Opinion
No. CR 08-0730 WHA
10-25-2011
UNITED STATES OF AMERICA, Plaintiff, v. DANILO VELASQUEZ, et al, Defendants.
ORDER DENYING DEFENDANT DANILO VELASQUEZ'S MOTION
TO EXCLUDE TWO STATEMENTS
Defendant Velasquez previously moved to exclude two statements noticed by the government as coconspirator statements, arguing that the statements failed to qualify for admission under Rule 801(d)(2)(e) (Dkt. No. 5144 at 3). A ruling on the motion was reserved as additional information was needed from the government regarding the context of the statements. The government has now submitted the requested supplemental response and after consideration of that response and all prior briefing, the motion is D ENIED (Dkt. No. 5244).
The indictment charges three separate conspiracies but they are somewhat overlapping and all relate to the same clique of MS-13. Therefore, for the sake of simplicity, this order will refer to "conspiracy" although there are three conspiracies charged.
First, the government has notified the parties that it will no longer seek to introduce the statement regarding the stabbing of Edgar Caria. The motion with respect to that statement is accordingly moot.
Second, the supplemental information provided by the government with respect to the remaining objected-to statement — that defendant Velasquez allegedly stated that a jale had to be done against a member of Douglas Largaespada's family due to Largaespada's suspected cooperation with law enforcement — has established that the statement is admissible as a coconspirator statement.
Significantly, the government has identified the declarant of the statement as defendant Velasquez. This addresses the motion's concern that the statement was made by an unidentified declarant who cannot be shown to have known of the conspiracy or to have joined it.Additionally, the identification of defendant Velasquez as the declarant makes clear that the statement was made in early 2009 (as identified in the disclosure) — and there is ample pretrial evidence that the charged conspiracy existed at that time. And most notably, the fact the statement was made by defendant Velasquez makes clear that the statement was made in furtherance of the conspiracy. Through the statement, defendant Velasquez sought to direct his fellow conspirators to execute the gang's common purpose of attacking rivals and served to bolster defendant Velasquez's status among his fellow gang members as a "leader." See, e.g., United States v. Flores, 572 F.3d 1254, 1264 (11th Cir. 2009); United States v. Yarbrough, 852 F.2d 1522, 1535-36 (9th Cir. 1988).
As previously stated, no statement will be excluded at this juncture on the ground that there is insufficient evidence that defendant Velasquez was a member of the charged conspiracies at the time a purported coconspirator statement was made (Dkt. No. 5230).
Finally, contrary to the motion's assertion, there is no requirement that the government prove up the killing of Largaespada's father for the statement to be admissible. The statement itself — whether or not a killing actually occurred or was done at the behest of defendant Velasquez — is admissible evidence of the conspiracy.
Defendant Velasquez has not been substantively charged with the killing of Largaespada's father.
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IT IS SO ORDERED.
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE