United States District Court, W.D. New York
DECISION AND ORDER
WILLIAM M. SKRETNY, UNITED STATES DISTRICT JUDGE.
October 19, 2017, this Court denied the severance motions
filed by Defendants Ernest Green, Rodshaun Black, Daniel
Rodriguez, and Amilcar Ramos. (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.
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.)
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.
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).
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
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)).
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)).
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).
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 or Crawford. 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.
to the extent Defendants argue that a joint trial will
infringe their right to confrontation as it relates to the