United States District Court, D. Nebraska
Gossett, United States Magistrate Judge.
matter is before the court on Defendant Anthony
Whitewater's Motion to Sever Trial and Request for
Hearing (Filing No. 31). For the reasons explained
below, the motion will be denied.
and co-defendant Marcus Blackhawk are jointly charged in the
Indictment with assault with a dangerous weapon within Indian
country in violation of 18 U.S.C. §§ 113(a)(3),
1153 and 2 (Count I), and use of a firearm during a crime of
violence in violation of 18 U.S.C. §§
924(c)(1)(A)(iii), 1153, and 2 (Count II). (Filing No.
1). Whitewater filed the instant motion to sever his
trial from the trial of Blackhawk on the basis that the
government “might attempt to elicit” a statement
made by Blackhawk that inculpates Whitewater. In support of
this motion, Whitewater alleges the following facts:
On May 2, 2016, a series of 911 calls came in from the
passengers of a black Chevy Tahoe. The caller told the police
that the occupants of a blue Chrysler Pacifica were following
them and the Pacifica's passenger had fired a gun at
their vehicle. During the series of 911 calls, a police
officer observed the callers' black Tahoe being followed
down Highway 77 by the blue Pacifica. The officer, having no
knowledge of the 911 call(s), believed the vehicles to be
speeding and gave chase. When the black Tahoe went one way
and the blue Pacifica went another, the officer followed the
Pacifica and pulled it over. The driver and lone occupant of
the Pacifica was defendant Marcus Blackhawk.
During the stop of the Pacifica, officers learned that the
occupants of the Tahoe had alleged that the passenger of the
Pacifica had been firing a gun at their car. A search of the
Pacifica revealed an unfired bullet and spent shell casing.
An officer, having just learned the details of the
allegations (that is, that the passenger of the Pacifica had
fired a gun at the Tahoe), asked Blackhawk who he had just
dropped off and Blackhawk replied, “My bro.” The
co-defendants are brothers.
(Filing No. 32 at pp. 1-2). The government does not
contest Whitewater's factual assertions, but adds that
Whitewater and Blackhawk are half-brothers, and Blackhawk
“has at least six brothers or half-brothers.”
(Filing No. 40 at p. 1).
Federal Rule of Criminal Procedure 8(b), and
indictment may charge two or more defendants “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). “There is a preference in the federal
system for joint trials of defendants who are indicted
together.” Zafiro v. United States, 506 U.S.
534, 537 (1993). Nevertheless, Fed. R. Crim. P.
14(a) provides that “[i]f the joinder of offenses
or defendants in an indictment . . . appears to prejudice a
defendant or the government, the court may order separate
trials of counts, sever the defendants' trials, or
provide any other relief that justice requires.”
Fed. R. Crim. P. 14(a). “[W]hen defendants
properly have been joined under Rule 8(b), a district court
should grant a severance under Rule 14 only if there is 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, 506 U.S. at 539. The
defendant seeking severance carries a heavy burden and
“must show ‘real prejudice, ' that is,
‘something more than the mere fact that he would have
had a better chance for acquittal had he been tried
separately.” United States v. Mickelson, 378
F.3d 810, 817 (8th Cir. 2004)) (quoting United
States v. Oakie, 12 F.3d 1436, 1441 (8th Cir. 1993)).
does not challenge joinder under Fed. R. Crim. P.
8(b), but instead argues a joint trial would be
prejudicial under Fed. R. Crim. P. 14. Whitewater
argues that a joint trial would violate his Sixth Amendment
right to confront witnesses against him based on his
inability to confront or cross-examine Blackhawk regarding
his roadside statement that he had just dropped off “My
bro.” In Bruton v. United States, 391 U.S. 123
(1968), the United States Supreme Court held that a
co-defendant's statement that facially incriminates a
defendant violates the Confrontation Clause despite
cautionary instructions. However, Bruton is
inapplicable where a co-defendant's statement does not
incriminate the defendant either on its face or “when
linked with evidence introduced later at trial.”
United States v. Gayekpar, 678 F.3d 629, 637 (8th
Cir. 2012) (citing Richardson v. Marsh, 481 U.S.
200, 208 (1987)). Thus, “[w]here a defendant's
redacted confession does not refer directly to the
codefendant himself, and becomes incriminating only in
combination with other evidence, the Constitution permits the
normal presumption that a jury will follow an instruction to
disregard the confession when considering a verdict for the
codefendant.” Gayekpar, 678 F.3d at 637.
Court concludes that Blackhawk's roadside statement to
the police that he had just dropped of “My bro”
does not require severance under Bruton because
Blackhawk's statement is not facially incriminatory.
Blackhawk's statement does not refer to the charged
crimes or refer to any wrong-doing. Moreover, although
Blackhawk refers to his “bro, ” Blackhawk has at
least six other brothers or half-brothers. At most,
Blackhawk's statement tends to inculpate Whitewater only
when considered with other evidence received at trial.
Therefore, Bruton is not applicable. See
Gayekpar, 678 F.3d at 637. Therefore, the Court
finds the defendants may remain joined for trial.
IS ORDERED: Defendant Whitewater's Motion to
Sever Trial and Request for ...