United States District Court, N.D. California
ORDER ON ADMISSIBILITY OF CO-CONSPIRATOR
M. CHEN UNITED STATES DISTRICT JUDGE
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. 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.
Legal Standard for Federal Rule of Evidence
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).
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)).
A Price-Fixing Conspiracy Existed
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.
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.
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.
government has met its burden of showing by a preponderance
of the evidence that a price-fixing conspiracy existed.
Defendant Participated in the Price-Fixing
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.
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.
government has met its burden of showing by a preponderance
of the evidence that Defendant was a ...