United States District Court for the District of Columbia
July 19, 2004.
UNITED STATES OF AMERICA,
WILBERT S. BRODIE, et al., Defendants.
The opinion of the court was delivered by: ELLEN S. HUVELLE, District Judge
Defendants face criminal charges arising from their alleged
participation in schemes to defraud various financial
institutions by submitting fraudulent documents in order to
receive inflated mortgage proceeds. According to the indictment,
while there are differences between the two conspiracies charged,
the basic modus operandi is the same. In the case of all
properties, the property was flipped, i.e., purchased and
resold on the same day. In particular, a dilapidated property was
initially bought by a buyer who did no repairs to the property,
but then resold it at an inflated price. The buyer financed the
purchase with a mortgage loan that was obtained with false
documentation regarding the value of the property. The defendants
and their co-conspirators generated profits for themselves based
on the substantial differential between the purchase price and
the inflated sale price.
As a result of these alleged activities, all defendants have
been charged in a multi-count indictment that was returned on
November 13, 2003.*fn1 That indictment charges that all defendants conspired to make false statements to financial
institutions by submitting fraudulent documentation in order to
obtain bogus mortgage loans in violation of 18 U.S.C. § 371
(Count 1). With respect to this alleged scheme, defendant Brodie
also faces three counts of wire fraud in violation of
18 U.S.C. § 1343 (Counts II-IV). Finally, defendants Padonu and Kareem have
been charged in a second § 371 conspiracy, also involving the
submission of false statements to financial institutions
regarding mortgage loans (Count V). Trial is currently set for
September 10, 2004.
Presently before the Court are a variety of motions filed on
behalf of each of the defendants.*fn2 An evidentiary hearing
is set for August 19 relating to the motions to suppress physical
evidence and statements. The Court, however, will now address the
remaining nonevidentiary motions.*fn3 These include motions
to sever based on misjoinder, Fed.R.Crim.P. 14 and Bruton v.
United States, 391 U.S. 123 (1968);*fn4 to dismiss Count I
and to dismiss the indictment based on speedy trial and
multiplicity arguments. Defendants also request a bill of
particulars and a pretrial hearing to determine the admissibility
of co-conspirator statements and move to strike aliases and to
suppress statements obtained in violation of the Vienna
Convention on Consular Relations. For the reasons given below,
the Court denies these motions in part and grants them in part. I. Speedy Trial
All defendants seek dismissal of the indictment for violation
of their right to a speedy trial. Defendants invoke the Fifth and
Sixth Amendments to argue that the preindictment delay in
returning an indictment against them violated their rights to a
speedy trial. Defendant Brodie also argues that his speedy trial
rights under the Sixth Amendment have been violated due to the
delay in bringing him to trial.*fn5 These arguments will be
A. Preindictment Delay
Any argument regarding preindictment delay must be based on the
due process clause, and to establish such a due process
violation, a defendant must establish that the delay resulted in
"actual prejudice to the conduct of the defense" and that the
government "intentionally delayed to gain some tactical
advantage" over the defendant. United States v. Marion,
404 U.S. 307, 325 (1971).*fn6 See also United States v.
Foxman, 87 F.3d 1220, 1224 (11th Cir. 1996) (ten-year delay did
not violate defendant's due process rights in absence of showing
of intentional action to gain tactical advantage).
Defendants cannot satisfy their burden under this standard.
While it is true that the relevant events occurred in 1995
through July 1997, and the first indictment against defendant Brodie was unsealed on April 8, 2003,*fn7 and the
superseding indictment against all three defendants was returned
on November 13, 2003, defendants have offered nothing to support
a claim that the government intentionally delayed in order to
gain a tactical advantage or to harass. Nor does any defendant
make a claim of actual prejudice. Rather, there is an unspecified
reference to failing memories, but the law is clear that bare
allegations that delay has dimmed the memories of witnesses and
defendants does not constitute actual prejudice. See, e.g., Saiz
v. Eyman, 446 F.2d 884, 885 (9th Cir. 1971) (per curiam);
United States v. Marler, 756 F.2d 206, 214 (1st Cir. 1985).
Defendants have therefore failed to show that their due process
rights were violated by any preindictment delay.
B. Post-Indictment Delay.
Defendant Brodie also argues that his Sixth Amendment rights to
a speedy trial have been violated due to the delay since the
filing of the first indictment against him on April 23, 2002.
