The Rules of Evidence (not Bruton) apply to admission of non-testimonial statements by co-defendants, 18 U.S.C. § 924(j) incorporates the consecutive sentencing scheme of 924(c), and other trial issues deemed not reversible error (improper admission of 404(b) evidence, prosecutorial misconduct and jury charges).
United States & Gov’t of Virgin Islands v. Berrios, Nos. 07-2818, 07-2887, 07-2888 and 07-2904 (3d Cir. Apr. 10, 2012), is an appeal from a four defendant trial for the federal charges of carjacking, attempted robbery, 18 U.S.C. § 924(c), and causing the death of a person through use of a firearm, 18 U.S.C. § 924(j), and the Virgin Island charges of felony murder and unauthorized use of a firearm. The Court affirmed the convictions and sentences. While the Court primarily addressed the intersection between the Confrontation Clause and Federal Rules of Evidence and between 18 U.S.C. §§ 924(c) and (j), this case provides a good outline of the relevant appellate analysis of prosecutorial misconduct (vouching during witness examination and closing argument) and faulty jury instructions.
Some of the evidence admitted at trial came from a Title III recording of two of the defendants made while they detained and being investigated for unrelated charges. The question was what could be admitted against the non-recorded co-defendants. In light of Crawford v. Washington, 541 U.S. 36 (2004), Davis v. Washington, 547 U.S. 813 (2006), and Michigan v. Bryant, 131 S.Ct. 1143 (2011), the Court set forth a twofold inquiry. First, determine whether an out-of-court statement or portions of it are testimonial. If the statement is testimonial, the Confrontation Clause prohibits admissibility unless a witness is unavailable and there was a prior opportunity for cross-examine. If the statement is non-testimonial, admissibility is governed solely by the Rules of Evidence and not the Roberts “indicia of reliability” test. (Rejecting contrary interpretation in United States v. Jiminez, 513 F.3d 62 (3d Cir. 2008) and Albrecht v. Horn, 485 F.3d 103 (3d Cir. 2007)). The Court acknowledged that the Rules of Evidence address similar concerns of reliability as Roberts.
This distinction requires different standards of appellate review. Fundamental constitutional errors – that affect substantial rights – require automatic reversal. All other constitutional errors may be disregarded if they are harmless beyond a reasonable doubt. Non-constitutional errors are harmless when it is highly probable that the error did not prejudice the defendant. See United States v. Diallo, 575 F.3d 252, 264 (3d Cir. 2009).
The Court determined that, here (not categorically), the Title III recordings were non-testimonial. Thus, because Bruton v. United States, 391 U.S. 123 (1968)) was a “by-product” of the Confrontation Clause, and the statements on the Title III recording were non-testimonial, Bruton did not preclude admission of the statements against the non-recorded co-defendants. The Court rejected cases that had held otherwise. See Monachelli v. Graterford, 884 F.2d 749 (3d Cir. 1989) and United States v. Ruff, 717 F.2d 855 (3d Cir. 1983). Under the Rules of Evidence, the recordings were admissible as statements against penal interest, Rule 804(b)(3) – braggadocio that inculpated the speakers as well as other co-defendants.
The Court rejected the double jeopardy challenge to imposition of consecutive life term sentences for felony murder (V.I. law) and 18 U.S.C. § 924(j)(1). The Court found clear legislative intent to impose multiple punishments for a single underlying transaction. 924(j) expressly requires a 924(c) violation, penalizing a person who causes a death “in the course of committing a violation of subsection (c).” The Third Circuit concluded that 924(j) extends the penalty regime “imposed under” subsection (c), incorporating the consecutive sentence mandate in 924(c)(1)(D)(ii), which is the “veritable raison d’etre” of the statutory scheme. Such an interpretation avoids the anomalous result that 924(c) requires a consecutive sentence except when a firearm was used during a violent crime and a murder occurred. Although the Court concluded 924(j) was not merely a sentencing enhancement for (c), it also declined to resolve here whether 924(j) was a discrete offense.
The Court also found that 404(b) evidence, statements by one defendant about loose ammunition, was too attenuated to fall into the government’s suggested pattern of false exculpatory statements to show consciousness of guilt – but that the error was harmless. The Court rejected that the government had improperly vouched for two witnesses by its examination of a detective. The Court found the alleged vouching was a reasonable response to rehabilitate a witness after it was suggested her grand jury testimony was coerced. The Court agreed that the reading of a commemorative poem about the victim, use of an enlarged photo of him made into a puzzle, and references to one of the defendants being in jail was “rife with misconduct, and to a degree that should not be tolerated by a district court.” However, the prejudice was minimal and did not merit reversal where the conduct was a brief part of the seventy five pages of closing argument and thousands of pages of trial testimony and the judge repeatedly instructed the jury not to be swayed by bias or sympathy. Finally, the Court concluded that the objective, specific intent of carjacking was correctly charged when examining the whole instruction even though a juror might have mistaken the challenged part of the charge as relying on the victim’s subjective perception (and thus allowing a conviction based on empty threats or bluffs).