On June 22, 2023, the Supreme Court released its decision in Samia v. United States. The main question at issue in the case was whether the admission of a codefendant’s redacted out-of-court confession that incriminates the defendant due to its content violates the Confrontation Clause of the Sixth Amendment. The Court held “the Confrontation Clause was not violated by the admission of a nontestifying codefendant’s confession that did not directly inculpate the defendant and was subject to a proper limiting instruction.”
Please join us for a Post-Decision Courthouse Steps webinar, where we will break down and analyze the Court’s decision.
- Robert McBride, Partner-in-Charge, Northern Kentucky, Taft Stettinius & Hollister LLP
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
Chayila Kleist: Hello, and welcome to this Federalist Society webinar call. Today, July 5, 2023, we host a post-decision “Courthouse Steps” webinar on Samia v. United States. My name is Chayila Kleist, and I’m an Assistant Director of Practice Groups here at The Federalist Society. As always, please note that all 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 the introduction brief, but if you’d like to know more about our guest today, you can access his impressive full bio at fedsoc.org.
Today, we’re fortunate to have with us Robert McBride, who is a Partner-in-Charge of the Kentucky office of Taft, Stettinius, and Hollister. Part of his time there, Mr. McBride was an Assistant United States Attorney with 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 Anti-Terrorism Advisory Council Coordinator.
During his tenure as an AUSA, Mr. McBride also held several leadership positions, serving as a Manager of the London Branch Office Criminal Chief, and, more recently, as the Supervisor of the Fort Mitchell Branch Office. Mr. McBride also formerly served the United States Navy’s Judge Advocate General Corps for tenure. Now, I’ll leave it there.
One last note about the panel. If you have any questions, please submit them via the question-and-answer feature so that we’ll have access to them when we get to that portion of today’s webinar. With that, thank you all for being with us today. Mr. Mc Bride, the floor is yours.
Robert McBride: Thank you, Chayila. Thanks, for everybody who’s listening. We’re going to talk today about Samia v. United States. The case implicates Confrontation Clause issues, and what I’d like to do is start with the question presented, talk about the majority’s holding, some of the dissent, and also give you a little practicum, from my point of view, about how you handle these kinds of issues.
So let me start with the question presented, and it is whether the Sixth Amendment’s Confrontation Clause included the admission at a joint trial of a modified version of a non-testifying co-defendant’s statement, which did not facially inculpate the petitioner and was accompanied by a limiting instruction that is considered only against the co-defendant on the theory that other trial evidence would lead the jury to link the petitioner.
So let me talk about the facts to make some of that question presented more clear. So there was a fella named Paul Le Roux, and Paul was the head of a transnational criminal organization. He had a number of activities: drug trafficking, carrying out acts of violence, money laundering, extortion, etc. In order to enforce some of his policies, if you will, he would hire individuals and call them his team of mercenaries.
Samia came to work for Le Roux as a mercenary in 2008, and for whatever reason, at some point, he expressed interest working as an assassin for Mr. Le Roux.
At one point, Mr. Le Roux got involved in a real estate transaction with a woman named Catherine Lee. This lady was a real estate broker in the Philippines. Now, Le Roux evidently believed that Ms. Lee had cheated him out of some money, so he got three of his guys—Hunter, Stillwell, and Samia—to carry out an execution of Ms. Lee, which they did. They went to the Philippines, and they posed as real estate buyers. After making contact with her, her body was found in a vacant lot near a pile of garbage, and she was shot in the face at close range.
These guys remained at large for a little while, but when the indictment was handed down, Samia, Hunter, and Stillwell were charged with conspiracy to murder-for-hire, murder-for-hire, conspiracy to murder and kidnap in another country—they went to the Philippines, obviously—using and carrying a firearm in relation to a murder, and conspiracy to launder money.
Before they were charged, Stillwell made a confession, and his confession named Samia as having been in the van with him at the time of Lee’s execution and that Samia was, in fact, the executioner who shot Ms. Lee. By the time they get to trial, neither one wants to testify, so Stillwell’s confession can still be admitted. And the way it goes is this: Stillwell, as a non-testifying defendant, wants to protect his right against self-incrimination to the extent he can, so the government tries to enter his confessional statement. But because a confessional statement is testimonial in nature, it falls within the ambit of the Confrontation Clause.