While no definitive time period has been set for compliance with
the constitutional stricture on trial delays, the Supreme Court
established a four-factor test in Barker v. Wingo, 407 U.S. 514
(1972), to determine whether a defendant's constitutional right
to a speedy trial is violated. The factors are: (1) the length of
the delay; (2) the reasons for the delay; (3) the defendant's
assertion of the right; and (4) the prejudice to the defendant.
Id. at 530-32. With respect to the length of the delay, whether one uses the
date of the first indictment (April 23, 2002) or the date of its
unsealing (April 8, 2003) (see note 7, supra), the Court
finds that the length of delay is sufficiently long to raise the
presumption of prejudice, and therefore, to trigger consideration
of the remaining factors.*fn8 Despite this passage of time,
an examination of the Barker factors demonstrates that this
delay did not violate defendant's constitutional rights.
Importantly, the delay here cannot be attributed to any fault
or misconduct by the government. Since the unsealing of the first
indictment, Mr. Brodie has twice requested a change in counsel
and has thus had three different lawyers; the government returned
a superseding indictment on November 13, 2003, that increased the
number of counts and defendants; extensive document discovery has
been produced to the defendants; and numerous motions have been
filed by all parties. As is obvious, this case is not
straightforward, but involves "a serious, complex conspiracy
charge" involving multiple players and numerous properties that
span several years. Barker, 407 U.S. at 531. See also United
States v. Register, 182 F.3d 820, 827 (11th Cir. 1999); United
States v. Dreitzler, 577 F.2d 539, 549-50 (9th Cir. 1978).
Moreover, even if the period when the indictment was sealed were
to be considered, there is no suggestion that the government
acted with bad faith or had a dilatory motive, and the record
does not reveal any "official negligence" by the government.
Doggett v. United States, 505 U.S. 647, 656-57 (1992).
Nor do the third and fourth factors support a ruling in
defendant's favor. Other than filing a speedy trial motion with
respect to the original indictment, defendant Brodie has done
nothing to enforce his right to a speedy trial. Defendant has
also failed to put forth any basis to support an argument that the delay in his trial has caused any actual
prejudice. As previously noted, defendant's speculative claim
regarding dimming memories is insufficient. See United States v.
Tannehill, 49 F.3d 1049, 1054 (5th Cir. 1995); United States v.
Maling, 737 F. Supp. 684, 699-700 (D. Mass. 1990). Second,
during the one-year period that the indictment was sealed,
defendant Brodie suffered "neither pretrial detention, nor
personal anxiety and public obloquy, often the most obnoxious
concomitants of an indictment," United States v. Alo,
439 F.2d 751, 755 (2d Cir. 1971), and since defendant's arrest on April
23, 2003, he has remained at liberty throughout these
proceedings. See Barker, 407 U.S. at 532 (Sixth Amendment's
speedy trial provision is intended, in part, to prevent undue
"oppressive pretrial incarceration").
Because the Barker factors weigh against defendant's claim,
this Court concludes that defendant's Sixth Amendment speedy
trial rights have not been violated.
Defendants move either to dismiss the indictment or to require
the government to elect whether it will proceed with the Count I
or the Count V conspiracy. To support this request for relief,
defendants claim that the indictment is multiplicitous. An
indictment is multiplicitous, and thereby defective, "if a single
offense is alleged in a number of counts, unfairly increasing a
defendant's exposure to criminal sanctions." United States v.
Harris, 959 F.2d 246, 250 (D.C. Cir. 1992). That is not the case
here. Counts I and V charge two different conspiracies involving
different properties. As discussed more fully herein (see
Section VIII, infra), proof of each conspiracy is
distinguishable and independent and there is no prohibition
against charging two logically connected conspiracies in one
indictment. It is therefore clear that it is not multiplicitous to charge two § 371 conspiracies in one
indictment. See, e.g., United States v. Pallais, 921 F.2d 684,
687 (7th Cir. 1990) (marijuana and cocaine conspiracies were not
multiplicitous because some defendants were involved with one
conspiracy but not the other, and the conspiracies involved
different "sources, channels of distribution, methods of shipment
and processing, and customers").
III. Pretrial Determination of Admissibility of Co-Conspirator
Defendants have moved for a pretrial hearing on the
admissibility of co-conspirator statements. The admission of
co-conspirator statements is governed by Fed.R.Evid.
