*

 This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfavors the

citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

DEC 31 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

 

ALBERTO SOTO and ISMAEL ORTIZ,

Plaintiffs - Appellees,

v. No. 97-2231

ARTURO JURADO AND JURADO

FARMS,

Defendants - Appellants.

(D.C. No. 96-CV-184-BB)

(D.N.M.)

 

ORDER AND JUDGMENT*

 

Before TACHA, BALDOCK, and BRISCOE, Circuit Judges.

 

Defendants Arturo Jurado and Jurado Farms appeal the district court’s judgment

awarding damages and attorneys’ fees to Plaintiffs Alberto Soto and Ismael Ortiz. On

appeal, Defendants contend that the district court erroneously: (1) found that Arturo

Jurado participated in a conspiracy to terminate Plaintiffs; (2) awarded damages to

Plaintiffs; and (3) awarded excessive and unreasonable attorneys’ fees to Plaintiffs. Our

jurisdiction arises under 28 U.S.C. § 1291. We affirm.
2

I. 

Plaintiffs are agricultural workers engaged in the business of picking chile in

southern New Mexico. In October 1995, Plaintiffs worked for farm labor contractor

Agustin Hernandez picking chile on a farm belonging to Steve Bamert. While employed

by Hernandez, Plaintiffs were involved in a lawsuit filed against Defendant Arturo

Jurado. See Palacios v. Jurado, No. 94-CV-792 (D.N.M. 1995). Plaintiff Soto was a

party to the lawsuit and Plaintiff Ortiz participated as a witness. 

Plaintiffs testified in Palacios on October 24 and 25 and returned to work that

same week. On October 27, 1995, Defendant Arturo Jurado visited Bamert’s farm. 

During this visit, he recognized one of the workers who testified against him in Palacios. 

Defendant gave Bamert a list of farm workers who were plaintiffs in Palacios and who

testified for the plaintiffs. Defendant told Bamert that the farm workers, including both

Plaintiffs, were “indiscriminately suing farmers, chile plant owners, whoever” and

warned that Bamert should “watch out for them.” 

After discussing the farm workers with Defendant Arturo Jurado, Bamert relayed

the contents of the list to Plaintiffs’ employer, Agustin Hernandez. Bamert told

Hernandez to “watch out for these people . . . they are indiscriminately suing farmers,

chile plant owners, whoever.” Within two work days, Hernandez fired Plaintiffs. 

Plaintiffs immediately sought the advice of an attorney. That same day, their attorney

contacted Hernandez and told him that it was illegal to retaliate against Plaintiffs for
3

participating in the Palacios case. Hernandez called Plaintiffs back to work the next day

and, although neither Plaintiff worked that day, payed them for working the day on which

they were fired. Hernandez had never before paid a worker for a day he or she did not

actually work. 

Plaintiffs subsequently filed suit against Defendants arguing that Defendants,

Hernandez and Bamert participated in a conspiracy to retaliate against Plaintiffs for

bringing suit and testifying against Arturo Jurado in the Palacios case. Plaintiffs claimed

that Defendants actions violated the Migrant and Seasonal Agricultural Workers

Protection Act, 29 U.S.C. § 1855 (AWPA), the Fair Labor Standards Act, 29 U.S.C.

§ 215 (FLSA), and 42 U.S.C. § 1985. As relief, Plaintiffs requested that the district court:

(1) declare that Defendants violated Plaintiffs rights under the three statutes; (2) enjoin

Defendants from engaging in discriminatory practices against them; (3) award Plaintiffs

statutory damages pursuant to the AWPA; and (4) award Plaintiffs attorneys’ fees and

costs. 

The district court tried the case without a jury. The district court found that

Defendants conspired against Plaintiffs because of their involvement in Palacios. 

Accordingly, the court awarded each Plaintiff $5,000 in compensatory damages and

$5,000 in punitive damages, plus attorneys’ fees, for Defendants’ violation of § 1985. 

The court further awarded each Plaintiff $30 in liquidated damages and $1,000 in

punitive damages under the FLSA. The court then awarded each Plaintiff $500 under the
4

AWPA.

Defendants contested the court’s damage award under the FLSA. The court

agreed and entered a new order which did not contain an award under the FLSA. In its

amended findings of fact and conclusions of law, the court also awarded Plaintiffs

attorneys’ fees of $67,637.50 and costs in the amount of $1,353.89. Defendant then filed

a Motion to Amend Judgment and Attorney’s Fees. The court granted the motion in part

and reduced Plaintiffs’ attorneys’ fees by $16,868.75. Then, acting on Plaintiffs’

Supplemental Application for Fees, the court awarded Plaintiffs additional attorneys’ fees

of $2,912.50, bringing the entire attorneys’ fees award to $53,681.25.

