Opinion
CRIMINAL ACTION NO. 01-069.
May 3, 2001.
ORDER
Before this Court is a Motion for Pre-Trial Hearing on Admissibility of Declarations of Co-Conspirators filed on behalf of Defendant, Linda Vo. The Defendant requests a pre-trial hearing for a determination of the applicability of the hearsay exception allowing declarations and acts by one co-conspirator to be admitted against other co-conspirators if made within and pursuant to the confines of the conspiracy. Vo brings this request pursuant to Rule 801(d)(2)(E) of the Federal Rules of Evidence and United States v. James, 576 F.2d 1121 (5th Cir. 1978).
I. LAW AND ANALYSIS:
Rule 801(d)(2)(E) of the Federal Rules of Evidence provides that a statement is not hearsay if the statement is offered against a party to the action and is a statement of a conspirator of a party made during the course and in furtherance of the conspiracy. See Fed.R.Evid. 801(d)(2)(E). Therefore, for a statement to be admissible under Rule 801(d)(2)(E), "there must be evidence that there was 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 admissibility of such statements pursuant to Rule 801(d)(2)(E) is a preliminary question for the court to decide. See Fed.R.Evid. 104(a); Bourjaily, 483 U.S. at 175.
In the present case, the Defendant requests that the Court conduct a pretrial hearing pursuant to United States v. James, 576 F.2d 1121 (5th Cir. 1978) and 590 F.2d 575 (5th Cir. 1979) ( en banc), to decide the admissibility of such statements. In James, the Fifth Circuit held that co-conspirator statements are admissible only if the prosecution proves, by a preponderance of the evidence, "(1) that a conspiracy existed, (2) that the co-conspirator and the defendant against whom the co-conspirator's statement is offered were members of the conspiracy, and (3) that the statements were made during the course and in furtherance of the conspiracy." James, 590 F.2d at 582. Additionally, the Supreme Court ruled that the hearsay statements themselves can be considered in conjunction with other evidence of conspiracy to satisfy this predicate for admission. See Bourjaily, 483 U.S. at 175.
With regard to the procedure for deciding the admissibility of co-conspirator statements, the Fifth Circuit has made it clear that pretrial hearings on the matter are not required. See United States v. Fragoso, 978 F.2d 896, 899 (5th Cir. 1992). Rather, Courts are allowed to carry James motions "through trial or at least through presentation of the government's case until a determination fo the existence of the Rule 801(d)(2)(E) predicate facts can be appropriately made." Id. at 900 (citing United States v. Lechuga, 888 F.2d 1472, 1479 (5th Cir. 1989)). For example, in some cases, the co-conspiratory statements are conditionally admitted at trial subject to a subsequent determination as to whether the government has established the requisite Rule 801(d)(2)(E) predicate. See e.g., United States v. Gonzalez-Balderas, 11 F.3d 1218, 1224 (5th Cir. 1994). However, as the Fragoso court explained, "[i]n some cases, of course, judicial economy suggests that express findings on admissibility should be made before the coconspirator statements are introduced." Id. (citations omitted). Nevertheless, such is a matter "committed to the broad discretion of the trial court." Id.
In the present case, the Defendant's Motion does not present this Court with any reason that would necessitate holding a pre-trial James hearing. Furthermore, this Court is of the opinion that doing so would run the risk of requiring the Court to essentially try the ease twice, which would be both wasteful and unnecessary. Accordingly,
IT IS ORDERED that Defendant Vo's Motion for a Pre-Trial Hearing on Admissibility of Declarations of Co-Conspirators be, and the same is hereby, DENIED.