Facts of the Case

William Bourjaily was arrested after receiving a quantity of cocaine in a parking lot from Angelo Lonardo. At Bourjaily's trial, the government introduced statements Lonardo made in a telephone conversation with an informant regarding a "friend" who had questions about the cocaine. The district court, considering the events in the parking lot and Lonardo's statements over the telephone, found that the government had established that a conspiracy existed between Bourjaily and Lonardo, and that Lonardo's statements over the telephone had been made in the course of and in furtherance of the conspiracy. Accordingly, the court held that Lonardo's out-of-court statements satisfied Federal Rule of Evidence 801(d)(2)(E) and were not hearsay.

Question

(1) In order to consider the statements of a coconspirator as non-hearsay, must the court determine by evidence independent of the statements themselves that the conspiracy existed and that the defendant and declarant were members of this conspiracy? (2) What is the quantum of proof on which such determinations must be based? (3) Must the court in each case examine the circumstances of such a statement to determine its reliability?

Conclusion

No; preponderance of the evidence; and no. When the existence and membership of a conspiracy are disputed, the traditional standard applies: the party offering the statements under Rule 801(d)(2)(E) must prove these preliminary facts by a preponderance of the evidence. Rule 104(a) provides that, in determining preliminary questions concerning admissibility, the court "is not bound by the rules of evidence" (except those with respect to privileges). Therefore, hearsay, including the statements sought to be admitted, can be considered. Finally, since the co-conspirator exception to the hearsay rule is rooted firmly in precedent, no independent inquiry into reliability is required by the Confrontation Clause of the Sixth Amendment.