II.

A.

Defendants first argue that the district court erred in finding that Defendant Arturo

Jurado conspired with Hernandez and Bamert to terminate Plaintiffs. Specifically,

Defendants argue that the evidence presented at trial was insufficient to support the

finding and that the district court improperly considered Plaintiffs’ hearsay statements as

substantive proof of the conspiracy.

Although apparently independent, Defendants’ hearsay and sufficiency arguments

are necessarily intertwined. In order for a co-conspirator’s out of court statement to be

admissible, the proponent of the evidence must first prove by a preponderance of the

evidence the existence of a conspiracy and that the defendant participated in the
1

 Generally, courts make the predicate finding of a conspiracy in one of two ways;

by holding a separate hearing or by allowing the statements in on the assurance that the

statements and additional evidence will prove the underlying conspiracy. In United States

v. Urena, 27 F.3d 1487, 1491 (10th Cir. 1994), we announced that the preferred order of

proof in determining the admissibility of an alleged coconspirator statement is to first

hold a separate hearing outside the presence of the jury to determine whether the plaintiff

can prove a conspiracy by a preponderance of the evidence. This order of proof, we

explained, eliminates the possibility of prejudice where the court admits the

coconspirator’s statement over objection, but the offering party subsequently fails to

prove the underlying conspiracy. We emphasized, however, that the order of proof was a

preference, and that the trial judge retained the discretion to admit hearsay statements

with the idea that the statements will later “connect-up” and show the existence of the

predicate conspiracy. Id. In any event, the order of proof is of lesser importance in the

context of a bench trial where the judge acts as the finder-of-fact. Cf. Allen v. McOtter,

804 F.2d 1362, 1363-64 (5th Cir. 1986) (judge acting as finder-of-fact need not conduct

separate hearing on voluntariness).

5

conspiracy. United States v. Esparsen, 930 F.2d 1461, 1475 (10th Cir. 1991).1 “The

contents of the [hearsay] statement shall be considered but are not alone sufficient to

establish . . . the existence of the conspiracy and the participation therein of the declarant

and the party against whom the statement is offered . . . .” Fed. R. Evid. 801(d)(2)(E). 

see also Bourjaily v. United States, 483 U.S. 171, 181 (1987). Thus, the proponent may

offer the hearsay statement at issue to prove the existence of a conspiracy, but such

statement must be corroborated by independent evidence. Esparsen, 930 F.2d at 1475. 

Defendants ultimately seek a determination that the evidence before the district

court did not support its finding that Defendants participated in a conspiracy to terminate

Plaintiffs. Defendants’ also seek a determination that the district court improperly relied

on hearsay statements made by an alleged coconspirator. Because we must find by a

preponderance of the evidence that a conspiracy existed before we may determine
6

whether the hearsay statements were properly introduced under Fed. R. Evid.

801(d)(2)(E), Defendants’ first argument is necessarily consumed by their second.

“‘Hearsay’ is a statement, other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed. R.

Evid. 801(c). Because courts often view such statements as unreliable, hearsay is

typically not admissible evidence. See Idaho v. Wright, 497 U.S. 805, 817 (1990). The

Federal Rules of Evidence, however, classify certain types of statements, which would

normally be inadmissible hearsay, as properly admitted into evidence. See Fed. R. Evid.

801(d). A statement by a “coconspirator of a party during the course and in furtherance

of the conspiracy” is such a statement. See Fed. R. Evid. 801(d)(2)(E).

Although not entirely clear, Defendants appear to complain about the following

statements admitted at trial:

1) a statement by Plaintiff Soto that Gregorio Reyes told him that Hernandez

told Reyes that Defendant Arturo Jurado ordered Hernandez to fire Soto

because he was a “bad influence or bad element.”

2) a statement by Plaintiff Soto that Hernandez told him that Bamert had given

Hernandez a list of seven people, including Soto, who were “bad elements.”

3) a statement by Plaintiff Ortiz that Hernandez told him “you cannot continue

picking because this is an order from Arturo [Jurado] and Steve [Bamert].” 

We initially note a double hearsay problem with the first statement made by Plaintiff

Soto. Fed. R. Evid. 805 provides that “[h]earsay within hearsay is not excluded under the

hearsay rule if each part of the combined statements conforms with an exception to the

hearsay rule . . . .” The first level of hearsay in this statement is Reyes’ statement that
7

Hernandez told him to fire Plaintiff Soto. The second level is Hernandez’s statement that

Defendant Arturo Jurado ordered Hernandez to fire Soto. Even assuming the second

level comes under an exception to the hearsay rule, Reyes account of what Hernandez

told him is inadmissible and, therefore, renders the entire statement inadmissible. 

