United States District Court, M.D. Alabama, Northern Division
H. THOMPSON UNITED STATES DISTRICT JUDGE
G. Ford Gilbert, Martin J. Connors, and Randall M. Davis have
been charged with conspiracy to commit offenses against the
United States, specifically bribery concerning a program
receiving federal funds, in violation of 18 U.S.C.
§§ 371 & 666(a), as well as other offenses.
This matter is now before the court on Gilbert's and
Davis's requests for a pretrial hearing to determine the
admissibility of coconspirators' statements, and motions
in limine to exclude those statements from trial.
Based on the submissions of both parties as well as the
record developed so far as a whole, the court concludes that
a pretrial hearing is not necessary in this case, as
demonstrated below, and the motions are denied.
United States v. James, 590 F.2d 575 (5th Cir.
1979), the former Fifth Circuit Court of Appeals set out the
procedure for determining whether a coconspirator statement
meets the requirements of Rule 801(d)(2)(E). (In Bronner
v. Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), the
Eleventh Circuit Court of Appeals adopted as binding
precedent all of the decisions of the former Fifth Circuit
handed down prior to the close of business on September 30,
1981.) Under James, the government bore the burden
of proving the existence of an underlying conspiracy by
“substantial” evidence “independent of the
hearsay declarations of the coconspirators.”
James, 590 F.2d at 580-81 (internal quotation marks
omitted). The court's determination of whether the
government has met its burden could be made prior to trial
during a hearing outside the presence of the jury, or a
statement could be admitted subject to the requirement that
the government will “connect it up” by the end of
trial, that is, will establish a proper foundation for the
admission of the statement. Id. at 581-82. But,
under James, the “preferred” order of
proof was a pretrial hearing “whenever reasonably
practicable, ” wherein the trial court would assess the
evidence of a conspiracy before admitting coconspirator
statements, id. at 582, though the Eleventh Circuit
has later re-emphasized that such hearings are not mandatory.
United States v. Espino-Perez, 798 F.2d 439, 441
(11th Cir. 1986).
practical underpinnings to James's pretrial
hearing preference were significantly undermined by the
United States Supreme Court's ruling in Bourjaily v.
United States, 483 U.S. 171 (1987). There, the Court
held, contrary to what was said in James, that the
government need prove the preliminary facts establishing a
conspiracy only by a preponderance of the evidence and that
the statements sought to be admitted could themselves be
examined as evidence of the underlying conspiracy. See
id. at 176, 181. Rule 801 was subsequently revised to
incorporate the Bourjaily ruling, stating:
“The statement must be considered but does not by
itself establish ... the existence of the conspiracy or
participation in it.” Fed.R.Evid. 801(d)(2). Currently,
“[f]or evidence to be admissible under Rule
801(d)(2)(E), the government must prove by a preponderance of
the evidence these things: (1) a conspiracy existed; (2) the
conspiracy included the declarant and the defendant against
whom the statement is offered; and (3) the statement was made
during the course and in furtherance of the
conspiracy.” United States v. Hasner, 340 F.3d
1261, 1274 (11th Cir. 2003).
and Davis do not raise any arguments specific to the facts of
their case, but only invoke the generalized concern that if
this court forgoes holding a pretrial James hearing,
they may suffer irreversible prejudice at trial. The
government responds that holding a James hearing is
no longer the norm in the Eleventh Circuit and that it would
be more efficient to admit the coconspirator statements at
issue subject to their being connected up by the close of the
government's evidence. This court routinely handles
evidentiary issues at trial and may do so by instructing the
jury as to what evidence it may consider in relation to each
considered the parties' submissions and the record
developed thus far, the court concludes that a James
hearing is not necessary in this case, for the court can
adequately address the moving defendants' evidentiary
concerns during the trial itself. See United States v.
Sanchez, 722 F.2d 1501, 1507 (11th Cir. 1984) (holding
that a separate James hearing was not required, and
it was not error to decide the James issue after the
government had introduced the statements into evidence).
for the foregoing reasons, it is ORDERED that defendant G.
Ford Gilbert's and defendant Randall M. Davis's
motions for a pretrial hearing to determine admissibility of
coconspirator statements and motions in limine, to
the extent they concern the admissibility of ...