MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001
Go to Federal Manuals Table of Contents - Go to Recurring Problems Table of Contents

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

Part V(A) 1    Admissibility: Coconspirator Statements: General Principles

CAVEAT: See Publication Preface and Caveats.

FORECITE National™ Materials Related To This Issue:

19.3.10 Conspiracy: Limiting Instruction When Coconspirator Statements Are Not Admissible Against All Codefendants

83.4 Conspiracy: Hearsay Statements Of Coconspirator

83.4.3.3 Statements Made Before Or After Existence Of Conspiracy Limited To Person Making The Statements

According to FRE 801(d), "A statement is not hearsay if--

"(1) . . . .

"(2) The statement is offered against a party and is ...

"(E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy."

(Although the rule states that this type of out-of-court statement is not hearsay, the statements that are made admissible by this rule are typical hearsay statements, that is, they are out-of-court statements offered at trial to prove the truth of the matter asserted.)

Before commencement of trial, government counsel should be advised that no proposed coconspirator statement shall be presented in evidence until it has first been presented to the court out of the presence of the jury and the court has ruled that it will be received in evidence.

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

The rules regarding coconspirator statements relate to utterances that would otherwise be banned by the hearsay rule.

United States v. Geaney, 417 F.2d 1116 (2d Cir. 1969)

A statement does not fall within the ambit of the coconspirator rule unless it would otherwise be excludable by reason of being a hearsay declaration. A declaration that has relevance for a reason other than the truth of the matter asserted may be admissible, if relevant, as a non-hearsay "verbal act."

Anderson v. United States, 417 U.S. 211 (1974)
United States v. Calarco, 424 F.2d 657 (2d Cir. 1970)
United States v. Martorano, 561 F.2d 406 (1st Cir. 1977)

Tape recordings introduced to show the scope of certain gambling operations, but not offered to prove the truth of the contents of any of the conversations, are not hearsay. The recordings are thus admissible as verbal acts.

United States v. Boyd, 566 F.2d 929 (5th Cir. 1978)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

For a statement to be admissible as a coconspirator statement, the court must find that

1. there was a conspiracy in existence;

2. the declarant was a member of that conspiracy;

3. the defendant against whom the statement is offered was a member of that conspiracy;

4. the statement was made in furtherance of that conspiracy; and

5. the statement was made during the course of that conspiracy.

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

At one time most circuits held that in determining whether an alleged coconspirator statement was admissible, a trial court could not take into consideration the proposed statement itself.

In Bourjaily v. United States, 483 U.S. 171 (1987), however, the Supreme Court reversed the rulings of those circuits and held that a trial court may take into consideration the content of an alleged coconspirator statement itself in determining whether that statement is to be admitted as a coconspirator statement.

The Supreme Court left open the question whether the court could rely solely on the proposed coconspirator statement to determine that it was admissible as a coconspirator statement.

In addition, in Bourjaily the Supreme Court ruled that if a coconspirator statement met all the evidentiary requirements for admission, the trial court need not make a further inquiry as to whether the statement met the challenge of the Confrontation Clause.

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

Part V(A) 1b(2)    Admissibility: Coconspirator Statements: Existence Of A Conspiracy Must Be Proved

CAVEAT: See Publication Preface and Caveats.

Before admitting the statement of a coconspirator, the trial judge must find that a conspiracy did in fact exist.

Bourjaily v. United States, 483 U.S. 171 (1987)
United States v. Macklin, 573 F.2d 1046 (8th Cir. 1978)
United States v. Santiago, 582 F.2d 1128 (7th Cir. 1978)

The existence of a conspiracy and the defendant's participation in it are preliminary questions of fact that must be resolved by the court pursuant to FRE 104(a) before a coconspirator statement may be admitted into evidence.

Bourjaily v. United States, 483 U.S. 171 (1987)

The court must apply a preponderance-of-the-evidence standard in determining whether such preliminary questions of fact have been established under FRE 104(a).

