United States v. Bryant, Criminal No. 2015-0152

Tony Bryant and co-defendant Brian Bryant are charged in the same criminal case; Brian is Tony’s son.
Investigators surreptitiously recorded phone calls between Brian Bryant and the mother of his child; Brian made occasional references to his “father” on those calls.
Brian’s recorded statements were previously the subject of a suppression motion that the Court denied as to the recordings generally.
Tony moved in limine to exclude the portions of the recordings in which Brian references his father, invoking the Sixth Amendment Confrontation Clause and Bruton concerns.
The Court considered whether those references are testimonial (and thus inadmissible under Bruton when made by a non-testifying co-defendant) and heard supplemental briefing and oral argument.
The Court ruled the references are non-testimonial and may be admitted with the recordings; Tony’s motion to preclude portions of the audio was denied.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Brian Bryant’s recorded references to his “father” are testimonial under Bruton and therefore inadmissible against Tony Bryant	The references are non-testimonial casual statements made to a third party and admissible	The references are testimonial statements implicating Tony’s right to confront and should be excluded	The Court held the references are non-testimonial, so Bruton does not bar their admission

Bruton v. United States, 391 U.S. 123 (1968) (co-defendant’s out-of-court confession may be inadmissible against a defendant when the speaker does not testify)
Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause bars admission of testimonial hearsay unless witness unavailable and defendant had prior opportunity for cross-examination)
Davis v. Washington, 547 U.S. 813 (2006) (articulates "primary purpose" test for determining whether statements are testimonial)
United States v. Berrios, 676 F.3d 118 (3d Cir. 2012) (surreptitiously recorded conversations to third parties are generally non-testimonial)
United States v. Castro-Davis, 612 F.3d 53 (1st Cir. 2010) (explains limits of Bruton and testimonial inquiry for recorded out-of-court statements)