Opinion
Crim. No. EP-03-CR-1823(KC)
December 11, 2003
ORDER
On December 5, 2003, this Court granted defendant's motion for a James hearing and scheduled the hearing for December 12, 2003 at 9:00 a.m. The Government's opposition, filed on December 9, 2003, is construed as a motion for reconsideration of the order granting defendant's motion for a hearing. The order scheduling a James hearing is vacated. The potion of the same order granting a James hearing is hereby reconsidered and adhered to.
The Government correctly points out that "James never required a hearing outside the presence of the jury." United States v. Fragoso, 978 F.2d 896, 899 (5th Cir. 1992). The Government also correctly points out that Bourjaily v. United States, 483 U.S. 171, 175 (1987), substantially diminished the substantive import of James. James is not, however, a dead letter with respect to procedural matters in determining the existence of a conspiracy for purposes of Federal Rule of Evidence 801(d)(2)(E). United States v. Williams, 264 F.3d 561, 578 (5th Cir. 2001).
It has been noted that "James does not mandate a pretrial evidentiary hearing . . . [but that a] separate hearing out of the jury's presence would be the optimum method for avoiding inadvertent introduction of hearsay and resulting reversible error." United States v. Gonzalez, 700 F.2d 196, 203 (5th Cir. 1983). There are in fact a number of permissible methods in determining the admissibility of co-conspirator statements. Williams, 264 F.3d at 578 (citing United States v. James, 590 F.2d 575, 581 (5th Cir. 1979)). While the Government argues that admitting hearsay statements over objection is an appropriate approach and cites to a number of decisions in which the Fifth Circuit Court of Appeals has not reversed trial court decisions as a result of the approach, see, e.g., United States v. Gonzalez, 700 F.2d 196, 203 (5th Cir. 1983) ("we cannot condemn the trial court's admission of [defendant's] statement subject to a later finding of substantial independent evidence "), it is not apparent that the decisions constitute any more than a statement that the ultimate evidentiary determination to admit the statements was not improper. Had one of the decisions addressed an improper admission of hearsay evidence over objection when a court rendered an ultimate finding that a conspiracy was not established by a preponderance of the evidence, this Court might be inclined to conclude that the approach is appropriate and not simply illustrative of a fortunate outcome. If co-conspirators statements are presented to a jury, the original concerns discussed in James, specifically whether such an error could be sufficiently addressed by a curative instruction or would instead require a mistrial, James, 590 F.2d at 583, would appear as relevant today as they were when James was decided.
As such, this Court is not amendable in the present case to the "wait and see" approach of admitting a co-conspirator's statement over objection. Such approach appears to tread dangerously in the path of a potential mistrial should the Government fail to carry its burden of establishing the existence of a conspiracy. James prescribes two approaches, which can be modified to accommodate the substantive changes set forth in Bourjaily.
As Bourjaily provides that the co-conspirator statement can itself be considered as proof in establishing the existence of a conspiracy, Bourjaily, 483 U.S. at 182, James would suggest that a possible resolution is to require "the showing of a conspiracy and of the connection of the defendant with it before admitting declarations of a coconspirator," James, 590 F.2d at 582. This could be accommodated at trial through an ordering of the Government's presentation of its case-in-chief such that all evidence of the existence of a conspiracy, with the exception of the actual co-conspirator statements, is presented to the jury, after which the Government will make an offer of the statements out of the presence of the jury. This would be efficient means of making the final determination as the only evidence to be heard would be the actual statements.
As this Court cannot and will not prescribe the Government's presentation of evidence, and given that this Court is completely in the dark on the Government's offer of proof to establish the existence of a conspiracy, the Government may conclude that "it is not reasonably practical to require the showing to be made before admitting the evidence," id. If such is the case, this Court will not sanction the practice of admitting co-conspirator statements subject to being connected up, id., nor will it excuse the jury for an extended duration in order to conduct a full hearing. If the ordering in the Government's presentation is not practical, the Government will so notify chambers and provide a reasonable date prior to trial when it will be ready to proceed in a James hearing. The Government, as the master of its case, thus shall elect to proceed with a James hearing in trial in the manner prescribed or elect for a pre-trial hearing. Whatever its election, it shall notify this Court not later than December 17, 2003.
The order scheduling a James hearing (Doc. No. 62) is hereby vacated. The order initially granting the James hearing (Doc. No. 62) is hereby reconsidered and adhered to. The Government is directed to notify this Court not later than December 17, 2003 as to the manner in which it elects to proceed on the James hearing.
SO ORDERED.