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United States v. George

United States District Court, E.D. Louisiana

September 4, 2019


         SECTION I

          ORDER & REASONS


         Before the Court are motions to sever filed by defendants Chukwudi Ofomata[1](“Ofomata”), Curtis Johnson, Jr.[2] (“Johnson”), and Lilbear George[3] (“George”) (together, the “capital defendants”), and by defendant Jeremy Esteves[4] (“Esteves”). Ofomata, Johnson, and George face the death penalty and move to sever both the guilt phase and penalty phase of their trials from those of their codefendants; each capital defendant seeks an individual trial for both phases. Esteves and defendant Robert Brumfield, III (“Brumfield”), [5] who are charged in the same counts as the capital defendants in the second superseding indictment[6] and do not face the death penalty, request severance from the capital defendants.[7]

         Ofomata, Johnson, George, and Esteves argue that they will suffer prejudice if the Court does not grant a severance. The capital defendants also contend that joint guilt phase and penalty phase hearings will compromise their right to an individualized determination of their guilt or innocence and the sentence they should receive. Because the capital defendants have moved to continue trial, Esteves asserts that a joint trial with the capital defendants will violate his constitutional and statutory rights to a speedy trial.[8] The government has filed opposition memoranda[9]to the defendants' severance motions, and the defendants have submitted replies.[10]

         On August 13, 2019, the Court held an in-chambers conference with counsel for all parties to discuss the pending motions.[11]

         For the following reasons, the capital defendants' motions for individual trials at the guilt phase and penalty phase of the proceedings are denied at this time, preserving their right to re-urge their motions at trial; Esteves's motion and Brumfield's request for severance from the capital defendants are granted.


         The defendants in this case have been charged in a four-count second superseding indictment[12] arising from an armored truck robbery and the murder of Hector Trochez (“Trochez”) that occurred on December 18, 2013. Three counts of the indictment charge Ofomata, Johnson, George, Brumfield, and Esteves with conspiring to obstruct, delay, and affect commerce by robbery (otherwise known as a Hobbs Act robbery); aiding and abetting one another to commit a Hobbs Act robbery; and aiding and abetting one another to knowingly use, carry, brandish, and discharge firearms during and in relation to crimes of violence and, in the course thereof, causing the death of Trochez through the use of firearms.[13] The fourth count charges George and Theophile with aiding and abetting each other to alter, destroy, mutilate, and conceal a cellular telephone with the intent to impair its integrity or availability for use in an official proceeding.[14]

         On August 31, 2018, the government filed notices of intent to seek the death penalty against George, Ofomata, and Johnson.[15]


         The federal judicial system manifests a preference for joint trials, as they “promote efficiency and ‘serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.'” Zafiro v. United States, 506 U.S. 534, 538 (1993) (quoting Richardson v. Marsh, 481 U.S. 200, 209 (1987)). Accordingly, “[i]t is the rule, not the exception, ‘that persons indicted together should be tried together, especially in conspiracy cases.'” United States v. Thomas, 627 F.3d 146, 156 (5th Cir. 2010) (quoting United States v. Pofahl, 990 F.2d 1456, 1483 (5th Cir. 1993)). Because joint trials enable the jury to “obtain[] a more complete view of all the acts underlying the charges, ” the jury may “arrive more reliably at its conclusions regarding the guilt or innocence of a particular defendant” and “assign fairly the respective responsibilities of each defendant in the sentencing.” Buchanan v. Kentucky, 483 U.S. 402, 418 (1987).

         However, when a joint trial would prejudice defendants properly joined under Rule 8(b) of the Federal Rules of Criminal Procedure, a district court may sever the defendants' trials pursuant to Federal Rule of Criminal Procedure 14(a).[16] “Generic allegations of prejudice will not suffice” as grounds for severance. United States v. Ledezma-Cepeda, 894 F.3d 686, 690 (5th Cir. 2018). Severance should be granted “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 determination about guilt or innocence.” Zafiro, 506 U.S. at 539.

