Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Agustin Flores Apodaca

United States District Court, District of Columbia

August 17, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
AGUSTIN FLORES APODACA and PANFILO FLORES APODACA, Defendants.

          MEMORANDUM OPINION

          BERYL A. HOWELL, CHIEF JUDGE

         The defendants, Agustin Flores Apodaca, also known as "El Nino, " "El Barbon, " and "El Ingenierio, " and Panfilo Flores Apodaca, also known as "Charmin, " were indicted separately on two substantively similar counts of conspiring to commit drug trafficking offenses, including distribution of large quantities of cocaine, methamphetamine, heroin, and marijuana, with the intent to unlawfully import those controlled substances into the United States, as charged in Count One, in violation of 21 U.S.C. §§ 959, 960, 963, and 18 U.S.C. § 2; and using, carrying and brandishing a firearm, during and in relation to one or more drug trafficking crimes, as charged in Count Two, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i), 924(c)(1)(A)(ii), 924(c)(1)(B)(ii), and 2.[1]At the government's request, over the defendants' objections, the Court consolidated the defendants' criminal cases for trial, see Minute Order (dated Jan. 6, 2017), which trial is scheduled to begin on September 18, 2017.

         Pending before the Court are twelve pretrial motions filed by each defendant and by the government. These motions are: (1) the defendants' multi-pronged challenges to the government's admission in its case-in-chief of court-authorized interceptions of Panfilo's electronic communications and other co-conspirator statements, including (a) Agustin's Motion to Compel Discovery ("Agustin's Discovery Mot."), ECF No. 40; Panfilo's Motion to Join and Supplement Agustin's Motion to Compel Discovery ("Panfilo's Discovery Mot."), ECF No. 41, and an amendment thereto ("Panfilo's Am. Discovery Mot."), ECF No. 45; (b) the defendants' Joint Motion to Suppress Title III Intercepts ("Defs.' Jt. Mot. Suppress Intercepts"), ECF No. 33; (c) Agustin's Motion in Limine to Preclude Introduction of Post-Arrest Title III Intercepts ("Agustin's MIL Preclude Post-Arrest Intercepts"), ECF No. 51; (d) the defendants' Joint Motion for Pretrial Hearing of Admissibility of Alleged Co-Conspirator Statements ("Defs.'Jt. Hr'g Mot."), ECF No. 52; and (e) Agustin's Motion to Enforce the Rule of Specialty ("Agustin's Specialty Mot."), ECF No. 54; (2) Agustin's Motion to Suppress Statements ("Agustin's Suppress Stms. Mot."), ECF No. 48; (3) the defendants' Joint Motion to Dismiss Count Two of Indictments ("Defs.' Count Two Mot."), ECF No. 50; (4) the defendants' separate Motions to Strike Improper Aliases, ECF Nos. 53 and 56; and, finally, (5) the government's Motion to Introduce Co-Conspirator Statements, Other Crimes Evidence at Trial, and Allow Lead Agents at Counsel Table ("Gov't's Mot."), ECF No. 55. Following a summary of the relevant factual background proffered by the government in briefing papers, these motions are addressed in the following sequence: Part II discusses three of the defendants' motions challenging the introduction of intercepted communications; Part III addresses Agustin's motion to suppress the statements he made to the U.S. law enforcement agents on two occasions; and, lastly, Part IV discusses the defendants' joint and joined motions to dismiss the firearms charge in Count Two of the indictments and to strike reference to aliases in the indictments. Pending supplemental briefing, the Court reserves ruling on five motions in full or in part: (1) the Defendants' Joint Motion to Suppress Title III Intercepts, ECF No. 33; (2) Agustin's Motion to Compel Discovery, ECF No. 40; (3) Panfilo's Motion to Join and Supplement Agustin's Motion to Compel Discovery, ECF No. 41, (4) Panfilo's Amended Motion to Join and Supplement Agustin's Motion to Compel Discovery, ECF No. 45; and (5) the portion of the government's omnibus motion seeking admission of intrinsic or other bad acts, under Federal Rule of Evidence 404(b), ECF No. 55.[2]

