Co-conspirator Statement Inadmissible When Not Offered "Against" The Party Making The Statement

In cocaine distribution conspiracy trial, the defendant’s out-ofcourt statements offered by the defendant in exculpation were not admissible as co-conspirator statements because they were not offered “against a party” (the defendant) who made the statement under FRE 801(d)(2)(E), in United States v. Wilder, 597 F.3d 936 (8th Cir. March 10, 2010) (Nos. 08-3056, 08-3570, 08-3265, 08-3565)

The co-conspirator hearsay exception codified by FRE 801(d)(2)(E) requires an identity of interest between the speaker of the statement to be admitted and the party against whom the statement is offered. See, e.g., United States v. Weaver, 507 F.3d 178, 181 (3d Cir. 2007) (Under FRE 801(d)(2)(E), "the district court must find by a preponderance of the evidence that: (1) a conspiracy existed; (2) the declarant and the party against whom the statement is offered were members of the conspiracy; (3) the statement was made in the course of the conspiracy; and (4) the statement was made in furtherance of the conspiracy.") (emphasis added). This interpretation is indicative of the nature of the FRE 801(d)(2)(E) exception. The statement is admitted because it is an admission by a party opponent. The rule specifies that the statement to be admitted must be "offered against a party and is ... (E) a statement by a coconspirator of a party...." FRE 801(d)(2)(E). Accordingly the rule cannot be used to pave the way for admission of a statement that is not a party's admission against interest but rather is an attempt at exculpation. A recent Eighth Circuit case demonstrates this aspect of the "coconspirator statement" exception.

In the case, United States v. Wilder, defendant Williams was charged with playing a leadership role in a conspiracy to distribute cocaine. As a leader, he was involved with "buying crack cocaine from out-of-town suppliers and overseeing its packaging at Perry Street and sale from the 12th Street apartment. Williams also introduced new members to the conspiracy and established them at the 12th Street apartment to make sales. One of these people was Timothy Wilder, whom Williams installed as the supervisor of the sales operation there." Wilder, 597 F.3d at 940. Defendant Williams was convicted after a week-long trial and in his appeal he raised as one challenge that the trial judge improperly excluded "a recording of a conversation between Williams and [co-conspirator] Combs that took place in a squad car after the two were arrested in March 2007." Wilder, 597 F.3d at 941.

The defendant's interest in having the court admit this recording was its exculpatory nature. The recording included statements by defendant Williams "about why he was stopped by police and the perceived unfairness of the stop, as well as Williams's assertions about the source of money that was in his possession." This was essentially "Williams's commentary" on the police action against him and obviously attempted to paint him as not implicated in the crime. Wilder, 597 F.3d at 942. The trial judge ruled that Williams's statements were hearsay and were not admissible. The statements could not be admitted as the statements of a co-conspirator in furtherance of a conspiracy. The reason was that:

"Williams's exculpatory statements after arrest [were not] admissible as statements of a co-conspirator in furtherance of a conspiracy, as Williams now suggests. Federal Rule of Evidence 801(d)(2)(E) excludes from hearsay only co-conspirator statements offered 'against a party,' that is, against the party making the statement."

Wilder, 597 F.3d at 942 (citing United States v. Kapp, 781 F.2d 1008, 1014 (3d Cir. 1986) ("The rule is intended to allow for introduction of co-conspirators' statements as evidence against them as defendants. It cannot be stretched to encompass Briggs' interpretation ... Briggs sought to introduce the tapes as exculpatory on the issue of his knowledge that the truck was stolen. Briggs' counsel contended the tapes were co-conspirator statements admissible under Federal Rule of Evidence 801(d)(2)(E). The district court held that the tapes were inadmissible because they were not offered 'against a party' as is explicitly required for admissibility under Rule 801(d)(2)."); United States v. Smith, 520 F.2d 1245, 1247 & n.2 (8th Cir. 1975) ("We are satisfied that the statement made by the co-conspirator wife during the search when the package containing heroin was discovered on her person was not made in furtherance of the conspiracy. It was an exculpatory statement made by the declarant and designed to implicate her husband, the appellant herein, as the real culprit. Under these circumstances, the likelihood of reliability of the co-conspirator's statement disappears. It was clearly inadmissible under Federal Rules of Evidence").

As Wilder suggests, not all co-conspirator statements are admissible under FRE 801(d)(2)(E). Indeed, only statements that are being offered against the party who made the statement qualify. Accordingly, the rule does not allow for the admission of exculpatory statements made by a party. To admit such statements under the rule would alter the use of the rule as facilitating the introduction of evidence in court that is in the nature of an admission by a party opponent. See United States v. Hackett, 638 F.2d 1179, 1186-87 (9th Cir. 1980) (Co-defendant's exculpatory hearsay statement inadmissible).


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