JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE.
The Court takes its background facts from the Second Superseding Indictment, filed March 9, 2017 (Doc. 947) ("Indictment"). The background facts are largely unchanged from those that the Court provided in its Memorandum Opinion and Order, 323 F.R.D. 672, filed December 18, 2017 (Doc. 1585). The Court does not set forth these facts as findings or as the truth. The Court recognizes that the factual background largely reflects the United States' version of events and that the Defendants are all presumed innocent.
This case deals with crimes that the Syndicato de Nuevo Mexico ("SNM") allegedly committed through its members. Indictment at 2. SNM, through its members, operated in the District of New Mexico at all relevant times, and its members engaged in acts of violence and other criminal activities, "including murder, kidnapping, attempted murder, conspiracy to manufacture/distribute narcotics, and firearms trafficking." Indictment at 2. SNM constitutes an enterprise "as defined in Title 18, United States Code, Section 1959(b)(2), that is, a group of individuals associated in fact that engaged in, and the activities of which affected, interstate and foreign commerce." Indictment at 2-3.
SNM is a violent prison gang formed in the early 1980s at the Penitentiary of New Mexico ("PNM") after a violent prison riot at PNM during which inmates seriously assaulted and raped twelve correctional officers after taking them hostage. Indictment at 3. During the riot, thirty-three inmates were killed, and over 200 were injured.
In March, 2014, a Doña Ana County, New Mexico grand jury indicted Defendants Jerry Montoya and Jerry Armenta on charges of first-degree murder, and four other felonies, related to the death of Javier Enrique Molina, Montoya and Armenta's fellow inmate during their incarceration at the Southern New Mexico Correctional Facility ("Southern New Mexico"). Memorandum Opinion and Order at 6, 2016 WL 7242579, at *3, filed October 28, 2016 (Doc. 753) ("MOO"). The New Mexico Third Judicial District Attorney's Office accused Montoya and Armenta of fatally stabbing Molina with a shank in a gang-related attack.
The United States now brings this case, which it initiated in Las Cruces, New Mexico, against thirty-one Defendants, charging them with a total of sixteen counts.
Specifically, the Indictment alleges that, on March 26, 2001, Defendants Angel DeLeon, Joe Gallegos, Edward Troup, Leonard Lujan, and Billy Garcia murdered "F.C." Indictment at 9 (Count 1). On the same day, Lujan, B. Garcia, and Defendants Eugene Martinez, Allen Patterson, and Christopher Chavez allegedly murdered "R.G." Indictment at 10 (Count 2). On June 17, 2007, Defendant Javier Alonso, Troup, A.A. Garcia, Clark, and Defendant Ruben Hernandez allegedly murdered "F.S." Indictment at 10-11 (Count
Further, starting in or around 2003 — until about July 13, 2015 — Baca, Archuleta, and Defendant Conrad Villegas allegedly conspired to commit assault resulting in serious bodily injury to "J.R." Indictment at 13-14 (Count 8). Starting "on a date uncertain, but no later than 2013," and until the date of the Indictment — April 21, 2014 — Baca, R.P. Martinez, and R. Martinez allegedly conspired to murder "D.S." Indictment at 14 (Count 9). During the same time period, Baca, R.P. Martinez, R. Martinez, and Defendant Christopher Garcia allegedly conspired to murder "G.M." Indictment at 15 (Count 10). On November 29, 2015, C. Garcia, a convicted felon, allegedly unlawfully possessed a firearm.
On March 17, 2015, J. Gallegos allegedly committed assault with a dangerous weapon against "J.G." Indictment at 16 (Count 13). From February 1, 2016, until February 27, 2016, J. Gallegos and Defendants Santos Gonzalez, Paul Rivera, Shauna Gutierrez, and Brandy Rodriguez allegedly conspired to murder "J.G." Indictment at 17 (Count 14). Also, on February 27, 2016, J. Gallegos, B. Rodriguez, Gonzalez, Rivera, and Gutierrez allegedly attempted to murder J.G., and committed assault with a dangerous weapon and assault resulting in serious bodily injury to J.G.
For fuller factual context, there are four cases before the Court related to SNM's alleged criminal activity. In a related case —
The Court severed this case into two trial groups.
Before the first trial began, several Defendants asked the Court to hold a hearing under
Nov. 27 Tr. at 105:9-18 (Adams). In contrast, the United States agreed to notify the Trial 2 Defendants
The Court issued the
Declarant(s) Citation The Court's Conclusions Baca Nov. 27 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as 147:8-16 against Counts 6-7 Defendants Calbert and Nov. 27 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as Baca 149:17-21 against Counts 6-7 Defendants Baca Nov. 27 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as 149:17-21 against Counts 6-7 Defendants M. Rodriguez Nov. 27 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as and 150:11-20 against Counts 6-7 Defendants T. Martinez T. Martinez Nov. 27 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as 150:11-20 against Counts 6-7 Defendants Herrera Nov. 27 Tr. at Nontestimonial; rule 801(d)(2)(A) applies as 151:1-13 against Herrera; the Court will give a limiting instruction as to Sanchez, Baca, and Perez M. Rodriguez Nov. 27 Tr. at Nontestimonial 152:8-24 Sanchez Nov. 27 Tr. at Nontestimonial; rule 801(d)(2)(A) applies as 153:6-10 against Sanchez; rule 803(3) applies generally Gomez Nov. 27 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 153:19-154:5 Count 8 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez
Baca Nov. 27 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 153:19-154:5 Count 8 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez M. Rodriguez Nov. 27 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 155:19-159:2 Counts 6-7 Defendants M. Rodriguez Nov. 27 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 159:10-160:5 Counts 6-7 Defendants M. Rodriguez Nov. 27 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 160:6-161:4 Counts 6-7 Defendants Sanchez Nov. 27 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 160:6-161:4 Counts 6-7 Defendants Sanchez Nov. 27 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 161:5-162:13 Counts 6-7 Defendants M. Rodriguez Nov. 27 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 162:14-163:25 Counts 6-7 Defendants Sanchez Nov. 27 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 164:4-14 Counts 6-7 Defendants Baca Nov. 27 Tr. at Nontestimonial; rule 801(d)(2)(A) applies as to 164:23-165:16 Baca; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez Gomez Nov. 27 Tr. at Nontestimonial 164:23-165:16 Baca Nov. 27 Tr. at Nontestimonial; rule 801(d)(2)(A) applies as to 167:5-18 Baca; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez C. Garcia Nov. 27 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 167:19-169:6 Count 9-10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez Baca Nov. 27 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 167:19-169:6 Count 9-10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez Sanchez Nov. 28 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 40:23-41:8 Counts 6-7 Defendants R. Martinez Nov. 28 Tr. at Nontestimonial 41:14-20 Sanchez Nov. 28 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 42:1-14 Counts 6-7 Defendants Herrera Nov. 28 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 42:15-21 Counts 6-7 Defendants Sanchez Nov. 28 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 42:22-43:14 Counts 6-7 Defendants
Perez Nov. 28 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 43:9-14 Counts 6-7 Defendants T. Martinez Nov. 28 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 43:15-44:15 Counts 6-7 Defendants M. Rodriguez Nov. 28 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 43:15-44:15 Counts 6-7 Defendants M. Rodriguez Nov. 28 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 45:5-8 Counts 6-7 Defendants Montoya Nov. 28 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 45:12-15 Counts 6-7 Defendants Sanchez Nov. 28 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 45:15-20 Counts 6-7 Defendants M. Rodriguez Nov. 28 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 45:22-46:4 Counts 6-7 Defendants Montoya Nov. 28 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 46:5-6 Counts 6-7 Defendants M. Rodriguez Nov. 28 Tr. at Contestimonial 46:6-9 Molina Nov. 28 Tr. at Nontestimonial; rile 804(b)(2) applies 46:6-9 M. Rodriguez Nov. 28 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 46:10-15 Counts 6-7 Defendants Herrera Nov. 28 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 46:10-15 Counts 6-7 Defendants R.P. Nov. 29 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to Martinez 229:16-230:4 Counts 9-10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez R.P. Nov. Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to Martinez 230:6-19 Counts 9-10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez R.P. Nov. 29 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to Martinez 230:22-232:14 Counts 9-10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez R. Martinez Nov. 29 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 232:15-233:7 Counts 9-10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez R. Martinez Nov. 29 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 233:7-24 Counts 9-10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez
Baca Nov. 29 Tr. at Nontestimonial; rule 801(d)(2)(A) applies as to 233:25-234:19 Baca; rule 803(3) applies generally Baca Nov. 29 Tr. at Nontestimonial; rule 801(d)(2)(A) applies as to 234:19-25 Baca; the court will give a limiting instruction as to Sanchez, Herrera, and Perez Baca Nov. 29 Tr. at Nontestimonial; rule 801(d)(2)(A) applies as to 236:21-237:5 Baca; rule 803(3) applies generally Baca Nov. 29 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 237:15-25 Counts 9-10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez R. Martinez Nov. 29 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 237:15-25 Counts 9-10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez Baca Nov. 29 Tr. at Nontestimonial; rule 801(d)(2)(A) applies as to 238:3-11 Baca; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez Montoya Nov. 29 Tr. at Nontestimonial 238:3-11 Baca Nov. 29 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 238:25-239:3 Counts 9-10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez Baca Nov. 29 Tr. at Nontestimonial; rule 801(d)(2)(A) applies as to 239:3-8 Baca; rule 803(3) applies generally Baca Nov. 29 Tr. at Nontestimonial; rule 801(d)(2)(A) applies as to 239:18-240:3 Baca; rule 803(3) applies generally Baca Nov. 29 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 240:10-15 Count 9 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez Baca Nov. 29 Tr. at Nontestimonial; rule 801(d)(2)(A) applies as to 240:15-21 Baca; rule 803(3) applies generally Baca Nov. 29 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 241:3-4 Count 10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez Baca Nov. 29 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 241:19-21 Counts 9-10; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez Baca Nov. 29 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 242:11-25 Count 9 Defendants; the Court will give a limiting instruction as to the other Defendants
Baca Nov. 29 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 243:3-18 Count 9 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez Baca Nov. 29 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 243:24-244:7 Count 9 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez Baca Nov. 29 Tr. at Nontestimonial; rule 801(d)(2)(A) applies as to 244:10-11 Baca; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez Baca Nov. 29 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 244:25-245:5 Counts 9-10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez Baca Nov. 29 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 245:12-17 Counts 9-10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez Baca Nov. 29 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 245:24-246:9 Counts 9-10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez Baca Nov. 29 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 247:15-15 Counts 10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez Baca Nov. 29 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 248:3-7 Counts 9-10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez Baca Nov. 29 Tr. at Nontestimonial; rule 801(d)(2)(A) applies as to 248:16-19 Baca; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez Baca Nov. 29 Tr. at Nontestimonial; rule 801(d)(2)(A) applies as to 249:5-12 Baca; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez Baca Nov. 29 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 250:3-5 Counts 9-10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez Baca Nov. 29 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 250:11-21 Counts 9-10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez
C. Garcia Nov. 29 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 250:11-21 Counts 9-10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez Baca Nov. 29 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 250:25-251:3 Counts 9-10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez C. Garcia Nov. 29 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 250:25-251:3 Counts 9-10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez Baca Nov.29 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 251:8-17 Counts 9-10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez Baca Nov. 29 Tr. at Nontestimonial; rule 801(d)(2)(A) applies as to 252:14-21 Baca; rule 803(3) applies generally Baca Nov. 29 Tr. at Nontestimonial; rule 801(d)(2)(A) applies as to 256:17-25 Baca; rule 803(3) applies generally Baca Nov. 29 Tr. at Nontestimonial; rule 801(d)(2)(A) applies as to 257:7-11 Baca; rule 803(3) applies generally Baca Nov. 29 Tr. at Nontestimonial; rule 801(d)(2)(A) applies as to 257:13-14 Baca; rule 803(3) applies generally Baca Nov. 29 Tr. at Nontestimonial; rule 801(d)(2)(A) applies as to 257:15-16 Baca; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez Baca Nov. 29 Tr. at Nontestimonial; rule 801(d)(2)(A) applies as to 257:17-18 Baca; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez Baca Nov. 29 Tr. at Nontestimonial; rule 801(d)(2)(A) applies as to 257:19-21 Baca; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez Duran Nov. 29 Tr. at Nontestimonial 257:20-21 M. Rodriguez Nov. 29 Tr. at Nontestimonial; rule 803(3) applies 257:20-21 Baca Nov. 29 Tr. at Nontestimonial; rule 801(d)(2)(A) applies as to 257:21-22 Baca; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez Baca Nov. 29 Tr. at Nontestimonial; rule 801(d)(2)(A) applies as to 257:25 Baca; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez
M. Rodriguez Nov. 29 Tr. at Nontestimonial 257:25 Baca Nov. 29 Tr. at Nontestimonial; rule 801(d)(2)(A) applies as to 258:12-20 Baca; rule 803(3) applies generally Baca Nov. 29 Tr. at Nontestimonial; rule 801(d)(2)(A) applies as to 259:1-4 Baca; rule 803(3) applies generally C. Garcia Nov. 29 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 261:7-13; Counts 9-10 Defendants; the Court will give a James Hearing limiting instruction as to Sanchez, Herrera, and Exhibit 2638 Perez Parker Nov. 29 Tr. at Nontestimonial; rule 801(d)(2)(E) applies as to 262:1-4 Counts 9-10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez Montoya Nov. 29 Tr. at Testimonial9 262:8-263:4
The United States filed the
The
On the next day, B. Garcia filed a response to the
B. Garcia also makes a blanket objection to admitting out-of-court statements that his non-testifying co-Defendants made insofar as those statements implicate him.
B. Garcia makes two additional requests. First, he asks for a limiting instruction vis-à-vis out-of-court statements that his non-testifying co-Defendants made if those statements are admitted over his objection.
B. Garcia observes that, in the
General
In the 804(b)(3) MIL, the United States acknowledges that, in the
804(b)(3) MIL at 2. The United States underscores that, for the statements it seeks to admit against the Trial 2 Defendants, there is "no evidence of rumored cooperation of the declarant and there's no lack of strength of independent evidence corroborating the conduct in question." 804(b)(3) MIL at 13. Second, the United States argues that the Court cannot apply a blanket rule that "in-prison admissions
Gutierrez incorporates the argument in the B. Garcia Response as it applies to her.
C. Chavez objects to specific
A. Gallegos identifies several
J. Gallegos argues that "[t]here are no statements [in the
Troup identifies specific statements that he finds objectionable.
Patterson objects to the admissibility of specific
The Court began its
March 12 Tr. at 57:3-24 (Court). The United States responded that "my understanding is that the table is now, in essence, supposed substitute for the testimony, so that we have the James statements in an easier to read and easier to understand format than what we did the first time by merely putting on testimony." March 12 Tr. at 58:21-59:1 (Castellano). The United States added that, "[i]f our agents were to testify, I think they would testify consistently with the statements in the table. So we could do that, but I think that's what the table does, it substitutes for the testimony of those statements." March 12 Tr. at 59:1-5 (Castellano). The United States then described several exhibits:
March 12 Tr. at 60:3-61:4 (Castellano). B. Garcia objected to the admission of those exhibits, because
March 12 Tr. at 61:21-62:5 (Castle). The Court noted — and B. Garcia conceded — that "these are plea agreements that were signed, under oath, by the defendants that have been identified[.]" March 12 Tr. at 62:7-9 (Court).
March 12 Tr. at 63:15-21 (Castle). B. Garcia also specifically objected to the admittance of B. Rodriguez' and Gonzalez' plea agreements, because B. Rodriguez and Gonzalez will not testify at trial.
The Court later indicated that "it seems to me that if you take what's in the plea agreement, probably there is enough there to find a conspiracy. And I would group them around the different murders." March 12 Tr. at 80:11-15 (Court).
March 12 Tr. at 80:15-24 (Court). The Court asked the United States, however, to "tell me how many conspiracies that you're going to try to establish in the case, who you allege [the] members to be." March 12 Tr. at 87:13-15 (Court). The United States agreed to do so:
March 12 Tr. at 87:20-93:10 (Court, Castellano). The United States continued by listing alleged — albeit unindicted — members of those conspiracies:
March 12 Tr. at 93:25-97:8 (Court, Castellano). The United States then indicated that Willie Amador and Jesse Ibarra were both members of the Castillo and Garza conspiracies.
In the Trial 1
On March 31, 2018, B. Garcia supplemented his earlier motion in light of new disclosures in which "the government reveals two new witnesses who provide evidence from out of court declarants that allegedly implicate Billy Garcia." B. Garcia Supplement ¶ 1, at 1. Those two additional witnesses are Joseph Otero and Josh Mirka.
B. Garcia asserts that, at the Court's pretrial hearings, "[w]itnesses Munoz, Clark, Lucero, Quintana, and Otero all testified that none of Billy Garcia's codefendants made any statements to them which implicated Billy Garcia." B. Garcia Brief ¶ 5, at 3. B. Garcia also asserts that "[n]o other evidence was introduced sufficient to
B. Garcia admits that "Mikra did indicate that Christopher Chavez made a statement in which he stated that he didn't agree with some things Billy Garcia did when he ran `the car.'" B. Garcia Brief ¶ 6, at 3. B Garcia argues, however, that C. Chavez' statement "is not self-inculpatory as to Christopher Chavez," so "it fails to meet the criteria for admission under" rule 804(b)(3). B. Garcia Brief ¶ 6, at 3-4. It follows, according to B. Garcia, that "any statement implicating Billy Garcia [that Mikra relates to the jury] must be stricken." B. Garcia Brief ¶ 6, at 4.
B. Garcia contends that, "[f]or witnesses Phillip Gonzales, Samuel Gonzales, Robert Lovato and Julian Romero, Billy Garcia proceeded through the introduction and admission of exhibits setting forth their statements," and that the United States did not introduce "any additional evidence regarding statements by codefendants to those four individuals" at the Court's pretrial hearings. B. Garcia Brief ¶ 7, at 4. B. Garcia also contends that "the Court should order that Phillip Gonzales be prevented from testifying to any statement by Christopher Chavez implicating Billy Garcia," because "[t]he government put on no evidence establishing either that Chavez implicated Billy Garcia or establishing a foundation under Fed R. Evid 804(b)(3)." B. Garcia Brief ¶ 8, at 4-5. Similarly, B. Garcia avers that "the Court should order that Samuel Gonzales be prevented from testifying to any statement by any codefendant implicating Billy Garcia," because "[t]he government put on no evidence establishing either that Chavez [or Troup] implicated Billy Garcia or establishing a foundation under Fed. R. Evid. 804(b)(3)." B. Garcia Brief ¶ 9, at 5. B. Garcia adds that the United States' failure to introduce evidence at the Court's pretrial hearing also indicates that Lovato and Romero should not be able to testify to any co-Defendant statement that implicates B. Garcia.
On April 7, 2018, the United States responded to the B. Garcia Brief.
Response Brief at 2. The United States also argues that the B. Garcia Brief's assertions that "several witnesses testified that the Defendant-declarants' statements to them didn't include that Defendant B. Garcia ordered the murders" are non sequiturs, because those statements are admissible as statements against the declarant's penal interest under rule 804(b)(3) even if they do not implicate B. Garcia. Response Brief at 6.
The United States avers that the B. Garcia Brief "suggests to the Court that the United States somehow waived these statements' admission into evidence" by failing to present evidence at the Court's pretrial hearings. Response Brief at 7 n.4. The United States argues that this suggestion is false.
Rule 12(d) of the Federal Rules of Criminal Procedure requires the Court to state its essential findings on the record when deciding a motion that involves factual issues.
1. A conspiracy to kill Frank Castillo existed.
2. The Castillo conspiracy includes five indicted conspirators: (i) DeLeon, (ii) J. Gallegos; (iii) Troup; (iv) Lujan; and (v) B. Garcia.