         I. BACKGROUND

         The government proffers that, based on information provided to the Federal Bureau of Investigation ("FBI") Office in Washington State by a confidential informant ("CI") in July 2010, the FBI was able to identify a distribution cell of a larger Mexican drug trafficking organization ("DTO"), known as the Meza Flores DTO ("MF-DTO"), which was based in Guasave, Sinaloa, Mexico, and worked closely with the Hector Beltran Leyva DTO ("BL-DTO") to traffic tonnage quantities of cocaine, methamphetamine, heroin, and marijuana into the United States for distribution in the states of Arizona and Washington, and elsewhere in the United States. See Gov't's Mot. Consolidate Cases for Trial ("Gov't Consolidation Mot.") at 1-2, ECF No. 16. As set forth in the government's affidavit in support of Agustin's extradition from Mexico, the government identified Agustin as a longtime member of the BL-DTO and as the person who introduced his nephew, Fausto Isidro Meza Flores, also known as "Chapo Isidro" ("Chapo Isidro"), into the organization, and also worked with his brother, Salome Flores Apodaca, also known as "Pelon" and "Fino, " to distribute cocaine, methamphetamine, heroin, and marijuana into the United States. See Agustin's Specialty Mot., Ex. 1 ¶ 5 (Gov't's Aff Supp. Extradition of Agustin Flores Apodaca, dated Oct. 9, 2012), ECF No. 54-2. Chapo Isidro is viewed by the government as the leader of the MF-DTO, while his uncles, both defendants Agustin and Panfilo, and Salome, participated in the distribution of illegal drugs from Mexico into the United States. See Gov't's Mot. at 5. In addition, Agustin's role within the MF-DTO is described by the government as "synthesizing large volumes of methamphetamine form precursor chemicals, " while "Panfilo grew and harvested marijuana, and also coordinated logistics for the shipments of narcotics into the United States for the DTO." Id. Both Agustin and Panfilo "carried firearms" and "employed armed gunmen for protection, " and "were also directly involved in acts of violence including shootouts against rival cartel members and kidnapping individuals who were unable to pay drug debts." Id.; see also Gov't's Opp'n Agustin's MIL Preclude Post-Arrest Intercepts at 2-3, ECF No. 61.

         The government attributes three seizures of illegal narcotics in 2010 and 2011 to the MF-DTO. Gov't's Consolidation Mot. at 7. First, on September 2, 2010, U.S. law enforcement seized two pounds of methamphetamine in the gas tank of a silver BMW in Utah, after recovering information from a CI that Donato Valle Vega, who owned a used car lot in Centralia, Washington, and Salome had discussed selling narcotics in the Washington area and sending guns to Mexico. Id. at 8. Prior to the seizure, the FBI surveilled Vega loading a brown Chevrolet Impala onto a transportation truck, which was subject, on August 2, 2010, to a "sneak and peek" search that revealed approximately USD $56, 000 in bundles and two drug ledgers in the Impala. Id. Law enforcement observed Salome arrive at the truck. Id. On September 1, 2010, two men were observed loading a package into a silver BMW at Vega's used car lot, leading to the traffic stop and recovery of the methamphetamine in the gas tank. Id.

         Vega subsequently consented to a search of his used car lot in Centralia, Washington, where law enforcement made the second seizure, on September 2, 2010, of thirty-three pounds of methamphetamine and four kilograms of cocaine. Id. Vega then, between September 2 and 8, 2010, made consensually recorded calls with Agustin discussing: (1) the purchase of fifty caliber weapons with United States currency, and as a trade for methamphetamine, a deal Agustin said he would call Salome directly to discuss, id. at 9; and (2) customers, quantities, and pricing for kilograms of cocaine, which discussions were also recorded with Salome, id. On September 14, 2010, Salome tried to sell to a confidential informant of the Drug Enforcement Administration ("CI-2") approximately thirty pounds of methamphetamine and four kilograms of cocaine at a meeting held in Phoenix, Arizona. Id. Salome arrived at this meeting in the brown Impala originally surveilled on Vega's used car lot. Id.

