Federal Evidence Review

In drug distribution conspiracy case, statements by two members of the charged conspiracy to a confidential informant that the defendant was “his partner in the cocaine trade” was erroneously admitted since the statements were not made in furtherance of the charged drug conspiracy, there was no showing that the statement was made to induce the hearer to join or to assist the conspiracy, and the statements appeared to be simple “bragging,” in United States v. Warman, 578 F.3d 320 (6th Cir. Aug. 18, 2009) (No. 05-4416)

One of the central requirements for admission of a statement as a non-hearsay co-conspirator statement under FRE 801(d)(2)(E) is that the statement be intended by its declarant to “further” the charged conspiracy. In order to make this determination, the proponent must present the “context” of the statement. As demonstrated by a recent Sixth Circuit case, context helps distinguish a purposeful statement from idle chatter or bragging that fails the test of this hearsay exception.

In the case defendant Warman, owner of a motorcycle shop and bar frequented by the Outlaw Motorcycle Club (OMC), was charged with conspiracy to possess and distribute cocaine (which was a commodity frequently distributed by members of the motorcycle club). The indictment was part of a large-scale investigation into motorcycle clubs in Ohio that resulted in the charging of 37 other defendants, all members or associates of the OMC. At trial, the defendant admitted that to “becoming acquainted with the OMC in the 1970s,” employing members in his motorcycle shop, renting residences to OMC members and maintaining a tavern that was an OMC hangout. However, the defendant denied selling drugs.

Other witnesses testified about the defendant’s active involvement in cocaine distribution. Two of the witnesses were confidential informants. The first was Dilts, an OMC member who covertly tape-recorded several drug transactions involving the defendant. The second was Watkins, a member of the OMC who testified about conversations with Hannum, a supplier for the OMC. The trial court provisionally admitted the Dilts and Watkins testimony, and later put on the record its admission of the statements as co-conspirator statements. Implicitly, the court used the three elements required for admission of a co-conspirator statement in the Sixth Circuit, namely that the government had shown that: “(1) the conspiracy existed; (2) the defendant was a member of the conspiracy; and (3) the co-conspirator made the proffered statements in furtherance of the conspiracy.” Warman, 578 F.3d at 335 (citing United States v. Wilson, 168 F.3d 916, 920 (6th Cir. 1999) (“Before a district court may admit statements of a co-conspirator, three factors must be established: (1) that the conspiracy existed; (2) that the defendant was a member of the conspiracy; and (3) that the co-conspirator's statements were made in furtherance of the conspiracy.”)).

The defendant was convicted. In a wide-ranging appeal, the defendant claimed that the trial court’s admission of testimony by Dilts and Watkins, to which the defendant had objected, was inadmissible hearsay. Of particular attention was Dilt’s testimony that “David Jack Hannum, an Outlaw [Motorcycle Club member] and well-known drug supplier, told Dilts that Warman was his ‘partner’ in the cocaine trade.” Warman, 578 F.3d at 330.

The circuit affirmed the admission of the bulk of Dilts and Watkins testimony under the co-conspirator exception. However, the panel found two parts of the testimony inadmissible hearsay because it was not shown to be made in furtherance of the conspiracy. The first erroneously admitted testimony included the following exchange between Dilts and the prosecutor about Dilts conversation with OMC drug supplier Hannum:

“Government: Tell us about David Jack Hannum. How did you meet him?
Dilts: I met him at the clubhouse when I was trying to become an Outlaw, and he had just gotten his patch back, and he was an Outlaw.
Government: Did you have any conversations with him early on concerning drugs?
Dilts: Yes, I had several conversations with David Jack about drugs.
Government: And in 1998 do you recall anything he might have told you about his drug dealing?
Dilts: He told me he sold a lot of cocaine, a lot of methamphetamine, and that he had a partner in the cocaine trade.
Government: Did he tell you who his partner was in the cocaine trade at that time?....
Dilts: He said his partner was Steve Warman.”

Warman, 578 F.3d at 339.

The second erroneously admitted testimony was recounted by Watkins concerning his conversation with drug supplier Hannum as well:

“Government: And Mr. Hannum indicated that he and Mr. Warman were partners in [S & S motorcycle shop], correct?
Watkins: Yes, he did. He also said they had interest in other things too.
Government: Did he indicate what those other things were?
Watkins: Upon occasion David Jack would tend to be rather boisterous, and he would brag about his financial holdings. And on one occasion, maybe more, he indicated that he and Warman had gone to the Gulf to make a drug connection. And at that time I learned that he and Mr. Warman were heavily involved in the drug trade; in particular, cocaine.”

Warman, 578 F.3d at 339 .

The circuit concluded that these statements by Hannum implicating the defendant were more in the nature of “bragging” or “idle chatter” and therefore not made in furtherance of any conspiratorial objectives. The government failed to show the statements, being in furtherance of the conspiracy, were “intended to promote the ‘objectives of the conspiracy.’” Warman, 578 F.3d at 339 (citation omitted). The context of the statement did not show anything more than “bragging,” as Watkins put it or simply trying to impress Dilts, rather than furthering the drug conspiracy.

