United States District Court, D. New Mexico
MEMORANDUM ORDER AND OPINION
February 5, 2018, Plaintiff United States of America
(“Government”) filed a Motion To Admit
Co-Conspirator Statements (Doc. 45) (“Motion”)
seeking to admit four text messages as non-hearsay under
Federal Rule of Evidence 801(d)(2)(E) (“Rule
801(d)(2)(E)”). On March 6, 2018, Defendant Mike Y.
Archuleta responded. In his Response, Mr. Archuleta requested a
James hearing on the admissibility of the text messages.
Defendant Cody Davis did not file a written response.
hearing on March 13, 2018, the Court considered several
motions, including the Motion and the Response, filed by the
parties in preparation for trial. During the hearing, the
Government indicated that it wished to add an additional text
message to those it sought to admit as non-hearsay statements
under Rule 801(d)(2)(E), thereby increasing the number of
text messages from four to five.
April 5, 2018, the Court began a James hearing on
the admissibility of the five text messages as coconspirator
statements. The hearing was continued to April 9, 2018 and to
May 2, 2018. At the hearings, Assistant United States
Attorneys Leticia Simms and Presiliano Torrez represented the
Government. At the hearings, Robert Gorence represented Mike
Y. Archuleta and Jason Bowles represented Cody Davis.
Defendant Mike Y. Archuleta appeared at the April 5, 2018
hearing but waived his appearance at the April 9 and the May
2, 2018 hearings. Defendant Cody Davis appeared at the April
5 and May 2, 2018 hearings, and waived his appearance at the
April 9, 2018 hearing.
considering the parties' written submissions, the
evidence, the exhibits, the testimony, and the arguments of
counsel, the Court finds that the five text messages are not
admissible under Rule 801(d)(2)(E).
Background and Facts
March 23, 2016 through April 1, 2016, Defendants exchanged
several phone calls. On March 25, 2016, United States Fish
and Wildlife (USFW) Officers executed a search warrant at the
home of Mr. Davis's brother. On March 26, 2016, following
the phone calls, Mr. Davis took videos and photos of USFW
Officers and their license plates.
9, 2016, the Defendants exchanged five text messages. Three
of the five text messages were from Mr. Davis to Mr.
Archuleta: (1) “Call me ASAP”; (2) the license
plate number of Officer S.C.; and (3) “How do you spell
GW name.” Two of the five text messages were from Mr.
Archuleta to Mr. Davis: (4) the personal home address of
Officer S.C.; and (5) Officer S.C.'s actual name. After
the exchange of the text messages, Mr. Davis drove multiple
times by the home of Officer S.C. Later that same day, Mr.
Davis approached the home approximately four times, and
October 24, 2017, a Grand Jury indicted Mike Y. Archuleta and
Cody Davis for knowingly and willfully conspiring and
agreeing together and with each other on June 8, 2016 through
June 9, 2016 to prevent by intimidation S.C., a law
enforcement officer with the New Mexico Department of Game
and Fish, and cross-deputized with the United States Fish and
Wildlife Service, from discharging the duties of the United
States Fish and Wildlife Service in violation of 18 U.S.C.
§ 372. On April 10, 2018, the next day following the
second day of the James hearing, the Government
filed a Superseding Indictment that revises the beginning
date of the charged conspiracy to March 2016.
defendant is guilty under 18 U.S.C. § 372 if the
government establishes that: (1) two or more persons
conspire; (2) to prevent any person from discharging the
duties of their office under the United States; (3) by force,
intimidation or threat. United States v. Rakes, 510
F.3d 1280, 1288 (10th Cir. 2007). To prove a conspiracy, the
government must show: (1) two or more people agreed to
violate the law; (2) the defendant knew the essential
objective of the conspiracy; (3) the defendant knowingly and
voluntarily participated in the conspiracy; and (4) the
alleged coconspirators were interdependent. United States
v. Pickel, 863 F.3d 1240, 1251 (10th Cir. 2017) (further
citation omitted). The Government contends that the five text
messages are evidence of a conspiracy between the two
defendants to commit the charged crime and therefore, are
admissible as non-hearsay statements.
801(d)(2)(E) provides that a statement offered against an
opposing party and “made by the party's
coconspirator during and in furtherance of the
conspiracy” is not hearsay and is admissible at trial.
Fed.R.Evid. 801(d)(2)(E). The Tenth Circuit employs a
three-part test to determine the admissibility of
coconspirator statements under Rule 801(d)(2)(E). The test
requires the United States to establish by a preponderance of
the evidence that (1) a conspiracy existed, (2) both the
declarant and the defendant against whom the declaration is
offered were members of the conspiracy, and (3) the
statements were made in furtherance of the conspiracy.
United States v. Johnson, 911 F.2d 1394, 1403 (10th
Cir. 1990). The district court may make these findings
through a hearing “outside the presence of the
jury.” United States v. Urena, 27 F.3d 1487,
1491 (10th Cir.1994). Alternatively, a court may admit the
evidence on condition that the party seeking to admit it will
prove the existence of the predicate conspiracy at trial
through trial testimony or other evidence. United States
v. Owens, 70 F.3d 1118, 1123 (10th Cir. 1995). The Tenth
Circuit has expressed a preference for a pretrial
James hearing. Id.
court may consider the hearsay statements themselves when
making factual determinations at a James hearing,
the Tenth Circuit has held that for admissibility
“there [must] be some independent evidence linking the
defendant to the conspiracy.” United States v.
Alcorta, 853 F.3d 1123, 1142 (10th Cir. 1995)
(explaining requirements under Bourjaily v. United
States, 483 U.S. 171, 180 (1987) (further citations
omitted)); see also Fed.R.Evid. 801(d)(2)
(“The statement must be considered but does not by
itself establish . . . the existence of the conspiracy or
participation in it….”). The “independent
evidence” must be “'evidence other than the
proffered [coconspirator] statements themselves.'”
Owens, 70 F.3d at 1125 (quoting United States v.
Martinez, 825 F.2d 1451 (10th Cir. 1987)).
James hearing, the Government presented testimonial
evidence from United States Fish and Wildlife Service (USFW)
Officer Delivan Roper. Through Officer Roper, the Government
introduced the following evidence: the five text messages at
issue, timelines Officer Roper prepared that document phone
calls between the Defendants in March 2016 and in June 2016,
videos taken from Mr. Davis' phone on March 26, 2016, a
USFW Officer's lapel video of the March 25, 2016
execution of a search warrant at the home of Mr. Davis'
brother, maps detailing the Defendants' movements on June
9, 2016, and photos, some of which were taken from Mr.
Davis' phone, some of which were taken from a camera in
Officer S.C.'s front yard and some of which were taken by
the Government. The Government argues that this evidence
directly or inferentially establishes a conspiracy to commit
the unlawful objective of intimidating or threatening a law
officer to impede his official duties.
Government's argument rests on three syllogisms: (1) the
two Defendants exchanged several phone calls between March
23, 2016 and April 1, 2016, and because Mr. Davis took
pictures and videos following the calls, and because Mr.
Davis threatened to have USFW officers' jobs when on
March 25, 2016 USFW officers executed a search warrant at the
home of the brother of Mr. Davis, it is a reasonable
inference that at or about that time, the two Defendants
agreed to enter into a conspiracy to impede USFW officers in
the performance of their duties; (2) the evidence shows that
in June 2016 the two Defendants agreed to obtain USFW Officer
S.C.'s address, and they could only want a USFW
officer's address for an unlawful purpose; and (3) the
evidence shows that the Defendants were friends who exchanged
several phone calls, which means Mr. Archuleta must have
known and agreed that Mr. Davis would go to ...