Opinion
Cause No. 1:15-cr-24-WTL-DKL
08-15-2016
UNITED STATES OF AMERICA, Plaintiff, v. DANIEL STEWART, Defendant.
SEALED ENTRY ON GOVERNMENT'S SANTIAGO PROFFER
The Government submitted a Santiago proffer (Dkt. No. 110), requesting that the Court make a preliminary determination regarding the admissibility of certain statements made by Geraldo Colon pursuant to United States v. Santiago, 582 F.2d 1128 (7th Cir. 1978). Stewart has not objected to the Government's proffer. The Court finds that if the Government produces the proffered evidence at trial, it will have satisfied the requirements of Federal Rule of Evidence 801(d)(2)(E).
I. STANDARD
In order to make this preliminary determination, "the government must convince the court, by a preponderance of the evidence, that (1) a conspiracy existed, (2) the defendant and the declarant were members of the conspiracy, and (3) the statement(s) sought to be admitted were made during and in furtherance of the conspiracy." United States v. Alviar, 573 F.3d 526, 540 (7th Cir. 2009) (citing Santiago, 582 F.2d at 1133-34); see also Fed. R. Evid. 801(d)(2)(E). "Santiago proffers are, by nature and necessity, argumentative and summary." United States v. Cox, 923 F.2d 519, 527 (7th Cir. 1991). If the Government meets its burden via its proffer, the Court will conditionally admit the co-conspirator statements. "If at the close of its case the prosecution has not met its burden to show that the statements are admissible, the defendant can move for a mistrial or to have the statements stricken." United States v. Haynie, 179 F.3d 1048, 1050 (7th Cir. 1999).
II. DISCUSSION
In the case at bar, the Government seeks a conditional ruling from this Court admitting statements of Colon. As explained more fully below, the Court finds that the Government has shown by a preponderance of the evidence that the conspiracy described in its proffer existed; that Colon and Daniel Stewart were members of the conspiracy; and that the statements expected to be elicited at trial were made during and in furtherance of the conspiracy.
A. The Existence of the Conspiracy and Stewart's and Colon's Participation Therein
A conspiracy consists of "two or more people [who] agreed to commit an unlawful act." United States v. Barta, 776 F.3d 931, 939 (7th Cir. 2015) (quotation and citation omitted). "Once a conspiracy is established, only slight evidence is required to link a defendant to it." United States v. Shoffner, 826 F.2d 619, 627 (7th Cir. 1987). The Court has reviewed the evidence that the Government proffered of the conspiracy and Colon and the Defendant's participation. See Dkt. No. 110 at 6-11.
As the Seventh Circuit has noted, "in the murky world of illicit drugs, conspiracies are, by necessity, loosely-knit associations." United States v. Sanchez, 251 F.3d 598, 601 (7th Cir. 2001) (citation omitted). The court provided further guidance as follows:
[A] conspiracy to distribute drugs can consist of an implicit understanding between the parties, evidenced by "transactions involving large quantities of drugs, prolonged cooperation between the parties, standardized dealings, and sales on a credit." United States v. Berry, 133 F.3d 1020, 1023 (7th Cir. 1998). While these factors are instructive, no single factor is dispositive. United States v. Pearson, 113 F.3d 758, 761 (7th Cir. 1997).Id. at 602.
Here, the Court finds that the Government has shown by a preponderance of the evidence that a conspiracy existed. The evidence proffered by the Government demonstrates transactions involving large quantities of drugs - kilograms of heroin and cocaine. See United States v. Brown, 726 F.3d 993, 1000 (7th Cir. 2013) (holding that "if a person buys drugs in large quantities (too great for personal consumption), on a frequent basis, on credit, then an inference of conspiracy legitimately follows"). Moreover, in his post-arrest statement to police, the Defendant indicated that Colon had been his drug source for approximately a year and a half, which demonstrates prolonged cooperation.
Further, the Government has shown by a preponderance of the evidence that the Defendant and Colon were members of the conspiracy. The evidence proffered by the Government, including the post-arrest statement of the Defendant, is that Colon was the Defendant's supplier of large quantities of drugs. As such, both were members of the conspiracy.
