EvidenceProf Blog

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

Thursday, April 1, 2010

The Crime And The Cover-Up, Take 2: Third Circuit Finds Phone Conversations Constituted Co-Conspirator Admissions In Drug Appeal

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.

Because this Rule only covers statements made during the course and in furtherance of conspiracies, it usually does not cover statements made by a co-conspirator after he is apprehended by police. The recent opinion of the Third Circuit in United States v. Jones, 2010 WL 1220960 (3rd Cir. 2010, provides an exception to this general rule.

In Jones, Chesney Jones was convicted of  unlawful possession and distribution of at least 50 grams of crack cocaine, and at least 5 kilograms of cocaine hydrochloride, interstate travel in aid of racketeering, making false statements, and conspiracy to distribute drugs.

After her arrest for a parole violation, Jones asked to speak to Drug Enforcement Agents and admitted that she was a drug "runner" and had supplied multiple shipments of cocaine hydrochloride to a buyer, Lance Harper, for approximately one year. Jones agreed to cooperate with law enforcement and made recorded phone calls to Harper and other individuals involved in drug trafficking. During one recorded meeting with Harper, Jones attempted to tip him off that she was cooperating with law enforcement. Jones testified at her trial, retracted everything she had told agents, and denied being involved with drug trafficking.

At trial, the prosecution introduced the recordings of these phone conversations under Federal Rule of Evidence 801(d)(2)(E). On appeal, Jones claimed, inter alia, that these recordings were improperly admitted because these conversations were neither made during the course of the conspiracy -- which ended when she confessed to the DEA agents -- nor in furtherance of the conspiracy (because she was giving up the conspiracy). The Third Circuit, however, disagreed, finding that "the government provided evidence that during Jones' conversations with Harper she attempted to warn him that they were being recorded-therefore, the conspiracy had not ended and the statements were made in furtherance of the conspiracy."  In other words, because these conversations were at least partially an attempt to cover up the conspiracy, they were admissible as co-conspirator admissions.



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