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Comments on Criminal Issues
September 1, 2007
STATEMENTS OF CO-CONSPIRATORS
Criminal Defense Attorneys must Fight to Prevent Admission of Prejudicial Statements of Unindicted Co-Conspirators
In December 2001 the Dallas-based Holy Land Foundation for Relief and Development was shut down after being accused by the federal government of being a fund-raising front for Hamas, a militant Palestinian group the United States has designated as a terrorist organization. The government charged that the self-described Muslim charity organization had funneled $12 million in illegal aid to Hamas. Another approximately 250 Muslim groups and individuals were named as “unindicted co-conspirators.”
The Holy Land trial is underway in Dallas and the government has indicated it plans to introduce statements of some of the unindicted co-conspirators to make its case against Holy Land. The defense in this case must fight to prevent the admission of such evidence, as it will most likely prejudice the defendants by the image and reputation of the unindicted co-conspirators. The government will attempt to introduce these statements pursuant to Federal Rule of Evidence 801(d) (2) (E) which, in part, provides:
(d) Statements which are not hearsay. A statement is not hearsay if-…
(2) [t]he statement is offered against a party and is ... (E) a statement made by a coconspirator of a party during the course and in furtherance of the conspiracy. The contents of the 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 under subdivision (E).
See, United States v. Saneaux, 365 F.Supp.2d 493 (S.D.N.Y. 2005).
The United States Supreme Court in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531 (1980) adopted what was called a “standard-driven” balancing test which essentially said that the Sixth Amendment’s Confrontation Clause did not bar the admission of an out-of-court statement of an unavailable witness so long as the statement had an “indicia of reliability.” Id., 448 U.S. at 66. See also: United States v. Holmes, 406 F.3d 337, 347 (5th Cir. 2005)
To satisfy this standard-driven test, the government had to establish that the statement fell within a “firmly rooted hearsay exception” or it had “particularized guarantees of trustworthiness.” Id., 448 U.S. at 66. The Supreme Court applied the Roberts approach in Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775 (1987) when it held that the “co-conspirator exception” to the hearsay rule was so firmly established in jurisprudence that “the Confrontation Clause does not require a court to embark on an independent inquiry into the reliability of statements that satisfy the requirements of Rule 801(d)(2)(E).” 483 U.S. at 183-84. Accord: United States v. Holmes, supra, at 347. See also: White v. Illinois, 502 U.S. 346, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992) [A majority of the Court rejected a view of the Confrontation Clause that would place no constitutional limits on the admissibility of nontestimonial statements, instead leaving their admissibility to controlling hearsay law].
Three years ago the Supreme Court in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354 (2004) substantially altered the scope and effect of the Confrontation Clause by overruling the Roberts standard-driven test (which had seriously limited the right of confrontation) in favor of an absolute rule which now bars the admission of out-of-court testimonial statements against a criminal defendant “absent opportunity for cross-examination.” Holmes, supra, at 347; Crawford, supra, 124 S.Ct. at 1374. Interpreting Crawford, the Fifth Circuit in Holmes said:
Crawford abrogated Roberts with respect to prior testimonial statements: Such statements may not be admitted against a defendant unless he has an opportunity to cross-examine the declarant, irrespective of whether the statement falls within a firmly rooted hearsay exception or bears particularized guarantees of trustworthiness. With respect to nontestimonial statements, however, Crawford leaves in place the Roberts approach to determining admissibility. Id., 347-48.
The Crawford rule is triggered with respect to “testimonial” evidence only, an issue that is determined by the court. Crawford, supra, 124 S.Ct. at 1374. The only guidance offered by the Supreme Court was this: “[w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” Id. While the Court spelled out three potential formulations of the “core class” of testimonial statements, it declined to adopt or reject any of them. These statements include:
(1) “ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,” Id., 124 S.Ct. at 1364; (2) “extrajudicial statements … contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,” Id.; and (3) “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,” Id. See also: Holmes, supra, at 348.