         Finally, on June 10, 2011, Mexican authorities seized 2, 800 kilograms of marijuana in Nogales, Mexico, following receipt of information provided by another confidential informant ("CI-3"), who reported being present when Agustin, Panfilo, and Salome discussed "their shared responsibilities for drug trafficking to include money laundering, murder, kidnapping, firearms, and extortion." Id. CI-3 met with Agustin and Chapo Isidro to arrange the shipment of 2, 800 kilograms of marijuana via Nogales to the United States. Id. at 9-10. Prior to the shipment, Agustin escorted CI-3 to Chapo Isidro's ranch, "where there were approximately 300 gunmen present, armed with automatic rifles, grenades and rocket propelled grenades." Id. at 10. After Chapo Isidro approved the transaction, the marijuana shipment was sent to Nogales for transport by another confidential informant ("CI-4"), who was "unable to cross the drugs into the United States." Id. About thirty days later, the Mexican Army seized the marijuana in Nogales. Id.

         As a result of this seizure, Chapo Isidro, Agustin, and Panfilo held CI-3, CI-4, and a third informant, ("CI-5"), responsible for paying off the debt for the seized marijuana, and Agustin and Panfilo allegedly tried to take control of CI-3's properties as part of the debt repayment. Id. In October 2011, Agustin allegedly sent armed gunmen to CI-3's business in Bamoa, where CI-3 was kidnapped for a total of nineteen days until CI-5 paid USD $200, 000 in cash and properties, with an understanding to pay the rest of the debt later. Id. During his kidnapping ordeal, CI-3 was held at a camp where he "saw the bodies of young men who and been tortured and murdered lying about the camp, " and other captives, who "had their legs broken so that they could not escape." Id.

         After CI-3's release, a lawyer, Pedro Ozuna, advised CI-3 and CI-5 to release their properties to Ozuna, or else pay $1, 000, 000 to Chapo Isidro and Agustin by December 31, 2011. Id. at 11. Fearing for their lives, CI-3 and CI-5 fled to the United States, but continued to negotiate the debt with Agustin. Id. CI-5 assured Agustin in a consensually recorded call on February 13, 2012, that they were not responsible for the debt and were scared due to the kidnapping, and requested addition time to pay the June 2011 marijuana debt. Id. These discussions continued via Blackberry Messenger (BBM) until, on June 22, 2012, a family member of CI-3 and CI-5 was kidnapped by members of the MF-DTO to force payment of the debt. Id. After Agustin was arrested in Mexico on July 24, 2012, on the United States' provisional arrest warrant pending an extradition request, CI-5 began receiving BBM messages from Panfilo regarding payment of the debt. Id. The government then sought, and the United States District Court for the Western District of Texas authorized, Title III interceptions of electronic communications over 59 devices used by DTO co-conspirators, from February 2013 to December 2014, including Panfilo, which wiretap ultimately led to the interception of over 12, 500 pertinent intercepts between Panfilo and "other DTO co-conspirators." Gov't's Opp'n Agustin's MIL Preclude Post-Arrest Intercepts Mot. at 4.[3] In these intercepted communications, Panfilo allegedly discussed "the growing, harvesting, and packaging of marijuana, the production and sale of heroin, the sale of methamphetamine, cocaine, and guns, and violent acts, with other members known and unknown of the [MF-]DTO." Gov't's Consolidation Mot. at 12.

         Agustin was indicted on May 2, 2012, in this Court, of conspiring, for a period of about twelve years, from January 2000 through the date of indictment on May 2, 2012, "both dates being approximate and inclusive, " to distribute and import into the United States of 5 kilograms or more of cocaine, 50 grams or more of methamphetamine, 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, 1 kilogram or more of heroin, and 1000 kilograms or more of marijuana; and, for a period of about two years, from July 2010 to May 2012, pursuant to 18 U.S.C § 3238 and within the venue of the District Court for the District of Columbia, of using, carrying or brandishing a firearm during or in relation to drug crime charged in the prior count. See Agustin Indictment, United States v. Agustin Flores Apodaca, C™n- No. 12-116 at 1-3 (D.D.C.May2, 2012), ECF No. I.[4] Following his arrest by the Mexican Federal Police in Mexico on July 24, 2012, Agustin claims he was subjected to brutal torture that resulted in permanent loss of his vision in one eye, as documented in a medical report by a Mexican forensic specialist, Dr. Jorge Enrique Leon Robles. See Agustin's Suppress Stms. Mot. at 3. He was also allegedly subjected to multiple death and other forms of threats to his family. Id. at 7.

