U.S. v. Cuong Gia Le

• Decision Date: 23 April 2004
• Docket Number: No. CRIM. 03-48-A.,CRIM. 03-48-A.
• Citation: 316 F.Supp.2d 330
• Parties: UNITED STATES of America v. CUONG GIA LE, et al.
• Court: U.S. District Court — Eastern District of Virginia

316 F.Supp.2d 330

UNITED STATES of America v. CUONG GIA LE, et al.

No. CRIM. 03-48-A.

United States District Court, E.D. Virginia. Alexandria Division.

April 23, 2004.

James Trump, Assistant United States Attorney, United States Attorney's Office, Alexandria, VA, for U.S.

Frank Salvato, Alexandria, VA, James Goodman Connell, III, Devine & Connell PLC, Fairfax, VA, for Cuong Gia Le.

Marvin D. Miller, Alexandria, VA, for Loc Tien Nguyen.

Dale W. Dover, Alexandria, VA, for Phu Van Ho.

Larry C. Brown, Jr., Alexandria, VA, for Vu Hoang Nguyen.

MEMORANDUM OPINION

ELLIS, District Judge.

At issue in this multi-count RICO prosecution of the four remaining co-defendants¹ in this matter is whether severance is required under various theories offered by defendants. More specifically, Cuong Gia Le, the only capital defendant in this case, has moved to sever his trial on three grounds: (1) that the introduction of the out-of-court statements of Vu Hoang Nguyen (a.k.a. Vincent) and Loc Tien Nguyen violates his Sixth Amendment right to confront the witnesses against him, based on Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and its progeny; (2) that a joint trial of a capital defendant with noncapital co-defendants violates Le's Eighth Amendment rights; and (3) that a joint trial violates Le's Fifth Amendment right to notice of the basis for seeking the death penalty. Phu Van Ho has moved to sever his trial on the ground that the introduction of Loc Tien Nguyen's out-of-court statement violates his Sixth Amendment right under Bruton. Finally, Loc Tien Nguyen moves for severance on five grounds: (1) Bruton; (2) the theory that his joint trial with a capital defendant violates his Sixth Amendment right to a fair trial because a "death-qualified" jury will be empaneled; (3) conflicting defense theories; (4) disparities in the degree of involvement of co-defendants; and (5) his right to a speedy trial.

For the reasons stated below, severance is not required under Bruton or any of the other theories offered by defendants; and their trials may, and appropriately should, proceed jointly.

I.

For a description of the charges and allegations in this matter, see United States v. Cuong Gia Le et al., 310 F.Supp.2d 763 (E.D.Va.2004).² A brief summary suffices here.

In brief, the government alleges that the four remaining defendants — Cuong Gia Le, Loc Tien Nguyen, Phu Van Ho, and Vu Hoang Nguyen — are active members of a criminal enterprise or gang known as the "Oriental Playboys" or "OPB." According to the government, the defendants and other OPB members used this enterprise to commit various crimes, including burglary, drug distribution, credit card fraud, murder, assault, robbery, and firearms violations in Virginia, Maryland, and elsewhere between August 2000 and July 2003, all for purposes of enriching OPB members and enhancing the power, status, and position of OPB among criminal youth gangs. Le is the only defendant charged with any capital offenses. In this respect, Le is charged with two counts of murder in aid of racketeering activity in violation of 18 U.S.C. § 1959(a)(1) and two counts of murder in the course of a firearms offense in violation of 18 U.S.C. § 924(c)(1) and 924(j). These charges relate to a shooting at the Majestic Restaurant in Falls Church, Virginia on May 13, 2001, which resulted in the death of two individuals.

II.³

Rule 8(b), Fed.R.Crim.P., provides that "[t]wo or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction." As a general matter, "[t]here is a preference in the federal system for joint trials of defendants who are indicted together." Zafiro v. United States, 506 U.S. 534, 537, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). This preference is both understandable and wise for joint trials "promote efficiency and `serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.'" United States v. Hayden, 85 F.3d 153, 160 (4th Cir.1996) (citing Zafiro, 506 U.S. at 537, 113 S.Ct. 933). Nonetheless, there are situations where the interests promoted by joint trials are outweighed by prejudice either to a defendant or the government. Rule 14, Fed.R.Crim.P., recognizes this fact and provides:

If it appears that a defendant or the government is prejudiced by a joinder of ... defendants ... for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires.

