Courthouse Steps Oral Argument Combo: Smith v. United States & Samia v. United States -Cases on Criminal Law Procedure

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Chayila Kleist:  Hello, and welcome to The Federalist Society’s webinar call. Today, March 29, 2023, we host a combination post-oral argument “Courthouse Steps” on Smith v. United States, which was argued yesterday before the Court, and Samia v. United States, which had oral argument earlier today—two cases related to criminal law and procedure.

 

      My name is Chayila Kleist, and I’m an Assistant Director of Practice Groups here at The Federalist Society. As always, please note the expressions of opinion are those of the expert on today’s call, as The Federalist Society takes no position on particular legal or public policy issues.

 

      Now, in the interest of time, I’ll keep my introduction of our speaker brief, but if you’d like to know more about him, you are welcome to access his impressive full bio at fedsoc.org.

 

      Today, we are fortunate to have with us Robert McBride, who is a Partner-in-Charge of the Kentucky office of Taft Stettinius and Hollister. Prior to his time there, Mr. McBride was an Assistant United States Attorney in the Eastern District of Kentucky for over 15 years. As an AUSA, Mr. McBride first chaired criminal jury trials in the U.S. District Court and handled appeals before the Sixth Circuit Court of Appeals. Additionally, he was the District’s National Security Prosecutor and the Anti-Terrorism Advisory Council Coordinator. During his tenure as an AUSA, Mr. McBride also held several leadership positions. In 2006, he was assigned as the manager of the London Branch Office. Shortly thereafter, he was promoted to Criminal Chief and served in that position until January 2010. And more recently, he was the supervisor on the Fort Mitchell branch office, where he handled a number of high-profile investigations and prosecutions.

 

      Mr. McBride also served the United States Navy Judges Advocate General Corps for over ten years. His major assignments included Senior Prosecutor on the island of Guam, Officer-in-Charge of a Detachment in New Orleans, focusing on criminal defense, and the Staff Judge Advocate, Recruit Training Command. I’ll leave it there.

 

      A couple logistical notes before we get started. If you’ve attended one of our Courthouse Steps webinars before, you know we have a general format of an opening statement by our speaker, followed by Q&A. In this instance, as we’re covering two cases with two separate issues in one program, we’ll do two mini “Courthouse Steps,” covering each case in turn, starting with Smith and moving to Samia. We will then turn to audience Q&A at the end and welcome questions on both cases. 

 

      To that end, if you have any questions throughout the webinar, please submit them via the questions and answer feature and, if possible, indicate which case they relate to so that we’ll have access to them when we get to that portion of today’s webinar. With that, I’ll be quiet so we can get to the substance of today’s program. Thank you all for being with us today. Mr. McBride, the floor is yours.

 

Robert McBride:  Thank you, Chayila. I appreciate the kind introduction. So what we’re going to talk about -- first, Timothy Smith v. United States and then M. Samia v. United States—both are criminal cases. One deals with venue, and one deals with Burton issue. Let me start with a question presented in Smith, and then I’ll talk a little bit about the facts and a procedural history and then what happened before the Court the other day.

 

      So before the Court was the issue of what was the proper remedy from the government’s failure to prove venue in an acquittal, barring re-prosecution, or whether the government may retry the same offense in a different or a more proper venue?

 

      So the facts here are fairly straightforward. Timothy Smith was a software engineer and an avid fisherman who lived in Mobile, Alabama. Mobile happens to be in the Southern District of Alabama. Mr. Smith was buying data from a company called StrikeLines, which sold information over the internet for locations of hot fishing spots that they had identified and were used and bought by fishermen all over the world. StrikeLines’ headquarters is in Pensacola, and Pensacola is in the Northern District of Florida, however, its computers were in Orlando, which happens to be in the Middle District of Florida.

 

      What Smith did was he hacked into StrikeLines’ computers and stole their proprietary fishing data and then posted it on the internet that he had the data and asked people to message him if they wanted access to it. He then turned around and tried to extort StrikeLines for other types of data similar to that, which were for hotspots for diving that StrikeLines held. In exchange for that, Mr. Smith promised that he would not invade their computers, not sell their information over the internet, and show them how to patch up their system so they won’t have these intrusions again. Eventually, StrikeLines called the police, and Mr. Smith was indicted.

