Opinion
Criminal Case No. 08-cr-00165-WYD.
April 6, 2010
ORDER
THIS MATTER came before me following the February 4, 2010 hearing on the Government's James Submission filed January 8, 2010 [d/e 215] as well as the continuation of that hearing held on March 12, 2010. Having reviewed the parties pleadings, the testimony of witnesses Jovon Smith and Dorian Whiteside and the arguments of counsel, I find that the Government has shown by a preponderance of the evidence that a conspiracy existed and that Leland Hines, Kenneth McGee, Miguel Sanders, Jovon Smith, Dorian Whiteside and Kareem Anderson were members of the conspiracy. As to the statements that I deferred ruling on at the February 4, 2010, hearing, I find the Government has shown by a preponderance of the evidence that the statements were made in the course of and in furtherance of the conspiracy.
The testimony from the March 12, 2010 hearing indicates that certain of the statements included in the Government's proffer that have been provisionally admitted require slight modifications. Specifically, the statement describing discussions as the conspirators approached the Vectra Bank misidentifies the roles of Kareem Anderson and Jovon Smith. As both Smith and Whiteside indicated at the hearing on March 12, 2010, Smith decided to hold the gun and Whiteside told Anderson to hold the door. In addition, the statement concerning dye packs attributed to Jovon Smith is also inaccurate. Smith testified at the hearing that the Washington Mutual near the intersection of Colfax and Krameria was selected because he knew the bank lacked security, not that the bank lacked dye packs.
Based on the foregoing, and for the reasons stated on the record at both the February 4 and March 12, 2010 hearings, it is
ORDERED that the statements I deferred a ruling on at the February 4, 2010, and that were at issue during the March 12, 2010 hearing, are provisionally admitted as coconspirator statements pursuant to FED. R. EVID. 801(d)(2)(E). If the Government fails to establish the existence of foundational facts at trial, the Defendants may move for appropriate sanctions including mistrial. It is
FURTHER ORDERED that a two-hour hearing is set for Friday, April 16, 2010 at 10:00 a.m. on the following motions: Miguel Sanders's Motion to Sever Offenses Pursuant to Federal Rule of Criminal Procedure 14 filed November 21, 2008 [d/e 98] (joined by Defendants Hines and McGee [d/e 136]); Miguel Sanders's Motion to Sever His Trial From That of His Co-Defendants Pursuant to Federal Rule of Criminal Procedure 14 filed November 21, 2008 [d/e 99] joined by Defendant McGee [d/e 137]; Defendant Miguel Sanders's Amended Motion to Sever His Trial from That of His Co-Defendants Pursuant to the United States Constitution and Federal Rule of Criminal Procedure 14 filed December 7, 2009 [d/e 202]; Defendant Leland Hines's Motion to Sever the Parties filed November 21, 2008 [d/e 100] (joined by Defendant McGee [d/e 138]); Defendant Leland Hines' Renewed and Supplemental Motion for Severance filed December 7, 2009 [d/e 205]; Defendant Kenneth McGee's Motion to Sever filed December 7, 2009 [d/e 203]; Defendant Leland Hines's Motion for Government's Witness List of "Will Call" Witnesses 40 Days Prior to Trial filed December 8, 2009 [d/e 206]; Defendant Miguel Sanders's Supplement to His Amended Motion to Sever His Trial From That of His Co-Defendants Pursuant to the United States Constitution and Federal Rule of Criminal Procedure 14 filed March 26, 2010 [d/e 242]; and Defendant Kenneth McGee's Supplement to Motion to Sever filed March 26, 2010 [d/e 243].