United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
5, 2018, the Court entered an Memorandum Opinion and Order
(“Order”) (Doc. 89) denying Plaintiff United
States' (“Government”) motion to admit five
text messages as coconspirator statements under Federal Rule
of Evidence 801(d)(2)(E). On May 15, 2018, the Government
responded to the Court's Order with a
motion asking the Court to reconsider and reverse
its Order and/or to clarify findings in the Order.
Alternatively, the Government asked the Court to consider
admitting the five text messages as nonassertive utterances.
On May 25, 2018, Defendants Mike Y. Archuleta and Cody Davis
responded to the Government's Motion, arguing
that the Court's analysis was correct and that the
evidence is not admissible under any other theory or that the
Government's failure to argue earlier the admissibility
of the text messages under another theory forecloses that
argument here. The Government replied on June 1, 2018, stating
that it had previously asked for the five text messages to be
admitted as non-hearsay.
considering the arguments in the Government's Motion, the
Defendants' Response and the Government's Reply, as
well as all evidence and arguments presented before and
during the James hearings, the Court denies the
Leading to Defendants' Indictment
December 2015, United States Fish and Wildlife Services
(“USFW”) and the New Mexico Department of Game
and Fish (“NMDGF”) began conducting surveillance
on Defendant Cody Davis for an alleged violation of the Lacy
March 26, 2016, NMDGF executed a search warrant at the home
of Mr. Davis's brother. A lapel video of this event shows
Mr. Davis threatening NMDGF officers that he would have their
jobs. On the day of the execution of the warrant, Mr. Davis
took photos and videos of NMDGF officers and their vehicles.
Before and after Mr. Davis took the photos and videos, he had
several telephonic conversations with Defendant Mike Y.
Archuleta. The frequency of the calls between the two
Defendants on March 26, 2016 were unusual when compared to
the number of calls in the days preceding the execution of
the search warrant, March 23 through March 25, 2016, and the
days following the execution of the search warrant, March 27
through April 1, 2016.
8, 2016, as part of an ongoing investigation of Mr. Davis,
USFW and NMDGF continued to conduct surveillance of Mr.
Davis. Officer S.C., who was employed by NMDGF and
cross-commissioned by USFW, surveilled Mr. Davis using his
personal vehicle. While Officer S.C. was in his vehicle
following Mr. Davis, he observed Mr. Davis taking pictures
and possibly filming him.
8, 2016 at 9:23 a.m., Mr. Davis sent a text message to Mr.
Archuleta stating, “call me asap”. Phone records
show that Mr. Davis tried to call Mr. Archuleta. At 9:52
p.m., Mr. Davis texted Mr. Archuleta “793stn”,
which was the license plate number of Officer S.C.
records indicate that on June 9, 2016, at 8:46 a.m., Mr.
Davis called NMDGF and spoke with investigator Officer
Darrell Cole. Mr. Davis told Officer Cole that a Toyota was
following him and that the plate indicated that the car was
associated with NMDGF. Mr. Davis asked Officer Cole why NMDGF
was following him. Officer Cole told Davis he did not know
who was following him.
10:11 a.m., Mr. Archuleta contacted a Quick MVD office in
Española. A few minutes later, Mr. Archuleta sent a
text message to Mr. Davis with the home address of Officer
12:49 p.m. and 3:26 p.m. on June 9, 2016, Mr. Davis drove by
the home of Officer S.C. multiple times. During that same
period, he approached the front entrance of the home three
times, took photos of the home, and spoke on the phone with
Mr. Archuleta four times. Mr. Davis and Mr. Archuleta spoke
on the phone twice more during the day. At 5:34 p.m., Mr.
Davis sent Mr. Archuleta a text stating, “How do you
spell the GW name”? At 5:35, Mr. Archuleta replied with
the full name of Officer S.C.
October 24, 2017, a Grand Jury indicted Mike Y. Archeleta 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 NMDGF and cross-deputized with USFW,
from discharging the duties of the USFW in violation of 18
U.S.C. § 372.
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, and to May
2, 2018. On April 10, 2018, the day following the second day
of the James hearing, the Government filed a
superseding indictment that revised the beginning date of the
charged conspiracy to March 2016.
Court's May 5, 2018 Order
5, 2018, the Court entered an Order denying the
Government's motion to admit the five text messages as
coconspirator statements. In the Order, the Court stated that
it had considered evidence the Government introduced through
witness Officer Roper. The evidence included the following:
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'
movement 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. (Doc. 89, pp. 4-5).
Order, the Court summarized the Government's argument as
(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
(3) the evidence shows that the Defendants were friends who
exchanged several phone calls, which means that Mr. Archuleta
must have known and agreed that Mr. Davis would go to Officer