Opposition Brief — Kenneth E. Fairley, Petitioner v. United States

No. 17-1607

In the Supreme Court of the United States

KENNETH E. FAIRLEY, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

BRIAN A. BENCZKOWSKI

Assistant Attorney General

ROSS B. GOLDMAN

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals correctly found that the

district court did not abuse its discretion in admitting

out-of-court statements as nonhearsay under Federal

Rule of Evidence 801(d)(2)(E), on the ground that they

were made by petitioner and his coconspirator during

and in furtherance of their scheme to defraud a federal

housing program.

(I)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction ................................................................................ 1

Statement .................................................................................. 1

Argument .................................................................................. 8

Conclusion ................................................................................... 17

TABLE OF AUTHORITIES

Cases:

Bourjaily v. United States, 483 U.S. 171 (1987) ...........9, 14

Crawford v. Washington, 541 U.S. 36 (2004) ...................... 14

Giles v. California, 554 U.S. 553 (2008) .............................. 14

Government of the Virgin Islands v. Brathwaite,

782 F.2d 399 (3d Cir. 1986) ........................................ 11, 16

Smith v. Bray, 681 F.3d 888 (7th Cir. 2012),

overruled on other grounds by Ortiz v. Werner

Enters., Inc., 834 F.3d 760 (7th Cir. 2016) ....................... 16

United States v. Brockenborrugh, 575 F.3d 726

(D.C. Cir. 2009) ................................................................ 11

United States v. Broome, 732 F.2d 363 (4th Cir.),

cert. denied, 469 U.S. 855 (1984) ....................................... 15

United States v. Coe, 718 F.2d 830 (7th Cir. 1983) ............. 16

United States v. Craig, 522 F.2d 29 (6th Cir. 1975) ........... 15

United States v. Davis, 890 F.2d 1373 (7th Cir. 1989),

cert. denied, 493 U.S. 1092 (1990) ............................... 16, 17

United States v. Dickerson, 248 F.3d 1036

(11th Cir. 2001), cert. denied, 536 U.S. 957 (2002)........... 15

United States v. Ebron, 683 F.3d 105

(5th Cir. 2012), cert. denied, 571 U.S. 989 (2013) ............ 9

United States v. El-Mezain, 664 F.3d 467

(5th Cir. 2011), cert. denied, 568 U.S. 977 (2012) .... 7, 10, 11

(III)

IV

Cases—Continued:

Page

United States v. Flores, 63 F.3d 1342

(5th Cir. 1995), cert. denied, 519 U.S. 825 (1996) ........ 8, 16

United States v. Gewin, 471 F.3d 197 (D.C. Cir.

2006) ............................................................................... 10, 11

United States v. Graham, 711 F.3d 445 (4th Cir.),

cert. denied, 571 U.S. 963 (2013) ...................................... 6

United States v. Grant, 683 F.3d 639 (5th Cir. 2012) ........ 9

United States v. Inadi, 475 U.S. 387 (1986) ........................ 14

United States v. Jannotti, 729 F.2d 213 (3d Cir.),

cert. denied, 469 U.S. 880 (1984) ....................................... 15

United States v. Kelley, 864 F.2d 569 (7th Cir.),

cert. denied, 493 U.S. 811 (1989) .................................... 11

United States v. Layton, 855 F.2d 1388 (9th Cir.

1988), cert. denied, 489 U.S. 1046 (1989), overruled

on other grounds by Guam v. Ignacio, 10 F.3d 608

(9th Cir. 1993) .................................................................. 11

United States v. Meggers, 912 F.2d 246 (8th Cir.

1990) ..................................................................................... 15

United States v. Morrow, 39 F.3d 1228 (1st Cir.

1994), cert. denied, 514 U.S. 1010, and 514 U.S.

1045 (1995) ........................................................................... 15

United States v. Nelson, 732 F.3d 504 (5th Cir.