801(d)(2)(E), which requires proof of the following: (1) a
conspiracy, (2) between the declarant and the co-defendant, and
(3) statements made in furtherance of the conspiracy. Here, the
government persuasively argues that no pretrial hearing is
necessary, but instead that the Court should admit the statements
during trial subject to the contingent relevant rule of
It is accepted in this jurisdiction that district courts have
discretion to admit co-conspirator statements conditionally
"subject to connection," at the close of the government's case,
to the three requirements of 801(d)(2)(E) (co-conspirators making
statements in furtherance of the conspiracy). See United States
v. Jackson, 627 F.2d 1198, 1218-19 (D.C. Cir. 1980) (holding
that a district court has "no obligation" to conduct a
"mini-trial" before trial to determine the existence of the
conspiracy and noting that a district court is "vested with
considerable discretion to admit particular items of evidence
`subject to connection'"); United States v. Gantt,
617 F.2d 831, 845 (D.C. Cir. 1980) ("As a practical matter, to avoid what otherwise would become a separate trial on the issue of
admissibility, the court may admit declarations of
co-conspirators `subject to connection'").*fn9
Here, given that the indictment includes two conspiracies,
alleging over 150 overt acts in furtherance of the conspiracies,
and involving a large number of witnesses, the Court finds that
such a preliminary hearing would be immensely time-consuming and
would unnecessarily delay the trial. Therefore, in accordance
with the governing practice in this jurisdiction, the Court
denies defendants' motion and will allow the admission of
co-conspirator statements at trial subject to proof of
connection. Of course, if the requisite connection is not
demonstrated at trial, the Court will strike the testimony and
provide a cautionary instruction to the jury.
Defendant Kareem moves to strike all aliases from the
indictment, arguing that these references are prejudicial. The
government responds that defendant's aliases will be used to
identify him at trial. The general rule regarding the use of
aliases is that "[i]f the government intends to introduce
evidence of an alias and the use of that alias is necessary to
identify the defendant in connection with the acts charged in the
indictment, the inclusion of the alias in the indictment is both
relevant and permissible, and a pretrial motion to strike should
not be granted." United States v. Clark, 541 F.2d 1016, 1018
(4th Cir. 1976); see also United States v. Palmer, No. 89cr0036, 1989 U.S. Dist. Lexis 6498, *33-34
(D.D.C. June 8, 1989). Because the government credibly asserts
that these aliases are necessary to identify defendant at trial,
this motion must be denied.*fn10 If, however, the government
fails to offer proof at trial that the aliases listed in the
indictment tend to identify defendant and connect him with the
acts he is charged with, defendant may renew this motion at that
time. See Clark, 541 F.2d at 1018. Moreover, based on the
representations of the government regarding its intended use of
aliases at trial, there is no basis for rejecting this evidence
under Fed.R.Evid. 403, since there is no possibility of
confusion or unfair prejudice.
V. Vienna Convention on Consular Relations
Defendant Kareem, relying on United States v.
Lombera-Camorlinga, 170 F.3d 1241 (9th Cir. 1999), argues that
his statements should be suppressed because he was not informed
of his right to notification of his consulate pursuant to Art. 36
of the Vienna Convention on Consular Relations, April 24, 1963,
21 U.S.T. 77.*fn11 This reliance is misplaced since that
case was reversed, and in an en banc opinion, the Ninth Circuit
ruled that a violation of the Vienna Convention's requirement
does not require suppression. United States v.
Lombera-Camorlinga, 206 F.3d 882, 885-86 (9th Cir. 2000). That
holding is also consistent with every other opinion that has
addressed the issue. United States v. Ortiz, 315 F.3d 873, 886
(8th Cir. 2002) (holding that statements should not be "excluded
merely because the Convention has been violated," but that there must be a "causal connection between the violation and
[their giving of] their statements"); United States v. Lawal,
231 F.3d 1045, 1048 (7th Cir. 2000) (holding that the
exclusionary rule is not the proper remedy for a violation of a
detainee's rights under the Convention); United States v.
Chanthadara, 230 F.3d 1237, 1255 (10th Cir. 2000) (holding that
suppression is not an appropriate remedy for a violation of the
Convention); United States v. Cordoba-Mosquera, 212 F.3d 1194,
1195-96 (11th Cir. 2000) (same); United States v. Li,
206 F.3d 56, 60, 62 (1st Cir. 2000) (same). Therefore, defendant's motion
to suppress statements on the grounds that his rights under Art.
36 were violated is denied.
