Friday, October 25, 2013
Conspiracy Theory: 11th Circuit Finds Co-Conspirator Admissions Properly Admitted Despite Defendant's Conspiracy Acquittal
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, assume that a defendant is charged with Conspiracy to make false statements and making false statements based on his alleged participation in a mortgage fraud conspiracy. Second, assume that the prosecution admits co-conspirator statements at trial pursuant to Rule 801(d)(2)(E). Third, assume that the defendant is convicted of making false statements but acquitted of conspiracy to make false statements. Can the defendant claim on appeal that the subject statements were improperly admitted under Rule 801(d)(2)(E)? According to the recent opinion of the Eleventh Circuit in United States v. Derosa, 2013 WL 5716884 (11th Cir. 2013), the answer is "no."
In Derosa, the facts were as stated above, with Joseph Derosa being the defendant and Joseph Guaracino being the alleged co-conspirator whose statements were admitted. After he was convicted, Derosa appealed,
complain[ing] about three statements made by Guaracino, the alleged leader of the conspiracy, and repeated by various witnesses at trial suggesting Derosa was a knowing and willing participant in the mortgage fraud. Derosa argue[d] that these three statements should not have been admitted, because the jury acquitted him on the conspiracy count and there was no showing that he was part of the conspiracy.
The Eleventh Circuit disagreed, concluding that
The fact that the jury found Derosa not guilty on the conspiracy charge is immaterial....There was also sufficient evidence to support a finding, by a preponderance, that Derosa was a participant in the conspiracy. The statements themselves can be considered, pursuant to Rule 801, as long as they are considered together with other evidence. Aside from these statements, we have summarized the evidence of Derosa's participation in the mortgage fraud. In light of the evidence as a whole, the effect of three scattered comments in a two-month trial is limited and we find it did not substantially affect the outcome.