United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on Defendant's Motion for
Production of Alleged Co-Conspirator Statements, Pre-trial
Hearing on their Admissibility pursuant to Fed.R.Evid.
801(d)(2)(E) (ECF No. 109) and Defendant's Motion in
Limine #1 to Exclude Hearsay (ECF No. 110). Defendant seeks
to exclude communications between law enforcement and Joshua
Talamantes through text messages and telephone conversations,
asserting the statements are inadmissible hearsay and do not
fall within the co-conspirator statement exception. Defendant
further contends their introduction would violate his Sixth
Amendment right to confront witnesses under Crawford v.
Washington, 541 U.S. 36 (2004). The Government disclosed
a number of conversations between Talamantes and the
undercover agent that it intends to offer at trial and argues
they are not hearsay under Rule 801(d)(2)(E) and/or they
contain statements which fall under other exceptions to the
hearsay rule. The Court held a hearing on the motions on
January 10, 2019. The Court, having considered the motions,
briefs, evidence, applicable law, and otherwise being fully
advised, makes the following provisional findings of fact and
conclusions of law. The Court additionally makes provisional
rulings on admissibility that are subject to the foundation
set forth by the Government in the hearing and in the briefs
being properly laid at trial with admissible evidence. The
coconspirator statements that the Court provisionally rules
admissible herein should not be presented to the jury until
the Court makes a final ruling on admissibility at trial.
is a statement that “the declarant does not make while
testifying at the current trial or hearing” and
“a party offers in evidence to prove the truth of the
matter asserted in the statement.” Fed.R.Evid.
801(c)(1)-(2). “But testimony not offered to prove the
matter asserted that is ‘offered instead for
relevant context or background' is not
hearsay.” United States v. Becknell, 601
Fed.Appx. 709, 712 (10th Cir. 2015) (unpublished opinion)
(quoting United States v. Hinson, 585 F.3d 1328,
1336 (10th Cir.2009)). Questions and comments do not
constitute hearsay if they are not offered to prove the truth
of the matter but are offered to show their effect on the
other person in the conversation and provide context. See
United States v. Smalls, 605 F.3d 765, 785 n. 18 (10th
hearsay statements are generally not admissible at trial,
see Fed. R. Evid. 802, a statement that “was
made by the party's coconspirator during and in
furtherance of the conspiracy” is not hearsay, and
therefore may be admissible as substantive evidence against
the party, Fed.R.Evid. 801(d)(2)(E). For a statement to be
non-hearsay under Rule 801(d)(2)(E), the district court must
first find the following elements by a preponderance of the
evidence: (1) a conspiracy existed; (2) the declarant and the
defendant were both members of the conspiracy; and (3) the
statements were made during the course of and in furtherance
of the conspiracy. United States v. Rutland, 705
F.3d 1238, 1248 (10th Cir. 2013). The elements of conspiracy,
in turn, are: (1) there was an agreement to violate the law;
(2) the declarant knew the essential objective of the
conspiracy; (3) the declarant knowingly and voluntarily took
part in the conspiracy; and (4) the coconspirators were
interdependent. Id. at 1249 (citing United
States v. Ailsworth, 138 F.3d 843, 850-51 (10th Cir.
1998)). The government, as the proponent of the evidence, has
the burden of proving the relevant preliminary facts.
United States v. Perez, 989 F.2d 1574, 1580 (10th
government does not have to prove an express or formal
agreement was made; rather, it merely has to show the
coconspirators tacitly came to a mutual understanding.
Rutland, 705 F.3d at 1250. “The existence of a
conspiracy may be inferred from circumstantial
evidence.” United States v. Martinez, 825 F.2d
1451, 1452 (10th Cir. 1987). Interdependence means the
coconspirators were united in a common goal or purpose.
Ailsworth, 138 F.3d at 851. The trial witness need
not be a co-conspirator, so long as the declarant is a
co-conspirator with the defendant against whom the statement
is being offered. See United States v. Williamson,
53 F.3d 1500, 1519 (10th Cir. 1995) (“in deciding
whether statements are admissible under Rule 801(d)(2)(E),
the appropriate focus is on whether the statements were
‘made by' a member of the conspiracy, and not on
whether the statements were ‘made to' a member of
the conspiracy”). One cannot conspire solely with
government informants or agents. United States v.
Wells, 739 F.3d 511, 528 (10th Cir. 2014).
making a determination under Rule 801(d)(2)(E), the court
“may consider both independent evidence and the
statements themselves.” Rutland, 705 F.3d at
1248. To satisfy Rule 801(d)(2)(E), the United States need
show only that there is “some independent evidence
linking the defendant to the conspiracy.”
Martinez, 825 F.2d at 1453 (relying on Bourjaily
v. United States, 483 U.S. 171 (1987)). “[S]uch
independent evidence may be sufficient even it is not
‘substantial.'” United States v.
