Co-Conspirator Disagreements And Disputes "In Furtherance" Of The Conspiracy?

Can disputes among alleged co-conspirators be admitted as co-conspirator statements in furtherance of the alleged conspiracy? Like most human endeavors, participating in a conspiracy often involves disagreements and conflicts among the conspiracy's members. The Tenth Circuit recently examined how evidence of co-conspirators grappling with each other after achieving the conspiracy's criminal goal can be considered as actions in furtherance of the conspiracy, even though the conspiracy seemed to be tottering towards contention and dispute. This made little difference in admitting these statements as FRE 801(d)(2)(E) co-conspirator statements, in United States v. Morgan, __ F.3d __ (10th Cir. April 9, 2014) (Nos. 12–1408, 12–1442, 13–1032)

The Tenth Circuit case of disputing co-conspirators arose out of the success of their successful kidnapping conspiracy. The four co-conspirators had hoped for a substantial sum of money from their kidnap victim. But once they managed to get a $30,000 payment, arguments began among the co-conspirators about how to split the proceeds. At the trial of the co-conspirators, the prosecution sought to introduce into evidence an intercepted phone call during which three of the four co-conspirators "spoke about dividing the proceeds of the crime."

How To Allocate "Proceeds" From The Conspiracy

In this call, one co-conspirator "complained" that another co-conspirator "had taken more than his share" of the proceeds. The dispute during the 42 minute call occurred "only a few minutes after the kidnapping and robbery." The call did seem to resolve as members agreed to a future in person meeting to consider their relative shares from the proceeds. When the meeting occurred later that day the co-conspirators apparently successfully "redistributed the proceeds from the kidnapping and robbery." Morgan, __ F.3d at __.

At their joint trial for the kidnapping and the conspiracy to do so, the defendant's attempted to suppress the intercept of their communications. This attempt failed. None the less, the defendants' also objected to the court's admission of the "intercepted phone call during which" the defendants "spoke about dividing the proceeds of the crime." They claimed that this evidence was hearsay and was not covered by the FRE 801(d)(2)(E) co-conspirator exception. The reason the defendant's asserted the intercept was inadmissible hearsay was that the government could not show the communications were made "in furtherance" of the conspiracy, which by this point had already acquired payment from the kidnapping. The trial court rejected their argument and allowed the prosecution to introduce the intercept "subject to ... proving the foundational predicates" for the co-conspirator exception. Morgan, __ F.3d at __.

Achieving The Conspiracy's "Central Purpose"

The Tenth Circuit's rejection of the defendants' contention on the scope of the co-conspirator exception was rooted in two general principles. First, the circuit noted that the "conspiracy continues until its central purpose has been attained." Morgan, __ F.3d at __ (citing Grunewald v. United States, 353 U.S. 391, 401–02 (1957) (rejecting an implied subsidiary conspiracy to conceal the crimes because the original purpose had been accomplished); Krulewitch v. United States, 336 U.S. 440, 442–43 (1949) (same)).

The second general principle directed that the court determine what is the scope and by that the central purpose of a conspiracy. It was to do this by examing "the language of the indictment.” Morgan, __ F.3d at __ (citing United States v. Qayyum, 451 F.3d 1214, 1218 (10th Cir.2006) (quotations omitted)." The circuit identified the defendants' central purpose in the charged conspiracy and that its satisfaction had not yet been attained when the dispute over the distribution of proceeds arose. After all, "[t]he central purpose of kidnapping and robbing" their victim, contended the circuit "was to obtain money and divide it among the co-conspirators. The co-conspirators on the [challenged] call discussed concerns about an unfair distribution of the proceeds, which furthered their purpose to kidnap for money. After the call, the co-conspirators met again to redistribute proceeds." Morgan, __ F.3d at __. This was clear from the indictment which "lists the Defendants' multiple meetings to divide the proceeds—which would include the" challenged intercept "as one of the 21 overt acts in furtherance of the conspiracy."

The Continuing Conspiracy

The implications of the circuit's analysis was that the conspiracy members were not in posture as to consider their conspiratorial task accomplished until they had been able to realize the benefits they planned to derive from the charged conspiracy. This perception of the continuing conspiracy was clear, since it was "well settled that the distribution of the proceeds of a conspiracy is an act occurring during the pendency of the conspiracy.” Morgan, __ F.3d at __ (quoting United States v. Davis, 766 F.2d 1452, 1458 (10th Cir. 1985)). This principle was widely shared among the circuits, for example in the

  • Eleventh Circuit: United States v. Knowles, 66 F.3d 1146, 1156–57 (11th Cir. 1995) (distribution of proceeds is in furtherance of conspiracy)
  • Eleventh Circuit: United States v. Turner, 871 F.2d 1574, 1581 (11th Cir. 1989) (admitting under Rule 801(d)(2)(E) conversations of co-conspirators about how proceeds of theft would be distributed)
  • Second Circuit: United States v. Knuckles, 581 F.2d 305, 313 (2d Cir. 1978) (“[I]t is fair to say that where a general objective of the conspirators is money, the conspiracy does not end, of necessity, before the spoils are divided among the miscreants.”)


The Morgan case explains principles that are not new or unexpected. It demonstrates that the scope of statements admitted under the FRE 801(d)(2)(E) hearsay exception is a matter of examining the nature of the charged illegal conduct. Had the indictment in Morgan not cited the efforts of the co-conspirators to resolve dividing their loot from the crime, the defendant's might have had a bit more weight. For other blogs considering related issues, particularly involving the admission of co-conspirator communications about payment or compensation, see United States v. Grant, 683 F.3d 639, 648–49 (5th Cir. 2012) (a co-conspirator statement about paying money for achieving the conspiracy's illegal goals are statements in furtherance of the charged conspiracy); Incarceration Did Not Establish Withdrawal From The Conspiracy.


Federal Rules of Evidence