VI. Dismissal of Count I
Defendant Brodie moves to dismiss Count I on the grounds that
the mortgage accounts are not insured by the Federal Deposit
Insurance Corporation ("FDIC"), and therefore, they may not be
used to support an indictment based on alleged violations of
18 U.S.C. § 1014. The Court is not in a position to address this
motion at this time since the government has yet to present its
evidence. The motion will therefore be denied without prejudice
to being renewed in the event that the government fails to adduce
sufficient evidence to prove that deposits at the financial
institutions at issue were in fact insured by the FDIC.
VII. Bill of Particulars
Defendant Padonu has filed a Motion for a Bill of Particulars
requesting exactly the same information that defendant Brodie
previously requested prior to the return of the superseding
indictment. The Court ruled on that motion from the bench on
August 14, 2003, and it incorporates by reference its ruling therein. In particular, the
Court orders the government to disclose the names of the other
alleged co-conspirators referred to in Counts I and V. See
United States v. Ramirez, 54 F. Supp.2d 25, 30 (D.D.C. 1999);
United States v. Trie, 21 F. Supp.2d 7, 22 (D.D.C. 1998);
United States v. Hsia, 24 F. Supp.2d 14, 30-31 (D.D.C. 1998).
With respect to defendant's additional requests, the Court will
deny these requests on the grounds that a bill of particulars is
not a discovery tool or a device for allowing the defense to
preview the government's evidence. See Ramirez, 54 F. Supp.2d
at 29; United States v. Torres, 901 F.2d 205, 234 (2d Cir.
1990). Nor is the government required to prove how or when the
conspiracy was formed, the details of any meeting or when the
defendant joined the conspiracy. See, e.g., United States v.
Long, 449 F.2d 288, 294 (8th Cir. 1971); United States v.
Hubbard, 474 F. Supp. 64, 80-81 (D.D.C. 1979); United States v.
Pacheco, 902 F. Supp. 469, 474 (S.D.N.Y. 1995).
Further, it bears noting that "[i]t is not the function of a
bill of particulars to provide detailed disclosure of the
government's evidence in advance of trial." Overton v. United
States, 403 F.2d 444, 446 (5th Cir. 1968). Nor is the purpose of
a bill of particulars to provide for "whole sale discovery of the
Government's evidence." Edelin, 128 F. Supp. at 36 (internal
citation and quotation marks omitted). When the indictment is
sufficiently detailed, or the requested information is available
in some other form, a bill of particulars is not required. See
United States v. Butler, 822 F.2d 1191, 1193 (D.C. Cir. 1987).
As is clear from a review of the indictment, the charges
against the defendants are detailed and alleged with
particularity. Further, the discovery provided by the government
has been voluminous, including file cabinets of loan files, IRS
documents, bank records, etc. There is thus no reason for any further particularization of the overt acts,
the circumstances surrounding the alleged acts or any other
All defendants have filed motions seeking severance. Defendant
Kareem argues in his motion and supplemental motion that the
conspiracy charged in Count I has been improperly joined with the
conspiracy charged in Count V. All defendants move for severance
based on Fed.R.Crim.P. 14, arguing for severance of counts
and/or defendants. And finally, defendants Brodie and Padonu move
for severance from defendant Kareem's trial, and defendant Kareem
moves for severance from defendant Brodie's trial,*fn12
because the introduction of pre-trial statements made by Brodie
and Kareem would violate their Confrontation Clause rights under
Bruton. These three grounds for severance are addressed
In a case involving co-defendants, Fed.R.Crim.P. 8(b)
controls joinder of both offenses and defendants. United States
v. Perry, 731 F.2d 985, 989 (D.C. Cir. 1984); United States v.
Jackson, 562 F.2d 789, 793 (D.C. Cir. 1977). Rule 8(b) states
that "[t]wo or more defendants may be charged in the same
indictment or information if they are alleged to have
participated in the same act or transaction or in the same series
of acts or transactions constituting an offense or offenses."
Fed.R.Crim.P. 8(b); see also United States v. Manner,
887 F.2d 317, 324 (D.C. Cir. 1989); United States v. Brooks,
567 F.2d 134, 138 (D.C. Cir. 1977). As explained by the Court in United States v. Brown, 823 F.2d 591 (D.C. Cir. 1987), in
addressing a Rule 8(b) issue, a court must determine if there is
a "logical relationship between the alleged same `acts or
transaction.'" Id. at 598 (finding that a "logical
relationship" existed between the RICO predicate acts and those
not charged as predicate acts since they were committed at the
same times, by the same persons, and in accordance with the same
general methods). See also United States v. Nicely,
922 F.2d 850, 853 (D.C. Cir. 1991) (holding that the "logical
relationship" test was not satisfied where conspiracy by
defendants to induce computer seller to pay money to obtain
subcontract to provide computers was combined with a conspiracy
by defendants to violate federal currency reporting laws in
connection with a money laundering scheme).