3. The Castillo conspiracy includes eight unindicted conspirators: (i) Angel Munoz,
4. The Castillo conspiracy continued until Castillo's death on March 26, 2001.
5. A conspiracy to kill Rolando Garza existed.
6. The Garza conspiracy includes five indicted conspirators: (i) Lujan; (ii) B. Garcia; (iii) E. Martinez; (iv) Patterson; and (v) C. Chavez.
7. The Garza conspiracy includes six unindicted conspirators: (i) A. Munoz,
8. The Garza conspiracy continued until Garza's death on March 26, 2001.
9. A conspiracy to kill Freddie Sanchez existed.
10. The Sanchez conspiracy includes five indicted conspirators: (i) Alonso; (ii) Troup; (iii) A.A. Garcia; (iv) Hernandez; and (v) Clark.
11. The Sanchez conspiracy includes four unindicted conspirators: (i) FNU/LNU,
13. A conspiracy to murder Jose Gomez and to prevent him from testifying existed.
14. The Gomez conspiracy includes five people, all indicted conspirators: (i) Rivera; (ii) J. Gallegos; (iii) Gonzalez; (iv) Gutierrez; and (v) B. Rodriguez.
15. The Gomez murder conspiracy began on or about February 1, 2016, and continued until on or about February 27, 2016.
16. An uncharged conspiracy to kill Gerald Archuleta existed.
17. The conspiracy to kill Archuleta included B. Garcia and Reynaldo Garcia, a.k.a. Baby Zac.
The Federal Rules of Evidence define hearsay as "a statement that:
To admit coconspirators' out-of-court statements under rule 801(d)(2)(E), "the United States must demonstrate by a preponderance of the evidence that: (i) a conspiracy existed; (ii) the declarant and the defendant were members of that conspiracy;
"[I]t is not necessary for the United States to show that proffered statements were made during the time in which [the defendant] was a member of a conspiracy."
In determining the admissibility of coconspirator statements, "[t]he strongly preferred order of proof" is for the district court to hold a
In
In support of its determination that the United States had met its burden to prove that Vigil participated in the existent conspiracy, the Court pointed to testimony asserting that Angelo Garcia, an alleged coconspirator, "told Vigil that he would set up the same arrangement with Vigil as with Montoya, Vigil learned about the prior arrangement with Montoya through Garcia, Vigil indicated that he intended to continue the fee-sharing arrangement that Montoya had set up, and Vigil threatened to withhold the SLOM contract from Everage." 2006 WL 4109681, at *4 (internal quotation marks omitted)(quoting
"Hearsay testimony is generally inadmissible."
A statement is not hearsay, even if it is offered for its truth, if it is offered against an opposing party and it:
Fed. R. Evid. 801(d)(2). The Tenth Circuit has stated:
Rule 803(1) provides an exception to the rule against hearsay for "[a] statement describing an event or condition, made while or immediately after the declarant perceived it." Fed. R. Evid. 803(1). "By its own terms, application of Rule 803(1) has three distinct requirements: i) the statement must describe or explain the event perceived; ii) the declarant must have in fact perceived the event described; and iii) the description must be `substantially contemporaneous' with the event in question."
Rule 803(2), commonly referred to as the excited-utterance exception, provides an exception to the exclusion of hearsay statements for "[a] statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused." Fed. R. Evid. 803(2). The United States Court of Appeals for the District of Columbia Circuit has noted that "[t]he rationale underlying the `excited utterance' exception is that `excitement suspends the declarant's powers of reflection and fabrication, consequently minimizing the possibility that the utterance will be influenced by self interest and therefore rendered unreliable.'"
606 F.3d at 1279 (alteration in
The United States Court of Appeals for the Second Circuit has provided an analysis of the similarities and subtle differences between the present-sense-impression and excited-utterance exceptions to the rule against hearsay:
Many courts across the country have found it proper to admit a 911 caller's statements as a present-sense impression and/or an excited utterance.
Rule 803(3) excepts from the general bar on hearsay "[a] statement of the declarant's then-existing state of mind ... or emotional, sensory, or physical condition." Fed. R. Evid. 803(3). Rule 803(3) permits the introduction of "hearsay ..., regardless of whether the declarant is available as a witness," for a statement of the declarant's "then-existing mental, emotional, or physical condition," Fed. R. Evid. 803(3) (title case and bolding omitted):
Fed. R. Evid. 803(3).
For the statement to qualify under the exception, it "must relate to the declarant's state of mind during" the incident in question.
Under rule 804(b)(3) of the Federal Rules of Evidence, an out-of-court statement is admissible if the declarant is unavailable to testify, and the statement is "against the declarant's proprietary, pecuniary, or penal interest."
Rule 804(b)(3) embodies "the commonsense notion that reasonable people, even reasonable people who are not especially honest, tend not to make self-inculpatory statements unless they believe them to be true."
The Tenth Circuit has outlined what the government must prove to establish the existence of a conspiracy:
The Confrontation Clause states: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. amend. VI. In
547 U.S. at 822, 126 S.Ct. 2266. The Tenth Circuit defines a testimonial statement, without reference to police interrogation, as "a `formal declaration made by the declarant that, when objectively considered, indicates' that the `primary purpose of the [statement is] to establish or prove past events potentially relevant to later criminal prosecution.'"
In
557 U.S. at 320, 129 S.Ct. 2527 (citations to the record omitted). Because there was no opportunity to cross-examine the affidavit declarant on these issues, the Supreme Court concluded that introduction of the affidavit violated the defendant's rights under the Confrontation Clause.
"Except in rare cases, the prosecution's use of live or recorded video testimony
The Supreme Court recognized that an adversary proceeding before the trier of fact "is the norm of Anglo-American criminal proceedings," and involves "[t]he combined effect of these elements of confrontation — physical presence, oath, cross-examination, and observation of demeanor."
A Confrontation Clause violation does not occur when a defendant calls a non-hostile witness telephonically or via videoconference.
Like many constitutional rights, a defendant may choose to waive Confrontation Clause rights. In 1969, the Supreme Court recognized that a defendant may waive Confrontation Clause rights and that defendants commonly do so when pleading guilty.
In
2006 WL 1228953, at *12.
In
391 U.S. at 135-36, 88 S.Ct. 1620 (citations omitted). The Supreme Court also stated:
391 U.S. at 130, 88 S.Ct. 1620 (quoting
The Supreme Court elaborated on its
In
The Supreme Court acknowledged that, in
Six years after
Many Courts of Appeals have read
On the other hand, commentators, scholars, and the District of Columbia Court of Appeals
That the Supreme Court's Confrontation Clause analysis in
That the Supreme Court "granted certiorari to reconsider Delli Paoli [
After
In the absence of binding precedent, the Court would agree with the academic view that the Supreme Court's recent Confrontation Clause decisions do not mean that
The Court reaches that conclusion, because
If it properly could, the Court would, thus, conclude that
The Court is not, however, free to restrict the United States' case so severely, because it must obey Tenth Circuit precedent stating that
If the issue comes squarely before it, the Tenth Circuit may decide that the Court reads
Stephen E. Sachs,
Under rule 403 of the Federal Rules of Evidence, "[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed. R. Evid. 403. The trial court must weigh the proffered evidence's probative value against its potential for unfair prejudice.
The decision to admit or exclude evidence pursuant to rule 403 is within the trial court's discretion,
Evidence may be unfairly prejudicial if it would likely provoke an emotional response from the jury or would otherwise tend to adversely affect the jury's attitude toward a particular matter.
"The term `unfair prejudice,' as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged."
Under rule 404(b), evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person to show action in conformity therewith.
Fed. R. Evid. 404(b). In other words, one cannot present evidence the relevance of which is based on the forbidden inference: the person did X in the past, therefore he probably has a propensity for doing X, and therefore he probably did X this time, too. The rule, however, has a number of "exceptions" — purposes for which such evidence will be admissible. Those purposes include proving motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Rule 404(b)'s prohibition finds its source in the common-law protection of the criminal defendant from risking conviction on the basis of evidence of his character.
When "bad act evidence is both relevant and admissible for a proper purpose, `the proponent must clearly articulate how that evidence fits into a chain of logical inferences, no link of which may be the inference that the defendant has the propensity to commit the crime charged.'"
The Tenth Circuit has recognized the probative value of uncharged, unrelated acts to show motive, intent and knowledge, whether the acts involved previous conduct or conduct subsequent to the charged offense if the uncharged acts are similar to the charged crime and sufficiently close in time.
In the
The Tenth Circuit has defined testimonial statements — for Confrontation Clause purposes — in two alternative ways, without choosing between them:
According to the Supreme Court, "[s]tatements made to someone who is not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonial than statements given to law enforcement officers."
Further, the "[Supreme] Court expressed the view that `statements made unwittingly to a Government informant" or "statements from one prisoner to another' are `clearly nontestimonial.'"
That all but one of the statements in the
The B. Garcia Response identifies several statements attributed to B. Garcia's co-Defendants that the
First, B. Garcia indicates that the J. Garcia 302 contains an out-of-court confession attributed to Troup.
J. Garcia 302 at 3. Second, B. Garcia contends that S. Gonzales will testify for the United States that "Troup made statements about the 2001 murders." B. Garcia Response ¶ 13, at 6.
Samuel Gonzales 302 at 5. Troup's statements are nontestimonial. Third, B. Garcia asserts that Robert Lovato will testify that "Christopher Chavez admitted involvement in the 2001 murder of Garza." B. Garcia Response ¶ 14, at 6.
Lovato 302 at 2. C. Chavez' statement is nontestimonial.
Quintana 1023 at 2. Troup's and C. Chavez' statements are nontestimonial. Sixth, B. Garcia contends that Ben Clark will testify that "Angel Deleon, Troup and Joe Gallegos confessed their involvement in the 2001 murders to him and that one or both indicated that B. Garcia called the hit." B. Garcia Response ¶ 17, at 8.
Clark Debriefs at 3-4.
Clark Debriefs at 9-10. Seventh, B. Garcia asserts that Julian Romero will testify that "Christopher Chavez confessed to his role in the 2001 murders." B. Garcia Response ¶ 18, at 8. "CHAVEZ admitted to ROMERO that he killed GARZA." Romero 302 at 7. Eighth, B. Garcia avers that Timothy Martinez will testify that "Christopher Chavez confessed to his involvement in the murders and during such confession implicates Allen Patterson in the murder." B. Garcia Response ¶ 19, at 9.
T. Martinez 302 at 5.
A SNM member made all those statements to other SNM members, and the SNM's rules make cooperating with law enforcement a capital offense.
The Court is able to make general determinations regarding the existence of conspiracies and their membership.
James Proffer Statement 25 Ruling Statement 1: "Billy Garcia tasked The Court finds, by a preponderance of the evidence, that Leonard Lujan with finding an B. Garcia is a member of the Count 1 conspiracy to murder inmate to carry out the murders of Castillo and the Count 2 conspiracy to murder Garza,see Garza and Castillo. The murderssupra FOF ¶¶ 2, 6, and that B. Garcia made this statement were to be executed simultaneous." to Lujan before the alleged murders,see March 13 Tr. at 10:22-11:3 (Castellano, Stemo), to get Lujan to find people Declarant: Billy Garcia to carry out the murders simultaneously,see March 13 Tr. at 9:22-10:1 (Castellano, Stemo);id. at 10:11-11:6 Source: Leonard Lujan (Castellano, Stemo). Accordingly, this statement was made by a member of the Counts 1 and 2 conspiracies, Date: On or before March 26, 2001 during and in furtherance of those conspiracies, and is therefore admissible for its truth against the members of Objections: C. Chavez Response, the Counts 1 and 2 conspiracies under rule 801(d)(2)(E).26 Patterson Response C. Chavez and Patterson are members of the Count 2 conspiracy,see supra FOF ¶ 6, so the Court overrules their objections,see C. Chavez Response ¶ 4, at 2; Patterson Response ¶ 5, at 2. The Court will give, on request, a limiting instruction as to the Defendants who are not charged in Counts 1 or 2. Statement 2: "Billy Garcia wanted The Court finds, by a preponderance of the evidence, that Castillo and Garza `to be taken out' B. Garcia — a member of the Counts 1 and 2 conspiracies, by strangulation."see supra FOF ¶¶ 2, 6 — made this statement before the alleged murders, to inform Lujan how to murder Castillo Declarant: Billy Garcia and Garza,see March 13 Tr. at 11:7-11 (Castellano, Stemo). Accordingly, this statement was made by a Source: Leonard Lujan member of the Counts 1 and 2 conspiracies during and in furtherance of those conspiracies, and is therefore admissible for its truth against the members of the Counts Date: On or before March 26, 2001 1 and 2 conspiracies under rule 801(d)(2)(E). C. Chavez and Patterson are members of the Count 2 conspiracy,see Objections: C. Chavez Response,supra FOF ¶ 6, so the Court overrules their objections,see Patterson Response C. Chavez Response ¶ 5, at 2; Patterson Response ¶ 6, at 2-3. The Court will give, on request, a limiting instruction as to the Defendants who are not charged in Counts 1 or 2. Statement 3: "The Castillo and The Court finds, by a preponderance of the evidence, that Garza murders were an order. B. Garcia — a member of the Counts 1 and 2 conspiracies, Anyone who did not follow thatsee supra FOF ¶¶ 2, 6 — made this statement before the order was to be killed as well." alleged murders, to underscore to Lujan the importance of carrying through with the murders and to prompt action, Declarant: Billy Garciasee March 13 Tr. at 11:12-25 (Castellano, Stemo). Accordingly, this statement was made a member of the Source: Leonard Lujan Counts 1 and 2 conspiracies during and in furtherance of those conspiracies, and is therefore admissible for its truth Date: On or before March 26, 2001 against the members of the Counts 1 and 2 conspiracies under rule 801(d)(2)(E). C. Chavez and Patterson are Objections: C. Chavez Response, members of the Count 2 conspiracy,see supra FOF ¶ 6, so Patterson Response the Court overrules their objections,see C. Chavez Response ¶ 6, at 2; Patterson Response ¶ 7, at 3. The Court will give, on request, a limiting instruction as to the Defendants who are not charged in Counts 1 or 2. Statement 4: "Billy Garcia was This statement is a statement of B. Garcia's then-existing planning to kill everyone in the state of mind, specifically his plan, so it is admissible for unit with a green light but was its truth under rule 803(3).27 See March 13 Tr. at 12:1-8 (Castellano, Stemo). The Court accordingly overrules
starting with Castillo and Garza." C. Chavez' and Patterson's objections. See C. Chavez Response ¶ 7, at 2; Patterson Response ¶ 8, at 3-4. Declarant: Billy Garcia Source: Leonard Lujan Date: On or before March 26, 2001 Objections: C. Chavez Response, Patterson Response Statement 5: "These murders This statement is a statement of B. Garcia's then-existing needed to be done because the state of mind, specifically his motive, so it is admissible SNM gang was losing status with for its truth under rule 803(3).See March 13 Tr. at 12:9-20 other gangs." (Castellano, Stemo). The Court accordingly overrules C. Chavez' and Patterson's objections.See C. Chavez Declarant: Billy Garcia Response ¶ 8, at 3; Patterson Response ¶ 9, at 4. Source: Leonard Lujan Date: On or before March 26, 2001 Objections: C. Chavez Response, Patterson Response Statement 6: "Leonard Lujan tells The Court finds, by a preponderance of the evidence, that, Eugene Martinez `I'm telling you before the alleged murders, B. Garcia ordered Lujan — right now where it's coming from who are both members of the Counts 1 and 2 conspiracies, and everything,' referring to Billysee supra FOF ¶¶ 2, 6 — to find people to kill Castillo and Garcia." Garza, and that Lujan passed this order to E. Martinez to indicate the importance that they follow through with the Declarant: Leonard Lujan (first-level) order and to prompt action,see March 13 Tr. at 12:21-13:5 and Billy Garcia (second-level). (Castellano, Stemo). Accordingly, this statement was made during and in furtherance of the Counts 1 and 2 conspiracies by a member of those conspiracies, and is Source: Leonard Lujan, Eugene admissible for its truth against the members of the Counts Martinez 1 and 2 conspiracies under rule 801(d)(2)(E). C. Chavez and Patterson are members of the Count 2 conspiracy,see Date: On or before March 26, 2001supra FOF ¶ 6, so the Court overrules their objections,see C. Chavez Response ¶ 9, at 3; Patterson Response ¶ 10, at Objections: C. Chavez Response, 4. The Court will give, on request, a limiting instruction as Patterson Response to the Defendants who are not charged in Counts 1 or 2.
Statement 7: "Billy Garcia ordered This statement is a statement of B. Garcia's then-existing the murder of Castillo due to him state of mind, specifically his motive, so it is admissible cooperating with law for its truth under rule 803(3). See March 13 Tr. at 13:6-14 enforcement." (Castellano, Stemo). The Court accordingly overrules Patterson's objection.See Patterson Response ¶ 11, at 4-5. Declarant: Billy Garcia. Source: Leonard Lujan Date: On or before March 26, 2001 Objections: Patterson Response Statement 8: "Billy Garcia ordered This statement is a statement of B. Garcia's then-existing Garza to be killed for being a state of mind, specifically his motive, so it is admissible former Los Carnales member." for its truth under rule 803(3).See March 13 Tr. at 13:15-23 (Castellano, Stemo). The Court accordingly overrules Declarant: Billy Garcia C. Chavez' and Patterson's objections.See C. Chavez Response ¶ 10, at 3-4; Patterson Response ¶ 12, at 5. Source: Leonard Lujan Date: On or before March 26, 2001 Objections: C. Chavez Response, Patterson Response Statement 9: "`What the fuck is This statement could be offered for a purpose other than its going on? I sent word a long time truth,e.g. , as circumstantial evidence of B. Garcia's state ago to clean house.' Billy Garcia of mind. If it is offered for a non-hearsay purpose, the was upset Leonard Lujan had not Court will give a limiting instruction informing the jury taken charge in the facility." that it can use the statement for that limited purpose and not for its truth. Declarant: Billy Garcia The Court finds, by a preponderance of the evidence, that this statement is also admissible for its truth against the Source: Leonard Lujan Counts 1 and 2 Defendants under rule 801(d)(2)(E), because B. Garcia's recrimination regarding Lujan's Date: On or before March 26, 2001 failure to act was calculated to spur Lujan to take further action toward the Castillo and Garza murders.See March Objections: C. Chavez Response, 13 Tr. at 13:24-14:5 (Castellano, Stemo);id. at 14:12-23 Patterson Response (Stemo, Castellano). This statement was made before the alleged murders in furtherance of the conspiracy to murder Castillo and Garza. C. Chavez and Patterson are members of the Count 2 conspiracy,see supra FOF ¶ 6, so the Court overrules their objections,see C. Chavez Response ¶ 11, at 4, Patterson Response ¶ 13, at 5-6. The Court will give, on request, a limiting instruction as to the Trial 2 Defendants who are not charged in Counts 1 and 2.
