Sunday, November 13, 2011
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, under this co-conspirator admission rule, is a co-conspirator's statement only admissible against a defendant if the statement was made during the course and in furtherance of the conspiracy charged in the indictment, or can a co-conspirator admission made during a different conspiracy also be admissible? This was a question that the Fourth Circuit didn't quite have to answer in its recent opinion in United States v. Medford, 2011 WL 5317751 (4th Cir. 2011), but it seems that there is no "same conspiracy" requirement under Rule 801(d)(2)(E).
In Medford, Bobby Lee Medford, a former Sheriff of Buncombe County, North Carolina, was convicted in a jury trial of numerous conspiracy and other charges relating to his receipt of bribes in connection with the unlawful operation of video poker machines in Buncombe and other North Carolina counties. After he was convicted, Medford appealed, claiming, inter alia,
that the district court erred in admitting into evidence a recording of a December 19, 2006 meeting...attended by Jamie Henderson, a co-owner of Henderson Amusement, JeffChilders, an employee of Henderson Amusement, John Parker, a former deputy sheriff in neighboring Rutherford County, and Jack Conner, the newly-elected Sheriff of Rutherford County. According to Medford, this recording should not have been admitted into evidence because the recording related to a separate conspiracy in Rutherford County to whichMedford was not a party, and occurred after Medford already had left office following his loss in the 2006 election. Thus, Medford asserts that the recording did not qualify for admission under the hearsay exclusion provided by Rule 801 for statements made by co-conspirators during the course and in furtherance of a conspiracy.
The district court had found that Medford was involved in this separate conspiracy, and the Fourth Circuit did not address the validity of this finding. Instead, the Fourth Circuit found that even assuming the invalidity of this finding, the erroneous admission of the recording was harmless error giving the overwhelming other evidence of Medford's guilt.
But what if (1) there weren't overwhelming other evidence of Medford's guilt; and (2) Medford was involved in this other conspiracy, but it was not the same conspiracy charged in the indictment. Under these circumstances, should the Fourth Circuit have found that the recording was improperly admitted, necessitating a new trial? It seems clear that the answer is "no."
Instead, courts consistently have concluded that "[t]he conspiracy that forms the basis for admitting the coconspirators' statements need not be the same conspiracy for which the defendant is indicted."United States v. Senegal, 371 Fed.Appx. 494, 502 (5th Cir. 2010). Indeed, as I have noted previously on this blog, the prosecution doesn't even need to charge a defendant with conspiracy to admit statements under Federal Rule of Evidence 801(d)(2)(E).
If we think about the rationale behind Federal Rule of Evidence 801(d)(2)(E), it makes sense why there is no "same conspiracy" requirement. The theory behind Rule 801(d)(2)(E) is that a co-conspirator is the agent of other conspirators. Thus, when a co-conspirator makes statements during the course and in furtherance of the conspiracy, those statements are attributable to other conspirators just as statements by an employee are attributable to an employer. This being the case, it is irrelevant that a defendant is not charged with (or in connection with) the conspiracy during which the co-conspirator made his statement(s).