MEMORANDUM OPINION AND ORDER
JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE.
THIS MATTER comes before the Court on the United States' Proffer Under Fed. R. Evid. 801(d)(2) and Objections, filed June 22, 2018 (Doc. 744-1)("James1 Proffers"). The Court held a James Hearing on July 3, 2018. The Court makes Findings of Facts and particularized rulings on the admissibility of Plaintiff United States of America's proffered statements.
FACTUAL BACKGROUND
The Court recounts the factual background in its Memorandum Opinion and Order at 2-4, 2018 WL 5980443, at *1, filed November 14, 2018 (Doc. 932)("MOO"). The Court incorporates that recitation here.
The Court takes its background facts from the Superseding Indictment, filed March 9, 2017 (Doc. 372)("Indictment"). The Court does not set forth these facts as findings or for their truth. The Court recognizes that the factual background is largely the Plaintiff United States of America's version of events and that the Defendants who have not pled guilty are all presumed innocent.
This case deals with the crimes that the ... [Syndicato de Nuevo Mexico ("SNM")] ... allegedly committed through its members. See Indictment ¶¶ 1, 3, at 1-2. The 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 ¶ 1, at 2. The SNM constitutes an enterprise "as defined in Title 18, United States Code, Sections 1959(b)(2) and 1961(4), that is, a group of individuals associated in fact that engaged in, and the activities of which affected interstate and foreign commerce." Indictment ¶ 2, at 2. The enterprise is "an ongoing organization whose members/prospects/associates functioned as a continuing unit for a common purpose of achieving the objectives of the enterprise." Indictment ¶ 2, at 2.
The SNM is a 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. See Indictment ¶ 3, at 2. During the riot, thirty-three inmates were killed, and over 200 were injured. See Indictment ¶ 3, at 2. After the PNM riot, the SNM expanded throughout the state's prison system and has had as many as 500 members. See Indictment ¶ 4, at 2. The SNM now has approximately 250 members, and "a `panel' or `mesa' (Spanish for ["]table["]) of leaders who issue orders to subordinate gang members." Indictment ¶ 4, at 2-3. The SNM controls drug distribution and other illegal activities within the New Mexico penal system, but it also conveys orders outside the prison system. See Indictment ¶¶ 3, 5, at 2-3. Members who rejoin their communities after completing their sentences are expected to further the gang's goals, the main one being the control of and the profit from narcotics trafficking. See Indictment ¶ 5, at 3. The SNM also intimidates and influences smaller New Mexico Hispanic gangs to expand its illegal activities. See Indictment ¶ 6, at 3. If another gang does not abide by the SNM's demands, the SNM will assault or kill one of the other gang's members to show its power. See Indictment ¶ 6, at 3. The SNM's rivalry with other gangs also manifests itself in beatings and stabbings within the prison system. See Indictment ¶ 7, at 4. The SNM further engages in violence "to assert its gang identity, to claim or protect its territory, to challenge or respond to challenges, to retaliate against a rival gang or member, [and] to gain notoriety and show its superiority over others." Indictment ¶ 7, at 4. "Similarly, a member of the SNM Gang is expected to confront and attack any suspected law enforcement informants, cooperating witness[es], homosexuals, or sex offenders." Indictment ¶ 8, at 4. To achieve its purpose of maintaining power, the SNM uses intimidation, violence, threats of violence, assault, and murder. See Indictment ¶¶ 6-8, at 3-4. The SNM as an enterprise generates income by having its members and associates traffic controlled substances and extort narcotic traffickers. See Indictment ¶ 7, at 4. The SNM's recent activities in a conspiracy to murder high ranking New Mexico Corrections Department [("Corrections Department")] officials inspired the Federal Bureau of Investigation's [("FBI")] present investigation. See United States v. Garcia, 221 F.Supp.3d 1275, 1277 (D.N.M. 2016)(Browning, J.).
MOO at 2-4; 2018 WL 5980443, at *1.
FINDINGS OF FACT
Rule 12(d) of the Federal Rules of Criminal Procedure requires that the Court state its essential findings on the record when deciding a motion that involves factual issues. See Fed. R. Crim. P. 12(d) ("When factual issues are involved in deciding a motion, the court must state its essential findings on the record."). The findings of fact in this Memorandum Opinion and Order shall serve as the Court's essential findings for rule 12(d) purposes. The Court makes these findings under the authority of rule 104(a) of the Federal Rules of Evidence, which requires a judge to decide preliminary questions relating to the admissibility of evidence. See United States v. Merritt, 695 F.2d 1263, 1269-70 (10th Cir. 1982). In deciding such preliminary questions, the other rules of evidence, except those with respect to privileges, do not bind the Court. See Fed. R. Evid. 104(a) ("The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so doing, the court is not bound by evidence rules, except those on privilege."). The Court makes the following findings.
1. The conspiracy to murder Shane Dix ("Dix Conspiracy") included Defendant Christopher, a.k.a. Chris, Garcia ("C. Garcia"), Defendant Anthony Cordova ("A. Cordova"), Billy Cordova ("B. Cordova"), Mario Montoya, Steven Morales, Bobby Dominguez, Rocky Sanchez, and Carmelito Sanchez. See Draft Transcript of Hearing at 38:16-41:21 (taken July 3, 2018)(Court, Castellano, Morrissey)("July 3 Tr.")2 (agreeing to this finding of fact);3 Letter from Fred Federici to the Court at 2 (dated June 29, 2018), filed July 2, 2018 (Doc. 766)("Conspiracy List").
2. The conspiracy to distribute drugs in a jail or prison ("Distribution Conspiracy") includes Richard Gallegos, A. Cordova, Melody Ortiz, Sylvia Gutierrez, and Dominic Pollock. See July 3 Tr. at 42:22-42:21 (Castellano, Court, Morrissey)(agreeing to this finding of fact); Conspiracy List at 2.
3. A. Cordova is not a member of the conspiracy to intimidate and/or retaliate against a witness ("Intimidation Conspiracy") or the conspiracy to murder Dwayne Santistevan,4 Adam Vigil,5 and Gregg Marcantel6 ("Santistevan, Vigil, Marcantel Conspiracy"). See July 3 Tr. at 43:7-44:18 (Castellano, Court)(agreeing that A. Cordova is not a member of the witness Intimidation Conspiracy or the Santistevan, Vigil, Marcantel Conspiracy).
PROCEDURAL BACKGROUND
The FBI's SNM investigation resulted in this case and three other cases before the Court. See United States v. DeLeon, No. CR 15-4268 ("DeLeon"); United States v. Varela, No. CR 15-4269; United States v. Garcia, No. CR 15-4275. Of the other cases resulting from the FBI investigation, United States v. Varela and United States v. Garcia did not go to trial, but the Court held two trials in DeLeon. In the end, the Court held one four-defendant trial ("First DeLeon Trial") and one seven-defendant trial ("Second DeLeon Trial"). Across the two trials, the juries found eight of the eleven DeLeon Defendants guilty of violating Violent Crimes in Aid of Racketeering Activity, 18 U.S.C. § 1959 ("VICAR"). See DeLeon, No. CR 15-4268, Jury Verdict at 1-3, filed March 12, 2018 (Doc. 1947); DeLeon, No. CR 15-4268, Jury Verdict at 1-5, filed May 25, 2018 (Doc. 2332).
On April 21, 2016, a Grand Jury returned the first indictment in this case. See Original Indictment at 1, filed April 21, 2016 (Doc. 2). On March 9, 2017, a Grand Jury returned the Indictment, which superseded the initial indictment. See Indictment at 1. Several DeLeon Defendants are charged in this case — Defendant Anthony Ray Baca, C. Garcia, Defendant Daniel Sanchez, and Defendant Arturo Arnulfo Garcia. Compare Indictment at 1, with DeLeon, No. CR 15-4268, Second Superseding Indictment at 1, filed March 9, 2017 (Doc. 947). Count 1 of the Indictment charges eleven Baca Defendants — Baca, C. Garcia, Defendant Manuel Jacob Armijo, Defendant Frederico Munoz, Defendant Sergio Loya Rodriguez, Defendant Manuel Benito, Defendant Vincent Garduño, Defendant Mandel Lon Parker, Defendant Daniel Archuleta, D. Sanchez, and A.A. Garcia — with engaging in a racketeering conspiracy contrary to the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-68 ("RICO"). See Indictment at 8-9. Count 2 alleges that C. Garcia and A. Cordova committed murder on or about February 4, 2005, in violation of VICAR. See Indictment at 54. Count 3 charges A. Cordova with using and carrying a firearm in relation to the crime charged in Count 2, in violation of 18 U.S.C. §§ 924(c), (j)(1), respectively, using a firearm during a violent crime and using a firearm to cause a person's death. See Indictment at 54.
Before the First DeLeon Trial, the Court held a full, several day James hearing, beginning on November 27, 2017. See DeLeon, No. CR 15-4268 JB, Transcript of Hearing at 10:12-24 (taken November 27, 2017)(Court), filed December 6, 2017 (Doc. 1545)("Nov. 27 Tr.")(granting the defendants' requests for a full James hearing). See also DeLeon, No. CR 15-4268 JB Defendant Daniel Sanchez's Motion in Limine to Preclude the Admission of Un-Confronted, Out of Court Statements Proffered by the Government at the James Hearing, filed October 6, 2017 (Doc. 1296). Before the Second DeLeon Trial, the parties agreed that the United States would submit a list of statements proposed for introduction at trial and that the Defendants would have the opportunity to object to the statements' admissibility. See Nov. 27 Tr. at 106:7-10 (Castellano)("It's my understanding [the Trial 2 Defendants will] get the statements and they'll make a determination at that point whether they want to challenge the statements."). See also DeLeon, 287 F.Supp.3d 1187, 1201-02, (D.N.M. 2018)(Browning, J.); United States v. DeLeon, United States' Notice of Proposed James Statements for Trial 2, filed March 8, 2018 (Doc. 1903). The Court and the parties reasoned that this process would enable a more focused analysis of the statements.
1. The James Proffers.
Through the United States' Notice of Proposed James Statements, filed June 22, 2018 (Doc. 744), the United States conveyed the James Proffers to the Court on June 22, 2018. See United States' Notice of Proposed James Statements at 1. The James Proffers contains the following statements and information on those statements:
Statement 1: Dix's girlfriend owed Chris Garcia money. Dix shot Garcia in a confrontation about that money. Garcia wanted Dix dead after that and was willing to pay for Dix to be killed.
Declarant: Chris Garcia
Date: On or before February 4, 2005
Source: Michael Patrick Sullivan
Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, and/or keep coconspirators abreast of an ongoing conspiracy's activities.
Statement 2: Chris Garcia paid Carmelito Padilla to hire Michael Snow but Snow never killed Dix.
Declarant: Chris Garcia
Date: On or before February 4, 2005
Source: Michael Patrick Sullivan
Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, and/or are statements regarding the roles of other coconspirators.
Statement 3: Chris Garcia put out a $ 10,000 hit for Shane Dix.
Declarant: Chris Garcia
Date: On or before February 4, 2005
Source: Gilbert Angelo Serrano
Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, and/or to reassure members of a conspiracy's continued existence.
Statement 4: Chris Garcia wanted Dix killed while he was out of town so that he had an alibi.
Declarant: Chris Garcia
Date: On or before February 4, 2005
Source: Mario Montoya
Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, to allay a coconspirator's fears, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, and/or are statements regarding the roles of other coconspirators.
Statement 5: Chris Garcia had put money in Dix's books while Dix was in jail to mislead police that Garcia had forgiven Dix.
Declarant: Chris Garcia
Date: On or before February 4, 2005
Source: Mario Montoya
Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, to allay a coconspirator's fears, keep coconspirators abreast of an ongoing conspiracy's activities, and/or to avoid detection by law enforcement.
Statement 6: Chris Garcia talked to Anthony Cordova and Mario Montoya about the fact that Dix hung out at the Chevron.
Declarant: Chris Garcia
Date: On or before February 4, 2005
Source: Mario Montoya
Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, and/or are statements regarding the roles of other coconspirators.
Statement 7: Anthony Cordova was concerned that people would be able to identify the car after the murder. Cordova said he needed to get rid of his car. The car was a 1990s reddish/maroon Pontiac or Buick with a square rear end.
Declarant: Anthony Cordova
Date: On or before February 4, 2005
Source: Mario Montoya
Basis for admission: Statement made to reassure members of a conspiracy's continued existence, to allay a coconspirator's fears, keep coconspirators abreast of an ongoing conspiracy's activities, and/or to avoid detection by law enforcement.
Statement 8: Anthony Cordova and Mario Montoya saw Dix's vehicle at the gas station. Cordova told Montoya to shoot Dix there, but Montoya said they need to wait because there were so many people and cameras.
Declarant: Anthony Cordova
Date: On or before February 4, 2005
Source: Mario Montoya
Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, to allay a coconspirator's fears, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy are statements regarding the roles of other coconspirators, and/or to avoid detection by law enforcement.
Statement 9: Cordova and Montoya asked Dix for drugs at the gas station. Dix called someone to get more drugs.
Declarant: Anthony Cordova
Date: On or before February 4, 2005
Source: Mario Montoya Basis for admission: Statement made to prompt further action on the part of the conspirators and/or to reassure members of a conspiracy's continued existence.
Statement 10: Anthony Cordova suggested that he and Montoya go with Dix. Dix said no and told them he would be back with the drugs.
Declarant: Anthony Cordova
Date: On or before February 4, 2005
Source: Mario Montoya
Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, and/or are statements regarding the roles of other coconspirators.
Statement 11: While Dix was on the phone inquiring about drugs, Anthony Cordova said he knew the person on the other line and asked to speak with him.
Declarant: Anthony Cordova
Date: On or before February 4, 2005
Source: Mario Montoya
Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, and/or are statements regarding the roles of other coconspirators.
Statement 12: Anthony Cordova told Montoya that he knew where Dix was headed and gave directions to Montoya on how to get there.
Declarant: Anthony Cordova
Date: On or before February 4, 2005
Source: Mario Montoya
Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, and/or are statements regarding the roles of other coconspirators.
Statement 13: Anthony Cordova told Mario Montoya to drive when they were leaving the gas station to locate Dix.
Declarant: Anthony Cordova
Date: On or before February 4, 2005
Source: Mario Montoya
Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, and/or are statements regarding the roles of other coconspirators.
Statement 14: Mario Montoya got his gun from Chris Garcia and believed Anthony Cordova did as well. Cordova told Montoya to put his gun under the seat.
Declarant: Anthony Cordova
Date: On or before February 4, 2005
Source: Mario Montoya
Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, and/or are statements regarding the roles of other coconspirators.
Statement 15: Anthony Cordova told Montoya to back up as Dix said, "It's me Shane. I got that for you."
Declarant: Anthony Cordova
Date: On or before February 4, 2005
Source: Mario Montoya
Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, and/or are statements regarding the roles of other coconspirators.
Statement 16: Anthony Cordova was stalling and said "Who? Is that you Shane?"
Declarant: Anthony Cordova
Date: On or before February 4, 2005
Source: Mario Montoya
Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, and/or to reassure members of a conspiracy's continued existence.
Statement 17: Anthony Cordova told Montoya to give him his gun and dumped his and Montoya's in the Rio Grande.
Declarant: Anthony Cordova
Date: On or before February 4, 2005
Source: Mario Montoya
Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to allay a coconspirator's fears, and/or to avoid detection by law enforcement.
Statement 18: Chris Garcia gave Anthony Cordova a different car to drive after the murder.
Declarant: Anthony Cordova
Date: On or after February 4, 2005
Source: Mario Montoya
Basis for admission: Statement made to allay a coconspirator's fears and/or to avoid detection by law enforcement.
Statement 19: Montoya called Chris Garcia and told him the job was done by saying "cherry pie."
Declarant: Chris Garcia
Date: On or after February 4, 2005
Source: Mario Montoya
Basis for admission: Statement made to keep coconspirators abreast of an ongoing conspiracy's activities, and/or to avoid detection by law enforcement.