Statement 10: "Leroy Lucero Part of this statement — "Leroy Lucero received word from received word from Billy Garcia Billy Garcia that several hits were supposed to happen" — that several hits were supposed to is a statement of B. Garcia's then-existing state of mind, happen. Garcia told him he didn't specifically his plan, so that portion of the statement is need help since Lucero was getting admissible for its truth under rule 803(3). The remainder out." of the statement, B. Garcia's refusal of Lucero's proffered assistance, is admissible for its truth against the Counts 1 Declarant: Billy Garcia and 2 Defendants under rule 801(d)(2)(E), because the Court finds, by a preponderance of the evidence, that the Source: Leroy Lucero refusal was part of making the arrangements for the Castillo and Garza murders. See March 13 Tr. at 16:16-21 Date: On or before March 26, 2001 (Castellano, Stemo). Thus, this statement was made during and in furtherance of the conspiracies to kill Objections: C. Chavez Response, Castillo and Garza, and is admissible for its truth against Patterson Response the Counts 1 and 2 Defendants under rule 801(d)(2)(E). C. Chavez and Patterson are members of the Count 2 conspiracy,see supra FOF ¶ 6, so the Court overrules their objections,see C. Chavez Response ¶ 12, at 4; Patterson Response ¶ 14, at 6. The Court will give, on request, a limiting instruction as to the Defendants who are not charged in Counts 1 or 2. Statement 11: "Leroy Lucero The Court finds, by a preponderance of the evidence, that confirmed the message that several A. Munoz — a member of both the Counts 1 and 2 hits were supposed to happen with conspiracies,see supra FOF ¶¶ 3, 7 — made this statement Angel Munoz. Munoz said before the alleged murders during a telephone call with `Something has to happen Carnal Lucero to prompt action in carrying out the conspiracies. Billy's on his way.'"See March 13 Tr. at 16:22-24 (Castellano, Stemo);id. at 17:17-18:9 (Castellano, Stemo). Accordingly, this Declarant: Angel Munoz statement was made during and in furtherance of the Counts 1 and 2 conspiracies, and therefore is admissible Source: Leroy Lucero for its truth against the members of the Counts 1 and 2 conspiracies, under rule 801(d)(2)(E). C. Chavez and Date: On or before March 26, 2001 Patterson are members of the Count 2 conspiracy,see supra FOF ¶ 6, so the Court overrules their objections,see C. Chavez Response ¶ 13, at 4-5; Patterson Response ¶ 15, Objections: C. Chavez Response, at 6. The Court will give, on request, a limiting instruction Patterson Response as to the Defendants who are not charged in Counts 1 or 2.
Statement 12: "Leonard Lujan met The Court finds, by a preponderance of the evidence, that with Eugene Martinez and tasked Lujan — a member of the Count 2 conspiracy, See supra him with the murder of Garza by FOF ¶ 6 — made this statement before the alleged murder, strangulation and told Martinez to to get E. Martinez to carry out the Garza murder and enlist pick people to help." others to help.See March 13 Tr. at 18:10-21 (Castellano, Stemo). Accordingly, this statement was made during and Declarant: Leonard Lujan in furtherance of the Count 2 conspiracy, and is therefore admissible for its truth against the Count 2 Defendants Source: Leonard Lujan, Eugene under rule 801(d)(2)(E). C. Chavez and Patterson are Martinez members of the Count 2 conspiracy,see supra FOF ¶ 6, so the Court overrules their objections,See C. Chavez Date: On or before March 26, 2001 Response ¶ 14, at 5; Patterson Response ¶ 16, at 6-7. The Court will give, on request, a limiting instruction as to the Objections: C. Chavez Response, Defendants who are not charged in Count 2. Patterson Response Statement 13: "Leonard Lujan met Stemo's testimony indicates that she is aware of this with Joe Gallegos, Angel DeLeon, statement, which Lujan made in 2001, via another out-of-court and `Criminal'[28 ] and ordered statement, which Lujan made circa 2007.See March Castillo murdered by 13 Tr. at 66:11-67:15 (Benjamin, Stemo). The 2007 strangulation." statement was made long after the Count 1 conspiracy ended, so it is not admissible under rule 801(d)(2)(E).See Declarant: Leonard LujanUnited States v. Alcorta , 853 F.3d 1123, 1139 (10th Cir. 2017)("Statements made after the objectives of the Source: Leonard Lujan conspiracy have either failed or been achieved are not made during the conspiracy and must be excluded."). The Date: On or before March 26, 2001 Court finds, by a preponderance of the evidence, that the earlier statement, however, was made during and in Objections: J. Gallegos Response, furtherance of the Count 1 conspiracy, because Lujan — a Patterson Response member of the Count 1 conspiracy,see supra FOF ¶ 2 — told others how to carry out the murder.See March 13 Tr. at 18:22-19:4 (Castellano, Stemo);id. at 20:2-9 (Castellano, Stemo). Patterson is not a member of the Count 1 conspiracy,see supra FOF ¶¶ 2-3, so the Court sustains Patterson's objection insofar as it requests a limiting instruction, which the Court will give at Patterson's in-court request,See Patterson Response ¶ 17, at 7. The Court will give, on request, a limiting instruction as to the other Defendants who are not charged in Count 1. J. Gallegos requests the opportunity to voir dire Lujan, because "he is referred to in an audio recording by Leroy Lucero as `crazy Leonard, no one would believe
Leonard.'" J. Gallegos Response ¶ 1, at 3 (source of quote not provided). If J. Gallegos wants to voir dire Lujan outside the presence of the jury, he may. Based on what the Court knows at the present time, it will allow Lujan to relay the statement. J. Gallegos is free to argue to the jury that it should not credit this statement, however. J. Gallegos argues that this James Proffer statement is an action — giving an order — and not a statement for Federal Rules of Evidence purposes.See J. Gallegos Response ¶ 1, at 3; March 13 Tr. at 66:17-19 (Benjamin). Under the Federal Rules of Evidence, all statements are assertions.See Fed. R. Evid. 801(a) ("`Statement' means a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.").See also id. advisory committee's notes to 1972 proposed rules ("The effect of the definition of `statement' is to exclude from the operation of the hearsay rule all evidence of conduct, verbal or nonverbal, not intended as an assertion."). Verbal actions like orders and commands —e.g. , "fetch me a shrubbery" — as well as questions —e.g. , "what do you want to eat for lunch?" — are not always assertions, because they are neither true nor false.29 See also Fed. R. Evid. 801 advisory committee's notes to 1972 proposed rules ("When evidence of conduct is offered on the theory that it is not a statement, and hence not hearsay, a preliminary determination will be required to determine whether an assertion is intended."). Consequently, orders and questions generally are not hearsay both because hearsay must be a statement,see Fed. R. Evid. 801(c) ("`Hearsay' means a statement...."), and because something that is neither true nor false cannot be offered to prove the truth of the matter asserted,see Fed. R. Evid. 801(c)(2).See also 4 Saltzburg et al., supra, § 801.02[1][c], at 801-17 ("If proffered evidence is not a `statement' within the meaning of Rule 801(a), then it cannot be hearsay, and so cannot be excluded under the rule."). While orders and commands are not, themselves, assertions, they may — like questions — contain implicit assertions.See United States v. Summers , 414 F.3d 1287, 1298 (10th Cir. 2005) (concluding that a defendant's question — "`How did you guys find us so fast?'" — was an implicit assertion of "both guilt and wonderment at the ability of the police to apprehend the perpetrators of the crime so quickly"). For example, a lawyer asking a witness whether the witness stopped beating his wife
indicates both that the witness has a wife and that the witness abused his wife. Whether those two indications are assertions, however, depends on the lawyer's intent. Taken together, [ United States v. Jackson , 88 F.3d 845 (10th Cir. 1996),] and [United States v. Long , 805 F.2d 1572 (D.C. Cir. 1990) (Thomas, J.),] do not foreclose the possibility that a declaration in the form of a question may nevertheless constitute an assertion within the meaning of Rule 801(a) and (c). Rather, both cases properly focus the inquiry on the declarant's intent.United States v. Summers , 414 F.3d at 1300. Thus, the verbal acts that theJames Proffer identifies can qualify as statements — and, hence, as hearsay — if they were intended to be assertions.See Fed. R. Evid. 801 advisory committee's notes to 1972 proposed rules ("The key to the definition is that nothing is an assertion unless intended to be one."). The Court, when it comes across verbal actions listed in theJames Proffer will, thus, assess whether those verbal acts contain implicit assertions. That the United States lists, in theJames Proffer, verbal acts is useful even if those verbal acts do not contain implicit assertions, because people often take verbal actions and make statements in quick succession and people who are not lawyers do not always scrupulously distinguish between verbal actions and statements. For instance, Statement 13 indicates that Lujan ordered others to kill Castillo, but Lujan may testify that he told people that "I want you to kill Castillo," which is a statement regarding Lujan's desires. Alternatively, Lujan may testify that he gave the order that Statement 13 describes and immediately followed that order with an explanation regarding why Castillo should be killed. That the United States included Statement 13 in theJames Proffer puts the Defendants on notice that Lujan may testify regarding the sort of statements associated with the order that Statement 13 describes. It also allows the Court to make findings that will permit it to rule quickly on unexpected statements closely associated with those orders,e.g. , if an order was made during a conspiracy by a conspirator then statements
made by the same person at much the same time were also made during a conspiracy by a conspirator. 30 Statement 14: "Billy Garcia wanted This is a statement of B. Garcia's then-existing state of knowledge of the plan kept to very mind, specifically his intent, so it is admissible for its truth few individuals." under rule 803(3).See March 13 Tr. at 20:10-17 (Castellano, Stemo). The Court accordingly overrules Declarant: Billy Garcia C. Chavez' and Patterson's objections.See C. Chavez Response ¶ 15, at 5; Patterson Response ¶ 18, at 7-8. Source: Leonard Lujan Date: On or before March 26, 2001 Objections: C. Chavez Response, Patterson Response Statement 15: "Once alarms were This statement was made after Castillo and Garza died, so sounded and the murders it was not made during the Counts 1 and 2 conspiracies. discovered, Billy Garcia Accordingly, it is not admissible under rule 801(d)(2)(E). congratulated Leonard Lujan with It is admissible, however, as an implicit statement of `Amor.'" B. Garcia's then-existing state of mind,i.e. that he approves of Lujan's job.See Fed. R. Evid. 803(3). If it is Declarant: Billy Garcia offered for such a non-hearsay purpose, the Court will give a limiting instruction informing the jury that it can use the Source: Leonard Lujan statement for that limited purpose and not for its truth. Accordingly, the Court sustains C. Chavez' and Date: On or before March 26, 2001 Patterson's objections to admitting this statement for its truth under rule 801(d)(2)(E),see C. Chavez Response Objections: C. Chavez Response, ¶ 16, at 5; Patterson Response ¶ 19, at 8, but the Court may Patterson Response admit this statement for a non-hearsay purpose.
Statement 16: "Frederico Munoz The testimony at the Court's James hearing indicates that [was] part of the committee that Federico Munoz admitted to the information contained in sanctioned the hit on Garza and this statement.See March 13 Tr. at 21:10-22:1 Castillo. Munoz wanted Garza (Castellano, Stemo). Federico Munoz testifying and killed for being Los Carnales." repeating that admission raises no hearsay issues, because F. Munoz has personal knowledge regarding his own Declarant: Billy Garcia motives and regarding whether he was part of a group that ordered the Castillo and Garza murders.See Fed. R. Evid. Source: Federico Munoz 602. Accordingly, the Court overrules C. Chavez' and Patterson's objections.See C. Chavez Response ¶ 17, at 6; Date: On or before March 26, 2001 Patterson Response ¶ 20, at 8. Objections: Chavez Response, Patterson Response Statement 17: "Arturo Garcia This is a statement of A.A. Garcia's then-existing state of placed [a] hit on Sanchez because mind, specifically his motive, so it is admissible for its he was suspected to be cooperating truth against all the Defendants under rule 803(3).See with law enforcement." March 13 Tr. at 22:2-12 (Castellano, Stemo). Declarant: Arturo Garcia Source: Eric Duran Date: On or before June 17, 2007 Objections: None Statement 18: "Ben Clark passed The Court finds, by a preponderance of the evidence, that around paperwork on Sanchez's the statement that "everyone who needs to see it has seen cooperation with police. Stating it" was made before the alleged murder by a member of `everyone who needs to see it has the Count 3 conspiracy — Clark,see supra FOF ¶ 10 — to seen it, get rid of it.'" prompt action and to prevent the conspiracy's disclosure,see March 13 Tr. at 22:13-25 (Castellano, Stemo). Declarant: Ben Clark Accordingly, this portion of the statement was made during and in furtherance of the Count 3 conspiracy by a Source: Ruben Hernandez member of that conspiracy, and is admissible against the Count 3 conspirators under rule 801(d)(2)(E). The Court Date: On or before June 17, 2007 will give, on request, a limiting instruction as to the Defendants who are not charged in Count 3. Objections: None The act of passing around paperwork is not a statement, however, so it is admissible against all the Defendants.See supra Statement 13 (analyzing the relationship between acts and statements). Statement 19: "Arturo Garcia The Court finds, by a preponderance of the evidence, that wrote to Frankie Gonzales that A.A. Garcia — a member of the Count 3 conspiracy,see
Brian and Raymond Rascon were supra FOF ¶ 10 — made this statement before the alleged to take care of the next murder for murder, providing instruction as to who was to kill SNM." Sanchez,see March 13 Tr. at 23:1-12 (Castellano, Stemo). Accordingly, this statement was made during and in Declarant: Arturo Garcia furtherance of the Count 3 conspiracy by a member of that conspiracy, and is admissible against the Count 3 Source: Javier Alonso conspirators under rule 801(d)(2)(E). The Court will give, on request, a limiting instruction as to the Defendants who Date: On or before June 17, 2007 are not charged in Count 3. Objections: None Statement 20: "Ben Clark put The Court finds, by a preponderance of the evidence, that Javier Alonso in charge of making Clark — a member of the Count 3 conspiracy,see supra sure Sanchez was killed and told FOF ¶ 10 — made this statement before the alleged murder, the Rascon brothers to complete to carry out the conspiracy's purpose and to provide the hit." instruction as to who was to kill Sanchez,see March 13 Tr. at 23:13-21 (Castellano, Stemo). Accordingly, this Declarant: Ben Clark statement was made during and in furtherance of the Count 3 conspiracy by a member of that conspiracy, and is Source: Javier Alonso admissible against the Count 3 conspirators under rule 801(d)(2)(E). The Court will give, on request, a limiting Date: On or before June 17, 2007 instruction as to the Defendants who are not charged in Count 3. Objections: None Statement 21: "Word was sent The Court finds, by a preponderance of the evidence, that from the green pod that if Sanchez Guerrero sent this message to FNU/LNU to pass on to the was not killed, others in the Blue green pod, to prompt action in the Count 3 conspiracy. pod would be killed."See March 13 Tr. at 23:22-24:7 (Castellano, Stemo). Both Guerrero and FNU/LNU are members of the Count 3 Declarant: FNU [First Name conspiracy.See supra FOF ¶ 11. Accordingly, this Unknown] LNU [Last Name statement was made during and in furtherance of the Count Unknown] 3 conspiracy by a member of that conspiracy, and is admissible against the Count 3 conspirators under rule Source: Javier Alonso 801(d)(2)(E). The Court will give, on request, a limiting instruction as to the Defendants who are not charged in Date: On or before June 17, 2007 Count 3. Objections: None Statement 22: "Edward Troup was The Court finds, by a preponderance of the evidence, that told to go help with Sanchez's Alonso — a member of the Count 3 conspiracy,see supra murder." FOF ¶ 10 — made this statement before the alleged murder, to get Troup to join the conspiracy and help carry out its Declarant: Javier Alonso goal,see March 13 Tr. at 25:2-8 (Castellano, Stemo). Accordingly, the statement was made during and in Source: Javier Alonso furtherance of the Count 3 conspiracy by a member of that conspiracy, and therefore is admissible against the Count 3
Date: On or before June 17, 2007 conspirators under rule 801(d)(2)(E). The Court will give, on request, a limiting instruction as to the Defendants who Objections: None are not charged in Count 3. Statement 23: "While Edward This statement is a verbal action — specifically an offer — Troup and Javier Alonso were and not an assertion, so it cannot be hearsay. See March finishing killing Sanchez, Brian 13 Tr. 25:9-26:2 (Castellano, Stemo). and Raymond Rascon came and asked if they could help." The Rascon brothers were tasked to do the Declarant: Brian Rascon and/or hit originally but when Javier Alonso Raymond Rascon approached them. Raymond Rascon said they didn't want to do it because they were Source: Javier Alonso short to the door, meaning they were going to get out of prison shortly. Therefore, Date: On or before June 17, 2007 Javier Alonso instructed Edward Troup and they both went into Freddie Sanchez' cell Objections: Troup Response and took care of business. When they were doing that, the Rascon brothers came to offer their aid as a way to save face with the gang. March 13 Tr. at 25:15-24 (Stemo).See supra Statement 13 (discussing the relationship between actions and statements). The Rascon brothers were not members of the Count 3 conspiracy, so none of the statements that they made are admissible for their truth under rule 801(d)(2)(E).See supra note 17. This statement is a verbal action, however, and not an assertion, it is admissible non-hearsay Troup argues that this statement lacks a sufficient foundation, because theJames Proffer identifies the declarant as "Brian Rascon and/or Raymond Rascon." Troup Response ¶ 4, at 2 (internal quotation marks omitted) (quotingJames Proffer at 13). This statement's admissibility does not depend on whether the person who offered assistance is Brian Rascon, Raymond Rascon, or both, because it is not hearsay.See United States v. Brinson , 772 F.3d 1314, 1321-22 (10th Cir. 2014) (concluding that an unidentified declarant's statements were admissible, because they were not offered to prove the truth of the matter asserted). Accordingly, the Court overrules Troup's objection.See Troup Response ¶ 4, at 2. Statement 24: "Javier Alonso told This statement is an action — giving the Rascon brothers an the Rascon brothers to keep a look order — so it is not hearsay.See March 13 Tr. at 26:3-10 out when the brothers asked if they (Stemo, Castellano).See also supra Statement 13
could help." (discussing the relationship between actions and statements). That Alonso gave this order after Sanchez' Declarant: Javier Alonso death indicates that any associated statements were not made during the Sanchez conspiracy, so those statements Source: Javier Alonso are not admissible for their truth against the Count 3 conspirators under rule 801(d)(2)(E). See United States v. Date: On or before June 17, 2007Alcorta , 853 F.3d at 1139. Objections: None Statement 25: "Edward Troup This is a statement of Troup's then-existing state of mind, kissed Javier Alonso on the cheek so it is admissible against all Defendants under rule 803(3). and told him he was proud of him."See March 13 Tr. at 26:11-19 (Castellano, Stemo). Declarant: Edward Troup Source: Javier Alonso Objections: None Statement 26: "After Sanchez was Stemo's testimony indicates that thisJames Proffer murdered, Edward Troup began statement is several closely associated statements: telling Ruben Hernandez that he was next." Q. Following the murder in Statement Number 26 was an indication that Edward Declarant: Edward Troup Troup began telling Ruben Hernandez that he was next? Source: Javier Alonso; Ruben Hernandez A. Yes. Date: On or before June 17, 2007 Q. And what was the indication about Ruben Hernandez at or around the time — at Objections: None or around the time of the murder? A. I believe Mr. Hernandez did not cover the cameras properly. Q. At that point, according to statements by Javier Alonso and others, was Ruben Hernandez seen as possibly scared and weak? A. Yes, he was actually on crutches at the time. Q. Related to the statement is there another statement related to Edward Troup stating, in part, that Ruben Hernandez failed
to cover the camera because he was scared? A. Yes. March 13 Tr. at 26:20-27:13 (Stemo, Castellano). The portion of this statement that articulates Troup's plan, i.e. , a plan to assault or kill Hernandez, is admissible as a statement of Troup's then-existing state of mind under rule 803(3). To the extent that these statements are offered for their effect on Hernandez,i.e. , intimidation, they are not offered to prove the truth of the matter asserted, so they are not hearsay, and the Court will give a limiting instruction. Statement 27: "Arturo Garcia sent The Court finds, by a preponderance of the evidence, that word about Sanchez to Ben Clark." A.A. Garcia — a member of the Count 3 conspiracy,see supra FOF ¶ 10 — told Clark about the plan to murder Declarant: Arturo Garcia Sanchez, before the alleged murder, to enlist Clark's help in carrying out the plan.See March 13 Tr. at 27:14-23 Source: Ben Clark, Eric Duran (Castellano, Stemo). Accordingly, this statement was made during and in furtherance of the Count 3 conspiracy Date: On or before June 17, 2007 by a member of that conspiracy, and therefore is admissible for its truth against the Count 3 conspirators Objections: None under rule 801(d)(2)(E). The Court will, on request, give a limiting instruction as to the Defendants who are not charged in Count 3. Statement 28: "Ben Clark and Sending letters is an action and not a statement, but the Arturo Garcia sent several letters statements in those letters regarding the Sanchez murder about Sanchez to each other." are admissible for their truth against the Count 3 conspirators under rule 801(d)(2)(E), because such Declarant: Arturo Garcia statements were made by members of the Count 3 conspiracy — A.A. Garcia and Clark,see supra FOF ¶ 10 — Source: Ben Clark during and in furtherance of the Count 3 conspiracy to murder Sanchez,see March 13 Tr. at 27:24-28:7 Date: On or before June 17, 2007 (Castellano, Stemo). The Court will, on request, give a limiting instruction as to the Defendants who are not Objections: None charged in Count 3 for any letter statements admitted under rule 801(d)(2)(E). Statement 29: "Javier Alonso and Troup argues that Benjamin Clark's expectations circa Edward Troup were expected to 2007 are not statements.See Troup Response ¶ 5, at 2. oversee the murder, and Troup told Troup is correct; expectations are not statements, but Clark the Rascon brothers to hit can testify about what his expectations were at that time if Sanchez." he remembers. If, however, this statement refers to expectations that belong to someone other than Clark, the Declarant: Ben Clark United States would need to establish how Clark knows
