EvidenceProf Blog

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

Thursday, April 10, 2014

Co-Conspirator vs. Hired Help: Should the Distribution of Proceeds Mark the End of a Conspiracy?

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

A statement that meets the following conditions is not hearsay:....

(2) An Opposing Party’s Statement. The statement is offered against an opposing party and:....

(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.

So, when exactly does a conspiracy end for Rule 801(d)(2)(E) purposes? According to most (all?) courts, including the Tenth Circuit in United States v. Morgan, 2014 WL 1379207 (10th Cir 2014), the answer is "not until after the proceeds of the crime are divided." But does that make sense?

In Morgan, Tracy Morgan, Killiu Ford, and Augustus Sanford were convicted of kidnapping, conspiracy to kidnap, and possession of a firearm during a crime of violence. After they were convicted, they appealed, claiming, inter alia, that the district court erred in admitting an intercepted phone call during which the co-conspirators "spoke about dividing the proceeds of the crime.

The Tenth Circuit disagreed, concluding that

A conspiracy continues until its central purpose has been attained....

As evident from the call and other evidence, the central purpose of kidnapping and robbing Mr. Armendariz was to obtain money and divide it among the co-conspirators. The co-conspirators on the call discussed concerns about an unfair distribution of the proceeds, which furthered their purpose to kidnap for money. After the call, the coconspirators met again to redistribute proceeds.  

"It is well settled that the distribution of the proceeds of a conspiracy is an act occurring during the pendency of the conspiracy ."

This fact is indeed "well settled." But is it right? The theory behind admitting co-conspirator statements is that a defendant's co-conspirator is his agent, meaning that his statements are, in effect, made on the defendant's behalf. In this sense, Rule 801(d)(2)(E) is an offshoot of Rule 801(d)(2)(D), which allows for the admission of statement's made by an agent/employee.

So, let's push that analogy. Assume that Dan hires Carl to sell lemonade at his lemonade stand, with the agreement being that Dan will pay Carl 10% of the proceeds. After a fast and furious day of selling lemonade, Dan thanks Carl for his work and says that he's going to total day's take and pay Carl his 10% tomorrow. If Carl makes statements later that night or the next morning before he is paid, is he still Dan's agent/employee? I don't think so.

In other words, in a typical "hired help" employment situation, I would think that the agency relationship ends when the task is completed, whether that task involves selling lemonade or doing yard work. And I wouldn't think the relationship continues until the "hired help" has been paid even though the "central purpose" of the agency relationship is to make money from the venture?

But what does everyone else think? In the "hired help" situation, is the help the employer's agent until he's paid? And, if not, is there a reason to treat a co-conspirator relationship differently than an employer-employee relationship?



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