Opinion
Criminal Action No. 04-355 (CKK).
March 20, 2005
MEMORANDUM OPINION
Currently before the Court are (1) Defendant Lionel Stoddard's Motion for a Pretrial James Hearing, and (2) Defendant Aaron Perkins' Motion for Preliminary Determination of Conspiracy and Pretrial Ruling on the Admissibility of Co-Conspirator Statements. The Government has filed an Omnibus Response that answers, inter alia, these specific motions made by Defendants Stoddard and Perkins. After reviewing the parties' briefing and the relevant caselaw, the Court shall deny both of the defendants' respective motions.
I: BACKGROUND
On November 9, 2004, the Grand Jury in the above-captioned case returned a twenty-one count Superseding Indictment against the six remaining defendants in this case — Miquel Morrow, Lionel Stoddard, Carlos Aguiar, Bryan Burwell, Aaron Perkins, and Malvin Palmer (collectively, "Defendants"). Count I of the Indictment charges all six Defendants with a conspiracy to participate in a Racketeer Influenced Corrupt Organization ("RICO"), in violation of 18 U.S.C. § 1962(d), based upon alleged racketeering acts involving armed robberies of four banks in the District of Columbia (Acts 1-4) and two banks in the District of Maryland (Acts 5-6), as well as three acts involving murder (Acts 7-9). Count II charges all six Defendants with a conspiracy to commit offenses against the United States. Substantive charges involving armed bank robbery (Counts III, VIII, XII, and XVII), using or carrying a firearm during a crime of violence (Counts IV, IX, XIII, XVIII), unlawful possession of a firearm by a felon (Counts V-VII, X-XI, XIV-XVI, XIX), and assault with intent to kill (Counts XX-XXI), are charged against the specific defendants named in those counts. The armed robberies were allegedly accomplished while the Defendants brandished weapons and wore body armor, hoods, masks, bandanas, and heavy clothing to avoid identification. The assaults also involved the use of firearms.
A substantially similar superseding indictment was returned on February 15, 2005, that deleted two of the previous counts, changing the numbering scheme. However, many of the motions concerning the validity of the Indictment were filed prior to this February date, and both the Government and the Defendants refer to the numbering scheme employed by the November 9, 2004 Superseding Indictment in their filings. As such, for purposes of clarity, the Court will refer to the numbering scheme used in the November 9, 2004 Indictment in this Opinion.
II: DISCUSSION
The Court shall deal with the motions filed by Defendant Stoddard and Defendant Perkins as a unit, as both essentially request the same relief from the Court. Specifically, both defendants anticipate that, in light of the conspiracy allegations in the indictment and the discovery provided to date, the Government will attempt to introduce alleged co-conspirator declarations at trial under Federal Rule of Evidence 801(d)(2)(E). Def. Stoddard's Mot. at 1; Def. Perkins' Mot. at 1. As such, Defendant Stoddard moves the Court "pursuant to United States v. James, 590 F.2d 575 (5th Cir. 1979) (en banc), cert. denied, 442 U.S. 917, 99 S. Ct. 2836, 61 L.Ed.2d 283 (1979), and its progeny, for a pretrial hearing concerning the admissibility of any alleged co-conspirator declarations that the prosecution may offer under Fed.R.Evid. 801(d)(2)(E)." Def. Stoddard's Mot. at 1. Similarly, Defendant Perkins suggests that the Court should hold a pretrial hearing pursuant to its authority under Federal Rule of Evidence 104(a) "to determine the existence of a conspiracy and to determine the admissibility of statements of alleged co-conspirators pursuant to Rule 801(d)(2)(E) of the Federal Rules of Evidence." Def. Perkins' Mot. at 1.
The Government confirms that it "will seek to elicit statements under the rule permitting the admission of co-conspirator statements." Gov'ts Omnibus Response in Opp'n to Defs.' Mots. ("Gov'ts Omnibus Response") at 54.
Both defendants contend that such a pretrial hearing would have three central advantages: (1) it would avoid prejudice to the defendants that might result from improperly admitted hearsay statements at trial, Def. Stoddard's Mot. at 4; Def. Perkins' Mot. at 4; (2) "a pretrial determination would be more efficient and would allow the jury trial to flow smoothly, more quickly, and with fewer interruptions for argument about (for example) whether a particular statement was made `in furtherance of' the alleged conspiracy," Def. Stoddard's Mot. at 4; see also Def. Perkins' Mot. at 4; and (3) given the fact that if the Court later determines that the Government has not met its burden of establishing Rule 801(d)(2)(E) requirements and that limiting instructions are insufficient to counteract the prejudice to Defendants, the Court must declare a mistrial, both Defendant Stoddard and Defendant Perkins suggest that a pretrial determination of this issue would conserve judicial resources, Def. Stoddard's Mot. at 4; Def. Perkins' Mot. at 4-5 (noting that failure by a court to make a finding regarding co-conspirator hearsay constitutes reversible error). In the alternative, should the Court deny these motions and choose to defer the issue of the admissibility of co-conspirator hearsay until trial, Defendant Perkins requests that the Court compel the Government to provide a summary of its foundation evidence. Def. Perkins' Mot. at 5. According to Defendant Perkins, "[i]f the summary indicates that the government will have difficulties proving a foundation, then this Court should either require a hearing on the admissibility of the hearsay, or, in the alternative, structure the order of proof at trial so that a ruling can be made before the hearsay is admitted." Id.
