Opinion
Criminal Case No. 09-cr-00056-PAB.
July 26, 2011
ORDER
This matter comes before the Court on the Government's James Submission [Docket No. 457], the Government's Supplemental James Submission [Docket No. 490], and the Government's Second Supplemental James Submission [Docket No. 718]. The Court held James hearings on November 4-5, 2010, May 12, 2011, and July 1, 2011.
A. The Existence of a Conspiracy and its Membership
"`Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." United States v. Lewis, 594 F.3d 1270, 1282 (10th Cir. 2010) (quoting Fed.R.Evid. 801(c)). "Although hearsay statements are generally not admissible at trial, see Fed.R.Evid. 802, `a statement by a coconspirator of a party during the course and in furtherance of the conspiracy' is not hearsay, and is therefore admissible as substantive evidence against the party." United States v. Hall, 473 F.3d 1295, 1302-03 (10th Cir. 2007) (quoting Fed.R.Evid. 801(d)(2)(E)). For a statement to be admissible under Fed.R.Evid. 801(d)(2)(E), the district court must first find the following elements by a preponderance of the evidence: "(1) that a conspiracy existed; (2) that the declarant and the defendant were both members of the conspiracy; and (3) that the statements were made in the course of and in furtherance of the conspiracy." Id.
Under Tenth Circuit law, the district court makes these factual determinations regarding the admissibility of co-conspirator statements under Fed.R.Evid. 801(d)(2)(E) by using one of two procedures: "(1) it may hold a `James hearing'" — a preliminary hearing outside the presence of the jury expressly for the purpose of making such determinations, see generally, United States v. James, 590 F.2d 575 (5th Cir. 1979), or "(2) it may provisionally admit the evidence with the caveat that the evidence must `connect up' during trial, i.e., that the party offering the evidence must prove the existence of the predicate conspiracy through trial testimony or other evidence." United States v. Owens, 70 F.3d 1118, 1123 (10th Cir. 1995). The Tenth Circuit has expressed its "strong preference for James proceedings." United States v. Townley, 472 F.3d 1267, 1273 (10th Cir. 2007), quoting United States v. Gonzalez-Montoya, 161 F.3d 643, 648 (10th Cir. 1998). "The reason for this preference is that if the court provisionally admits a statement with the idea that the statement and other evidence will later `connect up' showing the existence of a predicate conspiracy, there is the risk of undue prejudice if in the end the evidence does not in fact `connect up.'" United States v. Urena, 27 F.3d 1487, 1491 (10th Cir. 1994) (internal citations and quotations omitted). Regardless of which procedure is followed by the district court, the same facts must be proven by a preponderance of the evidence in order for the statements to be admissible. Townley, 472 F.3d at 1273; United States v. Lopez-Gutierrez, 83 F.3d 1235, 1242 (10th Cir. 1996).
In determining whether a conspiracy exists, "the court may consider the hearsay statement sought to be admitted, along with independent evidence tending to establish the conspiracy." Lopez-Gutierrez, 83 F.3d at 1242. The existence of a conspiracy may be "inferred from a unity of purpose or common design and understanding among conspirators to accomplish the objects of the conspiracy." United States v. Thompson, 518 F.3d 832, 853 (10th Cir. 2008) (internal quotations and citations omitted). It may also be inferred "from the acts of the parties and other circumstantial evidence indicating concert of action for the accomplishment of a common purpose." United States v. Scull, 321 F.3d 1270, 1282 (10th Cir. 2003). However, the inference of an agreement must be more than mere speculation or conjecture. United States v. Delgado-Uribe, 363 F.3d 1077, 1083 (10th Cir. 2004). For its preliminary determination under Fed.R.Evid. 801(d)(2)(E), it is not necessary for the government to prove that the conspiracy was for unlawful purposes. United States v. Martinez, 825 F.2d 1451, 1452 (10th Cir. 1987).
Evidence showing a defendant's involvement in a conspiracy may include the co-conspirator statements themselves, but there must also be some independent evidence beyond those statements that links the defendant to the conspiracy. See Lopez-Gutierrez, 83 F.3d at 1242. The independent evidence may be sufficient even if it is not substantial. Id. While "mere presence at the crime scene is not sufficient in and of itself" to establish a defendant's involvement in a conspiracy, it is "a material and probative factor which the jury may consider." United States v. Savaiano, 843 F.2d 1280, 1294 (10th Cir. 1988). It may be presumed "that a defendant acting in furtherance of a conspiracy is a knowing participant therein." United States v. Delgado-Uribe, 363 F.3d 1077, 1083 (10th Cir. 2004). "[A] conspiracy, once instituted, continues to exist until it is abandoned, succeeds, or is otherwise terminated by some affirmative act, such as withdrawal by the defendant." United States v. Russell, 963 F.2d 1320, 1322 (10th Cir. 1992).
