminal Procedure reflects this liberal joinder policy, allowing the government to charge two or more defendants in the same indictment "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). When all the charged defendants are alleged to have participated in a single conspiracy, a joint trial appropriately "aid[s] the finder of fact in determining the full extent of the conspiracy and prevent[s] the tactical disadvantage of the government from disclosure of its case." United States v. Voigt, 89 F.3d 1050, 1094 (3d Cir. 1996) (internal quotations omitted). In the matter sub judice, Scott does not contend that he was improperly charged along with his co-conspirators, but rather that he is entitled to relief from prejudicial joinder pursuant to Federal Rule of Criminal Procedure 14.
Properly joined charges may be severed pursuant to Rule 14 if the joinder "appears to prejudice a defendant or the government." FED. R. CRIM. P. 14(a). A court should sever charges "only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Zafiro, 506 U.S. at 539; United States v. Silveus, 542 F.3d 993, 1005-06 (3d Cir. 2008). "[A] defendant is not entitled to a severance merely because evidence against a co-defendant is more damaging than evidence against the moving party," Lore, 430 F.3d at 205 (quoting United States v. Somers, 496 F.2d 723, 730 (3d Cir. 1974)), and the defendant must demonstrate that "clear and substantial prejudice" will result if all counts of the indictment are tried jointly, United States v. Davis, 397 F.3d 173, 182 (3d Cir. 2005).
However, "Rule 14 does not require severance even if prejudice is shown; rather, it leaves the tailoring of the relief to be granted, if any, to the district court's sound discretion." Zafiro, 506 U.S. at 538-39.
Scott is accused of membership in a five-person conspiracy to commit an offense against the United States by, inter alia, interfering with interstate and foreign commerce by threats of violence, carjacking, unlawful transfer and possession of firearms by convicted felons, and carrying firearms for use in a crime of violence. (See Doc. 1.) The indictment describes five Hobbs Act robberies, which occurred on January 2, 2008; February 1, 2008; March 22, 2008; and April 8, 2008. On January 2 and February 1, Scott is alleged to have committed robberies along with co-defendant DeShawn Livingston ("Livingston"). On March 22, the government alleges that Scott committed armed robbery with assistance from Bonner and co-defendant Lori Ann Miller ("Miller"). On April 8, Scott was purportedly aided by Bonner and co-defendant Miqual Hodge ("Hodge"). Thus, although the conspiracy comprises five individuals, each Hobbs Act offense was purportedly carried out by Scott and one or more accomplices.
On October 6, 2009, the government produced six statements provided by Bonner to law enforcement officers during the course of their investigation. (See Doc. 207-2.) These statements were procured during interviews of Bonner by various investigators on May 13, 2008; May 14, 2008; May 19, 2008; May 20, 2008; June 18, 2008; and July 9, 2008. The interviews were not recorded, nor were the statements formally adopted by Bonner as his own.*fn2 Instead, the content of each interview has been preserved in the form of memoranda prepared by the officers present. In each conversation, Bonner makes multiple references to Scott-references which the government proposes to redact and replace with generic terms such as "another person" or "another individual" or a gender-neutral pronoun. The government seeks to introduce Bonner's statements at trial through the testimony of its agents. Scott contends that this will amount to a violation of the Confrontation Clause.
The Confrontation Clause guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him." U.S. CONST. amend. VI. In Bruton v. United States, the Supreme Court held that a defendant is deprived of his confrontation rights when a non-testifying co-defendant's statement is introduced at their joint trial, and that statement names the defendant as a participant in the crime charged. See 391 U.S. at 134-37. The Court limited the Bruton rule in later cases, however, explaining that "the Confrontation Clause is not violated by the admission of a non-testifying co-defendant's confession with a proper limiting instruction when... the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence." Richardson v. Marsh, 481 U.S. 200, 211 (1987). According to the Third Circuit Court of Appeals, "Bruton and its progeny established that in a joint criminal trial before a jury, a defendant's Sixth Amendment right of confrontation is violated by admitting a confession of a non-testifying co-defendant that implicates the defendant, regardless of any limiting instruction given to the jury." Johnson v. Tennis, 549 F.3d 296, 298 (3d Cir. 2008) (emphasis added). The Third Circuit has held in at least one instance that replacing an objecting defendant's name with references to "the other guy," "someone else," "the guy," and "another guy," did not create a Confrontation Clause violation.*fn3 See Priester v. Vaughn, 382 F.3d 394, 399 (3d Cir. 2004).
In order to resolve the present motion, the court must examine each statement procured from Bonner, as well as the government's proposed redactions thereto. If, in spite of the proffered alterations, a statement is so "'powerfully incriminating' or 'devastating' that a limiting instruction fails to adequately safeguard the defendant's Sixth Amendment rights," United States v. McKee, 506 F.3d 225, 249 (3d Cir. 2007) (quoting Bruton, 391 U.S. at 135-36), then that statement is inadmissible at a joint trial involving both Scott and Bonner. The court will examine each statement seriatim.*fn4*fn5
A. May 13, 2008 Telephone Call with Detective Heffner
On May 13, 2008, Harrisburg police detective Donald Heffner received a telephone call from Bonner. In pertinent part, Heffner's record of the call states as follows:
Bonner told me that this is his 11th day clean from drugs except marijuana. Bonner admitted to being addicted to crack. A person named D.C. with a prior murder in his criminal history, gave Bonner a marijuana blunt with crack in it as a joke. Bonner said he has been hooked ever since. D.C. would ask Bonner and Jennifer Bass for rides. He would ask them to stop the car, get out and do his thing and now Bonner was knee deep in trouble. (Doc. 207-2.) The government proposes the following alteration:
Bonner admitted to being addicted to crack. A person gave him a marijuana blunt with crack in it as a joke. Bonner said he has been hooked ever since. Another person would ask Bonner and Jennifer Bass for rides. This other person would ask them to stop the car, get out and do their thing, and now Bonner was knee deep in trouble. (Id. (emphasis in original)). The court ...