Source: Ben Clark about those expectations. If that foundation is statements of someone's then-existing state of mind, then those Date: On or before June 17, 2007 statements are admissible for their truth under rule 803(3). If that foundation is statements that are circumstantial Objections: Troup Response evidence of the declarant's state of mind, then those statements are not offered to prove the truth of the matter asserted, so they are not hearsay and the Court will instruct the jury that it can use these statements only for this limited purpose. In any event, the Court overrules Troup's objection. See Troup Response ¶ 5, at 2. Troup's telling the Rascon brothers to murder Sanchez is an order and not a statement, so it is not hearsay,see supra Statement 13, but any associated statement Troup made is admissible against the Count 3 coconspirators for its truth under rule 801(d)(2)(E),see March 13 Tr. at 28:8-15 (Castellano, Stemo), because it was made by a "coconspirator during and in furtherance of the conspiracy," Fed. R. Evid. 801(d)(2)(E). That the Rascon brothers did not join the Count 3 conspiracy,see supra note 17, does not affect whether Troup's statements to them are admissible under rule 801(d)(2)(E). Statement 30: "Leonard Lujan told Stemo's testimony indicates that "Statement Number 30 is Willie Amador and Jesse Ibarra to incorrect" and that "[w]hat it actually says is, Lujan told `handle that' and told Eugene Martinez to tell SNM members Willie Amador and Jesse Martinez that `I'm running this Martinez to handle that." March 13 Tr. at 176:24-177:2 prison now.'" (Stemo). Lujan's order to E. Martinez is an action and not an assertion,see supra Statement 13 (discussing the Declarant: Leonard Lujan relationship between actions and statements), but any associated statements would be admissible for their truth Source: Eugene Martinez against the Count 2 Defendants under rule 801(d)(2)(E), because Lujan is a member of the Count 2 conspiracy,see Date: On or before March 26, 2001supra FOF ¶ 6, and made the statements before the alleged murder, to carry out the murder. C. Chavez and Patterson Objections: C. Chavez Response, are members of the Count 2 conspiracy,see supra FOF ¶ 6, Patterson Response so the Court overrules their objections,see C. Chavez Response ¶ 18, at 6; Patterson Response ¶ 21, at 8-9. For any related statements admitted under rule 801(d)(2)(E), the Court will, on request, give a limiting instruction as to the Defendants who are not charged in Count 2. Statement 31: "Christopher Chavez That C. Chavez volunteered is an action and not a heard about the hit on Garza and statement.See supra Statement 13 (discussing the volunteered to participate in the relationship between actions and statements). This operation." statement is not hearsay, because C. Chavez' act, volunteering to participate in the Garza murder, is neither
Declarant: Chris Chavez true nor false. The Court anticipates that there are other statements associated with C. Chavez' act which could be Source: Eugene Martinez offered for their truth. For example, it would have been natural for C. Chavez to state that he wanted to participate Date: On or before March 26, 2001 in the Garza murder, which would be a statement of then-existing state of mind under rule 803(3). Any statements Objections: B. Garcia Response, made by Count 2 conspirators attempting to induce Patterson Response C. Chavez to volunteer would have been made during and in furtherance of the Count 2 conspiracy, so they would be admissible for their truth under rule 801(d)(2)(E) as to the Count 2 conspirators. As this statement is not hearsay, and B. Garcia and Patterson are members of the Count 2 conspiracy, see supra FOF ¶ 6, the Court overrules their objections,see B. Garcia Response ¶ 4, at 2; Patterson Response ¶ 22, at 9. Statement 32: "Willie Amador told Willie Amador, a member of the Count 2 conspiracy,see Eugene Martinez to be lookoutsupra FOF ¶ 7, made this statement before the alleged during the Garza murder and murder, to effectuate the Garza murder,see March 13 Tr. stated, `If something happens, you at 29:23-30:11 (Castellano, Stemo). Accordingly, this already know.'" statement was made during and in furtherance of the Count 2 conspiracy by a member of that conspiracy, and therefore Declarant: Willie Amador is admissible for its truth against the Count 2 conspirators under rule 801(d)(2)(E). C. Chavez and Patterson are Source: Eugene Martinez members of the Count 2 conspiracy,see supra FOF ¶ 6, so the Court overrules their objections,see C. Chavez Date: On or before March 26, 2001 Response ¶ 19, at 6; Patterson Response ¶ 23, at 9-10. The Court will, on request, give a limiting instruction as to the Objections: C. Chavez Response, Defendants who are not charged in Count 2. Patterson Response Statement 33: "While strangling B. Garcia argues that, because theJames Proffer lists this Garza someone in the room yelled statement's declarant as "Allen Patterson or Christopher `Close the door!'" Chavez,"James Proffer at 18, "[t]here is no ability to properly attribute or authenticate the statement to any Declarant: Allen Patterson or particular declarant." B. Garcia ¶ 5, at 2-3. Patterson Christopher Chavez argues that the uncertainty "about the declarant renders the statement inadmissible, in that the probative value is Source: Eugene Martinez greatly outweighed by the danger of unfair prejudice to Mr. Patterson." Patterson Response ¶ 4, at 2. Date: On or before March 26, 2001 This statement — "Close the door!,"James Proffer at 18— Objections: B. Garcia Response, is a command, so it is neither true nor false, and is not Patterson Response hearsay,see supra Statement 13 (analyzing the relationship of actions and statements). Associated statements are probably admissible against the Count 2 conspirators under rule 801(d)(2)(E), if uttered before Garza's death — i.e.,
before the conspiracy's termination. See United States v. Alcorta , 853 F.3d at 1139. As to authentication, rule 901 states that "the proponent [of an item of evidence] must produce evidence sufficient to support a finding that the item is what the proponent claims it is." Fed. R. Evid. 609(a). Accordingly, so long as the United States asserts only that this statement was made by either Patterson or Chavez, it only needs, under rule 609, to introduce evidence sufficient to support a finding that one of those two individuals made the statement.See Fed. R. Evid. 609(a). The testimony of the witness who relates this statement to the jury — assuming that the witness has knowledge — satisfies that requirement.See Fed. R. Evid. 609(b)(1) (stating that the testimony of a witness with knowledge satisfies rule 609's authentication requirement). Accordingly, the Court overrules B. Garcia's objection.See B. Garcia Response ¶ 5, at 2-3. The uncertainty of the declarant would not provoke an emotional response from the jury or adversely affect its attitude toward Patterson, so the introduction of this statement is not unfairly prejudicial, and the Court will not exclude it.See Fed. R. Evid. 403;United States v. Rodriguez , 192 F.3d at 951. Accordingly, the Court also overrules Patterson's objection.See Patterson Response ¶ 4, at 2. Statement 34: "Leonard Lujan The Court finds, by a preponderance of the evidence, that approached Eugene Martinez and Lujan — a member of the Count 2 conspiracy,see supra told him to talk to Willie Amador FOF ¶ 6 — before the alleged murder, made this statement about the murders." to elicit E. Martinez' and Amador's participation in the conspiracy to murder Garza,see March 13 Tr. at 30:20-31:1 Declarant: Leonard Lujan (Castellano, Stemo). Accordingly, this statement was made during and in furtherance of the Count 2 conspiracy Source: Eugene Martinez by a member of that conspiracy, and therefore is admissible for its truth against the Count 2 Defendants Date: On or before March 26, 2001 under rule 801(d)(2)(E). C. Chavez and Patterson are members of the Count 2 conspiracy.See supra FOF ¶ 6. Objection: C. Chavez Response, The Court accordingly overrules C. Chavez' and Patterson Response Patterson's objections.See C. Chavez Response ¶ 20, at 6-7; Patterson Response ¶ 24, at 10. The Court, on request, will give a limiting instruction as to the Defendants who are not charged in Count 2. Statement 35: "Eugene Martinez The Court finds, by a preponderance of the evidence, that asked Billy Garcia and Garcia B. Garcia — a member of the Count 2 conspiracy,see supra confirmed the order and said `it's FOF ¶ 6 — before the alleged murder, made this statement
coming from me' and `make sure it to ensure that Garza would be killed, see March 13 Tr. at happens.'" 31:2-12 (Castellano, Stemo). Accordingly, this statement was made during and in furtherance of the Count 2 Declarant: Billy Garcia conspiracy by a member of that conspiracy, and is admissible for its truth against the Count 2 Defendants Source: Eugene Martinez under rule 801(d)(2)(E). C. Chavez and Patterson are members of the Count 2 conspiracy.See supra FOF ¶ 6. Date: On or before March 26, 2001 The Court accordingly overrules C. Chavez' and Patterson's objections.See C. Chavez Response ¶ 21, at 7; Objections: C. Chavez Response, Patterson Response ¶ 25, at 10. The Court will, on request, Patterson Response give a limiting instruction as to the Defendants who are not charged in Count 2. Statement 36: "Joe Gallegos later The United States orally conceded that this statement is not informed Leroy Lucero that admissible under rule 801(d)(2)(E), because it was made Lawrence Torres saw and was four or five years after the Castillo and Garza murders. concerned Torres might snitch."See March 13 Tr. at 32:5-13 (Castellano). The Court thus sustains B. Garcia's, C. Chavez', and Troup's objections Declarant: Joe Gallegos insofar as they assert that this is not a coconspirator statement.See B. Garcia Response ¶ 6, at 3; C. Chavez Source: Leroy Lucero Response ¶ 22, at 7; Troup Response ¶ 6, at 2. Date: On or before March 26, 2001 The United States suggests, however, that the statement is admissible against J. Gallegos under rule 801(d)(2)(A). Objections: B. Garcia Response,See March 13 Tr. at 32:11-13 (Castellano). The statement C. Chavez Response, A. Gallegos also appears to be a statement of then-existing state of Response, J. Gallegos Response, mind under rule 803(3) to the extent that it expresses Troup Response, Patterson J. Gallegos' concerns and as circumstantial evidence of Response J. Gallegos' state of mind,i.e. consciousness of guilt. It is not admissible under rule 803(3), however, to show that Lawrence Torres saw anything, because rule 803(3) does not permit a statement of belief to be used to prove the fact believed.See Fed. R. Evid. 803(3). The Court accordingly overrules Patterson's objection.See Patterson Response ¶ 26, at 10-11. If the statement comes in under rule 801(d)(2)(A), all Defendants other than J. Gallegos may request a limiting instruction. If the statement is admitted for a non-hearsay purpose, the Court will instruct the jury that it can consider the statement only for this purpose. That this statement is nontestimonial means that its admission does not offend the Confrontation Clause. Accordingly, the Court overrules A. Gallegos' objection alleging a confrontation violation and, for the reasons statedsupra note 27, the Court overrules A. Gallegos' negative spillover objection.See A. Gallegos Response
¶ 4, at 2. J. Gallegos also objects to this statement "on confrontation grounds," but, because he is the declarant, there is no confrontation issue and the Court overrules his objection. See J. Gallegos Response ¶ 2, at 4. The Court can also use limiting instructions to mitigate any prejudice to other Defendants. Statement 37: "Edward Troup told The United States provided additional context for this Lawrence Torres, `This has nothing statement at the Court'sJames hearing: to do with you. Don't come up here.'" On the morning of the murder, March 26, 2001, Lawrence Torres woke up. As he Declarant: Edward Troup walked out to heat up water for his coffee, he saw Angel DeLeon and Edward Troup, Source: Lawrence Torres and it looked like to him that they were disassembling a laundry bag. He put his Date: On or before March 26, 2001 water into the microwave, went back to his cell. He heard a struggle, so he looked out Objections: B. Garcia Response, to see what was happening, and he saw Mr. C. Chavez Response, Patterson Edward Troup sitting at a table. Mr. Torres Response tried go upstairs to see what was happening, and that's when Mr. Troup made that statement. March 13 Tr. at 32:20-33:5 (Stemo). The Court therefore finds, by a preponderance of the evidence, that Troup, a member of the Count 1 conspiracy,see supra FOF ¶ 3, made this statement during the alleged Castillo murder to prevent outside interference with the murder. Accordingly, this statement was made during and in furtherance of the Count 1 conspiracy by a member of that conspiracy, and is admissible against the Count 1 Defendants under rule 801(d)(2)(E). B. Garcia is a member of the Count 1 conspiracy,see supra FOF ¶ 3, so the Court overrules B. Garcia's objection,see B. Garcia Response ¶ 7, at 3. C. Chavez and Patterson are not members of the Count 1 conspiracy,see supra FOF ¶¶ 2-3, so the Court sustains C. Chavez' and Patterson's objections insofar as they request a limiting instruction, which the Court will give at C. Chavez' or Patterson's in-court request,see C. Chavez Response ¶ 23, at 7-8; Patterson Response ¶ 27, at 11. The Court will, on request, give a limiting instruction to any of the other Defendants who are not charged in Count 1. Statement 38: "Angel Deleon had a TheJames hearing testimony indicates that DeLeon made scratch on his finger and told a this statement after the Castillo murder, so it was not made during the conspiracy to commit that murder.See March
female CO that he cut himself." 13 Tr. at 33:9-21(Castellano, Stemo). Consequently, it is not admissible for its truth under rule 801(d)(2)(E). The Declarant: Angel DeLeon statement is admissible, however, as circumstantial evidence of DeLeon's state of mind, specifically his Source: Lawrence Torres consciousness of guilt, and the Court will give a limiting instruction that the jury can consider this statement for Date: On or before March 26, 2001 only this purpose. The Court accordingly overrules B. Garcia's, C. Chavez', and Patterson's objections that this is Objections: B. Garcia Response, inadmissible hearsay. See B. Garcia Response ¶ 8, at 4; C. Chavez Response, Patterson C. Chavez Response ¶ 24, at 8; Patterson Response ¶ 28, at Response 11-12. Offering an out-of-court statement for a purpose other than to prove its truth does not implicate the Confrontation Clause,see Tennessee v. Street , 471 U.S. 409, 417 (1985), so the Court overrules B. Garcia's and C. Chavez' objections that "this is a testimonial statement made to a CO during the process of an investigation and therefore is inadmissible," B. Garcia Response ¶ 8, at 4. Statement 39: "Kyle Dwyer came That Dwyer brought the Sanchez paperwork to SNMCF is to SNMCF with `paperwork' on an action and not a statement.See supra Statement 13 Sanchez." (analyzing the relationship between actions and statements). Accordingly, it is not hearsay and is Declarant: Kyle Dwyer admissible, so the Court overrules Troup's objection.See Troup Response ¶ 7, at 2. Source: Ben Clark Date: On or before June 17, 2007 Objections: Troup Response Statement 40: "The `paperwork' Clark likely does not have personal knowledge regarding came from the Crazy Town the paperwork's origins; he probably knows that the Roswell gang." paperwork came from the Crazy Town Roswell gang because somebody told him about the paperwork's origins. Declarant: Ben ClarkSee Fed. R. Evid. 602. The Court has no information regarding that out-of-court statement to Clark, so it cannot Source: Ben Clark analyze whether that statement is admissible for its truth. Date: On or before June 17, 2007 Objections: None Statement 41: "Joe and Andrew This statement is not admissible under rule 801(d)(2)(E), Gallegos just pulled `a job' and had because the United States has not provided evidence for to go `clean up.' They were giving the Court to conclude, by a preponderance of the evidence, money and heroin to friends to that a conspiracy to murder Adrian Burns existed.
`help them out.' Joe Gallegos said, The James Proffer is not entirely clear regarding which `I just came up.'" statements A. Gallegos made and which statements J. Gallegos made. Rule 801(d)(2)(A) permits the statement Declarant: Joe and/or Andrew to be admitted against whichever Gallegos brother made Gallegos the statement. If one Gallegos brother made a statement, it may be admissible against the other under rule Source: Leroy Vallejos, Michael 801(d)(2)(B), which permits a statement to be introduced Sutton against a party that "manifested that it adopted or believed [the statement] to be true." Fed. R. Evid 801(d)(2)(B). Date: On or about November 12,See id. advisory committee's notes to 1972 proposed rules 2012 ("Adoption or acquiescence may be manifested in any appropriate manner. When silence is relied upon, the Objections: A. Gallegos Response, theory is that the person would, under the circumstances, J. Gallegos Response protest the statement made in his presence, if untrue."). Additionally, the statement might be admissible as an excited utterance.See Fed. R. Evid. 803(2). A. Gallegos objects to this statement on confrontation grounds, but because this statement is nontestimonial, the Court overrules this objection.See A. Gallegos Response ¶ 4, at 2. A. Gallegos also objects to this statement because "there is a lack of personal knowledge and an overall inability to properly attribute or authenticate the source for those statements that are simply identified with both Joe and Andrew Gallegos, or simply the `Gallegos brothers.'" A. Gallegos Response ¶ 5, at 3. At trial, the witness who relates these statements to the jury will probably identify the declarant with more specificity, and the parties can address personal knowledge and authentication at that point. It is worth noting, however, that a party offering a statement for its truth under rule 801(d)(2) need not establish that the declarant had personal knowledge.See 2 Stephen A. Saltzburg et al.,Federal Rules of Evidence Manual § 602.02[2] (11th ed. 2015) ("The exception to the rule is a statement admissible under Rule 801(d)(2) as a statement of a party-opponent, where the declarant need not have personal knowledge for the statement to be admissible."). Accordingly, the Court overrules A. Gallegos' authentication objection for now, although he may renew it at trial if the authentication is lacking.See A. Gallegos Response ¶ 5, at 3. J. Gallegos objects to this statement and Statement 42, because admitting them "is probably in-violation [sic] of the holding in Bruton v. United States, 391 U.S. 123 (1968)." J. Gallegos Response ¶ 3, at 4. That this
statement is nontestimonial indicates that admitting it for its truth does not offend the Confrontation Clause. Further, if rule 801(d)(2)(A) and rule 801(d)(2)(B) both apply, the statement is admissible against both Gallegos brothers. The Court accordingly overrules J. Gallegos' objection. See J. Gallegos Response ¶ 3, at 4. Statement 42: "Joe and Andrew This statement is not admissible under rule 801(d)(2)(E), Gallegos were covered in blood because the United States has not provided evidence for and advised they were `cleaning the Court to conclude, by a preponderance of the evidence, the house.' Joe Gallegos later went that a conspiracy to murder Burns existed. by Leroy Vallejos' house and tried to give Vallejos his and Andrew Part of this statement — that J. Gallegos tried to give Gallegos' truck." Vallejos the truck — is an action and not a statement, so it is not hearsay.See supra Statement 13 (analyzing the Declarant: Joe and/or Andrew relationship between actions and statements). Statements Gallegos indicating why J. Gallegos was giving Vallejos the truck are admissible as circumstantial evidence of J. Gallegos' Source: Daniel Orndorff, Michael state of mind or as statements of J. Gallegos' then-existing Sutton, Leroy Vallejos state of mind under rule 803(3). That "they were `cleaning the house,'"James Proffer at 22, is admissible for its truth Date: On or about November 12, against the declarant under 801(d)(2)(A), and likely against 2012 the other brother under 801(d)(2)(B). A. Gallegos objects to this statement on confrontation Objections: A. Gallegos Response, grounds, but because this statement is nontestimonial, the J. Gallegos Response Court overrules this objection.See A. Gallegos Response ¶ 4, at 2. A. Gallegos also objects to this statement because "there is a lack of personal knowledge and an overall inability to properly attribute or authenticate the source for those statements that are simply identified with both Joe and Andrew Gallegos, or simply the `Gallegos brothers.'" A. Gallegos Response ¶ 5, at 3. At trial, the witness who relates these statements to the jury will probably identify the declarant with more specificity, and the parties can address personal knowledge and authentication at that point. It is worth noting, however, that a party offering a statement for its truth under rule 801(d)(2) need not establish that the declarant had personal knowledge.See 2 Saltzburg et al.,supra , § 602.02[2] ("The exception to the rule is a statement admissible under Rule 801(d)(2) as a statement of a party-opponent, where the declarant need not have personal knowledge for the statement to be admissible."). Accordingly, the Court overrules A. Gallegos' authentication objection for now, although he may renew it at trial if the authentication is
lacking. See A. Gallegos Response ¶ 5, at 3. J. Gallegos objects to this statement's admission, as discussed supra Statement 41. The Court overrules this objection, because the statement is nontestimonial and, if rule 801(d)(2)(A) and rule 801(d)(2)(B) both apply, the statement is admissible against both Gallegos brothers.See J. Gallegos Response ¶ 3, at 4. Statement 43: "Charlene Baldizan The Court has not found that a conspiracy to murder Burns agreed to get rid of the van because existed by a preponderance of the evidence, so this the Gallegos brothers knew police statement is not admissible under rule 801(d)(2)(E). were looking for it." Accordingly, the Court sustains the portion of J. Gallegos' objection as to the statement's admission under this Declarant: Gallegos brothers hearsay exclusion.See J. Gallegos Response ¶ 4, at 4. Source: Charlene Baldizan A. Gallegos objects to this statement on confrontation grounds, but because this statement is nontestimonial and Date: On or about November 12, A. Gallegos one of the declarants, the Court overrules this 2012 objection.See A. Gallegos Response ¶ 4, at 2. A. Gallegos also objects to this statement because "there is Objections: A. Gallegos Response, a lack of personal knowledge and an overall inability to J. Gallegos Response properly attribute or authenticate the source for those statements that are simply identified with both Joe and Andrew Gallegos, or simply the `Gallegos brothers.'" A. Gallegos Response ¶ 5, at 3. At theJames hearing, however, Agent Stemo indicated that Baldizan specifically attributed this statement to both brothers, and was physically present with them as they hid from police.See March 13 Tr. at 36:18-37:19 (Castellano, Stemo). Accordingly, this statement is admissible as evidence of the brothers' then-existing state of mind — specifically, their motive for getting rid of the van — under rule 803(3). It is also admissible as circumstantial evidence of the brothers' consciousness of guilt. Any statements made that the police were looking for the van are admissible against only the declarant brother under rule 801(d)(2)(A) — although rule 801(d)(2)(B) may apply to the other brother — because rule 803(3) does not permit a statement of belief to be used to prove the fact believed.See Fed. R. Evid. 803(3) (excluding from admissibility "a statement of memory or belief to prove the fact remembered or believed[,] unless it relates to the validity or terms of the declarant's will"). Accordingly, the Court overrules A. Gallegos' authentication objection.See A. Gallegos Response ¶ 5, at 3.
