MEMORANDUM OPINION AND ORDER

James O. Browning, UNITED STATES DISTRICT JUDGE.

THIS MATTER comes before the Court on: (i) the United States' Sealed Supplemental Notice of Proposed James1 Statements for Trial II, filed April 19, 2018 (Doc. 2135)("James Notice"); (ii) the United States' Sealed Trial Brief Regarding Michael Jaramillo's Testimony, filed April 20, 2018 (Doc. 2138)("Brief"); and (iii) the Defendants' oral motion to exclude Michael Jaramillo's testimony. The primary issues are: (i) whether Plaintiff United States of America must comply with 18 U.S.C. § 3432 — which provides certain procedural protections to "[a] person charged with treason or other capital offense" — if the United States does not seek to impose the death penalty in a particular case; (ii) whether the United States' failure to include Jaramillo in its pretrial witness list violates 18 U.S.C. § 3432 if that statute applies; (iii) whether excluding Jaramillo's testimony is an appropriate remedy for the United States' § 3432 violation if one occurred; and (iv) whether, if Jaramillo takes the stand, the out-of-court statements that the United States identifies in the James Notice and which Jaramillo will relate to the jury are admissible for their truth as co-conspirator statements under rule 801(d)(2)(E) of the Federal Rules of Evidence. The Court concludes that a capital offense is "[a] crime for which the death penalty may be imposed," Capital Offense, Black's Law Dictionary (10th ed. 2014), so 18 U.S.C. § 3432's requirements apply even if the United States does not seek to impose the death penalty in a particular case. The Court determines that the United States violated 18 U.S.C. § 3432 by failing to include Jaramillo on its witness list, but the Court also determines that excluding Jaramillo's testimony is not an appropriate remedy for this violation. Finally, the Court concludes that the out-of-court statements that the James Notice identifies are admissible for their truth.

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, 323 F.R.D. 672, filed December 18, 2017 (Doc. 1585). The Court does not set forth these facts as findings or as the truth. The Court recognizes that the factual background largely reflects the United States' version of events and that the Defendants are all presumed innocent.

This case deals with crimes that the Syndicato de Nuevo Mexico ("SNM") allegedly committed through its members. See 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 the PNM during which inmates seriously assaulted and raped twelve correctional officers after taking them hostage. See Indictment at 3. During the riot, thirty-three inmates were killed, and over 200 were injured. See 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 "intimidate[es] and influenc[es] smaller New Mexico Hispanic gangs" to expand its illegal activities. 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 ("FBI") present investigation. United States v. Garcia, Memorandum Opinion and Order at 2, 221 F.Supp.3d 1275, 1277 (D.N.M. 2016) (Doc. 133). 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)("MOO"). The New Mexico Third Judicial District Attorney's Office accused Montoya and Armenta of fatally stabbing Molina with a shank in a gang-related attack. See MOO at 6, 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 MOO at 6-7, 2016 WL 7242579, at *3. In November, 2015, the state 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 MOO 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." MOO 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,2 Defendant Benjamin Clark, M. Rodriguez, Defendant Anthony Ray Baca, Defendant Robert Martinez, Defendant Roy Paul Martinez,3 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) define 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 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 four cases before the Court related to SNM's alleged criminal activity. In a related case — United States v. Baca, No. CR 16-1613 (D.N.M.)(Browning, J.)4 — 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).5 There is also a separate prosecution of C. Garcia for drug crimes, see United States 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.).

PROCEDURAL BACKGROUND

Early in this case, the United States indicated that it would not seek the death penalty. See Notice of Intent Not to Seek a Sentence of Death at 1, filed June 6, 2016 (Doc. 567). On June 30, 2017, the Court severed for trial the Indictment's Counts 6-12 from its Counts 1-5 and Counts 13-16. See Memorandum Opinion and Order at 3, 2017 WL 3054511, at *1, filed June 30, 2017 (Doc. 1204)("Severance MOO"). The result of this severance is one trial for the Indictment's Counts 6-12,6 and another, separate trial for the Indictment's Counts 1-5 and 13-16.7 See Severance MOO at 3, 2017 WL 3054511, at *1. At the time of severance, nineteen Defendants remained in the case. See Severance MOO at 175, 2017 WL 3054511, at *102. The trial of the Indictment's Counts 1-5 and 13-16 "would then involve the prosecution of eleven Defendants, none of whom are named in Counts 6-12." Severance MOO at 175, 2017 WL 3054511, at *102. Further, the trial of the Indictment's Counts 6-12 "would involve the prosecution of eight Defendants none of whom are named in Counts 1-5 or 13-16." Severance MOO at 175, 2017 WL 3054511, at *102. The trial for Counts 6-12 would proceed first, with jury selection to begin on January 19, 2018 ("Trial I"), followed by the trial for Counts 1-5 and 13-16, with jury selection to begin on April 9, 2018 ("Trial II"). See Fourth Scheduling Order at 3, filed July 7, 2017 (Doc. 1205). This Memorandum Opinion and Order deals with Trial II. Seven Defendants proceeded to trial for Trial II: J. Gallegos, Troup, B. Garcia, Patterson, Chavez, A.A. Garcia, and A. Gallegos (collectively, "Trial II Trial Defendants").

On March 12, 2018, the Court held a pretrial conference for Trial II. See Transcript of Hearing at 6:8-16 (taken March 12, 2018)(Court), filed April 3, 2018 (Doc. 2026)("March 12 Tr."). At that pretrial conference, Defendant Edward Troup requested "that, like you did in the first trial,. . . you order the Government to provide a may call and a will call witness list two weeks prior to the start of the trial, which would be March 26." March 12 Tr. at 45:6-9 (Harbour-Valdez). The United States replied:

March 12 Tr. at 45:25-46:4 (Armijo). The United States added that "we would ask for a reciprocal date before — I don't have the order in front of me, but I believe previously we had dates that both parties gave witness lists. So as long as the defendants want[] to give their witness list on March 26, that's fine." March 12 Tr. at 46:19-24 (Armijo). After some wrangling about dates, the Court set out — and the United States confirmed — the United States and the Defendants' agreement regarding witness lists:

March 12 Tr. at 47:5-48:3 (Court, Harbour-Valdez, Armijo). The United States' first witness list did not include Jaramillo. See United States' Sealed Supplemental Witness List for Trial II at 1-2, filed March 23, 2018 (Doc. 1968)("United States' Pretrial Witness List"). The United States filed a supplemental witness list on the first day of jury selection, but that list does not include Jaramillo. See United States' Sealed Amended Supplemental Witness List for Trial II at 1-2, filed April 9, 2018 (Doc. 2091). That day, during voir dire, the United States listed its potential witnesses and asked whether any members of the venire knew those individuals; Jaramillo was not included on that list. See Transcript of Jury Trial at 81:12-82:18 (taken April 9, 2018)(Beck), filed July 25, 2018 (Doc. 2354). During the second day of voir dire, the United States read its list to the venire again and included Jaramillo on that list. See Transcript of Jury Trial at 114:2-3 (taken April 10, 2018)(Beck), filed July 25, 2018 (Doc. 2355). FBI Special Agent Bryan Acee, the case agent and the United States' designated representative under rule 615(b) of the Federal Rules of Evidence, handed a yellow sticky note with Jaramillo's name to Assistant United States Attorney Mathew Beck, who read that name after reading all of the names on the United States' typed witness list, almost as an afterthought. A jury was seated and sworn on Wednesday, April 11, 2018.

1. The Opening Statements.

Opening statements began the next day. In his opening statement, B. Garcia emphasized that the United States' case rests on uncorroborated testimony. See Transcript of Excerpt of Opening Statements at 26:23-27:2 (taken April 12, 2018)(Castle), filed May 9, 2018 (Doc. 2233)("Openings Tr.")("[W]hat you're going to find out in this case is there is absolutely no corroboration. What I mean by `corroboration' is facts that prove what someone says, as opposed to just their words."). B. Garcia identified several of the United States' witnesses and explained why, in his opinion, those witnesses are not trustworthy. See Openings Tr. at 50:13-58:20 (Castle); id. at 63:15-68:20 (Castle); id. at 79:11-89:16 (Castle). B. Garcia was careful to note, however, that his list was not exhaustive and that the United States might have other witnesses:

Openings Tr. at 89:17-90:8 (Castle). J. Gallegos and Troup likewise identified United States witnesses, and attacked their credibility during their opening statements. See Openings Tr. at 95:8-97:7 (Benjamin); id. at 110:7-112:5 (Benjamin); id. at 115:4-119:5 (Burke).

2. The Jaramillo Interview.

On Wednesday, April 18, 2018, the United States — through Mr. Beck and FBI Special Agent Joseph Sainato — presented a Kastigar letter9 to Jaramillo and interviewed him for the first time.10 See FBI 302 of Michael Jaramillo at 1 (dated April 19, 2018), filed April 19, 2018 (Doc. 2135-1)("Jaramillo 302"). Jaramillo's interview focuses on the Count 1 homicide of Frank Castillo in 2001. Jaramillo 302 at 2-4; Indictment at 9. Jaramillo stated that, a few days before Castillo's murder, Lujan approached him and had him follow Lujan to the library, where DeLeon was waiting. See Jaramillo 302 at 2. According to Jaramillo, Lujan told Jaramillo that he needed to "put in work" — that B. Garcia wanted Lujan to find people to kill Castillo and that Lujan wanted Jaramillo, J. Gallegos, and DeLeon to do it. Jaramillo 302 at 2. Jaramillo relayed that he and DeLeon then spoke with J. Gallegos about the order, and that J. Gallegos said "that he was waiting on a delivery of heroin and that they would wait until after the delivery to make the move on" Castillo. Jaramillo 302 at 2. Jaramillo said that J. Gallegos' heroin delivery "came in later that day or the next," and that J. Gallegos called Jaramillo and DeLeon into his cell before the evening lockdown to inform them that they would enter Castillo's cell as soon as doors opened the next morning. Jaramillo 302 at 3. Jaramillo stated that J. Gallegos told them that they would use heroin with Castillo, then DeLeon would hold down Castillo as he took his heroin and Jaramillo would then strangle him. See Jaramillo 302 at 3. According to Jaramillo, J. Gallegos said that Troup would serve as lookout for them and told them to refuse any police-requested DNA tests. See Jaramillo 302 at 3. Jaramillo also said that J. Gallegos promised that "his family would pay for an attorney for them if they got in trouble." Jaramillo 302 at 3. Jaramillo stated that this conversation ended after J. Gallegos called over Troup and told Troup that he would be a lookout the next morning. See Jaramillo 302 at 3. Jaramillo recalled that he went back to his cell and used heroin, which J. Gallegos had given him earlier that day, for the first time. See Jaramillo 302 at 3.

Jaramillo said that, the next morning, he joined J. Gallegos, DeLeon, and Castillo in Castillo's cell. See Jaramillo 302 at 3. Jaramillo stated that J. Gallegos gave Castillo the heroin, and as Castillo was injecting himself, Jaramillo and DeLeon "grabbed him, flipped him around and held him face-down on his bed, with his head toward the wall." Jaramillo 302 at 3. Jaramillo said that he took the drawstring from Castillo's laundry bag, wrapped it around Castillo's neck, and tied a knot in the string once Castillo stopped struggling. See Jaramillo 302 at 3. Jaramillo said that he left the cell and saw Troup downstairs, but nobody else, returned to his own cell, and then went to breakfast. See Jaramillo 302 at 3. Jaramillo said that New Mexico Corrections Department officials instituted lockdown after breakfast and put everyone in their cells, which Jaramillo estimated occurred less than an hour after Castillo's murder. See Jaramillo 302 at 3-4. Jaramillo stated that New Mexico State Police arrived that night, and that he gave them a DNA sample and a brief statement. See Jaramillo 302 at 4.