 

      He was indicted in the Northern District of Florida, and he was charged with three counts. One was a violation of 18 U.S.C. 1030, which is intrusion into a computer; 18 U.S.C. 832, which is theft of trade secrets; and 18 U.S.C. 875(b), which is making threats over interstate commerce. At trial, the defendant challenged venue for the threats and stealing trade secrets. He argued that proper -- that venue was not proper because he was either operating from the Middle District of Florida or Orlando, both not the districts in which the counts -- the case was being tried.

 

      The jury instructions, interestingly, required the jury to find that the government had established proper venue, otherwise they had to find the defendant not guilty. He was found not guilty on the computer intrusion fraud under 18 U.S.C. 1030 and guilty on the trade secrets and the threats in interstate commerce. He took it up to the Eleventh Circuit, and the Eleventh overturned on the theft for improper venue and sent it back for retrial.

 

      At issue was, essentially, what is the proper remedy, in this circumstance, when the case goes back by the appellate courts for retrial? According to Mr. Smith, the proper result should, in fact, be an acquittal or a determination that he cannot be retried, based on the government’s failure to prove the element of venue. The government, of course, responds that retrial is the proper remedy—it’s the historic remedy—and that because the case is coming up through the appellate court, double jeopardy is not implicated, as it is still the same case. 

 

      So there was an interesting argument before the Supreme Court—and in my assessment, I think the Court was a little hotter with the petitioner than they were with the government. Justice Thomas started out with a typical, straightforward question, which was, “Except for a speedy trial and insufficiency of the evidence, what other constitutional errors require anything but sending the case back for retrial?” And there really weren’t any answers for that.

 

      But what I find is quite interesting is Justice Jackson was quite forceful in her inquiry into why venue is such a violation, that barring trial, retrial was appropriate. She really pushed down to the point of, “Okay. Aren’t you really saying that we have to elevate venue to have the same level of importance as an element of the offense?” Of course, an element of any offense has to be proven beyond a reasonable doubt. The petitioner attempted to equate venue to the elements of the offense but had to concede that while an element of the offense has to be proved beyond a reasonable doubt, venue does not. And both the Court and the petitioner seemed to be somewhat unclear about what level of proof venue required. And in fact, the petitioner had to concede that it isn’t always an issue in trials—which is true.

 

      So the petitioner tried to weave between a double-jeopardy argument and a historical-venue argument that venue was, in fact, a jurisdictional issue, historically, in our purest jurisprudence, but also, there are components of double jeopardy. And I don’t think the Court was really buying that. With regard to the government, I think they had a much easier time here because this is a traditional remedy. Double jeopardy was not seemingly implicated by the questions that the judges had -- the justices had for the government. And then I think, overall, it’s going to be difficult for the petitioner to prevail. Even some of the government’s historical information was in their favor.

 

      For instance, they cited a case, Rex v. Welsh, a British case in which a man committed offenses in London but was tried in Southwark; he was on appeal, overturned the conviction. He was taken back to London, retried in London, and convicted in the appropriate venue. So it was a historical precedent. I think the government probably had the strongest argument there. If I had to guess, I would think that the government is going to prevail here.

 

      Let me move on to Samia. Here, the issue is, “In what context should a non-testifying co-conspirator’s statement be Brutonized?” Should the test be within the context of the evidence of the trial and other obvious factors, like the number of the defendants, or should we use the four corners test that is currently in use in many districts, which essentially means, you look at the documents for its -- in and of itself—much like you might in an affidavit in a search warrant—and determine whether or not the document immediately implicates the co-conspirator whose statement is not being admitted into the trial.

 

      So this case is kind of interesting in a factual basis. Samia worked for a man named Paul Le Roux. Le Roux was the head of a transnational criminal organization. They conducted drug trafficking and violent acts, money laundering, and in order to support this organization, Mr. Le Roux had what he called “teams of mercenaries.” Samia got involved in this organization in 2008 as a mercenary and, at one point, expressed an interest in acting as an assassin.

 

      Le Roux directed a man named Joseph Hunter to assemble a kill team to assassinate a woman named Lee. Lee was a real estate broker in the Philippines, and Le Roux felt she had cheated him out of quite a bit of money. So Samia and others assassinated Lee with a man named Hunter. Hunter later told other members of the organization about the murder and ended up doing so in a secret meeting in Thailand, where he was being recorded by American law enforcement.

