ORDER ON JAMES PROFFER

WILLIAM J. MARTÍNEZ, District Judge.

In this drug distribution case, ten co-defendants were charged by a Superseding Indictment with conspiracy to distribute, and to possess with the intent to distribute, methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii) & 846. (ECF No. 62.) Of those ten defendants, eight have pled guilty to one or more charges, while one remains a fugitive. Only one Defendant, Richard Avila (here, "Defendant," or "Mr. Avila"), now remains set to proceed to trial. In addition to the conspiracy charged in Count 1, he is charged in Count 8 with possession and distribution of methamphetamine, on or about October 15, 2015. (Id. at 4.) The remaining 23 counts of the Superseding Indictment are not charged against Mr. Avila.

Now before the Court is Defendant's Motion for Production of Co-Conspirator Statements and Request for a James Hearing. (ECF No. 248.) In response to this motion, the Government provided a James proffer listing 138 statements the Government indicates it will seek to offer at trial under the co-conspirator statements exception to the rule against hearsay, Federal Rule of Evidence 801(d)(2)(E). (ECF No. 257-1.) The Government also filed a brief in support of this proffer (ECF No. 257), to which Defendant has replied (ECF No. 283). Given this record, the Court's rulings regarding the provisional admissibility of these statements under Rule 801(d)(2)(E) are set out below.

I. NO HEARING NECESSARY

A district court can "only admit co-conspirator 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) (internal quotation marks omitted).1 Therefore, although a hearing is not required, the Tenth Circuit has expressed a "strong preference" for pretrial James proceedings. Id.2 The reason is that if a court provisionally admits a statement with the caveat that the Government "connect up" the statement to sufficient evidence of a predicate conspiracy at trial, the risk of prejudice to the defendants is high should the Government then fail to meet this burden. United States v. Urena, 27 F.3d 1487, 1491 (10th Cir. 1994). However, whether to hold a James hearing rests within the Court's discretion. Id.

The Court has reviewed the Government's proffer, the parties' briefing, and materials before the Court. Given the extensive nature of the proffer, the other facts and evidence of record before the Court, and the Court's findings below, a hearing is not necessary here. Moreover, since the Court reserves ruling as to the ultimate admissibility of evidence and makes no determinations here on any grounds other than Rule 801(d)(2)(E), the Government should introduce as much independently admissible evidence as possible to establish the predicate conspiracy before offering any statements under Rule 801(d)(2)(E).

II. LEGAL STANDARD

Federal Rule of Evidence 801(d)(2)(E) provides that a statement is "not hearsay" if it "is offered against an opposing party" and it "was made by the party's coconspirator during and in furtherance of the conspiracy." However, "[b]efore admitting statements into evidence under the coconspirator exception to the hearsay rule, the district court must determine by a preponderance of the evidence that (1) a conspiracy existed, (2) the declarant and the defendant were both members of the conspiracy, and (3) the statements were made in the course of and in furtherance of the conspiracy." Alcorta, 853 F.3d at 1137; Bourjaily v. United States, 483 U.S. 171, 175-76 (1987).

Whether this standard is satisfied is a "preliminary question about whether . . . evidence is admissible," meaning the Court "is not bound by evidence rules, except those on privilege," when resolving the question. Fed. R. Evid. 104(a); Bourjaily, 483 U.S. at 178-79. As the offering party, the Government bears the burden of showing the preliminary facts by a preponderance of the evidence. United States v. Perez, 989 F.2d 1574, 1577 (10th Cir. 1993) (en banc).

"The court may consider both independent evidence and the statements themselves when making this finding." Rutland, 705 F.3d at 1248; see also Bourjaily, 483 U.S. at 180 ("a co-conspirator's statements could themselves be probative of the existence of a conspiracy and the participation of both the defendant and the declarant in the conspiracy"). The Tenth Circuit requires "at most that there be some independent evidence linking the defendant to the conspiracy." Alcorta, 853 F.3d at 1142; see also United States v. Rascon, 8 F.3d 1537, 1541 (10th Cir. 1993) ("most courts require some reliable corroborating evidence apart from the coconspirator's statements before those statements may be used"). However, the independent evidence "need not be `substantial.'" Alcorta, 853 F.3d at 142.

