USA v. Griffin et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
EASTERN DIVISION
United States of America, 	)
)
) 	ORDER ON ADMISSABILITY OF
) 	CO-CONSPIRATOR STATEMENTS
Plaintiff, 	)
)
vs. 	) 	Case No. 3:23-cr-207
)
Galen Gerry Robertson, 	)
)
Defendant. 	)
______________________________________________________________________________
Under Rule 801(d)(2)(E) of the Federal Rules of Evidence, a statement is not hearsay if
made by “a co-conspirator of a party during the course and in furtherance of a conspiracy.” United
States v. Beckman, 222 F.3d 512, 522 (8th Cir. 2000). To admit such a statement, the Government
must demonstrate by a preponderance of the evidence: (1) that a conspiracy existed; (2) that the
defendant and the declarants were members of the conspiracy; and (3) that the declaration was
made during the course of and in furtherance of the conspiracy. United States v. Bell, 573 F.2d
1040, 1043 (8th Cir. 1973); see also United States v. Guerra, 113 F.3d 809, 813 (8th Cir. 1997);
United States v. Escobar, 50 F.3d 1414, 1423 (8th Cir. 1995). In determining whether a conspiracy
existed, a court may consider the co-conspirator statement itself. See Bourjaily v. United States,
483 U.S. 171, 181 (1987).
As the Eighth Circuit Court of Appeals explained in Bell, a trial court may conditionally
admit the hearsay statements of alleged co-conspirators, subject to a final ruling on the record that
the statements are admissible pursuant to the co-conspirator exception to the hearsay rule. Fed. R.
Evid. 801(d)(2)(E). The procedures outlined in Bell are flexible and do not require reversal for
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failure to follow the procedures absent a showing of prejudice. United States v. McCracken, 110
F.3d 535, 542 (8th Cir. 1997).
The preliminary determination on the admissibility of an alleged co-conspirator statement
rests with the trial judge rather than the jury. Fed. R. Evid. 104(a); see also Bell, 573 F.2d at 1043.
A statement is admissible if the trial court is satisfied that independent evidence exists showing
that it is more likely than not that a conspiracy existed. See United States v. Craig, 94 F.4th 752,
757 (8th Cir. 2024); see also United States v. Macklin, 573 F.2d 1046, 1048 (8th Cir. 1978). At
the conclusion of the evidence, it is incumbent upon the trial judge to make an explicit
determination for the record regarding the admissibility of the statements. United States v. Fitts,
635 F.2d 664, 666 (8th Cir. 1980).
To support a conviction for conspiracy to possess with intent to distribute or distribute
controlled substances, the Government must prove (1) in or about 2021 through the date of the
Indictment, two or more persons reached an agreement or came to an understanding to possess
with intent to distribute or distribute a mixture or substance containing a detectable amount of
methamphetamine; (2) the Defendant voluntarily and intentionally joined in the agreement or
understanding, either at the time it was first reached or at some later time while it was still in effect;
and (3) at the time the Defendant joined in the agreement or understanding, he knew the purpose
of the agreement or understanding.
In the present case, the Court concludes that all three elements are satisfied by a
preponderance of the evidence as to the charge of conspiracy to possess with intent to distribute or
distribute controlled substances. The evidence demonstrates it is more likely than not that Galen
Gerry Robertson participated in a conspiracy to possess with intent to distribute or distribute a
controlled substance with Abram Francis Griffin, Charlotte Mary Burdick, Russell Burdick,
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Kennith 	Charboneau, 	Ava 	Robertson, 	Thalia 	Isela 	Chavelas, 	Ronni 	Ironshield, 	Donovan
Robertson, Lonnie Charboneau, Whitney Hill, Wayne Delorme, Rhonda Greywater, Chuck White,
and Robert Demarce. The Court further finds that the co-conspirator statements sought to be
introduced into evidence at trial were made during the course of and in furtherance of the
conspiracy. See Craig, 94 F.4th at 757. Accordingly, any out-of-court co-conspirator statements
offered for the truth of the matter asserted in the statements, whether objected to or not, were
properly admitted under Rule 801(d)(2)(E).
IT IS SO ORDERED.
Dated this 29th day of June, 2026.
/s/ Peter D. Welte
Peter D. Welte, Chief Judge
United States District Court
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