Evidence - Rule 801(d)(2)(E) – Co-Conspirator Statements

United States v. Jackson, 636 F.3d 687 (5th Cir. 2010)

A DEA agent explained how and why drug traffickers keep drug ledgers. A co-conspirator’s drug ledgers that implicated the defendant were then introduced into evidence under the Business Records exception to the hearsay rule (the co-conspirator did not testify) and as a co-conspirator statement. The Fifth Circuit held that this was error. The agent’s testimony did not satisfactorily authenticate the records, or establish the necessary foundation that these records were kept in the regular course of business or that they were prepared during the course of the conspiracy. Though a person other than a record custodian may authenticate a business record, the witness must be able to authenticate this business record and not, as here, business records (or drug ledgers) in general. Admitting the ledgers constituted a violation of Confrontation Clause and required that the conviction be reversed. The Fifth Circuit further explained that the notebooks were inadmissible on Confrontation Clause grounds, because the government failed to prove that they were not testimonial. Because no effort was made to authenticate the notebooks (i.e., how or when they were written), the introduction of the notebooks became, in essence, the functional equivalent of the author testifying live in court. It is the government’s burden to prove that an out-of-court statement is non-testimonial.

United States v. Turner, 548 F.3d 1094 (D.C. Cir. 2008)

Determining when a conspiracy ends is important in numerous contexts, including a defense that the statute of limitations has expired; a claim that a co-conspirator statement was not made during the course of a conspiracy and, as in this case, in deciding which version of the Sentencing Guidelines to apply (i.e., a possible Ex Post Facto claim). In this case, the conspirator forged certain documents that enabled them to receive money as the beneficiary of another person who died. The forgery and receipt of the money occurred in 2001. When questioned by the police about these events in 2006, the conspirators lied. The D. C. Circuit held that the conspiracy ended in 2001 when the objects of the conspiracy were achieved. See generally Grunewald v. United States, 353 U.S. 391 (1957); Krulewitch v. United States, 336 U.S. 440 (1949); Lutwak v. United States, 344 U.S. 604 (1953).

United States v. Al-Moayad, 545 F.3d 139 (2d Cir. 2008)

The defendant was charged with providing matieral support to a terrorist organization. The government introduced an application form for another person to enroll in a terrorist training camp and the form indicated that the defendant had sponsored the applicant. The government offered the form under Rule 801(d)(2)(E). However, there was insufficient information that the defendant was in a conspiracy with the applicant (or even knew him) or that the defendant was in a conspiracy that involved enrolling the applicant in the terrorist training camp.

United States v. Conrad, 507 F.3d 424 (6th Cir. 2007)

The record was not clear when the co-conspirator hearsay declaration was made. If it was made after the conspiracy ended, it was not made “in furtherance” of the conspiracy and thus was inadmissible. The trial court’s failure to make pertinent findings necessitated a remand to enable the trial court to make the necessary findings. In addition, the trial judge held that the government had made a prima facie case of the existence of a conspiracy; the proper standard requires the government to prove the existence of a conspiracy by a preponderance of the evidence.

United States v. Magluta, 418 F.3d 1166 (11th Cir. 2005)

The defendant bribed a juror in a prior drug prosecution. In this case, the defendant was charged with obstruction of justice based on the bribe to the juror. The government introduced evidence that the juror told an informant (two years after the prior trial) about the bribe. The trial court held that the conspiracy was ongoing and that the statement to the informant was in furtherance of the conspiracy. The Eleventh Circuit disagreed. Following the teaching of Grunewald v. United States, 353 U.S. 391 (1957), the court held that the object of the conspiracy was essentially completed when the juror convinced his colleagues to return a not guilty verdict. Though there was a continuing need to keep the existence of the conspiracy a secret, this did not prolong the existence of the conspiracy for purposes of Rule 801(d)(2)(E).

United States v. West, 142 F.3d 1408 (11th Cir. 1998)

The trial court erred in admitting a drug ledger as a co-conspirator statement. Though drug ledgers may, in certain circumstances be admissible, in this case, the author was unknown and the trial court failed to find that the author was a member of the conspiracy or that the entries in the ledger were made in furtherance of the conspiracy. The trial court also plainly erred in instructing the jury that they should determine whether the ledger was composed by a co-conspirator. Harmless error.

United States v. Maliszewski, 161 F.3d 992 (D.C. Cir. 1998)

Certain statements that were offered under Rule 801(d)(2)(E) were not shown to have been made in furtherance of the conspiracy, but amounted to nothing more than idle chatter between a husband and wife. Harmless error. The statements were still admissible under Rule 804(b)(3), because the declarant was dead and the statements were against his interest.