2013), cert. denied, 134 S. Ct. 2682 (2014) ..................... 11

United States v. Porter, 933 F.2d 1010, 1991 WL

82590 (6th Cir.), cert. denied, 502 U.S. 895 (1991) ........ 11

United States v. Russo, 302 F.3d 37 (2d Cir. 2002),

cert. denied, 537 U.S. 1112 (2003) .................................. 11

United States v. Weisz, 718 F.2d 413 (D.C. Cir. 1983),

cert. denied, 465 U.S. 1027, and 465 U.S. 1034

(1984) .............................................................................. 10, 11

Constitution, statutes, and rules:

U.S. Const. Amend. VI (Confrontation Clause) ................. 14

V

Statutes and rules—Continued:

Page

18 U.S.C. 2 ................................................................................ 4

18 U.S.C. 371 ................................................................. 1, 4, 5

18 U.S.C. 641 ................................................................. 2, 4, 5

18 U.S.C. 1956(h) ..................................................................... 4

18 U.S.C. 1957 .......................................................................... 4

42 U.S.C. 12741 .................................................................... 2

42 U.S.C. 12742 .................................................................... 2

42 U.S.C. 12746 .................................................................... 2

Fed. R. Evid.:

Rule 801(c) ......................................................................... 9

Rule 801(d) ......................................................................... 9

Rule 801(d)(2)(A) ............................................................. 16

Rule 801(d)(2)(E) (1987) ................................................... 9

Rule 801(d)(2)(E) .................................................... passim

Rule 802 .............................................................................. 8

Sup. Ct. R. 10 ......................................................................... 12

Miscellaneous:

Mark S. Brown et al., Weinstein’s Federal Evidence

(2d ed. 2017) ....................................................................... 9

4 Christopher B. Mueller & Laird C. Kirkpatrick,

Federal Evidence (4th ed. 2013)........................................ 10

S. Rep. No. 1277, 93d Cong., 2d Sess. (1974) ...................... 10

30B Charles Alan Wright & Jeffrey Bellin,

Federal Practice and Procedure (2017) ........................... 10

In the Supreme Court of the United States

No. 17-1607

KENNETH E. FAIRLEY, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-44) is

reported at 880 F.3d 198. The order of the district court

is not published in the Federal Supplement but is available at 2016 WL 6407423.

JURISDICTION

The judgment of the court of appeals was entered on

January 22, 2018. A petition for rehearing was denied on

February 26, 2018 (Pet. App. 45). The petition for a writ

of certiorari was filed on May 24, 2018. The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District

Court for the Southern District of Mississippi, petitioner

was convicted on one count of conspiracy to commit theft

of government funds, in violation of 18 U.S.C. 371, and

two counts of theft of government funds, in violation of

(1)

2

18 U.S.C. 641. Judgment 1. Petitioner was sentenced to

36 months of imprisonment, to be followed by three years

of supervised release. Id. at 2-3. The court of appeals

affirmed petitioner’s conviction on the conspiracy count,

vacated the convictions on the two substantive counts,

and remanded for resentencing. Pet. App. 1-44.

1. Petitioner’s prosecution stemmed from his agreement with his friend, Arthur Fletcher, to submit inflated

bills for construction work allegedly performed by their

businesses on behalf of a federally funded affordablehousing program. Pet. App. 2.

a. The U.S. Department of Housing and Urban Development (HUD) operates the HOME Investment Partnerships Program (HOME program), the goal of which is to

expand the supply of “decent, safe, sanitary, and affordable housing” for low-income Americans. 42 U.S.C. 12741.

Through the HOME program, HUD makes funds available to “participating jurisdictions,” including cities and

other local governments, to expend on eligible affordablehousing projects. 42 U.S.C. 12742; see 42 U.S.C. 12746.

These participating jurisdictions then may certify nonprofit Community Housing Development Organizations

(CHDOs), which are “eligible to receive HUD grants for

construction and renovation of affordable housing units.”

Pet. App. 3.

Petitioner served as the executive director of Pinebelt

Community Services, Inc. (Pinebelt). Pet. App. 3. In

March 2010, the City of Hattiesburg, Mississippi (the

City)—a participating jurisdiction in the HOME

program—certified Pinebelt as a CHDO. Ibid. In August 2010, the City and Pinebelt entered into a contract in

which the City promised to pay Pinebelt up to $100,000

in HOME program funds, plus up to approximately

$18,600 in operating funds, in exchange for Pinebelt’s

3

work on affordable-housing development activities. Ibid.

As amended, the parties’ contract provided that Pinebelt

would renovate two single-family homes: the “South

Street and 5th Street homes.” Ibid.