Statements by a conspirator are in furtherance of the conspiracy when they are "intended to promote the conspiratorial objectives." United States v. Townley, 472 F.3d 1267, 1273 (10th Cir. 2007), quoting United States v. Reyes, 798 F.2d 380, 384 (10th Cir. 1986). Promotion may occur through "statements that explain events of importance to the conspiracy in order to facilitate its operation, statements between coconspirators which provide reassurance, which serve to maintain trust and cohesiveness among them, or which inform each other of the current status of the conspiracy, and statements of a coconspirator identifying a fellow coconspirator." Townley, 472 F.3d at 1273 (internal citations omitted). They may also include statements which identify the defendant as "a member of the conspiracy, and describ[e] his function in assisting the organization in avoiding detection by law enforcement." United States v. Williamson, 53 F.3d 1500, 1520 (10th Cir. 1995). "A court may conclude that the statements are in furtherance of a conspiracy even though the statements are susceptible of alternative interpretations." United States v. Marin, 7 F.3d 679, 690 (7th Cir. 1993). "[P]revious statements made by co-conspirators are admissible against a defendant who subsequently joins the conspiracy." United States v. Brown, 943 F.2d 1246, 1255 (10th Cir. 1991).
"[I]n deciding whether the offering party has satisfied its burden at a James hearing, the district court has the discretion to consider any evidence not subject to a privilege, including both the coconspirator statements the government seeks to introduce at trial and any other hearsay evidence, whether or not that evidence would be admissible at trial." United States v. Owens, 70 F.3d 1118, 1124 (10th Cir. 1995). "The co-conspirator hearsay exception contains no requirement that the declarant be a defendant, only that she be a member of the conspiracy." Champagne Metals v. Ken-Mac Metals, Inc., 458 F.3d 1073, 1081 n. 5 (10th Cir. 2006) (internal citations omitted). "[T]here is no requirement that a district court make findings on the record before the nonhearsay is admitted. The court must only resolve the preliminary Rule 801 questions and `be satisfied that the statement actually falls within the definition of the Rule.'" United States v. Merrick, 299 F. App'x 820, 823 (10th Cir. 2008), quoting Bourjaily v. United States, 483 U.S. 171, 185 (1987) (emphasis in original).
Based upon the government's James submissions, the defendants' exhibits, and the testimony at the November 4, 2010 hearing, the Court makes the following findings by a preponderance of the evidence:
1. The government has shown that a conspiracy to distribute methamphetamine and cocaine did exist and that such conspiracy operated between at least September 30, 2007 and January 2009.
2. The government has shown, and the Court finds, that the conspiracy included the following members:
a. Jose Garcia-Sanchez and Kelvin Duran since September 30, 2007;
b. Anthony Rodriguez since November 2007;
c. German Martinez-Reyes since December 2007;
d. Elizabeth Vega since mid-December 2007;
e. Francisco Ramirez-Soto, Juan Serrano-Mendez, Guillermo Hernandez, and Jaime Lopez since late December 2007;
f. Erick Medina-Cardona since January 2008;
g. Carlos Ramos-Carrillo and Jose Ramirez-Lopez since February 13, 2008.
The following defendants have entered guilty pleas wherein they have admitted their participation in crimes that occurred during the conspiracy: Jose Garcia-Sanchez pled guilty to Count 1, the conspiracy count; Anthony Rodriguez pled guilty to facilitating a narcotics transaction during the time of the conspiracy; Juan Serrano-Mendez pled guilty to distributing methamphetamine and cocaine during the conspiracy; Kelvin Duran pled guilty to concealment of the drug trafficking conspiracy in violation of 18 U.S.C. § 4; Jaime Lopez pled guilty to distribution of narcotics during the conspiracy; Erick Medina-Cardona pled guilty to distributing narcotics during the conspiracy; and Guillermo Hernandez pled guilty to possession with intent to distribute methamphetamine during the conspiracy.
The existence of the conspiracy and the defendants' membership in the conspiracy was shown by the testimony of Officer Prince at the James hearing and by corroboration from traffic stops and surveillance — independent of the statements themselves.
