United States District Court, W.D. Louisiana, Monroe Division
MAURICE HICKS, JR. UNITED STATES DISTRICT JUDGE.
the Court is Defendant Brad A. McIntyre's
(“McIntyre”) Motion for Hearing on Admissibility
of Alleged Co-Conspirator Statements (Record Document 51).
The Government opposes McIntyre's Motion. See
Record Document 54. For the reasons contained in the instant
Memorandum Ruling, McIntyre's Motion is DENIED.
AND PROCEDURAL BACKGROUND
October 28, 2015, a federal grand jury in Shreveport,
Louisiana, indicted McIntyre in a ten-count indictment.
See Record Document 1. The indictment alleges a
conspiracy to defraud the United States by McIntyre and some
of his family members and employees by creating fake farming
operations to receive farming subsidies from the United
States Department of Agriculture (“USDA”).
See id. The specific counts in the indictment are as
follows: (1) Conspiracy to Commit Mail Fraud in violation of
18 U.S.C. § 1349; (2)-(6) Mail Fraud in violation of 18
U.S.C. § 1341; (7)-(10) Engaging in Monetary
Transactions in Property Derived from Specified Unlawful
Activity in violation of 18 U.S.C. § 1957. See
February 7, 2017, McIntyre filed the instant Motion for
Hearing. See Record Document 51. McIntyre seeks a
hearing to determine whether certain prior statements by
McIntyre's unindicted co-conspirators, particularly his
sister, nieces, and employees, fit within the hearsay
exclusion for co-conspirator statements in Fed.R.Evid.
801(d)(2)(E). See id. The Government opposes the
Motion for Hearing, arguing that a hearing is not required to
determine the admissibility of these statements as
non-hearsay under this Rule. See Record Document 54.
Motion for Hearing, McIntyre primarily relies upon United
States v. James, 590 F.2d 575 (5th Cir. 1979).
See Record Document 51. McIntyre argues that because
there have not yet been any proceedings before the Court, the
Court has not yet had the opportunity to “fulfill its
gate-keeping role and analyze the factual backdrop that the
Government contends would provide the basis for the
admissibility” of the alleged co-conspirator
statements. Id. at 3. By contrast, the Government
argues that a hearing is neither required nor necessary to
admit such statements under Fed.R.Evid. 801(d)(2)(E).
See Record Document 54.
Court agrees with the Government. In United States v.
James, the Fifth Circuit stated that “the district
court should, whenever reasonably practicable, require the
showing of a conspiracy and of the connection of the
defendant with it before admitting declarations of a
coconspirator.” 590 F.2d at 582. The Court must find
three elements by a preponderance of the evidence as a
preliminary question of fact to admit statements by
co-conspirators under the co-conspirator exclusion from
hearsay in Fed.R.Evid. 801(d)(2)(E): (1) the speaker
conspired with the person against whom the statement is
offered; (2) the statement was made during the course of the
conspiracy; and (3) the statement was made in furtherance of
the conspiracy. See Bourjaily v. United States, 483
U.S. 171, 175 (1987).
“no hearing is required” for the Court to make
these factual determinations. United States v. West,
58 F.3d 133, 142 (5th Cir. 1995). In fact, though ultimately
at the discretion of the district court, James'
stated preference for a pretrial hearing to make a factual
finding on these elements
. . . raises serious practical problems. Proving conspiracy
is a complicated business, and traditionally prosecutors have
considerable leeway in the order of proof. Proving the
predicate facts is so intertwined with proving the merits
that requiring two presentations involves enormous
duplication of time and effort. Prudential reasons favor a
separate admissibility hearing, but it is time-consuming and
fraught with practical difficulties. Hence it is largely
settled that a court may admit coconspirator hearsay
Christopher B. Mueller & Laird C. Kirkpatrick,
Evidence § 8.34, (5th ed. 2012).
the Court is free to conditionally admit the out of court
statements by the alleged co-conspirators subject to
satisfaction of the three necessary elements by subsequent
testimony or other evidence. See West, 58 F.3d at
142; see United States v. Blevins, 960 F.2d 1252,
1256 (4th Cir. 1992); see Fed.R.Evid. ...