MEMORANDUM OPINION AND ORDER

James O. Browning, UNITED STATES DISTRICT JUDGE.

THIS MATTER comes before the Court on: (i) Defendant Santos Gonzales' Motion for Production of Alleged Co-Conspirator Statements, Pre-Trial Hearing on Their Admissibility Pursuant to Fed.R.Evid. 801(d)(2)(E), filed May 9, 2017 (Doc. 1141)("Gonzales Motion"); (ii) Defendant Rudy Perez's Motion for Production of Alleged Co-Conspirator Statements and for Pre-Trial Hearing on Their Admissibility, filed August 21, 2017 (Doc. 1228)("Perez Motion"); (iii) the Opposed Motion for Specification of Co-Conspirator Statements and a Pre-Trial Hearing on the Statements' Admissibility, filed October 6, 2017 (Doc. 1303)("C. Garcia Motion"); (iv) Motion to Prevent the Admission of Statements of Non-Testifying Codefendants Implicating Defendant Billy Garcia and for an Order for the Government to Specify Such Statements Prior to Trial, filed October 10, 2017 (Doc. 1307)("B. Garcia Motion"); (v) Motion for James Hearing and Determination of Co-Conspirator Statements Admissibility at a Pre-Trial Hearing, filed October 13, 2017)(Doc. 1317)("J. Gallegos Motion"); (vi) Defendant Shauna Gutierrez' Opposed Motion for a James Hearing, filed October 13, 2017 (Doc. 1321)("Gutierrez Motion"); (vii) Motion in Limine to Exclude Statement of Cooperating Government Witnesses, filed November 30, 2017 (Doc. 1514)("Perez MIL"); (viii) Opposed Motion in Limine to Exclude Co-Defendant's [sic] Statements, filed December 1, 2017 (Doc. 1517)("C. Garcia MIL"); (ix) Defendant Anthony Ray Baca's Motion in Limine to Prohibit the Government From Questioning Jerry Armenta About Defendant Anthony Ray Baca's Involvement in Counts 6 & 7, filed December 4, 2017 (Doc. 1540)("Baca MIL"); (x) 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 January 8, 2018 (Doc. 1616)("Sanchez MIL"); and (xi) the Joint Motion to Renew Motion to Sever Defendants Charged with Offenses in Counts 6 and 7, filed January 21, 2018 (Doc. 1664)("Severance Motion"). The Court held hearings on November 27-29, 2017, December 8, 2017, December 19-20, 2017, and January 9, 2018. See Transcript of Hearing (held November 27, 2017), filed December 6, 2017 (Doc. 1545)("Nov. 27 Tr."); Transcript of Hearing (held November 28, 2017), filed December 6, 2017 (Doc. 1546)("Nov. 28 Tr."); Transcript of Hearing (held November 29, 2017), filed December 6, 2017 (Doc. 1547)("Nov. 29 Tr."); Transcript of Hearing (held December 8, 2017), filed December 15, 2017 (Doc. 1577)("Dec. 8 Tr."); Transcript of Hearing (held December 19, 2017), filed January 4, 2018 (Doc. 1608)("Dec. 19 Tr."); Transcript of Hearing (held December 20, 2017), filed January 5, 2018 (Doc. 1610)("Dec. 20 Tr."); Transcript of Hearing (held January 9, 2018), filed January 24, 2018 (Doc. 1683)("Jan. 9 Tr."). The primary issues are whether the out-of-court statements — largely statements of Defendants Daniel Sanchez, Anthony Ray Baca, Carlos Herrera, and Rudy Perez, and of cooperating Defendants and other inmates — that Plaintiff United States of America intends to offer in evidence at trial to prove the matter asserted: (i) can be admitted notwithstanding the Sixth Amendment to the Constitution of the United States of America's Confrontation Clause; (ii) can be admitted for their truth, because — as coconspirator statements made during and in furtherance of the conspiracy, see Fed. R. Evid. 801(d)(2)(E) — they are not hearsay; (iii) can be admitted, even though they are hearsay, as statements against penal interest made by an unavailable declarant, see Fed. R. Evid. 804(b)(3); (iv) can be admitted for their truth, because, as admissions offered against Baca, Herrera, or Perez, see Fed. R. Evid. 801(d)(2)(A), they are not hearsay; (v) can be admitted, with a limiting instruction, in a joint trial if the statement is nontestimonial, incriminates multiple Defendants, and is admissible against some — but not all — of those Defendants; and (vi) necessitate sufficiently many limiting instructions that the Court should alter how the case should be tried. The Court analyzes individually the out-of-court statements at issue and concludes that it can admit nontestimonial statements that are admissible against only some of the Defendants if it gives a limiting instruction. While there will be multiple limiting instructions, the United States' willingness to Bruton-ize1 Baca's, Herrera's, and Perez' statements removes statements that one Defendant made and that directly incriminate other Defendants from the trial, so the jury will never hear those statements.2 Thus, while the Defendants are entitled to limiting instructions under the Federal Rules of Evidence, there is not much, if anything, that the jury could meaningfully use against the non-declarant Defendants. Using the statements in this way does not violate the Fifth or Sixth Amendments, and the Defendants will receive a just and fair trial.

FACTUAL BACKGROUND

The Court takes its background facts from the Second Superseding Indictment, filed March 9, 2017 (Doc. 947)("Indictment"). The background facts are largely unchanged from those that the Court provided in its Memorandum Opinion and Order, ___ F.Supp.3d ___, 2017 WL 6496441, filed December 18, 2017 (Doc. 1585). The Court does not set forth these facts as findings or the truth. The Court recognizes that the factual background largely reflects the United States' version of events and that the Defendants are all presumed innocent.

This case deals with crimes that the Syndicato de Nuevo Mexico ("SNM") allegedly committed through its members. Indictment at 2. SNM, through its members, operated in the District of New Mexico at all relevant times, and its members engaged in acts of violence and other criminal activities, "including murder, kidnapping, attempted murder, conspiracy to manufacture/distribute narcotics, and firearms trafficking." Indictment at 2. SNM constitutes an enterprise "as defined in Title 18, United States Code, Section 1959(b)(2), that is, a group of individuals associated in fact that engaged in, and the activities of which affected, interstate and foreign commerce." Indictment at 2-3.

SNM is a violent prison gang formed in the early 1980s at the Penitentiary of New Mexico ("PNM") after a violent prison riot at PNM during which inmates seriously assaulted and raped twelve correctional officers after taking them hostage. Superseding Indictment at 3. During the riot, thirty-three inmates were killed, and over 200 were injured. See Superseding Indictment at 3. After the PNM riot, SNM expanded throughout the state's prison system and has had as many as 500 members. See Indictment at 3. SNM now has approximately 250 members, and "a `panel' or `mesa' (Spanish for table) of leaders who issue orders to subordinate gang members." Indictment at 3. 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 at 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 profit from narcotics trafficking. See Indictment at 3-4. Members who fail "to show continued loyalty to the gang [are] disciplined in various ways, [] includ[ing] murder and assaults." Indictment at 4. SNM also intimidates and influences smaller New Mexico Hispanic gangs to expand its illegal activities. See Indictment at 4. If another gang does not abide by SNM's demands, SNM will assault or kill one of the other gang's members to show its power. See Indictment at 4. SNM's rivalry with other gangs also manifests itself in beatings and stabbings within the prison system. See Indictment at 4. 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 at 4. To show its strength and influence, SNM expects its members to confront and attack any suspected law enforcement informants, cooperating witnesses, homosexuals, or sex offenders. See Indictment at 5. To achieve its purpose of preserving its power, SNM uses intimidation, violence, threats of violence, assaults, and murder. See Indictment at 7. SNM as an enterprise generates income by having its members and associates traffic controlled substances and extort narcotic traffickers. See Indictment at 8. SNM's recent activities in a conspiracy to murder high-ranking New Mexico Corrections Department Officials inspired the Federal Bureau of Investigation's present investigation. See United States v. Garcia, 221 F.Supp.3d 1275, 1277 (D. N.M. 2016). The other relevant facts giving rise to this case are as follows.

In March 2014, a Doña Ana County, New Mexico grand jury indicted Defendants Jerry Montoya and Jerry Armenta on charges of first-degree murder and four other felonies related to the death of Javier Enrique Molina, Montoya and Armenta's fellow inmate during their incarceration at the Southern New Mexico Correctional Facility ("Southern New Mexico"). Memorandum Opinion and Order at 6, 2016 WL 7242579, at *3, filed October 28, 2016 (Doc. 753). The New Mexico Third Judicial District Attorney's Office accused Montoya and Armenta of fatally stabbing Molina with a shank in a gang-related attack. See Memorandum Opinion and Order, 2016 WL 7242579, at *3. That New Mexico indictment charged Montoya and Armenta with: (i) Molina's murder; (ii) possessing a deadly weapon; (iii) tampering with evidence; and (iv) two counts of conspiracy. See Memorandum Opinion and Order at 6-7, 2016 WL 7242579, at *3. In November, 2015, the District Attorney dismissed the charges against Montoya and Armenta — as well as separate charges against their alleged accomplice, Defendant Mario Rodriguez, who had been charged with possession of a deadly weapon by a prisoner, tampering, and conspiracy. See Memorandum Opinion and Order at 7, 2016 WL 7242579, at *3. "A spokesperson for the District Attorney's Office indicated the charges were dismissed because the cases were going to be prosecuted at the federal court level." Memorandum Opinion and Order at 7, 2016 WL 7242579, at *3.

The United States now brings this case, which it initiated in Las Cruces, New Mexico, against thirty-one Defendants, charging them with a total of sixteen counts. See Indictment at 1, 9-18. All Defendants are accused of participating in the SNM enterprise's operation and management, and of committing unlawful activities "as a consideration for the receipt of, and as consideration for a promise and an agreement to pay, anything of pecuniary value from SNM and for the purpose of gaining entrance to and maintaining and increasing position in SNM, an enterprise engaged in racketeering activity." Indictment at 9-18. Defendant Arturo Arnulfo Garcia, Defendant Gerald Archuleta,3 Defendant Benjamin Clark, M. Rodriguez, Defendant Anthony Ray Baca, Defendant Robert Martinez, Defendant Roy Paul Martinez,4 and Sanchez are the enterprise's alleged leaders. See Indictment at 6. The other Defendants are allegedly members or associates who acted under the direction of the enterprise's leaders. See Indictment at 6. The SNM gang enterprise, through its members and associates, allegedly engaged in: (i) racketeering activity as 18 U.S.C. §§ 1959(b)(1) and 1961(1) defines that term; (ii) murder and robbery in violation of New Mexico law; (iii) acts, indictable under 18 U.S.C. §§ 1503, 1512, and 1513, "involving obstruction of justice, tampering with or retaliating against a witness, victim, or an informant"; and (iv) offenses involving trafficking in narcotics in violation of 21 U.S.C. §§ 841 and 846. Indictment at 9.

Specifically, the Indictment alleges that, on March 26, 2001, Defendants Angel DeLeon, Joe Gallegos, Edward Troup, Leonard Lujan, and Billy Garcia murdered "F.C." Indictment at 9 (Count 1). On the same day, Lujan, B. Garcia, and Defendants Eugene Martinez, Allen Patterson, and Christopher Chavez allegedly murdered "R.G." Indictment at 10 (Count 2). On June 17, 2007, Defendant Javier Alonso, Troup, A.A. Garcia, Clark, and Defendant Ruben Hernandez allegedly murdered "F.S." Indictment at 10-11 (Count 3). On November 12, 2012, J. Gallegos and Defendant Andrew Gallegos allegedly conspired to murder "A.B." Superseding Indictment at 11 (Count 4). On the same day, J. Gallegos and A. Gallegos allegedly murdered A.B. See Indictment at 11-12 (Count 5). In March, 2014, Armenta, Montoya, M. Rodriguez, Defendant Timothy Martinez, Baca, Defendant Mauricio Varela, Sanchez, Defendant Carlos Herrera and Defendant Rudy Perez allegedly conspired to murder "J.M." Indictment at 12 (Count 6). On March 7, 2014, Armenta, Montoya, M. Rodriguez, T. Martinez, Baca, Varela, Sanchez, Herrera and Perez allegedly murdered J.M. See Indictment at 13 (Count 7).

Further, starting in or around 2003 — and until about July 13, 2015 — Baca, Archuleta, and Defendant Conrad Villegas allegedly conspired to commit assault resulting in serious bodily injury to "J.R." Indictment at 13-14 (Count 8). Starting "on a date uncertain, but no later than 2013," and until the date of the Superseding Indictment — April 21, 2014 — Baca, R.P. Martinez, and R. Martinez allegedly conspired to murder "D.S." Indictment at 14 (Count 9). During the same time period, Baca, R.P. Martinez, R. Martinez, and Defendant Christopher Garcia allegedly conspired to murder "G.M." Indictment at 15 (Count 10). On November 29, 2015, C. Garcia, a convicted felon, allegedly unlawfully possessed a firearm. See Indictment at 15-16 (Count 11). On the same day, C. Garcia, a convicted felon, allegedly knowingly used and carried a firearm in relation to a charge of conspiracy to murder. See Indictment at 16 (Count 12).

On March 17, 2015, J. Gallegos allegedly committed assault with a dangerous weapon against "J.G." Indictment at 16 (Count 13). From February 1, 2016, until February 27, 2016, J. Gallegos and Defendants Santos Gonzales, Paul Rivera, Shauna Gutierrez, and Brandy Rodriguez allegedly conspired to murder "J.G." Indictment at 17 (Count 14). Also, on February 27, 2016, J. Gallegos, B. Rodriguez, Gonzales, Rivera, and Gutierrez allegedly attempted to murder J.G., and committed assault with a dangerous weapon and assault resulting in serious bodily injury to J.G. See Indictment at 17-18 (Count 15). The same Defendants also allegedly tampered with a witness, J.G. See Indictment at 18 (Count 16).

For fuller factual context, there are now four cases before the Court related to SNM's alleged criminal activity. In a related case — United States v. Baca, No. CR 16-1613, 2016 WL 6404772 (D.N.M.)(Browning, J.)5 — the United States names twelve defendants, all alleged SNM members or associates, who have allegedly engaged in a racketeering conspiracy, under 18 U.S.C. § 1962(d).6 There is also a separate prosecution of C. Garcia for drug crimes, see United States of America v. Garcia, No. CR 15-4275 (D.N.M.)(Browning, J.), and a four-defendant prosecution for alleged violent crimes in aid of racketeering, under 18 U.S.C. § 1959. See United States v. Varela, No. CR 15-4269 (D.N.M.)(Browning, J.).

FINDINGS OF FACT

Pursuant to rule 12(d) of the Federal Rules of Criminal Procedure, the Court states its essential factual findings on the record. See Fed. R. Crim. P. 12(d). The Court bases its conclusions on the testimony it heard at its James hearing as well as the evidence it admitted at that hearing. The Court details that evidence and testimony below, in its procedural background section. The Court makes these findings by a preponderance of the evidence and only to determine preliminary questions regarding whether evidence is admissible. See Fed. R. Evid. 104(a). Notwithstanding the Court's findings, all of the Defendants are presumed innocent. The Court makes the following findings of fact:

1. A conspiracy to kill Javier Molina existed. See, e.g., Plea Agreement of Timothy Martinez, ¶ 8, at 4-5, filed January 26, 2017 (Doc. 852)("T. Martinez Plea Agreement"); Plea Agreement of Jerry Armenta ¶ 8, at 4-5, filed December 13, 2016 (Doc. 802)("Armenta Plea Agreement").

2. Armenta, Montoya, M. Rodriguez, T. Martinez, Baca, Varela, Sanchez, Herrera, and Perez were members of the Molina conspiracy. See, e.g., T. Martinez Plea Agreement ¶ 8, at 4-5; Armenta Plea Agreement ¶ 8, at 4-5.

3. The Molina conspiracy continued until at least Molina's death on March 7, 2014. See, e.g., T. Martinez Plea Agreement ¶ 8, at 4-5; Armenta Plea Agreement ¶ 8, at 4-5.

4. A conspiracy to assault Julian Romero existed. See, e.g., Plea Agreement of Conrad Villegas ¶ 9, at 4, filed November 1, 2017 (Doc. 1392)("Villegas Plea Agreement"); Plea Agreement of Gerald Archuleta ¶ 7, at 4-5, filed June 16, 2016 (Doc. 586)("Archuleta Plea Agreement").

