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United States v. Starks

United States District Court, D. Kansas

March 29, 2019

United States of America, Plaintiff,
v.
Devonte Jemell Starks, Defendant.

          MEMORANDUM AND ORDER

          J. THOMAS MARTEN, JUDGE

         This matter is before the court on defendant Devonte Jemell Starks's Motion in Limine challenging certain evidence of the government. The drug trafficking and conspiracy case arose after two cars were stopped on I-70 on September 17, 2018. According to the submissions by the parties, there were two occupants in each of the cars - a Chevy Impala driven by Starks, with Kevin Scott as passenger; and a black Camry, driven by Lamika Watt, with Toya Avery as passenger. According to the officers on the scene, the cars appeared to both travelling together, and too closely to other vehicles.

         The occupants of the cars were interviewed separately. Watt and Avery denied knowing anything about the Impala or its occupants. The women said they had been on a work trip out West, and were returning from Colorado. The investigating officer (Trooper Goheen) smelled marijuana, asked for permission to search the vehicle, Watt consented, and the officer found a large suitcase in the trunk which (due to its weight) he believed to contain narcotics. Both women were arrested, the car impounded, and the suitcase later found to contain 2 kilograms of fentanyl and 4 kilograms of heroin.

         The Impala was stopped six miles away by another officer, Trooper Birney. Goheen told Birney that Turnpike records from September 13 (four days earlier) showed the two vehicles had entered the Kansas Turnpike at almost the same time. Birney asked Starks about this, but Stark denied knowing anything about the Camry. Having found the suitcase in the Camry, Goheen told Birney to detain Starks and Scott.

         Starks and Scott were separately interviewed by DEA agents in Russell, Kansas. Starks produced a valid Arizona driver's license, and said he was returning from Phoenix, Arizona to visit his son.

         Scott, who presented a valid Ohio driver's license, was much more expansive. He originally denied knowing Avery or Watt, but, after being confronted with the turnpike records, he consented to the agents looking at his cell phone. The phone showed calls to Watt's phone. Scott then said he had been paid $4000 to drive to Phoenix to pick up a load of drugs to transport back to Cleveland, Ohio, that he was going to pay the women for their help. Scott said Starks had no communication with the women and that his fingerprints would not be on the suitcase or the bundles containing the drugs. However, he did say that Starks knew the drugs were in the Camry.

         The occupants of the car were later released. Watt and Scott are currently fugitives.

         1. Scott's Statement

         Defendant argues that Scott's statement implicating him is hearsay, and that it is not admissible under Rule 801(d)(2)(E). He contends (Dkt. 37, at 8-9) that the statement could not be in furtherance of the conspiracy because he made it “after being detained.”

         (Immediately prior to this argument, Starks also notes that under Rule 801(d)(2)(E) a co-conspirator's statements are admissible if the court finds the existence of a conspiracy by a preponderance of the evidence adding in a parenthesis “a point we vociferously contest.”

         However, this is the only mention defendant makes as to the issue- he makes no argument about the subject and does not discuss the facts relating to the issue. The court finds there is sufficient evidence for a preponderance of the evidence finding. On two separate occasions, four days apart and at separated by hundreds of miles (the Bonner Springs turnpike entrance and near Russell, Kansas) the two cars were observed to be travelling basically in lockstep. Coupled with other evidence (the here uncontested seizure of drugs from the suitcase in the Camry, and the uncontested portion of Scott's statement, that the two cars were in fact travelling together).

         The government responds by citing a variety of cases holding that the “in furtherance of a conspiracy element” does not terminate automatically on the basis of an arrest:

“But ‘a conspiracy does not end simply because one conspirator has been arrested,' . . . United States v. Melton, 131 F.3d 1400, 1405 (10th Cir. 1997). When a conspiracy is ongoing, statements that relate to ‘avoiding detection by law enforcement personnel' can be in furtherance of the conspiracy. [United States v.] Williamson, 53 F.3d 1500, 1520 (10th Cir. 1995); see United States v. Wolf, 839 F.2d 1387, 1393 (10th Cir. 1988) (‘[C]oncealment of the crime done in furtherance of the main criminal objectives of the conspiracy falls within the coconspirator exception.').” United States v. Alcorta, 853 F.3d 1123, 1139 (10th Cir. 2017).

(Dkt. 42, at 11). The government also suggests that the statement may be admissible as part of a conspiracy ...


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