United States District Court, D. Minnesota
Jacqueline Blaesi-Freed, Linda I. Marks, U.S. Department of
Justice, Consumer Protection Branch, and Roger J. Gural, U.S.
Department of Justice, for the United States of America.
S. Friedberg, Joseph S. Friedberg, Chartered, Robert D.
Richman, for Defendant Moran Oz.
JaneAnne Murray, Murray Law LLC, for Defendant Babubhai
Celine Pacyga and Ryan M. Pacyga, Pacyga and Associates, PA,
for Defendant Lachlan Scott McConnell.
L. Gerdts, 247 Third Ave. S., Minneapolis, MN 55415, John C.
Brink, 3104th Ave. S., Ste. 1008, Minneapolis, MN 55415, for
Defendant Elias Karkalas.
E. Ostgard, Ostgard Law Office, Paul Daniel Schneck, Paul
Daniel Schneck, LTD, for Defendant Prabhakara Rao Tumpati.
RICHARD NELSON United States District Judge
matter is before the Court on the Government's Motion in
Limine to Admit Co-Conspirator Statements Offered by
Government Against Defendants (“Gov't's
Mot.”) [Doc. No. 700]. For the reasons set forth below,
the Government's Motion is denied without prejudice and
otherwise deferred until trial.
Government intends to introduce evidence at trial that
contains the out-of-court statements of Defendants and other
co-conspirators. (Gov't's Mot. at 1.) Precisely what
the Government asks that the Court do related to this
evidence-in advance of trial-is unclear. Initially, the
Government requested that the Court find that “(1) a
conspiracy existed, based upon both the statements of the
co-conspirators and independent evidence; (2) the declarants
were members of the conspiracy; and (3) the statements were
made during and in furtherance of the conspiracy.”
(Id. at 4-5.) In support of this request, the
Government sought to make a “preliminary showing in
accordance with FRE 104(a) that a conspiracy exists” by
pointing to the guilty pleas and plea agreements of several
alleged co-conspirators. (Id.) Based on this
evidence, the Government argued that the Court “should
find that a conspiracy existed such that the statements of
co-conspirator [sic] are admissible when offered against
defendants.” (Id.) However, at the pretrial
hearing, the Government clarified that it was merely making
its intent to introduce co-conspirators' statements at
trial known because the Court would eventually have
to make an admissibility ruling on those statements pursuant
to Federal Rule of Evidence 801(d)(2)(E).
statements made by a defendant's co-conspirator are not
hearsay when offered against the defendant, so long as the
statements were made “during and in furtherance of the
conspiracy.” Fed.R.Evid. 801(d)(2)(E). To admit such
statements “[t]he government must prove by a
preponderance of the evidence that: 1) the conspiracy
existed; 2) the defendant and the declarant were members of
the conspiracy; and 3) the statement was in furtherance of
the conspiracy.” United States v. Sturdivant,
513 F.3d 795, 802 (8th Cir. 2008).
initial matter, to the extent the Government asks that the
Court find it has met its burden as to all three elements of
the test just described, the Government's Motion is
denied. The only evidence the Government points to are the
pleas of other co-conspirators-none of which are yet part of
the evidentiary record in this case. It is not presently
clear even what statements the Government hopes to admit.
Similarly, to the extent the Government asks that the Court
find that a conspiracy existed based solely on these pleas,
the Government's Motion is denied.
Eighth Circuit offers guidance on the procedure a district
court can employ to address Rule 801(d)(2)(E):
If the prosecutor propounds a question which obviously
requires a witness to recount an out-of-court declaration of
an alleged coconspirator, the court, upon a timely and
appropriate objection by the defendant, may conditionally
admit the statement. At the same time, the court should, on
the record, caution the parties (a) that the statement is
being admitted subject to defendant's objection; (b) that
the government will be required to prove by a preponderance
of the independent evidence that the statement was made by a
coconspirator during the course and in furtherance of the
conspiracy; (c) that at the conclusion of all the evidence
the court will make an explicit determination for the record
regarding the admissibility of the statement; and (d) that if
the court determines that the government has failed to carry
the burden delineated in (b) above, the court will, upon
appropriate motion, declare a mistrial, unless a cautionary
instruction to the jury to disregard the statement would
suffice to cure any prejudice. The foregoing procedural steps
should transpire out of the hearing of the jury.
United States v. Bell, 573 F.2d 1040, 1044 (8th Cir.
1978) (citations omitted). Other circuits employ procedures
that assess the admissibility of co-conspirator statements
before they are presented to the jury. See United States
v. DuFriend, 691 F.2d 948, 951 (10th Cir. 1982)
(“We also recommended that, whenever possible, the
prosecution first introduce its independent proof of the
conspiracy and the defendant's connection thereto before
admitting hearsay declarations of co-conspirators.”);
United States v. Grassi, 616 F.2d 1295, 1300 (5th
Cir. 1980) (requiring that district courts hold a hearing to
determine the admissibility of out-of-court co-conspirator
statements under Rule 801(d)(2)(E); United States v.
Howard, 706 F.2d 267, 270-71 (8th Cir. 1983) (McMillian,
J. concurring) (acknowledging ...