United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL, District Judge.
This matter comes before the Court on Defendant Roosevelt Rico Dahda's Motion For A James Hearing To Determine The Admissibility Of Extra Judicial Statements Of Alleged Co-Conspirators (Doc. #1090), Defendant Roosevelt Rico Dahda's Motion For Notice Of Co-Conspirator Statements (Doc. #1092), Defendant Roosevelt Rico Dahda's Motion In Limine To Exclude Evidence Of Guilty Pleas By Non-Testifying Co-Defendants (Doc. #1094), Defendant's Motion Pursuant To Rule 7(f) Of The Federal Rules Of Criminal Procedure For A Bill Of Particulars (Doc. #1096), Defendant Roosevelt Rico Dahda's Motion To Exclude Co-Conspirators' Testimonial Statements (Doc. #1098), Defendant Roosevelt Rico Dahda's Motion For Notice Of The Government's Intent To Offer Rule 404(B) Evidence At Trial (Doc. #1100), Defendant Roosevelt Rico Dahda's Motion To Disclose Confidential Informants (Doc. #1102), Motion By Defendant For An Order Requiring That The Government Produce And Allow Inspection Of The Grand Jury Transcripts And Minutes Which Resulted In His Indictment (Doc. #1106), Defendant Roosevelt Dahda's Motion To Exclude Bruton Evidence (Doc. #1108), Defendant Roosevelt Dahda's Motion For Disclosure Of Exculpatory Evidence, Plea Agreements And Impeachment Materials And Supporting Memorandum (Doc. #1109), and Motion To Allow Defendant's Case Agent/Investigator To Not Be Subject To Sequestration Rule (Doc. #1110), all filed November 26, 2013. The government has filed a consolidated response to the motions. See Government's Consolidated Response To Defendants' Motions ("Government's Response") (Doc. #1179) filed February 6, 2013.
I. Motion For A James Hearing (Doc. #1090)
Defendant asks 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 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 expected testimony and exhibits, it will be able to establish a conspiracy, that defendant was a member of the conspiracy and that the declarations made by other co-conspirators were made during the course of and in furtherance of the conspiracy.
Based on the government's representations, the Court finds that defendant's motion for a James hearing should be overruled. The Tenth Circuit has approved forgoing a James hearing and allowing the conditional admission of co-conspirator statements, subject to the government "connecting up" the statements at a later point in trial. Pinto , 838 F.2d at 433. 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, defendant will suffer no discernable prejudice if the evidence is conditionally admitted at trial. The Court overrules defendant's request for a pretrial hearing on the admissibility of co-conspirator statements.
II. Motion For Notice Of Co-Conspirator Statements (Doc. #1092)
Defendant seeks immediate disclosure of all co-conspirator statements. See Memorandum In Support Of Defendant Roosevelt Rico Dahda's Motion For Notice Of Co-Conspirator Statements (Doc. #1093) filed November 26, 2013 at 2. The government requests that the Court allow it to produce a proffer statement before trial that will outline the testimony and evidence that it will use to establish the conspiracy. See Governments' Response (Doc. #1179) at 5. The government states that in the proffer, it will include the specific statements that it will offer under Rule 801(d)(2)(E) and a concise summary of other evidence sufficient to meet its burden under the rule. See id. The Court agrees with the government's suggested approach. On or before April 14, 2013, the government shall provide the proffer statements.
III. Defendant's Motion In Limine To Exclude Evidence Of Guilty Pleas By Non-Testifying Co-Defendants (Doc. #1094)
Defendant seeks to exclude any reference to a co-defendant's guilty plea during voir dire, opening statement or at any other stage of the trial until and unless that co-defendant testifies. The government does not specifically object to such an order. See Governments' Response (Doc. #1179) at 5-6. Accordingly, the Court sustains defendant's motion to exclude evidence of guilty pleas of co-defendants until and unless that co-defendant testifies.
IV. Defendant's Motion For A Bill Of Particulars (Doc. #1096)
Defendant seeks a bill of particulars which sets forth the following: (1) the persons present when the alleged conspiracy was formed; (2) the terms of the conspiratorial agreement; (3) the location(s) at which the conspiracy was formed; (4) the identities of all known but unidentified co-conspirators referred to in the Indictment; (5) the manner in which the conspiracy was designed to achieve its purposes and goals; (6) the locations of any and all meetings or conspiratorial conversations in which any defendant, including Mr. Dahda, and/or any known but unidentified co-conspirators allegedly participated; (7) the approximate dates in which Mr. Dahda, each co-defendant and each known but unidentified co-conspirator joined the conspiracy; and (8) the particulars of all meetings and conversations in which any defendant, including Mr. Dahda, participated in the conspiracy, including without limitation the names of all persons that the government will claim at trial were ...