The opinion of the court was delivered by: Veronica L. Duffy United States Magistrate Judge
ORDER ON DEFENDANTS' MOTIONS TO SEVER
Defendant John Graham has filed a motion seeking an order from the court severing his trial from that of co-defendant Vine Richard Marshall's trial. [Docket 75]. Defendant Richard Marhshall has also filed a motion to sever his trial from that of Mr. Graham's. [Docket No. 87]. The government resists these motions. The district court, the Honorable Lawrence Piersol, referred the motions to this court for determination pursuant to 28 U.S.C. § 636(b)(1)(A).
The facts, insofar as they are pertinent to the pending motion, are as follows. Count one of the superseding indictment charges Mr. Graham and Mr. Marshall jointly with the unlawful killing and with aiding and abetting the killing of Annie Mae Aquash with a firearm, asserting that both defendants are Indians and that Ms. Aquash is also an Indian, in violation of 18 U.S.C. §§ 2, 1111, and 1153.
Count two charges Mr. Graham alone with killing Annie Mae Aquash "willfully, deliberately, and maliciously, with premeditation and malice aforethought," in violation of 18 U.S.C. §§ 2, 1111, and 1152. Count two alleges that Ms. Aquash is an Indian, but does not allege that Mr. Graham is an Indian.
Count three alleges that Mr. Graham killed, and aided and abetted other Indians in killing Ms. Aquash, in violation of 18 U.S.C. §§ 2, 1111, and 1153. The Indians Mr. Graham is alleged to have aided and abetted in count three are Fritz Arlo Looking Cloud, TheDA Rose Clarke, and co-defendant Mr. Marshall. Count three does not allege that Mr. Graham is an Indian. Count three is currently the subject of a motion to dismiss by Mr. Graham.
The defendants are currently scheduled to be tried in a joint jury trial beginning February 24, 2009. The government's theory of the case, as asserted by the defendants, is that Mr. Graham and Mr. Marshall acted on orders from decision-makers within the American Indian Movement ("AIM"), to murder Ms. Aquash due to the suspicion that she was a government informant working against AIM. The government alleges that Mr. Marshall provided the firearm and ammunition used to commit the murder and that Mr. Graham carried out the actual murder. Both defendants seek separate trials.
A. Severance Under Rule 14(a)
Generally Rules 8(b) and 14 of the Federal Rules of Criminal Procedure address the propriety of joinder of defendants in a single indictment. If joinder of defendants is not proper under Rule 8(b), severance becomes mandatory. Even if severance is not mandated by Rule 8(b), the court has discretion to grant severance under Rule 14 if joinder of the defendants appears to prejudice a defendant or the government. United States v. Davis, 534 F.3d 903, 916 (8th Cir. 2008). However, once it is determined that defendants are properly joined under Rule 8(b), "[t]he presumption against severing properly joined cases [under Rule 14] is strong." United States v. Ruiz, 412 F.3d 871, 886 (8th Cir. 2005). The preference for joint trials is in order to give "the jury the best perspective on all of the evidence and therefore increase[ ] the likelihood of a correct outcome." United States v. Flores, 362 F.3d 1030, 1039 (8th Cir. 2004) (quoting United States v. Darden, 70 F.3d 1507, 1528 (8th Cir. 1995)). In addition, courts recognize that joint trials conserve scarce time and resources. United States v. Hively, 437 F.3d 752, 765 (8th Cir. 2006). "Under Fed. R. Crim. P. 14(a), the issue of severance is entrusted to the sound discretion of the trial judge." Id. at 765 (internal citation omitted).
Mr. Graham concedes that he and Mr. Marshall are properly joined under Fed. R. Crim. P. 8(b) and does not seek severance pursuant to that rule.
Mr. Marshall similarly raises no argument that joinder under Rule 8(b) is improper in this case. Rather, the defendants' motions seek severance on the basis of Fed. R. Crim. P. 14(a). A defendant who seeks severance under Rule 14 must show "real prejudice." Davis, 534 F.3d at 916. "Real prejudice" consists in showing (1) that the moving defendant's defense "is irreconcilable with that of his co-defendant or (2) the jury will be unable to compartmentalize the evidence as it relates to the separate defendants." Id. at 916-917 (quoting United States v. Mickelson, 378 F.3d 810, 817-818 (8th Cir. 2004)). "Severance is not required merely because evidence that is admissible only against some defendants may be damaging to others, . . ." Mickelson, 378 F.3d at 818. "Nor is it enough for a defendant to claim, . . . that he needed a separate trial in order to call a co-defendant as a witness. He must show that it is likely his co-defendant actually would have testified and that this testimony would have been exculpatory." Id. (citing United States v. Delpit, 94 F.3d 1134, 1143-1144 (8th Cir. 1996)). "Generally, the risk that a joint trial will prejudice one or more of the defendants 'is best cured by careful and thorough jury instructions.' " Davis, 534 F.3d at 916-917 (quoting Mickelson, 378 F.3d at 818; and citing Zafiro, 506 U.S. at 537).
