U.S. v. Perez

Decision Date30 March 1993
Docket NumberNo. 90-4149,90-4149
Citation989 F.2d 1574
Parties36 Fed. R. Evid. Serv. 939 UNITED STATES of America, Plaintiff-Appellee, v. Oscar J. PEREZ, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

David F. Cunningham of White, Koch, Kelly & McCarthy, P.A., Santa Fe, NM (David L. Grindstaff, Salt Lake City, UT, on the brief), for defendant-appellant.

Wayne T. Dance, Asst. U.S. Atty. (David L. Jordan, U.S. Atty., with him on the Before MCKAY, Chief Judge, LOGAN, SEYMOUR, MOORE, ANDERSON, TACHA, BALDOCK, BRORBY, EBEL, and KELLY, Circuit Judges.

brief), Salt Lake City, UT, for plaintiff-appellee.


SEYMOUR, Circuit Judge.

Oscar Perez was convicted by a jury of conspiring to distribute cocaine and of possessing cocaine with intent to distribute. He appealed, contending that the evidence was insufficient to support his convictions; that he was entrapped as a matter of law; that the government's outrageous conduct violated his due process rights; and that the trial court committed reversible error in admitting hearsay statements of alleged coconspirators. A panel of this court rejected all of these arguments except Mr. Perez' contention that reversible error arose from the admission of the challenged hearsay statements. See United States v. Perez, 959 F.2d 164 (10th Cir.1992) (Perez I ). Applying our opinion in United States v. Radeker, 664 F.2d 242, 244 (10th Cir.1981), the panel held that a new trial was required because the lower court had admitted this evidence without making the findings required to qualify the statements for admission under Fed.R.Evid. 801(d)(2)(E). See Perez I, 959 F.2d at 167-68.

The government petitioned for rehearing en banc, urging us to reconsider Radeker. We granted the petition, see United States v. Perez, 975 F.2d 677 (10th Cir.1992), and we now hold that the per se reversible-error rule established in Radeker should be modified as set out below. Accordingly, we vacate Part II of Perez I, 959 F.2d at 167-68, and replace it with the following discussion of the coconspirator hearsay issue. In all other respects the panel opinion is affirmed.


The background and development of the coconspirator hearsay rule is helpful to our analysis. As codified by the Federal Rules of Evidence, the coconspirator hearsay rule provides that an out-of-court statement by a coconspirator is not hearsay if it 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).

Before admitting a co-conspirator's statement over an objection that it does not qualify under Rule 801(d)(2)(E), a court must be satisfied that the statement actually falls within the definition of the Rule. There must be evidence that there was a conspiracy involving the declarant and the nonoffering party, and that the statement was made "during the course and in furtherance of the conspiracy."

Bourjaily v. United States, 483 U.S. 171, 175, 107 S.Ct. 2775, 2778, 97 L.Ed.2d 144 (1987). The offering party must prove these preliminary facts by a preponderance of the evidence. See id. at 176, 107 S.Ct. at 2779.

The most commonly accepted rationale for admitting this species of hearsay rests on the fiction of the agency theory of conspiracy. See, e.g., United States v. Pallais, 921 F.2d 684, 687-88 (7th Cir.1990), cert. denied, --- U.S. ----, 112 S.Ct. 134, 116 L.Ed.2d 101 (1991); Fed.R.Evid. 801(d)(2)(E) advisory committee's note; 4 J. Weinstein & M. Berger, Weinstein's Evidence p 801(d)(2)(E) at 801-308 to -311 (1992) (Weinstein's Evidence ). Under the agency theory, "each member of a conspiracy is the agent of each of the other conspirators whenever he is acting--including speaking--to promote the conspiracy (hence the requirement that the statement be in furtherance of the conspiracy)." Pallais, 921 F.2d at 687.

The drafters of the Model Code of Evidence in 1942 eliminated the "in furtherance" requirement, requiring only that the coconspirator statement be "relevant" to the conspiracy and made during its existence. Model Code of Evidence Rule 508(b) (1942). However, the drafters of the Federal Rules of Evidence chose to retain the traditional, more limited agency approach towards conspirators' statements "because they adjudged it a useful device for protecting defendants from the very real dangers of unfairness posed by conspiracy prosecutions." Weinstein's Evidence at 801-310 (citing Levie, Hearsay & Conspiracy, 52 Mich.L.Rev. 1159, 1167 (1954)).

