Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Mercado-Gracia

United States District Court, D. New Mexico

March 15, 2019




         On 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 evidence.


         A. Summary Rule

         Federal 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.

         Federal 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).

         The 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.

         B. Authentication

         To 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)).

         C. Hearsay

         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).

         “A 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)).

         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 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 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).

         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.” 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).

         Rule 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.

         II. Whether evidence is hearsay

         A. Findings of Fact Regarding Co-Conspirator Statements

         In 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.

         This 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 issues herein:

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. Id. 37:24-39:6.
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 3:5-8….
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.

         The 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.