The United States provided Sainato's notes from that interview to the Defendants later in the afternoon of April 18, 2019. See Brief at 14. The next day, April 19, 2018, Sainato drafted the Jaramillo 302, see Jaramillo 302 at 1, and the United States provided that document to the Defendants, see Brief at 2. The United States also filed the James Notice on that day. See James Notice at 1. The James Notice summarizes out-of-court statements that the United States expects, based on the Jaramillo 302, that Jaramillo will relate to the jury when he takes the stand. See James Notice at 1. The United States also filed witness lists on that day listing Jaramillo as a witness for the first time. See United States' Sealed Supplemental Witness List for Trial II at 2, filed April 19, 2018 (Doc. 2136); United States' Sealed Supplemental Witness List for Trial II at 3, filed April 19, 2018 (Doc. 2137).

Also on April 19, 2018, the Count 1 Trial Defendants — J. Gallegos, Troup, and B. Garcia — orally moved the Court to prevent Jaramillo from testifying. See Draft Trial Transcript at 121:17-122:4 (taken April 19, 2018)(Burke)("April 19 Tr.").11 They asserted that they first learned that Jaramillo might be a witness when they received Sainato's notes. See April 19 Tr. at 2:11-24 (Sindel); id. at 120:18-121:5 (Burke) J. Gallegos indicated that "an investigator for our team had gone out and talked to Mr. Jaramillo and he said he didn't know anything about" the Castillo murder. April 19 Tr. at 7:6-8 (Sindel).

The Count 1 Trial Defendants contended that, if they had known earlier that Jaramillo might testify, their opening statements and voir dire — as well as their planned cross-examination of Lujan, who had not yet taken the stand — would have been different. See April 19 Tr. at 3:4-16 (Sindel); id. at 6:3-11 (Sindel). They explained that the Jaramillo 302 disclosure affects their cross-examination of Lujan, because Jaramillo's statements contradict Lujan's expected testimony. See April 19 Tr. at 6:14-24 (Sindel). The Court instructed the United States to delay Lujan's testimony so that the Defendants could prepare to cross-examine Lujan in light of the United States' disclosures regarding Jaramillo. See April 19 Tr. at 12:9-19 (Court). The Court indicated that the United States' failure to identify Jaramillo on its witness list likely violated both the United States' agreement with the Defendants regarding pretrial disclosure of witness lists and 18 U.S.C. § 3432's requirement that "[a] person charged with treason or other capital offense shall at least three entire days before commencement of trial . . . be furnished with . . . a list . . . of the witnesses to be produced on the trial for proving the indictment." 18 U.S.C. § 3432. See April 19 Tr. at 12:12-13 (Court); id. at 141:22-142:6 (Court); id. at 142:15-19 (Court). The Court told the United States that, "for present purposes," it would need to plan its case without Jaramillo's testimony. April 19 Tr. at 202:7. See id. at 202:7-9.

3. The Brief.

The United States argues that 18 U.S.C. § 3432 does not apply to this case, because "the United States did not file a notice of intent to seek the death penalty, see 18 U.S.C. § 3593, [so] the death penalty may not be imposed, and this is not, therefore, a capital offense for purposes of § 3432." Brief at 1. The United States notes that the Courts of Appeals "that have analyzed this issue uniformly agree that § 3432 does not apply where a defendant does not face the death penalty at the start of trial." Brief at 8 (citing United States v. Shepperson, 739 F.3d 176, 181 n.3 (4th Cir. 2014)). Accordingly, the United States maintains that it did not need "to provide a witness list three days before trial." Brief at 1. The United States also contends that § 3432 "does not apply when `material testimony [is] discovered during the progress of trial,'" so even if § 3423 applies, the Court should admit Jaramillo's testimony as it was revealed during the trial, albeit "in an FBI 302 instead of on the stand." Brief at 2 (quoting United States v. Rosenberg, 195 F.2d 583, 599-600 (2d Cir. 1952)). Further, the United States asserts that § 3234 is inapplicable to rebuttal witnesses, and Jaramillo's testimony is "essential" to the United States' rebuttal of Lujan. Brief at 2. The United States notes that it filed a witness list, which inadvertently omitted Jaramillo, in compliance with § 3432 — although the United States asserts § 3432 does not apply. See Brief at 1.

According to the United States, this failure to include Jaramillo on the witness list did not cause significant prejudice to the Defendants, because they

Brief at 7. The United States therefore maintains that its inadvertent omission of Jaramillo from the witness list "is readily apparent" to the Defendants. Brief at 14. Accordingly, the United States argues that, even if 18 U.S.C. § 3432 applies to this case, "the proper remedy isn't exclusion of the witness." Brief at 11-12. The United States contends that its failure to include Jaramillo should, at most, "result in an adjournment for time to prepare," Brief at 12, because excluding Jaramillo's testimony would significantly impede "the truth-seeking purpose of the court system," Brief at 16.

4. The Response.

A.A. Garcia filed a written response to the United States' Brief. See Response to Government's Trial Brief Doc. 2138 Regarding Testimony of Michael Jaramillo, filed April 20, 2018 (Doc. 2139)("Response"). A.A. Garcia asserts that the United States' failure to include Jaramillo on its witness list prejudiced the Defendants, because they were not

Response at 3. According to A.A. Garcia, "[e]ven if the notice requirement of § 3432 did not apply, the Defendants would be deprived of their rights to due process and to present a defense, if the Government is allowed to present the testimony of Mr. Jaramillo in this trial." Response at 6. A.A. Garcia also argues that the Court has broad discretion to exclude Jaramillo's testimony. See Response at 9. A.A. Garcia asserts that excluding Jaramillo's testimony is appropriate, because giving the Defendants time to prepare for Jaramillo's testimony "would fail to cure the prejudice" that they suffer as a result of Jaramillo's omission from the United States' witness list, Response at 10, because "the Defendants were not allowed to conduct voir dire in relation to Mr. Jaramillo's confession; they were not allowed to present opening statements in light of his confession; [and] they were not allow[ed] to present their defense against the Government's case in chief with this information in hand," Response at 11.

A.A. Garcia argues that 18 U.S.C. § 3432 applies because "the death penalty was originally sought, and only at a later date, was the death penalty taken off the table," Response at 5, and the statute's purpose is "to prevent trial by ambush" and enable the defendant to prepare a defense, Response at 3. He further asserts that "[t]he exception for rebuttal witnesses discovered during trial does not apply here, where none of the Defendants intends to present a case in chief pertaining to Mr. Jaramillo." Response at 2. A.A. Garcia maintains that, if the rebuttal exception applies here — where the United States is attempting to use Jaramillo to rebut the Defendants' cross-examination of the United States' case in chief — § 3432's notice requirement would serve no purpose. Response at 8. A.A. Garcia contends that § 3432 does not contain "a broad exception for inadvertence." Response at 3. Accordingly, A.A. Garcia underscores that the United States' late addition of Jaramillo as a trial witness "would dramatically alter the complexion of the case" and violates § 3432, and requests that the Court exclude Jaramillo's testimony. Response at 11. See id. at 2-3, 13.

5. The Court's Decision on Jaramillo's Testifying.

After thinking about the issue over the weekend, on Monday, April 23, 2018, the Court told the parties that it is "going to conclude that the statute does require in this case the United States to disclose its witnesses three entire business days, not including holidays and weekends, in advance" of trial. Transcript of Excerpt of Testimony of Leonard Lujan at 94:20-23 (taken April 23 and 24, 2018)(Court), filed May 16, 2018 (Doc. 2282)("April 23 Tr."). The Court noted that the statute does not include a remedy for its violation and so the remedy is within the Court's discretion, April 23 Tr. at 95:3-9 (Court); id. at 96:15-16 (Court), and informed the parties that it had "concluded that exclusion is not an appropriate remedy in this case" and that exclusion is "too Draconian in this case," April 23 Tr. at 95:9-11 (Court). The Court acknowledged the Defendants' arguments that they would have approached the case differently had they known earlier that Jaramillo would be called, but stated that, even had Jaramillo been named in the United States' witness list, the Defendants would not have known "what his testimony would be" and, thus, the Court did not believe that the Defendants "would have done anything or much differently than what they had, in fact, done." April 23 Tr. at 95:17-20 (Court). See id. at 95:11-16 (Court). The Court therefore concluded that the appropriate remedy for the violation of § 3432 is "push[ing] this evidence down so the [D]efendants have more time to deal with Mr. Jaramillo." April 23 Tr. at 95:24-96:1 (Court).

FINDINGS OF FACT

Rule 12(d) of the Federal Rules of Criminal Procedure requires the Court to state its essential findings on the record when deciding a motion that involves factual issues. See Fed. R. Crim. P. 12(d) ("When factual issues are involved in deciding a motion, the court must state its essential findings on the record."). The findings of fact in this Memorandum Opinion and Order shall serve as the Court's essential findings for rule 12(d) purposes. The Court bases these conclusions on the testimony it heard at its James hearing as well as the evidence it admitted at that hearing. The Court makes these findings under the authority of rule 104(a) of the Federal Rules of Evidence, which requires a judge to decide preliminary questions relating to the admissibility of evidence, including the legality of a search or seizure and the voluntariness of an individual's confession or consent to a search. See United States v. Merritt, 695 F.2d 1263, 1269-70 (10th Cir. 1982). In deciding such preliminary questions, the other rules of evidence, except those with respect to privileges, do not bind the Court. See Fed. R. Evid. 104(a) ("The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so doing, the court is not bound by evidence rules, except those on privilege."). Notwithstanding the Court's findings, all of the Defendants are presumed innocent. Accordingly, the Court makes the following findings:

1. A conspiracy to kill Frank Castillo existed. See Leonard Lujan Plea Agreement ¶ 7, at 4-5, filed March 13, 2017 (Doc. 963)(James Hearing Exhibit 11)("Lujan Plea Agreement").13

2. The Castillo conspiracy included five indicted conspirators: (i) DeLeon, (ii) J. Gallegos; (iii) Troup; (iv) Lujan; and (v) B. Garcia. See Lujan Plea Agreement ¶ 7, at 4-5.

3. The Castillo conspiracy included eight unindicted conspirators: (i) Angel Munoz, see Transcript of Motions Hearing at 9:17-10:9 (taken March 13, 2018)(Castellano, Stemo), filed April 3, 2019 (Doc. 2027)("March 13 Tr."); (ii) Leroy Lucero, see March 13 Tr. at 16:16-24 (Castellano, Stemo); (iii) Jaramillo, see March 13 Tr. at 18:22-4 (Castellano, Stemo); id. at 20:2-9 (Castellano, Stemo); (iv) Federico Munoz, see March 13 Tr. at 21:10-22 (Castellano, Stemo); (v) Willie Amador, see March 13 Tr. at 29:16-24 (Castellano, Stemo); and (vi) Jessie Ibarra, see March 13 Tr. at 29:16-24 (Castellano, Stemo).