Mr. Graham raises three arguments in favor of severance under Rule 14:
(1) that his confrontation rights under the Sixth Amendment will be violated by a joint trial because statements of co-defendant Richard Marshall which are inculpatory to both defendants will be admitted at trial and Mr. Marshall is not expected to testify;*fn1 (2) that evidence that would otherwise be inadmissible at Mr. Graham's trial, i.e. Mr. Marshall's inculpatory statements, would be admissible at a joint trial; and (3) that Mr. Graham and Mr. Marshall will present mutually exclusive or antagonistic defenses.
Mr. Marshall argues that he should be granted a separate trial because (1) evidence that will be admissible against Mr. Graham in a joint trial would be inadmissible against Mr. Marshall in a separate trial; and (2) that Mr. Marshall will experience "spill-over" prejudice due to the fact that the government's case against Mr. Graham is much stronger than the government's case against Mr. Marshall. Each argument will be discussed in turn.
B. Severance Under Bruton
The prow of Mr. Graham's argument in favor of severance is that his confrontation rights will be violated by the admission into evidence of out-of-court statements by Mr. Marshall that inculpate Mr. Graham. Mr. Graham assumes that Mr. Marshall will not testify, an assumption that seems warranted under the current state of the pleadings in this case. See footnote 1, supra.
The United States Supreme Court established in Bruton v. United States, 391 U.S. 123 (1968), that a defendant's confrontation rights under the Sixth Amendment are violated by the admission of a non-testifying co-defendant's confession that implicates the defendant. Id. at 137.*fn2 In Bruton, Bruton and a co-defendant, Evans, were tried together for armed postal robbery. Id. at 124-125. A confession by Evans inculpating both Evans and Bruton was admitted at the trial. Id. at 125-126. Evans never testified and the jury was instructed that it was not to consider Evans' confession in determining whether Bruton was guilty. Id. Despite the limiting instruction, Bruton argued that the introduction of Evans' confession violated his confrontation rights under the Sixth Amendment. Id. The Court agreed and reversed for a new trial. Id. at 136-137.
The Supreme Court declined to further extend Bruton in Richardson v. Marsh, 481 U.S. 200 (1987). In that case, the Court held that the Confrontation Clause is not violated by the admission of a non-testifying co-defendant's confession that was redacted to eliminate the defendant's name and any other reference to the defendant's existence. Id. at 211.
Marsh and a co-defendant, Williams, were tried together for murder and assault, over Marsh's objection to a joint trial. Id. at 202. The victim of the assault testified at trial, identifying Marsh and Williams as the murderers and her assailants. Id. Williams had confessed after his arrest and his statement was also introduced at trial, with all reference to Marsh redacted. Id. at 203-204. Williams' confession largely corroborated the victim's testimony. Id. Williams did not testify at the trial and the district court instructed the jury that they were not to use Williams' confession in any way against Marsh. Id. at 204. Marsh herself then testified and placed herself at the scene of the crime, testifying that she had no forewarning that Williams was going to commit any crime. Id. at 204. Marsh was convicted of two counts of felony murder. Id. at 205.
The Court began by noting that "a witness whose testimony is introduced at a joint trial is not considered to be a witness 'against' a defendant if the jury is instructed to consider that testimony only against a co-defendant." Id. at 207. The Court also acknowledged that the situation in Bruton was an exception to this general rule where the non-testifying co-defendant's confession expressly implicated the defendant. Id. at 208. Under these circumstances, the "powerfully incriminating" confession could not fail to infect the confrontation rights of the nonconfessing co-defendant. Id.
The Court distinguished Bruton, however, from the facts in Marsh's case because in Marsh's case, the redacted confession did not implicate Marsh at all, but only became incriminating when linked with other admissible evidence introduced at trial, namely Marsh's own testimony and that of the assault victim. Id. The fact that the confession itself did not incriminate Marsh, coupled with the court's limiting instruction to the jury not to consider Williams' confession in any way as to Marsh, made this case different. Id. The Court held that "the Confrontation Clause is not violated by the admission of a non-testifying co-defendant's confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence." Id. at 211.
In a subsequent case, the Court had reason to refine its position as to Bruton and Richardson. See Gray v. Maryland, 523 U.S. 185 (1998). In Gray, Gray and a co-defendant, Bell, were indicted for murder and tried jointly. Id. at 188. Bell's confession was admitted at trial in a redacted version in which Gray's name was removed and the word "deleted" or "deletion" was substituted. Id. at 188-189. After Bell's confession was read into the record by a detective, the prosecutor asked, "after [Bell] gave you that information, you subsequently were able to arrest Mr. Kevin Gray; is that correct?" Id. The detective responded "yes." Id. at 189. Other witnesses testified at trial indicating that both Bell and Gray were involved in the murder. Id. Bell never testified, although Gray testified, denying any involvement. Id. The trial court instructed the jury that it should consider Bell's confession only against Bell and not as any evidence against Gray. Id. Both defendants were convicted. Id. Gray argued that the admission of Bell's confession violated his confrontation rights under Bruton. Id.
