Severance Part II – Federal Rules, Bruton & Other Thoughts
SEVERANCE – PART II – FEDERAL RULES, BRUTON
AND OTHER THOUGHTS
Robert C. Bonsib, Esq. and Megan E. Coleman, Esq.
In the first article in our series on severance, we focused on the Maryland Rules and Maryland cases discussing when severance of counts or defendants may be appropriate and under what circumstances motions for severance have been denied and affirmed and/or reversed on appeal. In this article, we will review the federal rules governing joinder and/or severance, review the application of the Bruton series of cases to the issue of severance, discuss selected federal and Supreme Court cases dealing with the issues of severance and, finally, discuss some practice pointers for setting up and preserving severance arguments.
FEDERAL RULES OVERVIEW
The basic federal rules are very similar to the Maryland Rules on joinder and severance.
Joinder of Offenses – Fed. R. Crim. Pro. 8(a)
The indictment or information may charge a defendant in separate counts with two or more offenses if the offenses charged “are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.” Fed. R. Crim. Pro. 8(a).
Joinder of Defendants – Fed. R. Crim. Pro. 8(b)
The indictment or information may charge two or more defendants 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. Pro. 8(b).
The federal decisions consistently have held that judicial economy favors joinder of defendants for trial of charges growing out of the same events. U.S. v. Lurz, 666 F.2d 69, cert. denied, 102 S.Ct. 1642 (4th Cir. 1981). However, they have also recognized that the “favored” position of joinder may be outweighed by other considerations.
In U.S. v. Whitehead, the Fourth Circuit held that “[w]here the only nexus between two defendants joined for trial is their participation in similar offenses, on different dates, with a common third defendant, the ‘same transaction’ or ‘series of transactions’ test of Rule 8(b) is not satisfied and joinder is impermissible.” 539 F.2d 1023, 1026 (4th Cir. 1976).
Joint Trial of Separate Cases – Fed. R. Crim. Pro. 13
The court may order that separate cases be tried together as though brought in a single indictment or information if all offenses and all defendants could have been joined in a single indictment or information. Fed. R. Crim. Pro. 13.
Relief from Prejudicial Joinder – Fed. R. Crim. Pro. 14
If joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendant’s trials, or provide any other relief that justice requires. Fed. R. Crim. Pro. Rule 14(a).
A significant federal rule, not present in the Maryland Rules, provides that “[b]efore ruling on a defendant’s motion to sever, the court may order an attorney for the government to deliver to the court for in camera inspection any defendant’s statement that the government intends to use as evidence.” Fed. R. Crim. Pro. Rule 14(b). The importance of invoking this rule is discussed in the Bruton section in this article.
Defendant Bears the Burden
“A defendant making a motion for severance pursuant to Rule 14 has the burden of demonstrating a strong showing of prejudice.” U.S. v. Brown, 217 F.3d 841, at *6 (4th Cir. 2000) (unpublished opinion).
CO-DEFENDANT STATEMENTS AND BRUTON
Perhaps the most common ground for severance occurs when defendants being tried jointly have given statements to police officers that implicate or refer to a co-defendant.
In Bruton v. U.S., 391 U.S. 123 (1968), the Supreme Court made it clear that at a joint trial, the prosecution could not introduce a statement made by a non-testifying co-defendant which implicated another defendant on trial in the same proceeding. In that case, Bruton and Evans were tried together for armed robbery. A postal inspector testified that Evans orally confessed to him that Evans and Bruton committed the armed robbery. Id. at 124. Evans did not testify. Despite cautionary instructions to the jury to disregard Evans’ hearsay evidence inculpating Bruton, in the context of a joint trial, that was not an adequate substitute for Bruton’s constitutional right of cross-examination. Id. at 137. Bruton is limited to “facially incriminating statements.”
The mere fact that a co-defendant may have given a statement does not necessarily entitle one to a severance. After Bruton, cases interpreting Bruton explained under what circumstances a non-testifying co-defendant’s statement could be redacted by the prosecutor to make the statement “Bruton proof” such that the prosecution could use it in a joint trial.
In Richardson v. Marsh, 481 U.S. 200, 203 (1987), the Supreme Court held that the admission of a non-testifying co-defendant’s confession did not violate the defendant’s right under the confrontation clause where the court instructed the jury not to use the confession in any way against the defendant, the confession was redacted to eliminate not only the defendant’s name, but any reference to her existence, and the confession was not incriminating on its face, but only became so when linked with evidence introduced later at trial. The differences between Bruton and Richardson were that (1) in Bruton, the co-defendant’s confession expressly implicated the defendant as his accomplice whereas in Richardson the confession was not incriminating on its face but only when linked to evidence introduced at trial and (2) evidence requiring a linkage differs from evidence incriminating on its face. Id. at 201.
