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United States v. Lischewski

United States District Court, N.D. California

June 28, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
CHRISTOPHER LISCHEWSKI, Defendant.

          ORDER ON ADMISSIBILITY OF CO-CONSPIRATOR STATEMENTS

          EDWARD M. CHEN UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Criminal Local Rule 16-1(c)(4) requires the government to notice to Defendant any out of court co-conspirator statements it seeks to admit into evidence through Federal Rule of Evidence 801(d)(2)(E). The government did so on April 12, 2019. The government noticed 256 documents and an appendix summarizing by categories oral statements from a variety of witnesses it plans to admit at trial. In response to the initial objection as to specificity of the appendix, the Court ordered the government to revise and resubmit appendix 2. It did so. Defendant presented his opposition to the admissibility of these statements. After reviewing the briefing and the statements and hearing oral argument, the Court determined that the government met its burden under Rule 801(d)(2(E) of showing that a conspiracy existed, and Defendant participated in the conspiracy.[1] However, the Court did not find that the government has at this juncture met its burden of showing that the conspiracy existed prior to November 2010, the date set forth in the Indictment. The Court also found certain declarants were co-conspirators. The Court withheld ruling on whether any particular statement or email was in furtherance of the conspiracy absent foundation evidence presented at or close to trial. At the pretrial conference, the Court will determine the best procedural mechanism for ruling on whether each statement or email was made in furtherance of the conspiracy. The Court notes, however, that proffered evidence will be viewed in context of the Court's findings herein.

         II. DISCUSSION

         A. Legal Standard for Federal Rule of Evidence 801(d)(2)(E)

         Under Federal Rule of Evidence 801(d)(2)(E) an out of court statement is not hearsay if it “is offered against an opposing party and . . . was made by the party's coconspirator during and in furtherance of the conspiracy.” “The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.” Fed.R.Evid. 104(a).

         “Under Rule 801(d)(2)(E), the statement of a co-conspirator is admissible against the defendant if the government shows by a preponderance of the evidence that a conspiracy existed at the time the statement was made; the defendant had knowledge of, and participated in, the conspiracy; and the statement was made in furtherance of the conspiracy.” United States v. Bowman, 215 F.3d 951, 960-61 (9th Cir. 2000); Bourjaily v. United States, 483 U.S. 171, 175 (1987). “Narrations of past events are inadmissible, but expressions of future intent or statements that ‘further the common objectives of the conspiracy or set in motion transactions that are an integral part of the conspiracy' are admissible under Rule 801(d)(2)(E).” Bowman, 215 F.3d at 961 (quoting United States v. Yarbrough, 852 F.2d 1522, 1535 (9th Cir. 1988)).

         B. A Price-Fixing Conspiracy Existed

         The government must show the existence of a conspiracy at the time the co-conspirator statement was made. See Bourjaily, 483 U.S. at 175. Evidence of a conspiracy must be proven through evidence independent of the hearsay statement itself. United States v. Vargas-Rios, 607 F.2d 831, 836 (9th Cir. 1979). Independent corroboration can be met through a number of means including testimony about the conspiracy, see United States v. Whitlow, 815 F.3d 430, 434-435 (8th Cir. 2016), or emails. See United States v. Pust, 798 F.3d 597, 603 (7th Cir. 2015) (“emails show Pust and Anderson discussing” the conspiracy were sufficient to corroborate). “Circumstantial evidence may be used to establish the existence of a conspiracy and a defendant's involvement in the conspiracy.” Id.

         The government has provided testimony that describes in detail the alleged price-fixing conspiracy. See Guan Decl., Ex. A 48:7-49:13; 50:16-52:11; 64:1-65:25; id, Ex. B 26:14-27:13; 36:6-37:6; 40:3-19; 45:1-9; 50:10-52:2; 57:16-59:1; 61:1-12; 63:1-4; id, Ex. C 18:20-20:8; 26:21-29:3; 47:20-54:24; 62:1-63:20; id, Ex. K 17:17-18:16; 19:24-22:4; id, Ex. L 83:24-84:20. The government presents testimony from several participants who separately described and corroborated each other's accounts of the price-fixing conspiracy. Not only has the government presented Grand Jury transcripts which paint a clear picture of the price-fixing conspiracy, the government also presents emails corroborating the testimony. See Appx. 1, Ex. 8; Appx. 1, Ex. 14; Appx. 1, Ex. 21; Appx. 1, Ex. 25; Appx. 1, Ex. 40; Appx. 1, Ex. 59; Appx. 1, Ex. 157; Appx. 1, Ex. 106; Appx. 1, Ex. 157; Appx. 1, Ex. 179; Appx. 1, Ex. 188.

         The Court also notes that several of Defendant's alleged co-conspirators have entered guilty pleas and admitted (through plea agreements and plea colloquies under oath) to price-fixing among major packaged-seafood-producing firms.

         The government has met its burden of showing by a preponderance of the evidence that a price-fixing conspiracy existed.

         C. Defendant Participated in the Price-Fixing Conspiracy

         “An accused's knowledge of and participation in an alleged conspiracy are preliminary facts that must be established before extrajudicial statements of a co-conspirator can be introduced into evidence.” United States v. Silverman, 861 F.2d 571, 576 (9th Cir. 1988). “To abandon the requirement that some evidence aside from the proffered co-conspirator's statements be presented to show that the defendant knowingly participated in the alleged conspiracy would be to render all such statements self-validating.” Id. at 577. Accordingly, “when the proponent of the co-conspirator's statement offers no additional proof of defendant's knowledge of and participation in the conspiracy, the statement must be excluded from evidence. Where, on the other hand, some additional proof is offered, the court must determine whether such proof, viewed in light of the co-conspirator's statement itself, demonstrates by a preponderance of the evidence that defendant knew of and participated in the conspiracy.” Id. at 578. The Ninth Circuit has instructed that district courts “must bear in mind that out-of-court statements are presumptively unreliable.” Id. For this reason, “a co-conspirator's statement implicating the defendant in the alleged conspiracy must be corroborated by fairly incriminating evidence.” Id. Heavy reliance on co-conspirators' statements to prove a defendant participated in a conspiracy requires fairly incriminating evidence; but when the government relies on other evidence, “the prosecution need only show slight evidence connecting the defendant to the conspiracy.” United States v. Mason, 658 F.2d 1263, 1269 (9th Cir. 1981). There must be sufficiently corroborating evidence to support the co-conspirator's statements. Id.

         Here again, there are Grand Jury transcripts of co-conspirators' testimony which describe Defendant's involvement in and knowledge of the price-fixing conspiracy. See Guan Decl., Ex. A at 45:4-7; 45:13-22; 49:14-50:9; 56:3-57:8; 91:13-95:16; id, Ex. B 26:14-28:13; 36:6-39:19; 45:1-45:4; 57:16-59:4; 60:15-61:12; 68:9-75:22; 79:18-80:4; id, Ex. K 84:2-20; id, Ex. L 101:10-22; Guan Supp. Decl., Ex. B 22:6-24:25. This testimony comes from four separate individuals: some were in his company; others worked for competitors. Each described Defendant's active participation in the conspiracy. The government also provided incriminating emails albeit those are few in number and subject to potentially conflicting interpretation. See Guan Supp. Decl., Ex. F; Appx. 1, Ex. 14; Appx. 1, Ex. 69; Appx. 1, Ex. 70; Appx. 1, Ex. 248.

         The government has met its burden of showing by a preponderance of the evidence that Defendant was a ...


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