J. Gallegos also objects to this statement, because "this appears to be an act or action rather than a statement." J. Gallegos Response ¶ 4, at 4. An action which is not meant as an assertion is not a statement, and is admissible non-hearsay. See supra Statement 13. There appears to be statements within the statement, as analyzed above, and the Court overrules this objection.See J. Gallegos Response ¶ 4, at 4. Statement 44: "Joe and Andrew The United States orally struck "and Andrew" from Gallegos asked Jason Van Veghel statement 44, so the Court analyzes the statement without to clean up the living room and pull this phrase. March 13 Tr. at 37:21-24 (Castellano). the carpet up and gave him 2-3 hits of heroin for it. Joe Gallegos also A. Gallegos objects to this statement on confrontation asked Van Veghel to clean blood grounds, but, as there is no Confrontation Clause issue off air compressor" here, the Court overrules this objection.See A. Gallegos Response ¶ 4, at 2. Declarant: Joe Gallegos J. Gallegos objects to this statement, because Van Veghel "has never been alleged or identified as a co-conspirator." Source: Jason Van Veghel J. Gallegos Response ¶ 5, at 4. After J. Gallegos filed his response, the United States orally identified Van Veghel as Date: On or about November 13, a conspirator in the Burns homicide coverup at the Court's 2012James hearing.See March 12 Tr. at 99:23-100:3 (Castellano). Additionally, whether a statement is Objections: A. Gallegos Response, admissible under rule 801(d)(2)(E) depends on whether the J. Gallegos Response statement was made by a conspirator and not on whether the statement was made to a conspirator.See 4 Saltzburg et al., supra, § 801.02[7], at 801-74. Rule 801(d)(2)(E) does not apply to this statement, however, because the Court has not found that a conspiracy to murder Adrian Burns existed by a preponderance of the evidence. Nonetheless, Van Veghel can testify regarding the actions he took without running afoul of the rule against hearsay.See Fed. R. Evid. 801(c). Any instructions J. Gallegos gave Van Veghel are orders, not statements, and thus admissible non-hearsay as well.See supra Statement 13. Any statement J. Gallegos may have said to Van Veghel is admissible against J. Gallegos under 801(d)(2)(A).See Fed. R. Evid. 801(d)(2)(A). Accordingly, the Court overrules J. Gallegos' objection.See J. Gallegos Response ¶ 5, at 4. The Court, upon request, will give a limiting instruction for any such statements as to the other Defendants. Statement 45: "The next day, at Joe The Court has not found that a conspiracy to murder Burns Gallegos['] request, Andrew existed by a preponderance of the evidence, so this
Gallegos threw a set of keys and a statement is not admissible under rule 801(d)(2)(E). Van wrist watch into a field." Veghel can testify regarding the actions he observed, such as A. Gallegos throwing a set of keys and a wrist watch Declarant: Andrew Gallegos into a field, without running afoul of the rule against hearsay, however. See March 13 Tr. at 38:16-39:7 Source: Jason Van Veghel (Castellano, Stemo); Fed. R. Evid. 801(c). Further, J. Gallegos' order to A. Gallegos to throw out the keys and Date: On or about November 13, wrist watch is not an assertion, so it is admissible non-hearsay. 2012See supra Statement 13. Objections: A. Gallegos Response, J. Gallegos' order is nontestimonial, so there is no J. Gallegos Response Confrontation Clause issue. Accordingly, the Court overrules A. Gallegos' and J. Gallegos' objections.See A. Gallegos Response ¶ 4, at 2; J. Gallegos Response ¶ 6, at 4-5. Statement 46: "Joe Gallegos found The Court has not found that a conspiracy to murder Burns out the police were coming to existed by a preponderance of the evidence, so this search the house and he gave statement is not admissible under rule 801(d)(2)(E). several guns and other stolen goods to Jason Van Veghel to store Van Veghel can testify regarding actions he observed — elsewhere." such as J. Gallegos giving him several guns and stolen goods — without running afoul of the rule against hearsay. Declarant: Joe GallegosSee Fed. R. Evid. 801(c). Statements indicating why J. Gallegos was giving Van Veghel those guns and goods Source: Jason Van Veghel are admissible as circumstantial evidence of J. Gallegos' state of mind or as statements of J. Gallegos' then-existing Date: On or about November 13, state of mind, specifically his motive, under rule 803(3). 2012 There is no Confrontation Clause issue here, because any statements are nontestimonial, so the Court overrules A. Objections: A. Gallegos Response, Gallegos' objection.See A. Gallegos Response ¶ 4, at 2. J. Gallegos Response J. Gallegos argues that this statement is "inconsistent with the discovery provided." J. Gallegos Response ¶ 7, at 5. J. Gallegos can impeach this statement based on that inconsistency, but it does not render the statement inadmissible. Accordingly, the Court overrules this objection.See J. Gallegos Response ¶ 7, at 5. Statement 47: "Santos Gonzale[z] Any statements that J. Gallegos made ordering others to told Gomez `You remember me?' kill Gomez are admissible against the members of the They then told Gomez that Joe Gomez conspiracy — Counts 14, 15, and 16 — under Gallegos put a hit out and they 801(d)(2)(E).See supra FOF ¶ 14. Statements that those were there to kill him." others made to Gomez are either circumstantial evidence of the declarant's state of mind or statements of then-existing Declarant: Santos Gonzalez state of mind under 803(3), specifically their motive for assaulting Gomez.
Source: Jose Gomez Gutierrez objects to this statement, because, "as part of his plea agreement," Gonzalez "agreed not to testify," and Date: On or about February 27, because it is "factually inconsistent with the statements 2016 given by Jose Gomez during" his interview. Gutierrez Response ¶ 2, at 1. This statement is admissible under Objection: Gutierrez Response, 803(3) "regardless of whether the declarant," i.e. , J. Gallegos Response Gonzalez, "is available as a witness." Fed. R. Evid. 803. Further, Gutierrez may impeach the statement based on that inconsistency, but this possible inconsistency does not render the statement inadmissible. Accordingly, the Court overrules Gutierrez' objection.See Gutierrez Response ¶ 2, at 1. J. Gallegos argues that this statement is inadmissible, because "Santos Gonzalez is not expected to testify and this statement is contained in the factual portion of his plea agreement." J. Gallegos Response ¶ 8, at 5. The United States probably reused language from Gonzalez' plea agreement when drafting theJames Proffer, but that does not render Jose Gomez' testimony relating the substance of Gonzalez' out-of-court statement inadmissible. The Court overrules this objection.See J. Gallegos Response ¶ 8, at 5. Statement 48: "Shauna Gutierrez Gutierrez "objects to the statement as factually inaccurate said `they didn't finish him' when and simply untrue," and notes that B. Rodriguez has given Gomez ran away." inconsistent statements during her multiple interviews. Gutierrez Response ¶ 3, at 1. Gutierrez can deal with this Declarant: Shauna Gutierrez inconsistency at trial through B. Rodriguez' impeachment, so the Court overrules this objection.See Gutierrez Source: Brandy Rodriguez Response ¶ 3, at 1. Date: On or about February 27, The United States orally indicated that it will offer this 2016 statement only if Brandy Rodriguez testifies to it.See March 13 Tr. at 41:7-12 (Castellano) ("Brandy Rodriguez Objections: Gutierrez Response, is not cooperating with the Government at this time, but I J. Gallegos Response am submitting this statement for the Court's consideration in case that changes."). Consequently, J. Gallegos' assertion that "neither the declarant nor the source is expected to testify" creates no admissibility issues. J. Gallegos Response ¶ 48, at 5. If B. Rodriguez testifies, then J. Gallegos' assertion is false. If B. Rodriguez does not testify, this statement will not be offered into evidence, so whether it is admissible is moot. J. Gallegos also asserts that "there is no indicia of trustworthiness based on the multiple versions of
statements given by" B. Rodriguez and Gutierrez. J. Gallegos ¶ 9, at 5. J. Gallegos can argue to the jury that this statement is untrustworthy, but that does not render the statement inadmissible. The Court overrules J. Gallegos' objection. See J. Gallegos Response ¶ 9, at 5. This statement is not admissible under 801(d)(2)(E), because the United States has not shown by a preponderance of the evidence that the conspiracy continued once the conspirators failed at killing Gomez.See United States v. Alcorta , 853 F.3d at 1139. The statement is admissible against Gutierrez under 801(d)(2)(A). The Court, on request, will give a limiting instruction as to the other Defendants. Statement 49: "Santos Gonzalez Gutierrez objects to this statement "as factually and Paul Rivera knocked on the inaccurate." Gutierrez Response ¶ 4, at 2. Gutierrez can door and asked for Gomez. They deal with this problem at trial through impeachment, so the then told Charlene Parker-Johnson Court overrules this objection.See Gutierrez Response that she should leave the house." ¶ 4, at 2. Declarant: Santos Gonzalez and/or J. Gallegos "objects to this statement to the extent that it Paul Rivera may have come from Santos Gonzale[z] who probably will not testify. Defendant further objects as this statement Source: Charlene Parker-Johnson does not appear trustworthy as the source is not provided ostensibly because he/she remains unknown." J. Gallegos Date: On or about February 27, Response ¶ 10, at 5. First, coconspirator statements are 2016 admissible under 801(d)(2)(E) regardless whether the declarant testifies.See Fed. R. Evid. 801(d)(2)(E). Objections: Gutierrez Response, Second, contrary to the J. Gallegos Response, theJames J. Gallegos Response Proffer identifies the source of this statement as Charlene Parker-Johnson, and not as Gonzalez or unknown.See James Proffer at 26. To the extent that J. Gallegos' actual objection is to the uncertainty of the declarant, this issue likely will be cleared up during Parker-Johnson's testimony. Accordingly, the Court overrules this objection. J. Gallegos Response ¶ 10, at 5. The Court finds, by a preponderance of the evidence, that a member of the Counts 14-16 conspiracy — either Gonzalez or Rivera,see supra FOF ¶ 14 — made this statement, before the alleged attempt to murder Gomez, to get Parker-Johnson to leave the house so the coconspirators could kill Gomez unimpeded.See March 13 Tr. at 42:2-11 (Castellano, Stemo). Accordingly, this statement was made during and in furtherance of the Counts 14-16 conspiracy by a member of that conspiracy, and is
admissible for its truth against the Counts 14-16 Defendants — including J. Gallegos and Gutierrez, see supra FOF ¶ 14 — under 801(d)(2)(E). The Court, on request, will give a limiting instruction as to the Defendants who are not charged in Counts 14-16. Statement 50: "Santos Gonzalez Gutierrez objects to this statement "as factually and Paul Rivera yelled, `He's inaccurate." Gutierrez Response ¶ 4, at 2. Gutierrez can running!' and `He's getting away!' deal with this issue at trial through impeachment, so the when Gomez started to run." Court overrules this objection.See Gutierrez Response ¶ 4, at 2. Declarant: Santos Gonzalez and/or J. Gallegos "objects to this statement to the extent that it Paul Rivera may have come from Santos Gonzale[z] who probably will not testify Defendant further objects as this statement Source: Charlene Parker-Johnson does not appear trustworthy as the source is not provided ostensibly because he/she remains unknown." J. Gallegos Date: On or about February 27, Response ¶ 10, at 5. First, coconspirator statements are 2016 admissible under 801(d)(2)(E) regardless whether the Objections: Gutierrez Response, declarant testifies.See Fed. R. Evid. 801(d)(2)(E). J. Gallegos Response Second, contrary to the J. Gallegos Response, theJames Proffer identifies the source of this statement as Charlene Parker-Johnson, and not as Gonzalez or unknown.See James Proffer at 26. To the extent that J. Gallegos' objection is to the uncertainty of the declarant, this issue likely will be cleared up during Parker-Johnson's testimony. Accordingly, the Court overrules this objection.See J. Gallegos Response ¶ 10, at 5. These statements are admissible as excited utterances,see Fed. R. Evid. 803(2), or as present-sense impressions,see Fed. R. Evid. 803(1).See also March 13 Tr. at 42:12-43:2 (Castellano, Stemo). Statement 51: "Joe Gallegos placed Gutierrez objects to this statement, because neither she nor a hit on Gomez because Joe B. Rodriguez made this statement and because it is Gallegos feared Gomez would inconsistent.See Gutierrez Response ¶ 5, at 2. Gutierrez testify against him on a state can deal with this credibility question and inconsistency at murder charge." trial, so the Court overrules this objection.See Gutierrez Response ¶ 5, at 2. Declarant: Shauna Gutierrez and Brandy Rodriguez J. Gallegos "objects to this statement to the extent that its source is unidentified." J. Gallegos Response ¶ 11, at 5. Source: Paul Rivera The source of this statement, however, is not unidentified.See James Proffer at 27.See also March 13 Tr. at 43:3-11 Date: On or about February 27, (Castellano, Stemo). To the extent that J. Gallegos' 2016 objection is to the uncertainty of the declarant, this issue likely will be cleared up during Rivera's testimony. The Objections: Gutierrez Response,
A. Gallegos Response, J. Gallegos Court overrules this objection. Response This statement is admissible for its truth against the members of the Counts 14-16 conspiracy under rule 801(d)(2)(E). Both declarants — B. Rodriguez and Gutierrez — are members of the Counts 14-16 conspiracy. See supra FOF ¶ 14. The statement was made in furtherance of that conspiracy, because it enlisted Rivera's assistance in the conspiracy. This statement is not, however, admissible against A. Gallegos, because he was not a member of the Counts 14-16 conspiracy, and the Court, at A. Gallegos' request, will give the jury a limiting instruction.See A. Gallegos Response ¶ 4, at 2-3. The Court, on request, will give a limiting instruction as to the other Defendants who are not charged in Counts 14-16. Statement 52: "Upon learning Gutierrez objects to this statement "as Gutierrez and where Gomez was staying, Shauna Brandy never agreed to do anything. Brandy and Rivero Gutierrez and Brandy Rodriguez agreed to go after Gomez." Gutierrez Response ¶ 6, at 2. agreed they needed to go after Gutierrez may deal with inaccuracy during trial, so the Gomez." Court overrules this objection. Gutierrez Response ¶ 6, at 2. Declarant: Shauna Gutierrez and Brandy Rodriguez J. Gallegos objects that there is no statement and that "it appears to be factually inaccurate." J. Gallegos Response Source: Paul Rivera, Brandy ¶ 12, at 6. The action of going after Gomez is likely not Rodriguez meant as an assertion, and thus not a statement, so it is admissible non-hearsay.See supra Statement 13. Any Date: On or about February 27, corresponding statements about going after Gomez are 2016 admissible against the members of the Counts 14-16 conspiracy under 801(d)(2)(E). J. Gallegos also asserts Objections: Gutierrez Response, that "the source is vague," but Stemo indicated that both J. Gallegos Response Rivero and B. Rodriguez gave this statement.See March 13 Tr. at 44:2-7 (Castellano, Stemo). The Court overrules this objection.See J. Gallegos Response ¶ 12, at 6. Statement 53: "Paul Rivera agreed Paul Rivera's testimony stating that he agreed to help with to help with the hit on Gomez." the hit on Gomez is not an out-of-court statement offered "to prove the truth of the matter asserted," so it raises no Declarant: Paul Rivera hearsay issues. Fed. R. Evid. 801(c). That Rivera's testimony may be "self-serving" does not render it Source: Paul Rivera inadmissible. J. Gallegos Response ¶ 13, at 6. Accordingly, the Court overrules J. Gallegos' objection. Date: On or about February 27,See J. Gallegos Response ¶ 13, at 6. 2016 Objections: J. Gallegos Response
Statement 54: "You better not This statement is admissible as circumstantial evidence of testify against my Jefe, or I'll kill B. Rodriguez' state of mind. you!" Declarant: Brandy Rodriguez Source: Paul Rivera Date: On or about February 27, 2016 Objections: None Statement 55: "Santos Gonzale[z] This statement is admissible as a statement of Gonzalez' also stated he was going to kill then-existing state of mind, specifically his plan, under Gomez." rule 803(3). See Fed. R. Evid. 803(3). Declarant: Santos Gonzalez Gutierrez argues that this statement is "factually inaccurate" and contrary to Gomez' statement given to law Source: Paul Rivera enforcement. Gutierrez Response ¶ 7, at 2. Gutierrez may note the factual inconsistencies at trial, so the Court Date: On or about February 27, overrules this objection.See Gutierrez Response ¶ 7, at 2. 2016 J. Gallegos asserts that this statement is inaccurate, because it is not consistent with Gonzalez' plea Objections: Gutierrez Response, agreement.See J. Gallegos Response ¶ 14, at 6. J. Gallegos Response J. Gallegos can use that inconsistency to impeach this statement, but it does not render this statement inadmissible. The Court overrules this objection.See J. Gallegos Response ¶ 14, at 6. No limiting instruction is appropriate. Statement 56: "Told Shauna The Gutierrez statement — that "she was `happy to hear' Gutierrez they had completed their Gomez was likely dead,James Proffer at 29 — is mission. Shauna Gutierrez laughed admissible as a statement of Gutierrez' then-existing and said she was `happy to hear' emotional condition, as is thus admissible under rule Gomez was likely dead." 803(3).See Fed. R. Evid. 803(3). Declarant: Brandy Rodriguez, Paul B. Rodriguez', Rivera's, and Gonzalez' statements Rivera, Santos Gonzalez occurred immediately after the assault on Gomez.See March 13 Tr. at 45:6-13 (Castellano, Stemo). These Source: Paul Rivera statements are, accordingly, admissible under rule 803(2) as excited utterances.See Fed. R. Evid. 803(2). Date: On or about February 27, Gutierrez objects to this statement as untrue, self-serving, 2016 and inconsistent with B. Gutierrez' and Gonzalez' accounts.See Gutierrez Response ¶ 8, at 2. That Rivera's Objections: Gutierrez Response, testimony may be "self-serving" does not render it
J. Gallegos Response inadmissible, and Gutierrez can deal with credibility and inconsistencies at trial, so the Court overrules Gutierrez' objection. Gutierrez Response ¶ 8, at 2. J. Gallegos objects to this statement, because "[t]hree individuals are listed as the source." J. Gallegos Response ¶ 15, at 6. Three individuals, however, can make the same statement. For example, one person can make an oral statement, and two others can make the same statement nonverbally by nodding their heads. See Fed. R. Evid. 801(a) ("`Statement' means a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion."). The Court thus overrules J. Gallegos' objection.See J. Gallegos Response ¶ 15, at 6. Statement 57: "Shauna Gutierrez Gutierrez' giving orders to Gonzalez is an action and not a told Santos Gonzalez to move the statement, and is thus admissible non-hearsay.See supra truck they used to another location Statement 13. It is also a statement of Gutierrez' then-existing and leave it for a few days." state of mind if Rivera testifies that Gutierrez elaborated regarding her plans,e.g. , to tell someone to Declarant: Shauna Gutierrez retrieve the truck in a few days.See Fed. R. Evid. 803(3). Source: Paul Rivera Gutierrez objects that this statement is "untrue and self-serving," and inconsistent with her and B. Rodriguez' Date: On or about February 27, accounts. Gutierrez Response ¶ 9, at 2. That Rivera's 2016 testimony is self-serving does not make the statement inadmissible, and Gutierrez can deal with credibility and Objections: Gutierrez Response, inconsistency issues at trial, so the Court overrules her J. Gallegos Response objection.See Gutierrez Response ¶ 9, at 2. J. Gallegos argues that this statement is inadmissible, because "it is apparent that it was not made by the claimed declarant." J. Gallegos Response ¶ 16, at 6. J. Gallegos is free to argue to the jury that it should not credit the evidence that the United States introduces to show that this statement was made, but such an argument does not render this statement inadmissible hearsay. Accordingly, the Court overrules this objection.See J. Gallegos Response ¶ 16, at 6. Statement 58: "`How come you TheJames hearing testimony indicates that this is a two-part guys didn't do the job more fully?' statement. First, before the Gomez assault, Gutierrez after she previously told Rivera, "told Paul Rivera, Santos Gonzalez to go get him." March Gonzalez, and Rodriguez to `Go get 13 Tr. at 46:11-13 (Castellano).See id. at 46:9-16 him.'" (Castellano, Stemo). Second, after the assault, when Rivera, Gonzalez, and B. Rodriguez reported back to Gutierrez, "Gutierrez said, `How come you guys didn't do
Declarant: Shauna Gutierrez the job more fully?'" March 13 Tr. at 46:18-19 (Castellano). See id. at 46:17-24 (Castellano, Stemo). Source: Brandy Rodriguez, Paul Rivera Gutierrez' pre-assault order is an action, not a statement, and is thus admissible non-hearsay.See supra Statement Date: On or about February 27, 13. Any associated statements were made during and in 2016 furtherance of the conspiracy to assault Gomez, so they are admissible against the members of the Counts 14-16 Objections: Gutierrez Response, conspiracy under rule 801(d)(2)(E).See March 13 Tr. at J. Gallegos Response 46:9-16 (Castellano, Stemo). The post-assault statement is admissible as circumstantial evidence of Gutierrez' state of mind,i.e. , to show that she expected and intended Gomez to be killed or hurt more seriously. Gutierrez objects to this statement as untrue, but this possible problem is a credibility issue — not an admissibility issue — with which she can deal at trial, so the Court overrules her objection.See Gutierrez Response ¶ 10, at 2. J. Gallegos "objects to this statement as it is not attributed to one individual" and asserts that it is "unreliable as it is inconsistent with other statements." J. Gallegos Response ¶ 17, at 6. The statement is attributed to one individual, Gutierrez, and that two individuals provided the same indication of what Gutierrez said alleviates some reliability issues — J. Gallegos can deal with the rest at trial. The Court overrules this objection.See J. Gallegos Response ¶ 17, at 6. Statement 59: "Don't Testify" The Court finds by a preponderance of the evidence, that Rivera — a member of the Counts 14-16 conspiracy,see Declarant: Paul Riverasupra FOF ¶ 14 — made this statement during the Gomez assault, to induce Gomez not to testify against J. Gallegos. Source: Paul RiveraSee March 13 Tr. at 46:25-47:5 (Castellano, Stemo). Accordingly, this statement was made during and in Date: On or about February 27, furtherance of the Counts 14-16 conspiracy by a member 2016 of that conspiracy, and therefore is admissible against the members of the Counts 14-16 conspiracy under rule Objections: J. Gallegos Response 801(d)(2)(E). That Rivera's testimony may be "self-serving" does not render it inadmissible. J. Gallegos Response ¶ 13, at 6. Further, this testimony is admissible against J. Gallegos as a member of the Counts 14-16 conspiracy to murder Gomez and prevent him from testifying,see supra FOF ¶ 14, so the Court overrules his objection,see J. Gallegos Response ¶ 13, at 6. The Court, on request, will give a limiting instruction as to the Defendants who are not charged in Counts 14-16.
