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United States v. Deleon

United States District Court, D. New Mexico

May 13, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ANGEL DELEON; JOE LAWRENCE GALLEGOS; EDWARD TROUP, a.k.a. “Huero Troup;” LEONARD LUJAN; BILLY GARCIA, a.k.a. “Wild Bill;” EUGENE MARTINEZ, a.k.a. “Little Guero;” ALLEN PATTERSON; CHRISTOPHER CHAVEZ, a.k.a. “Critter;” JAVIER ALONSO, a.k.a. “Wineo;” ARTURO ARNULFO GARCIA, a.k.a. “Shotgun;” BENJAMIN CLARK, a.k.a. “Cyclone;” RUBEN HERNANDEZ; JERRY ARMENTA, a.k.a. “Creeper;” JERRY MONTOYA, a.k.a. “Boxer;” MARIO RODRIGUEZ, a.k.a. “Blue;” TIMOTHY MARTINEZ, a.k.a. “Red;” MAURICIO VARELA, a.k.a. “Archie, ” a.k.a. “Hog Nuts;” DANIEL SANCHEZ, a.k.a. “Dan Dan;” GERALD ARCHULETA, a.k.a. “Styx, ” a.k.a. “Grandma;” CONRAD VILLEGAS, a.k.a. “Chitmon;” ANTHONY RAY BACA, a.k.a. “Pup;” ROBERT MARTINEZ, a.k.a. “Baby Rob;” ROY PAUL MARTINEZ, a.k.a. “Shadow;” CHRISTOPHER GARCIA; CARLOS HERRERA, a.k.a. “Lazy;” RUDY PEREZ, a.k.a. “Ru Dog;” ANDREW GALLEGOS, a.k.a. “Smiley;” SANTOS GONZALEZ; PAUL RIVERA; SHAUNA GUTIERREZ; and BRANDY RODRIGUEZ, Defendants.

          Fred Federici Attorney for the United States and Maria Ysabel Armijo Randy M. Castellano Matthew Beck Assistant United States Attorneys United States Attorney's Office Las Cruces, New Mexico Attorneys for the Plaintiff.

          Richard Sindel Sindel, Sindel & Noble, P.C. Clayton, Missouri and Brock Benjamin Benjamin Law Firm El Paso, Texas Attorneys for Defendant Joe Lawrence Gallegos.

          Patrick J. Burke Patrick J. Burke, P.C. Denver, Colorado and Cori Ann Harbour-Valdez The Harbour Law Firm, P.C. El Paso, Texas Attorneys for Defendant Edward Troup.

          Russel Dean Clark Las Cruces, New Mexico Attorney for Defendant Leonard Lujan.

          James A. Castle Castle & Castle, P.C. Denver, Colorado and Robert R. Cooper Albuquerque, New Mexico Attorneys for Defendant Billy Garcia.

          Douglas E. Couleur Douglas E. Couleur, P.A. Santa Fe, New Mexico Attorneys for Defendant Eugene Martinez.

          Phillip A. Linder The Linder Firm Dallas, Texas and Jeffrey C. Lahann Las Cruces, New Mexico Attorneys for Defendant Allen Patterson.

          John L. Granberg Granberg Law Office El Paso, Texas and Orlando Mondragon El Paso, Texas Attorneys for Defendant Christopher Chavez.

          Nathan D. Chambers Nathan D. Chambers, LLC Denver, Colorado and Noel Orquiz Deming, New Mexico Attorneys for Defendant Javier Alonso.

          Scott Moran Davidson Albuquerque, New Mexico and Billy R. Blackburn Albuquerque, New Mexico Attorneys for Defendant Arturo Arnulfo Garcia.

          Stephen E. Hosford Stephen E. Hosford, P.C. Arrey, New Mexico and Jerry Daniel Herrera Albuquerque, New Mexico Attorneys for Defendant Benjamin Clark.

          Leon Encinias Lean Encinias Attorney at Law Albuquerque, New Mexico and Pedro Pineda Las Cruces, New Mexico Attorneys for Defendant Ruben Hernandez.

          Gary Mitchell Mitchell Law Office Ruidoso, New Mexico Attorney for Defendant Jerry Armenta.

          Larry A. Hammond Osborn Maledon, P.A. Phoenix, Arizona and Margaret Strickland McGraw & Strickland Las Cruces, New Mexico Attorneys for Defendant Jerry Montoya.

          Steven M. Potolsky Jacksonville Beach, Florida and Santiago D. Hernandez Law Office of Santiago D. Hernandez El Paso, Texas Attorneys for Defendant Mario Rodriguez.

          Steven Lorenzo Almanza Las Cruces, New Mexico and Ray Velarde El Paso, Texas Attorneys for Defendant Timothy Martinez.

          Joe Spencer El Paso, Texas and Mary Stillinger El Paso, Texas Attorneys for Defendant Mauricio Varela.

          Richard Jewkes El Paso, Texas and Lauren Noriega The Noriega Law Firm Los Angeles, California and Amy E. Jacks Law Office of Amy E. Jacks Los Angeles, California Attorneys for Defendant Daniel Sanchez.

          George A. Harrison Las Cruces, New Mexico and Kimberly S. Brusuelas-Benavidez Albuquerque, New Mexico Attorneys for Defendant Gerald Archuleta.

          B.J. Crow Crow Law Firm Roswell, New Mexico Attorneys for Defendant Conrad Villegas.

          Theresa M. Duncan Duncan, Earnest, LLC Albuquerque, New Mexico and Marc M. Lowry Rothstein Donatelli, LLP Albuquerque, New Mexico Attorneys for Defendant Anthony Ray Baca.

          Charles J. McElhinney McElhinney Law Firm, LLC Las Cruces, New Mexico Attorney for Defendant Robert Martinez.

          Marcia J. Milner Las Cruces, New Mexico Attorney for Defendant Roy Paul Martinez.

          Christopher W. Adams Charleston, South Carolina and Amy Sirignano Law Office of Amy Sirignano, P.C. Albuquerque, New Mexico Attorneys for Defendant Christopher Garcia.

          William R. Maynard El Paso, Texas and Carey Corlew Bhalla Law Office of Carey C. Bhalla, LLC Albuquerque, New Mexico Attorneys for Defendant Carlos Herrera.

          Justine Fox-Young Albuquerque, New Mexico and Ryan J. Villa Albuquerque, New Mexico Attorneys for Defendant Rudy Perez.

          Donavon A. Roberts Albuquerque, New Mexico and Lisa Torraco Albuquerque, New Mexico Attorneys for Defendant Andrew Gallegos.

          Erlinda O. Johnson Law Office of Erlinda Ocampo Johnson, LLC Albuquerque, New Mexico Attorneys for Defendant Santos Gonzalez.

          Keith R. Romero Albuquerque, New Mexico Attorney for Defendant Paul Rivera.

          Angela Arellanes Albuquerque, New Mexico Attorney for Defendant Shauna Gutierrez.