         Before he made an initial appearance in this Court on October 21, 2015, Agustin was interviewed twice by the FBI: the first time, on September 26, 2012, during his detention in a Mexican prison; and, the second time, on October 20, 2015, after he was ordered extradited and during his travel to the United States. See Agustin's Suppress Stms. Mot. at 1. He seeks to suppress both of those statements. See generally Id. Agustin has been in continuous custody in Mexico and the United States since his arrest in July, 2012.

         Two years after Agustin's indictment, his brother Panfilo was indicted in March 2014, for substantially the same charges. Specifically, Panfilo is charged, with conspiring, for a period of about fourteen years, from January 2000 through the date of indictment on March 13, 2014, "both dates being approximate and inclusive, " to distribute and import into the United States 5 kilograms or more of cocaine, 50 grams or more of methamphetamine, 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, 1 kilogram or more of heroin, and 1, 000 kilograms or more of marijuana; and for a period of about nine years, from January 2005 to the date of indictment on March 13, 2014, pursuant to 18 U.S.C § 3238 and within the venue of the District Court for the District of Columbia, of using, carrying or brandishing a firearm during or in relation to drug crime charged in the prior count. See Indictment ("Panfilo Indictment"), ECF No. 1. Panfilo was arrested in Guasave, Mexico, on April 8, 2015, and has been in continuous custody since then in Mexico and, after his extradition on October 11, 2016, in the United States.

         The Court now turns to several of the pending pretrial motions.

         II. DEFENDANTS' CHALLENGES TO THE INTRODUCTION OF INTERCEPTED COMMUNICATIONS AND ALLEGED CO-CONSPIRATOR STATEMENTS

         The defendants bring a multi-faceted challenge to the government's introduction of Title III intercepts and other co-conspirator statements at trial. First, Agustin has moved to preclude introduction of the intercepts obtained after he was arrested, arguing that he exited the conspiracy at the time of his arrest, and, therefore, co-conspirators' statements that post-date his arrest cannot be introduced against him. See generally Agustin's MIL Preclude Post-Arrest Intercepts, ECF No. 51. Second, the defendants have jointly moved for a pre-trial hearing to address the duration of each defendant's participation in the alleged conspiracy and to determine the admissibility of any statements of alleged co-conspirators pursuant to Federal Rule of Evidence 801(d)(2)(E). See generally Defs: Jt. Hr'g Mot, ECF No. 52. Third, Agustin argues that the admission of any Title III wiretap evidence against him would violate the Rule of Specialty and therefore argues that all intercepted communications must be suppressed as to him. See generally Agustin's Specialty Mot, ECF No. 54. Each of these motions is addressed in turn.[5]

         A. Agustin's Motion to Preclude Introduction of Post-Arrest Title III Intercepts

         Agustin has moved to preclude admission against him of any evidence obtained from the Title III intercepts against him on grounds that he "was arrested in Mexico on July 24, 2012, " at which time he had presumptively "withdrawn from the conspiracy, " and "the wiretap did not commence until February 2013-after the time frame of the charges contained in the Indictment against him, " in reliance on United States v. Escobar, 842 F'. Supp. 1519, 1528 (E.D.N.Y.1994), anon-binding, out-of-Circuit district court decision. Agustin's MIL Preclude Post-Arrest Intercepts at 1, ECF No. 51. Agustin reasons that if his withdrawal from the conspiracy is marked by his arrest, "the contents of the wiretap intercepts are inadmissible hearsay and cannot be introduced against him, " under Federal Rule of Evidence 801(d)(2)(E). Mat 2-3 (citing Bourjaily, 483 U.S. at 175-76). This argument to preclude admission of the Title III intercepts is based on the faulty premise that Agustin's arrest is sufficient evidence of his withdrawal from the charged conspiracy to bar admission of alleged co-conspirator statements made after that arrest. This is not the law in this Circuit, and Agustin has otherwise failed to sustain sufficiently his burden of showing his withdrawal from the charged conspiracy. Consequently, as explained further below, Agustin's motion to suppress the wiretap evidence on this ground is denied.