Bourjaily v. United States, 483 U.S. 171 (1987)

The court may consider the contents of the proposed coconspirator statement itself, along with any independent evidence of the conspiracy, in applying Rule 104(a) to resolve the preliminary factual question whether the existence of a conspiracy has been proven by a preponderance of the evidence.

Bourjaily v. United States, 483 U.S. 171 (1987)

It is not necessary, however, that a conspiracy be charged in the indictment.

United States v. Doulin, 538 F.2d 466 (2d Cir. 1976)
United States v. Jones, 540 F.2d 465 (10th Cir. 1976)
United States v. Kendricks, 623 F.2d 1165 (6th Cir. 1980)
United States v. Kendall, 665 F.2d 126 (7th Cir. 1981)
United States v. Layton, 855 F.2d 1388 (9th Cir. 1988)

Nor is it necessary that the declarant be charged as a codefendant.

United States v. Jones, 542 F.2d 186 (4th Cir. 1976)

It is sufficient that there be a joint venture.

United States v. Regilio, 669 F.2d 1169 (7th Cir. 1981)
United States v. Saimiento-Rozo, 676 F.2d 146 (5th Cir. 1982)

The joint venture on which admission of a coadventurer's statement is based need not be the same as the charged conspiracy, if any, and need not have an illegal objective.

United States v. Layton, 855 F.2d 1388 (9th Cir. 1988)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

Part V(A) 1b(3)    Admissibility: Coconspirator Statements: The Statement Must Have Been Made By A Member Of The Conspiracy

CAVEAT: See Publication Preface and Caveats.

To be admissible the statement must have been made by one who was a member of the conspiracy at the time of the statement, but the declarant need not be named in the indictment as a codefendant.

United States v. Jones, 542 F.2d 186 (4th Cir. 1976)
United States v. Cambindo Valencia, 609 F.2d 603 (2d Cir. 1979)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

The statement of an alleged coconspirator is not admissible against an accused without proof of the latter's membership in the conspiracy.

United States v. Nuccio, 373 F.2d 168 (2d Cir. 1967)
United States v. Morrow, 537 F.2d 120 (5th Cir. 1976)        

It is admissible against one who loins the conspiracy after the statement was made.

United States v. Holder, 652 F.2d 449 (5th Cir. 1981)
United States v. Coe, 718 F.2d 830 (7th Cir. 1983)
United States v. Harris, 729 F.2d 441 (7th Cir. 1984) (provided conspiracy was in existence when statement was made)
United States v. Dial, 757 F.2d 163 (7th Cir. 1985)
United States v. Jackson, 757 F.2d 1486 (4th Cir. 1985)
United States v. Badalamenti, 794 F.2d 821 (2d Cir. 1986) (provided that before joining, accused was generally aware of what coconspirators had been doing and saying)

The fact that one party to a conversation is a government agent or informer does not of itself preclude admission of statements by the party, if he or she is a member of a conspiracy.

United States v. Williamson, 53 F.3d 1500 (10th Cir. 1995)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

By the terms of FRE 801(d)(2)(E), a coconspirator's statement is not admissible unless it was made "in furtherance of the conspiracy." All circuits recognize that this is a prerequisite to admissibility, but they vary in the strictness with which they interpret it. Some courts are more ready than others to find a statement to be in furtherance of a conspiracy.

The following are comments by many circuits on the "in furtherance" problem.

Mere conversation between coconspirators or merely narrative descriptions were not "in furtherance." To be admissible, declarations must further the common objectives of the conspiracy.

United States v. Eubanks, 591 F.2d 513 (9th Cir. 1979)
United States v. Singleton, 125 F.3d 1097 (7th Cir. 1997)

United States v. Layton, 855 F.2d 1388 (9th Cir. 1988)

Casual comments that neither were intended to further the conspiracy nor had the effect of furthering it in any way were not "in furtherance."