Statement 20: Following the murder, Montoya described the murder to Chris Garcia. Garcia gave Montoya money, drugs and forgave a drug debt of Mario Montoya. Cordova was leaving the house when Montoya got there.
Declarant: Anthony Cordova
Date: After February 4, 2005
Source: Mario Montoya
Basis for admission: Statement made to reassure members of a conspiracy's continued existence, identify other members of the conspiracy, and/or are statements regarding the roles of other coconspirators.
Statement 21: Chris Garcia met with Montoya and Anthony Cordova and said Cordova was going to help kill Dix. Garcia wanted Cordova to help because he was more familiar with Dix's neighborhood.
Declarant: Anthony Cordova
Date: On or before February 4, 2005
Source: Mario Montoya
Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, and/or are statements regarding the roles of other coconspirators.
Statement 22: Chris Garcia told Steven Morales that he wanted Morales to kill Dix.
Declarant: Chris Garcia
Date: Around 2004
Source: Steven Morales
Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, and/or are statements regarding the roles of other coconspirators.
Statement 23: Steven Morales attempted to get Dix to meet up with Bobby Dominguez, an ex-girlfriend, but Dix never took the bait.
Declarant: Chris Garcia
Date: Around 2004
Source: Steven Morales
Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, and/or are statements regarding the roles of other coconspirators.
Statement 24: Chris Garcia was going to pay Steven Morales $ 5,000 and a pound of heroin to murder Dix.
Declarant: Chris Garcia
Date: Around 2004
Source: Steven Morales
Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, and/or are statements regarding the roles of other coconspirators.
Statement 25: Chris Garcia Offered [sic] to clear Mario Montoya's drug debt if he killed Dix.
Declarant: Chris Garcia
Date: On or before February 4, 2005
Source: Mario Montoya
Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, and/or are statements regarding the roles of other coconspirators.
Statement 26: Chris Garcia gave Mario Montoya a gun to kill Dix but Montoya was arrested soon after.
Declarant: Chris Garcia
Date: On or before February 4, 2005
Source: Mario Montoya
Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, and/or are statements regarding the roles of other coconspirators.
Statement 27: "I was in Vegas when Dix got hit so they wouldn't suspect me."
"That's how you do it."
Declarant: Chris Garcia
Date: After the fact
Source: Gerald Archuleta
Basis for admission: Statement against interest.
Statement 28: "We're friends. If I go [to Las Vegas] and come back and it's [(the murder)] not done, we won't be friends."
Declarant: Chris Garcia
Date: On or before February 4, 2005
Source: Mario Montoya
Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, and/or keep coconspirators abreast of an ongoing conspiracy's activities.
Statement 29: Cordova and Montoya gave Dix $ 50 dollars for drugs and expected Dix to take them to a secluded location to complete the transaction.
Declarant: Anthony Cordova
Date: On or before February 4, 2005
Source: Mario Montoya
Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, keep coconspirators abreast of an ongoing conspiracy's activities, and/or are statements regarding the roles of other coconspirators.
Statement 30: Cordova got rid of his car about a week later after the Dix murder.
Declarant: Anthony Cordova
Date: After February 4, 2005
Declarant: Mario Montoya
Basis for admission: Statement made to avoid detection by law enforcement.
Statement 31: Chris Garcia told Julian Romero that he wanted Shane Dix dead. Garcia attempted to hire Romero to kill Dix by offering to give Romero $ 10,000 and a 9mm gun a few months before Dix was murdered.
Declarant: Chris Garcia
Date: On or before February 4, 2005
Source: Julian Romero
Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, and/or are statements regarding the roles of other coconspirators.
Statement 32: Chris Garcia asked Billy Cordova to kill Shane Dix.
Declarant: Chris Garcia
Date: On or before February 4, 2005
Source: Billy Cordova
Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, and/or are statements regarding the roles of other coconspirators.
Statement 33: Richard Gallegos told Melody Ortiz to contact a male and "tell him Tone sent you."
Declarant: Richard Gallegos
Date: On or about June 13, 2016
Source: Jail call recording
Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, and/or are statements regarding the roles of other coconspirators.
Statement 34: Gallegos told Ortiz to find addresses to give to another male so that his "paperwork"[7] could be sent to him.
Declarant: Richard Gallegos
Date: On or about June 13, 2016
Source: Jail call recording
Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, are statements regarding the roles of other coconspirators, and/or to avoid detection by law enforcement.
Statement 35: Gallegos and Cordova called Ortiz and Sylvia Gutierrez to arrange for the delivery of drugs in to the facility
Declarant: Richard Gallegos, Anthony Cordova, Melody Ortiz, and Sylvia Gutierrez
Date: On or about June 13, 2016
Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, and/or are statements regarding the roles of other coconspirators.
Source: Jail call recording
Statement 36: "`Pup'8 wants to send us a message to `Creeper'" — who we believe was Jerry Armenta's "family that they will be harmed if he testifies for the state. `Pup' wants the family to know `Creeper' is fucking up. If he takes the stand against this pedo, against anybody, we're coming for your ass. `Pup' agrees that Mario is the best person to deliver the message."
Declarant: Anthony Ray Baca
Date: On or about November 2015
Source: not identified
Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, to allay a coconspirator's fears, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, are statements regarding the roles of other coconspirators, and/or to avoid detection by law enforcement.
Statement 37: "`Pup' and CHS9 are talking with Mario Montoya. `Pup' says he is working on getting Mario guns."
Declarant: Anthony Ray Baca
Date: On or about November 2015
Source: not identified
Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, and/or are statements regarding the roles of other coconspirators.
Statement 38: "`Pup' wants research to be done on where Vigil and Santistevan live. He believes that the warden lives on prison grounds on Oasis Street, but also observed other houses that could belong to Vigil or Santistevan. He says it will be easier to get them if they do not reside on the prison grounds. He also says he wants to bring down [Elmer] Bustos, a former Associate Warden, who `Pup' blames for sending him to the ADX.10 `Pup' does not specify that he wants Bustos hit, but it appears he wants the get him in trouble. `Pup' believes that Bustos owns a Santa Fe real estate company."
Declarant: Anthony Ray Baca
Date: On or about October 2015
Source: not identified
Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, and/or are statements regarding the roles of other coconspirators.
Statement 39: "Pup" and the CHS are talking about planning the hits and the best weapon to be used.
"Pup" says, "What's a good cuete11 for that? It has to be a revolver, carnal,12 not an automatic. Automatic might jam. Those are easier to put a silencer on, too, a homemade silencer, because it has a barrel."
Declarant: Anthony Ray Baca
Date: On or about November 2015
Source: not identified
Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, and/or are statements regarding the roles of other coconspirators.
Statement 40: "Pup" and the CHS are talking about Michael Snow. "Pup" tells the CHS, "Ask him if he could try to get me a cuete. If he could, just get one, and I'll have him give it to somebody." Specifically, "Pup" asks for a revolver.
Declarant: Anthony Ray Baca
Date: On or about November 2015
Source: not identified
Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, and/or are statements regarding the roles of other coconspirators.
Statement 41: To put this in context, this is happening on December 3, 2015. "Mario should have done the hit over the night. `Pup' and CHS are wondering if the feds are going to charge the SNM. `Pup' talks about the steps the feds would have to take, gather state evidence, bring in STIU [(Security Threat Intelligence Unit)] and local law enforcement."
Declarant: Anthony Ray Baca
Date: not identified
Source: not identified
Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, and/or are statements regarding the roles of other coconspirators.
Statement 42: "The CHS asked `Pup' if the SNM will get respect from the Mexican Mafia if Mario successfully kills the Secretary and all the carnales get sent into the federal system. `Pup' responds, `They already respect us. And with us going over there like that, with that type of fucking charge, oh, yeah, they fucking — not only them' — the Mexican Mafia — `everybody else respects the fuck out of that shit.'"
Declarant: Anthony Ray Baca
Date: not identified
Source: not identified
Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, and/or are statements regarding the roles of other coconspirators.
Statement 43: "Pup" is talking about Jerry Armenta testifying. "And his family, his family gets hit. And that shit will hit the news, carnal. And they're going to say the only motive behind that has been because that fucker testified. That shit hits the news, too. That gives us more power. Because of that fact, everybody is going to know, a la verde,13 they're going to hit my family, I'm never going to tell them."
Declarant: Anthony Ray Baca
Date: not identified
Source: not identified
Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, to allay a coconspirator's fears, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy, are statements regarding the roles of other coconspirators, and/or to avoid detection by law enforcement.
Statement at 44: He's referring to the magazine. He says, "Well, the firearm didn't have a magazine. It needs a magazine to be fully loaded." So what Garcia is explaining to Montoya is: "Put the bullet in the fucker and then you can shoot it. Or you can get a clip and, you know, do it the right way. Order a clip."
Declarant: Anthony Ray Baca
Date: not identified
Source: not identified
Basis for admission: Statement made to induce enlistment or further participation in the group's activities, to prompt further action on the part of the conspirators, to reassure members of a conspiracy's continued existence, to allay a coconspirator's fears, keep coconspirators abreast of an ongoing conspiracy's activities, identify other members of the conspiracy and/or are statements regarding the roles of other coconspirators.
James Proffers at 1-23.14
2. The James Proffers Reply.
A. Cordova responded to the James Proffers. See Anthony Cordova's Reply to United States' Notice of Proposed James Statements, filed June 27, 2018 (Doc. 760)("Objections"). A. Cordova takes the position that the United States cannot prove his involvement in any SNM conspiracy, as his connection to C. Garcia related to C. Garcia's personal revenge against Dix. See Objections at 2. A. Cordova addresses each statement in turn, and the Court addresses these objections infra in the Analysis. See Objections at 2-9.
3. The Conspiracy List.
The United States transmitted to the Court via email a summary of the conspiracies to which the United States refers in the James Proffers. See Conspiracy List. This summary lists four conspiracies: (i) the Dix Conspiracy, (ii) the Distribution Conspiracy, (iii) the Intimidation Conspiracy, and (iv) the Santistevan, Vigil, Marcantel Conspiracy. See Conspiracy List at 2.
4. The Hearing.
At the hearing on July 3, 2018, the United States began by summarizing the evidence that it would present on the Dix Conspiracy. See July 3 Tr. at 36:7-43:6 (Castellano). The United States admitted that it could not show that Carmelito Padilla was part of the Dix Conspiracy. See July 3 Tr. at 41:9-14 (Court, Castellano). The United States summarized that C. Garcia, A. Cordova, B. Cordova, Montoya, Morales, Dominguez, R. Sanchez, and C. Sanchez participated in the Dix Conspiracy. See July 3 Tr. at 41:18-22 (Castellano). The United States indicated that it might not prove that Michael Snow participated in the Dix Conspiracy. See July 3 Tr. at 42:15-18 (Castellano). A. Cordova raised an objection only to the statement that Snow contributed to the Dix Conspiracy. See July 3 Tr. at 44:3-4 (Morrissey). The Court indicated that it would consider whether to deem Snow a coconspirator. See July 3 Tr. at 44:22 (Court).
The United States turned to the Distribution Conspiracy, and named as conspirators Gallegos, A. Cordova, Ortiz, Gutierrez, and Pollock. See July 3 Tr. at 45:11-14 (Castellano). The Defendants had no objections to this list. See July 3 Tr. at 46:9-10 (Morrissey). The Court noted, and the United States agreed, that A. Cordova was not part of the Intimidation Conspiracy. See July 3 Tr. at 46:11-48:3 (Court, Castellano).
The United States then began discussing the statements it sought to introduce by averring that statements 4 through 18 are admissible. See July 3 Tr. at 49:18-24 (Castellano). The United States argued that statement 19, which Montoya made after the murder, also furthered the Dix Conspiracy or formed a separate conspiracy to conceal the murder, because, in the statement, C. Garcia uses the code word "cherry pie" to inform Montoya the murder occurred. See July 3 Tr. at 50:1-18 (Castellano, Court). The Defendants objected that, because the conversation occurred after the murder, it was not part of the Dix Conspiracy. See July 3 Tr. at 50:21-51:7 (Morrissey). The United States replied that it would not introduce the words "cherry pie" for their truth. See July 3 Tr. at 51:8-13 (Castellano). The Court indicated its intention to consider the issue. See July 3 Tr. at 51:14-17 (Court).
The United States noted that statement 20 also was made after Dix' death, but argued that the statement largely involves conduct. See July 3 Tr. at 51:19-23 (Castellano). The United States also clarified that Montoya and C. Garcia, and not A. Cordova, made the statement. See July 3 Tr. at 52:20-24 (Castellano, Court). The United States explained statement 20 — Montoya will describe the murder and his agreement with C. Garcia to commit the murder in exchange for forgiveness of his drug debt, and the ability to obtain "additional money and drugs." July 3 Tr. at 52:18 (Castellano). See July 3 Tr. at 53:3-20 (Court, Castellano). The Court stressed that it would not admit Montoya's description of the murder, and the United States agreed that Montoya would state only that he described to C. Garcia the murder. See July 3 Tr. at 53:21-54:6 (Court, Castellano). The Defendants agreed to these statements' admission only if the United States clarifies that A. Cordova did not participate in the conversation. See July 3 Tr. at 53:14-19 (Morrissey). The United States could not confirm, however, that A. Cordova did not witness the exchange. See July 3 Tr. at 54:22-55:7 (Court, Castellano). A. Cordova also objected that C. Garcia could not have forgiven a drug debt without words, but the Court interjected that such a statement would not be hearsay. See July 3 Tr. at 55:10-22 (Morrissey, Court). The Court indicated that it would likely admit Montoya's story, but not the murder's description. See July 3 Tr. at 56:9-14 (Court).
In turning to statement 21, the United States agreed with the Court that C. Garcia was the correct declarant. See July 3 Tr. at 56:16-18 (Castellano). The United States continued, stating that the Court should admit statements 21, 22, and 23. See July 3 Tr. at 56:20-57:4 (Castellano, Court). The United States clarified that Morales made statement 23. See July 3 Tr. at 57:4-5 (Castellano). The United States further summarized that statements 24, 25, and 26 are admissible and attributed in the James Proffers to the correct declarants. See July 3 Tr. at 57:11-23 (Court, Castellano). The United States explained that, for statement 26, it would introduce statements about a gun that C. Garcia gave to Montoya for Dix's murder and about C. Garcia's initial solicitations of Montoya for the murder. See July 3 Tr. at 58:2-23 (Castellano, Court). The Court indicated that it would further analyze those statements. See July 3 Tr. at 58:24-59:1 (Court).
The United States noted that statement 27 is a statement against interest, and notes that statement 28 and other statements that C. Garcia made to Montoya and A. Cordova, support its reliability. See July 3 Tr. at 59:4-60:1 (Castellano). A. Cordova agreed to the statements' admission. See July 3 Tr. at 60:4-5 (Morrissey). The United States returned to the statements, noting that statement 28 is admissible and that statement 29 is admissible as A. Cordova's and Montoya's comments while negotiating a drug deal with Dix, which they used as an opportunity to follow him. See July 3 Tr. at 60:17-61:4 (Castellano). The Court indicated that it would likely admit the statements as non-hearsay and under 801(d)(2)(A). See July 3 Tr. at 61:5-11 (Court).
The United States noted that statement 30 should be admissible as conduct, because, according to the United States, Montoya will testify that A. Cordova stated that he would rid himself of his car and then did so. See July 3 Tr. at 61:22-62: (Castellano). A. Cordova disagreed, asserting that Montoya could testify to what he saw and did, but not that A. Cordova stated that he would rid himself of the car. See July 3 Tr. at 62:10-62:16 (Morrissey). The Court indicated that A. Cordova's statement would be admissible as "a [rule] 801(d)(2)(A) [of the Federal Rules of Evidence] statement." July 3 Tr. at 62:21-24 (Court). The United States proceeded to note that statements 31, 32, 33, and 35 are admissible, and the Court and the parties agreed to admit statement 34. See July 3 Tr. at 63:3-64:9 (Castellano, Court, Morrissey); id. at 67:16-17 (Castellano).