5. Baca, Archuleta, and Villegas were members of the Romero conspiracy. See, e.g., Villegas Plea Agreement ¶ 9, at 4; Archuleta Plea Agreement ¶ 7, at 4-5.

6. The Romero conspiracy began in or about 2003 and continued until Romero's assault on July 13, 2015. See, e.g., Villegas Plea Agreement ¶ 9, at 4; Archuleta Plea Agreement ¶ 7, at 4-5.

7. A conspiracy to kill Dwayne Santistevan existed. See, e.g., Plea Agreement of Robert Martinez ¶ 8, at 5-6 (Doc. 716)("R. Martinez Plea Agreement"); Plea Agreement of Roy Paul Martinez ¶ 7, at 4-5, filed September 15, 2016 (Doc. 686)("R.P. Martinez Plea Agreement").

8. Baca, R.P. Martinez, and R. Martinez were members of the Santistevan conspiracy. See, e.g., R. Martinez Plea Agreement ¶ 8, at 5-6; R.P. Martinez Plea Agreement ¶ 7, at 4-5.

9. A conspiracy to kill Gregg Marcantel existed. See, e.g., R. Martinez Plea Agreement ¶ 8, at 5-6; R.P. Martinez Plea Agreement ¶ 7, at 4-5.

10. Baca, R.P. Martinez, R. Martinez, and C. Garcia were members of the Marcantel conspiracy. See, e.g., Plea Agreement of Christopher Garcia ¶ 13, at 5-6, filed January 25, 2017; (Doc. 1705); R. Martinez Plea Agreement ¶ 8, at 5-6; R.P. Martinez Plea Agreement ¶ 7, at 4-5.

PROCEDURAL BACKGROUND

The Court severed this case into two distinct trial groupings. See Memorandum Opinion and Order, 2017 WL 3054511, at *1, filed June 30, 2017 (Doc. 1204)("Severance MOO"). The Court will first try Counts 6-12 of the Indictment and then, in a separate proceeding, it will try Counts 1-5 alongside Counts 13-16. See Severance MOO, 2017 WL 3054511, at *1. The first trial is set to begin on January 29, 2018. See Fourth Scheduling Order ¶ 15, at 2, filed July 7, 2017 (Doc. 1205)("Scheduling Order"). The second trial is set to begin on April 9, 2018. See Scheduling Order ¶ 16, at 3.

1. The Motions.

In several different motions, the Defendants ask the Court to order the United States to identify "alleged co-conspirator statements which the government seeks to introduce under Fed. R. Evid. 801(d)(2)(E)" and to hold a hearing, pursuant to United States v. James, 590 F.2d 575 (5th Cir. 1979)("James"), to determine, by a preponderance of the evidence, whether: "(i) a conspiracy existed; (ii) the declarant and defendant were members of that conspiracy; and (iii) the statements the United States seeks to admit were made during the course and in furtherance of the conspiracy," Gonzales Motion at 1, 3. Accord Perez Motion at 1 ("Rudy Perez... hereby respectfully moves the Court for the production of any and all alleged coconspirator statements that the government seeks to introduce under Fed. R. Evid. 801(d)(2)(E) in this matter and for a pre-trial hearing on the admissibility of those statements."); C. Garcia Motion at 1 ("[C. Garcia and Baca] respectfully move this Honorable Court to order the government to specify any purported statements by alleged co-conspirators it intends to introduce under Federal Rule of Evidence 801(d)(2)(E) and show at a pretrial hearing that those statements are admissible."); B. Garcia Motion at 1-2 ("Defendant Billy Garcia moves ... for an order for the government to specify which such statements it intends to offer so that the parties can litigate admissibility issues outside the presence of the jury."); J. Gallegos Motion at 1 ("Defendants request that this Court hold a pre-trial hearing, pursuant to United States v. James, 590 F.2d 575, 581-582 (5th Cir. 1979)."); Gutierrez Motion at 1 ("Defendant Shauna Gutierrez ... moves this Court for a pretrial evidentiary hearing to determine the admissibility or inadmissibility of each and every statement the Government intends to attribute to any Defendant in this case as statements of co-conspirators.").

2. The Perez Motion Response.

The United States filed a response to the Perez Motion. See United States' Response to Defendant Perez's Motion for Production of Alleged Co-Conspirator Statements and for a James Hearing on Their Admissibility [1228], filed September 5, 2017 (Doc. 1243)("Perez Motion Response"). The United States indicates that it does not oppose holding a "pretrial hearing to determine the existence of a conspiracy before certain co-conspirator statements are allowed before the jury." Perez Motion Response at 1. The Perez Motion Response identifies several statements that Perez made:

Perez Motion Response at 2-3. The United States asserts that, for a statement to be admissible under rule 801(d)(2)(E), the court needs to determine: "(1) a conspiracy existed; (2) that both the declarant and the defendant were members of the conspiracy; and (3) that the statements were made in furtherance of the conspiracy." Perez Motion Response at 3-4. The United States then provides several examples of statements made in furtherance of a conspiracy: "[s]tatements 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 co-conspirator's fears, or keep co-conspirators abreast of an ongoing conspiracy's activities." Perez Motion Response at 5. The United States observes that "[s]ome of the conspiracy evidence in this case arises from tape-recorded intercepts of direct conversations of the defendants/co-conspirators," and predicts that "[m]uch of this evidence will meet all aspects of the three-part test for admitting co-conspirator statements on its own accord, with little need for independent evidence." Perez Motion Response at 7. The United States also predicts that "a significant amount of evidence will not be introduced under Rule 801(d)(2)(E), but rather through Rule 801(d)(2)(A) as admissions by the defendant himself," and that other statements will be offered for purposes other than the truth of the matter asserted. Perez Motion Response at 7.

3. The November 27-29, 2017 and December 8, 2017 Hearings.

The Court took up the Defendants' motions for a James hearing in its November 27, 2017 hearing. See Nov. 27 Tr. at 10:12-14 (Court). The Court orally granted those motions to the extent that they seek a James hearing. See Nov. 27 Tr. at 10:23-24 (Court)("So I think we will have a James hearing...."); id. at 12:14-15 (Villa)("I think that was really the goal of the motions, to get us to the James hearing...."). But see C. Garcia Motion at 7 (seeking "timely pre-hearing disclosure of statements the government intends to introduce at the James hearing"); B. Garcia Motion at 17-20 (arguing that specific statements are inadmissible); J. Gallegos Motion at 5 (seeking to exclude statements "from Defendant Santo Gonzales"); Gutierrez Motion at 3-5 (arguing that Gutierrez is not a member of any conspiracy); id. at 5-6 (arguing that Gutierrez' statements were not in furtherance of a conspiracy). The Court also provided initial guidance regarding the James hearing's structure:

Nov. 27 Tr. at 10:21-12:1 (Court). The United States then proffered "about 14 plea agreements in this case which will establish at least the first two requirements of James, which is the existence of the conspiracy, as well as membership in the conspiracy." Nov. 27 Tr. at 17:9-13 (Castellano).

The United States stated that those plea agreements are "basically the plea agreement of each defendant who has pled guilty in this case, including admissions that a conspiracy existed and admissions that other people remaining in the case were members of the conspiracy." Nov. 27 Tr. at 18:11-15 (Castellano). The Court then asked whether any of the Defendants objected to the introduction of the plea agreements as "documentary evidence." Nov. 27 Tr. at 19:19-23(Court). B. Garcia objected, arguing that the United States drafts the plea-agreement statements and that those statements are "not subject to any kind of evaluation here by the Court as to whether they're to be trusted." Nov. 27 Tr. at 19:11-18 (Castle). B. Garcia admitted, however, that "as long as the defense has the opportunity to call those witnesses and examine them ... that would probably be a sufficient remedy to allow us to contest the information within those plea agreements." Nov. 27 Tr. at 20:9-21 (Castle). No other Defendant objected to the admission of the plea agreements, so the Court admitted those agreements as "Government's Exhibits 1 through 14 ... for the purposes of the James hearing." Nov. 27 Tr. at 23:9-13 (Court).7

Later that day, the United States reported to the Court that it had reached an agreement with the Defendants regarding James hearing procedure. See Nov. 27 Tr. at 102:8-23 (Castellano). The Defendants in the first trial group indicated a preference to proceed directly to a James hearing, "since we're here, and it's the week after Thanksgiving, and we're going to be in front of a jury in two months, we'd just like to get a witness up and get it going." Nov. 27 Tr. at 105:15-18 (Adams). The Court confirmed that "everybody else," i.e., the second trial group, "is going to get bifurcated, get to see the statements first, then you get to decide whether you want a James hearing? Everybody in agreement on that?" Nov. 27 Tr. at 108:25-109:3 (Court.) None of the Defendants voiced an objection. See Nov. 27 Tr. at 109:4-5 (Court).

The United States then began the James hearing for the statements it intends to offer under rule 801(d)(2)(E) at the first trial by calling Federal Bureau of Investigation Special Agent Byran Acee to the stand. See Nov. 27 Tr. at 145:23-24 (Castellano). Acee's direct examination indicated that the United States intends to call "a witness named Lupe Urquizo" at trial. Nov. 27 Tr. at 146:21-23 (Castellano). According to Acee's testimony, Urquizo will testify that Baca told him "to get with the shot callers down at the Southern New Mexico Correctional Facility, or Southern,[8] and to let them know that Baca wanted Javier Molina hit ... and that if they didn't do it, he told Urquizo to just stab him." Nov. 27 Tr. at 147:8-16 (Acee). That conversation, according to Urquizo, took place "while he was still at the Level 6 up at PNM, the north facility." Nov. 27 Tr. at 147:24-148:2 (Acee). Acee's direct examination disclosed another out-of-court statement that Urquizo will relate at trial: David Calbert, an uncharged SNM member, brought "the paperwork indicating or substantiating the hit on Javier Molina," Nov. 27 Tr. at 148:8-11 (Castellano, Acee), and "explained to Urquizo that Baca wanted the paperwork to go down to Southern in Las Cruces," Nov. 27 Tr. at 149:17-19 (Acee).9

Acee testified that Urquizo was subsequently transferred to Southern, see Nov. 27 Tr. at 149: 22-25 (Castellano, Acee), and that, while Urquizo was in orientation at Southern, he "didn't have his property" and could not "freely talk" to other inmates, but he "had a conversation with both Mario Rodriguez and Timothy Martinez," by holding notes up to a window. Nov. 27 Tr. at 150:4-25 (Acee). According to Urquizo, M. Rodriguez and T. Martinez asked, via note, whether he had the Molina paperwork, and Urquizo replied that he had the paperwork, "[b]ut that it was still in his property." Nov. 27 Tr. at 150:11-20 (Acee). Two days later, again according to Urquizo, "Carlos Herrera inquired whether or not Urquizo had the paperwork," and Urquizo — who "had just received his box of property" — gave the paperwork to Herrera as well as "Dale Chavez, Juan Mendez, and Alex Munoz," three other SNM members, "and each made a comment to the effect of, Damn, this is it? It's just two sentences in this report." Nov. 27 Tr. at 151:1-13 (Acee).

Acee also testified that M. Rodriguez sent a letter to Urquizo:

Nov. 27 Tr. at 152:8-24 (Acee). Acee stated that "Urquizo said he heard Daniel Sanchez yell, `Fuck, yeah'" toward the end of the Molina hit. Nov. 27 Tr. at 153:6-10 (Acee).

The United States then turned its attention to "a couple of [out-of-court] statements related to the Julian Romero assault" that the United States may attempt to present to the jury via Urquizo's trial testimony. Nov. 27 Tr. at 153:11-13 (Castellano). According to Urquizo's account,

Nov. 27 Tr. at 153:19-154:5 (Acee).

The United States then began questioning Acee about out-of-court statements concerning the Molina murder that — the United States contends — M. Rodriguez made on the day of the Molina murder and that the United States may introduce at trial via Montoya's testimony. See Nov. 27 Tr. at 154:6-13, 155:16-18 (Castellano, Acee). Acee testified:

Nov. 27 Tr. at 155:19-159:2 (Acee).

The United States then presented, via Acee's examination, out-of-court statements regarding the Molina murder that it may present to the jury by calling T. Martinez as a witness:

Nov. 27 Tr. at 159:10-163: 25 (Castellano, Acee). Acee then testified:

Nov. 27 Tr. at 164:4-14 (Acee). Acee added:

Nov. 27 Tr. at 166:12-17 (Acee).

The United States then transitioned to another set of statements, which Baca made almost two years after the Molina murder, see Nov. 27 Tr. at 164:21-23 (Acee), that it intends to present to the jury:

Nov. 27 Tr. at 164:23-165:16 (Castellano, Acee). Acee testified:

Nov. 27 Tr. at 167:5-18 (Acee).

Acee then described a set of statements attributed to C. Garcia that the United States may introduce via T. Martinez' testimony:

Nov. 27 Tr. at 167:19-169:6 (Castellano, Acee).

The next day, the United States called FBI Agent Nancy Stemo to the stand. See Nov. 27 Tr. at 40:2-7 (Castellano, Court). Stemo described statements that the United States may offer at trial via Armenta's testimony:

Nov. 28 Tr. at 40:23-41:8 (Castellano, Stemo). Stemo also testified regarding several other out-of-court statements that the United States may introduce at trial by calling Armenta and M. Rodriguez to the stand:

Nov. 28 Tr. at 41:14-46:15 (Castellano, Stemo). Stemo then identified a document as a "transcript of a recording of conversations between Rudy Perez and [Billy Cordova]," that Cordova recorded in February, 2016. Nov. 28 Tr. at 46:24-47-5. The Court admitted that transcript as Government's James Hearing Exhibit 16. See Nov. 28 Tr. at 48:4-5 (Castellano); id. at 50:16-19 (Court).

On November 29, 2017, the United States called Acee to the stand again. See Nov. 29 Tr. at 228:11-12 (Acee). The United States asked Acee "about some letters that were either intercepted or retrieved by STIU [Security Threat Investigation Unit] agents in this case related to the ... conspiracies to murder Mr. Marcantel and Mr. Santistevan." Nov. 29 Tr. at 229:3-7 (Castellano). The first letter "was received by STIU on or about March 27, 2015," Nov. 29 Tr. at 229:9-10 (Castellano), and

Nov. 29 Tr. at 229:16-230:4 (Acee). The second letter

Nov. 29 Tr. at 230:9-19 (Acee). The third letter

Nov. 29 Tr. at 230:25-232:14 (Castellano, Acee). The fourth letter is

Nov. 29 Tr. at 232:17-233:7 (Acee). The fifth and final letter:

Nov. 29 Tr. at 233:10-22 (Acee). The United States then turned from letters to out-of-court statements that Baca made.

Nov. 29 Tr. at 234:10-269:8 (Castellano, Acee).

The United States finished examining Acee regarding Exhibit 26 on December 8, 2017. See Dec. 28 Tr. at 206:9-13 (Castellano, Court). The United States began with questions about Exhibit 26 statements:

Dec. 8 Tr. 207:12-209:23 (Castellano, Acee). The United States then asked Acee some questions about statements in Exhibit 16:

Dec. 8 Tr. at 210:15-219:2 (Castellano, Acee).

4. The First Motions in Limine.

Perez objects to "hearsay statements offered by Mr. Perez's co-defendants, turned government witnesses, Timothy Martinez and Jerry Montoya." Perez MIL at 1. According to Perez, "testimony at the James hearing conducted November 27-29, 2017," leads him to believe that "Timothy Martinez will testify that co-defendant Daniel Sanchez told him that `Sanchez had obtained [the shanks] from "fat ass" the nickname Sanchez used for Rudy Perez'" and "that Sanchez told him that Mr. Perez gave Sanchez pieces of metal from his walker to be made into shanks, because according to Martinez, Sanchez said `What else is fat ass gonna do?'" Perez MIL at 1 (alteration in the original). Perez also expects Montoya "to testify that Mario Rodriguez provided him a shank to use to kill Javier Molina" and that, "when Rodriguez did so, he inexplicably volunteered that the shank came from Mr. Perez' walker." Perez MIL at 2.