         1. Relevant Legal Standard

         The law is well-established that "[c]onspiracy is a crime that presumes continuity until accomplishment or termination; once a defendant becomes a member of a conspiracy, he remains a member until he affirmatively withdraws or the conspiracy ends." United States v. Moore, 651 F.3d 30, 90 (D.C. Cir. 2011) (citing Hyde v. United States, 225 U.S. 347, 368-70 (1912)). As a result, "once the government proves that a defendant was a member of an ongoing conspiracy, it has proven the defendant's continuous membership in that conspiracy unless and until the defendant withdraws." Id. Contrary to Agustin's assertion of the applicable law, the mere fact that a defendant is arrested does not, without more, demonstrate withdrawal from a conspiracy. Instead, the D.C. Circuit has made clear that "[t]o establish withdrawal, a defendant may show that it has taken ' [a]ffirmative acts inconsistent with the object of the conspiracy and communicated in a manner reasonably calculated to reach co-conspirators.'" Osborn v. Visa Inc. , 797 F.3d 1057, 1067 (D.C. Cir. 2015) (quoting United States v. U.S. Gypsum Co. , 438 U.S. 422, 464 (1978)); see also Hyde, 225 U.S. at 369-70 (holding that a defendant remains a member of the conspiracy "until he does some act to disavow or defeat the purpose .. ."); United States v. Garrett, 720 F.2d 705, 714 (D.C. Cir. 1983) ("[T]o establish an effective withdrawal, the defendant must show that he took affirmative action to defeat or disavow the purpose of the conspiracy."). As the D.C. Circuit recently noted, "withdrawal from the conspiracy is difficult, requiring an affirmative step." Bahlul v. United States, 840 F.3d 757, 800 (D.C. Cir. 2016). Thus, withdrawal requires either coming clean to authorities or communicating abandonment to co-conspirators. See United States v. Walls, 70 F.3d 1323, 1327 (D.C. Cir. 1995).

         2. Analysis

         Agustin acknowledges, as he must, that he bears the burden of establishing that he withdrew from the conspiracy upon his arrest, see Agustin's MIL Preclude Post-Arrest Intercepts at 3, a burden that must be proven by a preponderance of the evidence, see Smith v. United States, 568 U.S. 106, 109 (2013) (holding "that the defendant bears the burden of proof and that such a disposition does not violate the Due Process Clause"); Moore, 651 F.3d at 90 (holding that "the district court correctly instructed the jury that the defendant bore the burden of persuasion to show that he withdrew from the conspiracy" and noting that "[w]e previously have said unequivocally, albeit in the context of sentencing, that the defendant, not the government, 'has the burden of proving that he affirmatively withdrew from the conspiracy if he wishes to benefit from his claimed lack of involvement'" (quoting United States v. Thomas, 114 F.3d 228, 268 (D.C. Cir. 1997))); United States v. Dale, 991 F.2d 819, 854 (D.C. Cir. 1993) ("Defendants have the burden of proving they affirmatively withdrew from the conspiracy[.]"); United States v. Bostick, 791 F.3d 127, 143 (D.C. Cir. 2015) (same). As support for his argument that he withdrew from the conspiracy, Agustin points to the fact that he was arrested and thereafter "was not intercepted during the twenty-three month wiretap investigation, " and no allegation has been proffered that he took "any other action in furtherance of the conspiracy . . . after his incarceration." Agustin's MIL Preclude Post-Arrest Intercepts 1. Moreover, Agustin notes that "indeed, the prosecution has stated that it did not intend to use the intercepted communications against him if he was the sole defendant in the case." Id. at 4.

         This evidence falls far short of showing affirmative withdrawal from the conspiracy, particularly in light of other evidence proffered by the government. At the outset, the mere fact that Agustin was arrested does not amount to withdrawal. As the Supreme Court has observed, "[p]assive nonparticipation in the continuing scheme is not enough to sever the meeting of minds that constitutes the conspiracy." Smith, 568 U.S. at 112-13; see also United States v. Wilson, 605 F.3d 985, 1037 (D.C. Cir. 2010) (noting defense concession that "his imprisonment" did not, standing alone, constitute a withdrawal from the conspiracy); United States v. Wilkerson, 656 F.Supp.2d 22, 44 (D.D.C. 2009) (noting "correct" reading of the law "that incarceration by itself is not an affirmative act of withdrawal and creates no presumption of withdrawal") (citing United States v. Melton, 131 F.3d 1400, 1405 (10th Cir. 1997) ("Although a conspirator's arrest or incarceration by itself is insufficient to constitute his withdrawal from the conspiracy, an arrest may under certain circumstances amount to a withdrawal." (internal quotation omitted))); United States v. Harris, 542 F.2d 1283, 1301 (7th Cir. 1976) ("The arrest or incarceration of a conspirator may constitute a withdrawal for a conspirator, but it does not as a matter of law.").