The United States moved to statement 36, the first of the statements from the witness intimidation or retaliation conspiracies. See July 3 Tr. at 67:18-20 (Castellano). The United States commented that it might try to introduce these allegations not for A. Cordova's participation in the conspiracies but to show other elements of VICAR like racketeering activity. See July 3 Tr. at 67:23-68:1 (Castellano). The Court asked whether the United States would introduce evidence only and no statements. See July 3 Tr. at 68:2-3 (Court). The United States then switched to arguing the statements' admissibility. See July 3 Tr. at 68:4-5 (Castellano). The Court indicated that it would likely not admit statement 36, and the United States "table[d]" that statement. July 3 Tr. at 68:10 (Castellano). See id. at 68:8-11 (Court, Castellano). The Court indicated, and the United States agreed, that parts of statements 36 and 37 might qualify for admission under rule 803(3) of the Federal Rules of Evidence. See July 3 Tr. at 68:14-25 (Court, Castellano). The United States noted that statement 37's admissible portion reflects: "That Pup tells Mr. Montoya that he's working on getting guns." July 3 Tr. at 68:25-69:1 (Castellano). See id. at 68:23-69:1 (Castellano). The United States continued that likewise the Court should admit a segment of statement 38, and the Court agreed to look at the statements. See July 3 Tr. at 69:9-14 (Court, Castellano).
The Court stated that statement 40 likely was inadmissible, and A. Cordova indicated that he recalled that the Court excluded such statements in the First and Second DeLeon trials. See July 3 Tr. at 69:18-23 (Court, Morrissey). The United States indicated that it had no argument to the contrary. See July 3 Tr. at 70:7-12 (Castellano).
The United States turned to statement 41 and clarified for the Court that it involves a recording of Baca speaking to Eric Duran. See July 3 Tr. at 70:25-71:21 (Castellano, Court, Morrissey). The Court noted that the statement "`[Montoya] should have done the hit over the night' may be 803," July 3 Tr. at 72:23 (Court), but that it would exclude the remaining portions, see July 3 Tr. at 72:22-25 (Court). The United States agreed with the Court. See July 3 Tr. at 72:1 (Morrissey).
The Court and the United States agreed that the Court would not admit statement 42. See July 3 Tr. at 72:5-14 (Castellano, Court). The Court indicated that it also would not admit statements 43 or 44. See July 3 Tr. at 72:16-24 (Court, Castellano). The United States contended that it might introduce the recording's end for statement 44, which discusses the Santistevan, Vigil, Marcantel Conspiracy and mentions A. Cordova. See July 3 Tr. at 72:25-73:14 (Castellano); id. at 74:5-12 (Castellano). The Court indicated its doubts whether the United States could introduce evidence about the Santistevan and Marcantel murder conspiracies. See July 3 Tr. at 72:13-19 (Court). The United States argued that it would introduce the evidence to show racketeering, see July 3 Tr. at 72:20-22 (Castellano), but the Court expressed concern whether the United States could introduce such information without relying on hearsay, see July 3 Tr. at 74:23-75:2 (Court). The United States noted that it would introduce that Montoya "picked up a gun from Christopher Garcia," July 3 Tr. at 75:4-5 (Castellano), and "the purpose was for the murder of Marcantel," July 3 Tr. at 75:6-7 (Castellano). The Court questioned whether Montoya could make such statements without relying on hearsay, and the United States indicated that Montoya had personal knowledge of the ongoing conspiracy, his cooperation, and his story. See July 3 Tr. at 75:10-15 (Castellano). A. Cordova argued that the statement conflicted with other evidence, see July 3 Tr. at 76:1-4 (Morrissey), and that, in the Second DeLeon Trial, the Court had admitted no evidence of the Marcantel murder conspiracy, see July 3 Tr. at 76:8-12 (Morrissey). The Court responded that some such information had entered the trial, and the United States agreed. See July 3 Tr. at 76:18-25 (Court, Castellano). As the Court concluded the James Proffers portion of the hearing, A. Cordova had nothing further to add or object. See July 3 Tr. at 77:10-12 (Morrissey). For the parties' reference before trial, the Court provided to the parties and filed on the electronic docket two draft tables reflecting the Court's conclusions on the proffered James statements. See Court's Draft Table Related to the United States' Proffered James Statements, filed July 2, 2018 (Doc. 767); Court's Second Draft Table Related to the United States' Proffered James Statements, filed July 5, 2018 (Doc. 777).
LAW REGARDING HEARSAY
"Hearsay testimony is generally inadmissible." United States v. Christy, No. CR 10-1534 JB, 2011 WL 5223024, at *5 (D.N.M. Sept. 21, 2011)(Browning, J.)(citing Fed. R. Evid. 802). Rule 801(c) of the Federal Rules of Evidence provides: "`Hearsay' means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement." Fed. R. Evid. 801(c). Hearsay bars a party from presenting its own statements, such as "a defendant ... attempt[ing] to introduce an exculpatory statement made at the time of his arrest without subjecting himself to cross-examination." United States v. Cunningham, 194 F.3d 1186, 1199 (11th Cir. 1999). A statement that is otherwise hearsay, however, may be offered for a permissible purpose other than to prove the truth of the matter asserted, including impeaching a witness. See United States v. Caraway, 534 F.3d 1290, 1299 (10th Cir. 2008)("We have already explained why the content of the statement, if used substantively, would be inadmissible hearsay. If admitted for impeachment purposes, however, it is not hearsay.").
Hearsay is generally unreliable and untrustworthy. See Chambers v. Mississippi, 410 U.S. 284, 298, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973)(noting that hearsay is generally untrustworthy and lacks traditional indicia of reliability); United States v. Lozado, 776 F.3d 1119, 1121 (10th Cir. 2015)("Hearsay is generally inadmissible as evidence because it is considered unreliable." (citing Williamson v. United States, 512 U.S. 594, 598, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994))); United States v. Console, 13 F.3d 641, 656 (3d. Cir. 1993)(stating hearsay is "`inherently untrustworthy'" because of the lack of an oath, presence in court, and cross examination (quoting United States v. Pelullo, 964 F.2d 193, 203 (3rd Cir. 1992))). Testimonial proof is necessarily based upon the human senses, which can be unreliable. See 5 Jack Weinstein & Margaret Berger, Weinstein's Federal Evidence § 802.02[1][b], at 802-5 (Joseph McLaughlin ed., 2d ed. 2017)("Weinstein's Federal Evidence"). The Anglo-American tradition uses three devices to illuminate inaccuracies in the testimonial proof: (i) the oath; (ii) personal presence at trial; (iii) and cross examination. See Weinstein's Federal Evidence § 802.02[2][a], at 802-5. It is difficult to evaluate the credibility of out-of-court statements when the three safeguards mentioned above are unavailable. See Weinstein's Federal Evidence § 802.02[3], at 802-6 to -7. Courts view hearsay evidence as unreliable because it is not subject to an oath, personal presence in court, or cross examination. See, e.g., United States v. Console, 13 F.3d at 656.
"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, e.g., United States v. DeLeon, 316 F.Supp.3d 1303, 1306 (D.N.M. 2018)(Browning, J.)(noting that a hearsay within hearsay issue remains after concluding that rule 803(8) of the Federal Rules of Evidence provided an exception for law enforcement reports); Wood v. Millar, No. CIV 13-0923 RB/CG, 2015 WL 12661926, at *4 (D.N.M. Feb. 19, 2015)(Brack, J.)(noting that witness statements in police reports may be admissible under hearsay exclusions other than rule 803(8)); Montoya v. Sheldon, No. CIV 10-0360 JB/WDS, 2012 WL 6632524, at *7 (D.N.M. Oct. 31, 2012)(Browning, J.)(excluding medical records while characterizing statement within medical records as opposing party statements but the medical records themselves, which the opposing party did not sign, as inadmissible hearsay).
1. Rule 801(d)(2)(A).
An opposing party's statement is not hearsay. See Fed. R. Evid. 801(d)(2). Rule 801(d)(2) specifies as an exclusion from hearsay:
(2) An Opposing Party's Statement. The statement is offered against an opposing party and:
(A) was made by the party in an individual or representative capacity;
(B) is one the party manifested that it adopted or believed to be true;
(C) was made by a person whom the party authorized to make a statement on the subject;
(D) was made by the party's agent or employee on a matter within the scope of that relationship and while it existed; or
(E) was made by the party's coconspirator during and in furtherance of the conspiracy.
The statement must be considered but does not by itself establish the declarant's authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).
Fed. R. Evid. 801(d)(2). "The admissibility of opposing-party statements `is not based on reliability; rather, they are admitted as part of the adversary system'; they are admitted, in short, because the party said the words and should be stuck with them, regardless of their accuracy." United States v. Ballou, 59 F.Supp.3d 1038, 1074 (D.N.M. 2014)(Browning, J.)(quoting Stephen A. Saltzburg et. al., Federal Rules of Evidence Manual § 801.02[b], at 801-13 (2011)).
"Rule 801(d)(2)(A) does not... permit such a statement to be used against anyone other than the party who made the statement, such as codefendants." United States v. DeLeon, 287 F. Supp. 3d at 1256 (citing United States v. Wolf, 839 F.2d 1387, 1393 & n.4 (10th Cir. 1988); Stephen A. Saltzburg, et al., Federal Rules of Evidence Manual § 801.02[6][c] (11th ed. 2017)). "The United States Court of Appeals for the Tenth Circuit has stated that proponents of such evidence `need only show by a preponderance of the evidence that the opposing party had made the statement.'" United States v. Shirley, No. CR 15-1285 JB, 2016 WL 9021832, at *7 (D.N.M. Dec. 21, 2016)(Browning, J.)(citing United States v. Brinson, 772 F.3d 1314, 1320 (10th Cir. 2014)). Statements made during closing argument by an attorney would qualify as an admission by a party opponent under rule 801(d)(2)(A). See United States v. Ganadonegro, 854 F.Supp.2d 1088, 1121 n.11 (D.N.M. 2012)(Browning, J.)(citing United States v. McElhiney, 85 F. App'x 112, 115 (10th Cir. 2003)(unpublished)15). The Court has determined that rule 806 of the Federal Rules of Evidence, which permits attacking hearsay statements with "any evidence that would be admissible for those purposes if the declarant had testified as a witness," Fed. R. Evid. 806, "does not apply to rule 801(d)(2)(A) statements," United States v. DeLeon, No. CR 15-4268 JB, 2018 WL 878121, at *2 n.1 (D.N.M. Feb. 12, 2018)(Browning, J.). "Party opponents can, however, impeach their own admissions, i.e., rule 801(d)(2)(A) statements, even though rule 806 does not apply. If a party opponent admission is relevant, then anything that impeaches such a statement is also relevant." DeLeon, 2018 WL 878121, at *2 n.2.
2. Rule 801(d)(2)(E).
A statement is not hearsay, even if it is offered for its truth, if it is offered against an opposing party and it "was made by the party's coconspirator during and in furtherance of the conspiracy." Fed. R. Evid. 801(d)(2)(E). The Tenth Circuit has stated:
"Admissions by a party-opponent are excluded from the category of hearsay on the theory that their admissibility in evidence is the result of the adversary system rather than satisfaction of the conditions of the hearsay rule [Citations omitted]. No guarantee of trustworthiness is required in the case of an admission. The freedom which admissions have enjoyed from technical demands of searching for an assurance of trustworthiness in some against-interest circumstance, and from restrictive influences of the opinion rule and the rule requiring first-hand knowledge, when taken with the apparently prevalent satisfaction with the results, calls for a generous treatment of this avenue of admissibility." [Emphasis supplied.]
Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 667 (10th Cir. 2006)(Seymour, J.)(quoting United States v. Pinalto, 771 F.2d 457, 459 (10th Cir. 1985)).16
To admit out-of-court statements by coconspirators 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; and (iii) the statements that the United States seeks to admit were made during the course and in furtherance of the conspiracy." United States v. Vigil, No. CR 05-2051, 2006 WL 4109681, at *3 (D.N.M. Aug. 31, 2006)(Browning, J.)(citing United States v. Sinclair, 109 F.3d 1527, 1533 (10th Cir. 1997)). The Court may consider the statements themselves and independent evidence to determine whether the conspiracy existed. See United States v. Lopez-Gutierrez, 83 F.3d 1235, 1242 (10th Cir. 1996)("In making its preliminary factual determination as to whether a conspiracy exists, the court may consider the hearsay statement sought to be admitted, along with independent evidence tending to establish the conspiracy."). While the statement itself "does not by itself establish ... the existence of the conspiracy or participation in it," Fed. R. Evid. 801(d)(2), "there need only be some independent evidence linking the defendant to the conspiracy," United States v. Lopez-Gutierrez, 83 F.3d at 1242 (internal quotation marks omitted)(quoting United States v. Martinez, 825 F.2d 1451, 1453 (10th Cir. 1987)). This "independent evidence may be sufficient even when it is not `substantial.'" United States v. Lopez-Gutierrez, 83 F.3d at 1242 (quoting United States v. Rascon, 8 F.3d 1537, 1541 (10th Cir. 1993)). The Tenth Circuit has noted: "We have defined `independent evidence' as `evidence other than the proffered [coconspirator] statements themselves.'" United States v. Lopez-Gutierrez, 83 F.3d at 1242 (alteration in United States v. Lopez-Gutierrez)(quoting United States v. Martinez, 825 F.2d at 1451).
"[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." United States v. Vigil, 2006 WL 4109681, at *5 (citing United States v. U.S. Gypsum Co., 333 U.S. 364, 393, 68 S.Ct. 525, 92 S.Ct. 746 (1948))("With the conspiracy thus fully established, the declarations and acts of the various members, even though made or done prior to the adherence of some to the conspiracy, become admissible against all as declarations or acts of coconspirators in aid of the conspiracy.")). Moreover, a newcomer to a conspiracy assumes the risk for what has already happened in the course of the conspiracy. See United States v. Brown, 943 F.2d 1246, 1255 (10th Cir. 1991)("The fact that appellant may have joined the conspiracy after its inception does not make his coconspirators' previous statements inadmissible."); United States v. Adamo, 882 F.2d 1218, 1230-31 (7th Cir. 1989)(explaining that one who joins and participates in a conspiracy "adopt[s] the previous acts and declarations of his fellow coconspirators"). "A coconspirator must make a statement while the conspiracy persists for rule 801(d)(2)(E) to apply." DeLeon, 287 F. Supp. 3d at 1253 (citing Fed. R. Evid. 802(d)(2)(E)). "A statement is not made "`pursuant to and in furtherance of objectives of the conspiracy' if it is made `after those objectives either had failed or had been achieved.'" DeLeon, 287 F. Supp. 3d at 1253 (quoting Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 S.Ct. 790 (1949)).
In determining the admissibility of coconspirator statements, "[t]he strongly preferred order of proof" is for the district court to hold a hearing "out-side the presence of the jury to determine by a preponderance of the evidence the existence of a predicate conspiracy." United States v. Urena, 27 F.3d 1487, 1491 (10th Cir. 1994). A defendant does not possess a right to a pretrial hearing on admissibility of coconspirators statements; however, "a district court can only admit coconspirator statements if it holds a James hearing or conditions admission on forthcoming proof of a `predicate conspiracy through trial testimony or other evidence.'" United States v. Townley, 472 F.3d 1267, 1273 (10th Cir. 2007)(quoting United States v. Owens, 70 F.3d 1118, 1123 (10th Cir. 1995)). The Tenth Circuit affords trial courts this flexibility, because it recognizes that, in practice, the United States cannot always demonstrate that a conspiracy existed before admitting specific evidence at trial. See United States v. Petersen, 611 F.2d 1313, 1330 (10th Cir. 1979)(noting that the admissibility determination contemplates presentation of requisite conspiracy evidence before or during the United States' case in chief).
