Saturday, October 25, 2008
Twin Falls Idaho: Court of Appeals Of Idaho Grapples With Co-Conspirator Admissions Questions In Drug Ring Appeal
The recent opinion of the Court of Appeals of Idaho in State v. Rolon, 2008 WL 4659863 (Idaho.App. 2008), contains an interesting discussion of two issues raised by the co-conspirator admission rule.
In Rolon, Antonio Vasquez Rolon appealed from his convictions for conspiracy to traffic in more than 28 grams of heroin and for conspiracy to traffic in more than 28 grams of cocaine. At trial, the prosecution had relied heavily upon the testimony of Carlos Ortiz, who testified concerning statements made to him by Rolon's alleged co-conspirator, a man known by the name "Chaleco."
Ortiz specifically testified, inter alia, that
-he was invited by Chaleco to join him in dealing drugs;
-thereafter, Chaleco took him to a restaurant, telling him that he was going to meet "the boss," who Ortiz later identified as Rolon;
-Chaleco had told him that another alleged member of the drug ring, "Cumbia," traveled to Utah to obtain heroin and cocaine from Rolon and that during these trips, Rolon would follow Cumbia in a different vehicle to ensure that "everything was running alright."
When Rolon objected to this testimony, the trial judge overruled the objection, finding that Chaleco's statements "clearly fell within the hearsay rule exception for the statements of a co-conspirator."
On appeal, Rolon claimed, inter alia, that the trial judge erred in allowing Ortiz to testify about Chaleco's statements because the only evidence that there was a conspiracy between Chaleco and himself were Chaleco's statements themselves. And if his case were being heard under the Federal Rules of Evidence, his argument would have been legally correct. Under Federal Rule of Evidence 801(d)(2)(E), "[a] statement is not hearsay if...[t]he 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." Rule 801(d)(2) also provides, however, that "[t]he contents of the statement shall be considered but are not alone sufficient to establish...the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E)."
However, while Idaho does have a counterpart to this federal co-conspirator admission rule in Idaho Rule of Evidence 801(d)(2)(E), it does not have a corresponding final sentence in Idaho Rule of Evidence 801(d)(2) indicating that the alleged co-conspirator's statements alone are insufficient to establish the conspiracy. Rolon raised the argument that the court should apply a similar limitation, but the court found that it did not need to reach this argument because there was evidence beyond Chaleco's statements establishing a conspiracy. Specifically,
"the state introduced evidence of Rolon's visits to several residences in the Treasure Valley associated with the conspiracy and particularly of one occasion wherein Rolon was observed leaving one of the residences and going directly to the bank to deposit $1,000. Other corroborating evidence disclosed that his name was found on documents in the Nampa residence; that titles to three vehicles connected to the conspiracy were found in his vehicle; that there was an inordinately high level of phone contact between Rolon and the other members of the conspiracy; and that documents found catalogued the drugs being transported from Utah to Idaho."
A second argument raised by Rolon on appeal was that Chaleco's statements did not qualify as co-conspirator admissions because they were not made "in furtherance" of the conspiracy. And the Court of Appeals of Idaho noted that there was a circuit split on this issue. It noted that some courts, such as the Sixth and Eighth Circuits, find that statements are made "in furtherance" of a conspiracy even when they merely "identify participants and their roles in the conspiracy," presumably even if they are part of "idle conversation." Conversely, it noted that some courts, such as the Supreme Court of Kentucky, have found that "a determining factor is whether a statement in any way assists or advances the objectives of a conspiracy-otherwise such a statement is not 'in furtherance' as prescribed by the rule."
Meanwhile, the Court of Appeals of Idaho decided to take the middle ground of the Ninth Circuit, which has
"allowed the admittance of testimony defining co-conspirators' roles as being in furtherance of a conspiracy, but, unlike the Sixth and Eighth Circuit cases discussed above, has not allowed their admission in all circumstances. Rather, the Court has distinguished between those that are a product of 'idle conversation' and those made with the intent to further the conspiracy."
The court then applied this standard and concluded that Chaleco's
"statements were made 'in furtherance' of the conspiracy. Specifically, both comments were made after Ortiz had agreed to join the drug ring and were part of his 'orientation' as they explained the operations and roles of the conspiracy. Ortiz, while perhaps considered less invested in the drug ring, was nonetheless distributing drugs daily and collecting cash, all for remuneration. He received compensation of $2,000 per month, all expenses paid, some amounts of drugs for personal use, and use of cell phones and vehicles. It is natural and necessary that Chaleco would identify Rolon's role in the operation. Ortiz, who subsequently received frequent telephone calls from Rolon, was not so far removed from the details of the operation that Chaleco's identification of Rolon as the source of the drugs would be 'idle conversation.' Thus, we conclude the district court did not err in admitting the statements under the conspiracy hearsay exception."
I'm not quite sure of the distinction between the approach of the Ninth Circuit (and now the Court of Appeals of Idaho) and the approach of the Supreme Court of Kentucky, but I agree that the approaches of the Sixth and Eighth Circuits allow for the admission of too many statements as co-conspirator admissions. And I would say that Chaleco's statement likely did qualify as co-conspirator admissions under any of the three constructions of the phrase "in furtherance."