EvidenceProf Blog

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

Sunday, December 12, 2010

Conspiracy Theory: Seventh Circuit Finds Statement About Disposing Murder Weapon Qualifies 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.

So, are statements about disposing the murder weapon later in the month after a shooting during the course of an in furtherance of the conspiracy to murder the victim? According to the recent opinion of the Seventh Circuit in United States v. Nicksion, 2010 WL 4978819 (7th Cir. 2010), the answer is "yes."

In Nicksion,

Orlandes Nicksion and Mark Cubie, along with several others including Nicksion's cousin, Ronald Terry, were charged with drug trafficking conspiracy and various drug and gun offenses. After withdrawing his guilty plea, Nicksion proceeded to trial. A jury subsequently convicted him of drug trafficking conspiracy,...aiding the discharge of a firearm during the drug trafficking conspiracy,...and being a felon in possession of a firearm.

The trial of these alleged co-conspirators

consisted of two main components: the drug trafficking conspiracy and the [Earl] Benion homicide. Nicksion's arguments on appeal only concern the latter. To briefly summarize the former, the evidence showed that, from 2002 to 2005, Nicksion, Cubie, Terry, and others were involved in procuring large quantities of cocaine, crack, and marijuana from Chicago sources for distribution in Milwaukee, Wisconsin. In general, Nicksion and Cubie would obtain the drugs and provide Terry with a supply to sell. The conspirators used an apartment in a duplex owned by Nicksion's great-uncle, Robert Bridges, and his wife for drug trafficking. At times, Bridges also assisted with drug sales.

The evidence of the homicide showed that, on September 18, 2002, Benion's son, Sirus (age twelve at the time), saw Nicksion and Terry repeatedly drive by his home in a silver Monte Carlo with Illinois plates, while his father was outside. At one point, Nicksion blew Benion a kiss. Terry shot Benion that night, and Benion died the next day.

Later in the month after the shooting, Terry told Bonds that he (Terry) needed to get rid of the gun because it was "hot." Bonds testified this statement at trial, and, after Nicksion was convicted, he appealed, claiming, inter alia, that this statement was inadmissible hearsay. The Seventh Circuit disagreed, finding that Terry's statement to Bonds was made in an attempt to get rid of the murder weapon and was this in furtherance of (and presumably during the course of) the conspiracy.



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