         “[D]efendants are not entitled to severance merely because they may have a better chance of acquittal in separate trials.” Id. at 538. Instead, a defendant moving for severance bears the burden of showing that “specific and compelling prejudice, ” of a type against which the trial court cannot protect, would arise if the defendants are tried jointly. Thomas, 627 F.3d at 157 (quoting United States v. Lewis, 476 F.3d 369, 384 (5th Cir. 2007)). Separate trials may be necessary when the risk of prejudice is high, but “less drastic measures, such as limiting instructions, often will suffice to cure any risk of prejudice.” Id. (citing Richardson, 481 U.S. at 211). Defendants moving for severance “must identify specific instances of prejudice unremedied by limiting instructions.” Ledezma-Cepeda, 894 F.3d at 690. In conspiracy cases, the Fifth Circuit “generally favor[s] specific instructions over severance.” Id.

         Ofomata, Johnson, George, and Esteves object to a joint trial on multiple grounds. In their motions to sever, the capital defendants have identified three forms of potential prejudice that would arise in joint guilt phase and penalty phase hearings: (1) problematic Bruton issues that would violate their rights under the Confrontation Clause of the Sixth Amendment; (2) antagonistic defenses among the defendants; and (3) prejudicial spillover effects from evidence introduced against their codefendants. Esteves, who opposes the capital defendants' motions to continue trial, asserts that a joint trial with the capital defendants will violate his right to a speedy trial and his rights under the Confrontation Clause, as well as compromise his right to an individualized determination of his guilt or innocence.[17] The Court will address each of these challenges in turn.

         A. Bruton Violations and the Confrontation Clause


         The government has indicated that it intends to introduce statements allegedly made by some of the defendants that are self-incriminatory and, in some instances, also incriminate codefendants in the robbery and death of Trochez. Ofomata, Johnson, George, and Esteves argue that at a joint trial, the introduction of these statements would violate their rights under the Confrontation Clause, pursuant to Bruton v. United States, 391 U.S. 123 (1968). Specifically, these defendants object to statements that George allegedly made to confidential informants (“CIs”) after the offense occurred describing George's involvement and the involvement of his codefendants in the robbery and murder.[18] George has raised concerns regarding the introduction of statements allegedly made by his codefendants that incriminate him, although he acknowledges that none has been produced to date.[19]

         For the following reasons, based on the record as currently presented, it appears that George's alleged statements to the CIs will not implicate Bruton concerns at a joint trial. Therefore, the Court does not find, at this stage, that the defendants' Bruton concerns warrant a severance. However, the defendants may re-urge their Bruton arguments, if appropriate, at trial.

         The Confrontation Clause of the Sixth Amendment of the United States Constitution guarantees a criminal defendant the right to be confronted with the witnesses against him. U.S. Const. amend. VI. This right includes the opportunity to cross-examine the witness. Richardson, 481 U.S. at 206. In Bruton v. United States, the United States Supreme Court held that a defendant is deprived of his rights under the Confrontation Clause when the statements of a non-testifying codefendant naming the defendant as a participant in the crime are introduced at their joint trial. 391 U.S. at 125-26. These statements are inadmissible even if the jury is instructed to consider them only against the codefendant who made the statements. Id. at 137.

         The Bruton doctrine is limited to statements that expressly implicate the defendant through direct reference. United States v. Nanda, 867 F.3d 522, 527 (5th Cir. 2017), cert. denied, 138 S.Ct. 1578 (2018) (citing Richardson, 481 U.S. at 208). Under a “narrow exception” to Bruton, an inculpatory confession by a codefendant may be admissible at trial if it: (1) has been redacted to remove the defendant's name; (2) is not “incriminating on its face”; and (3) becomes incriminating “only when linked with evidence introduced later at trial.” United States v. Gibson, 875 F.3d 179, 194 (5th Cir. 2017) (citing Richardson, 481 U.S. at 207-08); see Gray v. Maryland, 523 U.S. 185, 195 (1998) (“Richardson placed outside the scope of Bruton's rule those statements that incriminate inferentially.”). However, merely substituting blank spaces or other deletions for references to the defendant is insufficient. The Supreme Court explained in Gray v. Maryland that redacted confessions are “facially incriminat[ing]” and violate Bruton if they include “statements that, despite redaction, obviously refer directly to someone, often obviously to [the defendant], and involve inferences that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial.” 523 U.S. at 196.

