Opinion
CRIMINAL ACTION NO. 3:07CR154-P-A.
October 9, 2008
ORDER
This matter comes before the court upon Defendant Ali Taher Obad's motion for a hearing pursuant to U.S. v. James, 590 F.2d 575 (5th Cir. 1979) [107]. After due consideration of the motion and the responses filed thereto, the court finds as follows, to-wit:
The motion should be denied insofar as it seeks a separate James hearing outside the presence of the jury prior to trial to determine whether statements by a coconspirator are admissible. As the Fifth Circuit noted in U.S. v. Fragaso, 978 F.2d 896, 899 (5th Cir. 1992), the Supreme Court in Bourjaily v. United States, 483 U.S. 171 (1987) "the court need not hold a James hearing outside the jury's presence." In fact, the Fifth Circuit in Fragaso observed that " James has never required a hearing outside the presence of the jury." Id. at 899. The decision in " Bourjaily `swept' away a major portion of our James decision." Id. at 899.
However, during trial, the court recognizes that it must "whenever reasonably practical, require the showing of a conspiracy and of the connection of the defendant with it [pursuant to Federal Rule of Evidence 801(d)(2)(E)] before admitting declarations of a coconspirator." Fragaso, 978 F.2d at 900. In complying with Rule 801(d)(2)(E), the court must determine whether there is sufficient "evidence that there was a conspiracy involving the declarant and the nonoffering party, and that the statement was made `during the course and in furtherance of the conspiracy.'" Id. at 899 (quoting Bourjaily, 483 U.S. at 175).
IT IS THEREFORE ORDERED AND ADJUDGED that Defendant Ali Taher Obad's motion for a hearing pursuant to U.S. v. James, 590 F.2d 575 (5th Cir. 1979) [107] is DENIED as explained above.
SO ORDERED.