Contrary to defendant's argument, the two conspiracy counts are
properly joined, for there is a "logical relationship" between
them. The two conspiracies arise out of the same course of
conduct the flipping of properties, through the use of false
documentation regarding the property's value, to defraud
financial institutions. Moreover, defendant's citation to
Nicely is inapposite. There, the two conspiracies were found to
have nothing in common beyond a similarity in membership, for, as
recognized by the Court, the use of falsehoods to obtain money is
"patently insufficient grounds for joinder." 922 F.2d at 855. But
here, the conspiracies are not comparable to those in Nicely.
They have been properly joined in a single indictment, and
defendant's misjoinder argument must be rejected.
Although Rule 8 joinder is appropriate in this case, defendants
move, pursuant to Fed.R.Crim.P. 14, to sever their trials with
respect to offenses and their co-defendants on the grounds that
the potential prejudice from a joint trial is too great.
Specifically, defendant Brodie moves to sever Counts I through IV from Count V, which charges Kareem and
Padonu but not Brodie with a second conspiracy. Defendants Kareem
and Brodie also move to sever the two conspiracy counts, arguing
that it would be impossible to separate the evidence of the two
counts.*fn13 Additionally, defendants Kareem and Padonu move
to sever their trials from those of their co-defendants.
Fed.R.Crim.P. 14(a) permits the trial court to grant a
severance of properly joined defendants or offenses if joinder
"appears to prejudice a defendant or the government." The Supreme
Court has defined prejudice in this context to be 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 (1993). "Severance is not warranted in every
case where there is some risk of prejudice." United States v.
Edelin, 118 F. Supp.2d 36, 42 (D.D.C. 2000). The key to
determining whether severance is appropriate is whether the "jury
would be able to compartmentalize the evidence as it applies to
different defendants and offenses." Id. at 44. The decision to
sever falls within the discretion of the trial court, but
generally the balance is to be struck in favor of a joint trial.
United States v. Bruner, 657 F.2d 1278, 1289-90 (D.C. Cir.
Severance of counts is not warranted here. Defendant Brodie
argues that he would suffer in a joint trial from an unfair
transference of guilt or a spillover effect from the second
conspiracy, with which he was not charged. Additionally, all
three defendants argue that the evidence in the two conspiracy
counts is extremely similar and it would be impossible for the
government to keep the evidence of the two counts separate. However, even though the
timing of the two conspiracies overlaps, the two conspiracies
involve entirely different properties. There is simply no
indication that the evidence as to the transactions underlying
the Padonu-Kareem conspiracy implicates in any way Brodie, and
thus, the jury would have no basis for associating Brodie with
the second conspiracy.*fn14 See United States v. Lewis,
626 F.2d 940, 945 (D.C. Cir. 1980) (severability was not required
where evidence tending to prove each count was "separable and
distinct"). Moreover, based on the government's representation
that it will present the evidence of each transaction "consisting
largely of mortgage loan documents, separately and in
chronological order for each conspiracy," and that the vast
majority of witnesses relate to one conspiracy or the other but
not both (Gov't Mot. at 51-52), there is little chance that the
jury will confuse the evidence as to the two
conspiracies.*fn15 See Drew v. United States, 331 F.2d 85,
92 (D.C. Cir. 1964) (if it appears that the prosecutor "might be
able to present the evidence in such a manner that the accused is
not confounded in his defense and the jury will be able to treat
the evidence relevant to each charge separately and distinctly," severance is not
necessary). Furthermore, the use of a limiting jury instruction
will alleviate any risk of prejudice from a joint trial.
Richardson v. Marsh, 481 U.S. 200, 211 (1987); Manner, 887
F.2d at 325-26; Drew, 331 F.2d at 91 ("with a proper charge,
the jury can easily keep such evidence separate in their
deliberations and, therefore, the danger of the jury's cumulating
the evidence" with respect to two counts "is substantially
Nor is severance of defendants warranted. Defendants Kareem and
Padonu contend that their defenses are irreconcilable with those
of their co-defendants. While "mutually antagonistic or
irreconcilable defenses may be so prejudicial in some
circumstances as to mandate severance," they are not prejudicial
per se. Zafiro, 506 U.S. at 538. It is not enough to show some
hostility among the defendants, or that the co-defendants'
strategies are generally antagonistic. United States v.