The Holmes decision involved a McAllen, Texas attorney named W. Lassiter Holmes who was convicted of mail fraud and conspiracy to commit mail fraud. The conviction stemmed from a conspiracy between Holmes and the District Clerk of Court of Hidalgo County to back-date and file a fraudulent original medical malpractice lawsuit that Holmes had been handling in order to circumvent a statute of limitations bar. Holmes, supra, at 344. The Fifth Circuit outlined the Rule 801(d)(2)(E) issued raised by Holmes:
In the case at hand, we are presented with a challenge to the admission of a co-conspirator's statement made during the course and in furtherance of the conspiracy in civil deposition testimony. Statements made by a co-conspirator during the course and in furtherance of a conspiracy are by their nature generally nontestimonial and thus are routinely admitted against an accused despite the absence of an opportunity for cross-examination. The challenged evidence here, however, is not the run-of-the-mill co-conspirator's statement made unwittingly to a confidential government informant, or made casually to a partner-in-crime; rather, we have a co-conspirator's statement that is derived from a formalized testimonial source-recorded and sworn civil deposition testimony. Id., at 348-49.
The Fifth Circuit could not make an unequivocal determination that this evidence was “testimonial” under Crawford. The appeals court noted, however, that the case did not “require a resolution of whether Gonzalez’s civil deposition qualifies as testimonial evidence triggering the right of confrontation. Even assuming arguendo that her deposition is testimonial under Crawford, there was no constitutional error, because the government did not offer her testimony to prove the truth of the matter asserted.” Id.
The government actually introduced the Gonzalez deposition in an effort to show its falsity because the government’s case hinged on the central theory that the back-dating was the objective of the illicit conspiracy and not the result of clerical error. As the Fifth circuit noted” “Gonzalez’s testimony was thus offered both to show the existence of a scheme and to prove one of the overt acts charged in the indictment. Even assuming that her civil deposition testimony is testimonial within the meaning of Crawford, then, this nonhearsay use of her testimony poses no Confrontation Clause concerns.” Id.
In United States v. Saneaux the district court addressed in limine motions by the defendants to preclude transcripts of recordings of an unindicted co-conspirator who was unavailable to testify at trial on the premise that the transcripts constituted hearsay evidence and did not fall within the meaning of Rule 801(d)(2)(E). Id., 365 F.Supp. at 495. Quoting Bourjaily v. United States, the court held that “Before admitting a co-conspirator's statement over an objection that it does not qualify under Rule 801(d)(2)(E), a court must be satisfied that the statement actually falls within the definition of the Rule.” Id., at 496-97; [483 U.S. at 175]. The Saneaux court then set out the standard of review for the trial court in such matters:
In order to admit a statement under 801(d)(2)(E), “a court must find (1) that there was a conspiracy, (2) that its members included the declarant and the party against whom the statement is offered, and (3) that the statement was made both (a) during the course of and (b) in furtherance of the conspiracy.” United States v. Tracy, 12 F.3d 1186, 1196 (2d Cir.1993) (emphasis added). These prerequisites to admission of an 801(d)(2)(E) statement are “[p]reliminary questions concerning ... the admissibility of evidence” as referenced in Fed.R.Evid. 104(a), and must be proven by a preponderance of the evidence. Bourjaily, 483 U.S. at 176, 107 S.Ct. 2775; United States v. Daly, 842 F.2d 1380, 1386 (2d Cir.1988) cert. denied, 488 U.S. 821, 109 S.Ct. 66, 102 L.Ed.2d 43 (1988). The court may consider the hearsay statements themselves, but “these statements are presumptively unreliable, and, for such statements to be admissible, there must be some independent corroboration of the defendant's participation in the conspiracy.” United States v. Diaz, 176 F.3d 52, 83 (2d Cir.1999) (citing United States v. Tellier, 83 F.3d 578, 580 (2d Cir.1996)). Id., at 497.
The court pointed out that while the above standard of review addresses the trial court’s primary obligation to determine the admission of a Rule 801(d)(2)(E) statement, it did not address what the court called “the procedural facets of such adjudication. To wit, when, or at least what point in the evolution of a case should the court adjudicate the defendant’s motion to preclude the government’s evidence?” Id. The Saneaux court noted that it is routine for courts in the Second Circuit to admit co-conspirator statements in the presence of the jury on a conditional basis, “subject to the later submission of the necessary evidence.” Id. The Saneaux court called this procedure the “Geaney protocol.” Id. See also: United States v. Geaney, 417 F.2d 1116, 1120 (2d Cir. 1969), cert. denied sub nom. Lynch v. United States, 397 U.S.. 1028, 90 S.Ct. 1276, 25 L.Ed.2d 539 (1970).
