In many criminal cases, the government has charged the defendant with a conspiracy count, alleging that he or she conspired with others to commit a crime or crimes. In such cases, the government often seeks to admit “co-conspirator statements,” i.e., out-of-court statements made by the defendant’s alleged co-conspirators. To get around the rule against hearsay, the government often relies on Federal Rule of Evidence 801(d)(2)(E), which says that a co-conspirator’s statements made “during and in furtherance of the conspiracy” are not hearsay. Fed. R. Evid. 801(d)(2)(E).
Recently, in United States v. Amede, No. 18-11172, — F.3d —-, 2020 WL 5951401, at *7 (11th Cir. Oct. 8, 2020), the Eleventh Circuit again confronted a timing question when it comes to such co-conspirator statements. Specifically, if the co-conspirator made the statement before the defendant joined the conspiracy, is the statement admissible against the defendant? In the case before the court, the defendant argued that the district court erred when it admitted three recorded phone calls between an alleged co-conspirator and an undercover detective. He argued that “there was no evidence that he was a member of the conspiracy at the time of the three recorded phone calls because he was never named during those calls and was not yet known to law enforcement.”
The Eleventh Circuit rejected the argument, holding that the timing argument was irrelevant. The Court explained:
“[A] co-conspirator’s declaration made in the course and in furtherance of a conspiracy is admissible against a co-conspirator, even one who may have joined the conspiracy after the statement was made . . . . And [defendant] does not deny that the statements Chang made to Detective Gandarillas during these phone calls were made during the course and in furtherance of the drug conspiracy. So, even if [defendant] did not join the drug conspiracy until after these phone calls were made, Chang’s statements therein were still admissible against [defendant].”
In short, if you are looking to challenge the admissibility of a co-conspirator statement, you should be aware of the potential limitations to such challenges.
If you’re interested in reading the full opinion, click on the link below.
https://cases.justia.com/federal/appellate-courts/ca11/18-11172/18-11172-2020-10-08.pdf?ts=1602187287