The Supreme Court has made clear that "when defendants properly have been joined under Rule 8(b), a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants or prevent the jury from making a reliable judgment about guilt or innocence." Zafiro, 506 U.S. at 539, 113 S.Ct. 933 (emphasis added). In situations where the risk of prejudice is high, separate trials may be necessary, but "less drastic measures, such as limiting instructions, often will suffice to cure any risk of prejudice." Id.; Hayden, 85 F.3d at 160 ("There mere showing of prejudice is not enough to require severance. Rather, tailoring of relief, if any, for any potential prejudice resulting from a joint trial is left to the district court's sound discretion.") (emphasis added and internal citation omitted).

The question of severance of jointly-indicted defendants often arises where a statement of a non-testifying defendant inculpates a co-defendant. These circumstances implicate a criminal defendant's right to confront the witnesses against him, guaranteed by the Sixth Amendment, which is without doubt a specific and important trial right. See Bruton v. United States, 391 U.S. 123, 126, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); see also Crawford v. Washington, ___ U.S. ___, ___, 124 S.Ct. 1354, 1359, 158 L.Ed.2d 177, ___ (2004) (noting that the Sixth Amendment's Confrontation Clause is a "bedrock procedural guarantee [that] applies to both federal and state prosecutions"). And, it is clear that "[t]he right of confrontation includes the right to cross-examine witnesses." Richardson v. Marsh, 481 U.S. 200, 206, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). As a result, "where two defendants are tried jointly, the pretrial confession of one cannot be admitted against the other unless the confessing defendant takes the stand." Id. In most situations, "a witness whose testimony is introduced at a joint trial is not considered to be a witness `against' a defendant if the jury is instructed to consider that testimony only against a codefendant." Id. The Supreme Court's decision in Bruton, however, recognized an exception to this general principle, holding that a defendant is deprived of his Sixth Amendment right of confrontation when the facially incriminating confession of a non-testifying co-defendant is introduced at their joint trial, even if the jury is instructed to consider the confession only against the co-defendant. Bruton, 391 U.S. at 126, 88 S.Ct. 1620. Bruton's important holding, however, does not automatically require severance in order to avoid this type of Sixth Amendment violation. Indeed, the Supreme Court after Bruton, held in Richardson v. Marsh that the admission of a defendant's confession, accompanied by a limiting instruction, does not violate a co-defendant's confrontation right if "the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence." 481 U.S. at 208-11, 107 S.Ct. 1702. This is so even when other evidence properly admitted at trial otherwise links the co-defendant to the statement. Id.

Richardson left open, however, whether a statement is admissible under Bruton where it is redacted such that the co-defendant's name is replaced with a neutral pronoun. The Supreme Court addressed one aspect of this question in Gray v. Maryland, where it held that a statement that has been redacted to replace the co-defendant's name "with an obvious blank, the word `delete,' a symbol, or similarly notif[ies] the jury that a name has been deleted," such that it is nonetheless "facially incriminatory" and "directly accusatory," comes within the Bruton rule and is inadmissible. 523 U.S. 185, 193-95, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998). Fourth Circuit authority interpreting Bruton, Richardson, and Gray, however, goes one step further and makes clear "that a defendant's statements are admissible if the co-defendant's name is redacted and replaced with a neutral pronoun or phrase such as `person' or `individual,' or even `friend,' `partner,' `associate,' or `client,' provided there is reasonable assurance that use of such a neutral phrase does not result in a statement that is `directly accusatory' or `facially incriminatory' in the same manner as an unredacted or unrevised statement." United States v. Smallwood, 307 F.Supp.2d 784, 789 (E.D.Va.2004); id. at n. 9 (listing Fourth Circuit cases). Moreover, the Fourth Circuit has also held that "a statement redacted such that a co-defendant's name is replaced by `a symbol or neutral pronoun' is admissible under Bruton provided it is not facially incriminatory and thus is admissible, `even though the statement's application to [the co-defendant] is linked up by other evidence properly admitted against the defendant." Id. at 789 & n. 10 (citing Fourth Circuit cases).

When these principles are applied here, it becomes clear that both Vu Hoang Nguyen's (a.k.a. Vincent) and Loc Tien Nguyen's out-of-court statements may be redacted so as to remedy any potential Sixth Amendment violation, and thus render unnecessary either severance or exclusion of these statements.

The government seeks to introduce portions of the statement of Vu Hoang Nguyen through the testimony of law enforcement officials. This statement, as memorialized in an FBI...