The court then pointed out that the final requirement of the three preliminary requirements that govern hearsay under Rule 801(d)(2)(E) “is really two discreet requirements, each of which warrants its own independent analysis.” Id. The court explained:
The third preliminary requirement provides first that the hearsay statement must be made during the course of a conspiracy. This is best described as a temporal requirement. That is to say the statements cannot be made after the cessation of the conspiracy or before its formation. See United States v. Grossman, 843 F.2d 78, 83 (2d Cir.1988); United States v. DeVaugn, 579 F.2d 225, 227 (2d Cir.1978); see also 29A Am.Jur. 2d Evidence § 837 (2004) (“[T]here must be a showing that the statements or acts of the coconspirator were made while the conspiracy was active, that is after it was formed and before it ended.”) This requirement “protect[s] against the use of unreliable evidence, since the circumstances in which the statement is made-prior to detection ... tend[s] to assure the reliability of the declarant and the accuracy of the statement.” United States v. Puco, 476 F.2d 1099, 1109 (2d Cir.1973). Id., at 499/
The court then discussed the “final preliminary requirement” [statements made “in furtherance of” a conspiracy] for the admission of a co-conspirator’s statement:
It is this requirement which forms the core issue in the case at bar. Defendants contend that because Grullon later admitted that he never intended to get Christian (the CI) and Rodruiguez (the undercover agent) an apartment, but rather intended to keep the bribe money, the statements he made during that transaction could not possibly have been made in furtherance of the conspiracy involving defendants. Rather, they were statements made by Grullon in support of his solitary endeavor, the object of which was to obtain bribe money and convert it to his personal use. I approach this analysis wary of the Second Circuit's warning that the determination of whether or not a statement was made in furtherance of a conspiracy, threatens to ensnare the court in a “troublesome thicket.” Headley v. Tilghman, 53 F.3d 472, 476 (2d Cir.1995).
The coconspirator exemption to the hearsay rule contained in FRE 801(d)(2)(E) is grounded in agency theory.
[W]hen two people enter into a joint venture of conspiratorial nature, the actions and utterances of either done in furtherance of that conspiracy are deemed authorized by the other. Where one is a defendant, the declarations of his co-conspirator done in furtherance of the conspiracy formed between them are deemed to be authorized by the defendant and are admissible against him.
United States v. Russo, 302 F.3d 37, 45-46 (2d Cir.2002); see also Anderson v. United States, 417 U.S. 211, 218 n. 6, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974) (“The rationale for both the hearsay-conspiracy exception [sic] and its limitations is the notion that conspirators are partners in crime. As such the law deems them agents of one another.”); United States v. Olweiss, 138 F.2d 798, 800 (2d Cir.1943) (noting that the hearsay exemption is based on “the general principle of agency that the acts of any agent, within the scope of his authority, are competent against his principal”).
To fall within the hearsay exemption, “the conspiratorial objective being furthered by the declarant's statement must in fact be the objective of a conspiracy between the defendant and the declarant.” Russo, 302 F.3d at 45 (emphasis added). “[T]he statements must in some way have been designed to promote or facilitate achievement of the goals of the ongoing conspiracy ....” United States v. Diaz, 176 F.3d 52, 85 (2d Cir.1999) (citing Tracy, 12 F.3d at 1196) (emphasis added); United States v. Smalls, 131 F.3d 132 (2d Cir.1997); Glenn v. Bartlett, 98 F.3d 721, 728 (2d Cir.1996); United States v. Gambino, 101 F.3d 683 (2d Cir.1996). “[C]ommunicating with a person who is not a member of the conspiracy in a way that is designed to help the coconspirators to achieve the conspiracy's goals is also in furtherance of the conspiracy.” United States v. Rivera, 22 F.3d 430, 436 (2d Cir.1994) (emphasis added).
