Challenging Coconspirator Statements Under Rule 801(d)(2)(E)

Federal prosecutors frequently introduce statements made outside the courtroom by alleged members of a conspiracy. These statements may include recorded calls, text messages, emails, testimony from informants, and conversations repeated by cooperating witnesses.

The government cannot admit a statement merely by labeling the speaker a coconspirator. It must establish every requirement of Federal Rule of Evidence 801(d)(2)(E).

If prosecutors intend to use an alleged coconspirator’s statements against you, contact federal criminal defense attorney Michael J. Petro immediately. The statement may be excluded if the government cannot prove the conspiracy, membership, timing, or purpose required by the rule.

Are Coconspirator Statements Hearsay?

Rule 801(d)(2)(E) provides that a qualifying statement is not hearsay when it is offered against an opposing party and was made by the party’s coconspirator during and in furtherance of the conspiracy.

The rule is often called the coconspirator hearsay exception. Technically, however, a statement that satisfies the rule is classified as non-hearsay.

The prosecution need not charge a conspiracy count before seeking admission under Rule 801(d)(2)(E). The government must nevertheless establish the factual existence of a joint criminal venture and the other requirements of the evidence rule.

What Must the Government Prove?

Before admitting a statement under Rule 801(d)(2)(E), the court must find by a preponderance of the evidence that:

• A conspiracy existed

• The defendant was a member of the conspiracy

• The person who made the statement was a member of the conspiracy

• The statement was made during the conspiracy

• The statement was made in furtherance of the conspiracy

These are preliminary admissibility questions for the judge under Federal Rule of Evidence 104(a). The government must establish that each requirement is more likely true than not true.

The Statement Alone Is Not Enough

The judge may consider the alleged coconspirator statement itself when deciding whether the Rule 801 requirements have been established.

The statement alone, however, cannot establish the existence or scope of the conspiracy or the defendant’s participation in it. Rule 801(d)(2) expressly requires evidence beyond the statement itself.

Corroborating evidence may include:

• Recorded communications

• Surveillance

• Financial transactions

• Travel records

• Possession of drugs, money, or other evidence

• Coordinated conduct

• Testimony from cooperating witnesses

• The defendant’s own statements

• Evidence connecting the declarant and defendant to a common objective

Mere association, friendship, family relationship, or presence is not necessarily sufficient to establish participation in a conspiracy.

The Statement Must Be Made During the Conspiracy

The alleged statement must have been made while the conspiracy was ongoing.

A statement made before the conspiracy began does not qualify. A statement made after the conspiracy ended ordinarily does not qualify merely because it describes the conspiracy.

Determining when a conspiracy ended can be disputed. Completion of the principal criminal objective may terminate the conspiracy, even if participants continue to try to conceal what happened.

Efforts at concealment do not automatically extend to every conspiracy. The government should identify evidence showing that continued concealment was part of the conspirators’ original agreement or an objective of the charged conspiracy.

The Statement Must Further the Conspiracy

A statement is not admissible under Rule 801(d)(2)(E) merely because it concerns the conspiracy. The statement must be intended to advance, facilitate, maintain, or protect the criminal venture.

Statements that may further a conspiracy include those that:

• Recruit participants

• Give instructions

• Coordinate activities

• Identify roles or responsibilities

• Arrange payment or delivery

• Update members about progress

• Reassure participants

• Maintain trust and cooperation

• Conceal an ongoing operation

• Warn members about law enforcement activity

Courts often interpret “in furtherance” broadly, but the requirement must still be proven for each statement.

Narratives and Casual Conversations May Not Qualify

A statement that merely describes a past event may not further the conspiracy.

Potentially inadmissible statements include:

• Casual conversation about completed conduct

• Gossip among participants

• Boasting about prior crimes

• A historical narrative

• A confession after arrest

• Statements made to shift blame

• Statements made after the conspiracy ended

• Remarks unrelated to the conspiracy’s objectives

The government should not be permitted to admit an entire conversation merely because one portion advanced the conspiracy. Each challenged statement should be evaluated in context.

A James or Santiago Hearing

Federal courts use different procedures to determine whether alleged coconspirator statements are admissible.

Courts within the Eleventh Circuit may conduct what is commonly called a James hearing. The procedure comes from United States v. James, 590 F.2d 575 (5th Cir. 1979), a decision binding in the Eleventh Circuit under its predecessor circuit rule.

A James hearing permits the court to evaluate the government’s evidence and determine admissibility outside the jury’s presence.

The Seventh Circuit applies the procedures set forth in United States v. Santiago, 582 F.2d 1128 (7th Cir. 1978). The government may be required to make a pretrial proffer explaining the conspiracy, the participants, and why each statement qualifies.

Depending on the court and circumstances, statements may also be admitted conditionally, subject to the government later establishing the necessary foundation. Defense counsel should request a pretrial determination when the presentation of the statements before the jury would create substantial prejudice.

United States v. Harris

In United States v. Harris, 585 F.3d 394 (7th Cir. 2009), the defendant challenged statements admitted under Rule 801(d)(2)(E) during a federal cocaine prosecution.

A cooperating witness testified that another alleged conspirator said his cousin would travel from the South to Milwaukee carrying cocaine. The government contended that the cousin was Harris.

The district court admitted the statements without making explicit findings on the record addressing every requirement of Rule 801(d)(2)(E).

Why the Conviction Was Affirmed

The Seventh Circuit stated that the district court should have made explicit findings under the Santiago procedure. However, the absence of those findings did not automatically require reversal.

The appellate court examined the complete trial record and concluded that sufficient evidence supported the required findings. Harris drove a vehicle from Arkansas to Milwaukee; cocaine was found inside the vehicle, and he possessed a substantial amount of cash. Other evidence corroborated significant parts of the cooperating witness’s information.

The court concluded that the record established the conspiracy and Harris’s participation by a preponderance of the evidence. It affirmed the admission of the statements and the conviction.

The decision does not mean that trial courts may ignore Rule 801(d)(2)(E). It means that, under Seventh Circuit precedent, failing to state explicit findings may not require reversal when the trial record independently supports every necessary finding.

The Seventh Circuit’s complete opinion in United States v. Harris provides the full analysis.

The Confrontation Clause Is a Separate Issue

Satisfying Rule 801(d)(2)(E) does not automatically resolve every constitutional objection.

Under the Confrontation Clause, testimonial statements by a witness who does not testify may be inadmissible unless the witness is unavailable and the defendant previously had an opportunity for cross examination.

Statements genuinely made during and in furtherance of a conspiracy are ordinarily considered nontestimonial because their primary purpose is advancing the conspiracy rather than creating evidence for trial.

The defense should still examine who made the statement, to whom it was made, why it was made, and whether the speaker knew the statement was being collected for prosecution. The evidence rule and the Confrontation Clause require separate analysis.

Challenging Coconspirator Evidence

Defense counsel should require the government to identify each statement, the declarant, the alleged conspiracy, the relevant time period, the supporting evidence, and how the statement advanced the conspiracy.

A focused objection may establish that:

• No conspiracy existed

• The defendant was not a member

• The declarant was not a member

• The statement occurred before or after the conspiracy

• The statement merely described past conduct

• The statement did not advance any conspiratorial objective

• Independent evidence did not corroborate membership

• The statement raises a separate Confrontation Clause problem

The current Federal Rules of Evidence published by the United States Courts contain the complete text of Rule 801(d)(2)(E).

Attorney Michael J. Petro represents individuals facing federal conspiracy, drug, and fraud charges. Contact federal criminal defense attorney Michael J. Petro today if prosecutors intend to use alleged coconspirator statements against you.