EvidenceProf Blog

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

Sunday, June 24, 2012

Come Be My Conspiracy: Ben Trachtenberg's Amicus Brief On Co-Conspirator Admissions & Lawful Ventures

I'm still in the process of moving and should be back to regular blogging next weekend, but I wanted to quickly post an entry about an amicus brief (Download Amicus Brief) written by Professor Ben Trachtenberg (who has guest blogged on this site). The brief addresses a subject that Professor Trachtenberg first wrote about in his terrific article, Coconspirators, "Coventurers," and the Exception Swallowing the Hearsay Rule, 61 HASTINGS L.J. 581 (2010): whether Federal Rule of Evidence 801(d)(2)(E), which deems co-conspirator admissions nonhearsay, should apply to statements made during the course of and in furtherance of lawful ventures. 

I first became aware of this issue when I posted an entry about the

opinion of the Supreme Court of Iowa in State v. Tonelli, 2008 WL 2152529 (Iowa 2008)....In Tonelli, several men living near Iowa State University planned a house party by putting an invitation on the internet site Facebook, purchasing two kegs of beer and other alcohol, making "Jell-O" shots, and making arrangements to collect money at the door and split the proceeds.  According to the State, the men knew there were numerous people at the party who were under the legal age to drink alcohol and had reasonable cause to believe they were serving alcohol to minors. (One of the underaged guests was twenty-year-old Shanda Munn, who killed Kelly Laughery by striking Laughery with her vehicle after the party).

Three of the men were thereafter charged with the "serious misdemeanor" of providing alcohol to a person under the legal age.  During a pretrial hearing, the State indicated that it intended to offer the incriminatory testimony of some of the men, pursuant to the co-conspirator admission rule (Iowa Rule of Evidence 5.801(d)(2)(E)), which indicates that "a statement by a coconspirator of a party during the course and in furtherance of the conspiracy" is admissible non-hearsay.

Defense counsel argued that

for the co-conspirator admission rule to apply, the underlying goal of the joint venture and the means used to accomplish it must be illegal.  According to defense counsel, because the mere planning of a party and sending of invitations are lawful acts and means, and statements made during that process could not qualify as co-conspirator admissions, even if the defendants had reasonable cause to believe they were serving alcohol to minors.

In addressing this argument, the Supreme Court of Iowa

first noted that at least one court -- the D.C. Circuit in United States v. Gewin, 471 F.3d 197, 201 (D.C. Cir. 2006), had found that "the term conspiracy as used in the rule of evidence does not depend upon a goal to promote a crime or civil wrong."  The Court, however, rejected this conclusion, finding that "[a] review of Iowa case law reveals that the term 'conspiracy' has generally been used in the context of unlawful conduct, whether civil or criminal."  It thus determined that Iowa Rule of Evidence 5.801(d)(2)(E) "may be applied where there is evidence of a conspiracy to accomplish a criminal or unlawful act, or to do a lawful act in an unlawful manner, but not to combinations or agreements in furtherance of entirely lawful goals advanced by lawful means."  

Professor Trachtenberg read my post and sent me a draft of what became his "Coventurers" article, which digs deep into the history of the co-conspirator admission rule to reach the same conclusion as the Supreme Court of Iowa. I strongly agreed with the points made in the article and was thus happy to sign onto his amicus brief, which makes many of the same arguments. Professor Ann Murphy (also an EvidenceProf guest blogger) has already done a nice write-up of the case that is the subject of the amicus brief on the Evidence in the News website. Professor Murphy has also signed onto the brief as have Edward ChengJanet HoeffelJames KainenDeborah Jones MerrittRichard Moberly, and Stephen Saltzburg. Here's hoping that the Supreme Court grants cert in the case.



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