Perez asserts that rule 801(d)(2)(E) does not apply to those statements, but he defers that argument, see Perez MIL at 3 ("Mr. Perez will pursue this argument at the conclusion of the James hearing."), and instead "seeks a ruling by the Court that the out-of-court statements of Mr. Sanchez and Mr. Rodriguez that it is expected Mr. Martinez and Mr. Montoya will testify about do not meet any other exception and constitute inadmissible hearsay as to Mr. Perez," Perez MIL at 3. Perez argues that the Court cannot admit Sanchez' and Rodriguez' out-of-court statements as statements against penal interest. See Perez MIL at 4. Perez contends that the Court cannot admit Rodriguez' out-of-court statements as statements against penal interest, because "Rodriguez is expected to testify" and the statement-against-interest exception is available only when the declarant is unavailable. Perez MIL at 4 (citing Fed R. Evid. 804). Perez admits that Sanchez is unavailable, but he contends that Sanchez' out-of-court statements are not statements against his penal interest. See Sanchez MIL at 4-6. Perez also admits that Sanchez' statements "may be admissible against Mr. Sanchez as a statement of a party opponent," but he contends that, "given the minimal probative value, the Court should exclude them under Rule 403." Perez MIL at 7.

C. Garcia "request[s] the Court order the government not to attempt to elicit, mention, or refer to any evidence of co-defendants' statements that implicate a defendant in front of a jury until a hearing has been held outside the presence of the jury." C. Garcia MIL at 1. C. Garcia does not identify any particular statements, but he argues generally that "[t]he use of co-defendant's statements implicating or suggesting a defendant maybe [sic] highly prejudicial to jointly tried defendants," and violates their "right to cross-examination pursuant to the Confrontation Clause ... when a co-defendant chooses not to testify." C. Garcia MIL at 1-2.

Baca seeks to exclude "any potential testimony offered by witness Jerry Armenta that Defendant Anthony Ray Baca played any role or part in the Javier Molina homicide on March 7, 2014." Baca MIL at 1. Baca argues that as part of Armenta's now-aborted state-court prosecution, "the State prosecutor interviewed Armenta on October 6, 2015" and asked him "to describe how the Molina homicide happened." Baca MIL ¶ 4-5, at 2. According to Baca, Armenta "acknowledged that he did not learn anything about Defendant Anthony Ray Baca's purported involvement in the matter until after the murder had taken place," and "[n]othing about Armenta's statement reflected any first-hand knowledge on Armenta's part that Defendant Anthony Ray Baca was involved, in any way, with the Molina homicide." Baca MIL ¶¶ 6, 11, at 2. Baca argues that, because Armenta lacks first-hand knowledge, his testimony would be based on the out-of-court statements of others, and those statements "could [not] be considered admissible under any theory or rule of evidence." Baca MIL ¶ 11, at 2. Baca asserts that those out-of-court statements are not admissible via rule 801(d)(2), because "Armenta is neither recalling any admission made by Defendant Anthony Ray Baca (he could not, since they never met each other), nor were the statements Armenta overheard in furtherance of the conspiracy as Armenta heard them after the objective of the alleged conspiracy had been achieved." Baca MIL ¶ 11, at 2-3. Baca also asserts that no "exception to the rule against hearsay evidence applies." Baca MIL ¶ 11, at 3.

5. The December 19-20, 2018 Hearings.

On December 19, 2017, the Court took up the Baca MIL, which seeks "to prohibit the Government from questioning Jerry Armenta about Mr. Baca's involvement in Counts 6 and 7." Dec. 19 Tr. at 254:24-254:3 (Lowry). The Court asked Baca to "refresh my memory as to what Mr. Armenta would say and how he would know what he's saying?" Dec. 19 Tr. at 4-6 (Court). Baca described a videotaped interview, from October, 2015, in which Armenta

Dec. 19 Tr. at 254:11-24 (Lowry). Baca clarified that "we'd ask just that that portion of the video ... and then Mr. Armenta's testimony to the extent the Government is going to rely on it, not go into anything he learned after the fact, from the rumor mill." Dec. 19 Tr. at 254:25-255:5 (Lowry). According to Baca, Armenta's after-acquired knowledge is based on statements that were not made "in furtherance of any kind of conspiracy," and Armenta lacks "any kind of firsthand knowledge whatsoever." Dec. 19 Tr. at 255:10-13(Lowry). The United States admitted that Baca is correct, "[i]f it's just rumors from uninvolved people." Dec. 19 Tr. at 255:22-23 (Castellano). On the other hand, "if it's a rumor from somebody who is involved with the conspiracy, then that would be a statement that falls under the Smalls case, because it would be a statement against interest." Dec. 19 Tr. at 255:22-256:2 (Castellano).

On December 20, 2017, the Court briefly heard testimony from Acee, see Dec. 20 Tr. at 150:5-151:14, 152:5-153:10 (Lowry, Acee), before asking the parties for argument, see Dec. 20 Tr. at 154:1-2 (Court). The United States argued that the plea agreements of cooperating defendants, which it introduced as Exhibits 1-15, establish the existence of a conspiracy. See Dec. 20 Tr. at 155:14-24 (Castellano). Specifically, the United States asserted that M. Rodriguez', Montoya's, and T. Martinez' plea agreements show that there was a conspiracy to murder Javier Molina and its membership. See Dec. 20 Tr. at 155:14-156:9 (Castellano). The United States also asserted that R. Martinez' and R.P. Martinez' plea agreements show that there was a conspiracy to murder Gregg Marcantel and Dwayne Santistevan and that R. Martinez, R.P. Martinez, and Baca were members of that conspiracy. Dec. 20 Tr. at 156:10-24.

The Court then described its initial impression:

Dec. 20 Tr. at 159:17-161:16 (Court).

The United States agreed to the Court's proposed methodology, with one caveat:

Dec. 20 Tr. at 161:18-24 (Castellano). The Court indicated that it agreed that Sanchez' statement, as related by Cordova, qualified as a co-conspirator statement under rule 801(d)(2)(E). See Dec 20 Tr. at 161:25-165:5 (Court).

At Baca's prompting, the Court elaborated regarding its initial impression:

Dec. 20 Tr. at 162:25-163:25 (Court, Lowry).

Baca then "dr[e]w the Court's attention to the [transcript of the] recorded conversations with Mr. Perez that took place years after the homicide." Dec. 20 Tr. at 164:10-12.10 Baca asserted that the transcript contains statements that Perez, in the transcript, attributes to Baca. See Dec. 20 Tr. at 165:12-15 (Lowry). The United States then noted an example attributed statement:

Dec. 20 Tr. at 167:8-18 (Castellano). Baca expressed indifference regarding that statement, because it does not involve Baca. See Dec. 20 Tr. at 168:19-24 (Lowry). Baca provided an alternative example:

Dec. 20 Tr. at 177:2-22 (Lowry, Court). The United States expressed some uncertainty regarding the timing of the statement that Perez attributed to Baca, because "we're not quite sure of the timeframe," but added that, "even if it were to fall out of a James statement, I think we would be falling into Smalls' statements as a statement against interests." Dec. 20 Tr. at 177:17-20, 178:4-6 (Castellano).

Sanchez identified a statement that Molina made while he was being stabbed, and argued that Molina's statement was not a coconspirator statement, see Dec. 20 Tr. at 200:12-15 (Jacks), and the United States agreed, see Dec. 20 Tr. at 200:23-24 (Castellano). The Court accepted that such a statement would not be admissible for its truth under rule 801(d)(2)(E), but it predicted that such a statement would probably constitute admissible hearsay. See Dec. 20 Tr. at 201:5-12 (Court). Sanchez also argued that "statements or puffery about prison politics" do not qualify as coconspirator statements, see Dec. 20 Tr. at 201:20-202:3 (Jacks), and the United States again agreed that such statements would not be coconspirator statements, but it argued that such statements would be admissible under rule 801(d)(2)(A), see Dec. 20 Tr. at 203:19-204:25 (Court, Castellano). Sanchez admitted that such statements would be admissible against the declarant, but added that the potential for unfair prejudice raises rule 403 concerns. See Dec. 20 Tr. at 205:3-10 (Jacks).

The United States later clarified that, for rule 801(d)(2)(E) purposes, there are four relevant conspiracies:

Dec. 20 Tr. at 215:18-216:1 (Castellano). The United States commented on the temporal relationship between the first two conspiracies:

Dec. 20 Tr. at 216:7-12 (Castellano). The United States identified several statements that were made in furtherance of the Molina murder:

Dec. 20 Tr. at 218:6-18 (Castellano).

According to the United States, the conspirators in the "Julian Romero assault" include "Gerald Archuleta, Conrad Villegas, and Mr. Baca, among others." Dec. 20 Tr. at 216:17, 21-22 (Castellano). The United States then provided background information about the Romero assault and identified statements that, it contends, were made during and in furtherance of that conspiracy:

Dec. 20 Tr. at 217:17-219:1 (Castellano). The United States indicated, however, that Urquizo will testify at trial regarding the substance of the first statement — that Urquizo and Gomez instructed Villegas to assault Romero — so, according to the United States, there will be no need at trial to introduce an out-of-court statement for its truth on that point. See Dec. 20 Tr. 221:5-11 (Court, Castellano). The United States clarified that the second statement "would be Mr. Urquizo telling the jury that Mr. Gomez told him that Mr. Baca only wanted the victim smashed or beat up, but not stabbed or killed." Dec. 20 Tr. at 229:14-17 (Castellano).

The Court then articulated its findings regarding statements in furtherance of the Romero conspiracy:

Dec. 20 Tr. at 241:15-242:9 (Court). The Court also articulated general findings:

Dec. 20 Tr. at 242:10-245:8 (Court). The United States replied that Perez' statements could be admitted for their truth against all of the Defendants as a statement against interest under rule 804(b)(3). See Dec. 20 Tr. at 248:3-10 (Castellano).

6. The Response.

The United States responds to the Perez MIL, the C. Garcia MIL, and the Baca MIL in a single document. See United States' Response to Defendant Ruby Perez's Motion to Exclude Statement of Cooperating Government Witnesses [1514], Defendant Chris Garcia's Motion to Exclude Co-Defendant's Statements [1517], and Defendant Anthony Ray Baca's Motion to Prohibit the Government from Questioning Jerry Armenta About Anthony Ray Baca's Involvement in Counts 6 & 7 [1540], filed December 26, 2017 (Doc. 1596)("Response"). The United States argues that the Confrontation Clause does not bar the introduction of out-of-court codefendant statements so long as those statements are not testimonial. See Response at 2-3. The United States then asserts that the statements which Perez, C. Garcia, and Baca identify "were not made to be used for investigation or prosecution of a crime," so there "simply is no sound basis in the facts to conclude that the primary purpose of the statements was to `establish or prove past events potentially relevant to later criminal prosecution.'" Response at 5-6 (quoting United States v. Smalls, 605 F.3d 765, 777 (10th Cir. 2010)).

Additionally, the United States argues that "Sanchez's statement to Martinez that Sanchez received the shanks from Perez, and Rodriguez's statements to Montoya that the shanks came from Perez's walker" are admissible under rule 801(d)(2)(E). Response at 6. The United States argues that Perez was a coconspirator viz. Sanchez and Rodriguez, "[b]ecause Perez did, in fact, volunteer his walker to Sanchez to be put into shanks," and because Perez is "a long-time member of the SNM in good standing." Response at 6. The United States also argues that Sanchez' and Rodriguez' statements were made in furtherance of the conspiracy, because "the knowledge that Perez's walker, as opposed to other shanks lying around ... helped the coconspirators avoid detection and prosecution for their crime, [which] renders these statements in furtherance of the conspiracy." Response at 7. According to the United States,

Response at 7.

7. The Sanchez Motion in Limine.

Sanchez filed a motion in limine on January 8, 2018. See Sanchez MIL at 23. According to Sanchez, Michigan v. Bryant, 562 U.S. 344, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011), and Ohio v. Clark, ___ U.S. ___, 135 S.Ct. 2173, 192 L.Ed.2d 306 (2015), which post-date United States v. Smalls, 605 F.3d 765 (10th Cir. 2010), indicate that whether a particular statement is testimonial — and therefore subject to the Confrontation Clause — depends "on the circumstances in which the encounter between the declarant and interrogator occurs, including whether an emergency exists at the time of the encounter, and the statements and actions of both the declarant and interrogator," whereas "the Smalls inquiry only focuses on the statements and actions of the declarant." Sanchez MIL at 9 (emphasis in original). Sanchez argues that, under Michigan v. Bryant and Ohio v. Clark, Perez' statements to Antonio Palomares, a New Mexico State Police Sergeant, and James Mulheron, the SNMCF Deputy Warden, during the Molina murder investigation are testimonial. See Sanchez MIL at 3-4, 9-10. Sanchez also argues that Perez' in-prison statements to Cordova, a confidential human source, and Baca's, C. Garcia's, and others' in-prison statements to Duran, also a confidential human source, are testimonial, because, according to Sanchez, Cordova and Duran are government agents, and used psychological interrogation tactics to obtain out-of-court statements to be used at trial. See Sanchez MIL at 10-12.

Sanchez asserts that the statements which Perez made to Cordova were not made during and in furtherance of the conspiracy to kill Molin — charged in the Indictment's Count 6 — because Perez made those statements over a year after Molina's death. See Sanchez MIL at 13-14. Sanchez also asserts that Perez' statements to Cordova were not against Perez' penal interest, because Perez testified that he made those statements "to allay concerns that he was informing about the crime," so "a reasonable person in Perez's position may have made the statements even if they were not true," Sanchez MIL at 14-15, and because some of Perez' statements deflect or reduce his culpability, see Sanchez MIL at 14-15. Sanchez contends that statements in furtherance of the Counts 8-10 conspiracies would be inadmissible hearsay as against him — even if those statements are relevant — because he is not a Counts 8-10 conspirator. See Sanchez MIL at 16-17. Sanchez concludes by arguing:

Sanchez MIL at 21.

8. The January 9, 2018 Hearing.

On January 9, 2018, Sanchez argued that Supreme Court of the United States of America precedent that post-dates United States v. Smalls implicitly overrules the United States Court of Appeals for the Tenth Circuit's decision in that case. See Jan. 9 Tr. at 156:13-157:18 (Jacks). According to Sanchez, Michigan v. Bryant repudiates United States v. Smalls' narrow focus on the declarant's primary purpose when determining whether an out-of-court statement is testimonial for Confrontation Clause purposes. See Jan. 9 Tr. at 156:13-157:18 (Jacks). It follows, again according to Sanchez, the Confrontation Clause inquiry regarding statements that Perez made and Billy Cordova recorded should consider "that Billy Cordova went in there to the prison and made comments to Mr. Perez, as a government agent, in an effort to gather evidence for a criminal prosecution." Jan. 9 at 158:21-24 (Jacks). Further, in an effort to distinguish United States v. Smalls, Sanchez contended, regarding Perez' resulting statements, that "you can[not] classify those remarks as an unwitting statement to a fellow inmate," because "they were the product of that custodial interrogation, along with, I think, other circumstances, such as the fact that he was in isolation, he was unable to go to recreation, and he was on heavy doses of narcotic painkillers." Jan. 9 Tr. at 159:19-160:3 (Jacks).

On the same day, Perez argued that Sanchez' out-of-court statement to T. Martinez regarding the source of the Molina murder weapon — "it came from Fat Ass' or Fatso's walker. What else is he going to do?," Jan. 9 Tr. at 177:22-23 (Villa) — was not made in furtherance of the conspiracy to kill Molina, see Jan. 9 Tr. at 178:8-13 (Villa). The United States replied "that's a statement by a party opponent as it relates to Daniel Sanchez. But it's also a statement in furtherance of the conspiracy, because it identifies another member of the conspiracy was Mr. Perez." Jan. 9 Tr. at 182:4-8 (Castellano).

9. The Severance Motion.

About a week before trial, Perez moved to sever the trial of Counts 6-7 from Counts 8-12. See Severance Motion at 1. Perez argues that a "plethora of co-conspirator statements that will be offered by the government in its attempt to prove Counts 8-12 are not admissible against Defendants Sanchez, Herrera or Perez." Severance Motion at 2. According to Perez, "the only way to prevent the reversible error that will otherwise surely occur is to sever Counts 6 and 7 from Counts 8 through 12." Severance Motion at 3.