United States v. Green, 600 F.2d 154 (8th Cir. 1979)

A statement intended to convince a prospective purchaser that the declarant had a good connection and meant business was "in furtherance."

United States v. Paoli, 603 F.2d 1029 (2d Cir. 1979)

Statements of a coconspirator identifying a fellow coconspirator as his source of narcotics were "in furtherance."

United States v. Williams, 604 F.2d 1102 (8th Cir. 1979)

A statement that the defendant was a primary buyer of marijuana was "in furtherance."

United States v. Magee, 821 F.2d 234 (5th Cir. 1987)

Statements made to a girlfriend of one defendant in an attempt to induce her to join him in his activity and to keep her abreast of its current status were "in furtherance."

United States v. Goodman, 605 F.2d 870 (5th Cir. 1979)

A mere conversation between coconspirators is not "in furtherance" of the conspiracy.

United States v. McGuire, 608 F.2d 1028 (5th Cir. 1979)

Statements that are nothing more than casual conversations about past events are not "in furtherance."

United States v. Lieberman, 637 F.2d 95 (2d Cir. 1980)
United States v. Stephenson, 53 F.3d 836 (7th Cir. 1995)

A statement made for the purpose of inducing continued participation in a conspiracy is "in furtherance."

United States v. Anderson, 642 F.2d 281 (9th Cir. 1981)

Mere conversations between coconspirators or merely narrative declarations are not "in furtherance." The statements must further the common objectives of the conspiracy or set in motion transactions that are an integral part of the conspiracy. In short, they must assist the coconspirators in achieving their objectives. Statements designed to induce a listener to join a conspiracy are "in furtherance." Mere casual admissions of culpability to someone the declarant has individually decided to trust are not in furtherance."

United States v. Layton, 720 F.2d 548 (9th Cir. 1983)

Statements between coconspirators that provide reassurance, or serve to maintain trust and cohesiveness among them or to inform each other of the current status of a conspiracy are "in furtherance."

United States v. Ammar, 714 F.2d 238 (3d Cir. 1983)
United States v. Salerno, 868 F.2d 524 (2d Cir. 1989)
United States v. Rastelli, 870 F.2d 822 (2d Cir. 1989)

Statements of reassurance that serve to maintain trust and cohesiveness or to give information relative to the current status of a conspiracy, statements identifying fellow conspirators, statements identifying a coconspirator as the source of narcotics, and statements designed to induce a coconspirator to act are all statements made "in furtherance."

United States v. Lewis, 759 F.2d 1316 (8th Cir. 1985)
United States v. Williamson, 53 F.3d 1500 (10th Cir. 1995)

Where a main objective of a conspiracy has not been attained or abandoned and concealment is essential to the purpose of the objective, attempts to conceal the conspiracy are "in furtherance."

United States v. Howard, 770 F.2d 57 (6th Cir. 1985)

The statements of a declarant need not actually further the conspiracy to be admissible. It is enough that they be intended to promote the conspiratorial objectives. Statements that explain events important to the conspiracy in order to facilitate the conspiracy are "in furtherance."

United States v. Reyes, 798 F.2d 380 (10th Cir. 1986)

The "in furtherance" requirement is satisfied when a conspirator is apprised of the progress of a conspiracy or when the statements are designed to induce his or her assistance.

United States v. Heinemann, 801 F.2d 86 (2d Cir. 1986)
United States v. Persico, 832 F.2d 705 (2d Cir. 1987)

Statements by a coconspirator are "in furtherance" if the statements prompt the listener to respond in a way that facilitates the carrying out of criminal activity.

United States v. Rahme, 813 F.2d 31 (2d Cir. 1987)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

To be admissible a coconspirator's statement must be made during the life of the conspiracy.

