U.S. v. James, s. 77-5188

• Citation: 590 F.2d 575
• Decision Date: 12 February 1979
• Docket Number: 77-5271,Nos. 77-5188,s. 77-5188
• Parties: 3 Fed. R. Evid. Serv. 785 UNITED STATES of America, Plaintiff-Appellee, v. Donald JAMES and David Anthony Butler, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Henry SMITH and Kenneth Wayne Whitmore, Defendants-Appellants. Fifth Circuit
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 575

590 F.2d 575

3 Fed. R. Evid. Serv. 785

UNITED STATES of America, Plaintiff-Appellee, v. Donald JAMES and David Anthony Butler, Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee, v. Henry SMITH and Kenneth Wayne Whitmore, Defendants-Appellants.

Nos. 77-5188, 77-5271.

United States Court of Appeals,Fifth Circuit.

Feb. 12, 1979.

Frank J. Pettrells, Atlanta, Ga., for David Anthony Butler and Donald james.

P. Bruce Kirwan, Federal Public Defender, John R. Martin, Asst. Federal Public Defender, Atlanta, Ga. (Court-appointed), for Smith.

Murray M. Silver, Atlanta Ga., for Whitmore.

William L. Harper, U. S. Atty., William L. McCulley, Atlanta, Ga., Ann T. Wallace, Joseph S. Davies, Jr., Katherin Winfree, Attys., Dept. of Justice, Appellate Section, Criminal Div., Washington, D. C., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Georgia.

Before BROWN, Chief Judge, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN, and VANCE, Circuit Judges. ^*

CHARLES CLARK, Circuit Judge:

The court en banc on its own motion has reconsidered this case following the panel decision reported at 576 F.2d 1121 because of possible conflicts between that decision and prior decisions of this court touching on the admission of out-of-court statements by alleged coconspirators and because of the importance of the question at issue.

The panel opinion fully stated the facts and circumstances of the case and the conclusion of the court with respect to all matters at issue through that part of the opinion denominated "IV. Miscellaneous," 576 F.2d 1123-27, second line. The court en banc, therefore, approves and adopts those parts of the panel opinion for the purpose of dealing with the matters discussed. The remainder of the panel opinion denominated "V. Coconspirator Statements" is withdrawn and the following is substituted in its place:

V. Coconspirator Statements

Under a long-recognized exception to the hearsay rule, a statement made by one member of a conspiracy during the course of and in furtherance of the conspiracy may be used against other members of the conspiracy if certain conditions are met. Meeting these conditions is necessary because of the court's recognition of the danger of prejudice to the defendant which would result if the jury were to rely upon coconspirator statements without first addressing and deciding the admissibility question.

(A) Judge or Jury?

Present practice calls for the judge and the jury to share the responsibility for determining whether these conditions have been met. In United States v. Apollo, 476 F.2d 156 (5th Cir. 1973), we held that the judge's role is to make a preliminary determination whether the government has presented sufficient evidence, independent of the hearsay itself, to support a finding by the jury that the alleged conspiracy existed and that the declarant and the defendant against whom the statement is offered were members of that conspiracy. This is the "prima facie case" standard enunciated in United States v. Oliva, 497 F.2d 130 (5th Cir. 1974), and followed in subsequent decisions, See, e. g., United States v. Rodriguez, 509 F.2d 1342 (5th Cir. 1976); United States v. Tyler, 505 F.2d 1329 (5th Cir. 1975). If the judge is satisfied that this test has been met, then under existing law the jury is instructed, both when the hearsay is introduced and at the final charge, that it may consider the hearsay against a particular defendant only if it first finds that the conspiracy existed, that the declarant and the defendant were members of it, and that the statement was made during the course of and in furtherance of the conspiracy. See, e. g., United States v. Lawson, 523 F.2d 804, 806 (5th Cir. 1976); United States v. Fontenot, 483 F.2d 315, 324-25 (5th Cir. 1973); Myers v. United States, 377 F.2d 412, 417-19 (5th Cir. 1967).

