The opinion of the court was delivered by: John D. Bates United States District Judge
MEMORANDUM OPINION & ORDER
At the time of his arrest on February 9, 2010, defendant Ramiro Anturi Larrahondo was a prosecutor in the nation of Colombia. Anturi's co-defendants are alleged to have been part of a maritime drug trafficking organization ("DTO") that transported tons of cocaine intended for the United States from Colombia to Central America. The DTO allegedly made cash payments to Anturi in exchange for sensitive information about the investigation of the DTO and to protect the DTO from law enforcement. Anturi has been indicted on one count of conspiracy to distribute five kilograms or more of cocaine on board a vessel subject to the jurisdiction of the United States, in violation of 46 U.S.C. §§ 70503 and 70506 and 18 U.S.C. § 2, and one count of conspiracy to distribute five kilograms or more of cocaine knowing and intending that the cocaine will be unlawfully imported into the United States, in violation of 21 U.S.C. §§ 959, 960 and 963 and 18 U.S.C. § 2.
Most co-defendnats have pled guilty and others are engaged in plea discussions. Anturi's trial is scheduled to begin on October 15, 2012. Now before the Court are ten motions by the defendant and one notice and motion by the government. Anturi's motions pertain largely to evidentiary matters, as well as a few other issues. The government's notice and motion regards the introduction of evidence pursuant to Federal Rule of Evidence 404(b). A motions hearing was held on June 29, 2012.
For the reasons described below, the Court will essentially deny each of the defendant's ten motions, although the discussion herein may have certain implications for the government's pre-trial obligations as well as the presentation of evidence at trial. The Court will also grant the government's motion, finding that the evidence sought to be introduced is admissible under Rule 404(b), although it is not intrinsic to the charged crime.
As explained in this Court's Order of September 29, 2011, denying Anturi's motion for a bill of particulars, the government has summarized seven pieces of evidence pertaining to its case against Anturi. See Order of Sept. 29, 2011 [Docket Entry 98] at 3. By the government's characterization, this evidence includes intercepted calls between Anturi and his co-conspirators, as well as two other individuals; recordings of conversations between Anturi and a confidential source; a bank receipt reflecting a bribe from the DTO to Anturi; a purported government document, provided by Anturi to the DTO, that contained information regarding the DTO's trafficking activities; documents retrieved from Anturi's computer drive about the DTO; and a transcript of an interview with Anturi conducted by a federal agent. Id. The government has alleged that the defendant provided sensitive information regarding the DTO and committed other acts in order to make it possible for the co-conspirators to continue drug trafficking without detection. Id. The government contends that these actions amount to aiding and abetting an ongoing conspiracy, making Anturi liable as a principal. Id. at 3-4.
Anturi has filed ten motions. In the order that the motions were filed, he moves (1) for a pre-trial determination on the admissibility of alleged co-conspirator statements, (2) to exclude evidence of events predating his membership in the charged conspiracies, (3) for immediate production of transcripts, (4) for production of the confidential informant file of Jorge Baena, (5) to strike improper aliases, (6) to suppress post-arrest statements made to the Drug Enforcement Agency, (7) to suppress wiretap evidence, (8) to unseal the co-defendants' plea agreements and court proceedings, (9) to dismiss count one of the superseding indictment, and (10) to compel production of discovery. The government has filed a notice and motion regarding the introduction of evidence pursuant to Federal Rule of Evidence 404(b). The Court will address the defendant's motions in the order that each was filed and then address the government's notice and motion.
a. Anturi's motions for a pre-trial determination on the admissibility of alleged co-conspirator statements and to exclude events predating his membership in the charged conspiracies
Anturi has filed two related motions regarding the connection between evidence of drug trafficking that does not directly involve him and evidence involving him that does not directly involve drug trafficking. The first motion indicates that the government has provided to the defense audio recordings of approximately 140 phone calls, of which approximately 45 directly involve the defendant. Def.'s Mot. for a Pre-Trial Determination on the Admissibility of Alleged Co-Conspirator's Statements [Docket Entry 148] ("Def.'s Pre-Trial Deter. Mot.") at 1. Anturi notes that under Federal Rule of Evidence 801(d)(2)(E), a statement is not considered hearsay if it is offered against a defendant and "was made by the [defendant's] coconspirator during and in furtherance of the conspiracy." Def.'s Pre-Trial Deter. Mot. at 3-4. He relies on Bourjaily v. United States, 483 U.S. 171 (1987), for the proposition that, in order for such a statement to be admissible, the district court must find by a preponderance of evidence that a conspiracy existed, that the defendant and declarant were members of the conspiracy, and that the statement was made in furtherance of that conspiracy. Anturi argues that the government does not have sufficient evidence to connect him with the narcotics conspiracy because the phone calls directly involving him began almost seven months after the last seizure of cocaine, are with two persons who have never been identified as co-conspirators in the case, and appear to be unrelated to drug trafficking. Def.'s Pre-Trial Deter. Mot. at 4-5.