In July and August 2011, Pinebelt submitted to the

City two “request[s] for funds” totaling $98,000. Pet.

App. 3 (brackets in original). Petitioner signed these requests on behalf of Pinebelt, which “ostensibly sought reimbursement for ‘services rendered and allowable

costs/expenditures’ associated with rehabilitating the

South Street and 5th Street homes.” Ibid. Pinebelt also

submitted documents stating that it had chosen Interurban Housing and Development LLC (Interurban) as a

construction contractor, purportedly pursuant to a competitive bidding process. Id. at 4. In seeking reimbursement, Pinebelt represented that Interurban had billed

Pinebelt $98,000 for work performed by Interurban at

the two homes under renovation. Ibid. The City then

paid Pinebelt the full $98,000 that it had requested. Ibid.

As a subsequent investigation revealed, however,

Pinebelt’s submissions were fraudulent. Interurban—a

company owned by petitioner’s “old friend,” Fletcher—

in fact had done no work on the properties at all. Pet.

App. 4. Fletcher had merely allowed petitioner “to use

Interurban’s name to qualify for HUD grants,” ibid., and

had also caused a charity he controlled to make certain

“seed money” available to petitioner, id. at 5. Subsequently, “after receiving the $98,000 from the [C]ity,” petitioner “sent $72,000 to Interurban.” Id. at 4.

Although Interurban did no work on the properties,

petitioner did hire other laborers. As an Internal Revenue Service agent later testified, however, Pinebelt

“spent only approximately $38,000 renovating the two

4

properties,” notwithstanding that it had sought and obtained reimbursement of $98,000. Pet. App. 5. The government also presented evidence that the work done was

“shoddy” and that “the properties did not pass inspection

until years after Pinebelt was paid.” Ibid.

b. A federal grand jury returned an indictment

charging petitioner with, inter alia, one count of conspiracy to commit theft of government funds, in violation of

18 U.S.C. 371 and 641. Indictment 1-4. The indictment

alleged that the criminal conspiracy between petitioner

and Fletcher began around August 2010 and “continu[ed] through on or about December 12, 2012.” Id. at

1. The indictment alleged six overt acts, occurring between May 2011 and August 2011, taken in furtherance

of that conspiracy. Id. at 4. The grand jury also charged

petitioner with two substantive counts of theft of government funds, in violation of 18 U.S.C. 641 and 2. Indictment 4-5. 1

At trial, the government presented evidence that petitioner conspired with Fletcher to defraud the government by obtaining contracts for affordable-housing projects, submitting inflated construction bills, and then

splitting the proceeds. Among other evidence, the government introduced recordings of phone calls between

Petitioner was also charged with one count of conspiracy to commit money laundering, in violation of 18 U.S.C. 1956(h) and 1957,

and two counts of money laundering, in violation of 18 U.S.C. 1957

and 2, see Indictment 5-6, but the government chose not to proceed

to trial on those counts. The indictment had additionally charged

Fletcher with conspiracy to commit theft of government funds, conspiracy to commit money laundering, and one count of money laundering, see Indictment 1-6, but those charges were dropped shortly

before trial, when Fletcher pleaded guilty to a related charge in a

separate proceeding, see Pet. App. 4 n.3.

1

5

petitioner and Fletcher that took place in early December 2012. During the calls, petitioner and Fletcher discussed “many things related to the conspiracy,” including “efforts to file documents to adequately document alleged work done on the project, including allowing [petitioner] to sign Fletcher’s name,” “attempts by Fletcher

to be repaid ‘seed money’ put into the project,” and

“other general topics of conversation, most of which surround the conspiracy.” 10/28/16 Order (Order) 2. The

district court admitted the recordings over petitioner’s

objection, determining that the conversations were admissible as nonhearsay under Federal Rule of Evidence

801(d)(2)(E). See Pet. App. 27-28. That Rule provides

that “[a] statement * * * is not hearsay” if it is “offered

against an opposing party” and “was made by the party’s

coconspirator during and in furtherance of the conspiracy.” Fed. R. Evid. 801(d)(2)(E).

c. The jury found petitioner guilty of conspiracy to

commit theft of government funds, in violation of

18 U.S.C. 371, and two counts of theft of government

funds, in violation of 18 U.S.C. 641. Pet. App. 1. Petitioner

moved for a new trial, arguing, inter alia, that the district

court had erred in admitting the recorded conversations

into evidence. See Order 1-4. Petitioner contended that

the recorded statements “were not made in the course of

the conspiracy, nor in * * * furtherance of the conspiracy,” because the conversations occurred after petitioner

had been paid by the City for the South Street and 5th

Street projects and because they reflected the existence

of some disagreements between petitioner and Fletcher.

