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United States v. Brewington

United States District Court, D. Colorado

March 21, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
1. KENNETH BREWINGTON, Defendant. Recording File Name Ruling Number Declarant Ruling Number Declarant Ruling Number Description Ruling Number Ruling Number Ruling

          ORDER

          PHILIP A. BRIMMER United States District Judge

         This matter comes before the Court on the Government's James Proffer [Docket No. 144] and the Government's Amended James Log and Memorandum Regarding the Nature and Scope of the Alleged Conspiracy [Docket No. 180]. The Court held James hearings on December 15, 2017 and January 4, 2018.

         A. The Existence of a Conspiracy and its Membership

         “‘Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” United States v. Lewis, 594 F.3d 1270, 1282 (10th Cir. 2010) (quoting Fed.R.Evid. 801(c)). “Although hearsay statements are generally not admissible at trial, see Fed. R. Evid. 802, ‘a statement by a coconspirator of a party during the course and in furtherance of the conspiracy' is not hearsay, and is therefore admissible as substantive evidence against the party.” United States v. Hall, 473 F.3d 1295, 1302-03 (10th Cir. 2007) (quoting Fed.R.Evid. 801(d)(2)(E)). For a statement to be admissible under Fed.R.Evid. 801(d)(2)(E), the district court must first find the following elements by a preponderance of the evidence: “(1) that a conspiracy existed; (2) that the declarant and the defendant were both members of the conspiracy; and (3) that the statements were made in the course of and in furtherance of the conspiracy.” Id.

         Under Tenth Circuit law, the district court makes these factual determinations regarding the admissibility of co-conspirator statements under Fed.R.Evid. 801(d)(2)(E) by using one of two procedures: “(1) it may hold a ‘James hearing'” - a preliminary hearing outside the presence of the jury expressly for the purpose of making such determinations, see generally, United States v. James, 590 F.2d 575 (5th Cir. 1979), or “(2) it may provisionally admit the evidence with the caveat that the evidence must ‘connect up' during trial, i.e., that the party offering the evidence must prove the existence of the predicate conspiracy through trial testimony or other evidence.” United States v. Owens, 70 F.3d 1118, 1123 (10th Cir. 1995). The Tenth Circuit has expressed its “strong preference for James proceedings.” United States v. Townley, 472 F.3d 1267, 1273 (10th Cir. 2007), quoting United States v. Gonzalez-Montoya, 161 F.3d 643, 648 (10th Cir. 1998). “The reason for this preference is that if the court provisionally admits a statement with the idea that the statement and other evidence will later ‘connect up' showing the existence of a predicate conspiracy, there is the risk of undue prejudice if in the end the evidence does not in fact ‘connect up.'” United States v. Urena, 27 F.3d 1487, 1491 (10th Cir. 1994) (internal citations and quotations omitted). Regardless of which procedure is followed by the district court, the same facts must be proven by a preponderance of the evidence in order for the statements to be admissible. Townley, 472 F.3d at 1273; United States v. Lopez-Gutierrez, 83 F.3d 1235, 1242 (10th Cir. 1996).

         In determining whether a conspiracy exists, “the court may consider the hearsay statement sought to be admitted, along with independent evidence tending to establish the conspiracy.” Lopez-Gutierrez, 83 F.3d at 1242. The existence of a conspiracy may be “inferred from a unity of purpose or common design and understanding among conspirators to accomplish the objects of the conspiracy.” United States v. Thompson, 518 F.3d 832, 853 (10th Cir. 2008) (internal quotations and citations omitted). It may also be inferred “from the acts of the parties and other circumstantial evidence indicating concert of action for the accomplishment of a common purpose.” United States v. Scull, 321 F.3d 1270, 1282 (10th Cir. 2003). However, the inference of an agreement must be more than mere speculation or conjecture. United States v. Delgado-Uribe, 363 F.3d 1077, 1083 (10th Cir. 2004). For its preliminary determination under Fed.R.Evid. 801(d)(2)(E), it is not necessary for the government to prove that the conspiracy was for unlawful purposes. United States v. Martinez, 825 F.2d 1451, 1452 (10th Cir. 1987).