III. FINDINGS AND ANALYSIS

The Government has proffered 138 "statements" that it represents it will seek to admit at trial as co-conspirator statements under Rule 801(d)(2)(E). (ECF No. 257-1.) The Court's rulings and analysis here address only the provisional admissibility of these statements under Rule 801(d)(2)(E), subject to the Government "connecting up" these statements with evidence at trial of the predicate conspiracy. See United States v. Owens, 70 F.3d 1118, 1123 (10th Cir. 1995).

The Government's briefing states both that its James proffer "generally does not include statements that the government intends to offer . . . under rules other than Rule 801(d)(2)(E)," and also that "some of the statements . . . are also admissible under alternate theories." (ECF No. 257 at 2.) These contradictory representations leave the Court unsure whether any determination under Rule 801(d)(2)(E) is necessary as to some unspecified part of the Government's proffer. In the Court's view, many of the proffered statements would be more naturally offered on some other evidentiary basis. Given the Tenth Circuit's admonition that "Rule 801(d)(2)(E) is a limitation on the admissibility of co-conspirators' statements that is meant to be taken seriously," Perez, 989 F.2d at 1578 (emphasis in original), and the potential for prejudice arising from unnecessary admission of evidence under Rule 801(d)(2)(E), see Urena, 27 F. 3d at 1491, the Court is reluctant to admit evidence under Rule 801(d)(2)(E) unnecessarily. Accordingly, and in light of the Court's reservation of ruling below, see Part III.C.2.b., this Order does not address admissibility (or lack thereof) on any grounds other than Rule 801(d)(2)(E).

A. Existence of a Conspiracy

As to the threshold question of whether a conspiracy existed, the Court readily finds the Government has discharged its burden. To prove that a conspiracy existed the Government must show: (1) two or more persons agreed to violate the law, (2) the defendants knew the essential objectives of the conspiracy, (3) the defendants knowingly and voluntarily participated in the conspiracy, and (4) the alleged co-conspirators were interdependent. United States v. Small, 423 F.3d 1164, 1182 (10th Cir. 2005).

To prove knowledge of the essential objectives of a conspiracy, the Government does not have to show a defendant knew all the details or all of the members of the conspiracy. Id. "Rather, the government only needs to demonstrate the defendant shared a common purpose or design with his alleged co-conspirators." United States v. Yehling, 456 F.3d 1236, 1240 (10th Cir. 2006) (citing United States v. Evans, 970 F.2d 663, 669 (10th Cir. 1992). "The core of a conspiracy is an agreement to commit an unlawful act." United States v. Esparsen, 930 F.2d 1461, 1471 (10th Cir. 1991). In this context, the element of illegality can be established from the proffered co-conspirator statements. United States v. Martínez, 825 F.2d 1451, 1452 (10th Cir. 1987). Direct evidence of a conspiracy is not required, and the conspiracy may be inferred from circumstantial evidence. United States. v. Bucaro, 801 F.2d 1230, 1232 (10th Cir. 1986) (citations omitted). It is also not required for every conspirator to "know of the . . . full extent of the conspiracy [as long as he has] a general awareness of both the scope and the objective of the enterprise." United States v. Eads, 191 F.3d 1206, 1210 (10th Cir. 1999) (brackets in original).