And typically, when statements are admitted at this stage in the game—under the jurisprudence before Samia and probably after Samia—these statements are modified or redacted in a way that does not facially implicate the other defendant. And if it’s done right, at the time the testimony or the report comes in -- pardon me -- the confession comes in, then the judge instructs the jury, “You can only consider this for the testimony of Mr. Stillwell and not Mr. Samia.” Then when jury instructions come down, a similar instruction will be read to the jury to remind them not to use the confessional statement against Mr. Samia but only against Mr. Stillwell.
Both gentlemen are, of course, convicted, although I think Mr. Stillwell was not convicted of the money laundering. So the case, coming out of the Second Circuit, goes up to the Supreme Court. Mr. Samia is asking the Supreme Court, essentially, to get away -- to expand Bruton so that statements that do not facially incriminate the other co-defendant—in other words, him—cannot be used at all in court. The government, of course, maintains that the statement was properly Brutonized and was properly admissible.
So let me take a step back from these facts. Sometimes, when you have a statement or a confession made by a defendant, the defendant talks about many other things than just the crime at hand. So you could imagine, in this case, Mr. Stillwell may have talked quite a bit about Mr. Le Roux or other activities that are not germane to this case. Most law enforcement agencies will video and record these kind of statements. Some will only record them. At any rate, in this case, for one of these reasons, the DEA agent who took the confession of Mr. Stillwell testified, and prior to the trial, on a motion in limine from the government, the DEA agent did not use Mr. Samia’s name but, “The other person.” So that’ll be interesting for a point later.
But let me talk about the Court’s analysis. As a preliminary matter, where I think the majority is coming from is this idea—this concept based in American jurisprudence—that a jury can be trusted to follow the instructions of a court, which I think is what distinguishes the dissent—Justice Kagan and Justice Brown’s dissent—from the majority opinion.
So let me talk about the Court’s analysis. In general, when a non-testifying individual’s confessional statement is admitted, because it is testimony, it falls within the ambit of the Confrontation Clause. But interestingly, the Confrontation Clause only applies to witnesses against the accused. Under Crawford v. Washington, a co-defendant’s statement is not considered as against the accused as long as it’s properly instructed and that the statement does not facially implicate the other defendant.
So along comes this case, Bruton v. United States. And Bruton [inaudible 9:48] a narrow exception, and says, essentially, “Look. We rely on jurors in order to follow instructions and use their common sense with some level of fidelity to the court. However, there are times when confessions, even when instructed and admitted by the court, are so obviously inculpating the other defendant that there must be an exception drawn to this trust of the jury, even with an instruction.”
And so, what Bruton says, more specifically, is this narrow exception in limiting instruction, when the statement is so obviously inculpating the other defendant, must be scrubbed in some sort of way. It cannot be admitted, naming a defendant or so identifying a defendant such that it can be admitted. The narrow exception basically says it’s too risky to leave it in the hands of the juror.
The next case in this line is Richardson v. Marsh, and it declined to extend Bruton to confessions that do not actually name the defendant. Marsh and Williams were tried for assault and murder; Williams had confessed. And here, the statement was sufficiently Brutonized, such that the four corners of the statement did not facially or overwhelmingly implicate the co-defendant. The co-defendant was linked to the confession and the crime by other evidence that was extrinsic to the four corners of the statement.
Gray v. Maryland comes on, and it modifies Bruton a little bit. And basically, in this case, two fellas, Gray and Vanlandingham, were accused of assault and murder. The confession here that was admitted deleted the defendant’s name—in fact, used the word “deleted” instead of the defendant’s name. And in this case, the Supreme Court found that, “Look. You delete the man’s name, but there are other accusatory information in this confession that directly points to the defendant, so it falls within the Bruton exception that it must be, essentially, scrubbed in a way that it doesn’t facially implicate the defendant.
So in this case, it’s very similar to -- it’s more similar to Bruton than Richardson v. Marsh than it is to Gray. And so, the Court holds, essentially that this statement that was admitted and properly instructed by the Court, so as it does not implicate Samia—both at the time the statement was admitted to the DEA agent and at the time of instructing the jury -- that it did not violate the Confrontation Clause.
So there are two things that I’d like to note about this. There’s a footnote in the majority opinion that says, “The Court never opined as to whether rewriting a confession may serve as a proper method of redaction.” I think that’s interesting for two reasons. One, here we have a DEA agent testifying about the confession, as properly instructed by the Court, based on the government’s motion in limine. But could that testimony be considered a rewriting of the statement because the testimony of the confession is going to be within the context of the case agent talking about the investigation itself? And second, I think it’s an interesting footnote because, as I noted earlier, a lot of these kinds of statements are recorded, either verbally or on video and audio.