4. The Castillo conspiracy continued until Castillo's death on March 26, 2001. See Lujan Plea Agreement ¶ 7, at 4-5.

LAW REGARDING THE UNITED STATES' DUTY TO DISCLOSE IN CRIMINAL CASES

The United States' duty to disclose in criminal cases arises from at least three sources: (i) rule 16 of the Federal Rules of Criminal Procedure; (ii) the Due Process Clause of the Fifth Amendment to the Constitution of the United States of America; and (iii) the Jencks Act, 18 U.S.C. § 3500. Put roughly, rule 16 requires the United States to disclose items material to the defense, items it intends to use in its case-in-chief, and items it obtained from the defendant. See Fed. R. Crim. P. 16. The Due Process Clause requires the United States to furnish information in its possession that is favorable to the accused. Finally, the Jencks Act requires the United States to disclose statements that its witnesses made if those statements are in the United States' possession and relate to those witnesses' trial testimony, after those witnesses have testified at trial.

1. Rule 16.

Rule 16 of the Federal Rules of Criminal Procedure provides:

Fed. R. Crim. P. 16(a)(1)(E). Criminal defendants may not, however, embark on a "broad or blind fishing expedition among documents possessed by the Government." Jencks v. United States, 353 U.S. 657, 667, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957)(quoting Gordon v. United States, 344 U.S. 414, 419, 73 S.Ct. 369, 97 S.Ct. 447 (1953)). Rule 16(a)(2) provides, in part, that rule 16 "does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case." Fed. R. Crim. P. 16(a)(2). The Supreme Court of the United States has interpreted the term "defense" in this statute as referring to "an argument in response to the prosecution's case in chief." United States v. Armstrong, 517 U.S. 456, 462, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996)("[W]e conclude that in the context of Rule 16 `the defendant's defense' means the defendant's response to the Government's case in chief."). Additionally, rule 16 does not require the United States to produce "reports, memoranda, or other internal government documents . . . [or] statements made by prospective government witnesses except as provided in 18 U.S.C. § 3500." Fed. R. Crim. P. 16 (a)(2).

2. Due Process Clause.

"The Due Process Clause of the Constitution requires the United States to disclose information favorable to the accused that is material to either guilt or to punishment." United States v. Padilla, No. CR 09-3598 JB, 2011 WL 1103876, at *5 (D.N.M. 2011)(Browning, J.). In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)("Brady"), the Supreme Court explained that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87, 83 S.Ct. 1194. In Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)("Giglio") the Supreme Court extended the prosecution's disclosure obligation to evidence that is useful to the defense in impeaching government witnesses, even if the evidence is not inherently exculpatory. See Giglio, 405 U.S. at 153, 92 S.Ct. 763; United States v. Torres, 569 F.3d 1277, 1282 (10th Cir. 2009)("Impeachment evidence is considered exculpatory for Brady purposes."); Douglas v. Workman, 560 F.3d 1156, 1172-73 (10th Cir. 2009)("[N]o distinction is recognized between evidence that exculpates a defendant and `evidence that the defense might have used to impeach the [government's] witnesses by showing bias and interest.'" (quoting United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985))); United States v. Abello-Silva, 948 F.2d 1168, 1179 (10th Cir. 1991)("Impeachment evidence merits the same constitutional treatment as exculpatory evidence."). Finally, the Supreme Court has refined Brady and clarified that it is not necessary that a defendant request exculpatory evidence: "[R]egardless of request, favorable evidence is material, and constitutional error results from its suppression by the government `if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)(quoting United States v. Bagley, 473 U.S. at 682, 105 S.Ct. 3375). See Douglas v. Workman, 560 F.3d at 1172 ("The government's obligation to disclose exculpatory evidence does not turn on an accused's request."); United States v. Summers, 414 F.3d 1287, 1304 (10th Cir. 2005)("[T]he prosecution has an affirmative duty to disclose exculpatory evidence clearly supporting a claim of innocence even without request."). "[T]he Due Process Clause does not require the government to disclose before trial the names of its witnesses, just so the defense can have sufficient time to investigate their backgrounds for impeachment information." United States v. Ashley, 274 F. App'x 693, 697 (10th Cir. 2008)(unpublished).14 See Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977)("It does not follow from the prohibition against concealing evidence favorable to the accused that the prosecution must reveal before trial the names of all witnesses who will testify unfavorably."); United States v. Harmon, 871 F. Supp. 2d. 1125, 1149 (D.N.M. 2012)(Browning, J.).

a. Timing of the Disclosure.

The prosecution's obligation to disclose evidence under Brady can vary depending on the phase of the criminal proceedings and the evidence at issue. As a general matter, "[s]ome limitation on disclosure delay is necessary to protect the principles articulated in Brady . . . ." United States v. Burke, 571 F.3d 1048, 1054 (10th Cir. 2009). The Tenth Circuit has recognized that "[i]t would eviscerate the purpose of the Brady rule and encourage gamesmanship were we to allow the government to postpone disclosures to the last minute, during trial." United States v. Burke, 571 F.3d at 1054. "[T]he belated disclosure of impeachment or exculpatory information favorable to the accused violates due process when an `earlier disclosure would have created a reasonable doubt of guilt.'" United States v. Burke, 571 F.3d at 1054 (quoting United States v. Young, 45 F.3d 1405, 1408 (10th Cir. 1995)). The Tenth Circuit has stated:

United States v. Burke, 571 F.3d at 1054. On the other hand, "not every delay in disclosure of Brady material is necessarily prejudicial to the defense." United States v. Burke, 571 F.3d at 1056. "To justify imposition of a remedy, the defense must articulate to the district court the reasons why the delay should be regarded as materially prejudicial." United States v. Burke, 571 F.3d at 1056. Courts should, "[w]hen assessing the materiality of Giglio information,. . . consider the significance of the suppressed evidence in relation to the entire record." United States v. Gonzalez-Montoya, 161 F.3d 643, 650 (10th Cir. 1998).

When a prosecutor's obligations under Brady are triggered, however, they "continue[] throughout the judicial process." Douglas v. Workman, 560 F.3d at 1173. For instance, the obligation to disclose material under Brady can arise during trial. See United States v. Headman, 594 F.3d 1179, 1183 (10th Cir. 2010)("Although Brady claims typically arise from nondisclosure of facts that occurred before trial, they can be based on nondisclosure of favorable evidence (such as impeachment evidence) that is unavailable to the government until trial is underway."). Additionally, the disclosure obligation continues even while a case is on direct appeal. See United States v. Headman, 594 F.3d at 1183; Smith v. Roberts, 115 F.3d 818, 819-820 (10th Cir. 1997)(applying Brady to an allegation that the prosecutor failed to disclose evidence received after trial but while the case was on direct appeal); United States v. Harry, No. CR 10-1915 JB, 2013 WL 684671, at *5 (D.N.M. Feb. 6, 2013)(Browning, J.).

b. Material Exculpatory Evidence.

The holding in Brady requires disclosure only of evidence that is both favorable to the accused, and "material either to guilt or to punishment." Brady, 373 U.S. at 87, 83 S.Ct. 1194. "Evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. at 682, 105 S.Ct. 3375. See United States v. Allen, 603 F.3d 1202, 1215 (10th Cir. 2010). "A `reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. at 682, 105 S.Ct. 3375. The Tenth Circuit has noted that "[t]he mere possibility that evidence is exculpatory does not satisfy the constitutional materiality standard." United States v. Fleming, 19 F.3d 1325, 1331 (10th Cir. 1994). The Tenth Circuit has also found that "[d]uplicative impeachment evidence is not material." Douglas v. Workman, 560 F.3d at 1173. "To be material under Brady, undisclosed information or evidence acquired through that information must be admissible." Banks v. Reynolds, 54 F.3d 1508, 1521 n.34 (10th Cir. 1995)(quoting United States v. Kennedy, 890 F.2d 1056, 1059 (9th Cir. 1989)). See United States v. Hykes, No. CR 15-4299 JB, 2016 WL 1730125, at *20 (D.N.M. April 11, 2016)(Browning, J.)(requiring the United States to search police personnel files where "officers' involvement in several excessive-force lawsuits, discrepancies between the officers' story and eyewitnesses' stories, and evidence that the officers had a personal feud with" the defendant suggested that the files contained impeachment evidence).

The burden is on the United States to produce exculpatory materials; the burden is not on the defendant to first note that such materials exist. See Kyles v. Whitley, 514 U.S. at 437, 115 S.Ct. 1555 (stating that the prosecution has an affirmative duty to disclose evidence, because "the prosecution, which alone can know what is undisclosed, must be assigned the consequent responsibility to gauge the likely net effect of all such evidence and make disclosure when the point of `reasonable probability' is reached"); United States v. Deutsch, 475 F.2d 55, 57 (5th Cir. 1973)(granting a mistrial for failure to produce personnel files of government witnesses), overruled on other grounds by United States v. Henry, 749 F.2d 203 (5th Cir. 1984); United States v. Padilla, 2011 WL 1103876, at *6. The United States' good or bad faith is irrelevant. See Brady, 373 U.S. at 87, 83 S.Ct. 1194; United States v. Quintana, 673 F.2d 296, 299 (10th Cir. 1982)("Under Brady, the good or bad faith of government agents is irrelevant."). "This means, naturally, that a prosecutor anxious about tacking too close to the wind will disclose a favorable piece of evidence." Kyles v. Whitley, 514 U.S. at 439, 115 S.Ct. 1555. The United States has an obligation to "volunteer exculpatory evidence never requested, or requested only in a general way," although the obligation exists only "when suppression of the evidence would be `of sufficient significance to result in the denial of the defendant's right to a fair trial.'" Kyles v. Whitley, 514 U.S. at 433, 115 S.Ct. 1555 (quoting United States v. Agurs, 427 U.S. 97, 108, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)). On the other hand, "[t]he Constitution, as interpreted in Brady, does not require the prosecution to divulge every possible shred of evidence that could conceivably benefit the defendant." Smith v. Sec'y of N.M. Dep't of Corr., 50 F.3d 801, 823 (10th Cir. 1995). Additionally, "[t]he constitution does not grant criminal defendants the right to embark on a broad or blind fishing expedition among documents possessed by the" United States. United States v. Mayes, 917 F.2d 457, 461 (10th Cir. 1990)(quoting Jencks v. United States, 353 U.S. at 667, 77 S.Ct. 1007).

c. Evidence Must Be in the United States' Possession.

