EvidenceProf Blog

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

Saturday, December 3, 2011

Night Swimming: 1st Circuit Upholds Introduction Of Co-Conspirator Admission In Scheme To Swim Drugs Into Canada

Federal Rule of Evidence 801(d)(2)(E) provides that

A statement that meets the following conditions is not hearsay:...The statement is offered against an opposing party and...was made by the party’s coconspirator during and in furtherance of the conspiracy.

So, when is a statement in furtherance of a conspiracy, and when is it mere idle chatter? That was the question addressed by the First Circuit in its recent opinion in United States v. Fogg, 2011 WL 5988232 (1st Cir. 2011).

In Fogg, Raymond Fogg, Jr. was convicted of conspiracy to possess with intent to distribute marijuana and for social security fraud. 

Fogg's conviction was based on his participation in a conspiracy to import marijuana from Canada into Maine for re-sale. The operation was headed by Michael Pelletier....The gist of the scheme was that Pelletier paid associates to transport marijuana from Canada by swimming with the contraband across the St. John River near Madawaska, Maine. The marijuana was then distributed to various customers for their use or sale. Fogg was one of those customers.

At trial, Kendra Cyr, Pelletier's girlfriend,

testified that Pelletier told her that Fogg was one of his customers. Cyr also testified that she collected money from Fogg on Pelletier's behalf while Pelletier was incarcerated.

After he was convicted, Fogg appealed, claiming, inter alia, that the district court erred by allowing Cyr to give this testimony. The First Circuit responded that four conditions have to be satisfied for a co-conspirator admission to be admitted under Rule 801(d)(2)(E):

1) a conspiracy must have existed; 2) the defendant must have been a member of it; 3) the declarant must also have been a member; and 4) the declarant's statement must have been in furtherance of the conspiracy

The court noted that Fogg only challenged the last of these requirements, claiming

that rather than enhancing the object of the conspiracy, Pelletier's statements about Fogg's involvement was "mere idle chatter underlain by personal rather than conspiratorial motives."

The First Circuit disagreed, concluding that

Cyr admitted to having a role in the conspiracy in which she accompanied Pelletier on drug deliveries and also collected money for him while he was in jail. Without question, Pelletier's relaying to Cyr the identity of a customer who owed Pelletier money so that Cyr could collect it was in furtherance of the conspiracy.



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