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United States v. Tolbert

United States District Court, D. New Mexico

July 5, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
DONALD ALVIN TOLBERT, Defendant.

          MEMORANDUM OPINION AND ORDER

         This matter came before the Court at a James hearing held on July 2, 2019 regarding the United States' Motion to Admit Co-Conspirator Statements Pursuant to Rule 801(d)(2)(E) [Doc. 174]. Both parties were represented by counsel, and Defendant was present at the hearing. The Court considered the motion, response, reply, as well as the arguments of counsel and evidence presented at the hearing. At the conclusion of the hearing, the Court ruled that the Government had met its burden to prove the first two elements of the test for admission of co-conspirator statements.

         DISCUSSION

         The Government seeks an order in limine admitting statements allegedly made by Tolbert and others through a public online profile, “Yungmuffman, ” on IMGSRC.ru, as well as in email messages. According to the evidence proffered by the Government, through a chat on IMGSRC.ru and via email messages, Tolbert and others indicated their sexual interest in children, their desire to receive and possess child pornography, as well as images and videos containing child pornography.

         I. Legal Standard

         Rule 801(d)(2)(E) provides that “[a] statement is not hearsay if ... [t]he statement is offered against a party and is ... a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.” Statements by a conspirator are in furtherance of the conspiracy when they are “intended to promote the conspiratorial objectives.” United States v. Reyes, 798 F.2d 380, 384 (10th Cir. 1986) (quotation omitted). Such promotion of a conspiracy occurs through “statements that explain events of importance to the conspiracy in order to facilitate its operation, ” United States v. Smith, 833 F.2d 213, 219 (10th Cir. 1987), “‘[s]tatements 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, '” id. (alteration in original) (quoting United States v. Gomez, 810 F.2d 947, 953 (10th Cir. 1987)), and “‘[s]tatements of a coconspirator identifying a fellow coconspirator'” id. (alteration in original) (quoting United States v. Handy, 668 F.2d 407, 408 (8th Cir. 1982)).

         Proper application of Fed.R.Evid. 801(d)(2)(E) requires the Court to make three factual findings before allowing the coconspirator statement into evidence. United States v. Urena, 27 F.3d 1487, 1490 (10th Cir. 1994). By a preponderance of the evidence, “[t]he court must determine that (1) ... a conspiracy existed, (2) the declarant and the defendant were both members of the conspiracy, and (3) the statements were made in the course of and in furtherance of the conspiracy.” Id.; United States v. Stipe, 653 F.2d 446, 449 n.4 (10th Cir. 1981). Although the Court may base its findings, at least in part, upon the coconspirator statements at issue, the Court may not base its findings solely upon the coconspirator statements. Fed.R.Evid. 801(d)(2); United States v. Lopez-Gutierrez, 83 F.3d 1235, 1242 (10th Cir. 1996). See generally Bourjaily v. United States, 483 U.S. 171 (1987). In other words, there must be some independent, corroborating evidence. See Lopez-Gutierrez, 83 F.3d at 1242. The Tenth Circuit has defined independent evidence as “evidence other than proffered coconspirator statements themselves.” United States v. Owens, 70 F.3d 1118, 1125 (10th Cir. 1995) (citing United States v. Martinez, 825 F.2d 1451, 1453 (10th Cir. 1987)) (internal brackets omitted).

         Under Tenth Circuit law, a district court may admit co-conspirator statements if it holds a James hearing or conditions admission on forthcoming proof of a “predicate conspiracy through trial testimony or other evidence.” United States v. Owens, 70 F.3d 1118, 1123 (10th Cir. 1995). The Tenth Circuit has repeatedly mentioned its “strong preference for James proceedings.” United States v. Gonzalez-Montoya, 161 F.3d 643, 648 (10th Cir. 1998); United States v. Lopez-Gutierrez, 83 F.3d 1235, 1242 (10th Cir. 1996); Owens, 70 F.3d at 1123.

         II. Analysis

         A. 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). The Court notes that some of the statements that the Government seeks to admit are not hearsay, either because they are not offered for their truth or they are the statements of a party opponent.

         Furthermore, as explained below, other statements may not constitute hearsay because they are co-conspirator statements under Rule 801(d)(2)(E).

         B. Existence of a Conspiracy

         The elements of conspiracy 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. United States v. Rutland, 705 F.3d 1238, 1250 (10th Cir. 2013). “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.

         As explained on the record at the hearing, the Court concludes that the Government has met its burden to show by a preponderance of the evidence that there was a conspiracy to possess, send, receive, produce, and distribute child pornography, as well as a conspiracy to evade detection by law enforcement. Evidence of the conspiracy includes the IMGSRC.ru profile and its associated chats and images, forensic evidence that Tolbert created the IMGSRC.ru profile, evidence of email messages between Tolbert and others regarding child pornography and child ...


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