Although the record reveals a good deal of evidence showing a conspiracy between

Defendant Jurado, Hernandez, and Bamert, this statement is the only such evidence

suggesting Reyes participated. Without more, Plaintiffs have not proven by a

preponderance that Reyes participated in the conspiracy. Because Reyes’ statement is not

admissible under Fed. R. Evid. 801(d)(2)(E) or any exception to the hearsay rule, any

reliance on the first statement by the district court was misplaced. 

We now review the second two statements to determine whether they are nonhearsay under Fed. R. Evid. 801(d)(2)(E). The first step in this inquiry is to determine

whether Plaintiffs proved by a preponderance of the evidence that Hernandez, Bamert and

Defendant Arturo Jurado participated in a conspiracy. In making this determination, we

look at the hearsay statements themselves, as well as any additional evidence presented to

the district court. Bourjaily, 483 U.S. at 181. 

To prove a civil rights conspiracy under 42 U.S.C. § 1985(2), Plaintiffs were

required to show: (1) a conspiracy by Defendants; (2) to injure a party or witness in his or

her person or property; (3) because of attending federal court or testifying in any matter

pending in federal court; (4) which actually results in injury or damages to Plaintiffs. 
8

Portman v. County of Santa Clara, 995 F.2d 898, (9th Cir. 1993) (citing 42 U.S.C.

1985(2)). Considering the evidence in its entirety, and viewing it in a light most

favorable to the district court’s finding, we conclude Plaintiffs proved that Jurado,

Hernandez and Bamert conspired to terminate Plaintiffs because they participated in

Palacios. 

The record clearly shows that Defendant Arturo Jurado is a major player in the

southern New Mexico chile industry. For the past several years, Defendant Jurado has

purchased Bamert’s entire chile crop. Hernandez is a labor contractor providing chile

pickers to area farmers. Although other labor contractors exist, both Bamert and

Defendant Jurado contract with Hernandez to have their chiles picked.

Plaintiffs participated in and testified against Jurado in Palacios. Shortly

thereafter, Jurado compiled a list of workers involved in the lawsuit. One day, Jurado

recognized that one of Hernandez’ chile pickers, who was working on Bamert’s farm, had

participated in the lawsuit against him. Jurado warned Bamert about the worker and

provided him a list naming seven workers who were involved in Palacios. Jurado told

Bamert that the workers were litigious and that he needed to be careful in dealing with

them. 

Bamert forwarded the list to Hernandez and relayed what Jurado told him about

the workers on the list. The next day, Hernandez personally fired Ortiz and ordered

Reyes to fire Soto. Hernandez told Soto about the list and that Bamert told Hernandez
9

that Soto was a “bad element.” Hernandez told Ortiz that Jurado and Bamert would not

allow him to work anymore. The day Hernandez fired Soto and Ortiz, the men visited a

lawyer who contacted Hernandez. The lawyer told Hernandez that it was illegal to

retaliate against the two men for participating in Palacios. The next day, Soto and Ortiz

were both called back to work and paid for the previous day. No other workers on the list

were subsequently fired.

From these facts, we believe a reasonable finder-of-fact could conclude by a

preponderance that Jurado, Hernandez and Bamert conspired to terminate Soto and Ortiz

because they participated in Palacios. We further conclude that the challenged statements

were made during the course, and in furtherance of the conspiracy. Thus, the district

court did not abuse its discretion in admitting the coconspirator statements. As noted

above, our disposition of Defendants’ argument that the district court improperly admitted

Plaintiffs’ hearsay testimony also disposes of Defendants’ contention that the evidence

did not support the district court’s finding that Defendant Arturo Jurado conspired to

terminate Plaintiffs for participating in Palacios. For the sake of clarity, however, we

formally reject Defendants’ sufficiency argument and conclude that its finding that Jurado

conspired to terminate Plaintiffs was not clearly erroneous. 

B.

Defendants next contend that the “district court erred in awarding damages to

plaintiffs, because the evidence was insufficient to support the damages awarded and
10

because the district court relied on matters outside the record in fixing the amount of

damages awarded. “Our review of a damages award is constrained by familiar principles. 

The award itself must be supported by substantial evidence.” Wulf v. City of Wichita,

883 F.3d 842, 874 (10th Cir. 1989) (citing Grunenthal v. Long Island R.R., 393 U.S. 156,

159-60 (1968)). Compensatory damages are not limited to lost wages and other monetary

harms, but also include injuries such as damage to reputation, personal humiliation, and

emotional distress. See Memphis Comm. School Dist. v. Stachura, 477 U.S. 299, 307

(1986). 

