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U.S. v. BAILEY
November 14, 2005.
UNITED STATES OF AMERICA, Plaintiff,
v.
JAMAR BAILEY and ANTHONY GILMER a/k/a "Marcc" and "T," et al., Defendants.
The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge
MEMORANDUM OPINION AND ORDER
Jamar Bailey ("Bailey") and Anthony Gilmer ("Gilmer," also
known as "Marco" and "T"), two of the five defendants in this
case charging a drug conspiracy, have opted for trial. Each of
the other three defendants has pleaded guilty under a separate
plea agreement that expressly contemplates his testifying at
trial: Each of those agreements is entered into pursuant to
Fed.R.Crim.P. 11(c)(1)(C), with a government motion based on the
defendant's cooperation being required to trigger the agreed-upon
reduced sentence. Importantly included among the motions in
limine to be resolved before trial (which is scheduled to begin
November 28 or 29) is the Government's Submission Regarding
Post-Arrest Statements of Defendants.
That submission poses a classic Bruton problem (Bruton v.
United States, 391 U.S. 123 (1968)). One significant part of the
government's case against Bailey is Gilmer's post-arrest oral
statement to federal law enforcement personnel, while a
significant part of the government's case against Gilmer stems from a post-arrest handwritten statement by Bailey. Each
statement Gilmer's as reported in a DEA Form 6 "Report of
Investigation" and Bailey's handwritten statement is chock-full
of references that incriminate the other codefendant who is going
to trial.
What the government seeks to do is (1) to attempt the
bowdlerization of Gilmer's oral statement by substituting "an
individual," "that person" and "the guy" for Bailey's name
wherever it appears in the report of that statement and (2) to
black out Gilmer's name or nickname wherever it appears in
Bailey's handwritten statement. But to believe that such
tinkering will really provide insulation against the
constitutional defect identified in Bruton is ostrich-like in
the extreme. In that respect part of the opinion in United
States v. Hoover, 246 F.3d 1054, 1059 (7th Cir. 2001), if
appropriate changes of the names and of the euphemistic
substitutes for those names were made to fit the situation here,
might well have been written for this case:
Only a person unfit to be a juror could have failed
to appreciate that the "incarcerated leader" and
"unincarcerated leader" were Hoover and Shell; we
doubt that the majority in Richardson [v. Marsh,
481 U.S. 200 (1987)] would have countenanced so
transparent a device.*fn1 Hoover properly applied the limitations that were well set
out in Gray v. Maryland, 523 U.S. 185 (1998), conforming (as
that case did) to the principles that were seminally announced in
Bruton and further explained in Richardson. Gray, id. at
189-97 explained in detail why the scenario presented in
Richardson did not, while the situation before the Court in
Gray did, bring the Bruton protective rule into play. What
the government seeks to do here fits well within the type of
prohibited effort exemplified by Gray and Hoover.
Accordingly this Court holds that each of the government's
proposed devices violates the constitutional rights of one or the
other of the defendants. Neither statement will be admitted at
trial.
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