United States v. Barker

• Decision Date: 25 November 1985
• Docket Number: Crim. A. No. 85 CR 161.
• Citation: 623 F. Supp. 823
• Parties: UNITED STATES of America, Plaintiff, v. Merle Douglas BARKER, Danny Edgar Hiles, Kim Lincoln Henry, Jean Reagan Odle, Michael Donn Bennett, and Elton Lite Townsend, Defendants.
• Court: U.S. District Court — District of Colorado

623 F. Supp. 823

UNITED STATES of America, Plaintiff, v. Merle Douglas BARKER, Danny Edgar Hiles, Kim Lincoln Henry, Jean Reagan Odle, Michael Donn Bennett, and Elton Lite Townsend, Defendants.

Crim. A. No. 85 CR 161.

United States District Court, D. Colorado.

November 25, 1985.

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Robert N. Miller, U.S. Atty., William D. Welch, Dawn Bowen, Asst. U.S. Attys., Denver, Colo., for U.S.

Arthur S. Nieto, Denver, Colo., for defendant Merle Douglas Barker.

David L. Worstell, Denver, Colo., for defendant Danny Edgar Hiles.

Chris Melonakis, Jeffrey L. Romeo, Northglenn, Colo., Gary G. Colbath, Rapid City, S.D., for defendant Kim Lincoln Henry.

Addison Spike Adams, Denver, Colo., for defendant Jean Reagan Odle.

Louis A. Weltzer, Denver, Colo., for defendant Michael Donn Bennett.

Mitch Geller, Denver, Colo., for defendant Elton Lite Townsend.

MEMORANDUM OPINION AND ORDER

SHERMAN G. FINESILVER, Chief Judge.

This matter is before the Court on several pretrial motions which have been filed by the defendants. An evidentiary hearing was held on July 24, 1985, at which time the Court entered rulings on several of the motions. Those rulings have been expanded upon in this Memorandum Opinion and Order. In addition, orders have been entered nunc pro tunc in the grand jury and suppression motions that the Court took under advisement following the hearing.

The six defendants in this case have been named in a four count indictment charging violations of federal narcotic laws. These include 21 U.S.C. § 846; 21 U.S.C. § 843(b); and 21 U.S.C. § 841(a)(1). The indictment was the result of an extensive investigation conducted by federal and state law enforcement officers. This investigation ultimately resulted in twenty-three defendants being charged in five indictments for drug-related offenses involving cocaine, marijuana, and methamphetamines. Each of the defendants in this case subsequently entered pleas of guilty and have been sentenced.

The following motions will be addressed by the Court:

1. Motions for a Pretrial Hearing Pursuant to United States v. James;

2. Motions for Relief from Prejudicial Joinder;

3. Motions for Severance;

4. Motion for Relief from Prejudicial Joinder (Bennett);

5. Motions for Disclosure of Confidential Informants;

6. Motions to Dismiss the Telephone Count;

7. Motions to Dismiss for Preindictment Delay;

8. Motions to Dismiss for Breach of Grand Jury Secrecy;

9. Motion to Dismiss Indictment Based Upon Violation of Rule 6(e) of the Federal Rules of Criminal Procedure;

10. Supplemental Motion to Dismiss Grand Jury Indictment Based Upon Breach of Grand Jury secrecy;

11. Motion to Suppress Search Warrants;

12. Motions to Suppress Wiretaps.

I

STANDARDS FOR ADMISSIBILITY OF COCONSPIRATOR STATEMENTS

A. Introduction

During recent years, this Court has frequently been called upon to conduct a pretrial "James" hearing to determine the admissibility of coconspirator statements under Fed.R.Evid. 801(d)(2)(E).¹ In order to assist the bar and the bench, we shall set forth, with some detail, the manner in which this Court determines the admissibility of coconspirator statements. We find that this procedure is fully supported by recent decisions of the Tenth Circuit Court of Appeals. We shall briefly outline this procedure prior to a more complete discussion of the case law.

As set forth below, under certain conditions Rule 801(d)(2)(E) allows hearsay statements of a coconspirator to be admitted against a party at a trial. If the proper foundation is made, then the statements are not considered hearsay under the Federal Rules of Evidence.

The following foundation must be made prior to the admission of the coconspirator statements: (1) that a conspiracy existed; (2) that the declarant and the party against whom the statement is offered were members of that conspiracy; and (3) that the statement was made in the course of and in furtherance of that conspiracy. In this circuit, the court's findings are to be based upon a preponderance of evidence, independent of the statements. If the trial is to a jury, the court's findings must be made on the record. There is no requirement that the court conduct a pretrial hearing to determine the admissibility of the statements, as the court need not make its findings before the trier of fact actually hears the statements. The ultimate order of proof at trial is left to the discretion of the court. Thus, the statements may be "conditionally admitted", subject to being connected to the conspiracy at a later time. The court may postpone any decision as to the admissibility of the statements as evidence to be considered by the trier of fact, until the close of the government's case-inchief.