 

      He was then arrested in [2012] and became a confidential witness for the DEA and was then arrested in 2013. The petitioner and Stillwell were arrested in 2015. Stillwell waived his rights and made a confessional statement. In 2017, the indictment was handed down, and the petitioner and Stillwell were charged with murder for hire under [18 U.S.C. 1958], conspiracy to commit murder for hire, conspiracy to commit murder, and a kidnap in another country, carry and use a firearm in relationship to a murder, conspiracy to launder -- and conspiracy to launder money, although Stillwell wasn’t charged with this last count. Le Roux pleaded guilty, and the petitioner, Stillwell, and Hunter all went to trial.

 

      So the issue was whether the Brutonized statement was sufficient. As a basic pretext to the law here, Bruton says that a confessional statement of one co-defendant that implicates a non-testifying co-defendant violates the Confrontation Clause, even with the jury instruction. There have been cases since then that essentially say, “A properly redacted confessional statement that does not on itself or immediately identify the co-defendant is not a violation of the Confrontation Clause and may be admitted.”    

 

      So when we get to the Supreme Court argument, the petitioner is arguing, in essence, that the Brutonized statement must be evaluated by the Court within the context of the evidence available to the government in other circumstances. In particular, what was important to the Court was the example where there were simply two defendants on the case. And they went through a number of iterations of a hypothetical, where a statement was made and entered by the government by a non-testifying co-defendant, where it was quite obvious—despite the fact that the redacted statement did not directly identify the co-defendant -- where you’ve only got one other defendant -- it seems pretty obvious on its face, from the hypothetical, that the co-defendant was being implicated.

 

      Well, let me talk a little bit about some of the questions from the Court. So what I thought was quite interesting was the proposed rule that seemed to be coming out -- the Court seemed to be refining and that Justice Coney Barrett essentially asked that, “Isn’t a proposed rule to apply only where there are two defendants with non-testifying co-defendants?” In other words, part of the asking for an absolute ban on that because that does seem to be the most relevant circumstance in which the implication that the statement incriminates the other co-defendant would take place, whether it was, “I committed the crime with her,” or, “I committed a crime with one other person," or, “I committed the crime with -- even by myself,” may implicate the other singular co-defendant that is sitting there.

 

      So the line of questioning essentially started to get down to, “Well, is it ever possible to have a Brutonized statement appropriately?” The petitioner’s position was that, “Yes”—interestingly—“Yes.” They’re not asking for Burton to be overturned but rather that this means of doing it within the context of the evidence and the circumstances surrounding the indictment. That kind of Brutonized statement is more -- is much less likely to implicate the Confrontation Clause than simply looking at the four corners of the document. And, of course, there are other remedies the government could use, which is not use the statement at all, further delineation of the Brutonized statement—sanitize it even more—sever the trial so you have two defendants, and even sometimes can have two simultaneous juries that hear the different [inaudible 17:44]—which, actually, I’ve seen used in these kinds of circumstances, occasionally.

 

      The government’s position was, well, I think somewhat weaker. So the government essentially said, “We look at the four corners, judge. If it’s properly done, it isn’t going to implicate the Confrontation Clause; it isn’t going to, on its face, be immediately incriminating to the defendant.” But I think, here, the government got more pushback because even during the argument, the government lawyer had to concede, “Yes. While we look at the document, the four corners of the statement itself, there are going to be other circumstances that the government may emphasize the judge should take into consideration when Brutonizing the statement.”

 

      So if I had to make a call on this, I think that the petitioner may prevail here. In my own experience working with judges, they will think about the case in general. In fact, they almost have to when they’re Brutonizing a statement or accepting a Brutonized statement by the government. And I think that’s particularly true when you only have two co-defendants sitting at the table. The jury’s naturally going to think, “Well, this person has to be here for something.” And where you have such an immediate impression of guilt of the other co-defendant, the court generally feels that a jury instruction isn’t going to cure that issue. I’d be surprised if there’s a special rule for two-defendant jurors, but I think there may be a little more carving out of -- a little expansion of what’s required when properly Brutonizing a co-defendant’s statement.

 

      So that’s my summary for now. Chayila, do we have any questions?

 

Chayila Kleist:  Well, yes. We are ready for audience Q&A. As those start coming in, and as a reminder to our audience, you can do that at the bottom of your screen. I have a couple that I’d love to pose, starting with Samia—since we’re already on that topic—and then we can go backwards in time to Smith. You mentioned that the nature of this being a joint trial came up in the questioning by Justice Barrett. On that front, how are the legal questions at play affected by the fact that this is a joint trial? Or put a different way, if Samia and Stillwell had been tried separately, would we still be having this conversation?

 

Robert McBride:  No. We would not. The statements of the co-conspirator would not be coming in. Also, they could actually put the co-conspirator on the stand, and then we wouldn’t be having this issue. This case could be tried in front of the bench, and then they wouldn’t have this issue at all, either.

