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United States v. Wyatt

United States District Court, D. Colorado

February 2, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
RICHARD WYATT Defendant.

          OPINION ADDRESSING GOVERNMENT'S JAMES PROFFER

          Marcia S. Krieger United States District Court.

         THIS MATTER comes before the Court for a provisional ruling regarding the admissibility of statements contained in the Government's James[1] proffer (# 74) pursuant to Fed.R.Evid. 801(d)(2).

         The 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 form.

         I. Legal Standards

         Out-of-court 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 conspiracy.

         Rule 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).

         The 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.

         ANALYSIS

         A. Scope of the conspiracy and its participants

         The Government makes the following proffer, which the Court accepts as true for the limited purpose of this James ruling.

         Mr. 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 weapon.

         For 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.

         B. Particular statements

         The 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 ...


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