Defendant Vega denies being a member of the conspiracy. However, Ms. Vega knew that Juan Garcia-Sanchez, with whom she was living, was a drug dealer, see Exh. A (Vega interview memo dated 3-3-09), at 3. Since mid-December 2007, intercepted telephone calls show that Vega played an active (although not a major) role in assisting Garcia-Sanchez distribute drugs. See Exhs. 37-1, 37-2, 37-4. Moreover, she admitted to law enforcement on March 3, 2009 that she provided money to Garcia-Sanchez three or four times to facilitate Garcia-Sanchez's purchase of narcotics. Exh. A at 4. Vega, who knew that Garcia-Sanchez had no legitimate employment, also played a role in sending proceeds of the conspiracy to Honduras in the form of cash and automobiles. Once Garcia-Sanchez was arrested in March 2008, Vega's role in the drug distribution aspect of the conspiracy increased.
Defendant Carlos Ramos-Carrillo also denies being a member of the conspiracy. However, the evidence shows that Ramos-Carrillo was the apartment manager at the so-called "stash house" at 1384 Jamaica Street. Ramos-Carrillo knowingly provided apartments for members of the conspiracy to store narcotics and firearms and also conducted surveillance on behalf of conspirators.
B. Preliminary Determination of Admissibility Under Fed.R.Evid. 801(d)(2)(E)
The Court finds that the following statements were made during the conspiracy and in furtherance of the conspiracy (except where indicated):
1. Exhibit 1 Exhibit Number Statements of
1-1, 1-3, 1-4, 1-6, 1- Garcia-Sanchez 7, 1-8, 1-10, 1-11, 1-12 1-2 Duran 1-5 (duplicate of 1-4) 1-9 Anthony Rodriguez2. Exhibit 2 Exhibit Number Statements of
2-1, 2-3, 2-5 Garcia-Sanchez 2-2, 2-4 Anthony Rodriguez 3. Exhibit 3 Exhibit Number Statements of 3-1, 3-2, 3-3, 3-4, 3- Garcia-Sanchez and German Martinez- 6, 3-7 Reyes 3-5 Garcia-Sanchez and Ramirez-Soto 4. Exhibit 4 Exhibit Number Statements of 4-1, 4-2, 4-3, 4-4, 4- Garcia-Sanchez and Jaime Lopez 5, 4-6, 4-8, 4-9 4-7 Garcia-Sanchez 5. Exhibit 5 Exhibit Number Statements of 5-1, 5-2, 5-3, 5-4 Garcia-Sanchez 5-5, 5-6, 5-7, 5-8, 5- Garcia-Sanchez and Ramirez-Soto 10 5-9 Garcia-Sanchez and Serrano-Mendez 6. Exhibit 6 Exhibit Number Statements of 6-1, 6-3 Garcia-Sanchez 6-2, 6-4 Garcia-Sanchez and Serrano-Mendez7. Exhibit 7 Exhibit Number Statements of
7-1, 7-2, 7-3, 7-4 Serrano-Mendez 8. Exhibit 8 Exhibit Number Statements of 8-1, 8-2, 8-4, 8-5 Serrano-Mendez 8-3 Serrano-Mendez and Garcia-Sanchez 9. Exhibit 9 Exhibit Number Statements of 9-1, 9-2, 9-4, 9-5 Serrano-Mendez 9-3 Duplicate of 8-3 10. Exhibit 10 Exhibit Number Statements of 10-1, 10-2, 10-3, Serrano-Mendez 10-4, 10-5, 10-7, 10-10, 10-11, 10-12, 10-14, 10-15, 10-16, 10-19, 10-21 10-6 This exhibit consists of a Dec. 27, 2007 call between Garcia-Sanchez and Ramirez-Soto which has no apparent connection to the conspiracy and is excluded as not in furtherance of the conspiracy. 10-8, 10-13, 10-17 Serrano-Mendez and Garcia-Sanchez 10-9 This exhibit (call #1302) consists of a February 16, 2008 conversation among Garcia-Sanchez, Medina-Cardona, and "Chara" that does not match the description contained in Exh. 10. Not admitted. 