Federal Rule of Evidence 801(d)(2)(E) excludes from the definition of hearsay "a statement by a coconspirator of a party during the course and in furtherance of the conspiracy." Fed.R.Evid. 801(d)(2)(E). For an out-of-court declaration to fall within the purview of Rule 801(d)(2)(E), the proponent must demonstrate that (1) a conspiracy existed at the time the declaration was made, (2) that the defendant and the declarant were members of the conspiracy, and (3) that the declaration was made in the course and in furtherance of the conspiracy. See Bourjaily v. United States, 483 U.S. 171, 175 (1987); United States v. Gantt, 617 F.2d 831, 844 (D.C. Cir. 1980). Once admitted, a statement made in furtherance of the conspiracy is admissible against all co-conspirators. United States v. Jackson, 627 F.2d 1198, 1216 (D.C. Cir. 1980).
Importantly, "[a]s a concession to such practical impediments that may arise during trial, the court is vested with considerable discretion to admit particular items of evidence `subject to connection.'" Id. at 1218 (citing United States v. Vaught, 485 F.2d 320, 323 (4th Cir. 1973) ("[T]he judge may, in his discretion, permit the introduction of evidence as to things said and done by an alleged co-conspirator subject to being connected up and followed by evidence of the existence of the conspiracy.")); Gantt, 617 F.2d at 845 ("As a practical matter, to avoid what otherwise would become a separate trial on admissibility, the court may admit declarations of co-conspirators `subject to connection.'"). However, in James, the fulcrum of Defendant Stoddard's motion and the implicit basis of Defendant Perkins' motion, the Fifth Circuit held that although the district court had discretion to admit an asserted co-conspirator statement "subject to connection," "[t]he district court should, whenever reasonably practicable, require the showing of a conspiracy and of the connection of the defendant with it before admitting declarations of the coconspirator." James, 590 F.2d at 582. Indeed, other courts as well have focused on the fact that "the 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." Jackson, 627 F.2d at 1218; United States v. Hewes, 729 F.2d 1302, 1312 n. 6 (11th Cir. 1984).
Despite the fact that a pretrial James hearing may well be the "best practice" in theory, the Jackson Court itself recognized that
many times witnesses are in possession of both hearsay testimony of co-conspirators and evidence that independently tends to prove the existence of the conspiracy. Given the myriad of difficulties that surround the availability of witnesses, it is just impractical in many cases to comply strictly with the preferred order of proof by taking the testimony of such witnesses piecemeal, waiting until a conspiracy is fully proved by independent evidence, and the recalling from their normal pursuits, those who testify to hearsay declarations of co-conspirators.Id. Given this reality, "[t]he case law of this Circuit upholds the practice of deferring the determination of a defense motion if that motion requires a pretrial `deciding [of] issues of fact that are inevitably bound up with evidence about the alleged offense itself.'" United States v. Edelin, 128 F. Supp. 2d 23, 45 (D.D.C. 2001) (quoting United States v. Wilson, 26 F.3d 142, 159 (D.C. Cir. 1994), cert. denied, 514 U.S. 1051, 115 S.Ct. 1430, 131 L.Ed.2d 311 (1995)). Using this avenue of deferring the ruling, "[i]f substantial evidence of the connection has not been produced at the close of the government's case the court will instruct the jury to disregard the hearsay statements; or the court may grant a mistrial." Gantt, 617 F.2d at 845 (citations omitted).
Using its discretion, the Court shall deny Defendant Stoddard and Defendant Perkins' requests for a pretrial hearing relating to co-conspirator statements, and shall instead admit such statements "subject to connection." In this case, to determine pretrial whether a particular statement meets the elements for admission of co-conspirator statements, the Court would essentially have to conduct a trial before the trial. Rule 801(d)(2)(E) requires the Government to prove both that the conspiracy exists and that the statement was made in furtherance of the conspiracy; according to the Government, "[m]uch of the Government's evidence at trial will be presented to prove the existence of the racketeering and Section 371 conspiracies." Gov'ts Omnibus Response at 55. Given this fact, the Court finds that it would likely be an enormous waste of judicial resources to force the Government to present this evidence twice in order to resolve the question of co-conspirator statements in advance of a trial that is expected to last approximately three to four months. Moreover, the Court would be hamstrung by the fact that it would be forced pretrial to decide issues of fact that are inevitably bound up with evidence about the alleged offense itself. Neither the federal rules nor prior cases require that the Court undertake such a time consuming, intensive, and possibly wasteful exercise. Rather, the Court notes that Defendants may still make objections concerning co-conspirator statements at trial, and may renew their motion at the close of the Government's evidence in order to test whether the relevant statements should be stricken and either a limiting instruction or a mistrial should occur.
As to Defendant Perkins' suggestion that the Court force the Government to provide a summary of its foundation evidence and then, if such a summary shows weaknesses, conduct a pretrial hearing, the Court finds that such a suggestion is impractical and not legally required. Defendant Perkins' request would force the Court to make a decision regarding the merits of the Rule 801(d)(2)(E) evidence ex parte before any testimony has been given or any evidence proffered, though such a decision would not be legally binding. If the Court found a weakness, it would then have to conduct a pretrial hearing where it would have to issue another judicial "opinion" upon conclusion. The Court considers such an approach to be contrary to judicial economy and not conducive to producing well-reasoned, well-founded rulings. Accordingly, the Court shall also deny Defendant Perkins' alternative request for relief.
IV: CONCLUSION
For the reasons set forth above, the Court shall deny (1) Defendant Lionel Stoddard's Motion for a Pretrial James Hearing, and (2) Defendant Aaron Perkins' Motion for Preliminary Determination of Conspiracy and Pretrial Ruling on the Admissibility of Co-Conspirator Statements. An Order accompanies this Memorandum Opinion.