The opinion of the court was delivered by: Reggie B. Walton United States District Judge
This matter came before the Court on the defendants' motions for severance based upon the government's notices of intent to introduce several statements at trial of the defendants that reference their co-defendants. While the Court made numerous oral rulings at the conclusion of the hearings on the motions, it reserved issuing a ruling as to one of these statements. A brief recitation of the alleged circumstances regarding that statement is a necessary predicate to addressing whether this statement is admissible at a joint trial of the defendants pursuant to Bruton v. United States, 391 U.S. 123 (1968), and its progeny.
The defendants in the above-captioned case have been charged with several criminal offenses arising from an alleged scheme that resulted in approximately one million dollars of United States Department of Education ("DOE") funds being diverted from the source for which the funds had been appropriated to a business bank account of one of the defendants. The government has proffered that it will be able to introduce bank records demonstrating that on December 20, 1999, defendant Daniel Dorcely opened a business economy checking account in the name of Dany Enterprises at a branch office of the Bank of America (formerly NationsBank) located in Adelphi, Maryland. See Government's Exhibit List, Government's Exhibit ("Gov't Ex.") 12-18; August 21, 2003 Superseding Indictment, Count I ¶ 5. On March 15, 2000, defendant Dorcely is alleged to have added a second individual to the account who was identified as"Tyrone Wallace," see Gov't Ex. 21-24; August 21, 2003 Superseding Indictment, Count I ¶ 19 (Overt Acts ¶¶ 4-6), which the government asserts is actually an alias used by defendant Stateson Francois. See August 21, 2003 Superseding Indictment, Count I ¶ 2. According to the government, between March 27, 2000 and March 31, 2000, an unknown coconspirator employed by the DOE arranged to have over $925,000 from the Department's Impact Aid Program ("Impact Aid") wired to the Dany Enterprises account, instead of to the Bennett County School District's bank account in South Dakota, which had actually been awarded a grant for the funds by the DOE.*fn1 See August 21, 2003 Superseding Indictment, Count I ¶¶ 18(c)-(d), 19 (Overt Acts ¶¶ 7-8). On March 31, 2000, defendant Francois is alleged to have requested a withdrawal of funds from the Dany Enterprises account, through the use of a Bank of America cashier's check in the amount of $46,900. Id. ¶ 19 (Overt Act ¶ 10). On that same day, defendants Francois and Holmes are accused of going to the Capitol Cadillac automobile dealership in Maryland, whereupon defendant Holmes used the $46,900 cashier's check to purchase a 2000 Cadillac Escalade. Id. ¶ 19 (Overt Acts ¶¶ 11-18). Over the next several days, defendant Francois and unknown co-conspirators are accused of withdrawing additional funds from the Dany Enterprises account and, in some instances, making purchases with those funds. Id. ¶ 19 (Overt Acts ¶¶ 19-25, 29). On April 4, 2000, defendant Francois is alleged to have returned to a branch office of Bank of America and requested and received two more cashier's checks in the amount of $50,000 payable to"Wilson Powell Lincoln Mercury," and in the amount of $48,000 payable to"Lustiene Chevrolet." Id. ¶ 19 (Overt Acts ¶¶ 32-33). On the same day of these withdrawals, defendants Francois and Holmes are accused of going to the Wilson Powell Lincoln Mercury automobile dealership in Maryland, where defendant Francois presented the $50,000 cashier's check for the purchase of a 2000 Lincoln Navigator. Id. ¶ 19 (Overt Acts ¶¶ 39-45). And, later that same day, defendants Francois and Holmes are alleged to have gone to the Lustine Chevrolet automobile dealership in Maryland and presented the $48,000 cashier's check in the name of"Lustiene Chevrolet" for the purchase of a Chevrolet Corvette. Id. ¶ 19 (Overt Acts ¶¶ 46-49). However, because the name of the dealership had been misspelled ("Lustiene" instead of"Lustine"), the defendants were purportedly unable to purchase the vehicle.*fn2
During the course of the investigation by the Federal Bureau of Investigation ("FBI") into the diversion of the DOE funds, which lasted approximately two years, law enforcement officers spoke to the defendants on numerous occasions. These interviews serve as the basis for many of the statements that the government has sought to introduce at the joint trial of the defendants,*fn3 including an April 18, 2000 statement, which is the subject of this Opinion. Specifically, on April 18, 2000, defendant Dorcely was interviewed by federal law enforcement agents, one from the FBI and one from the DOE's Office of Inspector General ("OIG"), while he was attending basic military training at Fort Benning, Georgia. This interview was conducted over the telephone at the Army's Criminal Investigative Division's ("CID") offices. Defendant Dorcely is alleged to have told FBI Special Agent Chadwick that he added Tyrone Wallace to the Dany Enterprises account, that he met Wallace about seven or eight months before the interview while selling cellular telephones, and that Wallace was a friend and not a relative.*fn4 See Government's Second Supplemental Response to Defendants' Motion for Severance under Bruton ("Gov't 2nd Supp.") at 1 (citing Attachment A (FBI Form 302 for an investigation conducted on April 18, 2000)).
