United States v. Town of Colorado City

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-16472
Plaintiff-Appellee,
D.C. No.
v. 3:12-cv-08123-
HRH
TOWN OF COLORADO CITY,
ARIZONA; TWIN CITY WATER
AUTHORITY, INC., OPINION
Defendants-Appellants.
Appeal from the United States District Court
for the District of Arizona
H. Russel Holland, District Judge, Presiding
Argued and Submitted April 18, 2019
San Francisco, California
Filed August 26, 2019
Before: MICHAEL DALY HAWKINS and MILAN D.
SMITH, JR., Circuit Judges, and BARBARA M. G.
LYNN, * District Judge.
Opinion by Judge Milan D. Smith, Jr.
*
The Honorable Barbara M. G. Lynn, Chief United States District
Judge for the Northern District of Texas, sitting by designation.
2 UNITED STATES V. TOWN OF COLORADO CITY
SUMMARY**
Civil Rights
The panel affirmed the district court’s judgment in favor
of the United States in its action against the Town of
Colorado City, Arizona brought under the Violent Crime
Control and Law Enforcement Act of 1994, 34 U.S.C.
§ 12601, which prohibits any governmental authority from
engaging in a pattern or practice of conduct by law
enforcement officers or government agents that deprives
persons of rights, privileges, or immunities secured or
protected by the Constitution or laws of the United States.
The United States brought a civil action against the
municipal defendants and their utility providers alleging a
pattern or practice of discrimination against residents who
were not members of Fundamentalist Church of Jesus Christ
of Latter-Day Saints. The essential allegation of the United
States was that defendants functioned as an arm of the
Church and conspired with Church leaders to use municipal
resources to advance Church interests.
The panel held that, in holding that defendants violated
§ 12601, the district court correctly interpreted the statute to
allow for respondeat superior liability. The panel rejected
the assertion that § 12601 requires the United States to
demonstrate that the Towns instituted an official municipal
policy of violating residents’ constitutional rights and
therefore declined to extend the holding in Monell v.
Department of Social Services, 436 U.S. 658 (1978) to
claims pursuant to § 12601. The panel held that, had
Congress wished to eliminate respondeat superior liability
under § 12601, it could have easily done so with explicit
UNITED STATES V. TOWN OF COLORADO CITY 3
statutory language. Its decision not to do so suggested that
it intended for § 12601, like most civil rights statutes, to
allow for respondeat superior liability.
The panel held that it was not necessary to address
Colorado City’s arguments about the district court’s Fourth
Amendment-related factual findings because, even if those
arguments were correct, the error was harmless. The panel
further held that the district court did not err in admitting the
statements of Church leaders under the co-conspirator
exception to the rule against hearsay. The panel held that
taken together, the evidence was sufficient to establish that
defendants conspired with Church members to advance the
Church’s illicit objectives. While certain other statements
admitted by the district court did not fall under the co-
conspirator exception, the district court did not err in
admitting them because they were otherwise admissible.
The panel concluded that because of the overwhelming
evidence that Colorado City deprived non-Church residents
of their constitutional rights, it was more probable than not
that the court would have reached the same verdict on the
United States’ § 12601 claim even if the challenged
statements had been excluded.
COUNSEL
Jeffrey C. Matura (argued) and Melissa England, Barrett &
Matura P.C., Scottsdale, Arizona; R. Blake Hamilton,
Durham Jones & Pinegar P.C., Salt Lake City, Utah; for
Defendants-Appellants.
4 UNITED STATES V. TOWN OF COLORADO CITY
Christine A. Monta (argued) and Thomas E. Chandler,
Attorneys; John M. Gore, Acting Assistant Attorney
General; Appellate Section, Civil Rights Division, United
States Department of Justice, Washington, D.C.; for
Plaintiff-Appellee.