         Interpreting Richardson in the context of Bruton, the Fifth Circuit has explained that “[a]dmitting into evidence admissions of a non-testifying co-defendant that only implicate the defendant when added to other trial evidence is not a Bruton violation.” United States v. Dickerson, 909 F.3d 118, 126 (5th Cir. 2018). To guard against potential prejudice from the confession, the court should instruct the jury to consider the statement only against the declarant-codefendant. Richardson, 481 U.S. at 206.

         Significantly, Bruton's protective scope is limited to statements that are “testimonial” in nature. In Crawford v. Washington, the Supreme Court concluded that the Confrontation Clause only applies to “testimonial” statements; it does not bar the admission of out-of-court statements that are nontestimonial. 541 U.S. 36, 59 (2004); see Whorton v. Bockting, 549 U.S. 406, 412 (2007) (affirming that the Confrontation Clause does not apply to nontestimonial out-of-court statements); United States v. Delgado, 401 F.3d 290, 299 (5th Cir. 2005) (holding that Crawford is not applicable to nontestimonial hearsay statements). Testimonial statements are inadmissible when the declarant is unavailable to testify and the defendant has not had a prior opportunity for cross-examination. Crawford, 541 U.S. at 53-54. Accordingly, every circuit court of appeals that has considered the issue has concluded that the Bruton doctrine is limited to testimonial statements. Lucero v. Holland, 902 F.3d 979, 989 (9th Cir. 2018) (collecting cases); see United States v. Vasquez, 766 F.3d 373, 378-79 (5th Cir. 2014).

         While the Supreme Court left open the precise definition of a “testimonial” statement, the Court delineated that it includes, at a minimum, police interrogations and prior testimony at a preliminary hearing, grand jury, or trial. Crawford, 541 U.S. at 68 n.10.[20] Statements made to individuals who are not “principally charged with uncovering and prosecuting criminal behavior” are not “categorically outside the Sixth Amendment, ” but they are “significantly less likely to be testimonial than statements given to law enforcement officers.” Ohio v. Clark, 135 S.Ct. 2173, 2182 (2015). In all cases, “standard rules of hearsay, designed to identify some statements as reliable, will be relevant” to the testimonial inquiry. Michigan v. Bryant, 562 U.S. 344, 359 (2011).

         Statements are testimonial and, therefore, barred by the Confrontation Clause when their “primary purpose” is to “establish or prove past events potentially relevant to later criminal prosecution.” Davis v. Washington, 547 U.S. 813, 822 (2006). The “primary purpose” determination requires courts to “objectively evaluate the statements and actions of the parties to the encounter, in light of the circumstances in which the interrogation occurs.” Bryant, 562 U.S. at 370. If the purpose of an encounter was to “create a record for trial” or an “out-of-court substitute for trial testimony, ” the statements made in the context of the encounter are testimonial and thereby inadmissible pursuant to the Confrontation Clause. United States v. Polidore, 690 F.3d 705, 711 (5th Cir. 2012) (citing Bryant, 562 U.S. at 358- 59). “Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause.” Bryant, 562 U.S. at 359.