Anturi's second motion also contends that the government has insufficient evidence to connect Anturi to the drug trafficking conspiracy. Def.'s Mot. to Exclude Evidence of Events Predating His Membership in the Charged Conspiracies [Docket Entry 149] ("Def.'s Mot. to Exclude Predating Evidence") at 1, 2. Anturi relies on United States v. Hitt, 107 F. Supp. 2d 29 (D.D.C. 2000), which in turn relies on Grunewald v. United States, 353 U.S. 391 (1957), for the proposition that "after the central criminal purposes of a conspiracy have been attained, a subsidiary conspiracy to conceal may not be implied from circumstantial evidence showing merely that the conspiracy was kept a secret and that the conspirators took care to cover up their crime in order to escape detection and punishment." Grunewald, 353 U.S. at 401-02. Anturi indicates that, to his knowledge, the evidence involving drug trafficking occurred from December 2008 to April 2009, that he was not involved in the conspiracy during this time period, and that, in his view, the conspiracy terminated before he is alleged to have joined. Def.'s Mot. to Exclude Predating Evidence at 2-3.
The second motion also makes an argument about the effect of the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), on the determination to be made by the jury in this case. The defendant notes the broad scope of "Pinkerton liability" - "the well-settled principle of conspiracy law that someone who jointly undertakes a criminal activity with others is accountable for their reasonably foreseeable conduct in furtherance of the joint undertaking." United States v. Saro, 24 F.3d 283, 288 (D.C. Cir. 1994) (citing Pinkerton v. United States, 328 U.S. 640 (1946)). He also notes the black letter rule that "with regard to liability for conspiracy, a defendant may be legally responsible for acts of coconspirators prior to that defendant's entry into the conspiracy." United States v. Blackmon, 839 F.2d 900, 908-09 (2d Cir. 1988). Anturi nonetheless argues that "the rules of drug attribution do not hold a co-conspirator responsible for drug trafficking which took place before he joined the conspiracy." Def.'s Mot. to Exclude Predating Evidence at 4. Anturi relies on United States v. Rodriguez-Gonzalez, 433 F.3d 165, 168 (1st Cir. 2005), which, after noting that "[e]vents in a conspiracy prior to a defendant's joinder may be relevant," including for "characterization of the conspiracy or Pinkerton liability," concluded that "when it comes to sentencing, the guidelines say that a defendant is responsible only for losses that occurred and victims who were injured after he joined." Anturi argues that it would be unfairly prejudicial under Federal Rule of Evidence 403 for the government to admit evidence of drug trafficking that is not attributable to him.
The Court will first address the defendant's argument about the relationship between Apprendi and Pinkerton liability, out of concern that Anturi has incorrectly perceived the nature of the charges against him. Put simply, the defendant's second motion misstates the law. Apprendi held that "convictions depend on findings by a jury (unless waived) of the elements of an offense." United States v. Fields, 325 F.3d 286, 289 (D.C. Cir. 2003) (citing Apprendi, 530 U.S. at 476-77). The D.C. Circuit has applied this rule to drug quantity, where drug quantity is an element of the offense: "Where the drug quantity alters the substantive offense, as it can under 21 U.S.C. §§ 841 and 846, Apprendi applies." Fields, 325 F.3d 286 at 289 (citing United States v. Webb, 255 F.3d 890, 896 (D.C. Cir. 2001)). In this Court's view, all that these statements mean is that a jury applying the reasonable doubt standard, rather than a judge, must make the finding on the drug quantity alleged in the indictment - in this case, that the conspiracies were to distribute more than five kilograms of cocaine. Furthermore, per Rodriguez-Gonzalez, the judge, in applying the sentencing guidelines, may not consider events prior to the defendant's joining the conspiracy. But these cases have nothing to do with the underlying determination made by the jury about whether the defendant is guilty of the charged offense. Under Pinkerton, the jury may hold the defendant criminally liable for conspiracy to commit acts - including drug trafficking - that predate his joinder in the conspiracy. In other words, so long as the jury makes the determination applying the right legal standard, the defendant may properly be found guilty of conspiracy to traffic a quantity of drugs that includes drugs trafficked before his entrance into the conspiracy. The Apprendi line of cases does nothing to change this principle, which has been the law for more than fifty years.
With this understanding in mind, Anturi's argument under Rule 403 largely falls away. The government can introduce evidence at trial about drug trafficking predating defendant's joinder in the conspiracy because that evidence may be relevant to proving that the defendant was a member of a conspiracy to traffic more than five kilograms of cocaine. The Court is sensitive to the concern that the sheer volume of evidence about the DTO could, at some point, prove prejudicial to the defendant, who is not alleged to have been involved directly with the physical distribution of the narcotics in question. A determination may need to be made at trial to limit the quantity of evidence, if it becomes clear that the government has more than sufficiently proved that the DTO was trafficking large quantities of cocaine.
