United States v. Leveille

• Docket Number: 18-CR-2945-WJ
• Decision Date: 08 September 2023
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. JANY LEVEILLE, SIRAJ IBN WAHHAJ, HUJRAH WAHHAJ, SUBHANAH WAHHAJ, and LUCAS MORTON, Defendants.
• Court: U.S. District Court — District of New Mexico

1

UNITED STATES OF AMERICA, Plaintiff,
v.
JANY LEVEILLE, SIRAJ IBN WAHHAJ, HUJRAH WAHHAJ, SUBHANAH WAHHAJ, and LUCAS MORTON, Defendants.

No. 18-CR-2945-WJ

United States District Court, D. New Mexico

September 8, 2023

MEMORANDUM OPINION AND ORDER ON THE ADMISSIBILITY OF THE COCONSPIRATOR STATEMENTS THE UNITED STATES INTENDS TO InTRODUCE AT TRIAL PURSUANT TO FED. R. EVID. 801(d)(2)(E)

WILLIAM P. JOHNSON CHIEF UNITED STATES DISTRICT JUDGE

THIS MATTER is before the Court resulting from the James hearing held on July 19, 2023, on the admissibility of the coconspirator statements the United States intends to introduce at trial pursuant to Fed.R.Evid. 801 (d)(2)(E). In addition to testimony from a Government witness, the Court considered the following filings:

• The United States' Notice of Intent to Introduce Out-of-Court Statements, filed October 15, 2019 (Doc. 156)

• The United States' Notice of Lodged Appendix filed October 15, 2019 (Doc. 157)

• Defendants' Amended Motion for Production of Alleged Coconspirator Statements and for a Pre-Trial Hearing on Their Admissibility, filed February 3, 2023 (Doc. 606)

• Defendant Siraj ibn Wahhaj's Joinder to Defendants' Amended Motion for Production of Alleged Coconspirator Statements and for a Pre-Trial Hearing on Their Admissibility, filed

2

February 24, 2023 (Doc. 647)

• The United States' Response to Defendants' Amended Motion for Production of Alleged Coconspirator Statements and for a Pre-Trial Hearing on Their Admissibility, filed February 27, 2023 (Doc. 650)

• Defendant Subhanah Wahhaj's Reply to the United States' Response to Defendants' Amended Motion for Production of Alleged Coconspirator Statements and for a Pre-Trial Hearing on Their Admissibility, filed March 13 2023 (Doc. 678)

• The United States' Supplemental Notice of Intent to Introduce Out-of-Court Statements, filed June 2, 2023 (Doc. 781)

• The United States' Notice of Lodged Appendix filed June 2, 2023 (Doc. 782)

• The United States' Second Supplemental Notice of Intent to Introduce Out-of-Court Statements, filed June 23, 2023 (Doc. 816)

• The United States' Notice of Lodged Appendix, filed June 23, 2023 (Doc. 817)

• Defendant Subhanah Wahhaj's Response in Opposition to the United States' Supplemental Briefing, filed June 25, 2023 (Doc. 819)

• Defendant Lucas Morton's Joinder to Defendant Subhanah Wahhaj's Response in Opposition to the United States' Supplemental Briefing, filed July 6, 2023 (Doc. 833)

• Defendant Hujrah Wahhaj's Objections to the United States' Supplemental Briefing, filed July 7, 2023 (Doc. 836)

• The United States' Third Supplemental Notice of Intent to Introduce Out-of-Court Statements, filed July 16, 2023 (Doc. 850)

• The United States' Closing Statements Regarding Admissibility of Coconspirator Statements, filed August 14, 2023 (Doc. 929)

3

• Defendants' Closing Arguments in Support of Exclusion of Certain Proffered James Statements, filed August 14, 2023 (Doc. 931).

The parties dispute admissibility under Rule 801(d)(2)(E) regarding various coconspirator statements. During the James hearing, the Court heard testimony from Special Agent Travis Taylor, received thirty-five exhibits, and heard arguments from counsel. Having considered the parties' pleadings, the parties' arguments, and the evidence and testimony presented, the Court concludes: (1) the United States has established by a preponderance of the evidence that a conspiracy existed; (2) Defendants and Von Yusuf Leveille were members of the conspiracies; and (3) the statements the United States intends to introduce at trial were made in the course of and in furtherance of the conspiracy. Accordingly, the Court finds that: (1) statements offered for purposes other than their truth are not hearsay and are admissible under Fed.R.Evid. 801; (2) statements made by a party opponent are admissible under Fed.R.Evid. 801(d)(2)(A); and (3) statements made in furtherance of the conspiracies by any named Defendant, as well as those by Von Yusuf Leveille, are admissible as coconspirator statements under Rule 801(d)(2)(E).

