ORDER MOTION FOR RELIEF FROM PREJUDICIAL JOINDER OF DEFENDANTS FOR TRIAL -#389
GEORGE FOLEY, JR. United States Magistrate Judge
This matter is before the Court on Defendant Leon Benzer’s Motion for Relief from Prejudicial Joinder of Defendants for Trial (#389), filed on November 3, 2014. The Government filed its Opposition (#407) on November 20, 2014. Defendant Benzer filed his Reply (#421) on November 25, 2014. The Court conducted a hearing in this matter on December 15, 2014.
The Court has set forth the factual background of this case in Order (#432) denying Co-Defendant Keith Gregory’s motion to sever. In his motion for relief from prejudicial joinder, Defendant Benzer argues that his Sixth Amendment right to confront the witnesses against him will be violated if the Government introduces at trial statements made by non-testifying co-defendants that implicate Defendant Benzer. Although not explicitly requesting severance, Defendant Benzer states that the Government should be required to identify which co-defendant statements it intends to use at trial so that the court can determine whether Defendant Benzer’s confrontation rights will be compromised by the joint trial of the defendants.
Defendant Benzer argues that the Government’s introduction of the following co-defendant statements will violate his confrontation rights:
1. Edith Gillespie and Charles McChesney
Defendant Benzer asserts that the Government intends to introduce recorded statements made by Co-Defendants Edith Gillespie and Charles McChesney to undercover informants. Defendant Benzer indicates that the statements inculpate him on a number of details of the allegations in the indictment.
2. Rudolfo Ruvolo and David Ball
Defendant Benzer states that Co-Defendants Rudolfo Ruvolo and David Ball provided the Government with statements and admissions which inculpated themselves and inculpated Benzer.
3. Keith Gregory
Defendant Benzer states that the Government should be required to provide the statements, calendar entries, and written documents signed by Defendant Gregory, all of which may constitute inculpatory evidence against Benzer, so that a Confrontation Clause analysis can be performed. Defendant Benzer further states: “In the case of Benzer’s former attorney, should the government seek to establish a time line through the use of records seized from Gregory’s office, those records constitute statements of Gregory, which cannot be introduced as admissions of Gregory absent an opportunity to cross-examine on the part of Benzer.” Motion (#389), pgs. 2-3.
The Government argues that statements made by Ms. Gillespie and Mr. McChesney to undercover informants are “nontestimonial” and therefore their introduction at trial will not violate Defendant Benzer’s Sixth Amendment right to confront and cross-examine the witnesses against him. The Government identified by page and line numbers those portions of the transcripts of Ms. Gillespie’s and Mr. McChesney’s statements that it plans to introduce at trial. The Government has since provided copies of the transcripts to Defendants’ counsel which mark those portions of the statements that the Government intends to use at trial. The Government does not intend to introduce statements made by Co-Defendants Ruvolo and Ball to law enforcement officers in its case in chief, but reserves the right to impeach Ruvolo or Ball with their statements if they testify. Because Mr. Ruvolo’s and Mr. Ball’s statements will only be used if they testify at trial, the Government states that no Bruton issue will be present. The Government argues that the alleged statements of Co-Defendant Keith Gregory cited in Defendant Benzer’s motion are nontestimonial statements that are not within the scope of the Confrontation Clause. It also argues that Defendant Gregory’s “statements” were made in furtherance of the conspiracy and are therefore admissible against all of the alleged conspirators under Fed.R.Evid. 801(d)(2)(E).
Rule 8(b) of the Federal Rules of Criminal Procedure permits the joinder of defendants who have allegedly participated in the same act or transaction or the same series of acts or transactions constituting an offense or offenses. Co-defendants jointly charged are, prima facie, to be jointly tried. United States v. Mariscal, 939 F.2d 884, 885 (9th Cir. 1991). This rule “should be construed broadly in favor of initial joinder.” United States v. Ford, 632 F.2d 1354, 1373 (9th Cir.), cert. denied, 450 U.S. 934, 101 S.Ct. 1399 (1981). Rule 14(a) states, however, that if joinder of offenses or defendants for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants’ trials or provide any other relief that ...