United States District Court, D. Connecticut
RULING ON MR. HEMPSTEAD'S MOTION IN LIMINE RE:
JAMES HEARING [ECF NO. 155]
A. BOLDEN UNITED STATES DISTRICT JUDGE.
United States of America (“Government') has charged
Forrest Hempstead (“Defendant”) with various
crimes relating to an alleged conspiracy to distribute drugs.
In advance of trial, Mr. Hempstead has filed a number of
pre-trial motions, including a motion for a hearing under
United States v. James, 576 F.2d 1121, 1127-32 (5th
Cir. 1978), modified en banc, 590 F.2d 575, to
determine the admissibility of statements by alleged
co-conspirators. Having reviewed the parties' written
submissions and heard oral arguments, this motion is DENIED.
Hempstead requests that this Court hold a James
hearing in advance of trial to determine whether the
statements of his alleged co-conspirators are admissible at
trial. See Motion in Limine, ECF No. 155, 1. The
Government responds that the James hearing is not
“the sanctioned procedure in the Second Circuit.”
Government Mem., ECF No. 240, 18. The Court agrees with the
in this Circuit do not usually use the James hearing
in these situations, relying instead on conditional admission
of co-conspirator statements. United States v.
Davidson, No. 92 Cr. 35, 1992 U.S. Dist. LEXIS 19434,
1992 WL 402959, at *12 (N.D.N.Y. Dec. 16, 1992),
aff'd 33 F.3d 50 (2d Cir. 1994) (“In the
Second Circuit, the functional equivalent of a James
Hearing is provided by a Geaney ruling which occurs
during trial and relies for its basis on the facts adduced at
trial, including evidence received subject to a motion to
strike at the close of the Government's case.”) In
order to admit an extra-judicial statement by a
co-conspirator under Rule 801(d)(2)(E), the court must find
by a preponderance of the evidence “(1) that there was
a conspiracy, (2) that its members included the declarant and
the party against whom the statement is offered, and (3) that
the statement was made both (a) during the course of and (b)
in furtherance of the conspiracy.” United States v.
Diaz, 176 F.3d 52, 83 (2d Cir. 1999) (quoting United
States v. Tracy, 12 F.3d 1186, 1196 (2d Cir. 1993)). In
making this determination, some courts follow the approach
set out by the Fifth Circuit in United States v.
James, and hold a pre-trial hearing-a
“James hearing”-wherein the government
must establish these factors before the statements are
admitted at trial. See James, 576 F.2d at 1127-32.
Second Circuit, however, has rejected the James
hearing approach and, as a result, this approach is rarely
used in this Circuit. United States v. Rowland, No.
3:14cr79 (JBA), 2014 U.S. Dist. LEXIS 110408, at *5 (D. Conn.
Aug. 11, 2014) (district courts in this circuit “almost
universally reject” requests for James
hearings). Instead, courts, following Geaney,
conditionally admit coconspirator statements and then
“determine, when all the evidence is in, whether
… the prosecution has proved participation in the
conspiracy, by the defendant against whom the hearsay is
offered, by a fair preponderance of the evidence.”
United States v. Geaney, 417 F.2d 1116, 1120 (2d
Court finds that the prosecution has not met its burden, it
will “instruct the jury to disregard the hearsay”
or declare a mistrial if the hearsay is a “large
proportion of the proof” against the defendant.
Geaney, 417 F.2d at 1120; see also United States
v. Feola, 651 F.Supp. 1068, 1129-30 (S.D.N.Y. 1987)
(“In this Circuit, the functional equivalent of what
the Fifth Circuit calls a James hearing and requires before
trial is provided by a Geaney ruling, which is
provided only during trial, and relies for its basis on the
facts adduced at trial, including evidence received subject
to a motion to strike at the close of the Government's
case. … Defendants who want James hearings
should so conduct their business as to be tried in the Fifth
or Eleventh Circuits.”).
initial memorandum in support of this motion, Mr. Hempstead
argued that the Court should depart from the Second
Circuit's general approach to co-conspirator statements
and hold a James hearing because the Second
Circuit's approach is inconsistent with the 1997
Committee Notes to the Federal Rule of Evidence 801(d)(2)(E).
Def.'s Mem., ECF No. 156, 4. Mr. Hempstead is correct
that the Advisory Committee does say that the admissibility
of co-conspirator statements is a “preliminary
question.” Id. However, a “preliminary
question of evidence is not one that necessarily requires a
pretrial hearing; rather it is a question that must be
decided before evidence is admitted- be it before or during
trial.” Rowland, 2014 U.S. Dist. LEXIS 110408
at *5. In fact, Rule 104(b) expressly provides that in
deciding “preliminary questions, ” a court
“may admit the proposed evidence on the condition that
the proof be introduced later.” Fed.R.Evid. 104.
