Wednesday, November 21, 2007

Admissibility of Co-conspirators Statements

In United States v. Weaver, No. 04-3888 (3d Cir. November 7, 2007), the Court of Appeals reversed the district court’s grant of the Defendant Weaver’s motion in limine precluding the Government from introducing a recorded telephone conversation between an alleged co-conspirator and her sister wherein the co-conspirator made statements implicating Weaver in a fraud scheme. The district court granted the motion, without having held a hearing, finding that the statements made by the co-conspirator were not in furtherance of the conspiracy and seemed to "constitute derogatory opinions having no conceivable value." The Court of Appeals rejected those conclusions and found the statements to be admissible under Federal Rule of Evidence 801(d)(2)(E).

Dolores Weaver was the director of an educational program at the Community College of Philadelphia (CCP). She was alleged to have been involved in a scheme with Faridah Ali, the assistant director of the Sister Clara Mohammed School wherein CCP made rental payments to the Sister Clara School for classes that were nonexistent. Weaver and Ali allegedly divided the money. On September 4, 2001, Ali had a conversation with her sister, Zaynah Rasool, discussing various matters involving the school including the arrangement with CCP. Ali complained about Weaver and made reference to problems with a teacher at the school and the potential of jeopardizing "what we got with the college."

The Government appealed the district court’s finding that the conversation between Ali and Rasool was inadmissable hearsay asserting that it was excepted from the definition of hearsay under Rule 801(2)(2)(E). The Court of Appeals began its analysis by first indicating that "In order for an out-of-court statement to meet the co-conspirator exception: the district court must find by a preponderance of the evidence that: (1) a conspiracy existed; (2) the declarant and the party against whom the statement is offered were members of the conspiracy; (3) the statement was made in the course of the conspiracy; and (4) the statement was made in furtherance of the conspiracy." Slip op. at p. 6. Weaver did not contest the district court’s implied findings with regard to the first three requirements and argued that the district court was also correct in finding that the statements were not made in furtherance of the conspiracy. After a detailed review of its prior cases on this issue, the Court of Appeals indicated that Ali’s statements to Rasool served to inform her of the status of the conspiracy and therefore were in furtherance of the conspiracy. The Court noted that Ali’s statements informed Rasool that Ali was dependant on Weaver to make sure that CCP did not discover that her school was a sham site and that Weaver was requesting a 50% kickback from the rent payments. The Court further recognized, however, that the statements explaining the current status of the conspiracy would only be in furtherance of the conspiracy if Rasool was also a member of the conspiracy as the Government alleged. Since the district court did not hold an evidentiary hearing to determine whether the Government can demonstrate Rasool’s involvement in the conspiracy, the Court of Appeals remanded and indicated that if at a hearing Rasool is found by a preponderance of the evidence to be a member of the conspiracy, the statements concerning the status of the conspiracy are admissible.

The Court of Appeals also determined that Ali’s statements to Rasool cautioning Rasool not to upset a certain teacher because that teacher might report that no classes are being taught at the school are admissible whether or not Rasool is determined to be a member of the conspiracy. The Court reasoned that the purpose of Ali’s statements to that regard were for the purpose of concealing the conspiracy so that it may continue thus furthering the conspiracy.
Lastly, the Court of Appeals found that the district court was wrong in finding that the September 4 conversation was irrelevant. The Court held that Ali’s statements to Rasool confirmed the essential elements of the conspiracy and therefore were relevant under Federal Rule of Evidence 401.

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