Carbo v. United States, 314 F.2d 718 (9th Cir. 1963)
United States v. Brookins, 52 F.3d 615 (7th Cir. 1995)
United States v. Williamson, 53 F.3d 1500 (10th Cir. 1995)
United States v. Stephenson, 53 F.3d 836 (7th Cir. 1995)

A statement made by one alleged coconspirator after his or her arrest may be admissible against that coconspirator but is not admissible against the remaining coconspirators.

United States v. DiRodio, 565 F.2d 573 (9th Cir. 1977)
United States v. Washington, 586 F.2d 1147 (7th Cir. 1978)
United States v. Taylor, 802 F.2d 1108 (9th Cir. 1986)

The arrest of one coconspirator does not necessarily terminate the conspiracy. The test is not the arrest of one or more of the coconspirators but whether the remainder of the coconspirators are able to continue with the conspiracy. The statements of coconspirators still at large are admissible.

United States v. Thompson, 533 F.2d 1006 (6th Cir. 1976)
United States v. Hamilton, 689 F.2d 1262 (6th Cir. 1982)
United States v. Taylor, 802 F.2d 1108 (9th Cir. 1986)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

The trial court alone determines the admissibility to coconspirator statements; the jury plays no role in that determination.

Bourjaily v. United States, 483 U.S. 171 (1987)
United States v. Chaney, 662 F.2d 1148 (5th Cir. 1981)

United States v. McClellan, 165 F.3d 535 (7th Cir. 1999)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

Bourjaily holds that coconspirator statements are admissible if they are proven by a preponderance of the evidence.

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

The Supreme Court in Bourjaily specifically declined to express an opinion on the proper order of proof that a trial court should follow in concluding that the preliminary facts relevant to admission of a coconspirator statement have been proven by a preponderance of the evidence. The order of the admission of proof is within the discretion of the court. The court may thus admit declarations by alleged coconspirators prior to the time that all of the requirements for admissibility have been established by independent evidence.

Bourjaily v. United States, 483 U.S. 171, 176 n. 1 (1987)
United States v. Smith, 519 F.2d 516 (9th Cir. 1975)
United States v. Perez, 658 F.2d 654 (9th Cir. 1981)

The court has the discretion to require the government to establish the elements of admissibility prior to receiving coconspirator statements, or to admit the out-of-court statements on the condition that the prosecution subsequently produce independent evidence of the conspiracy.

United States v. Smith, 519 F.2d 516 (9th Cir. 1975)
United States v. Vinson, 606 F.2d 149 (6th Cir. 1979)
United States v. Ricks, 639 F.2d 1305 (5th Cir. 1981)
United States v. Miller, 664 F.2d 826 (11th Cir. 1981)

It is preferable, whenever possible, that the government's independent proof of conspiracy be introduced first, thereby avoiding the danger of injecting inadmissible hearsay into the record in anticipation of proof that never materializes.

United States v. Macklin, 573 F.2d 1046 (8th Cir. 1978)
United States v. James, 590 F.2d 575 (5th Cir. 1979)
United States v. Behrens, 689 F.2d 154 (10th Cir. 1982)

The court should at least require the government to preview the evidence that it believes brings the evidence within the coconspirator rule before allowing introduction of the coconspirator statement.

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

However, a pretrial hearing need not be held if it will be time-consuming and repetitive.

United States v. Hernandez 829 F.2d 988 (10th Cir. 1987)

United States v. McClellan, 165 F.3d 535 (7th Cir. 1999)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

At the conclusion of all the evidence, the court must on appropriate motion determine as a factual matter whether the prosecution has shown by a preponderance of the evidence all of the requisites for the admissibility of a coconspirator statement about which evidence has been received. If the court concludes that the prosecution has not borne its burden, the statement may not remain in evidence for consideration by the jury. In that event the judge must decide whether the prejudice arising from the erroneous admission can be cured by a cautionary instruction to the jury to disregard the statement or whether a mistrial must be declared.