 

      One of the concerns with the Confrontation Clause is that when you have this statement by a non-testifying defendant, there’s some concern of Bruton about whether or not a jury instruction -- well, the concern is a jury instruction is not enough to protect the confrontational clause rights of the other defendant, even though the jury instruction says, “Look. You only consider this statement for defendant b, not defendant a.”

 

Chayila Kleist:  Got it. Continuing on the line of questions posed by the Court, what questions or lines of questioning were you most interested to see come up in the Court? And the counter to that, what were you interested to see not be raised during oral argument?

 

Robert McBride:  Well, I think in Samia, what I thought was most interesting is the government, while they did a great job with their arguments, I think they had to give some ground under the practical role. The approach the Court boiled down to was, “Okay. This is a functional problem. How do we make a Brutonized statement appropriate, where there are co-defendants, and one statement is coming in and so the jury understands that one statement is only to be considered against the defendant that gave it?”

 

      So I think that because it’s a functional line of questioning, it’s really going to become -- I think there’ll be some expansion of what a court has to consider when it’s evaluating a Brutonized statement. I also think that it will make it a little harder for the government to Brutonize certain types of statements, particularly where you have a conspiracy that is not sprawling—where it’s really just two people involved in the conspiracy.

 

      What I thought the Court -- they did focus on it somewhat -- I thought they may focus on a little bit more is jury instructions. It’s a very basic part of trying cases in criminal court, where jury instructions, both jurying evidence, admonitions jurying evidence, and jury instructions, and admonitions in jury instructions are deemed as the proper remedy for any of these kinds of constitutional violations. So there was less discussion of the jury instructions than I expected as a prophylactic for this problem.

 

Chayila Kleist:  Got it. Following on, on that line of thought, was it clear, if the Court ruled in favor of Samia, what the test for redacted enough would be?

 

Robert McBride:  I think the test would be -- so if you look at this series of cases, it goes from a co-conspirator’s statement that identifies the other defendant is too much—it violates the Confrontation Clause—to a redacted statement is appropriate, to a redacted statement can’t obviously be redacted, to a statement can be modified so that it is basically true but doesn’t implicate the co-defendant. So if you say, “I and the defendant and a couple of other guys,” as the Brutonized statement, it could be, “I and a couple of other guys committed the crime,” or, “a couple of other people,” so that, while it’s factually accurate, it isn’t directly implicating the defendant. So I think it may be one more step.

 

      Now, you have to look at the context in which the evidence will be presented before a judge will approve a Brutonized statement, and I think that it will be most germane where there are only two defendants at the table. Let me put it this way, where there are only two defendants involved in the conspiracy—yet five defendants and two of them have already pled guilty or what have you—it may not be as big a problem. So I think it’ll be another edging out of what’s appropriate Brutonizing of a co-defendant’s statement.

 

Chayila Kleist:  Got it. This may not be relevant since, as you noted, this is particular to the fact that this is a joint trial, but assuming the Court rules in favor of Samia, what, if any, other kinds of out-of-court statements could be impacted by this ruling?

 

Robert McBride:  I don’t know that any other out-of-court statements would be impacted. Most of them are going to be hearsay. I don’t know what the full record was. There are exceptions and exemptions to the hearsay rule. I don’t know that this will have any impact. This is a pretty discreet issue, these Brutonized statements in co-defendants. It may be -- it may lead to more separate trials, but not many of the judges I’ve practiced in front of really want to waste the time—if it will, the judicial time, the witnesses’ time, the defendants’ time, and all that goes into a trial—to have a lot of separate trials.

 

Chayila Kleist:  Fair enough. I’ll pose the alternate hypothetical then, and then I’ll -- we’ll wrap up Samia and move to Smith, barring any audience questions. What are the implications of this case if the Court upholds the lower court’s ruling?

 

Robert McBride:  I think it’ll be business as usual.

 

Chayila Kleist:  Fair enough. Well, let’s switch over to Smith. To begin, you mentioned one question before the Court is the proper remedy for trial in improper venue. I believe the Eleventh Circuit in this decision also addressed the question of whether a criminal trial’s improper venue as to one count requires vacatur of the convictions on other counts. Was that question addressed in oral argument, or was the focus solely on appropriate remedy?     

 

Robert McBride:  It focused solely on the appropriate remedy. I don’t see that as anything the Court would be considered -- would, frankly, consider. If you have an acquittal, that’s final. If you have a conviction and there’s the wrong venue, then that’s the issue before the Court.

