See e.g., United States v. Nazemian, 948 F.2d 522, 529 (9th Cir. 1991), cert. denied, ___ U.S. ___, 113 S.Ct. 107, 121 L.Ed.2d 65 (1992); Garlington v. O'Leary, 879 F.2d 277, 283 (7th Cir. 1989); United States v. Urbanik, 801 F.2d 692, 698 (4th Cir. 1986); but see United States v. Kocher, 948 F.2d 483, 485 (8th Cir. 1991) ("in furtherance" language to be broadly construed); United States v. Beale, 921 F.2d 1412, 1422 (11th Cir.) (same), cert. denied, ___ U.S. ___, ___, 112 S.Ct. 99, 100, 116 L.Ed.2d 71, 71 (1991). We applied the "in furtherance" test narrowly in United States v. Wolf, 839 F.2d 1387 (10th Cir.), cert. denied, 488 U.S. 923, 109 S.Ct. 304, 102 L.Ed.2d 323 (1988), when we held that statements are not in furtherance of the conspiracy if they are "mere narratives", that is "`statements relating to past events, even those connected with the operation of the conspiracy where the statement serves no immediate or future conspiratorial purpose,'" id. at 1393 (quoting 4 D. Louisell C. Mueller, Federal Evidence § 427 (1980)); see also Johnson, 927 F.2d at 1002; Urbanik, 801 F.2d at 698. "Conversely, statements are admissible under the coconspirator exception if they are intended `"to promote the conspiratorial objectives.

See United States v. Alcorta, 853 F.3d 1123, 1139 (10th Cir. 2017) (“When a conspiracy is ongoing, statements that relate to ‘avoiding detection by law enforcement personnel' can be in furtherance of the conspiracy.” (citation omitted)); see also United States v. Wolf, 839 F.2d 1387, 1393 (10th Cir. 1988) (“[C]oncealment of the crime done in furtherance of the main criminal objectives of the conspiracy falls within the coconspirator exception.”). The Court therefore finds that this statement is in the course of and in furtherance of the conspiracy.

"Rule 801(d)(2)(A) does not ... permit such a statement to be used against anyone other than the party who made the statement, such as codefendants." United States v. DeLeon, 287 F. Supp. 3d 1187, 1256 (D.N.M. 2018) (Browning, J.)(citing United States v. Wolf, 839 F.2d 1387, 1393 & n.4 (10th Cir. 1988) ; Stephen A. Saltzburg et al., Federal Rules of Evidence Manual § 801.02[6][c] (11th ed. 2017)). Any of Pratt's statements which the In re Pratt Decision and other In re Pratt documents contain are, therefore, admissible against Pratt, but not against the Parwatikar Defendants.

" Rule 801(d)(2)(A) does not ... permit such a statement to be used against anyone other than the party who made the statement, such as codefendants." United States v. DeLeon, 287 F. Supp. 3d at 1256 (citing United States v. Wolf, 839 F.2d 1387, 1393 & n.4 (10th Cir. 1988) ; Stephen A. Saltzburg, et al., Federal Rules of Evidence Manual § 801.02[6][c] (11th ed. 2017)). "The United States Court of Appeals for the Tenth Circuit has stated that proponents of such evidence ‘need only show by a preponderance of the evidence that the opposing party had made the statement.’ "

To make the materiality determination, [the court] view[s] the suppressed evidence's significance in relation to the record as a whole." Hughes, 33 F.3d at 1251 (quoting United States v. Wolf, 839 F.2d 1387, 1391 (10th Cir. 1988), cert. denied, 488 U.S. 923 (1988). Defendant argues that the disclosure of Mr. Campbell as an FBI source constituted newlydiscovered evidence.

In order to establish a Brady violation, a petitioner must show that: "(1) the prosecution suppressed the evidence; (2) the evidence would have been favorable to the accused; and (3) the suppressed evidence is material." United States v. Wolf, 839 F.2d 1387, 1391 (10th Cir.), cert. denied, 488 U.S. 923, 109 S.Ct. 304, 102 L.Ed.2d 323 (1988).

In order to establish a Brady violation, Relish must prove: (1) suppression of evidence by the prosecution; (2) that the evidence would have been favorable to him; and (3) that the evidence is material. United States v. Wolf, 839 F.2d 1387, 1391 (10th Cir. 1988), cert. denied 488 U.S. 923, 109 S.Ct. 304, 102 L.Ed.2d 323 (1988); see also Moore v. Illinois, 408 U.S. 786, 794-95, 92 S.Ct. 2562, 2568, 33 L.Ed.2d 706 (1972). It is important to note that the Brady rule is not a rule of discovery; instead, it is grounded in the United States Constitution's due process clauses and is intended to protect the criminal defendant's right to a fair trial.

When a conspiracy is ongoing, statements that relate to "avoiding detection by law enforcement personnel" can be in furtherance of the conspiracy. Williamson , 53 F.3d at 1520 ; see United States v. Wolf , 839 F.2d 1387, 1393 (10th Cir. 1988) ("[C]oncealment of the crime done in furtherance of the main criminal objectives of the conspiracy falls within the coconspirator exception."). Defendant's first timing argument concerns all statements made by coconspirators after their arrests.

We have held that any error in admitting coconspirator hearsay statements is harmless when the declarant testifies at trial and is subject to cross examination about the statements. Townley, 472 F.3d at 1274;United States v. Gary, 999 F.2d 474, 479 (10th Cir.1993) (citing United States v. Wolf, 839 F.2d 1387, 1395–96 (10th Cir.1988)); see also Crawford v. Washington, 541 U.S. 36, 59 n. 9, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (“The [Confrontation] Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.”). Both Burnett and Medved testified and were cross-examined about the subjects of each of these statements, so even if they were admitted in error, their admission was harmless. This rule would not apply to statements by O'Connell, who did not testify at trial, or McIntosh, who died prior to Rutland's trial, but as discussed, all out-of-court statements by these men were properly admitted.

"[T]o establish a Brady violation, the defense must prove that: (1) the prosecution suppressed the evidence; (2) the evidence would have been favorable to the accused; and (3) the suppressed evidence is material." United States v. Wolf, 839 F.2d 1387, 1391 (10th Cir. 1988). The defendant cannot show suppression where the evidence was not known to the government at the time of trial.