Applying these standards and the applicable burdens in this posture, the Government has met its burden of establishing that the defendants in this case were engaged in a conspiracy to distribute methamphetamine. Co-Defendant Eden Murillo was arrested on July 24, 2015 and charged with possession of methamphetamine with intent to distribute and firearms charges, based on drugs and guns found in a search of his residence. (See ECF Nos. 1-4; ECF No. 257 ¶ 25; ECF No. 192 ¶ 25.) While detained awaiting trial, Mr. Murillo placed phone calls from the facilities where he was detained to several of the other co-conspirators. These calls were recorded. A majority of the Government's James proffer constitutes recordings of Mr. Murillo's "jailhouse" telephone conversations with several co-defendants while detained. (ECF No. 257-1.) In particular, Mr. Murillo placed calls to co-defendants in the Denver area including his wife, Mandee Murillo, two of Mr. Avila's daughters, Krenshaw and Raquel Avila, and to Tanya Lindelien, who had been living with Mr. Murillo, and is also the mother of one of Mr. Avila's children. (ECF No. 257 ¶¶ 26-27; ECF No. 192 ¶¶ 19-20.)

In these jailhouse calls, Mr. Murillo directed the other co-Defendants and made arrangements for them to acquire methamphetamine to carry on his methamphetamine distribution operation in Colorado. Mr. Murillo also spoke by phone to co-Defendant Jesus Zamora Torres, who was the conspiracy's primary supplier of methamphetamine, in Arizona. Mr. Murillo arranged for Mr. Zamora Torres to have various of the co-Defendants acquire methamphetamine in Arizona and to transport it from Arizona to Colorado. (See, e.g., ECF No. 257-1 Nos. 8, 10, 11, 37, 42, 44, 47-48, 57, 89.) As the result of the activities carried out while Mr. Murillo was detained, and largely at his direction, the remainder of the co-defendants were charged in the Superseding Indictment on June 8, 2016, nearly a year after the original charges were filed against Mr. Murillo. (ECF No. 62.)

Given the ample evidentiary record tending to establish the above facts, the Court finds the Government has discharged its burden of showing by a preponderance of the evidence that this conspiracy to distribute methamphetamine existed. Defendant does not truly argue otherwise, instead contesting that the evidence fails to show that he was a part of this conspiracy.

B. Defendant's Participation in Conspiracy

Defendant points out—correctly—that only a small minority of the Government's proffered statements make any mention of him whatsoever. Nevertheless, the Court finds the proffered evidence reflecting Mr. Avila's connection with the conspiracy sufficient to make the preliminary showing required in this James determination.

Statements included in the Government's proffer and other evidence tending to show that Defendant was a member of the conspiracy include the following:

Viewing this evidence as a whole, and applying the standards applicable to the Court's preliminary determinations here, the Government has met the burden of showing by a preponderance of the evidence that Defendant was a participant in the conspiracy charged in Count 1 of the Superseding Indictment.

Defendant protests that the Government's proffer "twists and stretches the words of others," that "there is little to no evidence to support his participation or involvement" in the conspiracy, and that when understood in context, the Government is misinterpreting proffered statements which were unrelated to any illegal activity. (See ECF No. 283 at 2, 4.) For example, with respect to conversations between Mr. Murillo and Raquel Avila, Defendant argues they "demonstrate nothing more than a spat between a father and daughter," and show "that Mr. Avila and Raquel were not even speaking to one another" at the time. (ECF No. 283 at 10.) Likewise, Defendant argues that other statements in the Government's proffer relate to personal disputes between Mr. Avila, his daughters, Ms. Lindelien (the mother of one of his children), and Mr. Murillo (then in a relationship with Ms. Lindelien), and have nothing to do with drug distribution. (See ECF No. 283 at 13.) And, Defendant argues that the references to money he owed to Ms. Lindelien were "related to payment for rent," not for any drug-related debts. (Id.)