 

Chayila Kleist:  Got it. Well, then turning to the ramifications of possible decisions, what are the ramifications of a ruling that makes it impossible to retry someone once improper venue has been proved?

Robert McBride:  Say that again, Chayila. I’m not sure I…

 

Chayila Kleist:  Of course. What are the ramifications of a ruling in favor of Smith, where you cannot be retried once you’ve been tried in improper venue, and it’s been decided that you were tried in the wrong place?

 

Robert McBride:  Well, I think one of the practical implications is you won’t see a lot of more motions to dismiss based on venue. A lot of the current cases involve many districts. You’ve got drug trafficking cases; you’ve got theft by electronic means cases. There are a lot of locations that the government can bring a count.

 

      Here, in this case, you actually had three different counts that appear to have happened in three different districts. So government may be more careful to identify the count and then try them where they belong. Or they may forgo some of this kind of count and rely more on conspiracy because conspiracy -- the jurisdiction can lay wherever there is an act of a -- the act of a conspirator in a jurisdiction that advances the conspiracy.

 

Chayila Kleist:  Got it. Because there were three separate venues in question, how does Smith contend he -- where does Smith contend he should have been tried? If it wasn’t the Northern District of Florida, where does he think this count should have applied?

 

Robert McBride:  So he thinks that the two counts which were overturned should have been tried in two different places. He thought the theft -- or, pardon me -- the threat should have been tried in Mobile, Alabama, where he was sitting. And then he thought the computer intrusion -- no, I’m sorry -- the theft of trade secrets should have been tried in Northern District of Florida because that’s where their -- that’s where StrikeLines’ computers sat.

 

Chayila Kleist:  Got it. Okay. I’ll ask the opposite question once again. Are there implications/what are the implications of this case of allowing the government simply to try again in a new venue when improper venue is proved?

 

Robert McBride:  Well, I mean, there are a lot of practical difficulties with that for the litigants, the defendants who have to go through the process again. But, you know, that’s really true for almost any case where there’s a retrial for any reason. The government also—although I would hate to see this kind of thing happen -- if they separate out different kinds of counts. So if they went after this man in the venues that they could have gone after him, he could have had three separate trials in three different places. Now, that’s not a good use of the government’s resources to do that, so they may have selected a particular case. I think what it does is it does two things: it makes the government think more carefully about where they’re going to bring a case, and it may give the defendant some certainty as to, once there’s an indictment, where they’re going to be. But I don’t think, despite all that, that the Court is going to rule in the petitioner’s favor.

 

Chayila Kleist:  Okay. Continuing on in this hypothetical, you mentioned that double jeopardy came up in oral argument, that it may not be even at issue in this case. How is it not at issue when you can be tried for something and then you can be tried again for the same charge?

 

Robert McBride:  Well, traditionally, when you have a case overturned, the case -- and sent back down for retrial, it’s the same case. Right? The conviction is vacated; it goes down for the same case. The purpose of double jeopardy is to stop the government from trying somebody who’s acquitted of the charge again. So since the judgment is vacated, it’s sent back down for trial. There’s nothing final, in other words. It has not been finalized. And this is a very practical way to look at it. It’s not a finalized decision on those counts, so it’s sent back to the court to be tried to see if they can get a finalized decision. Because here, the Court said, “No. They didn’t prove venue. It’s got to go back down.” It doesn’t mean that the individual was not guilty. So it’s different than being overturned for insufficiency of the evidence, which, as I mentioned earlier, is one of those times it’s not sent back down for retrial. And Justice Thomas hit that right away.

 

      What the petitioner was trying to do was elevate this issue of venue—which they conceded didn’t have to be proved beyond a reasonable doubt, and conceded it isn’t really an element of the offense. It’s important historically and a way to ensure the community where the case -- where the acts happened had a say in the resolution of the case. It’s not the same thing as a judgment on the facts. And the petitioner was very cagey about that. They said, “Well, justices, this is an important protection of the Constitution, and it’s kind of like an affirmative defense in that it doesn’t have to be proved beyond a reasonable doubt, but because it’s so important that the Court shouldn’t allow the government to take a second bite at the apple.” And I really don’t think the justices were buying that historical argument. But if this happened, it would have some practical effects. It might actually increase the number of trials the defendant is subjected to—or, at least, the number of indictments.