BACKGROUND

Defendants^[1] are charged with four conspiracies in the Superseding Indictment (Doc. 85): Conspiracy to Provide Material Support to Terrorists, Conspiracy to Murder an Officer or Employee of the United States, Conspiracy to Commit an Offense Against the United States, and Conspiracy to Commit Kidnapping in violation of 18 U.S.C. §§ 2339A, 1117, 371, and 1201(c), respectively. Because the allegations in this case are lengthy, the Court has produced a summary of the counts from the indictment below:

4

COUNT/ CHARGE	JANY LEVEILLE	SIRAJ IBN WAHHAJ	HUJRAH WAHHAJ	SUBHANAH WAHHAJ	LUCAS MORTON
1. Conspiracy to provide material support-18 U.S.C. § 2339A	YES	YES	YES	YES	YES
2. Providing material support-18 U.S.C. §§ 2339A & 2	YES	YES	YES	YES	YES
3. Conspiracy to murder an officer or employee of the United States-18 U.S.C. § 1117	YES	YES	NO	NO	YES
4. Conspiracy to commit an offense against the United States-18 U.S.C. § 371	YES	YES	YES	YES	YES
5. Possessing a firearm while unlawfully in the United States/aiding and abetting 18 U.S.C. §§ 922(g)(5) & 2	YES	YES	YES	YES	YES
6. Conspiracy to commit kidnapping 18 U.S.C. § 1201(c)	YES	NO	YES	YES	YES
7. Kidnapping 18 U.S.C. §§ 1201(a)&2	YES	NO	YES	YES	YES

The Government avers, and this Court finds that Hujrah Wahhaj and Subhanah Wahhaj are unindicted coconspirators as to the conspiracy in Count 3, Siraj ibn Wahhaj is an unindicted coconspirator as to the conspiracy in Count 6, and Von Yusuf Leveille is an unindicted coconspirator as to the conspiracy in Count 1.

The Government seeks a preliminary ruling on the admissibility of numerous statements. Docs. 156, 15, 781, 782, 816, 817, 850, 929. The United States contends the vast majority of these statements are non-hearsay because they are not being offered for their truth; however, the

5

Government also seeks particularized rulings on admissibility with regard to specific statements under both Fed.R.Evid. 801(d)(2)(A), (E).

Defendants object to the introduction of the proffered statements against them at trial. Docs. 606, 647, 678, 819, 833, 836, 931. The pleadings analyzed herein address the merits of the Defendants' hearsay objections, the resulting Confrontation Clause issues (if any), and the numerous statements' admissibility under the particular Federal Rule of Evidence.

APPLICABLE LAW

Relevant evidence is that which tends to “make a fact more or less probable than it would be without the evidence; and the fact is of consequence in determining the action.” Fed.R.Evid. 401. Further, “[t]o be relevant, evidence need only tend to prove the government's case, and evidence that adds context and dimension to the government's proof of the charges can have that tendency. Relevant evidence is not confined to that which directly establishes an element of the crime.” United States v. Riego, No. 21-596, 2022 U.S. Dist. LEXIS 165986, at *2-3 (D.N.M. Sept. 13, 2022) (quoting United States v. Gonzalez, 110 F.3d 936, 941 (2d Cir. 1997)). A district court may exclude relevant evidence if its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, or needlessly presenting cumulative evidence. See Fed. R. Evid. 403. “The trial court has broad discretion to determine whether or not prejudice inherent in otherwise relevant evidence outweighs its probative value.” United States v. Jefferson, 925 F.2d 1242, 1258 (10th Cir. 1991). The Tenth Circuit advises that “Rule 403 is an extraordinary remedy and should be used sparingly.” Wheeler v. John Deere Co., 862 F.2d 1404, 1408 (10th Cir. 1988). Relevant evidence may, of course, also be excluded if it meets the definition of “hearsay” and does not fall within a recognized exception. See Fed. R. Evid. 802.

Rule 801 defines a “statement” as “a person's oral assertion, written assertion, or nonverbal

6

conduct, if the person intended it as an assertion.” Fed.R.Evid. 801(a). Hearsay is a statement made by a declarant outside of “the current trial or hearing” that is offered into evidence “to prove the truth of the matter asserted in the statement.” Fed.R.Evid. 801(c)(1)-(2). If a declarant's words are not intended as an assertion; they are not a statement. Similarly, if a declarant's statement is not offered for its truth; it is not hearsay.

The two primary means for admitting statements here revolve around Rule 801(d)(2)- specifically, statements by a party opponent or those by coconspirators. Fed.R.Evid. 801(d)(2)(A), (E). Statements of a party opponent are excluded from the definition of hearsay under Rule 801. See e.g., United States v. Brinson, 772 F.3d 1314, 1317 (10th Cir. 2014) (“Facebook messages do not constitute hearsay because they consist of statements of a party opponent.”); United States v. Quintana, 70 F.3d 1167, 1170 (10th Cir. 1995) (“All the tapes admitted by the district judge consisted of conversations to which [defendant] was a party. Thus, the conversations were admissions by a party-opponent and not hearsay, pursuant to Fed.R.Evid. 801(d)(2)(A).”); United States v. Busch, 758 F.2d 1394, 1397 (10th Cir. 1985) (explaining a defendant who tape recorded himself making statements cannot complain about their use under Rule 801(d)(2)(A)). Similarly, statements by one coconspirator are not hearsay and “can be attributed to all.” Bourjaily v. United States, 483...