10. The Sanchez Memo.

Sanchez filed an additional memorandum in support of the Sanchez MIL. See Defendant Daniel Sanchez's Supplemental Memorandum and Argument in Support of his Motion in Limine to Preclude the Admission of Un-Confronted, Out of Court Statements (Doc. 1616) at 2, filed January 22, 2018 (Doc. 1665)("Sanchez Memo"). Sanchez argues that a "serious and fundamental denial of due process ... will result if un-confronted out of court statements of Mr. Sanchez's Count 6-7 co-defendants are admitted at any joint trial, whether it be at a trial of Counts 6-12, or at an independent trial of Counts 6-7 only." Sanchez Memo at 2 (emphasis in original). Sanchez pays particular attention to "statements of codefendants Rudy Perez and Carlos Herrera to government informants Billy Cordova and Gerald Archuleta in February of 2016." Sanchez Memo at 3.11 According to Sanchez, admitting those statements at a joint trial and instructing the jury to use them only against the declarant — either Perez or Herrera, depending on the statement — would be futile "to cure the insult to Mr. Sanchez's constitutional right to due process of law caused by admission of these inadmissible statements at a joint trial." Sanchez Memo at 3-4.

11. The January 28, 2018 Letters.

On the eve of trial, the United States filed a pair of letters. See Letter Disclosing Co-Conspirator (James) Statements, filed January 28, 2018 (Doc. 1715)("James Letter); Letter Disclosing Non-Co-Conspirator Statements, filed January 28, 2018 (Doc. 1716)("Non-James Letter"). The James Letter discloses "co-conspirator (James) statements that we received from likely testifying witnesses in our pretrial preparations over the past weeks." James Letter at 1. The Non-James Letter discloses "statements (admissions) that we received from likely testifying witnesses in our pretrial preparations over the last weeks." Non-James Letter at 1. The James Letter identifies several out-of-court statements that the United States may attempt to present to the jury via the testimony of several witnesses:

James Letter 2-5. The Non-James Letter also identified several out-of-court statements that the United States may attempt to present to the jury via the testimony of several witnesses:

Non-James Letter at 1-4.

LAW REGARDING HEARSAY

"Hearsay testimony is generally inadmissible." United States v. Christy, 2011 WL 5223024, at *5 (D.N.M. 2011)(Browning, J.)(citing Fed. R. Evid. 802). Under rule 801(c) of the Federal Rules of Evidence, "hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." 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)(Carnes, J.). 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)(Hartz, J.)("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."). Rule 805 of the Federal Rules of Evidence recognizes that "[h]earsay within hearsay" — commonly referred to as double hearsay — may be admissible "if each part of the combined statements conforms with an exception to the rule." Fed. R. Evid. 805.

1. Rule 801(d)(2).

A statement is not hearsay, even if it is offered for its truth, if it is offered against an opposing party and it:

Fed. R. Evid. 801(d)(2). The Tenth Circuit has stated:

Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 667 (10th Cir. 2006)(Seymour, J.)(internal quotation marks and alterations omitted).13

2. Rule 803(1).

Rule 803(1) provides an exception to the rule against hearsay for "[a] statement describing an event or condition, made while or immediately after the declarant perceived it." Fed. R. Evid. 803(1). "By its own terms, application of Rule 803(1) has three distinct requirements: i) the statement must describe or explain the event perceived; ii) the declarant must have in fact perceived the event described; and iii) the description must be `substantially contemporaneous' with the event in question." United States v. Mejia-Valez, 855 F.Supp. 607, 613 (E.D.N.Y. 1994). "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) cert. granted, judgment vacated on other grounds, 516 U.S. 1168, 116 S.Ct. 1257, 134 L.Ed.2d 206 (1996). "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).

3. Rule 803(2).

Rule 803(2), commonly referred to as the excited utterance exception, provides an exception to the exclusion of hearsay statements for "[a] statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused." Fed. R. Evid. 803(2). The United States Court of Appeals for the District of Columbia 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)). "Thus, to qualify as an excited utterance, the declarant's state of mind at the time that the statement was made must preclude conscious reflection on the subject of the statement." United States v. Alexander, 331 F.3d at 122 (quoting United States v. Joy, 192 F.3d 761, 766 (7th Cir. 1999))(internal quotations and changes omitted). 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:

606 F.3d at 1279 (internal citations and question marks omitted). The Tenth Circuit has noted:

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 Comm. 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 116, 123 (D.C. Cir. 2003)(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 subtle differences between the present-sense-impression and excited-utterance exceptions to the rule against hearsay:

United States v. Jones, 299 F.3d 103, 112 & n.3 (2d Cir. 2002).

Many courts across the country have found it proper to admit a 911 caller's statements as a present-sense impression and/or an excited utterance. 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 out-side 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. 607, 613-15 (E.D.N.Y. 1994)(Korman, J.)(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).

4. Rule 803(3).

One of these exceptions, rule 803(3), excepts from the general bar on hearsay "[a] statement of the declarant's then existing state of mind [or] emotion." Fed. R. Evid. 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":

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 Fed.Appx. 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))(internal quotations omitted). 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. Mutual Life Ins. Co. of New York 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 474, 488 (2d Cir. 1991). 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 back 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." Stephen A. Saltzburg et al., Fed. Rules of Evidence Manual § 803.02, at 4-803 (11th ed. 2017).

5. 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, and the statement is "against the declarant's proprietary, pecuniary, or penal interest." United States v. Lozado, 776 F.3d 1119, 1125 (10th Cir. 2015) (citing Williamson v. United States, 512 U.S. 594, 599-600, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994)). 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 at 780-81 (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.

LAW REGARDING COCONSPIRATOR STATEMENTS

The Federal Rules of Evidence define hearsay as "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 evidence usually is not admissible. See Fed. R. Evid. 802. Some out-of-court statements, however, are not hearsay even when they are offered for proof of the matter asserted. See Fed. R. Evid. 801(d). Statements that are "offered against an opposing party" and were "made by the party's coconspirator during and in furtherance of the conspiracy" are not hearsay. Fed. R. Evid. 801(d)(2)(E).

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, as well as 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 quotations and citations omitted). This "independent evidence may be sufficient even when it is not `substantial.'" United States v. Lopez-Gutierrez, 83 F.3d at 1242 (internal citation omitted). 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 (internal quotation marks and alterations omitted)(quoting United States v. Martinez, 825 F.2d 1451, 1451 (10th Cir. 1987)).

"[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 co-conspirators 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 co-conspirators' previous statements inadmissible."); United States v. Adamo, 882 F.2d 1218, 1230-31 (7th Cir. 1989)(holding one who joins and participates in a conspiracy "adopt[s] the previous acts and declarations of his fellow co-conspirators").

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 it is not always practical for the United States to 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).

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 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." 2006 WL 4109681, at *4. Vigil was charged, among other charges, with being a member of a conspiracy to commit RICO violation, 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 found, in deciding Vigil's rule 29 motion for acquittal, 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 SLOM contract from Everage." 2006 WL 4109681, at *4 (internal quotation marks and citations omitted). 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 co-conspirator statements made in furtherance of the conspiracy charged." 2006 WL 4109681, at *6.

LAW REGARDING CONSPIRACY

The Tenth Circuit has outlined what the government must prove to establish the existence of a conspiracy:

United States v. Small, 423 F.3d 1164, 1182-83 (10th Cir. 2005)(quoting United States v. Evans, 970 F.2d 663, 668-671 (10th Cir. 1992), and United States v. Mendoza-Solgado, 964 F.2d 993, 1005 (10th Cir. 1992))(internal citations, quotations, and emphasis omitted). Conspiracy is not a collection of various separate and distinct events, but rather is "the prototypical continuing offense." United States v. Acosta-Gallardo, 656 F.3d 1109, 1122 (10th Cir. 2011)(quoting United States v. Jaynes, 75 F.3d 1493, 1505 (10th Cir. 1996)). "`A conspirator is only liable for the acts of co-conspirators until the conspiracy accomplished its goals or that conspirator withdraws.'" United States v. Thornburgh, 645 F.3d 1197, 1204 (10th Cir. 2011)(quoting United States v. Cherry, 217 F.3d 811, 817 (10th Cir. 2000))

LAW REGARDING THE CONFRONTATION CLAUSE

The Clause states: "In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him." U.S. Const. amend. VI. In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court held that, under the Confrontation Clause, "[t]estimonial statements of witnesses absent from trial [are admissible] only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." 541 U.S. at 59, 124 S.Ct. 1354. In Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), the Supreme Court elaborated regarding which statements made during police interrogation are testimonial:

547 U.S. at 822, 126 S.Ct. 2266. The Tenth Circuit defines a testimonial statement, without reference to police interrogation, as "a `formal declaration made by the declarant that, when objectively considered, indicates' that the `primary purpose of the [statement is] to establish or prove past events potentially relevant to later criminal prosecution.'" United States v. Morgan, 748 F.3d 1024, 1048 (10th Cir. 2014)(alteration in original)(quoting United States v. Smalls, 605 F.3d at 777-78). Accord United States v. Chaco, 801 F.Supp.2d 1200, 1209-10 (D.N.M. 2011)(Browning, J.)(discussing developments in Tenth Circuit precedent on the test regarding what qualifies as a testimonial statement).

In Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), the Supreme Court addressed whether the admission of a sworn affidavit by a forensic chemist, who testified in the affidavit that the substance which police seized from the defendant was cocaine of a certain amount, violated the Confrontation Clause. See 557 U.S. at 307, 129 S.Ct. 2527. The Supreme Court first found that such affidavits were testimonial, because they were "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial" and because, under Massachusetts law, the sole purpose of the affidavit was to provide prima facie evidence of the content of the substance seized. 557 U.S. at 310, 129 S.Ct. 2527. The Supreme Court then used the affidavit introduced by the prosecution to outline its concerns regarding the lack of cross-examination when such affidavits are introduced as evidence:

557 U.S. at 320, 129 S.Ct. 2527 (citation omitted). Because there was no opportunity to cross-examine the affidavit declarant on these issues, the Supreme Court concluded that introduction of the affidavit violated the defendant's rights under the Confrontation Clause. See 557 U.S. at 329, 129 S.Ct. 2527 ("The Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits, and the admission of such evidence against Melendez-Diaz was error."). The Supreme Court extended this holding to "forensic laboratory report[s] containing a testimonial certification — made for the purpose of proving a particular fact — through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification." Bullcoming v. New Mexico, 564 U.S. 647, 652, 661, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011)("Accordingly, the analysts who write reports that the prosecution introduces must be made available for confrontation even if they possess `the scientific acumen of Mme. Curie and the veracity of Mother Teresa.'" (quoting Melendez-Diaz v. Massachusetts, 557 U.S. at 319 n.6, 129 S.Ct. 2527).

"Except in rare cases, the prosecution's use of live or recorded video testimony without the defendant having the ability to confront the witness face-to-face violates a defendant's Confrontation Clause rights — absent a showing of unavailability and prior opportunity to confront the witness." United States v. Chapman, 2015 WL 4042177, at *19 (D.N.M. June 29 2015)(Browning, J.). See United States v. Sandoval, No. CR 04-2362, 2006 WL 1228953, *7-9 (D.N.M. Mar. 7, 2006)(Browning, J.). In a pre-Crawford v. Washington case, Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), the Supreme Court rejected a Confrontation Clause challenge to a Maryland statute that allowed a child witness in a child molestation case, under certain circumstances, to testify via a one-way closed circuit television, which did not allow the witness to view the defendant. See 497 U.S. at 860, 110 S.Ct. 3157. See also Wrotten v. New York, 560 U.S. 959, 959, 130 S.Ct. 2520, 177 L.Ed.2d 316 (2010)(Sotomayor, J., statement respecting the denial of certiorari)(tacitly assuming that Maryland v. Craig remains good law and commenting that, "[b]ecause the use of video testimony in this case arose in a strikingly different context than in Craig, it is not clear that the latter is controlling"). While upholding the constitutionality of a child's testimony outside the defendant's presence, the Supreme Court recognized that the "central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact." 497 U.S. at 845, 110 S.Ct. 3157.14

The Supreme Court recognized that an adversary proceeding before the trier of fact "is the norm of Anglo-American criminal proceedings," and involves "[t]he combined effect of these elements of confrontation — physical presence, oath, cross-examination, and observation of demeanor." Maryland v. Craig, 497 U.S. at 846, 110 S.Ct. 3157. It also acknowledged that "face-to-face confrontation forms `the core of the values furthered by the Confrontation Clause.'" Maryland v. Craig, 497 U.S. at 847, 110 S.Ct. 3157 (quoting California v. Green, 399 U.S. 149, 157, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970)). Nevertheless, the Supreme Court concluded that the Confrontation Clause's "preference for face-to-face confrontation at trial... must occasionally give way to considerations of public policy and the necessities of the case." Maryland v. Craig, 497 U.S. at 849, 110 S.Ct. 3157 (internal quotation marks omitted). The Supreme Court emphasized, however, a defendant's Confrontation Clause right "may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured." 497 U.S. at 850, 110 S.Ct. 3157.

A Confrontation Clause violation does not occur when a defendant calls a non-hostile witness telephonically or via videoconference. See U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to ... be confronted with the witnesses against him ...." (emphasis added)). Cf. United States v. Olguin, 643 F.3d 384, 392 (5th Cir. 2011)("The Sixth Amendment guarantees the right to confrontation against a party testifying against him, not against others."). Adversity is not present when the witness is aligned with the defendant. See Maryland v. Craig, 497 U.S. at 845, 110 S.Ct. 3157. The Supreme Court based Crawford v. Washington on a defendant's need for "an adequate opportunity to cross-examine" a witness, but such a need is not present when the witness is aligned with the defendant. 541 U.S. at 58, 124 S.Ct. 1354. The Federal Rules of Evidence, for example, generally do not permit a party to ask a non-hostile witness leading questions, a key cross-examination tool. See Fed. R. Evid. 611(c).15 Alternatively, it is possible that a defendant waives a Confrontation Clause objection by calling a witness by videoconference or telephonically. See United States v. Lopez-Medina, 596 F.3d 716, 730-734 (10th Cir. 2010)("Prior to Crawford, we held there was `no doubt' a defendant could waive his rights under the Confrontation Clause. The parties do not argue Crawford changed this rule." (quoting Hawkins v. Hannigan, 185 F.3d 1146, 1154 (10th Cir. 1999)(Ebel, J.))).

Like many constitutional rights, a defendant may choose to waive Confrontation Clause rights. In 1969, the Supreme Court recognized that a defendant may waive Confrontation Clause rights and that defendants commonly do so when pleading guilty. See Boykin v. Alabama, 395 U.S. 238, 270, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)("Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial.... Third, is the right to confront one's accusers."). The Tenth Circuit recognized, both before and after Crawford v. Washington, that a defendant may knowingly waive Confrontation Clause rights at trial. See United States v. Lopez-Medina, 596 F.3d at 730-734 (recognizing that Confrontation Clause rights may be waived at trial "at least where there is an explicit waiver"). Specifically, the Tenth Circuit stated: "Prior to Crawford, we held there was `no doubt' a defendant could waive his rights under the Confrontation Clause. The parties do not argue Crawford changed this rule." United States v. Lopez-Medina, 596 F.3d at 731 (citations omitted). The Tenth Circuit has held that a defendant's counsel can stipulate to the admissibility of evidence that would otherwise violate the Confrontation Clause if doing so "was a matter of prudent trial strategy." Hawkins v. Hannigan, 185 F.3d 1146, 1155 (10th Cir. 1999). The United States Court of Appeals for the Sixth Circuit has recognized that such a waiver can be permissible in the context of the prosecution admitting one of its witnesses' videotaped deposition. See Earhart v. Konteh, 589 F.3d 337, 344 (6th Cir. 2009). The Sixth Circuit in that case relied on one of its prior decisions where it had permitted such a waiver:

Earhart v. Konteh, 589 F.3d at 344.

