Circuit Split: Whether Denial Of A Severance Motion Preserves A Later Bruton Challenge?

When a party moves to sever a case with other criminal defendants based on concerns under Bruton v. United States, does the severance motion preserve a later Bruton challenge on appeal when the statements of a non-testifying defendant are admitted at trial? The Sixth Circuit recently noted that the circuits are divided on this issue, in United States v. Ford, _ F.3d _ (6th Cir. Aug. 5, 2014) (Nos. 11-2200, 11-1926, 11-1917, 11-2015)

In the landmark decision in Bruton v. United States, 391 U.S. 123, 126 (1968), the Supreme Court held that a defendant’s Confrontation Clause rights were violated when a non-testifying co-defendant’s confession incriminating the defendant was introduced at their joint trial, despite the judge’s jury instruction that the confession was only to be considered against the co-defendant. The failure to properly preserve a Bruton claim can result in the more stringent plain error review. Does the denial of a motion to sever on Bruton grounds preserve the issue for appellate review when defense counsel does not lodge a contemporaneous objection to the trial testimony? The Sixth Circuit recently noted this issue.

Trial Court Proceedings: Motion To Sever Denied

Co-defendants Ford and Perdue were charged with Hobbs Act and firearm counts based on their role in participating in a series of robberies. Defendant Ford move to sever the case before trial since the government planned to introduce statements of co-defendant Perdue which he claimed would violate Bruton. The government offered to redact defendant Ford's name from part of the statement. The trial court concluded that this proposal addressed the Bruton concerns. At trial, the special agent testified about co-defendant Perdue's statement. Defendant Ford did not lodge a trial objection under Bruton. Following the conviction of both defendants at trial, on appeal defendant Ford asserted the trial testimony violated Bruton.

Sixth Circuit Review: Noting Circuit Split

In considering the Confrontation Clause claim, initially the Sixth Circuit had to consider whether the issue should be reviewed for plain error given the absence of any trial objection, as the government claimed. The government argued that defendant "Ford’s motion to sever did not identify any specific portions of Perdue’s statement that violated Bruton."

While the issue was open in the Sixth Circuits, other circuits were divided on this issue:

  • First Circuit: United States v. Vega Molina, 407 F.3d 511, 519–20 (1st Cir. 2005) (categorical denial of motion to sever preserved the Bruton objection after the trial court concluded that the statement was not incriminating)
  • Fifth Circuit: United States v. Jobe, 101 F.3d 1046, 1068 (5th Cir. 1996) (plain error review after severance motion was denied and no contemporaneous objection was made to the trial testimony).
  • Tenth Circuit: United States v. Nash, 482 F.3d 1209, 1218 n.7 (10th Cir. 2007) (motion to sever preserved the Bruton issue where no contemporaneous objection was made to the trial testimony)
  • Eleventh Circuit: United States v. Turner, 474 F.3d 1265, 1276 (11th Cir. 2007) (reviewing Bruton claim for plain error where no contemporaneous objection was made to the trial testimony but the motion for severance was made the next day)

Notwithstanding the open issue, the Sixth Circuit concluded it was unnecessary to resolve it. There was no Bruton error. The challenged statement made by non-testifying co-defendant Perdue did not refer to defendant Ford as it had been redacted. As the circuit noted, "Any conclusion by the jury that Perdue’s statement implicated Ford might be made only by linking the statement to other evidence." Ford, _ F.3d at _ (citing United States v. Cobleigh, 75 F.3d 242, 248 (6th Cir. 1996) (“Bruton does not bar the use of a redacted codefendant’s confession ‘even if the codefendant’s confession becomes incriminating when linked with other evidence adduced at trial.’”) (quoting United States v. DiCarlantonio, 870 F.2d 1058, 1062 (6th Cir. 1989))). Consequently, there was no Confrontation Clause error.

Conclusion

The Ford case highlights an open issue in the circuit. A number of circuits have yet to consider this issue. Of course, there is no issue on the standard of review where an objection is made to the trial testimony even after the motion for a severance on Bruton grounds is denied.

For two other evidence issues covered in the Ford case, see Barring Exculpatory Party Statements; Considering Gang Affiliation Evidence.

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