145.

Sample Response to Motion for Pre-trial Proof of Conspiracy Count

Because the Fourth Circuit Does Not Favor Requiring a Pre-trial Hearing to Determine the Existence of a Conspiracy Prior to Admitting Co-conspirator Statements Against a Defendant, Defendant Sheldon's Motion for Proof of Conspiracy Count Should be Denied. Defendant Sheldon, charged with conspiring to violate the federal housing rights of the victims named in the Indictment, moves that the Court require the government to establish at a pre-trial hearing the existence of the charged conspiracy prior to introducing against Sheldon any statement of Sheldon's co-conspirator, John Boyd. Because the Fourth Circuit does not favor this approach, Defendant's Motion for Proof of Conspiracy Count should be denied. Federal Rule of Evidence 801(d)(2)(E) provides that out-of-court statements made by a co-conspirator of a party "during the course of and in furtherance of the conspiracy" are not hearsay and are admissible against that party. To admit a co-conspirator's statement into evidence against a criminal defendant, a court must conclude that a conspiracy involving the defendant and the declarant in fact existed. Bourjaily v. United States, 483 U.S. 171, 175 (1987). In deciding this preliminary question, a court may consider the co-conspirator's statements themselves along with other evidence. Id. at 180-81. Some circuits have held that a court should hold a pre-trial hearing to determine the existence of an alleged conspiracy before admitting a co-conspirator's statement against a criminal defendant in the government's case-in-chief. See, e.g., United States v. James, 590 F.2d 575 (5th Cir. 1978), cert. denied, 442 U.S. 917 (1979). The Fourth Circuit, however, has considered and rejected this "formalistic requirement." United States v. Blevins, 960 F.2d 1252, 1256 (4th Cir. 1992) (citing United States v. Hines, 717 F.2d 1481 (4th Cir. 1983), cert. denied, 467 U.S. 1214 (1984)). This circuit has held, instead, that a trial court may conditionally admit the co-conspirators' statements before the existence of the conspiracy has been established, "subject to the subsequent fulfillment of that factual predicate." Hines, 717 F.2d at 1488. This approach promotes judicial efficiency and economy without compromising the defendant's rights, since the court can declare a mistrial or issue a limiting instruction if the government ultimately fails to prove that the conspiracy existed. See id.; Blevins, 960 F.2d at 1256; Jackson, 757 F.2d 1486, 1490 (4th Cir.), cert. denied, 474 U.S. 994 (1985); United States v. Berlin, 707 F.Supp. 832, 840 (E.D. Va. 1989) (noting that the Fourth Circuit "prefers" this procedure of conditionally admitting the statements to that of holding of a pre-trial hearing on the existence of the charged conspiracy). Because this Court can, as the Fourth Circuit suggests, admit the statements of co-conspirator Boyd subject to the government' s later demonstrating the existence of the charged conspiracy between Sheldon and Boyd, there is no need for a pre-trial hearing on the matter. Defendant's motion should therefore be denied. [cited in Civil Rights Resource Manual 60]