         The primary statements at issue are inculpatory statements allegedly made by George to CIs describing his role and the involvement of codefendants in the robbery and murder of Trochez.[21] According to the government, these statements were later relayed to FBI agents. The government has advised the Court that it intends to “offer certain admissions made to acquaintances by Lilbear George (and other co-defendants), which described the robbery and murder of Hector Trochez and implicated co-defendants.”[22] The defendants describe these statements as assertions by George that George committed the robbery, that “Pipe” (Esteves) was the driver of the vehicle that transported some of the defendants to and from the bank, [23] that “Chuck” (Ofomata) and “Blow” (Johnson) were involved in the robbery, and that Brumfield was “supposed to participate in the robbery but did not.”[24]

         According to the government, these statements were neither made directly to any law enforcement official nor the product of any interrogation or formal proceeding.[25] Instead, the government contends, they were “snippets of conversations between George and persons he knew.”[26] The government further asserts that it did not pre-arrange for the CIs to have these conversations with George and that FBI agents obtained the statements after George had spoken with the CIs. At an in-chambers conference, the government advised the Court that the CIs were not acting in coordination with the government when they spoke with George.[27] However, several defendants have raised concerns that the FBI had pre-existing relationships with the CIs before the CIs spoke with George.[28]

         Based on the record presented, it appears that the statements between George and the CIs are nontestimonial and, therefore, fall outside of the Bruton rule and the limiting bar of the Confrontation Clause as enunciated in Crawford. As the parties have represented to the Court, George made these statements to his acquaintances in an informal setting.[29] They do not appear to have been created for the purpose of “creat[ing] a record for trial” or serving as a substitute for in-court testimony. See Polidore, 690 F.3d at 711; Bryant, 562 U.S. at 358-59. The contention that the CIs later relayed George's confessions to law enforcement officers does not render them testimonial, as the original statements do not appear to have been made in the context or for the primary purpose of creating a record for use at trial. See Bryant, 562 U.S. at 370.[30] Accordingly, George's statements do not appear to run afoul of Bruton because they are not testimonial statements that would violate the defendants' rights under the Confrontation Clause.[31] See United States v. Dargan, 738 F.3d 643 (4th Cir. 2013) (“Our conclusion that [the codefendant's] statements were nontestimonial therefore suffices to dispatch [the defendant's] Bruton argument as well.”).

         The Bruton analysis, however, does not end the inquiry as to the admissibility of George's statements to the CIs. As previously stated, when the primary purpose of an out-of-court statement is nontestimonial, “the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause.” Clark, 135 S.Ct. at 2180 (quoting Bryant, 562 U.S. at 359).

         The government must establish a proper evidentiary foundation to support the admission of any such statements at trial. However, because it appears, based on the present record, that the alleged statements are nontestimonial and may, therefore, be admissible notwithstanding the Confrontation Clause, the introduction of these statements does not warrant a severance based on Bruton concerns at this time.[32]

         B. Antagonistic Defenses


         As an additional basis for severance, the capital defendants claim that their codefendants will present antagonistic defenses that will prejudice them at a joint trial and turn each codefendant into a “second prosecutor” of the others.[33] The Court is not yet convinced.

         For example, Johnson has indicated that he intends to present an alibi defense that may be undercut by George's statements to the CIs, if they are admitted, alleging Johnson's presence at the robbery.[34] Ofomata has claimed that George's statements implicating him in the offense would be “powerfully incriminating, ” particularly given the alleged absence of physical evidence linking Ofomata to the crime.[35] And George has raised concerns that his attempt to show that a codefendant, rather than George, shot and killed Trochez, will force the jury to “reject the defense of one or more co-defendants.”[36] Although the Court has not yet determined the admissibility of George's statements to the CIs, the Court finds that even if the statements are admitted, the alleged disparities between the anticipated defenses do not warrant severance.

         The Supreme Court has held that “[m]utually antagonistic defenses are not prejudicial per se, ” and it has refused to adopt a bright-line rule mandating severance when codefendants present defenses that conflict. Zafiro, 506 U.S. at 534, 538. To serve as a basis to compel severance, the joint defendants must demonstrate that the defenses are “so diametrically opposed that ‘the jury, in order to believe the core of testimony offered on behalf of [one] defendant, must necessarily disbelieve the testimony offered on behalf of his co-defendant.'” United States v. Daniels, 281 F.3d 168, 177 (5th Cir. 2002) (quoting United States v. Berkowitz, 662 F.2d 1127, 1134 (5th Cir. Unit B 1981)). Under this “stringent standard, ” the conflict must concern the “core or essence of a defense, not merely ‘minor or peripheral matters.'” Id.