10-18 This exhibit consists of a February 17, 2008 conversation (call #1451) between Garcia- Sanchez and Juan LNU; it does not match the description in Exhibit 10. Not admitted. 10-20 This exhibit (T12-D001557-58) contains no transcript or description of a call. 11. Exhibit 11 Exhibit Number Statements of 11-1, 11-3, 11-4 Serrano-Mendez 11-2, 11-5 Serrano-Mendez and Garcia-Sanchez 12. Exhibit 12 Exhibit Number Statements of 12-1, 12-3, 12-4 Garcia-Sanchez 12-2, 12-5 Garcia-Sanchez and Serrano-Mendez 13. Exhibit 13 Exhibit Number Statements of 13-1, 13-2, 13-4, A. Rodriguez and Jaime Lopez 13-5, 13-6, 13-7 13-3, 13-8 Jaime Lopez 14. Exhibit 14 Exhibit Number Statements of 14-1 Garcia-Sanchez and Jaime Lopez Note: Exhibit 14 inaccurately describes this exhibit as a conversation between Garcia- Sanchez and Guero LNU. 14-2, 14-6 Garcia-Sanchez and Serrano-Mendez 14-3 Garcia-Sanchez and Medina-Cardona 14-4, 14-5 Garcia-Sanchez 15. Exhibit 15 Exhibit Number Statements of 15-1, 15-3 Garcia-Sanchez 15-2, 15-4, 15-5, Garcia-Sanchez and Serrano-Mendez 15-6 16. Exhibit 16 Exhibit Number Statements of 16-1, 16-2, 16-3, Serrano-Mendez 16-4 17. Exhibit 17 Exhibit Number Statements of 17-1, 17-3, 17-4 Garcia-Sanchez 17-2, 17-5 Garcia-Sanchez and Vega 18. Exhibit 18 Exhibit Number Statements of 18-1, 18-2, 18-3, Ramirez-Soto 18-4 19. Exhibit 19 Exhibit Number Statements of 19-1, 19-2A, 19-3, Serrano-Mendez 19-4, 19-5, 19-6, 19-10 19-2 This call (#1607) does not match the description in Exhibit 19. Not admitted. 19-7, 19-9 Serrano Mendez and Medina-Cardona 19-8 Serrano-Mendez and Garcia-Sanchez 19-11, 19-12 Garcia-Sanchez and Guillermo Hernandez 20. Exhibit 20 Exhibit Number Statements of 20-1, 20-2 Ramirez-Soto 21. Exhibit 21 Exhibit Number Statements of 21-1, 21-7, 21-8 Garcia-Sanchez and Vega 21-2 Garcia-Sanchez 21-3, 21-5 Garcia-Sanchez and Medina-Cardona 21-4 Garcia-Sanchez and Ramos-Carrillo 21-6 Garcia-Sanchez and Serrano-Mendez 22. Exhibit 22 Exhibit Number Statements of 22-1, 22-2, 22-3, Serrano-Mendez 22-8 22-4 Not admissible under Rule 801(d)(2)(E) since not a statement of a co-conspirator. 22-5 Garcia-Sanchez and Serrano-Mendez 22-6 Garcia-Sanchez, Serrano-Mendez and Medina-Cardona 22-7 Garcia-Sanchez and Medina-Cardona 22-9 Garcia-Sanchez and Vega 22-10 Garcia-Sanchez23. Exhibit 23 Exhibit Number Statements of
23-1, 23-3 Serrano-Mendez 23-2 Serrano-Mendez and Medina-Cardona 24. Exhibit 24 Exhibit Number Statements of 24-1, 24-3, 24-5, Garcia-Sanchez and Medina-Cardona 24-7, 24-10, 24-11, 24-13 24-2, 24-9 Garcia-Sanchez and Serrano-Mendez 24-4, 24-6, 24-14, Garcia-Sanchez and Guillermo Hernandez 24-15 24-8 (Withdrawn by government) 24-12 Garcia-Sanchez and Ramos-Carrillo 24-16, 24-17 Garcia-Sanchez 25. Exhibit 25 Exhibit Number Statements of 25-1, 25-3, 25-7 Garcia-Sanchez 25-2, 25-4, 25-8 Garcia-Sanchez and Guillermo Hernandez 25-5, 25-6 Garcia-Sanchez and Medina-Cardona 26. Exhibit 26 Exhibit Number Statements of 26-1, 26-3, 26-10 Garcia-Sanchez and Medina-Cardona 26-2 Garcia-Sanchez and Vega 26-4, 26-8 Ramirez-Lopez and Medina-Cardona 26-5 Garcia-Sanchez 26-7, 26-9 