Seventh Circuit Highlights Proof Of Existence Of A Conspiracy To Admit Co-Conspirator Statements

On a “close question” involving the admission of co-conspirator statements through a confidential informant, the Seventh Circuit noted that the proposed co-conspirator statements could be considered in determining the admissibility of the statements, some independent facts supported the existence of the conspiracy by a preponderance of the evidence in United States v. Harris, _F.3d _ (7th Cir. Oct. 30, 2009) (No. 08-4026)

A very close case in the Seventh Circuit provides a recent example of the showing required to establish the existence of the conspiracy to admit a co-conspirator statement under FRE 801(d)(2)(E). The appeal focused on the first of three elements to admit a co-conspirator statement under FRE 801(d)(2)(E); specifically, whether the government had shown “by a preponderance of the evidence that (1) a conspiracy existed; (2) the defendant and the declarant were members of the conspiracy; and (3) the statement was made during the course and in furtherance of the conspiracy.” United States v. Schalk, 515 F.3d 768, 775 (7th Cir. 2008). On appeal, the case turned on the admission of the co-conspirator statements as “[b]oth sides agree that the statements, if improperly admitted, were not harmless.” Harris, _F.3d at _. Moreover, the jury acquitted the defendant on a conspiracy count. While the trial court could consider the proffered statements in admitting the co-conspirator statements, was there were sufficient independent facts to introduce the statements?

In the case, defendant Harris was charged with possessing cocaine with intent to distribute and conspiracy after law enforcement learned that he drove a sport-utility vehicle from his Arkansas residence to Milwaukee which contained a kilogram of cocaine. At trial, a confidential informant testified that the defendant’s cousin told him that “one of his cousins [referring to the defendant] was coming up from down south. Supposed to be bringing some [cocaine] up here;” “[The] cousin [referring to the defendant was] supposed to come down. He supposed to have a couple [kilograms of cocaine];” and that “his cousin was coming down here with some work [some cocaine].” Harris, _F.3d at _. The jury acquitted the defendant on the conspiracy charge but convicted him on the possession with intent to distribute charge. On appeal, the defendant challenged the admission of the co-conspirator statements.

The Seventh Circuit affirmed the conviction after concluding a preponderance of the evidence supported the existence of the conspiracy. First, the circuit noted that the statements offered could be considered in determining their admissibility:

“When considering the admissibility of hearsay statements under Rule 801(d)(2)(E), a district court is allowed to consider the statements themselves as evidence of the conspiracy. See Bourjaily v. United States, 483 U.S. 171, 180 (1987) (“We think that there is little doubt that a co-conspirator’s statements could themselves be probative of the existence of a conspiracy and the participation of both the defendant and the declarant in the conspiracy.”). Notably, Bourjaily did not go so far as to hold that the statements alone could be sufficient to demonstrate a conspiracy and the defendant declarant’s participation therein without independent supporting evidence in the record. Id. at 181. That is, the record must contain at least some facts confirming the existence of the conspiracy and Harris’s participation in it before we could find the disputed portions of Anderson’s testimony admissible under Rule 801(d)(2)(E).”
Harris, _F.3d at _.


While there was not a substantial amount of “independent supporting evidence,” the circuit pointed to the following:

“Nonetheless, the preponderance of the evidence on record does support the existence of a conspiracy. First, it is relevant that while Harris was not the owner of the Excursion, he drove it from Arkansas to Milwaukee, and thus there is strong evidence that the cocaine discovered in the car belonged to him. Second, while $8900 found in Harris’s pockets may not exactly equal the street value of a half-kilogram of cocaine, such an exceedingly large quantity of cash is further circumstantial evidence of Harris’s involvement in drug trafficking. Third, the accuracy of some of Anderson’s statements to the police -- most importantly, that there was cocaine concealed in the Excursion -- corroborate his testimony and adequately bolster his credibility. Finally, Harris’s claim that Detective Pasho’s testimony is contradictory lacks merit. Pasho testified that Anderson told her he had seen cocaine during his meeting with Cannon and Harris, and that he believed cocaine was concealed in the Excursion, even though he did not personally see it. We therefore defer to the trial court’s decision to characterize Anderson’s testimony as credible, conclude that a preponderance of the evidence on the record supports the existence of a conspiracy, and affirm that the district court properly admitted Anderson’s testimony under Rule 801(d)(2)(E).”
Harris, _F.3d at _.


The trial court failed to follow the Seventh Circuit procedure before admitting co-conspirator statements, which requires explicit findings, under United States v. Santiago, 582 F.2d 1128, 1130-35 (7th Cir. 1978). However, “the absence of such explicit findings” was “not reversible error” where the evidence supported the admission of the co-conspirator statements. Harris, _F.3d at _ (citing United States v. Stephenson, 53 F.3d 836, 842 (7th Cir. 1995) (“[A] district court’s failure to make Santiago findings will not be reversible error so long as the evidence in the trial record would support such findings.”)]

Finally, there was no Confrontation Clause violation since the statements were admissible as co-conspirator statements.

The facts in the Harris opinion presented a close case on the admissibility of the co-conspirator statements. There was little dispute that if the statements were not admissible under FRE 801(d)(2)(E), the conviction would have been vacated. While the challenged statement could be considered on the issue of admissibility, other independent facts were required as the statement alone was insufficient. Ultimately, the Seventh Circuit concluded that the circumstances in which the defendant was found in relation to the seized kilo of cocaine helped supply the necessary showing under a preponderance of evidence standards.

Federal Rules of Evidence
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