Owens, 70 F.3d 1118, 1125 (10th Cir. 1995) (quoting
United States v. Rascon, 8 F.3d 1537, 1541 (10th
Cir. 1993)). Independent evidence is any “evidence
other than the proffered [coconspirator] statements
themselves, ” and may include “an out-of-court
statement by a coconspirator to a government agent during an
investigation.” Owens, 70 F.3d at 1125
(quoting Martinez, 825 F.2d at 1451).
regard to the third element under Rule 801(d)(2)(E),
“in furtherance” means that the statements are
“intended to promote the conspiratorial
objectives.” Rutland, 705 F.3d at 1252
(quoting United States v. Townley, 472 F.3d 1267,
1273 (10th Cir. 2007)). Examples of statements the Tenth
Circuit has held to be in furtherance of a conspiracy include
statements explaining events of importance to the conspiracy,
statements between coconspirators which provide reassurance,
which serve to maintain trust and cohesiveness among them, or
which inform each other of the current status of the
conspiracy, statements identifying a fellow coconspirator,
and discussions of future intent that set transactions to the
conspiracy in motion or that maintain the flow of information
among conspiracy members.
(internal quotations and citations omitted). Additionally,
statements identifying members of a conspiracy, discussing
particular roles of other coconspirators, and avoiding
detection by law enforcement personnel are made “in
furtherance of” a conspiracy. Williamson, 53
F.3d at 1520. “A coconspirator statement is made during
the course of the conspiracy it if is made before the
objectives of the conspiracy have either failed or been
achieved.” Owens, 70 F.3d at 1126 (quoting
Perez, 989 F.2d at 1579). “[P]revious
statements made by co-conspirators are admissible against a
defendant who subsequently joins the conspiracy.”
United States v. Brown, 943 F.2d 1246, 1255 (10th
801(d)(2)(E) requires the trial court to make findings on the
record regarding the required elements before admitting
coconspirator's out of court statements. See
Perez, 989 F.2d at 1581. The “strongly preferred
order of proof” in determining the admissibility of an
alleged coconspirator's statement is to first hold a
hearing outside the presence of the jury to determine whether
the party offering the statements has established the
existence of a conspiracy by a preponderance of the evidence.
United States v. Urena, 27 F.3d 1487, 1491 (10th
Cir. 1994). At the hearing, the district court has 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.” Owens, 70 F.3d at 1124.
however, permissible for a court provisionally to allow in
the evidence with the understanding that the offering party
will present evidence during the course of trial that will
prove the existence of the predicate conspiracy.
Rutland, 705 F.3d at 1248 n.3 (explaining that it
was permissible for trial court to admit coconspirator
statements provisionally, conditioning admission on
government's promise to develop proof of conspiracy
through later testimony, but noting Tenth Circuit has
repeatedly mentioned its strong preference for James
proceedings); Owens, 70 F.3d at 1123 (explaining
that district court may make findings under Rule 801(d)(2)(E)
either by holding James hearing outside presence of
jury or may provisionally admit evidence with caveat that
evidence must “connect” up during trial).
an undercover agent's portions of a conversation
containing co-conspirator statements may be admissible as
reasonably required to place the coconspirator statements
into context. See United States v. Hendricks, 395
F.3d 173, 718-19 (3d Cir. 2005) (“We thus hold that if
a Defendant or his or her coconspirator makes statements as
part of a reciprocal and integrated conversation with a
government informant who later becomes unavailable for trial,
the Confrontation Clause does not bar the introduction of the
informant's portions of the conversation as are
reasonably required to place the defendant or
coconspirator's nontestimonial statements into
FINDINGS OF FACT
making these findings, the Court has considered the content
of the alleged co-conspirator statements themselves, as well
as a substantial amount of independent evidence of the
existence of the conspiracy that was introduced by the United
States during the hearing. The Court considered the testimony
of Special Agent William Baker at both the James
hearing and the hearing held on Defendant's motion to
suppress on August 1, 2017. Agent Baker testified credibly
concerning the undercover officer's (“UC”)
communications with Joshua Talamantes to arrange a purchase
of methamphetamine (“meth”); how the UC set up a
deal to buy four pounds of meth on June 28, 2016; the
UC's communications with Talamantes on June 28, 2016 to
arrange meeting with Talamantes to purchase the meth; the
surveillance by agents from the Drug Enforcement
Administration (“DEA”), Department of Homeland
Security (“HSI”), and New Mexico State Police
(“NMSP”); the observations of agents of
Talamantes's meeting with Defendant; the subsequent meth
exchange by the UC with Talamantes; and the arrests of
Talamantes and Defendant.
the suppression hearing, the Court entered a Memorandum
Opinion and Order concluding that, at the time Sergeant
Chavez arrested Defendant Moreno-Coronado, there was probable
cause to believe he had committed the crime of drug
trafficking. See Mem. Op. and Order 1, 6-7, ECF No.
78. In support of that conclusion, the Court made the
following factual findings:
(i) the UC [an undercover officer with New Mexico State
Police] had arranged to buy four pounds of meth from Mr.
