Case 1:07-cr-00543-DLI Document 159 Filed 03/08/10 Page 2 of 4 PageID #: 1038

government proposes that the testifying witness read the relevant

portions of the affidavits into the record, rather than admitting
them as exhibits.1
The government submits that the enclosed redacted
statements fully comply with Bruton because each of the edited
statements, standing alone, does not inculpate any of the codefendants to the crimes charged in the indictment.
In Bruton, the Supreme Court held that the introduction
of a co-defendants statement implicating the defendant in a
joint trial violated the defendants rights under the
Confrontation Clause. However, the broad right delineated in
Bruton has been circumscribed by the Supreme Court to allow the
admission of a co-defendants statement where it is redacted to
eliminate any reference to the other defendants existence. See
Marsh, 481 U.S. at 209.
The Second Circuit has repeatedly approved of the
admission of statements made by defendants that have been
redacted to replace the names of any co-defendants with neutral
words, with no indication that the original statement contained
actual names. See United States v. Jass, 569 F.3d 47, 54-64 (2d
Cir. 2009) (approving substitution of another person); United
States v. Sanin, 252 F.3d 79, 84-85 (2d Cir. 2001); United States
v. Smith, 198 F.3d 377, 385 (2d Cir. 1999); United States v.
Williams, 936 F.2d 698, 700 (2d Cir. 1991) (approving
substitution of guy); United States v. Tutino, 883 F.2d 1125,
1135 (2d Cir. 1989). Such statements are admissible as long as
the statement standing alone does not otherwise connect codefendants to the crimes. See Sanin, 252 F.3d at 85; Williams,
936 F.2d at 700; Tutino, 883 F.2d at 1135 (a redacted statement,
in which the names of co-defendants are replaced with neutral
pronouns, with no indication to the jury that the original
statement contained actual names, and where the statement
standing alone does not otherwise connect co-defendants to the
crimes, may be admitted without violating a co-defendants Bruton
rights) (emphasis added); United States v. Kyles, 40 F.3d 519,
526 (2d Cir. 1994) (statement which replaced a defendants name
with the neutral pronoun he, so that it read he got me into
this, these bank robberies did not standing alone connect the
defendant to the robberies).

Though the redacted versions of the affidavits include a

cover sheet so that the Court and the parties can easily identify
them, the government does not propose to read that portion to the
jury.
2

Case 1:07-cr-00543-DLI Document 159 Filed 03/08/10 Page 3 of 4 PageID #: 1039

The fact that the statements, when read in conjunction

with other evidence, might lead to an inference of a codefendants guilt does not render it inadmissible. See e.g.,
Richardson, 481 U.S. at 208 (no Bruton violation because
statements did not, on their face, incriminate the defendants,
but rather did so only when linked with other evidence at
trial); Tutino, 883 F.2d at 1135; Smith, 198 F.3d at 385
(finding redacted statement admissible because it was not
incriminating on its face, notwithstanding other evidence
permitting jury to make inference identifying co-defendant); see
also Williams, 936 F.2d at 700. The critical inquiry is . . .
not whether a jury might infer from other facts . . . that a
declarants neutral allusion to a confederate might have
referenced the defendant. It is whether the neutral allusion
sufficiently conceals the fact of explicit identification [in the
original statement.] Jass, 569 F.3d at 61.
With respect to the defendants arguments that
admission of the statements would violate the Supreme Courts
holding in Crawford v. Washington, 541 U.S. 36 (2004), the Second
Circuit has held that Crawford did not overrule[] Richardson or
expand[] the holding of Bruton. United States v. Lung Fong
Chen, 393 F.3d 139, 150 (2d Cir. 2004); see also United States v.
Scott, 624 F. Supp.2d 279, 289-90 (S.D.N.Y. 2008) (rejecting
defendants argument that admission of co-defendants statement
that used only neutral pronouns violated Crawford); United States
v. Stone, No. 05 CR 401 (ILG), 2007 WL 4560599, at *1-2 (E.D.N.Y.
Dec. 18, 2007)(same).
In this case, the government has redacted each
defendants statements to remove any specific reference to the
co-defendants. There is nothing in any of the statements that
could be construed as facially incriminating to the declarants
co-defendants or that standing alone connects the codefendants to the statements. In addition, the redactions, along
with the proposed manner of introduction, will conceal the fact
that the statements originally identified co-defendants. Of
course, at the time the Court admitted any redacted statements
into evidence, the government would respectfully request a
limiting instruction that a defendants statements may not be
considered by the jury in any way against any co-defendant. The
use of such a limiting instruction has been approved by the
Second Circuit and held to overcome any Crawford challenge, even
where the statement constituted a 34-page catalog of [the
defendants] life with al Qaeda . . . In re Terrorist Bombings
of U.S. Embassies in East Africa, 552 F.3d 93, 135-36 & n. 36 (2d
Cir. 2008).

Case 1:07-cr-00543-DLI Document 159 Filed 03/08/10 Page 4 of 4 PageID #: 1040

For the reasons set forth above and in the governments

prior memoranda of law, the government respectfully submits (1)
that the enclosed redacted statements should be admitted in the
manner proposed by the government, and (2) that the defendants
motions to sever should be denied.
Respectfully submitted,
BENTON J. CAMPBELL
UNITED STATES ATTORNEY
By:

cc:

/s/
Marshall L. Miller
Jeffrey H. Knox
Berit W. Berger
Zainab Ahmad
Assistant U.S. Attorneys
(718)254-6421/7581/6134/6522

Mildred Whalen, Esq. (via ECF and email)

Len Kamdang, Esq. (via ECF and email
Daniel Nobel, Esq. (via ECF and email)
Doric Sam, Esq. (via ECF and email)
Michael Hueston, Esq. (via ECF and email)
Zoe Dolan, Esq. (via ECF and email
Kafahni Nkrumah, Esq. (via ECF and email)
Toni Messina, Esq. (via ECF and email)