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United States v. Perez-Alcala

United States District Court, Tenth Circuit

July 11, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
EDUARDO PEREZ-ALCALA, et al., Defendants.

MEMORANDUM AND ORDER

KATHRYN H. VRATIL, District Judge.

This matter is before the Court on Defendant Ataven Tatum's Motion For A Pre-Trial James Hearing (Doc. #763), Defendant Vernon Brown's Motion For Disclosure Of Co-Conspirator Statements (Nature Of And Time And Place/James Hearing); Production In Advance Of Trial Of A Videocopy Of Government's Exhibit N-93 With Masked Or Dubbed Sound To Protect CI's Identity; And For A Thirty Day Continuance Of Trial Setting (Doc. #766), Defendant Carlos Gilchrist's Motion For A Pre-Trial James Hearing (Doc. #767) and Defendant Harris' Motion For Severance With Points And Authorities In Support (Doc. #771). For reasons stated below and substantially the reasons stated in the government's Consolidated Response To Defendants' Pretrial Motions (Doc. #869) and Government's Response To Defendant Harris' Motion For Severance (Doc. #866), the Court overrules defendants' motions.

Analysis

I. Motions For Hearing On Co-Conspirator Statements (Doc. #763, #766 and #767)

Defendants ask the Court to hold a pretrial hearing pursuant to United States v. James , 590 F.2d 575, 579-80 (5th Cir. 1979), to determine the admissibility of co-conspirator statements. The Tenth Circuit recommends the use of a pretrial hearing to determine that a conspiracy existed before statements of co-conspirators are admitted at trial pursuant to Fed.R.Evid. 801(d)(2)(E). The government argues, however, that the provisional admission of co-conspirators' statements in this case will be more expeditious than a pretrial hearing. See United States v. Pinto , 838 F.2d 426, 433 (10th Cir. 1988) (upholding conditional admission of statements, subject to government "connecting up" later).

Under the Federal Rules of Evidence, a conspirator's statement is not hearsay if -
The statement is offered against an opposing party and: (E) was made by the party's coconspirator during and in furtherance of the conspiracy. The statement must be considered but does not by itself establish... the existence of the conspiracy or participation in it under (E).

Fed R. Evid. 801(d)(2). Thus, before admitting co-conspirator statements, the Court must determine by a preponderance of the evidence that (1) a conspiracy existed, (2) defendant and declarant were members of the conspiracy, and (3) declarant made the statements during the course of and in furtherance of the conspiracy. See United States v. Thornburgh , 645 F.3d 1197, 1210 (10th Cir. 2011). In making its preliminary factual determination as to whether a conspiracy exists, the Court may consider the proffered statement, along with independent evidence tending to establish the conspiracy. United States v. Lopez-Guttierrez , 83 F.3d 1235, 1242 (10th Cir. 1996) (court may consider co-conspirator statements in determining existence of conspiracy) (citing Bourjaily v. United States , 483 U.S. 171 (1987)). The government asserts that based on the extensive discovery already provided to defense counsel, it will be able to establish a conspiracy.

The Court finds that defendants' motions for a James hearing should be overruled. The Tenth Circuit has approved of forgoing a James hearing and allowing conditional admission of co-conspirator statements, subject to the government "connecting up" the statements at a later point in trial. See Pinto , 838 F.2d at 433. The government has provided substantial discovery in this case. At this point it appears that a James hearing would essentially duplicate the voluminous evidence at trial. Accordingly, such a hearing would waste judicial resources - and those of counsel - with little resulting gain. Furthermore, defendants will suffer no discernable prejudice if the evidence is conditionally admitted at trial. The Court overrules defendants' request for a pretrial hearing on the admissibility of co-conspirator statements.

Defendants also ask for immediate disclosure of all co-conspirator statements. The government states that ten days before trial, it intends to provide interview reports of cooperating witnesses and defendants. The government notes that trial is expected to take three to four months and that it does not expect to present any cooperator testimony in the early stages of its case. The government's proposed disclosure schedule appears to be a reasonable balance between the safety concerns of cooperating witnesses and the need for defendants to prepare their defense. Accordingly, the Court overrules defendant's request for immediate disclosure of co-conspirator statements.

Brown makes a vague request for "specificity other than the general allegations" contained in the government's factual basis which it has attached to the plea agreements of many of the co-defendants in this case. Defendant Vernon Brown's Motion For Disclosure (Doc. #766-1) at 3-4. Defendant seeks the nature of, and time and place, of his alleged acts in the conspiracy to distribute powder or crack cocaine. Defendant essentially seeks a bill of particulars. For substantially the reasons set forth in the government's Consolidated Response To Defendants' Pretrial Motions (Doc. #869), the Court finds that defendant is not entitled to a bill of particulars. See United States v. Avant, No. 11-10256-MLB, 2012 WL 3234487, at *2-3 (D. Kan. Aug. 6, 2012) (defendant not entitled to precise dates when he joined conspiracies and to know entirety of government case and how case will be presented); United States v. Biglow, No. 07-10221-MLB, 2011 WL 6026142, at *1-2 (D. Kan. Dec. 5, 2011) (defendant not entitled to location of conspiracy, manner in which designed, persons present when formed, terms of agreement, particulars and locations as to all meetings, and date when defendant joined conspiracy); United States v. Molina, No. 09-40041-RDR, 2010 WL 2346393, at *5 (D. Kan. June 9, 2010) (defendant not entitled to require government to provide bill of particulars which sets forth "whens, wheres and with whoms of acts and participation in the charged conspiracy") (quoting United States v. Riggins, No. 07-40055-04, 2008 WL 558087, at *2 (D.S.D. Feb. 29, 2008)).

The information requested by defendant is in the nature of a discovery request, not an attempt to avoid unfair prejudice. In light of the government's claim as to the information which it has disclosed to defendant, the Court does not believe that a bill of particulars is necessary. Defendant has not shown that a bill of particulars is necessary to provide an adequate defense, or to avoid prejudicial surprise or double jeopardy problems.[1]

II. Motion To Sever (Doc. #771)

Thomas Harris seeks to sever his trial from the trial of the remaining co-defendants.[2] Count 1 charges that from January of 2009 to May 31, 2012, Harris and 49 other individuals conspired to commit controlled substance violations. Count 60 charges that Harris, Jorge Cisneros-Saucedo, Francisco Javier Lozoya-Renteria and Nolberto Garcia ...


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