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Court filing — No. 2:23-cr-00132 (Dkt. 128)

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        Case 2:23-cr-00132-APG-EJY            Document 128        Filed 12/09/24      Page 1 of 3




 1                              UNITED STATES DISTRICT COURT

 2                                     DISTRICT OF NEVADA

 3 UNITED STATES OF AMERICA,                                Case No.: 2:23-cr-00132-APG-EJY

 4          Plaintiff                                     Order Accepting Magistrate Judge’s
                                                         Report and Recommendation Denying
 5 v.                                                      Motion to Suppress and Denying
                                                           Defendant Kofi Sarfo’s Joinders
 6 KOFI SARFO and ROSE SARFO,
                                                                [ECF Nos. 68, 69, 113, 126]
 7          Defendants

 8         Defendant Rose Sarfo moved to suppress three statements she made to federal agents

 9 when she was arrested. ECF No. 68. She claims these statements were taking in violation of her

10 rights under Miranda v. Arizona, 384 U.S. 444 (1966). Codefendant Kofi Sarfo moved to join

11 Rose’s motion, arguing that admitting her statements would violate his rights under the Sixth

12 Amendment’s Confrontation Clause. ECF No. 69. After conducting an evidentiary hearing,

13 Magistrate Judge Youchah recommended that I deny the motion to suppress and joinder. ECF

14 No. 113. Rose filed an objection to that recommendation and Kofi moved to join her objection.

15 ECF Nos. 121; 126. The Government opposed both objections. ECF Nos. 124; 127. I have

16 conducted a de novo review of the motion to suppress and related papers as required by Local

17 Rule IB 3-2(b). Judge Youchah’s Report and Recommendation sets forth the proper legal

18 analysis and factual bases for the decision, and I adopt it as my own. See ECF No. 118.

19         Although Judge Youchah recommended I deny Kofi’s joinder on the Miranda issue, I

20 will briefly explain why Rose’s statements do not violate the Confrontation Clause. The

21 Confrontation Clause applies only to “testimonial” statements, such as “statements that were

22 made under circumstances which would lead an objective witness reasonably to believe that the

23 statement would be available for use at a later trial . . . .” Crawford v. Washington, 541 U.S. 36,
         Case 2:23-cr-00132-APG-EJY           Document 128        Filed 12/09/24      Page 2 of 3




 1 51-52 (2004) (simplified). This includes statements made to police officers conducting an

 2 interrogation. Id. at 53. Under Crawford, “the Confrontation Clause has no application to [out-

 3 of-court nontestimonial] statements and therefore permits their admission even if they lack

 4 indicia of reliability.” Whorton v. Bockting, 549 U.S. 406, 420 (2007). The determination

 5 whether a statement is testimonial “focuses on the ‘primary purpose’ of the statement, and in

 6 particular on how it relates to a future criminal proceeding. . . . A court must therefore identify

 7 the out-of-court statement introduced, and must determine, given all the ‘relevant

 8 circumstances,’ the principal reason it was made.” Smith v. Arizona, 602 U.S. 779, 800-01

 9 (2024) (quoting Michigan v. Bryant, 562 U.S. 344, 369 (2011)).

10          Rose’s statements may be testimonial. Although not in response to interrogation, Rose

11 knew she was speaking in the presence of law enforcement agents during and after her arrest and

12 that her statements could be used in a later trial. Even if the statements are testimonial, however,

13 they are not precluded at trial because the statements do not directly implicate Kofi in

14 committing a crime. “[T]he Bruton 1 rule applies only to directly accusatory incriminating

15 statements, as distinct from those that do not refer directly to the defendant and become

16 incriminating only when linked with evidence introduced later at trial.” Samia v. United States,

17 599 U.S. 635, 652–53 (2023) (quoting Gray v. Maryland, 523 U.S. 185, 194, 196 (1998))

18 (simplified); see also United States v. Mikhel, 889 F.3d 1003, 1046 (9th Cir. 2018) (“Because

19 Mikhel’s testimony did not facially incriminate Kadamovas, it did not trigger the Bruton rule.”).

20 Here, Rose’s statements do not facially incriminate Kofi. Rose made the following statements

21 during and after her arrest:

22
     1
      Bruton v. United States, 391 U.S. 123, 135-36 (1968) (holding, among other things, that the
23
     admission of “the powerfully incriminating extrajudicial statements of a codefendant,” without
     affording the codefendant the chance to cross-examine, violates the Confrontation Clause).

                                                     2
       Case 2:23-cr-00132-APG-EJY            Document 128         Filed 12/09/24    Page 3 of 3




 1         (1) “Is this about the loan?”

 2         (2) “I knew we shouldn’t have gotten that loan;” and

 3         (3) “those stupid loans . . . we paid back $7,000 . . . we made no money.”

 4 ECF No. 121 at 4. To the extent these statements may corroborate the Government’s evidence,

 5 they “become incriminating only when linked with evidence introduced later at trial.” Gray, 523

 6 U.S. at 196 (simplified). Thus, admitting these statements does not violate the Confrontation

 7 Clause or the Bruton rule.

 8         I THEREFORE ORDER that Magistrate Judge Youchah’s Report and Recommendation

 9 (ECF No. 113) is accepted. Rose Sarfo’s motion to suppress (ECF No. 68) and Kofi Sarfo’s

10 joinders (ECF Nos. 69, 126) are denied.

11         DATED this 9th day of December, 2024.

12

13
                                                ANDREW P. GORDON
14                                              CHIEF UNITED STATES DISTRICT JUDGE

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