         Indeed, when given an opportunity two months after his arrest to "come clean to authorities, " during a visit by FBI and DEA agents at the Altiplana Federal Rehabilitation Center in Toluca, Mexico, on September 26, 2012, Agustin instead made, in the government's view, "a self-serving exculpatory statement" indicating "that he was only a business man, involved in agriculture and denied any involvement in drug trafficking." Gov't's Opp'n to Agustin's MIL Preclude Post-Arrest Intercepts at 7. Agustin did not clearly communicate any withdrawal from the conspiracy or take any affirmative steps to do so. Certainly, by virtue of his arrest, Agustin's role in the conspiracy necessarily changed but that simply does not amount to withdrawal. See Garrett, 720 F.2d at 714 (rejecting withdrawal defense and observing that the defendant "confuses abandonment of criminal purpose with the mere fact that his role in the criminal venture, the success of which he always intended, had come to an end").

         In short, Agustin has not met his burden of showing that he withdrew from the conspiracy either before or during the period of the Title III interceptions and, consequently, those communications in furtherance of the conspiracy would be appropriately admissible against him. See United States v. Thomas, 114 F.3d 228, 267-68 (D.C. Cir. 1997) (finding that where the defendant failed to meet burden of showing affirmative withdrawal from conspiracy, "drugs handled by the conspiracy" after the defendant's "claimed lack of involvement" were properly attributed to him); United States v. Childress, 58 F'.3d 693, 733 (D.C. Cir. 1995) ("[B]ecause he does not claim he affirmatively withdrew from the conspiracy, Childress is criminally responsible . .. for all of his compatriots' foreseeable conduct in furtherance of those goals."); United States v. Alcorta, 853 F.3d 1123, 1139-41 (10th Cir. 2017) (rejecting the defendant's argument that intercepted calls were improperly admitted as not in furtherance of the conspiracy when communications occurred after the arrest of two co-conspirators since the argument that "the conspiracy terminated upon" the arrests was "based on an erroneous factual premise, " given that the defendant's drug operations did not end with the arrests).

         For these reasons, Agustin's motion to exclude Title III intercepts obtained after his arrest on the ground that his arrest effectively marked his withdrawal from the conspiracy is denied.

         B. Defendants' Joint Motion for Pretrial Hearing of Admissibility of Alleged Co-Conspirator Statements

         Agustin and Panfilo have jointly moved for "a hearing in order to make a pre-trial determination as to the duration and participation of each defendant in the alleged conspiracy and to determine the admissibility of any statements of alleged co-conspirators pursuant to Fed.R.Evid. 801(d)(2)(E)." Defs.'Jt. Mot. Pretrial Hr'g of Admissibility of Alleged Co-Conspirator Statements ("Defs.' Jt. Mot. Hr'g") at 1, ECF No. 52. In support, the defendants cite three "substantial reasons to conduct such a pre-trial hearing, " id. at 5: first, although they are charged with a conspiracy that began in 2000, "the only evidence that has been provided to the defense consists of events that took place ten years later, " id.; second, the government's evidence regarding the three drug seizures, which occurred in September 2010 and June 2011, includes alleged conversations of Agustin with informants, but "no mention" of Panfilo, " id. at 5-6; and, finally, despite reference to the BL-DTO in the extradition papers, no "specific discovery concerning" this DTO, which is a "separate criminal organization, " has been provided and should not be admissible, id. at 6.[6]

         The government objects to holding a pre-trial hearing, proffering that, through witness testimony at trial, the "Government will show that the Defendants, their nephew and brother along with other co-conspirators were working together to traffic narcotics from Mexico into the United States." Gov't's Opp'n to Defs.' Jt. Mot. Hr'g at 5, ECF No. 60. For the reasons set out below the defendants' joint motion for a pretrial hearing on this issue is denied.