Mr. Hempstead's Case
Hempstead's second memorandum supporting this request, he
concedes that James hearings are not “the
normal practice in this district, ” but argues that a
James hearing is warranted by the “unusual
fact pattern that exists in [his] case.” Def.'s
Supp. Mem., ECF No. 273, 11. He first argues that the
statements the Government seeks to introduce “were not
made by individuals involved in the conspiracy at the time
they were made, ” because these individuals were
incarcerated when they made them. Def.'s Supp. Mem., 6,
11. Further, he argues that the statements were not made in
furtherance of a conspiracy, but instead to secure bond.
Id. at 5 (“The bulk of the calls dealt with
the defendants seeking people to post bond so that they could
be released from incarceration. … Clearly, trying to
obtain the funds or the necessary signatures to be released
on bond is not in furtherance of a conspiracy.”).
in this Circuit, when evaluating both statements by
incarcerated co-conspirators and statements regarding release
on bond, have at times held that such statements were made in
furtherance of the conspiracy. United States v.
Agueci, 310 F.2d 817, 839 (2d Cir. 1962) (“[W]hile
arrest or incarceration may constitute a withdrawal from a
conspiracy, it does not follow that in every instance it
must.”). As a result, there is no reason to abandon
Geaney's preferred method of determining the
admissibility of co-conspirator statements and hold a
Hempstead argues that the statements of his co-defendants
were not in furtherance of the conspiracy because the
co-defendants were incarcerated when they made the
statements. The Second Circuit, however, has held that the
arrest of a conspirator does not necessarily constitute that
conspirator's withdrawal from the conspiracy. See
United States v. Morales, 185 F.3d 74, 81 (2d Cir. 1999)
(“[W]e must examine the facts of each case to determine
whether the imprisonment of enterprise members terminates an
ongoing … enterprise.”); United States v.
Borelli, 336 F.2d 376, 389 (2d Cir. 1964), cert.
denied sub nom Cinquegrano v. United States, 379 U.S.
960. (1965) (“[N]either authority nor reason would
suggest that imprisonment necessarily shows a
than presuming that an incarcerated individual's
statement was not made in furtherance of the conspiracy, the
Court must evaluate the evidence presented by the Government
to show the “continued participation” of the
defendant after incarceration. See, e.g. Agueci, 310
F.2d at 839 (finding that the defendant had not withdrawn
from a narcotics conspiracy when “there was positive
evidence that [the defendant] had in fact designated
[unincarcerated co-defendants] to look after his interest in
the conspiracy after his incarceration [and] was to get a
share in the profits made on sales by those
co-conspirators”); United States v. Urrego,
853 F.Supp. 646, 649-50 (E.D.N.Y. 1994) (arrest and
incarceration amounted to withdrawal from conspiracy when the
only evidence connecting the defendant to the conspiracy
after his arrest was a single comment he made to a third
party, and “there was no evidence that this comment was
related to the ongoing conspiracy”); United States
v. Escobar, 842 F.Supp. 1519, 1528 (E.D.N.Y. 1994)
(involvement in conspiracy terminated with arrest where
continued participation in conspiracy was impossible given
that the defendant was “closely supervised at every
moment, and is extremely limited in his telephone and
personal contacts”). See generally United States v.
Cruz, 797 F.2d 90, 98 (2d Cir. 1986) (“Whether or
not the arrest and incarceration of a conspirator constitutes
withdrawal may be determined by the facts of the
Hempstead also suggests that statements made by his
co-conspirators requesting assistance with bond are unrelated
to the conspiracy. A co-conspirator's request for bond
can, in certain circumstances, relate to the conspiracy.
United States v. Paredes, 176 F.Supp.2d 183
(S.D.N.Y. 2001). In Paredes, the court evaluated an
incarcerated co-conspirator's phone call to his wife as a
statement in furtherance of the conspiracy. Id. at
190. The co-conspirator requested that his wife call
defendant Paredes, who was not incarcerated, for help with
bail. Id. at 190. The court found that the phone
call was made in furtherance of the alleged drug conspiracy
and thus admissible against the defendant. Id.
“Without this directive, ” the court reasoned,
“[the co-defendant's] wife arguably would not have
called Paredes for his help, and a drug courier would remain
in jail, thus hindering the objectives of the drug
conspiracy.” Id. While Mr. Hempstead argues
that his co-defendants' requests for bond money were
“not related ...