Statement 60: "Brandy Rodriguez The United States orally indicated that the date refers to and Shauna Gutierrez had people in Mario Chavez' interview with the FBI and not to the date place for an attack on Gomez." the statement was made. See March 13 Tr. at 47:6-12 (Castellano, Stemo). Declarant: Brandy Rodriguez According to the United States, M. Chavez "would pass Source: Mario Chavez letters between Joe Gallegos, who was in county jail at the time, and Brandy Rodriguez and Shauna Gutierrez." Date: On or about March 29, 2017 March 13 Tr. at 47:15-18 (Stemo). That M. Chavez passed letters back and forth between J. Gallegos, B. Objections: Gutierrez Response, Rodriguez, and Gutierrez is an action, and not a statement, J. Gallegos Response and thus admissible non-hearsay.See supra Statement 13. Statements ordering or arranging the Gomez assault that were made before the assault took place are admissible against the members of the Counts 14-16 conspiracy — including Gutierrez and J. Gallegos,see supra FOF ¶ 14 — under rule 801(d)(2)(E). The source of the statements,i.e. , the person testifying, need only have firsthand knowledge of the statements heard for the statement to be admitted,see Fed. R. Evid. 602, so the Court overrules Gutierrez' and J. Gallegos' objections,see Gutierrez Response ¶ 11, at 2; J. Gallegos Response ¶ 18, at 6-7. J. Gallegos requests the opportunity to voir dire M. Chavez to test his personal knowledge of this statement.See J. Gallegos Response ¶ 18, at 6-7. The Court denies this request, as the United States must establish this personal knowledge for M. Chavez' testimony to be admitted at trial.See Fed. R. Evid. 602. Credibility and inconsistency issues also may be dealt with at trial.See J. Gallegos Response ¶ 18, at 6-7. At theJames hearing, the United States conceded that if B. Rodriguez made this statement after the assault on Gomez then it would not be admissible under rule 801(d)(2)(E).See March 13 Tr. at 49:4-10 (Castellano) (addressing statement 61);id. at 49:20-21 (Castellano) ("But the same applies, I would say, with Statements 60 and 61."). The United States argued that the statement "would then be considered a statement against interests or an admission by Brandy Rodriguez." March 13 Tr. at 49:8-10 (Castellano). The United States has not, however, shown that B. Rodriguez — who has already pled guilty — is unavailable, which is a prerequisite to admitting an out-of-court statement as a declaration against interest.See Fed. R. Evid. 804(b)(3). That B. Rodriguez made the statement means that it is
admissible for its truth against B. Rodriguez under rule 801(d)(2)(A), but B. Rodriguez is not a Trial 2 Defendant, so the statement would not be admissible at Trial 2 under rule 801(d)(2)(A). Statement 61: "Joe Gallegos The United States orally indicated that the declarant ordered the hit on Gomez, and should be B. Rodriguez, not Gutierrez as provided in the Shauna Gutierrez planned the hit." James Proffer,see James Proffer at 32, and that it does not know whether the statement was made before or after the Declarant: Brandy Rodriguez assault on Gomez.See March 13 Tr. at 48:6-8 (Castellano) (declarant);id. at 48:11-15 (Castellano, Source: Mario Chavez Stemo) (timing). Date: On or about March 29, 2017 At theJames hearing, the United States conceded that, if B. Rodriguez made this statement after the assault on Objections: Gutierrez Response, Gomez, then it would not be admissible under rule A. Gallegos Response, J. Gallegos 801(d)(2)(E).See March 13 Tr. at 49:4-10 (Castellano). Response The United States argued that the statement "would then be considered a statement against interests or an admission by Brandy Rodriguez." March 13 Tr. at 49:8-10 (Castellano). The United States has not, however, shown that B. Rodriguez — who has already pled guilty — is unavailable, which is a prerequisite to admitting an out-of-court statement as a declaration against interest.See Fed. R. Evid. 804(b)(3). That B. Rodriguez made the statement means that it is admissible for its truth against B. Rodriguez under rule 801(d)(2)(A), but B. Rodriguez is not a Trial 2 Defendant, so the statement would not be admissible at Trial 2 under rule 801(d)(2)(A). Even if B. Rodriguez made this statement before the Gomez assault, it would not be admissible against the members of the Counts 14-16 conspiracy under rule 801(d)(2)(E), because the statement was not made in furtherance of the Counts 14-16 conspiracy. M. Chavez was not a member of this conspiracy, and the United States has not introduced evidence showing that divulging details to this non-member advanced the conspiracy's goals. No other exception to the rule against hearsay applies, so this statement is not admissible for its truth. M. Chavez apparently lacks personal knowledge as to the substance of B. Rodriguez' statement — as opposed to that she made the statement — so he cannot testify that J. Gallegos ordered the Gomez hit and Gutierrez planned it, even if M. Chavez does not relate this statement to the jury.See Fed. R. Evid. 602. Because the statement is inadmissible hearsay and
M. Chavez has no personal knowledge of the underlying facts contained in the statement, the Court sustains Gutierrez' and J. Gallegos' objections. See Gutierrez Response ¶ 11, at 2; J. Gallegos Response ¶ 18, at 6-7. Because the statement is not admissible for its truth, the Court cannot address A. Gallegos' contention of negative spillover, but the Court will, if it admits the statement for a non-hearsay purpose, provide, on request, a limiting instruction.See A. Gallegos Response ¶ 4, at 2. Statement 62: "`Paperwork' on That the paperwork was sent is an action and not a Sanchez was delivered from Arturo statement, and is thus admissible non-hearsay.See supra Garcia to Ben Clark, approving the Statement 13. Associated statements by A.A. Garcia, a murder." member of the Count 3 conspiracy,see supra FOF ¶ 10, approving the Sanchez murder or conveying that approval Declarant: Arturo Garcia to other members of the Sanchez conspiracy were made during and in furtherance of the conspiracy, so they are Source: Samuel Gonzales, John admissible against the Count 3 Defendants under rule Montano, Javier Rubio 801(d)(2)(E). Date: On or before June 17, 2007 Objections: None Statement 63: "`Cheeky' and Cheeky and Coquito are Raymond and Brian Rascon, `Coquito' were tasked with the respectively.See March 13 Tr. at 50:15-21 (Castellano, murder of Sanchez but did not want Stemo). The Rascon brothers conveyed the information in to carry it out." this statement to S. Gonzales.See March 13 Tr. at 50:22-24 (Castellano, Stemo). The Court has concluded that the Declarant: Cheeky and Coquito Rascon brothers are not members of the Count 3 conspiracy,see supra note 17, so their statements to Source: Samuel Gonzales S. Gonzales are not admissible under rule 801(d)(2)(E). No other exception to the rule against hearsay applies, so Date: On or before June 17, 2007 the Rascon brothers' statement is not admissible for its truth. S. Gonzales apparently lacks personal knowledge as Objections: Troup Response to the substance of the Rascon brothers' statement — as opposed to that they made that statement — so he cannot testify that the Rascon brothers were tasked with the Sanchez murder even if S. Gonzales does not relate that statement to the jury.See Fed. R. Evid. 602. Although multiple people may make the same statement,see supra Statement 56, because this statement is inadmissible hearsay and S. Gonzales has no personal knowledge of the underlining facts, the Court sustains Troup's objection,see Troup Response ¶ 8, at 3. Statement 64: "Javier Alonso asked Alonso made this statement after Sanchez' death, so it was how to get rid of the marks on his made after the conspiracy to kill Sanchez ended and is
hands from strangling Sanchez." thus not admissible for its truth against the Count 3 conspirators under rule 801(d)(2)(E). See United States v. Declarant: Javier AlonsoAlcorta , 853 F.3d at 1139. That Alonso asked how to get rid of the marks from strangling Sanchez is a question, but Source: Samuel Gonzales it implicitly asserts that he strangled Sanchez, so it is hearsay.See United States v. Summers , 414 F.3d at 1298. Date: On or before June 17, 2007 That Alonso made this statement means that it is admissible for its truth against him under rule Objections: None 801(d)(2)(A), but Alonso is not a Trial 2 Defendant, so the statement would not be admissible at Trial 2 under rule 801(d)(2)(A). No other hearsay exception applies, so the statement is inadmissible for its truth. If S. Gonzales saw marks on Alonso's hands, S. Gonzales could testify to that fact, as opposed to Alonso's statement regarding that fact. If, additionally, S. Gonzales is sufficiently familiar with the sort of marks that stranglers typically have on their hands, he could testify to his opinion regarding whether strangling someone could have caused those marks.See Fed. R. Evid. 701. Statement 65: "`That'd be messed TheJames hearing testimony indicates that Clark's oral up if the paperwork on the guy I remark referred to Sanchez, but the Court does not have just got showed up.' Ben Clark enough context regarding that remark to determine also sent Arturo Garcia a list of whether it was made in furtherance of the conspiracy to names of people in the pod." kill Sanchez, as opposed to being an off-hand remark made for no particular purpose. Declarant: Ben Clark TheJames hearing testimony indicates that Clark provided Source: John Montano the list of names to A.A. Garcia, "[s]o that he would know who was present at the pod and who would be next, or Date: On or before June 17, 2007 who hasn't put in work."See March 13 Tr. at 51:18-23 (Castellano, Stemo). Although providing a list is an Objections: None action, it was thus meant as an assertion,see supra Statement 13, and is hearsay. The Court finds, by a preponderance of the evidence, that, in providing the list to A.A. Garcia, Clark — a member of the Count 3 conspiracy,see supra FOF ¶ 10 — made the statement during and in furtherance of the Count 3 conspiracy, however, so it is admissible for its truth against the Count 3 conspirators under rule 801(d)(2)(E). The Court, on request, will give a limiting instruction as to the Defendants who are not charged in Counts 14-16. Statement 66: "Edward Troup and The United States orally indicated that this statement is Javier Alonso attempted to hide in just an action, but it indicated that it is uncertain whether John Montano's cell after lock there were statements made that are associated with that
down after the murder of Sanchez." act. See March 13 Tr. at 52:5-16 (Castellano, Court). As an action, this statement is admissible non-hearsay.See Declarant: Edward Troup andsupra Statement 13. Further, Montano can testify what he Javier Alonso personally witnessed after Sanchez' murder, such as Troup and Alonso attempting to hide in his cell if he saw this Source: John Montano action occur.See Fed. R. Evid. 602. This statement "is not a statement made by an individual," so it is admissible, Date: On or about June 17, 2007 and the Court thus overrules Troup's objection. Troup Response ¶ 9, at 3. Objections: Troup Response Statement 67: "Jimmie Gordon was Geraldine Martinez was a prison librarian, and that Jimmie asked to get information on Garza Gordon was asked to get information about Garza from from Geraldine Martinez." Geraldine Martinez is a verbal action and not a statement.See supra Statement 13. Accordingly, Gordon's testimony Declarant: Jimmie Gordon about the request to obtain information about Garza does not relate hearsay and is admissible for its truth.See Fed. Source: Jimmie Gordon R. Evid. 801(c). Date: On or before March 26, 2001 Objections: None Statement 68: "Billy Garcia put a This statement is not admissible for its truth under rule hit on Archuleta which was 801(d)(2)(E), because Baby Zac did not tell Archuleta communicated to Archuleta through about the conspiracy to murder him in furtherance of that `Baby Zac' over a disagreement conspiracy. Accordingly, the Court sustains B. Garcia's about Castillo's murder." objection.See B. Garcia Response ¶ 9, at 4. Declarant: Baby Zac Source: Gerald Archuleta Date: None Objections: B. Garcia Response Statement 69: "Brandy Rodriguez This statement is admissible as an excited utterance,see kicked Gomez and said, `This is a Fed. R. Evid. 803(2), and as a statement of B. Rodriguez' message from Joe!'" then-existing state of mind, specifically her motive,see Fed. R. Evid. 803(3). Declarant: Brandy Rodriguez A. Gallegos objects, because the statement's reference to Source: Paul Rivera J. Gallegos, who is A. Gallegos' "sole co-defendant" in counts 4 and 5, would "have a negative spillover effect on Date: On or about February 27, Andrew." A. Gallegos Response ¶ 4, at 2. The Court 2016 overrules A. Gallegos' objection for the reasons statedsupra note 27.See A. Gallegos Response ¶ 4, at 2. Objections: A. Gallegos Response
Statement 70: "Shauna Gutierrez The United States intends to offer this statement under stated she is `ride or die' with Joe 801(d)(2)(E), and asserts that this statement was made in Gallegos, after admitting that she furtherance of an uncharged conspiracy to harm and Joe Gallegos put a hit on B. Rodriguez premised on an erroneous belief that she was Brandy Rodriguez based on the cooperating with law enforcement. See March 13 Tr. at belief Rodriguez was a cooperator." 55:9-14 (Castellano);id. at 55:19-56:16 (Court, Castellano). The Court has not found that such a Declarant: Shauna Gutierrez conspiracy existed, however, so this statement is not admissible for its truth under rule 801(d)(2)(E).See supra Source: Paul Rivera note 13. Date: On or about November 2016 Gutierrez' statement that she is "ride or die"31 with J. Gallegos is admissible as a statement of the declarant's Objections: Gutierrez Response, then-existing emotional condition.James Proffer at 37. A. Gallegos Response, J. GallegosSee Fed. R. Evid. 803(3). Accordingly, this portion of the Response statement is admissible for its truth,i.e. , that Gutierrez believed at the time that she was ride or die with J. Gallegos. Gutierrez alleges that this statement is not true, but she can deal with Rivera's credibility at trial, so the Court overrules her objection.See Gutierrez Response ¶ 12, at 2. The Court overrules A. Gallegos' objection of negative spillover for the reasons statedsupra note 27.See A. Gallegos Response ¶ 4, at 2. J. Gallegos objects that Rivera has no personal knowledge,see J. Gallegos Response ¶ 20, at 7, but Rivera and Gutierrez were in a transport van together and were speaking,see March 13 Tr. at 55:2-5 (Stemo). The Court therefore overrules J. Gallegos' objection.See J. Gallegos Response ¶ 20, at 7. Statement 71: "Christopher Chavez When C. Chavez indicated that he "wasn't sure about the asked `Is this right?' in reference to murder, [he was] clarifying whether or not there was, in the Garza murders and Leroy fact a green light on Mr. Garza[.]" March 13 Tr. at 57:17-19 Lucero said `you got to do what (Castellano).See id. at 57:16-20 (Castellano, Stemo). you got to do.'" Consequently, the Court finds, by a preponderance of the evidence, that both C. Chavez' question and Lucero's Declarant: Christopher Chavez response were made before the alleged Garza murder to underscore the conspiracy's existence and to prompt Source: Leroy Lucero action.See March 13 Tr. at 56:18-57:20 (Castellano, Stemo). Both C. Chavez and Lucero are members of the Count 2 conspiracy.See supra FOF ¶ 6. Accordingly,
Date: On or before March 26, 2001 these statements were made during and in furtherance of the Count 2 conspiracy by members of that conspiracy, so Objections: B. Garcia Response, they are admissible for their truth against the Count 2 Patterson Response conspirators under rule 801(d)(2)(E). B. Garcia and Patterson are members of the Count 2 conspiracy to murder Garza, see supra FOF ¶ 6, so the Court overrules their objections.See B. Garcia Response ¶ 10, at 5-6; Patterson Response ¶ 29, at 12. The Court, on request, will give a limiting instruction as to the Defendants who are not charged in Count 2. Statement 72: "Javier Alonso asked Alonso asked Montano this question after the Sanchez if the marks on his hands were murder.See March 13 Tr. at 57:21-58:5 (Castellano, noticeable." Stemo). Consequently, this statement was not made during the conspiracy to kill Sanchez, so it is not Declarant: Javier Alonso admissible for its truth under rule 801(d)(2)(E). Alonso's question implicitly asserts that he has marks on his hands Source: John Montano and is thus a statement for hearsay purposes,see United States v. Summers , 414 F.3d at 1298, but that implicit Date: On or about June 17, 2007 assertion is admissible for its truth as a present-sense impression,see Fed. R. Evid. 803(1). Objections: None Statement 73: "Ordered the Hernandez and Trujillo were both supposed to cover the surveillance cameras covered." surveillance cameras during the Sanchez murder, so corrections officers could not watch what was happening. Declarant: Edward Troup and/orSee March 13 Tr. at 58:15-24 (Castellano, Stemo). In Jesse Trujillo separate statements to the United States, Hernandez mentioned both Trujillo and Troup.See March 13 Tr. at Source: Ruben Hernandez 58:11-14 (Castellano, Stemo). An order is an action, not a statement, and is thus admissible non-hearsay.See supra Date: On or about June 17, 2007 Statement 13. Any associated statements directing Hernandez to cover the surveillance cameras — no matter Objections: Troup Response whether Troup or Trujillo made those statements — were made by a Count 3 conspirator during and in furtherance of that conspiracy, so they are admissible for their truth under rule 801(d)(2)(E) against the Count 3 Defendants.See supra FOF ¶¶ 10-11 (identifying Troup and Trujillo as members of the Count 3 conspiracy to kill Sanchez). Troup objects that "[t]here is insufficient foundation for this statement." Troup Response ¶ 10, at 3. This statement's admissibility does not depend on whether Troup or Trujillo provided the order.See United States v. Brinson , 772 F.3d at 1321-22. Accordingly, the Court overrules Troup's objection.See Troup Response ¶ 10, at 3.
