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January 7, 1993

MARK EVANGELISTA, et al. Defendants

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


 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

 This motion raises an important question explicitly left open by the Supreme Court's decision in Richardson: whether the admission of a confession in which a codefendant's name has been replaced with a neutral symbol or pronoun violates that codefendant's rights under the Confrontation Clause and the rule established by the Court in Bruton. Richardson, 481 U.S. at 211 n.5. Since the Court's decision in Richardson, it appears that the Third Circuit Court of Appeals has not addressed this question.

 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.

  The significance of the Richardson Court's holding is that it squarely rejected the "evidentiary linkage" approach. As a result, only those confessions that are directly inculpatory (of codefendants) on their face raise Confrontation Clause concerns. The Court explained that confessions that may create inculpatory inferences only when considered together with other evidence are not so "powerfully incriminating" as to raise a Bruton question. Id. at 208-09. Furthermore the Court emphasized that Bruton had created only a "narrow exception" to the assumption in the law that jurors can and do generally follow instructions given to them. Id. at 208.

 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 predict the admissibility of a confession in advance of trial. Id., at 209.

 In Richardson the confession had been redacted to omit all references to respondent Clarissa Marsh. Apparently anticipating the issue now before us, the Court explicitly declined comment on whether a confession in which a codefendant's name was replaced with a neutral (non-identifying) pronoun would be permissible. "We express no opinion on the admissibility of a confession in which the defendant's name has been replaced with a symbol or neutral pronoun." Id. at 211 n.5.

 The distinction between a confession "incriminating on its face" and one that becomes incriminating "only when linked with evidence introduced later at trial," Id. at 208, as a basis for determining when a jury might, or might not, be able to heed a limiting instruction seems reasonable in the context of a redaction which eliminates all references to codefendants. However, as the reservation in Richardson suggests, the comfort level with this premise may be lower when the confession specifically identifies codefendants, even if only with the use of pronouns.

 As the moving parties argue in this case, common sense tells us that the risk of a juror drawing impermissible inferences against a codefendant is greater where the confession specifically refers to fellow perpetrators, even if unnamed, than where a confession is totally silent as to the presence or existence of other wrongdoers.

 Although the Third Circuit has not addressed this issue since Richardson, other Courts of Appeals have concluded that a plain reading of Richardson would permit the use at trial with limiting instructions of confessions redacted to include only neutral references to codefendants which are not facially incriminating.

 In United States v. Williams, 936 F.2d 698, 701 (2d Cir. 1991), the court held that an F.B.I. agent's testimony describing one defendant's confession did not violate the Bruton rights of his codefendant because the statement referred to the codefendant only with neutral references such as "this guy." Decisions in the Second Circuit have consistently held that confessions in which a codefendant's name is replaced with a neutral pronoun do not violate the Bruton rule "'where the statement standing alone does not otherwise connect codefendants to the crimes.'" Id., at 700. *fn5"

 The Williams court explained that the relevant analysis is whether the redacted confession isolated from other evidence incriminates one of the codefendants. If standing alone it does not incriminate a codefendant, then "it may be admitted with a proper limiting instruction even though other evidence in the case indicates that the neutral pronoun is in fact a reference to the defendant." Id., 936 F.2d at 701. More importantly, the court noted that, "This analysis is adopted directly from Richardson itself, and the principal extension of Richardson by our decisions is that they allow redacted confessions to refer to accomplices with neutral pronouns." Id. (emphasis added).

 Williams also concluded that the degree of potential prejudice to a codefendant when the confession is linked to other evidence is irrelevant: "The interlocking of the confessions thus all but insured that a jury could identify the person referred to in McKenzie's confession as Williams." Id. Thus, the Second Circuit has construed Richardson as holding that facially neutral confessions do not violate Bruton even where there is a high degree of certainty that, when the confession is linked to other evidence in the trial, the jury will tie the neutral pronoun to a particular codefendant. *fn6"

 At least one District Court in the Third circuit has also held that the admission of a confession with neutral references did not violate a codefendant's Bruton rights. In McCloskey v. Ryan, No. 90-1478, 1991 U.S. Dist. LEXIS 11952 (E.D.Pa. August 23, 1991), McCloskey filed a habeas petition alleging that the use of his codefendant's confession, which referred to McCloskey as the "other guy," violated his Bruton rights. The confession also made reference to "Cosmos" apartments where petitioner allegedly could be found. Petitioner's argument was that these two references implicated him directly enough to be in violation of Bruton. Id. at *19. The court disagreed because the confession was not facially incriminating, stating that "Richardson requires I reject his Bruton violation contention." Id., at *21.