         1. Relevant Legal Standard

         Federal Rule of Evidence 801(d)(2)(E) provides that an out-of-court statement is not hearsay if it is "offered against an opposing party and . . . was made by the party's coconspirator during and in furtherance of the conspiracy, " with further instruction that "the statement must be considered, but does not by itself establish ... the existence of the conspiracy or participation in it under (E)." Fed.R.Evid. 801(d)(2). Upon objection to admission of an alleged coconspirator's out-of-court statement, "the district court must find by a preponderance of the evidence that a conspiracy existed and that the defendant and declarant were members of that conspiracy." United States v. Gewin, 471 F.3d 197, 201 (D.C. Cir. 2006) (citing Bourjaily v. United States, 483 U.S. 171, 175-76 (1987)). As reflected in the Rule itself, an out-of-court statement cannot alone support the necessary finding that the defendant and declarant were together involved in a conspiracy. FED. R. EVID. 801(d)(2); see also Gewin, 471 F.3d at 201 (noting "that the finding [of conspiracy's existence and defendant and declarant's membership in conspiracy] must rest on some independent evidence of the conspiracy") (citing United States v. Gatling, 96 F.3d 1511, 1520-21 (D.C. Cir. 1996)). Thus, the ultimate admissibility determination must rest both on finding that the challenged co-conspirator statement is in furtherance of the conspiracy and, at least partially, on some independent evidence of the conspiracy.

         2. Analysis

         The parties agree on the law applicable to determining whether alleged co-conspirator statements are admissible under Rule 801(d)(2)(E) but dispute the preferable timing for when this determination should be made. In this regard, Federal Rule of Evidence 104(c) expressly addresses the circumstance in which the relevance, and therefore the admissibility, of evidence "depends on whether a fact exists, " and authorizes a court to "admit the proposed evidence on the condition that the proof be introduced later." Fed.R.Evid. 104(c). Notwithstanding this timing rule allowing deferral of the determination of the prerequisites for admission of coconspirator statements with conditional admission of the challenged statements, the defendants, relying on United States v. Jackson, 627 F.2d 1198 (DC. Cir. 1980), seek a pretrial hearing at which the government will present evidence to support its charged conspiracy and the defendants' participation in it, along with the co-conspirators whose out-of-court statements the government intends to introduce. Defs.' Jt. Mot. Hr'g at 5-6. Indeed, the D.C. Circuit has suggested that the "preferred practice is for the trial court to make these determinations before the hearsay evidence is admitted." United States v. Slade, 627 F.2d 293, 307 (D.C. Cir. 1980); Jackson, 627 F.2d at 1218 ("[T]he better practice is for the court to determine before the hearsay evidence is admitted that the evidence independent of the hearsay testimony proves the existence of the conspiracy sufficiently to justify admission of the hearsay declarations.").

         Yet, in these same cases, the Circuit has acknowledged that, due to "practical impediments, " "it is just impractical in many cases for a court to comply strictly with the preferred order of a proof by taking the testimony of such witnesses piecemeal, waiting until a conspiracy is fully proved by independent evidence, and then recalling from their normal pursuits, those who testify to hearsay declarations of co-conspirators." Jackson, 627 F.2d at 1218. Consequently, "the court is vested with considerable discretion to admit particular items of evidence 'subject to connection.'" Id. (internal citation omitted); see also Slade, 627 F.2d at 307 (acknowledging that the trial court "retains discretion ... to admit particular co-conspirator statements conditioned on a later showing of substantial independent evidence of the three prerequisites for their admission").

         In particular, "a decision on a motion should be deferred, if disposing of the motion involves deciding issues of fact that are inevitably bound up with evidence about the alleged offense itself." United States v. Wilson, 26 F.3d 142, 159 (D.C. Cir. 1994). Doing so conserves judicial resources by avoiding "what would otherwise become a separate trial on the issue of admissibility." United States v. Gantt, 617 F.2d 831, 845 (D.C. Cir. 1980), abrogated on other grounds by In re Sealed Case, 99F.3d 1175, 1178 (D.C. Cir. 1996). If, however, "at the close of the government's case, or at any other critical point, " the government has failed to meet its burden, the court "must upon motion, and may sua sponte, strike the testimony that has not been sufficiently connected and direct the jury to disregard it." Jackson, 627 F.2d at 1218 (citing authorities). Where such an instruction "cannot cure the prejudice threatened by the inadmissible hearsay[, ] a mistrial is required." Id.