Order 2.

The district court denied petitioner’s motion. Order

1-4. As relevant here, the court rejected petitioner’s argument that the conspiracy had ended by the time of the

6

recorded conversations. The court noted that “[t]he indictment alleges that the conspiracy began in August of

2010 and continued through on or about December 12,

2012,” and “[t]he recordings were made during th[at] alleged period.” Order 2. The court observed that the recordings confirmed that petitioner and Fletcher remained “involved in a scheme to allow [petitioner] to submit inflated bills for reimbursement” and then to “pocket

the difference [between] the bills and the actual costs”

incurred by petitioner. Order 3. The court further explained that “statements are admissible even if they evidence an internal conflict between the defendant and

other members of the conspiracy,” such as the existence

of efforts to “ ‘collect [an] intra-conspiracy debt.’ ” Order

2 (quoting United States v. Graham, 711 F.3d 445, 454

(4th Cir.), cert. denied, 571 U.S. 963 (2013)).

2. The court of appeals affirmed in part, vacated and

remanded in part, and remanded for resentencing. Pet.

App. 1-37. 2

As relevant here, the court of appeals affirmed petitioner’s conviction for conspiracy to commit theft of government funds. Petitioner challenged his conspiracy

conviction principally by arguing that the district court

had erred in admitting the recorded conversations and

that the admission of that evidence had deprived him of

a fair trial. Petitioner argued that the government had

“failed to establish that the [recorded] statement[s]

w[ere] made during the course of the conspiracy or in

Over Judge Costa’s dissent, the panel majority vacated petitioner’s convictions on the two counts of theft of government funds

after finding plain error in the description of elements of the offense

in the indictment, jury instructions, and verdict form. Pet. App. 725; see id. at 38-44 (Costa, J., dissenting in part). Those rulings are

not at issue here.

2

7

furtherance of it” because the conversations occurred after the conspiracy had purportedly ended and because

petitioner and Fletcher were assertedly “acting as adversaries” in the conversations. Pet. App. 28.

The court of appeals unanimously rejected petitioner’s evidentiary challenge. Pet. App. 27-31. The court

observed that petitioner’s argument that the conspiracy

ended in 2011 rested on an assumption that the “conspiracy” was necessarily coterminous with the “overt acts

charged in the indictment,” which had occurred between

May and August 2011, id. at 29. The court noted that,

under long-established circuit precedent, “the evidentiary rule of conspiracy is founded on concepts of agency

law’ and therefore ‘differs from conspiracy as a crime.’ ”

Ibid. (quoting United States v. El-Mezain, 664 F.3d 467,

503 (5th Cir. 2011), cert. denied, 568 U.S. 977 (2012)).

The court further noted that “a conspiracy for the purpose of hearsay exclusion may be shown ‘merely by engaging in a joint plan that was non-criminal in nature.’ ”

Ibid. (brackets, citation, and ellipsis omitted).

Upon considering the trial record, the court of appeals found that the “statements, combined with the government’s ample evidence of the existence of a conspiracy between [petitioner] and Fletcher, show that the conspiracy remained in effect at the time the conversations

were recorded” in December 2012. Pet. App. 31. As the

court explained, the “recorded conversations themselves” not only “confirm[ed] the continuing nature of

the venture” as of December 2012, but they also reflected

petitioner’s “plans to continue working together in the

future.” Id. at 29-30.

The court of appeals also rejected petitioner’s argument that the recorded statements were not made in fur-

8

therance of the conspiracy because they reflected the existence of some disagreement between petitioner and

Fletcher. The court explained that “statements [made]

in order to encourage loyalty and obedience among the

conspirators” are readily understood to further the conspiracy. Pet. App. 31 (quoting United States v. Flores,

63 F.3d 1342, 1377 (5th Cir. 1995), cert. denied, 519 U.S.

825 (1996)) (brackets in original). The court accordingly

determined that “Fletcher’s attempt to enforce his understanding of his bargain with” petitioner—that is, his

demand for repayment of money given to petitioner to

help him win government-funded affordable-housing

projects—was therefore “made in furtherance of the

conspiracy.” Ibid.; see id. at 28.