OPINION
M. SMITH, Circuit Judge:
When the United States suspected the Town of Colorado
City, Arizona (Colorado City) and Hildale City, Utah
(collectively the Towns) of engaging in a pattern or practice
of violating the constitutional rights of residents who were
not members of the Fundamentalist Church of Jesus Christ
of Latter-Day Saints (FLDS or the Church), it sued the
Towns pursuant to the Violent Crime Control and Law
Enforcement Act of 1994, 34 U.S.C. § 12601 (formerly
codified at 42 U.S.C. § 14141). 1 After a 44-day trial, a jury
returned an advisory verdict finding the Towns liable. The
district court handed down a judgment holding that the
Towns violated § 12601, and granted injunctive relief
against the Towns.
Colorado City2 appeals the district court’s decision on
three grounds, all of which fail. The district court correctly
interpreted § 12601 when it concluded that the statute does
1
The United States also sued the Towns pursuant to the Fair
Housing Act, 42 U.S.C. § 3601 et seq., but this appeal does not concern
that claim.
2
Although Hildale City also appealed the district court’s decision,
it has since withdrawn from this proceeding.
UNITED STATES V. TOWN OF COLORADO CITY 5
not require an official municipal policy of violating
constitutional rights in order for the United States to prevail.
Colorado City’s arguments about the district court’s factual
findings, even if they are correct, do not entitle it to relief
because the district court’s judgment is supported on other
grounds. The district court did not err in admitting several
statements that Colorado City contends were hearsay. We
affirm the district court.
FACTUAL AND PROCEDURAL BACKGROUND
Straddling the Utah and Arizona border, the Short Creek
Community is a religious settlement composed of the
Towns. Most residents are FLDS members and follow the
teachings of Warren Jeffs, whom they sustain as a prophet
and leader of the Church. Since becoming the head of the
Church in 2002, Jeffs has promulgated a strict set of rules for
FLDS members, such as prohibitions on: vacations, toys,
attendance at public schools, and displays of affection
between husbands and wives.
The United States brought a civil action against the
Towns and their municipal utility providers, Twin City
Water Authority and Twin City Power, alleging a pattern or
practice of discrimination against non-FLDS residents. The
essential allegation of the United States was that the Towns
functioned as an arm of the Church and conspired with
FLDS leaders to use the Towns’ municipal resources to
advance Church interests. The complaint stated a claim
against the Towns pursuant to § 12601 for violating the
Establishment Clause of the First Amendment, the Fourth
Amendment’s prohibition on unreasonable searches and
seizures, and the Equal Protection Clause of the Fourteenth
Amendment. Because § 12601 does not provide a right to a
jury trial, the parties agreed that a jury would render only an
advisory verdict.
6 UNITED STATES V. TOWN OF COLORADO CITY
At trial, the United States argued that FLDS leaders
selected the Towns’ leaders and members of the Colorado
City Marshal’s Office (Marshals), which served as the police
department for the Towns. The United States offered
testimony that the FLDS “ran the [Towns’] government” and
that the Towns’ government “was a part of the [C]hurch.” It
also offered evidence demonstrating that FLDS leaders
instructed local government officials on how to perform their
jobs in a way that advanced the Church’s interests.
Marshals, for example, ignored violations of the law—such
as underage marriage, unlicensed drug distribution, and food
stamp fraud—by FLDS members.
The Marshal’s Office worked closely with FLDS
leaders. Marshals helped FLDS leaders evade service of
process by the FBI, and ran computer checks of license
plates of unfamiliar cars, when asked to do so by FLDS
leaders. Cooperation between the Church and the Towns
even extended to sharing tangible resources. For example,
the Marshal’s Office provided equipment such as tasers and
night-vision binoculars to Church Security, the FLDS’s
private security force.
The Marshal’s Office also helped Jeffs after he became
a fugitive. Less than three years after Jeffs became head of
the Church, the United States secured a warrant for his arrest
on charges of sexual misconduct with children. The FBI
sought the help of the Marshal’s Office to locate Jeffs, but
the Marshals did not cooperate; instead, they hindered the
FBI’s investigation and helped Jeffs hide for over a year.
The Marshals also provided Jeffs with financial assistance
and information on the activities of federal law enforcement
to help him evade capture. The Marshals even helped
destroy evidence of the crimes for which Jeffs was accused
by burglarizing a former FLDS member’s business.