So how you might rewrite a statement -- I think what they’re trying to imply here is perhaps you’re better off playing the video or the recording instead of somebody summarizing or rewriting a statement. That implicates a lot of issues, as a practical matter, but I think it’s a very interesting footnote.
I also want to cite my favorite line from the majority opinion, which is, “Neither Bruton, Richardson, nor Gray provides a license to flyspeck trial transcripts in search of evidence that could give rise to a collateral inference that the defendant was named in an altered confession.” That means, to me at least, that the principle that a jury will follow the instructions of the Court, such the statement on its face, does not implicate the defendant, yet goes and discusses the other aspects of the evidence that comes in and arguments is not sufficient to violate the Confrontation Clause. In other words, you must look at the statement itself for whether it facially inculpates the defendant.
The reason I think this is important, also, from the history of the case is that the petitioner argued, “Look, the government laid out, in its opening statement, its theory of the case, and it named Samia as the shooter, and it described the circumstances --" and, of course, in the mind of the petitioner, “Well, of course, that licked me.” But the interesting thing about that is, as every trial lawyer knows, opening statements are not evidence, and I think the Court expects the jury, in that respect, to also follow its instructions, noting that opening statements—and closing arguments, for that matter—are not evidence. So I think it goes back to the same fact.
Justice Barrett does join in the majority but, interestingly, writes a separate opinion about the historical aspect of the Court’s decision. So in the briefs of the petitioner and the United States, there’s a great deal of discussion about historical precedence, supporting their points of view. And here, I think what Justice Barrett is saying, “Look. There’s a conflict among what the historical period really is, and the majority takes its favorite section out of that in order to support its opinion.” That said, she otherwise fully joins in the opinion. But I thought it was interesting grounds on which to write a concurring opinion.
Justice Kagan objects—or writes a dissent—and I think her dissent is interesting from the point of view that she really looks at a more practical aspect of how these statements by non-testifying defendants go. In other words, it’s quite obvious from her point of view that a non-testifying defendant’s statement will be automatically attributed to the other defendant, regardless of whether it facially implicates them, simply because that individual is sitting at the table. I think that has an emotionally appealing and practical attraction to it, but I personally don’t believe that that follows the law of the Confrontation Clause.
I think it -- as I said earlier, I think this is where their emphasis on the historical precedence in the role of the jury differs. You could hear this kind of argument from a lot of my colleagues in the defense bar—"Well, everybody knows that they know this statement must implicate the other guy sitting at the table with him.” But our jurisprudence is based on the fact that juries make decisions and are not automatons. In fact, one of our core protections is the trial by jury, and if you don’t trust juries to follow courts’ instructions, then you lose that principle of relying on the jury and that constitutional protection—at least at some level.
Justice Kagan also criticizes some of the majority’s practical applications if they were to follow the petitioner’s rule. The majority cites to the fact that there’s a long history of trying co-defendants together, separate trials would be a burden to the government, and that there was an interest in trying co-defendants together so that both defendants get the same shot at the same evidence. Because serial trials—you’re going to have a transcript of one and so on—may create factual differences and may be unfair to one or both defendants. And then third, that if we go through extensive Brutonizing—in other words, looking outside the document to the whole of the evidence of the government—that’s going to take a lot of time away from courts.
Now, one point Justice Kagan makes that I think is sensible—not to say her others aren’t -- but sensible from my point of view as a practitioner—is this: she says that -- and frankly cites Bruton -- says, “This administrative task of having to Brutonize a document should not get in the way of the fair administration of justice.” And if you think about it, trial courts are there for the very purpose of making sure that evidence is submitted according to the rules in the Constitution and that they are not being used by one side or the other unfairly. So I think that’s a fair criticism Justice Kagan makes of the majority’s opinion.
Justice Jackson also files a dissenting opinion while joining with Justice Kagan, as does Justice Sotomayor. Justice Brown -- pardon me -- Justice Jackson’s focus really seems to be more on that Bruton and its progeny—and particularly Samia—turns the Constitution on its head, where the primary right ought to be the right of the confrontation, which is, of course, to cross -- hear the testimony of, in live court, and cross-examine the witnesses against you. I guess that’s really, in my eyes, an attack on Crawford because Crawford says, “If the statement is inculpatory to the one, it’s not inculpatory to the other defendant.” And so, it falls outside the ambit of the Confrontation Clause.
