EvidenceProf Blog

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

Friday, April 15, 2011

The Conspirator: Western District Of Louisiana Notes 4 Requirements To Admit 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.

And, as the recent opinion of the United States District Court for the Western District of Louisiana in United States v. Jackson, 2011 WL 1376276 (W.D.La. 2011), makes clear, to admit a statement as a co-conspirator admission under Rule 801(d)(2)(E), the prosecution must prove 4 elements by a preponderance of the evidence.

In Jackson, Richard Jackson was convicted of several crimes, including conspiracy to distribute crack cocaine. After he was convicted, Jackson appealed, claiming, inter alia, that he received the ineffective assistance of counsel because his trial attorney failed to object to the admission of testimony by Kelvin Gay. According to Gay, Eric German told him that "Jackson had taken over Gay's turf while he was in prison."

The court permitted this testimony because it found that German's statements was a co-conspirator admission under Federal Rule of Evidence 801(d)(2)(E). Jackson claimed on appeal that his trial attorney should have argued that German's statement did not constitute a co-conspirator admission, but the Western District of Louisiana found that such an argument would have been without merit. According to the court,

Under Rule 801(d)(2)(e), the proponent of admittance must prove by a preponderance of the evidence (1) the existence of the conspiracy, (2) the statement was made by a co-conspirator of the party, (3) the statement was made during the course of the conspiracy, and (4) the statement was made in furtherance of the conspiracy....While Petitioner's counsel did not object to Gay's testimony concerning Jackson, such an objection would have been overruled. Through the testimony of the case agents and the officers, the government had already proven by a preponderance of the evidence the four required elements. Any such objection to the statements made by Kelvin Gay would have been meritless and therefore would have been denied. The attorney cannot be ineffective for failing to raise a meritless claim.



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