 B. Application to Defendant Kozak's Confession

 1. Supression:

 In light of the cases described above, it is clear that Bruton provides no independent basis for suppressing Kozak's confession, and none of the defendants has seriously sought suppression for this reason. *fn7"

 2. Severance:

 Defendants bear a heavy burden when moving for severance under Fed. R. Crim. P. 14. United States v. Eisenberg, 773 F.Supp 662, 697 (D.N.J. 1991) (citing cases). Decisions on motions for severance are committed to the discretion of the trial court. See United States v. Di Pasquale, 740 F.2d 1282, 1293 (3d Cir. 1984). The central issue is whether a joint trial would "unfairly prejudice the jury against a particular defendant." Id. at 1294. In other words the question is "whether the jury could reasonably be expected to 'compartmentalize' the evidence against the various defendants and to 'consider it for its proper purposes.'" Id.

  In the context of Bruton questions, the Supreme Court has suggested that severance is not the best approach. Richardson, 481 U.S. at 209-10. The Court explained in some detail that joint trials often better serve both the interests of justice and the efficiency of the criminal justice system. Id. at 210.

 The events and parties involved in this matter are not so complex that the jury is likely to have any difficulty compartmentalizing its analysis of the evidence with respect to each of the three defendants. Defendants have asserted no source of prejudice whatsoever other than defendant Kozak's confession. Therefore, severance might have become appropriate only if the statement could not have been adequately redacted to avoid a Bruton violation.

 3. Redaction:

 The Supreme Court's decisions in both Bruton and Richardson assume implicitly that admission of a criminal defendant's confession at a joint trial will almost always pose some risk of prejudice to his codefendant(s). Moreover, as noted earlier, there is at least the possibility, if not the probability, that the degree of this risk is greater if the redacted confession uses pronouns to identify codefendants rather that elimiating, as in Richardson, all references to codefendants.

 However, a trial court will not always have the luxury of a simple choice between a confession with no references to codefendants or one which employs pronouns. Confessions raising Bruton questions will often contain so many references to the participation of others that it may be difficult to redact them to omit any reference to codefendants' existence and still have a coherent statement. As a practical matter, the choice will often be between a redacted confession with neutral references or no usable confession at all for joint trial.

 Kozak's confession is such a statement. *fn8" Kozak's narrative contains so many references to the acts and involvement of the other two participants that it could not be redacted to omit any reference to their existence and still be a coherent statement. *fn9"

  A trial court must also be circumspect in the process of redacting to insure that the statment which goes to the jury retains the sense, meaning and phrasing of the original. The weight a jury gives to an alleged confession may well depend on its form and wording, and the process of redaction should not create a potential for distorting the jury's ability to properly evaluate it.

 In light of the substantial authority cited above holding the use of neutral pronouns permissible, and especially in light of the analysis in United States v. Williams, 936 F.2d 698 (2d Cir. 1991), the court is persuaded that the use of neutral references in defendant Kozak's statement will not violate the Confrontation Clause rights of defendants Evangelista and Riccardi if admitted with a proper limiting instruction.

 However, defendants argue that if the statement is to be admitted, it should be further redacted. Because the statement clearly indicates that there were three participants and clearly distinguishes between the roles played in the assault by the driver and the other passenger, defendants assert that other evidence will make it obvious to the jury which of the acts in the confession are attributable to each of the other two defendants.

 The court is aware that the confession not only specifies the exact number of participants in the crime, but also distinguishes the specific acts of each of the three participants. This obviously creates a potential for prejudice if: 1) the defendants can be linked to specific details in the confession by other evidence, and 2) the jury does not follow the court's limiting instruction.

 A fair reading of Richardson is that the Supreme Court wanted to avoid analyzing the "contextual implication" of every confession, favoring instead a bright line rule permitting admissibility where the confession is facially non-incriminating to codefendants. However, Justice Scalia's reservation with respect to the use of pronouns to identify codefendants, suggests that once undertaking to redact a confession in this fashion, a court should, where possible, exercise its discretion not only to substitute pronouns or other neutral designations for actual names, but to make other minor changes which may reduce the risk of prejudice without doing violence to the statement.

 The court directs that the following changes be made in the redacted confession that will be allowed at trial:

 1. All references to the color and model of the automobile should be deleted;

 2. Changes should be made which are necessary to conceal the actual number of participants;

 3. In a few instances the government's version did more than substitute a neutral designation for a name, and actually made changes which distinguished the acts of the driver from those of the other passenger. In these instances the confession should be "un-redacted" to simply substitute a neutral designation for a name, which has the additional benefit of making the confession track the original more closely. *fn10"

  III. Early Production of Exculpatory, Impeachment and Other Evidentiary Material

 A. Brady Material

 On September 25, 1992 this court issued an order for discovery and inspection including a provision that the government "Permit defendant's attorney to inspect and copy or photograph any exculpatory material within the purview of Brady v. Maryland." United States v. Evangelista, et. al. Crim. No. 92-503 (D.N.J. September 25, 1992). The government states that, "It has complied with that order and fully intends to continue complying should exculpatory material come into its possession." Government's Brief, at 4. Because no assertion of non-compliance was brought to the court's attention at oral argument on December 11, 1992, this portion of defendants' motion has been rendered moot.

