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UNITED STATES v. NAVA-SALAZAR

April 7, 1990

UNITED STATES, Plaintiff,
v.
RICARDO NAVA-SALAZAR, et al., Defendants


Ilana D. Rovner, United States District Judge.


The opinion of the court was delivered by: ROVNER

ILANA D. ROVNER, UNITED STATES DISTRICT JUDGE

 I. Introduction

 The defendants in this case have been charged with possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and with conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. § 846. Pending are the government's proffer concerning admissibility of co-conspirator statements and motions in limine brought by defendant Guillermo Casas.

 II. CO-CONSPIRATOR HEARSAY

 Defendant Darley Usma moved for the holding of an evidentiary hearing to determine the admissibility of any evidence which the government intended to submit pursuant to the co-conspirator statements exception to the hearsay rule, Fed. R. Evid. 801(d)(2)(E). On January 10, 1990, the Court ordered the government to submit a written proffer presenting the government's proof with respect to co-conspirator statements. See United States v. Boucher, 796 F.2d 972, 974 (7th Cir. 1986). Pursuant to that order, the government has submitted a written proffer. Only defendant Casas has submitted a response to that proffer.

 In order for evidence to be admissible pursuant to Rule 801(d)(2)(E), the government must prove by a preponderance of the evidence that a conspiracy existed, that the defendant and the declarant were members of the conspiracy, and that the offered statement was made during the course of and in furtherance of the conspiracy. United States v. Hooks, 848 F.2d 785, 794 (7th Cir. 1988). See also Bourjaily v. United States, 483 U.S. 171, 175-76, 107 S. Ct. 2775, 2778-79, 97 L. Ed. 2d 144 (1987). In determining whether the government has made the necessary showing, the Court may rely on both hearsay evidence and independent evidence. See Bourjaily, 483 U.S. at 181, 107 S. Ct. at 2782.

 The Court finds at this time that the proffered evidence is sufficient to establish by a preponderance of the evidence that a conspiracy existed and that the members of the conspiracy included all of the defendants as well as an individual referred to as "Diego." The Court also finds that the statements identified in the proffer were made in furtherance of the conspiracy. If there are additional statements, the Court will consider whether they were made in furtherance of the conspiracy when the government seeks to introduce them, if an objection is raised.

 Casas objects that there is insufficient evidence tying him to the conspiracy. He argues that references to "Guillermo" are ambiguous and do not necessarily refer to "Guillermo Casas." The Court finds that this argument goes only to the weight of the evidence; it does not prevent the evidence from being considered in the first place. The government has proffered the following evidence that Casas was involved in the conspiracy: On June 18, 1989, Nava-Salazar told Agent Crawford that he would deliver 300 kilos of cocaine to "Guillermo;" on June 19, surveillance officers observed Casas drive irregularly in the vicinity of the Holiday Inn, park his car, and then speak with Nava-Salazar, who had emerged from the Holiday Inn. The officers then observed Casas retrieve a box from his car and carry the box into the hotel, accompanied by Nava-Salazar. Later, the officers observed Casas leave the hotel in the company of Nava-Salazar and Usma. Later, upon his arrest, Casas acknowledged that he had provided $ 45,000 to Usma and Nava-Salazar during the June 19 meeting at the Holiday Inn. *fn1" The Court finds that this evidence is sufficient to connect Casas with the conspiracy for purposes of Rule 801(d)(2)(E).

 The Court conditionally finds that the statements offered by the government are admissible pursuant to Rule 801(d)(2)(E). This preliminary finding is subject to motions to strike at the close of the government's case if the government fails to sufficiently prove the facts stated in its proffer. See United States v. Van Daal Wyk, 840 F.2d 494, 496 (7th Cir. 1988).

 III. TAPE-RECORDED EVIDENCE

 Several of Casas' motions in limine concern two tape recorded conversations between Agent Reina and Diego and the government's transcriptions. The first passage at issue, from tape number two, reads as follows:

 
REINA What happened then is that he gave us -- he gave us -- uh -- uh -- one ...

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