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United States v. Tate

United States District Court, N.D. Oklahoma

March 9, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
SLINT KENNETH TATE, Defendant.

          OPINION AND ORDER

          CLAIRE V. EAGAN, UNITED STATES DISTRICT JUDGE.

         Now before the Court are the following motions: Defendant Slint Tate's Motion to Suppress Evidence Derived from Pen Register (Dkt. # 106); Defendant Slint Tate's Motion in Limine (Dkt. # 107); Defendant Slint Tate's Motion for Disclosure of Co-Conspirator Statements (Dkt. # 109); Defendant Slint Tate's Motion for James Hearing (Dkt. # 110).

         I.

         On September 6, 2017, a grand jury returned an indictment alleging that defendant and six others participated in a conspiracy to possess with intent to distribute and to distribute at least 500 grams of a mixture or substance containing a detectable amount of methamphetamine (count one). Dkt. # 2, at 2. In addition to the conspiracy charge alleged in count one, defendant is charged with four counts of distributing methamphetamine (counts two through five) and sixteen counts of using a communication facility in committing or facilitating a drug trafficking offense (counts 10 through 25). The conspiracy allegedly began in March 2015 and continued until September 2017. The indictment alleges that defendant directed a drug trafficking organization from the Oklahoma penitentiary located in McAlester, Oklahoma, where defendant allegedly used a cell phone to manage the operations of the organization. Id. at 3. Defendant allegedly directed persons outside of the prison to sell methamphetamine, and defendant Robin Tracy Zumwalt allegedly stored illegal drugs, drug paraphernalia, proceeds of drug transactions, firearms, and other property for the drug trafficking organization. Id. at 5. Defendant engaged in discussions with Zumwalt and an unindicted coconspirator to obtain quantities of methamphetamine and marijuana for distribution in Oklahoma. Id. at 6.

         On May 4, 2016, defendant allegedly ordered defendant Jeremy Dallas Mann to assault an unindicted coconspirator who defendant believed was jeopardizing the drug trafficking organization. Id. Defendant continued to direct drug trafficking operations until May 7, 2016, when law enforcement officers began to arrest members of the organization. Id. at 7. The indictment alleges that defendant Zumwalt and Mann began to conceal property used in furtherance of the conspiracy, and Zumwalt stored over $8, 000, drug paraphernalia, a .22 caliber pistol, and a sawed off shotgun in her home. Id.

         II.

         A.

         Defendant has filed two motions related to the government's use of coconspirator statements at trial. Defendant asks the Court to conduct a pretrial hearing to determine whether coconspirator statements will be admissible at trial. Dkt. # 110. He also asks the Court to compel the government to “disclose notice of every specific statement and its respective declarant” that the government intends to use at trial. Dkt. # 109, at 3. The government responds that a pretrial hearing to determine the admissibility of coconspirator statements is not required under Tenth Circuit precedent, and defendant has cited no authority that the government has any obligation to disclose what evidence it will present at trial. Dkt. ## 112, 113.

         Under Fed.R.Evid. 801(d)(2)(E), a statement is not considered hearsay if the court finds that “(1) a conspiracy existed; (2) both the declarant and the defendant against whom the declaration is offered were members of the conspiracy; and (3) the statement was made in the course of and in furtherance of the conspiracy.” United States v. Eads, 191 F.3d 1206, 1210 (10th Cir. 1999) (quoting United States v. Caro, 965 F.2d 1548, 1557 (10th Cir. 1992)). For Rule 801(d)(2)(E) to apply, the government must establish the existence of a conspiracy at some point in its case-in-chief, or the statements must be excluded. United States v. Kaatz, 705 F.2d 1237, 1244 (10th Cir. 1983). A court “can only admit coconspirator statements if it holds a James hearing [before trial] or conditions admission on forthcoming proof of a ‘predicate conspiracy through trial testimony or other evidence.'” United States v. Townley, 472 F.3d 1267, 1273 (10th Cir. 2007) (quoting United States v. Owens, 70 F.3d 1118 (10th Cir. 1995)). A district court may rely on the statements and observations of other coconspirators to support its finding that a conspiracy existed. Owens, 70 F.3d at 1124-25. If a coconspirator statement is admissible under Fed.R.Evid. 801(d)(2)(E), the requirements of the Confrontation Clause of the Sixth Amendment are also satisfied. United States v. Molina, 75 F.3d 600, 603 (10th Cir. 1996).

         The government opposes defendant's motion for a James hearing and argues that there is no Tenth Circuit precedent requiring a pretrial hearing to determine the admissibility of coconspirator statements. Dkt. # 113. The Tenth Circuit has stated that it has a “preference” for a district court to hold a pretrial hearing. United States v. Gonzalez-Montoya, 161 F.3d 643, 649 (10th Cir. 1998). However, the Tenth Circuit has clearly held that this is a preference only, and the district court retains discretion to hold a pretrial hearing or permit the government to “connect up” the statements to a conspiracy at trial. United States v. Urena, 27 F.3d 1487, 1491 (10th Cir. 1994). In this case, the indictment alleges that numerous defendants engaged in a conspiracy to distribute methamphetamine, and a James hearing would take almost as long as a jury trial. The Court will require the government to lay a proper foundation for admitting coconspirator statements by offering proof of the conspiracy and each defendant's membership in it before seeking to admit the statements, but defendant's motion (Dkt. # 110) for a James hearing is denied.

         Defendant also asks the Court to compel to the government to identify each coconspirator statement that it intends to use at trial. Dkt. # 109, at 1. The government states that it has disclosed all coconspirator statements to defendant, including statements from uncharged-coconspirators, but it argues that it has no obligation to specifically identify what statements it may use at trial. Dkt. # 112, at 1-2. The Court has reviewed defendant's motion and he cites no authority that government is required to make a pretrial disclosure of the evidence it intends to use at trial. Discovery in criminal cases is limited and the government is not ordinarily compelled to identify what evidence or witnesses will be presented at trial. See United States v. Nevels, 490 F.3d 800, 803-04 (10th Cir. 2007). Defendant does not dispute that coconspirator statements have been disclosed and that his attorney will be able to prepare for trial. However, he has not shown that the government is required to specifically identify what evidence it will use at trial, and his motion (Dkt. # 109) for pretrial disclosure of the coconspirator statements that the government will use at trial is denied.

         B.

         Defendant has filed a motion in limine (Dkt. # 107) seeking to exclude eight categories of evidence. The government opposes defendant's motion as to seven of the categories of evidence, but the government does not oppose defendant's request to exclude evidence of his prior criminal conviction for which he is currently incarcerated. Dkt. # 114, at 2. The Court will preliminarily grant defendant's request to exclude evidence of his criminal conviction but, considering the nature of the case, the evidence could become admissible if defendant makes his prior conviction relevant at trial.

         Evidence of Defendant's ...


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