United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
C. HERRERA, UNITED STATES DISTRICT JUDGE
February 26, 2019, the United States filed a “Motion in
Limine to Admit Summary Charts Pursuant to Fed.R.Evid. 1006
and Fed.R.Evid. 801(d)(2)(E), and Fed.R.Evid.
801(d)(2)(A)” (ECF No. 189). Defendant argues the
non-voluminous originals are the best evidence and summary
exhibits are not necessary. Defendant also asserts that the
extraction data lacks foundation and contains hearsay. The
Government disclosed numerous conversations between Defendant
and others that it intends to admit 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. Defendant argues that the Government has not
established by any independent evidence that the March 4-6
and March 19-21, 2016 trips were for the purpose of drug
trafficking or that there is independent evidence of any
conspiracy with “Favian.” This Court held a
hearing on the motion on March 12, 2019 (hereinafter
“James hearing, ” see United States v.
James, 590 F.2d 575 (5th Cir. 1979)). This Court, having
considered the motion, briefs, objections, evidence,
applicable law, and otherwise being fully advised, makes the
following findings of fact and conclusions of law regarding
the admissibility of the co-conspirator statements and grants
in part and denies in part the motion as described herein.
The Court's rulings on admissibility are subject to the
foundation set forth by the Government in the hearing and in
the briefs being properly laid at trial with admissible
Rule of Evidence 1006 provides:
The proponent may use a summary, chart, or calculation to
prove the content of voluminous writings, recordings, or
photographs that cannot be conveniently examined in court.
The proponent must make the originals or duplicates available
for examination or copying, or both, by other parties at a
reasonable time and place. And the court may order the
proponent to produce them in court.
Rule of Evidence 1001(d) defines an “original” of
electronically stored information as “any printout-or
other output readable by sight-if it accurately reflects the
information.” The information upon which the summary is
based must itself be admissible, though it need not be
admitted. United States v. Channon, 881 F.3d 806,
810 (10th Cir. 2018).
Tenth Circuit has “held that it is within the
discretion of the Trial Court, absent abuse working to the
clear prejudice of the defendant, to permit the display of
demonstrative or illustrative exhibits admitted in evidence
both in the courtroom during trial and in the jury room
during deliberations.” United States v.
Downen, 496 F.2d 314, 320 (10th Cir. 1974). The Tenth
Circuit stated “that the submission of papers,
documents or articles, whether or not admitted in evidence,
to the jury for view during trial or jury deliberations,
accompanied by careful cautionary instructions as to their
use and limited significance, is within the discretion
accorded the Trial Court in order that it may guide and
assist the jury in understanding and judging the factual
controversy.” Id. at 321.
authenticate an item, its proponent must produce enough
evidence to support a finding that the item is what the
proponent says it is. United States v. Arnold, 696
Fed.Appx. 903, 906 (10th Cir. June 23, 2017) (quoting
Fed.R.Evid. 901(a)). “When ‘evidence is unique,
readily identifiable and relatively resistant to change, the
foundation need only consist of testimony that the evidence
is what its proponent claims.'” United States
v. Yeley-Davis, 632 F.3d 673, 683 (10th Cir. 2011)
(quoting United States v. Johnson, 977 F.2d 1360,
1367 (10th Cir. 1992)).
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
party lays the proper foundation for the trustworthiness of
computer generated business records and the records are
admissible, in the following circumstances: (1) The records
must be kept pursuant to some routine procedure designed to
assure their accuracy, (2) they must be created for motives
that would tend to assure accuracy (preparation for
litigation, for example, is not such a motive), and (3) they
must not themselves be mere accumulations of hearsay or
uninformed opinion.” United States v.
Fernandez, 392 Fed.Appx. 743, 745-46 (11th Cir. 2010)
(internal quotations omitted). Information automatically
generated by a computer without the assistance or input of a
person is not hearsay because there is no statement nor
declarant involved within the meaning of 801. United
States v. Hamilton, 413 F.3d 1138, 1142 (10th Cir.