Ramirez-Lopez 26-6, 26-11 Garcia-Sanchez and Ramirez-Lopez 26-12 Medina-Cardona and Ramirez-Lopez 27. Exhibit 27 Exhibit Number Statements of 27-1 Garcia-Sanchez and Vega 27-2, 27-3 Garcia-Sanchez 28. Exhibit 28 Exhibit Number Statements of 28-1, 28-2 Garcia-Sanchez 28-3 Garcia-Sanchez and Guillermo Hernandez 29. Exhibit 29 Exhibit Number Statements of 29-1, 29-2, 29-3, Garcia-Sanchez 29-5, 29-6 29-4 Garcia-Sanchez and Vega 29-7, 29-9, 29-10, Garcia-Sanchez and Ramos-Carrillo 29-11 29-8 This exhibit (call #2781) does not match description in Exh. 29 and does not involve co-conspirators or any conversation in apparent furtherance of conspiracy. Not admitted.30. Exhibit 30 Exhibit Number Statements of
30-1, 30-2, 30-3, Garcia-Sanchez 30-7 30-4 Garcia-Sanchez and Guillermo Hernandez 30-5, 30-6, 30-8, Garcia-Sanchez and Vega 30-10, 30-13 30-9 Garcia-Sanchez and Ramos-Carrillo 30-11, 30-12 Guillermo Hernandez and Vega 31. Exhibit 31 Exhibit Number Statements of 31-1, 31-3, 31-4 Garcia-Sanchez 31-2 Garcia-Sanchez and Vega 32. Exhibit 32 Exhibit Number Statements of 32-1, 32-2, 32-3, Ramirez-Soto 32-4, 32-5, 32-6, 32-7, 32-8, 32-9, 32-10, 32-11, 32-12, 32-13, 32-14, 32-15, 32-16, 32-17, 32-18, 32-19, 32-20, 32-21, 32-22 32-23 This exhibit (call #1903) does not contain statements in furtherance of the conspiracy. Not admitted. 32-24 Excluded as not involving co-conspirator statements and not being in furtherance of the conspiracy.33. Exhibit 33 Exhibit Number Statements of
33-1, 33-2, 33-3, Vega 33-5, 33-10, 33-17, 33-19 33-4, 33-9, 33-15, Vega and Guillermo Hernandez 33-16, 33-22, 33-24, 33-25, 33-26 33-6, 33-7, 33-11, Vega and Garcia-Sanchez 33-12, 33-13, 33-18, 33-20, 33-21, 33-27 33-8 Vega, Medina-Cardona, and Ramos-Carrillo 33-14 Vega and Medina-Cardona 33-23 Vega, Guillermo Hernandez, and Garcia- Sanchez 34. Exhibit 34 Exhibit Number Statements of 34-1, 34-2 Garcia-Sanchez 34-3 Garcia-Sanchez and Ramirez-Lopez 34-4 Garcia-Sanchez and A. Rodriguez 34-5 No exhibit in exhibit notebook. 35. Exhibit 35 Exhibit Number Statements of 35-1 Garcia-Sanchez and Kelvin Duran 35-2, 35-7, 35-36, Garcia-Sanchez and Guillermo Hernandez 35-37, 35-38 35-3 Kelvin Duran 35-4, 35-5, 35-8, Garcia-Sanchez 35-9, 35-11, 35-22, 35-28, 35-33, 35-42 35-6, 35-15, 35-17, Garcia-Sanchez and Medina-Cardona 35-19, 35-20, 35-23, 35-24, 35-27, 35-29, 35-31, 35-32, 35-35, 35-48, 35-49, 35-53 35-10, 35-14, 35-16, Garcia-Sanchez and Ramirez-Lopez 35-18, 35-21, 35-25, 35-30, 35-34 35-12, 35-13, 35-26, Garcia-Sanchez and Ramos-Carrillo 35-40, 35-41, 35-43 35-39 Garcia-Sanchez and Serrano-Mendez 35-44, 35-45 Vega 35-46 Vega, Hernandez, and Garcia-Sanchez 35-47, 35-50, 35-51, Garcia-Sanchez and Anthony Rodriguez 35-52, 35-54, 35-55, 35-56, 35-57, 35-58 36. Exhibit 36 Exhibit Number Statements of 36 Duran 37. Exhibit 37 Exhibit Number Statements of 37-1, 37-2 Vega and Garcia-Sanchez 37-3 Garcia-Sanchez and Jaime Lopez 37-4, 37-5, 37-6, Garcia-Sanchez and Vega 37-7, 37-838. Exhibit 38 Exhibit Number Statements of
Statement 1 Garcia-Sanchez 39. Exhibit 39 Exhibit Number Statements of Statement 1, Garcia-Sanchez Statement 2 Statement 3 Vega