United States District Court, D. Connecticut
MEMORANDUM OF DECISION GRANTING THE GOVERNMENT'S
MOTION IN LIMINE REGARDING THE USE OF COCONSPIRATORS'
STATEMENTS AT TRIAL, [ECF NO. 522] AND DENYING DEFENDANT
ANTHONY MIRANDA'S MOTION [ECF NO. 521]
HON.
VANESSA L. BRYANT UNITED STATES DISTRICT JUDGE.
The
Defendant in this case has filed a motion in limine
requesting the Court to determine, prior to trial, whether
statements made by alleged coconspirators of the Defendant
are admissible under Federal Rule of Evidence 801(d)(2)(E)
before allowing their “wholesale admission” at
trial. [ECF No. 521 at 1-2]. Rule 801(d)(2)(E) allows the
admission of such statements as non-hearsay if they were
“made by the party's coconspirator during and in
furtherance of the conspiracy.” Fed.R.Evid.
801(d)(2)(E). The Defendant states that such statements are
“not admissible under F.R.E. [sic] 801(d)(2)(E) unless
and until the Government establishes, by a preponderance of
the evidence, that (1) there was a conspiracy; (2) that the
declarant and Mr. Miranda were both members of said
conspiracy; and (3) that the statements were made during the
course and in furtherance of that conspiracy.” [ECF No.
521 at 1-2 (citing United States v. Farhane, 634
F.3d 127, 161 (2d Cir. 2011) and United States v.
Tellier, 83 F.3d 578, 580 (2d Cir. 1996)]. Finally, the
defendant notes that while the Court “may”
consider such statements in determining the existence of a
conspiracy, there must be “independent corroborating
evidence of the defendant's participation in the
conspiracy.” [ECF No. 521 at 2 (quoting
Tellier, 83 F.3d at 580, and citing United
States v. Desena, 260 F.3d 150, 158 (2d Cir. 2001)].
The
Government argues that the Court need not determine the
admissibility of alleged coconspirator statements prior to
trial and that standard operating procedure in the Second
Circuit is to admit the statements “on a conditional or
provisional basis, subject to the later submission evidence
[sic] necessary to establish the pre-requisites.” [ECF
No. 522 at 6]. The Government states that the Second
Circuit's “seminal case” regarding the
admission of coconspirator statements, United States v.
Geaney, “established the Circuit's procedural
protocol” in this regard when it held that
coconspirator statements may be admitted “subject to
connection . . . when all the evidence is in” by the
Court. Id. (quoting Geaney, 417 F.2d 1116,
1120 (2d Cir. 1969). The Government also notes that while the
United States Supreme Court, in United States v.
Bourjaily, 483 U.S. 171, 181 (1987), held that a court
“may” consider coconspirator's statements in
determining the existence of a conspiracy, that holding was
superseded by a later amendment to Rule 801(d)(2)(E) that
“makes clear that district courts ‘must'
consider the content of the coconspirator statement in
determining ‘the existence of the conspiracy or
participation in it.'” [ECF No. 522 at 4 (quoting
Fed.R.Evid. 801(d)(2)(E)]. Finally, the Government notes that
requests for a pretrial hearing to determine the
admissibility of coconspirators' statements, which the
Defendant's motion impliedly seeks, “have been
consistently rejected” in this circuit, quoting
Untied States v. Henry, 861 F.Supp. 1190, 1196
(S.D.N.Y. 1994), which held that “a hearing, prior to
trial, on the admissibility of any co-conspirator
statements…is neither required nor generally convened
in this Circuit.” [ECF No. 522 at 7-8]
The
Court agrees with the Government. First, the Court
must consider coconspirator statements to determine
the existence of a conspiracy and the Defendant's
participation in it. That is mandated by Rule 801(d)(2)(E)
and the Court is not free to disregard that mandate, as
Defendant suggests. See [ECF No. 521 at 2
(“[T]he court may consider any proffered
hearsay statements . . . .” (emphasis added)]. Second,
the Government is correct that Geaney established
the now well-settled rule that in the Second Circuit
coconspirators' statements are to be admitted
conditionally or provisionally “subject to connection,
” which must be completed by the Court after the
“evidence is in.” Geaney, 417 F.2d at
1120. While it is true that in other circuits pre-trial
conspirator admissibility hearings are routinely conducted,
that is not the case here. See United States v.
Feola, 651 F.Supp. 1068, 1129-30 (“At this late
date, a motion for a James [coconspirator statement
admissibility] hearing in this Circuit must be regarded as
frivolous. Defendants who want James hearings should
so conduct their business as to be tried in the Fifth or
Eleventh Circuits.”).
For
these reasons, the Government's Motion in
Limine, [ECF No. 522], is granted and the
Defendant's Motion, [ECF No. 521], is
denied.[1]
IT IS
SO ORDERED.
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Notes:
[1] Defendant also argues that the
Government should disclose the basis for any evidence it
offers concerning Defendant's “other crimes, wrongs
or acts” before trial, citing Rule 404(b) and
United States v. Foskey, 636 F.2d 517, 526 n.8 (D.C.
Cir. 1980). [ECF No. 521 at 2-4]. The Court disagrees. The
Court is free under Rule 404(b) to dispense with pre-trial
notification for good cause, which exists here, where there
is only one defendant and no evidence has been submitted that
would lead the Court to conclude that excessive
“complexity, ” which the Foskey court
was concerned with, exists. Because Rule 404 already requires
the Government to establish the basis for admissibility of
...