Eleventh Circuit Court of Appeals - Published Opinions

Monday, September 08, 2008

Schwartz: Affidavit Admission Was Bruton Error

In U.S. v. Schwartz, No. 05-11715 (Sept. 5, 2008), the Court reversed a $30 million fraud conviction because the admission of one defendant’s incriminatory affidavit incriminated his co-defendant, in violation of Bruton v. U.S., 391 U.S. 123 (1968).
During its case in chief, the prosecution introduced in evidence a defendant’s affidavit which set forth the name of a corporation that was using investor monies to line the personal business coffers of the persons who controlled it. Then, in closing argument, the prosecutor expressly linked a co-defendant to this corporation, as the person who controlled the corporation.
The Court found that even if the affidavit itself was insufficient to compel an incriminatory inference against the co-defendant, the prosecutor’s closing statement made the inference inevitable – and therefore "devastating." Hence, a Bruton error occurred. Moreover, the error was not harmless because the affidavit and the closing argument, though repetitive of other testimony, summarized points contained in disparate parts of a lengthy trial, and had "singular credibility," coming as it did from an alleged participant in the fraud. The Court vacated this conviction.
As to another defendant, the Court rejected the argument that the government violated his use immunity agreement by using statements in the grand jury that the defendant gave to a law enforcement agent, to obtain his indictment. The Court noted that the use immunity agreement contained a "Kastigar waiver." A Kastigar waiver means that the defendant waived his right to challenge use of his statements before a grand jury because they were obtained in violation of the Fifth Amendment. The Court inferred that by waiving the Kastigar remedy the defendant meant to waive challenges to the use of his statements before the grand jury.
The Court rejected the sufficiency of the evidence challenge of two other defendants. The Court found that the evidence showed that they knowingly participated in fraud conspiracy.