With respect to Anturi's arguments regarding his involvement in the conspiracy, the Court agrees that it must, under Federal Rules of Evidence 801(d)(2)(E) and 104(a), make a determination regarding the admission of coconspirator statements that would otherwise be hearsay. The Court must determine, by a preponderance of the evidence standard, that a conspiracy existed, that the statement was in furtherance of the conspiracy, and that the defendant was a "member" of the conspiracy. Bourjaily, 483 U.S. at 175-76. Here, Anturi disputes that he was a member of the conspiracy and, relatedly, that the conspiracy existed at the time of his involvement in the events. He also contends that his involvement was not unlawful. It would be difficult to dispute that a conspiracy to traffic drugs existed at some time, and the defendant has also not disputed that specific statements by others regarding drug trafficking were made in furtherance of that underlying conspiracy.
The Court does not agree, however, that it is appropriate for this determination to be made before trial. At the motions hearing, the government proffered that its case will include evidence that the underlying conspiracy to traffic drugs continued into early 2010, well beyond the last seizure of narcotics in April 2009 and temporally overlapping with the recorded calls directly involving the defendant. The government also proffered that its case will include evidence that the defendant counseled the DTO on law enforcement's activities, including the possibility of extradition to the United States, as early as May 2009. Standard practice in this district is to allow the government to admit coconspirator statements conditionally, subject to connection by the government at trial. See United States v. Jones, 451 F. Supp. 2d 71, 84 (D.D.C. 2006), rev'd on other grounds, 615 F.3d 544 (D.C. Cir. 2010), aff'd, 132 S. Ct. 945 (2012); United States v. Edelin, 128 F. Supp. 2d 23, 45-46 (D.D.C. 2001); see also United States
v. Jackson, 627 F.2d 1198, 1218 (D.C. Cir. 1980); United States v. Gantt, 617 F.2d 831, 845 (D.C. Cir. 1980). In light of the government's proffer, the Court does not see any reason to deviate from this practice.
With respect to the Grunewald issue (that the conspiracy temporally terminated before the defendant's joinder), the government has proffered sufficient evidence that the conspiracy did not end prior to Anturi's alleged involvement in this matter. The Court does not believe that it is appropriate to have a "mini-trial" before the actual trial, in which the government is forced to lay out in more detail its evidence that the conspiracy continued. Furthermore, although the Court understands Anturi's contention that his involvement with the DTO was too minimal or benign to constitute "belonging" to the conspiracy, the Court does not believe this determination should be made before trial. On their face, the facts alleged by the government - that Anturi protected an ongoing conspiracy to traffic drugs from apprehension by law enforcement - certainly could constitute membership in a drug trafficking conspiracy, even if, in a vacuum, defendant's conduct would not be obviously in violation of the laws of the United States. It is often the case that certain conduct might be perfectly lawful in one context but illegal under a different set of circumstances. Whether the evidence bears out this contention at trial is a different matter, which may be an appropriate subject for the Court to consider when possessed of all the facts. But, especially considering that a grand jury has returned an indictment on the charges in question, the Court is not willing to put the government to a pre-trial hearing, posed as an evidentiary issue, on whether Anturi's conduct constituted aiding and abetting a conspiracy.
To be sure, the Court appreciates that Anturi would like this issue to be decided sooner, rather than later, because if the Court determines, for whatever reason, that the evidence of drug trafficking (including coconspirator calls) is not admissible, the charges against Anturi are likely to be dropped or dismissed. But this fact also undermines the prejudice the defendant will suffer from admitting this evidence subject to connection at trial, since it is unlikely that this case will proceed to verdict if the evidence is actually excluded. In any case, while the Court is sympathetic to Anturi's desire to have the charges against him resolved quickly, the Court believes that what is most appropriate here is to move forward with resolution of this matter at trial. Hence, the Court will deny these two motions.
b. Anturi's motion for immediate production of transcripts
As indicated above, the government has provided to the defense audio recordings of 140 conversations that constitute possible evidence to be admitted at trial. Def.'s Mot. for Immediate Production of Transcripts [Docket Entry 150] at 1. Anturi indicates that he has received transcripts and translations of fourteen of the calls, and he seeks an order for the government to immediately turn over any other transcripts it has already produced, for a deadline for production of final transcripts, and for the government to identify immediately which calls it intends to use at trial. Id. at 3-4; Def.'s Reply in Supp. of Mot. to Compel Production of Transcripts [Docket Entry 201] at 2-3. The defendant relies on Federal Rule of Criminal Procedure 16(a)(1)(E), which provides in relevant part that "the government must permit the defendant to inspect and to copy" a document "if the item is within the government's possession, custody, or control and . . . the item is material to preparing the defense" or "the government intends to use the item in its case-in-chief at trial." More specifically, the defendant cites United States v. Archbold-Manner, 581 F. Supp. 2d 22, 24 (D.D.C. 2008), for the proposition that the government must produce transcripts before trial in an international narcotics prosecution. The government indicated at the status conference on August 14, 2012, that it had turned over 63 transcripts and intends to turn over an estimated additional 59 transcripts in the following two to three days.
The Court will deny the motion because it is satisfied with the government's proposed timeline for turning over the materials. The parties should confer and bring to the Court any remaining issues involving transcripts and translations by not later than 30 days before trial commences. The Court also encourages the government to identify ...