UNITED STATES V. TOWN OF COLORADO CITY 7
The United States also presented evidence that members
of the Marshal’s Office discriminated against non-FLDS
residents. It contended that the Marshals failed to provide
effective police protection to residents who were not FLDS
members. One non-FLDS resident testified, for example,
that a Marshal drove to his home, walked out of his car, and
“just came over and grabbed my arm and [] bent it up around
my back.” Although the resident explained that he had a
legal right to occupy the property and presented an
occupancy agreement, he was charged with trespassing.
The jury returned an advisory verdict finding the Towns
liable under § 12601. After an evidentiary hearing, the
district court issued a judgment holding the Towns liable
under § 12601 for engaging in a pattern or practice of
violating the First, Fourth, and Fourteenth Amendment
rights of their residents. The court determined that the
Marshal’s Office “fostered excessive government
entanglement with religion” in an effort to “endors[e],
favor[], or promot[e] the FLDS Church at the expense of
non-FLDS residents.” The court also concluded that
members of the Marshal’s Office “selectively enforce[ed]
the law based upon religion” and arrested several residents
who were not FLDS members without probable cause. The
district court ordered injunctive relief requiring the Towns
to, among other things, work with a court-appointed monitor
to institute national guidelines for constitutional policing.
Although the Towns appealed the district court’s finding
of liability under § 12601, Hildale City has since withdrawn
from this appeal. Accordingly, we address only Colorado
City’s arguments.
STANDARD OF REVIEW AND JURISDICTION
We have jurisdiction pursuant to 28 U.S.C. § 1291.
8 UNITED STATES V. TOWN OF COLORADO CITY
Whether the district court correctly interpreted 34 U.S.C.
§ 12601 is a legal question that we review de novo.
GoTo.com, Inc. v. Walt Disney Co., 202 F.3d 1199, 1204
(9th Cir. 2000). We review the court’s factual findings for
clear error. United States v. Christensen, 828 F.3d 763, 815
(9th Cir. 2015). We review de novo the court’s
interpretation of the hearsay rule, but review the court’s
admission of evidence for abuse of discretion. United States
v. Morales, 720 F.3d 1194, 1199 (9th Cir. 2013).
ANALYSIS
I. 34 U.S.C. § 12601The principal dispute in this case concerns the proper
interpretation of 34 U.S.C. § 12601. That statute prohibits
any governmental authority, or any agent
thereof, or any person acting on behalf of a
governmental authority, [from engaging] in a
pattern or practice of conduct by law
enforcement officers or by officials or
employees of any governmental agency . . .
that deprives persons of rights, privileges, or
immunities secured or protected by the
Constitution or laws of the United States.
Colorado City argues that the district court erred by
construing the statute as imposing liability on governments
for patterns of constitutional violations committed by their
officers and agents. It asserts that § 12601 requires the
United States to demonstrate that the Towns “instituted an
official municipal policy” of violating residents’
constitutional rights. The United States, on the other hand,
contends that the statute “imposes liability on municipalities
for patterns of constitutional violations [that] their law
UNITED STATES V. TOWN OF COLORADO CITY 9
enforcement officers commit, without requiring an
additional showing that the municipality’s policy or custom
caused those violations.” This issue—whether § 12601
imposes respondeat superior liability3—is one of first
impression in our circuit. Cf. United States v. County. of
Maricopa, 889 F.3d 648, 653 (9th Cir. 2018) (finding it
unnecessary to decide “whether the language of § 12601
imposes liability on the basis of general agency principles”).
Colorado City relies on the premise that, by including
“pattern or practice” in § 12601, Congress used “language
with a well-defined meaning [] developed under [Monell v.
Department of Social Services, 436 U.S. 658 (1978)] for
municipal liability.” That contention, however, confuses the
relationship between general liability rules in civil rights
statutes and the Supreme Court’s decision in Monell.
“[T]he general rule regarding actions under civil rights
statutes is that respondeat superior applies.” Bonner v.
