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U.S v. KAPP

United States District Court, Northern District of Illinois, Eastern Division


March 17, 2003

UNITED STATES OF AMERICA
v.
WILLIAM H. KAPP

The opinion of the court was delivered by: Blanche M. Manning, United States District Court Judge.

MEMORANDUM AND ORDER

The Government indicted Defendant William R. Kapp for violating the Endangered Species Act (16 U.S.C. § 1531, et seq.) ("The ESA") and the Lacey Act (16 U.S.C. § 3371 et seq.) and for conspiring to violate these acts, in violation of 18 U.S.C. § 371, for allegedly engaging in the slaughter and interstate sale of endangered wildlife, specifically tigers and leopards. The present matter comes before this Court on the Government's written proffer, pursuant to United States v. Santiago, 582 F.2d 1128 (7th Cir. 1987), supporting the admissibility of coconspirators' under FRE 801(d)(2)(E).*fn1

Under FRE 801(d)(2)(E), statements made by a coconspirator of a defendant during the course of and in furtherance of the conspiracy are not hearsay when offered against a defendant. Before allowing coconspirator statements into evidence, however, the government must demonstrate by a preponderance of the evidence that it is "more likely than not" that: "(1) a conspiracy existed, (2) the defendant and the declarant were members thereof, and (3) the proffered statements were made during the course of and in furtherance of the conspiracy." United States v. Cox, 923 F.2d 519, 516 (7th Cir. 1991). In making this determination, the court "may examine the hearsay statements sought to be admitted." Bourjaily v. United States, 483 U.S. 171, 181 (1987).

In determining whether a statement was made "in furtherance" of the conspiracy, all that is necessary is a reasonable basis upon which the court could conclude that the statement furthered the objectives of the conspiracy. United States v. Shoffner, 826 F.2d 619, 628 (7th Cir. 1987). Under this standard, a statement can be considered "in furtherance of the conspiracy" even though it is susceptible to different interpretations or was not made exclusively (or even primarily) to further the conspiracy's objectives. Id.

So long as a statement is "part of the information flow between conspirators intended to help each perform his role" it is admissible. United States v. Van Daal Wyk, 840 F.2d 494, 499 (7th Cir. 1988). Statements that further the objectives of a conspiracy include those that: (1) are an attempt to recruit potential co-conspirators, see Shoffner, 826 F.2d at 628; (2) seek to control damage to an ongoing conspiracy, see Van Daal Wyk, 840 F.2d at 499; (3) are made to keep co-conspirators advised of the progress of the conspiracy, see United States v. Potts, 840 F.2d 368, 371 (7th Cir. 1987); and (4) attempt to conceal the conspiracy, see United States v. Kaden, 819 F.2d 813, 820 (7th Cir. 1987). Moreover, conversations dealing with "topics [such] as selling [drugs], arranging delivery and payment. . . have uniformly been held to have been made in furtherance of the conspiracy." Van Daal Wyk, 840 F.2d at 499.

Here, the Government alleges that from August to November of 1997, Kapp and Co-Defendants Steven Galecki and Kevin Ramsey, conspired and agreed to purchase, or caused to be purchased, live endangered animals, including tigers (Panthera tigeris) and leopards (Panthera pardus). These animals were allegedly confined at the Funky Monkey Animal Park in Crete, Illinois. While at the Funky Monkey Animal Park, Kapp and others allegedly shot and killed these endangered animals while the animals were caged.

After shooting the animals, Kapp sold their meat to Czimer's Game and Sea Foods, Inc., in Lockport, Illinois, with the knowledge that the meat would be processed and sold to the public for human consumption. After the animals were skinned, Kapp caused their hides and skulls to be mounted and sold as trophies.

After reviewing the Government's Santiago proffer, this Court finds that the Government has shown by a preponderance of the evidence that it is "more likely than not" that Kapp and Co-Defendants Steven Galecki and Kevin Ramsey conspired to sell and purchase live endangered animals in violation of the ESA and the Lacey Act and that the recorded conversations between the Government's confidential informant ("CI") and Kapp and Kapp and undercover government agents ("UA") were in furtherance of the conspiracy. The recorded conversations between the CI, the UA, and Kapp concerned the purchase, slaughter, transport and sale of endangered species and the preparation of false paper work to hide the conspirators' illegal activity.

Accordingly, the Court finds that the Government's proffered coconspirator statements are conditionally admissible pursuant to Rule 801(d)(2)(E), subject to proof of the conspiracy at trial. See Santiago, 582 F.2d at 1131; Cox. 923 F.2d at 526.

CONCLUSION

For the reasons set forth above, the Court finds that the Government's proffered coconspirator statements are conditionally admissible pursuant to Rule 801(d)(2)(E), subject to proof of the conspiracy at trial. See Santiago, 582 F.2d at 1131; Cox, 923 F.2d at 526.


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