United States District Court, D. Colorado
OPINION ADDRESSING GOVERNMENT'S JAMES
S. Krieger United States District Court.
MATTER comes before the Court for a provisional
ruling regarding the admissibility of statements contained in
the Government's James proffer (#
74) pursuant to Fed.R.Evid. 801(d)(2).
Indictment (# 1) charges Mr. Wyatt with
thirteen counts related to operation of his business,
Gunsmoke, Inc., including conspiracy to deal in firearms
without a license (Counts One and Five). The Government
intends to offer statements made by unindicted
co-conspirators at trial pursuant to Fed.R.Evid.
801(d)(2)(e). In accordance with the Court's protocol,
the parties have filed a James proffer and the
Defendant's objections (# 74) in chart
statements offered into evidence for the truth of the matter
asserted are hearsay. Fed R. Evid. 802 provides that hearsay
is not admissible evidence unless specified by statute or
rule. Rule 802(d)(2)(e) provides an exception to the hearsay
rule in criminal cases. A statement that is otherwise hearsay
is admissible if the statement was made by a co-conspirator
of the Defendant in the scope and in furtherance of their
801(d)(2)(e) applies if the Government shows, by a
preponderance of the evidence, that: (i) a conspiracy
existed; (ii) the declarant and defendant were both members
of the conspiracy; and (iii) the proffered statements were
made in the course of and in furtherance of the conspiracy.
United States v. Urena, 27 F.3d 1487, 1490 (10th
Cir. 1994); Bourjaily v. United States, 483 U.S.
171, 175 (1987); United States v. Perez, 989 F.2d
1574, 1577 (10th Cir. 1993). As for the first element, a
conspiracy exists when: (i) the defendant agrees with another
person to violate the law; (ii) the defendant knows of the
essential objective of the conspiracy; (iii) the defendant
knowingly and voluntarily participates in actions that
further the conspiracy's objective; and (iv) there is
interdependence among the conspirators. U.S. v.
Edwards, 69 F.3d 419, 430 (10th Cir. 1995). To prove the
defendant's participation in and knowledge of the
conspiracy, the Government does not have to show the
defendant knew all the details or all the members of a
conspiracy, only that the defendant shared a common purpose
or design with the purported co-conspirators. United
States v. Yehling, 456 F.3d 1236, 1240 (10th Cir. 2006).
Court makes a provision determination of admissibility based
solely on the evidence proffered by the Government. That
determination is necessarily conditional and potentially
subject to reconsideration or modification at the time of
trial, depending on the evidence actually produced by the
Government as to the existence, composition, and scope of the
conspiracy. Id. at 1491.
Scope of the conspiracy and its participants
Government makes the following proffer, which the Court
accepts as true for the limited purpose of this
Wyatt owned and operated Gunsmoke, a retail gun shop. From at
least April 1, 2013 through March 31, 2015, neither Mr. Wyatt
nor Gunsmoke had a Federal Firearms License
(“FFL”), as is required by the U.S. Bureau of
Alcohol, Tobacco, and Firearms (“ATF”) for
parties engaged in the sale of guns. Despite not having an
FFL, Mr. Wyatt devised a scheme to allow him to make sales of
firearms through the assistance of another gun store called
Gunner's Den, an entity operated by individuals
identified as R.R. and T.M. Customers shopped at Gunsmoke,
selected the weapon they wished to purchase, and paid Mr.
Wyatt. Mr. Wyatt then contacted the dealer of the desired
firearm and placed an order to be shipped to Gunner's
Den. The customer completed required ATF forms and underwent
a background check at the Gunner's Den. If the customer
passed the background check, R.R. or T.M. gave them the
provisional determination purposes, the Government's
proffer is sufficient to show the existence of a conspiracy
among Mr. Wyatt, R.R., and T.M., from April 1, 2013 to March
31, 2015. The purpose of that conspiracy was to allow Mr.
Wyatt to illegally sell firearms despite not having an FFL,
and Mr. Wyatt knowingly participated in that conspiracy.
Government's proffer identifies nine specific statements
that the Government intends to admit via Rule 801(d)(2)(e).
The Court addresses each statement, as ...