Opinion
CRIMINAL ACTION NO. 01-232; SECTION: "R" (3)
May 30, 2002
ORDER AND REASONS
Before the Court is defendants' motion for a pretrial evidentiary hearing to determine the admissibility of co-conspirator statements. For the following reasons, the Court denies the motion.
I. Background
On March 28, 2002, a grand jury sitting in the Eastern District cf Louisiana charged defendants, Dennis Ray Morgan and Sean McKinney, with one count of conspiring with others to possess with the intent to distribute in excess of one-half a kilogram of cocaine and with one count of attempting to possess one kilogram of cocaine with the intent to distribute, all in violation of 21 U.S.C. § 846. The grand jury also charged McKinney with using and carrying a firearm during and in relation to the commission of a drug trafficking crime for which the defendant may be prosecuted in a court of the United States, in violation of 18 U.S.C. § 924(c)(1). The Government has indicated that it will introduce co-conspirators statements under Federal Rule of Evidence 801(d)(2)(E) at trial. Defendants argue that the court should hold a pretrial hearing to determine the admissibility of co-conspirator statements.
II. Discussion
In United States v. James, 590 F.2d 575 (5th Cir.) (en banc), cert. denied, 442 U.S. 91799 S.Ct. 2836 (1979), the court held that co-conspirator statements are admissible only if the prosecution proves, by a preponderance of the evidence, "(1) that a conspiracy existed, (2) that the co-conspirator and the defendant against whom the co-conspirator's statement is offered were members of the conspiracy, and (3) that the statements were made during the court and in the furtherance of the conspiracy." 590 F.2d at 582. The Fifth Circuit does not require trial courts to hold pretrial hearings to determine the admissibility of conspirator statements. Although the original panel in James, 576 F.2d 1121 (5th Cir. 1978), concluded that the appropriate procedure was a "minitrial" conducted outside the presence of the jury, that decision was vacated and the case was taken en banc because a number of judges felt that "the minitrial procedure fashioned by the panel [was] obviously unworkable and onerous." James, 590 F.2d at 585 (Tjoflat, J., concurring). Compare James, 576 F.2d at 1131-32, with James, 590 F.2d at 585 (Tjoflat, J., concurring). The en banc decision did not require the holding of a pretrial hearing of the type defendants request when it set forth the procedures to be used to determine the admissibility of co-conspirator statements. Id. at 581-83.
In Bourjaily v. United States, 483 U.S. 171, 181, 107 S.Ct. 2775, 2781 (1987), the Supreme Court partly overruled James by holding that the trial court may consider the content of hearsay statements in determining their admissibility under Federal Rule of Evidence 801(d)(2)(E).
Further, Fifth Circuit decisions since James have made it clear that a pretrial hearing of the type requested here is not required. See, e.g., United States v. Williams, 264 F.3d 561, 576 (5th Cir. 2001) ("A James hearing, conducted outside the presence of the jury, is one potential method by which the district court may ensure the Government can satisfy the predicate facts needed to prove the conspiracy independent of the statements."); United States v. Fragoso, 978 F.2d 896, 899 (5th Cir. 1992), cert. denied, 507 U.S. 1012, 113 S.Ct. 1664 (1993) (" James has never required a hearing outside the presence of the jury."). Since James, the Fifth Circuit has repeatedly upheld approaches to determining the admissibility of statements under Federal Rule of Evidence 801(d)(2)(E) that are less onerous than a pretrial hearing. In United States v. Gonzalez-Balderas, 11 F.3d 1218 (5th Cir. 1994), for example, the court found that for purposes of practicality, the district court could conditionally admit co-conspirator statements at trial subject to a subsequent determination as to whether the government has established the requisite Rule 801(d)(2)(E) predicates. See 11 F.3d at 1224. Likewise, in Fragoso, the court approved the deferral of a James ruling until the close of the government's case. See 978 F.2d at 899-900.
Here, the holding of a pretrial hearing of the type defendants request is impractical. It would require the Court to hear much of the trial evidence twice, and it would potentially lead to the revelation of the names of government witnesses that may be placed in danger before those witness's names must necessarily be revealed. The Court finds that holding what would amount to two trials in the case would be both unnecessary and wasteful. Therefore, defendants' motion for a pretrial hearing is denied.
III. Conclusion
For the foregoing reasons, defendants' motion for a pretrial hearing to determine the admissibility of co-conspirator statements is DENIED.