United States v. French

UNITED STATES OF AMERICA, Plaintiff, v. SHANNA RENE FRENCH, KYLE BURRITT FRENCH, andKENNETH SHANE FRENCH, Defendants.

No. CR-13-6051-RHW-2

No. CR-13-6051-RHW-3

No. CR-13-6051-RHW-4

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON

October 24, 2014

ORDER ADDRESSING PRETRIAL MOTIONS

Before the Court are the following pretrial motions: (1) the Government's Motion in Limine for Admission of Co-Conspirator Statements and its Supplemental Motion adding additional statements for the Courts consideration, ECF Nos. 147 and 184; (2) Defendant Shanna French's Motions in Limine 1-10, ECF No. 217; (3) The Government's Motion for Discovery as to Shane French, ECF No. 287; (4) Defendant Kyle French's Motion to Dismiss the Second Superseding Indictment, ECF No. 289; and (5) The Government's Motion to Exclude Advice of Counsel Defense and Witnesses, ECF No. 290.

Pursuant to Local Rule 7.1(h)(3)(B)(iii), the Court determines oral argument on these motions is unnecessary and decides the motions based on the briefing, files, and records contained herein.

A. The Government's Motion in Limine for Admission of Co-Conspirator Statements

BACKGROUND

Pursuant to the Court's Order of February 2, 2014, the Government provided a list of all co-conspirator statements it intends to admit in the form of a motion in limine. See ECF No. 147. On May 1, 2014, the Government supplemented its motion and added additional co-conspirator statements obtained after the seizure of computers from deceased co-defendant Ken French's home. See ECF No. 184. Only Defendant Kyle French offered a response to the Government's Motion. ECF Nos. 143 and 177.

DISCUSSION

1. Legal Standard

To establish the admissibility of out-of-court statements under Fed. R. Evid. 801(d)(2)(E), an offering party is required to prove that (1) there was a conspiracy involving the declarant and the non-offering party; (2) the statements were made during the pendency of the conspiracy; and (3) the statements were made in furtherance of the conspiracy. Bourjaily v. United States, 483 U.S. 171, 175, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987). Proof beyond a reasonable doubt is not required. Id. Rather, the offering party need only demonstrate the existence of the relevant conspiracy by a preponderance of the evidence for the sake of these preliminary fact issues. Id. at 176. A district court need not explicitly find on the record that the offering party met its burden. United States v. Lutz, 621 F.2d 940, 947 (9th Cir. 1980).

2. Preliminary Findings of the Court

Pursuant to Fed. R. Evid. 104(a), the Court preliminarily finds that all co-conspirator statements are admissible against all Defendants. Defendants Shanna French and Shane French did not respond to the motion. Defendant Kyle Frenchdid respond, however, the Court finds that for the purposes of the preliminary fact issue, a preponderance of the evidence indicates the statements are admissible against him. The Court finds that there is sufficient proffered evidence of the existence of a conspiracy and that the statements were in furtherance of a conspiracy. There is also sufficient evidence the Defendants were part of the conspiracy. This preliminary finding is subject to the Government proving at trial that a conspiracy existed and that each defendant participated in it.

B. Defendant Shanna French's Motions In Limine 1-10

BACKGROUND

On July 18, 2014, Defendant filed 10 Motions in Limine. The Government has responded and opposes MIL's 1-7; however, it does not oppose MIL's 8-10 and does not intend to offer evidence of Ms. Shoemaker's death or Mrs. French's DUI conviction or Assault charge. ECF No. 218.

Def.'s MIL 1: Ken French's Reference to the "mail lady"

Defendant first challenges a statement by deceased co-defendant Ken French that occurred on August 29, 2012, during an undercover buy to detectives posing as concert goers and seeking to buy poppies for tea directly from Mr. French. ECF No. 217 at 1-9. The statement Defendant seeks to exclude is "[t]he mail lady knows exactly what she's picking up. She knows she's picking up dried poppies." See Transcript, ECF No. 206-1, Ex. 5 at 16; see also Audio Recording 8/29/12, ECF No. 178 at 17:23-17:28.

Defendant argues that such testimony is not admissible under four theories: (1) Rule 401 and 402 because it is irrelevant (i.e., knowledge of the mail carrier is not a fact of consequence that is made more or less likely supported by such testimony); (2) Rule 403 because it is prejudicial and will confuse the jury (as the recording is unintelligible and the jurors would infer Mr. French could be referencing his wife); (3) Rule 602 as it is speculative non-expert testimony that isnot based on personal knowledge of the declarant (e.g., Mr. French is expressing an opinion of another's knowledge without sufficient foundation); and (4) Rule 701(b), which limits lay testimony where it is helpful to clearly understanding a witness's testimony or determining a fact at issue (i.e., the statement is not helpful because it is unintelligible and does not address a fact at issue. Defendant also asserts that under Rule 701 the safeguards normally built into the rule to minimize the danger of lay opinions are not present here where there will be no direct or cross examination of Mr. French.

