Ex Post Conspiracy: D.C. Circuit Finds Statements Made After Conspiracy Improperly Admitted Under Rule 801(d)(2)(E)

Federal Rule of Evidence 801(d)(2)(E) provides that

A statement that meets the following conditions is not hearsay:….

The statement is offered against an opposing party and:….

was made by the party’s coconspirator during and in furtherance of the conspiracy.

As the language of Rule  801(d)(2)(E) makes clear, co-conspirator statements are only admissible if they are made “during and in furtherance of the conspiracy.” Therefore, any statements made after the conspiracy is over, such as statements made after apprehension, are inadmissible under the Rule. This takes us to United States v. Miller, 2013 WL 6818391 (D.C. Cir. 2013).

In Miller, Frederick Miller, Gerald Eiland, and Timothy R. Thomas appealed their convictions stemming from a narcotics distribution scheme in Southeast, Washington, D.C. between 1999 and 2004. One of the grounds for the appeal by Miller and Thomas was that the district court erred by permitting Melvin Wider to testify regarding conversations he had with Eiland and Robert Bryant because these conversations were made neither during nor in furtherance of a conspiracy.

Importantly, these statements were made while the three men were incarcerated in 2005, after the subject conspiracy had been completed. As such, the D.C. Circuit was easily able to conclude that

The admission of Wider’s testimony was error, not because of lack of independent evidence of a conspiracy, but because none of the statements to Wider by Eiland or Bryant can be construed as in furtherance of the conspiracy, which ended in September 2004, several months before any of the statements were made to Wider. There is no evidence that either Eiland or Bryant did anything after their respective August and October 2004 arrests to carry out the goals of the conspiracy, and their statements cannot “plausibly be interpreted” as advancing the conspiracy….Rather, the co-conspirators’ statements recounted “past victories and losses” and were “casual comments”… or “idle chatter”….The government’ suggestion that statements recounted by Wider describing the conspiracy’s drug trafficking and other illegal activities were made in furtherance of the conspiracy because they “‘updated’ Wider about the status of the drug trafficking business, and provided ‘background information’ on the conspiracy’s members”…ignores the temporal element of the conspiracy and the absence of any evidence the speakers were attempting to induce Wider to join or provide assistance to the terminated conspiracy…. 

-CM