holding that the defendant could be convicted on a conspiracy count even where the indictment alleged greater quantities of narcotics under § 841(b)(1)(A) than found by the jury in its special verdict which corresponded to lesser penalties under § 841(b)(1)(B)
How later courts described this case
- holding that the defendant could be convicted on a conspiracy count even where the indictment alleged greater quantities of narcotics under § 841(b)(1)(A) than found by the jury in its special verdict which corresponded to lesser penalties under § 841(b)(1)(B)
- concluding that where indictment alleged greater quantities than juiy found to have been proven beyond reasonable doubt, resulting conviction was not variance or constructive amendment because defendant was "merely convicted of a lesser-included offense”
- concluding that where indictment alleged greater quantities than jury found to have been proven beyond reasonable doubt, resulting conviction was not variance or constructive amendment because defendant was "merely convicted of a lesser-included offense"
- holding that a defendant’s connection -11- Nos. 22-5424/5427, United States v. Charles, et al. to a conspiracy “can be inferred from evidence that he was involved in repeat drug transactions with members of the conspiracy”
Written by the judges who cited it.
The opinion
RONALD LEE GILMAN, Circuit Judge, concurring.
I concur in the lead opinion, but write separately because I believe that whether the incarcerated author of the anonymous letter was still an active coconspirator is a factor that should be analyzed separately from the question of whether the conspiracy was ongoing. See Fed.R.Evid. 801(d)(2)(E) (establishing that a statement is not hearsay when “made by a coconspir-ator of a party during the course and in furtherance of the conspiracy”) (Emphasis added.) The lead opinion seems to assume that the author remained an active conspirator simply because he was writing about the ongoing conspiracy. I can well imagine instances, however, where an incarcerated author or speaker might make statements about a conspiracy from which he has recently withdrawn, a circumstance that would render the writing inadmissible under Rule 801(d)(2)(E). An established analytical framework is therefore preferable to an ad hoc determination in this area.
*344 To start with, I agree that “ordinarily, a person’s participation in a conspiracy ends when the person is arrested for his role in the conspiracy.” United States v. Arce, 997 F.2d 1123, 1128 (5th Cir.1993) (citation omitted). As the lead opinion correctly observes, however, “an arrested coconspirator does not always terminate his involvement in an ongoing conspiracy,” Op. at 327. It therefore properly declines “to hold that statements made during incarceration automatically fall outside the scope of Rule 801(d)(2)(E).” United States v. Howard, 115 F.3d 1151, 1156 (4th Cir.1997).
But when the government seeks to admit a statement made by an alleged cocon-spirator after incarceration, it has the burden of proving not just that the statement was “made in the course and in furtherance of the conspiracy,” Op. at 326-328, but also that the declarant remained a coconspirator at the time of the statement. This view is supported by both the plain language of the rule and by the Supreme Court’s decision in Bourjaily v. United States, 483 U.S. 171, 175 , 107 S.Ct. 2775 , 97 L.Ed.2d 144 (1987), which established that the party seeking admission of a statement under Rule 801(d)(2)(E) must prove by a preponderance of the evidence “that the statement actually falls within the definition of the Rule.”
Although relevant statements made during the course and in furtherance of the conspiracy will usually be made by a co-conspirator, we should not assume that these two requirements are mutually inclusive, especially where the alleged cocon-spirator has been imprisoned for his role in the conspiracy. Instead, I would adhere to the principle enunciated in Arce and presume that statements made by the incarcerated declarant “ordinarily” fall outside of ■ the nonhearsay category established by Rule 801(d)(2)(E). Arce, 997 F.2d at 1128 .
Whether the presumption that the arrested declarant is no longer a coconspir-ator is characterized as a starting point for the analysis or as a formal rebuttable presumption is of little significance because the government has the ultimate burden of proving admissibility under 801(d)(2)(E) by a preponderance of the evidence. See United States v. Robinson, 390 F.3d 853, 881 (6th Cir.2004) (“When the government seeks to introduce a co-conspirator statement under [Rule 801(d)(2)(E) ], it must establish by a preponderance of the evidence that ‘there was a conspiracy involving the declarant and the nonoffering party, and that the statement was made during the course and in furtherance of the conspiracy.’ ”) (quoting Bourjaily, 483 U.S. at 175-76 , 107 S.Ct. 2775 ).
The approach that I propose should not materially limit the government’s ability to meet its burden. To the contrary, the government can rely on circumstantial evidence, including the contents of the statement itself, see Bourjaily, 483 U.S. at 176-80 , 107 S.Ct. 2775 (permitting courts to consider the contents of statements by alleged coconspirators “in determining whether a conspiracy exists and whether the [declarant] was a member of it”), to show by a preponderance of the evidence that the declarant “managed to continue conducting the business of the conspiracy after arrest” and incarceration. United States v. Davis, 226 F.3d 346, 353 (5th Cir.2000). Absent evidence of this sort, however, the declarant’s role in the conspiracy will have ended, and with it the declarant’s status as a coconspirator.
Even though I believe that the present case is a close one under the approach that I have outlined, I ultimately agree with the lead opinion that the government met its *345 burden of satisfying Rule 801(d)(2)(E)’s requirements by a preponderance of the evidence. The letter was written by someone incarcerated in the Milan, Michigan prison in connection with the very drug trafficking conspiracy involving the present defendants. Investigators found the letter at the home of Garrett’s girlfriend, a location to which Garrett had obvious and continuing connections. The author of the letter both acknowledged having previously sent the recipients information related to the law enforcement investigation and advised the recipient how best to proceed in the face of increased risks. Although some of the remarks seem designed to conceal a completed crime — statements that the Supreme Court has held are not in furtherance of a conspiracy, see Krulewitch v. United States, 336 U.S. 440, 444 , 69 S.Ct. 716 , 93 L.Ed. 790 (1949) — the lead opinion convincingly characterizes other statements in the letter as facilitating the continuation of an existing criminal operation. Op. at 328.
Because the government did not need to prove to an absolute certainty that the letter’s anonymous author remained a co-conspirator, but only that the author “was more likely than not a conspirator,” United States v. Helmet, 769 F.2d 1306 , 1313 (8th Cir.1985), I agree with my colleagues that the letter was properly admitted into evidence as nonhearsay under Rule 801(d)(2)(E) of the Federal Rules of Evidence. I therefore join the lead opinion’s disposition of these cases.