United States v. Serrano, 870 F.2d 1 (1st Cir. 1989)

At a deposition, a co-defendant made statements that the defendant had knowledge of, and complicity in, the fraudulent scheme which was the subject of this criminal prosecution. The statement at the deposition was not in furtherance of, or during the course of, the conspiracy and was not admissible under Rule 801(d)(2)(E). Even if the statement constituted an act of concealment, the statement was not admissible.

United States v. Tellier, 83 F.3d 578 (2d Cir. 1996)

In Bourjaily v. United States, 483 U.S. 171 (1987), the Supreme Court held that the trial court may consider the out-of-court co-conspirator declaration which the government seeks to admit in deciding whether there was a conspiracy – a predicate for the admissibility of the statement before the jury. However, the Court also cautioned that such hearsay statements are presumptively unreliable and, therefore, while they may be considered in deciding whether there was a conspiracy involving the declarant and the defendant, there must be some independent corroborating evidence of the defendant’s participation in the conspiracy. No such corroborating evidence existed in this case. Consequently, the hearsay statement implicating the defendant should not have been admitted and the conviction was reversed. The reversal of the conspiracy conviction also necessitated reversing the separate Hobbs Act conviction because of the prejudicial spillover effect.

United States v. Urbanik, 801 F.2d 692 (4th Cir. 1986)

One co-conspirator told another that his supplier had enormous physical prowess. The government sought to introduce these statements to establish that the supplier was a member of the conspiracy at the time of the conversation. The Fourth Circuit holds that these statements were not “in furtherance of” the conspiracy and, thus, were inadmissible hearsay.

United States v. El-Zoubi, 993 F.2d 442 (5th Cir. 1993)

Adel and El-Zoubi were co-conspirators in an arson offense. Prior to setting the fire, Adel told a neighbor in the shopping center that he was sick of it all and was going to burn the shop down. At El-Zoubi’s trial, this was inadmissible hearsay. The neighbor was not part of the conspiracy, and the statement made to him was not in furtherance of the conspiracy.

United States v. McConnell, 988 F.2d 530 (5th Cir. 1993)

The government failed to prove that the conspirator’s statement was made in furtherance of the conspiracy. Admitting the hearsay statement was reversible error. There was no explanation of the context in which the statement was made and no other explanation of how the statement implicating the defendant furthered the conspiracy.

United States v. Greer, 939 F.2d 1076 (5th Cir. 1991)

Though the error was harmless, the trial court should not have allowed the government to introduce the statement of “a skinhead” that all blacks and Jews should be eliminated. There was no proof that the police officer to whom this statement was made knew which person made the statement. Therefore, there was no way to determine if a co-conspirator made the statement.

United States v. Arroyo, 805 F.2d 589 (5th Cir. 1986)

After the government failed to prove up its conspiracy, the trial judge granted a new trial after concluding that no instruction could cure the error of admitting the co-conspirator’s statements.

United States v. Scartz, 838 F.2d 876 (6th Cir. 1988)

Though prior Sixth Circuit cases held that “only slight evidence” was needed to place the defendant in a conspiracy prior to admitting co-conspirator statements, the proper standard is a preponderance of the evidence. The “slight evidence” rule refers only to the nature and extent of the defendant’s involvement in the conspiracy, not to the initial question of membership.

United States v. Santos, 20 F.3d 280 (7th Cir. 1994)

Statements by a co-conspirator to an IRS agent were not made in furtherance of the conspiracy and were not admissible under Rule 801(d)(2)(E). Mere idle chatter, narrative statements of past events, and superfluous casual conversations are not statements in furtherance of a conspiracy. Harmless error.

United States v. Mahkimetas, 991 F.2d 379 (7th Cir. 1993)

An undercover police officer testified about what was told to her by the person who helped set up a drug deal. These statements identified the defendant as the person who would be the supplier. At the time of this conversation, there were only two people involved in the transaction: the person who was the declarant and the undercover agent. The defendant/supplier had not yet been contacted. Because the out-of-court statements of the person who was going to arrange the deal were made to an undercover agent and there were no other conspirators at that time, there could not have been a conspiracy. “Rule 801(d)(2)(E) is not brought into play by the sound of just one lawbreaker’s hand clapping.” If the supplier were already in the conspiracy, the result would be different. The admission of the hearsay in this case was not reversible error.

United States v. Johnson, 927 F.2d 999 (7th Cir. 1991)

The statements of one co-conspirator to another were not “in furtherance” of the conspiracy and were inadmissible under Rule 801(d)(2)(E). The statement was an offhand admission of culpability, but was not designed to encourage the other conspirator to pursue the conspiratorial objectives. Harmless error.