Plaintiffs testified that Jurado’s participation in the conspiracy damaged their

reputation with area farmers and caused them to fear that they would not be able to get

work in the area. In addition, the record contains evidence showing that Jurado’s acts

actually damaged Plaintiffs’ reputations. For example, the record shows that after Jurado

told Bamert that Plaintiffs were litigious and needed to be watched, Bamert felt the need

to warn Hernandez. Drawing the inferences in favor of the district court’s findings, the

information undoubtedly harmed their reputation with respect to Hernandez – he fired

them. Moreover, considering the fact that Hernandez was the labor contractor who

provided Plaintiffs with work, it was reasonable for the district court to conclude that they

legitimately feared their future ability to obtain work in the area. Although Plaintiffs

“testimony and the evidence presented are not the most graphic and detailed display” of

reputation damage and emotional distress, we cannot conclude that the district court’s
11

damage award is not supported by substantial evidence. See Wulf, 883 F.2d at 875. 

Defendants further contend that the district court improperly based its award on

facts not in the record. Specifically, Defendants contend that the district court improperly

concluded that: (1) Jurado farms had been valued at $4,819,858; (2) Plaintiffs had a

legitimate fear they would not be able to work on area farms; and (3) Plaintiffs feared

they would not be able to provide for their families. Viewed in a light most favorable to

Plaintiffs, the record supports the district court’s findings that Plaintiffs feared they would

not be able to get work in the area and that Plaintiffs feared they would not be able to

provide for their families. Furthermore, Defendants’ argument that the district court

erroneously considered the value of Jurado farms is of little relevance. Assuming

Defendants are correct regarding the issue of value, the evidence nonetheless supports the

damage award. 

C. 

Defendants finally complain that the district court’s award of attorneys’ fees must

be reversed because the award was both excessive and unreasonable. We review the

district court’s award of attorneys’ fees for an abuse of discretion. Anderson v. Secretary

of Health and Human Services, 80 F.3d 1500, 1504 (10th Cir. 1996). In doing so, we

generally defer to the district court’s judgment because its first-hand knowledge of the

attorneys’ work gives it a far better means of knowing what is fair and just than an

appellate court can glean from the record on appeal. Id. Nonetheless, the district court
12

should provide a clear and concise explanation of its reasons for awarding fees. New

Mexico Citizens For Clean Air And Water v. Espanola Mercantile Company, Inc., 72

F.3d 830, 834 (10th Cir. 1996). Although the explanation need not identify and justify

each hour permitted or denied, the order should be specific enough to provide this court

with an adequate basis for review. Id. 

The most useful starting point for determining whether the district court’s award of

attorneys’ fees is proper is the number of hours reasonably expended multiplied by a

reasonable hourly rate. Ramos v. Lamm, 713 F.2d 546, 552 (10th Cir. 1983). We have

described this basic concept – reasonable hours times reasonable rate – as the “lodestar

figure.” Anderson, 80 F.3d at 1504. The party seeking attorneys’ fees bears the burden

of proving that the time expended was reasonable and what rate is reasonable for that

particular litigation. Case v. Unified School Dist. No. 233, Johnson County, 157 F.3d

1243, 1250 (10th Cir. 1998). A reasonable rate is generally the going rate for an attorney

of the same experience level, in the same community, for the same type of work. Id. at

1255-56. Reasonable hours generally include the time necessary for a competent attorney

to thoroughly prepare and try the case. See id. at 1250. A party may not recover

attorney’s fees for tasks easily delegated to a non-professional assistant. Espanola

Mercantile, 72 F.3d at 835. Thus, in order to prevent paying “a Michelangelo . . . Sistine

Chapel rates for painting a farmer’s barn,” the court must scrutinize the records and weed

out non-professional and excessive tasks. Id. (quoting Ursic v. Bethlehem Mines, 719
13

F.2d 670, 677 (3d Cir. 1983)). 

Although the district court’s judgment does not contain meticulous detail

describing its award of attorneys’ fees, our review of the record convinces us it did not

abuse its discretion. The record demonstrates that after Plaintiffs presented their billing

records and evidence of reasonable rates in their legal community, the district court

determined what it deemed a reasonable lodestar figure. Defendants’ filed a motion to

amend the judgment, arguing that Plaintiffs’ fee requests were unreasonable. Defendants’

specifically pointed to duplicative work and non-professional tasks which it believed

should not be compensated at legal service rates. The district court agreed, and cut

Plaintiffs’ attorneys’ fees by approximately $16,000. The district court specifically

marked the time entries it struck in reducing Plaintiffs attorney’s fees. In sum, we uphold

the district court’s fee award. We do note, however, that a more detailed analysis of the

fee application would have made our review of the award considerably less demanding.

AFFIRMED.

Entered for the Court,

Bobby R. Baldock

Circuit Judge