LAW REGARDING CODEFENDANT STATEMENTS

In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968)(Brennan, J.), the Supreme Court held that, in a multiple-defendant trial, admitting a non-testifying defendant's confession that implicates a codefendant violates the Confrontation Clause even if the court instructs the jury to only use the confession against the defendant who made it. See 391 U.S. at 128-29, 88 S.Ct. 1620. George Bruton and William Evans were jointly tried for robbery, and, upon his arrest, Evans gave a confession to a postal inspector in which he admitted that he and Bruton had committed the robbery. See Bruton v. United States, 391 U.S. at 124, 88 S.Ct. 1620. At trial, the prosecution was allowed to introduce Evans' confession, and the trial court — perhaps recognizing that evidence might pose a problem — gave a limiting instruction charging the jury that it was not to consider Evans' confession "in any respect to the defendant Bruton." Bruton v. United States, 391 U.S. at 125, 88 S.Ct. 1620. Both Bruton and Evans were convicted, but the Supreme Court held that the trial court erroneously admitted Evans' confession implicating Bruton and that the court's limiting instruction did not cure the error. See 391 U.S. at 128-29, 88 S.Ct. 1620. The Supreme Court observed: "If it were true that the jury disregarded the reference to the codefendant, no question would arise under the Confrontation Clause, because by hypothesis the case is treated as if the confessor made no statement inculpating the nonconfessor." 391 U.S. at 126, 88 S.Ct. 1620. See 391 U.S. at 128 n.3, 88 S.Ct. 1620 ("We emphasize that the hearsay statement inculpating petitioner was clearly inadmissible against him under traditional rules of evidence, ... the problem arising only because the statement was... admissible against the declarant."). The Supreme Court discounted that possibility, because

391 U.S. at 135-36, 88 S.Ct. 1620. The Supreme Court also stated:

391 U.S. at 130-31, 88 S.Ct. 1620. Ultimately, the Supreme Court determined: (i) there is a substantial risk that, if a defendant's confession implicates codefendants, the jury will use that confession against the codefendants notwithstanding a limiting instruction to the contrary; and (ii) that substantial risk means a defendant's confession implicating codefendants is inadmissible unless the defendant who made the confession is subject to cross examination. See 391 U.S. at 137, 88 S.Ct. 1620.

The Supreme Court elaborated on its Bruton v. United States decision in Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987)(Scalia, J.). See 481 U.S. at 202, 107 S.Ct. 1702. Marsh and Williams were tried jointly, and Williams did not testify. See 481 U.S. at 202, 204, 107 S.Ct. 1702. The prosecution introduced evidence of Williams' confession, which implicated both Williams and Marsh. See 481 U.S. at 203-04, 107 S.Ct. 1702. The trial court redacted the confession to remove references to Marsh, and "omitted all indication that anyone other than [a third party] and Williams participated in the crime." 481 U.S. at 203, 107 S.Ct. 1702. The trial court also instructed the jury not to use Williams' confession against Marsh. See 481 U.S. at 204, 107 S.Ct. 1702. The Supreme Court concluded that the trial court properly admitted Williams' redacted confession, because, vis-à-vis Marsh, the redacted confessions "was not incriminating on its face." 481 U.S. at 208, 107 S.Ct. 1702. The Supreme Court explained that, because it did not implicate Marsh, Williams' confession fell "outside the narrow exception we created" in Bruton v. United States, to the general rule that "a witness whose testimony is introduced at a joint trial is not considered to be a witness `against' a defendant if the jury is instructed to consider that testimony only against a codefendant." 481 U.S. at 206, 208, 107 S.Ct. 1702.

In Gray v. Maryland, 523 U.S. 185, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998)(Breyer, J.), Anthony Bell and Kevin Gray were tried jointly for murder. See 523 U.S. at 188, 118 S.Ct. 1151. After Bell was arrested, Bell confessed, and his confession said that Gray and a third person were also responsible for the victim's death. See Gray v. Maryland, 523 U.S. at 188, 118 S.Ct. 1151. At Bell and Gray's joint trial, the court admitted a redacted version of Bell's confession into evidence. See 523 U.S. at 188, 118 S.Ct. 1151. The detective who testified about Bell's confession said "deleted" or "deletion" whenever the name of Gray or the third participant appeared. 523 U.S. at 188, 118 S.Ct. 1151. Immediately thereafter, however, the detective testified that the police arrested Gray only upon Bell's confession. See 523 U.S. at 189, 118 S.Ct. 1151. The prosecution introduced a written copy of Bell's confession Gray's and the third person's names replaced with blank spaces separated by commas. See 523 U.S. at 189, 118 S.Ct. 1151. The trial court instructed the jury that Bell's confession could not be used as evidence against Gray. See 523 U.S. at 189, 118 S.Ct. 1151.

The Supreme Court acknowledged that, in Richardson v. Marsh, it had, indeed, held that the admission of co-defendant confessions that are redacted to remove any reference to the existence of the other defendants will not violate Bruton v. United States. See Gray v. Maryland, 523 U.S. at 190-91, 118 S.Ct. 1151. The Supreme Court noted, however, that, unlike the redacted confession in Richardson v. Marsh, the confession in Gray v. Maryland referenced the existence of the non-confessing defendant, because the government merely replaced Gray's name with the word "deleted" or a blank space. Gray v. Maryland, 523 U.S. at 192, 118 S.Ct. 1151. The Supreme Court concluded that a redaction which replaced a defendant's name with an obvious indication of deletion falls within Bruton v. United States' purview, because "[r]edactions that simply replace a name with an obvious blank space or a word such as `deleted' or a symbol or other similarly obvious indications of alteration... so closely resemble Bruton [v. United States'] unredacted statements that, in our view, the law must require the same result." Gray v. Maryland, 523 U.S. at 189, 118 S.Ct. 1151.

Six years after Gray v. Maryland, Crawford v. Washington upended the Supreme Court's Confrontation Clause jurisprudence. See Crawford v. Washington, 541 U.S. at 36, 124 S.Ct. 1354. In Crawford v. Washington, the Supreme Court held that that the Confrontation Clause prohibits testimonial hearsay's introduction against a criminal defendant if the hearsay declarant does not testify at trial, unless: (i) the declarant is unavailable for trial; and (ii) the defendant had an opportunity to cross-examine the declarant before trial. See 541 U.S. at 59-61, 124 S.Ct. 1354. Crawford v. Washington held that the Confrontation Clause is violated only when testimonial hearsay is admitted against a defendant and the defendant is not given the opportunity to cross-examine the declarant. See 541 U.S. at 59-61, 124 S.Ct. 1354. Crawford v. Washington does not, however, indicate how courts should determine whether a particular statement is testimonial; it instead noted that "various formulations," "articulations," or "definitions" of "testimonial" could be posited, and identified statements that would qualify as testimonial under any definition, but it specifically declined to define the term "testimonial." 541 U.S. at 51-53, 68, 124 S.Ct. 1354. After Crawford v. Washington, the Supreme Court indicated "statements made unwittingly to a Government informant and statements from one prisoner to another" are clearly nontestimonial. Davis v. Washington, 547 U.S. at 825, 126 S.Ct. 2266.

The Supreme Court's decision in Crawford v. Washington undermines Bruton v. United States, because that decision indicates that introducing a non-testifying defendant's confession and using that confession against a codefendant does not offend the Confrontation Clause so long as the confession is nontestimonial. See 541 U.S. at 59-61, 124 S.Ct. 1354. See also United States v. Clark, 717 F.3d 790, 816 (10th Cir. 2013)(Holmes, J.)(concluding that non-testimonial statements "fall outside the protective ambit of the Confrontation Clause and, by extension, Bruton."); United States v. Dale, 614 F.3d 942, 956 (8th Cir. 2010)(holding that defendant's statements to prisoner were not testimonial and that their admission, therefore, did not violate a codefendant's Confrontation Clause rights); United States v. Castro-Davis, 612 F.3d 53, 65 (1st Cir. 2010)(holding that defendant's recorded telephone statements to his mother were nontestimonial); United States v. Smalls, 605 F.3d at 768 n.2 ("[T]he Bruton rule, like the Confrontation Clause on which it is premised, does not apply to nontestimonial hearsay statements."); United States v. Johnson, 581 F.3d 320, 326 (6th Cir. 2009)(holding that, because Bruton v. United States is based on the Confrontation Clause, then it also only applies to testimonial statements, and any non-testimonial statement is not subject to it); United States v. Pike, 292 Fed.Appx. 108, 112 (2d Cir. 2008)("[B]ecause the statement was not testimonial, its admission does not violate either Crawford or Bruton.").

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)(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 765, 787 (10th Cir. 2010)

The decision to admit or exclude evidence pursuant to rule 403 is within the trial court's discretion, see United States v. Lugo, 170 F.3d 996, 1005 (10th Cir. 1999), and the trial 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:

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 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)(Souter, J.). "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.

ANALYSIS

The Court concludes that the four conspiracies that the United States identified at the James hearing, which correspond to the conspiracies that Count 6 and Counts 8-10 charge, exist. See supra FOF ¶¶ 1, 4, 7, 9. The Court also concludes that Sanchez, Baca, Herrera, and Perez were members of the Count 6 conspiracy, see supra FOF ¶ 2, while Baca was a member of the Counts 8-10 conspiracies, see supra FOF ¶¶ 5, 8, 10. The United States has, thus, established that the statements it introduced at the James hearing satisfy two of rule 801(d)(2)(E)'s three elements: (i) that a conspiracy existed; (ii) that the declarant and the defendant were both members; and (iii) that the statement was made during and in furtherance of the conspiracy. See Fed. R. Evid. 801(d)(2)(E).

It is necessary to evaluate particular statements, however, to determine: (i) whether those statements are testimonial; (ii) whether those statements were made during and in furtherance of a particular conspiracy; (iii) whether those statements are admissible for their truth against all the Defendants as declarations against penal interest by an unavailable declarant, see Fed. R. Evid. 804(b)(3), even if rule 801(d)(2)(E) does not apply; and (iv) whether those statements are admissible for their truth against a declarant-Defendant. The Court must also determine whether statements that are admissible against some — but not all — of the Counts 6-10 Defendants are admissible at a joint trial if the Court gives limiting instructions regarding how the jury is permitted to use those statements. In making those determinations, the Court will focus on the Baca, Herrera, and Perez statements that government cooperators — specifically Eric Duran, Billy Cordova, and Archuleta — surreptitiously recorded. See United States' Amended Exhibit List Nos. 177-217, filed January 27, 2018 (Doc. 1713).16 The Court concludes by extending its analysis to other out-of-court statements in a chart listing out-of-court statements and its conclusions regarding those statements.

I. MOST — BUT NOT ALL — OF THE OUT-OF-COURT STATEMENTS THAT THE UNITED STATES IDENTIFIES ARE NONTESTIMONIAL.

Introducing an out-of-court statement for its truth offends the Confrontation Clause when the declarant is not subject to cross-examination only if the statement is testimonial. See Whorton v. Bockting, 549 U.S. 406, 420, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007)("Under Crawford, on the other hand, the Confrontation Clause has no application to [nontestimonial] statements and therefore permits their admission even if they lack indicia of reliability."). Whether a statement is testimonial depends on "whether, in light of all the circumstances, viewed objectively, the `primary purpose' of the conversation was to `creat[e] an out-of-court substitute for trial testimony.'" Ohio v. Clark, ___ U.S. ___, 135 S.Ct. 2173, 2180, 192 L.Ed.2d 306 (2015)(Sotomayor, J.)(quoting Michigan v. Bryant, 562 U.S. 344, 358, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011)). Statements that are not the product of an interrogation can be testimonial, and, "even when an interrogation exists, it is in the final analysis the declarant's statements, not the interrogator's questions, that the Confrontation Clause requires us to evaluate." Davis v. Washington, 547 U.S. at 822 n.1, 126 S.Ct. 2266. Accordingly, "a court measures the declarant's intent" when it determines whether a statement is testimonial, and that measurement is based on an "objective standard." United States v. Smalls, 605 F.3d at 778. It follows that statements made unwittingly to a government informant and statements from one prisoner to another are nontestimonial. See United States v. Smalls, 605 F.3d at 777 ("In Davis, the Court expressed the view that `statements made unwittingly to a Government informant' or `statements from one prisoner to another' are `clearly nontestimonial.'" (quoting Davis v. Washington, 547 U.S. at 825, 126 S.Ct. 2266)).

Sanchez argues, on the contrary, that Michigan v. Bryant — which post-dates both Davis v. Washington and United States v. Smalls — requires a broader inquiry, because,

Sanchez MIL at 9 (emphasis in original). Sanchez' argument does not persuade the Court, however, because Michigan v. Bryant's command that, "[i]n determining whether a declarant's statements are testimonial, courts should look to all of the relevant circumstances," such as "the statements and actions of all participants," did not broaden the primary purpose test. Michigan v. Bryant, 562 U.S. at 369-70, 131 S.Ct. 1143. See id. at 367-68, 131 S.Ct. 1143 ("In many instances, the primary purpose of the interrogation will be most accurately ascertained by looking to the contents of both the questions and the answers."). Instead, it clarified "how the courts are to assess the nature of the declarant's purpose," Michigan v. Bryant, 562 U.S. at 367 n.11, 131 S.Ct. 1143 (emphasis in original), and recognized that, "[i]n many instances, the primary purpose of the interrogation will be most accurately ascertained by looking to the contents of both the questions and the answers," id. at 367-68, 131 S.Ct. 1143. While an interrogator's intent and motivation can help a court ascertain a declarant's purpose, "it is the statements, and not the questions," which must pass constitutional muster. Michigan v. Bryant, 562 U.S. at 367 n.11, 131 S.Ct. 1143.

Many of the statements that the United States identified at the James hearing — including all of the Perez statements that Billy Cordova recorded, see Government's James Exhibit 16 — were made unwittingly to a government informant, and many of those statements were made from one prisoner to another. The Court, in accordance with United States v. Smalls, concludes that those statements are nontestimonial. Likewise, statements that were made in furtherance of a conspiracy are nontestimonial. See United States v. Patterson, 713 F.3d 1237, 1247 (10th Cir. 2013)("[B]ecause these statements were made in furtherance of a conspiracy, they are nontestimonial and present no Sixth Amendment problem."). Perez' statements to Palomares and Mulheron as part of the Molina murder investigation, however, were made to people who Perez knew were law enforcement officials investigating a particular crime, so those statements are testimonial and can be admitted for their truth — against defendants other than Perez — only if Perez testifies. See Sanchez MIL at 9 ("Rudy Perez's statements to NMSP investigator Palomares and Deputy Warden Mulheron are testimonial and should not be admitted at a joint trial as evidence against Mr. Sanchez, unless Mr. Sanchez is provided an opportunity to cross-examine Perez.").17

II. RULE 801(d)(2)(E) DOES NOT APPLY TO STATEMENTS MADE AFTER A CONSPIRACY'S OBJECT IS ACCOMPLISHED OR BECOMES IMPOSSIBLE.

Under rule 801(d)(2)(E), statements "offered against an opposing party and ... made by the party's coconspirator during and in furtherance of the conspiracy" are not, by definition, hearsay. Fed. R. Evid. 801(d)(2)(E). Whether a particular statement was made during and in furtherance of a conspiracy is a question of fact that a judge must determine by a preponderance of the evidence. See Bourjaily v. United States, 483 U.S. 171, 176, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987). See also Fed. R. Evid. 104(a)("The court must decide any preliminary question about whether ... evidence is admissible."). "No 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." United States v. Perez, 989 F.2d 1574, 1578 (10th Cir. 1993). See id. at 1578-79 ("To the contrary, this determination must be made by examining the context in which the challenged statement was made.").

The Tenth Circuit has, however, articulated several rules of thumb. 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,

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 at 1139 (quoting United States v. Williamson, 53 F.3d 1500, 1520 (10th Cir. 1995)).

A coconspirator must make a statement while the conspiracy persists for rule 801(d)(2)(E) to apply. See Fed. R. Evid. 802(d)(2)(E). According to the Supreme Court, 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." Krulewitch v. United States, 336 U.S. 440, 442, 69 S.Ct. 716, 93 S.Ct. 790 (1949)(Black, J.). See United States v. Alcorta, 853 F.3d 1123, 1139 (10th Cir. 2017)("To be sure, to qualify for the coconspirator exception a statement must have been made during the conspiracy. Statements made after the objectives of the conspiracy have either failed or been achieved are not made during the conspiracy and must be excluded."). That rule makes sense, because "[t]here can be no furtherance of a conspiracy that has ended." Lutwak v. United States, 344 U.S. 604, 617-18, 73 S.Ct. 481, 97 S.Ct. 593 (1953)(Minton, J.).