          Jerry A. Walz Walz and Associates Albuquerque, New Mexico Attorneys for Defendant Brandy Rodriguez.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on: (i) the United States' Notice of Proposed James Statements for Trial 2, filed March 8, 2018 (Doc. 1903)(“James Notice”); (ii) Defendant Billy Garcia's Targeted Response to United States Notice of Proposed James Statements for Trial 2 (Doc. No. 1903), filed March 9, 2018 (Doc. 1909)(“B. Garcia Response”); (iii) General Response to United States Notice of Proposed James Statements for Trial 2 (Doc. 1903), filed March 9, 2018 (Doc. 1910)(“General James Response”);[1] (iv) United States' Sealed Opposed Motion In Limine Regarding Statements Against Penal Interest Under Rule 804(b)(3), filed March 10, 2018 (Doc. 1912)(“804(b)(3) MIL”); (v) Response to United States Notice of Proposed James Statements for Trial II (Doc. 1901), filed March 11, 2018 (Doc. 1914)(“Gutierrez Response”); (vi) Response to United States Notice of Proposed James Statements for Trial 2 (Doc. 1901), filed March 11, 2018 (Doc. 1916)(“C. Chavez Response”); (vii) Andrew Gallegos' Response to United States Notice of Proposed James Statements for Trial 2 (Doc. 1903), filed March 11, 2018 (Doc. 1917)(“A. Gallegos Response”); (viii) Defendant Joe Gallegos' Response to the United State's [sic] Notice of Proposed James Statements (Doc. 1903), filed March 12, 2018 (Doc. 1918)(“J. Gallegos Response”); (ix) Edward Troup's Specific Response to United States Notice of Proposed James Statements for Trial 2 (Doc. No. 1901), filed March 12, 2018 (Doc. 1920)(“Troup Response”); (x) Allen Patterson's Response to the United States Notice of Proposed James Statements (Doc. 1903), filed March 14, 2018 (Doc. 1939)(“Patterson Response”); (xi) United States' Notice Regarding James Statements From Trial 1, filed March 15, 2018 (Doc. 1944)(“Trial 1 James Notice”); (xii) Supplement to Defendant Billy Garcia's Targeted Response to United States Notice of Proposed James Statements for Trial 2 (Doc. No. 1903), filed March 31, 2018 (Doc. 2009)(“B. Garcia Supplement”); and (xiii) Brief in Support of Inapplicability of of [sic] Fed. R. 803(b)(3) [sic] (Doc. Nos. 1909 and 2009), filed April 6, 2018 (Doc. 2085)(“B. Garcia Brief”). The Court held an evidentiary hearing on March 12-16, 2018. See Transcript of Motion Proceedings (taken March 12, 2018), filed April 3, 2018 (Doc. 2026)(“March 12 Tr.”); Transcript of Motions Hearing (taken March 13, 2018), filed April 3, 2018 (Doc. 2027)(“March 13 Tr.”); Transcript of Motion Proceedings (taken March 14, 2018), filed April 3, 2018 (Doc. 2028)(“March 14 Tr.”); Transcript of Motion Proceedings (taken March 15, 2018), filed April 3, 2018 (Doc. 2029)(“March 15 Tr.”); Transcript of Motions Hearing (taken March 16, 2018), filed April 3, 2018 (Doc. 2030)(“March 16 Tr.”). The primary issues are (i) whether admitting the statements identified in the Proffer Under Fed.R.Evid. 801(d)(2)(E) and Objections, filed March 8, 2018 (Doc. 1903-1)(“James Proffer”), which the Plaintiff United States of America attaches to its James Notice, would offend the Confrontation Clause of the Sixth Amendment to the Constitution of the United States of America; (ii) whether admitting non-testifying Defendants' statements would violate the Confrontation Clause; (iii) whether the James Proffer statements are admissible for their truth -- and if so, against whom -- under rule 801(d)(2)(E) of the Federal Rules of Evidence; (iv) whether the non-testifying Defendants' statements are admissible as statements against interest under rule 804(b)(3) of the Federal Rules of Evidence; and (v) whether the James statements from the first trial in this case are admissible in the second trial under rule 801(d)(2)(E). The Court concludes that none of the James Proffer statements or the non-testifying Defendants' statements are testimonial, so admitting them raises no Confrontation Clause issues. The Court also concludes that some -- but not all -- of the James Proffer statements are admissible under rule 801(d)(2)(E) for their truth against some -- but not all -- of the Defendants, while other James Proffer statements are admissible for their truth under different rules. Finally, the Court determines that some of the non-testifying Defendants' statements are admissible for their truth against all the Defendants as declarations against interest under rule 804(b)(3), while other statements are admissible for their truth against only the declarant under rule 801(d)(2)(A), but none of the first trial's James statements are admissible. Accordingly, the Court grants in part and denies in part the 804(b)(3) MIL.

         FACTUAL BACKGROUND

         The Court takes its background facts from the Second Superseding Indictment, filed March 9, 2017 (Doc. 947)(“Indictment”). The background facts are largely unchanged from those that the Court provided in its Memorandum Opinion and Order, 323 F.R.D. 672, filed December 18, 2017 (Doc. 1585). The Court does not set forth these facts as findings or as the truth. The Court recognizes that the factual background largely reflects the United States' version of events and that the Defendants are all presumed innocent.

         This case deals with crimes that the Syndicato de Nuevo Mexico (“SNM”) allegedly committed through its members. Indictment at 2. SNM, through its members, operated in the District of New Mexico at all relevant times, and its members engaged in acts of violence and other criminal activities, “including murder, kidnapping, attempted murder, conspiracy to manufacture/distribute narcotics, and firearms trafficking.” Indictment at 2. SNM constitutes an enterprise “as defined in Title 18, United States Code, Section 1959(b)(2), that is, a group of individuals associated in fact that engaged in, and the activities of which affected, interstate and foreign commerce.” Indictment at 2-3.

         SNM is a violent prison gang formed in the early 1980s at the Penitentiary of New Mexico (“PNM”) after a violent prison riot at PNM during which inmates seriously assaulted and raped twelve correctional officers after taking them hostage. Indictment at 3. During the riot, thirty-three inmates were killed, and over 200 were injured. See Indictment at 3. After the PNM riot, SNM expanded throughout the state's prison system and has had as many as 500 members. See Indictment at 3. SNM now has approximately 250 members, and “a ‘panel' or ‘mesa' (Spanish for table) of leaders who issue orders to subordinate gang members.” Indictment at 3. SNM controls drug distribution and other illegal activities within the New Mexico penal system, but it also conveys orders outside the prison system. See Indictment at 3. Members who rejoin their communities after completing their sentences are expected to further the gang's goals, the main one being the control of and profit from narcotics trafficking. See Indictment at 3-4. Members who fail “to show continued loyalty to the gang [are] disciplined in various ways, . . . includ[ing] murder and assaults.” Indictment at 4. SNM also “intimidate[es] and influenc[es] smaller New Mexico Hispanic gangs” to expand its illegal activities. Indictment at 4. If another gang does not abide by SNM's demands, SNM will assault or kill one of the other gang's members to show its power. See Indictment at 4. SNM's rivalry with other gangs also manifests itself in beatings and stabbings within the prison system. See Indictment at 4. SNM further engages in violence “to assert its gang identity, to claim or protect its territory, to challenge or respond to challenges, to retaliate against a rival gang or member, [and] to gain notoriety and show its superiority over others.” Indictment at 4. To show its strength and influence, SNM expects its members to confront and attack any suspected law enforcement informants, cooperating witnesses, homosexuals, or sex offenders. See Indictment at 5. To achieve its purpose of preserving its power, SNM uses intimidation, violence, threats of violence, assaults, and murder. See Indictment at 7. SNM as an enterprise generates income by having its members and associates traffic controlled substances and extort narcotic traffickers. See Indictment at 8. SNM's recent activities in a conspiracy to murder high-ranking New Mexico Corrections Department Officials inspired the Federal Bureau of Investigation's (“FBI”) present investigation. United States v. Garcia, No. CR 15-4275, Memorandum Opinion and Order at 2, 221 F.Supp.3d 1275, 1277, filed November 16, 2016 (Doc. 133). The other relevant facts giving rise to this case are as follows.