Lewis, 857 F.2d 559, 566 (9th Cir. 1988). In Monell, the
Court carved out an exception to this general rule by holding
that a municipality may not be held liable pursuant to
42 U.S.C. § 1983 for the actions of its subordinates. Instead,
to establish municipal liability, a plaintiff must show that a
local government’s “policy or custom” led to the plaintiff’s
injury. Monell, 436 U.S. at 694. In reaching its holding, the
Court relied on “the language of § 1983, read against the
background of the [statute’s] legislative history.” Id. at 691.
Because § 1983 imposes liability only where a state actor,
“under color of some official policy, ‘causes’ an employee
3
Respondeat superior is “[t]he doctrine holding an employer or
principal liable for the employee’s or agent’s wrongful acts committed
within the scope of employment or agency.” Black’s Law Dictionary
(11th ed. 2019).
10 UNITED STATES V. TOWN OF COLORADO CITY
to violate another’s constitutional rights,” the Court
reasoned that Congress did not intend to impose vicarious
liability on municipalities “solely on the basis of the
existence of an employer-employee relationship with a
tortfeasor.” Id. at 692. Moreover, in the Civil Rights Act of
1871—the predecessor statute to § 1983—Congress “did not
intend municipalities to be held liable unless action pursuant
to official municipal policy of some nature caused a
constitutional tort.” Id. at 691.
Monell’s holding remains the exception to the general
rule. 4 We have declined to bar respondeat superior liability
in other contexts. In Bonner, for example, we held that
respondeat superior liability applies to claims pursuant to
§ 504 of the Rehabilitation Act of 1973 because “[t]he
application of respondeat superior . . . [is] entirely
consistent with the policy of that statute, which is to
eliminate discrimination against the handicapped.” 857 F.2d
at 566–67 (quoting Patton v. Cumpson, 498 F. Supp. 933,
943 (S.D.N.Y. 1980)). And, in Duvall v. County of Kitsap,
we held that respondeat superior liability applies to claims
brought pursuant to Title II of the Americans with
Disabilities Act, 42 U.S.C. § 12132. 260 F.3d 1124, 1141
(9th Cir. 2001).
We likewise decline to extend Monell’s holding to
claims pursuant to § 12601. Several features of the statutory
text lead us to that conclusion. See Esquivel-Quintana v.
4
The Supreme Court has held that respondeat superior liability is
also unavailable against local governments pursuant to 42 U.S.C. § 1981.
Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 733 (1989). That decision
was based on the fact that “the express cause of action for damages
created by § 1983 constitutes the exclusive federal remedy for violation
of the rights guaranteed in § 1981.” Id.
UNITED STATES V. TOWN OF COLORADO CITY 11
Sessions, 137 S. Ct. 1562, 1568 (2017) (“We begin, as
always, with the text.”).
First, § 12601, unlike § 1983, does not include the words
“under color of any law, statute, ordinance, regulation,
custom or usage.” That difference is important because, by
including “custom” in § 1983, Congress expressly
contemplated imposing liability on actors who violated
constitutional rights under an official policy. The absence of
that language from § 12601, therefore, suggests that
Congress did not intend to limit liability to those acting
under an official law or policy. Instead, the plain text of
§ 12601 shows that any government agent who engages in a
pattern or practice of conduct that deprives persons of their
constitutional rights violates § 12601.
Second, § 12601 does not limit liability to those who
“cause [citizens or persons] to be subjected” to a deprivation
of their constitutional rights. The Monell Court interpreted
that language, which appears in § 1983, as imposing liability
“on a government that, under color of some official policy,
‘causes’ an employee to violate another’s constitutional
rights.” Monell, 436 U.S. at 692. The lack of that causal
phrase in § 12601 suggests that Congress did not intend to
limit local governments’ liability to situations when “the
action that is alleged to be unconstitutional implements or
executes a policy statement, ordinance, regulation, or
decision officially adopted and promulgated by that body’s
officers.” Id. at 690. Taken together, these statutory clues
persuade us that Congress intended to allow for respondeat
superior liability against local governments pursuant to
§ 12601.
