United States District Court, D. Nevada
R. HICKS UNITED STATES DISTRICT JUDGE
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). For the reasons stated below, the Court
grants the government's motion in limine and
denies Jones's motion to sever.
Factual Background and Procedural History
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.)
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).
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).
The Government's Motion in Limine (ECF No.
United States's motion in limine seeks to
introduce testimony from a deceased declarant at trial.
Specifically, the government seeks to introduce the following
(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
(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.
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).
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 ...