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UNITED STATES v. EVANGELISTA

January 7, 1993

UNITED STATES OF AMERICA Plaintiff
v.
MARK EVANGELISTA, et al. Defendants



The opinion of the court was delivered by: JOSEPH E. IRENAS

AMENDED OPINION

 IRENAS, District Judge

 This matter comes before the court upon various pretrial motions of defendants Mark Evangelista, Martin Riccardi and Thomas Kozak. *fn1" Defendants have moved for suppression, severance, or further redaction of the government's proposed redacted version of a statement given to F.B.I. agents by defendant Kozak while in custody. Defendants have also requested early disclosure of all exculpatory material as defined in Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963) ("Brady material"); information relevant to credibility of the prosecution's witnesses within the scope of Giglio v. United States, 405 U.S. 150, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972) ("Giglio material"); impeachment material within the meaning of the Jencks Act, 18 U.S.C. § 3500 ("Jencks Act material"); material relating to prior crimes or other "bad acts" of defendants within the meaning of Fed. R. Evid. 404(b); a list of witnesses the prosecution intends to call at trial; and tape recordings of a consensually recorded conversation between defendant Evangelista and one David Pachucki. Trial of this matter is scheduled to commence on Monday, January 11, 1993.

 I. Background

 This case arises from the beating of Khausal Sharan on a sidewalk in Jersey City, New Jersey on September 24, 1987. On September 10, 1992 the defendants were indicted by a federal grand jury in connection with the beating. All three defendants are charged with aiding and abetting one another in the willful deprivation of Sharan's civil rights in violation of 18 U.S.C. § 245(b)(4)(A) and 42 U.S.C. § 3631(b)(1).

 The incident was initially investigated by the Jersey City Police Department and Hudson County Prosecutor's Office. No indictments resulted from that investigation. According to counsel at oral argument, the F.B.I. began its investigation in November, 1991.

 On September 11, 1992, while in the custody of the F.B.I., defendant Kozak gave an inculpatory statement which identified by name and actions the two codefendants. The government has proposed to redact this statement before offering it as evidence at the joint trial of all three defendants. Neutral pronouns would replace the names of the codefendants in a typed version of the originally handwritten confession.

 Whether the use of this statement would violate the Confrontation Clause *fn2" rights of defendants Riccardi and Evangelista or whether a redacted version is properly admissible under the Supreme Court's decisions in Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968), and Richardson v. Marsh, 481 U.S. 200, 95 L. Ed. 2d 176, 107 S. Ct. 1702 (1987) is the principal question for decision in these motions.

 II. The Bruton Issue

 A. Legal Background

 The central issue raised in Bruton was whether the conviction of a defendant at a joint trial should be set aside where the jury in determining his guilt or innocence had been instructed to disregard a codefendant's confession inculpating the defendant. Bruton, 391 U.S. at 123-24. Prior to Bruton the dominant view had been that juries are sufficiently capable of following limiting instructions that confessions in joint trials were not unconstitutional when accompanied by an appropriate instruction. See Delli Paoli v. United States, 352 U.S. 232, 239-42, 1 L. Ed. 2d 278, 77 S. Ct. 294 (1957).

 The basic premise of Delli Paoli was that it is "'reasonably possible for the jury to follow' sufficiently clear instructions to disregard the confessor's extrajudicial statement that his codefendant participated whith him in committing the crime." Bruton, 391 U.S. at 126 (quoting Delli Paoli, 352 U.S. at 239). The Bruton Court reversed Delli Paoli, holding that because there was "substantial risk, despite instructions to the contrary, that the jury looked to the incriminating extrajudicial statements in determining petitioner's guilt, admission of Evans' confession" violated petitioner's rights under the Sixth Amendment. Bruton, 391 U.S. at 126.

 The Supreme Court granted certiorari in Richardson v. Marsh, 481 U.S. 200, 95 L. Ed. 2d 176, 107 S. Ct. 1702 (1987) to resolve a conflict which had arisen among the circuits over whether a defendant's confession that was inculpatory as to a codefendant only when linked to other evidence in the trial implicated the codefendant's Sixth Amendment rights.

 The Sixth Circuit had held that when performing a Bruton analysis, to assess a confession's "inculpatory value" a court cannot examine just the confession on its face but must also examine all of the other evidence introduced at trial. Richardson, 481 U.S. at 206-07 (quoting Marsh v. Richardson, 781 F.2d at 1212 (6th Cir. 1986) (internal quotations omitted). Justice Scalia refers to this as the "evidentiary linkage" or "contextual implication" approach to the Bruton issue. Id. at 206.

 The Third Circuit, by contrast, had held that, "When a codefendant's extrajudicial statement does not directly implicate the defendant . . . the Bruton rule does not come into play." United States v. Belle, 593 F.2d 487, 493 (3d Cir. 1979). The court explained by way of example that courts have "consistently approved" the use of confessions at joint trials "where all references to the complaining defendant have been redacted, at least if the redacted versions do not explicitly suggest the participation of the complaining defendant." Id. Other pre-Richardson decisions in the Third Circuit also found no Bruton violation where a confession did not directly inculpate the other defendants. *fn3"

 In Richardson, Justice Scalia, writing for a 6 - 3 majority *fn4" held, "The Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence." Richardson, 481 U.S. at 211.

 Justice Scalia did not suggest that a redacted confession posed no risk that a jury would draw improper inferences, but rather suggested that the level of risk was constitutionally acceptable because "there does not exist the overwhelming probability" that a jury would be unable to properly heed a limiting instruction. Id.

 The Court also explained one practical distinction between "evidence requiring linkage" and "evidence incriminating on its face." If the Bruton rule were extended to encompass the "'contextual implication'" doctrine, redaction would not be practicable and it would not be possible for a trial judge to ...


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