Moreover, once the "central criminal purposes of a conspiracy have been attained, a subsidiary conspiracy to conceal may not be implied from circumstantial evidence showing merely that the conspiracy was kept a secret and that the conspirators took care to cover up their crime in order to escape detection and punishment." Grunewald v. United States, 353 U.S. 391, 401-02, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957)(Harlan, J.)(emphasis in original). The Supreme Court emphasized the "vital distinction ... between acts of concealment done in furtherance of the main criminal objective of the conspiracy, and acts of concealment done after these central objectives have been attained, for the purpose of covering up after the crime." Grunewald v. United States, 353 U.S. at 405, 77 S.Ct. 963. In the former case, "acts of concealment [are] in furtherance of the objectives of the conspiracy itself," — because if a conspiracy is discovered its objectives will, presumably, be thwarted — whereas, "[i]n the latter case, ... the acts of covering up can by themselves indicate nothing more than that the conspirators do not wish to be apprehended — a concomitant, certainly, of every crime since Cain attempted to conceal the murder of Abel from the Lord." Grunewald v. United States, 353 U.S. at 405-06, 77 S.Ct. 963. See id. at 402, 77 S.Ct. 963 ("Acts of covering up, even though done in the context of a mutually understood need for secrecy, cannot themselves constitute proof that concealment of the crime after its commission was part of the initial agreement among the conspirators." (emphasis added)). See also United States v. Silverstein, 737 F.2d 864, 867 (10th Cir. 1984)(Logan, J.)("The duration of a conspiracy does not extend to attempts to conceal the crime.").

The United States has identified four distinct conspiracies for rule 801(d)(2)(E) purposes. The first corresponds to Counts 6 of the Indictment, i.e., the Molina murder. See Dec. 20 Tr. at 215:18-19 (Castellano); Indictment at 13 (Count 6). The central aim of that conspiracy was accomplished with Molina's death on March 7, 2014. See Indictment at 13. The United States alleges that Montoya, M. Rodriguez, Baca, Varela, Sanchez, Herrera, and Perez were members of that conspiracy. See Indictment at 12 (Count 6). The second is "the conspiracy to assault Julian Romero." Dec. 20 Tr. at 215:19-20 (Castellano). See Indictment at 13-14 (Count 8). The Romero conspiracy's central aim was accomplished when Romero was assaulted on July 13, 2015. See Indictment at 13 (Count 8). The United States alleges that Baca, Archuleta, and Villegas were members of the second conspiracy. See Dec. 20 Tr. at 216: 20-22 (Castellano); Indictment at 14 (Count 8). The third conspiracy is "the conspiracy to murder Dwayne Santistevan." Dec. 20 Tr. at 215:22-23 (Castellano). See Indictment at 14 (Count 9). The United States alleges that Baca, R.P. Martinez, and R. Martinez were members of the Santistevan conspiracy. See Indictment at 14 (Count 9). The fourth conspiracy is "a conspiracy to murder Gregg Marcantel." Dec. 20 Tr. at 215:23-24 (Castellano). See Indictment at 15 (Count 10). The United States alleges that Baca, R.P. Martinez, R. Martinez, and C. Garcia were members of the fourth conspiracy. See Indictment at 15 (Count 10). The United States has not identified a fifth separate conspiracy to conceal any of the four charged conspiracies. See Dec. 20 Tr. at 215:16-18 (Castellano)("But I want to make sure we're talking about multiple conspiracies. I think four actually.").18

The United States argues that "Sanchez's statement to Martinez that Sanchez received the shanks from Perez, and Rodriguez's statements to Montoya that the shanks came from Perez's walker" were made during and in furtherance of the conspiracy to kill Molina. Response at 6. See Perez MIL at 1 ("Martinez is expected to testify that Sanchez told him that Mr. Perez gave Sanchez pieces of metal from his walker to be made into shanks...."); id. at 2 ("Jerry Montoya is expected to testify that Mario Rodriguez provided him a shank to use to kill Javier Molina. Montoya is expected to testify that when Rodriguez did so, he inexplicably volunteered that the shank came from Mr. Perez's walker."). According to the United States, those statements furthered the conspiracy, "by allowing all of the Defendants to know from where the shanks came, and from where they did not," which led to "law enforcement follow[ing] the red herring that the SNM planted about the shanks used in the Molina murder coming from the wheelchair program," instead of following "investigatory leads that would lead them to Perez's walker, and Perez's involvement in the Molina murder." Response at 7. The Court concludes that Sanchez and M. Rodriguez made statements regarding the source of the Molina murder weapon during and in furtherance of the Molina conspiracy, because they made those statements while arranging Molina's murder, and convincing T. Martinez and Montoya to participate in the Molina conspiracy. See Nov. 27 Tr. at 163:20-164:14 (Castellano, Acee)(regarding Sanchez' statement); id. at 183:6-13 (Lowry, Acee)(regarding M. Rodriguez' statement).

On the other hand, Perez made statements to Cordova, which Cordova surreptitiously recorded, in February, 2016. See Dec. 20 Tr. at 4-8 (Lowry). Those statements were not made during the conspiracy to kill Molina, because they post-date Molina's death by over a year. Likewise, those statements did not further the conspiracy to kill Molina, because it is impossible to further a terminated conspiracy. That multiple SNM members attempted to conceal SNM's crimes does not permit the Court to infer that those SNM members formed an agreement — tacit or otherwise — to conceal those crimes. See Grunewald v. United States, 353 U.S. at 402, 77 S.Ct. 963 ("Acts of covering up, even though done in the context of a mutually understood need for secrecy, cannot themselves constitute proof that concealment of the crime after its commission was part of the initial agreement among the conspirators." Cf. United States v. Alcorta, 853 F.3d at 1136 (stating that a conspiracy requires "an agreement with another person to violate the law"). Even if the Court could soundly conclude that such a conspiracy existed, there is no evidence that Perez was a member of such a conspiracy. Accordingly, Perez' recorded statements do not qualify as coconspirator statements under rule 801(d)(2)(E).

Contrary to the United States' suggestion, that the Indictment alleges VICAR violations, some of which are based on conspiracy offenses, does not alter the conspiracies' scope. See Response at 8 (arguing that Perez' statements were in furtherance of the conspiracy, even though they occurred years after the Molina murder, "[b]ecause the conspiracy is a VICAR conspiracy to murder, which includes as an element that it was done in furtherance of or to gain some type of benefit from the SNM gang," so Perez' statements indicating involvement in the Molina murder "thus, further his standing in the SNM and the VICAR conspiracy to murder"). That conspiring to commit murder "for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity" violates VICAR is immaterial for rule 802(d)(2)(E) purposes. 18 U.S.C. § 1959. The inquiry under rule 801(d)(2)(E) is whether a statement was made during and in furtherance of a conspiracy, but a VICAR violation is not, itself, a conspiracy even though it may have a conspiracy as its underlying offense.

III. THE STATEMENTS BY ONE SNM MEMBER TO ANOTHER THAT CORDOVA AND DURAN RECORDED ARE NOT ADMISSIBLE HEARSAY UNDER THE STATEMENTS AGAINST PENAL INTEREST EXCEPTION.

An out-of-court statement is admissible hearsay if the declarant is unavailable and if "a reasonable person in the declarant's position would have made [the statement] only if the person believed it to be true because, when made, it ... had so great a tendency ... to expose the declarant to civil or criminal liability." Fed. R. Evid. 804(b)(3)(A). The statement must also be "supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability." Fed. R. Evid. 804(b)(3)(B). In United States v. Smalls, the Tenth Circuit declared that "[w]e 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." 605 F.3d at 783.

Making that surmise is not safe, however, when the declarant makes a statement while in prison to someone who is apparently a fellow prison-gang member and not just an acquaintance or friend. While people in ordinary situations expose themselves to both social censure and criminal liability when they falsely confess to committing a crime, prison-gang members speaking to fellow members earn social benefits — such as respect or an appearance of power — when they make inculpatory claims. Further, law enforcement agents are unlikely to learn of such claims from the declarant's fellow prison-gang members, because prison-gang members face violent retaliation for collaborating with law enforcement. Consequently, a reasonable prison-gang member might make self-inculpatory statements even if those statements were not true. Accordingly, such statements are not typically admissible under rule 804(b)(3).

That generalization is true in Perez' case, because, when Perez made his statements to Cordova, prison-yard rumors indicated, falsely, that Perez cooperated with the United States regarding the Molina murder. Perez' statements to Cordova suggest that those life-threatening rumors are false, because they demonstrate loyalty to the SNM, and because, if Perez helped carry out the Molina murder, then providing information to law enforcement would expose him to criminal liability. Consequently, a reasonable person in Perez' position might make self-incriminating statements regarding the Molina murder to another SNM member to combat life-threatening prison-yard rumors, even if those self-incriminating statements were not true. Accordingly, Perez' statements do not satisfy rule 804(b)(3) of the Federal Rules of Evidence and are not admissible as statements against the declarant's penal interest.

IV. AN OUT-OF-COURT STATEMENT IS ADMISSIBLE FOR ITS TRUTH UNDER RULE 801(D)(2)(A) TO THE EXTENT THAT IT IS OFFERED AGAINST THE PERSON WHO MADE THE STATEMENT.

A statement is not hearsay if it is offered against a party and it was "made by the party in an individual or representative capacity." Fed. R. Evid. 801(d)(2)(A). Rule 801(d)(2)(A) does not, however, permit such a statement to be used against anyone other than the party who made the statement, such as codefendants. See United States v. Wolf, 839 F.2d 1387, 1393 & n.4 (10th Cir. 1988)(analyzing whether five statements, which were admissible against one defendant under rule 801(d)(2)(A), were admissible against another defendant under different evidentiary rules). See also Stephen A. Saltzburg, Michael M. Martin et al., Federal Rules of Evidence Manual § 801.02[6][c] (11th ed. 2017)("All that is required to satisfy Rule 801(d)(2)(A) is that the statement was made by the party and that it is offered at trial by a party-opponent."). Rule 801(d)(2)(A) applies only when a statement is offered "against an opposing party," and codefendants are not opposing parties, so one defendant cannot use rule 801(d)(2)(A) offer another defendant's statement for its truth. See United States v. Gossett, 877 F.2d 901, 906 (11th Cir. 1989)("The testimony was not admissible under Rule 801(d)(2) because the admission sought to be introduced was made by a co-defendant who is not a party opponent. The Government is the party opponent of both defendants."); United States v. Harwood, 998 F.2d 91, 97 (2d Cir. 1993)(quoting United States v. Gossett, 877 F.2d at 906). But see Federal Rules of Evidence Manual § 801.02[6][b] ("We think that the Harwood court's construction of the Rule 801(d)(2)(A) exemption is questionable. It smacks of technicality."); id. ("We also note that the Harwood reading of the rule ends up treating civil and criminal defendants unequally.... Criminal defendants, however, cannot file cross-claims, and are therefore totally dependent on the government's decision whether to admit the statement of one of the codefendants.").

Complications arise when a statement is admissible against the party who made it and that statement contains an embedded statement attributed to someone else. For example, Perez' statements that Cordova recorded contain statements that Perez attributes to Baca. Perez' statements are admissible, under rule 801(d)(2)(A), for their truth against Perez and not Baca, so they are admissible to show, as to Perez, that Baca made particular statements. Consequently, that Baca made those statements can be used against Perez for non-hearsay purposes, e.g., to show the statement's effect on the hearer. Those out-of-court Baca statements are not, however, admissible for their truth against Perez under rule 801(d)(2)(A), because Perez did not make those statements. 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.").

As against Baca, rule 801(d)(2)(A) permits any statements that Baca made — including the Baca statements that Perez related to Cordova — to be used against Baca for their truth notwithstanding rule 802's general hearsay prohibition. Admitting those statements also requires, however, an evidentiary foundation that shows that the statements are what they purport to be. See Fed. R. Evid. 901 ("[T]he proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is."); Stephen A. Saltzburg, Michael M. Martin et al., Federal Rules of Evidence Manual § 901.02[1] ("[W]hen a witness testifies to statements made by someone else, the witness must be able to identify the person from whom the statements emanated so that the trier of fact is able to properly attribute the statements."); id. § 901.02[2] (stating that, without an admissible foundation, "the evidence will not be relevant"). See also; Fed. R. Evid. 901 advisory committee notes ("This requirement of showing authenticity or identity falls in the category of relevancy dependent upon fulfillment of a condition of fact and is governed by the procedure set forth in Rule 104(b)."); Fed. R. Evid. 104(b)("When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist."). Because Perez' statements are admissible against only Perez under rule 801(d)(2)(A), Perez' statements cannot authenticate — as against Baca — the Baca statements that Perez related to Cordova unless some other rule permits those statements to be offered against Baca for their truth. See Johnson v. Weld County, 594 F.3d 1202, 1208 (10th Cir. 2010)(Gorsuch, J.)("Because the district court couldn't consider the hearsay statements of Mr. Bogott, Ms. Burns, or Mr. Willoughby, by necessity it couldn't consider anything contained within them, including Mr. Speckman's alleged party-opponent admissions."); id. at 1209 (concluding that "Mr. Speckman's comments" were not admissible — notwithstanding assertions that those comments were admissions of a party opponent — because the only way "to prove the act of Mr. Speckman's comments [wa]s through Mr. Bogott's, Ms. Burns's, and Mr. Willoughby's out-of-court hearsay statements"). See also Stephen A. Saltzburg, Michael M. Martin et al., Federal Rules of Evidence Manual § 901.02[1] ("In order for the trier of fact to make a rational decision as to authenticity, the foundation evidence must itself be admissible."). Accordingly, Perez' statements to Cordova are not admissible against Baca.

V. UNDER TENTH CIRCUIT PRECEDENT, A NONTESTIMONIAL STATEMENT IMPLICATING SEVERAL DEFENDANTS CAN BE ADMITTED AGAINST ONE DEFENDANT EVEN IF IT IS NOT ADMISSIBLE AGAINST THE OTHERS.

Many United States Courts of Appeal have read Bruton v. United States as a Confrontation Clause case and concluded that it does not apply to nontestimonial statements. See United States v. Rodriguez, 591 Fed.Appx. 897, (11th Cir. 2015)("[A]s Bruton was premised on the Confrontation Clause, its protections only apply to testimonial statements."); United States v. Vasquez, 766 F.3d 373, 379 (5th Cir. 2014); United States v. Clark, 717 F.3d 790, 814 (10th Cir. 2013)(Holmes, J.)(concluding that nontestimonial statements "fall outside the protective ambit of the Confrontation Clause and, by extension, Bruton"); United States v. Dargan, 738 F.3d 643, (4th Cir. 2013)("Bruton is simply irrelevant in the context of nontestimonial statements."); United States v. Berrios, 676 F.3d 118 (3d Cir. 2012)(Fisher, J.)("Bruton is no more than a by-product of the Confrontation Clause...."); United States v. Figueroa-Cartagena, 612 F.3d 69, 85 (1st Cir. 2010)(Lipez, J., joined by Baldock, J., sitting by designation)(stating that, when applying Bruton v. United States, "[t]he threshold question in every case is whether the challenged statement is testimonial"); United States v. Johnson, 581 F.3d 320, 326 (6th Cir. 2009)(Cole, J.)("Because it is premised on the Confrontation Clause, the Bruton rule, like the Confrontation Clause itself, does not apply to nontestimonial statements."); United States v. Vargas, 570 F.3d 1004, 1009 (8th Cir. 2009)(Wollman, J.)("Garcia's statement identifying Vargas as his source was not testimonial and thus did not implicate Vargas's Sixth Amendment confrontation clause right. We find no Bruton error."); United States v. Pike, 292 Fed.Appx. 108, 112 (2d Cir. 2008)(per curiam)(stating that "because the statement was not testimonial, its admission does not violate either Crawford v. Washington ... or Bruton v. United States....").

