U.S. v. Radeker

• Decision Date: 16 November 1981
• Docket Number: No. 79-2139,79-2139
• Citation: 664 F.2d 242
• Parties: 9 Fed. R. Evid. Serv. 709 UNITED STATES of America, Plaintiff-Appellee, v. Joseph F. RADEKER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 242

664 F.2d 242

9 Fed. R. Evid. Serv. 709

UNITED STATES of America, Plaintiff-Appellee, v. Joseph F. RADEKER, Defendant-Appellant.

No. 79-2139.

United States Court of Appeals Tenth Circuit.

Nov. 16, 1981.

Stephen M. Munsinger of Keene, Munsinger & Stuckey, Denver, Colo., for defendant-appellant.

John R. Osgood, Asst. U. S. Atty., Oklahoma City, Okl. (James E. Edmondson, U. S. Atty., Muskogee, Okl., with him on the brief), for plaintiff-appellee.

Before SETH, Chief Judge, DOYLE and McKAY, Circuit Judges.

McKAY, Circuit Judge.

Defendant was tried in September 1979, nearly a year after this court in United States v. Andrews, 585 F.2d 961 (10th Cir. 1978), held that under Fed.R.Evid. 104(a) and (b) ¹ and 801(d)(2)(E) ² a coconspirator's hearsay statement is not admissible unless the trial judge finds three facts by a preponderance of the evidence. The trial judge must determine that the conspiracy existed, that the declarant and the particular defendant were members of the conspiracy, and that the statement was made during the course of and in furtherance of the conspiracy.

Defendant properly objected to certain testimony as hearsay. The government concedes that "the court failed to then or later make a specific finding on the record that the government had carried its burden under the applicable rules." Brief of Appellee at 13. There is no support in the Federal Rules of Evidence or in Andrews for the proposition that a trial court can avoid its responsibility to make such a finding on the ground that the defendant did not request it.

Fed.R.Evid. 104(b) provides that the testimony is simply not admissible unless the condition is fulfilled: "the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition." (Emphasis added).

Andrews held that "testimony, otherwise hearsay, offered against a coconspirator cannot be admitted unless the existence of the conspiracy is established by independent evidence." 585 F.2d at 966 (emphasis added). Andrews makes clear that hearsay testimony by an alleged coconspirator is inadmissible if the defendant properly objects to it. It becomes admissible only if the government carries its burden of proving, and the trial court specifically finds, the three facts mentioned above.

United States v. Petersen, 611 F.2d 1313 (10th Cir. 1979), cert. denied, 447 U.S. 905, 100 S.Ct. 2985, 64 L.Ed.2d 854 (1980), although decided after the trial of this case, explained the meaning of Andrews.

(W)e held, in Andrews, that such statements could be admitted, at the close of all evidence and prior to submission of the case to the jury, only if the trial judge determines that it is "more likely than not" that the conspiracy existed, that the declarant and the defendant against whom the conspirator's statement is offered were members of that conspiracy, and that the statement was made during the course and in furtherance of the conspiracy.

611 F.2d at 1327 (emphasis added). We further explained that

(o)ur Andrews holding was simply that a district court judge, under Rule 104 of the Federal Rules of Evidence, must determine, prior to admission of the hearsay statement, as a factual matter, that the Government has shown by independent evidence that it is more likely than not that (the three facts described above existed). ³

Id. at 1330.

Fed.R.Evid. 104, as Andrews and Petersen explain, explicitly conditions the admission of such statements upon a showing by the government and a specific finding by the trial court of the three facts described above. Nowhere does either opinion suggest that these duties of the government and the trial court arise only if the defendant specifically requests them. These obligations arose in this case when defendant objected to the testimony on the proper ground: hearsay. The government, as the party seeking to introduce the testimony, had the burden to see that the conditions were satisfied. We have recently reiterated and reinforced these rules governing the conspiracy exception to the hearsay rule. United States v. Stipe, 653 F.2d 446 (10th Cir. 1981).

We have also considered other cited cases and conclude that they do not support the government's position. In United States v. Brewer, 630 F.2d 795 (10th Cir. 1980), the issue was not raised on appeal, id. at 801, and therefore the court's discussion of that issue was dicta. In United States v. Rios, 611 F.2d 1335, 1340 (10th Cir. 1979), we held that Andrews did not apply because the trial was prior to Andrews. United States v. Owen, 536 F.2d 340 (10th Cir. 1976), has nothing to do with hearsay. United States v. Kramer, 521 F.2d 1073 (10th Cir. 1975), was decided before the effective date of the Federal Rules of Evidence and before Andrews.