The Court has described several factors to consider when deciding whether statements furthered a conspiracy:
First, "mere narratives between coconspirators or narrative declarations of past events" are not, generally, in furtherance of a conspiracy. United States v. Roberts, 14 F.3d 502, 514-15 (10th Cir. 1993). Second, "statements of future intent that set transactions integral to the conspiracy in motion and maintain the information flow among coconspirators" are usually in furtherance of the conspiracy. United States v. Roberts, 14 F.3d at 515. Third,
Statements made to induce enlistment or further participation in the group's activities ... to prompt further action on the part of conspirators ... [,] to "reassure" members of a conspiracy's continued existence ... [,] to allay a coconspirator's fears ... [, or] to keep coconspirators abreast of an ongoing conspiracy's activities satisfy the "in furtherance" of requirement.
United States v. Roberts, 14 F.3d at 515 (alterations in original)(quoting United States v. Yarbrough, 852 F.2d 1522, 1535-36 (9th Cir. 1988)). Fourth, "[w]hen a conspiracy is ongoing, statements that relate to `avoiding detection by law enforcement personnel' can be in furtherance of the conspiracy." United States v. Alcorta, 853 F.3d [1123,] 1139 [(10th Cir. 2017)](quoting United States v. Williamson, 53 F.3d 1500, 1520 (10th Cir. 1995)).
DeLeon, 287 F. Supp. 3d at 1253.
In United States v. Vigil, the Court did not hold a James hearing, because the defendant, Robert Vigil, had already been tried once, ending in a hung jury, and the Court concluded that "the evidence that" the Honorable James A. Parker, Senior United States District Judge for the United States District Court for the District of New Mexico, "admitted at the first trial satisfies the preponderance standard on the basis of the transcripts of the first trial's testimony." United States v. Vigil, 2006 WL 4109681, at *4. Vigil was charged, among other charges, with being a member of a conspiracy to commit RICO violations, and the United States moved the Court to permit it to elicit non-hearsay coconspirator statements in Vigil's retrial. See 2006 WL 4109681, at *1. The Court noted that it had previously concluded, in deciding Vigil's motion for acquittal under rule 29 of the Federal Rules of Civil Procedure, that "`a reasonable jury could have found that Vigil agreed with at least one other person to conduct or participate in the affairs of the enterprise through a pattern of racketeering activity, or knowingly and voluntarily participated in the conspiracy.'" 2006 WL 4109681, at *4 (citing United States v. Vigil, No. CR 05-2051 JB, Memorandum Opinion, 2006 WL 4109683, filed Aug. 7, 2006 (Doc. 268)).
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 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 ... contract from Everage."
2006 WL 4109681, at *4 (quoting United States v. Vigil, No. CR 05-2051 JB, Memorandum Opinion at 28). The Court reasoned that "[p]roof of the existence of a conspiracy is often based on circumstantial evidence, and this testimony is sufficient to establish Vigil's participation in a conspiracy by a preponderance of the evidence." 2006 WL 4109681, at *5. The Court thus concluded that it would "permit the United States to elicit from its witnesses at trial coconspirator statements made in furtherance of the conspiracy charged." 2006 WL 4109681, at *6.
3. Rule 803(1).
Rule 803(1) of the Rules of Evidence 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." United States v. Mejia-Valez, 855 F.Supp. 607, 613 (E.D.N.Y. 1994)(Korman, J.). "The present sense impression exception applies only to reports of what the declarant has actually observed through the senses, not to what the declarant merely conjectures." Brown v. Keane, 355 F.3d 82, 89 (2d Cir. 2004). "The underlying rationale of the present sense impression exception is that substantial contemporaneity of event and statement minimizes unreliability due to defective recollection or conscious fabrication." United States v. Hawkins, 59 F.3d 723, 730 (8th Cir. 1995). "The admissibility of spontaneous utterances — one ground relied on by the state trial court — was recognized by the Supreme Court over a century ago in Insurance Co. v. Mosley, 75 U.S. (8 Wall.) 397, 406-07, 19 S.Ct. 437 (1869)." Martinez v. Sullivan, 881 F.2d 921, 928 (10th Cir. 1989).
4. Rule 803(2).
Rule 803(2) of the Federal Rules of Evidence, commonly called 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.'" United States v. Alexander, 331 F.3d 116, 122 (D.C. Cir. 2003)(quoting United States v. Brown, 254 F.3d 454, 458 (3d Cir. 2001)). The Tenth Circuit, in United States v. Smith, 606 F.3d 1270 (10th Cir. 2010), set forth a district court's required analysis for whether a statement is admissible under the excited-utterance exception:
The so-called "excited-utterance exception has three requirements: (1) a startling event; (2) the statement was made while the declarant was under the stress of the event's excitement; and (3) a nexus between the content of the statement and the event." Pursley, 577 F.3d at 1220. "[T]here is no precise amount of time between the event and the statement beyond which the statement cannot qualify as an excited utterance." United States v. Ledford, 443 F.3d 702, 711 (10th Cir. 2005). Admissibility hinges on a statement's contemporaneousness with the excitement a startling event causes, not the event itself. See Pursley, 577 F.3d at 1221-22.
606 F.3d at 1279. The Tenth Circuit has noted:
Courts consider a range of factors in determining whether a declarant made a statement while under the stress of a particular event. Among the more relevant factors are: the amount of time between the event and the statement; the nature of the event; the subject matter of the statement; the age and condition of the declarant; the presence or absence of self-interest; and whether the statement was volunteered or in response to questioning.
United States v. Pursley, 577 F.3d 1204, 1220 (10th Cir. 2009). "Permissible subject matter of the statement is [not] limited... to description or explanation of the event or condition.... [T]he statement need only relate to the startling event or condition, thus affording a broader scope of subject matter coverage." United States v. Frost, 684 F.3d 963, 973 (10th Cir. 2012)(quoting Fed. R. Evid. 803 advisory committee's notes). "If the trial court has access to a recording of the declarant's statement, it may also consider the declarant's `tone and tenor of voice' in determining whether the declarant made that statement while under the stress of excitement." United States v. Alexander, 331 F.3d at 123 (quoting United States v. Woodfolk, 656 A.2d 1145, 1151 n.16 (D.C. 1995)(collecting cases)).
The United States Court of Appeals for the Second Circuit has provided an analysis of the similarities and differences between the present-sense-impression and excited-utterance exceptions to the rule against hearsay:
As defined by the Federal Rules of Evidence, a present sense impression is a statement "describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter." Rule 803(1), Fed. R. Evid. Such statements are considered to be trustworthy because the contemporaneity of the event and its description limits the possibility for intentional deception or failure of memory. See United States v. Brewer, 36 F.3d 266, 272 (2d Cir. 1994).
The hearsay exception for excited utterances is premised on a similar, though distinct, assumption that the reliability of a statement increases as opportunity for reflection by the declarant decreases. An "excited utterance" is "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Rule 803(2), Fed. R. Evid. As we have explained, "[t]he rationale for this hearsay exception is that the excitement of the event limits the declarant's capacity to fabricate a statement and thereby offers some guarantee of its reliability." [United States v.] Tocco, 135 F.3d [ ] [116,] 127[(2d Cir. 1998)]. Unlike present sense impressions, "[a]n excited utterance need not be contemporaneous with the startling event to be admissible." Id. Rather "[t]he length of time between the event and the utterance is only one factor to be taken into account in determining whether the declarant was, within the meaning of rule 803(2), `under the stress of excitement caused by the event or condition.'" United States v. Scarpa, 913 F.2d 993, 1017 (2d Cir. 1990).
....
Thus while the hearsay exception for present sense impressions focuses on contemporaneity as the guarantor of reliability, and requires that the hearsay statement "describe or explain" the contemporaneous event or condition, Rule 803(1), Fed. R. Evid., the excited utterance exception is based on the psychological impact of the event itself, and permits admission of a broader range of hearsay statements — i.e. those that "relate to" the event. Rule 803(2), Fed. R. Evid.
United States v. Jones, 299 F.3d 103, 112 & n.3 (2d Cir. 2002).
Many courts have found it proper to admit a 911 caller's statements as a present-sense impression and/or an excited utterance. See, e.g., United States v. Thomas, 453 F.3d 838, 841 (7th Cir. 2006)(holding that admission of a three minute and fifty-three second 911 call, in which the caller said that a man holding a handgun had shot someone outside her apartment and was still there, and in which the "emergency operator [ ] asked a series of questions about the facts of the situation and the caller narrated what she was seeing as it happened," was proper as either a present-sense impression or excited utterance); United States v. Hawkins, 59 F.3d at 730 (holding that the tape of the 911 emergency telephone call from the defendant's wife reporting that the defendant displayed gun to his wife during a domestic dispute was proper as a present-sense impression, because of its sufficient contemporaneity to underlying events and because of its reliability, as evidenced by the wife's detailed description of gun); United States v. Mejia-Valez, 855 F. Supp. at 613-15 (concluding that admission of two callers' 911 call tape recordings as excited utterances and present-sense impressions was proper, because the two callers were at the scene of the underlying shooting, they placed the calls moments after the shooting, and both men described the shooting's circumstances, including giving the location and the shooter's description).
5. Rule 803(3).
Rule 803(3) permits the introduction of "hearsay ..., even though the declarant is available as a witness," for a statement of the declarant's "[t]hen existing mental, emotional, or physical condition":
A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.
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. United States v. Netschi, 511 F. App'x 58, 61 (2d Cir. 2013)("`To admit statements of one's state of mind with regard to conduct that occurred ... earlier as in this case would significantly erode the intended breadth of this hearsay exception.'" (quoting United States v. Cardascia, 951 F.2d 474, 488 (2d Cir. 1991))). This requirement is not to say that the statement must be said at the very moment of the incident, but for intent to be proved, it must be "contemporaneous" to the act. Mut. Life Ins. of N.Y. v. Hillmon, 145 U.S. 285, 295, 12 S.Ct. 909, 36 S.Ct. 706 (1892). To be contemporaneous and therefore admissible under the present-state-of-mind exception, a statement must be "part of a continuous mental process." United States v. Cardascia, 951 F.2d at 488. In addition to the requirements that the statement be contemporaneous to the incident at hand and relevant to the issues of the case, it must also be established that there was no opportunity for the declarant to "`fabricate or to misrepresent his thoughts.'" United States v. Jackson, 780 F.2d 1305, 1315 (7th Cir. 1986)(quoting United States v. Layton, 549 F.Supp. 903, 909 (N.D. Cal. 1982)). The statements of intent must reveal information or details about the future, which has been contrasted with statements of memory, or looking to the past. See Shepard v. United States, 290 U.S. 96, 104, 54 S.Ct. 22, 78 S.Ct. 196 (1933). When statements entail issues of looking into the past combined with other concerns, it can often be too confusing for a jury to extract, upsetting the balance of advantage, and ultimately making the evidence inadmissible. See Shepard v. United States, 290 U.S. at 104, 54 S.Ct. 22. "The most obvious risk of prejudice is that the jury will consider the hearsay statement not as proof of state of mind and the subsequent conduct of the declarant, but rather for the truth of the facts that are related in the statement." Saltzburg, supra, § 803.02, at 4-803.
6. Rule 804(b)(3).
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, see Fed. R. Evid 804 (a) (listing conditions that render a declarant "unavailable as a witness"), and the statement is "against the declarant's proprietary, pecuniary, or penal interest," United States v. Lozado, 776 F.3d at 1125 (citing Williamson v. United States, 512 U.S. at 599-600, 114 S.Ct. 2431). A statement against interest is one that "a reasonable person in the declarant's position would have made only if the person believed it to be true." Fed. R. Evid. 804(b)(3)(A). Moreover, the statement must be "supported by corroborating circumstances that clearly indicate its trustworthiness." Fed. R. Evid. 804(b)(3)(B).
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.'" United States v. Smalls, 605 F.3d 765, 780-81 (10th Cir. 2010)(internal quotation marks omitted)(quoting Williamson v. United States, 512 U.S. at 599, 114 S.Ct. 2431). The Tenth Circuit has said: "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." United States v. Smalls, 605 F.3d at 783. That sort of statement is admissible, however, only to the extent that it inculpates the declarant, because "[t]he fact that a statement is self-inculpatory does make it more reliable; but the fact that a statement is collateral to a self-inculpatory statement says nothing at all about the collateral statement's reliability." Williamson v. United States, 512 U.S. at 600, 114 S.Ct. 2431.
While rule 804(b)(3)'s depends on an objective standard and not on the declarant's subjective beliefs, see Fed. R. Evid. 804(b)(3), a "declarant's actual knowledge that a statement is self-incriminating" remains relevant, United States v. Lozado, 776 F.3d at 1126. "If there is proof of the declarant's actual knowledge, `a reasonable person in the declarant's position' would have the declarant's actual knowledge." United States v. Lozado, 776 F.3d at 1127 (quoting Fed. R. Evid. 804(b)(3)(A)). Courts often lack such evidence when applying rule 804(b)(3), because the most obvious way to prove a declarant's subjective awareness is through declarant testimony, but the declaration-against-interest exception is available only when the declarant is "unavailable as a witness." Fed. R. Evid. 804(b). See United States v. Lozado, 776 F.3d at 1129 (stating that "the declarant's belief about the self-inculpatory nature of the statement" is often unknown). Absent "evidence establishing the declarant's actual knowledge," courts must determine what "`a reasonable person in the declarant's position' would know." United States v. Lozado, 776 F.3d at 1128-29.
In sum, under Rule 804(b)(3)(A), if proof establishes the declarant's actual state of mind as to whether the statement is against penal interest, courts should consider that evidence as part of "in the declarant's position" to determine whether the hearsay is admissible. If, however, the declarant's state of mind on the against-interest question has not been proved, courts should consider whether "a reasonable person in the declarant's position" would believe the statement is against his or her interest.
United States v. Lozado, 776 F.3d at 1130 (footnotes omitted)(quoting Fed. R. Evid. 804(b)(3)(A)).
If the declarant does not believe the statement is against his or her interest, then the statement generally cannot be admitted, regardless of what a reasonable person may believe. If the declarant believes the statement is against his or her interest, the statement can qualify for admission, regardless of what a reasonable person may believe.
United States v. Lozado, 776 F.3d at 1130 n.9.
If a statement "is offered in a criminal case as one that tends to expose the declarant to criminal liability," then it must be "supported by corroborating circumstances that clearly indicate its trustworthy." Fed. R. Evid. 804(b)(3)(B). "The Tenth Circuit has not squarely addressed how a statement must be corroborated." United States v. Lozado, 776 F.3d at 1132. United States v. Lozado indicates, however, that the presence — or absence — of evidence corroborating a statement's contents, the circumstances in which a statement was made, the declarant's credibility, whether the declarant had a motive to lie, and whether the statement is internally consistent are all relevant to the rule 804(b)(3)(B) inquiry. See 776 F.3d at 1132-33.
LAW REGARDING RULE 403
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. See United States v. Record, 873 F.2d 1363, 1375 (10th Cir. 1989). "`[I]t is only unfair prejudice, substantially out-weighing probative value, which permits exclusion of relevant matter [under rule 403].'" United States v. Pettigrew, 468 F.3d 626, 638 (10th Cir. 2006)(emphasis in United States v. Sides)(quoting United States v. Sides, 944 F.2d 1554, 1563 (10th Cir. 1991)). The Tenth Circuit has admonished district courts that they should be "mindful" that "exclusion of evidence under Rule 403 that is otherwise admissible under the other rules is an extraordinary remedy and should be used sparingly." United States v. Smalls, 605 F.3d at 787.
The decision to admit or exclude evidence pursuant to rule 403 is within the district court's discretion, see United States v. Lugo, 170 F.3d 996, 1005 (10th Cir. 1999), and the district court's discretion to balance possible unfair prejudice against probative value is broad, see United States v. Bice-Bey, 701 F.2d 1086, 1089 (4th Cir. 1983); United States v. Masters, 622 F.2d 83, 87-88 (4th Cir. 1980). The Supreme Court has noted:
In deference to a district court's familiarity with the details of the case and its greater experience in evidentiary matters, courts of appeals afford broad discretion to a district court's evidentiary rulings.... This is particularly true with respect to Rule 403 since it requires an "on-the-spot balancing of probative value and prejudice, potentially to exclude as unduly prejudicial some evidence that already has been found to be factually relevant."
Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384, 128 S.Ct. 1140, 170 L.Ed.2d 1 (2008)(quoting 1 Steven Alan Childress & Martha S. Davis, Fed. Standards of Review § 4.02, at 4-16 (3d ed. 1999)). See United States v. Abel, 469 U.S. 45, 54, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984)("Assessing the probative value of [proffered evidence], and weighing any factors counseling against admissibility is a matter first for the district court's sound judgment under Rules 401 and 403....").
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. See United States v. Rodriguez, 192 F.3d 946, 951 (10th Cir. 1999). Evidence is not unfairly prejudicial merely because it damages a party's case. See United States v. Caraway, 534 F.3d 1290, 1301 (10th Cir. 2008); United States v. Curtis, 344 F.3d 1057, 1067 (10th Cir. 2003); United States v. Martinez, 938 F.2d 1078, 1082 (10th Cir. 1991). Rather, "[t]o be unfairly prejudicial, the evidence must have `an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.'" United States v. Caraway, 534 F.3d at 1301 (quoting Fed. R. Evid. 403 advisory committee's note).
"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." Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). "Such improper grounds certainly include ... generalizing a defendant's earlier bad act into bad character and taking that as raising the odds that he did the later bad act now charged." Old Chief v. United States, 519 U.S. at 180-81, 117 S.Ct. 644. In light of rule 404(b)'s prohibition regarding the use of character evidence to show that a person acted in conformity with their character, "[t]here is, accordingly, no question that propensity would be an `improper basis' for conviction and that evidence ... is subject to analysis under Rule 403 for relative probative value and for prejudicial misuse as propensity evidence." Old Chief v. United States, 519 U.S. at 182, 117 S.Ct. 644. The Supreme Court has advised lower courts to disregard the prosecution's need for "evidentiary depth to tell a continuous story" when the prosecution's evidence consists of the underlying facts of a criminal defendant's prior felony conviction, as in an action for felon in possession. Old Chief v. United States, 519 U.S. at 189-90. 117 S.Ct. 644. In such an action, "[t]he most the jury needs to know is that the conviction admitted by the defendant falls within the class of crimes that Congress thought should bar a convict from possessing a gun, and this point may be made readily in a defendant's admission and underscored in the court's jury instructions." Old Chief v. United States, 519 U.S. at 191, 117 S.Ct. 644. The Court has previously ruled that, under the Supreme Court's decision in Old Chief v. United States, the underlying facts of a defendant's prior conviction should be excluded, even if relevant to the offense. See, e.g., United States v. Williams, No. CR 12-1675 JB, 2012 WL 5476228, at *2 (D.N.M. Nov. 7, 2012)(Browning, J.); United States v. Ashley, No. CR 04-2497 JB, 2006 WL 4109679, at *3 (D.N.M. Aug. 1, 2006)(Browning, J.)("Even if relevant under rule 404(b), given the nature of the crime with which he is charged here and the similarity to these prior crimes, the danger of unfair prejudice outweighs the probative value of specifically identifying the prior crimes."). See also United States v. Wacker, 72 F.3d 1453, 1472 (10th Cir. 1995)("Whereas the fact of a defendant's prior felony conviction is material to a felon in possession charge, the nature and underlying circumstances of a defendant's conviction are not.").
ANALYSIS
The Court will permit some but not all statements in the James Proffers as evidence at trial. In the chart below, the Court provides each statement the United States proposes to introduce and information related to the statement. The Court rules individually whether to admit each statement.
James Proffers Statement Ruling
Statement 1. Dix's girlfriend owed Chris The statement that "Garcia wanted Dix dead ... and
Garcia money. Dix shot Garcia in a was willing to pay for Dix to be killed" is admissible
confrontation about that money. Garcia for its truth under rule 801(d)(2)(E). C. Garcia and
wanted Dix dead after that and was A. Cordova are members of a conspiracy to murder
willing to pay for Dix to be killed. Shane Dix. See FOF ¶ 1. C. Garcia's statements that
he wants Dix murdered and is willing to pay for
Declarant: Chris Garcia someone to murder Dix is in furtherance of the
conspiracy, because he is "encouraging others to
Date: On or before February 4, 2005 join, assist, or deal with the conspiracy." Stephen A.
Saltzburg, Federal Rules of Evidence Manual
Source: Michael Patrick Sullivan § 4-801.02 (2018)("Saltzburg"). That Michael
Patrick Sullivan is not a member of the conspiracy to
Basis for admission: Statement made to murder does not affect the Court's 801(d)(2)(E)
induce enlistment or further analysis, because a coconspirator's statement need
participation in the group's activities, to not be made to another coconspirator to be
prompt further action on the part of the admissible under that provision. See Saltzburg
conspirators, and/or keep coconspirators § 4-801.02 ("To be admissible the statement must be
abreast of an ongoing conspiracy's made by a coconspirator, but it need not be made to
activities. a coconspirator."). The statement may not be
admissible under 801(d)(2)(E), however, if
Objection: Objections at 2-3. C. Garcia made the statement to Sullivan in a context
in which C. Garcia was not encouraging others to
join, assist, or deal with the conspiracy.
The statement "Garcia wanted Dix dead after that
and was willing to pay for Dix to be killed" is also
admissible for its truth as a then-existing mental,
emotional, or physical condition under rule 803(3).
The statement "Dix's girlfriend owed Chris Garcia
money. Dix shot Garcia in a confrontation about that
money" is also admissible for its truth under rule
801(d)(2)(E), because C. Garcia could have used that
backstory in his attempt to convince Sullivan to join
the conspiracy.
The statement "Dix's girlfriend owed Chris Garcia
money. Dix shot Garcia in a confrontation about that
money" is not admissible for its truth under rule
803(3), however, because that rule allows statements
to prove what a person's state of mind was at a
certain time, but it may not be used to prove "why
the person had [that] state of mind." Saltzburg
§ 803.02 ("Rule 803(3) permits a hearsay statement
to be used to prove what a person's state of mind was
at the time of the statement, but it does not allow a
statement to be used to prove why the person had the
state of mind they did.").
A. Cordova objects that he has not received
discovery regarding the statement. See Objections at
2-3. Whether the United States has provided
A. Cordova with discovery supporting this statement
does not, however, impact the Court's hearsay
analysis.
THE STATEMENT IS ADMISSIBLE.
WITHDRAWN17 WITHDRAWN
Statement 2: Chris Garcia paid This statement is admissible for its truth as a
Carmelito Padilla to hire Michael Snow coconspirator's statement under rule 801(d)(2)(E),
but Snow never killed Dix. because C. Garcia made the statement to
"encourag[e] others to join, assist, or deal with the
Declarant: Chris Garcia conspiracy." Saltzburg § 4-801.02 (stating that
statements made "in furtherance of a conspiracy" can
Date: On or before February 4, 2005 include "encouraging others to join, assist, or deal
with the conspiracy").
Basis for admission: Statement made to
induce enlistment or further If further evidence shows that C. Garcia did not
participation in the group's activities, to make the statement to Sullivan to encourage Sullivan
prompt further action on the part of the or others to join or assist in the conspiracy to kill Dix,
conspirators, to reassure members of a then the statement is not admissible under rule
conspiracy's continued existence, keep 801(d)(2)(E). Although a coconspirator's statements
coconspirators abreast of an ongoing meant to keep other conspirators informed on the
conspiracy's activities, identify other conspiracy's developments and coconspirators'
members of the conspiracy, and/or are roles, the United States does not allege that Sullivan
statements regarding the roles of other was a member of the conspiracy to kill Dix.
coconspirators.
Source: Michael Patrick Sullivan
WITHDRAWN18 WITHDRAWN
Statement 3: Chris Garcia put out a This statement is admissible for its truth as
$10.000 hit for Shane Dix. coconspirator's statement under rule 801(d)(2)(E),
because C. Garcia made the statement to
Declarant: Chris Garcia "encourag[e] others to join, assist, or deal with the
conspiracy." Saltzburg, § 4-801.02. C. Garcia
Date: On or before February 4, 2005 telling Gilbert Serrano that C. Garcia has "put out a
$10,000 hit for Shane Dix" encourages others to join
Source: Gilbert Angelo Serrano the conspiracy by offering compensation for killing
Dix.
Basis for admission: Statement made to
induce enlistment or further Further, this statement is admissible for a non-hearsay
participation in the group's activities, to purpose, i.e., for a purpose other than the
prompt further action on the part of the statement's truth. That C. Garcia was offering
conspirators, and/or to reassure people money to kill Dix is relevant even if C. Garcia
members of a conspiracy's continued never intended to make good on those offers such
existence. that they were, in a sense, false.
Objection: Objections at 3 If further evidence shows that C. Garcia did not
make the statement to Serrano to encourage Serrano
or others to join or assist in the Dix Conspiracy, then
the statement is not admissible under rule
801(d)(2)(E). Although a coconspirator's statements
meant to keep other conspirators informed on the
conspiracy's developments and coconspirators' roles
are admissible, the United States has not shown and
does not allege that Serrano was a member of the Dix
Conspiracy.
A. Cordova argues that, for the statement to qualify
for 801(d)(2)(E), there must be a showing that
Serrano was a part of the conspiracy, or actually was
the source for this information and not repeating
"gossip or rumor." Objections at 3.
The United States does not need to show that Serrano
was part of the conspiracy. See Saltzburg § 4-801.02
("To be admissible the statement must be
made by a coconspirator, but it need not be made to
a coconspirator."). Serrano cannot relate C. Garcia's
statement to the jury unless he has personal
knowledge regarding that statement. See Fed. R.
Evid. 602. If Serrano did not hear C. Garcia make
this statement, he lacks personal knowledge
regarding that statement; Serrano could only testify
that someone else told him that C. Garcia made this
statement, which would present a hearsay-within-hearsay
issue. See Fed. R. Evid. 805 ("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."). See also
Saltzburg § 805.02 (stating a rule 805's requirement
that "each part of the combined statements conforms
with an exception to the rule" does not preclude a
statement that is not hearsay, such as a rule 801(d)
statement, from being used to satisfy rule 805
(emphasis added)).
Statement 4: Chris Garcia wanted Dix This statement is admissible for its truth as a
killed while he was out of town so that coconspirator's statement under rule 801(d)(2)(E),
he had an alibi. because C. Garcia made the statement to Montoya —
who the Court determines by a preponderance of
Declarant: Chris Garcia the evidence is a member of the Dix Conspiracy, see
FOF ¶ 1 — to further the conspiracy by giving
Date: On or before February 4, 2005 instructions and/or "keeping other members apprised
of conspiratorial developments [or] providing
Source: Mario Montoya reassurance." Saltzburg § 4-801.02 (stating that "in
furtherance of a conspiracy" may include "keeping
Basis for admission: Statement made to other members apprised of conspiratorial
induce enlistment or further developments [or] providing reassurance").
participation in the group's activities, to
prompt further action on the part of the The statement is also admissible for its truth as a
conspirators, to reassure members of a then-existing mental, emotional, or physical
conspiracy's continued existence, to condition under rule 803(3), because C. Garcia is
allay a coconspirator's fears, keep expressing his intent and plan to evade suspicion by
coconspirators abreast of an ongoing being out of town when Dix is killed.
conspiracy's activities, identify other
members of the conspiracy, and/or are THE STATEMENT IS ADMISSIBLE.
statements regarding the roles of other
coconspirators.
Statement 5: Chris Garcia had put This statement is admissible for its truth as
money in Dix's books while Dix was in acoconspirator's statement under rule 801(d)(2)(E).
jail to mislead police that Garcia had
forgiven Dix. A. Cordova objects that this statement is not
admissible under rule 801(d)(2)(E), because it is a
Declarant: Chris Garcia "mere narrative[ ]" relating to past events that does
not serve the conspiracy's purposes, even if it relates
Date: On or before February 4, 2005 to the conspiracy. Objections at 3. See United States
v. Wolf, 839 F.2d at 1393 (stating that 801(d)(2)(E)
Source: Mario Montoya does not apply to statements relating to past events
that does not serve an immediate or future
Basis for admission: Statement made to conspiratorial purpose).
induce enlistment or further
participation in the group's activities, to A coconspirator's statement is admissible for its
prompt further action on the part of the truth under 801(d)(2)(E), however, when the
conspirators, to reassure members of a statement is meant to reassure conspiracy members,
conspiracy's continued existence, to to keep coconspirators abreast of ongoing conspiracy
allay a coconspirator's fears, keep activities. See Saltzburg § 801.02. Here, A.
coconspirators abreast of an ongoing Cordova's statement to Montoya informs him of a
conspiracy's activities, and/or to avoid development in the conspiracy and assures Montoya
detection by law enforcement. that A. Cordova had taken steps to avoid detection.
Objections: Objections at 3 THE STATEMENT IS ADMISSIBLE.
Statement 6: Chris Garcia talked to This statement is admissible under rule 801(d)(2)(E).
Anthony Cordova and Mario Montoya C. Garcia made this statement describing Dix's
about the fact that Dix hung out at the activities to A. Cordova to make it easier for
Chevron. A. Cordova to kill Dix. Thus, the statement was
made in furtherance of the Dix Conspiracy.
Declarant: Chris Garcia
THE STATEMENT IS ADMISSIBLE.
Date: On or before February 4, 2005
Source: Mario Montoya
Basis for admission: Statement made to
induce enlistment or further
participation in the group's activities, to
prompt further action on the part of the
conspirators, to reassure members of a
conspiracy's continued existence, keep
coconspirators abreast of an ongoing
conspiracy's activities, identify other
members of the conspiracy, and/or are
statements regarding the roles of other
coconspirators.
Statement 7: Anthony Cordova was This statement is admissible for its truth as an
concerned that people would be able to admission of a party opponent. See Fed. R. Evid.
identify the car after the murder. 801(d)(2)(A).
Cordova said he needed to get rid of his
car. The car was a 1990s THE STATEMENT IS ADMISSIBLE.
reddish/maroon Pontiac or Buick with a
square rear end.
Declarant: Anthony Cordova
Date: On or before February 4, 2005
Source: Mario Montoya
Basis for admission: Statement made to
reassure members of a conspiracy's
continued existence, to allay a
coconspirator's fears, keep
coconspirators abreast of an ongoing
conspiracy's activities, and/or to avoid
detection by law enforcement.
Statement 8: Anthony Cordova and This statement is admissible for its truth as an
Mario Montoya saw Dix's vehicle at the admission of a party opponent. See Fed. R. Evid.
gas station. Cordova told Montoya to 801(d)(2)(A).
shoot Dix there, but Montoya said they
need to wait because there were so many THE STATEMENT IS ADMISSIBLE.
people and cameras.
Declarant: Anthony Cordova
Date: On or before February 4, 2005
Source: Mario Montoya
Basis for admission: Statement made to
induce enlistment or further
participation in the group's activities, to
prompt further action on the part of the
conspirators, to reassure members of a
conspiracy's continued existence, to
allay a coconspirator's fears, keep
coconspirators abreast of an ongoing
conspiracy's activities, identify other
members of the conspiracy are
statements regarding the roles of other
coconspirators, and/or to avoid detection
by law enforcement.
Statement 9: Cordova and Montoya This statement is admissible for its truth as an
asked Dix for drugs at the gas station. admission of a party opponent. See Fed. R. Evid.
Dix called someone to get more drugs. 801(d)(2)(A). Dix calling someone is not a
statement, so it raises no hearsay concerns.
Declarant: Anthony Cordova
THE STATEMENT IS ADMISSIBLE.
Date: On or before February 4, 2005
Source: Mario Montoya
Basis for admission: Statement made to
prompt further action on the part of the
conspirators and/or to reassure members
of a conspiracy's continued existence.
Statement 10: Anthony Cordova This statement is admissible for its truth as an
suggested that he and Montoya go with admission of a party opponent. See Fed. R. Evid.
Dix. Dix said no and told them he would 801(d)(2)(A).
be back with the drugs.
THE STATEMENT IS ADMISSIBLE.
