Federal Evidence Review

“Classic hearsay" deposition statement properly excluded after the proponent’s showing of existence of the alleged conspiracy was based on “nothing more …than [plaintiffs’] speculation and innuendo” which “construct[ed an] … unsupported conspiracy out of a void,” in Gunville v. Walker, 583 F.3d 979 (7th Cir. Oct. 9, 2009) (No. 08-1035)

Often lost in the struggle over admission of statements as exceptions to the hearsay rule is attention to the applicable standard of proof to admit the evidence under FRE 104(a). One area in which the standard of proof gains attention is the co-conspirator statement hearsay exception under FRE 801(d)(2)(E).

Undoubtedly one reason for this prominence is because the conspiracy the hearsay statement supposedly furthered under FRE 801(d)(2)(E) is often the same conspiracy that is part of the criminal charge. See, e.g., United States v. Peralta, 941 F.2d 1003, 1006–07 (9th Cir. 1991) (even if there was an acquittal on the conspiracy court at trial, which was used to admit the co-conspirator statement, the statement was admissible under FRE 801(d)(2)(E) if a preponderance showing was made); United States v. Patino-Rojas, 974 F.2d 94, 96 (8th Cir. 1992) (noting there was “nothing inherently inconsistent” in finding the alleged conspiracy was shown by a preponderance to admit the hearsay statement even if the factfinder could later conclude that the conspiracy charge was not proved beyond a reasonable doubt and acquit).

In a recent case, the Seventh Circuit affirmed the district court’s grant of summary judgment for the defendant, based in substantial part on finding the court properly excluded a hearsay statement which was inadmissible under the co-conspirator hearsay exception. The case involved the applicable standard of proof for admission of the statement and the court concluded that it was woefully inadequate, amounting to little more than "speculation."

The federal courts emphasize that the standard of proof necessary for the foundation of that exception is a preponderance of the evidence. Bourjaily v. United States, 483 U.S. 171, 175-76 (1987) (“[W]e hold that when the preliminary facts relevant to [Federal Rule of Evidence] Rule 801(d)(2)(E) are disputed, the offering party must prove them by a preponderance of the evidence”); United States v. Gewin, 471 F.3d 197, 201 (D.C. Cir. 2006) (For admission under the co-conspirator exception, “the district court must find by a preponderance of the evidence that a conspiracy existed and that the defendant and declarant were members of that conspiracy.”)

In the recent Seventh Circuit case, the district court’s grant of summary judgment for the defendants was affirmed, based in substantial part on finding the court properly excluded evidence because it was hearsay and not admissible under the co-conspirator hearsay exception. The case involved two plaintiffs, both Illinois Department of Corrections workers. Plaintiff Gunville sued officials of the Department charging they violated his First Amendment rights by firing him because he was a Republican when Democrats came into office in the state. The plaintiff’s theory was that having learned of his political party affiliation, officials eliminated his job and transferred the responsibilities elsewhere. In considering the defendants' motion for summary judgment, a crucial issue was the factual basis for the claim that the plaintiff’s political affiliations triggered the firings.

As proof of the alleged political motivation, the plaintiff pointed to a deposition of Danner, an aide to the state personnel manager Underwood. As explained by the circuit, this evidence was hearsay but was important to the plaintiff’s case. “Without this evidence,” the circuit noted, “the plaintiffs have virtually no evidence that any of the defendants … knew about their [the plaintiff’s] political affiliation, much less any evidence that the defendants were motivated by that affiliation in making layoff decisions.” Gunville, 583 F.3d at 984.

The specific deposition testimony, as noted by the circuit, included the following transcript:

Q:

How did you become aware that voting records had been pulled?

A:

It came up in a conversation with the [Department of Corrections Prison] captains' layoff.

Q:

Who was-who told you that?

A:

Mr. Underwood [the state personnel director].

Q:

Did he pull them?

A:

No, I don't believe he had the ability to do that.

Q:

What did Mr. Underwood say to you in regards to the voting records?

A:

He told me how many [Department of Corrections Prison] captains were registered Republicans versus Democrats.

Q:

Did you ask him how he knew that?

A:

I knew he obtained that information from the Governor's office.

Q:

Did he say anything else to you about the voting records?

A:

No.”

Gunville, 583 F.3d at 985 (footnote omitted).

“Danner's deposition testimony was classic hearsay,” noted the circuit. She “claimed to know that voting records were accessed and used because Underwood told her so. Underwood's statement, as repeated by Danner, was not made at a trial or hearing, and the plaintiffs seek to use it to prove that voting records were accessed and used to make layoff decisions. Thus, Danner's version of Underwood's statements is not admissible and will not overcome a motion for summary judgment.” Gunville, 583 F.3d at 985.

It seemed rather straight-forward to the circuit that Danner’s deposition statements, quoted above, could not be admitted under the co-conspirator exception. The foundation the plaintiff presented was rather convoluted: “the plaintiff asserted that the defendants operated an ‘implicit plan to eliminate longstanding employees of the former republican administration ... in order to make room for democrats and supporters of the new Governor.’” The circuit was not persuaded the plaintiff’s long string of “supposition … supported by ‘circumstantial evidence [that] shows the ‘appearance of some undocumented conspiracy.’” The circuit dismissed the plaintiff's supposition:

“that Underwood and Snyder, one of the defendants here, were co-conspirators. In support of this undocumented, implicit conspiracy between Underwood and Snyder, Gunville and Oakley offer literally no evidence. They speculate that Underwood must have been hired because of his political affiliation because he was not otherwise qualified for his job. Snyder initially refused to answer deposition questions based on his Fifth Amendment privileges, and the plaintiffs assert that (unspecified) negative inferences may be drawn from that refusal. … They assert that both Snyder and Underwood wished to keep their jobs and therefore had an incentive to comply with the governor's wishes. But they fail to cite any admissible evidence to support the existence of a conspiracy. Nor do they propose any theory of how Underwood's statement to Danner was in furtherance of that unnamed, unsupported conspiracy. In order to draw an inference in favor of a nonmoving party, there must be some evidence from which to draw the inference. But there is nothing more here than speculation and innuendo. We cannot construct this unsupported conspiracy out of a void, and then assume that a particular statement was made in furtherance of that conspiracy.”

Gunville, 583 F.3d at 986 (citations omitted).

It is well-settled that in admitting a co-conspirator’s statement under FRE 801(d)(2)(E), the proof of the conspiracy furthered by an alleged co-conspirator’s statement need not be beyond a reasonable doubt. Gunville makes it particularly clear that inference and speculation is too weak a foundation to allow the co-conspirator statement evidence to stand.