Tuesday, June 24, 2008

Crawford Doesn't Affect Admissibility of Co-Defendant's Out-of-Court Statements at Trial; Reference to Codefendants' Guilty Pleas Harmless Error

United States v. Ramos-Cardenas, No. 06-51383 (5th Cir. Apr. 9, 2008) (per curiam) (King, Stewart, Prado)

Recall that in Bruton v. Smith, the Supreme Court held that the Confrontation Clause bars the admission of a non-testifying codefendant's out-of-court statement that expressly implicates another defendant. Later, in Richardson v. Marsh, the Court held that admission of a non-testifying codefendant's statement didn't violate the other defendant's Confrontation Clause right where the statement was redacted to omit any reference to the other defendant, as well as to remove any implication that anyone other than the codefendant and an identified third party commited the crime. But in Gray v. Maryland, the Court found a Bruton violation where the non-testifying codefendant's statement was redacted by replacing the other defendant's name with blank spaces, "deleted," or "deletion." The difference between Marsh and Gray? In Marsh, the statement incriminated the other defendant only inferentially and in combination with other evidence introduced at trial. But in Gray, the way the statement was redacted obviously implicated the other defendant, and didn't require as much of an inferential leap as in Marsh.

So why the history lesson? Well, when Marsh and Gray were decided, Ohio v. Roberts governed the admissibility of testimonial hearsay, and allowed such statements if they bore sufficient indicia of reliability (either falling within a firmly rooted hearsay exception, or on a showing of "particularized guarantees of trustworthiness"). But Roberts is no longer good law, having been overruled by Crawford. Now (or as it really always was, depending on how you view it) testimonial hearsay is admissible against a defendant only if the witness is unavailable and the defendant had a prior opportunity for cross examination. Thus the question: do Marsh and Gray survive Crawford?

The question arose in this big backpacker case when a dozen or so defendants were prosecuted for conspiring to possess a lot of marijuana with the intent to distribute it. At trial, an agent testified to inculpatory post-arrest statements made by two of the codefendants. Prior to trial, the district court had ordered "that these statements be redacted to eliminate all reference to defendants other than the speaker [,including the elimination of any plural pronouns such as "we" or "they"], and the jury was instructed not to consider the statements as evidence." Unfortunately for the codefendants, the agent slipped up a couple of times and testified that one of the defendants said that "he arrived in Acuna a week before they crossed," an apparent reference to other backpackers who crossed the Rio Grande with him. The agent corrected himself during the rest of his testimony, relating the codefendants' statements with singular pronouns only.

On appeal, the court held that the admission of the codefendants' "plural" statements fell squarely within Marsh, and did not violate the other defendants confrontation rights. It also held that the "they" statements were OK, because the inferential implication of the other defendants was more attenuated than in Gray, and because Gray suggested that use of an indefinite pronoun would take care of the confrontation problem.

So what about Crawford? The court spake thusly:
Crawford involved the admission of an unavailable witness’s out-of-court statement in a single-defendant trial, and thus did not speak directly to the issue before us. However, while Crawford certainly prohibits the introduction of a codefendant’s out-of-court testimonial statement against the other defendants in a multiple-defendant trial, it does not signal a departure from the rules governing the admittance of such a statement against the speaker-defendant himself, which continue to be provided by Bruton, Richardson, and Gray.

It then cites decisions from several other courts of appeals holding the same, but none to the contrary, so there doesn't appear to be a split of authority on the issue.

In addition to the confrontation issue, the court addressed another question that can arise in multi-defendant trials. It so happens that a Mr. Diaz, one of the defendants in the case, pleaded guilty before trial and testified against the others (the terms of his plea agreement were covered during the trial). During deliberations, the jury sent a note asking why "Diaz" was "the only name on the indictment, and not the names of the defendants?" As it turns out, the jury was apparently referring to the jury instructions styled "United States of America v. Daniel Bennett Diaz, et [] al." "In response, the district court submitted a copy of the indictment to the jury, along with a note explaining that the first two individuals listed on the indictment, Diaz and Huerta-Adriano, had pleaded guilty, and that the jury’s job was to determine if the government had proved the guilt of the other defendants beyond a reasonable doubt."

The court of appeals held that "it clearly was not error for the district court to state in the response to the jury note that Diaz had pleaded guilty, as this fact was already properly before the jury: evidence of a testifying coconspirator’s conviction is admissible (and commonly used) for impeachment purposes, and the fact of Diaz’s plea was referenced by both the government and the defense while he was on the stand."

The reference to Huerta-Adriano's guilty plea was more problematic, because he did not testify at trial. Nevertheless, despite finding the disclosure troubling, the court held that the error, if it was even error in the first place, was harmless in light of 1) the evidence against the defendants, and 2) the assumption that the jury followed the district court's instruction that the guilty pleas were not evidence of the other defendants' guilt.



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