United States District Court, E.D. Tennessee, Knoxville
MEMORANDUM AND ORDER
C. Poplin United States Magistrate Judge.
pretrial motions in this case have been referred to the
undersigned pursuant to 28 U.S.C. § 636(b) for
disposition or report and recommendation regarding
disposition by the District Court as may be appropriate. This
matter is before the Court upon Defendant Lloyd's Motion
for a Hearing to Determine the Existence of a Conspiracy
[Doc. 85], filed on March 3, 2019. The Government filed a
response in opposition on March 12, 2019 [Doc. 99].
evidentiary hearing was held on Defendant's pending
motions on March 28, 2019 [Docs. 104 & 112]. Assistant
United States Attorney Brent Jones appeared on behalf of the
Government. Attorney Mark E. Brown represented the Defendant,
who was also present. For the reasons discussed in full below,
Defendant's Motion for a Hearing to Determine the
Existence of a Conspiracy [Doc. 85] will be
POSITIONS OF THE PARTIES
moved [Doc. 85] for a pretrial hearing to determine the
existence of a conspiracy, pursuant to Bourjaily v.
United States, 483 U.S. 171, 180 (1987); United
States v. James, 590 F.2d 575 (5th Cir.), cert.
denied, 442 U.S. 917 (1979); and United States v.
Vinson, 606 F.2d 149, 152-53 (6th Cir. 1979), in which
he argues that Government must prove that the conspiracy
existed before it may introduce co-conspirator statements in
its case-in-chief at trial. Defendant argues that a pretrial
hearing is necessary to protect against the danger of unfair
prejudice or inadmissible hearsay at trial, ensure efficiency
during the trial, and ensure Defendant's rights under the
Government opposes [Doc. 99] Defendant's motion,
maintaining that the admission of co-conspirator statements
at trial subject to a later demonstration of their
admissibility is a practice that is approved by the Sixth
Circuit, traditionally employed in this District, conserves
judicial resources, and has not heretofore caused mistrials
or other adverse effects.
the motion hearing, Mr. Brown briefly discussed the need for
a pretrial hearing to determine the existence of a conspiracy
in order to prevent the jury from hearing potential testimony
that would be deemed inadmissible.
Federal Rules of Evidence require that for a statement of a
co-conspirator to be admissible non-hearsay, the statement
must be “made by the party's coconspirator during
and in furtherance of the conspiracy.” Fed.R.Evid.
801(d)(2)(E). The Sixth Circuit has approved three procedures
for resolving the admissibility of alleged co-conspirator
statements: (1) holding a pretrial hearing, (2) requiring at
trial that the government present evidence of the conspiracy
before presenting the coconspirator's statement, and (3)
allowing the government to present the statement before
proving the conspiracy at trial but instructing the jury that
the government must prove the conspiracy before it can
consider the statement. Vinson, 606 F.2d at 152-53
(6th Cir. 1979) (citing United States v. Enright,
579 F.2d 980 (6th Cir. 1978)).
requests the first of these options, a pretrial hearing. The
Court observes that it is the historical practice in this
District to use the third of the three options, which the
Court will refer to as the provisional admission option.
Defendant argues that a pretrial hearing is the most
efficient way to protect his right to due process and to
confront the witnesses against him.
Sixth Circuit has observed that pretrial hearings have the
disadvantage of being “burdensome, time-consuming and
uneconomic.” Id. at 152 (footnote omitted).
Nevertheless, “a trial judge, in the exercise of his
discretion, may choose to order the proof in this manner if
the circumstances warrant.” Id. The decision
of which of the three Vinson options to use falls
squarely within the district judge's sound discretion.
United States v. Robinson, 390 F.3d 853, 867 (6th
Cir. 2004) (stating the decision is “the trial
court's prerogative”). A change from the
provisional admission option, historically employed in this
District, is not warranted when the proponents of the
pretrial hearing offer only “general and vague
objections” that “demonstrate no specific
prejudice” resulting from the use of the provisional
admission option. United States v. Martin, No.
3:07-CR-51, 2008 WL 152900, at *3 (E.D. Tenn. Jan. 14, 2008).
instant case, Defendant argues that presenting the statements
of co-conspirators without first showing that they
participated in a conspiracy with the other alleged
co-conspirators would taint the jury with the evidence of the
conspiracy. The Court finds that Defendant's taint or
spillover objection could be raised in every case in which a
conspiracy is charged. Defendant essentially argues that if
the Government fails to prove that he participated in the
charged conspiracy, then his right to confrontation would be
violated by the admission of a co-conspirator statement that
is not admissible under Rule 801(d)(2)(E). Defendant contends
that he would then be prejudiced by the admission of
Defendant has failed to argue how such prejudice is
specifically or particularly likely in the present case. For
a defendant to establish substantial prejudice from a
“spillover” of evidence, he must show that the
jury will not be able to separate and treat as distinct the
evidence relating to each count or defendant. United
States v. Murphy, 836 F.2d 248, 256 (6th Cir. 1988). In
the present case, the Court finds that Defendant has given no
reason that the jury would be unable to consider the evidence
relating to each defendant, and therefore, Defendant has
“demonstrated no specific prejudice” resulting
from the use of the provisional admission option. See
Martin, 2008 WL 152900, at *3. The Court has considered
Defendant's position and finds no reason to depart from
the traditional provisional admission approach in this case.
As Defendant's motion relates directly to trial
procedures and/or the admissibility of evidence at trial, the
Court defers to the historical practice employed in this
District of permitting the Government to present the
statement before proving the conspiracy and then instructing
the jury that the Government must prove the conspiracy before
it can consider the statement. Accordingly, Defendant's
Motion for Hearing to Determine the Existence of a Conspiracy
[Doc. 85] is DENIED.