In making this distinction, the circuit cited a number of useful rules of thumb that might be used in assessing whether the statement was “in furtherance.” In the Sixth Circuit at least, statements in furtherance of a conspiracy typically:

• Identify other co-conspirators and their roles, United States v. Hitow, 889 F.2d 1573, 1581 (6th Cir. 1989)
• Apprise other co-conspirators of the status of the conspiracy, United States v. Hitow, 889 F.2d 1573, 1581 (6th Cir. 1989)
• Indicate the source or purchaser of the conspiracy’s products, United States v. Hitow, 889 F.2d 1573, 1581 (6th Cir. 1989)
• Exclusive or primary purpose of advancing is not required, as long as it has some purpose to further the conspiracy,” United States v. Tocco, 200 F.3d 401, 419 (6th Cir. 2000)
• Mere “idle chatter or casual conversation” about past conspiracy events is not in furtherance of the conspiracy, United States v. Darwich, 337 F.3d 645, 657 (6th Cir. 2003)
• Actual furtherance of the conspiracy is not necessary, as long as a purpose of the statement is to further the conspiracy, United States v. Hamilton, 689 F.2d 1262, 1270 (6th Cir. 1982)

Warman, 578 F.3d at 338 (citations omitted).

The panel contrasted and found a common theme in how the circuits have “interpreted strictly the ‘in furtherance’ requirement to limit the evidence admitted under Rule 801(d)(2)(E).” For instance:

• Fourth Circuit: United States v. Urbanik, 801 F.2d 692, 698-99 (4th Cir. 1986) (prejudicial error in admission of statement identifying defendant as a marijuana connection, which was “merely a casual aside” while defendant and co-conspirator lifted weights together)
• Fifth Circuit: United States v. Cornett, 195 F.3d 776, 784 (5th Cir. 1999) (prejudicial error in admission of statements implicating defendant made during a conversation at a bowling alley regarding “such diverse issues as the bowling prowess of certain friends and relatives, the appearance of some of the patrons at the bowling alley, the merits of certain designer outfits and the respective talents of certain exotic dancers”)
• Sixth Circuit: United States v. Darwich, 337 F.3d 645, 657-58 (6th Cir. 2003) (statements by the defendant's nephews about the amount of marijuana they had packaged the previous evening were not made “in furtherance” of the conspiracy, because they were informal exchanges with the defendant about “the work” they had done the night before “are simply casual conversation of how hard the nephews worked on a particular evening-and, other than the illegal nature of the work, are no different than a statement by a farmer that he harvested forty acres of wheat by sundown.”)
• Eighth Circuit: United States v. Mitchell, 31 F.3d 628, 632 (8th Cir. 1994) (a statement that “simply informs a listener” of speaker's criminal acts does not satisfy the in-furtherance requirement)

Applying the “in furtherance” requirement that it had just analyzed, the circuit found admission of the two statements was erroneous because:

“There is no indication that Hannum made either of these statements in an attempt to induce Dilts … [to] participate in the OMC conspiracy or that he was providing information that would assist them in carrying it out. Watkins even characterized Hannum's statements as ‘bragging.’ Further, the government failed to elicit the context in which these statements were made. Under these circumstances, we cannot ‘conclude with confidence’ that the … statements were made in furtherance of the conspiracy.”

Warman, 578 F.3d at 339 (citing United States v. Brown, 221 F.3d 1336, at *8 (6th Cir. 2000) (Table) (“[M]ere boasting is not ‘in furtherance of’ a conspiracy.”) (citing Re/ Max Int'l, Inc. v. Realty One, Inc., 173 F.3d 995, 1012 (6th Cir. 1999)); United States v. Conrad, 507 F.3d 424, 431 (6th Cir. 2007) (“For all this Court knows, [co-conspirator's] statement could have been made after he was arrested and the conspiracy had ended or was mere ‘idle chatter.’”) (internal citation omitted)).

As the opinion in Warman demonstrates, looking to the context of an alleged co-conspirator statement is essential to ensure that the out of court statement is admissible and not the product of social conventions, such as exaggeration, bragging, or entertaining story-telling by the hearsay declarant. A similar point was made by the Second Circuit in its decision in United States v. Desena, 260 F.3d 150, 157–58 (2d Cir. 2001) (testimony about declarant’s statement two years after alleged crime describing comedic arson attempt in which perpetrators “poured gasoline through a hose” in bar’s mail slot “only to have the gasoline flow back under the door into the street” was not admissible as co-conspirator statement because it was “not made in furtherance of the conspiracy, and were merely joking references to a past event” and noting “it is difficult to construe casual storytelling in a bar, more than two years after the event, as anything but “mere idle chatter”).