When Does a Conspiracy Exist?
The essence of conspiracy is the agreement to commit an illegal act. Iannelli v. United States, 420 U.S. 770, 43 L.Ed.2d 616, 95 S.Ct. 1284 (1975); United States v. Snider, 720 F.2d 985 (8th Cir. 1983), cert. denied, 465 U.S. 1107, 80 L.Ed.2d 142, 104 S.Ct. 1613 (1984). The agreement must be between two or more persons. United States v. Moss, 591 F.2d 428 (8th Cir. 1979). A government agent or informant cannot be the only other member of the conspiracy. See, e.g., United States v. Mahkimetas, 991 F.2d 379, 383 (7th Cir. 1993) (joining nine other circuits, the court noted that a conspiracy "may [not] be formed between a criminally-motivated person and a government agent or informer"); Montgomery v. United States, 853 F.2d 83 (2nd Cir. 1988); United States v. Escobar de Bright, 742 F.2d 1196 (9th Cir. 1984).
Most federal statutes require that at least one of the co-conspirators commit an overt act during the course and in furtherance of the unlawful agreement. For example, an overt act is required for a conspiracy under 18 U.S.C. §371 (to commit offense against or to defraud the United States), 18 U.S.C. §1117 (to commit murder); 18 U.S.C. §1201 (kidnapping); and 18 U.S.C. §1751 (Presidential assassination). An over act is not required for 18 U.S.C. §241 (violate civil rights); 18 U.S.C. §2385 (advocate overthrow of government); 21 U.S.C. §846 (drugs); and 21 U.S.C. §963 (RICO). See generally, Grunewald v. United States, 353 U.S. 391, 1 L.Ed.2d 931, 77 S.Ct. 963 (1957); Blumenthal v. United States, 332 U.S. 539, 92 L.Ed. 154 68 S.Ct. 248 (1947). Also see United States v. Shabani, 63 U.S.L.W. 4001 (U.S. Nov. 1, 1994) (a federal drug conspiracy in violation of 21 U.S.C. §846 does not require that any co-conspirator commit an overt act). If the statute requires an overt act and there is none, an essential element of this claimed conspiracy is missing and Rule 80(d)(2)(E) would not apply.
Not Members of the Conspiracy
The proponent of the evidence must prove that your client and the declarant knew of the conspiracy, purposefully associated themselves with it and affirmatively cooperated in it, or at least agreed to cooperate in the objective of the conspiracy. United States v. Cox, 942 F.2d 1282 (8th Cir. 1991), cert. denied, 117 L.Ed.2d 520, 112 S.Ct. 1298 (1992); United States v. Braidlow, 806 F.2d 781 (8th Cir. 1986); United States v. Casperson, 773 F.2d 216, 221 (8th Cir. 1985). Mere knowledge of the existence of a conspiracy or mere presence or association with individuals engaged in illegal conduct is not sufficient to establish that a part knowingly contributed efforts in furtherance of a conspiracy and thus participated in a conspiratorial agreement. Casperson, 773 F.2d at 221; United States v. Soto, 716 F.2d 989 (2nd Cir. 1983) (mere presence, even with knowledge that a crime is being committed there, is not sufficient to establish that defendant was a member of the conspiracy).
Single acts, without more, are also insufficient to link a defendant to a conspiracy. United States v. Rivera-Santiago, 872 F.2d 1073 (1st Cir. 1989). See also United States v. Arvanitis, 902 F.2d 489 (7th Cir. 1990) (statement by one of the RICO conspirators was improperly admitted against the defendant because proof that the defendant was a purchaser of the RICO conspiracy's services was not sufficient to establish the defendant's participation in that conspiracy); United States v. DeLutis, 722 F.2d 902 (1st Cir. 1983) (court reversed defendant's convictions for conspiracy to distribute cocaine and conspiracy to possess with intent to distribute cocaine because evidence of a single isolated act by the defendant was insufficient to establish that he had knowledge of the conspiracy); United States v. DeNoia, 451 F.2d 979 (2nd Cir. 1971) (mere delivery of heroin to an alleged co-conspirator while carrying a firearm was not enough to convict for conspiracy).
