The opinion of the court was delivered by: Monti Belot Monti L. Belot United States District Judge
This case comes before the court on the admissibility of certain statements made by alleged coconspirators. The court held hearings on February 13, 2013, to determine the admissibility of the statements. Shane Webb, a deputy sheriff, Jay Bice, a detective with the Dodge City police department, and James Nau, an agent with the Kansas Department of Revenue, testified as witnesses. The court explained to defendants present at the hearings*fn1 their rights to testify and/or call witnesses. After consulting with counsel, defendants declined to testify or call witnesses. Subsequent to the hearings, defendants filed supplemental memoranda in objection to the admissibility of the statements.*fn2 (Docs. 526, 527, 528*fn3 , 532, 533, 534, 537, 538, 539, 543). The government filed responses in support of the admissibility of the statements. (Docs. 540, 588).
I. Facts and Procedural History
On April 16, 2012, the grand jury returned an indictment against 23 defendants. The indictment alleges 38 counts, including charges of violent crimes in aid of racketeering, conspiracy and felon in possession of a firearm. The indictment alleges that defendants were in a criminal organization, the Nortenos gang, whose members engaged in narcotics distribution and acts of violence involving murder and robbery. These crimes are alleged to have been committed in Dodge City, Kansas. The indictment further alleges that the racketeering conspiracy began in 2008 and continued through the date of the indictment.
Eight defendants are charged in count 1 with conspiracy to commit racketeering activities in violation of 18 U.S.C. § 1962(d). The RICO conspiracy alleged in count 1 occurred from 2008 through April 16, 2012. Counts 2, 8, 10, 15, 19, 24 and 28 charge VICAR conspiracies in violation of 18 U.S.C. § 1959. The remaining counts allege VICAR substantive offenses along with charges of possession of a firearm in furtherance of a crime of violence. The government seeks to introduce 15 statements concerning seven different events charged in the indictment.
Statements 1a, 1b, 1c, 2a, 2b and 2c
On June 8, 2009, a robbery occurred at 1005 Avenue E in Dodge City, Kansas. Four to six individuals were armed and broke into the residence. The victims in the home were from Guatemala. Witnesses to the crime identified the following four defendants as the individuals who committed the robbery: Jesus Flores, Joshua Flores, Pedro Garcia and Gonzalo Ramirez. During the robbery, Ramirez hit a victim on his head with a pistol and forced him into a room to look for money. The Dodge City police department had seen similar crimes against victims from Guatemala.
A confidential witness informed police that prior to the robbery Jesus and Joshua Flores, Pedro Garcia and Gonzalo Ramirez were all at 1302 Avenue D, Garcia's residence. Garcia or Ramirez made the statement "lets go look for a house." (Exh. 1, statement 2a). The four defendants then left Garcia's residence on foot and walked south to the alley until they were behind 1005 Avenue E. Ramirez looked in the back window and said "let's kick this one" or "let's do this house." (Exh. 1, statement 2b). Defendants then went around to the front and robbed the victims. All four defendants participated in the robbery and then returned to Garcia's residence to divide the money. With the exception of Joshua Flores, the witness informed police that Jesus Flores, Pedro Garcia and Gonzalo Ramirez split the proceeds from the robbery.
There were other Nortenos gang members in Garcia's residence after the robbery, including defendants Anthony Wright and Russell Worthey. Shortly after the robbery and while in Garcia's basement, Garcia or Ramirez said "let's go get some scraps." (Exh. 1, statement 1a). "Scraps" is a derogatory term towards a Surenos gang member, a rival gang to the Nortenos. Officer Webb testified that the statement meant that they were going to confront Surenos' gang members. Garcia and Ramirez then left the house with Wright and Worthey. The four defendants got into Wright's vehicle armed with firearms. While driving, Garcia told Wright to go east in order to avoid the cops in Dodge City who were in the area of the robbery. (Exh. 1, statement 2c).