Declarant: Anthony Cordova
Date: On or before February 4, 2005
Source: Mario Montoya
Basis for admission: Statement made to
induce enlistment or further
participation in the group's activities, to
prompt further action on the part of the
conspirators, to reassure members of a
conspiracy's continued existence, and/or
are statements regarding the roles of
other coconspirators.
Statement 11: While Dix was on the This statement is admissible for its truth as an
phone inquiring about drugs, Anthony admission of a party opponent. See Fed. R. Evid.
Cordova said he knew the person on the 801(d)(2)(A).
other line and asked to speak with him.
THE STATEMENT IS ADMISSIBLE.
Declarant: Anthony Cordova
Date: On or before February 4, 2005
Source: Mario Montoya
Basis for admission: Statement made to
induce enlistment or further
participation in the group's activities, to
prompt further action on the part of the
conspirators, to reassure members of a
conspiracy's continued existence, keep
coconspirators abreast of an ongoing
conspiracy's activities, identify other
members of the conspiracy, and/or are
statements regarding the roles of other
coconspirators.
Statement 12: Anthony Cordova told This statement is admissible for its truth as an
Montoya that he knew where Dix was admission of a party opponent. See Fed. R. Evid.
headed and gave directions to Montoya 801(d)(2)(A).
on how to get there.
THE STATEMENT IS ADMISSIBLE.
Declarant: Anthony Cordova
Date: On or before February 4, 2005
Source: Mario Montoya
Basis for admission: Statement made to
induce enlistment or further
participation in the group's activities, to
prompt further action on the part of the
conspirators, to reassure members of a
conspiracy's continued existence, and/or
are statements regarding the roles of
other coconspirators.
Statement 13: Anthony Cordova told This statement is admissible for its truth as an
Mario Montoya to drive when they were admission of a party opponent. See Fed. R. Evid.
leaving the gas station to locate Dix. 801(d)(2)(A).
Declarant: Anthony Cordova THE STATEMENT IS ADMISSIBLE.
Date: On or before February 4, 2005
Source: Mario Montoya
Basis for admission: Statement made to
induce enlistment or further
participation in the group's activities, to
prompt further action on the part of the
conspirators, to reassure members of a
conspiracy's continued existence, and/or
are statements regarding the roles of
other coconspirators.
Statement 14: Mario Montoya got his This statement is admissible for its truth as an
gun from Chris Garcia and believed admission of a party opponent. See Fed. R. Evid.
Anthony Cordova did as well. Cordova 801(d)(2)(A).
told Montoya to put his gun under the
seat. THE STATEMENT IS ADMISSIBLE.
Declarant: Anthony Cordova
Date: On or before February 4, 2005
Source: Mario Montoya
Basis for admission: Statement made to
induce enlistment or further
participation in the group's activities, to
prompt further action on the part of the
conspirators, to reassure members of a
conspiracy's continued existence, keep
coconspirators abreast of an ongoing
conspiracy's activities, identify other
members of the conspiracy, and/or are
statements regarding the roles of other
coconspirators.
Statement 15: Anthony Cordova told This statement is admissible for its truth as an
Montoya to back up as Dix said, "It's me admission of a party opponent. See Fed. R. Evid.
Shane. I got that for you." 801(d)(2)(A).
Declarant: Anthony Cordova THE STATEMENT IS ADMISSIBLE.
Date: On or before February 4, 2005
Source: Mario Montoya
Basis for admission: Statement made to
induce enlistment or further
participation in the group's activities, to
prompt further action on the part of the
conspirators, to reassure members of a
conspiracy's continued existence, and/or
are statements regarding the roles of
other coconspirators.
Statement 16: Anthony Cordova was This statement is admissible for its truth as an
stalling and said "Who? Is that you admission of a party opponent. See Fed. R. Evid.
Shane?" 801(d)(2)(A).
Declarant: Anthony Cordova THE STATEMENT IS ADMISSIBLE.
Date: On or before February 4, 2005
Source: Mario Montoya
Basis for admission: Statement made to
induce enlistment or further
participation in the group's activities, to
prompt further action on the part of the
conspirators, and/or to reassure
members of a conspiracy's continued
existence.
Statement 17: Anthony Cordova told This statement is admissible for its truth as an
Montoya to give him his gun and admission of a party opponent. See Fed. R. Evid.
dumped his and Montoya's in the Rio 801(d)(2)(A).
Grande.
Additionally, dumping the gun is an action and not
Declarant: Anthony Cordova an assertion, so it is not hearsay.
Date: On or before February 4, 2005 THE STATEMENT IS ADMISSIBLE.
Source: Mario Montoya
Basis for admission: Statement made to
induce enlistment or further
participation in the group's activities, to
prompt further action on the part of the
conspirators, to allay a coconspirator's
fears, and/or to avoid detection by law
enforcement.
Statement 18: This statement is admissible as a statement made by
a party opponent under rule 801(d)(2)(A) if
Chris Garcia gave Anthony Cordova a A. Cordova really is the declarant.
different car to drive after the murder.
It would seem, however, that this is an action that
Declarant: Anthony Cordova C. Garcia took and not a statement that A. Cordova
made. If so, C. Garcia's act — giving a car to
Date: On or after February 4, 2005 A. Cordova — is not a statement, because it was not
intended as an assertion, so it cannot be hearsay.
Source: Mario Montoya
Basis for admission: Statement made to
allay a coconspirator's fears and/or to
avoid detection by law enforcement.
Statement 19: Montoya called Chris This statement is not admissible under rule
Garcia and told him the job was done by 801(d)(2)(E), because it was not made during the Dix
saying "cherry pie." Conspiracy. That conspiracy ended when its goal
was accomplished, i.e., when Dix died. See
Declarant: Chris Garcia Krulewitch v. United States, 336 U.S. at 442-43
("This hearsay declaration, attributed to a
Date: On or after February 4, 2005 coconspirator, was not made pursuant to and in
furtherance of objectives of the conspiracy charged
Source: Mario Montoya in the indictment, because if made, it was after those
objectives either had failed or had been achieved.").
Basis for admission: Statement made to See also United States v. Silverstein, 737 F.2d 864,
keep coconspirators abreast of an 867 (10th Cir. 1984) ("[A] declaration made after the
ongoing conspiracy's activities, and/or termination of the conspiracy does not fall within the
to avoid detection by law enforcement. exception.... [A] conspiracy terminates when its
central criminal purposes have been attained.").
The United States argues that the statement is
admissible under 801(d)(2)(E), because
it happens shortly after the
murder ..., and [there was]
agreement between Mr. Montoya and
Mr. C. Garcia that Mr. Montoya
would communicate with Mr. C.
Garcia that the crime took place. And
so he used the term or code cherry pie
to let him know that happened. So I
would say that speaking on the phone
and uttering those words helped to
avoid detection by law enforcement.
July 3 Tr. at 45:25-46:14 (Castellano). A. Cordova
responds that Montoya made the statement after the
conspiracy ended and the statement did not further
the conspiracy's objectives. See July 3 Tr. at
46:20-47:6 (Morrissey).
The Court agrees with A. Cordova. The statement
was not made in the course of the Dix Conspiracy,
because the Dix Conspiracy concluded when its
members achieved their objective of killing Dix. See
Krulewitch v. United States, 336 U.S. at 442-43.
The statement was not made in furtherance of that
conspiracy, because the conspiracy was complete
when Montoya made the statement. Statements
made to evade detection by law enforcement can be
in the course and furtherance of a conspiracy if
evading law enforcement helps achieve a
conspiracy's purpose. That principle does not apply,
however, when such a statement is made after the
conspirators have achieved the conspiracy's purpose
Moreover, even assuming that Montoya's "cherry
pie" statement was made in the course and
furtherance of a separate conspiracy to evade law
enforcement, the United States has not shown or
alleged that A. Cordova joined that conspiracy.
The United States also argues that the statement
"cherry pie" could be admissible for a nonhearsay
purpose, because the United States does not mean to
prove the truth of the words "cherry pie." See July 3
Tr. at 47:7-11 (Castellano). Montoya saying "cherry
pie" was an implied assertion that Dix was killed.
See James Proffers at 10 ("Montoya called Chris
Garcia and told him the job was done by saying
`cherry pie."). Using a code phrase like "cherry pie"
is an implied assertion, and implied assertions are
subject to the rules against hearsay. See Saltzburg
§ 801.02 ("[M]ost federal courts ... agree[ ] ... that
implied assertions are hearsay if they are
intentionally communicated by the speaker — and
not hearsay if there is no intent to communicate the
implication"); United States v. Summers, 414 F.3d
1287, 1300 (10th Cir. 2005). In other words, courts
look to the message's intended meaning, and not the
message's literal meaning.
THE STATEMENT IS NOT ADMISSIBLE.
Statement 20: Following the murder, Montoya's statement describing the Dix murder is
Montoya described the murder to Chris not admissible under rule 801(d)(2)(E), because it
Garcia. Garcia gave Montoya money, was not made during the Dix Conspiracy. That
drugs and forgave a drug debt of Mario conspiracy ended when its goal was accomplished,
Montoya. Cordova was leaving the i.e., when Dix died. See Krulewitch v. United States,
house when Montoya got there. 336 U.S. at 442-43; United States v. Silverstein, 737
F.2d at 867.
Declarant: Mario Montoya and Chris
Garcia19 That C. Garcia gave Montoya money and drugs is
non-assertive conduct, so it is not a statement and,
Date: After February 4, 2005 thus, cannot be hearsay.
Source: Mario Montoya C. Garcia forgiving Montoya's drug debt is
admissible for a non-hearsay purpose — as
Basis for admission: Statement made to circumstantial evidence of C. Garcia's gratitude to
reassure members of a conspiracy's Montoya for killing Dix. The Court assumes that the
continued existence, identify other United States is not offering this statement to
members of the conspiracy, and/or are establish whether, after the Dix murder, Montoya
statements regarding the roles of other owed money to C. Garcia, and — even if it were —
coconspirators. the statement would be admissible as legally
operative language akin to accepting a contractual
offer and not for its truth.
A. Cordova leaving the house as Montoya arrived is
non-assertive conduct, so it is not a statement and,
thus, cannot be hearsay.
MONTOYA'S STATEMENT DESCRIBING
THE MURDER IS NOT ADMISSIBLE.
MONTOYA'S TESTIMONY THAT C.
GARCIA GAVE HIM MONEY AND DRUGS
AND FORGAVE HIS DEBT IS ADMISSIBLE.
MONTOYA'S TESTIMONY THAT A.
CORDOVA LEFT THE HOUSE AS
MONTOYA ARRIVED IS ADMISSIBLE.
Statement 21: Chris Garcia met with C. Garcia's statements to Montoya and A. Cordova
Montoya and Anthony Cordova and said that A. Cordova was going to help kill Dix and that
Cordova was going to help kill Dix. C. Garcia wanted A. Cordova's help because
Garcia wanted Cordova to help because A. Cordova was familiar with Dix's neighborhood
he was more familiar with Dix's are admissible for their truth under rule 801(d)(2)(E).
neighborhood. C. Garcia's statements were in the course and
furtherance of the conspiracy to kill Dix, because
Declarant: Chris Garcia20 they kept the coconspirators apprised of the
conspiracy's developments and informed Montoya
Date: On or before February 4, 2005 of another coconspirator's role. See Saltzburg
§ 801.02.
Source: Mario Montoya
THE STATEMENTS ARE ADMISSIBLE.
Basis for admission: Statement made to
induce enlistment or further
participation in the group's activities, to
prompt further action on the part of the
conspirators, to reassure members of a
conspiracy's continued existence, keep
coconspirators abreast of an ongoing
conspiracy's activities, identify other
members of the conspiracy, and/or are
statements regarding the roles of other
coconspirators.
Statement 22: Chris Garcia told Steven This statement is admissible for its truth as a
Morales that he wanted Morales to kill coconspirator's statement under rule 801(d)(2)(E),
Dix. because C. Garcia made the statement to Morales to
encourage him to "join, assist, or deal with the
Declarant: Chris Garcia conspiracy." Saltzburg § 4-801.02 (stating that
statements made "in furtherance of a conspiracy" can
Date: Around 2004 include "encouraging others to join, assist, or deal
with the conspiracy").
Source: Steven Morales
This statement is also admissible as a statement of
Basis for admission: Statement made to C. Garcia's then-existing state of mind under rule
induce enlistment or further 803(3).
participation in the group's activities, to
prompt further action on the part of the THE STATEMENT IS ADMISSIBLE.
conspirators, to reassure members of a
conspiracy's continued existence, keep
coconspirators abreast of an ongoing
conspiracy's activities, identify other
members of the conspiracy, and/or are
statements regarding the roles of other
coconspirators.
Statement 23: Steven Morales attempted This statement is admissible for its truth under rule
to get Dix to meet up with Bobby 801(d)(2)(E), because Morales' statements
Dominguez, an ex-girlfriend, but Dix attempting to lure Dix to a meeting were made in
never took the bait. furtherance of the Dix Conspiracy. The fact that
Morales' attempt failed does not mean that the
Declarant: Steven Morales21 statements were not made in furtherance of the
conspiracy; the proper inquiry is whether a statement
Date: Around 2004 was made in an effort to further the conspiracy and
not whether — in hindsight — the statement actually
Source: Steven Morales did so.
Basis for admission: Statement made to THE STATEMENT IS ADMISSIBLE.
induce enlistment or further
participation in the group's activities, to
prompt further action on the part of the
conspirators, to reassure members of a
conspiracy's continued existence keep
coconspirators abreast of an ongoing
conspiracy's activities, identify other
members of the conspiracy, and/or are
statements regarding the roles of other
coconspirators.
Statement 24: Chris Garcia was going to This statement is admissible for its truth as a
pay Steven Morales $5,000 and a pound coconspirator's statement under rule 801(d)(2)(E),
of heroin to murder Dix. because C. Garcia stating to Morales that he would
pay Morales $5,000.00 and a pound of heroin to
Declarant: Chris Garcia murder Dix is a statement encouraging Morales to
"join, assist, or deal with the conspiracy." Saltzburg
Date: Around 2004 § 4-801.02 (stating that statements made "in
furtherance of a conspiracy" can include
Source: Steven Morales "encouraging others to join, assist, or deal with the
conspiracy").
Basis for admission: Statement made to
induce enlistment or further It is also admissible under rule 803(3) as a statement
participation in the group's activities, to of C. Garcia's then-existing state of mind,
prompt further action on the part of the specifically his plan.
conspirators, to reassure members of a
conspiracy's continued existence, keep THE STATEMENT IS ADMISSIBLE.
coconspirators abreast of an ongoing
conspiracy's activities, identify other
members of the conspiracy, and/or are
statements regarding the roles of other
coconspirators.
Statement 25: Chris Garcia Offered [sic] This statement is admissible for its truth under rule
to clear Mario Montoya's drug debt if he 801(d)(2)(E), because C. Garcia made this statement
killed Dix. in an effort to get Montoya to participate in the Dix
Conspiracy.
Declarant: Chris Garcia
THE STATEMENT IS ADMISSIBLE.
Date: On or before February 4, 2005
Source: Mario Montoya
Basis for admission: Statement made to
induce enlistment or further
participation in the group's activities, to
prompt further action on the part of the
conspirators, to reassure members of a
conspiracy's continued existence, keep
coconspirators abreast of an ongoing
conspiracy's activities, identify other
members of the conspiracy, and/or are
statements regarding the roles of other
coconspirators.
Statement 26: Chris Garcia gave Mario That C. Garcia gave Montoya a gun is non-assertive
Montoya a gun to kill Dix but Montoya conduct, so it is not hearsay. Likewise, Montoya
was arrested soon after. getting arrested is an action and not a statement, so it
is not hearsay.