In arguing that the statutory text supports its position,
Colorado City relies on the fact that the phrase “pattern or
practice” appears in both § 1983 and § 12601. That phrase,
12 UNITED STATES V. TOWN OF COLORADO CITY
it claims, “refers to the same language necessary to show a
‘custom’ under Monell.”
We acknowledge that Congress used “pattern or
practice” in both statutes, and are mindful that “[a] basic
principle of interpretation is that courts ought to interpret
similar language in the same way, unless context indicates
that they should do otherwise.” Shirk v. United States ex rel.
Dep’t of Interior, 773 F.3d 999, 1004 (9th Cir. 2014). That
principle, however, does not necessarily support Colorado
City’s argument, for Congress has also used “pattern or
practice” literally, rather than as a term of art, in several
statutes. See, e.g., 42 U.S.C. § 2000e-6(a) (authorizing the
Attorney General to pursue injunctive relief in cases alleging
a pattern or practice of employment discrimination);
42 U.S.C. § 3614(a) (authorizing the Attorney General to
bring civil action in cases involving a pattern or practice of
Fair Housing Act violations); 42 U.S.C. § 10101(e)
(authorizing courts to find a pattern or practice of voting
rights deprivations). Under those statutes, the United States
must demonstrate only that the conduct alleged “was not an
isolated or accidental or peculiar event.” United States v.
Ironworkers Local 86, 443 F.2d 544, 552 (9th Cir. 1971). It
need not show the existence of an official policy or custom.
For this reason, Congress’s use of “pattern or practice”
in § 12601 does not support the weight that Colorado City
wishes to place upon it. Congress could have used the phrase
to refer to an official policy or custom, as in § 1983, but it
also could have used the phrase to refer to a regular event, as
in the statutes cited above.
Our interpretation of the statute aligns with our
recognition that although “[§] 12601 shares important
similarities with § 1983[,] . . . . the language of § 12601 goes
even further than § 1983.” County of Maricopa, 889 F.3d
UNITED STATES V. TOWN OF COLORADO CITY 13
at 653. Had Congress wished to eliminate respondeat
superior liability under § 12601, it could have easily done so
with explicit statutory language. See McNary v. Haitian
Refugee Ctr., Inc., 498 U.S. 479, 494 (1991). Its decision
not to do so suggests that it intended for § 12601, like most
civil rights statutes, to allow for respondeat superior
liability.
Unable to muster support for its position in the statutory
text, Colorado City urges us to examine § 12601’s legislative
history. But the Supreme Court has admonished that
“legislative history is not the law.” Epic Sys. Corp. v. Lewis,
138 S. Ct. 1612, 1631 (2018). That principle is particularly
salient in a case where the legislative history “is virtually
non-existent.” Marshall Miller, Police Brutality, 17 Yale L.
& Pol’y Rev. 149, 167 (1998); cf. Azar v. Allina Health
Servs., 139 S. Ct. 1804, 1814 (2019) (declining to accord
weight to the Medicare Act’s legislative history when “the
legislative history presented . . . is ambiguous at best”).
Even if this case warranted consideration of it, the
legislative history that Colorado City relies on does not
support its argument. Colorado City focuses on the
legislative history of § 12601’s predecessor bill, the Police
Accountability Act of 1991 (PAA). H.R. 2972, 102d Cong.
(1991). That history suggests that Congress enacted the
PAA to “close [a] gap in the law”—the Justice Department’s
inability “to address systematic patterns or practices of
police misconduct.” H.R. Rep. No. 102-242, pt. 1, at 137,
138 (1991). The House Judiciary Committee did not define
“pattern or practice,” but did mention “[t]wo cases [that]
illustrate both the need for this authority and how it will
work.” Id. One case involved police officers from Mason
County, Washington who beat “citizens in four incidents”
due to “the lack of training.” Id. at 138–39. The other case,
14 UNITED STATES V. TOWN OF COLORADO CITY
which arose from Goldsboro, North Carolina, involved “a
young black man who was strangled to death by city police
officers.” Id. at 139. Congress did not suggest that either
incident arose from an official policy or custom.
