Co-conspirator’s statement admissible

Listen to this article

In holding that a tape-recorded conversation between a co-conspirator and a government informant is not hearsay, the Seventh Circuit has interpreted the co-conspirator exemption very broadly.

Larry Hargrove is a former Chicago police officer who retired in March 2000 and moved to Las Vegas.

According to prosecutors, however, from 1992 to 1999, he was part of a four-man crew that robbed drug dealers by staging phony raids, and then threatening the dealers with arrest, while keeping any drugs, cash or guns they discovered.

Among the four was another Chicago officer named Eddie Hicks. Between December 2000 and January 2001, federal agents recorded conversations between Hicks and Arthur Veal.

Veal was a drug dealer who had hired Hicks in 1996 to recover marijuana that had been stolen from him by another dealer, but who was now working with the government.

In the recordings, Hicks discussed various robbery plans with Veal. During some of these discussions, Hicks referred to Hargrove’s role in prior robberies. During one conversation, Hicks mentioned that Hargrove continued to receive a cut of the proceeds, even though he was retired, because he had been “there when times were tough.”

Hargrove was charged in federal court with racketeering conspiracy and other crimes. He moved to suppress the recordings as inadmissible hearsay, and as testimonial statements that violate the Confrontation Clause.

The district court denied the motion, and the jury found him guilty of four offenses.

Hargrove appealed, but the Seventh Circuit affirmed in an opinion by Judge Diane S. Sykes.

Hargrove argued that the recordings are inadmissible under Crawford v. Washington, 541 U.S. 36 (2006), which held that the Confrontation Clause bars the admission of testimonial statements unless the defendant had a prior opportunity to cross-examine the declarant.

However, the court held Crawford inapplicable for two reasons: the statements of Hicks were co-conspirator statements, and thus not affected by Craw-ford; and the statements were not “testimonial.”

Hargrove argued that, because he had already left the police force and the conspiracy before the statements were made, the statements could not have been made “during the course” of the conspiracy between Hicks and himself.

The court disagreed, however, reasoning, “Inactivity alone does not constitute withdrawal; to withdraw from a conspiracy, the defendant must ‘terminate completely his active involvement in the conspiracy, as well as take affirmative steps to defeat or disavow the conspiracy’s purpose (cites omitted).’”

The court also noted that there was evidence of frequent phone calls between Hargrove and Hicks after Hargrove’s retirement.

Because Hargrove continued to take a “cut of the take” from the conspiracy, the court held that it was not error to admit Hicks’ statements as statements by a co-conspirator during the course of the conspiracy was not error.

Accordingly, the court affirmed.

Case analysis

The court’s conclusion that the admission of these statements does not offend the Confrontation Clause is correct, but the hearsay analysis is suspect.

The statements do not implicate the Confrontation Clause, because the statements cannot fit into any definition of “testimonial.”

In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 1364 (2004), the court gave three possible definitions: ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially”; “extrajudicial statements … contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions”; and “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”

The first two definitions are plainly inapplicable; the statements were made by a corrupt police officer, as he gave details of his operation to a drug dealer (not knowing that he was working with the FBI). The officer clearly did not foresee that the statements may be used at a later trial. In Davis v. Washington, 126 S.Ct. 2266, 2275 (2006), the Supreme Court reaffirmed prior case law that statements made unwittingly to a government informant are nontestimonial.

However, the court stretches the co-conspirator hearsay exemption to its breaking point, by concluding that the statements in this case were made by a co-conspirator “during the course and in furtherance of the conspiracy,” and thus are not hearsay under FRE 801(d)(2)(E).

In holding that the statements were made “during the course” of the conspiracy, the majority does not cite to other cases interpreting the hearsay rule. Instead, it cites U.S. v. Wilson, 134 F.3d 863 (7th Cir. 1998), and U.S. v. Williams, 81 F.3d 1434 (7th Cir. 1996), to support its contention that a defendant must terminate completely from involvement in the conspiracy and take affirmative steps to defeat or disavow the conspiracy’s purpose.

In Williams, the court held that a defendant remains liable for the acts of a conspiracy, even though he did not participate in them.

However, the legal rules governing whether someone is technically still part of a conspiracy do not fit the hearsay rules very well. The reason there are exemptions to the hearsay rules is that there are reasons to believe the statements are true — for example, people don’t generally make statements against their own interest, so when they do, the statements are likely to be true.

In the case at bar, Hicks contended that Hargrove continued to receive a “cut of the take” from the conspiracy, even though he was no longer actively involved in shaking down the drug dealers.

However, the fact that a defendant may legally still be part of a conspiracy, because he did not disavow it, bears little relevance to whether the co-conspirator’s statement is likely to be true, when the defendant is no longer active.

Suppose that Hargrove was not still collecting profits from the shakedown scheme after he left the force. Hicks would have good reason to lie, and say that he still was; falsely claiming that a cut of the take must be sent to Hargrove would enable Hicks to take a greater share for himself. A criminal may have any number of other reasons for falsely attributing some action to a former conspirator, such as blame shifting.

In the case at bar, the only evidence that Hargrove was still part of the conspiracy was the fact that he and Hicks (who was also a former coworker) remained in contact, and the statements by Hicks that were themselves at issue.

If that is sufficient to hold the statements are not hearsay, then any statement by a former conspirator is admissible, no matter how much time had elapsed since the defendant was active in the conspiracy, unless the defendant has taken the unlikely steps necessary to formally withdraw from it.

Also troubling is that the court does not explain at all how the statements of Hicks furthered the conspiracy.