United States District Court, E.D. Kentucky, Central Division, at Lexington
OPINION AND ORDER
KAREN K. CALDWELL, Chief District Judge.
This matter is before the Court on various motions filed by several of the five remaining defendants in this action. All five of the defendants are charged with conspiring to distribute heroin from February 2013 to July 10, 2013 and related charges.
I. Pressley's Motion to Exclude Evidence (DE 97)
With this motion, Defendant Pressley asks the Court to exclude several kinds of evidence, each of which will be addressed below.
A. Codefendant Fish's recorded statement
Pressley asks the Court to exclude a recorded statement made by codefendant Raven Elise Fish to officers after they conducted a search of a residence at 1832 Costigan Drive. The officers discovered heroin at the residence and, according to Pressley, Fish stated that the heroin belonged to Pressley. Fish has already pleaded guilty to possessing heroin with the intent to distribute it. The government states it will not seek to admit Fish's statement if she does not testify.
Admission of the statement will not violate the Confrontation Clause if Fish testifies. "[W]e reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements... The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it." Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004),
As to whether admission of the statement would violate the hearsay rules, the Court assumes that the government is arguing that it may seek to admit the statement if Fish testifies inconsistently at trial. Accordingly, this portion of Pressley's motion will be denied as premature. If the government should believe that admitting the recorded statement is appropriate at trial, it must approach the bench for permission to do so. Pressley may reassert his objection at that time.
B. Hearsay statements by codefendants that implicate Pressley
Second, Pressley asks the Court to exclude any "hearsay" statements made by any of his codefendants that directly implicate Pressley. The government agrees that it will not admit any such statements "if those statements are hearsay" unless the declarant testifies. The Court will deny this portion of Pressley's motion as premature. Pressley states that he is not "specifically aware" of what these statements may be. The Court is unable to exclude any statements without knowing what they are or the context in which they will be presented. Accordingly, this portion of Pressley's motion to exclude will be denied as premature.
C. Barnes' recorded statement
Third, Pressley asks the Court to exclude a recording of the investigating officers' interview with James Barnes in which Barnes states that he once bought heroin from Pressley. The government states that Barnes will testify at trial. Accordingly, admission of the statement will not violate the Confrontation Clause. The government further states that Barnes' recorded statement may be necessary for impeachment purposes if Barnes testifies inconsistently. Thus, the Court is unable to determine prior to Barnes' testimony if admission of the statement would violate the hearsay rules. Accordingly, to the extent that the motion to exclude relies on the hearsay rules, the motion will be denied as premature.
Pressley argues that, even if the statement is admissible under the hearsay rules, it should be excluded under FRE 403 because it is more prejudicial than probative. Pressley argues that Barnes does not ever identify the time or place of the alleged purchase or the quantity of heroin purchased. The Court will deny this portion of the motion as premature. It appears that the recorded statement will only be ...