Even if your client or the declarant may have once been members of the conspiracy, if either had withdrawn from the conspiracy by the time the statements were made, then such statements do not fit within Rule 801(d)(2)(E). This applies only to individuals who withdrew from the conspiracy. If the prosecutor seeks to introduce statements of a co-conspirator which were made before your client joined the conspiracy, those statements would still be admissible against your client under Rule 801 (d)(2)(E). "[S]tatements made during the course of and in furtherance of a conspiracy, even in its embryonic stages are admissible against those who arrive late to join a going concern." United States v. Potts, 840 F.2d 368, 372 (7th Cir. 1987), citing United States v. Dial, 757 F.2d 163, 170-71 (7th Cir. Ill.) cert. denied, 474 U.S. 838, 88 L.Ed 2d 95, 106 S.Ct. 116 (1985). To withdraw, a conspirator must act inconsistently with the objective of the conspiracy and communicate to the co-conspirators his intention to withdraw in a manner reasonably likely to reach his co-conspirators. United States v. United States Gypsum Co., 550 F.2d 115, 129 (3rd Cir. 1977), aff'd. 438 U.S. 422, 57 L.Ed.2d 854, 98 S.Ct. 2864 (1978).
Statement Not Made in Furtherance of the Conspiracy
Generally, the nature of the statement as well as the time and circumstances under which it was made are important in determining whether it was made in furtherance of the conspiracy. Although the "in furtherance" language in Rule 801(d)(2)(E) is given a broad constructions. United States v. Krevsky, 741 F.2d 1090 (8th Cir. 1984), it is not enough that the statement "merely inform[s] the listener of the declarant's activities." United States v. Snider, 720 F.2d 985, 992 (8th Cir. 1983), cert. denied, 465 U.S. 1107, 80 L.Ed. 2d 142, 104 S.Ct. 1613 (1984).
A conspirator's casual comments to people, whether outside or inside the conspiracy, would not meet the "in furtherance" requirement if they merely inform the listener of the declarant's activities. Id. at 992, citing United States v. Provenzano, 620 F.2d 985, 1000-01 (3rd Cir.), cert denied, 449 U.S. 889, 66 L.Ed.2d 129, 101 S.Ct. 267 (1980). In Snider, the court found that a co-conspirator's statements to an individual outside the conspiracy merely describing a marijuana-growing farm were not sufficiently "in furtherance of" the conspiracy to qualify for admission under the co-conspirator exception to the hearsay rule. Similarly, in United States v. Bibbero, 749 F.2d 581 (9th Cir. 1984), cert. denied, 471 U.S. 1103, 85 L.Ed.2d 847, 105 S.Ct. 2330 (1985), the Ninth Circuit reversed the defendant's conviction when it concluded that a comment by a co-conspirator attributing the ownership of the marijuana to the defendant was not made in furtherance of the conspiracy. "To come within the co-conspirator exception, the evidence must indicate that the statement furthered the common objectives of the conspiracy...'mere conversation among the conspirators' is not admissible." Id. at 583-84.
Statements consisting of narratives of past activities or statements that are mere "puffing" are not in furtherance of the conspiracy and should not be admitted. Compare United States v. Fielding, 645 F.2d 719 (9th Cir. 1981) with United States v. Lieberman, 637 F.2d 95 (2nd Cir. 1980). Statements that merely "spill the beans" about a conspiracy are not in furtherance of the conspiracy. United States v. Blakey, 960 F.2d 996, 998-99 (11th Cir. Ga. 1992). See also United States v. Means, 695 F.2d 811 (5th Cir. 1983) (government witness testified that, while he was driving a bank president to a meeting with the defendant, the president said that the meeting concerned the bank's application for a new branch and that the defendant would use his influence for them to obtain the charter in exchange for $25,000; held the testimony was inadmissible because the statements were mere "idle conversation" not intended to further the conspiracy).
Statement No Made During the Course of the Conspiracy
Remember: the scope of any conspiracy charged in the indictment does not limit the application of Rule 801(d)(2)(E). United States v. Green, 600 F.2d 154 (8th Cir. 1979) (a statement made referring to "stealing" U.S. Treasury checks was admissible in a prosecution for conspiracy to unlawfully possess and forge checks). The proponent of the evidence may argue that the entire conspiracy encompassed a longer time period than contained in the indictment. Your job is to narrow the time frame of the relevant conspiracy to limit the statements that may be admissible.
Statements made after the completion of the conspiracy are not made during the course of the conspiracy and, therefore, are not admissible under Rule 801(d)(2)(E). See, e.g., United States v. Alonzo, 99 F.2d 1422 (8th Cir. 1993) (convictions reversed because a co-conspirator's statement made while he was cooperating with the police after his arrest had been improperly admitted against the defendants); United States v. Perez-Garcia, 904 F.2d 1534 (11th Cir. 1990) (error to admit co-conspirator's statement made after the declarant and his co-conspirators had been arrested because the conspiracy had terminated by that point); United States v. Silverstein, 737 F.2d 864, 867 (10th Cir. 1984) (trial court committed reversible error by admitting an incriminating statement made several weeks after the victim's death; because a conspiracy ordinarily terminates when its central criminal purposes have been achieved, the statement in issue was made after the conspiracy's termination and thus was not admissible under 801(d)(2)(E)).