The touchstone of the “in furtherance” requirement is that the statement be designed to promote the accomplishment of the conspiracy's goals. “The principal question in the ‘in furtherance’ issue is whether the statement promoted, or was intended to promote, the goals of the conspiracy.” United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1199 (2d Cir.1989). Statements which tend to frustrate or hinder the goals of the conspiracy, or those which cannot conceivably be interpreted to advance the accomplishment of conspiracy objectives, cannot reasonably be interpreted to further that conspiracy. Id., 500-01.
The Saneaux court could not bring itself to unequivocally find that challenged Rule 801(d)(2)(E) statements were made “in furtherance of a conspiracy.” The court pointed out that the government’s argument for use of the statements was “rife with chaff and wanting in wheat.” Id. The court then made the following ruling on defendants’ in limine motions:
Given the present state of the record revealed by defendants' motions in limine, I reach the following conclusions and make the following directions with respect to the admissibility of the recorded out-of-court declarations by Robert Grullon.
1. The present record makes it plain that the government has yet to produce or proffer proof sufficient to show by a preponderance of the evidence that Grullon's recorded declarations were in furtherance of the conspiracy alleged in the indictment.
2. Nonetheless, I am cognizant that additional relevant evidence may be offered by the government at trial. And I agree with the government's contention that the Court ought to decide the issue in light of all the evidence adduced at trial. Consequently I decline to hold at this time, as defendants ask me to do, that the recorded Grullon declarations are inadmissible at trial. Rather, I will adhere to the procedure sanctioned by such Second Circuit cases as Geaney and Tracy and allow the government the opportunity to offer additional evidence at trial bearing upon the issue.
3. However, the present paucity of the government's proof on the in furtherance issue requires that, in the interest of fairness, the traditional Geaney protocol be departed from in one respect. I will not allow the jury to hear the recorded Grullon declarations “subject to connection” though the medium of subsequently offered evidence. Rather, the government is directed to elicit and place before the jury all the evidence it will rely upon to satisfy all prerequisites of admissibility, including the “in furtherance” requirement, so that I may hear counsel argue the issue and rule upon the admissibility of the recorded Grullon declarations before those declarations are placed before the jury. This may require the government to alter its preferred order of proof, but the situation is essentially one of the prosecutors' own making (I do not say that in criticism) and the justice of the cause requires this procedure. By that I mean that in the circumstances of this case, I am not willing to have the jury hear the Grullon declarations early in the government's case and then, if the requisite proof on admissibility is not forthcoming thereafter, having to choose between instructing the jury to forget rather dramatic statements that they heard several days earlier or declare a mistrial, those being the only options conferred upon trial judges by Tracy, 12 F.3d at 1199.
4. It follows from the foregoing that the government is directed not to refer to the recorded Grullon declarations, directly or indirectly, when making its opening statement to the jury.
5. I have been careful to limit the effect of this Order to Grullon's recorded statements. In its letter brief at 6 the government signals its intention to offer under Rule 801(d)(2)(E) other coconspirator declarations, which include “non-recorded statements of Robert Grullon as well as statements of other coconspirators such as, inter alia, Lucia Rodriguez and Ernesto Gonzalez,” who were involved in one way or another with the apartment-bribery conspiracy. So far as one can presently tell these other, non-recorded statements are not complicated by the indications in Grullon's proffer statements that the particular transaction regarding the particular apartment referred to in the recorded statements fell outside the parameters of the charged conspiracy. These non-recorded declarations will accordingly be subjected to the traditional Geaney protocol, rather than the Geaney procedures I will follow with respect to Grullon's recorded declarations, as described in the preceding paragraphs of Part III. Id., at 503-05.
If a defense counsel anticipates that the government will offer statements of a co-conspirator under Rule 801(d)(2)(E) or the government signals such an intention, a pre-trial motion to exclude evidence or motion in limine are probably the best vehicles to present this issue and resolve it prior to trial. The “Geaney protocol” should be avoided by the defense as it exposes the jury to prejudicial evidence, even if the trial court later instructs them to limit its use or disregard it completely.
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