"It is well settled that there is no `affirmative duty upon the government to take action to discover information which it does not possess.'" United States v. Tierney, 947 F.2d 854, 864 (8th Cir. 1991)(quoting United States v. Beaver, 524 F.2d 963, 966 (5th Cir. 1975)). Accord United States v. Kraemer, 810 F.2d 173, 178 (8th Cir. 1987)(explaining that the prosecution is not required "to search out exculpatory evidence for the defendant"); United States v. Badonie, No. CR 03-2062, 2005 WL 2312480, at *3 (D.N.M. Aug. 29, 2005)(Browning, J.). On the other hand, "a prosecutor's office cannot get around Brady by keeping itself in ignorance, or by compartmentalizing information about different aspects of a case." Carey v. Duckworth, 738 F.2d 875, 878 (7th Cir. 1984). Under Brady, "[a] prosecutor must disclose information of which it has knowledge and access." United States v. Padilla, 2011 WL 1103876, at *7 (citing United States v. Bryan, 868 F.2d 1032, 1037 (9th Cir. 1989)). "A prosecutor may have a duty to search files maintained by other `governmental agencies closely aligned with the prosecution' when there is `some reasonable prospect or notice of finding exculpatory evidence.'" United States v. Padilla, 2011 WL 1103876, at *7 (quoting United States v. Johnson, No. 96-40082-02-SAC, 1997 WL 447681, at *3 (D. Kan. June 9, 1997)(Crow, J.)). See United States v. Brooks, 966 F.2d 1500, 1503 (D.C. Cir. 1992). A prosecutor does not have a duty, however, to obtain evidence from third parties. See United States v. Combs, 267 F.3d 1167, 1173 (10th Cir. 2001)(observing that Brady does not oblige the government to obtain evidence from third parties). See also United States v. DeLeon, No. CR 15-4268 JB, 2017 WL 2271430, at *50 (D.N.M. Feb. 8, 2017)(Browning, J.)(concluding that, where "[t]he New Mexico Corrections Department is jumping at the chance to help the prosecution[,] . . . the Court can confidently say that the New Mexico Corrections Department's records, under the unique facts of this case, are under the [Assistant United States Attorney's] control"); United States v. Huerta-Rodriguez, No. CR 09-3206, 2010 WL 3834061, at *4, *10 (D.N.M. Aug. 12, 2010)(Browning, J.)(noting that the United States cannot be compelled to produce the New Mexico State Police officers' personnel files, because the New Mexico State Police, which was not a party to the case, possessed the files, and the United States was able to review the files only at the New Mexico State Police office, and could not remove or photocopy any documents without a subpoena); United States v. Badonie, 2005 WL 2312480, at *3 (denying a motion to compel, because the New Mexico State Police possessed the documents, and the United States did not possess the documents which a defendant sought to be produced, even though the United States "could get the information [Defendant] Badonie seeks merely by requesting them").

3. The Jencks Act.

In Jencks v. United States, the Supreme Court held that a "criminal action must be dismissed when the Government, on the ground of privilege, elects not to comply with an order to produce, for the accused's inspection and for admission in evidence, relevant statements or reports in its possession of government witnesses touching the subject matter of their testimony at trial." 353 U.S. at 672, 77 S.Ct. 1007. In so holding, the Supreme Court recognizes that the

353 U.S. at 671, 77 S.Ct. 1007. Congress later codified Jencks v. United States' holding in 18 U.S.C. § 3500. See United States v. Kimoto, 588 F.3d 464, 475 (7th Cir. 2009)(explaining that "the Jencks Act, 18 U.S.C. § 3500[,] . . . was enacted in response to the Supreme Court's holding in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007").

Section 3500 of Title 18 of the United States Code provides:

18 U.S.C. § 3500(a)-(b). "The Jencks Act requires the government to disclose to criminal defendants any statement made by a government witness that is `in the possession of the United States' once that witness has testified." United States v. Lujan, 530 F.Supp.2d 1224, 1232 (D.N.M. 2008)(Brack, J.)(quoting 18 U.S.C. § 3500(a)-(b)). The Jencks Act "manifests the general statutory aim to restrict the use of such statements to impeachment." Palermo v. United States, 360 U.S. 343, 349 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959). The Jencks Act's purpose is "not only to protect Government files from unwarranted disclosure but also to allow defendants materials usable for the purposes of impeachment." United States v. Smaldone, 544 F.2d 456, 460 (10th Cir. 1976)(citing Palermo v. United States, 360 U.S. at 352, 79 S.Ct. 1217). The Jencks Act defines statements specifically:

18 U.S.C. § 3500(e). The Tenth Circuit has held: "Interview notes could be `statements' under the [Jencks] Act if they are substantially verbatim." United States v. Smith, 984 F.2d 1084, 1086 (10th Cir. 1993). At least one district court within the Tenth Circuit has distinguished interview notes from reports that "embody only the agent's epitomization, interpretation, or impression of an interview," finding that the latter are not producible under the Jencks Act. United States v. Jackson, 850 F.Supp. 1481, 1508 (D. Kan. 1994)(Crow, J.). In United States v. Lujan, the Honorable Robert C. Brack, now-Senior United States District Judge for the District of New Mexico, explained that rough interview notes may be discoverable under the Jencks Act when a defendant makes "at least . . . a colorable claim that an investigator's discarded rough notes contained exculpatory evidence not included in any formal interview report provided to the defense." 530 F. Supp. 2d at 1266. Judge Brack held that, "[b]ecause the contents of rough interview notes may in some cases be subject to disclosure and because the potential impeachment value of the notes may not become evident until trial," the United States must preserve its rough interview notes "made by law enforcement agents during interview of potential witnesses" under 18 U.S.C. § 3500. 530 F. Supp. 2d at 1267. See United States v. Cooper, 283 F.Supp.2d 1215, 1238 (D. Kan. 2003)(Crow, J.)(noting that rough interview notes may be discoverable under the Jencks Act); United States v. Jackson, 850 F. Supp. at 1508-09 (finding that interview notes may be producible under the Jencks Act).

The defendant bears the initial burden of showing that particular materials qualify under the Jencks Act, but the defendant's burden is not heavy. See United States v. Smaldone, 544 F.2d at 460 ("[T]he burden is on the defendant to show that particular materials qualify as `Statements' and that they relate to the subject matter of the testimony of the witness."). To satisfy this burden, the defendant need not prove that particular materials are within the Jencks Act's scope, as the documents are not in the defendant's possession, but, rather, "must plainly tender to the Court the question of the producibility of the document at a time when it is possible for the Court to order it produced, or to make an appropriate inquiry." United States v. Smith, 984 F.2d at 1086 (quoting Ogden v. United States, 303 F.2d 724, 733 (9th Cir. 1962)). The defendant's demand for documents under the Jencks Act must be sufficiently precise for a court to identify the requested statements. See United States v. Smith, 984 F.2d at 1086. For example, in United States v. Smith, the Tenth Circuit concluded that a defendant had met his burden and made a prima facie showing that a statement of a witness existed which may be producible under the Jencks Act when a government witness testified during the United States' case in chief that a government agent had interviewed her before testifying, and the defense counsel moved for production of the notes. See 984 F.2d at 1085-86. Once the defendant makes a prima facie showing that a witness statement exists which may be producible under the Jencks Act, the court should conduct a hearing or in camera review of the statement. See United States v. Smith, 984 F.2d at 1086.

The Court has applied the Jencks Act to Drug Enforcement Agency agents' notes, generated from interviews with defendants, holding that the notes must be disclosed to the defendants after the agents testify at trial. See United States v. Goxcon-Chagal, No. CR 11-2002, 2012 WL 3249473, at *2, *6 (D.N.M. Aug. 4, 2012)(Browning, J.). In United States v. Tarango, 760 F.Supp.2d 1163 (D.N.M. 2009)(Browning, J.), the Court, applying 18 U.S.C. § 3500, held that the United States must produce FBI agents' reports, after the United States' witnesses testified at trial, to the extent that those reports contain statements from witnesses who testified at trial. See 760 F. Supp. 2d at 1164, 1167. See also United States v. Harry, 2013 WL 684671, at *11.

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 coconspirators' out-of-court statements under rule 801(d)(2)(E), "the United States must demonstrate by a preponderance of the evidence that: (i) a conspiracy existed; (ii) the declarant and the defendant were members of that conspiracy; 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 JB, 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 quotation marks omitted)(quoting United States v. Martinez, 825 F.2d 1451, 1453 (10th Cir. 1987)). This "independent evidence may be sufficient even when it is not `substantial.'" United States v. Lopez-Gutierrez, 83 F.3d at 1242 (quoting United States v. Rascon, 8 F.3d 1537, 1541 (10th Cir. 1993)). The Tenth Circuit has noted: "We have defined `independent evidence' as `evidence other than the proffered [coconspirator] statements themselves.'" United States v. Lopez-Gutierrez, 83 F.3d at 1242 (alteration in United States v. Lopez-Gutierrez)(quoting United States v. Martinez, 825 F.2d at 1451).

"[I]t is not necessary for the United States to show that proffered statements were made during the time in which [the defendant] was a member of a conspiracy." United States v. Vigil, 2006 WL 4109681, at *5 (citing United States v. U.S. Gypsum Co., 333 U.S. 364, 393, 68 S.Ct. 525, 92 S.Ct. 746 (1948)("With the conspiracy thus fully established, the declarations and acts of the various members, even though made or done prior to the adherence of some to the conspiracy, become admissible against all as declarations or acts of 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 that one who joins and participates in a conspiracy "adopt[s] the previous acts and declarations of his fellow co-conspirators" (internal quotation marks omitted)(quoting United States v. Coe, 718 F.2d 830, 839 (7th Cir. 1983))). Once the conspiracy has ended, however, any statements made afterward are not admissible under this exception as they are not made in furtherance of the conspiracy. See United States v. DeLeon, 287 F.Supp.3d 1187, 1253 (D.N.M. 2018)(Browning, J.)(citing Lutwak v. United States, 344 U.S. 604, 617-18, 73 S.Ct. 481, 97 S.Ct. 593 (1953)).

In determining the admissibility of coconspirator statements, "[t]he strongly preferred order of proof" is for the district court to hold a James hearing "outside 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)). See United States v. DeLeon, 287 F. Supp. 3d at 1201-02 (allowing a James hearing and providing guidance on its structure). 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 Racketeering Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-68, violations, and the United States moved the Court to permit it to elicit non-hearsay coconspirator statements in Vigil's retrial. See 2006 WL 4109681, at *1. The Court noted that it had previously 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 (internal quotation marks omitted)(quoting United States v. Vigil, No. CR 05-2051 JB, 2006 WL 4109683, at *16 (D.N.M. Aug. 7, 2006)(Browning, J.)).

In support of its determination that the United States had met its burden to prove that Vigil participated in the existent conspiracy, the Court pointed to testimony asserting that Angelo Garcia, an alleged coconspirator, "told Vigil that he would set up the same arrangement with Vigil as with Montoya, Vigil learned about the prior arrangement with Montoya through Garcia, Vigil indicated that he intended to continue the fee-sharing arrangement that Montoya had set up, and Vigil threatened to withhold the SLOM contract from Everage." 2006 WL 4109681, at *4 (internal quotation marks omitted)(quoting United States v. Vigil, 2006 WL 4109683, at *16). 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 HEARSAY

"Hearsay testimony is generally inadmissible." United States v. Christy, No. CR 10-1534 JB, 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' means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement." Fed. R. Evid. 801(c). Hearsay bars a party from presenting its own statements, such as "a defendant ... attempt[ing] to introduce an exculpatory statement made at the time of his arrest without subjecting himself to cross-examination." United States v. Cunningham, 194 F.3d 1186, 1199 (11th Cir. 1999). A statement that is otherwise hearsay, however, may be offered for a permissible purpose other than to prove the truth of the matter asserted, including impeaching a witness. See United States v. Caraway, 534 F.3d 1290, 1299 (10th Cir. 2008)("We have already explained why the content of the statement, if used substantively, would be inadmissible hearsay. If admitted for impeachment purposes, however, it is not hearsay."). 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 United States Court of Appeals for the Tenth Circuit has stated:

Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 667 (10th Cir. 2006)(emphasis omitted)(quoting United States v. Pinalto, 771 F.2d 457, 459 (10th Cir. 1985)).15