Sometimes the statements the prosecutor seeks to introduce were made in an effort to conceal the conspiracy after it ended. In that situation, again argue that these statements were not made during the course of the conspiracy. While there may be a subsidiary conspiracy to conceal the crime after the central purpose has been attained, such a subsidiary conspiracy may not be implied from the circumstantial evidence showing merely that the conspiracy was kept a secret and that the conspirators took care to cover up their crime to escape detection and punishment. Grunewald v. United States, 353 U.S. 391 1 L.Ed.2d 931, 77 S.Ct. 963 (1957). The Grunewald Court noted, however, that when "[t]he successful accomplishment of the crime necessitates concealment," acts of concealment are not properly considered to be within the scope of the original conspiracy. Id. at 405. In United States v. Serrano, 870 F.2d 1 (1st Cir. 1989), the First Circuit reversed the defendant's conviction when the trial court admitted a conspirator's statement made long after the objectives of the alleged conspiracy had either failed or been achieved. The court reasoned that "when the acts of concealment are done after the central objectives are attained, for the purpose only of covering up after the crime, they are inadmissible." Id. at 9.
You may argue that the acts of concealment were not done in furtherance of the main criminal objectives of the conspiracy, but were done after these central objectives had been attained and only for the purpose of covering up after the crime. In that situation, statements made during the concealment stage should be not be admissible against your client under Rule 801(d)(2)(E).
Another possible argument is that more than one conspiracy existed. This may permit you to argue that your client was not a member of the relevant conspiracy, that the statement was not made during the course of the relevant conspiracy and/or that the statement was not made in furtherance of the relevant conspiracy. If you establish the existence of more than one conspiracy, only co-conspirator statements during the course and in furtherance of the conspiracy involving your client are admissible against your client. United States v. Jackson, 696 F.2d 578, 584-85 (8th Cir. 1982), cert. denied, 460 U.S. 1073, 75 L.Ed.2d 952, 103 S.Ct. 1531 (1983).
The character and effect of a conspiracy cannot be judged by dismembering it and viewing its separate parts, but only by looking at it as a whole. United States v. Patten, 226 U.S. 525, 57 L.Ed. 333, 33 S.Ct. 141 (1913). Multiple conspiracies may involve certain parties common to all the conspiracies, but their distinguishing feature is that they lack an overall goal or common purpose; rather, each agreement has its own distinct illegal end, or "separate adventures of like character." Kotteakos v. United States, 328 U.S. 750, 769, 90 L.Ed. 1557, 66 S.Ct. 1239 (1946) (multiple conspiracies found in violation of the National Housing Act).
Thus, in United States v. North, 900 F.2d 131 (8th Cir. 1990), the defendant's conspiracy with another individual was limited to their acts of supplying drugs to each other, and not to a general scheme to distribute drugs in the Northern District of Iowa as the government alleged. Drug distribution by the other individual was a separate conspiracy where the defendant had no knowledge of, received no benefit from, and did not participate in the other individual's drug distribution. Id. at 133.
The Ninth Circuit has indicated that if no evidence exists other than a single sale by a defendant, the defendant could be considered an independent seller having nothing to do with the larger conspiracy. United States v. Eubanks, 591 F.2d 513 (9th Cir. 1979), quoting United States v. Reina, 242 F.2d 302, 306 (2nd Cir.), cert. denied, 354 U.S. 913, 1 L.Ed.2d 1427, 77 S.Ct 1294 (1957). But see United States v. Nunez, 877 F.2d 1470, 1473 (10th Cir.), cert. denied, 493 U.S. 981, 107 L.Ed.2d 515, 110 S.Ct. 513, 110 S.Ct. 514 (1989); United States v. Lewis, 759 F.2d 1316, 1345 (8th Cir. 1985); and United States v. Heath, 580 F.2d 1011, 1022 (10th Cir. 1978), cert. denied, 439 U.S. 1075, 59 L.Ed.2d 42, 99 S.Ct. 850 (1979) (when large quantities of drugs are involved, each major buyer is presumed to know that he is part of a wide-ranging venture because his efforts will affect the supplies and profits of the entire venture). Obviously, if you are seeking to introduce the co-conspirator's statement, you need to reverse the arguments contained in this section.
~ Everytrial Criminal Defense Resource Book
Nancy Hollander and Barbara E. Bergman, 1995
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