F. Richard Curtner
Assistant Federal Defender
FEDERAL PUBLIC DEFENDER
510 L Street, Suite 400
Anchorage, AK 99501
(907) 271-2277
Attorney for Defendant
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA, ) CASE NO. xxxxxxxxxxxxx
)
Plaintiff, )
xxxxxxxxxxxxxxxxx
vs. ) MOTION TO FILE UNDER SEAL
) RE: MOTION TO COMPEL
xxxxxxxxxxxxxxxxxxxx, ) REDACTION OF CO-DEFENDANT
) xxxxxxxxxxxx STATEMENTS
Defendant. )
__________________________________________)
COMES NOWxxxxxxxxxxxxxx., by and through his counsel, F. Richard Curtner, Assistant Federal Public Defender, and moves this court for an order sealing his Motion to Compel Redaction of Co-Defendant xxxxxxxxxxxx Statements, as well as all Memoranda and Attachments in support of or against such motion. This Motion is made pursuant to Local Criminal Rule 4(1), which allows the court, in its discretion, to close a pretrial proceeding, in whole or in part, on the ground that:
/ / / / /
(1) there is a reasonable likelihood that the dissemination of information disclosed at such proceeding would impair the defendant's right to a fair trial; and
(2) reasonable alternatives to closure will not adequately protect defendant's right to a fair trial.
The Motion to Compel Redaction of Co-Defendant xxxxxxxx Statements necessarily contains previously undisclosed information that, if made public, would impair Mr. xxxxxxxx right to a fair trial.
Excludable Delay: Excludable delay under 18 U.S.C. § 3161(h) will not occur as a result of this motion.
DATED at Anchorage, Alaska this 1st day of September, 1993.
____________________________________
F. Richard Curtner
Assistant Federal Public Defender
F. Richard Curtner
Assistant Federal Defender
FEDERAL PUBLIC DEFENDER
510 L Street, Suite 400
Anchorage, AK 99501
(907) 271-2277
Attorney for Defendant
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA, ) CASE NO.
)
Plaintiff, ) xxxxxxxxxxxxxx MOTION
) TO COMPEL REDACTION OF
vs. ) CO-DEFENDANT xxxxxxxxxxx
) STATEMENTS
xxxxxxxxxxx, ) (THIS MOTION IS BEING
) FILED CONCURRENTLY WITH Defendant. ) MOTION TO FILE UNDER SEAL)
____________________________________)
COMES NOW xxxxxxxxxx by and through his counsel, F. Richard Curtner, Assistant Federal Public Defender, and moves this court in the alternative, in the event that the court denies Mr. xxxxxxxxxx pending Motion for Severance, for an order compelling the government to redact from any and all extrajudicial statements made by Joseph xxxxx which the government seeks to introduce at trial all references to the name and existence of xxxxxxxxxx in the context of these statements.
/ / / / /
Excludable Delay: Excludable delay under 18 U.S.C. § 3161(h) will not occur as a result of this motion.
DATED at Anchorage, Alaska this 1st day of September, 1993.
____________________________________
F. Richard Curtner
Assistant Federal Public Defender
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA, ) CASE NO. xxxxxxxxxxxxxx
)
Plaintiff, )
)
vs. )
)
xxxxxxxxxxxxxx, )
)
Defendant. )
__________________________________________)
ORDER
(Granting Motion to Compel Redaction)
Upon consideration of xxxxxxxxxxxx Motion to Compel Redaction of Co-Defendant xxxxxxxxxxxxxxx Statements, of the Memorandum in Support thereof, of any Opposition thereto, and of any Reply thereto, and after hearing, it is hereby
ORDERED that the Motion be, and hereby is, GRANTED; and it is
FURTHER ORDERED that the government shall, if it seeks to introduce any extrajudicial statements made by Joseph xxxxx, prepare redacted versions of those statements which delete all references to the name and existence of Raymond xxxxxxx, and it is
FURTHER ORDERED that the proposed redactions shall be provided by the United States to the defense not less than 30 days prior to trial so that the defense has an opportunity to raise, if necessary, any issues concerning the government's compliance with this Order; and it is
FURTHER ORDERED that the government shall advise all of its witnesses of the nature and extent of this Order, and specifically advise witnesses testifying in connection with co-defendant's statements that they may not refer to the name or existence of Raymond D. xxxxxxx in narrating such alleged statements.
