United States District Court, D. Maine
ORDER ON MOTION IN LIMINE AND MOTION TO
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
that Mr. Mitchell has failed to demonstrate that the
admission of his co-defendant’s out-of-court statements
at trial will violate the Confrontation Clause, the Court
denies Mr. Mitchell’s motion in limine to exclude the
out-of-court statements, or in the alternative, to sever the
February 12, 2015, a federal grand jury indicted Jermaine
Mitchell and Akeen Ocean (Defendants), along with nine
others, charging them with engaging in a conspiracy to
distribute cocaine base. Indictment (ECF No. 3). Mr.
Ocean pleaded not guilty to the charge on February 20, 2015,
Entry (ECF No. 74), as did Mr. Mitchell on March 13,
2015. Entry (ECF No. 149). The Defendants’
jury trial is set to begin on June 20, 2016, Notice of
Hr’g (ECF No. 430), with the jury having been
selected on June 7, 2016. Entry (ECF No. 482).
6, 2016, Mr. Mitchell filed a motion in limine seeking to
exclude from evidence statements made by Mr. Ocean to law
enforcement regarding the existence of a conspiracy and Mr.
Mitchell’s involvement in a conspiracy, or in the
alternative to sever the Defendants’ trial.
Mot. In Limine Re: Statements of Co-Def. or, in
the Alternative, to Sever Defs. (ECF No. 479)
(Def.’s Mot.). The Government filed its
objection to Mr. Mitchell’s motion on that same day.
Gov’t’s Obj. to Def.’s Mot. In
Limine Re: Statements of Co-Def. or, in the Alternative,
to Sever Defs. (ECF No. 480) (Gov’t’s
Opp’n). On June 9, 2016, the Court issued an order
denying Mr. Ocean’s amended motion to suppress the
statements he made to law enforcement at issue in Mr.
Mitchell’s motion in limine. Order on Mot. to
Suppress (ECF No. 487).
STATEMENT OF FACTS
early September, 2014, as part of the investigation into the
illegal activities of a New Haven, Connecticut based street
gang known as the Red Side Guerilla Brims (RSGB), several
officers and agents from the New Haven Police Department
(NHPD) and the New Haven Office of the Bureau of Alcohol,
Tobacco, Firearms and Explosives travelled to Bangor, Maine
to work with Maine Drug Enforcement Agency agents in
conducting interviews and engaging in enforcement activity.
Aff. of Martin Podsiad at 1 (ECF No. 355-1)
(Podsiad Aff.). On the afternoon of September 4,
2014, Detectives Martin Podsiad, Josh Kyle, and Alberto
Merced of the NHPD interviewed Mr. Ocean concerning his
knowledge of RSGB activity. Id. The interview was
recorded and has been transcribed by the Government.
9/4/2014 Interview of Akeen Ocean (ECF Nos. 355-2,
355-3, 355-4) (Tr.). During the interview, Mr. Ocean
told the Detectives, inter alia, about the drug trafficking
activities of alleged co-conspirators Rodrigo Ramirez and
Christian Turner. Tr. at 6. Mr. Ocean also mentioned
“MB” as being involved with Turner and Ramirez.
Id. at 7. “MB” is allegedly one of Mr.
for the Government and for Mr. Mitchell discussed the
recording and transcript of the interview of Mr. Ocean, and
defense counsel raised concerns about
Bruton Confrontation Clause issues.
Def.’s Mot. at 2. On May 26, 2016, the
Government prepared a redacted audio recording and redacted
transcript of the interview of Mr. Ocean and provided it to
Mr. Mitchell, removing any mention of Mr. Mitchell or
“MB.” Gov’t’s Opp’n
POSITIONS OF THE PARTIES
Jermaine Mitchell’s Motion
Mitchell argues that though the Government has prepared a
redacted version of the recording and transcript of Mr.
Ocean’s interview with law enforcement eliminating his
name, the interview still contains evidence concerning the
existence of the conspiracy which is “powerfully
incriminating” and should be excluded pursuant to
Bruton. Def.’s Mot. at 2-3. Specifically, Mr.
Mitchell argues that under Bruton and First Circuit
precedent a co-defendant’s out-of-court statements may
be introduced at a joint trial, provided that “(i) the
district court instructs the jury not to consider the
statements against any defendant other than the declarant and
(ii) the statements are not so powerfully inculpating of the
other defendant that there would be substantial doubt as to
whether the jury could abide by a limiting
instruction.” Id. at 2.
Mitchell concedes that “a defendant’s
out-of-court confession generally will be admitted if it is
redacted to delete the [co-defendant’s] name and any
reference, direct or indirect, to his or her existence,
” id. at 2-3 (citing Richardson v.
Marsh, 481 U.S. 200, 211 (1987); United States v.