Declarant: Chris Garcia
At the James Hearing, the United States contended
Date: On or before February 4, 2005 that Montoya will testify that C. Garcia "had
pressured him and continued to ask him to murder
Source: Mario Montoya Shane Dix," and that C. Garcia giving a gun to
Montoya was "one of those events." July 3 Tr. at
Basis for admission: Statement made to 54:7-11 (Castellano).
induce enlistment or further
participation in the group's activities, to Any C. Garcia statements encouraging Montoya to
prompt further action on the part of the join the conspiracy to kill Dix are admissible for their
conspirators, to reassure members of a truth as a coconspirator's statement under rule
conspiracy's continued existence, keep 801(d)(2)(E).
coconspirators abreast of an ongoing
conspiracy's activities, identify other MONTOYA'S TESTIMONY THAT C.
members of the conspiracy, and/or are GARCIA GAVE HIM A GUN AND THAT HE,
statements regarding the roles of other MONTOYA, WAS ARRESTED SOON
coconspirators. THEREAFTER IS ADMISSIBLE.
C. GARCIA'S STATEMENTS PRESSURING
MONTOYA TO MURDER DIX ARE
ADMISSIBLE.
Statement 27: "I was in Vegas when Dix The statements are admissible as an exception to the
got hit so they wouldn't suspect me." rule against hearsay as a statement made against the
"That's how you do it." declarant's interest under rule 804(b)(3). That rule
applies only when the declarant is unavailable as a
Declarant: Chris Garcia witness. See Fed. R. Evid. 804(a) (defining
unavailability). C. Garcia is unavailable as a
Date: After the fact witness, because he has invoked his right under the
Fifth Amendment to refuse to testify in this case. See
Source: Gerald Archuleta Fed. R. Evid. 804(a)(1) (stating that a witness is
unavailable if he or she is "exempted from
Basis for admission: Statement against testifying ... because the court rules that a privilege
declarant's interest. applies"). See also Motion to Quash Trial Subpoena
Due to Witness Unavailability, Fifth Amendment
Objections: Objections at 4 Privilege and Request for Pretrial hearing ¶ 9, at 5,
filed June 25, 2018 (Doc. 756)("Motion to
Quash")(asserting that C. Garcia is unavailable as a
witness, because he will invoke his right to remain
silent if he is compelled to take the stand); July 3 Tr.
at 30:20-24 (Court)(granting C. Garcia's Motion to
Quash and stating that "Mr. C. Garcia will be
excused from the proceedings, ... because he is
going to ... invoke his Fifth Amendment privilege
and no testify at trial"). The statement exposed
C. Garcia to criminal liability, because he is
explaining how he avoided suspicion in the Dix
murder.
A. Cordova contends that rule 804(b)(3) does not
apply to these statements, because they are not
against A. Cordova's interests. See Objections at 4.
Rule 804(b)(3)'s applicability depends on the
declarant's interests, not the party against whom the
statement is being introduced. See Fed. R. Evid.
804(b)(3) (describing a statement against interest is
one for which "a reasonable person in the declarant's
position would have made only if the person
believed it to be true"); Witham v. Mabry, 596 F.2d
293, 296 (8th Cir. 1979)(explaining that the rationale
for the statement-against-interest exception to the
rule against hearsay is that a declarant is not likely to
say something untruthful if the statement goes
against the declarant's interests).
The statement is not admissible for its truth under
rule 801(d)(2)(E), because the Dix Conspiracy had
ended when C. Garcia made this statement. See
James Proffers at 14 (stating that C. Garcia made this
statement after Dix was murdered).
THE STATEMENTS ARE ADMISSIBLE.
Statement 28: "We're friends. If I go [to This statement is admissible for its truth under rule
Las Vegas] and come back and it's [(the 801(d)(2)(E), because C. Garcia made the statement
murder)] not done, we won't be friends." to Montoya to further the conspiracy by instructing
and encouraging — i.e., implicitly threatening —
Declarant: Chris Garcia Montoya to get Montoya to participate in the Dix
murder.
Date: On or before February 4, 2005
THE STATEMENT IS ADMISSIBLE.
Source: Mario Montoya
Basis for admission: Statement made to
induce enlistment or further
participation in the group's activities, to
prompt further action on the part of the
conspirators, to reassure members of a
conspiracy's continued existence, and/or
keep coconspirators abreast of an
ongoing conspiracy's activities.
Statement 29: At the James Hearing, the United States explained
that A. Cordova and Montoya, pursuant to the Dix
Cordova and Montoya gave Dix $50 Conspiracy, arranged to buy drugs from Dix and then
dollars [sic] for drugs and expected Dix follow Dix. See July 3 Tr. at 56:7-19 (Castellano).
to take them to a secluded location to
complete the transaction. Montoya may testify as to his own experiences and
observations without implicating the rules against
Declarant: Anthony Cordova, Mario hearsay.
Montoya22
If Montoya testifies about a specific statement that
Date: On or before February 4, 2005 A. Cordova made, such a statement will be
admissible as a statement made by a party opponent
Source: Mario Montoya under rule 801(d)(2)(A).
Basis for admission: Statement made to If Montoya testifies about statements he made to Dix
induce enlistment or further or A. Cordova during this incident, those statements
participation in the group's activities, to are admissible for their truth under rule 801(d)(2)(E),
prompt further action on the part of the because Montoya's statements were made in the
conspirators, to reassure members of a course and furtherance of the Dix Conspiracy.
conspiracy's continued existence, keep
coconspirators abreast of an ongoing MONTOYA'S TESTIMONY ABOUT BOTH A.
conspiracy's activities, and/or are CORDOVA'S ACTIONS AND A. CORDOVA'S
statements regarding the roles of other STATEMENTS IS ADMISSIBLE.
coconspirators.
Statement 30: Cordova got rid of his car A. Cordova objects to this statement's admissibility,
about a week later after the Dix murder. arguing that it is an "alleged act" and not a statement.
Objections at 5. A. Cordova argues that there is no
Declarant: Anthony Cordova basis for "finding that Mr. Cordova said this to Dix,"
and that "the evidence indicates that Montoya neither
Date: After February 4, 2005 saw Mr. Cordova get rid of the car or heard him say
he did so, because Montoya and Mr. Cordova had no
Source: Mario Montoya contact after seeing each other at Garcia's house
right after February 5, 2005." Objections at 5 (citing
Basis for admission: Statement made to Federal Bureau of Investigation CHS Reporting
avoid detection by law enforcement. Document at 1, filed June 27, 2018
(Doc. 760-2)(stating that, "[a]fter the murder, CHS
Objections: Objections at 5 and A. CORDOVA parted ways and never spoke
about it")).
A. Cordova is correct that getting rid of a car is an
action and not a statement but introducing evidence
regarding a person's non-assertive conduct does not
require an exception — or a rule 801(d) exclusion —
to the rule against hearsay, because non-assertive
conduct cannot be hearsay in the first place.
At the July 3 James Hearing, the United States
explained that, on the night of the murder,
A. Cordova told Montoya that he was planning to
get rid of his car, and actually did get rid of his car.
See July 3 Tr. at 57:18-20 (Castellano). Montoya
may testify as to A. Cordova's statements, because
A. Cordova's statements are admissible under rule
801(d)(2)(A) as a statement made by a party
opponent. They are also admissible under rule
803(3) as statements of A. Cordova's then-existing
state of mind, specifically his plan.
A. CORDOVA'S STATEMENTS ARE
ADMISSIBLE.
Statement 31: Chris Garcia told Julian This statement is not admissible for its truth under
Romero that he wanted Shane Dix dead. rule 801(d)(2)(E), because C. Garcia made this
Garcia attempted to hire Romero to kill statement months before Dix died, so there is no
Dix by offering to give Romero $10,000 indication that the Dix Conspiracy existed when
and a 9mm gun a few months before Dix C. Garcia made this statement.
was murdered.
C. Garcia's statement that he wants Dix dead is
Declarant: Chris Garcia admissible under rule 803(3) as a statement of
C. Garcia's then-existing state of mind. That
Date: On or before February 4, 2005 C. Garcia offered Romero a gun and money to kill
Dix is admissible as an action that C. Garcia took —
Source: Julian Romero albeit an action accomplished with words — and not
as an assertion. That action is relevant, because it is
Basis for admission: Statement made to circumstantial evidence of C. Garcia's state of mind,
induce enlistment or further i.e., to show that C. Garcia's desire to kill Dix was
participation in the group's activities, to sincere and strong enough for C. Garcia to take
prompt further action on the part of the action to effectuate that desire.
conspirators, to reassure members of a
conspiracy's continued existence, keep THE STATEMENTS ARE ADMISSIBLE.
coconspirators abreast of an ongoing
conspiracy's activities, identify other
members of the conspiracy, and/or are
statements regarding the roles of other
coconspirators.
Statement 32: Chris Garcia asked Billy This statement is not admissible for its truth under
Cordova to kill Shane Dix. rule 801(d)(2)(E), because there is no indication that
the Dix Conspiracy existed when C. Garcia made
Declarant: Chris Garcia this request (if B. Cordova had agreed to kill Dix,
that would have created a conspiracy to kill Dix,
Date: On or before February 4, 2005 however).
Source: Billy Cordova That C. Garcia asked B. Cordova to kill Dix is
admissible as an action that C. Garcia took — albeit
Basis for admission: Statement made to an action accomplished with words. Such actions,
induce enlistment or further e.g., "pass me that wrench, please," can only be
participation in the group's activities, to hearsay if they are intended as assertions. C. Garcia
prompt further action on the part of the might have intended to assert that he wanted Dix
conspirators, to reassure members of a dead when asking B. Cordova to kill him, but such
conspiracy's continued existence, keep an assertion would be admissible under rule 803(3)
coconspirators abreast of an ongoing as a statement of C. Garcia's then-existing state of
conspiracy's activities, identify other mind. Thus, this statement is either non-assertive
members of the conspiracy, and/or are conduct — in which case it is not hearsay — or is
statements regarding the roles of other admissible hearsay under rule 803(3).
coconspirators.
THE STATEMENT IS ADMISSIBLE.
Statement 33: Richard Gallegos told This statement is admissible for its truth as a
Melody Ortiz to contact a male and coconspirator's statement under rule 801(d)(2)(E).
"tell him Tone sent you." The United States contends that Gallegos, Ortiz,
and A. Cordova are members of a Distribution
Declarant: Richard Gallegos Conspiracy.. See Conspiracy List at 2. The Court
presumes that the United States intends to show that
Date: On or about June 13, 2016 Gallegos' statement to Ortiz to contact someone
and tell him that "Tone sent [him]" is a statement
Source: Jail call recording made to further the conspiracy to distribute drugs
into a prison and that the conspiracy was tied to the
Basis for admission: Statement made to SNM.
induce enlistment or further
participation in the group's activities, to A. Cordova objects to this statement's admission
prompt further action on the part of the for several reasons. See Objections at 5. First,
conspirators, to reassure members of a A. Cordova argues that this statement is not alleged
conspiracy's continued existence, keep to have been made during the course and in
coconspirators abreast of an ongoing furtherance of the Dix Conspiracy, nor has the
conspiracy's activities, identify other United States shown that this statement was made
members of the conspiracy, and/or are in furtherance of any other conspiracy. See
statements regarding the roles of other Objections at 5. The Court has since determined by
coconspirators. a preponderance of the evidence that Gallegos,
A. Cordova, and Ortiz are part of the Distribution
Objections: Objections at 5 Conspiracy. See FOF ¶ 2. Consequently,
statements made in the course and furtherance of
the Distribution Conspiracy are admissible under
rule 801(d)(2)(E).
Second, A. Cordova argues the United States has
not shown why this statement and/or the related
conspiracy are relevant to the charges against
A. Cordova. See Objections at 5. Relevancy is a
very low bar; rule 401 provides that evidence is
relevant if it has "any tendency to make a fact more
or less probable," and that the "fact is of
consequence in determining the action." Fed. R.
Evid. 401. To return a guilty verdict in this case,
the jury will need to conclude, beyond a reasonable
doubt, that the SNM is an "enterprise engaged in
racketeering activity." 18 U.S.C. § 1959. Drug
trafficking is racketeering activity. See 18
U.S.C. § 1961(a). An SNM-related conspiracy to
distribute drugs in prison makes it more likely that
the SNM is an enterprise engaged in racketeering
activity, so evidence regarding such a conspiracy is
relevant under rule 401.
Third, A. Cordova argues that, although he is
sometimes known as "Antone," there is no evidence
that he is known by "Tone." Objections at 5.
Whether "Tone" refers to A. Cordova may bear on
the statement's relevance and overall credibility,
but the uncertainty is not a sound basis for the
Court to exclude the statement.
THE STATEMENT IS ADMISSIBLE.
Statement 34: Gallegos told Ortiz to find This statement is admissible for its truth as a
addresses to give to another male so that coconspirator's statement under rule 801(d)(2)(E).
his "paperwork" could be sent to him. At the July 3 James Hearing, the United States
explained that "paperwork" refers to drugs, and that
Declarant: Richard Gallegos Statement 34 relates to the Distribution Conspiracy.
See July 3 Tr. at 58:18-23 (Castellano). The Court
Date: On or about June 13, 2016 determined that A. Cordova is a member of the
Distribution Conspiracy. See FOF ¶ 1; July 3 Tr. at
Source: Jail call recording 58:24-59:1 (Court). Consequently, the statement is
admissible under rule 801(d)(2)(E), because it is a
Basis for admission: Statement made to statement made in the course and furtherance of a
induce enlistment or further conspiracy in which A. Cordova is a member.
participation in the group's activities, to
prompt further action on the part of the THE STATEMENT IS ADMISSIBLE.
conspirators, to reassure members of a
conspiracy's continued existence, keep
coconspirators abreast of an ongoing
conspiracy's activities, identify other
members of the conspiracy, are
statements regarding the roles of other
coconspirators, and/or to avoid detection
by law enforcement.
Objections: Objections at 5-6
Statement 35: Gallegos and Cordova A. Cordova's statements are admissible as
called Ortiz and Sylvia Gutierrez to statements made by a party opponent under rule
arrange for the delivery of drugs in to the 801(d)(2)(A).
facility
The statements by Gallegos, Ortiz, and Gutierrez are
Declarant: Richard Gallegos, Anthony admissible for their truth as coconspirator statements
Cordova, Melody Ortiz, and Sylvia under rule 801(d)(2)(E), because they are made in
Gutierrez the course and furtherance of the Distribution
Conspiracy. The United States may, however, have
Date: On or about June 13, 2016 to overcome a rule 403 objection to show that the
statements' probative value is not substantially
Source: Jail call recording outweighed by a danger of unfair prejudice,
confusing the issues, misleading the jury, undue
Basis for admission: Statement made to delay, wasting time, or needlessly presenting
induce enlistment or further cumulative evidence. See Fed. R. Civ. P. 403.
participation in the group's activities, to
prompt further action on the part of the THE STATEMENTS ARE ADMISSIBLE.
conspirators, to reassure members of a
conspiracy's continued existence, keep
coconspirators abreast of an ongoing
conspiracy's activities, identify other
members of the conspiracy, and/or are
statements regarding the roles of other
coconspirators.
Objections: Objections at 6.
Statement 36: "`Pup' wants to send us a Baca's statements are not admissible for their truth
message to `Creeper'" — who we believe under rule 801(d)(2)(E), because Baca did not make
was Jerry Armenta's "family that they the statement in the course and in furtherance of a
will be harmed if he testifies for the conspiracy in which A. Cordova was a part. Because
state. `Pup' wants the family to know the declarant is Baca, the statement appears to relate
`Creeper' is fucking up. If he takes the to a conspiracy to "intimidate/retaliate against a
stand against this pedo, against anybody, witness." Conspiracy List at 2. The United States
we're coming for your ass. `Pup' agrees contends that the Intimidation Conspiracy's
that Mario is the best person to deliver members are Baca and Mario Rodriguez. See
the message." Conspiracy List at 2. Rule 801(d)(2)(E) provides
that statements of coconspirators may only be used
Declarant: Anthony Ray Baca against an opposing party. See Fed. R. Evid. 801(d).
Because A. Cordova is not a member of the
Date: On or about November 2015 Intimidation Conspiracy, see FOF ¶ 3, Statement 36
cannot be admitted for its truth under that rule.