The defendants have been charged with several criminal offenses, including conspiracy, a violation of 18 U.S.C. § 371, and conspiracy to commit money laundering, a violation of 18 U.S.C. § 1956(h). Of particular significance to the issue now before the Court is the allegation in the indictment that"[o]n or about March 15, 2000, defendant DANIEL DORCELY falsely stated to a Bank of America employee that defendant STATESON CLARENCE FRANCOIS was named'Tyrone Wallace' and requested that he be added to the Dany Enterprise account under that name[,]" which has been identified as an overt act of both conspiracy counts charged in the indictment. See August 21, 2003 Superseding Indictment, Count I ¶ 19 (Overt Act ¶ 5), Count II ¶ 6 (incorporating overt acts one through fifty-four of Count I). And, of equal significance is the fact that defendant Dorcely is also charged with making a false statement, a violation of 18 U.S.C. § 1001, for
knowingly and willfully ma[king] a false, fictitious, and fraudulent material statement and representation concerning the identity of the person defendant DORCELY had added to the Dany Enterprises' account at Bank of America, in that defendant DORCELY stated that the person was not a relative, but a friend or buddy named Tyrone Wallace whom defendant DORCELY had met seven or eight months prior, when in truth, the person defendant DORCELY had added to the account was his cousin, Stateson Clarence Francois, a relative that defendant DORCELY had known for many years.
Id., Count V. Thus, it is apparent that the same act – defendant Dorcely placing an individual by the name of "Tyrone Wallace" on the Dany Enterprises account – is predicate conduct for all three criminal offenses.
The government seeks to introduce defendant Dorcely's April 18, 2000 statement"for a non-hearsay purpose - to prove that the statement itself was made[,]... [as] Dorcely's description of Tyrone Wallace is a'verbal act' which constitutes an element of the offense charged in Count V." Gov't 2nd Supp. at 2. Furthermore, the government asserts that defendant Francois' claim that the admission of this evidence would violate his constitutional rights under the Sixth Amendment's Confrontation Clause is without merit because the'admission of non-hearsay raises no Confrontation Clause concerns.' Where
an out of court statement is admitted for a non-hearsay purpose, the Confrontation Clause's protection for the right of cross-examination is satisfied by the presence on the stand of the witness who took the declarant's out of court statement.
Id. (quoting United States v. Inadi, 475 U.S. 387, 398 n.11 (1986) (citing Tennessee v. Street, 471 U.S. 409 (1985)). The Court rejects the government's argument, as the case authority cited to by the government is clearly distinguishable from the instant case and therefore does not provide support for its position.
In Tennessee v. Street, the defendant was convicted of murder, in part, based upon the
State's use of a confession that he had made to a Tennessee Sheriff. 471 U.S. at 409. Street
testified at his trial that his confession was coerced by the Sheriff, the substance of the confession
having been derived from an accomplice's written confession after the Sheriff read the
accomplice's written confession to Street and "directed [Street] to say the same thing." Id. at
411. During the government's rebuttal, the trial court permitted the prosecutor to call the Sheriff
as a witness and he denied that Street was read the accomplice's confession or coerced into
repeating it. Id. As corroboration of the Sheriff's testimony concerning Street's confession, the
trial court permitted the Sheriff to read the accomplice's confession to the jury, which was
followed by two cautionary instructions to the jury from the court that the accomplice's
confession was admitted "not for the purpose of proving the truthfulness of his statement, but for
the purpose of rebuttal only." Id. at 411-12. The prosecutor then elicited from the Sheriff
testimony emphasizing the differences between respondent's confession and the accomplice's
confession to demonstrate that the respondent's confession was not the product of the confession
of the accomplice. Id. at 412. In concluding that the accomplice's confession was properly
admitted at Street's trial, the Supreme Court began its analysis by noting that the "non-hearsay
aspect" of the accomplice's confession did not raise a Confrontation Clause concern because
"[t]he Clause's fundamental role in protecting the right of cross-examination was satisfied by
[the] Sheriff['s]... presence on the stand. If respondent's counsel doubted that [the
accomplice's] confession was accurately recounted, he was free to cross-examine the Sheriff."
Id. at 414 (internal citation omitted). As the Court noted,"the State's rebuttal witness against
[Street] was not [the accomplice], but [the] Sheriff...." Id. Accordingly, there was no
Confrontation Clause concern because the accomplice's statement was not introduced"to prove
what happened at the murder scene but to prove what happened when [Street] confessed...."
Id. However, the Court was careful to point out the differences between what occurred in Street
and in Bruton. Id. The Street Court noted that the trial court had instructed the jury twice not to
consider the accomplice's confession for its truth and emphasized that
[h]ad the prosecutor been denied the opportunity to present [the accomplice's] confession in rebuttal so as to enable the jury to make the relevant comparison, the jury would have been impeded in its task of evaluating the truth of [Street's] testimony and handicapped in weighing the reliability of his confession. Such a result would have been at odds with the Confrontation Clause's very mission--to advance the accuracy of the truth-determining process in criminal trials.
Id. at 415 (internal quotation marks and citation omitted). The Court also stated that Street's confession was the "most important piece of substantive evidence" and that unlike Bruton, "there were no alternatives that would have both assured the integrity of the trial's truth-seeking function and eliminated the risk of the jury's improper use of evidence[,]" id., observing in a footnote that "[s]everance obviously was not an available alternative... [as] respondent's trial had been severed from those of his co-defendants[,]" id. at n.7.
Justice Brennan's concurrence in Street, with whom Justice Marshall joined, is also instructive. Justice Brennan noted that he concurred with the majority opinion "on the understanding that the trial court's limiting instruction is not itself sufficient to justify admission of the confession." Id. at 417 (Brennan, J., concurring) (citing Bruton, 391 U.S. 123). He went on to state that
[t]he out-of-court confession is admissible for non-hearsay purposes in this case only because that confession was essential to the State's rebuttal of... Street's defense and because no alternative short of admitting the statement would have adequately served the State's interest. With respect to the State's need to admit the confession for rebuttal purposes, it is important to note that [Street] created the need to admit the statement by ...