Vega Molina, 407 F.3d 511, 519 (1st Cir. 2005)), and
that “[s]tatements that are incriminating only when
linked to other evidence in the case do not trigger
application of Bruton’s preclusionary
rule.” Id. at 3 (citing Richardson,
481 U.S. at 208). He contends that although the redaction
eliminates any mention of Mr. Mitchell, Mr. Ocean’s
statement is powerfully incriminating on the issue of the
existence of the conspiracy because Mr. Ocean is from a
completely different circle of participants from some of the
other witnesses who will offer similar testimony regarding
the existence of the conspiracy, and if Mr. Ocean does not
take the witness stand, Mr. Mitchell “will have
virtually no opportunity to cross-examine the statement,
thereby impinging his 6th Amendment right to
Mr. Mitchell contends that several statements made by Mr.
Ocean and the Detectives during the September 4, 2014
interview are hearsay, lack relevance, and are unfairly
prejudicial pursuant to Federal Rule of Evidence 403.
Id. at 3-4. He petitions the Court to make
preliminary evidentiary rulings on these statements, exclude
them from the joint trial, or in the alternative, sever the
Defendants and conduct separate trials. Id. at 4-5.
Government argues that because the audio recording and
transcript of Mr. Ocean’s interview have been redacted
to remove any reference to Mr. Mitchell, and because the
Government does not intend to use this evidence against Mr.
Mitchell, Mr. Ocean’s statement does not present a
Bruton problem. Gov’t’s
Opp’n at 3. The Government contends that, in the
redacted form, Mr. Ocean’s statements are not
“powerfully inculpating or inculpating at all” of
Mr. Mitchell, as the statement does not identify Mr.
Mitchell, much less as a perpetrator of the crime.
Id. The Government suggests that when the audio
recording of the interview is played, the Court should
instruct the jury not to consider the statements against Mr.
Mitchell. Id. (citing Vega Molina, 407 F.3d
at 519). Moreover, the Government argues that because Mr.
Mitchell’s argument regarding the incriminating nature
of Mr. Ocean’s statement cannot be made without linking
that statement to other evidence that Mr. Mitchell
anticipates will be offered during trial, the statement by
definition is not powerfully incriminating. Id.
(citing Vega Molina, 407 F.3d at 520) (statements
that are incriminating only when linked to other evidence in
the case do not trigger application of
Bruton’s preclusionary rule).
conclusion, the Government submits that assuming the Court
gives a limiting instruction to the jury to the effect that
the statements of Mr. Ocean should not be considered in
anyway against Mr. Mitchell, “Mr. Mitchell’s
hearsay and other evidentiary objections to the recording
have virtually no force.” Id. at 4. The
Government argues that evidentiary objections to evidence
that the jury will be instructed not to consider against Mr.
Mitchell “are objections that do not need to be made or
ruled upon by the Court, ” and urges the Court to deny
Mr. Mitchell’s motion in limine and motion to sever
Confrontation Clause and Bruton
Confrontation Clause of the Sixth Amendment, extended to the
States by the Fourteenth Amendment, guarantees the right of a
criminal defendant “to be confronted with the witnesses
against him.” Richardson, 481 U.S. at 206
(citing U.S. Const. amend. VI). The right of confrontation
includes the right to cross-examine witnesses. Id.;
Pointer v. Texas, 380 U.S. 400, 404, 406-407 (1965). In
Bruton, the Supreme Court held that the admission of
a defendant’s confession that inculpated his
co-defendant violated that co-defendant’s Sixth
Amendment right of cross-examination. 391 U.S. at
In support, the Bruton Court cited the Advisory
Committee of the Federal Rules, which had issued the
following note two years prior: “A defendant may be
prejudiced by the admission in evidence against a
co-defendant of a statement or confession made by that
co-defendant. This prejudice cannot be dispelled by
cross-examination if the co-defendant does not take the
stand. Limiting instructions to the jury may not in fact
erase the prejudice.” Fed. R. Crim. P. 14 advisory
committee’s note (1966).
co-defendant’s confession in Bruton
“expressly implicat[ed]” the defendant as his
accomplice and was “powerfully incriminating.”
391 U.S. at 124 n.1, 135. In Richardson, the Supreme
Court held that where a confession is not incriminating on
its face, and becomes so only when linked with evidence
introduced later at trial, it does not trigger exclusion of a
co-defendant’s confession under Bruton. 481
U.S. at 208.
the Confrontation Clause is not violated by the admission of
a non-testifying co-defendant’s confession when proper
limiting instructions are given and the confession is
redacted to eliminate the defendant’s name and any
reference to him. Id. at 211; Vega Molina,
407 F.3d at 519 (a defendant's out-of-court statements
may be introduced at a joint trial if “(i) the district
court instructs the jury not to consider the statements
against any defendant other than the declarant and (ii) the
statements are not so powerfully inculpating of the other
defendants that there would be substantial doubt as to
whether the jury could abide by a limiting
instruction”; a defendant’s ...