United States v. Shoffner, 826 F.2d 619 (7th Cir. 1987)

The Seventh Circuit rules that the preferable procedure is to require the government to preview its evidence of a conspiracy prior to admitting statements under Rule 801(d)(2)(E).

United States v. Alonzo, 991 F.2d 1422 (8th Cir. 1993)

After a co-conspirator’s arrest, he revealed to the police the source of the cocaine he was in possession of at the time of his arrest. The source was the defendant. This hearsay evidence was not admissible under Rule 801(d)(2)(E) because the declarant was not making the statements during his participation in the conspiracy nor in furtherance of the conspiracy. The evidence was prejudicial and required a new trial. The declarant did not testify at trial.

United States v. Whalen, 844 F.2d 529 (8th Cir. 1988)

Defendant’s mother advised the defendant not to speak to the police and had told someone she had wiped the murder weapon clean. The government sought to introduce the mother’s statement that she had wiped the murder weapon clean as a co-conspirator statement. The Court held that there was insufficient evidence to establish the existence of a conspiracy between the mother and the defendant; the statements were, therefore, inadmissible hearsay.

United States v. Wood, 834 F.2d 1382 (8th Cir. 1987)

A cooperating witness’ statement to his wife that he was putting radios in boats used by the defendant for drug smuggling was not admissible under 801(d)(2)(E). The statement was made merely to inform the wife about the co-conspirator’s activities and was not in furtherance of the conspiracy.

United States v. Chan Lai, 944 F.2d 1434 (9th Cir. 1991)

Records and ledgers of drug transactions were admitted for the truth of the matter contained in the records. In order to be admitted, the government would have to show that the requirements of Rule 801(d)(2)(E) were satisfied. A remand for this inquiry was appropriate.

United States v. Vowiell, 869 F.2d 1264 (9th Cir. 1989)

Four days after escape, the defendant told a third party to tell a witness to get other prisoners out of town. This statement was not made during the course of the conspiracy and was not admissible as a co-conspirator statement.

United States v. Silverman, 861 F.2d 571 (9th Cir. 1988)

Interpreting the United States Supreme Court’s decision in Bourjaily, the Ninth Circuit holds that evidence of the defendant’s participation in a conspiracy must be established by independent corroborating evidence which is “fairly incriminating” in itself. Although the co- conspirator statement may be considered in making this evaluation, because of the inherently unreliable nature of such statements, more than “wholly innocuous” conduct by the defendant must be shown to render the co-conspirator statements admissible. In this case, the government failed to introduce sufficient evidence of the defendant’s participation in the conspiracy.

United States v. Perez, 989 F.2d 1574 (10th Cir. 1993)

At a time prior to the commencement of the conspiracy, and in a manner which in no way facilitated or furthered the conspiracy, one person, who later became a co-conspirator, told another that the defendant distributed a lot of cocaine to him. This was inadmissible under Rule 801(d)(2)(E) and was reversible error. The Court of Appeals rejected the government’s contention that Bourjaily somehow changed the standard for admissibility of such evidence. While Bourjaily did hold that the statement itself could be considered in ascertaining whether there was a conspiracy, the Court did not change the ultimate question, which is whether the statement was made during the scope of, and in furtherance of, the conspiracy.

United States v. Wolf, 839 F.2d 1387 (10th Cir. 1988)

A witness testified that the defendant’s wife stated that the defendant hit a child in the stomach. This was merely narrative and was not admissible against the defendant under the co-conspirator exception to the hearsay rule. The statement did not further the alleged conspiratorial objectives of abusing a child or of covering up abuse. The evidence was harmless in this case.

United States v. Garcia, 13 F.3d 1464 (11th Cir. 1994)

Statements made by one co-conspirator prior to the time that the defendant becomes a member of the conspiracy are not admissible against that defendant. Where there are multiple conspiracies, it is error to admit a statement which merely advances some other conspiracy not involving the defendant against whom it is admitted.

United States v. Blakey, 960 F.2d 996 (11th Cir. 1992)

The hearsay statement of a co-conspirator was not made in furtherance of the conspiracy and admitting it at trial was reversible error. The statement was made by a co-conspirator to an investigator who was investigating the offense. The co-conspirator pointed the finger of blame at the defendant. This did not advance the goal of the conspiracy, even though the declarant’s identification of the defendant was not entirely accurate and the government argued that the declarant was trying to mislead the investigator.

United States v. Christopher, 923 F.2d 1545 (11th Cir. 1991)

Co-conspirator hearsay statements were inadmissible for two reasons. First, it was never clearly established who made the statement that the witness testified “was made by one of the sons.” Secondly, the trial court never made a specific finding that one of the sons was a co-conspirator at the time the statement was made (assuming the statement was made by that son).