EvidenceProf Blog

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

Sunday, February 5, 2012

In Plain Sight?: 10th Circuit Finds Introduction Of Co-Conspirator Admissions Wasn't Plain Error

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.

I'm not going to say that the recent decision of the Tenth Circuit in United States v. Braden, 2012 WL 287185 (10th Cir. 2012), which deals with Rule 801(d)(2)(E), was wrong, but I will say that it is oddly worded.

In Braden, Cami Braden was convicted of participating in a conspiracy to obtain methamphetamine from suppliers in Utah and transport it to Wyoming for resale. After she was convicted, Braden appealed, claiming, inter alia, that the district court erred by permitting the prosecution to present into evidence "testimony from Ms. Braden's co-conspirators..."

Braden did not object to the admission of this testimony at trial, meaning that the Tenth Circuit could only reverse for plain error. The Tenth Circuit didn't specifically cite to Federal Rule of Evidence 103(e), which provides that "[a] court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved." But the court did find that

most of the statements she points to are offhand comments by witnesses that simply provide context for admissible testimony about those witnesses' actions. They do not go to the core of the conspiracy or Ms. Braden's involvement with it and we can see no plain error in their admission.

There are two ways to look at this statement. First, it seems clear to me that the error of the district court was "plain." If the subject statements were merely "offhand comments," then they weren't in furtherance of the conspiracy, and they weren't admissible under Federal Rule of Evidence 801(d)(2)(E). But of course the phrase "plain error" has legal meaning, and it seems clear that the admission of "offhand comments" did not affect Braden's substantial rights. Therefore, I can see why the Tenth Circuit affirmed Braden's conviction.



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