ARGUMENT

Petitioner contends (Pet. 8-25) that this Court should

grant review to decide whether Federal Rule of Evidence

801(d)(2)(E) allows the admission of conspiratorial statements made in furtherance of non-criminal joint ventures.

But that question is not squarely presented on the facts of

this case, which involves a criminal conspiracy. The question also would not warrant review in any event, because

the court of appeals’ statements about the application of

Rule 801(d)(2)(E) to non-criminal joint ventures are correct and consistent with the decisions of every court of appeals to have specifically addressed the question. Furthermore, this case would be an unsuitable vehicle for the

addressing the question for the additional reason that the

challenged statements are admissible on alternative

grounds. The petition should be denied.

1. Under the Federal Rules of Evidence, hearsay is

“not admissible” unless authorized by statute or rule.

Fed. R. Evid. 802. The Rules generally define “hearsay”

to mean “a statement that: (1) the declarant does not

9

make while testifying at the current trial or hearing; and

(2) a party offers in evidence to prove the truth of the matter asserted in the statement.” Fed. R. Evid. 801(c). But

Rule 801(d) also sets forth five categories of statements

that are, as a definitional matter, “not hearsay” and therefore not rendered inadmissible by Rule 802. Fed. R. Evid.

801(d).

As relevant here, a statement is “not hearsay” if it is

“offered against an opposing party” and “was made by

the party’s coconspirator during and in furtherance of

the conspiracy.” Fed. R. Evid. 801(d)(2)(E). “Before admitting a co-conspirator’s statement over an objection

that it does not qualify under [the Rule], a court must be

satisfied that * * * [t]here [is] 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.’ ” Bourjaily

v. United States, 483 U.S. 171, 175 (1987) (quoting Fed.

R. Evid. 801(d)(2)(E) (1987)). That determination, which

must be made by a “preponderance of the evidence,” id.

at 176, may include consideration of the content of the

proffered statements themselves, id. at 181. A statement

is “in furtherance of the conspiracy” if it in any way “advance[s] the ultimate objects of the conspiracy,” United

States v. Ebron, 683 F.3d 105, 135 (5th Cir. 2012), cert.

denied, 571 U.S. 989 (2013), including by seeking “the

payment of money for services rendered in accomplishing the illegal goals of [the] conspiracy,” United States v.

Grant, 683 F.3d 639, 648 (5th Cir. 2012) (citation omitted); see generally Mark S. Brown et al., Weinstein’s

Federal Evidence § 801.34[5] (2d ed. 2017).

The evidentiary concept of “conspiracy” as used in

Rule 801(d)(2)(E) differs from the concept of “conspiracy”

as used in substantive criminal law. Rule 801(d)(2)(E),

10

which is “based on concepts of agency and partnership

law,” “ ‘embodies the long-standing doctrine that when

two or more individuals are acting in concert toward a

common goal, the out-of-court statements of one are . . .

admissible against the others, if made in furtherance of

the common goal.’ ” United States v. Gewin, 471 F.3d 197,

201 (D.C. Cir. 2006) (quoting United States v. Weisz,

718 F.2d 413, 433 (D.C. Cir. 1983), cert. denied, 465 U.S.

1027, and 465 U.S. 1034 (1984)). While “[s]ubstantive conspiracy laws create criminal penalties for coordinated

wrongdoing[,] Rule 801(d)(2)(E), on the other hand, addresses teamwork more generally.” 30B Charles Alan

Wright & Jeffrey Bellin, Federal Practice and Procedure

§ 6778, at 210 (2017) (Wright). As the Senate Advisory

Committee Note explains, the Rule thus “carr[ies] forward the universally accepted doctrine that a joint venturer is considered as a coconspirator for the purpose of

this [R]ule even though no conspiracy has been charged.”

Weisz, 718 F.2d at 433 (quoting S. Rep. No. 1277, 93d Cong.,

2d Sess. 26 (1974)) (second set of brackets in original). Accordingly, “admissibility under Rule 801(d)(2)(E) does not

turn on the criminal nature of the endeavor.” United

States v. El-Mezain, 664 F.3d 467, 502 (5th Cir. 2011),

cert. denied, 568 U.S. 977 (2012).