Defendant's explanations for the proffered communications, might, if accepted by a jury, tend to defeat the Government's evidence at trial. However, viewing the record as a whole under the standards applicable here, it is more likely than not that Defendant was involved in the conspiracy to distribute methamphetamine. The proffered communications arose in the context of conversations that were predominantly discussing methamphetamine distribution. It is more likely that the relevant statements—such as Mr. Murillo "building a team," representing that Defendant was "about to go work," or regarding thousands of dollars owed to Ms. Lindelien because he "burned me"—related to drug sales than to unrelated matters.

Moreover, Defendant's communications connected to the October 15, 2015 methamphetamine sale, his February 2016 contact with Mr. Navidad Sanchez, and his communications with Mr. Navidad Sanchez immediately preceding seizure of the methamphetamine in Mr. Navidad Sanchez's vehicle undermine Defendant's contention that he had no connection to the methamphetamine conspiracy. Although he correctly argues that "[m]ere association with conspirators, even with knowledge of their involvement in crime, is insufficient to prove participation in their conspiracy" (ECF No. 283 at 11 (quoting United States v. Fox, 902 F.2d 1508, 1514 (10th Cir. 1990)), the Court finds that the Government has discharged its burden to show that Mr. Avila participated in the conspiracy.

C. Provisional Admissibility—Statements in the Course and in Furtherance of the Conspiracy

The remaining prerequisites for admissibility under Rule 801(d)(2)(E) are that the statements "were made [1] in the course of and [2] in furtherance of the conspiracy." Alcorta, 853 F.3d at 1137.

1. Legal Principles

"A co-conspirator statement is made `during the course' of the conspiracy if it is made before the objectives of the conspiracy have either failed or been achieved." Owens, 70 F.3d at 1126 (internal quotation marks omitted); see also Krulewitch v. United States, 336 U.S. 440, 442-43 (1949) (holding that a declaration made after the conspiracy's "objectives either had failed or had been achieved" was inadmissible because it was not made during and in furtherance of the conspiracy). Statements made by co-conspirators during the conspiracy are admissible against a defendant who subsequently joins the conspiracy. United States v. Brown, 943 F.2d 1246, 1255 (10th Cir. 1991). However, to avoid improperly broadening the scope of conspiracy prosecutions, the Court "must carefully ascertain the nature and extent of a conspiracy in determining whether acts or statements can properly be viewed as made during its existence." Perez, 989 F.2d at 1579.

"[T]he in-furtherance requirement . . . embodies the [Rule] drafters' desire to strike a balance between the great need for conspirators' statements in combating undesirable criminal activity which is inherently secretive and difficult of proof, and the need to protect the accused against idle chatter of criminal partners as well as inadvertently misreported and deliberately fabricated evidence." Alcorta, 853 F.3d at 1137 (quoting Perez, 989 F.2d at 1578). "A wide array of statements can fit this requirement." Id. "Examples of statements which may be found to satisfy the `in furtherance' requirement include statements made to induce enlistment or further participation in the group's activities; statements made to prompt further action on the part of conspirators; statements made to reassure members of a conspiracy's continued existence; statements made to allay a co-conspirator's fears; and statements made to keep co-conspirators abreast of an ongoing conspiracy's activities." Perez, 989 F.2d at 1478. On the other hand, "statements are not in furtherance of the conspiracy if they are mere narratives, that is statements relating to past events, even those connected with the operation of the conspiracy where the statement serves no immediate or future conspiratorial purpose." Id. at 1578 (internal quotation marks omitted).

Notably, the Tenth Circuit calls for "a construction of the `in furtherance' requirement protective of defendants," and applies this test "narrowly." Perez, 989 F.2d at 1478. The focus is "on the declarant's intent in making the statement," rather than on the statement's effect. Id. However, "[n]o talismanic formula exists for ascertaining whether a particular statement was intended by the declarant to further the conspiracy and is therefore admissible in accordance with the agency theory of conspiracy. To the contrary, this determination must be made by examining the context in which the challenged statement was made." Id. at 1578-79.4

2. Application

The Court first addresses the statements which mention Mr. Avila, then those that do not.

a. Statements Related to Mr. Avila

In the Court's review (and based on the parties' briefing), only 15 of the 138 proffered statements mention or on their face relate to Mr. Avila. The Court generally finds these statements were made in the course of and in furtherance of the charged conspiracy, and they are therefore provisionally admissible under Rule 801(d)(2)(E), as follows.