On the other hand, commentators, scholars, and the District of Columbia Court of Appeals19 have read Bruton v. United States as a limiting-instruction case and not only as a Confrontation Clause case, i.e. as a case defining an exception to the general rule that juries obey limiting instructions. See Fed. R. Evid. 105 advisory committee note ("In Bruton v. United States, 389 U.S. 818, 88 S.Ct. 126, 19 L.Ed.2d 70 (1968), the Court ruled that a limiting instruction did not effectively protect the accused against the prejudicial effect of admitting in evidence the confession of a codefendant which implicated him."); Colin Miller, Avoiding a Confrontation — How Courts Have Erred in Finding That Non-Testimonial Hearsay is Beyond the Scope of the Bruton Doctrine, 77 BROOK. L. REV. 625, 626 (2012)("Bruton focuses upon the damage to a defendant's case based upon the admission of his codefendant's statement, not the (un)reliability of that statement. Therefore, the doctrine depends on the inadmissibility of codefendant confessions combined with their harmfulness, not their constitutional unreliability."); Jason Portwood Hipp, Redacting the Constitution: Securing Bruton's Confrontation Protections for a Codefendant During Non-Evidentiary Counsel Commentary, 44 COLUM. HUM. RTS. L. REV. 259, 264 (2012)("While Crawford arguably limited Bruton violations to testimonial hearsay, the key factor for a Bruton analysis is a judge's evaluation of the efficacy of jury instructions." (footnote omitted)); Thomas v. United States, 978 A.2d 1211, 1233 (D.C. Ct. App. 2009)(Glickman, J.)(concluding that "the principles governing redaction under Bruton apply" to one defendant's nontestimonial statements "that were not admissible against [a codefendant] under any hearsay exception"). See also United States v. Williams, No. CR 09-0414, 2010 WL 3909480, at *5 (E.D. Va. Sept. 23 2010)(Cacheris, J.)("[T]he Court finds that the statements at issue in this case may implicate Bruton, even if they are not testimonial under Crawford." (emphasis in original))

Under the academic view, the Supreme Court's Confrontation Clause analysis in Bruton v. United States broke no new ground, because there was no doubt, when Bruton v. United States was decided, that using a non-testifying defendant's confession against a codefendant was impermissible. See Bruton v. United States, 391 U.S. at 128 n.3, 88 S.Ct. 1620 ("We emphasize that the hearsay statement inculpating petitioner was clearly inadmissible against him under traditional rules of evidence...."). See also, e.g., Tong's Case, 84 Eng. Rep. 1061, 1062 (1662)(permitting, when "a conspirator be examined before a privy councellor or a justice of peace, and upon his examination without torture confess the treason," the use of that confession against that conspirator at trial even though "the confession there spoken of, is not meant a confession before the Judges at his trial, but a confession upon his examination," with the proviso that the confession "is only evidence against the party himself who made the confession, but cannot be made use of as evidence against any others whom on his examination he confessed to be in the treason."), cited in Crawford v. Washington, 541 U.S. at 45, 124 S.Ct. 1354.

Bruton v. United States addressed instead, again according to the academic view, whether giving a limiting instruction permits courts to admit an out-of-court confession against a declarant-defendant without admitting the confession against a codefendant it implicates. See Bruton v. United States, 391 U.S. at 124, 88 S.Ct. 1620. That the Supreme Court "granted certiorari to reconsider Delli Paoli [v. United States, 389 U.S. 818 [352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957)]," Bruton v. United States, 391 U.S. at 125, 88 S.Ct. 1620, strongly suggests that Bruton v. United States dealt with a limiting-instruction issue and not a Confrontation Clause issue, because Delli Paoli v. United States does not even mention the Confrontation Clause. That case addresses only a limiting instruction's efficacy. See Delli Paoli v. United States, 352 U.S. at 239, 77 S.Ct. 294 ("The issue here is whether, under all the circumstances, the court's instructions to the jury provided petitioner with sufficient protection so that the admission of Whitley's confession, strictly limited to use against Whitley, constituted reversible error."). See also Bruton v. United States, 391 U.S. at 126, 88 S.Ct. 1620 ("The basic premise of Delli Paoli was that it is `reasonably possible for the jury to follow' sufficiently clear instructions to disregard the confessor's extrajudicial statement that his codefendant participated with him in committing the crime." (quoting Delli Paoli v. United States, 352 U.S. at 239, 77 S.Ct. 294)); United States v. Clark, 717 F.3d 790, 814 (10th Cir. 2013)(stating that "Bruton provides the foundation for affirmative remedial measures — most notably severance — upon a proper showing that a codefendant's statement offered into evidence would inculpate the defendant," and that "[t]hese measures are meant to avoid the extrinsic (i.e. collateral) damage to a defendant from the jury's undue consideration of a co-defendant's facially inculpatory statement — a factor that the jury would be highly unlikely to `disregard' and one that cannot be remedied by a curative instruction"). Bruton v. United States resolves that disputed issue by holding that "the almost invariable assumption of the law that jurors follow their instructions" does not apply when a defendant's confession that implicates codefendants is admitted at a joint trial. Richardson v. Marsh, 481 U.S. at 206, 107 S.Ct. 1702. See Bruton v. United States, 391 U.S. at 128, 88 S.Ct. 1620 ("Delli Paoli assumed that this encroachment on the right to confrontation could be avoided by the instruction to the jury to disregard the inadmissible hearsay evidence. But, as we have said, that assumption has since been effectively repudiated." (footnote omitted)).

Bruton v. United States' exception to the general rule that juries can and will obey limiting instructions implicates the Confrontation Clause, because, absent Bruton v. United States, courts could side-step Confrontation Clause issues in joint trials by instructing juries to use one defendants' out-of-court statements against that defendant only and not against codefendants. See Bruton v. United States, 391 U.S. at 126, 88 S.Ct. 1620 ("If it were true that the jury disregarded the reference to the codefendant, no question would arise under the Confrontation Clause, because by hypothesis the case is treated as if the confessor made no statement inculpating the nonconfessor."). See also Richardson v. Marsh, 481 U.S. at 206, 107 S.Ct. 1702 ("Ordinarily, a witness whose testimony is introduced at a joint trial is not considered to be a witness `against' a defendant if the jury is instructed to consider that testimony only against a codefendant."). Bruton v. United States recognizes, however, that "the practical and human limitations of the jury system" render that route around the Confrontation Clause impassible when "the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial." Bruton v. United States, 391 U.S. at 135-36, 88 S.Ct. 1620. See Cruz v. New York, 481 U.S. 186, 190, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987)(Scalia, J.)(reading Bruton v. United States to hold that the principle that "a witness whose testimony is introduced in a joint trial with the limiting instruction that it be used only to assess the guilt of one of the defendants will not be considered to be a witness `against' the other defendants" does not "validate, under the Confrontation Clause, introduction of a nontestifying codefendant's confession implicating the defendant, with instructions that the jury should disregard the confession insofar as its consideration of the defendant's guilt is concerned"). That roundabout analysis means — at least in pre-Crawford v. Washington cases — that "the rule announced in Bruton v. United States ... forbids the prosecution to introduce a nontestifying codefendant's confession implicating [another] defendant in the crime." Greene v. Fisher, 565 U.S. 34, 132 S.Ct. 38, 181 L.Ed.2d 336 (2011)(Scalia, J.).

The academic view reasons that, after Crawford v. Washington, however, the Confrontation Clause does not police the use of nontestimonial statements, so it no longer matters, for Confrontation Clause purposes, whether limiting instructions restrain how juries use nontestimonial confessions in joint trials. See Whorton v. Bockting, 549 U.S. at 420, 127 S.Ct. 1173 (stating that "the Confrontation Clause has no application to [nontestimonial] statements"). It follows that, notwithstanding Bruton v. United States, permitting the admission of nontestimonial confessions in multiple-defendant trials does not offend the Confrontation Clause, i.e., "the Bruton rule, like the Confrontation Clause upon which it is premised, does not apply to nontestimonial hearsay statements." United States v. Smalls, 605 F.3d at 768 n.2. See United States v. Clark, 717 F.3d at 816 (concluding that nontestimonial statements "fall outside the protective ambit of the Confrontation Clause and, by extension, Bruton.").

In the absence of binding precedent, the Court would agree with the academic view that the Supreme Court's recent Confrontation Clause decisions do not mean that Bruton v. United States is absolutely silent regarding nontestimonial statements. The Court agrees that Crawford v. Washington's discussion of Roman law, see 541 U.S. at 43, 124 S.Ct. 1354, "Marian bail and committal statutes," 541 U.S. at 44, 124 S.Ct. 1354, and "the 1603 trial of Sir Walter Raleigh for treason," 541 U.S. at 44, 124 S.Ct. 1354, does not impact "the practical and human limitations of the jury system," Bruton v. United States, 391 U.S. at 135, 88 S.Ct. 1620, or call Bruton v. United States' rationale into question see Richardson v. Marsh, 481 U.S. at 211, 107 S.Ct. 1702 (declaring that "we continue to apply Bruton where we have found its rationale validly applies"). Consequently, even though a nontestimonial statement's admissibility is no longer a constitutional issue, see United States v. Smalls, 605 F.3d at 780 ("[T]he only question pertinent to the admissibility of a nontestimonial statement is whether it meets the requirements of the Federal Rules of Evidence."), Bruton v. United States' holding — i.e., a jury may not follow a limiting instruction regarding a defendant's out-of-court statements, so they are admissible only if they are admissible against all the defendants they directly implicate — should remain good law no matter whether a statement is testimonial until and unless the Supreme Court expressly says otherwise.

If it properly could, the Court would, thus, conclude that Bruton v. United States' language regarding the efficacy of limiting instructions applies no matter whether an evidentiary rule or a constitutional one renders a defendant's out-of-court statement inadmissible against codefendants.20 Accordingly, the United States would be forced to: (i) redact Perez' statements that are admissible for their truth solely under rule 801(d)(2)(A) such that they do not directly implicate Sanchez, Baca, or Herrera; (ii) try Perez alongside Sanchez, Baca, and Herrera without resort to Perez' statements that are admissible for their truth only under rule 801(d)(2)(A) and directly implicate Baca, Herrera, or Sanchez; or (iii) proceed against Perez in a single-defendant trial.

The Court is not, however, free to restrict the United States' case so severely, because it must obey Tenth Circuit precedent stating that Bruton v. United States does not apply to nontestimonial statements. See, e.g., United States v. Clark, 717 F.3d at 816 (concluding that statements which a coconspirator made in furtherance of the conspiracy are nontestimonial, and therefore "fall outside the protective ambit of the Confrontation Clause and, by extension, Bruton"); United States v. Patterson, 713 F.3d at 1247 ("The admission of these two statements violated neither Crawford nor Bruton because both statements were made in furtherance of a conspiracy and were therefore nontestimonial."). A careful examination of Tenth Circuit precedent shows that the Tenth Circuit's statements are dicta, because none of them analyzed a defendant statement that was nontestimonial and not admissible, under the Federal Rules of Evidence, against a codefendant which the statement implicated. The defendant in United States v. Smalls was not convicted in a joint trial. See 605 F.3d at 768 ("The district court severed the trials of Defendant Smalls and Cook as a result of an out-of-court statement Cook made to a confidential informant (CI), also an inmate at the detention center, implicating both himself and Defendant Smalls in the murder."). Further, the nontestimonial statements at issue in United States v. Smalls were admissible for their truth as declarations against interest by an unavailable declarant no matter against whom those statements were offered. See 605 F.3d at 785-86 (applying rule 804(3) of the Federal Rules of Evidence). On the other hand, a coconspirator made the out-of-court statements at issue in United States v. Clark and United States v. Patterson in furtherance of the conspiracy, which rendered them both nontestimonial and admissible — under rule 801(d)(2)(E) — for their truth against all the defendants they implicated. See United States v. Clark, 717 F.3d at 816; United States v. Patterson, 713 F.3d at 1247.

If the issue comes squarely before it, perhaps via an appeal taken by the Defendants in this case, the Tenth Circuit may decide that the Court took United States v. Clark, United States v. Patterson, and United States v. Smalls too literally, and instead apply Supreme Court precedent to limit their unnecessarily overbroad pronouncements regarding the application of Bruton v. United States to nontestimonial statements. See EEOC v. BCI Coca-Cola Bottling Co., 450 F.3d 476, 488 (10th Cir. 2006)("[T]he district court in this case seems to have taken the `rubber stamp' metaphor too literally, requiring that an explicit recommendation must cross the desk of the decisionmaker...."); English v. Colo. Dep't of Corrections, 248 F.3d 1002, 1011 (10th Cir. 2001)(Ebel, J.)(stating that a plaintiff can recover on a rubber-stamp theory only if "`the decisionmaker followed [a] biased recommendation... without independently investigating the complaint against the employee'" (quoting Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir. 1999)). Unless the Tenth Circuit does so, however, the Court must obey those pronouncements:

Stephen E. Sachs, Pennoyer Was Right, 95 TEXAS L. REV. 1249, 1324 (2017)(emphasis and second alteration in the original)(footnotes omitted)(quoting Burnham v. Superior Court, 495 495 U.S. 604, 623, 110 S.Ct. 2105, 109 L.Ed.2d 631 (1990)(Scalia, J., plurality opinion)).

The Court's preferred reading of Bruton v. United States, i.e. as a limiting instruction case and not just as a direct application of the Confrontation Clause, is importantly different from Sanchez' argument that "Jackson [v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964)] and Bruton clearly recognize that a criminal defendant has a Due Process right not to be convicted with inadmissible evidence." Sanchez MIL at 20. Both state and federal courts must observe due process of law, see U.S. Const. amends. V, XIV § 1, so, if Sanchez' argument rooting Bruton v. United States in due process is correct, then neither state nor federal courts can depart from that case's determination that admitting "the powerfully incriminating extrajudicial statements of a codefendant" creates a "risk that the jury will not, or cannot, follow instructions [that] is so great ... that the practical and human limitations of the jury system cannot be ignored." Bruton v. United States, 391 U.S. at 135, 88 S.Ct. 1620.

Contrary to Sanchez' argument, however, the Constitution permits state courts to admit one defendant's out-of-court statement implicating a codefendant — even when the statement is "hearsay as to the latter, and therefore inadmissible against him under state evidence law" — if the declarant-defendant testifies. Nelson v. O'Neil, 402 U.S. 622, 626, 91 S.Ct. 1723, 29 L.Ed.2d 222 (1971)(Stewart, J.). But see Roberts v. Russell, 392 U.S. 293, 293-94, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968)(concluding that state courts cannot admit a defendant's out-of-court statements that implicate a codefendant if the declarant-defendant does not testify).21 The Supreme Court rejected the proposition that "the Federal Constitution forbids the States to assume that juries can follow instructions that tell them to wipe their minds of highly damaging, incriminating admissions of one defendant that simultaneously incriminate another defendant." Nelson v. O'Neil, 402 U.S. at 634, 91 S.Ct. 1723 (Brennan, J., dissenting). Nelson v. O'Neil instead permits states, in crafting evidentiary rules, to depart from the federal "rule that juries are presumed to follow their instructions" and Bruton v. United States' exception to that rule. Richardson v. Marsh, 481 U.S. at 211, 107 S.Ct. 1702. See Bruton v. United States, 391 U.S. at 127, 88 S.Ct. 1620. Consequently, "due process of law," U.S. Const. amend. XIV § 1, does not incorporate that federal rule.

VI. THE COURT MAKES THE FOLLOWING DETERMINATIONS REGARDING STATEMENTS THAT THE DEFENDANTS HAVE NOT SPECIFICALLY IDENTIFIED AS OBJECTIONABLE.

The Court applies its evidentiary analysis to particular statements that the United States presented during the Court's James hearing. In the following table, the Court designates statements by both declarant and transcript citation. That table also contains the Court's conclusions.