         As recognized by the D.C. Circuit, the "practical impediments" to holding a pretrial hearing on the preliminary questions about the existence of a conspiracy and the defendant and declarant's participation in it, has led to the general practice in this jurisdiction to defer these determinations until the trial. See, e.g., United States v. Hassanshahi, 195 F.Supp.3d 35, 52-53 (D.D.C. 2016) (deferring to trial "final ruling on the admissibility of alleged co-conspirator emails); United States v. Knowles, 2015 U.S. Dist. LEXIS 178210, at *7-9 (D.D.C. Dec. 30, 2015) ("Standard practice in this district is to allow the government to admit coconspirator statements conditionally, subject to connection by the government at trial.") (quoting United States v. Larrahondo, 885 F.Supp.2d 209, 220 (D.D.C. 2012))); United States v. Savoy, 889 F.Supp.2d 78, 111-12 (D.D.C. 2012) (denying the defendant's motion for pretrial hearing and deferring determination of conspiracy to trial); United States v. Loza, 763 F.Supp.2d 108, 111-12 (D.D.C. 2011) ("In this district it is common practice for a court to avoid a 'disfavored 'mini-trial' of the evidence' by deferring its determination regarding the admissibility of alleged coconspirator statements until after the close of the government's case." (citing United States v. Cooper, 91 F.Supp.2d 60, 78 (D.D.C. 2000) (declining to hold a pretrial evidentiary hearing on this issue), and United States v. Hsin-Yung, 97 F.Supp.2d 24, 37 (D.D.C. 2000) (rejecting a request for a pretrial hearing on admissibility of co-conspirator statements because "having a pretrial hearing essentially would create a time-consuming mini-trial before the trial")); United States v. Eiland, 2006 U.S. Dist. LEXIS 11726, at *18-19 (D.D.C. Mar. 1, 2006) (denying a defense motion for pretrial determination of the admissibility of alleged co-conspirator statements). The reasons proffered by the government for following this general practice in this case are persuasive.

         In particular, despite the pre-trial discovery evidentiary gaps identified by the defendants, the government indicates that the charged "conspiracy will be evidenced at trial through the testimony of cooperating witnesses (the Defendants' co-conspirators), co-conspirator statements and through evidence of drug seizures in Mexico and the United States." Gov't's Opp'n to Defs.' Jt. Mot. Hr'g at 4. Plainly, some of the same witnesses will be testifying about the existence and activities of the charged conspiracy and the co-conspirator statements. Requiring these witnesses to testify twice, first at a pretrial hearing and second at the trial itself, would result in duplicative testimony, "allow defense counsel two bites at the apple to cross-examine the cooperating witnesses in this case, " id. at 10; and raise "a significant concern about the safety of these cooperating witnesses and their families, " id. at 11, in light of proffered government evidence about the use of weapons, kidnapping, and other violence associated with the charged conspiracy. See United States v. White, 116 F.3d 903, 915, 916 (D.C. Cir. 1997) (noting that "courts routinely admit hearsay statements of co-conspirators subject to connection through proof of a conspiracy" and affirming trial court's sequencing of proof since defendants' proposed preliminary hearing for proof of conspiracy "would have been wasteful of judicial time, as the hearing and trial testimony on the murder would have been largely duplicative, " and "seriously increased the risks to the witnesses"); United States v. Edelin, 128 F.Supp.2d 23, 45-46 (D.D.C. 2001) (denying the defendant's request for an advance determination of conspiracy since such a pretrial hearing "would be lengthy, further delaying the trial in this case and placing an unreasonable burden on the government, " and "would jeopardize the safety of cooperating witnesses and other persons"). These considerations militate strongly in favor of permitting the government to introduce the co-conspirator statements, subject to connection, at trial.[7]

         Accordingly, the defendants' joint motion for a pretrial hearing on the admissibility of co-conspirator statements is denied.

         C. Agustin's Motion to Enforce the Rule of Specialty

         In yet another effort to bar admission against him of "any and all information obtained as the result of the Government's Title III wiretap in this case, " Agustin's Mot. Enforce the Rule of Specialty ("Agustin's Specialty Mot.") at 1, ECF No. 54, Agustin contends that the admission of such interceptions "would also constitute an impermissible constructive amendment of the Indictment that formed the basis of the extradition request, " id., and thereby violate the Rule of Specialty. As grounds for this contention, he asserts that "the basis for the extradition included only events that took place before May 2, 2012-the date the Indictment was returned, " and ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.