Thursday, May 29, 2008
The recent opinion of the Supreme Court of Iowa in State v. Tonelli, 2008 WL 2152529 (Iowa 2008), definitively answers two questions about Iowa's co-conspirator admission rule (Iowa Rule of Evidence 5.801(d)(2)(E)) which had remained unanswered for years. In Tonelli, several men living near Iowa State University planned a house party by putting an invitation on the internet site Facebook, purchasing two kegs of beer and other alcohol, making “Jell-O” shots, and making arrangements to collect money at the door and split the proceeds. According to the State, the men knew there were numerous people at the party who were under the legal age to drink alcohol and had reasonable cause to believe they were serving alcohol to minors. (One of the underaged guests was twenty-year-old Shanda Munn, who killed Kelly Laughery by striking Laughery with her vehicle after the party).
Three of the men were thereafter charged with the "serious misdemeanor" of providing alcohol to a person under the legal age. During a pretrial hearing, the State indicated that it intended to offer the incriminatory testimony of some of the men, pursuant to the co-conspirator admission rule (Iowa Rule of Evidence 5.801(d)(2)(E)), which indicates that "a statement by a coconspirator of a party during the course and in furtherance of the conspiracy" is admissible non-hearsay. Defense counsel objected, and the State thus filed a motion for adjudication of a law point, which eventually reached the Supreme Court of Iowa.
The Court noted that defense counsel's first argument was that Iowa Code Section 706.1 indicates in relevant part that "[a] person commits conspiracy with another if, with intent to promote or facilitate the commission of a crime which is an aggravated misdemeanor or felony, the person does either of the following:
a. Agrees with another that they or one or more of them will engage in conduct constituting the crime or an attempt or solicitation to commit the crime.
b. Agrees to aid another in the planning or commission of the crime or of an attempt or solicitation to commit the crime. "
According to defense counsel, because intent to commit a "serious misdemeanor" (such as providing alcohol to a minor) cannot constitute a "conspiracy" under this definition, the co-conspirator admission rule was inapplicable.
In rejecting this argument, the Court first cited a principle which I have previously mentioned on this blog, which is that a party does not need to be charged with the crime of conspiracy for the co-conspirator admission rule to apply. It then noted and approved of the federal court practice of distinguishing between the concept of conspiracy for purposes of the rule of evidence, which merely requires an agreement to engage in a joint venture, and the substantive elements of conspiracy under criminal law.
That left the Court with defense counsel's second argument, which was that for the co-conspirator admission rule to apply, the underlying goal of the joint venture and the means used to accomplish it must be illegal. According to defense counsel, because the mere planning of a party and sending of invitations are lawful acts and means, and statements made during that process could not qualify as co-conspirator admissions, even if the defendants had reasonable cause to believe they were serving alcohol to minors.
In analyzing this argument, the Court first noted that at least one court -- the D.C. Circuit in United States v. Gewin, 471 F.3d 197, 201 (D.C. Cir. 2006), had found that "the term conspiracy as used in the rule of evidence does not depend upon a goal to promote a crime or civil wrong." The Court, however, rejected this conclusion, finding that "[a] review of Iowa case law reveals that the term 'conspiracy' has generally been used in the context of unlawful conduct, whether civil or criminal." It thus determined that Iowa Rule of Evidence 5.801(d)(2)(E) "may be applied where there is evidence of a conspiracy to accomplish a criminal or unlawful act, or to do a lawful act in an unlawful manner, but not to combinations or agreements in furtherance of entirely lawful goals advanced by lawful means." That leaves it up to the trial court to determine the goals of the defendants in Tonelli and the mans they used to accomplish them.
I agree with the ruling of the Supreme Court of Iowa. After all, Federal Rule of Evidence 801(d)(2)(E) (and state counterparts) is the "co-conspirator" admission rule, not the "joint venturer" admission rule. And because the sine qua non of a conspiracy is the agreement to engage in unlawful conduct, application of the co-conspirator admission rule should, at a minimum, require an unlawful goal or unlawful means.