The opinion of the court was delivered by: Herndon, Chief Judge
Now before the Court are four motions in limine filed by Rex Hatfield (Docs. 82, 101, 110, & 117). The Government has filed responses to the four motions (Doc. 99, 106, 115, & 118). The Court rules as follows.
A. First Motion in Limine - Co-Defendant's Statement
The Court DENIES Rex Hatfield's motion in limine to exclude the statement of co-defendant Everly Hatfield, made during a custodial interrogation on July 26, 2004. Specifically, Hatfield argues that Defendant Everly Hatfield gave an inculpatory statement to law enforcement which directly implicates Defendant Rex Hatfield and which is testimonial pursuant to Crawford v. Washington, 541 U.S. 36,68 (2004). Defendant argues that admitting Everly Hatfield's statements would violate Defendant's Sixth Amendment rights. Defendant further argues that while circuit precedent maintains that prejudice can be cured through redaction and a limiting instruction, Defendant asserts that Crawford establishes "a categorical approach that forecloses the use of co-defendant confession at trial without a prior opportunity to cross examine." (Doc. 82, ¶ 4). Defendant further argues that the statements can not be cured through redaction and a limiting instruction because the only unidentified person remaining in the statement would be Defendant Rex Hatfield.
While the Government acknowledges that any statements that Everly Hatfield made that were incriminating would be inadmissible under Bruton v. United States, 391 U.S. 123 (1968), the Government argues that it does not intent to introduce any such evidence in its case in chief. While the Government does intend to introduce evidence of Everly Hatfield's statements about himself and his admissions at trial, there will be no mention of the fact that Everly Hatfield stated Rex Hatfield was with him. Further, the Government argues that with redaction and limiting instruction, the jury will not have a basis to assume that Rex Hatfield was with Everly Hatfield at these locations as many people were alleged in the pharmacy burglaries.
It is well settled that as long as a co-defendant's statement is redacted so that it no longer implicates the defendant, the evidence is admissible in a joint trial. United States v. Ward, 377 F.3d 671, 676 (7th Cir. 2004); United States v. Souffront, 338 F.3d 0809, 828 (7th Cir. 2003). However, despite clear precedent, Defendant Rex Hatfield argues that even if a statement is redacted and cleared of any problem with the Confrontation Clause it will still be inadmissible under Crawford, which Hatfield argues establishes a categorical approach that forecloses use of co- defendant confession at trial without a prior opportunity to cross examine. The Court agrees with the Government that there is no basis for Defendant Rex Hatfield's claim that redacted statements which do not implicate Rex Hatfield are inadmissible. The law is clear under Bruton or Crawford that defendant has to be "expressly implicated as a participant in the crime" in the statements for there to be a violation of confrontation rights. Souffront, 338 F.3d at 828. Furthermore, as long as a redacted statement does not obviously refer to the defendant, it is admissible. United States v. Hernandez, 303 F.3d 964, 973 (7th Cir. 2003). Here, there were numerous alleged participants in the pharmacy burglaries, so the redacted statement would not obviously point to Rex Hatfield. Therefore, Defendant Rex Hatfield's motion in limine to exclude the statement of co-defendant Everly Hatfield is DENIED. The Court will, however, require the Government to produce the redacted version to defense and the Court before introducing it.
B. Second Motion in Limine - Exclusion of Witnesses
The Court GRANTS Rex Hatfield's motion in limine to exclude all potential witnesses from the Courtroom in this case pursuant to Federal Rule of Evidence 615, with the exception of a single government case agent allowed by Federal Rule of Evidence 615(2). Specifically, Hatfield objected to the proposal by the Government to allow two representative case agents in the courtroom. However, the Government agrees with Hatfield and has withdrawn its request to the Court to allow ATF Special Agent Robert Noscisch to sit at counsel table. Since the Government does not object to the motion, the second motion in limine is GRANTED.
C. Third Motion in Limine - Evidence of Other Bad Acts
The Court GRANTS IN PART AND DENIES IN PART Defendant Rex Hatfield's motion in limine to exclude evidence of other bad acts which Defendant argues is inadmissible under Federal Rule of Evidence 404(b) (Doc. 110). Defendant Rex Hatfield moves in limine to exclude evidence of other bad acts which include, but are not limited to:
1) All evidence that either defendant engaged in the trafficking, manufacture, or use of methamphetamine.
2) All evidence that either defendant engaged in the trafficking or distribution of any controlled substance prior to the time frame in the Superseding Indictment of June 16, 1998.
3) All evidence that either defendant enggaged in the trafficking ...