Statement 74: "`Now hurry Bolo The Court finds, by a preponderance of the evidence, that now you know what time it is.' (In Trujillo — a member of the Count 3 conspiracy, see supra reference to covering the FOF ¶ 11 — made this statement before the alleged cameras.)" Sanchez murder, to get Hernandez to do his part in the conspiracy,i.e. , cover the cameras.See March 13 Tr. at Declarant: Jesse Trujillo 58:25-59:8 (Castellano, Stemo). Accordingly, this statement was made by a Count 3 conspirator during and Source: Ruben Hernandez in furtherance of that conspiracy, so it is admissible for its truth against the Count 3 Defendants under 801(d)(2)(E). Date: On or about June 17, 2007 The Court, on request, will give a limiting instruction as to the Defendants who are not charged in Count 3. Objections: None Statement 75: "Just stay there and The Court finds, by a preponderance of the evidence, that don't let no one in, use your crutch Trujillo — a member of the Count 3 conspiracy,see supra to block the door if you have to." FOF ¶ 11 — made this statement before the alleged murder, directing Hernandez to take a different action in Declarant: Jesse Trujillo the conspiracy, because he was failing at covering the camera.See March 13 Tr. at 59:9-21 (Castellano, Stemo). Source: Ruben Hernandez Accordingly, this statement was made by a Count 3 conspirator during and in furtherance of the Count 3 Date: On or about June 17, 2007 conspiracy, so it is admissible for its truth against the Count 3 Defendants under rule 801(d)(2)(E). Objection: None Statement 76: "`Ya stuvo (all done) Trujillo made this statement after Sanchez' death,see take them off.' (In reference to the March 13 Tr. at 59:22-60:5 (Castellano, Stemo), so it was camera covers.)" not made during the conspiracy to kill Sanchez, and is not admissible for its truth under rule 801(d)(2)(E),see United Declarant: Jesse TrujilloStates v. Alcorta , 853 F.3d at 1139. The statement is admissible for its truth, however, as an excited utterance, Source: Ruben Hernandez because Trujillo made this statement immediately after the murder, while still under the excitement caused by the Date: On or about June 17, 2007 murder.See Fed. R. Evid. 803(2); 4 Saltzburg et al.,supra , at § 803.02[3][a]-[3], at 803-22 to -25. Objections: None Statement 77: "Kyle asked Ruben TheJames hearing testimony indicates that Hernandez Hernandez to take something to took a single folded piece of paper to S. Gonzales and that Samuel Gonzales and to tell Samuel the contents of that piece of paper are unknown.See Gonzales `that was all he had.'" March 13 Tr. at 221:19-222:3 (Blackburn, Stemo). Hernandez can testify to Dwyer's asking him to bring the Declarant: Kyle Dwyer paper to S. Gonzales and to his completing this task without running into hearsay issues.See Fed. R. Evid. Source: Ruben Hernandez 801(c);supra Statement 13. Date: On or before June 17, 2007 Dwyer's statement to Hernandez "to tell Samuel Gonzales `that was all he had'" is not admissible for its truth under
Objections: Troup Response 801(d)(2)(E), because Dwyer said this after Sanchez' death. James Proffer at 40.See United States v. Alcorta , 853 F.3d at 1139; March 13 Tr. at 60:19-22 (Castellano, Stemo)(providing that Statement 77 is tied to Statement 78, in which S. Gonzales "asked if Sanchez was dead"). No other hearsay exception applies, so this statement is inadmissible hearsay. Accordingly, the Court sustains Troup's objection.See Troup Response ¶ 11, at 3. This statement is potentially admissible, however, as circumstantial evidence of Dwyer's state of mind and for its effect on S. Gonzales. Statement 78: "Samuel Gonzales S. Gonzales asked Hernandez this question immediately asked if Sanchez was dead, then after he delivered a piece of paper to S. Gonzales from again asked `For real is he dead?'" Kyle Dwyer.See March 13 Tr. at 61:1-3 (Castellano, Stemo). S. Gonzales' questions are not statements, so they Declarant: Samuel Gonzales are admissible non-hearsay.See supra Statement 13. Those questions are also admissible as circumstantial Source: Ruben Hernandez evidence of S. Gonzales' state of mind. Date: On or about June 17, 2007 Objections: None Statement 79: "`Chicky' was This statement was made after Sanchez died, so it was not cutting his sleeves off and asked made during the conspiracy to kill Sanchez.See March 13 Ruben Hernandez to hang up his Tr. at 61:8-14 (Castellano, Stemo). Accordingly, it is not wet sleeves." admissible for its truth against the Count 3 Defendants under rule 801(d)(2)(E).See United States v. Alcorta , 853 Declarant: "Chicky" F.3d at 1139. Source: John Montano "Chicky" is meant to be "Cheeky," which refers to R. Rascon. March 13 Tr. at 61:4-7 (Castellano, Stemo). Date: On or about June 17, 2007 That R. Rascon was cutting up his sleeves and requested to Hernandez to hang them up are actions and not hearsay, Objections: None and therefore admissible.See supra Statement 13. That there was "an indication or concern that Raymond Rascon was cutting off his sleeves because there might be something incriminating on the material," March 13 Tr. at 61:15-19 (Castellano, Stemo), may, with a proper foundation, be admissible as a present-sense-impression, an excited utterance, or a statement of the declarant's then-existing state of mind,see Fed. R. Evid. 803(1)-(3). Statement 80: "Edward Troup told This statement was made after Sanchez died, so it was not `Chicky' to cut his sleeves in small made during the conspiracy to kill Sanchez.See March 13 pieces or give the sleeves to Tr. at 61:12-14 (Castellano, Stemo);id. at 61:20-24
someone next door." (Castellano, Stemo). Accordingly, it is not admissible for its truth against the Count 3 Defendants under rule Declarant: Edward Troup 801(d)(2)(E). See United States v. Alcorta , 853 F.3d at 1139. It, however, is admissible as circumstantial Source: Ruben Hernandez evidence of Troup's state of mind,e.g. , consciousness of guilt. Date: On or about June 17, 2007 Troup's statement is admissible against him for its truth Objections: Troup Response under rule 801(d)(2)(A). Troup will have the opportunity at trial to object to the statement's admittance if the United States does not lay the proper foundation, but for now the Court overrules Troup's objection.See Troup Response ¶ 12, at 3. Statement 81: "First thing in the The United States indicated, at theJames hearing, that morning we need you to move the both Brian Rascon and Troup made this statement at body in the fetal position and wipe different times.See March 13 Tr. at 62:15-18 (Castellano, down the toilet." Stemo). Accordingly, the Court overrules Sanchez' objection, although the United States will have to lay the Declarant: Brian Rascon and/or proper foundation at trial.See Sanchez Response ¶ 13, at Edward Troup 3. This statement is admissible as a statement of the declarants' then-existing state of mind,i.e. , B. Rascon and Source: Ruben Hernandez Troup's plan to have Hernandez clean the cell.See Fed. R. Evid. 803(3). It is also admissible to show its effect on Date: On or about June 17, 2007 Hernandez. Further, Troup's statement is admissible against him for its truth under rule 801(d)(2)(A). It is not, Objections: Troup Response however, admissible for its truth under rule 801(d)(2)(E), because it was made after Sanchez' death and thus was not made during the conspiracy to kill Sanchez.See United States v. Alcorta , 853 F.3d at 1139. Statement 82: "`That's what we are This statement is admissible for its effect on Hernandez all asking of you.' (Told to Ruben and as circumstantial evidence of B. Rascon's state of Hernandez when he didn't want to mind. It is not, however, admissible for its truth under clean the cell.)" rule 801(d)(2)(E), because it was made after Sanchez' death and thus was not made during the conspiracy to kill Declarant: Brian Rascon Sanchez.See United States v. Alcorta , 853 F.3d at 1139. As no other hearsay exception applies, it is not admissible Source: Ruben Hernandez for its truth and the Court therefore sustains Troup's objection.See Troup Response ¶ 14, at 3-4. Date: On or about June 17, 2007 Objections: Troup Response Statement 83: "`Not [sic] that's an This statement is admissible for the non-hearsay purposes order, you already know what time of showing its effect on Hernandez and as circumstantial it is.' (Told to Ruben Hernandez evidence of B. Rascon's state of mind,i.e. , B. Rascon's when he continued to not want to plan to have Hernandez clean the cell.See Fed. R. Evid.
clean the cell.)" 803(3) (providing that a statement may be admitted to show the declarant's belief, but not to prove that the belief Declarant: Brian Rascon is true "unless it relates to the validity or terms of the declarant's will). It is not, however, admissible for its Source: Ruben Hernandez truth under rule 801(d)(2)(E), because it was made after Sanchez' death and thus was not made during the Date: On or about June 17, 2007 conspiracy to kill Sanchez. See United States v. Alcorta , 853 F.3d at 1139. As no other hearsay exception applies, Objections: Troup Response this statement is not admissible for its truth and the Court therefore sustains Troup's objection.See Troup Response ¶ 15, at 4. Statement 84: "Ruben Hernandez Hernandez' question and B. Rascon's reply are admissible asked if he was next for refusing to as circumstantial evidence of Hernandez' state of mind. clean the cell and Brian Rascon The assertion implicit in B. Rascon's reply — that said `no, if the door is closed what Hernandez was not able to enter Sanchez' cell — is not can you do?'" admissible for its truth unless Hernandez' testimony indicates that B. Rascon's implicit assertion is a presentsense Declarant: Brian Rascon impression.See Fed. R. Evid 803(1). The Court does not have enough context now to determine this Source: Ruben Hernandez implicit admissibility's admissibility. The Court thus overrules Troup's objection for now, although he may Date: On or about June 17, 2007 raise it again at trial if the United States does not establish that the present-sense-impression exception applies.See Objections: Troup Response Troup Response ¶ 16, at 4. Statement 85: "`Your [sic] next This statement is admissible either for its truth as a mother fucker.' Said to Ruben statement of Troup's then-existing state of mind,i.e. , as a Hernandez as they passed each statement of Troup's plan,see Fed. R. Evid. 803(3), or as other." circumstantial evidence of Troup's state of mind,see Fed. R. Evid. 801(c). This statement is also admissible for its Declarant: Edward Troup truth against Troup under rule 801(d)(2)(A). Source: Ruben Hernandez Date: On or before June 17, 2007 Objections: None
Statement 86: "We better be ready This statement — indicating that Trujillo expects law for hell cause we we're [sic] fixing enforcement scrutiny, see March 13 Tr. at 64:19-22 to go through hell." (Castellano, Stemo) — is admissible as a statement of Trujillo's then-existing state of mind,see Fed. R. Evid. Declarant: Jesse Trujillo 803(3). Source: Ruben Hernandez Date: On or about June 17, 2007 Objections: None Statement 87: "Edward Troup Troup — and not B. Rascon, as theJames Proffer indicates, stated that it was every man forsee James Proffer at 45 — made this statement,see March themselves and if you can get a plea 13 Tr. at 65:1-4 (Castellano, Stemo). This statement is bargain for 15 or less do it but `no admissible for its truth against Troup under rule fucking ratting,' `that's a no no.'" 801(d)(2)(A). Accordingly, the Court overrules Troup's objection.See Troup Response ¶ 17, at 4. If any other Declarant: Edward Troup Defendant wants a limiting instruction, they may request one and the Court will give it. Source: Ruben Hernandez Date: On or about June 17, 2007 Objections: Troup Response Statement 88: "Go wipe down the This statement is admissible notwithstanding the general toilet, don't worry about moving rule against hearsay, because it is a verbal action and not the body." an assertion.See supra Statement 13. Accordingly, the Court overrules Troup's objection.See Troup Response Declarant: Brian Rascon ¶ 18, at 4. Source: Ruben Hernandez Date: On or about June 17, 2007 Objections: Troup Response
A statement that "is offered against an opposing party," and "was made by the
Fed. R. Evid. 801 advisory committee's notes to 1972 proposed rules (citations omitted). Consequently, the Federal Rules of Evidence exclude a criminal defendant's out-of-court statements that the United States offers against that defendant from the general rule against hearsay.
An out-of-court statement is admissible hearsay — no matter who made the statement or who offers it into evidence — if the declarant is unavailable and if "a reasonable person in the declarant's position would have made [the statement] only if the person believed it to be true because, when made, it ... had so great a tendency ... to expose the declarant to civil or criminal liability[.]" Fed. R. Evid. 804(b)(3)(A). In addition to being against the declarant's interest, a statement must also be "supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability." Fed. R. Evid. 804(b)(3)(B). "The Tenth Circuit has not squarely addressed how a statement must be corroborated."
In
The United States correctly argues that, when applying rule 804(b)(3), "the Court must look at each statement individually and assess whether the factors that courts look to for the required corroboration apply to each of the offered statements." 804(b)(3) MIL at 2. The Court's comments about in-prison statements that one SNM member makes to another is not contrary to that principle, because, under some circumstances, an in-prison statement that one SNM member makes to another is such that "a reasonable person in the declarant's position would have made [the statement] only if the person believed it to be true." Fed. R. Evid. 804(b)(3)(A). For example, in the
Co-Defendant Statement 33 Ruling Statement 1: Alleged statement According to the J. Garcia 302, the FBI interviewed J. made by Edward Troup to James Garcia on May 9, 2013.See J. Garcia 302 at 1. This "Daffy" Garcia in which he interview, again according to the J. Garcia 302, provides, allegedly indicates that B. Garcia ordered the hits. [i]n late November 2012, [J. Garcia] had a conversation with SNM gang member Declarant: Edward Troup EDWARD TROUP in [redacted] back yard off of [redacted] in Albuquerque. During Source: James Garcia the conversation, TROUP confessed to being a part of two murders in which two Date: 11/2012 people were strangled to death at the Southern New Mexico Correctional Facility (SNMCF) in Las Cruces, New Mexico. Troup stated that during one of the murders, he held "Fred Dawg's" (agent note: identified as FREDDIE SACHEZ ...) legs while "Wino" (agent note: identified as SNM gang member JAVIER ALONSO, Jr. ...) strangled him to death with a drawstring from a laundry bag. Both TROUP and ALONSO disposed of the drawstring and then took off their clothes and tore up the evidence in an attempt to hide their part in the murder. TROUP told [J. Garcia] that CHICKIE LNU [Last Name Unknown] and his brother cleaned up the mess that was made during the murder, to include Sanchez' urine. TROUP also said that an unknown Corrections Officer (CO) thought that the inmates were giving each other tattoos, and did not respond to the area of the commotion, despite the fact that tattooing was considered contraband inside the prison facility. As a result, the SNM gang members were able to carry out the murder without any CO intervention.
