Saturday, October 30, 2010
Come Be My Conspiracy: Eleventh Circuit Finds Co-Conspirator Admission Rule Applies Against Late Arriving Co-Conspirators
Federal Rule of Evidence 801(d)(2)(E) provides that
A statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
But is one co-conspirator's admission admissible against another co-conspirator who had not yet joined the conspiracy at the time that the admission was made? According to the recent opinion of the Eleventh Circuit in United States v. Makarenkov, 2010 WL 4204637 (11th Cir. 2010), the answer is "yes."
In Makarenkov, Vitali Makarenkov and Stanislaw Satarinov were jointly charged with conspiracy to possess with the intent to distribute five kilograms or more of cocaine (Count One) and possession with intent to distribute 500 grams or more of cocaine (Count Two). Subsequently,
Makarenkov was tried alone. The jury found him guilty on Count One, but of the lesser-included offense of conspiracy to possess with the intent to distribute 500 grams or more of cocaine. He was found guilty as charged on Count Two. He was sentenced to seventy-two months on each count, with the sentences to run concurrently, and a forty-eight month term of supervised release on each count, to run concurrently.
After he was convicted, Makarenkov appealed, claiming, inter alia, that the district court erred in admitting recorded conversations between Satarinov, a co-conspirator, and a confidential informant. According to Makarenkov, these conversations took place before he allegedly joined the conspiracy and thus could not be admitted against him as co-conspirator admissions. The Eleventh Circuit disagreed, finding that "it is settled law in this circuit that 'a 'declaration of one co-conspirator is admissible against members of the conspiracy who joined after the statement was made.'' United States v. Lampley, 68 F.3d 1296, 1301 (11th Cir.1995)."
Indeed, the Eleventh Circuit's opinion in Lampley contains the following citation:
See also United States v. Brown, 943 F.2d 1246, 1255 (10th Cir.1991) (citing cases from the First, Second, Third, Fourth, Fifth, Seventh, and Ninth Circuits in concluding that the "prevailing view among the circuits is that previous statements made by co-conspirators are admissible against a defendant who subsequently joins the conspiracy").