Source: not identified23
Baca's statement that he wanted others to threaten a
Basis for admission: Statement made to witness' family is admissible under rule 803(3),
induce enlistment or further because it expresses Baca's then-existing state of
participation in the group's activities, to mind — i.e., his desire to intimidate a witness and his
prompt further action on the part of the family.
conspirators, to reassure members of a
conspiracy's continued existence, to Baca's statement that he wants Creeper's family to
allay a coconspirator's fears, keep know that Creeper is "fucking up" is also admissible
coconspirators abreast of an ongoing under 803(3), because it expresses his then-existing
conspiracy's activities, identify other desire to intimidate a witness and his family.
members of the conspiracy, are
statements regarding the roles of other Baca's statement that he wants Creeper and his
coconspirators, and/or to avoid detection family to understand that SNM will retaliate against
by law enforcement. Creeper for testifying is also admissible under
803(3), because it expresses his then-existing desire
Objections: Objections at 6 to intimidate a witness and his family.
Baca's statement that Mario is the best person to
deliver a message threatening Creeper and his family
is not being offered to prove the truth of the matter
asserted, i.e., that Mario was actually the best person;
instead, the United States is offering it for a non-hearsay
purpose, as circumstantial evidence of
Baca's thoughts, plans, and beliefs.
THE STATEMENTS ARE ADMISSIBLE.
Statement 37: "`Pup' and CHS are This statement is not admissible for its truth under
talking with Mario Montoya. `Pup' says rule 801(d)(2)(E), because Baca did not make the
he is working on getting Mario guns." statement in the course and in furtherance of a
conspiracy in which A. Cordova was a part. This
Declarant: Anthony Ray Baca statement relates to the Santistevan, Vigil, Marcantel
Conspiracy, and A. Cordova is not a member of that
Date: On or about November, 2015 conspiracy. See FOF ¶ 3; Conspiracy List at 2.
Source: not identified The statement "Pup and CHS are talking with Mario
Montoya" appears to not be a statement, but rather
Basis for admission: Statement made to context provided by the United States.
induce enlistment or further
participation in the group's activities, to Baca's statement that he is "is working on getting
prompt further action on the part of the Mario guns" is not admissible to show its truth, i.e.,
conspirators, to reassure members of a to show that Baca actually was working on getting
conspiracy's continued existence, keep Mario guns. It would be admissible, however, as
coconspirators abreast of an ongoing circumstantial evidence of Baca's plan to have Mario
conspiracy's activities, identify other use a gun as part of his larger conspiracy.
members of the conspiracy, and/or are
statements regarding the roles of other THE STATEMENTS ARE ADMISSIBLE, BUT
coconspirators. NOT FOR THE TRUTH OF THE MATTER
ASSERTED.
Objections: Objections at 6-7
Statement 38: "`Pup' wants research to Baca's statements are not admissible for their truth
be done on where Vigil and Santistevan under rule 801(d)(2)(E), because Baca did not make
live. He believes that the warden lives the statement in the course and in furtherance of a
on prison grounds on Oasis Street, but conspiracy in which A. Cordova was a part. Because
also observed other houses that could the declarant is Baca, this statement relates to the
belong to Vigil or Santistevan. He says Santistevan, Vigil, Marcantel Conspiracy, of which
it will be easier to get them if they do not A. Cordova is not a member. See FOF ¶ 3;
reside on the prison grounds. He also Conspiracy List at 2.
says he wants to bring down Bustos, a
former Associate Warden, who `Pup' Baca's statement that he wants someone to research
blames for sending him to the ADX. where Vigil and Santistevan live is admissible under
Pup' does not specify that he wants rule 803(3) as a then-existing mental state, because
Bustos hit, but it appears he wants the he expresses his intentions and plans.
get him in trouble. `Pup' believes that
Bustos owns a Santa Fe real estate Baca's statements about where the warden, Vigil,
company." and Santistevan live are not admissible for their truth
— i.e., to show where those individuals actually
Declarant: Anthony Ray Baca lived. They are admissible to show that Baca knew
those pieces of information — or at least thought that
Date: On or about October 2015 he did.
Source: not identified Baca's statement that he wants to "bring down" a
former Associate Warden is admissible under rule
Basis for admission: Statement made to 803(3), because it expresses his then-existing state of
induce enlistment or further mind, i.e., his desire to harm the former Associate
participation in the group's activities, to Warden.
prompt further action on the part of the
conspirators, to reassure members of a Baca's statement that he blames the Associate
conspiracy's continued existence, keep Warden is admissible under rule 803(3), because it
coconspirators abreast of an ongoing expresses his then-existing state of mind, i.e., that he
conspiracy's activities, identify other blames the Associate Warden.
members of the conspiracy, and/or are
statements regarding the roles of other Baca's statement that the Associate Warden sent
coconspirators. Baca to ADX for its truth, but it is admissible as
circumstantial evidence of Baca's state of mind —
Objection: Objections at 7 i.e., that Baca felt aggrieved and wanted revenge.
Baca's statement that he wants Bustos to be in
trouble is admissible under rule 803(3), because it
expresses his then-existing state of mind, i.e., his
desire, intent, and plan to get Bustos into trouble.
Baca's statement that he believes that Bustos owns a
real estate company is not admissible for its truth,
i.e., to show that Bustos actually owned a real estate
company. The statement is admissible as
circumstantial evidence of Baca's state of mind, but
whether Baca believed that Bustos owned a real
estate company is not relevant.
BACA'S STATEMENTS THAT (i) HE WANTS
SOMEONE TO RESEARCH WHERE VIGIL
AND SANTISTEVAN LIVE; (ii) THAT HE
WANTS TO BRING DOWN BUSTOS;
(iii) THAT HE BLAMES BUSTOS; AND
(iv) THAT HE WANTS TO GET BUSTOS IN
TROUBLE ARE ADMISSIBLE FOR THEIR
TRUTH.
BACA'S STATEMENTS (i) ABOUT WHERE
THE WARDEN, VIGIL, AND SATISTEVEN
LIVE; AND (ii) THAT THE ASSOCIATE
WARDEN SENT BACA TO ADX ARE
ADMISSIBLE, BUT NOT FOR THEIR TRUTH.
BACA'S STATEMENT THAT HE BELIEVES
BUSTOS OWNS A REAL ESTATE COMPANY
IS NOT ADMISSIBLE.
Statement 39: "Pup" and the CHS are These statements are not admissible for their truth
talking about planning the hits and the under rule 801(d)(2)(E), because Baca did not make
best weapon to be used. them in the course and in furtherance of a conspiracy
in which A. Cordova was a part. These statements
"Pup" says, "What's a good cuete for relate to the Santistevan, Vigil, Marcantel
that? It has to be a revolver, carnal, not Conspiracy, and A. Cordova is not a member of that
an automatic. Automatic might jam. conspiracy. See FOF ¶ 3.
Those are easier to put a silencer on, too,
a homemade silencer, because it has a Baca's statements are not admissible for their truth —
barrel." i.e., to show the relative merits of semiautomatic
handguns and revolvers — under rule 803(3),
Declarant: Anthony Ray Baca because Baca expresses an opinion about the best
weapons for a certain situation, but does not express
Date: On or about November 2015 a motive, intent, or plan.
Source: not identified Baca's statements are admissible as circumstantial
evidence of Baca's state of mind — they show why
Basis for admission: Statement made to Baca subsequently asks for Michael Snow to obtain
induce enlistment or further a revolver.
participation in the group's activities, to
prompt further action on the part of the THE STATEMENTS ARE ADMISSIBLE., BUT
conspirators, to reassure members of a NOT FOR THEIR TRUTH.
conspiracy's continued existence, keep
coconspirators abreast of an ongoing
conspiracy's activities, identify other
members of the conspiracy, and/or are
statements regarding the roles of other
coconspirators.
Objections: Objections at 7-8
Statement 40: "Pup" and the CHS are These statements are not admissible for their truth
talking about Michael Snow. "Pup" tells under rule 801(d)(2)(E), because Baca did not make
the CHS, "Ask him if he could try to get them in the course and in furtherance of a conspiracy
me a cuete. If he could, just get one, and in which A. Cordova was a part.
I'll have him give it to somebody."
Specifically, "Pup" asks for a revolver. Baca's statement asking the CHS to ask Snow to get
him a cuete is not admissible for their truth under rule
Declarant: Anthony Ray Baca 803(3), because Baca's request does not express a
motive, intent, or plan.
Date: On or about November 2015
Baca's statement specifically asking for a revolver is
Source: not identified not admissible for their truth under rule 803(3),
because Baca's request does not express a motive,
Basis for admission: Statement made to intent, or plan.
induce enlistment or further
participation in the group's activities, to That Baca was asking for Snow to get a revolver is,
prompt further action on the part of the however, admissible to show that Baca was making
conspirators, to reassure members of a such a request. That Baca made such a request is
conspiracy's continued existence, keep relevant, because it is an overt act in furtherance of
coconspirators abreast of an ongoing the Santistevan, Vigil, Marcantel Conspiracy,
conspiracy's activities, identify other which, in turn, is relevant because it makes it more
members of the conspiracy, and/or are likely that the SNM is an enterprise engaged in
statements regarding the roles of other racketeering activity.
coconspirators.
Baca's statement that, if Snow can get a cuete, Baca
will have Snow give it to someone else, is admissible
under 803(3), because it expresses Baca's intent and
plan.
BACA'S STATEMENT THAT HE WILL HAVE
SNOW GIVE THE WEAPON TO SOMEONE
ELSE IS ADMISSIBLE.
BACA'S OTHER STATEMENTS ARE
ADMISSIBLE, BUT NOT FOR THEIR TRUTH.
Statement 41: To put this in context, this These statements are not admissible for their truth
is happening on December 3, 2015. under rule 801(d)(2)(E), because Baca did not make
"Mario should have done the hit over the them in the course and in furtherance of a conspiracy
night. `Pup' and CHS are wondering if in which A. Cordova was a part.
the feds are going to charge the SNM.
`Pup' talks about the steps the feds Baca's statement that Mario was supposed to have
would have to take, gather state done the hit overnight is not admissible for its truth
evidence, bring in STIU and local law under rule 803(3); at most, this statement expresses
enforcement. Baca's belief regarding what Mario was to have done
— according to their plan — to prove the truth of that
Declarant: Anthony Ray Baca belief.
Date: not identified That Baca was wondering about whether the federal
government was going to charge the SNM and his
Source: not identified speculation regarding the steps law enforcement
would have to take are admissible as circumstantial
Basis for admission: Statement made to evidence of Baca's consciousness of guilt.
induce enlistment or further
participation in the group's activities, to BACA'S STATEMENT THAT MARIO WAS
prompt further action on the part of the SUPPOSED TO HAVE DONE THE HIT
conspirators, to reassure members of a OVERNIGHT IS NOT ADMISSIBLE.
conspiracy's continued existence, keep
coconspirators abreast of an ongoing BACA'S MUSINGS REGARDING WHETHER
conspiracy's activities, identify other THE SNM WAS GOING TO GET CHARGED
members of the conspiracy, and/or are AND THE STEPS LAW ENFORCEMENT
statements regarding the roles of other WOULD HAVE TO TAKE ARE ADMISSIBLE,
coconspirators. BUT NOT FOR THEIR TRUTH.
Objections: Objections at 8
Statement 42: "The CHS asked `Pup' if These statements are not admissible for their truth
the SNM will get respect from the under rule 801(d)(2)(E), because Baca did not make
Mexican Mafia if Mario successfully them in the course and in furtherance of a conspiracy
kills the Secretary and all the carnales in which A. Cordova was a part. Because the
get sent into the federal system. declarant is Baca, this statement relates to either the
Intimidation Conspiracy or the Santistevan, Vigil,
`Pup' responds, `They already respect Marcantel Conspiracy, neither of which A. Cordova
us. And with us going over there like is a member. See Conspiracy List at 2.
that, with that type of fucking charge,
oh, yeah, they fucking — not only them' Baca's statement about the respect that SNM
— the Mexican Mafia — `everybody else receives is admissible under rule 803(3) to show
respects the fuck out of that shit.'" Baca's beliefs. The United States is not offering
those belief statements to prove that the SNM
Declarant: Anthony Ray Baca actually would have received respect if their plan
succeeded, so those statements do not fall into rule
Date: not identified 803(3)'s exception for statements of belief offered to
prove the truth of the matter believed.
Source: not identified
Basis for admission: Statement made to
induce enlistment or further
participation in the group's activities, to
prompt further action on the part of the
conspirators, to reassure members of a
conspiracy's continued existence, keep
coconspirators abreast of an ongoing
conspiracy's activities, identify other
members of the conspiracy, and/or are
statements regarding the roles of other
coconspirators.
Objections: Objections at 8-9
Statement 43: "Pup" is talking about These statements are not admissible for their truth
Jerry Armenta testifying. "And his under rule 801(d)(2)(E), because Baca did not make
family, his family gets hit. And that shit them in the course and in furtherance of a conspiracy
will hit the news, carnal. And they're in which A. Cordova was a part.
going to say the only motive behind that
has been because that fucker testified. Depending on the exact phrasing of these statements,
That shit hits the news, too. That gives they are either admissible under rule 803(3) as
us more power. Because of that fact, statements of Baca's then-existing state of mind —
everybody is going to know, a la specifically his motive for plotting to attack Armenta
verde, they're going to hit my family, if he testifies and his beliefs about what the
I'm never going to tell them." consequences of such an attack would be — or as
circumstantial evidence regarding those motivations
Declarant: Anthony Ray Baca or beliefs. If the statements are in the form of "I
believe that if we do X then Y will occur," or "My
Date: not identified motive to do X is so that Y will occur," then rule
803(3) applies. If the statements are in the form of
Source: not identified "If we do X then Y will occur" then the statements
are circumstantial evidence. Either way, the
Basis for admission: Statement made to statements are admissible, but if the statements are
induce enlistment or further admissible as circumstantial evidence of Baca's state
participation in the group's activities, to of mind then they are not admissible for their truth.
prompt further action on the part of the Likewise, 803(3) permits the statements to be
conspirators, to reassure members of a admitted to show Baca's beliefs, but not to prove the
conspiracy's continued existence, to truth of those beliefs.
allay a coconspirator's fears, keep
coconspirators abreast of an ongoing THE STATEMENTS ARE ADMISSIBLE TO
conspiracy's activities, identify other SHOW BACA'S BELIEFS AND STATE OF
members of the conspiracy, are MIND BUT NOT THE TRUTHS OF THE
statements regarding the roles of other BELIEFS.
coconspirators, and/or to avoid detection
by law enforcement.
Objections: Objections at 9
Statement at 44: He's referring to the These statements are not admissible for their truth
magazine. He says, "Well, the firearm under rule 801(d)(2)(E), because Baca did not make
didn't have a magazine. It needs a them in the course and in furtherance of a conspiracy
magazine to be fully loaded." So what in which A. Cordova was a part.
Garcia is explaining to Montoya is: "Put
the bullet in the fucker and then you can These statements are not admissible under rule
shoot it. Or you can get a clip and, you 803(3), because Baca instructs how to use a certain
know, do it the right way. Order a clip." weapon, but does not express a then-existing mental,
emotional, or physical condition.
Declarant: Anthony Ray Baca
THE STATEMENTS ARE NOT ADMISSIBLE.
Date: not identified
Source: not identified
Basis for admission: Statement made to
induce enlistment or further
participation in the group's activities, to
prompt further action on the part of the
conspirators, to reassure members of a
conspiracy's continued existence, to
allay a coconspirator's fears, keep
coconspirators abreast of an ongoing
conspiracy's activities, identify other
members of the conspiracy and/or are
statements regarding the roles of other
coconspirators.
Objections: Objections at 9-10
IT IS ORDERED that the Court makes Findings of Facts and particularized rulings on the admissibility of Plaintiff United States of America's proffered statements in the United States' Proffer Under Fed. R. Evid. 801(d)(2) and Objections, filed June 22, 2018 (Doc. 744-1), as described above.