ENTERED at Anchorage, Alaska this ______ day of __________________, 1993.
_________________________________________
UNITED STATES DISTRICT COURT JUDGE
F. Richard Curtner
Assistant Federal Defender
FEDERAL PUBLIC DEFENDER
510 L Street, Suite 400
Anchorage, AK 99501
(907) 271-2277
Attorney for Defendant
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA, ) CASE NO.
)
Plaintiff, ) MEMORANDUM IN SUPPORT OF
) DEFENDANT RAYMOND xxxxxxx'S
vs. ) MOTION TO COMPEL REDACTION
) OF CO-DEFENDANT JOSEPH xxxxx'S RAYMOND D. xxxxxxx, ) STATEMENTS
)
Defendant. )
____________________________________)
Raymond xxxxxxx has filed a motion for an order severing his case for trial from that of co-defendant Joseph xxxxx. That motion is based in part on the existence of extrajudicial statements of Joseph xxxxx which incriminate Raymond xxxxxxx. In the event that severance is denied, Mr. xxxxxxx moves for an order to compel redaction of all extrajudicial statements of Joseph xxxxx to omit and delete all reference to Mr. xxxxxxx's name and existence.
In Bruton v. United States, 391 U.S. 123 (1968), the United States Supreme Court recognized that the Sixth Amendment's guarantee of confrontation generally precludes the admission in a joint trial of a non-testifying co-defendant's statements to the extent that those statements incriminate the defendant.
In Richardson v. Marsh, 481 U.S. 200 (1987), the United States Supreme Court recognized an exception to the Bruton rule. The Court approved a joint trial in which a non-testifying co-defendant's confession was admitted with a limiting instruction, curtailing jury use to the co-defendant, "when, as here, the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence." 481 U.S. at 211.
The Ninth Circuit has found a violation of the Confrontation Clause where a redaction removes only the defendant's name, and not all references to his existence or purported role. In United States v. Sherlock, 962 F.2d 1349, 1361-62 (9th Cir. 1989), the court recognized that prosecutorial argument which combines redacted statements with other evidence to use a co-defendant's statements as evidence against the defendant undermines the "fundamental concepts of justice."
Therefore, Defendant xxxxxxx respectfully requests that if the government seeks to admit any extrajudicial statements made by Joseph xxxxx, those statements must be redacted to delete all references to Mr. xxxxxxx's name and existence, and all witnesses should be instructed to not refer to Mr. xxxxxxx concerning said statements while testifying.
Respectfully submitted this 1st day of September, 1993 at Anchorage, Alaska.
_________________________________
F. Richard Curtner
Assistant Federal Public Defender
F. Richard Curtner
Assistant Federal Defender
FEDERAL PUBLIC DEFENDER
510 L Street, Suite 400
Anchorage, AK 99501
(907) 271-2277
Attorney for Defendant
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA, ) CASE NO. xxxxxxxxxxxxxx
)
Plaintiff, )
) RAYMOND D. xxxxxxx'S
vs. ) MOTION TO FILE UNDER SEAL
) RE: MOTION TO COMPEL
RAYMOND D. xxxxxxx, ) REDACTION OF CO-DEFENDANT
) JOSEPH xxxxx'S STATEMENTS
Defendant. )
__________________________________________)
DATED at Anchorage, Alaska this 1st day of September, 1993.
____________________________________
F. Richard Curtner
Assistant Federal Public Defender
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