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United States v. Green

United States District Court, W.D. New York

October 27, 2017

ERNEST GREEN, a/k/a “Ern, ” RODSHAUN BLACK, a/k/a “Rashaun Black” a/k/a “Shaun, ” DANIEL RODRIGUEZ a/k/a “Danny, ” and AMILCAR RAMOS, a/k/a “Gotto, ” Defendants.




         On October 19, 2017, this Court denied the severance motions filed by Defendants Ernest Green, Rodshaun Black, Daniel Rodriguez, and Amilcar Ramos.[1] (Docket No. 574.) Thereafter, Defendants alerted this Court to additional severance issues set forth in a sealed submission, which the government had filed out of time. (Docket Nos. 431, 435, 577.) After receipt of supplemental briefing, this Court notified the parties that the remaining requests for severance would be denied, with a decision to follow. (Docket Nos. 584, 594, 597, 601.) This is that decision.


         To begin, this Court incorporates its previous decision denying Defendants' motions for severance and presumes familiarity with the underlying facts of the case and arguments for severance. (Docket No. 574.)

         Remaining at issue are Defendants' arguments that severance is required because the government intends to introduce cooperating-witness and co-defendant statements in the joint trial that will violate their Confrontation Clause rights and will unfairly prejudice them, both through “spillover” prejudice and under Rule 403 of the Federal Rules of Evidence. The government argues that severance is not required, because the statements at issue do not implicate Defendants' Confrontation Clause rights and are not unfairly prejudicial, either as “spillover” prejudice or under Rule 403.

         Properly joined offenses or defendants may be severed if joinder results in prejudice to a defendant or the government. Fed. R. Crim. P. 14 (a). In such a case, the court may provide any relief that justice requires, including ordering separate trials of counts or severing the defendants' trials. Id. But “a district court should grant a severance under Rule 14 only 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.” Zafiro v. United States, 506 U.S. 534, 539, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993).

         At issue are two groups of statements: cooperating-witness statements (Docket No. 584-1) and co-defendant statements (Docket No. 584-2). The cooperating-witness statements involve statements made by Defendants to cooperating witnesses that incriminate themselves or their co-defendants. The co-defendant statements involve statements that Defendants made to law enforcement that also implicate their co- defendants.

         A. Cooperating-Witness Statements

         The cooperating-witness statements do not raise confrontation issues or require severance. The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. Known as the Confrontation Clause, this trial right “prohibits the introduction of testimonial statements by a nontestifying witness, unless the witness is ‘unavailable to testify, and the defendant had a prior opportunity for cross-examination.” Ohio v. Clark, ___ U.S. ___, 135 S.Ct. 2173, 2179, 192 L.Ed.2d 306 (2015) (citing Crawford v. United States, 541 U.S. 36, 54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)).

         What constitutes a “testimonial” statement is a matter of much discussion. See, e.g., Clark 135 S.Ct. at 2179-2180 (discussing Confrontation Clause jurisprudence). In short, “the question is whether, in light of all the circumstances, viewed objectively, the ‘primary purpose' of the conversation was to ‘creat[e] an out-of-court substitute for trial testimony.'” Clark, 135 S.Ct. at 2180 (quoting Michigan v. Bryant, 562 U.S. 344, 358, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011)).

         The cooperating-witness statements here do not pose Confrontation Clause problems because they are not testimonial statements. See United States v. Williams, 506 F.3d 151, 156 (2d Cir. 2007) (noting that “the Confrontation Clause simply has no application to nontestimonial statements); United States v. Esparra, No. 12 Cr. 844 (RWS), 2014 WL 1569607, at *4 (S.D.N.Y. Apr. 17, 2014) (“[B]ecause statements to associates about crimes in which the declarant participated are not testimonial, the admission of such statements does not violate the Confrontation Clause.”) (citing Williams, 506 F.3d at 157).

         In United States v. Pike, the Second Circuit held that a defendant's statement to a fellow inmate is not testimonial, because the defendant, while incarcerated, would have no reason to believe it would be used in a judicial proceeding. 292 Fed.Appx. 108, at *2 (2d Cir. 2008) (summary order). The court therefore found that admission of the statement into evidence did not violate either Bruton[2] or Crawford.[3] Id. Similarly here, Defendants made statements to individuals with no reason to believe those statements would be used in a judicial proceeding. They are therefore non-testimonial statements and their admission into evidence is not barred by the Confrontation Clause.

         Consequently, to the extent Defendants argue that a joint trial will infringe their right to confrontation as it relates to the ...

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