Opinion
2:19-cr-00107-KJM
01-11-2024
United States of America, Plaintiff, v. Ronald Yandell, Daniel Troxell, William Sylvester, and Jason Corbett, Defendants.
ORDER
For the reasons explained in this order, the United States' motion (ECF No. 1699) for a pretrial finding of a conspiracy for purposes of Federal Rule of Evidence 801(d)(2)(E) is denied.
The United States alleges defendants Ronald Yandell, Daniel Troxell, William Sylvester, Brant Daniel, Pat Brady, Jason Corbett and others-allegedly members or associates of the Aryan Brotherhood-were part of a conspiracy to commit murder and distribute controlled substances in violation of the federal Racketeer Influenced and Corrupt Organizations Act (RICO), among other things. A trial is set to begin on these and other charges against defendants Yandell, Troxell, Sylvester and Corbett in February 2024.
Defendants Daniel and Brady recently have entered changes of plea, each pleading guilty to one charge in the Superseding Indictment, with the result the court has vacated the trial date as to them. See Mins. for Change of Plea Hr'g, ECF No. 1782 (Brady); Mins. for Change of Plea Hr'g, ECF No. 1766 (Daniel).
Several months ago, the same defendants moved to compel the government to disclose before trial which statements it will attempt to introduce at trial in reliance on the hearsay exception in Federal Rule of Evidence 801(d)(2)(E). That rule permits a court to admit statements by a party's co-conspirator in some situations: “A statement that meets the following conditions is not hearsay: . . . The statement is offered against an opposing party and . . . was made by the party's coconspirator during and in furtherance of the conspiracy.” Fed.R.Evid. 801(d)(1)(E).
The court denied the defendants' motion. See generally Order (Feb. 16, 2023), ECF No. 1444. Rather than ordering the government to disclose specific statements before trial, the court decided it would permit the government to introduce those statements provisionally at trial-i.e., subject to later proof of the necessary conspiracy and with the understanding that if the conspiracy went unproven, the defense could move to strike the hearsay and even seek a mistrial. See id. at 4, 10. Among other reasons, the court found the government also had already disclosed a great deal of information about how it intended to prove a conspiracy, and at the time several defendants other than the six listed above had entered plea agreements and had admitted to participating in a conspiracy. See id. at 8-9. These disclosures reduced the risk of a successful defense motion to strike by reducing in turn the risk the government would not ultimately prove the prerequisite conspiracy. Id. And finally, waiting until trial would allow the court to make the required evidentiary decisions with a better illustration of each statement's context. Id. at 9.
Although the court was satisfied the risk of successful motions to strike and for a mistrial likely is lower in this case than others, the court declined the government's request to find then and there it had already proven the necessary conspiracy. See id.; see also Opp'n Mot. Disclose at 6-15, ECF No. 1334. The court did not rule out the possibility the government could make the necessary showing in a pretrial motion. Order (Feb. 16, 2023) at 9. Nor did it rule out the possibility the defense could successfully move to exclude specific statements before the trial began. Id.
The government now moves for “a pretrial finding that the Aryan Brotherhood was a ‘conspiracy' for purposes of Rule 801(d)(2)(E).” Mot. at 1, ECF No. 1699. It does not ask the court “to rule that any specific statements are in furtherance of the conspiracy.” Id. at 16. At this point, Yandell, Troxell, Sylvester and Corbett oppose that motion, first because the “conspiracy” in question is so expansive, see Opp'n at 4-5, ECF No. 1724, and second because the government does not identify any specific statements or their context, see id. at 5-6. The government replied, ECF No. 1745, and the court heard arguments at combined motion hearings and status conferences on December 20, 2023, Mins., ECF No. 1768, and January 10, 2024, Mins., ECF No. 1794.