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)(Korman, J.). "The present sense impression exception applies only to reports of what the declarant has actually observed through the senses, not to what the declarant merely conjectures." Brown v. Keane, 355 F.3d 82, 89 (2d Cir. 2004). "The underlying rationale of the present sense impression exception is that substantial contemporaneity of event and statement minimizes unreliability due to defective recollection or conscious fabrication." United States v. Hawkins, 59 F.3d 723, 730 (8th Cir. 1995)(internal quotation marks omitted)(quoting United States v. Parker, 936 F.2d 950, 954 (7th Cir. 1991)), cert. granted, 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 [of the United States] 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 Circuit has noted that "[t]he rationale underlying the `excited utterance' exception is that `excitement suspends the declarant's powers of reflection and fabrication, consequently minimizing the possibility that the utterance will be influenced by self interest and therefore rendered unreliable.'" United States v. Alexander, 331 F.3d 116, 122 (D.C. Cir. 2003)(quoting United States v. Brown, 254 F.3d 454, 458 (3d Cir. 2001)). "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 (alterations in United States v. Alexander) (quoting United States v. Joy, 192 F.3d 761, 766 (7th Cir. 1999)). The Tenth Circuit, in United States v. Smith, 606 F.3d 1270 (10th Cir. 2010)(Tymkovich, J.), set forth a district court's required analysis for whether a statement is admissible under the excited-utterance exception:

606 F.3d at 1279 (alteration in United States v. Smith)(internal citations omitted)(first quoting United States v. Pursley, 577 F.3d 1204, 1220 (10th Cir. 2009); and then quoting United States v. Ledford, 443 F.3d 702, 711 (10th Cir. 2005), abrogated on other grounds by Henderson v. United States, 135 S.Ct. 180 (2015)). There is no hard time limit that must be met under Rule 803; what is relevant is whether the declarant is still under the excitement of the startling event. See United States v. Smith, 606 F.3d at 1279; United States v. Ledford, 443 F.3d at 711. The Tenth Circuit has noted:

United States v. Pursley, 577 F.3d at 1220. "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)(Tymkovich, J.)(first alteration in United States v. Frost)(internal quotation marks omitted)(quoting Fed. R. Evid. 803 advisory committee's notes to 1972 proposed rules), overruled on other grounds by United States v. Bustamante-Conchas, 850 F.3d 1130 (10th Cir. 2017). "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)(emphasis and first, second, sixth, and seventh alterations in United States v. Jones).

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 the underlying events" and because of its reliability, as evidenced by the wife's detailed description of the gun); United States v. Mejia-Valez, 855 F. Supp. at 613-15 (concluding that admission of two callers' 911 call tape recordings as excited utterances and present-sense impressions was proper, because the two callers were at the scene of the underlying shooting, they placed the calls moments after the shooting, and both men described the shooting's circumstances, including giving the location and the shooter's description).

4. Rule 803(3).

Rule 803(3), excepts from the general bar on hearsay "[a] statement of the declarant's then-existing state of mind ... or emotional, sensory, or physical condition." Fed. R. Evid. 803(3). Rule 803(3) permits the introduction of "hearsay ..., regardless of whether the declarant is available as a witness," for a statement of the declarant's "then-existing mental, emotional, or physical condition," Fed. R. Evid. 803(3) (title case and bolding omitted):

Fed. R. Evid. 803(3).

For the statement to qualify under the exception, it "must relate to the declarant's state of mind during" the incident in question. United States v. Netschi, 511 F. App'x. 58, 61 (2d Cir. 2013)(emphasis omitted)("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." (internal quotation marks omitted)(quoting United States v. Cardascia, 951 F.2d 474, 488 (2d Cir. 1991))). This requirement is not to say that the statement must be said at the very moment of the incident, but for intent to be proved, it must be "contemporaneous" to the act. Mutual Life Ins. of N.Y. v. Hillmon, 145 U.S. 285, 295, 12 S.Ct. 909, 36 S.Ct. 706 (1892). To be contemporaneous and therefore admissible under the present state of mind exception, a statement must be "part of a continuous mental process." United States v. Cardascia, 951 F.2d at 488. In addition to the requirements that the statement be contemporaneous to the incident at hand and relevant to the issues of the case, it must also be established that there was no opportunity for the declarant to "fabricate or to misrepresent his thoughts." United States v. Jackson, 780 F.2d 1305, 1315 (7th Cir. 1986)(internal quotation marks omitted)(quoting United States v. Layton, 549 F.Supp. 903, 909 (N.D. Cal. 1982)(Peckham, C.J.)). 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." 4 Stephen A. Saltzburg et al., Federal Rules of Evidence Manual § 803.02[4][b], at 803-33 (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 Fed. R. Evid. 804(b)(3)(A)). A statement against interest is one that "a reasonable person in the declarant's position would have made only if the person believed it to be true." Fed. R. Evid. 804(b)(3)(A). Moreover, the statement must be "supported by corroborating circumstances that clearly indicate its trustworthiness." Fed. R. Evid. 804(b)(3)(B).

Rule 804(b)(3) embodies "the commonsense notion that reasonable people, even reasonable people who are not especially honest, tend not to make self-inculpatory statements unless they believe them to be true." United States v. Smalls, 605 F.3d 765, 780-81 (10th Cir. 2010)(internal quotation marks omitted)(quoting Williamson v. United States, 512 U.S. 594, 599, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994)). 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.

ANALYSIS

The Court determines that a capital offense for purposes of 18 U.S.C. § 3432 is any crime for which the death penalty may be imposed. Accordingly, that the United States decides not to seek the death penalty in a particular case does not affect the applicability of 18 U.S.C. § 3432. As the Count 1 Trial Defendants who seek Jaramillo's exclusion are charged with a capital offense — because the death penalty could have been imposed against them — § 3432's notice requirement applies in this case, and the United States violated this requirement by inadvertently omitting Jaramillo from its witness list. The Court concludes, however, that excluding Jaramillo's testimony from trial is not an appropriate remedy for the § 3432 violation and will allow Jaramillo to testify at a later date during trial, as to allow the Count 1 Trial Defendants time to prepare. Finally, the Court concludes that the out-of-court statements that the James Notice identifies and which Jaramillo will relate to the jury are admissible for their truth.

I. 18 U.S.C. § 3432 APPLIES WHENEVER THE UNITED STATES PROSECUTES AN OFFENSE THAT IS PUNISHABLE BY DEATH.

The United States does not seek to impose the death penalty in this case, see Notice of Intent Not to Seek a Sentence of Death at 1, even though several of the Defendants are accused of committing crimes that are punishable by death, see 18 U.S.C. § 1959(a)(1) (stating that a violation is punishable "by death or life imprisonment"); Indictment at 9, 12, 15, 19, 21 (alleging five different 18 U.S.C. § 1959(a)(1) violations). Some procedural rules apply whenever the United States prosecutes an offense for which the United States Code permits a death sentence. See, e.g., 18 U.S.C. § 3235 ("The trial of offenses punishable with death shall be had in the county where the offense was committed, where that can be done without great inconvenience."); 18 U.S.C. § 3281 ("An indictment for any offense punishable by death may be found at any time without limitation."). Other procedural rules apply only when the United States seeks to impose the death penalty in a particular case. See, e.g., 18 U.S.C. § 3593(a) (requiring the United States to file a notice, "[i]f ... the attorney for the government believes that the circumstances of the offense are such that a sentence of death is justified," that sets forth the aggravating factors which the United States "proposes to prove as justifying a sentence of death"); Fed. R. Crim. P. 24(b)(1) ("Each side has 20 peremptory challenges when the government seeks the death penalty."). Whether 18 U.S.C. § 3432's pretrial witness disclosure requirement belongs in the former category or the latter, i.e., whether it applies in this case, depends on whether the term "capital offense" means an offense for which the death penalty is a legally permissible punishment or if it means, instead, an offense for which the United States seeks to impose the death penalty in a particular case. 18 U.S.C. § 3432 ("A person charged with treason or other capital offense shall at least three entire days before commencement of trial ... be furnished with ... a list ... of the witnesses to be produced on the trial for proving the indictment....").16

Title 18 of the United States Code does not define a capital offense, so that term takes its "ordinary, contemporary, common meaning." Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979)(Burger, C.J.). The language that is now codified at 18 U.S.C. § 3432 has origins in the Crimes Act of 1790, ch. 9, § 29, 1 Stat. 112, 118, but Congress has significantly amended the provision in both the nineteenth and twentieth centuries. See supra note 16 (tracing the statutory lineage of 18 U.S.C. § 3432's pretrial witness requirement to the reign of Queen Anne). Consequently, the Court cannot restrict its inquiry to a single time period when attempting to determine the "contemporaneous" meaning, Perrin v. United States, 444 U.S. at 42, 100 S.Ct. 311, of "capital offense" as 18 U.S.C. § 3432 uses the term. Compare Antonin Scalia & Bryan A. Garner, Reading Law 78 (2012)("Words must be given the meaning they had when the text was adopted."), with id. at 256 ("If the legislature amends or reenacts a provision other than by way of a consolidating statute or restyling project, a significant change in language is presumed to entail a change in meaning."). Thankfully, legal usage has been remarkably consistent over the centuries. Black's Law Dictionary indicates that a capital offense is "[a] crime for which the death penalty may be imposed. — Also termed capital crime." Capital Offense, Black's Law Dictionary, supra. Bouvier's Law Dictionary also defines a capital offense as a "[c]rime for which the punishment may be death," and provides that "[a] person commits a capital offense by committing an act that violates a criminal prohibition punishable by death, even if the person is neither indicted with such a liability or sentenced to death." 1 Bouvier Law Dictionary 699 (Stephen Michael Sheppard ed. 2012) A Dictionary of American and English Law, with Definitions of the Technical Terms of the Canon and Civil Laws, a nineteenth century source, does likewise. See 1 Stewart Rapalje & Robert L. Lawrence, A Dictionary of American and English Law, with Definitions of the Technical Terms of the Canon and Civil Laws 169 (1888)(defining a capital crime as "[a]n offence for which the punishment of death is provided by law"). See also id. ("The punishment of death is frequently termed capital punishment; and those offences are called capital offenses for which death is the penalty allotted by law."). Scholarly sources refer to capital crimes and capital offenses in a similar way.

Leonard D. Savitz, Capital Crimes as Defined in American Statutory Law, 46 J. Crim. Criminology & Police Sci. 355, 355 (1955)(footnote omitted). Treatises agree: "A `capital' crime is generally an offense which is punishable by death. The fact that the prosecution is not seeking imposition of the death penalty does not render an otherwise capital offense noncapital." 21 Am. Jur. 2d Criminal Law § 24 (2019)(footnote omitted).

