Monday, June 22, 2009
The Harmless Conspiracy: Court Finds Harmless Error Despite Improperly Admitted Co-Conspirator Admission
Federal Rule of Evidence 801(d)(2)(E) provides that
[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.
As both the plain language of this Rule and the recent opinion of the United States District Court for the Eastern District of Michigan in Rodriguez v. Jones, 2009 WL 1619969 (E.D. Mich. 2009), make clear, a statement is not admissible under this rule merely because it was made by a party's co-conspirator; instead, the statement must be made both during the course of the conspiracy and in furtherance of it. And in Jones, the co-conspirator's statement was neither.
In Jones, Frank C. Rodriguez was convicted of conspiracy to deliver 650 or more grams of cocaine, possession with intent to deliver 50 to 224 grams of cocaine, and two counts of delivery of less than 50 grams of cocaine. These convictions were procured in part based upon the testimony of Mary Chopski, who claimed that Rodriguez's co-defendant, Tico Porter, told her that Rodriguez was the biggest drug dealer in Oakland County.
After he was convicted in Michigan state court and unsuccessfully appealed through the Michigan state court system, Rodriguez filed a pro se application for the writ of habeas corpus with the Eastern District of Michigan under 28 U.S.C. Section 2254, claiming, inter alia, that Porter's alleged statement was inadmissible hearsay. The court found that the issue was governed by Federal Rule of Evidence 801(d)(2)(E) and that Porter, as Rodriguez's co-defendant, was clearly his co-conspirator. The problem for the prosecution, however, was that it could neither prove that Porter's statement was made during the course of the subject conspiracy nor that it was made in furtherance of the conspiracy; instead, it was apparently an offhanded comment in no way connected to the crimes for which Rodriguez was convicted.
Nonetheless, there was a fundamental problem for Rodriguez.
A close friend of [Rodriguez]...testified that [Rodriguez] had admitted to being the biggest drug dealer in the area..., and [another witness] conceded at trial that [Rodriguez] might have said he was the biggest dope dealer around....Thus, even though Mary Chopski's hearsay testimony that co-defendant Porter had said that [Rodriguez] was the biggest cocaine dealer in the county might [have] amount[ed] to constitutional error, the error was harmless, and defense counsel's failure to object to Chopski's testimony did not amount to ineffective assistance.