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United States of America v. Christopher West

March 10, 2011

UNITED STATES OF AMERICA, PLAINTIFF,
v.
CHRISTOPHER WEST, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Matthew F. Kennelly, District Judge:

MEMORANDUM OPINION AND ORDER

The defendants in this case are charged with a variety of offenses arising from contracts the defendant entities had with the U.S. military to supply "bunkers and barriers" at Bagram Air Field (BAF) in Afghanistan. The government contends the defendants bribed U.S. military personnel to obtain the contracts and to get paid in full even though they delivered less than the full quantities for which the military had contracted. The indictment includes charges of bribery, fraud, and conspiracy.

The defendants include U.S. military personnel, contractor entities, and individuals affiliated with those entities. The U.S. military personnel defendants have pled guilty and are likely to be government witnesses at the trial or trials of the other defendants. There are three groups of defendants going to trial: AZ Corporation ("AZ") and two of its principals, John Ramin and Tahir Ramin; Northern Reconstruction Organization ("NRO") and its owner Noor Alam; and Naweed Bakhshi Company ("NBC") and its owner Abdul Qudoos Bakhshi.

In 2005, Tahir Ramin ("Tahir") gave a statement to an agent of the Army Criminal Investigation Division (CID) in Afghanistan. In August 2008, the government used a ruse to lure him and other defendants and material witnesses to come to the United States and then detained them after they arrived. Tahir gave another statement to government agents while he was detained.

The government seeks to introduce portions of Tahir's statements. It has redacted the statements in an effort to meet the requirements of Bruton v. United States, 391 U.S.123 (1968), and its progeny. AZ and John argue that the redactions do not adequately protect their right of confrontation under the Sixth Amendment. They move to bar admission of the redacted statement or alternatively for a severance from Tahir.

For the reasons stated below, the Court concludes that if the government introduces the redacted version of Tahir's statement, AZ and John are entitled to be tried separately.

Background

Tahir and John are brothers and majority owners of AZ, a defense contractor that operates in Kabul, Afghanistan. Prior to their indictment in August 2008, they were suspects in a federal investigation into alleged bribery and fraud arising out of contracts with the United States Army relating to its operations at Bagram Air Field ("BAF"). On or about July 25, 2005, CID agent John Fields interviewed Tahir at BAF. According to Fields's investigation report, Tahir stated that he had been approached by Major Christopher West and Lieutenant Robert Moore about participating in a bribery scheme. Tahir said that West and Moore told him they would falsify delivery records so that AZ would be paid for equipment that it never actually delivered to BAF. Tahir denied participating in the proposed scheme and offered to provide CID with records of AZ's BAF-related contracts.

Three years later, on August 25, 2008, federal agents detained Tahir at O'Hare Airport after he arrived on a flight from Afghanistan. After being advised of his rights, Tahir spoke with the agents about AZ's military contracting activities in Afghanistan. According to handwritten notes taken by Defense Criminal Investigative Service agent Gary DeMartino, Tahir again provided details of the bribery scheme involving West and Moore. This time, however, Tahir said that AZ participated in the scheme by paying bribes to West and Moore. He also stated that John was the person at AZ who was responsible for paying the bribes. Tahir's 2008 statement thus incriminated both AZ and John.

The interviewing agents memorialized Tahir's 2005 and 2008 statements in a series of typewritten reports. The government seeks to admit the contents of these reports against Tahir. However, because the reports contain information incriminating John and AZ, the government redacted the reports to replace all references to John and AZ with pronouns-respectively, "an individual" and "a company." The government offers the proposed redactions to show how an agent would testify at trial regarding Tahir's statements. The AZ defendants argue that even with the redactions, Tahir's statements obviously refer to John and AZ and therefore are inadmissible at a joint trial.

Discussion

The Confrontation Clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. The admission of a non-testifying criminal defendant's confession against his or her co-defendant at a joint trial violates the Confrontation Clause. See Bruton, 391 U.S. at 126. This rule is not violated, however, if the government "replaces co-defendant names with neutral pronouns such that there is no obvious reference to the co-defendants" and the court instructs the jury that it can consider the confession only against the defendant who gave it. United States v. Sutton, 337 F.3d 792, 799 (7th Cir. 2003) (citing Gray v. Maryland, 523 U.S. 185, 196 (1998)). In determining whether a statement refers to a co-defendant so obviously that the statement's admission at trial would violatethe Confrontation Clause, the Seventh Circuit considers whether the redactions create a "one-to-one correspondence between the inserted terms and the co-defendants at issue." United States v. Hernandez, 330 F.3d 964, 973 (7th Cir. 2003); see also Sutton, 337 F.3d at 799-800; United States v. Hoover, 246 F.3d 1054, 1059 (7th Cir. 2001).

The Court concludes that the redacted statement, if admitted at a joint trial, would violate John and AZ's rights under the Confrontation Clause. The redactions hide these defendants' names, but one can easily determine their identities with only a cursory understanding of the case. The following passages are illustrative (the substituted references are in all-capitals and bold type):

West and Moore approached T. Ramin about a corruption scheme concerning the "bunkers and barriers" contract. The scheme was that A COMPANY would pay Moore and West an agreed upon amount of money. In turn, THAT COMPANY would not have to deliver a set amount of "bunkers or barriers" but Moore and West would make it look like THAT COMPANY fulfilled their end of the order. All of the BAF contractors knew about the ...


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