Talamantes in Albuquerque on June 28, 2016; (ii) Mr.
Talamantes lived in Texas; (iii) Mr. Talamantes drove to
Albuquerque and arrived at the pre-arranged meeting location
for the drug transaction at 2:45 p.m.; (iv) despite being at
the pre-arranged location, Mr. Talamantes told the UC he was
waiting for his boy and put off their meeting for
approximately three hours; (v) agents observed Mr. Talamantes
waiting at the gas station for most of that nearly three-hour
period; (vi) around 5:24 p.m., Mr. Talamantes drove eastbound
on I-40, and while driving on I-40, he called the UC to say
he had just met with his boy over at Eubank and gotten the
meth and would meet back at the Four Winds gas station; (vii)
Mr. Talamantes shortly thereafter exited at Eubank and met a
Mustang with Texas license plates; (viii) Mr. Talamantes
followed the other vehicle north on Eubank to a small strip
center where they parked trunk-to-trunk behind one another;
(ix) during the three-minute meeting, Mr. Talamantes
retrieved a bag from the trunk of Defendant's Mustang and
put it in his own car; (x) immediately thereafter, Mr.
Talamantes drove back towards the Four Winds gas station and
called the UC to say he had the stuff and to meet back at the
Four Winds gas station.
Id. at 6-7. The Court made further findings:
Meanwhile, Mr. Talamantes arrived back at the Four Winds gas
station. The UC agents drove to the Four Winds, parked, and
texted they were there. Mr. Talamantes then got out of his
Ford Fusion, brought the bag with him, and gave it to the UC.
When the UC opened the bag, it contained approximately four
pounds of methamphetamine. Agents arrested Mr. Talamantes and
field-tested the substance. Agent Martin subsequently
identified the bag as the same one that Mr. Talamantes
removed from the trunk of Defendant's Mustang.
Id. at 5.
Baker confirmed at the James hearing that his
testimony in the suppression hearing, as contained in the
Court's transcript of the proceedings was true and
correct. Agent Baker additionally testified at the
James hearing that Agent Chris Martin said he saw
Talamantes reach into the trunk of Defendant
Moreno-Coronado's vehicle and retrieve a black and yellow
Dewalt tool bag that he put in his own vehicle; later, Chris
Martin confirmed that this same Dewalt tool bag contained the
meth confiscated from Talamantes.
Court finds the following facts by a preponderance of the
Statements described in Gov.'s Resp., Ex. A at 4 (Report
of NMSP Agent Israel J. Rodriguez), ECF No. 121-1 at 5 of
and Talamantes had a conversation prior to June 28, 2016 in
which Talamantes agreed to sell the UC four pounds of meth.
See Motion to Suppress Hr'g Tr. 6:10-7:2.
Talamantes spoke to the UC the morning of June 28,
2016 to say he was on his way up, and Talamantes agreed to
meet the UC in the Lowe's hardware store parking lot
located at 12th Street, Albuquerque, New Mexico, to sell the
drugs. See Id. 7:12-8:5.
Report submitted by the Government as Exhibit A to its
response indicates that “[p]revious arrangements were
made, and agreed to by Joshua Talamantes to sell me a large
quantity of narcotics.” The timeframe of those previous
discussions is unclear. It can be inferred from the
circumstantial evidence that Defendant Moreno-Coronado
conspired to distribute meth with Talamantes on June 28,
2016, when Talamantes began driving from El Paso, but at this
stage, the Government has not met its burden to show
Defendant conspired with Talamantes prior to that date.
See Perez, 989 F.2d at 1579 (“a court must
carefully ascertain the nature and extent of a conspiracy in
determining whether acts or statements can properly be viewed
as made during its existence”).
bolded statements above that he was on his way up and that he
agreed to meet with the UC were statements he made for the
purpose of arranging and meeting the UC to sell meth to the
UC. The Court finds the bolded statements Talamantes made to
the UC on June 28, 2016, regarding meeting at Lowe's were
made in furtherance of the conspiracy and that Defendant and
Talamantes had entered a conspiracy by that time.
Hearing Exhibit B (Transcript of recorded call on June 28,
2016 at 2:45 p.m.)
are the contents of a call between the UC and Talamantes that
occurred on June 28, 2016 at approximately 2:45 p.m.
¿Qué dice, Izzy? (What's up, Izzy?)
nada. Is this Tomal? (Oh, nothing. Is this Tomal?)
Yeah, this is Tamal.
Hey, man. What's goin' on, brother?
Este (uh), I'm just waiting about twenty more
minutes, ‘bout twenty, thirty more
minutes and my uh, my, my boy will be here.
right, cool. Uh…did Wes tell you where to meet me?
TALAMANTES: Yeah, but uh, I'm gonna tell you
somethin'. There's a, there's someone there. So
uh… UC: Okay.
…I'm posted up at the, at the little gas
station next door.
little gas station where?
The, the liquor store ...