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United States v. Avila

United States District Court, D. Colorado

December 4, 2017

7. RICHARD AVILA, Defendants.



         In this drug distribution case, ten co-defendants were charged by a Superseding Indictment with conspiracy to distribute, and to possess with the intent to distribute, methamphetamine, in violation fo 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii) & 846. (ECF No. 62.) Of those ten defendants, eight have pled guilty to one or more charges, while one remains a fugitive. Only one Defendant, Richard Avila (here, “Defendant, ” or “Mr. Avila”), now remains set to proceed to trial. In addition to the conspiracy charged in Count 1, he is charged in Count 8 with possession and distribution of methamphetamine, on or about October 15, 2015. (Id. at 4.) The remaining 23 counts of the Superseding Indictment are not charged against Mr. Avila.

         Now before the Court is Defendant's Motion for Production of Co-Conspirator Statements and Request for a James Hearing. (ECF No. 248.) In response to this motion, the Government provided a James proffer listing 138 statements the Government indicates it will seek to offer at trial under the co-conspirator statements exception to the rule against hearsay, Federal Rule of Evidence 801(d)(2)(E). (ECF No. 257-1.) The Government also filed a brief in support of this proffer (ECF No. 257), to which Defendant has replied (ECF No. 283). Given this record, the Court's rulings regarding the provisional admissibility of these statements under Rule 801(d)(2)(E) are set out below.


         A district court can “only admit co-conspirator 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) (internal quotation marks omitted).[1] Therefore, although a hearing is not required, the Tenth Circuit has expressed a “strong preference” for pretrial James proceedings. Id.[2] The reason is that if a court provisionally admits a statement with the caveat that the Government “connect up” the statement to sufficient evidence of a predicate conspiracy at trial, the risk of prejudice to the defendants is high should the Government then fail to meet this burden. United States v. Urena, 27 F.3d 1487, 1491 (10th Cir. 1994). However, whether to hold a James hearing rests within the Court's discretion. Id.

         The Court has reviewed the Government's proffer, the parties' briefing, and materials before the Court. Given the extensive nature of the proffer, the other facts and evidence of record before the Court, and the Court's findings below, a hearing is not necessary here. Moreover, since the Court reserves ruling as to the ultimate admissibility of evidence and makes no determinations here on any grounds other than Rule 801(d)(2)(E), the Government should introduce as much independently admissible evidence as possible to establish the predicate conspiracy before offering any statements under Rule 801(d)(2)(E).


         Federal Rule of Evidence 801(d)(2)(E) provides that a statement is “not hearsay” if it “is offered against an opposing party” and it “was made by the party's coconspirator during and in furtherance of the conspiracy.” However, “[b]efore admitting statements into evidence under the coconspirator exception to the hearsay rule, the district court must determine 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.” Alcorta, 853 F.3d at 1137; Bourjaily v. United States, 483 U.S. 171, 175-76 (1987).

         Whether this standard is satisfied is a “preliminary question about whether . . . evidence is admissible, ” meaning the Court “is not bound by evidence rules, except those on privilege, ” when resolving the question. Fed.R.Evid. 104(a); Bourjaily, 483 U.S. at 178-79. As the offering party, the Government bears the burden of showing the preliminary facts by a preponderance of the evidence. United States v. Perez, 989 F.2d 1574, 1577 (10th Cir. 1993) (en banc).

         “The court may consider both independent evidence and the statements themselves when making this finding.” Rutland, 705 F.3d at 1248; see also Bourjaily, 483 U.S. at 180 (“a co-conspirator's statements could themselves be probative of the existence of a conspiracy and the participation of both the defendant and the declarant in the conspiracy”). The Tenth Circuit requires “at most that there be some independent evidence linking the defendant to the conspiracy.” Alcorta, 853 F.3d at 1142; see also United States v. Rascon, 8 F.3d 1537, 1541 (10th Cir. 1993) (“most courts require some reliable corroborating evidence apart from the coconspirator's statements before those statements may be used”). However, the independent evidence “need not be ‘substantial.'” Alcorta, 853 F.3d at 142.


         The Government has proffered 138 “statements” that it represents it will seek to admit at trial as co-conspirator statements under Rule 801(d)(2)(E). (ECF No. 257-1.) The Court's rulings and analysis here address only the provisional admissibility of these statements under Rule 801(d)(2)(E), subject to the Government “connecting up” these statements with evidence at trial of the predicate conspiracy. See United States v. Owens, 70 F.3d 1118, 1123 (10th Cir. 1995).

         The Government's briefing states both that its James proffer “generally does not include statements that the government intends to offer . . . under rules other than Rule 801(d)(2)(E), ” and also that “some of the statements . . . are also admissible under alternate theories.” (ECF No. 257 at 2.) These contradictory representations leave the Court unsure whether any determination under Rule 801(d)(2)(E) is necessary as to some unspecified part of the Government's proffer. In the Court's view, many of the proffered statements would be more naturally offered on some other evidentiary basis. Given the Tenth Circuit's admonition that “Rule 801(d)(2)(E) is a limitation on the admissibility of co-conspirators' statements that is meant to be taken seriously, ” Perez, 989 F.2d at 1578 (emphasis in original), and the potential for prejudice arising from unnecessary admission of evidence under Rule 801(d)(2)(E), see Urena, 27 F.3d at 1491, the Court is reluctant to admit evidence under Rule 801(d)(2)(E) unnecessarily. Accordingly, and in light of the Court's reservation of ruling below, see Part III.C.2.b., this Order does not address admissibility (or lack thereof) on any grounds other than Rule 801(d)(2)(E).

