The opinion of the court was delivered by: Veronica L. Duffy United States Magistrate Judge
DEFENDANT'S MOTION TO SEVER [Docket No. 92]
Defendant Stephan Michael Randall is before the court on a superseding indictment charging that he and co-defendant Daniel Joseph Martin*fn1 assaulted Kenneth and Neil Morgan on August 8, 2010. See Docket No. 107.
Mr. Randall filed a motion to sever his trial from the trial of Mr. Martin. See Docket No. 92. The government resists the motion and asks that both defendants be tried together. See Docket No. 103. Mr. Martin has not responded to the motion. The district court, the Honorable Jeffrey L. Viken, referred Mr. Randall's motion to this magistrate judge for decision pursuant to 28 U.S.C. § 636(b)(1)(A). See Docket No. 110.
The facts pertinent to the pending motion are as follows. On August 8, 2010, Kenneth and Neil Morgan were assaulted. On August 12, 2010, Federal Bureau of Investigation ("FBI") Special Agent Dobberstein obtained a statement from Mr. Martin regarding the assault. Although neither party has provided the court with a copy of Agent Dobberstein's 302 summarizing the interview, Mr. Randall represents that Mr. Martin implicated himself and five other "accomplices" in the assault on the Morgans when he spoke to Agent Dobberstein. Mr. Randall further states that Mr. Martin told Dobberstein that most of the five accomplices were armed when they approached the Morgan residence. Mr. Randall further asserts that Mr. Martin told Dobberstein that Mr. Randall was one of the accomplices and that Randall was armed with a small gray bat with a red handle and red writing. Mr. Randall asserts that Mr. Martin told Dobberstein that all five accomplices participated in the beating of Neil Morgan.
Mr. Randall asserts that the introduction of Mr. Martin's statement at trial would violate Mr. Randall's confrontation rights under the Sixth Amendment if Mr. Martin does not testify. Accordingly, Mr. Randall moves to sever his trial from that of Mr. Martin's so that Mr. Martin's statement to Agent Dobberstein would not be admitted at Randall's trial.
Mr. Randall's motion is premised on Rule 14 of the Federal Rules of Criminal Procedure. That rule gives the court the power to order separate trials of co-defendants where a consolidated trial would appear to prejudice a defendant. See Fed. R. Crim. P. 14(a). The rule also authorizes the court to order the government to deliver to the court for in camera inspection any defendant's statement that the government intends to use as evidence. See Fed. R. Crim. P. 14(b). Mr. Randall argues that trying him along with Mr. Martin will prejudice Mr. Randall if the statement Mr. Martin gave to Agent Dobberstein is introduced at trial and if Mr. Martin does not testify.
The Sixth Amendment provides in pertinent part that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him;" See U.S. Const. amend. VI. The Supreme Court has held that the right of confrontation includes the right to cross-examine witnesses. See Pointer v. Texas, 380 U.S. 400, 404, 406-407 (1965).
The prow of Mr. Randall's argument in favor of severance is that his confrontation rights will be violated by the admission into evidence of the outof-court statement by Mr. Martin that inculpates Mr. Randall. 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.
The Confrontation Clause is not violated by the admission of a non-testifying co-defendant's confession that is redacted to eliminate the defendant's name and any other reference to the defendant's existence and if the jury is instructed to consider the out-of-court statement only against the declarant-defendant. Richardson v. Marsh, 481 U.S. 200, 207, 211 (1987). However, "[r]edactions 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." Gray v. Maryland, 523 U.S. 185, 192 (1998). In order to comply with Bruton, the statement must be edited so that not only are all incriminating references to the non-confessing co-defendant removed, but also so the statement does not obviously appear to have been redacted. Id. (citing Richardson, 481 U.S. at 203).*fn2
Since the constitutional protections afforded to a defendant under the Confrontation Clause apply only when witnesses against him " 'bear testimony,' " only "testimonial" statements implicate a defendant's Confrontation Clause rights. Crawford v. Washington, 541 U.S. 36, 51 (2004). " 'Testimony,' . . . 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)). 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 Crawford Court 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." Id. at 68.
Clearly, the statement made by Daniel Martin to Agent Dobberstein is testimonial because it was given in response to police interrogation. Id. at 51, 68. As such, it implicates the Confrontation Clause. Id. Equally clearly, Mr. Martin implicated Mr. Randall in his out-of-court statement to Agent Dobberstein. Thus, if Mr. Martin's unredacted statement were to be introduced into evidence at a joint trial where Mr. Martin did not ...