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United States v. Seawood

United States District Court, E.D. Missouri, Southeastern Division

March 15, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ANTYWAN SEAWOOD, Defendant.

          REPORT AND RECOMMENDATION

          ABBIE CRITES-LEONI UNITED STATES MAGISTRATE JUDGE.

         This matter was referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b). Several pretrial motions filed by Defendant Antywan Seawood are pending. The first is a Motion to Suppress Statements (Doc. 155) requesting that statements of one of Seawood's Codefendants be suppressed. The second is an unopposed Motion for Severance. (Doc. 177.) Next, is a Motion to Dismiss Counts IV, V, VI, and VII of the Second Superseding Indictment (Doc. 228) based on a claim that those charges were not supported by adequate evidence, and that the return of the Indictment was based, in part, on hearsay. Fourth, is a Motion to Dismiss Counts VI and VII of the Superseding Indictment for Multiplicity (Doc. 229) while the fifth Motion requests dismissal of Counts III, V, and VII for double jeopardy (Doc. 230). Except for the Motion to Sever, the Government filed pleadings in Opposition to each of Seawood's Motions. (Docs. 166, 245, 248, 249.)

         A hearing was held on December 21, 2017, regarding the Motions to Suppress Statements and for Severance. No evidence was presented, the parties simply made argument. Following the filing of a Second Superseding Indictment, Seawood filed the three Motions to Dismiss described above. The parties agreed that an evidentiary hearing was not necessary. Based on the evidence and legal arguments submitted by the parties, the undersigned recommends that the following findings of fact and conclusions of law be adopted, and that Seawood's Motions, except for the Motion to Sever, be denied. Since the Government agrees that the Motion for Severance should be granted, that Motion will not be discussed.

         I. The Charges

         Seawood and others have been charged with seven serious felonies in the Second Superseding Indictment (hereinafter Indictment). The charges include:

Count I: Possession of Stolen Firearms on February 28, 2017;
Counts II and IV: Carjacking on February 26 and April 23, 2017;
Counts III, V, and VII: Possession of a Firearm in Furtherance of a Crime of Violence on February 26, April 23, and April 27, 2017; and
Count VI: Attempted Carjacking on April 27, 2017.

         Seawood and his Codefendants are alleged to have aided and abetted each other in the commission of each of the crimes charged.

         II.A. Admissibility of Codefendant Statements

         Seawood requests that this Court suppress any statements made by a Codefendant during proffers and interviews with law enforcement agents, as well as during testimony before any grand jury relating to Seawood's alleged participation in the April 23, 2017 carjacking as charged in Counts IV and V. (Doc. 155 at 1.) Seawood claims that any such statements amount to inadmissible hearsay as the Codefendant did not participate in the events charged in Counts IV and V, rather he repeated statements he heard another Codefendant make about Seawood's alleged involvement in those offenses. Id. at 2-3.

         As noted by the Government, Seawood relies on Federal Rule of Evidence 801(d)(2)(E) to support his request; and Seawood does not claim that his constitutional rights were violated when the statements were secured from the Codefendant. (Doc. 166 at 1-2.)

         When examining the admissibility of coconspirator statements under Rule 801(d)(2)(E), the Eighth Circuit Court of Appeals has directed that a trial court may conditionally admit proffered coconspirator statements during trial and rule on admissibility at the conclusion of all evidence. United States v. Bell, 573 F.2d 1040, 1044 (8th Cir. 1978). The Bell panel set out the trial procedure for the admission of coconspirator statements under Rule 801(d)(2)(E), 573 F.2d at 1044, which have been followed with approval in subsequent cases. See United States v. Roulette, 75 F.3d 418, 424 (8th Cir. 1996); United States v. Edwards, 994 F.2d 417, 421, 422 (8th Cir. 1993); United States v. Misle Bus and Equipment Co., 967 F.2d 1227, 1233 (8th Cir. 1992); United States v. England, 966 F.2d 403, 407-408 (8th Cir. 1992); United States v. Cazares, 521 F.3d 991, 994 (8th Cir. 2008).

         Bell delineated the following procedural steps for trial courts to follow when the admissibility of a coconspirator's statement is at issue:

(1) If the prosecutor propounds a question which obviously requires a witness to recount an out-of-court declaration of an alleged coconspirator, the court, upon a timely and appropriate objection by the defendant, may conditionally admit the statement. At the same time, the court should, on the record, caution the parties (a) that the statement is being admitted subject to defendant's objection; (b) that the government will be required to prove by a preponderance of the independent evidence that the statement was made by a coconspirator during the course and in furtherance of the conspiracy; (c) that at the conclusion of all the evidence the court will make an explicit determination for the record regarding the admissibility of the statement; and (d) that if the court determines that the government has failed to carry the burden delineated in (b) above, the court will, upon appropriate motion, declare a mistrial, unless a cautionary instruction to the jury to disregard the statement would suffice to cure any prejudice. See United States v. Stanchich, 550 F.2d 1294, 1298 (2d Cir.1977). The foregoing procedural steps should transpire out of the hearing of the jury. See Fed.R.Evid. 104(c).

Bell, 573 F.2d at 1044. The Bell procedure does not call for a pretrial determination of whether challenged statements were “made by a coconspirator during the course and in furtherance of the conspiracy, ” rather it directs that the question be born out during trial.

         In light of the foregoing, the question of whether the challenged Codefendant statements are admissible pursuant to Rule 801(d)(2)(E) is an issue for trial. Therefore, it is recommended that Seawood's Motion (Doc. 155) requesting a pretrial hearing to consider the admissibility of such statements be denied.

         II.B. The Motion to Dismiss

         Seawood filed a Motion to Dismiss Counts IV, V, VI, and VII of the Indictment (Doc. 228) alleging that those charges were not supported by adequate evidence. He also claims the evidence presented ...


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