Filed: Aug. 22, 2016
Latest Update: Aug. 22, 2016
Summary: MEMORANDUM DECISION AND ORDER DENYING MOTION FOR JAMES HEARING TED STEWART , District Judge . This matter is before the Court on Defendant Nephi Steed Allred's Motion for James 1 Hearing. The other Defendants have joined the Motion. Fed. R. Evid. 801(d)(2)(E) provides: "A statement that meets the following conditions is not hearsay: [t]he statement is offered against an opposing party and . . . was made by the party's coconspirator during and in furtherance of the conspiracy." Und
Summary: MEMORANDUM DECISION AND ORDER DENYING MOTION FOR JAMES HEARING TED STEWART , District Judge . This matter is before the Court on Defendant Nephi Steed Allred's Motion for James 1 Hearing. The other Defendants have joined the Motion. Fed. R. Evid. 801(d)(2)(E) provides: "A statement that meets the following conditions is not hearsay: [t]he statement is offered against an opposing party and . . . was made by the party's coconspirator during and in furtherance of the conspiracy." Unde..
More
MEMORANDUM DECISION AND ORDER DENYING MOTION FOR JAMES HEARING
TED STEWART, District Judge.
This matter is before the Court on Defendant Nephi Steed Allred's Motion for James1 Hearing. The other Defendants have joined the Motion.
Fed. R. Evid. 801(d)(2)(E) provides: "A statement that meets the following conditions is not hearsay: [t]he statement is offered against an opposing party and . . . was made by the party's coconspirator during and in furtherance of the conspiracy." Under Fed. R. Evid. 801(d)(2)(E), statements by co-conspirators are properly admissible as non-hearsay at trial if the Court determines, by a preponderance of the evidence, that (1) a conspiracy existed; (2) the declarant and the defendant were both members of the conspiracy; and (3) the statements were made in the course of and in furtherance of the conspiracy.2 It is the burden of the government to prove each of the elements by a preponderance of the evidence and it is the trial court that determines admissibility.3
"Before making a final ruling on the admissibility of such statements, a district court may proceed in one of two ways: (1) hold a James hearing outside the presence of the jury or (2) provisionally admit the evidence but require the Government to connect the statements to the conspiracy during trial."4 A James hearing is the "strongly preferred" method in the Tenth Circuit of determining the admissibility of coconspirator statements.5 However, this remains a preference and the district court retains discretion.6 The Tenth Circuit has held that there is no abuse of discretion in denying a pretrial James hearing when the hearing would be lengthy and would entail calling and recalling officers and witnesses in an elaborate and repetitive procedure.7
Given the nature of this case, the Court declines to conduct a James hearing at this time. Instead, within twenty-one (21) days before trial, the government is directed to submit a written proffer detailing the evidence it believes shows the existence of the conspiracy and the membership of that conspiracy.8 In addition, the government shall include a list of statements, or categories of statements, that it will seek to introduce as co-conspirator statements. After review of that proffer, Defendants may re-assert their request for a James hearing, if necessary.
It is therefore
ORDERED that Defendants' Motion for James Hearing (Docket No. 327) is DENIED WITHOUT PREJUDICE.