Gilliam, 167 F.3d 628, 635 (D.C. Cir. 1999); United States v.
Brown, 16 F.3d 423, 433 (D.C. Cir. 1994). Here, defendants have
offered nothing other than vague assertions that their defenses
will be conflicting and irreconcilable. There is no suggestion
that any defendant will seek to prove the guilt of a co-defendant
in order to prove his own innocence or that acceptance of one
defense would preclude acceptance of the others. "[D]efendants
are not entitled to severance merely because they may have a
better chance of acquittal in separate trials." Zafiro, 506
U.S. at 540. As found by the Court in Edelin, if one were to
accept defendants' conclusory arguments, "any conspiracy trial
would have to be severed." 118 F. Supp.2d at 50. Moreover, any
prejudice from not severing offenses or defendants is the type
that can be cured with proper jury instructions. Zafiro,
506 U.S. 540; Gilliam, 167 F.3d at 636. C. Confrontation Clause
The Confrontation Clause of the United States Constitution
provides the accused with "the right . . . to be confronted with
the witnesses against him." U.S. Const. Amend. VI. It is clear
that the right of confrontation "includes the right to
cross-examine witnesses." Richardson, 481 U.S. at 206. Thus,
where two defendants are tried jointly, the pretrial statements
of one may not be admitted against the other unless the
confessing defendant takes the stand, even if the jury is
instructed not to consider the statements against the separate,
implicated defendant. Bruton v. United States, 391 U.S. 123,
137 (1968). Bruton applies to a co-defendant's statement that
"expressly implicates the defendant," and as such, is "so
incriminating that it constitutes an exception to the general
proposition that a judge's limiting instruction will prevent any
improper use of the statement by the jury." United States v.
Washington, 952 F.2d 1402, 1404-05 (D.C. Cir. 1991) (internal
citation and quotation marks omitted).
Here, the government proposes to introduce redacted oral
statements made by defendants Brodie and Kareem.*fn16
Bruton does not automatically require severance when a
co-defendant's statement is proffered. Rather, "Bruton can be
complied with by redaction." Richardson, 481 U.S. at 209.
Specifically, in Richardson, the Court noted that there is no
violation if the statement is "redacted to eliminate not only the
defendant's name, but any reference to his or her existence."
Id. at 211. Several of the government's redactions remove all
reference to the defendants, and thus they comply with Bruton. (See Gov't Mot. at 31, 35,
38-40 [Proffered Statements of Def. Kareem Nos. 10, 20, 25, 26,
Other proffered redactions replace defendants' names with
neutral words or phrases such as "others" or "another." (Gov't
Mot. at 32, 37, 42) [Proffered Statements of Def. Kareem Nos. 12,
13, 22, 34].) The D.C. Circuit, construing Richardson, has held
that where "all references to the defendant in a co-defendant's
statement are replaced with indefinite pronouns or other general
terms," admitting the redacted statement does not violate the
Confrontation Clause if, "when viewed together with other
evidence, the statement does not create an inevitable
association with the defendant, and a proper limiting
instruction is given." Washington, 952 F.2d at 1406-07
(emphasis added). Thus, substituting the defendant's name with
"others at the scene" or "an individual" does not violate the
Confrontation Clause. Id. at 1406.
After the D.C. Circuit's decision in Washington, the Supreme
Court clarified that a redaction that leaves an obvious blank or
notifies the jury that a name has been deleted will not suffice
because such a redaction functions like an unredacted statement
that names the defendant both are "directly accusatory." Gray
v. Maryland, 523 U.S. 185, 194 (1998). That is, Richardson
"placed outside the scope of Bruton's rule those statements
that incriminate inferentially," or only when linked with
evidence introduced later at trial. Id. at 195 (citing
Richardson, 481 U.S. at 208); see also United States v.