The requirements that the statement be both "during the course" and "in furtherance of" the conspiracy are therefore not only compelled by the agency fiction, they are in fact the reason why the drafters of the federal rule incorporated the agency approach into Rule 801(d)(2)(E). Thus, "Rule 801(d)(2)(E) is a 'limitation on the admissibility of co-conspirators' statements that is meant to be taken seriously.' " United States v. Johnson, 927 F.2d 999, 1001 (7th Cir.1991) (quoting Garlington v. O'Leary, 879 F.2d 277, 283 (7th Cir.1989) (emphasis in original)). The "in furtherance" requirement embodies the drafters' "desire to strike a balance between the great need for conspirators' statements in combating undesirable criminal activity which is inherently secretive and difficult of proof, and the need to protect the accused against idle chatter of criminal partners as well as inadvertently misreported and deliberately fabricated evidence." Weinstein's Evidence at 801-311 to -312 (footnotes omitted).

The drafters' decision to retain the "in furtherance" requirement in adopting Rule 801(d)(2)(E) and to reject " 'the Model Code--Uniform Rule approach [which scrapped the requirement] should be viewed as mandating a construction of the "in furtherance" requirement protective of defendants, particularly since the Advisory Committee was concerned lest relaxation of this standard lead to the admission of less reliable evidence.' " United States v. Lang, 589 F.2d 92, 100 (2d Cir.1978) (quoting 4 Weinstein's Evidence p 801(d)(2)(E) at 801-147 (1977)). A number of circuits have consequently construed this requirement strictly. See e.g., United States v. Nazemian, 948 F.2d 522, 529 (9th Cir.1991), cert. denied, --- U.S. ----, 113 S.Ct. 107, 121 L.Ed.2d 65 (1992); Garlington v. O'Leary, 879 F.2d 277, 283 (7th Cir.1989); United States v. Urbanik, 801 F.2d 692, 698 (4th Cir.1986); but see United States v. Kocher, 948 F.2d 483, 485 (8th Cir.1991) ("in furtherance" language to be broadly construed); United States v. Beale, 921 F.2d 1412, 1422 (11th Cir.) (same), cert. denied, --- U.S. ----, ----, 112 S.Ct. 99, 100, 116 L.Ed.2d 71, 71 (1991).

We applied the "in furtherance" test narrowly in United States v. Wolf, 839 F.2d 1387 (10th Cir.), cert. denied, 488 U.S. 923, 109 S.Ct. 304, 102 L.Ed.2d 323 (1988), when we held that statements are not in furtherance of the conspiracy if they are "mere narratives", that is " 'statements relating to past events, even those connected with the operation of the conspiracy where the statement serves no immediate or future conspiratorial purpose,' " id. at 1393 (quoting 4 D. Louisell & C. Mueller, Federal Evidence § 427 (1980)); see also Johnson, 927 F.2d at 1002; Urbanik, 801 F.2d at 698. "Conversely, statements are admissible under the coconspirator exception if they are intended ' "to promote the conspiratorial objectives." ' " Wolf, 839 F.2d at 1393 (quoting United States v. Reyes, 798 F.2d 380, 384 (10th Cir.1986)).

Examples of statements which may be found to satisfy the "in furtherance" requirement include

statements made to induce enlistment or further participation in the group's activities; statements made to prompt further action on the part of conspirators; statements made to reassure members of a conspiracy's continued existence; statements made to allay a co-conspirator's fears; and statements made to keep co-conspirators abreast of an ongoing conspiracy's activities.

Nazemian, 948 F.2d at 529. "When inquiring whether a statement was made 'in furtherance of' a conspiracy, we do not focus on its actual effect in advancing the goals of the conspiracy, but on the declarant's intent in making the statement." Id. No talismanic formula exists for ascertaining whether a particular statement was intended by the declarant to further the conspiracy and is therefore admissible in accordance with the agency theory of conspiracy. See Wolf, 839 F.2d at 1393. To the contrary, this determination must be made by examining the context in which the challenged statement was made. See Weinstein's Evidence at 801-318 to -323.

The requirement that a statement be made "during the course" of the conspiracy is likewise a product of the drafters' decision to base Rule 801(d)(2)(E) on the agency theory. The drafters thus stated their intent that the Rule be "consistent with the position of the Supreme Court in denying admissibility to statements made after the objectives of the conspiracy have either failed or been achieved." Fed.R.Evid. 801(d)(2)(E) advisory committee's note (citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949)). In Krulewitch, the Court rejected the government's argument that statements made after the main objective of the conspiracy had been achieved were nonetheless admissible if made to conceal the crime. See 336 U.S. at 442-43, 69 S.Ct. at 717-18.

The Court subsequently explained and reaffirmed its holding in Krulewitch:

The crucial teaching of Krulewitch is that after the central criminal purposes of a conspiracy have been attained, a subsidiary conspiracy to conceal may not be implied from circumstantial evidence showing merely that the conspiracy was kept a secret and that the conspirators took care to cover up their crime in order to escape detection and punishment. As was there stated, allowing such a conspiracy to conceal...

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