Federal Evidence Review

Co-conspirator statements were admitted provisionally subject to a final determination at the conclusion of the trial; individualized findings for each specific statement were not required where requirements under FRE 801(d)(2)(E) were otherwise met, in United States v. Spotted Elk, _ F.3d _ (8th Cir. Nov. 26, 2008) (Nos. 07-1931, 07-1923, 07-1937, 07-1914, 07-1925)

Where twenty or so co-conspirator statements are introduced during trial, must the trial court make findings that each specific statement satisfies the requirements of FRE 801(d)(2)(E)? The Eighth Circuit recently reviewed this issue and suggested some avenues to consider a group of statements at trial, under FRE 801(d)(2)(E).

In the case, five defendants were prosecuted on drug trafficking and firearm violations on a Sioux Reservation in South Dakota. Before trial, the court indicated that it would admit co-conspirator statement provisionally, subject to the procedures set forth in United States v. Bell, 573 F.2d 1040, 1043-44 (8th Cir. 1978). At the end of the trial, the trial court noted the requirements of the rule and concluded: “In those instances where I overruled the objections [during trial], I specifically found by overruling the objection that the declarations were made during the course [and in] furtherance of the conspiracy.” Spotted Elk, _ F.3d at __. The trial court further noted that some objections had been sustained at trial after concluding that the challenged statements were not made in furtherance of the conspiracy.

On appeal, one defendant contended trial error resulted since individualized findings were not made for each of the twenty co-conspirator statements that were admitted. The circuit noted that the Bell procedures addressed a “logistical problem” that would result “if the proponent had to establish each premise before being allowed to introduce the statements themselves.” Spotted Elk, _ F.3d at __. The circuit found the blanket objections on appeal were unavailing:

“[Defendant] Blue Bird now argues that the district court erred in not making specific findings as to each of the twenty statements. Blue Bird, however, does not point out any particular statement as to which the foundational requirements were not met, nor does she contend that she argued to the district court that the court had not complied with Bell. We do not apply Bell mechanically to compel reversals where no prejudice is shown. United States v. Cazares, 521 F.3d 991, 998 n.5 (8th Cir. 2008) (substantial compliance with Bell is sufficient); United States v. Roulette, 75 F.3d 418, 424-25 (8th Cir. 1996). Blue Bird has neither identified any particular statement as to which the foundational elements are missing, nor has she shown any prejudice she suffered from the lack of a specific ruling as to each statement. Blue Bird's own argument suffers from the very same defect of generality about which she complains--the twenty statements are lumped together in her brief, with no particular argument about particular statements. Blue Bird's descriptions of the statements show that many were patently in furtherance of the conspiracy, being statements facilitating commerce in drugs or guns. Blue Bird may not put the burden on this court to sift through her undifferentiated argument in search of error. See United States v. Vanhorn, 296 F.3d 713, 717 (8th Cir. 2002). She has not shown an abuse of discretion.”

Spotted Elk, _ F.3d at __.

For thirty years, the Eighth Circuit has employed a practice of allowing co-conspirator statements to be admitted conditionally as long as the foundational elements are satisfied by the close of the case in chief. The process was set forth in Bell:

“If the prosecutor propounds a question which obviously requires a witness to recount an out-of-court declaration of an alleged coconspirator, the court, upon a timely and appropriate objection by the defendant, may conditionally admit the statement. At the same time, the court should, on the record, caution the parties (a) that the statement is being admitted subject to defendant’s objection; (b) that the government will be required to prove by a preponderance of the independent evidence that the statement was made by a coconspirator during the course and in furtherance of the conspiracy; (c) that at the conclusion of all the evidence the court will make an explicit determination for the record regarding the admissibility of the statement; and (d) that if the court determines that the government has failed to carry the burden delineated in (b) above, the court will, upon appropriate motion, declare a mistrial, unless a cautionary instruction to the jury to disregard the statement would suffice to cure any prejudice.”

United States v. Bell, 573 F.2d 1040, 1044 (8th Cir. 1978).

The Spotted Elk opinion highlights how a trial court can provisionally consider a series of co-conspirator statements. Additionally, the opinion notes that a blanket objection to challenged co-conspirator statements will not be considered unless more specific deficiencies are articulated.