In the trial of Hugo “El Pollo” Carvajal Barrios, the defense filed a motion in limine for the U.S. District Court for the Southern District of New York to carefully examine the statements of co-conspirators that the government intends to present as evidence, due to their unreliable nature and potential unfair harm to the defendant.
The accused’s attorney notes that while federal rules of evidence permit these statements under certain conditions, the court must ensure that specific requirements are met, including that the statement was made during the conspiracy, is reliable, and is not unjustly prejudicial. The defendant reserves the right to supplement the motion once more information regarding the government’s evidence becomes available.
They indicate that although they have not yet received Jencks material—pre-trial statements of a witness—and have not had the opportunity to review any government motion in limine, experience shows that in similar conspiracy cases, the prosecution invariably seeks to rely on Federal Rule of Evidence 801(d)(2)(E) as the basis for obtaining large amounts of statements made by absent declarants.
The in limine motion of Hugo “El Pollo” Carvajal Barrios
On June 3, 2025, during the trial of Hugo “El Pollo” Carvajal Barrios, his defense attorney, Robert Feitel, presented a motion in limine to request careful examination of the admissibility of any alleged co-conspirator statements that the government attempts to present outside of court.
For the defense, such statements are inherently suspect, especially when they come from witnesses seeking benefits from the government, and therefore, they argue that a thorough review of the legal requirements for the admissibility of such statements under Federal Rule of Evidence 801(d)(2)(E) must be conducted.
The court must evaluate reliability and avoid unjustly prejudicial testimony, based on the premise that members of criminal conspiracies “hold no loyalty to each other and none to the truth.” This, the defense argues, makes the admissibility of these statements “suspect ab initio.”
Requirements of the Federal Rule of Evidence
Hugo El Pollo Carvajal emphasizes that statements made before a conspiracy begins are not admissible.
The defense of Hugo “El Pollo” Carvajal Barrios asserts that the Federal Rule of Evidence §801(d)(2)(E) states that a hearsay statement is not a rumor if made “by a co-conspirator of a party during the course of, and in furtherance of the conspiracy.”
This means that statements made before a conspiracy starts are not admissible.
The common explanation for a rule exempting these statements from the definition of hearsay is the “agency theory,” where “each member of a conspiracy is the agent of each other conspirator whenever he acts—including speaking—to promote the conspiracy,” as established by case law.
It should be noted that for a statement to be admissible, the prosecution must establish by a preponderance of the evidence that:
There was a conspiracy.
The members of the conspiracy included the declarant and the party against whom the statement is offered.
The statement must have been made: (a) during the course of, and (b) in furtherance of the conspiracy.
Burden of Proof and Specificity of the Conspiracy
The in limine motion filed by the defense in the trial of Hugo “El Pollo” Carvajal Barrios points out that the burden rests on the government to establish that “there was a conspiracy involving the declarant and the non-offering party.”
It notes that this requires the prosecution to “allege sufficient facts prior to presenting the co-conspirator statement that the witness was involved in one of the alleged conspiracies in this case and not in generally related criminal conduct.”
It states that case law determines that co-conspirator statements “are only admissible against those defendants who are shown, by a preponderance of the evidence, to have joined the specific conspiracy that the statements of the co-conspirators allegedly promoted.”
Temporal Limitations
The defense also emphasizes that the requirement for the statement to be made “during” the course of the conspiracy imposes “temporal limitations on admissibility,” thus statements made “before a conspiracy begins are not admissible.”
Therefore, the statement must have been made “while the conspiracy is active: after its formation and before its cessation.” In this sense, statements made “after the objectives of the conspiracy have failed or been achieved are not made during the conspiracy and should be excluded.”
Concerning the furtherance of the conspiracy, the defense highlights that this imposes “limitations on the scope of such statements outside of court.” This means the rule “does not open the door to the admissibility of gossip, speculation, or a recounting of past events among members of a conspiracy.”
Statements that may be considered in furtherance of the conspiracy include those that “provide reassurance, or seek to induce the assistance of a co-conspirator, or serve to foster trust and cohesion, or inform each other about the progress or status of the conspiracy.”
“Idle conversation, narrative statements, and superfluous casual comments are not considered statements in furtherance of the conspiracy under 801(d).”
Assessment of Reliability and Unfair Prejudice
The defense of Hugo “El Pollo” Carvajal Barrios cautions that even if the requirements of Rule 801(d)(2)(E) are met, the court must exercise its “gatekeeping function to ensure that the statements have sufficient indicia of reliability.”
Judicial decisions indicate that “The fact that a statement was actually made ‘in furtherance’ of a conspiracy cannot guarantee, nor even suggest, its reliability.”
In light of this circumstance, the motion urges the court to “act in accordance with Federal Rule of Criminal Procedure 403 to prevent the admission of unfairly prejudicial testimony.” Therefore, it must be “appropriately skeptical of government witness testimony—particularly those in cooperation—when there is no independent corroboration of the content of the out-of-court statements.”