In all, I think for practitioners—particularly for the government—this won’t -- this case, Samia, will not change the way things happen, as a practical matter. Generally, what happens is there’s a motion in limine by the government when they’ve got a confession—a Mirandaized confession—that they want to put in, and they submit what they call a Brutonized version of it. I’ve spent many hours both doing them myself and as a supervisory AUSA, making sure that it meets the requirements of Bruton—and Gray, for that matter. We then would submit it to the judge, and the judge would review it and either approve it, make modifications, and say, “Go back and do it again,” but it’s all completed before a trial is started.
So from the point of view of the government, I don’t think it will particularly change their practice. From the point of view of the defense, I think it puts to rest some ambiguity with regard to Gray and how far a court should look in evaluating whether or not a Brutonized statement is appropriate. By that, I mean: looking beyond the four corners of the document and evaluating whatever evidence that may be out there. This is the position, of course, that Samia proposed. And so, it’s going to make that more difficult, I think, from a defense point of view.
Now, that remains all the other issues and relevance, etc., if you can use those, and the accuracy of the statement, I think, is also important from a defense point of view. How an agent might testify may vary the discovery -- may vary significantly from the discovery that defense has. And I think there’s something there that they have to be wary of. If they can participate with the government in the Bruton process—some prosecutors will; most will not do that—it might be useful. But I think a lot of the litigation in this area is -- from the defense is going to be truncated by this decision.
I would welcome questions from the audience or you, Chayila.
Chayila Kleist: I was going to say thank you so much for that background and the breakdown of the decision, as well as some of the facts that shaped this case. We are now moving to the time of Q&A, so, audience, if you’d like to submit questions, please feel free to do so via the Q&A feature. But I do have a couple of my own that I’d love to pose as the audience is submitting those.
You’ve mentioned some of the precedent that is implicated by this case: Bruton, Crawford, etc. Does this decision constitute a notable change in the Sixth Amendment jurisprudence, and if so, what cases does it undermine, overturn, or bring to the fore?
Robert McBride: Well, I don’t think it really provides a strong departure. What I think it does is truncate the ability of defendants to continue to argue that a Brutonized statement does implicate their defendant based on things other than the statement itself. So Gray is taken very often as -- look. Gray was modified in a way so that it was not facially inculpating of the defendant, based on the circumstances. So I do think that Gray has not been overturned, but I think the focus now has to be on the content of the document, not so much whatever else is out there. So I still think the defendants have to be very leery about how the statement is structured and whether, within the four corners of the document, the statement is going to be inculpatory or overly inculpatory of the -- not of the other co-defendant. Does that make any sense?
Chayila Kleist: Yes. Yeah. Following up on this and the effect this case may have. Does the fact that it’s a split opinion-- so it’s 6-3, but it’s 5 who joined fully, and then Justice Barrett who joined almost fully. Does the fact that it’s split in that way have any effect on the way those arguments will be treated moving forward or possibly have any effect on those arguments will be treated moving forward? Or does the fact that five justices—a true majority—agreed to this opinion, perhaps, solidify and clarify that this is the keystone on which arguments moving forward should be built?
Robert McBride: Well, I don’t think, as far as the weight of the opinion, Justice Barrett’s -- my personal opinion is Justice Barrett’s opinion does not undermine the precedent of the case. It simply questions the historical precedent on which the Court relies is sort of, in my view, cherry-picking that. But I don’t think that that really changes too much about the jurisprudence. I think that it’s a bit cautionary about, “Let’s make sure that what we’re relying on is complete,” because there was always conflicting information in the original record of [inaudible 27:29] the historical record. So I don’t think that that undermines it.
Both Justice Kagan and Justice Jackson explicitly stated they think that this is one step in the majority’s rolling back of Bruton so that confessional statements that actually name the other co-defendant will be admissible under the Confrontation Clause and Crawford. The hypotheticals that Justice Kagan uses in her opinion, I think, set forth a way in which defendants could continue to challenge Bruton, but I don’t know that, given the long line of cases from Crawford to Gray and now this case, that that’s not going to be anything other than an uphill battle. I don’t see this -- of course, I’m way on the outside. I don’t really see this as an attempt to undermine Bruton. What I see it as is a logical and practical application of the jurisprudence that’s come along in this area.
Chayila Kleist: Got it. Continuing on that thought of Justice Barrett choosing to have a difference in her argumentation—saying, hey, maybe the history that the majority is using isn’t what she would support—are there arguments or questions you were surprised to see raised in the opinions? And I’ll ask the opposite. Were there arguments or questions that you were surprised not to see appear, either in the majority concurrence or either dissent?