         In March, 2014, a Doña Ana County, New Mexico grand jury indicted Defendants Jerry Montoya and Jerry Armenta on charges of first-degree murder, and four other felonies, related to the death of Javier Enrique Molina, Montoya and Armenta's fellow inmate during their incarceration at the Southern New Mexico Correctional Facility (“Southern New Mexico”). Memorandum Opinion and Order at 6, 2016 WL 7242579, at *3, filed October 28, 2016 (Doc. 753)(“MOO”). The New Mexico Third Judicial District Attorney's Office accused Montoya and Armenta of fatally stabbing Molina with a shank in a gang-related attack. See MOO at 6, 2016 WL 7242579, at *3. That New Mexico indictment charged Montoya and Armenta with: (i) Molina's murder; (ii) possessing a deadly weapon; (iii) tampering with evidence; and (iv) two counts of conspiracy. See MOO at 6-7, 2016 WL 7242579, at *3. In November, 2015, the state District Attorney dismissed the charges against Montoya and Armenta -- as well as separate charges against their alleged accomplice, Defendant Mario Rodriguez, who had been charged with possession of a deadly weapon by a prisoner, tampering, and conspiracy. See MOO at 7, 2016 WL 7242579, at *3. “A spokesperson for the District Attorney's Office indicated the charges were dismissed because the cases were going to be prosecuted at the federal court level.” MOO at 7, 2016 WL 7242579, at *3.

         The United States now brings this case, which it initiated in Las Cruces, New Mexico, against thirty-one Defendants, charging them with a total of sixteen counts. See Indictment at 1, 9-18. All Defendants are accused of participating in the SNM enterprise's operation and management, and of committing unlawful activities “as a consideration for the receipt of, and as consideration for a promise and an agreement to pay, anything of pecuniary value from SNM and for the purpose of gaining entrance to and maintaining and increasing position in SNM, an enterprise engaged in racketeering activity.” Indictment at 9-18. Defendant Arturo Arnulfo Garcia, Defendant Gerald Archuleta, 2 Defendant Benjamin Clark, M. Rodriguez, Defendant Anthony Ray Baca, Defendant Robert Martinez, Defendant Roy Paul Martinez, 3 and Defendant Daniel Sanchez are the enterprise's alleged leaders. See Indictment at 6. The other Defendants are allegedly members or associates who acted under the direction of the enterprise's leaders. See Indictment at 6. The SNM gang enterprise, through its members and associates, allegedly engaged in: (i) racketeering activity as 18 U.S.C. §§ 1959(b)(1) and 1961(1) define that term; (ii) murder and robbery in violation of State of New Mexico law; (iii) acts, indictable under 18 U.S.C. §§ 1503, 1512, and 1513, “involving obstruction of justice, tampering with or retaliating against a witness, victim, or an informant”; and (iv) offenses involving trafficking in narcotics in violation of 21 U.S.C. §§ 841 and 846. Indictment at 9.

         Specifically, the Indictment alleges that, on March 26, 2001, Defendants Angel DeLeon, Joe Gallegos, Edward Troup, Leonard Lujan, and Billy Garcia murdered “F.C.” Indictment at 9 (Count 1). On the same day, Lujan, B. Garcia, and Defendants Eugene Martinez, Allen Patterson, and Christopher Chavez allegedly murdered “R.G.” Indictment at 10 (Count 2). On June 17, 2007, Defendant Javier Alonso, Troup, A.A. Garcia, Clark, and Defendant Ruben Hernandez allegedly murdered “F.S.” Indictment at 10-11 (Count 3). On November 12, 2012, J. Gallegos and Defendant Andrew Gallegos allegedly conspired to murder “A.B.” Indictment at 11 (Count 4). On the same day, J. Gallegos and A. Gallegos allegedly murdered A.B. See Indictment at 11-12 (Count 5). In March, 2014, Armenta, Montoya, M. Rodriguez, Defendant Timothy Martinez, Baca, Defendant Mauricio Varela, Sanchez, Defendant Carlos Herrera, and Defendant Rudy Perez allegedly conspired to murder “J.M.” Indictment at 12 (Count 6). On March 7, 2014, Armenta, Montoya, M. Rodriguez, T. Martinez, Baca, Varela, Sanchez, Herrera, and Perez allegedly murdered J.M. See Indictment at 13 (Count 7).

         Further, starting in or around 2003 -- until about July 13, 2015 -- Baca, Archuleta, and Defendant Conrad Villegas allegedly conspired to commit assault resulting in serious bodily injury to “J.R.” Indictment at 13-14 (Count 8). Starting “on a date uncertain, but no later than 2013, ” and until the date of the Indictment -- April 21, 2014 -- Baca, R.P. Martinez, and R. Martinez allegedly conspired to murder “D.S.” Indictment at 14 (Count 9). During the same time period, Baca, R.P. Martinez, R. Martinez, and Defendant Christopher Garcia allegedly conspired to murder “G.M.” Indictment at 15 (Count 10). On November 29, 2015, C. Garcia, a convicted felon, allegedly unlawfully possessed a firearm. See Indictment at 15-16 (Count 11). On the same day, C. Garcia, a convicted felon, allegedly knowingly used and carried a firearm in relation to a charge of conspiracy to murder. See Indictment at 16 (Count 12).

         On March 17, 2015, J. Gallegos allegedly committed assault with a dangerous weapon against “J.G.” Indictment at 16 (Count 13). From February 1, 2016, until February 27, 2016, J. Gallegos and Defendants Santos Gonzalez, Paul Rivera, Shauna Gutierrez, and Brandy Rodriguez allegedly conspired to murder “J.G.” Indictment at 17 (Count 14). Also, on February 27, 2016, J. Gallegos, B. Rodriguez, Gonzalez, Rivera, and Gutierrez allegedly attempted to murder J.G., and committed assault with a dangerous weapon and assault resulting in serious bodily injury to J.G. See Indictment at 17-18 (Count 15). The same Defendants also allegedly tampered with a witness, J.G. See Indictment at 18 (Count 16).

         For fuller factual context, there are four cases before the Court related to SNM's alleged criminal activity. In a related case -- United States v. Baca, No. CR 16-1613 JB (D.N.M.)(Browning, J.)[4] -- the United States names twelve defendants, all alleged SNM members or associates, who have allegedly engaged in a racketeering conspiracy, under 18 U.S.C. § 1962(d).[5] There is also a separate prosecution of C. Garcia for drug crimes, see United States v. Garcia, No. CR 15-4275 (D.N.M.)(Browning, J.), and a four-defendant prosecution for alleged violent crimes in aid of racketeering, under 18 U.S.C. § 1959, see United States v. Varela, No. CR 15-4269 (D.N.M.)(Browning, J.).

         PROCEDURAL BACKGROUND

         The Court severed this case into two trial groups. See Memorandum Opinion and Order at 3, 2017 WL 3054511, at *1, filed June 30, 2017 (Doc. 1204)(“Severance MOO”). The Court held a trial on Counts 6-12 of the Indictment from January 29, 2018, to March 12, 2018. See Clerk's Minutes, filed March 12, 2018 (Doc. 1932); Clerk's Minutes, filed January 29, 2018 (Doc. 1746). The Court will try Counts 1-5 alongside Counts 13-16 in a second trial. See Severance MOO at 3, 2017 WL 3054511, at *1. The Court set the second trial to begin on April 9, 2018. See Fourth Scheduling Order ¶ 15, at 2, filed July 7, 2017 (Doc. 1205).