Declarant(s)               Citation                            The Court's Conclusions

Baca                 Nov. 27 Tr. at 147:8-16          Nontestimonial; rule 801(d)(2)(E) applies as
                                                      against Counts 6-7 Defendants

Calbert and Baca     Nov. 27 Tr. at 149:17-21         Nontestimonial; rule 801(d)(2)(E) applies as
                                                      against Counts 6-7 Defendants

Baca                 Nov. 27 Tr. at 149:17-21         Nontestimonial; rule 801(d)(2)(E) applies as
                                                      against Counts 6-7 Defendants

M. Rodriguez and     Nov. 27 Tr. at 150:11-20         Nontestimonial; rule 801(d)(2)(E) applies as
T. Martinez                                           against Counts 6-7 Defendants

T. Martinez          Nov. 27 Tr. at 150:11-20         Nontestimonial; rule 801(d)(2)(E) applies as
                                                      against Counts 6-7 Defendants

Herrera              Nov. 27 Tr. at 151:1-13          Nontestimonial; rule 801(d)(2)(A) applies as
                                                      against Herrera; the Court will give a limiting
                                                      instruction as to Sanchez, Baca, and Perez

M. Rodriguez         Nov. 27 Tr. at 152:8-24          Nontestimonial

Sanchez              Nov. 27 Tr. at 153:6-10          Nontestimonial; rule 801(d)(2)(A) applies as
                                                      against Sanchez; rule 803(3) applies generally

Gomez                Nov. 27 Tr. at 153:19-154:5      Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Count 8 Defendants; the Court will give a
                                                      limiting instruction as to Sanchez, Herrera, and
                                                      Perez

Baca                 Nov. 27 Tr. at 153:19-154:5      Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Count 8 Defendants; the Court will give a
                                                      limiting instruction as to Sanchez, Herrera, and
                                                      Perez

M. Rodriguez         Nov. 27 Tr. at 155:19-159:2      Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Counts 6-7 Defendants

M. Rodriguez         Nov. 27 Tr. at 159:10-160:5      Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Counts 6-7 Defendants

M. Rodriguez         Nov. 27 Tr. at 160:6-161:4       Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Counts 6-7 Defendants

Sanchez              Nov. 27 Tr. at 160:6-161:4       Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Counts 6-7 Defendants

Sanchez              Nov. 27 Tr. at 161:5-162:13      Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Counts 6-7 Defendants

M. Rodriguez         Nov. 27 Tr. at 162:14-163:25     Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Counts 6-7 Defendants

Sanchez              Nov. 27 Tr. at 164:4-14          Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Counts 6-7 Defendants

Baca                 Nov. 27 Tr. at 164:23-165:16     Nontestimonial; rule 801(d)(2)(A) applies as to
                                                      Baca; the Court will give a limiting instruction as
                                                      to Sanchez, Herrera, and Perez

Gomez                Nov. 27 Tr. at 164:23-165:16     Nontestimonial

Baca                 Nov. 27 Tr. at 167:5-18          Nontestimonial; rule 801(d)(2)(A) applies as to
                                                      Baca; the Court will give a limiting instruction as
                                                      to Sanchez, Herrera, and Perez

C. Garcia            Nov. 27 Tr. at 167:19-169:6      Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Count 9-10 Defendants; the Court will give a
                                                      limiting instruction as to Sanchez, Herrera, and
                                                      Perez

Baca                 Nov. 27 Tr. at 167:19-169:6      Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Count 9-10 Defendants; the Court will give a
                                                      limiting instruction as to Sanchez, Herrera, and
                                                      Perez

Sanchez              Nov. 28 Tr. at 40:23-41:8        Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Counts 6-7 Defendants

R. Martinez          Nov. 28 Tr. at 41:14-20          Nontestimonial

Sanchez              Nov. 28 Tr. at 42:1-14           Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Counts 6-7 Defendants

Herrera              Nov. 28 Tr. at 42:15-21          Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Counts 6-7 Defendants

Sanchez              Nov. 28 Tr. at 42:22-43:14       Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Counts 6-7 Defendants

Perez                Nov. 28 Tr. at 43:9-14           Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Counts 6-7 Defendants

T. Martinez          Nov. 28 Tr. at 43:15-44:15       Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Counts 6-7 Defendants

M. Rodriguez         Nov. 28 Tr. at 43:15-44:15       Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Counts 6-7 Defendants

M. Rodriguez         Nov. 28 Tr. at 45:5-8            Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Counts 6-7 Defendants

Montoya              Nov. 28 Tr. at 45:12-15          Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Counts 6-7 Defendants

Sanchez              Nov. 28 Tr. at 45:15-20          Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Counts 6-7 Defendants

M. Rodriguez         Nov. 28 Tr. at 45:22-46:4        Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Counts 6-7 Defendants

Montoya              Nov. 28 Tr. at 46:5-6            Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Counts 6-7 Defendants

M. Rodriguez         Nov. 28 Tr. at 46:6-9            Nontestimonial

Molina               Nov. 28 Tr. at 46:6-9            Nontestimonial; rule 804(b)(2) applies

M. Rodriguez         Nov. 28 Tr. at 46:10-15          Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Counts 6-7 Defendants

Herrera              Nov. 28 Tr. at 46:10-15          Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Counts 6-7 Defendants

R.P. Martinez        Nov. 29 Tr. at 229:16-230:4      Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Counts 9-10 Defendants; the Court will give a
                                                      limiting instruction as to Sanchez, Herrera, and
                                                      Perez

R.P. Martinez        Nov. Tr. at 230:6-19             Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Counts 9-10 Defendants; the Court will give a
                                                      limiting instruction as to Sanchez, Herrera, and
                                                      Perez

R.P. Martinez        Nov. 29 Tr. at 230:22-232:14     Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Counts 9-10 Defendants; the Court will give a
                                                      limiting instruction as to Sanchez, Herrera, and
                                                      Perez

R. Martinez          Nov. 29 Tr. at 232:15-233:7      Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Counts 9-10 Defendants; the Court will give a
                                                      limiting instruction as to Sanchez, Herrera, and
                                                      Perez

R. Martinez          Nov. 29 Tr. at 233:7-24          Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Counts 9-10 Defendants; the Court will give a
                                                      limiting instruction as to Sanchez, Herrera, and
                                                      Perez

Baca                 Nov. 29 Tr. at 233:25-234:19     Nontestimonial; rule 801(d)(2)(A) applies as to
                                                      Baca; rule 803(3) applies generally

Baca                 Nov. 29 Tr. at 234:19-25         Nontestimonial; rule 801(d)(2)(A) applies as to
                                                      Baca; the court will give a limiting instruction as
                                                      to Sanchez, Herrera, and Perez

Baca                 Nov. 29 Tr. at 236:21-237:5      Nontestimonial; rule 801(d)(2)(A) applies as to
                                                      Baca; rule 803(3) applies generally

Baca                 Nov. 29 Tr. at 237:15-25         Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Counts 9-10 Defendants; the Court will give a
                                                      limiting instruction as to Sanchez, Herrera, and
                                                      Perez

R. Martinez          Nov. 29 Tr. at 237:15-25         Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Counts 9-10 Defendants; the Court will give a
                                                      limiting instruction as to Sanchez, Herrera, and
                                                      Perez

Baca                 Nov. 29 Tr. at 238:3-11          Nontestimonial; rule 801(d)(2)(A) applies as to
                                                      Baca; the Court will give a limiting instruction as
                                                      to Sanchez, Herrera, and Perez

Montoya              Nov. 29 Tr. at 238:3-11          Nontestimonial

Baca                 Nov. 29 Tr. at 238:25-239:3      Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Counts 9-10 Defendants; the Court will give a
                                                      limiting instruction as to Sanchez, Herrera, and
                                                      Perez

Baca                 Nov. 29 Tr. at 239:3-8           Nontestimonial; rule 801(d)(2)(A) applies as to
                                                      Baca; rule 803(3) applies generally

Baca                 Nov. 29 Tr. at 239:18-240:3      Nontestimonial; rule 801(d)(2)(A) applies as to
                                                      Baca; rule 803(3) applies generally

Baca                 Nov. 29 Tr. at 240:10-15         Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Count 9 Defendants; the Court will give a
                                                      limiting instruction as to Sanchez, Herrera, and
                                                      Perez

Baca                 Nov. 29 Tr. at 240:15-21         Nontestimonial; rule 801(d)(2)(A) applies as to
                                                      Baca; rule 803(3) applies generally

Baca                 Nov. 29 Tr. at 241:3-4           Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Count 10 Defendants; the Court will give a
                                                      limiting instruction as to Sanchez, Herrera, and
                                                      Perez

Baca                 Nov. 29 Tr. at 241:19-21         Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Counts 9-10; the Court will give a limiting
                                                      instruction as to Sanchez, Herrera, and Perez

Baca                 Nov. 29 Tr. at 242:11-25         Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Count 9 Defendants; the Court will give a
                                                      limiting instruction as to the other Defendants

Baca                 Nov. 29 Tr. at 243:3-18          Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Count 9 Defendants; the Court will give a
                                                      limiting instruction as to Sanchez, Herrera, and
                                                      Perez

Baca                 Nov. 29 Tr. at 243:24-244:7      Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Count 9 Defendants; the Court will give a
                                                      limiting instruction as to Sanchez, Herrera, and
                                                      Perez

Baca                 Nov. 29 Tr. at 244:10-11         Nontestimonial; rule 801(d)(2)(A) applies as to
                                                      Baca; the Court will give a limiting instruction as
                                                      to Sanchez, Herrera, and Perez

Baca                 Nov. 29 Tr. at 244:25-245:5      Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Counts 9-10 Defendants; the Court will give a
                                                      limiting instruction as to Sanchez, Herrera, and
                                                      Perez

Baca                 Nov. 29 Tr. at 245:12-17         Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Counts 9-10 Defendants; the Court will give a
                                                      limiting instruction as to Sanchez, Herrera, and
                                                      Perez

Baca                 Nov. 29 Tr. at 245:24-246:9      Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Counts 9-10 Defendants; the Court will give a
                                                      limiting instruction as to Sanchez, Herrera, and
                                                      Perez

Baca                 Nov. 29 Tr. at 247:15-25         Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Counts 10 Defendants; the Court will give a
                                                      limiting instruction as to Sanchez, Herrera, and
                                                      Perez

Baca                 Nov. 29 Tr. at 248:3-7           Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Counts 9-10 Defendants; the Court will give a
                                                      limiting instruction as to Sanchez, Herrera, and
                                                      Perez

Baca                 Nov. 29 Tr. at 248:16-19         Nontestimonial; rule 801(d)(2)(A) applies as to
                                                      Baca; the Court will give a limiting instruction as
                                                      to Sanchez, Herrera, and Perez

Baca                 Nov. 29 Tr. at 249:5-12          Nontestimonial; rule 801(d)(2)(A) applies as to
                                                      Baca; the Court will give a limiting instruction as
                                                      to Sanchez, Herrera, and Perez

Baca                 Nov. 29 Tr. at 250:3-5           Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Counts 9-10 Defendants; the Court will give a
                                                      limiting instruction as to Sanchez, Herrera, and
                                                      Perez

Baca                 Nov. 29 Tr. at 250:11-21         Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Counts 9-10 Defendants; the Court will give a
                                                      limiting instruction as to Sanchez, Herrera, and
                                                      Perez

C. Garcia            Nov. 29 Tr. at 250:11-21         Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Counts 9-10 Defendants; the Court will give a
                                                      limiting instruction as to Sanchez, Herrera, and
                                                      Perez

Baca                 Nov. 29 Tr. at 250:25-251:3      Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Counts 9-10 Defendants; the Court will give a
                                                      limiting instruction as to Sanchez, Herrera, and
                                                      Perez

C. Garcia            Nov. 29 Tr. at 250:25-251:3      Nontestimonial; rule 801(d)(2)(E) applies as to

                                                      Counts 9-10 Defendants; the Court will give a
                                                      limiting instruction as to Sanchez, Herrera, and
                                                      Perez

Baca                 Nov.29 Tr. at 251:8-17           Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Counts 9-10 Defendants; the Court will give a
                                                      limiting instruction as to Sanchez, Herrera, and
                                                      Perez

Baca                 Nov. 29 Tr. at 252:14-21         Nontestimonial; rule 801(d)(2)(A) applies as to
                                                      Baca; rule 803(3) applies generally

Baca                 Nov. 29 Tr. at 256:17-25         Nontestimonial; rule 801(d)(2)(A) applies as to
                                                      Baca; rule 803(3) applies generally

Baca                 Nov. 29 Tr. at 257:7-11          Nontestimonial; rule 801(d)(2)(A) applies as to
                                                      Baca; rule 803(3) applies generally

Baca                 Nov. 29 Tr. at 257:13-14         Nontestimonial; rule 801(d)(2)(A) applies as to
                                                      Baca; rule 803(3) applies generally

Baca                 Nov. 29 Tr. at 257:15-16         Nontestimonial; rule 801(d)(2)(A) applies as to
                                                      Baca; the Court will give a limiting instruction as
                                                      to Sanchez, Herrera, and Perez

Baca                 Nov. 29 Tr. at 257:17-18         Nontestimonial; rule 801(d)(2)(A) applies as to
                                                      Baca; the Court will give a limiting instruction as
                                                      to Sanchez, Herrera, and Perez

Baca                 Nov. 29 Tr. at 257:19-21         Nontestimonial; rule 801(d)(2)(A) applies as to
                                                      Baca; the Court will give a limiting instruction as
                                                      to Sanchez, Herrera, and Perez

Duran                Nov. 29 Tr. at 257:20-21         Nontestimonial

M. Rodriguez         Nov. 29 Tr. at 257:20-21         Nontestimonial; rule 803(3) applies

Baca                 Nov. 29 Tr. at 257:21-22         Nontestimonial; rule 801(d)(2)(A) applies as to
                                                      Baca; the Court will give a limiting instruction as
                                                      to Sanchez, Herrera, and Perez

Baca                 Nov. 29 Tr. at 257:25            Nontestimonial; rule 801(d)(2)(A) applies as to
                                                      Baca; the Court will give a limiting instruction as
                                                      to Sanchez, Herrera, and Perez

M Rodriguez          Nov. 29 Tr. at 257:25            Nontestimonial

Baca                 Nov. 29 Tr. at 258:12-20         Nontestimonial; rule 801(d)(2)(A) applies as to
                                                      Baca; rule 803(3) applies generally

Baca                 Nov. 29 Tr. at 259:1-4           Nontestimonial; rule 801(d)(2)(A) applies as to
                                                      Baca; rule 803(3) applies generally

C. Garcia            Nov. 29 Tr. at 261:7-13;         Nontestimonial; rule 801(d)(2)(E) applies as to
                     James Hearing                    Counts 9-10 Defendants; the Court will give a
                     Exhibit 2622                        limiting instruction as to Sanchez, Herrera, and

                                                      Perez

Parker               Nov. 29 Tr. at 262:1-4           Nontestimonial; rule 801(d)(2)(E) applies as to
                                                      Counts 9-10 Defendants; the Court will give a
                                                      limiting instruction as to Sanchez, Herrera, and
                                                      Perez

Montoya              Nov 29 Tr. at 262:8-263:4        Testimonial23

IT IS ORDERED that: (i) Defendant Santos Gonzales' Motion for Production of Alleged Co-Conspirator Statements, Pre-Trial Hearing on Their Admissibility Pursuant to Fed.R.Evid. 801(d)(2)(E), filed May 9, 2017 (Doc. 1141), is granted; (ii) Defendant Rudy Perez's Motion for Production of Alleged Co-Conspirator Statements and for Pre-Trial Hearing on Their Admissibility, filed August 21, 2017 (Doc. 1228), is granted; (iii) the Opposed Motion for Specification of Co-Conspirator Statements and a Pre-Trial Hearing on the Statements' Admissibility, filed October 6, 2017 (Doc. 1303), is granted in part and denied in part; (iv) Motion to Prevent the Admission of Statements of Non-Testifying Codefendants Implicating Defendant Billy Garcia and for an Order for the Government to Specify Such Statements Prior to Trial, filed October 10, 2017 (Doc. 1307), is granted in part and denied in part; (v) Motion for James Hearing and Determination of Co-Conspirator Statements Admissibility at a Pre-Trial Hearing, filed October 13, 2017)(Doc. 1317), is granted; (vi) Defendant Shauna Gutierrez' Opposed Motion for a James Hearing, filed October 13, 2017 (Doc. 1321), is granted; (vii) Motion in Limine to Exclude Statement of Cooperating Government Witnesses, filed November 30, 2017 (Doc. 1514), is granted in part and denied in part; (viii) Opposed Motion in Limine to Exclude Co-Defendant's [sic] Statements, filed December 1, 2017 (Doc. 1517), is denied; (ix) Defendant Anthony Ray Baca's Motion in Limine to Prohibit the Government From Questioning Jerry Armenta About Defendant Anthony Ray Baca's Involvement in Counts 6 & 7, filed December 4, 2017 (Doc. 1540), is denied; (x) 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 January 8, 2018 (Doc. 1616), is denied; and (xi) the Joint Motion to Renew Motion to Sever Defendants Charged with Offenses in Counts 6 and 7, filed January 21, 2018 (Doc. 1664), is denied.