United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
K. KALLON UNITED STATES DISTRICT JUDGE.
the court is David Roberson's motion for a pretrial
James hearing to rule on the admissibility of all
Rule 801(d)(2)(E) co-conspirator statements that the
Government may seek to introduce at trial, doc. 60, which
Joel Gilbert and Steven McKinney have adopted. See
doc. 108. Based on the relevant law, the motion is due to be
Congress promulgated the Federal Rules of Evidence,
out-of-court statements by co-conspirators made in
furtherance of the conspiracy-though technically hearsay-were
admissible under the legal fiction that they are opposing
party admissions. That is, under common law agency
principles, each co-conspirator is an agent of the other, and
thus the declaration of one is attributable to all.
See David S. Davenport, The Confrontation Clause
and the Co-Conspirator Exception in Criminal Prosecutions: A
Functional Analysis, 85 Harv. L. Rev. 1378, 1385 (1972).
But allowing the jury to hear such statements before the
court deems them admissible “endangers the integrity of
the trial because the relevancy and apparent probative value
of the statements may be so highly prejudicial as to color
other evidence even in the mind of a conscientious juror,
despite instructions to disregard the statements or to
consider them conditionally.” United States v.
James, 590 F.2d 575, 579 (5th Cir. 1979) (en banc). To
obviate this danger, the former Fifth Circuit instructed
district courts to require, “whenever reasonably
practicable, ” that proponents of out-of-court
co-conspirator statements first prove the existence of the
conspiracy and the statement's connection to it in a
separate hearing before admitting the statement. Id.
courts risk “manifestly greater danger of error”
without holding the so-called James hearing, the
hearing is not mandatory. See United States v.
Ricks, 639 F.2d 1305, 1308-09 (5th Cir. 1981) (holding
that courts may “proceed without the clumsiness of
bifurcated testimony from individual witnesses” when
the Government's predicate facts are “substantial,
” or when it would not be “reasonably
practicable” to conduct a separate pretrial hearing).
Indeed, even the James court allowed for courts to
dispense with the hearing and to conditionally admit
out-of-court co-conspirator statements, subject to the
Government “connect[ing] up” the statement to the
conspiracy later. James, 590 F.2d at 581. This
entailed a showing of “substantial independent
evidence” of the predicate facts-that a conspiracy
existed; that the co-conspirator and the defendant against
whom the co-conspirator's statement is offered were
members of the conspiracy; and that the statement was made in
furtherance of the conspiracy. Id. at 583.
the James decision, the Supreme Court clarified that
the proponent of such a statement need only prove the
predicate facts by a preponderance of the evidence and that
courts may consider the statement itself, in conjunction with
independent evidence, when determining its admissibility.
Bourjaily v. United States, 483 U.S. 175-80 (1987)
(rejecting a rule prohibiting “bootstrapping”
because co-conspirator statements may “themselves be
probative of the existence of a conspiracy and the
participation of both the defendant and the declarant in the
conspiracy”). Congress subsequently codified this rule
in the Federal Rules of Evidence. See Fed. R. Evid.
801(d)(2)(E). Still, post-Bourjaily, the practice of
conducting James hearings has continued in this
Circuit. See e.g., United States v. Tipton,
572 Fed.Appx. 743, 747 (11th Cir. 2014); United States v.
Harrison, 246 Fed.Appx. 640, 653 (11th Cir. 2007).
Courts have noted, however, that Bourjaily
“significantly alleviated the dangers addressed in
James by holding that the threshold for the
admissibility of Rule 801(d)(2)(E) statements is lower than
the standard expressed in James.” United
States v. Sotolongo, No. 6:13-CR-99-ORL-37KRS, 2014 WL
906130, at *1 (M.D. Fla. Mar. 7, 2014); see also United
States v. Stevens, No. CR 3-09-004, 2009 WL
2842741, at *7 (S.D. Ga. Sept. 1, 2009) (holding that
Bourjaily “lessened” the “need for
a James hearing”).
now to the specifics here, the Defendants argue first that a
James hearing is necessary because the “cost
of a mistrial would be extremely high, ” given the
complexity of the case and that the trial is expected to last
four to six weeks. Doc. 60 at 3. But the “practical
underpinnings to James's pretrial-hearing
preference were significantly undermined by
[Bourjaily], ” as courts may now consider the
content of co-conspirator statements themselves to determine
their admissibility. See United States v. Johnson,
No. 2:12-CR-84-MHT, 2012 WL 5392267, at *1 (M.D. Ala. Nov. 5,
2012). Bourjaily thus “amplified” an
already liberal standard and reduced the likelihood of a
mistrial based on the admission of purported Rule
801(d)(2)(E) statements. See United States v. Byrom,
910 F.2d 725, 735 (11th Cir. 1990).
the Defendants argue that a James hearing is
“reasonably practicable” because the trial is
still a few months out. Doc. 60 at 4. The court disagrees
because the conspiracy evidence “lies at the heart
of” the Government's case, doc. 82 at 7-9, and a
James hearing would likely last multiple days,
especially given the complexity of the case. See
Ricks, 639 F.2d at 1308-09 (holding that a
James hearing is not reasonable practicable when it
would effectively require “trying the case
twice”); United States v. Lippner, 676 F.2d
456, 464 (11th Cir. 1982) (“[U]nder the circumstances a
James hearing would in essence have required trying
the case twice.”); United States v. Hernandez,
829 F.2d 988, 994 (10th Cir. 1987) (“[T]he pretrial
[James] hearing would have taken approximately one
week and would have involved recalling the officers,
witnesses, and counsel in a complicated and repetitive
court also disagrees that a James hearing would
promote judicial economy, doc. 91 at 6, or that “it
would be a pittance” compared to holding multiple
trials, doc. 94 at 8-9. The complex nature of the charges
notwithstanding, allowing the Government to put on its
case-in-chief in a single cohesive setting best serves the
interests of judicial economy by avoiding complex, piecemeal
litigation. Moreover, the risk of prejudice to the Defendants
is low because the Government has produced “a large
number of statements made by the co-conspirators, including
in hundreds of emails and other documents.”
See doc. 82 at 7. The Defendants therefore have time
to prepare specific objections to any purported Rule
801(d)(2)(E) statements they believe are inadmissible.
the Defendants contend that the danger of prejudice is high
because the indictment alleges no unlawful activity during
the bulk of the purported conspiracy and because the
Government may seek to introduce statements by unindicted
co-conspirators. Docs. 60 at 3-4; 91 at 1-7; 94 at 1-10.
However, the Government has asserted that it currently knows
of no unindicted co-conspirators.
75 at 6; 76 at 8. Therefore, there is no “substantial
risk that the Government may try to introduce out-of-court
statements from several unknown coconspirators.”
See docs. 60 at 5; 94 at 9-10. And, should that
change, in its order denying the motions for a bill of
particulars, the court has ordered the Government to identify
those individuals if (1) it plans to call them as witnesses,
and (2) their identities are essential for the Defendants to
understand the charges against them. See doc. 110.
Likewise, as the court explained in that same order, there is
no merit to the Defendants' argument about the alleged
failure to allege any unlawful acts during the bulk of the
purported conspiracy. See doc. 110.
these reasons, the court agrees with the Government that a
James hearing would grant a windfall of discovery to
the Defendants and give them a sneak preview of the
Government's theory. Accordingly, because the Defendants
are not entitled “to compel the government to [offer a]
detailed exposition of its evidence or to explain the legal
theories upon which it intends to rely at trial, ”
see United ...