Statements 13, 18, 52, 53, and 67: These proffered statements reflect efforts, beginning August 5, 2015, to recruit Mr. Avila into the conspiracy, to placate disagreements between himself and other members of the conspiracy, and to confirm Mr. Avila's participation in the conspiracy. These culminate in Ms. Lindelien's representation on September 28, 2015 that Mr. Avila was "about to go work." (See ECF No. 257-1 ## 13, 18, 52, 52, 67.) Since Mr. Avila was implicated in the sale of methamphetamine with other co-conspirators shortly thereafter, on October 15, 2015, the Court finds these statements reflect a successful attempt to recruit Mr. Avila and were therefore made in the course of and in furtherance of the conspiracy, even assuming Mr. Avila did not join the conspiracy until approximately September 28, 2015. See Brown, 943 F.2d at 1255.

Statement 71: Proffered statement 71 summarizes multiple recorded phone calls and video and audio recordings documenting the October 15, 2015 methamphetamine sale charged in Count 8. (ECF No. 257-1 at 74-75.) This evidence tends to show that Ms. Lindelien and Ms. Saldana-Rea sold methamphetamine to the undercover agent, and that Mr. Avila played a role in this sale, including by directing Ms. Saldana-Rea to meet with Ms. Lindelien and by providing Ms. Lindelien the location of the sale. The Court finds the actions comprising the October 15, 2015 methamphetamine sale were undertaken in the course and in furtherance of the conspiracy.

However, the Government's proffer of the multiple recorded calls, audio, and video materials documenting these actions is too general to permit any meaningful pretrial rulings regarding admissibility of this "statement" as a whole. The Court is also unconvinced that these recordings will be best offered and analyzed under Rule 801(d)(2)(E). Much of this material is presumably not hearsay at all, while other portions may be admissible on other grounds.

Accordingly, the Court defers ruling as to the admissibility of any part of these materials under Rule 801(d)(2)(E), while noting that any true co-conspirator statements made in connection with the October 15, 2015 transaction which are not admitted on other, simpler evidentiary grounds will likely be admissible under Rule 801(d)(2)(E) following a predicate showing by the Government.

Statement 79: This recording of Ms. Lindelien telling the undercover agent she would need to call Mr. Avila before being ready to go ahead with a methamphetamine sale was made in the course and in furtherance of the conspiracy, and is provisionally admissible under Rule 801(d)(2)(E), although the Court remains skeptical that this is the best or only way to seek admission of a recorded phone conversation involving a law enforcement agent who will testify at trial.

Statements 110, 112, 113, 116, 119, 120, and 129: These additional recorded conversations describe in various ways the debt allegedly owed to Ms. Lindelien by Mr. Avila for drugs, and the consequences of that debt on the conspiracy's ability to operate, including to obtain additional methamphetamine. The Court finds these statements were made in the course and in furtherance of the conspiracy and, to the extent they are not more logically admissible on some other basis, these statements are provisionally admissible under Rule 801(d)(2)(E).

Statement 138: These text messages transmitted between Mr. Avila and Mr.Navidad Sanchez on March 4, 2016 immediately precede Mr. Navidad Sanchez's departure from Arizona in a car containing methamphetamine. They were made in the course and in furtherance of the conspiracy. If not more readily admissible on some other basis, these statements are also provisionally admissible under Rule 801(d)(2)(E).

