The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO SUPPRESS
On August 15, 2007, a federal grand jury in the Southern District of California returned a one-count Superseding Indictment charging George Lane ("Lane") and John Alan Carman ("Carman") with Conspiracy to Kidnap a Person in a Foreign Country, in violation of 18 U.S.C. § 956. (Doc. No. 36.) On August 20, 2007, Lane was arraigned on the Superseding Indictment and entered a plea of not guilty. On the same date, the Court severed Lane and Carman for trial because Carman had been charged and arrested earlier and a trial date was already set. (Doc. No. 39.) Carman's trial began on September 19, 2007 and the jury returned a guilty verdict against Carman on September 26, 2007. (Doc. No. 86.) The Court sentenced Carman on April 7, 2008. (Doc. No. 125.)
Lane's trial was scheduled to begin on May 5, 2009. On April 7, 2009, Lane filed a motion in limine to exclude evidence of co-conspirator statements and alternatively to admit evidence to impeach co-defendant Carman. (Doc. No. 183.) On April 9, 2009, the Government filed a motion to admit co-conspirator statements, emails found on Carman's computer, and recorded calls between Carman and Fernandez without Fernandez. (Doc. No. 184.) The Government filed a response in opposition to Lane's motion in limine on April 20, 2009. (Doc. No. 185.) Defendant filed a response in opposition to the Government's motion on April 22, 2009. (Doc. No. 186.) The Government and Defendant filed replies on April 24, 2009. (Doc. Nos. 187 & 188.)*fn1
The Court held a hearing on the matter on April 27, 2009. Joseph S. Green appeared on behalf of the United States. Martha M. Hall appeared on behalf of Defendant Lane. The Court continued the hearing and held a status conference on July 8, 2009. At the status conference the Court scheduled the continued evidentiary motion hearing for July 27, 2009 and requested additional briefing from the parties regarding the admissibility of statements of Fernandez. (Doc. No. 221.) The Government filed its supplemental briefing on July 13, 2009. (Doc. No. 222.) Defendant filed his response to the Government's supplemental briefing on July 22, 2009. (Doc. No. 223.) At the hearing held on July 27, 2009, Joseph Green and Peter Mazza appeared on behalf of the United States. Martha M. Hall appeared on behalf of Defendant Lane.
For the reasons set forth below, the Court denies Defendant Lane's motion to suppress co-conspirator statements, grants Defendant Lane's motion to admit evidence to impeach, grants the United States' motion to admit co-conspirator statements, grants the United States' motion to admit emails, and grants in part and denies in part the United States' motion to admit Fernandez's statements on recorded phone calls without calling Fernandez at trial.
This case concerns an alleged conspiracy between Defendant Lane and John Carman to kidnap Lane's ex-girlfriend Kristi McLean while she was vacationing in Mexico.
According to Lane, he met Kristi sometime in 2002 and they dated for approximately two and a half years. Their relationship ended in 2004, although they dated on and off during the Spring of 2005. In 2006 and 2007, Kristi had no contact with Lane. Lane left San Diego in 2006 and moved to a small town in rural Kentucky and worked for Winston Morris.
Eloy Fernandez, a government informant, contacted the FBI in Yuma, Arizona on February 22, 2007 to report the alleged plot to kidnap Kristi. Fernandez told the FBI that Carman wanted Fernandez to kidnap Kristi while she was on vacation in Mexico and to hold her until her parents paid $1 million in ransom money to Carman. According to Fernandez, Carman was hired by and conspiring along with Kristi's parents and her boyfriend/husband to kidnap Kristi to teach her a lesson because Kristi was allegedly involved in drug use and a divorce/custody battle. Fernandez previously worked as a source for the FBI and was indicted in 1996 during his work as a source when he failed a polygraph examination and was subsequently found guilty for false statements. The FBI closed Fernandez as a source for being unreliable and for lack of credibility.
Lane provided statements to the Government on three occasions in connection with this case. On April 17 and 19, 2007, Lane spoke with Special Agents in Kentucky and on August 17, 2007, Lane was interviewed post-arrest by Special Agents in San Diego. Lane provided a written statement to agents on April 19, 2009. Lane wrote, in part:
I was originally very forthcoming with investigators regarding conversations I had with John concerning 'kidnaping' Kristi. I did , however, tell Agents . . . that I never told John I wanted Kristi 'kidnaped' or asked him to do so. This is not accurate.
The discussions regarding 'kidnaping' Kristi started when I brought it up in an unrelated conversation. During this conversation John an[d] I were discussing current events, including an extortion/kidnaping case in the news. I said it would be nice if that happened to Kristi and John and I began discussing kidnaping Kristi in this and subsequent conversations. I viewed these conversations as hypothetical and fantasy. I did not believe John had the capacity to make this happen.
10 days before it was texted we 'had Kristi' I told him to 'back out of it' because I never meant to have her kidnaped. I agree to this statement. (Doc. No. 184 at 6.)
The Government seeks to prove a conspiracy between Lane and Carman to kidnap Kristi in Mexico. In order to do so, the Government seeks the admission of Carman's statements in emails and recorded phone calls about the kidnaping against Lane at trial as co-conspirator statements and Defendant moves to exclude Carman's statements as hearsay. The Government also seeks the admission of emails found on Carman's computer and three recorded phone calls between Carman and Fernandez without testimony from ...