Fanihi poaching case co-defendant seeks hearing on admissibility of co-conspirator statement

A CO-DEFENDANT in the Marianas fruit bat poaching case is asking the federal court for a pre-trial hearing to determine the admissibility of his co-conspirator’s statements and asked disclosure of all potential coconspirator statements.

Former Division of Fish and Wildlife employee David A. Santos, through his counsel Michael W. Dotts, maintains that the disclosure is being sought for the purpose of conducting a pretrial hearing on admissibility, not for general discovery under Rule 16 of the Federal Rules of Criminal Procedure.

Dotts refuted the government’s argument that disclosure of the statements is not required under Rule 16 of the Federal Rules of Criminal Procedure.

He said that none of the cases that the government cited in opposition to Santos’ motion for pretrial hearing on the admissibility of co-conspirator statements are applicable to Santos’ motion “because they deal with disclosure of co-conspirator statements with respect to Rule 16 and the Jenks Act rather than in the context of a pretrial hearing on admissibility.”

Dotts also said that a pretrial hearing will prevent unfair surprise to the defense.

He said that the court is empowered to order a pre-trial hearing on the admissibility of co-conspirator statements.

For Dotts, a pre-trial hearing is strongly preferred over the conditional admission approach because it allows both parties sufficient opportunity to address admissibility issues in a fair and open manner outside the presence of the jury so the court can make reasoned determinations on the merits rather than de facto default due to defendant’s inability to rebut or impeach co-conspirator evidence on a last-minute basis.

For Dotts, Santos needs to know who his alleged co-conspirators are and what they said that the government is now claiming is imputable to Santos under Rule 801(d)(2)(E).

“The indictment is too vague to provide this necessary information as Count I simply alleges a criminal conspiracy involving the defendants and ‘others known to the grand jury’ to take a threatened species.”

Dotts said the language is unclear who the alleged co-conspirators are.

He said that it remains unclear whether the government is alleging the un-indicted co-conspirators were members of the hunting party, the alleged recipients of the fruit bats,or the alleged persons who commissioned or financed the hunting trip.

For Dotts, such information is critical to the defendant’s understanding of the nature and scope of the conspiracy which is also essential to Santos’ ability to defend himself against these charges.

Dotts said that a pre-trial hearing will avoid the unnecessary risk of a mistrial.

Risk of a mistrial is significantly lessened, Dotts said, if not avoided, if a pre-trial hearing is conducted instead of conditional admission.

He also said that holding an admissibility hearing before trial will avoid the possibility of a mistrial and possibility of even more judicial resources being wasted if the government has a last-minute evidentiary problem that renders it unable to satisfy the requirements of Rule 801(d)(2)(E).

Santos, along with former Division of Customs officer Albert A. Taitano were indicted by a grand jury for conspiracy and taking fanihi when they poached at a Marianas fruit bat colony on Rota in 2008.

Santos was originally indicted on Sept. 14, 2010 and charged with the taking of a threatened species.

The same indictment sought forfeiture of Santos’ Mossberg .410 shotgun.

This original indictment was dismissed without prejudice due to an evidentiary issue at trial.

A new indictment was filed under seal on Sept. 24, 2012 alleging the taking of a threatened species and seeking forfeiture of same Mossberg .410 and adding the charge of conspiracy to unlawfully take a threatened species.

Based on the new redacted indictment, Santos and Taitano along with others, hunted Mariana fruit bats on Nov. 1, 2008 at the Sumac maternity colony roost site — one of three remaining maternity roost sites on Rota, and home to more than 100 roosting Mariana fruit bats, including adults and pups.

It was alleged that Santos and Taitano, along with others, hunted the Mariana fruit bats using 12 gauge and .410 gauge shotguns, including a .410 gauge Mossberg shotgun, and a .410 gauge Remington shotgun.

The federal government earlier stated its intent to retest some pieces of evidence, including seized shotgun shells.