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United States v. Abdeljawad

United States District Court, D. New Mexico

May 2, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
FIDAL ABDELJAWAD, and ASHLEY WATSON a.k.a. “Lisa Pena”, Defendants.

          MEMORANDUM OPINION AND ORDER GRANTING GOVERNMENT'S MOTION IN LIMINE

         THIS MATTER comes before the Court upon the Government's Motion in Limine to Conditionally Bar Defendants' From Eliciting Testimony or Offering Evidence of Their Own Out-Of-Court Statements, filed April 7, 2017 (Doc. 68). Having reviewed the parties' briefs and applicable law, the Court finds that: (1) statements made by either Defendant are not hearsay and are admissible under Fed.R.Evid.803(d)(2)(A); (2) statements from conversations and texts between Defendant Abdeljawad and Defendant Watson are admissible as co-conspirator statements under Rule 803(d)(2)(E); and (3) statements made by Defendant Abdaljawad's brother concerning Defendant's Spice-dealing activities are being offered for a non-hearsay purpose and are therefore admissible, subject to a limiting instruction as to Defendant Watson.

         BACKGROUND

         The Indictment charges Defendants Fidal Abdeljawad and Ashley Watson (a.k.a. “Lisa Pena”) with Conspiracy in violation of 21 U.S.C. § 846; Possession with Intent to Distribute Controlled Substances in violation of 21 U.S.C. §§ 841(a) and (b)(1)(C); and Aiding and Abetting in violation of 18 U.S.C. § 2.

         The Government's motion seeks two forms of relief. First, the Government seeks to preclude Defendants from eliciting testimony or offering evidence of their own out-of-court statements without a prior ruling on the admissibility of those statements from the Court. However, Defendants state that they do not intend to elicit any such statements or evidence and thus this issue is moot.

         Second, the Government seeks to introduce Defendants' intercepted phone calls and/or text messages under Fed.R.Evid. 802(d)(2)(E) with individuals other than the Defendants themselves and/or the Government's cooperating witness. While Defendants do not oppose the admission of statements between Defendants themselves, they do oppose the admission of statements between Abdeljawad and other individuals who are not expected to testify at trial.

         DISCUSSION

         There are over 70 conversations/texts which the Government wishes to have admitted under Rule 801(d)(2)(E) as co-conspirator statements. Most of these are contained in Doc. 67, which is the response to Defendant's motion in limine to exclude expert testimony. The Court held a James hearing in order to determine the admissibility of these statements, during which the Government proffered the statements it wished to admit in three separate categories:[1] (1) statements made in conversations between Defendants Abdeljawad and Watson; (2) statements made by Defendant Abdeljawad's brother; and (3) statements made by either Defendant. Before deciding whether these coconspirators as non-hearsay pursuant to Fed.R.Evid. 801(d)(2)(E), the Court must conduct a separate inquiry under this Rule to determine that:

(1) by a preponderance of the evidence, 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.

U.S. v. Owens, 70 F.3d 1118, 1123-24 (10th Cir. 1995) (citing U.S. v. Urena, 27 F.3d 1487, 1490 (10th Cir.)) (quoting U.S. v. Johnson, 911 F.2d 1394, 1403 (10th Cir.1990), cert. denied, 498 U.S. 1050, 111 S.Ct. 761, 112 L.Ed.2d 781 (1991)), cert. denied, __ U.S. __, 115 S.Ct. 455, 130 L.Ed.2d 364 (1994).

         The Court finds, based upon a preponderance of the evidence standard, that the United States has established that a conspiracy existed.

         The Confrontation Clause does not require a court to embark on an “independent inquiry” into the reliability of statements that satisfy the requirements of Rule 801(d)(2)(E)) because there is a “long tradition” of co-conspirator's out-of-court statements “being outside the compass of the general hearsay exclusion.” Bourjaily v. U.S., 483 U.S. 171, 184 (1987). In fact, a district court may consider the proffered hearsay statements in determining the existence of a conspiracy and defendant's participation in it. Id. at 178. However, under Tenth Circuit precedent, the Government must produce some “independent evidence linking the defendant to the conspiracy.” U.S. v. Martinez, 825 F.2d 1451, 1453 (10th Cir. 1987) (“independent evidence” is “evidence other than the profferred [coconspirator]statements themselves”); U.S. v. Busch, 758 F.2d 1394, 1397 (10th Cir. 1985) (“The general rule is that the utterances and acts of one conspirator are admissible against a co-conspirator, even though the latter was not present at the time of the act or utterances, if there be evidence, independent of the utterances or acts themselves, which shows the existence of a conspiracy”).[2]

         In this Circuit, it is strongly preferred that the district court make these findings by conducting a James hearing outside the presence of the jury to determine whether the predicate conspiracy existed. U.S. v. Urena, 27 F.3d 1487, 1491 (10th Cir. 1994) (citing U.S. v. James,590 F.2d 575 (5th Cir. 1979)); Owens, 70 F.3d at 1124; U.S. v. Gonzales-Montoya, 161 F.3d 643, 648 (10th Cir. 1998) (“[W]e take this opportunity to ...


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