         A. Existence of a Conspiracy

         As to the threshold question of whether a conspiracy existed, the Court readily finds the Government has discharged its burden. To prove that a conspiracy existed the Government must show: (1) two or more persons agreed to violate the law, (2) the defendants knew the essential objectives of the conspiracy, (3) the defendants knowingly and voluntarily participated in the conspiracy, and (4) the alleged co-conspirators were interdependent. United States v. Small, 423 F.3d 1164, 1182 (10th Cir. 2005).

         To prove knowledge of the essential objectives of a conspiracy, the Government does not have to show a defendant knew all the details or all of the members of the conspiracy. Id. “Rather, the government only needs to demonstrate the defendant shared a common purpose or design with his alleged co-conspirators.” United States v. Yehling, 456 F.3d 1236, 1240 (10th Cir. 2006) (citing United States v. Evans, 970 F.2d 663, 669 (10th Cir. 1992). “The core of a conspiracy is an agreement to commit an unlawful act.” United States v. Esparsen, 930 F.2d 1461, 1471 (10th Cir. 1991). In this context, the element of illegality can be established from the proffered co-conspirator statements. United States v. Martínez, 825 F.2d 1451, 1452 (10th Cir. 1987). Direct evidence of a conspiracy is not required, and the conspiracy may be inferred from circumstantial evidence. United States. v. Bucaro, 801 F.2d 1230, 1232 (10th Cir. 1986) (citations omitted). It is also not required for every conspirator to “know of the . . . full extent of the conspiracy [as long as he has] a general awareness of both the scope and the objective of the enterprise.” United States v. Eads, 191 F.3d 1206, 1210 (10th Cir. 1999) (brackets in original).

         Applying these standards and the applicable burdens in this posture, the Government has met its burden of establishing that the defendants in this case were engaged in a conspiracy to distribute methamphetamine. Co-Defendant Eden Murillo was arrested on July 24, 2015 and charged with possession of methamphetamine with intent to distribute and firearms charges, based on drugs and guns found in a search of his residence. (See ECF Nos. 1-4; ECF No. 257 ¶ 25; ECF No. 192 ¶ 25.) While detained awaiting trial, Mr. Murillo placed phone calls from the facilities where he was detained to several of the other co-conspirators. These calls were recorded. A majority of the Government's James proffer constitutes recordings of Mr. Murillo's “jailhouse” telephone conversations with several co-defendants while detained. (ECF No. 257-1.) In particular, Mr. Murillo placed calls to co-defendants in the Denver area including his wife, Mandee Murillo, two of Mr. Avila's daughters, Krenshaw and Raquel Avila, and to Tanya Lindelien, who had been living with Mr. Murillo, and is also the mother of one of Mr. Avila's children. (ECF No. 257 ¶¶ 26-27; ECF No. 192 ¶¶ 19-20.)

         In these jailhouse calls, Mr. Murillo directed the other co-Defendants and made arrangements for them to acquire methamphetamine to carry on his methamphetamine distribution operation in Colorado. Mr. Murillo also spoke by phone to co-Defendant Jesus Zamora Torres, who was the conspiracy's primary supplier of methamphetamine, in Arizona. Mr. Murillo arranged for Mr. Zamora Torres to have various of the co-Defendants acquire methamphetamine in Arizona and to transport it from Arizona to Colorado. (See, e.g., ECF No. 257-1 Nos. 8, 10, 11, 37, 42, 44, 47-48, 57, 89.) As the result of the activities carried out while Mr. Murillo was detained, and largely at his direction, the remainder of the co-defendants were charged in the Superseding Indictment on June 8, 2016, nearly a year after the original charges were filed against Mr. Murillo. (ECF No. 62.)

         Given the ample evidentiary record tending to establish the above facts, the Court finds the Government has discharged its burden of showing by a preponderance of the evidence that this conspiracy to distribute methamphetamine existed. Defendant does not truly argue otherwise, instead contesting that the evidence fails to show that he was a part of this conspiracy.

         B. Defendant's Participation in Conspiracy

         Defendant points out-correctly-that only a small minority of the Government's proffered statements make any mention of him whatsoever. Nevertheless, the Court finds the proffered evidence reflecting Mr. Avila's connection with the conspiracy sufficient to make the preliminary showing required in this James determination.

         Statements included in the Government's proffer and other evidence tending to show that Defendant was a member of the conspiracy include the following:

• On August 5, 2015, shortly after his arrest, in the same conversation when Eden Murillo communicated with Raquel Avila about connecting with Mr. Zamora Torres in Arizona, Mr. Murillo also said that he was trying to help out Raquel's father, Mr. Avila. (ECF No. 251-1 #13.)
• After more conversations in which Mr. Murillo communicated with Raquel Avila about the methamphetamine in her possession (id. ## 16-17), on August 8, 2015, Mr. Murillo told her he was “building a team, ” and asked ...

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