         Before the first trial began, several Defendants asked the Court to hold a hearing under United States v. James, 590 F.2d 575 (5th Cir. 1979)(“James”), to determine, by a preponderance of the evidence, whether statements that the United States will attempt to introduce for their truth under rule 801(d)(2)(E) of the Federal Rules of Evidence satisfy that rule's requirements, i.e.: (i) that a conspiracy existed; (ii) that the declarant and the Defendant against whom the United States offers a statement were members of that conspiracy; and (iii) the statement was made during and in furtherance of that conspiracy. See Memorandum Opinion and Order at 14, 287 F.Supp.3d 1187, 1200, filed March 7, 2018 (Doc. 1882)(“James MOO”). See also Fed.R.Evid. 801(d)(2)(E). On November 27, 2017, the Court orally granted those requests. See Transcript of Hearing at 10:12-24 (taken November 27, 2017)(Court), filed December 6, 2017 (Doc. 1545)(“Nov. 27 Tr.”). The Trial 1 Defendants[6] indicated that they would have preferred pre-James-hearing notice regarding the statements that the United States intends to offer at their trial under rule 801(d)(2)(E) of the Federal Rules of Evidence, but they added that,

at this point, with a January 29 [trial] date, we'd rather just have a witness put up cold, and get into it, just so we can know what we're dealing with right around the corner. So we would have loved the Government's response to have been: Hey, let's do this bifurcated way, so you can actually prepare for the hearing. But since we're here, and it's the week after Thanksgiving, and we're going to be in front of a jury in two months, we'd just like to get a witness up and get it going.

Nov. 27 Tr. at 105:9-18 (Adams). In contrast, the United States agreed to notify the Trial 2 Defendants[7] in writing regarding the statements that it intends to offer at their trial under rule 801(d)(2)(E), and the Court indicated that it would hold a James hearing regarding any of those statements that the Trial 2 Defendants found objectionable. See Nov. 27 Tr. at 106:7-10 (Castellano)(“It's my understanding [the Trial 2 Defendants will] get the statements and they'll make a determination at that point whether they want to challenge the statements.”). See also James MOO at 16-17, 287 F.Supp.3d at 1201-02.

         1. The James MOO.

         The Court issued the James MOO after having a three-day James hearing. See Transcript of Hearing (held November 27, 2017), filed December 6, 2017 (Doc. 1545)(“Nov. 27 Tr.”); Transcript of Hearing (held November 28, 2017), filed December 6, 2017 (Doc. 1546)(“Nov. 28 Tr.”); Transcript of Hearing (held November 29, 2017), filed December 6, 2017 (Doc. 1547)(“Nov. 29 Tr.”). At the James hearing, the United States “proffered ‘about 14 plea agreements in this case which will establish at least the first two requirements of James, which is the existence of the conspiracy, as well as membership in the conspiracy.'” James MOO at 17, 287 F.Supp.3d at 1202 (quoting Nov. 27 Tr. at 17:9-13 (Castellano)). The United States introduced “the statements it intends to offer under rule 801(d)(2)(E) at the first trial by calling [FBI Special Agent Bryan Acee] to the stand.” James MOO at 18, 287 F.Supp.3d at 1202-03 (citing Nov. 27 Tr. at 145:23-24 (Castellano)). The Court provides a table, in which it “designates statements by both declarant and transcript citation, ” and also includes its conclusions as to admissibility. James MOO at 117, 287 F.Supp.3d at 1264. This table is provided below, with its footnotes.

Declarant(s)

Citation

The Court's Conclusions

Baca

Nov. 27 Tr. at 147:8-16

Nontestimonial; rule 801(d)(2)(E) applies as against Counts 6-7 Defendants

Calbert and Baca

Nov. 27 Tr. at 149:17-21

Nontestimonial; rule 801(d)(2)(E) applies as against Counts 6-7 Defendants

Baca

Nov. 27 Tr. at 149:17-21

Nontestimonial; rule 801(d)(2)(E) applies as against Counts 6-7 Defendants

M. Rodriguez and T. Martinez

Nov. 27 Tr. at 150:11-20

Nontestimonial; rule 801(d)(2)(E) applies as against Counts 6-7 Defendants

T. Martinez

Nov. 27 Tr. at 150:11-20

Nontestimonial; rule 801(d)(2)(E) applies as against Counts 6-7 Defendants

Herrera

Nov. 27 Tr. at 151:1-13

Nontestimonial; rule 801(d)(2)(A) applies as against Herrera; the Court will give a limiting instruction as to Sanchez, Baca, and Perez

M. Rodriguez

Nov. 27 Tr. at 152:8-24

Nontestimonial

Sanchez

Nov. 27 Tr. at 153:6-10

Nontestimonial; rule 801(d)(2)(A) applies as against Sanchez; rule 803(3) applies generally

Gomez

Nov. 27 Tr. at 153:19-154:5

Nontestimonial; rule 801(d)(2)(E) applies as to Count 8 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez

Baca

Nov. 27 Tr. at 153:19-154:5

Nontestimonial; rule 801(d)(2)(E) applies as to Count 8 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez

M. Rodriguez

Nov. 27 Tr. at 155:19-159:2

Nontestimonial; rule 801(d)(2)(E) applies as to Counts 6-7 Defendants

M. Rodriguez

Nov. 27 Tr. at 159:10-160:5

Nontestimonial; rule 801(d)(2)(E) applies as to Counts 6-7 Defendants

M. Rodriguez

Nov. 27 Tr. at 160:6-161:4

Nontestimonial; rule 801(d)(2)(E) applies as to Counts 6-7 Defendants

Sanchez

Nov. 27 Tr. at 160:6-161:4

Nontestimonial; rule 801(d)(2)(E) applies as to Counts 6-7 Defendants

Sanchez

Nov. 27 Tr. at 161:5-162:13

Nontestimonial; rule 801(d)(2)(E) applies as to Counts 6-7 Defendants

M. Rodriguez

Nov. 27 Tr. at 162:14-163:25

Nontestimonial; rule 801(d)(2)(E) applies as to Counts 6-7 Defendants

Sanchez

Nov. 27 Tr. at 164:4-14

Nontestimonial; rule 801(d)(2)(E) applies as to Counts 6-7 Defendants

Baca

Nov. 27 Tr. at 164:23-165:16

Nontestimonial; rule 801(d)(2)(A) applies as to Baca; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez

Gomez

Nov. 27 Tr. at 164:23-165:16

Nontestimonial

Baca

Nov. 27 Tr. at 167:5-18

Nontestimonial; rule 801(d)(2)(A) applies as to Baca; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez

C. Garcia

Nov. 27 Tr. at 167:19-169:6

Nontestimonial; rule 801(d)(2)(E) applies as to Count 9-10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez

Baca

Nov. 27 Tr. at 167:19-169:6

Nontestimonial; rule 801(d)(2)(E) applies as to Count 9-10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez

Sanchez

Nov. 28 Tr. at 40:23-41:8

Nontestimonial; rule 801(d)(2)(E) applies as to Counts 6-7 Defendants

R. Martinez

Nov. 28 Tr. at 41:14-20

Nontestimonial

Sanchez

Nov. 28 Tr. at 42:1-14

Nontestimonial; rule 801(d)(2)(E) applies as to Counts 6-7 Defendants

Herrera

Nov. 28 Tr. at 42:15-21

Nontestimonial; rule 801(d)(2)(E) applies as to Counts 6-7 Defendants

Sanchez

Nov. 28 Tr. at 42:22-43:14

Nontestimonial; rule 801(d)(2)(E) applies as to Counts 6-7 Defendants

Perez

Nov. 28 Tr. at 43:9-14

Nontestimonial; rule 801(d)(2)(E) applies as to Counts 6-7 Defendants

T. Martinez

Nov. 28 Tr. at 43:15-44:15

Nontestimonial; rule 801(d)(2)(E) applies as to Counts 6-7 Defendants

M. Rodriguez

Nov. 28 Tr. at 43:15-44:15

Nontestimonial; rule 801(d)(2)(E) applies as to Counts 6-7 Defendants

M. Rodriguez

Nov. 28 Tr. at 45:5-8

Nontestimonial; rule 801(d)(2)(E) applies as to Counts 6-7 Defendants

Montoya

Nov. 28 Tr. at 45:12-15

Nontestimonial; rule 801(d)(2)(E) applies as to Counts 6-7 Defendants

Sanchez

Nov. 28 Tr. at 45:15-20

Nontestimonial; rule 801(d)(2)(E) applies as to Counts 6-7 Defendants

M. Rodriguez

Nov. 28 Tr. at 45:22-46:4

Nontestimonial; rule 801(d)(2)(E) applies as to Counts 6-7 Defendants

Montoya

Nov. 28 Tr. at 46:5-6

Nontestimonial; rule 801(d)(2)(E) applies as to Counts 6-7 Defendants

M. Rodriguez

Nov. 28 Tr. at 46:6-9

Nontestimonial

Molina

Nov. 28 Tr. at 46:6-9

Nontestimonial; rule 804(b)(2) applies

M. Rodriguez

Nov. 28 Tr. at 46:10-15

Nontestimonial; rule 801(d)(2)(E) applies as to Counts 6-7 Defendants

Herrera

Nov. 28 Tr. at 46:10-15

Nontestimonial; rule 801(d)(2)(E) applies as to Counts 6-7 Defendants

R.P. Martinez

Nov. 29 Tr. at 229:16-230:4

Nontestimonial; rule 801(d)(2)(E) applies as to Counts 9-10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez

R.P. Martinez

Nov. Tr. at 230:6-19

Nontestimonial; rule 801(d)(2)(E) applies as to Counts 9-10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez

R.P. Martinez

Nov. 29 Tr. at 230:22-232:14

Nontestimonial; rule 801(d)(2)(E) applies as to Counts 9-10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez

R. Martinez

Nov. 29 Tr. at 232:15-233:7

Nontestimonial; rule 801(d)(2)(E) applies as to Counts 9-10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez

R. Martinez

Nov. 29 Tr. at 233:7-24

Nontestimonial; rule 801(d)(2)(E) applies as to Counts 9-10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez

Baca

Nov. 29 Tr. at 233:25-234:19

Nontestimonial; rule 801(d)(2)(A) applies as to Baca; rule 803(3) applies generally

Baca

Nov. 29 Tr. at 234:19-25

Nontestimonial; rule 801(d)(2)(A) applies as to Baca; the court will give a limiting instruction as to Sanchez, Herrera, and Perez

Baca

Nov. 29 Tr. at 236:21-237:5

Nontestimonial; rule 801(d)(2)(A) applies as to Baca; rule 803(3) applies generally

Baca

Nov. 29 Tr. at 237:15-25

Nontestimonial; rule 801(d)(2)(E) applies as to Counts 9-10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez

R. Martinez

Nov. 29 Tr. at 237:15-25

Nontestimonial; rule 801(d)(2)(E) applies as to Counts 9-10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez

Baca

Nov. 29 Tr. at 238:3-11

Nontestimonial; rule 801(d)(2)(A) applies as to Baca; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez

Montoya

Nov. 29 Tr. at 238:3-11

Nontestimonial

Baca

Nov. 29 Tr. at 238:25-239:3

Nontestimonial; rule 801(d)(2)(E) applies as to Counts 9-10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez

Baca

Nov. 29 Tr. at 239:3-8

Nontestimonial; rule 801(d)(2)(A) applies as to Baca; rule 803(3) applies generally

Baca

Nov. 29 Tr. at 239:18-240:3

Nontestimonial; rule 801(d)(2)(A) applies as to Baca; rule 803(3) applies generally

Baca

Nov. 29 Tr. at 240:10-15

Nontestimonial; rule 801(d)(2)(E) applies as to Count 9 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez

Baca

Nov. 29 Tr. at 240:15-21

Nontestimonial; rule 801(d)(2)(A) applies as to Baca; rule 803(3) applies generally

Baca

Nov. 29 Tr. at 241:3-4

Nontestimonial; rule 801(d)(2)(E) applies as to Count 10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez

Baca

Nov. 29 Tr. at 241:19-21

Nontestimonial; rule 801(d)(2)(E) applies as to Counts 9-10; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez

Baca

Nov. 29 Tr. at 242:11-25

Nontestimonial; rule 801(d)(2)(E) applies as to Count 9 Defendants; the Court will give a limiting instruction as to the other Defendants

Baca

Nov. 29 Tr. at 243:3-18

Nontestimonial; rule 801(d)(2)(E) applies as to Count 9 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez

Baca

Nov. 29 Tr. at 243:24-244:7

Nontestimonial; rule 801(d)(2)(E) applies as to Count 9 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez

Baca

Nov. 29 Tr. at 244:10-11

Nontestimonial; rule 801(d)(2)(A) applies as to Baca; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez

Baca

Nov. 29 Tr. at 244:25-245:5

Nontestimonial; rule 801(d)(2)(E) applies as to Counts 9-10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez

Baca

Nov. 29 Tr. at 245:12-17

Nontestimonial; rule 801(d)(2)(E) applies as to Counts 9-10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez

Baca

Nov. 29 Tr. at 245:24-246:9

Nontestimonial; rule 801(d)(2)(E) applies as to Counts 9-10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez

Baca

Nov. 29 Tr. at 247:15-25

Nontestimonial; rule 801(d)(2)(E) applies as to Counts 10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez

Baca

Nov. 29 Tr. at 248:3-7

Nontestimonial; rule 801(d)(2)(E) applies as to Counts 9-10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez

Baca

Nov. 29 Tr. at 248:16-19

Nontestimonial; rule 801(d)(2)(A) applies as to Baca; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez

Baca

Nov. 29 Tr. at 249:5-12

Nontestimonial; rule 801(d)(2)(A) applies as to Baca; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez

Baca

Nov. 29 Tr. at 250:3-5

Nontestimonial; rule 801(d)(2)(E) applies as to Counts 9-10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez

Baca

Nov. 29 Tr. at 250:11-21

Nontestimonial; rule 801(d)(2)(E) applies as to Counts 9-10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez

C. Garcia

Nov. 29 Tr. at 250:11-21

Nontestimonial; rule 801(d)(2)(E) applies as to Counts 9-10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez

Baca

Nov. 29 Tr. at 250:25-251:3

Nontestimonial; rule 801(d)(2)(E) applies as to Counts 9-10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez

C. Garcia

Nov. 29 Tr. at 250:25-251:3

Nontestimonial; rule 801(d)(2)(E) applies as to Counts 9-10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez

Baca

Nov.29 Tr. at 251:8-17

Nontestimonial; rule 801(d)(2)(E) applies as to Counts 9-10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez

Baca

Nov. 29 Tr. at 252:14-21

Nontestimonial; rule 801(d)(2)(A) applies as to Baca; rule 803(3) applies generally

Baca

Nov. 29 Tr. at 256:17-25

Nontestimonial; rule 801(d)(2)(A) applies as to Baca; rule 803(3) applies generally

Baca

Nov. 29 Tr. at 257:7-11

Nontestimonial; rule 801(d)(2)(A) applies as to Baca; rule 803(3) applies generally

Baca

Nov. 29 Tr. at 257:13-14

Nontestimonial; rule 801(d)(2)(A) applies as to Baca; rule 803(3) applies generally

Baca

Nov. 29 Tr. at 257:15-16

Nontestimonial; rule 801(d)(2)(A) applies as to Baca; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez

Baca

Nov. 29 Tr. at 257:17-18

Nontestimonial; rule 801(d)(2)(A) applies as to Baca; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez

Baca

Nov. 29 Tr. at 257:19-21

Nontestimonial; rule 801(d)(2)(A) applies as to Baca; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez

Duran

Nov. 29 Tr. at 257:20-21

Nontestimonial

M. Rodriguez

Nov. 29 Tr. at 257:20-21

Nontestimonial; rule 803(3) applies

Baca

Nov. 29 Tr. at 257:21-22

Nontestimonial; rule 801(d)(2)(A) applies as to Baca; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez

Baca

Nov. 29 Tr. at 257:25

Nontestimonial; rule 801(d)(2)(A) applies as to Baca; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez

M Rodriguez

Nov. 29 Tr. at 257:25

Nontestimonial

Baca

Nov. 29 Tr. at 258:12-20

Nontestimonial; rule 801(d)(2)(A) applies as to Baca; rule 803(3) applies generally

Baca

Nov. 29 Tr. at 259:1-4

Nontestimonial; rule 801(d)(2)(A) applies as to Baca; rule 803(3) applies generally

C. Garcia

Nov. 29 Tr. at 261:7-13; James Hearing Exhibit 26[8]

Nontestimonial; rule 801(d)(2)(E) applies as to Counts 9-10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez

Parker

Nov. 29 Tr. at 262:1-4

Nontestimonial; rule 801(d)(2)(E) applies as to Counts 9-10 Defendants; the Court will give a limiting instruction as to Sanchez, Herrera, and Perez

Montoya

Nov 29 Tr. at 262:8-263:4

Testimonial[9]

James MOO at 117-23, 287 F.Supp.3d at 1264-70.

         2.The James Notice and James Proffer.

         The United States filed the James Notice and the James Proffer on March 8, 2018, see James Notice at 1; James Proffer at 1, pursuant to the agreement reached at the November 27, 2017, hearing that the United States would provide the Defendants a summary of the coconspirator statements it wishes to introduce, see Nov. 27 Tr. at 104:19-23 (Castellano). In the James Notice, the United States indicates that it intends to introduce the statements in the James Proffer at the second trial. See James Notice at 1. The United States also “reserves the right to introduce the co-conspirator statements introduced in Trial 1, which began January 29, 2018.” James Notice at 1. Finally, the United States “reserves the right to file additional notices of James statements should they be revealed in preparation for trial.” James Notice at 1.

         The James Proffer enumerates eighty-eight distinct statements. See James Proffer at 1-45. For each statement, the James Proffer lists the statement's declarant, its source, and the approximate date on which the statement was made. See James Proffer at 1-45. The United States also identifies a basis of admission for each statement. See James Proffer at 1-45.

         3. The B. Garcia Response.

         On the next day, B. Garcia filed a response to the James Notice and the James Proffer. See B. Garcia Response at 1. B. Garcia argues that “all statements regarding counts 3-5 and 13-15” are irrelevant to the charges against him, and are “highly prejudicial.” B. Garcia Response ¶ 3, at 2. B. Garcia lists particular James Proffer statements that he finds objectionable. See B. Garcia Response ¶¶ 4-10, at 2-5.

         B. Garcia also makes a blanket objection to admitting out-of-court statements that his non-testifying co-Defendants made insofar as those statements implicate him. See B. Garcia Response ¶ 20, at 9. In addition to that blanket objection, B. Garcia identifies specific individuals who he anticipates will testify that B. Garcia's co-Defendants made out-of-court statements -- which are not listed in the James Proffer -- that inculpate B. Garcia. See B. Garcia Response ¶ 11, at 5 (James Garcia); id. ¶ 13, at 6 (Samuel Gonzales); id. ¶ 14, at 6-7 (Robert Lovato); id. ¶ 15, at 7 (Leroy Lucero); id. ¶ 16, at 7-8 (Fred Quintana); id. ¶ 17, at 8 (Ben Clark); id. ¶ 18, at 8-9 (Julian Romero); id. ¶ 19, at 9 (T. Martinez). B. Garcia attaches documents to the B. Garcia Response as appendices, and these appendices summarize interviews with law enforcement which contain statements attributed to B. Garcia's co-Defendants. See Appendix A at 2-3, filed March 9, 2018 (Doc. 1909-1)(“J. Garcia 302”)(containing the out-of-court co-Defendant statements about which B. Garcia anticipates J. Garcia will testify); Appendix C at 3, filed March 9, 2018 (Doc. 1909-3)(“Samuel Gonzales 302”)(containing the out-of-court co-Defendant statements about which B. Garcia anticipates Samuel Gonzales will testify); Appendix D at 2, filed March 9, 2018 (Doc. 1909-4)(“Lovato 302”)(containing the out-of-court co-Defendant statements about which B. Garcia anticipates Lovato will testify); Appendix E at 2, filed March 9, 2018 (Doc. 1909-5)(“Quintana 1023”)(containing the out-of-court co-Defendant statements about which B. Garcia anticipates Quintana will testify); Appendix F at 3-4, 9-10, filed March 9, 2018 (Doc. 1909-6)(“Clark Debriefs”)(containing the out-of-court co-Defendant statements about which B. Garcia anticipates Clark will testify); Appendix G at 7, filed March 9, 2018 (Doc. 1909-7)(“Romero 302”)(containing the out-of-court co-Defendant statements about which B. Garcia anticipates Romero will testify); Appendix H at 5, filed March 9, 2018 (Doc. 1909-8)(“T. Martinez 302”)(containing the out-of-court co-Defendant statements about which B. Garcia anticipates T. Martinez will testify). B. Garcia also contends that Phillip Gonzales “has made statements about who was responsible for the 2001 murders, however, he indicated he never spoke to any of the suspects for that homicide as he was in[] segregation at the time of the murders.” B. Garcia Response ¶ 12, at 5. See Appendix B at 6, filed March 9, 2018 (Doc. 1909-2)(“P. Gonzales 302”)(describing P. Gonzales' statements). B. Garcia elaborates that “[t]here is no indication where Gonzales obtained the information about who ordered the hit so there is no ability to properly attribute or authenticate or assess what might be several levels of hearsay.” B. Garcia Response ¶ 12, at 5-6.