The Court agreed. Id. at 197. Distinguishing Richardson, where the confession was redacted to remove all reference to Marsh and all indication that anyone other than the confessor and a third party had participated in the crime, the confession in Gray, even though it was redacted, clearly indicated the participation of another person, though that person remained unnamed. Id. at 191-192. The Court stated that, "Redactions that simply replace a name with an obvious blank space or a word such as 'deleted' or a symbol or other similarly obvious indications of alteration, however, leave statements that, considered as a class, so closely resemble Bruton's unredacted statements that, in our view, the law must require the same result." Id. at 192.
As an example, the Court examined the confession introduced at Gray's trial: "Question: Who was in the group that beat [the victim]? Answer: Me, deleted, deleted, and a few other guys." Id. at 196. Although this redaction of the co-defendant's statement created Bruton problems, the Court suggested an alternative redaction of the same statement that would not be problematic: "Question: Who was in the group that beat [the victim]? Answer: Me and a few other guys." Id. The goal is to edit the statement so that not only are all incriminating remarks of the nonconfessing co-defendant removed, but to do so in a way so that the statement does not obviously appear to have been redacted. Id. (citing Richardson, 481 U.S. at 203).
Although not dealing with the issue of severance, the United States Supreme Court decided Crawford v. Washington, 541 U.S. 36 (2004), after the Gray decision. The Crawford decision further interprets the Confrontation Clause, holding that "out-of-court statements by witnesses that are testimonial are barred, under the Confrontation Clause, unless witnesses are unavailable and defendants had prior opportunity to cross-examine witnesses, regardless of whether such statements are deemed reliable." Crawford, 541 U.S. at 36.
The Crawford decision addressed the issue of whether out-of-court hearsay statements made by an unavailable witness, rather than a co-defendant as in Bruton, were admissible at trial. Crawford, 541 U.S. 36. The facts of Crawford were as follows. Petitioner Michael Crawford stabbed a man who allegedly attempted to rape his wife, Sylvia Crawford. Id. at 38. At trial, Mrs. Crawford did not testify because of the state marital privilege, thereby making her an unavailable witness. Id. at 40. Under state law, a spouse's outof-court statements were admissible under a hearsay exception. Id. Thus, the state sought to introduce into evidence out-of-court, tape-recorded statements Mrs. Crawford made to the police describing the events leading up to the assault and the assault itself. Id. Because of Mrs. Crawford's involvement in the assault, the state relied upon the hearsay exception for statements against penal interest. Id.
The trial court allowed Mrs. Crawford's out-of-court statements to be played to the jury, relying on the rule in Ohio v. Roberts, 448 U.S. 56 (1980). Crawford, 541 U.S. at 40. In Roberts, statements made by an unavailable witness against a criminal defendant were admissible at trial if the statements bore " 'adequate indicia of reliability,' " that is, statements "must either fall within a 'firmly rooted hearsay exception' or bear 'particularized guarantees of trustworthiness.' " Id. (quoting Roberts, 448 U.S. at 66). The trial court in Crawford admitted Mrs. Crawford's out-of court statements on the latter ground. Crawford, 541 U.S. at 40. Mr. Crawford objected on the grounds that admitting these statements violated his "federal constitutional right to be confronted with the witnesses against him." Id. (internal quotations omitted).
On appeal, the Supreme Court rejected the reliability test articulated in Roberts, holding that "[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." Id. at 68-69. The Crawford Court held that "out-of court statements by witnesses that are testimonial are barred, under the Confrontation Clause, unless witnesses are unavailable and defendants had prior opportunity to cross-examine witnesses, regardless of whether such statements are deemed reliable by the court." Id. at 36 (emphasis added).
A key consideration in Crawford is whether the out-of-court statements are testimonial. The constitutional protections of the Confrontation Clause afforded to a defendant only apply when witnesses against him " 'bear testimony.' " Id. at 51. " 'Testimony,' in turn is typically '[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.' " Id. (quoting 2 N. Webster, An American Dictionary of the English Language (1828)). Although the Court in Crawford did not provide an exhaustive list of statements that are deemed testimonial, it stated that "[w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." Crawford, 541 U.S. at 68. Although the Court did not comprehensively define "testimonial," it stated that evidence is testimonial when "made under circumstances which would lead an objective witness reasonably to believe that the statements would be available for use at a later trial." Id. at 51.
The Supreme Court again interpreted the confrontation clause in Davis v. Washington, distinguishing between testimonial and non-testimonial statements in the context of police interrogations. Davis v. Washington, ...