The "hazard from loose application of rules of evidence" in conspiracy cases, Krulewitch v. United States, 336 U.S. 440, 453, 69 S.Ct. 716, 723, 93 L.Ed. 790 (1949) (Jackson, J., concurring), is present in this case, and makes reversal necessary.

REVERSED AND REMANDED for a new trial.

SETH, C. J., does not concur in this opinion and filed a separate dissent.

SETH, Chief Judge, dissenting:

This circuit for an extended period of time has consistently followed the generally accepted doctrine that statements of co-conspirators are admissible if made during the course of the conspiracy and in furtherance of the conspiracy. We said in Minner v. United States, 57 F.2d 506 (10th Cir. 1932):

"The acts and declarations of a conspirator to be admissible against his co-conspirators must occur during the existence of the conspiracy and must be in furtherance of its objects. Brown v. United States, (150 U.S. 93, 14 S.Ct. 37, 37 L.Ed. 1010); Lane v. United States, (34 F.2d 413 (8th Cir.))."

We had made a similar statement in Burns v. United States, 279 F. 982 (8th Cir.). In Bartlett v. United States, 166 F.2d 920 (10th Cir. 1948), we said:

"However, to render evidence of the acts or declarations of an alleged conspirator admissible against an alleged co-conspirator, the existence of the conspiracy must be shown and the connection of the latter therewith established by independent evidence.... The acts or declarations of a conspirator, prior to the formation of the conspiracy or after its termination are not admissible against his co-conspirators."

And in Glover v. United States, 306 F.2d 594 (10th Cir.):

"To render evidence of the acts or declarations of an alleged conspirator admissible against an alleged co-conspirator, the existence of the conspiracy must be shown and the connection of the latter therewith established by independent evidence."

See also Mares v. United States, 383 F.2d 811 (10th Cir.); Beckwith v. United States, 367 F.2d 458 (10th Cir.); and Tripp v. United States, 295 F.2d 418 (10th Cir.). In United States v. Kramer, 521 F.2d 1073 (10th Cir.), we repeated the same formulation of the rule. The doctrine is set out in Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 38 S.Ct. 65, 62 L.Ed. 260.

United States v. Montgomery, 582 F.2d 514 (10th Cir.), was decided after the effective date of the Federal Rules of Evidence. We there considered the matter again and after referring to Rule 801(d)(2)(E) we quoted from United States v. Pennett, 496 F.2d 293 (10th Cir.), as follows:

"Hearsay statements of co-conspirators may be admitted against one another whenever the existence of the conspiracy is established by independent evidence.... Under Mares, such statements must be made during the conspiracy in order to be admissible. We followed and expanded this general rule in United States v. Coppola, 479 F.2d 1153 (10th Cir. 1973), wherein we noted that statements of co-conspirators made during the 'continuation' of the conspiracy are admissible. See also Green v. United States, 386 F.2d 953 (10th Cir. 1967). Such statements must, of course, be made in 'furtherance' of the conspiracy."

In Montgomery we also considered Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476. Our early enunciation of the rule was in accordance with decisions of the Supreme Court. See Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213, and the references in Montgomery. We have also applied the rule, although no conspiracy may have been charged, in United States v. Jones, 540 F.2d 465 (10th Cir.), and Mares v. United States, 383 F.2d 811 (10th Cir.), as have other circuits.

We repeated the same doctrine in United States v. Andrews, 585 F.2d 961 (10th Cir.), a case emphasized by the majority. Andrews like Montgomery followed the adoption of the Federal Rules of Evidence. Later in United States v. Stipe, 653 F.2d 446 (10th Cir.), we said: "This has been the law for many years but it has not been strictly enforced."

In a footnote in United States v. Watson, 594 F.2d 1330 (10th Cir.), we referred to Andrews and Rule 104 and noted that the rule places the responsibility on the trial judge for determining preliminary questions as to the admissibility of statements of co-conspirators. We repeated the standards described in the pre-rule cases described above.

In United States v. Rios, 611 F.2d 1335 (10th Cir.), the doctrine is repeated and we stated that although Andrews was not to be applied retroactively the trial court could have applied the new rules between the time of their effective date and Andrews. We there indicated that either the judge or the jury should have determined the substantive elements but neither had done so.

With the advent of 801(d)(2)(E) substantive elements of the doctrine did not change in this circuit. The Committee's Note as to this portion of the rule generally states:

"The limitation upon the admissibility of statements of co-conspirators to those made 'during the course and in furtherance of the conspiracy' is in the accepted pattern."

The procedure did change however in that under Rule 104(a), "(p)reliminary questions concerning ... or the admissibility of...