Defining a capital offense as an offense punishable by death is consistent with other ways in which the United States Code uses the term capital offense. See Atl. Cleaners & Dyers v. United States, 286 U.S. 427, 433, 52 S.Ct. 607, 76 S.Ct. 1204 (1932)("Undoubtedly, there is a natural presumption that identical words used in different parts of the same act are intended to have the same meaning."). For example, 18 U.S.C. § 3281 is titled "Capital offenses," but its text provides the statute of limitations — or the lack thereof — for "any offense punishable by death"; implicitly, the two phrases are equivalent. 18 U.S.C. § 3281.17 18 U.S.C. § 3282 complements § 3281's provisions regarding a statute of limitations for offenses punishable by death with a statute of limitations that applies to "any offense, not capital," i.e., any offense that is not punishable by death. 18 U.S.C. § 3282. In United States v. Ealy, 363 F.3d 292 (4th Cir. 2004), the United States Court of Appeals for the Fourth Circuit equated § 3281's reference to offenses punishable by death with § 3282's reference to capital offenses:

United States v. Ealy, 363 F.3d at 296-97 (emphasis in original)(first quoting 18 U.S.C. § 3281; then quoting 18 U.S.C. § 3282; and then quoting United States v. Church, 151 F.Supp.2d 715, 717 (W.D. Va. 2001)(Jones, J.)). Recently, the Second Circuit likewise concluded: "That the Government elected not to pursue capital punishment here is immaterial to whether ... offenses are in fact capital offenses for purposes of § 3281." United States v. Guerrero, 813 F.3d 462, 466 (2d Cir. 2016).18

That definition is also consistent with the Supreme Court's decision in Smith v. United States, 360 U.S. 1, 79 S.Ct. 991, 3 L.Ed.2d 1041 (1959)("Smith"). When the Supreme Court decided Smith, rule 7 of the Federal Rules of Criminal Procedure stated: "`An offense which may be punished by death shall be prosecuted by indictment. An offense which may be punished by imprisonment for a term exceeding one year or at hard labor shall be prosecuted by indictment, or if indictment is waived, it may be prosecuted by information.'" Smith, 360 U.S. at 6-7, 79 S.Ct. 991 (emphasis in Smith)(quoting Fed. R. Crim. P. 7(a) (1958)). In Smith, notwithstanding that rule, the United States prosecuted a federal kidnapping offense — punishable by death, circa 1959,19 unless the victim was released unharmed — via information, and that information did not specify whether the alleged victim was released unharmed. Smith, 360 U.S. at 7, 79 S.Ct. 991. The United States contended that "whether a specific kidnapping constitutes a capital offense requires examination of the evidence to determine whether the victim was released harmed or unharmed," and that "the mere filing of an information by the United States Attorney eliminated the capital element of the crime." Smith, 360 U.S. at 8, 79 S.Ct. 991.

The Supreme Court rejected those two contentions, because, "[a]lthough the imposition of th[e death] penalty will depend on whether sufficient proof of harm is introduced during the trial, that circumstance does not alter the fact that the offense itself is one which may be punished by death and thus must be prosecuted by indictment." Smith, 360 U.S. at 8, 79 S.Ct. 991. It continued, providing that "when the offense as charged is sufficiently broad to justify a capital verdict, the trial must proceed on that basis." Smith, 360 U.S. at 8, 79 S.Ct. 991. The Supreme Court appealed to pragmatic considerations to justify its conclusion that federal kidnapping is a capital offense due to the possibility of a capital verdict, even when "the evidence later establishes that such a verdict cannot be sustained because the victim was released unharmed." Smith, 360 U.S. at 8, 79 S.Ct. 991. "It is neither procedurally correct nor practical to await the conclusion of the evidence to determine whether the accused is being prosecuted for a capital offense. For the trial judge must make informed decisions prior to trial which will depend on whether the offense may be so punished." Smith, 360 U.S. at 8, 79 S.Ct. 991. According to Smith, those pretrial decisions, i.e., decisions that depend on whether the charged offense is punishable by death, include "whether the accused has the right to obtain a list of veniremen and government witnesses[.]" Smith, 360 U.S. at 8, 79 S.Ct. 991 (citing 18 U.S.C. § 3432). The Supreme Court provided that "the substantial safeguards to those charged with serious crimes cannot be eradicated under the guise of technical departures from the rules." Smith, 360 U.S. at 9, 79 S.Ct. 991. Further, "in view of the traditional canon of construction which calls for the strict interpretation of criminal statutes and rules in favor of defendants where substantial rights are involved," the Supreme Court accordingly refused to loosely construe rule 7 as the United States requested. Smith, 360 U.S. at 9, 79 S.Ct. 991.

Smith's reasoning resonates with an earlier Supreme Court case, Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 S.Ct. 429 (1892)("Logan"), abrogated on other grounds by Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), which analyzed the version of 18 U.S.C. § 3432 that was then in force and stated that "[t]he words of the existing statute are too plain to be misunderstood." 144 U.S. at 304, 12 S.Ct. 617. The Supreme Court noted that the statute is "mandatory to the government," and that "its purpose is to inform the defendant of the testimony which he will have to meet, and to enable him to prepare his defense." Logan, 144 U.S. at 304, 12 S.Ct. 617. In Logan, the United States did not provide pretrial notice regarding the names of its witnesses, and "[t]he indictments charged the defendants not only with a conspiracy, which was not a capital offense, but also with having, in the prosecution of the conspiracy, committed a murder, which was a capital offense." Logan, 144 U.S. at 307, 12 S.Ct. 617. See id. at 304-05, 12 S.Ct. 617. See also supra note 16 (describing 18 U.S.C. § 3432's statutory pedigree). Accordingly, the Supreme Court stated that the Logan defendants "could not therefore lawfully be put on trial, against their objection, until at least two days after they had been furnished with a list of the witnesses to be called against them." Logan, 144 U.S. at 307, 12 S.Ct. 617. The Logan defendants were acquitted on the murder charge, but they were convicted on the conspiracy charge. See Logan, 144 U.S. at 307, 12 S.Ct. 617. The United States asserted that its failure to give pretrial notice

Logan, 144 U.S. at 307, 12 S.Ct. 617. That argument is consistent with modern readings of 18 U.S.C. § 3432 which tie its application to concerns attending a death sentence's imposition. See, e.g., United States v. Steel, 759 F.2d 706, 709-10 (9th Cir. 1985)("In our view, the purpose of the witness list right is to reduce the chance that an innocent defendant would be put to death by providing a pretrial safeguard not available in noncapital criminal prosecutions."). Logan, however, was dubious:

Logan, 144 U.S. at 307-08, 12 S.Ct. 617.

While Smith and Logan appear to resolve the issue before the Court by indicating that whether 18 U.S.C. § 3432 applies depends on whether the offense as charged may be punished by death, several strands of post-Smith, United States Courts of Appeals precedent muddy matters. The first strand of cases wrestle with issues associated with the implications of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), which held unconstitutional the regime of discretionary capital punishment that applied when the Supreme Court decided Smith, and similar Supreme Court cases such as United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), which prohibited capital punishment for a violation of the federal kidnapping statute. The United States Court of Appeals for the Ninth Circuit, for example, held that, in light of United States v. Jackson, a defendant indicted for kidnapping "was never faced with a capital charge" and thus "was not entitled to the benefit of the provisions of 18 U.S.C. § 3432." Reed v. United States, 432 F.2d 205, 208 (9th Cir. 1970)(holding that United States v. Jackson applies retroactively). Other Courts of Appeals are in accord with this holding, reasoning that, if the death penalty is unconstitutional for the charged offense, then it is not a "capital offense" for § 3432's purposes. See United States v. Kaiser, 545 F.2d 467, 475 (5th Cir. 1977)(concluding that, because the capital punishment provision of the defendant's charged offense "is unconstitutional and void," the offense is "non-capital for all purposes," and, thus, § 3432 does not apply); United States v. Bolden, 514 F.2d 1301, 1313 (D.C. Cir. 1975)(holding that § 3432 did not apply, because "this was not a capital case at the time of the trial" in light of Furman v. Georgia's invalidation of the death penalty (citing United States v. Heinlein, 490 F.2d 725, 727-28 (D.C. Cir. 1973)); Hall v. United States, 410 F.2d 653, 660 (4th Cir. 1969)(concluding that § 3432 did not apply, because "from the beginning the trial was understood not to present the possibility of a capital sentence," as United States v. Jackson prohibited such a sentence and the United States "disavowed any intention of seeking the capital penalty"). But see United States v. Crowell, 442 F.2d 346, 347-48 (5th Cir. 1971)(remanding case to determine if the defendant was afforded the witness list, because "[s]ection 3432 is mandatory, and a defendant indicted for a capital offense must be given the benefits of its provisions," even though the Supreme Court had since held unconstitutional the capital punishment provision of the offense with which the defendant was charged). The Court does not find this strand of caselaw persuasive, as it is inapplicable to this case — capital punishment is constitutionally available here; the United States just chose not to pursue it.

The other strand of cases deals with the situation where the United States affirms that it will not seek the death penalty. Under the modern capital sentencing regime, the United States provides notice of its intent to seek the death penalty "a reasonable time before the trial" of a capital offense so that, after conviction, there will be a separate hearing for the jury to determine whether the death sentence should be imposed. 18 U.S.C. § 3593. The Courts of Appeals which have considered § 3593's implications have determined that, when the United States does not file the notice or seek the death penalty, the case no longer involves a capital offense and § 3432 does not apply. See United States v. Shepperson, 739 F.3d 176, 181 (4th Cir. 2014)(concluding that "the instant case may not be a capital case, as the Attorney General never elected to seek the death penalty" and that the United States' reading of the witness list during jury selection satisfied § 3432's purpose); United States v. Grimes, 142 F.3d 1342, 1347 (11th Cir. 1998)(concluding that "a defendant is not entitled to benefits he would otherwise receive in a capital case," including those under § 3432, "if the government announces that it will not seek the death penalty or the death penalty is otherwise unavailable by force of law"). Before § 3593's enactment imposing the notice requirement, some Courts of Appeals came to the same conclusion in cases where the United States announced it would not seek the death penalty. See United States v. Trapnell, 638 F.2d 1016, 1029-30 (7th Cir. 1980)(holding that, when "the government announced in court ... that it was no longer seeking the death penalty[, it] was not required to comply with the provisions of" § 3432); Loux v. United States, 389 F.2d 911, 915 (9th Cir. 1968)(holding that, upon the United States' agreement to be bound by its decision not to seek the death penalty, "the death penalty was impossible," so the case was no longer a capital case necessitating the safeguards of § 3432). This caselaw is applicable here, because the United States elected not to pursue the death penalty and did not file the § 3593 notice. The Court does not find, however, these cases persuasive. That the United States elects not to pursue the death penalty in a particular case does not change the underlying offense from capital to noncapital; this election merely takes the death penalty off the table for that particular case. Section 3432's language is clear, and imposes the witness-list requirement upon a charge for "treason or other capital offense." 18 U.S.C. § 3432. The United States' decision whether to seek capital punishment does not change the charge as the indictment provides.

Accordingly, the Court concludes that 18 U.S.C. § 3432 applies to any case in which a capital offense is charged, irrespective whether the United States chooses to seek capital punishment. The statute's language is clear by imposing the witness-list requirement upon the United States when it has "charged [a person] with treason or other capital offense." 18 U.S.C. § 3432. Congress did not impose this requirement only when capital punishment is sought; instead, it chose to impose the requirement upon indictment for a capital offense. The Court is confident that Congress is aware of the time it takes for an indicted defendant to go to trial and that, in this time period, the United States could, and often does, choose to not pursue capital punishment. The Court thus sticks to the traditional canons of construction by understanding Congress' language to have its ordinary meaning, giving effect to every word, and strictly construing the criminal statute that protects a capital defendant's right to know those witnesses he or she will face and thus better prepare a defense. See Taniguchi v. Kan. Pac. Saipan, Ltd., 566 U.S. 560, 566, 132 S.Ct. 1997, 182 L.Ed.2d 903 (2012)("When a term goes undefined in a statute, we give the term its ordinary meaning."); Corley v. United States, 556 U.S. 303, 314, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009)("The Government's reading is thus at odds with one of the most basic interpretive canons, that `[a] statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant ....'" (quoting Hibbs v. Winn, 542 U.S. 88, 101, 124 S.Ct. 2276, 159 L.Ed.2d 172 (2004))); Smith, 360 U.S. at 9, 79 S.Ct. 991 ("We cannot do this in view of the traditional canon of construction which calls for the strict interpretation of criminal statutes and rules in favor of defendants where substantial rights are involved."). The Court therefore concludes § 3432 applies when a person has been charged with a capital offense, even if the United States chooses not to pursue capital punishment. Accordingly, § 3432 applies in this case, as the Trial II Trial Defendants were charged with an offense that may be punished with death, even though they will not ultimately be punished with death.20

II. THE UNITED STATES VIOLATED 18 U.S.C. § 3432.

The Count 1 Trial Defendants are charged with a capital offense. See 18 U.S.C. § 1959(a)(1) (providing for punishment "by death or life imprisonment"); Indictment at 9 (accusing the Count 1 Trial Defendants of committing murder in violation of 18 U.S.C. § 1959(a)(1)). Accordingly, the Count 1 Trial Defendants were entitled to receive, "three entire days before commencement of trial," a list of the United States' "witnesses to be produced on the trial for proving the indictment." 18 U.S.C. § 3432.21 The United States did not include Jaramillo on its pretrial witness list. See United States' Pretrial Witness List at 1-2.