Likewise, in U.S. v. Locklear, the Fourth Circuit held that a Bruton problem exists only to the extent that the co-defendant’s statement in question, on its face, implicates the defendant. 24 F.3d 641, 646 (4th Cir. 1994). A co-defendant’s statement, which was not a confession, did not violate Bruton because Bruton is limited under Richardson v. Marsh, 481 U.S. 200, 208 (1987), to cases involving “facially incriminating confessions”.
In Gray v. Maryland, 523 U.S. 185 (1998), the Supreme Court held that the Bruton rule prohibiting introduction during joint trial of confession of non-testifying codefendant which names the defendant as a perpetrator extends also to redacted confessions in which the name of the defendant is replaced by a blank space, the word “deleted”, or some similar symbol. Unlike the redacted confession in Richardson, the confession in Gray referred directly to Gray’s existence. An obvious indication of alteration such that the jury would clearly see the alteration, leaves the statement so closely to resemble Bruton’s unredacted statements as to warrant the same legal results. Id. at 186. The Gray court said the “kind of” inference is controlling. In Richardson, the inference involved statements that did not refer directly to the defendant himself, but became incriminating only when linked with evidence introduced later at trial. By contrast, the inferences in Gray involve statements that despite redaction, obviously refer to Gray. Thus, the mere redaction of the name of a co-defendant is not sufficient to eliminate Bruton considerations. Any remaining references that refer directly to the existence of the co-defendant violate Bruton. Id. at 192. Gray cautions that limiting instructions cannot cure Bruton problems and that a jury will often react the same way to a redacted confession for it will often realize that the statement refers directly to the co-defendant. Id.
Be alert for testimony the prosecution may seek to offer by a witness, who wishes to testify to what that witness heard the non-testifying defendant say about your client. This witness may not be a police officer and may have heard you client discussing your client’s involvement in the crime or providing other damaging information. Bruton does not apply simply to a confession or written statements to police officers but also to any statement that would be testified to in which the non-testifying co-defendant, that is not a co-conspirator statement, makes Bruton violative type comments regarding your client.
In U.S. v Truslow, 530 F.2d 257, 263 (4th Cir. 1975), the Fourth Circuit rejected the government’s argument that Bruton is strictly limited to confessions made to law enforcement officers. The Fourth Circuit held that admission of a hearsay statement made by one defendant after the termination of the conspiracy, in which he implicated other defendants, was prejudicial error where the declarant did not testify. A cautionary instruction could not cure that error, and where several hearsay statements of the various defendants made after the termination of the conspiracy implicated the other defendants, the cumulative prejudicial effect of such statements required that the trial court grant the defendants’ motions for severance, even though on all but one occasion the declarant testified at trial.
Practical Lessons from Truslow: When it is brought to the attention of the trial court in connection with a severance motion that Bruton problems may be caused by statements of co-defendants to be used in a joint trial, the court should make inquiry as to the statements intended to be used and then decide what remedial steps are required. The remedial action may be in the form of the exclusion of the statements at a joint trial, deletion of references to co-defendants against whom the statement or statements are inadmissible, or severance. Id. at 261-262.
Even though Truslow and his co-defendant later took the stand and removed confrontation problems, their testifying did not cure the initial and continuing prejudice created by the use of many highly damaging and incriminating statements. Likewise, the use of limiting instructions in a case with multiple statements does not cure the error.
If a statement of a non-testifying defendant is offered during the course of the trial and the statement does not represent, for example, a statement made to a police officer after the non-testifying co-defendant’s arrest, and particularly if it occurred prior to the arrest of the alleged participants, the State may contend that it is not Bruton violative, but rather represents a statement of a co-conspirator. A co-conspirator statement under Fed. R. Evid. Rule 801(d)(2)(E) and Maryland Rule 5-803(a)(5) is one that was made by the party’s coconspirator during and in furtherance of the conspiracy. Such a statement is admissible in a joint trial even if made by a non-testifying co-defendant because all members of the conspiracy are held responsible for the acts and declarations of other co-conspirators made during the course of the conspiracy.
Be alert, however, because not all statements by a co-conspirator during the timeframe of the conspiracy are necessarily co-conspirator statements. In U.S. v. Urbanik, 801 F.2d 692 (1986), the Fourth Circuit held that a co-conspirator’s statement identifying the defendant as the co-conspirator’s “connection” for marijuana, which was merely a casual aside to a discussion of the defendant as a weight lifter, was not made “in furtherance of” a drug conspiracy, and therefore was not admissible under the coconspirator exception to the hearsay rule.