Robert McBride: Well, I think in the majority opinion, they didn’t talk to a great degree about the relation between evidence outside the confessional statement that would implicate an individual versus the statement itself. And I understand that because it may be difficult to quantify that. On the other hand, with the fly-speck comment that I noted, it might have been useful to express that a little bit more, at least from the practitioner’s point of view. Way down here at the trial level, these things filter through a lot of things, and so it’s helpful to have that kind of directive because now—at least in my circuit—the Sixth Circuit’s going to have to take a look at some of these issues handed down to the district court judges, and, at least in my experience, there’s a delay in the trickle down.
I was very surprised, actually, to see the statements by Justice Kagan and Justice Jackson about -- “We believe this is a step in overturning the Bruton.” I don’t know if they’re mad at each other or what, but I didn’t see particularly— in my view, my limited view -- I didn’t see them particularly well-supported by their following arguments. They almost seemed, to me, like just flat statements. And then they went on to make their substantive arguments, which were certainly logical and make sense from the point of view that those justices are viewing the Constitution in this case. Does that answer the question?
Chayila Kleist: Yes. Yeah. I appreciate it—both the, “Hey, here’s what I was surprised to see and not see.” That’s always interesting. You’ve mentioned that you don’t expect there to be significant -- it doesn’t seem to be a departure from precedent. In your view, it also doesn’t seem like it will change much as regards to joint trials or jury instructions. But are there downstream effects and industries or areas of law that should be paying attention to the possible indirect effects of this decision?
Robert McBride: I think there is an ethical component here, particularly for prosecutors. I think that prosecutors must be careful, in these circumstances, to look not only at whether the defendant is named but also whether the context of the entirety of the confessional statement in some other way identifies the defendant. So if the -- just hypothetically, if it says, “The other guy with the white beard,” that may too much identify the other co-defendant. Or if it was, “The guy I joined the Le Roux organization with in 2008, who was on this [inaudible 32:20] with me,” there could be circumstances in which that could be too much.
And so, also, with regard to agents -- if you’re going to have an agent testify about it -- and I’m not disparaging any agents at all, but they’re not lawyers. And so, I think prosecutors have to make sure that the agents have a very solid understanding of what they can say and how they can say because you have to remember, these agents are going to be subject to cross-examination. And so, I -- agents -- there are literally agents of the prosecutor, and prosecutors and lawyers can be held responsible for what agents say, to some extent. So I think prosecutors and supervisors need to be very well aware that this is not a license to walk up to the line and identify somebody without saying their name.
And as for defense lawyers, I think they have an obligation to make sure that, as the testimony comes out—and if they can before that -- make sure that what is coming out comports in substance with what the other defendant is saying. So very often, if you’re a defense lawyer, maybe you ought to file a motion in limine on your co-defendant’s testimony to get it properly Brutonized and get yourself to the table.
For people who are -- I mean, this can cover all kinds of subject matter or areas—you could see it arising in crimes involving businesses, crimes involving overseas businesses. I mean, functionally, Le Roux was running a business, it just happened to be criminal. So you also see how the reach of the federal government is really worldwide. So I think there are ethical issues here. I think there are practical issues. I think the more co-defendants you have at the table, maybe the easier it is to Brutonize a statement. If you’ve just got two co-defendants, that could implicate something more.
Chayila Kleist: Got it. Well, on that note, and as the last question—barring any from our audience—now that we have the decision, you’ve mentioned that there are questions that may remain as it trickles down. What are those questions that remain unanswered post-Samia?
Robert McBride: Well, I think that the question is whether or not judges have fully embraced Samia and whether defense counsel have fully embraced Samia. It’s a very practical -- from a trial lawyer’s point of view, it’s a very practical evolution. The statement is made, it has to be Brutonized in an appropriate way, and the mechanics of that is particular sometimes to a judge but clearly through, generally, a motion in limine. So I think that you may have a lot of arguments that remain that are more like Gray arguments that haven’t quite trickled down that judges may still continue to consider. I’m not saying they shouldn’t. I’m just saying that it would be -- I think it would become less frequent over time.
Chayila Kleist: Got it. Well, thank you so much. Seeing no questions, I’ll give everybody back some of their afternoons, and we can wrap it here. On behalf of The Federalist Society, thank you so much, Mr. McBride. We really appreciate you giving us part of your afternoon and sharing your valuable time and expertise. Thank you to our audience for joining and participating. We welcome listener feedback by email at email@example.com. And as always, please keep an eye on our website and your email for announcements about other upcoming virtual events. With that, thank you all for joining us today. We are adjourned.