         B. Garcia makes two additional requests. First, he asks for a limiting instruction vis-à-vis out-of-court statements that his non-testifying co-Defendants made if those statements are admitted over his objection. See B. Garcia Response ¶¶ 11, 13-19, at 5-9. Second, B. Garcia “requests that if the Court admits any of the above referenced statements over the objections of B. Garcia that the court allow a continuing objection so as not to require counsel to interpose an oral objection during trial that would interrupt the flow of the presentation.” B. Garcia Response ¶ 21, at 9.

         4. The General James Response.

         B. Garcia observes that, in the James Proffer, “the government generally addressed coconspirator statements it intends to offer under Fed.R.Evid. 801(d)(2)(E), ” but “[w]ith some exceptions the government did not address statements it intended to offer as statements against interest under Fed.R.Evid. 804(b)([3]) or as admissions by a party opponent under Fed.R.Evid. 801(d)(2)(A).” General James Response ¶ 1, at 1. B. Garcia indicates that both the Trial 2 Defendants and the United States “believe it would be helpful to the parties to seek clarification from the Court” regarding the Court's application of rules 801(d)(2)(A) and 804(b)(3) to the statements at issue in the second trial. General James Response ¶ 4, at 3. B. Garcia provides an example:

[D]efendant Billy Garcia is objecting to the admission of that portion of a statement allegedly made by defendant Troup to witness James (“Daffy”) Garcia in which Troup indicated he had committed the Garza murder and that Billy Garcia gave the order for the murder. Defendant Garcia's objections are numerous but one set of objections rely only on whether Troup's supposed knowledge is authenticated, properly attributed to Billy Garcia and whether the government can establish Troup had personal knowledge. This would require motions hearing testimony by James Garcia who is subpoenaed to testify. But if the Court and the government will be redacting Billy Garcia's statement from James Garcia's testimony then no motions hearing is necessary.

         General James Response ¶ 4, at 3. Finally, B. Garcia asserts that the James Proffer's statements “are inadmissible under the due process and confrontation clauses of the fifth and sixth amendments to the United States constitution.” General James Response ¶ 6, at 4.

         5. The 804(b)(3) MIL.

         In the 804(b)(3) MIL, the United States acknowledges that, in the James MOO, the Court concluded that incriminating “statements that Defendant Rudy Perez made to a fellow gang member were not admissible under Rule 804(b)(3), ” because Perez made those statements in circumstances where a reasonable person might make those statements even if they were false. 804(b)(3) MIL at 1 (citing James MOO at 104, 287 F.Supp.3d at 1256). The United States argues, however, that “[t]he Court should not apply that particularized conclusion that the circumstances around Defendant Perez's confession did not corroborate the statements' trustworthiness to the Defendants' statements against penal interest that the United States offers under Rule 804(b)(3) in this [trial] for two reasons.” 803(b)(3) MIL at 1-2. First, the United States draws a factual distinction between Perez' statements and the Trial 2 Defendants' statements:

Defendants cannot show that the circumstances that may have tended to make Defendant Perez's admissions untrustworthy -- rumors that surfaced after the original December 2015 Indictment was filed in this case that Defendant Perez cooperated with the United States -- are circumstances that inhere to any statements against penal interest that the United States intends to offer in this trial against the other Defendants.

804(b)(3) MIL at 2. The United States underscores that, for the statements it seeks to admit against the Trial 2 Defendants, there is “no evidence of rumored cooperation of the declarant and there's no lack of strength of independent evidence corroborating the conduct in question.” 804(b)(3) MIL at 13. Second, the United States argues that the Court cannot apply a blanket rule that “in-prison admissions are not against penal interest, ” and must instead “look at each statement individually and assess whether the factors that courts look to for the required corroboration apply to each of the offered statements in this trial.” 803(b)(3) MIL at 2. Accordingly, the United States requests that the Court “conclude that statements that the United States seeks to admit against the Defendants are admissible under Rule 804(b)(3).” 803(b)(3) MIL at 2.

         6. The Gutierrez Response.

         Gutierrez incorporates the argument in the B. Garcia Response as it applies to her. See Gutierrez Response ¶ 1, at 1. Gutierrez also objects to specific James Proffer statements. See Gutierrez Response ¶¶ 2-12, at 1-2. Many of Gutierrez' objections are on the grounds of factual inaccuracy or of fallacy. See Gutierrez Response ¶¶ 2-4, 7-10, 12, at 1-2.

         7. The C. Chavez Response.

         C. Chavez objects to specific James Proffer statements. See C. Chavez Response ¶¶ 4-24, at 2-8. Otherwise, the C. Chavez Response largely echoes the B. Garcia Response. Compare C. Chavez Response ¶ 2, at 1 (“Christopher Chavez objects to the admission of all statements made by his alleged coconspirators on confrontation and due process grounds. Specifically, there is no reliability inherent in these out of court statements.”); id. ¶ 3, at 1 (“Christopher Chavez objects to the admission of all statements regarding counts 1, 3-5 as they are irrelevant to the charges against him and are highly prejudicial as they create the strong probability of a negative spillover effect.”); id. ¶ 25, at 8 (“Christopher Chavez objects to any statements, even if not listed above or in the government's James proffer alleged to have been made by any codefendant who is not testifying.”); id. ¶ 26, at 8 (“The defense requests that if the Court admits any of the above references [sic] statements over the objection of Christopher Chavez that the court allow a continuing objection so as not to require counsel to pose an oral objection during trial that would interrupt the flow of the presentation.”), with B. Garcia Response ¶ 2, at 2 (“B. Garcia objects to the admission of all statements made by his alleged coconspirators on confrontation, due process and evidentiary grounds. There is no reliability inherent in these out of court statements.”); id. ¶ 3, at 2 (“B. Garcia objects to the admission of all statements regarding counts 3-5 and 13-15 as they are irrelevant to the charges against him and are highly prejudicial as they create the strong probability of a negative spillover effect.”); id. ¶ 20, at 9 (“B. Garcia objects to any statements, even if not listed above or in the government's James proffer, alleged to have been made by any codefendant who is not testifying and which either implicated B. Garcia or concerns the 2001 murders.”); id. ¶ 21, at 9 (“The defense requests that if the Court admits any of the above referenced statements over the objections of B. Garcia that the court allow a continuing objection so as not to require counsel to interpose an oral objection during trial that would interrupt the flow of the presentation.”).

         8. The A. Gallegos Response.

         A. Gallegos identifies several James Proffer statements that he finds objectionable. See A. Gallegos Response ¶¶ 4-5, at 2-3. He “asserts there is a lack of personal knowledge and an overall inability to properly attribute or authenticate the source for those statements that are simply identified with both Joe and Andrew Gallegos, or simply the ‘Gallegos brothers.'” A. Gallegos Response ¶ 5, at 3. A. Gallegos also “joins and incorporate[s] fully the objections to Doc. 1903, previously filed by Billy Garcia and anticipated to be filed by Joe Gallegos.” A. Gallegos Response ¶ 4, at 2. Otherwise the A. Gallegos Response largely echoes the B. Garcia Response. Compare A. Gallegos Response ¶¶ 2-3, 6-7, at 1-3, with B. Garcia Response ¶¶ 2-3, 20-21, at 2, 9.

         9. The J. Gallegos Response.

         J. Gallegos argues that “[t]here are no statements [in the James Proffer] that provide a jurisdictional basis for the prosecution of Counts 4 and 5.”[10] J. Gallegos Response at 2. J. Gallegos objects to specific James Proffer statements. See J. Gallegos Response ¶¶ 1-18, 20, at 3-7. J. Gallegos adds that he “would object and request a limiting instruction for all statements that are attributed to the [Count 3 conspirators], ” because he “is not alleged to have been involved in this act.” J. Gallegos Response ¶ 19, at 7.

