Federal Evidence Review

In a violent gang activities trial, admitting gang member’s testimony that an unidentified declarant told the gang members that the defendant had been arrested, even though this challenged hearsay statement might have been made by a government informant rather than by a member of the charged conspiracy, in United States v. Ayala, 601 F.3d 256 (4th Cir. May 4, 2010) (No. 09-2569)

FRE 801(d)(2) specifies that a statement is not hearsay when offered against a party and it is a statement “by a coconspirator of a party during the course and in furtherance of the conspiracy.” There is general agreement that the rule does not require that the person to whom the hearsay statement is made is also a member of the charged conspiracy. See, e.g., United States v. King, 351 F.3d 859, 865 (8th Cir. 2003) (Hearsay declarant “Barquero’s statements made to Kingsley are admissible under Rule 801(d)(2)(E) even though Kingsley was acting under the direction … of government agents to obtain evidence against the co-conspirators” and was no longer a conspirator.). But what about the hearsay declarant?

Need the declarant be a conspirator under FRE 801(d)(2)(E)? Most circuits that have considered this question have answered in the affirmative. See, e.g., United States v. Mealy, 851 F.2d 890, 901 (7th Cir. 1988) (For admission of the coconspirator statement, “[t]he relevant questions are (1) whether the declarant, and the defendant against whom the statements are offered, are members of the conspiracy, and (2) whether the declarant made the statements in the course of and in furtherance of the conspiracy.”) The Forth Circuit recently considered a variation of this issue: to admit the coconspirator statement need the court know who the declarant of the statement is? The circuit answered in the negative. Under the rule, “it is not necessary for the offering party to identify the declarant by name. Instead, the offering party need only ‘show that the unknown declarant was more likely than not a conspirator.‘” Ayala,__ F.3d at __ (citations omitted).

In the case, defendant Ayala was charged with being a member of a gang, the Sailors Locos Salvatruchos Westside (“Sailors”). Some evidence admitted by the court against the defendant involved information that the police obtained from an informant, Noe Cruz. This informant “regularly provided the police with information about the gang’s violent activities.” Ayala, __ F.3d at __. Some of this information was used at trial and the defendant was convicted.

The defendant appealed, contending that the trial judge erred by admitting the informant’s evidence. Specifically, this evidence consisted of testimony “about discussions that took place at [gang] meetings without attributing statements to particular declarants. In Ayala’s view, this was in error because the declarant of these statements may have been Noe Cruz, who was a government informant and thus not a member of the conspiracy.”??Ayala,?? __ F.3d at __.

The circuit found no abuse of discretion in admitting the evidence. The circuit set forth a two element test for admission:

“For a statement to be admissible under Rule 801(d)(2)(E), there ‘must be evidence [1] that there was a conspiracy involving the declarant and the nonoffering party, and [2] that the statement was made “during the course and in furtherance of the conspiracy.” Regarding the first requirement, it is not necessary for the offering party to identify the declarant by name. Instead, the offering party need only ‘show that the unknown declarant was more likely than not a conspirator.‘”

Ayala, __ F.3d at __ (quoting United States v. Squillacote, 221 F.3d 542, 564 (4th Cir. 2000) (admitting an unsigned document under Rule 801(d)(2)(E) ‘notwithstanding the government’s inability to identify the declarants’).

The Circuit then described how application of this test was complicated in the defendant’s case:

“Ayala’s concern appears to be that an unattributed statement may have been made by [informant] Cruz, rather than by a member of the conspiracy. But it is not clear which statements Ayala is complaining about. Although he frames his argument in broad terms, he admits that it is “hard to find” any examples where Cruz’s statements may actually have come into evidence.

“In fact, Ayala produces only one possible example from the entire record. [Gang] member Emilia Masaya testified about a meeting where she learned from an unidentified declarant that Ayala was arrested after going to Baltimore, Maryland to commit a murder. Ayala contends that this statement must have come from Cruz, but the record does not back up this claim. To be sure, it was later revealed at trial that Cruz attended the meeting in question, but there is no indication either way about whether he was the one who brought up the matter. He certainly knew about the arrest prior to the meeting, but the record indicates that other gang members did as well. And given that Masaya was repeating a comment from a meeting where all but one of the attendees were coconspirators, we cannot conclude that the district court abused its discretion in admitting the statement.”

Ayala, __ F.3d at __.

Certainty about the hearsay declarant was not necessary for admitting the coconspirator statement. All that was necessary is a showing that the hearsay statement was “more likely than not” a member of the conspiracy. The trial court’s determination easily met this standard. But even if the standard had not been met and the admission of the statement was erroneous, the circuit concluded it was harmless in light of the substantial other evidence at trial about Ayala’s arrest and the events leading up to it,” which proved his guilt.