Every court of appeals to have addressed the issue

has determined that the term “conspiracy” in Rule

801(d)(2)(E) includes non-criminal joint undertakings. 3

Leading treatises are in agreement. See, e.g., 4 Christopher B.

Mueller & Laird C. Kirkpatrick, Federal Evidence § 8:59, at 497-498

& n.4 (4th ed. 2013) (noting that “[t]he exception can apply even if the

proponent does not show that the venture is unlawful”); Wright

§ 6778, at 210 (“For purposes of Rule 801(d)(2)(E), the goal of the

identified ‘conspiracy’ need not be criminal or even illicit.”) (footnote

omitted).

3

11

See, e.g., United States v. Russo, 302 F.3d 37, 45 (2d Cir.

2002) (“[T]he objective of the joint venture need not be

the crime charged in the indictment * * * . Indeed, the

objective of the joint venture that justifies deeming the

speaker as the agent of the defendant need not be criminal at all.”), cert. denied, 537 U.S. 1112 (2003); Government of the Virgin Islands v. Brathwaite, 782 F.2d 399,

403 (3d Cir. 1986) (the proponent of evidence under Rule

801(d)(2)(E) “need not show that the combination of individuals including the defendant * * * was ‘criminal or

otherwise unlawful’ ”) (citations omitted); United States

v. Nelson, 732 F.3d 504, 516 (5th Cir. 2013) (“A conspiracy may be shown ‘merely by engaging in a joint plan[]

. . . that was non-criminal in nature.’ ”) (quoting ElMezain, 664 F.3d at 502), cert. denied, 134 S. Ct. 2682

(2014)) (brackets in original); United States v. Kelley,

864 F.2d 569, 573 (7th Cir.) (“Rule 801(d)(2)(E) applies

not only to [criminal] conspiracies but also to joint ventures” and “a charge of criminal conspiracy is not required to invoke the evidentiary rule.”), cert. denied, 493

U.S. 811 (1989); United States v. Layton, 855 F.2d 1388,

1400 (9th Cir. 1988) (“Rule 801(d)(2)(E) applies to statements made during the course and in furtherance of any

enterprise, whether legal or illegal, in which the declarant

and the defendant jointly participated.”), cert. denied, 489

U.S. 1046 (1989), overruled on other grounds by Guam v.

Ignacio, 10 F.3d 608 (9th Cir. 1993); United States v.

Brockenborrugh, 575 F.3d 726, 735 (D.C. Cir. 2009) (“[D]espite its use of the word ‘conspiracy,’ Rule 801(d)(2)(E) allows for admission of statements by individuals acting in

furtherance of a lawful joint enterprise.”) (citing Gewin,

471 F.3d at 201-202, and Weisz, 718 F.2d at 433); see also

United States v. Porter, 933 F.2d 1010, 1991 WL 85290

12

(6th Cir.) (Tbl.) (per curiam), cert. denied, 502 U.S. 895

(1991).

2. a. Petitioner urges this Court to grant review to

decide whether the term “conspiracy,” as used in Rule

801(d)(2)(E), includes joint ventures undertaken for a

non-criminal purpose. That question, however, is not

squarely implicated here.

This case involves petitioner’s prosecution for, inter

alia, his participation in a criminal conspiracy to commit theft of government funds. At trial, the government

sought admission of the challenged recordings on the

ground that they contained coconspirator statements

made during and in furtherance of that same criminal

conspiracy. Although petitioner has argued that “whatever conspiracy existed * * * ended the year before, in

2011,” Pet. C.A. Br. 37, the district court found that (as

the indictment alleged) the criminal conspiracy in fact

continued through December 2012. See Order 2; Indictment 1. To the extent petitioner contends that the court

committed clear error in making that finding, cf. Pet. 67; Pet. C.A. Br. 37-41, that factbound challenge does not

warrant this Court’s review. See Sup. Ct. R. 10.