It does not necessarily follow, however, that the United States violated 18 U.S.C. § 3432. Section 3432 does not require the United States to provide pretrial notice regarding its rebuttal witnesses.

Goldsby v. United States, 160 U.S. 70, 76, 16 S.Ct. 216, 40 S.Ct. 343 (1895)(quoting Rev. Stat. § 1033).22 Additionally, when the United States discovers a new witness after trial begins, the United States can call that witness as part of its case in chief even though it did not include the newly discovered witness on its witness list under some circumstances:

United States v. Fulks, 454 F.3d 410, 424 (4th Cir. 2006)(King, J., joined by Widener, J.).23

The Court cannot soundly characterize Jaramillo as a rebuttal witness, nor can it excuse the United States' failure to list Jaramillo as a good-faith omission of an after-discovered witness. The United States intended to call Jaramillo as a witness since before this trial began. See Brief at 5 (asserting that the United States "subpoenaed Jaramillo for trial," which began on April 9, 2018, "in March of 2018, planning to call him as a witness"). The United States, thus, intended to call Jaramillo as part of its case in chief and not to rebut evidence that the Defendants introduced, so Jaramillo is not a rebuttal witness.24 Likewise, that the United States intended to call Jaramillo as a witness in March, 2018, indicates that Jaramillo is not an after-discovered witness.25 See Brief at 5.

Accordingly, the Court concludes that the United States violated § 3432 by not including Jaramillo on its pretrial witness list. As the United States concedes, Jaramillo provides "highly probative evidence of the events at issue." Brief at 16. Further, despite providing for Jaramillo's appearance at trial via a subpoena issued in March, 2018, the United States left Jaramillo off its pretrial witness list. See United States' Pretrial Witness List at 1-2. With no exceptions to the witness-list requirement applying in this case, Jaramillo's omission from the United States' Pretrial Witness List means that the United States violated § 3432 by calling this undisclosed witness.

III. EXCLUDING JARAMILLO'S TESTIMONY IS NOT AN APPROPRIATE REMEDY FOR THE UNITED STATES' 18 U.S.C. § 3432 VIOLATION.

Jaramillo can testify even though the United States' failure to list Jaramillo on its pretrial witness lists violates 18 U.S.C. § 3432. "As a general matter, where a statute does not specifically provide for the exclusion of evidence in the event of a violation, federal courts disfavor exclusion as a judicially-fashioned remedy." United States v. Young, 533 F.3d 453, 461 (6th Cir. 2008). See United States v. Moffett, 84 F.3d 1291, 1294 (10th Cir. 1996)(agreeing with United States v. Thompson, 936 F.2d 1249 (11th Cir. 1991), which held that exclusion of evidence allegedly obtained in violation of pen register statute is improper, "because the statute does not provide the remedy of exclusion"); United States v. Alabi, No. CR 11-2292 JB, 2013 WL 2284956, at *55 (D.N.M. May 15, 2013)(Browning, J.)("Although the exclusionary rule provides some redress for improper law enforcement, it also places a large burden on society and on the truth-seeking role courts play in society by exacting as payment the exclusion of probative, reliable evidence."). See also United States v. Harmon, 785 F.Supp.2d 1146, 1170 n.4 (D.N.M. 2011)("Both scholars and judges have posited that exclusion of probative, reliable evidence of a defendant's guilt is too high a price to pay for the unknown degree of deterrence that exclusion achieves."). Section 3432 does not specify a remedy for a violation, so it falls to the Court to determine "an appropriate remedy for violation of the statute by supplementing a timely presented list with" Jaramillo's name after trial began. United States v. Young, 533 F.3d at 462.

Excluding Jaramillo's testimony is not an appropriate remedy in this case, because the Count 1 Trial Defendants have not identified how the United States' failure to list Jaramillo as a potential witness prejudices them. The Court cannot soundly conclude that, if Jaramillo had been included on the United States' witness list, the Count 1 Trial Defendants' voir dire, opening statements, and "entire approach to defending against Count 1, involving the Castillo homicide, would have been different." Response at 6. Before trial began, neither the United States nor the Defendants believed that Jaramillo's testimony would significantly advance the United States' case or that Jaramillo would be a cooperative witness. See Brief at 5 ("Over the course of this investigation, the United States attempted to interview Jaramillo several times, but Jaramillo was uncooperative and maintained that he didn't remember what happened."); Apr. 19 Tr. at 7:6-8 (Sindel)("[A]n investigator for our team had gone out and talked to Mr. Jaramillo and he said he didn't know anything about it.").26 That the Count 1 Trial Defendants' entire trial strategy would have changed in response to a single then-uncooperative witness' addition to the United States' March 23, 2018, witness list, which contains 142 names, is implausible. See United States' Pretrial Witness List. The Court credits, however, the Count 1 Trial Defendants' assertion that their trial strategy would have been profoundly different if they knew the substance of Jaramillo's testimony before trial began. See Response at 11 ("[T]he Defendants were not allowed to conduct voir dire in relation to Mr. Jaramillo's confession; they were not allowed to present opening statements in light of his confession; they were not allow[ed] to present their defense against the Government's case in chief with this information in hand.").

That assertion does not impact the Court's analysis, because the Defendants are not entitled to pretrial disclosure regarding the substance of the testimony that the United States' witnesses will provide. Under 18 U.S.C. § 3432, the Defendants are entitled only to the names and places of abode "of the witnesses to be produced on the trial for proving the indictment." 18 U.S.C. § 3432. The Due Process Clause requires the United States to disclose information in its possession that is exculpatory or that could be used to impeach the United States' witnesses. See Strickler v. Greene, 527 U.S. 263, 281, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). The Due Process Clause does not, however, require the United States to disclose the names of its witnesses who will testify unfavorably against the Defendants. See Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977). Thus, the United States had a duty to disclose Jaramillo's name only under § 3432, and a duty to disclose the substance of Jaramillo's testimony to the defense before trial under the Due Process Clause only if the United States possessed that information, and it is exculpatory or useful for impeachment. See Strickler v. Greene, 527 U.S. at 281, 119 S.Ct. 1936. Here, the United States did not possess the substance of Jaramillo's testimony until it interviewed him on April 18, 2018, after trial had begun, and provided to the Defendants the interview notes the same day and Jaramillo's 302 the day after. See April 19 Tr. at 2:11-24 (Sindel); id. at 134:25-135:1 (Burke). This interview was the first time Jaramillo cooperated with anybody and spoke about the Castillo homicide. See April 19 Tr. at 10:12-15 (Beck). Accordingly, allowing Jaramillo to testify does not violate the Defendants' due process rights, only § 3432. In light of the Court's function as a truth seeker; § 3432's purpose to prevent "trial by surprise," United States v. Young, 533 F.3d at 462; the Defendants assertion that, from the beginning of the case, they suspected Jaramillo's involvement in Castillo's murder, see, e.g., April 19 Tr. at 2:14-16 (Sindel); id. at 121:6-14 (Burke); and the United States' provision of Jaramillo's suspected testimony, see James Notice at 3-17; the Court concludes that the Defendants are not surprised or prejudiced by Jaramillo's being a witness and, thus, exclusion of Jaramillo's testimony is not an appropriate remedy. Cf. United States v. Duhart, 496 F.2d 941, 943 (9th Cir. 1974)(finding no prejudice where the defendant had knowledge of the United States' intention to call the witness — whose name was absent from the witness list — and of the anticipated testimony). Instead, the Court will push back the United States' introduction of Jaramillo's testimony as much as possible, as to allow the Defendants more time to prepare their defense against Jaramillo's expected testimony.

IV. THE JAMES NOTICE STATEMENTS ARE ADMISSIBLE NOTWITHSTANDING THE RULE AGAINST HEARSAY.

Under the Federal Rules of Evidence, only statements constitute hearsay. See Fed. R. Evid. 801(c) (stating that hearsay "means a statement" that satisfies certain conditions). A statement must be an assertion. See Fed. R. Evid. 801(a) ("`Statement' means a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion."). See also id. advisory committee's notes to 1972 proposed rules ("The effect of the definition of `statement' is to exclude from the operation of the hearsay rule all evidence of conduct, verbal or nonverbal, not intended as an assertion."). Verbal actions like orders and commands, e.g., "fetch me a shrubbery," as well as questions, e.g., "what do you want to eat for lunch?," are not always assertions, because they are neither true nor false. See Fed. R. Evid. 801 advisory committee's notes to 1972 proposed rules ("When evidence of conduct is offered on the theory that it is not a statement, and hence not hearsay, a preliminary determination will be required to determine whether an assertion is intended."). Consequently, orders and questions generally are not hearsay, both because hearsay must be a statement, and because something that is neither true nor false cannot be offered to prove the truth of the matter asserted. See Fed. R. Evid. 801(c) (defining hearsay as an out-of-court statement offered "to prove the truth of the matter asserted"). See also 4 Saltzburg et al., supra, § 801.02[1][c], at 801-17 ("If proffered evidence is not a `statement' within the meaning of Rule 801(a), then it cannot be hearsay, and so cannot be excluded under the rule.").

While orders and commands are not, themselves, assertions, they may — like questions — contain implicit assertions. See United States v. Summers, 414 F.3d at 1300 (concluding that a defendant's question — "How did you guys find us so fast?" — was an implicit assertion of "both guilt and wonderment at the ability of the police to apprehend the perpetrators of the crime so quickly").27 For example, a lawyer asking a witness whether the witness stopped beating his wife indicates both that the witness has a wife and that the witness abused his wife. Whether those two indications are assertions, however, depends on the lawyer's intent. "Taken together, [United States v. Jackson, 88 F.3d 845 (10th Cir. 1996),] and [United States v. Long, 905 F.2d 1572 (D.C. Cir. 1990)(Thomas, J.),] do not foreclose the possibility that a declaration in the form of a question may nevertheless constitute an assertion within the meaning of Rule 801(a) and (c). Rather, both cases properly focus the inquiry on the declarant's intent." United States v. Summers, 414 F.3d at 1300. Thus, the verbal acts that the James Notice identifies can qualify as statements — and, hence, as hearsay — if they were intended to be assertions. See Fed. R. Evid. 801 advisory committee's notes to 1972 proposed rules ("The key to the definition is that noting is an assertion unless intended to be one.").