Wilson, 160 F.3d 732, 740 n. 5 (D.C. Cir. 1998) (statement that
named defendant but became incriminating only when combined with
other evidence did not require severance as "statements that
incriminate only inferentially are outside the scope of
Bruton"). But statements that, "despite redaction, obviously
refer directly to someone, often obviously to [defendant], and
involve inferences that a jury ordinarily could make immediately, even were the confession the very first item
introduced at trial," violate Bruton's rule. Gray, 523 U.S.
at 186. Judged by these standards, the government's redactions
that replace the defendants' names with general terms (i.e.,
"others" or "another") neither create an inevitable association
with defendants nor invite inferences that a jury could make
immediately without the aid of other evidence. See United States
v. Cuong Le, 316 F. Supp.2d 330, 338 n. 8 (E.D. Va. 2004)
("[R]eferences to `another individual' point no accusatory
finger at a specific defendant, as gang members, other than the
defendants, could fit the bill.").
Another category of the government's proposed redactions
replaces the names of defendants Kareem and Padonu with the term
"loan officer" or "loan officers." (Gov't Mot. at 25-26, 29-30,
32-33, 35, 43 [Proffered Statements of Def. Brodie Nos. 2, 5 and
Proffered Statements of Def. Kareem Nos. 6, 7, 13, 14, 19, 38].)
A redaction may not use a general term that creates an "obvious
pointer" to the defendant. United States v. Hoover,
246 F.3d 1054, 1059 (7th Cir. 2001). In Hoover, the government redacted
the names of two defendants convicted of running a criminal
enterprise, replacing them with the terms "incarcerated leader"
and "unincarcerated leader." Id. In other words, the redacted
statement ascribed to the defendants "aliases based on their
occupations" with respect to the criminal operation. The Seventh
Circuit found that "the proposition that replacing a name with a
pseudonym is proper unless the identity of the alias can be
deduced within the four corners of the confession is incompatible
with Gray. . . ." Id. The suggested redactions did not
"avoid a one-to-one correspondence between the confession and
easily identified figures sitting at the defense table," and were
"just the sort of symbols that the majority in Gray had in
mind." Id. Similarly here, the government proposes to replace
defendants' names with aliases based on their occupations: "loan
officer" or "loan officers." The proposed redactions incriminate through inferences
a jury could make immediately upon hearing the substituted term,
not those that require linkage with other evidence introduced
later at trial. Gray, 523 U.S. at 196. See also United States
v. Richards, 241 F.3d 335, 341 (3d Cir. 2001) (substituting
"inside man" and "my friend" for names of other participants in
the crime violated Bruton). As such, these redacted statements,
which amount to "obvious pointers" to defendants, fall within
Bruton's protection, and they will not be permitted.
Next, several proffered statements identify defendants'
employers. The government has replaced the names of defendants
Brodie and Padonu with the general term "borrower," but has
proposed to retain the identification of defendants' employers.
For example, the government proposes substituting defendant
Kareem's statements that various forms used in the flipping
scheme listed defendant Brodie's employer as ICN with a statement
that the form lists "ICN as the borrower's employer." (Gov't Mot.
at 37, 41 [Def. Kareem's Proffered Statement Nos. 23, 33].)
Similarly, the government proposes substituting Kareem's
statement that a company called Osessi is "listed as defendant
Padonu's employer" with "Osessi is listed as the borrower's
employer." (Gov't Mot. at 41-42 [Def. Kareem's Proffered
Statement No. 34].) Unlike "loan officer," the general term
"borrower" does not constitute an obvious pointer to defendants.
The question, then, is whether associating the "borrower" with
defendants' employers amounts to an inevitable association, or
creates an inference that jurors could make immediately without
reference to other evidence.
Applying the teaching of Richardson, Gray, Washington, and
Hoover, the answer must be no. In order to find these
statements inculpatory with respect to defendants Brodie and
Padonu, jurors would need to link the statements with evidence
that defendants acted as borrowers in these transactions, as well as evidence establishing that defendants
Brodie and Padonu were employed by ICN and Osessi, respectively.
In other words, the statements become incriminating only "when
linked with evidence introduced later at trial." Richardson,
481 U.S. at 201. The statements do not create an inevitable
association with defendants or provide obvious pointers to them.
Washington, 952 F.2d at 1406-07; Hoover, 246 F.3d at 1059.
Nor do the statements involve inferences that the jury might draw
immediately before any other evidence is introduced. Gray, 523
U.S. at 196. This type of inferential incrimination is far less
obvious than testimony specifically identifying the defendants,
and thus, "the judge's instruction may well be successful in
dissuading the jury from entering onto the path of inference in
the first place." Richardson, 481 U.S. at 208.
