United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
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.
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.
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)).
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
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.
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.
as explained below, other statements may not constitute
hearsay because they are co-conspirator statements under Rule
Existence of a Conspiracy
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.
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 ...