Opinion
CR 07-260-003-PHX-DGC.
October 3, 2008
ORDER
Defendants ask the Court to hold an evidentiary hearing to determine whether co-conspirator statements may be admissible under Federal Rule of Evidence 801(d)(2)(E). Dkt. #535. Such a hearing is not necessary.
The Ninth Circuit has held that trial courts need not hold pretrial hearings to determine the admissibility of co-conspirator statements. See United States v. Long, 706 F.2d 1044, 1053 (9th Cir. 1983); United States v. Perez, 658 F.2d 654, 658 (9th Cir. 1981); United States v. Zemek, 634 F.2d 1159, 1169 (9th Cir. 1980); see also United States v. Milburn, No. CR 05-00167 WHA, 2008 WL 2557973, *9 (N.D. Cal. 2008); United States v. Clason, No. CR-05-870-PHX-DGC, 2007 WL 1063169, *4 (D. Ariz. 2007). A trial court may instead rule on the admissibility of co-conspirator statements when the evidence is presented at trial. Zemek, 634 F.2d at 1169; Perez, 658 F.2d at 658. The Ninth Circuit has also held that a district court may allow the admission of co-conspirator statements before the existence of a conspiracy is established, with the statements to be stricken from the evidence if the Government ultimately fails to satisfy foundational requirements. See Zemek, 634 F.2d at 1169.
Defendants cite the Fifth Circuit case of United States v. James, 590 F.2d 575 (5th Cir. 1970), for the proposition that a pre-trial hearing is the preferred method of determining the admissibility of co-conspirator statements. Dkt. #535. In Zemek, however, the Ninth Circuit expressly rejected the James approach and reaffirmed Ninth Circuit precedent. Zemek, 634 F.2d at 1169 n. 13.
Holding a pretrial hearing to establish the nature of the conspiracies in this case likely would take many days and unduly burden the Court's resources. The Court instead will follow the Ninth Circuit rule and conditionally admit the co-conspirator statements subject to a later motion to strike.
IT IS ORDERED that Defendants' Request For Pretrial Hearing to Determine Admissibility of Co-Conspirator Statements (Dkt. #535) is denied.