EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Sunday, January 13, 2008

Conspiracy Theory: Seventh Circuit Notes That Prosecutors Don't Need To Charge Conspiracy To Introduce Co-Conspirator Admissions

The Seventh Circuit's recent decision in United States v. Moon, 2008 WL 43585 (7th Cir. 2008), makes an important point that too few prosecutors know:  a prosecutor seeking to admit statements as co-conspirator's admissions does not need to charge defendants with conspiracy.  In Moon, Anthony Alexander and George Moon were convicted of distributing cocaine and of some ancillary crimes, but they were neither charged nor convicted of conspiracy.  Some of the evidence used to convict them were recorded conversations between the two men obtained as a result of a wiretap and admitted pursuant to Federal Rule of Evidence 801(d)(2)(E) (co-conspirator's admissions), which indicates that a statement is not hearsay if the statement is offered against a party and is "a statement by a coconspirator of a party during the course and in furtherance of the conspiracy."

On appeal, the defendants seemed to argue, inter alia, that their recorded conversations were inadmissible as co-conspirator's admissions because they were not charged with conspiracy.  The Seventh Circuit rejected this argument, noting:  "Some prosecutors may believe that they need to charge conspiracy in order to take advantage of the co-conspirator exception to the hearsay rule..., but that's a mistake.  This rule of evidence depends on principles of agency, so it applies (if the evidence demonstrates agreement by a preponderance...) whether or not the indictment has a conspiracy count."  The Seventh Circuit then found that the prosecution had proven a conspiracy between Alexander and Moon by at least a preponderance of the evidence, and it thus affirmed their convictions.

Thus, prosecutors should adhere to the following logic when they have alleged co-conspirator admissions that they want to admit.  If they have enough evidence that they think they can prove conspiracy beyond a reasonable doubt, they should charge conspiracy.  If, however, they think that they can merely prove conspiracy by a preponderance of the evidence or by clear and convincing evidence, they should not charge conspiracy but should still seek to admit the statements pursuant to Federal Rule of Evidence 801(d)(2)(E) or state counterparts.



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