h3.The focus in admitting a co-conspirator statement is on whether the declarant was a member of the conspiracy, not whether the testifying witness was a member; challenged co-conspirator statements were also non-testimonial, avoiding any Confrontation Clause issues, in United States v. Dinwiddie, _ F.3d _ (8th Cir. Aug. 25, 2010) (Nos. 09-2154, 09-2649)
Occasionally, misunderstandings arise on the manner of admitting co-conspirator statements. The Eighth Circuit recently addressed one claim that the witness testifying about the co-conspirator statement must be a member of the conspiracy.
The case involved a drug conspiracy that ultimately resulted in murder of one of the co-conspirators. A number of co-conspirator statements were admitted under FRE 801(d)(2)(E). One statement concerned a dispute between two of the co-conspirators. After a disagreement concerning some missing $10,000 related to a drug run, in a confrontation defendant Dinwiddie pistol-whipped Burgos and then shot him. At trial, the court admitted statements of two witnesses concerning defendant Dinwiddie’s disagreement with co-conspirator Burgos. Following convictions, the defendants raised a number of evidentiary challenges including to the statements about the disagreement.
In affirming, the Eighth Circuit rejected the claim that the testifying witness had to be a member of the conspiracy:
[Defendant] Meador’s argument is based upon the mistaken impression that Rule 801(d)(2)(E) requires that the testifying witness be a co-conspirator. Under Rule 801(d)(2)(E), the relevant inquiry is (1) whether the declarant and the defendant were members of the conspiracy and (2) whether the declarant made the statements in the course of and in furtherance of the conspiracy. United States v. Frazier, 280 F.3d 835, 848 (8th Cir. 2002); see also United States v. Mahasin, 362 F.3d 1071, 1084 (8th Cir. 2004). The declarant is the person who purportedly made the statement. Fed. R. Evid. 801(b). For the purposes of Rule 801(d)(2)(E), it is irrelevant whether the witness was a member of the conspiracy or acting in furtherance of the conspiracy. Frazier, 280 F.3d at 848; see United States v. Manfre, 368 F.3d 832, 837 (8th Cir. 2004) (“The statement need not be made by one conspirator to another conspirator.”).
Rule 801(d)(2)(E)’s inquiry is satisfied because (1) Meador, the defendant, and Dinwiddie, the declarant, were members of a drug distribution conspiracy; and (2) the statements were made in the course of and in furtherance of the conspiracy.
Dinwiddie, _ F.3d at _. Alternatively, the circuit noted that any error in admitting the co-conspirator statements was harmless in light of overwhelming evidence of the conspiracy and dispute.
Among other issues, the Eighth Circuit also dismissed a claim that challenged co-conspirator statements violated the Confrontation Clause. The circuit noted that “[s]tatements made by co-conspirators in the furtherance of a conspiracy are generally admissible because they are nontestimonial and accordingly the Confrontation Clause does not prohibit their admission.” Dinwiddie, _ F.3d at _ (citing Crawford v. Washington, 541 U.S. 36, 68 (2007) (“Most of the hearsay exceptions covered statements that by their nature were not testimonial — for example, business records or statements in furtherance of a conspiracy.”); United States v. Avila Vargas, 570 F.3d 1004, 1009 (8th Cir. 2009) (“Under Crawford v. Washington, the confrontation clause has no application to out-of-court non-testimonial statements.”)).
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