Nonetheless, Colorado City contends that this history—
although history of a different and superseded law—
demonstrates that Congress did not intend to impose
respondeat superior liability under § 12601.
We disagree. At best, the PAA’s legislative history
supports the argument that Congress passed § 12601’s
predecessor bill to allow the United States to prosecute
municipalities when local police departments violate
constitutional rights—whether or not those violations arose
from an official policy or custom. Our construction of the
statute, which allows local governments to be held liable
when their agents engage in a pattern or practice of conduct
that deprives persons of their constitutional rights, accords
with that statutory purpose.
When interpreting legislation, our role “is to apply the
statute as it is written—even if we think some other approach
might ‘accor[d] with good policy.’” Burrage v. United
States, 571 U.S. 204, 218 (2014) (alteration in original)
(quoting Comm’r v. Lundy, 516 U.S. 235, 252 (1996)).
Section 12601 provides a civil cause of action to the United
States Attorney General when a local government’s agents
“engage in a pattern or practice of conduct . . . that deprives
persons of rights, privileges, or immunities secured or
protected by the Constitution or laws of the United States.”
34 U.S.C. § 12601. Because the statutory language does not
demonstrate that Congress intended to exclude local
governments from respondeat superior liability, we hold
that § 12601 imposes liability based on general agency
UNITED STATES V. TOWN OF COLORADO CITY 15
principles. Accordingly, the district court did not err in its
construction of § 12601. 5
II. Factual Findings
Colorado City next argues that the district court made
three mistakes in its factual findings related to the Towns’
alleged violations of the Fourth Amendment. First, it argues
that the court erroneously included legal conclusions in its
findings of fact, in violation of Federal Rule of Civil
Procedure 52(a). Second, it contends that the district court
improperly adopted the government’s proposed findings of
fact and failed to independently evaluate the evidence.
Third, it argues that the court improperly made summary
findings in its written judgment.
We need not address these alleged errors because they
do not affect the district court’s holding that Colorado City
violated § 12601. As the district court stated in its judgment,
a finding “of a pattern or practice of violating any one of the
three constitutional amendments in question”—the First,
Fourth, and Fourteenth Amendments—“would entitle [the
United States] to relief.” The district court held that the
Towns violated all three constitutional amendments.
5
We reject Colorado City’s argument that our interpretation of
34 U.S.C. § 12601 violates § 5 of the Fourteenth Amendment. It argues
that the district court violated the Supreme Court’s decision in City of
Canton v. Harris because it “interpreted [§ 12601] to impose vicarious
liability upon the Towns without requiring the United States to show that
the Towns were responsible for the alleged misconduct.” 489 U.S. 378(1989). Not so. The Court’s decision in City of Canton, which stated
that permitting respondeat superior liability against local governments
under § 1983 “would implicate serious questions of federalism,” was
limited to that statute. Id. at 392. The Court did not hold that it was
unconstitutional to permit respondeat superior liability against local
governments in any context.
16 UNITED STATES V. TOWN OF COLORADO CITY
Because Colorado City’s arguments relate only to the court’s
findings of fact as to the Fourth Amendment violation, the
court’s judgment stands even if Colorado City is correct.
Accordingly, any such purported error by the district court
was harmless.
Colorado City urges us to nevertheless address the merits
of its argument because “the district court’s erroneous
factual findings exposed the Towns to unfounded liability
through lawsuits that Isaac Wyler, Patrick Pipkin, and
Andrew Chatwin filed for unlawful arrest.” Those lawsuits,
however, are irrelevant to our harmless error analysis
because the relevant question is “whether the [] verdict
actually rendered in this trial” was attributable to the district
court’s error. Sullivan v. Louisiana, 508 U.S. 275, 279
(1993). Thus, the fact that other parties may have sued the
Towns does not affect our conclusion.
III. Admission of FLDS Leaders’ Statements
Finally, we turn to Colorado City’s argument that the
district court erred when it admitted the statements of
various FLDS leaders under the co-conspirator exception to
the rule against hearsay.