 B. Giglio Material

 There is no requirement that information in the government's possession that can be used to impeach or challenge the veracity of the government's witnesses be disclosed prior to "the day that the witness testifies." United States v. Higgs, 713 F.2d 39 (3d Cir. 1983), cert. denied, Kemp v. United States, 464 U.S. 1048 (1984). In Higgs the court also held it was an abuse of discretion for the trial court to have ordered production of Giglio material a week prior to trial. Id., at 45. The court recognized that such production is intended solely to enable defendants to adequately cross-examine the government's witnesses, not to assist them with a pre-trial investigation. Id. It should also be noted that any pretrial request for impeachment material poses at least potential questions of increasing pressure upon prospective witnesses. This court has denied similar requests in the past. U.S. v. Eisenberg, 773 F.Supp 662, 684-85 (D.N.J. 1991) (denied advance disclosure of Giglio material where government agreed to provide it the day before the witness testifies).

 In this case, the government has offered to voluntarily disclose all Giglio material on the eve of trial, which will be Friday, January 8, 1993. It was explained at oral argument that defendants anticipate some of this material may require examining other documents of public record. Although this pretrial production is clearly not required, in an effort to balance the legitimate interests of all parties and in an effort to avoid interruptions during trial, the Court will order the government to produce all Giglio material three business days prior to trial, which will be Wednesday, January 6, 1993.

 C. Jencks Act Material

 In United States v. Murphy, 569 F.2d 771, 773 (3d Cir. 1978), the court stated, "The Jencks Act flatly states that disclosure of prior statements by government witnesses may not be compelled 'until said witness has testified on direct examination in the trial of the case.'"11 Outside this circuit, other courts have held that pretrial discovery motions for Jencks Act material are entirely inappropriate. See United States v. White, 750 F.2d 726, 729 (8th Cir. 1984) (government cannot be compelled to disclose Jencks Act material prior to trial); United States v. Peterson, 524 F.2d 167, 175 (4th Cir. 1975); U.S. v. Aguirre-Parra, 763 F.Supp 1208 (S.D.N.Y. 1991) (same).

 At oral argument, the government offered to provide defendants with all Jencks Act material on the eve of trial. While the government was clearly under no legal obligation to do so, the court is persuaded that this offer strikes an appropriate balance and will order production of Jencks Act material on Friday, January 8, 1992.

 D. Federal Rule of Evidence 404(b) Material

 Federal Rule of Evidence 404(b) was amended effective December 1, 1991 to require the prosecution in a criminal case to "provide reasonable notice in advance of trial" of any such evidence it intends to introduce at trial. Cases interpreting the phrase "reasonable notice" are few in number so far.

 In U.S. v. Williams, 792 F.Supp 1120, 1133 (S.D.Ind. 1992), the court held that ten days prior to trial would be the reasonable period for advance notice required under the amendment. In U.S. v. Alex, 791 F.Supp 723, 729 (N.D.Ill. 1992), the court held seven days would be reasonable advance notice.

 At oral argument the government offered to provide this information to defendants 7 or 10 days in advance of trial. Because the alleged incidents occurred more than five years ago, defendants' preparation to respond to the government's Rule 404(b) material may require more effort than if the incidents had occurred more recently. The court will order the government to provide this information to defendants and the court on Monday, December 28, 1992 (10 business days prior to trial, excluding weekends but not excluding New Year's Day).

 E. Witness List and Tape Recording

 It is well established that criminal defendants have no right in advance of trial to see a list of witnesses the prosecution will or may call. Government of the Virgin Islands v. Martinez, 847 F.2d 125, 128 (3d Cir. 1988) (government is not required to disclose names of witnesses in non-capital cases, but trial court in its discretion may order such discovery); United States v. White, 750 F.2d 726, 728 (8th Cir. 1984) (defendants have no right to such pretrial discovery, but in its discretion district court may order it); U.S. v. Zolp, 659 F.Supp 692 (D.N.J. 1987); U.S. v. Vastola, 670 F.Supp 1244, 1268 (D.N.J. 1987) (witness lists and statements of non-testifying witnesses not required to be disclosed as Brady material). The court will not order the government to disclose its list of prospective witnesses.

 The court need not rule on defendant's request for a copy of the tape recording of a consensually recorded conversation between defendant, Mark Evangelista, and one David Pachucki because the government has provided defendants with a copy which defense counsel stated was audible. *fn12"

 The court will enter an appropriate order in conformance with this opinion.



 DATED: January 7, 1993

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