         Even if such a conflict between defenses is present, the “public interest in judicial economy and the administration of justice” may outweigh the need for severance when the court gives limiting instructions to the jury to cure any risk of prejudice. Id. (citing Zafiro, 506 U.S. at 539). The court may remedy potential prejudice from codefendants' accusations against each other by instructing the jury that it must consider the evidence as to each defendant separately and individually and that each defendant is entitled to have his case determined by his own conduct and the evidence applicable to him. See Zafiro, 506 U.S. at 938; United States v. Warren, 728 Fed.Appx. 249, 256 (5th Cir. 2018), cert. denied sub nom. Thi Houng Le v. United States, 139 S.Ct. 158 (2018).


         Based on the present record, the Court finds that the capital defendants' claims of mutually antagonistic defenses do not rise to the level of an irreconcilable conflict that would compel severance. While the capital defendants may present conflicting accounts of their involvement (or lack thereof) in the offense, the jury may believe some, all, or none of them. Although Ofomata contends that the government will portray him as the shooter who killed Trochez, [37] the government has indicated that it intends to prove that all three capital defendants fired their weapons at Trochez and are equally culpable.[38]

         Unlike other cases in which a court granted a severance based on irreconcilable defenses, each capital defendant here may claim his innocence without mandating the conviction of a codefendant. The capital defendants cite United States v. Green to support their antagonistic defense argument, but the circumstances of that case are distinguishable. 324 F.Supp.2d 311 (D. Mass. 2004).

         In Green, the district court severed the trials of two capital codefendants because ballistics evidence suggested that there was only one shooter who committed a murder in aid of racketeering, creating a “zero sum game” among the codefendants' mutually exclusive defenses that the other man committed the crime. Id. at 324. By contrast, here, the government alleges that all three capital defendants shot at Trochez and have equal degrees of culpability.[39] Based on these circumstances, the jury in this case need not disbelieve the core of one defendant's defense in order to believe the core of a codefendant's defense.[40]

         The capital defendants in this case have also failed to specifically identify the irreconcilable and mutually exclusive nature of their anticipated defenses. “[V]ague and conclusory allegations” of conflicting defense theories are insufficient to support a motion to sever. Daniels, 281 F.3d at 178. For example, courts have found that an alibi defense, even if it may be antagonistic to some degree, does not warrant a severance when it is not irreconcilable or mutually exclusive with codefendants' defenses. See Collins v. Runnels, 603 F.3d 1127, 1129 (9th Cir. 2010); Campbell v. Ward, 315 Fed.Appx. 82, 86 (10th Cir. 2009); United States v. Carter, 760 F.2d 1568, 1575-76 (11th Cir. 1985).

         Here, the capital defendants have only presented general allegations of conflicting defenses without specifying how the jury's acceptance of one defense precludes the possibility of acquittal of a codefendant.[41] Therefore, at this stage of the proceedings, the Court finds that severance on this basis is not warranted.

         C. Spillover Prejudice


         The defendants also argue that a joint trial will result in prejudicial “spillover effects” from evidence introduced against their codefendants. Ofomata claims, contradicted by the government, that the only direct evidence the government has against him consists of the alleged statements by George to CIs implicating Ofomata in the robbery and murder, [42] and that any other evidence presented against his codefendants will lead the jury to infer “guilt by association.”[43] Esteves also asserts that the introduction of evidence against his codefendants, compared to the relative scarcity of evidence against him, will prejudice him at a joint trial.[44] Johnson raises a similar argument, contending that evidence of the criminal histories of George and Ofomata, as well as evidence of his codefendants' alleged involvement in the crime, will taint the jury's determination of Johnson's guilt or innocence and the sentence he should receive.[45] In addition to raising analogous arguments to ...

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