Before trial, the United States moved to admit several
FLDS leaders’ statements under the co-conspirator
exception. Fed. R. Evid. 801(d)(2)(E); see Bourjaily v.
United States, 483 U.S. 171, 173 (1987) (“A statement is not
hearsay if . . . [t]he statement is offered against a party and
is . . . a statement by a coconspirator of a party during the
course and in furtherance of the conspiracy.” (alterations in
original)). The district court held the United States’ motion
in abeyance pending trial, reasoning:
UNITED STATES V. TOWN OF COLORADO CITY 17
Although a final decision on this point must
await trial evidence, prior proceedings in this
case cause the court to believe that the United
States will succeed in producing evidence of
a joint venture or concert of action between
the FLDS Church and the [Towns]. Subject
to the United States proving up its concerted
action contention, the court is prepared to
rule that out-of-court statements of FLDS
leaders in furtherance of concerted action
between the FLDS Church and [the Towns]
[are] not hearsay and [are] admissible.
Later during trial, the court determined that the United States
had satisfied its burden of establishing the existence of a
conspiracy. It instructed the jury that “the [United States]
has made its case, as far as I am concerned, for purposes of
the admission of the testimony, that there was a
[conspiracy].”
Colorado City first argues that the district court clearly
erred by finding the existence of a conspiracy between the
Church and the Towns. Its contention rests largely on the
claim that “[w]hen the district court ‘tentatively’ ruled that
the United States had established a conspiracy, the evidence
was insufficient to show the existence of a conspiracy for
purposes of Rule 801(d)(2)(E).” That argument fails
because “[i]t is not controlling [] whether sufficient
independent evidence connecting [the Church] with the
conspiracy existed at the time the trial judge made his first
ruling under Rule 801(d)(2)(E).” United States v. Watkins,
600 F.2d 201, 204–05 (9th Cir. 1979). “In ascertaining
whether the foundation has been established, we can,
therefore, consider all the evidence independent of the
challenged statements, regardless of the order of proof.”
18 UNITED STATES V. TOWN OF COLORADO CITY
United States v. Miranda-Uriarte, 649 F.2d 1345, 1351 (9th
Cir. 1981). The evidence must “be considered in a light most
favorable to the government.” Id.Here, the United States presented extensive evidence at
trial that supported the existence of a conspiracy between the
Church and the Towns. That evidence included testimony
that: officials from the Towns attended meetings in which
FLDS leaders instructed them on how to handle legal issues
in a way that advanced the Church’s interests; Jeffs
excommunicated the Towns’ leaders who did not follow his
orders; FLDS leaders determined who would occupy the
Towns’ government positions such as mayor, city council
members, and police officers; the Marshal’s Office was
willfully blind to FLDS members’ illegal activities;
members of the Marshal’s Office helped Jeffs evade capture
by the FBI while he was a fugitive; and several of the Towns’
officials “spied” on residents who the Church considered
“out of conformance with [FLDS] regulations.” Taken
together, this evidence is sufficient to establish that the
Towns conspired with FLDS members to advance the
Church’s illicit objectives. The district court did not clearly
err in making that finding.
Colorado City also argues that the district court legally
erred by misinterpreting the co-conspirator exception to the
rule against hearsay. That argument, however, is belied by
the record. The district court repeatedly acknowledged that
a statement must be made in furtherance of a conspiracy to
qualify under Rule 801(d)(2)(E). Moreover, when
instructing the jury, the court accurately stated the standard
for statements to fall under the co-conspirator exception:
“one, certain individuals worked with the defendants toward
a common goal in a joint venture or in a concerted effort and,
two, that those individuals made out-of-court statements
UNITED STATES V. TOWN OF COLORADO CITY 19
during and in furtherance of that effort.” Accordingly, we
reject Colorado City’s argument that the court misconstrued
the rules of evidence.