As to all of the statements addressed above, the Court rejects Defendant's argument that the Government has insufficiently specified start and end dates of the conspiracy, or when it was joined by various conspirators. The evidence is sufficient to show that the conspiracy was underway and ongoing at the time each of these statements was made. Likewise, the Court rejects Defendant's argument that the statements pertaining to him were not made in furtherance of the conspiracy. Consistent with the Court's review of the relevant evidence, supra, Part III.B., the Government has made the necessary showing under Rule 801(d)(2)(E) that these statements were made to advance the conspiracy's goals. See Alcorta, 853 F.3d at 1137 ("A wide array of statements can fit this requirement").

b. Statements Not Related to Mr. Avila

The remainder of the Government's James proffer includes statements by other co-conspirators which do not mention Mr. Avila and do not relate to his alleged participation in the conspiracy. This is understandable, since at the time the Government filed its James proffer on March 3, 2017, nine defendants remained in this case, including among others, Ms. Lindelien, Mandee Murillo, and Raquel Avila, all of whom are among those most directly implicated in the bulk of the Government's James proffer.

Since then, however, all defendants other than Mr. Navidad Sanchez (who remains a fugitive) and Mr. Avila have entered guilty pleas, leaving this case set for trial only against Mr. Avila. As a practical matter, this presumably strengthens the Government's ability to "connect up" its proffered statements to trial evidence regarding the predicate conspiracy. However, the Court also tends to agree with Mr. Avila—at least in part—that given the present posture of this case, the Government's sweeping proffer relating to the conduct of defendants who are not proceeding to trial will, at some point, become of marginal relevance as to Mr. Avila, and will become cumulative, a waste of time, or unduly prejudicial against Mr. Avila as a sole Defendant, contrary to Rule 403. (See ECF No. 356 at 2-3.)

In addition, in the Court's view, many of the proffered statements are likely to be more simply admitted on some basis other than Rule 801(d)(2)(E). Notably, five of the named co-defendants to the conspiracy charge are now listed on the parties' disclosed trial witness lists, which the Government obviously did not know would be the case when it made its proffer. (ECF Nos. 350-1 & 351-1.) These likely witnesses include Ms. Lindelien and Raquel Avila, who were among the most frequent recipients of Mr. Murillo's jailhouse phone calls, as well as Ms. Saldana-Rea, who participated in the October 15, 2015 transaction. Other of the proffered "statements" include recorded calls involving the undercover agent, who is expected to testify. In addition, the Court rather strongly expects that among the 44 witnesses the Government has disclosed in this now one-defendant, two-count prosecution (ECF No. 351-1), foundational witnesses from the detention facilities where Mr. Murillo's telephone calls were recorded will be called to testify.

Given these considerations and the current posture of this case, the Court declines to enter individual rulings under Rule 801(d)(2)(E) as to the remaining 123 proffered statements. Since it is unlikely the Government would actually seek (or be permitted) to introduce all of these proffered statements against Mr. Avila, the Court will not pick and choose which of the Government's evidence should form its case against this Defendant, given the developments since the Government made its James proffer. The Government will need to carefully review its proffer and evidence and make realistic determinations as to which of the proffered statements it will actually seek to introduce against Mr. Avila pursuant to Rule 801(d)(2)(E), which are more readily offered on some other basis, and at what point the evidence will simply become too cumulative and prejudicial to be admitted in a single-defendant case consistent with Rule 403, even if it is marginally probative of the conspiracy charge against Mr. Avila.

To the extent the Government does seek to introduce additional co-conspirator statements not addressed above, it will need to make an additional proffer to the Court outside the jury's presence as to the admissibility of such evidence under both Rule 801(d)(2)(E) and Rules 401-03. The Court may require the Government to introduce any such statements only after introducing sufficient evidence to establish the predicates of Rule 801(d)(2)(E), including the existence of a conspiracy and Mr. Avila's participation in it.

IV. SUMMARY OF RULINGS

For convenience, the Court summarizes its rulings above as follows:

V. CONCLUSION

For the reasons set forth above, the Court ORDERS as follows: