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United States v. Mitchell

United States District Court, D. Maine

June 15, 2016

UNITED STATES OF AMERICA
v.
JERMAINE MITCHELL and AKEEN OCEAN

          ORDER ON MOTION IN LIMINE AND MOTION TO SEVER

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE

         Concluding 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 trial.

         I. PROCEDURAL BACKGROUND

         On 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).

         On June 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).

         II. STATEMENT OF FACTS

         In 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. Mitchell’s nicknames.

         Counsel 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[1] 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.”[2] Gov’t’s Opp’n at 1.

         III. POSITIONS OF THE PARTIES

         A. Jermaine Mitchell’s Motion

         Mr. 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.

         Mr. 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 confrontation.” Id.

         Lastly, 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.

         B. The Government’s Opposition

         The 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).

         In 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 Defendants. Id.

         IV. DISCUSSION

         A. The Confrontation Clause and Bruton

         The 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 126.[3] 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).

         The 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.

         Moreover, 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 ...


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