Taking The Conspiracy As He Finds It

When an individual joins a conspiracy, are statements of other co-conspirators made before he joined admissible against him? Seventh Circuit confirms that they are so long as the requirements of FRE 801(d)(2)(E) are met, in United States v. Arrellano, _ F.3d _ (7th Cir. July 2, 2014) (No. 13-1474)

Under FRE 801(d)(2)(E), co-conspirator statements may be admitted against a party as nonhearsay if the statement “was made by the party’s coconspirator during and in furtherance of the conspiracy.” The Seventh Circuit recently considered a challenge under this rule including that statements made before the defendant joined the conspiracy should not be admitted against him.

Trial Court Proceedings: Admitting Recorded Statements

Defendant Arrellano was prosecuted for conspiring to possess heroin and cocaine with intent to distribute and using a cell phone to facilitate the conspiracy. During the investigation, numerous recorded statements were obtained from co-conspirators during intercepted phone-calls. At trial, defendant Arrellano objected to the admission of the recorded statements. He claimed that served were obtained before he joined the conspiracy. The trial court admitted the statements conditionally as long as the government could meet the requirements of FRE 801(d)(2)(E) by the end of the trial. At the end of the government's case in chief, the defendant renewed his objection which the trial court overruled. After the defendant was convicted by the jury, he appealed the admission of the recorded statements.

Seventh Circuit Review: Taking The Conspiracy As He Found It

The Seventh Circuit concluded that the recorded statements were properly admitted. The circuit rejected the claim that "many of the statements admit-ted against him were made before he allegedly joined the conspiracy." As the circuit explained, “it is well established that a defendant who joins a conspiracy ‘[takes] the conspiracy as he found it. When he joined and actively participated in it he adopted the previous acts and declarations of his fellow co-conspirators’.” Arrellano, _ F.3d at _ (quoting United States v. Adamo, 882 F.2d 1218, 1230–31 (7th Cir. 1989) (alteration in original) (admitting prior statements before the defendant became a member of the conspiracy) (quoting United States v. Coe, 718 F.2d 830, 839 (7th Cir. 1983) (noting that the “well-established principle that statements of coconspirators before a defendant joins the conspiracy are nonetheless admissible against him”); United States v. Handlin, 366 F.3d 584, 590 (7th Cir. 2004) (in applying FRE 801(d)(2)(E), “it is irrelevant when the defendant joined the conspiracy, so long as he joined it at some point”)). The circuit noted that the evidence of the defendant's participation in the conspiracy was not limited to the statements.


The Arrellano case shows the breadth and application of the co-conspirator rule. As long as the requirements of the rule are satisfied, statements before and after the defendant joins the conspiracy may be admitted.

A defendant who joins a conspiracy may withdraw. Last year, the Supreme Court established the burden of establishing withdrawal. See Supreme Court Watch: Deciding The Burden Of Proof On Conspiracy Withdrawal; see also More Jury Instructions Modified After Smith v. United States.

For another issue in the case, see Comparing Physical And Circumstantial Evidence.


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