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holding that a James Hearing "is neither required nor generally utilized in this Circuit."
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No. 3:99cv85(EBB).
October 31, 2000.
Ruling on Defendants' Motions for Pretrial Determination of Admissibility of Co-Conspirators' Statements
Defendants Hector Barrientos, Jose Figueroa, and William Lopez [each adopting doc. # 400] move for a pretrial hearing to determine the admissibility of co-conspirators' statements under Fed.R.Evid. 801(d)(2)(E). For the reasons set forth below, defendants' motions are DENIED.
I. BACKGROUND
On June 3, 1999, a federal grand jury returned a twenty-one count superseding indictment charging, among others, Barrientos, Figueroa, and Lopez with one count of Conspiracy with Intent to Possess with Intent to Distribute Cocaine and Cocaine-Base, in violation of 21 U.S.C. § 841(a)(1) and 846. Lopez was also charged with Possession with Intent to Distribute Cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B).
II. DISCUSSION
A statement by a co-conspirator made during the course of and in furtherance of the conspiracy is not hearsay and is admissible against a defendant. See Fed.R.Evid. 801(d)(2)(E). To admit statements under Rule 801(d)(2)(E), the government must prove, by a preponderance of the evidence, see Bourjaily v. United States, 483 U.S. 171 176 (1987), that (1) there was a conspiracy; (2) both declarant and defendant were members of the conspiracy; and (3) the statements were made during the course of and in furtherance of the conspiracy. See United States v. Diaz, 176 F.3d 52, 83 (2d Cir. 1999); United States v. Daly, 842 F.2d 1380, 1386 (2d Cir.), cert. denied, 488 U.S. 821 (1988). Under Rule 801(d)(2)(E), the Court makes the admissibility determination. See Daly, 842 F.2d at 1386.
Defendants have requested a pretrial hearing to determine to these issues. This type of hearing, however, commonly referred to as a "James Hearing" after the decision rendered in United States v. James, 576 F.2d 1121, 1127-32 (5th Cir. 1978), modified en banc, 590 F.2d 575 (5th Cir.), cert. denied, 442 U.S. 917 (1979), is neither required nor generally utilized in this Circuit. See United States v. Giovanelli, 747 F. Supp. 875, 879-80 (S.D.N.Y. 1989); United States v. Feola, 651 F. Supp. 1068, 1129-30 (S.D.N.Y. 1987). Instead, the hearsay statements are conditionally admitted into evidence during the government's case-in-chief "subject to connection." At the close of the government's case, if the court determines that the government met its burden of proof on the three elements set forth above, then the statements may go to the jury. See United States v. Tracy, 12 F.3d 1186, 1199 (2d Cir. 1993). The court's ruling is called a "Geaney ruling" after the decision rendered in United States v. Geaney, 417 F.2d 1116, 1120 (2d Cir. 1969), cert. denied, 397 U.S. 1028 (1970).
Defendants have provided no reason why this case warrants departure from well settled Second Circuit law. Furthermore, this Court agrees with the court in United States v. Ianiello, 621 F. Supp. 1455, 1478 (S.D.N.Y. 1985), aff'd, 808 F.2d 184 (2d Cir. 1986), that "[d]efendants would require this Court to undertake a mini-trial, significantly prolonging the proceedings and affording the defendants a complete preview of the government's evidence." Accordingly, defendants' request for a pre-trial hearing to determine the admissibility of co-conspirators' statements is DENIED.