Finally, several of the proffered statements refer to a
defendants' relationship with some third party. These have not
been redacted. For instance, defendant Kareem's proffered
statement indicates that "[d]efendant Brodie's girlfriend was
Dorothy Wallace, a Jamaican." (Gov't Mot. at 36-37 [Proffered
Statement of Def. Kareem No. 22].) The government also proposes
to introduce Kareem's statements regarding defendant Padonu's
friendship with Heralda Avery, whom Kareem identifies as being
involved in the flipping scheme (id. at 39, 43 [Proffered
Statements of Def. Kareem Nos. 27, 37]), and a statement
regarding defendant Kareem's identification of a potential
purchaser as defendant Padonu's wife. (Id. at 40 [Proffered
Statements of Def. Kareem No. 28].) The government claims that
these statements are admissible against defendants Brodie and
Kareem under Fed.R.Evid. 803(19). Rule 803(19) is an exception to the hearsay rule for statements
[r]epuation among members of a person's family by
blood, adoption, or marriage, or among a person's
associates, or in the community, concerning a
person's birth, adoption, marriage, divorce, death,
legitimacy, relationship by blood, adoption, or
marriage, ancestry, or other similar fact of personal
or family history.
Reputations "regarding relationships and other personal and
family matters within a well-defined community are considered to
have the circumstantial guarantee of trustworthiness that
justifies a hearsay exception." Blackburn v. United Parcel
Serv., 179 F.3d 81
, 98 (3d Cir. 1999). A well-grounded belief
that two people are married is one such relationship, id.,
though it less clear whether Rule 803(19) applies to statements
about a "friendship" or "girlfriend" relationship.
But even assuming that defendant Kareem's statements about
these relationships fall within Rule 803(19), a foundation must
be established for their admissibility. Specifically, the
statement must be sufficiently trustworthy.
Trustworthiness in reputation evidence is found when
the topic is such that the facts are likely to have
been inquired about and that persons having personal
knowledge have disclosed facts which have thus been
discussed in the community; and thus the community's
conclusion, if any has been formed, is likely to be a
United States v. Lyons Capital, Inc., No. 99cv4178, 2000 WL
1792985, at *7 (5th Cir. Dec. 7, 2000) (emphasis in original)
(quoting 5 Wigmore § 1580, at 444). A proponent of reputation
testimony must establish that it "arises from sufficient inquiry
and discussion among persons with personal knowledge of the
matter to constitute a trustworthy `reputation.'" Blackburn,
179 F.3d at 100. If the person heard of the relationship "from
some unknown source," it would be inadmissible, as "what is
required is the laying of a foundation of knowledge grounded in
inquiry, discussion, interactions, or familiarity `among a
person's associates, or in the community.'" Id. (quoting Fed.R.Evid. 803(19)). For example,
Blackburn found that a statement that two individuals were
related, which was "something that I was told by someone I worked
with," did not meet the requirements of Rule 803(19), nor did a
statement that "it was my understanding" that two individuals
were related. Id. at 102.
The appropriate foundation has not been established here. What
is proffered is simply defendant Kareem's statements about the
other defendants' relationships without any information to
establish a basis for this knowledge. Absent the necessary
foundation, the statements are inadmissible under Fed.R.Evid.
803(19), and the government's proposal to introduce them in an
unredacted form is rejected.*fn17
For the reasons stated above, defendants' motions are denied
except that the government must identify the co-conspirators
referred to in Counts I and V; the redactions that reference
"loan officers" will not be admitted into evidence; and the
statements offered as to relationships are not admissible under
Fed.R.Evid. 803(19) and thus are not admissible under Bruton.
A separate Order accompanies this Memorandum Opinion. ORDER
For the reasons stated in the accompanying Memorandum Opinion,
it is hereby
ORDERED that defendants' motions to dismiss Count I, to
dismiss the indictment based on speedy trial and multiplicity
arguments, to strike aliases, to suppress statements obtained in
violation of the Vienna Convention on Consular Relations, and to
sever are DENIED; it is
FURTHER ORDERED that defendants' request for a bill of
particulars and a pretrial hearing to determine the admissibility
of co-conspirator statements is DENIED except that the
government shall disclose the names of all alleged
co-conspirators referred to in Counts I and V within ten (10)
days of the date of this Order, it is
FURTHER ORDERED that the defendants' motion to sever based on
Bruton is denied except that the government's proposed
redactions relating to "loan officers" and those statements
offered under Fed.R.Evid. 803(19) will not be permitted. IT IS SO ORDERED.