Virginia Lawyers Weekly//March 14, 2022
Virginia Lawyers Weekly//March 14, 2022//
Where co-defendants in a murder case who were not testifying at trial made statements about a stabbing incident, the portions that were potentially incriminating to the defendant were redacted.
German Hernandez is charged with conspiring to commit murder and attempting to commit murder of another detainee. At issue are statements made by detainees Carlos Almonte, Julio Chavez and Angel Guevara about the stabbing incident, as reflected in Agent Canfield’s report.
Hernandez has moved, pursuant to Bruton v. United States, 391 U.S. 123 (1968), to sever his trial from that of his three co-defendants. In the alternative, the defendant moves to bar the admission of incriminating statements made by the co-defendants.
The Fourth Circuit has held where the co-defendant’s statement is altered by replacing the defendant’s name with a generic pronoun, or the neutral phrase “another person,” or “another individual,” it does not offend Bruton so long as it reasonably “referred generally and without facial incrimination to some number of individuals who could, or could not, be the other defendants.”
None of the statements implicate Hernandez by name. They already use generic pronouns, such as “we” and “they,” so the government has not needed to redact the statements. As to parts of the statements, however, the pronouns obviously refer to the defendants, including Hernandez, and thus are “more vivid than inferential incrimination.”
But the court disagrees that severance is the only remedy here. The partial exclusion or redaction of the statements would be sufficient and would not impermissibly change their meaning. Accordingly, the court will consider each statement, and identify the portions that must be excluded from trial.
Guevara stated: “Just wait, we aren’t the only ones that will turn away from the Mexican Mafia. Florencia-13 will do it soon too.” This statement does not refer directly or implicitly to Hernandez or the stabbing incident in particular. Canfield also recounts that Guevara stated: “they would walk any yard regardless of who else was on the yard but they (MS) would strike first regardless of numbers.” Similarly, the “they” could reasonably be inferred to reference all the MS-13 members, not just Hernandez. It also does not directly reference the stabbing incident.
Chavez stated: “We have tried to fix the disrespect issues from Zaragoza but no one wanted to hear it and didn’t want to change so we fixed it. We have crossed a line that can’t go back. We know what we did, this is how it needed to be.” This statement “powerfully incriminate[es]” the defendant. Chavez explicitly refers to the victim by name, expressing animosity toward him. The statement also relates directly to the stabbing incident. It is reasonable to infer then that the “we” refers specifically to the co-defendants, including Hernandez, and not generally to any number of individuals, who may or may not be charged. Because this portion of his statement is barred by Bruton, it must be fully redacted from the rest of his statement.
Second, in response to Canfield’s question, “[I]f it were any other Mexican Mafia inmate in the unit would they have been assaulted,” Chavez stated, “Any of them that got in the way.” This statement does not facially implicate the defendant, only the declarant. Therefore, this portion of the statement is admissible.
Finally, Canfield recounts that Chavez stated that “they would walk any yard regardless of who else was on the yard but they (MS) would strike first regardless of numbers.” This is the same statement attributed to Guevara, which the court already held was admissible.
Almonte stated: “We live and die MS, this is our family. Zaragoza disrespected us as men and he is supposed to be above that. We lose family over MS, so we aren’t being punked.” On its face, this statement is partially incriminating of the defendant. The portions discussing MS-13 are generalized enough that a reasonable inference is “we” could include all MS-13 members, not merely the co-defendants.
But in the next sentence, the explicit reference to the victim creates a much stronger inference that “us” refers to these co-defendants in particular. This is the type of impermissible inference that the law prohibits. Accordingly, the second sentence must be excluded.
Second, in response to Canfield’s question, “[I]f it were just an issue with Zaragoza or if another Mexican Mafia member such as Trigg would have been involved would the incident happened the same way,” and Almonte replied, “If Trigg would have been there and gotten in the way then he would have gotten it too. The main issue was Zaragoza’s disrespect but we were going to do what we were going to do.” The second part of the statement could implicate the defendant and must be excluded.
Finally, Canfield recounts that Almonte also stated: “they would walk any yard regardless of who else was on the yard but they (MS) would strike first regardless of numbers.” This is the same statement attributed to Guevara and Chavez, which is admissible.
Defendant’s motion to sever denied.
United States v. Hernandez, Case No. 2:21-cr-00001-005, March 1, 2022. WDVA at Big Stone Gap (Jones). VLW 022-3-097. 14 pp.