United States District Court, D. Kansas
MEMORANDUM AND ORDER
THOMAS MARTEN, JUDGE
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.
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.
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.
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.
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
occupants of the car were later released. Watt and Scott are
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
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.”
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
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 ...