B. Is a Pretrial Hearing Required Prior to Admitting Coconspirator Statements?

1. Determining the Admissibility of Coconspirator Statements

Rule 801(d)(2)(E) of the Federal Rules of Evidence² allows out-of-court statements of a coconspirator to be admitted against a party, if certain criteria are met. Although often referred to as hearsay, if the criteria are met, the coconspirator statements are not hearsay under the Federal Rules of Evidence.

In United States v. Andrews, 585 F.2d 961 (10th Cir.1978), the Tenth Circuit established the criteria for admissibility of coconspirator statements under Fed.R. Evid. 801(d)(2)(E). The Andrews court held that as a condition for admissibility, the trial court had to consider the coconspirator statement within the context of Rule 104 of the Federal Rules of Evidence.³ Under this criteria, the government had to establish by evidence, independent of the statements, and the Court had to find, that it was more likely than not that: (1) the conspiracy existed; (2) the declarant and the party against whom the statement is offered were members of that conspiracy; and (3) the statements were made in the course of and in furtherance of that conspiracy.⁴

While Andrews established a test to determine the admissibility of coconspirator statements, it did not prescribe a rigid procedure to be followed by the trial court in making this determination. United States v. Petersen, 611 F.2d 1313, 1330 (10th Cir. 1979).

Federal courts have followed several procedures in determining the admissibility of coconspirator statements. See Means v. United States and Roth v. United States, ___ U.S. ___, 105 S.Ct. 541, 83 L.Ed.2d 429 (1984) (White, J., dissenting from denial of certiorari); Arnott v. United States, 464 U.S. 948, 104 S.Ct. 364, 78 L.Ed.2d 325 (1983) (White, J., dissenting from denial of certiorari). The Sixth Circuit has suggested three methods by which a court can make a preliminary determination of the admissibility of coconspirator statements. United States v. Vinson, 606 F.2d 149 (6th Cir.1979), cert. denied sub nom. Thompson v. United States, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 319 (1980). According to Vinson, to make the preliminary finding required by Rule 104, the court may (1) conduct a "mini-hearing", out of the presence of the jury, at which time evidence of the existence of the conspiracy is received, and after which a ruling is made by the court as to the existence of the conspiracy; (2) require the proponent of the evidence to produce non-hearsay evidence prior to making a preliminary finding of the existence of the conspiracy; or (3) conditionally admit the hearsay statements, subject to their being connected to the conspiracy at a later time. Id. at 152. As set out more fully below, we conclude that the Tenth Circuit does not require a "mini-hearing" to be held outside of the presence of the jury. Rather, in this circuit, the coconspirator statements may be conditionally admitted by the trial court.

2. Order of Proof under United States v. James and the James Hearing

One method of determining the admissibility of the coconspirator statements is that which was adopted by the Fifth Circuit in United States v. James, 590 F.2d 575 (5th Cir.1979) (en banc). This method prescribes an order of proof whereby the trial court "whenever reasonably practicable, requires the showing of a conspiracy and of the connection of the defendant with it before admitting declarations of a coconspirator." Id. at 582. However, if the court determines it is "not reasonably practical to require the showing to be made before admitting the evidence, the court may admit the statement subject to being connected" to the conspiracy. Id.

At least one post-James case has suggested that a pretrial James hearing is required prior to the admission of the coconspirator statements. See United States v. Grassi, 616 F.2d 1295, 1300 (5th Cir.), cert. denied, 449 U.S. 956, 101 S.Ct. 363, 66 L.Ed.2d 220 (1980) (James hearing "mandated"). However, other Fifth Circuit decisions have not followed Grassi. See United States v. Ricks, 639 F.2d 1305, 1310 (5th Cir.1981) (failure to hold James hearing not per se reversible error). See also United States v. Roe, 670 F.2d 956, 963 (11th Cir.), cert. denied, 459 U.S. 856, 103 S.Ct. 126, 74 L.Ed.2d 109 (1982) (district court's failure to hold a James hearing, by itself, is not reversible error).

3. United States v. Petersen—The Tenth Circuit Interprets James

The order of proof set forth in James was considered by the Tenth Circuit Court of Appeals in United States v. Petersen, 611 F.2d 1313 (10th Cir.1979). Petersen expanded upon the court's earlier ruling in United States v. Andrews, 585 F.2d 961 (10th Cir.1981) by establishing the following set of rules for determining the admissibility of coconspirator statements. First, as recognized in Andrews, Rule 104(a) requires the judge, not the jury, to determine the admissibility of the statements. Second, generally the trial judge should make a threshold determination of whether or not there is independent evidence of the conspiracy. This threshold determination of admissibility,...