United States District Court, E.D. Kentucky, Central Division, Lexington
OPINION AND ORDER
matter is before the Court on Defendants Lamar Chaves
Thornton and Jerrod Doolin's Motion to
Sever. (DE 138.) For the reasons set forth below,
the Court finds that introduction of statements made by
Thornton's co-defendant Doolin to police during his
interrogation, as currently redacted, would violate
Thornton's Confrontation Clause rights. The Court,
however, will defer ruling on Thornton's motion until it
receives notice from the United States regarding how it
wishes to proceed in this matter.
and Doolin, along with Jeffrey Ruggiero, Darmon Shaw, and
Thomas Lehman, are charged with a conspiracy to distribute a
substance containing a detectable amount of heroin and a
detectable amount of a fentanyl analogue in violation of 21
U.S.C. § 841(a)(1), all in violation of 21 U.S.C. §
846. (2d Superseding Indictment, DE 65, at 1-2.) Lehman,
individually, is charged with possessing, with intent to
distribute a mixture containing heroin, carfentanyl, and
methamphetamine. (Count 2 DE 65 at 2.) Ruggeiro and Doolin
are both charged with distributing a substance containing
heroin and carfentanyl, the use of which resulted in serious
injury to a third party. (DE 65, at 3.) Finally, Doolin,
individually, is charged with possessing, with intent to
distribute, a substance containing heroin and carfentanyl.
the course of the investigation, law enforcement obtained
multiple statements from Thornton's co-defendants which
implicated him in the alleged drug trafficking conspiracy.
First, following his arrest, Doolin gave a recorded statement
to law enforcement implicating Thornton. Specifically, Doolin
alleged that an individual known as "Juice" was his
supplier of narcotics. Doolin also stated that "Juice"
would travel to Kentucky to provide him with heroin. Second,
Doolin made two recorded phone calls to Doolin on January 11,
2017 and January 13, 2017. During those calls, Doolin
purported to inform Thornton that he needed to acquire
narcotics, asked Thornton if he needed to travel to Detroit,
and made other inculpatory statements.
Court held a hearing on Defendant's motion to sever and
ordered the United States to provide Defendants with any
redacted statements that it intended to introduce by March
31, 2018. (DE 146.) During the most recent status conference,
held on April 18, 2018, Defendants were given twenty-one days
to object to any portions of Doolin's video deposition
which it believed created Sixth Amendment Confrontation
Clause issues. Thornton was also ordered to file a memorandum
in support of his motion to sever regarding the recorded
calls made by Doolin. (DE 154.) Thornton filed a memorandum
in support (DE 158) but did not file specific objections. The
Court extended the time for Thornton to file objections (DE
180; DE 184) and the proposed redacted transcripts (DE 194)
and objections (DE 200) have now been filed. This matter is
now ripe for review.
Sixth Amendment provides that "[i]n all criminal
prosecutions, the accused shall enjoy the right... to be
confronted with the witnesses against him." U.S. Const,
amend. VI. The Confrontation Clause bars the "admission
of testimonial statements of a witness who did not appear at
trial unless he was unavailable to testify, and the defendant
had had a prior opportunity for cross-examination."
Crawford v. Washington, 541 U.S. 36, 53-54 (2004).
Admission of an out-of-court statement made by a
non-testifying co-defendant that inculpates another
defendant, even if limiting instructions are given, violates
the Confrontation Clause. Bruton v. United States,
391 U.S. 123, 128-33 (1968). A Confrontation Clause violation
can be avoided, however, if the non-testifying
co-defendant's statement is "redacted to ehminate
not only the defendant's name, but any reference to
his or her existence." Richardson u. Marsh, 481
U.S. 200, 211 (1998) (emphasis added).
statement is testimonial if "the declarant intend[ed] to
bear testimony against the accused." United States
v. Cromer, 389 F.3d 662, 675 (6th Cir. 2004). The
declarant's intent "may be determined by querying
whether a reasonable person in the declarant's position
would anticipate his statement being used against the accused
in investigating and prosecuting the crime."
Id. Additionally, for a statement to be testimonial,
"the statement must be used as hearsay-in other words,
it must be offered for the truth of the matter
asserted." United States v. Gibbs, 506 F.3d
479, 486 (2007) (quoting United States v. Pugh, 405
F.3d 390, 399 (2005)).
statements given by Doolin to law-enforcement implicating
Thornton are clearly testimonial. See, e.g., Id.
("A statement made knowingly to the authorities that
describes criminal activity is almost always
testimonial." (quoting Richard D. Friedman,
Confrontation: The Search for Basic Principles, 86
Geo. L. J. 1011, 1042 (1998)). The United States argues that
it has sufficiently redacted the transcripts to remove
references to Thornton and therefore severance is not
required. This argument is unavailing. The subject matter of
Doolin's interrogation centers on identifying his
supplier-Thornton. The interview has been redacted to replace
references to Thornton's nickname with "he" or
"him." The use of "he" or "him"
is itself insufficient; to avoid a Bruton violation,
the name must be replaced "with a neutral word, such as
'the person' or 'another person.'"
United States v. Vasilakos, 508 F, 3d 401, 408 (6th
Cir. 2007). But even if a neutral pronoun was used, the
redaction would still not solve the Bruton problem
presented by the transcript. Doolin makes a number of
references to Detroit, Thornton's use of a nickname, and
telephone calls arranging drug transactions. Because Thornton
is from Detroit, is indicted with an "AKA," and the
United States intends to introduce a recorded telephone call
where Doolin and Thornton arrange a drug transaction, the
jury will naturally conclude that Thornton is the unnamed
individual being discussed.
the Court has determined that the current redacted transcript
creates a Bruton problem, it remains the decision of
the United States as to whether it wishes to sever the trials
or proceed with the joint trial without presenting the
statements made by Doolin to police. Alternatively, the
United States could still further redact the transcript to
use neutral pronouns, remove references to Detroit, the
nickname, and telephone calls to prevent the jury from
directly inferring that Thornton is the unnamed individual.
The United States should decide how it wishes to proceed and
inform the Court by notice prior to the hearing scheduled in
this matter on August 9, 2018.
Thornton and Doolin's recorded phone call
the interrogation of Doolin, admission of the recorded phone
call between Doolin and Thornton does not present any
Bruton issues. Thornton's own recorded
statements are admissible as statements against penal
interest. Fed R. Evid. 804(b)(3). For a statement to be
admissible under Rule 804(b)(3), "the declarant must be
unavailable, the statements must, 'from the perspective
of the average, reasonable person/ be adverse to the
declarant's penal interest, and corroborating
circumstances must 'truly establish the trustworthiness
of the statement.'" United States v.
Johnson, 581 F.3d 320, 326 (6th Cir. 2009) (quoting
United States v. Tocco, 200 F.3d 401, 414 (6th Cir.
2000)). Thornton's statements are admissible because he
is unavailable, since he is likely to invoke his Fifth
Amendment right against self-incrimination; from the
perspective of a reasonable person, they are adverse to his
interests because they concern his involvement in a drug
trafficking conspiracy; and they are corroborated based on
the existence of the recording. Doolin's statements are
admissible as providing context for Thornton's
statements, not for the truth of the matter asserted. See
United States v. Sexton, 119 Fed.Appx. 735, 743 (6th
Cir.), vacated on other grounds, 2005 WL 6011238
(2005). Therefore, because Doolin's statements are not
hearsay, they fall outside of the scope of the Confrontation
Clause and the recorded telephone call can be admitted in a
joint trial of Doolin and Thornton. See Gibbs, 506
F, 3d at 486.