Thus, even if petitioner were correct that Rule

801(d)(2)(E) is limited to criminal combinations, the

statements at issue in this case would still be admissible

under that Rule. As the district court correctly recognized, see Order 2-3, the statements were made during

and in furtherance of a criminal conspiracy—indeed,

the very conspiracy for which petitioner was criminally

charged. See Gov’t C.A. Br. 34 (“The proof amply

showed that Fletcher was involved in an ongoing conspiracy to promote [petitioner’s] obtaining HUD funding for a total of four projects.”); id. at 34-37 (discussing

evidence supporting conclusion that “[t]he conspiracy

13

was still ongoing at the time of the [recorded] calls,” id.

at 37); cf. Pet. C.A. Br. 34 (acknowledging that the recordings at issue concerned “precisely the matter that

was the subject of the prosecution: the rehabilitation

projects at 202 South Street and 127 E. 5th Street”);

Pet. C.A. Reply Br. 12 (describing the recordings as

“the heart of the Government’s evidence in this case”).

The court of appeals did not disturb the district

court’s determination on that point or otherwise tie the

validity of petitioner’s conviction to the admissibility

under Rule 801(d)(2)(E) of statements in furtherance of

a venture that does not itself directly violate the criminal laws. Although the court of appeals explained that

the Rule does, in fact, allow such statements to be admitted, see Pet. App. 29, its analysis of the specific record here is consistent with the district court’s finding of

a continuing criminal conspiracy at the time the relevant statements were made, id. at 30-31. The court of

appeals determined that the “statements, combined

with the government’s ample evidence of the existence of

a conspiracy between [petitioner] and Fletcher, show

that the conspiracy remained in effect at the time the

conversations were recorded.” Id. at 31. Given that the

statements included a reference to the 5th Street project

that was the subject of the criminal charges, see id. at 30,

that analysis indicates an ongoing criminal conspiracy.

The court’s judgment was accordingly correct regardless

of the resolution of the question presented.

b. In any event, the question raised by petitioner

would not warrant this Court’s review even were it

squarely presented. The court of appeals’ statement

that “a conspiracy for the purpose of the hearsay exclusion may be shown ‘merely by engaging in a joint plan

14

that was non-criminal in nature,’ ” Pet. App. 29 (brackets, ellipsis, and citation omitted), is both correct and

consistent with both the decisions of this Court and with

every federal court of appeals to have specifically addressed the question. See pp. 10-12, supra.

Petitioner asserts (Pet. 9-12) that the court of appeals’

recitation of the law conflicts with this Court’s decision

in Bourjaily, supra. As reflected in the very passages

that petitioner has excerpted (Pet. 9-10), however,

Bourjaily in no way addressed the question whether a

“conspiracy” requires the existence of a criminal objective for purposes of Rule 801(d)(2)(E). Similarly, the

other decisions cited by petitioner (Pet. 10-16)—Giles v.

California, 554 U.S. 553 (2008), Crawford v. Washington,

541 U.S. 36 (2004), and United States v. Inadi, 475 U.S.

387 (1986)—did not concern interpretation of Rule

801(d)(2)(E) at all, but instead addressed the distinct

question whether the admission of out-of-court coconspirator testimony would violate the Confrontation

Clause. See, e.g., Giles, 554 U.S. at 374 n.6 (explaining

that coconspirator statements generally “d[o] not violate

the Confrontation Clause” because such statements are

not “testimonial” when made).

c. Petitioner’s contention (Pet. 16-21) that the court

of appeals’ recitation of the law conflicts with decisions

of other courts of appeals is similarly misplaced. As

noted above, all of the courts of appeals that have specifically addressed the question have concluded, as the

court of appeals did below, that Rule 801(d)(2)(E) applies in the context of lawful joint ventures or agreements to pursue lawful objectives. See pp. 10-12, supra.

Petitioner maintains that “[t]he First, Third, Fourth,

Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits all

require that the association be a criminal one for the

15

hearsay exception to be available.” Pet. 20-21 (footnotes omitted). But none of the cases cited by petitioner

(Pet. 20-21 nn.25-32) actually addressed the question

whether Rule 801(d)(2)(E) applies to non-criminal combinations. To the extent that some of the cited cases

make reference to, e.g., the existence of an “illicit association,” United States v. Broome, 732 F.2d 363, 364 n.1

(4th Cir.), cert. denied, 469 U.S. 855 (1984), a “joint

criminal venture,” United States v. Craig, 522 F.2d 29,

31 (6th Cir. 1975), or the “unlawful ends of [a] conspiracy,” United States v. Dickerson, 248 F.3d 1036, 1050

(11th Cir. 2001), cert. denied, 536 U.S. 957 (2002), those

statements simply reflect that the facts of those cases

involved allegedly criminal combinations. 4 Indeed, two

of the circuits that petitioner mistakenly claims (Pet.