B. The Statements Were Made in Furtherance of the Conspiracy
Finally, the Court finds that the Government's proffer is sufficient to conditionally establish that the statements it seeks to admit under Federal Rule of Evidence 801(d)(2)(E) were made during and in furtherance of the conspiracy outlined above. "The standard to be applied is whether some reasonable basis exists for concluding that the statement furthered the conspiracy." Shoffner, 826 F.2d at 628 (quotation and citation omitted). The Government did not provide the specific statements of each declarant for a determination of whether the statement furthered the conspiracy in some way, but it summarized them as follows:
The cooperating witness (CW-1) who was arrested on May 14, 2014 will testify that he/she spoke on numerous occasions to Geraldo Colon, and delivered kilograms of heroin and cocaine to Colon in Indianapolis in 2014. CW-1 also observed Colon delivering heroin and cocaine to the Defendant when the Defendant came to Colon's furniture store, Muebleria Furniture. Additionally, CW-1 went with Colon, at Colon's
request, to the Defendant's apartment complex, Eagle Chase Apartments, on multiple occasions so that Colon could deliver kilograms of heroin and cocaine to the Defendant. On those occasions, CW-1 did not enter the Defendant's apartment with Colon, but he/she knew Colon was delivering the drugs to the Defendant because Colon told the cooperating witness that is to whom he (that is, Colon) was delivering the drugs. CW-1 will testify that when Colon came out of Defendant's apartment on these occasions, Colon no longer had the kilograms of controlled substances that he entered the apartment with, but he did have the money that Colon owed to CW-1's organization.Dkt. No. 110 at 11. Obviously, CW-1's testimony about his own statements, actions, and observations of the actions of others would not be hearsay. However, statements made by Colon about which CW-1 would testify would be hearsay if they did not fall within one of the hearsay exceptions or exclusions.
The Government has a relatively low burden of proof on the issue of whether a statement is made "in furtherance" of a conspiracy. Shoffner, 826 F.2d at 628. Such statements can take on a variety of forms, and the Seventh Circuit has upheld the admission of a wide assortment of coconspirators statements. For instance, statements used to recruit potential coconspirators, id.; update others on a conspiracy's progress, United States v. Potts, 840 F.2d 368, 371 (7th Cir. 1987); control damage to an ongoing conspiracy, United States v. Van Daal Wyk, 840 F.2d 494, 499 (7th Cir. 1988); inform or reassure the listener, United States v. Sophie, 900 F.2d 1064, 1073 (7th Cir. 1990); plan or review co-conspirators' exploits, United States v. Molt, 772 F.2d 366, 369 (7th Cir. 1985); express updates on the status of the conspiracy and how the status affected the future of the conspiracy, United States v. Doyle, 771 F.2d 250, 256 (7th Cir. 1985); and attempt to conceal or protect the conspiracy, United States v. Kaden, 819 F.2d 813, 820 (7th Cir. 1987), have been approved as statements made "in furtherance of" conspiracies. The Seventh Circuit has recognized that "conspiracy is serious business, and talk about it among or by the conspirators should not be presumed to be unrelated to the accomplishment of the conspiracy's goals." United States v. Pallais, 921 F.2d 684, 688 (7th Cir. 1990). Here, the statements described by the Government fall within these categories. As such, they were in furtherance of the conspiracy.
In all, the Court finds that the Government's proffer is sufficient to make a preliminary determination that these statements expected to be elicited at trial were made in furtherance of the conspiracy outlined above.
III. CONCLUSION
In conclusion, the Court finds that the Government has shown by a preponderance of the evidence that the conspiracy described in its proffer existed; that Colon and the Defendant were members of the conspiracy; and that the statements expected to be elicited at trial were made during and in furtherance of the conspiracy. Pursuant to Federal Rule of Evidence 104, the Court makes this preliminary determination and will conditionally admit these statements pursuant to Federal Rule of Evidence 801(d)(2)(E). See Santiago, 582 F.2d at 1130-31.
SO ORDERED: 8/15/16
/s/_________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana Copies to all counsel of record via electronic communication