         Evidence showing a defendant's involvement in a conspiracy may include the co-conspirator statements themselves, but there must also be some independent evidence beyond those statements that links the defendant to the conspiracy. See Lopez-Gutierrez, 83 F.3d at 1242. The independent evidence may be sufficient even if it is not substantial. Id. While “mere presence at the crime scene is not sufficient in and of itself” to establish a defendant's involvement in a conspiracy, it is “a material and probative factor which the jury may consider.” United States v. Savaiano, 843 F.2d 1280, 1294 (10th Cir. 1988). It may be presumed “that a defendant acting in furtherance of a conspiracy is a knowing participant therein.” United States v. Delgado-Uribe, 363 F.3d 1077, 1083 (10th Cir. 2004). “[A] conspiracy, once instituted, continues to exist until it is abandoned, succeeds, or is otherwise terminated by some affirmative act, such as withdrawal by the defendant.” United States v. Russell, 963 F.2d 1320, 1322 (10th Cir. 1992).

         Statements by a conspirator are in furtherance of the conspiracy when they are “intended to promote the conspiratorial objectives.” United States v. Townley, 472 F.3d 1267, 1273 (10th Cir. 2007), quoting United States v. Reyes, 798 F.2d 380, 384 (10th Cir. 1986). Promotion may occur through “statements that explain events of importance to the conspiracy in order to facilitate its operation, statements between coconspirators which provide reassurance, which serve to maintain trust and cohesiveness among them, or which inform each other of the current status of the conspiracy, and statements of a coconspirator identifying a fellow coconspirator.” Townley, 472 F.3d at 1273 (internal citations omitted). They may also include statements which identify the defendant as “a member of the conspiracy, and describ[e] his function in assisting the organization in avoiding detection by law enforcement.” United States v. Williamson, 53 F.3d 1500, 1520 (10th Cir. 1995). “A court may conclude that the statements are in furtherance of a conspiracy even though the statements are susceptible of alternative interpretations.” United States v. Marin, 7 F.3d 679, 690 (7th Cir. 1993). “[P]revious statements made by co-conspirators are admissible against a defendant who subsequently joins the conspiracy.” United States v. Brown, 943 F.2d 1246, 1255 (10th Cir. 1991).

         “[I]n deciding whether the offering party has satisfied its burden at a James hearing, the district court has the discretion to consider any evidence not subject to a privilege, including both the coconspirator statements the government seeks to introduce at trial and any other hearsay evidence, whether or not that evidence would be admissible at trial.” United States v. Owens, 70 F.3d 1118, 1124 (10th Cir.1995). “The co-conspirator hearsay exception contains no requirement that the declarant be a defendant, only that she be a member of the conspiracy.” Champagne Metals v. Ken-Mac Metals, Inc., 458 F.3d 1073, 1081 n. 5 (10th Cir. 2006) (internal citations omitted). “[T]here is no requirement that a district court make findings on the record before the nonhearsay is admitted. The court must only resolve the preliminary Rule 801 questions and ‘be satisfied that the statement actually falls within the definition of the Rule.'” United States v. Merrick, 299 F. App'x 820, 823 (10th Cir. 2008), quoting Bourjaily v. United States, 483 U.S. 171, 185 (1987) (emphasis in original).

         Based upon the government's James submissions, the defendant's exhibits, the testimony at the October 20, 2017 hearing from Mr. Elrod and Mr. Dawn regarding the circumstances behind Mr. Elrod's recordings, and the testimony at the December 15, 2017 James hearing, the Court makes the following findings by a preponderance of the evidence:

1. The government has shown that a conspiracy to commit wire fraud and mail fraud did exist and that such conspiracy operated between at least July 26, 2010, see, e.g., Document KB7.26.10, 2:56-5:27, and April 2011, when Mr. Elrod and defendant stopped communicating with one another.
2. The government has shown, and the Court finds, that the conspiracy included the following members:
a. Defendant Kenneth ...

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