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United States v. Branche-Jones

United States District Court, D. Nevada

October 28, 2019




         The United States has filed a motion in limine to admit hearsay statements made by a deceased declarant. (ECF No. 224). Out of the five defendants in this case, only Hakim Rydell Branche-Jones and Darrin Wilder filed responses (ECF Nos. 242, 243). In addition to that motion, defendant Albert Jones has also filed a motion to sever his trial from the joint trial of Branche-Jones, Wilder, and Elizabeth Perez. (ECF No. 253).[1] For the reasons stated below, the Court grants the government's motion in limine and denies Jones's motion to sever.

         I. Factual Background and Procedural History

         This case has a somewhat convoluted procedural history. The government filed a single count criminal complaint against Branche-Jones and Wilder on February 9, 2016, alleging that both men conspired to distribute cocaine and methamphetamine from Las Vegas to Philadelphia. (ECF No. 1). The affidavit in support of the complaint indicated that the United States Postal Inspection Service intercepted a package in Philadelphia containing narcotics allegedly sent by Branche-Jones and Wilder. They, along with Jones, Alisha Perez, and Elizabeth Perez, were indicted in a four-count indictment on June 22, 2016. (ECF No. 31). Branche-Jones, Wilder, Alisha Perez, and Jones were indicted on count one (conspiracy to distribute a controlled substance); Alisha Perez and Branche-Jones were indicted on count two (possession of a firearm in furtherance of a drug trafficking crime) and count three (possession of a stolen firearm), and all five defendants were indicted on count four (conspiracy to money launder). (Id.)

         Wilder filed a motion to sever, joined by Jones and Alisha Perez, on September 30, 2016, seeking severance of the conspiracy charges, gun charges, Jones, and Alisha Perez. (ECF No. 65). Following several deadline extensions, the Court denied most of Wilder's motion to sever on June 19, 2017. (ECF No. 138). As the Court noted in that motion, Jones and Alisha Perez made post-custodial, incriminating statements to law enforcement that implicated both them and the other defendants in the drug trafficking conspiracy. (Id. at 2). The Court found that each of the four counts were properly joined; there was a logical connection between the drug-trafficking conspiracy charge and the money laundering conspiracy charge because the defendants were accused of trying to launder the proceeds from their alleged drug trafficking scheme. (Id. at 4). As to the severing of Jones and Perez, the Court provisionally granted (and later granted) the motion to sever Perez because her statements to police could not be redacted in compliance with the Supreme Court's decision in Bruton v. U.S., 391 U.S. 123 (1968). (Id. at 6-9). The Court denied the motion as to Jones because neither Wilder nor the government provided the court with sufficient information to determine if a redaction of his statements would avoid a Bruton issue. (Id. at 8). The Court also denied a motion to sever filed by Elizabeth Perez on March 15, 2019, for similar reasons. (ECF No. 210).

         After additional extensions and continuances, the government filed a second superseding indictment against all defendants on July 31, 2019. (ECF No. 228). Counts one and two remained the same; Wilder and Branche-Jones were now indicted under count three (distribution of a controlled substance); Branche-Jones was indicted under count four (possession of a firearm in furtherance of a drug trafficking offense), all five defendants were still indicted under count five (conspiracy to launder money), and Branche-Jones, Alisha Perez, Jones, and Elizabeth Perez were indicted under count six (conspiracy to structure). Prior to the filing of the second superseding indictment, on July 11, 2019, the government filed a motion in limine to admit statements at trial pursuant to Federal Rule of Evidence 804(b)(3). (ECF No. 224). Following that motion, Jones filed his own motion to sever on September 17, 2019. (ECF No. 253).

         II. Discussion

         A. The Government's Motion in Limine (ECF No. 224)

         The United States's motion in limine seeks to introduce testimony from a deceased declarant at trial. Specifically, the government seeks to introduce the following testimony:

(1) Witness #1 will testify that Deceased #1 told him [that] defendant [Branche-Jones] owed Deceased #1 approximately $100, 000 for narcotics that Deceased #1 had “fronted” Branche-Jones, and that if there wasn't some form of payment, Deceased #1 was going to have to “repossess” Branche-Jones's vehicles;
(2) Witness #2 will testify Deceased #1 told her [that] (a) he fronted drugs to Branche-Jones, which Branch-Jones shipped and lost in the mail, and (b) he told Branche-Jones to “[g]et this money or I'll give them your address.”

(ECF No. 224 at 1-2). These statements undoubtedly constitute hearsay because they are out of court statements being offered for the truth of the matter asserted (that Branche-Jones was distributing narcotics). The government argues that under Federal Rule of Evidence 804(b)(3) (the hearsay exception for statements made against penal interests), the testimony from Witness #1 and Witness #2 should be admitted.

         To admit a statement into evidence under Rule 804(b)(3), the proponent must show that: (1) the declarant is unavailable to testify as a witness; (2) the statement tends to subject the declarant to criminal liability that a reasonable person in the declarant's position would not have made the statement unless believing it to be true, and (3) corroborating circumstances exist clearly indicating that the statement is trustworthy. U.S. v. Paguio, 114 F.3d 928, 932 (9th Cir. 1997). Here, there is no question that the first requirement is met because the declarant is deceased. For a declarant's statements to be “against his penal interest, ” the statements must subject him to criminal liability “in a real and tangible way.” U.S. v. Hoyos, 573 F.2d 1111, 1115 (9th Cir. 1978). The statement does not need to be a plain confession. Id. at 933 (citing U.S. v. Slaughter, 891 F.2d 691, 698 (9th Cir. 1989)). Such a determination must be made from the circumstances of each case and can only be determined by viewing the statements in context. Williamson v. U.S., 512 U.S. 594, 603 (1994).

         In this case, the Court finds that Deceased #1's statements expose him to criminal liability, a reasonable person would not have made them unless true, and corroborating evidence indicates that the statements are trustworthy. Deceased #1 reportedly told Witness #1 that Branche-Jones owed Deceased #1 $100, 000 for drugs he had given him. Deceased #1 then told Witness #2 that Branche-Jones had lost drugs Deceased #1 had given him, and if Branche-Jones did not repay him, Deceased #1 was going to give “them” Branche-Jones's address. The government does not specify who Deceased #1 meant by “them, ” only identifying “them” as “unidentified people in Mexico.” (ECF No. 224 at 3). These statements clearly implicate Deceased #1 as engaging in an illegal drug trafficking scheme, exposing himself to criminal liability. Wilder argues that the Witness #1's statement is not wholly against interest because the ...

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