United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING
GOVERNMENT'S MOTION IN LIMINE
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.
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.
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.
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.
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) 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
(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).
Court finds, based upon a preponderance of the evidence
standard, that the United States has established that a
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”).
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