This case presents the first opportunity for us to consider the effect of the Federal Rules of Evidence upon our present practice. ¹ Here, the appellants moved for a pretrial hearing outside the presence of the jury in order to permit the trial judge to determine the admissibility of coconspirator statements. In support of their motion, they argued that Rule 104(a) of the Federal Rules of Evidence allocated to the judge alone the responsibility for deciding the admissibility of such statements and that the complexity of their case called for this to be accomplished at a separate nonjury hearing, as permitted under Rule 104(c). The district court denied the motion, asserting the cautionary Apollo instructions would adequately protect the defendants. Faced with this denial of their motion, the defendants requested and received Apollo instructions at trial. They now ask us to reverse their convictions on the basis of the denial of their motion. We believe this is an appropriate opportunity to overrule Apollo and to establish a new standard and procedure for handling the admissibility of coconspirator statements in criminal conspiracy trials.

Under the Federal Rules of Evidence, which became effective July 1, 1975, a statement is not hearsay if it is offered against a party and is "a statement by a coconspirator of a party during the course and in furtherance of the conspiracy." Fed.R.Evid. 801(d)(2)(E). While this definitional section of the Rules removes coconspirator statements from the realm of hearsay, admissibility still depends upon the proof of the same facts as required previously. Thus, there must be a conspiracy, the statement must be made during the course of and in furtherance of the conspiracy, and the declarant and the defendant must be members of the conspiracy. ² However, Rule 801 provides no guidance on whether the judge or the jury is to decide that these conditions have been satisfied.

To resolve that question, we must look to Rule 104, which delineates the functions of judge and jury in the determination of preliminary questions of fact. The relevant portions of Rule 104 provide:

(a) Questions of admissibility generally. Preliminary questions concerning the qualifications of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.

(b) Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

(c) Hearing of jury. Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require or, when an accused be a witness, if he so requests.

The rule thus adopts the orthodox position that the judge alone decides preliminary questions as to the competence of evidence, and the jury decides preliminary questions as to the conditional relevancy of the evidence.

The language of Rule 104 does not conclude our inquiry, however, for neither that rule nor the Advisory Committee's Notes inform us whether coconspirator's statements are to be dealt with under Rule 104(a) as questions of admissibility or under Rule 104(b) as questions of conditional relevancy.

We must look beyond the language of the rule to its underlying policies to determine who should decide the preliminary questions and what standard of proof should control the decision on admissibility. A rule that puts the admissibility of coconspirator statements in the hands of the jury does not avoid the danger that the jury might convict on the basis of these statements without first dealing with the admissibility question. It was this same danger which motivated the Supreme Court to hold in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), that a criminal defendant is entitled to have a "reliable and clear-cut determination of the voluntariness of (his) confession, including the resolution of disputed facts upon which the voluntariness issue may depend," made by someone other than the jury which is to determine his guilt or innocence. ³ Id. at 391, 84 S.Ct. at 1788, 12 L.Ed.2d at 924.

We are therefore convinced that the preliminary questions of conditional relevance envisioned by Rule 104(b) are those which present no such danger of prejudice to the defendant. They are questions of probative force rather than evidentiary policy. They involve questions as to the fulfillment of factual conditions which the jury must answer.

The admissibility of a coconspirator's declarations in a conspiracy trial, however, does pose problems precisely because they are relevant. Such evidence endangers the integrity of the trial because the relevancy and apparent probative value of the statements may be so highly prejudicial as to color other evidence even in the mind of a conscientious juror, despite instructions to disregard the statements or to consider them conditionally. As a result, such statements should be evaluated by the trained legal mind of the trial judge.

Rule 104 has now made it clear that we must revise the procedures adopted in Apollo for testing the trustworthiness of coconspirator statements that is for determining whether a conspiracy existed and whether the defendant and the declarant were members of it. Because the Rule 104(b) exception is inappropriate to test the admissibility of such declarations, we hold that Rule 104(a) requires that the judge alone make the determination of the admissibility of the evidence. The jury is to play no role in determining the admissibility of the statements.

The United States, in its brief and on oral argument, urges this court to replace the Apollo rule by construing...