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. § 12601

The 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.