The Government responds that while the statement is somewhat muffled, after listening to the recording, the official transcript remains correct that Mr. French references "the mail lady" and not his wife co-defendant Shanna French. See ECF No. 206-1, Ex. 5 at 16. At trial, the Government is willing to stipulate to use the words "mail lady," should any transcript and audio be admitted or utilized by the jury. ECF No. 218 at 2. The agreement to refer to the 'mail lady' rather than have the jury speculate resolves the issue.

Accordingly, this Motion in limine is denied and during trial should this become an issue, the parties will use the words "the mail lady," which, as noted above, the Court finds is preliminary admissible under Fed. R. Evid. 801(d)(2)(E).

Def.'s MIL 2: Ken French's Use of the word "we"

Defendant next asks the Court to strike all references to the pronoun "we" in Ken French's recorded statement of August 29, 2012. ECF No. 217 at 10. This comes from the same statement made by Ken French and referenced in the first motion in limine. Specifically, Defendant points to an exchange between Ken French and the detectives at approximately minutes 15:46 - 15:43 of the audio recording where Ken French describes how to make poppy tea. See also ECF No. 206-1, Ex. 5 at 11, 13. Mrs. French argues that such references should be excluded under Rules 401, 402, and 403. Defendant asserts that because Mr. French does notidentify who the "we" references, "[a]ny conclusion drawn from these 'we' statements would necessarily be based on improper speculation." ECF No. 217 at 10. Defendant also argues that unfair prejudice of the "we" references outweigh their probative value. Defendant does make a broader point that almost all the evidence in this case points to Ken French - and the risk of the "we" association of the wife-must-have-known-what-the-husband-was-doing speculation would be great if such evidence was admitted. Id. at 11.

The Government counters and reiterates the argument presented above, which is that this motion is premature and falls under the co-conspirator exception to the hearsay rule. Also, the Government argues that the use of the word "we" is highly probative because "other members of the conspiracy knew how to make a pot of poppy tea . . ." including the narcotic effect of such tea. The Government then points out that Defendants have routinely denied that they did not know the narcotic purposes of the dried poppies, or they had nothing to do with the business. Thus, the Government alleges that such evidence is highly probative and admissible (as a co-conspirator statement) to prove conspiracy and the substantive drug charges in the case, and is not substantially outweighed by the dangers of Rule 403 (unfair prejudice, confusion of the issues, or misleading the jury). Finally, the Government points out that such co-conspirator statements are not subject to Bruton. See, e.g., United States v. Larson, 460 F.3d 1200, 1213 (9th Cir. 2006) on reh'g en banc, 495 F.3d 1094 (9th Cir. 2007); United States v. Kendricks, 623 F.2d 1165, 1167-68 (6th Cir. 1980).

The Court has already found that the statement is admissible against co-conspirators. The significance of the pronoun "we" will depend on the other evidence at trial. If the evidence of membership in the conspiracy is insufficient as to any particular Defendant, the Court can address the limitation of the evidence atthe time. It would be improper to redact the statement at this time. As such, this motion in limine is denied.

Def.'s MIL 3, 4, and 5: Ms. French's use of medications, depressants, or narcotic analegesic, and marijuana found in her residence

Defendant asks the Court to exclude all evidence relating to Ms. French's use/possession/being under the influence of prescription medication (MIL 3), Central Nervous System ("CNS") depressants or narcotic analgesics (MIL 4), and marijuana (MIL 5). ECF No. 217 at 13-15. She argues that such evidence is not admissible under Rules 401 and 402 (not relevant), 403 (any probative value is outweighed by unfair prejudice), and 404 (improper character or propensity evidence). Mrs. French also argues that such request is supported by the Government's prior MIL, ECF No. 105 at 6, which asked the Court to exclude any reference to her health.

Defendant then gives an example of one such instance regarding Officer Frank Black (of the Tri-City Metro Drug Task Force) who contacted Mrs. French during execution of the search warrant at the French residence on October 30, 2012. Apparently, in Officer Black's report he notes that Mrs. French seemed impaired by either a CNS depressant or narcotic analgesic (or a combination of the...