2005). See also United States v. Lamons, 532 F.3d
1251, 1262-64 (11th Cir. 2008) (finding that data showing
date, time, and connected phone numbers are “statements
of machines, not statements of persons, ” therefore not
“statements” under Fed.R.Evid. 801(a)).
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 objectives 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).
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.” 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.
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).
801(d)(2)(E) requires the trial court to make findings on the
record regarding the 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.
Whether evidence is hearsay
Findings of Fact Regarding Co-Conspirator Statements
making these findings, the Court has considered the content
of the alleged co-conspirator statements themselves, as well
as independent evidence of the existence of the conspiracy.
Court held hearings on the motion to suppress filed in this
case on November 7, 2017, and on May 1, 2018, after which the
Court made the following findings of fact relevant to the
On March 25, 2016, Officer Wood was traveling westbound on
Interstate-40 with Arras when he observed a silver Dodge
Charger traveling eastbound on I-40 seemingly driving faster
than the posted 75 miles per hour speed limit. [Nov. 7, 2017
Hr'g Tr.] 34:21-36:1. Officer Wood engaged his properly
tested and working radar, which showed the vehicle speed was
92 mph, so he turned around, caught up to the vehicle, and
stopped the vehicle by activating his emergency lights.
See id. 36:17-41:8. The vehicle stopped on the
shoulder to the highway, and Officer Wood approached the
passenger side. Id. 41:6-7, 45:10-14. A video camera
in Officer Wood's patrol vehicle recorded the stop.
The driver spoke English and appeared to understand Officer
Wood throughout the encounter. See Gov.'s Ex. 6
(“Video of Stop”). Officer Wood explained to the
driver, later identified as Defendant Mercado-Gracia, that he
was going 92 mph, asked for his license and vehicle
registration, and asked him to come over to the police
vehicle while he checked Defendant's identification.
Gov.'s Ex. 7 (“Tr. of Stop”) 2:7-14, ECF;
Video of Stop 11:58 a.m….
Defendant provided an Arizona driver's license for Aaron
Mercado-Gracia and a vehicle registration matching the
stopped Dodge Charger. Id. 46:12-47:7. The vehicle
registration showed the car was registered to Hector Ramirez
Reyes. Id. At this point, Officer Wood became
concerned that that name on the license did not match the
registration. See Id. 47:1-12.
Officer Wood then asked about ownership of the vehicle
because it was unclear from the paperwork Defendant provided.
See Id. 51:10-24. In response to Officer Wood's
question who owned the vehicle, Defendant said,
“Huh?” Tr. of Stop 2:16-18. When Officer Wood
repeated his question, Defendant answered, “My
cousin.” Id. 2:19-20. Defendant gave his
cousin's name as “Favian.” Id.
2:21-25. Officer Wood observed that the insurance card had
the name Favian Reyes, so he asked Defendant what
Favian's last name was. Id.; Nov. 7, 2017
Hr'g Tr. 52:5-14; Gov.'s Ex. 8. When Defendant could
not provide Officer Wood with Favian's last name, he
clarified, “Well, he's my lady's, uh,
husband's cousin.” Video of Stop at 11:59 a.m.
Defendant said Favian let him borrow his car to come over
here for the weekend, and when asked where he was heading,
Defendant responded, “Albuquerque.” Tr. of Stop
Sergeant Chavez and Officer Wood searched the interior of
Defendant's car where they found two large bundles of
heroin and a firearm. Id. 115:8-9, 174:7-21.
Mem. Op. and Order 3-4, 12, ECF No. 107.
Court has also considered evidence introduced at the James
Hearing. The Court heard the testimony of Special Agent Jose
Ramon Martinez, a law enforcement officer with the Department
of Homeland Security, who the Court finds credible and finds
has specialized knowledge through his training and experience
with drug trafficking practices and patterns and the use of
code words. See ...