TROUP also mentioned that the murder of Fred Dawg was an order from headquarters, to which [J. Garcia] interpreted the term "headquarters" to mean the main New Mexico Prison Facility in Santa Fe, New Mexico, where the majority of the SNM leadership was incarcerated. [J. Garcia] stated that TROUP was remorseful and was crying during much of the conversation. TROUP told [J. Garcia] that Fred Dawg provided information on a murder, which was against the SNM by-laws, and that was the cause for his murder. [J. Garcia] stated that TROUP had told him about SANCHEZ's murder in approximately 2008 when [J. Garcia] violated his probation/parole and was incarcerated in the New Mexico Prison System. Additionally, during the same conversation, TROUP provided [J. Garcia] with information regarding his role in the murder of "Poncho" (agent note: identified as FRANK CASTILLO ...) in approximately 2001 at the SNMCF. TROUP told [J. Garcia] that that BILLY GARCIA, aka Wild Bill, gave the order to kill Poncho, and that TROUP walked Poncho into his (Poncho's) cell where ANGEL DELEON and and [sic] others were waiting for Poncho. Once inside the cell, TROUP slammed the door, while DELEON and another SNM gang member/associate strangled Poncho to death. J. Garcia 302 at 2-3. Assuming that Troup invokes his right to remain silent, he is unavailable for rule 804 purposes. See Fed. R. Evid. 804(a). Troup's statements indicating that he killed Sanchez and Castillo are sufficiently against Troup's penal interest to be admissible under rule 804(b)(3).See United States v. Smalls , 605 F.3d at 783 ("We may safely surmise that from time immemorial, only on the rarest occasion, if
ever, has one of sound mind — even one of sound mind who is not particularly honest — falsely confessed a murder to an apparent acquaintance or friend."). Troup's statement indicating that B. Garcia ordered the Castillo murder is not, however, sufficiently self-inculpatory to be admissible under rule 804(b)(3). See Williamson v. United States , 512 U.S. at 599 (stating that rule 804(b)(3) "cover[s] only those declarations or remarks within the confession that are individually self-inculpatory"),id. ("The fact that a person is making a broadly self-inculpatory confession does not make more credible the confession's non-self-inculpatory parts."). Additionally, Troup's statements are admissible against him as admissions of a party opponent.See Fed. R. Evid. 801(d)(2)(A). Whether Troup's statements are "supported by corroborating circumstances that clearly indicate [their] trustworthiness" is an issue that the Court will need to assess in light of the other evidence introduced at trial. Fed. R. Evid. 804(b)(3)(B). We believe that a showing of corroborating circumstances is sufficient if it gives the judge some assurance — when added to the fact that the statement was against the declarant's interest — that the declarant was telling the truth. And in determining corroborating circumstances, the court should consider all the factors listed in the draft Advisory Committee Note — not just the additional circumstantial guarantees of reliability but also the amount of independent evidence supporting the truth of the declarant's statement. All the listed factors are pertinent to whether the declarant made an accurate statement; and figuring out whether the declarant gave an accurate account is, after all, the point of the enterprise. 4 Saltzburg et al.,supra , § 804.02[9], at 804-23 to -24 (emphasis in original). When J. Garcia testified at the Court's hearing on March 15, 2018, however, he disavowed portions of the J. Garcia
302: Q. Has anybody ever admitted to you in a conversation with you that they were involved in those murders that happened at the Southern New Mexico Correctional Facility in 2001? Has anyone ever told you that they did it? A. No, not that I remember, no. .... Q. Now, have you heard rumors about what happened there in 2001, from other inmates, or other people? A. Yeah. Q. But no one has personally said to you, "I did it," or "I was part of it"? A. No. Q. Or say out loud, "I was part of it"? A. No. March 15 Tr. at 315:11-316:4 (Castle, J. Garcia). J. Garcia's hearing testimony is inconsistent with the J. Garcia statements that the J. Garcia 302 memorializes, which renders those statements — including the J. Garcia 302 statements relating the Troup statements — less credible, See Fed. R. Evid. 612 (stating that a hearsay declarant's credibility may be attacked via "evidence of the declarant's inconsistent statement or conduct, regardless of when it occurred"). J. Garcia's hearing testimony does not, however, make the Troup statements — as opposed to the J. Garcia 302 statements relating the Troup statements — any more or less credible, so that testimony is irrelevant to whether the Troup statements are "supported by corroborating circumstances that clearly indicate [their] trustworthiness." Fed. R. Evid. 804(b)(3)(B). Put another way, J. Garcia's testimony is relevant to whether Troup made the statements that the J. Garcia 302 describes, but it is not relevant to whether those statements — if Troup
made them — are trustworthy. While the Court must determine, by a preponderance of the evidence, whether those statements are admissible for their truth, see Fed. R. Evid. 104(a), whether the statement was made at all is a conditional-relevance question which the jury decides if "proof [is] introduced sufficient to support a finding" that the statement was made, Fed. R. Evid. 104(b)See id advisory committee's notes to 1972 proposed rule (listing, as a conditional relevance example, "when a spoken statement is relied upon to prove notice to X, it is without probative value unless X heard it") If J. Garcia does not testify that Troup made the statements that the J. Garcia 302 describes, then the J. Garcia 302 is the only evidence indicating that Troup made such a statement, and the J. Garcia 302 is not admissible for its truth. Hearsay within hearsay "is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule," Fed. R. Evid. 805.See 4 Saltzburg et al.,supra , § 805.02[2], at 805-3 ("[A] statement admissible under Rule 801(d) can be admitted when included in another hearsay statement if the other hearsay statement qualifies as an exception."). The J. Garcia 302 is hearsay within hearsay within hearsay, because the J. Garcia 302 is a collection of out-of-court statements memorializing J. Garcia's out-of-court statements to the FBI, which relate Troup's out-of-court statements. The first hearsay level — the J. Garcia 302 itself — is not admissible for its truth unless its author, Special Agent Lance Roundy, testifies, because "the primary purpose for which the [J. Garcia 302] was made was that of establishing or proving some fact potentially relevant to a criminal prosecution," so the J. Garcia 302 is testimonial.United States v. Smalls , 605 F.3d at 778.See Crawford v. Washington , 541 U.S. at 68 ("Where testimonial evidence is at issue [and the declarant does not testify], the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination."). Further, the Federal Rules of Evidence do not permit the J. Garcia 302 to be admitted for its truth as a public record, because it is a record setting out "a matter observed by law-enforcement personnel," which does not qualify as a public record "in a criminal case." Fed. R.
Evid. 803(8)(A)(ii). See 4 Saltzburg et al.,supra , § 803.02[9][d], at 803-71 to -72 ("Under the predominant view, the exclusionary language [of rule 803(8)(A)(ii) and 803(8)(A)(iii)] covers only those police-generated reports that are prepared under adversarial circumstances — in anticipation of litigation — and so are subject to manipulation by authorities bent on convicting a particular criminal defendant.").But see id. § 803.02[9][d], at 803. 73 ("Courts have held, correctly we think, that the law enforcement exclusion in the rule is inapplicable if the public official who prepared the report actually testifies al trial. The confrontation concerns that give rise to the statutory exclusions are allayed where the declarant is subject to cross-examination at trial."). For the same reason, the J. Garcia 302 is not admissible as a record of a regularly conducted activity: In criminal cases, the argument has sometimes been made that a law enforcement report that is inadmissible due to the exclusionary language of Rule 803(8)(A)(ii) and (iii) can nonetheless be admitted as a record of regularly conducted activity under Rule 803(6). However, if the exclusionary language is properly applied so as to exclude only those law enforcement reports that are subjective and made under adversarial circumstances — which is the position taken by most courts, as discussed above — then there is no conflict between the rules. This is because records that are prepared in anticipation of litigation are excluded under the trustworthiness criterion of Rule 803(6); and those are, in effect, the only records that are excluded under the prevailing view of Rule 803(8). 4 Saltzburg et al.,supra , § 803.02[9][e]. None of the other exceptions to the rule against hearsay apply, so the J. Garcia 302 is admissible only if Roundy testifies. Even if the United States renders the J. Garcia 302 admissible for its truth by calling Roundy as a witness, the second hearsay level — the J. Garcia statements that the J. Garcia 302 contains — is not admissible for its truth. No
exception to the general rule against hearsay applies, see Fed. R. Evid. 802; those statements are not excited utterance, for example, see Fed. R. Evid. 803(2). Additionally, J. Garcia's statements in an FBI interview are testimonial, so the Confrontation Clause permits their introduction only if J. Garcia takes the stand or if J. Garcia is unavailable 34 See Crawford v. Washington , 541 U.S. at 68 The third level of hearsay — the Troup statements that the J. Garcia statements relate — are admissible for their truth against Troup.See Fed. R. Evid. 802(d)(2)(A). They are not admissible against any other Defendant, however, under rule 802(d)(2)(A) Statement 2. Leroy Lucero is a C. Chavez' statements are admissible against him for their government witness. Lucero truth as admissions of a party opponent under rule indicates Chavez and Joe Gallegos 801(d)(2)(A). J. Gallegos statements are likewise admitted involvement in the admissible against him for their truth as admissions of a murder of Garza to him as did party opponent under rule 801(d)(2)(A) of the Federal others. It is unknown whether Rules of Evidence The Court will give, on request; a Chavez and Gallegos implicated B. limiting instruction as to all other Defendants Garcia. When Lucero testified on March 16, 2018, he invoked his Declarant: Christopher Chavez, Joe right to remain silent regarding the Castillo and Garza Gallegos murders.See March 16 Tr. at 160:3-7 (Castle, Lucero). The Court sustained that invocation, because Lucero had Source Leroy Lucero not been afforded any kind of immunity.See March 16 Tr. at 157:18-20 (Beck)("I don't believe at this point we have Date: unknown provided him a Kastigar letter and adequately debriefed him to have the protection.");id. at 158:24-25 (Court)("I'm inclined to sustain the privilege"). The Court is, thus, unable to make a pretrial determination regarding whether Lucero will testify at trial regarding statements that C. Chavez or J. Gallegos made, or whether those statements will be admissible for their truth under rule 804(b)(3) as statements against C. Chavez' or J. Gallegos' penal interests. Statement 3 Fred Quintana is a C. Chavez' statements are admissible against him for their government witness Quintana truth as admissions of a party opponent under rule indicates both Troup and Chavez 801(d)(2)(A). Troup's statements are likewise admissible admitted to involvement in the against him for their truth as admissions of a party
2001 murders. It is unknown opponent under rule 801(d)(2)(A). The Court will give, whether Chavez and Troup upon request, a limiting instruction as to the other implicated B. Garcia. Defendants. Declarant: Edward Troup, The Quintana 1023 states: "2001 Murder of Frank Castillo Christopher Chavez and Rolando Garcia at the Southern New Mexico Correctional Facility in Las Cruces were called by BILLY Source: Fred Quintana GARCIA (`Wild Bill'). Several members participated in the double homicide and EDWARD TROUP and Date: unknown CHRITOPHER CHAVEZ admitted to the murders during conversations with [Quintana]." Quintana 1023 at 2. The Quintana 1023 does not provide enough details about the statements that Troup and C. Chavez allegedly made to Quintana for the Court to make the fine-grained inquiry that Williamson v. United States requires. Consequently, the Court does not now conclude that those statements are admissible under rule 804(b)(3) (the "statement-against-interest" exception). The Court is willing to reconsider whether Troup or C. Chavez made statements that are admissible under rule 804(b)(3) when it has more information. Statement 4: Ben Clark is a witness Troup's statements are admissible against him for their for the government. Clark truth as admissions of a party opponent under rule indicated Angel Deleon, Troup and 801(d)(2)(A). J. Gallegos' statements are likewise Joe Gallegos confessed their admissible against him for their truth as admissions of a involvement in the 2001 murders party opponent under rule 801(d)(2)(A). The Court will to him and that one or both may give, upon request, a limiting instruction as to the other have indicated that B. Garcia Defendants. DeLeon's statements, however, are not called the hit. admissible under rule 801(d)(2)(A), because DeLeon is not a Trial 2 Defendant. Declarant: Angel DeLeon, Edward Troup, Joe Gallegos Clark testified on March 15, 2018, and indicated that he had spoken with four individuals about the Castillo and Source Ben Clark Garza murders: "Eugene Martinez, Leonard Lujan, Edward Troup, and Joe Gallegos." March 15 Tr. at 159:6-7 Date: 2004 (Clark). Clark indicated that E. Martinez, Troup, and J. Gallegos did not say that B. Garcia ordered the Castillo and Garza murders.See March 15 Tr. at 159:9-12 (Cooper, Clark)(discussing E. Martinez' statements);id. at 159:24-16:2 (Cooper, Clark)(discussing Troup's statements);id. at 160:9-12 (Cooper, Clark)(discussing J. Gallegos' statements). Clark indicated, however, that "Leonard Lujan did tell me Billy Garcia had something to do with it." March 15 Tr. at 159:16-17 (Clark).See id. at 159:13-17 (Cooper, Clark). According to Clark, Lujan told him
"multiple times from `03 to `04 that Billy Garcia called those hits." March 15 Tr. at 162:14-15 (Beck). See id. at 162:14-16 (Clark).35 That B. Garcia ordered the Castillo and Garza murders does not, taken alone, tend to subject Lujan to criminal liability, so those statements are not admissible for their truth under rule 804(b)(3).See Williamson v. United States , 512 U.S at 599.36 Additionally, the United States has not established that Lujan is unavailable, which is a prerequisite for introducing any of Lujan's statements under rule 804(b)(3>). Lee Fed. R. Evid. 804(b)(3).See also United States' Sealed Supplemental Witness List for Trial II at 2, filed April 9, 2018 (Doc. 2089)(listing Lujan as a witness). Statement 5: Samuel Gonzales is a Troup's statements are admissible against him for their witness for the government. He truth as admissions of a party opponent under rule indicates Troup made statements 801(d)(2)(A). The Court will give, upon request, a limiting about the 2001 murders. It is instruction as to the other Defendants. unknown whether Gonzales indicates Troup implicated Billy According to the Samuel Gonzales 302: Garcia. Edward TROUP spoke to Declarant: Edward Troup GONZALES about the 2001 murder of Rolando GARZA. TROUP did not provide details, but told GONZALES that he was Source: Samuel Gonzales there. GARZA was killed because he was a known member of the rival prison gang Los Date: unknown Carnales. Francisco CASTILLO was killed in 2001 because he "messed up" with Billy GARCIA. Samuel Gonzales 302 at 5. Those statements do not incriminate Troup, so they are not admissible as declarations against Troup's penal interests under rule 804(b)(3).See Williamson v. United States , 512 U.S. at 599.
Statement 6: Robert Lovato is a C. Chavez' statements are admissible against him for their government witness. Lovato truth as admissions of a party opponent under rule indicates that Christopher Chavez 801(d)(2)(A). If the statement is admitted only under rule admitted involvement in the 2001 801(d)(2)(A), the Court will give a limiting instruction as murder of Garza. to the other Defendants. Declarant: Christopher Chavez The Lovato 302 indicates that "CHAVEZ talked about the murder of Rolando Garza and was paranoid that he might Source: Robert Lovato get caught for it. CHAVEZ was under the impression that law enforcement might be making some arrests in the case Date: 2012 and was worded." Lovato 302 at 2. This statement is sufficiently inculpatory that a reasonable person in C. Chavez' position would not have made it if it were false. See Fed. R. Evid. 804(b)(3) (the "statement-against-interest" exception);United States v. Smalls , 605 F.3d at 783. The Lovato 302 indicates that that C. Chavez was very fearful when he talked to Lovato,see Lovato 302 at 2, which is a circumstance that corroborates the substance of C. Chavez' statement,see Fed. R. Evid. 804(b)(3)(B) (requiring corroborating circumstances indicating a statement-against-penal-interest's trustworthiness if offered in a criminal case). The Court will have to assess at trial whether there are enough corroborating circumstances indicating the trustworthiness of C. Chavez' statement. Fed. R. Evid. 804(b)(3)(B). Statement 7: Julian Romero is a C. Chavez' statements are admissible against him for their government witness. Romero truth as admissions of a party opponent under rule indicates that Christopher Chavez 801(d)(2)(A). If the statement is admitted only under rule confessed to his role in the 2001 801(d)(2)(A), the Court will give a limiting instruction as murders. to the other Defendants. Declarant: Christopher Chavez According to the Romero 302, "CHAVEZ admitted to Romero that he killed Garza." Romero 302 at 7. This Source: Julian Romero statement is sufficiently inculpatory that a reasonable person in C, Chavez' position would not make the Date: unknown statement unless that person believed it to be true,See United States v. Smalls , 605 F.3d at 783 ("We may safely surmise that from time immemorial, only on the rarest occasion, if ever, has one of sound mind — even one of sound mind who is not particularly honest — falsely confessed a murder to an apparent acquaintance or friend."). The Court will have to assess at trial whether there are enough corroborating circumstances indicating the trustworthiness of C. Chavez' statement for it to be
admitted under rule 804(b)(3) (the "statement-against-interest" exception), See Fed. R. Evid. 804(b)(3)(B). Statement 8: Timothy Martinez is a C. Chavez' statements are admissible against him for their government witness. T. Martinez truth as admissions of a party opponent under rule claims that Christopher Chavez 801(d)(2)(A). The Court will, upon request, give a limiting confessed to his involvement in the instruction as to the other Defendants. murders and during such confession implicates Allen The T. Martinez 302 indicates that C. Chavez told T. Patterson in the murder. Martinez that Garza "was getting up and was gonna escape and then Allen PATTERSON came in and tackled him Declarant: Christopher Chavez (GARZA). PATTERSON wasn't even in on the hit. He just gave skina and helped." T Martinez 302 at 5. This Source: Timothy Martinez statement incriminates only Patterson and not C. Chavez, so it is not admissible under rule 804(b)(3).See Date: unknownWilliamson v. United States , 512 U.S. at 599. Under rule 801(d)(2)(A), the jury can use C. Chavez' statement to T. Martinez against C. Chavez and not against any other Defendant. The portion of that statement describing Patterson's actions has little probative value vis-à-vis C. Chavez, but the jury may improperly use that portion of the statement against Patterson even if the Court gives a limiting instruction. Consequently, serious rule 403 issues would attend any attempt to introduce that portion of C, Chavez' statement to T. Martinez, The Court will not admit the portion relevant to Patterson. Statement 9: "The defense is In a March 21, 2018, interview, Otero told the FBI that objecting to an alleged statement "Billy GARCIA gave the orders to kill GARZA." made by an unidentified declarant 3/21/2018 Conversation with Joseph Otero at 1 (drafted to Joseph Otero in which he March 22, 2018), filed March 31, 2018 (Doc. 2009-1)("Otero 302"). allegedly indicates that Billy The Otero 302 does not indicate whether Garcia ordered the hits." B. Garcia Otero has personal knowledge regarding whether B. Garcia Supplement ¶¶ 2, at 1-2. ordered the Garza murder,e.g. , Otero could have overheard B. Garcia giving the order to kill Garza. If, on the other hand, Otero lacks personal knowledge and believes that B. Garcia ordered the Garza murder because of someone else's out-of-court statement, Otero cannot testify that B. Garcia ordered the Garza murder.See Fed. R. Evid. 602 ("A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter."). Otero could testify regarding the statements that he heard, because Otero would have personal knowledge that the statements were made, but the rule against hearsay potentially excludes those out-of-court statements. The
limited record before the Court, however, does not permit it to make a definite determination one way or the other Statement 10: "Josh Mirka is a In a March 22, 2018, interview with the FBI, Mirka witness for the government. He indicated that "CHAVEZ said that he was `Sindicato,' that has made statements about who `Bill runs the car' and all of the defendants planned to stick was responsible for the 2001 together." 3/22/2018 Interview of Josh Mirka at 1 (drafted murders and recounts statements March 23, 2018), filed March 31, 2018 (Doc. 2009-2). The Christopher Chavez allegedly United States indicates that it does not intend to offer the made to him which implicate Billy statements that C. Chavez made to Mirka under rule Garcia." B. Garcia Supplement 804(b)(3). See Response Brief at 9. The United States ¶ 3, at 2. intends, instead, to offer those statements as statements of the declarant's then-existing state of mind under rule 803(3), because C. Chavez' statement to Mirka "shows Defendant Chavez's intent in making statements to Josh Mirka at all: he intends to stick together with the SNM and Defendant B. Garcia is the leader of those in the SNM currently." Response Brief at 9-10. C. Chavez' statement to Mirka is not, however, admissible for its truth under rule 803(3). That C. Chavez believes that B. Garcia is an SNM leader,i.e. , that B. Garcia runs the car, cannot be offered under rule 803(3) to show that C. Chavez' belief is true.See Fed. R. Evid 803(3) (stating that the then-existing state-of-mind exception to the rule against hearsay does not apply to "a statement of memory or belief to prove the fact remembered or believed"). C. Chavez' told Mirka that all of the Defendants plan to stick together, but rule 803(3) applies only to a statement of the declarant's then-existing plan.See Fed. R. Evid. 803(3). Thus, to the extent that C. Chavez' statement refers to the plans of Defendants other than C. Chavez, rule 803(3) does not apply.
The United States filed a notice stating that it "may use the co-conspirator statements referenced in the attachment during Trial #2 in this case" and attached
Plea Agreement at 4-5, filed June 16, 2016 (Doc. 586).
Plea Agreement at 4-5, filed September 15, 2016 (Doc. 686).
March 13 Tr. at 25:15-24 (Stemo). That the Rascon brothers refused to kill Sanchez indicates that they did not agree to kill Sanchez,
The United States also identified Joe Martinez as a member of the Sanchez conspiracy.
Although the advisory committee made the commentary quoted in the text regarding the trustworthiness of "admissions by a party-opponent" before the 2011 amendments to the Federal Rules of Evidence, the analysis should not be different under the new 2011 restyling of the rules. Because the advisory committee's purpose for the 2011 restyling was to make the rules "more easily understood and to make style and terminology consistent through the rules," and there was no "intent to change any result in any ruling on evidence admissibility," the analysis applied before 2011 remains useful for cases after the restyling. Fed. R. Evid. 801 advisory committee's note to 2011 amendments.
Aristotle,
