United States District Court, D. Colorado
ORDER ON JAMES PROFFER
WILLIAM J. MARTÍNEZ, UNITED STATES DISTRICT JUDGE
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.
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.
NO HEARING NECESSARY
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). Therefore, although a
hearing is not required, the Tenth Circuit has expressed a
“strong preference” for pretrial James
proceedings. Id. 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.
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).
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).
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).
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
FINDINGS AND ANALYSIS
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).
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).
Existence of a Conspiracy
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).
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).
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.)
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.)
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
Defendant's Participation in Conspiracy
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.
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 ...