FORCE THE ISSUE!
Often informally, the defense may ask the prosecution whether it intends to use a non-testifying co-defendant’s statement in the trial so as to give a good faith reason to file a motion to sever. Equivocal answers from the prosecutor are not uncommon. Either the prosecution will say it has not yet decided or it may say they will redact the statement of the non-testifying co-defendant to make it “Bruton proof.” That is of little solace or assistance as you are preparing the defense of your case. An answer as to whether the statement will be used and, if so, if it will be redacted, is an answer that should be provided early on in the proceedings. The federal rules provide specific support for this approach. The absence of a similar provision in the Maryland Rules does not make it any less appropriate to demand such notice earlier in the proceedings. Additionally, if the prosecution indicates they are going to redact the statement, insistence on seeing the exact form that the statement will take after redaction is critical. If the prosecution fails to timely answer this question and, where appropriate, provide its proposed redactions, then it is necessary to file a motion to seek the intervention of the court to compel the prosecution to do so or, ask the court to bar the prosecution from using the statement or to grant a severance.
Once the redacted statement has been provided, simply because it may now appear to be “Bruton proof” from the prosecution’s perspective, does not necessarily mean that a severance is no longer appropriate. Even if the proposed redactions eliminate a facially incriminating reference to your client, the remaining portion of the statement may still be harmful and may be misleading or viewed out of context because the redactions not only eliminate reference to your client but may also eliminate references to other matters that could be of assistance in the defense of the case or that otherwise put the statement in a context that fairness requires be presented to the jury.
The non-testifying defendant’s statement, if introduced in a redacted form, may help the prosecution prove other elements of the offense, i.e. that there was a conspiracy with more than one individual involved, that the crime, if contested, actually occurred, even though the linking of your client to the crime has been redacted. Redacted portions of the statement may undercut proof on these issues or represent, in other ways, an unfair recounting of what the non-testifying co-defendant said. Make your record complete and particularized as to the nature and extent of any prejudice, even after the prosecution’s redactions are proposed.
ANTAGONISTIC DEFENDANTS, DISPARITY OF EVIDENCE,
AND UNPREDICTABLE EVENTS
Not every potential ground for severance is identifiable. In a particular case, you may contend that a joint trial with a co-defendant whose background or as to whom other prior bad acts will be admitted into evidence that had nothing to do with your client, creates “spillover prejudice” such that a joint trial would make a fair trial impossible. Your client’s impeccable background may be tarnished by evidence that he had associated with someone whose criminal record is extensive or whose history of other bad conduct is wide ranging.
But, “[m]utually antagonistic defenses are not prejudicial per se.” Zafiro v. U.S., 506 U.S. 534, 538 (1993). Defendants properly joined should only be severed “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.” Id. at 539. The Supreme Court said this risk may occur when evidence that the jury should not consider against a defendant tried alone, is admitted at the joint trial such as a co-defendant’s wrongdoing, or inversely if there is exculpatory evidence that would be admissible if the defendant were tried alone but is unavailable in a joint trial. Id.
A mere conflict in defenses, or hostility among defendants will not be sufficient, rather “[t]here must be such a stark contrast presented by the defenses that the jury is presented with the proposition that to believe the core of one defense it must disbelieve the core of the other…or ‘that the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.'” U.S. v. Najjar, 300 F.3d 466, 474 (2002) (internal citations omitted) The defendant must establish that actual prejudice would result from a joint trial,…and not merely that a separate trial would offer a better chance of acquittal. U.S. v. Reavis, 48 F.3d 763, 767 (4th Cir. 1995).
On occasion, grounds will become apparent in the middle of trial that were not apparent pre-trial, either because of the nature in which the evidence is produce or because of unexpected events. A motion for a midtrial severance is appropriate because the trial judge has a continuing duty at all stages of trial to grant severance. “[E]ven though joinder may be initially proper, the trial judge has a continuing duty at all stages of the trial to grant severance if prejudice appears.” Schaffer v. U.S., 362 U.S. 511, 616 (1960); see also, U.S. v. Spitler, 800 F.2d 1267, 1273 (4th Cir. 1986). Although the rule places grant or denial of motion for severance in the sound discretion of trial court, if substantial degree of prejudice springs from joint trial, severance is mandated. U.S. v. Truslow, 530 F.2d 257 (4th Cir. 1975).
If that occurs, then the additional question is whether your client gets severed and a mistrial declared or whether the other defendant gets severed and a mistrial declared as to that defendant or whether a mistrial must be declared as to all defendants.
