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United States v. Moreno-Coronado

United States District Court, D. New Mexico

January 11, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
OSCAR MORENO-CORONADO, Defendant.

          AMENDED MEMORANDUM OPINION AND ORDER[1]

         THIS 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 No. 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.

         I. LEGAL STANDARD

         Hearsay 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 United States v. Becknell, 601 Fed.Appx. 709, 712 (10th Cir. 2015) (unpublished opinion) (quoting United States v. Hinson, 585 F.3d 1328, 1336 (10th Cir.2009)).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 Cir. 2010).

         Although 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 Cir. 1993).

         The 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).

         When 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).

         With 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.

Id. (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 Cir. 1991).

         Rule 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.

         It is, 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).

         Moreover, 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 context.”).

         II. FINDINGS OF FACT

         In 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.

         After 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.

         Agent 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.

         The Court finds the following facts by a preponderance of the evidence:

         A. Statements described in Gov.'s Resp., Ex. A at 4 (Report of NMSP Agent Israel J. Rodriguez), ECF No. 121-1 at 5 of 6

         The UC 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.

         The 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”).

         Talamantes's 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.

         B. Hearing Exhibit B (Transcript of recorded call on June 28, 2016 at 2:45 p.m.)

         Below are the contents of a call between the UC and Talamantes that occurred on June 28, 2016 at approximately 2:45 p.m.

UC: Hello.
TALAMANTES: ¿Qué dice, Izzy? (What's up, Izzy?)
UC: Eh, nada. Is this Tomal? (Oh, nothing. Is this Tomal?)
TALAMANTES: Yeah, this is Tamal.
UC: Hey, man. What's goin' on, brother?
TALAMANTES: Este (uh), I'm just waiting about twenty more minutes, ‘bout twenty, thirty more minutes and my uh, my, my boy will be here.
UC: All 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.
TALAMANTES: …I'm posted up at the, at the little gas station next door.
UC: The little gas station where?
TALAMANTES: The, the liquor store next door, next to it.
UC: Oh, okay, all right.
TALAMANTES: All right. And uh, but right now when I call you, I mean, how long is it gonna take you to get here?
UC: Once, once you call me it should take me like five, ten minutes maybe, at the most. TALAMANTES: All right, then you're good. I'll give you a call right now when he's here.
UC: All right, cool.
TALAMANTES: All right then, ...

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