EvidenceProf Blog

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

Tuesday, October 5, 2010

Return To Sender: Ninth Circuit Finds Western Union Check Payable To Defendant Qualified As 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.

Sometimes a co-conspirator admission under this Rule looks like a classic co-conspirator admission. For example, if Carl tells Fred, "Dan and I are going to rob a bank tomorrow, will you drive the getaway car?" the statement looks like a classic co-conspirator admission. Other times, a co-conspirator admission doesn't look like a classic co-conspirator admission but is still admissible under the Rule. For example, in its recent opinion in United States v. Webster, 2010 WL 3784829 (9th Cir. 2010), the Ninth Circuit found that a Western Union check payable to the defendant qualified as a co-conspirator admission.

In Webster,

Undercover officer Mike Gilluly of the Billings Police Department developed a relationship with an informant who made several controlled buys from Richard Todd. In May 2005, Gilluly purchased three ounces of crystal methamphetamine directly from Todd, who was arrested and charged with drug crimes. Additional information led to four more arrests.

One of the arrestees was Lamar Webster, who was charged with (1) conspiracy to possess with intent to distribute methamphetamine, (2) possession with intent to distribute over 500 grams of methamphetamine, (3) money laundering conspiracy, and (4) money laundering. The two money laundering counts against Webster were "based on Webster's alleged receipt of the $300 wire transfer from his co-conspirators."

To prove this fact, the prosecution presented into evidence

a $300 Western Union check payable to "Lamar Webster" issued on December 23, 2003, and cashed at the same Hayward store. The check also identifies Billings, Montana, as the check's place of origin. The check is signed by "Lamar Webster" as payee.

After he was convicted, Webster appealed, claiming, inter alia, that this check was inadmissible hearsay, but the Ninth Circuit disagreed, finding that

The recipient's name is admissible under Federal Rule of Evidence 801(d)(2)(E) as an admission by a party-opponent-a co-conspirator statement made in the course and furtherance of the conspiracy. Testimony established that the senders of the wire transfer were Webster's co-conspirators and the wire transfer was relevant to the conspiracy.



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