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Univ. of South Carolina School of Law

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Thursday, November 5, 2009

Conspiracy Theory: Second Circuit Reverses Alien Trafficking Convictions Based In Part On Improperly Admitted Co-Conspirator Admissions

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." Rule 801(d)(2), however, goes on to provide 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)." This latter sentence was the problem for the prosecution in United States v. Liera, 2009 WL 3617813 (9th Cir. 2009).

In LieraCarlos Zarate Liera was convicted of two counts of bringing aliens into the United States for financial gain, two counts of bringing aliens into the United States without presentation, and aiding and abetting. One of the aliens Liera allegedly brought into the U.S. was Le Chen, a citizen of the People's Republic of ChinaDuring Liera's trial, Le Chen testified, inter alia, that while he was in China his mother told him what it would cost to have a person smuggled into the U.S. The district court allowed this testimony because it determined that Le Chen's mother was Liera's co-conspirator and that her statement was thus admissible under Federal Rule of Evidence 801(d)(2)(E).

After Liera was convicted, he appealed, claiming, inter alia, that the prosecution presented insufficient evidence to establish that Le Chen's mother was his co-conspirator. The Second Circuit agreed, concluding that

Here, the only evidence offered by the government to establish that Le Chen's mother was involved in a conspiracy are the hearsay statements the government sought to introduce regarding what Le Chen's mother told Le Chen. During Liera's trial, Le Chen testified that his mother told him that a "middleman" was going to help smuggle Le Chen into the United States. In particular, Le Chen's mother told Le Chen that they "would pay the same amount [their] neighbors paid before," and that Le Chen would work to pay back the money once he arrived in the United States. Under Federal Rule of Evidence 801(d)(2)(E), these statements are insufficient to establish that Le Chen's mother was involved in a conspiracy.

In other words, the contents of Le Chen's mother's statements were some evidence that she was in a conspiracy with Liera, but they were "not alone sufficient to establish...the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement [wa]s offered under subdivision (E)." 

The government did argue "that there [wa]s sufficient independent evidence to establish that Le Chen's mother was a co-conspirator, because on one occasion Le Chen saw his mother speaking to a man he thought was the 'middleman.'" The Second Circuit, however, found that this argument failed because 

Le Chen testified that he never personally met or spoke to the "middleman" and that he was not present for the conversation between his mother and this man. Accordingly, it does not constitute sufficient independent evidence to establish that Le Chen's mother was involved in a conspiracy.

-CM

http://lawprofessors.typepad.com/evidenceprof/2009/11/co-conspirator-admissionus-v-liera----f3d------2009-wl-3617813ca9-cal2009.html

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