FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TOWN OF COLORADO CITY,

ARIZONA; TWIN CITY WATER 

AUTHORITY, INC.,

Defendants-Appellants.

No. 17-16472

D.C. No.

3:12-cv-08123-

HRH

OPINION

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 coconspirator 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 

wishesto 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 coconspirator 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.