Lastly, contrary to Colorado City’s argument, the district
court did not abuse its discretion by admitting over twenty
statements by FLDS leaders. Several of the statements,
including several transcriptions of Jeffs’ dictations and
telephone calls, were properly admitted under the co-
conspirator exception. These statements “catalogued and
analyzed factors relevant” to the alleged conspiracy. United
States v. Schmit, 881 F.2d 608, 612 (9th Cir. 1989). They
include statements by Jeffs recounting instructions he gave
to FLDS members to perform underage marriages,
describing the appointment of FLDS members to leadership
positions in the Towns, and stating that FLDS members had
gone into hiding “to not be served [] legal papers.” That
“some portions of the statement[s] may have been ‘idle
chatter’ or [‘]casual admissions of culpability’ [does] not
render” the statements inadmissible. Id. That is especially
true because, during trial, the Towns moved to exclude “the
statement[s] as a whole” rather than “particular passages in
the statement[s].” Id.While certain other statements admitted by the district
court and challenged by Colorado City do not fall under the
co-conspirator exception in Rule 801(d)(2)(E), we hold that
the district court did not err in admitting them because they
were otherwise admissible. See United States v. Alexander,
48 F.3d 1477, 1487 (9th Cir. 1995) (upholding a district
court's admission of evidence on a ground “different from
the reason given by the district court”).
Several of those statements were admissible because
they were not hearsay. These included instructions by Jeffs
to FLDS members to not communicate with, and to
20 UNITED STATES V. TOWN OF COLORADO CITY
otherwise avoid, “apostates”—residents who were once
FLDS members, but who had left the Church. See United
States v. Chung, 659 F.3d 815, 833 (9th Cir. 2011)
(“Instructions to an individual to do something are . . . not
hearsay . . . because they are declarations of fact and
therefore are not capable of being true or false.” (alterations
in original) (quoting United States v. Reilly, 33 F.3d 1396,
1410 (3d Cir. 1994))). Still others, such as Jeffs’ statement
that he prayed for the destruction of Arizona and Utah, were
introduced for their effect on the listener. See United States
v. Payne, 944 F.2d 1458, 1472 (9th Cir. 1991).
Other challenged statements, such as Jeffs’ statement
about “[t]he attack of [] enemies upon [the FLDS
community],” were admissible under the business records
exception to the hearsay rule. Fed. R. Evid. 803(6). Despite
the Towns’ argument, Ranger John Nick Hanna was
qualified to testify about Jeffs’ dictations. Rule 803(6) “only
requires [testimony by] ‘someone with knowledge’ about the
record-keeping, not necessarily . . . someone with
knowledge about how the reports were made or maintained,”
ABS Entm’t, Inc. v. CBS Corp., 908 F.3d 405, 426 (9th Cir.
2018), and Hanna had spent over four years studying the
documents about which he testified. Colorado City has not
not shown that the dictations do not meet the trustworthiness
standard of the business records exception.
Even if the district court erroneously admitted some
hearsay statements, reversal is not warranted. Because the
jury rendered only an advisory verdict on the United States’
§ 12601 claim, our review is limited to “the findings of the
court as if there had been no verdict from an advisory jury.”
Ashland v. Ling-Temco-Vought, Inc., 711 F.2d 1431, 1438
(9th Cir. 1983) (quoting 9 Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 2335 (3d ed.
UNITED STATES V. TOWN OF COLORADO CITY 21
1971)). Because the judge ultimately ruled on the United
States’ § 12601 claim, the court “ha[d] discretion to receive
evidence that might be inadmissible in a jury trial.”
Hollinger v. United States, 651 F.2d 636, 640 (9th Cir.
1981). We conclude that because of the overwhelming
evidence that Colorado City deprived non-FLDS residents
of their constitutional rights, “it is more probable than not”
that the court would have reached the same verdict on the
United States’ § 12601 claim even if the challenged
statements had been excluded. Nationwide Life Ins. Co. v.
Richards, 541 F.3d 903, 911 (9th Cir. 2008).
CONCLUSION
In holding that the Towns violated § 12601, the district
court correctly interpreted the statute and did not err in
admitting the statements of FLDS leaders. We need not
address Colorado City’s arguments about the district court’s
Fourth Amendment-related factual findings because, even if
those arguments are correct, the error was harmless.
AFFIRMED.