                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

                                             )
UNITED STATES OF AMERICA,                    )
                                             )
               Plaintiff,                    )
                                             )
       v.                                    )       Civil Action No. 15-152 (RMC)
                                             )
TARKARA COOPER,                              )
TONY BRYANT,                                 )
BRIAN BRYANT,                                )
                                             )
               Defendants.                   )
                                             )

                            MEMORANDUM OPINION AND ORDER

               In this criminal case, Defendant Tony Bryant moved in limine, via oral motion

made during the Court’s pretrial hearing on January 5, 2017, to preclude certain statements made

by a co-defendant. Tony Bryant’s son, co-defendant Brian Bryant, made passing references to

his “father” while having a series of phone conversations with the mother of his child.

Unbeknownst to Brian Bryant, investigators were recording those phone calls. The Court

previously denied Brian Bryant’s oral motion to suppress the entire recorded statements. See

Order [Dkt. 143]. What remains for the Court to decide is whether Brian Bryant’s specific

references to his father on the recording should be excised to prevent any infringement of

Defendant Tony Bryant’s Sixth Amendment right to confront witnesses testifying against him.

The Court heard arguments in open court on January 5, 2017, and provided both parties with an

opportunity to provide supplemental authority. 1 After considering all arguments, the Court




1
 Only the Government ultimately provided supplemental information; Defendant Tony Bryant
chose to rely on his oral arguments on January 5.
concludes that Defendant Brian Bryant’s references to his father may be admitted along with the

rest of the audiorecording.

               In Bruton v. United States, 391 U.S. 123, 127–28 (1968), the Supreme Court held

that certain incriminating statements made by a defendant are inadmissible against co-defendants

when the defendant making the statement does not take the stand—thereby depriving co-

defendants an opportunity to cross-examine him. Courts have consistently held that Bruton

applies only to “testimonial” statements. See, e.g., United States v. Berrios, 676 F.3d 118, 128–

29 (3d Cir. 2012); United States v. Castro-Davis, 612 F.3d 53, 65–66 (1st Cir. 2010).

Testimonial statements are those “made with the ‘primary purpose . . . to establish [facts]

potentially relevant to later criminal prosecution.’” United States v. Rodriguez, 591 F. App’x

897, 901 (11th Cir. 2015) (quoting Davis v. Washington, 547 U.S. 813, 822 (2006)). Statements

made outside the court context, such as telephone calls to third parties, are typically not seen as

testimonial, even if the call is being monitored and recorded by law enforcement. See United

States v. Berrios, 676 F.3d 118, 127 (3d Cir.2012) (“Cognizant that a witness who makes a

formal statement to government officers bears testimony in a sense that a person who makes a

casual remark to an acquaintance does not . . . we concluded that the surreptitiously monitored

conversations and statements contained in the Title III recordings [we]re not testimonial . . . .”

(citing Crawford v. Washington, 541 U.S. 36, 51 (2004)). While the United States Court of

Appeals for the District of Columbia Circuit does not appear to have weighed in on the issue

directly, the circuits that have ruled appear to be largely in agreement on the issue.

               This Court concludes that the recorded statements made by Brian Bryant are not

testimonial for the purposes of Bruton, and therefore may be admitted in their entirety without

infringing on Tony Bryant’s Sixth Amendment rights. Neither the content of the recording itself
nor later statements by Brian Bryant give any indication that any statements he made were for

the “primary purpose” of establishing facts relevant to a criminal prosecution. It seems highly

unlikely that Brian Bryant would have made any statements at all had he known that the call was

being monitored by police.

               Accordingly, it is hereby ORDERED that Defendant Tony Bryant’s oral motion

to preclude portions of the audio recording is DENIED.



Date: January 23, 2017                                                     /s/
                                                            ROSEMARY M. COLLYER
                                                            United States District Judge
