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United States v. Jett

United States District Court, S.D. Indiana, Indianapolis Division

January 30, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DUPRECE JETT (01), DAMION MCKISSICK (02), EARL WALKER (03), Defendants.

          ENTRY ON GOVERNMENT'S MOTION IN LIMINE (Filing No. 93)

          TANYA WALTON PRATT, JUDGE

          This matter is before the Court the Government's Motion in Limine pursuant to Rule 801(d)(2)(E) of the Federal Rules of Evidence. (Filing No. 93.) In its Motion, the Government asks the Court for an order in limine that it may introduce statements made by Defendant Damion McKissick (“McKissick”) and Defendant Duprece Jett (“Jett”). Defendant Earl Walker (“Walker”) objects to the admission of certain of McKissick's statements. For the following reasons, Walker's objection is sustained and the motion in limine is granted in part and denied in part.

         I. BACKGROUND

         On December 12, 2015, law enforcement officials were surveilling two individuals they believed to be Defendants Jett and McKissick. (Filing No. 93 at 1-2.) After observing the two subjects driving around an Indiana Members Credit Union branch, law enforcement believed that the two individuals were “casing” the location in advance of a robbery. (Filing No. 93 at 2.) Law enforcement attempted to stop the vehicle, but the vehicle fled, leading law enforcement on a highspeed chase. (Filing No. 93 at 2.) The car ultimately crashed into a ditch, and the two subjects were arrested for resisting law enforcement. (Filing No. 93 at 2.) The two subjects were identified as McKissick and Defendant Earl Lee Walker (“Walker”).

         At some point on December 12, 2015, the Government alleges that law enforcement found Jett sitting in a car belonging to a family member of Walker. (Filing No. 93 at 3.) During his interaction with law enforcement, Jett allegedly told the officer that the car belonged to a friend of his, that none of the property in the vehicle was his, and that he was at that location waiting for a friend's girlfriend. (Filing No. 93 at 7-8.) The Government asserts that it will show these statements to agents were false.

         Following the chase, McKissick and Walker were arrested for resisting law enforcement and taken to the Indianapolis Metropolitan Police Department and placed in adjacent rooms. (Filing No. 93 at 3.) McKissick is seen and heard on videotape attempting to communicate with Walker; in particular, McKissick can be heard stating:

Hey Earl! Earl! Nothing…joyriding…fleeing!
Hey Earl! Hey Bro They jumped the gun. I say they jumped the gun. We ain't do shit. They didn't give us a chance. So-hey-uhh.

(Filing No. 93 at 2, Filing No. 105 at 2).

         Walker invoked his Fifth Amendment privilege against self-incrimination and refused to answer any questions from law enforcement officers (Filing No. 105 at 1). However, after being advised of his rights, McKissick signed a waiver form and agreed to give a statement. During his statement, McKissick discussed his presence in Indianapolis, denied that the vehicle he was in circled the credit union, and explained why he fled the police. Walker and McKissick were then released from custody. Six days later, by Complaint, the Government charged Walker, McKissick, and Jett with attempted bank robbery and conspiracy to commit bank robbery. (Filing No. 93 at 4.) On January 15, 2016, a grand jury returned a two-count indictment, charging Walker, McKissick, and Jett with attempted bank robbery and conspiracy to commit robbery. (Filing No. 22.)

         On July 1, 2016, Walker filed a Motion to Sever (Filing No. 64) arguing that admission of McKissick's statement at trial would violate Walker's Sixth Amendment confrontation rights, in the event McKissick did not testify and subject himself to cross-examination at trial. See Bruton v. United States, 391 U.S. 123, 136-37 (1968). On August 2, 2016, the Court denied Mr. Walker's Motion to Sever finding that Walker had not shown any prejudice by the statements made by McKissick to which potential prejudice could not be cured by redactions or limiting instructions. (Filing No. 70.) Walker now objects to the admission of McKissick's statements and argues that the Government has not established by a preponderance of the evidence that Walker was involved in or intended to join any conspiracy. He also argues that, even if he were involved in conspiracy, the Government has not established that the statements were made “in furtherance of” that conspiracy, as required by Federal Rule of Evidence 801(d)(2)(E).

         II. DISCUSSION

         A hearsay statement is not admissible, absent an exclusion or exception allowing the introduction of the out-of-court statement. F.R.E. 802. But Rule 801(d)(2)(E) provides that a statement is not considered hearsay if the statement is offered against an opposing party and “was made by the party's coconspirator during and in furtherance of the conspiracy.” F.R.E. 801(d)(2)(E). Under this rule, “co-conspirator statements are admissible against a defendant if the trial judge finds by a preponderance of the evidence that (1) a conspiracy existed, (2) the defendant and the declarant were involved in the conspiracy, and (3) the statements were made during and in furtherance of the conspiracy.” United States v. Davis, 2016 WL 7488337, at *2 (7th Cir. 2016). A court may admit coconspirator statements conditionally based on the government's pretrial proffer, known in the Seventh Circuit as a “Santiago proffer.” See United States v. Santiago, 582 F.2d 1128, 1130-31 (7th Cir. 1978), overruled in part on other grounds by Bourjaily v. United States, 483 U.S. 171 (1987). The Government seeks to introduce the interrogation room statement made by McKissick against all three Defendants.

         Based on the evidence provided in its Santiago proffer (Filing No. 92), the Government has established by a preponderance of the evidence the existence of a conspiracy, and that all three Defendants were participants in it. That evidence includes: the similar circumstances and modus operandi of a series of robberies; an anonymous tip that one of the robbers was McKissick; surveillance video and photographs of the robberies; cellphone tower ping location data, placing McKissick's and Jett's cellphones connected to towers servicing the victim institutions close to the times of the September 15 and September 19, 2015 robberies; cellphone tower ping location data placing McKissick's cellphone connected to a tower servicing the victim location close in time to the November 15, 2015 robbery; currency recovered from McKissick and Jett that was part of a shipment from the Federal Reserve to Brinks Security on behalf of one of the victim institutions; that Walker and McKissick were arrested following an attempt to “case” a possible victim institution; items recovered from McKissick's and Walker's vehicle, including ski masks with eye holes removed, and an air soft pistol-several of these items included the DNA of ...


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