         10. The Troup Response.

         Troup identifies specific statements that he finds objectionable. See Troup Response ¶¶ 4-18, at 2-4. The Troup Response repeats the B. Garcia Response's objections to Samuel Gonzales', Fred Quintana's, and Ben Clark's anticipated testimony relating Troup's, DeLeon's, and J. Gallegos' out-of-court statements. Compare Troup Response ¶¶ 19-21, at 5, with B. Garcia Response ¶¶ 13, 16-17, at 6-8. The Troup Response also repeats the B. Garcia Response's general objections. Compare Troup Response ¶¶ 2-3, 22-23, at 1-2, 6, with B. Garcia Response ¶¶ 2-3, 20-21, at 2, 9.

         11. The Patterson Response.

         Patterson objects to the admissibility of specific James Proffer statements as against him. See Patterson Response ¶¶ 5-29, at 2-12. Patterson identifies only one statement in the James Proffer which refers to him, and avers that, because the statement “identifies the declarant with a 50% accuracy at best, ” it is inadmissible. See Patterson Response ¶ 4, at 2. Otherwise, the Patterson Response echoes the B. Garcia Response. Compare Patterson Response ¶¶ 2-3, 30-31, at 1-2, 12, with B. Garcia Response ¶¶ 2-3, 20-21, at 2, 9.

         12.The Hearing.

         The Court began its James hearing on March 12, 2018, by articulating its understanding of the James Notice and the James Proffer:

So what I understand -- let's just review for a second -- in the first trial we had the Government provide a witness that -- Mr. Acee, I think, primarily, but I think it was also some other FBI agents that testified, and so they were subject to cross-examination; so that we could get through that and get to the preparation of the first trial, the Government agreed to the defendants' request to provide a list of James statements for Trial 2. So they were treated differently.
Now, my understanding was that that was to facilitate what we were doing today, so the defendants would have in hand all the James statements. And then what we would be focusing on today would be maybe statements that defendants wanted me to look at more closely, that they felt did not fall within the co-conspirator exception to the hearsay rule.
So, if the James hearing is proceeding differently than what I understand it to be, if we're going to do the same thing we did the first trial, y'all can let me know.

         March 12 Tr. at 57:3-24 (Court). The United States responded that “my understanding is that the table is now, in essence, supposed substitute for the testimony, so that we have the James statements in an easier to read and easier to understand format than what we did the first time by merely putting on testimony.” March 12 Tr. at 58:21-59:1 (Castellano). The United States added that, “[i]f our agents were to testify, I think they would testify consistently with the statements in the table. So we could do that, but I think that's what the table does, it substitutes for the testimony of those statements.” March 12 Tr. at 59:1-5 (Castellano). The United States then described several exhibits:

These exhibits are each of the plea agreements of various people who have pled guilty in this case. And so in terms of establishing the existence of the conspiracy, and tying various defendants to the conspiracy, what I've done is submitted -- or I'm proposing to submit, at this point, Government's Exhibit 11 through 18. And I'll give the Court the names of each of the exhibits:
Government's Exhibit 11 is the plea agreement for Leonard Lujan.
Exhibit 12 is the plea agreement for Benjamin Clark.
Exhibit 13 is the plea agreement for Ruben Hernandez.
Exhibit 14 is the plea agreement for Javier Alonso.
Exhibit 15 is the plea agreement for Eugene Martinez.
Exhibit 16 is the plea agreement for Paul Rivera.
Exhibit 17 is the plea agreement for Brandy Rodriguez.
And Exhibit 18 is the plea agreement for Santos Gonzalez.
And I would move their admission at this time for purposes of the James hearing.

         March 12 Tr. at 60:3-61:4 (Castellano). B. Garcia objected to the admission of those exhibits, because

these are documents drafted, I believe, by the Government. They all appear to be the same typeset, same language, et cetera. So these are documents that the Government wrote up in a fashion. So I don't believe that satisfies the requirements under 801 to show the establishment of the conspiracy. I mean, it has to be something more than the Government's statements that there is a conspiracy; there has to be some evidence and foundation of that.

         March 12 Tr. at 61:21-62:5 (Castle). The Court noted -- and B. Garcia conceded -- that “these are plea agreements that were signed, under oath, by the defendants that have been identified[.]” March 12 Tr. at 62:7-9 (Court). See id. at 62:10 (Castle). B. Garcia asserted, however:

They are signed under oath. But what they don't say is: This is a full and complete statement of the facts as they know it concerning the conspiracies. And so they're partial statements drafted by the Government for signature by the defendants, so they're not complete. But those are our objections.

         March 12 Tr. at 63:15-21 (Castle). B. Garcia also specifically objected to the admittance of B. Rodriguez' and Gonzalez' plea agreements, because B. Rodriguez and Gonzalez will not testify at trial. See March 12 Tr. at 63:22-64:4 (Castle). Other Trial 2 Defendants joined in those objections. See March 12 Tr. at 64:8-10 (Benjamin); id. at 64:13-17 (Burke); id. at 65:9-11 (Solis). The Court overruled those objections and admitted the United States' exhibits, reasoning: “I'm simply determining that I think I can -- that's competent evidence I can consider for a James hearing, so I'll admit it into evidence.” March 12 Tr. at 65:17-19 (Court). See id. at 65:13-17 (Court).

         The Court later indicated that “it seems to me that if you take what's in the plea agreement, probably there is enough there to find a conspiracy. And I would group them around the different murders.” March 12 Tr. at 80:11-15 (Court).

So I would assume those are the conspiracies the Government is going to prove is the murder to kill Mr. Burns, the murder to kill Mr. Castillo, you know, that those would be the conspiracies. And then we need to be clear, that means I have to find who is a member of that conspiracy, and then we begin to focus then on the statements to make sure that the declarant was a member of that conspiracy, and that the statement was made during and [in] furtherance of the conspiracy.

         March 12 Tr. at 80:15-24 (Court). The Court asked the United States, however, to “tell me how many conspiracies that you're going to try to establish in the case, who you allege [the] members to be.” March 12 Tr. at 87:13-15 (Court). The United States agreed to do so:

         MR: CASTELLANO: Sure, Your Honor. Let's give it a shot.

Let me start with the indictment, because as we go through any reports or anything else, there will be additional members of the conspiracy. For example, someone may have passed the paperwork. Starting with the indictment, just in terms of branding some of these conspiracies, so Count 1 involves the Castillo murder, and it's currently charged as Angel DeLeon, Joe Gallegos, Edward Troup, Leonard Lujan, and Billy Garcia. And I'll go back and fill in the other blanks. But in terms of laying out the framework, I'll give the Judge the initial names.
So count 2.
. . . .
MR. CASTELLANO: Count 2 is the Garza murder.
. . . .
MR. CASTELLANO: For starters, we have Leonard Lujan.
. . . .
MR. CASTELLANO: Billy Garcia.
THE COURT: Okay.
MR CASTELLANO: Eugene Martinez, who has also pled guilty.
Allen Patterson.
THE COURT: Okay.
MR. CASTELLANO: And Christopher Chavez.
THE COURT: Okay.
MR. CASTELLANO: Count 3 is Freddie Sanchez.
THE COURT: Okay.
MR. CASTELLANO: Javier Alonso is the first person there, and he's pled guilty.
THE COURT: Okay.
MR. CASTELLANO: Next is Edward ...

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