Garcia, Ramirez, Wright and Worthey drove to a mobile home park at 201 E. McCarter in Dodge City. The area is located on the South side of Dodge City and is considered to be more likely to be lived in by Surenos gang members. They proceeded to lot number 24 where a group of individuals, Israel Peralta, Mariano Sorano, Faustino Peralta and Roberto Arco, were drinking alcohol. Ramirez and Garcia fired their weapons at the four individuals killing Israel Peralta. The four defendants fled in the vehicle and drove back to Garcia's residence. In the vehicle, Ramirez said to Garcia, "you really got that one." (Exh. 1, statement 1b). Garcia then told Wright and Worthey to "remember [that] you have kids." (Exh. 1, statement 1c). Wright informed deputy Webb that he interpreted Garcia's statement as a threat toward his family and an instruction to not say anything about the shooting.
On March 15, 2011, a shooting occurred at 1705 Ave D in Dodge City. The victim, Reyes Delera Padilla, a Surenos gang member, reported that a red Lincoln pulled up and an individual "threw up" Norteno gang signs. Padilla went inside his home to ensure the safety of his family. Padilla then left his home and observed the red Lincoln parked around the corner. At that time, Padilla heard a gunshot. Padilla got into his vehicle and rammed it into the red Lincoln to "mark it." Padilla then called his brother-in-law who immediately came to the Padilla's home. Padilla observed a tan Lincoln parked with two passengers approximately two houses down from his house. Padilla parked in the driveway which is located in the back alley. Padilla and his brother-in-law were on the south side of the house when Padilla observed an individual a couple of houses away, saw a muzzle flash, and heard gunshots. The tan Lincoln then drove down the alleyway behind the house. At some point, Padilla's wife called 911.
The tan Lincoln was stopped by Sergeant Meridian approximately one block away. Defendant Donte Barnes was the sole occupant and driver of the tan Lincoln and he was placed under arrest. Defendant Alfredo Beltran-Ruiz was arrested on a probation violation at a later date. On March 20, Laura Rodriguez, defendant Enrique Gobin's mother, visited Beltran-Ruiz when he was in custody. During the visit, Rodriguez asked Beltran-Ruiz, where "it" was. Beltran-Ruiz told Rodriguez to go to defendant Humberto Ortiz' house and that "it" was under the lawnmower in the shed. (Exh. 1, statement 3). Law enforcement officers went to the location and retrieved a .22 caliber revolver under the lawnmower.
On March 25, 2011, Beltran-Ruiz was visited at the jail by an individual named Destiny. The following conversation occurred:
Beltran stated: What time Snipes have court on the 7th?
Destiny replies: What time's what.
Beltran states: What time does home boy got court on the 7th?
Destiny states: Fuck if I know. His lady called, like, oh, my God, he has court. And I'm like, all right.
Beltran states: For real. Call her and be like, oh, my God.
Destiny states: Not -- when he got locked up, she called me crying and was like why isn't Alfredo locked up, I thought they were together.
Beltran stated: Yeah, we were, but I know how to run. (Tr., Doc. 573 at 75, 76); (Exh. 1, statement 3a).
On March 30, George Gonzalez, a high ranking member of the Surenos, was approached by Jesus Sanchez, Enrique Gobin, Alfonso Banda-Hernandez and Andrew Gusman while he was getting gas at an East Love's gas station. Defendants gave gang signs and slurs. Gonzalez left the Love's and began driving to his girlfriend's house. Gonzalez saw a Blazer and recognized Banda-Hernandez as the individual driving. A green Plymouth also began following Gonzalez. The Plymouth contained Gobin, Sanchez and an individual named Yesenia Rios. Sanchez called Banda-Hernandez on his cell phone and told him to "come where they are." (Exh. 1, statement 4a). The two vehicles followed Gonzalez around town. The driver*fn4 of Gonzalez' vehicle tried to speed up. At some point, Gonzalez exited the car and walked towards his girlfriend's house. Gonzalez saw the Plymouth and the individual in the rear passenger seat fired shots.
Later, Yesenia Rios was interviewed and stated that Jesus Sanchez shot at Gonzalez from the back seat. At the time of the shooting, Rios was under the influence of alcohol. Banda-Hernandez was interviewed by police and stated that after the shooting, Sanchez called him by cell phone and told him to get out of the area because "it will be getting hot." (Exh. 1, statement 4c). They immediately left the area and met up at an unknown ...