The defense has persuasively explained two faults in the government's motion. First, practically speaking, the government's burden is to prove three things for each statement it offers under Rule 801(d)(2)(E): (1) there was a conspiracy involving the person who made the statement and the defendant or defendants against whom the statement will be admitted, (2) the statement was made during that conspiracy, and (3) the statement was made “in furtherance” of that conspiracy. Bourjaily v. United States, 483 U.S. 171, 175 (1987) (quoting Fed.R.Evid. 801(d)(2)(E)). As these elements make clear, “context is important.” United States v. Marino, 277 F.3d 11, 26 (1st Cir. 2002). The conspiracy during which a statement is made might be different from the conspiracy in the indictment, broader or narrower, overlapping or independent. See, e.g., United States v. Musaibli, 42 F.4th 603, 615 (6th Cir. 2022); Marino, 277 F.3d at 2526; United States v. Gigante, 166 F.3d 75, 82 (2d Cir. 1999). And a court cannot decide whether a statement is admissible under Rule 801(d)(2)(E) without proof the speaker and listener were part of the same ongoing conspiracy and there was a connection between that conspiracy and statement. See, e.g., Musaibli, 42 F.4th at 614-19 (considering carefully whether evidence showed particular documents furthered specific terroristic, conspiratorial ends).
When courts have allowed the government to rely on the hearsay exception in Rule 801(d)(2)(E), they typically have done so with the benefit of a record identifying specific statements and their context, including in the cases the parties emphasize in their briefing and in arguments on the pending motion. In Musaibli, for example, the government had identified several specific exhibits before trial. See 42 F.4th at 609, 614-19. In Gigante, the Second Circuit held it was error for the district court to have decided during trial that “there [was] a general overriding conspiracy,” but the appellate court agreed some specific statements “were properly admitted,” whereas others were not. 166 F.3d at 83. Context was “important” in Marino as well: the court considered specific disputed statements, who uttered those statements, why, and in what circumstances. 277 F.3d at 26.
Although the government offers several pages of information about its proposed conspiracy, see Mot. at 7-15, it does not explain how it will tie any particular statement to that conspiracy. It offers only several broad “categories” of statements that might be admissible, such as reports to higher-ups, discussions of future plans, and “statements arranging to sell drugs and discussing the source of the drugs.” Id. at 16-17. The government does point to the affidavit attached to the criminal complaint, which does identify several statements or parts of statements. See Compl. at 26 n.6, 29-30, 65, 80-84, 107-08, 110-11, 115-16, ECF No. 1. But the government does not show why these particular statements are admissible under Rule 801(d)(2)(E). Nor is the government's motion limited to those statements or the period in which they were made. The government's current motion offers little more than its opposition to the defense motion for pretrial disclosures. Compare Mot. at 7-15 with Opp'n Mot. Disclose at 615. The court declines again now, as then, to make final decisions about admissibility without knowing the speakers, the listeners, their purposes, what was said, as well as other necessary context.
Second, the government's proposed conspiracy lacks clear limits. Although gangs organized to commit murder and sell drugs might certainly be “conspiracies” under Rule 801(d)(2)(E), see, e.g., Marino, 277 F.3d at 26, prosecutors must prove there was “a specific criminal conspiracy” to achieve a specific end, not just a gang, “organized crime,” or “the Mafia,” for example, Gigante, 166 F.3d at 83. In opposition, the defense argues the government's current proposal could lead to the admission of “virtually any statement made by anyone in the case over three decades.” Opp'n at 5 (emphasis omitted). That claim exaggerates the likely effect of the government's proposal, but its basic thrust is persuasive. The government's motion defines the conspiracy as the Aryan Brotherhood throughout California and everyone connected to it, including every defendant in this case and many unnamed others. The proposed conspiracy spans many years, possibly decades; exactly how long is unclear, as the government does not specify. The purposes of the proposed conspiracy similarly are generic, such as “committing acts of violence.” Mot. at 2. A conspiracy “defined at such a general level” could lead to the admission of “statements that shared no other purpose than the one superimposed on them after the fact by prosecutors.” Musaibli, 42 F.4th at 618.
For these reasons, the motion (ECF No. 1699) is denied, but without prejudice to the admission at trial of specific statements under Rule 801(d)(2)(E).
IT IS SO ORDERED.