United States v. Stanchich, 550 F.2d 1294 (2d Cir. 1977)
United States v. James, 590 F.2d 575 (5th Cir. 1979)
United States v. Gantt, 617 F.2d 831 (D.C. Cir. 1980)
United Saes v. Ciampaglia, 628 F.2d 632 (1st Cir. 1980)
United States v. Fitts, 635 F.2d 664 (8th Cir. 1980)
United States v. Hewes, 729 F.2d 1302 (11th Cir. 1984)

It is error for the court to rule on the admissibility of coconspirator statements at the close of the government's case.

United States v. Cerone, 830 F.2d 938 (8th Cir. 1987)

Even if counsel has not made a motion, it is wise policy for the trial court to place in the record an explicit ruling that the government has established all of the necessary requisites for the admissibility of the coconspirator statements that were admitted together, with such details as seem appropriate under the circumstances.

United States v. Continental Group, Inc., 603 F.2d 444 (3d Cir. 1979)
United States v. Fitts, 635 F.2d 664 (8th Cir. 1980)
United States v. Leon, 679 F.2d 534 (5th Cir. 1982)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

Although an out-of-court statement made by a coconspirator must meet all the tests of admissibility, a coconspirator may testify in court as to all aspects of the conspiracy.

United States v. Rivera Diaz, 538 F.2d 461 (1st Cir, 1976)
United States v. Smith, 692 F.2d 693 (10th Cir. 1982)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

Part V(A) 1h    Admissibility: Coconspirator Statements: Effect Of Acquittal Of Conspiracy Charge On Admissibility Of Coconspirator Statements

CAVEAT: See Publication Preface and Caveats.

United States v. Ratcliffe, 550 F.2d 431 (9th Cir. 1976)
United States v. Davis, 578 F.2d 277 (10th Cir. 1978)

Others have held that the statements need not be withdrawn.

United States v. Stanchich, 550 F.2d 1294 (2d Cir. 1977)
United States v. Gil, 604 F.2d 546 (7th Cir. 1979)
United States v. Clark, 613 F.2d 391 (2d Cir, 1979)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

No inquiry concerning the Confrontation Clause need be made concerning a proposed coconspirator statement if evidence has established that the statement is in fact a coconspirator statement.

United States v. Inadi, 475 U.S. 387 (1986)
Bourjaily v. United States, 483 U.S. 171 (1987)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

Coconspirator statements are admissible in civil actions in the same manner as they are in criminal actions.

Paul F. Newton & Co. v. Texas Commerce Bank, 630 F.2d 1111 (5th Cir. 1980)
World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467 (10th Cir. 1985)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

When husband and wife are engaged in a criminal conspiracy, a coconspirator statement of either is admissible.

United States v. Price, 577 F.2d 1356 (9th Cir. 1978)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

Coconspirator exceptions apply to statements by joint venturers.

United States v. Regilio, 669 F.2d 1169 (7th Cir. 1981)
United States v. Saimiento-Rozo, 676 F.2d 146 (5th Cir. 1982)
United States v. Layton, 855 F.2d 1388 (9th Cir. 1988)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

Part V(A) 1m    Admissibility: Coconspirator Statements: Pretrial Disclosure To Defendants Of Coconspirator Statements

CAVEAT: See Publication Preface and Caveats.

Defendants are not entitled to discover coconspirator statements before trial.

United States v. Roberts, 811 F.2d 257 (4th Cir. 1987)
United States v. Orr, 825 F.2d 1537 (11th Cir. 1987)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

CAVEAT: See Publication Preface and Caveats.

The coconspirator declarant need not be present for cross-examination as a prerequisite for the admission of his or her out-of-court coconspirator statement.

United States v. Inadi, 475 U.S. 387 (1986)
United States v. Caputo, 791 F.2d 37 (3d Cir. 1986)
United States v. Lopez, 803 F.2d 969 (9th Cir. 1986)