Even if an out-of-court utterance qualifies as a statement and is offered for its truth, it is not hearsay if it "is offered against an opposing party," and "was made by the party's coconspirator during and in furtherance of the conspiracy." Fed. R. Evid. 801(d)(2)(E). The Court finds, by a preponderance of the evidence, that a conspiracy to kill Frank Castillo existed, and the conspiracy persisted until Castillo died on March 26, 2001. See supra FOF ¶ 1. Jaramillo, B. Garcia, Lujan, J. Gallegos, and Troup were members of the conspiracy. See supra FOF ¶¶ 2-3. The Court conducts a statement-by-statement analysis of the United States' James Notice statements to determine whether they qualify as statements for hearsay purposes and, if so, whether they are not hearsay — even if offered to prove the truth of the matter asserted — under rule 801(d)(2)(E). The Court sets out that analysis in the

              Statement                                                       Ruling

   Statement 1: "Leonard Lujan told                   Statement 1 presents a potential hearsay-within-hearsay
   Michael Jaramillo, a.k.a., `Criminal,' that        issue, because it is an out-of-court Lujan
   Billy Garcia told Lujan to find people to          statement describing an out-of-court B. Garcia
   murder Frank Castillo and Lujan chose              statement. See Fed. R. Evid. 805 ("Hearsay within
   Jaramillo, Joe Gallegos, and Angel                 hearsay is not excluded by the rule against hearsay if
   Deleon."                                           each part of the combined statements conforms with
                                                      an exception to the rule."). B. Garcia's directions to
   Declarant: Leonard Lujan                           Lujan are commands and not assertions, so they are
                                                      not hearsay. The Court will not give a limiting
   Source: Michael Jaramillo                          instruction regarding this portion of the statement.
                                                      Lujan's statements relaying B. Garcia's directions
   Date: On or before March 26, 2001                  were made in furtherance of the conspiracy to kill
                                                      Castillo, because Lujan made those statements to
                                                      convince Jaramillo to participate. Consequently,
                                                      those statements are admissible under rule
                                                      801(d)(2)(E). The Court will give a limiting
                                                      instruction, upon request, regarding this portion of
                                                      the statement as to Defendants other than B. Garcia,
                                                      J. Gallegos, and Troup.

   Statement 2: "Leonard Lujan told                   Lujan's directions to Jaramillo are commands and
   Michael Jaramillo, a.k.a., `Criminal,' to          not assertions. Consequently, those directions are
   discuss details with Joe Gallegos."                not hearsay, so they are admissible. The Court will
                                                      not give a limiting instruction.

   Declarant: Leonard Lujan

   Source: Michael Jaramillo

   Date: On or before March 26, 2001

   Statement 3: "Leonard Lujan told                   Lujan's directions to Jaramillo — go speak with Joe
   Michael Jaramillo, a.k.a., `Criminal,' that        Gallegos and DeLeon — are commands and not
   Jaramillo was going to have to "put in             statements, so they are admissible. Lujan's
   work" for the SNM, and to speak with               statements to Jaramillo, i.e., that Jaramillo was
   Joe Gallegos and Angel DeLeon about                going to have to put in work for the SNM, were
   it."                                               made in furtherance of the conspiracy to kill
                                                      Castillo, because Lujan made those statements to
   Declarant: Leonard Lujan                           convince Jaramillo to participate. Consequently,
                                                      those statements are admissible under rule
   Source: Michael Jaramillo                          801(d)(2)(E). The Court will give a limiting
                                                      instruction, upon request, as to Defendants other
   Date: On or before March 26, 2001                  than B. Garcia, J. Gallegos, and Troup.

   Statement 4: "Joe Gallegos told Michael            Statement 4 is a statement of the declarant's then-existing
   Jaramillo and Angel DeLeon that they               state of mind, i.e., J. Gallegos' plan to kill

   would wait for an anticipated heroin               Castillo. Consequently, statement 4 is admissible
   delivery before killing Castillo."                 hearsay. See Fed. R. Evid. 803(3). Because
                                                      statement 4 is admissible against all the Defendants
   Declarant: Joe Gallegos                            under rule 803(3), the Court will not give a limiting
                                                      instruction. J. Gallegos made the statement to
   Source: Michael Jaramillo                          explain when he, Jaramillo, and DeLeon were going
                                                      to kill Castillo, so J. Gallegos made the statement in
   Date: On or before March 26, 2001                  furtherance of the conspiracy to kill Castillo.
                                                      Consequently, statement 4 is admissible for its truth
                                                      under rule 801(d)(2)(E). Additionally, it is
                                                      admissible against J. Gallegos as an admission of a
                                                      party opponent under rule 801(d)(2)(A).

   Statement 5: "Leonard Lujan told                   Lujan made statement 5 to convince Jaramillo to
   Michael Jaramillo the order was coming             participate in the Castillo murder. Consequently,
   from Billy Garcia so Jaramillo knew it             Lujan made statement 5 in furtherance of the
   was serious."                                      conspiracy to murder Castillo, so it is admissible
                                                      under rule 801(d)(2)(E). The Court will give a
   Declarant: Leonard Lujan                           limiting instruction, upon request, as to Defendants
                                                      other than B. Garcia, J. Gallegos, and Troup.
   Source: Michael Jaramillo

   Date: On or before March 26, 2001

   Statement 6: "Once the heroin came in,             That J. Gallegos called Jaramillo and DeLeon into
   Joe Gallegos called Michael Jaramillo              his cell is an action and not an assertion, so it is not
   and Angel DeLeon to his cell to order the          hearsay, and it is admissible. That J. Gallegos
   murder of Castillo to take place in the            ordered Jaramillo and Deleon to murder Castillo in
   morning."                                          the morning is an order and not an assertion, so it is
                                                      not hearsay, and it is admissible. The Court will not
   Declarant: Joe Gallegos                            give a limiting instruction.

   Source: Michael Jaramillo

   Date: On or before March 26, 2001

   Statement 7: "Joe Gallegos told Michael             Statement 7 is a statement of the declarant's then-existing
   Jaramillo and Angel DeLeon that the plan            state of mind, i.e., J. Gallegos' plan to kill
   was go [sic] the Castillo cell when the             Castillo. Consequently, statement 7 is admissible
   doors open in the morning and use heroin            hearsay. See Fed. R. Evid. 803(3). Because
   with Castillo and then `take him out.'"             statement 7 is admissible against all the Defendants
                                                       under rule 803(3), the Court will not give a limiting
   Declarant: Joe Gallegos                             instruction. J. Gallegos made statement 7 to explain
                                                       to Jaramillo and DeLeon what they are supposed to
   Source: Michael Jaramillo                           do vis-à-vis the Castillo murder, so J. Gallegos made
                                                       the statement in furtherance of the conspiracy to kill
   Date: On or before March 26, 2001                   Castillo. Consequently, statement 7 is admissible
                                                       for its truth under rule 801(d)(2)(E). Additionally, it

                                                      is admissible against J. Gallegos as an admission of
                                                      a party opponent under rule 801(d)(2)(A). The
                                                      Court will give a limiting instruction, upon request,
                                                      as to Defendants other than B. Garcia, J. Gallegos,
                                                      and Troup.

   Statement 8: "Joe Gallegos told Michael            J. Gallegos made statement 8 to convince Jaramillo
   Jaramillo and Angel DeLeon that                    and DeLeon to participate in the Castillo murder, so
   Gallegos's family would pay for an                 J. Gallegos made statement 8 in furtherance of the
   attorney if they got in trouble."                  conspiracy to kill Castillo. Consequently, statement
                                                      8 is admissible for its truth under rule 801(d)(2)(E).

   Declarant: Joe Gallegos

   Source: Michael Jaramillo

   Date: On or before March 26, 2001

   Statement 9: "Joe Gallegos told Michael             Statement 9 is a command — refuse DNA testing —
   Jaramillo and Angel DeLeon to refuse                and not an assertion, so it is not hearsay. It is
   DNA testing if the police requested it."            admissible, and the Court will not give a limiting
                                                      instruction.

   Declarant: Joe Gallegos

   Source: Michael Jaramillo

   Date: On or before March 26, 2001

   Statement 10: "Joe Gallegos told Angel              Statement 10 is a command — hold Castillo down as
   DeLeon, in the presence of Michael                  he takes a hit of heroin — and not an assertion, so it
   Jaramillo, that he was to hold Castillo             is not hearsay. It is admissible, and the Court will
   down as he took a hit of heroin."                   not give a limiting instruction.

   Declarant: Joe Gallegos

   Source: Michael Jaramillo

   Date: On or before March 26, 2001

   Statement 11: "Joe Gallegos told Michael            Statement 11 is a command — choke out Castillo —
   Jaramillo, in [the] presence of Angel               and not an assertion, so it is not hearsay. It is
   DeLeon, that he was to `choke out'                  admissible, and the Court will not give a limiting
   Castillo while Gallegos and DeLeon held             instruction.
   Castillo down."

   Declarant: Joe Gallegos

   Source: Michael Jaramillo

   Date: On or before March 26, 2001

   Statement 12: "Joe Gallegos, in the                J. Gallegos' directions to Troup are commands — be
   presence of Michael Jaramillo and Angel            the lookout and keep everyone in their cells — and
   DeLeon, called Edward Troup, a.k.a.,               not assertions, so they are not hearsay; they are
   `Huero Troop,' over to Gallegos's cell             admissible. That J. Gallegos called Troup to his cell
   and told Troop to be the lookout during            is an action and not an assertion, so it is not hearsay;
   the murder and to keep everybody in their          it is admissible. The Court will not give a limiting
   cell during the murder."                           instruction

   Declarant: Joe Gallegos

   Source: Michael Jaramillo

   Date: On or before March 26, 2001

   Statement 13: "Joe Gallegos, in the                Statement 13 is a statement of J. Gallegos' then-existing
   presence of Michael Jaramillo and Angel            state of mind, specifically his plan, so it is
   DeLeon, told Jaramillo that he was going           admissible hearsay. See Fed. R. Evid. 803(3). J.
   to have Edward Troup, a.k.a., `Huero               Gallegos made the statement to explain to Jaramillo
   Troop,' act as a lookout during the                and DeLeon how the Castillo murder would
   murder."                                           proceed, so J. Gallegos made the statement in
                                                      furtherance of the conspiracy to murder Castillo.
   Declarant: Joe Gallegos                            Consequently, statement 13 is admissible under rule
                                                      801(d)(2)(E). Additionally, it is admissible against
   Source: Michael Jaramillo                          J. Gallegos as an admission of a party opponent
                                                      under rule 801(d)(2)(A).

   Date: On or before March 26, 2001

   Statement 14: "Edward Troup voiced his             Statement 14 is admissible against Troup as an
   agreement to be the lookout during the             admission of a party opponent under rule
   murder and to keep everybody in their              801(d)(2)(A). Troup made statement 14 to inform J.
   cell during the murder."                           Gallegos, DeLeon, and Jaramillo that he would do
                                                      his part in committing the Castillo murder, so Troup
   Declarant: Edward Troup                            made the statement in furtherance of the conspiracy
                                                      to kill Castillo. Consequently statement 14 is
   Source: Michael Jaramillo                          admissible for its truth under rule 801(d)(2)(E). The
                                                      Court will give a limiting instruction, upon request,
   Date: On or before March 26, 2001                  as to Defendants other than B. Garcia, J. Gallegos,
                                                      and Troup.

   Statement 15: "Joe Gallegos gave                   That J. Gallegos gave Jaramillo the heroin is an
   Michael Jaramillo the heroin."                     action and not an assertion, so it is not hearsay, and
                                                      it is admissible. The Court will not give a limiting
                                                      instruction.

   Declarant: Joe Gallegos

   Source: Michael Jaramillo

   Date: On or before March 26, 2001

IT IS ORDERED that the Defendants' oral motion to exclude Michael Jaramillo's testimony is denied. The United States may call Jaramillo as a witness, but must push down his testimony as to allow the Defendants time to prepare their defense.