United States District Court, D. Colorado
A. BRIMMER UNITED STATES DISTRICT JUDGE
matter comes before the Court on the government's
James Proffer [Docket No. 94-1] and the
government's amended James log [Docket No.
119-1]. The Court held a James hearing on April 13,
The Existence of a Conspiracy and its Membership
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
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).
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).
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).
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 Fed.Appx. 820, 823 (10th Cir. 2008),
quoting Bourjaily v. United States, 483 U.S. 171,
185 (1987) (emphasis in original).
James hearing, defendant Faustino Juarez (“the
defendant”) was the only defendant to oppose the
government's James proffer. He conceded that
each of the statements listed on the government's
James log is admissible under Fed.R.Evid.
801(d)(2)(E). The defendant, however, did not concede that
defendant was a member of the charged conspiracy. As a
result, the hearing focused solely on that issue.
Court finds that the government has shown that a conspiracy
to possess with the intent to distribute and to distribute a
quantity of 500 grams or more of a mixture and substance
containing a detectable amount of methamphetamine did exist
and that such conspiracy operated between at least September
1, 2016 and June 29, 2017.
Court finds that the government has proven by a preponderance
of the evidence that the conspiracy included the following
b. Johnny Joe ...