See Broome, 732 F.2d at 364 & n.1 (rejecting appellant’s argument that government had failed to prove that appellant “kn[ew]”

about a conspiracy to “transport and sell stolen motor vehicles in

interstate commerce”); Craig, 522 F.2d at 31 (finding lack of “sufficient evidence from which the jury could have found that a conspiracy or joint criminal venture existed between Patterson and Craig”

to possess illegal drugs, because there was no evidence of a “proof

of [an] agreement among the parties”); Dickerson, 248 F.3d at 1050

(affirming admission of written entries in telephone book under

Rule 801(d)(2)(E) because the entries “facilitat[ed] communication

among co-conspirators to engage in the unlawful ends of the conspiracy, for example, the scheduling of cocaine deliveries”).

The almost two dozen other cases cited by petitioner are similar.

See, e.g., United States v. Morrow, 39 F.3d 1228, 1234-1236 (1st Cir.

1994) (conspiracy to commit automobile insurance fraud), cert. denied, 514 U.S. 1010, and 514 U.S. 1045 (1995); United States v. Meggers, 912 F.2d 246, 248-250 (8th Cir. 1990) (conspiracy to distribute

and possess with intent to distribute marijuana and cocaine); United

States v. Jannotti, 729 F.2d 213, 218-219 (3d Cir.) (conspiracy to interfere with interstate commerce and conduct a racketeering enterprise), cert. denied, 469 U.S. 880 (1984).

4

16

20-21 & nn. 26, 29) as being in conflict with the decision

below have expressly recognized that Rule 801(d)(2)(E)

is not limited in the manner petitioner asserts. See

Smith v. Bray, 681 F.3d 888, 904-905 (7th Cir. 2012)

(collecting Seventh Circuit cases), overruled on other

grounds by Ortiz v. Werner Enters., Inc., 834 F.3d 760

(7th Cir. 2016); Brathwaite, 782 F.2d at 403 & n.1 (3d

Cir.). 5 Accordingly, no disagreement among the courts

of appeals warranting this Court’s intervention exists.

3. In any event, this case would be an unsuitable vehicle for addressing the proper interpretation of Rule

801(d)(2)(E) because the conversations at issue in this

case would still be admissible on other grounds. As the

government argued below, see Gov’t C.A. Br. 38-41, petitioner’s own statements during the recorded calls are

admissible as the admission of a party opponent. See

Fed. R. Evid. 801(d)(2)(A) (providing that a statement

is “not hearsay” if it is “offered against an opposing

party” and “was made by the party in an individual or

representative capacity”). In turn, Fletcher’s statements to petitioner during those conversations are derivatively admissible because they “were reciprocal and

integrated utterances and * * * put [petitioner’s] own

statements in context.” United States v. Flores, 63 F.3d

1342, 1358-1359 (5th Cir. 1995), cert. denied, 519 U.S.

825 (1996); see also, e.g., United States v. Davis,

890 F.2d 1373, 1380 (7th Cir. 1989) (collecting cases

“embrac[ing] the evidentiary rule that the entirety of

Even one of the cases cited by petitioner (Pet. 21 n.29), United

States v. Coe, 718 F.2d 830 (7th Cir. 1983), expressly recognizes that

Rule 801(d)(2)(E) applies to non-criminal “joint venture[s].” Id. at

835; see id. at 836 n.3 (“In a civil case, there may be no criminal

conspiracy or unlawful actions involved, yet the coconspirator or

‘joint venture’ hearsay exception could be invoked.”).

5

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tape recorded conversations between a defendant and a

third party informant are admissible where the defendant’s statements are offered as verbal acts or admissions and the third party’s statements are necessary to

place the defendant’s statements in a proper context”),

cert. denied, 493 U.S. 1092 (1990).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

BRIAN A. BENCZKOWSKI

Assistant Attorney General

ROSS B. GOLDMAN

Attorney

AUGUST 2018