In U.S. v. Chinchic, the Fourth Circuit held that the trial of two defendants should have been severed when the evidence indicated that one defendant participated in a robbery with a certain group of individuals and the other defendant participated in a different robbery with that same group of individuals. 655 F.2d 547 (4th Cir. 1981).
The facts peculiar to each case will determine whether sufficient prejudice exists to make the denial of a severance reversible error. U.S. v. Shuford, 454 F.2d 772, 776 (4th Cir. 1971) (Where severance was only way of affording defendant any possibility of persuading codefendant to testify and codefendant had indicated quite clearly to trial judge that he would testify if granted a severance and had indicated the precise contents of the expected testimony and its importance, it was reversible error to deny defendant’s motion for severance).
PRESERVATION OF THE ISSUES
Even the best severance issues are of no consequence if not properly preserved for appeal.
The Maryland Rules, as previously noted, require a lawyer to file a motion for severance within 30 days of the entry of your appearance or the defendant’s first appearance before the court. Grounds may become apparent at a later date that were not apparent within that 30 day time frame. Rule 4-252(a)(5). Timely file a particularized severance motion.
We are all accustomed to filing boiler-plate mandatory motions. The courts are more often requiring particularized motions and prosecutors are objecting and moving to dismiss non-particularized boiler-plate motions. While the prosecution has an obligation to provide the discovery and information necessary in order to determine whether a severance motion is appropriate so that the defense has the necessary information to particularize the grounds for the motion, once that information is available timely action is necessary.
It is also important to be alert and sensitive to newly acquired information or unexpected issues as they arise and to timely take action to move for severance if the circumstances support such.
The denial of a pre-trial motion for severance should be continually preserved. As an example, if it is based upon the court’s ruling that the State has properly redacted an otherwise Bruton violative statement, either ask for a continuing objection throughout the course of the trial to the introduction of any of the disputed evidence or, at the time the statement is offered, renew your objection and your motion for severance or, better yet, do both. If the motion for severance is renewed, specifically incorporate all of the previously argued grounds and include any new grounds that may become apparent at that point in the trial. It may very well be that during the course of the trial, evidence has been introduced that you believe makes your argument even more persuasive and you want to make certain that you have incorporated that additional information as additional grounds for the renewed motion for severance.
One of the greatest fictions in trial procedure (in the opinion of the authors) is that the court can give an effective limiting instruction to tell the jury to close their ears and to redact from their thought process information that is introduced during the course of the trial. The court may seek to mitigate the prejudice from the introduction of an offending statement or other evidence by offering a limiting instruction or, where the court really wants to try to put you in the “trick bag,” it may require you to prepare a limiting instruction that is sufficient to help mitigate the prejudice from the denial of the severance and the introduction of the offending evidence.
Your failure to accept a limiting instruction, if a conviction results and an appeal follows, may be deemed to be a waiver of the opportunity to lessen or eliminate the prejudice, as the fiction of the effectiveness of limiting instructions continues through the appellant process.
If the court offers a limiting instruction or offers you the opportunity to prepare the limiting instruction, albeit reluctantly, you should do so in order to preserve the issue. Make it clear that the only reason that you are accepting a limiting instruction is because you believe that the failure to do so will be deemed the waiver of your motion for severance. Make it clear that you are accepting the limiting instruction under protest, and that you do not believe that it mitigates or eliminates the prejudice from the denial of the severance or the introduction of the evidence, and do so with as much particularization as possible. Do not, after the process of preparing what may be the best language in the limiting instruction, simply say it is acceptable. What you may be intending as indicating it is as acceptable as an unacceptable instruction might be deemed as accepting the instruction. Object to the final version, even as you tell the court that it is the best that can be done with a prejudicial and/or ineffective limiting instruction.
FINAL THOUGHTS: DON’T ALWAYS SEEK TO SEVER JUST BECAUSE YOU CAN
Not every instance where severance may be granted does severance necessarily serve the purposes of your client.
There are instances where a trial with a co-defendant may be important to the full development of your defense. It may be that an otherwise Bruton violative statement that the prosecution wishes to use as evidence against the co-defendant also contains evidence that is of assistance to you in the development of your case. This may also apply to the issue of whether you seek to sever counts.
Also, a severance of counts, if granted, now gives the prosecution two opportunities to persuade a jury to convict your client. If the prejudice in a joint trial is minimal and you want to avoid the possibility of two trials, and after with the appropriate knowing concurrence by your client, you may not want a severance.
In conclusion, issues relating to severance occur pre-trial and may arise during the course of the trial. Preserve the issue, preserve the issue, and preserve the issue.