 

Chayila Kleist:  On that point. If the Court decides that retrial is the appropriate remedy for a trial of improper venue, what are the practical effects? Would it come to be that Smith could be sentenced to separate sentences on separate counts in separate district, and how would that work?

 

Robert McBride:  So let’s say the government decided to prosecute him in the venues that the defense thinks are appropriate. So he’d have three -- well, two indictments because he’s been acquitted on the one. It’d be two indictments in two different places. You’d have two different judges, two sets of prosecutors, two sets of grand juries that indicted him, two sets of juries that would hear the case. So as a practical matter for the defense, that’s a terrible burden to count for the defendant itself. Of course, financially and physically and emotionally, that’s a terrible burden.

 

      For the government, the government’s got a lot of resources. They’ve got prosecutors and judges and jury panels in each district that are already existing. It isn’t terribly hard to muster those things when we have standing courts. So it really would have more of a negative effect if the government decided to go forward.  Now, they have a conviction on one count here that did not get overturned. From my view, it’s not worth bringing that remaining charge back. It’s just not worth it. They’ve got the conviction; they’ve got their orders from the court. Move on would be, I think, the appropriate thing for them to do. But again, I’m not handling these cases.

 

Chayila Kleist:  Fair enough. Well, thank you. Last two questions, and then I may let us go early and give everybody back some time. If the Court decides that a retrial is the appropriate venue -- or the appropriate remedy—excuse me—is there a risk of creating a space for a form of jurisdiction shopping for charges? “We tried it incorrectly and we don’t get it. You can try again in a separate space.” Or is that not a concern here?

 

Robert McBride:  Well, I think the way the petitioner articulated that was, “Look. The government could come back and retry the guy in one place and retry him in another and still yet another.” And the implication of their argument was the government may do this just out of spite or intentionally or what have you. But the government pointed out in its argument, “Look. You could have a situation where an individual case is overturned for an evidentiary issue, is overturned for some other due process issue, but each time, it goes back for retrial.” It’s really no different on the venue issue if they have to go back and retry it once or twice or three times. As a practical matter, it’s going to have to be El Chapo before they start going after somebody like that—in serial places or in serial periods of time. At some point, there’s a diminishing return for the government and law enforcement purposes to keep retrying the same person in different venues. Besides which, a judge would probably put a stop to it.

 

Chayila Kleist:  Fair enough. Well, one last question—excuse me—that applies to both cases. You’ve mentioned how you felt the ruling may be, but do you have a read—even a general or an unsolidified one—of how the various members of the Court will break out and what the major issues will be in the opinions that come out in these two cases? I won’t hold you to it.

 

Robert McBride:  [Laughter] Sorry. I’m terrible at predicting. So I think, in Samia -- I think that Justice Jackson is very skeptical of the position of the petitioner and that -- I’m sorry. I think I’ve got them confused, so forgive me. I think that Justice Jackson is very skeptical of the petitioner in Smith on the venue issues. She pushed pretty hard, and I think that she’s going to be joined by the other justice -- there really wasn’t any of the justices who pushed back too hard on this retrial issue with respect to Smith.

 

      I do think there’s a split on the Bruton issue. I think that Justice Sotomayor and Jackson and Coney Barrett and Kagan and, perhaps, Justice Kavanaugh are leaning towards the sides of the petitioner because, as a practical matter, what they’re saying as a functional, how-do-you-do-this way to go about it and keep fairness, seems to make some sense, even to me as a former prosecutor. You would see judges say, “Okay. Well, what is this about?” just to make sure that whatever the Brutonized statement was, it didn’t immediately implicate the other or one of the other co-defendants because that’s the key here. Does the statement, no matter how it’s Brutonized, say, “Hey. Just on reading it, that person over there the jury knows is immediately guilty.” So I think there’s a good, practical reason to support the petitioner here.

 

      Now, I think Justice Thomas and Justice Alito may take a more traditional line, that the jury instruction is sufficient here to protect the rights of the other defendant whose statement was not admitted.

 

      That’s my thumbnail on it.

 

Chayila Kleist:  Sounds excellent. Well, thank you. On behalf of The Federalist Society, thank you, Mr. McBride, for the benefit of your valuable time and expertise today, of taking on two cases in one “Courthouse Steps.” We greatly appreciate it. And thank you to our audience for joining in and participating.

 

      We welcome listener feedback by email at [email protected], and, as always, keep an eye on our website and your emails for announcements about other upcoming virtual events. With that, thank you all for joining us today. I’ll give you back a portion of your afternoon. We’re adjourned.

 

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