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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
UNITED STATES OF AMERICA ) Criminal No. H-94-58
)
v. )
)
GLAZIER FOODS CO., )[filed 4/26/94]
)
Defendant. )
)
GOVERNMENT'S RESPONSE TO THE
DEFENDANT'S MOTION FOR A SEPARATE
HEARING TO DETERMINE THE EXISTENCE OF A CONSPIRACY
The United States of America, through its undersigned
attorneys, hereby responds to the Defendant's Motion for a
Separate Hearing to Determine the Existence of a Conspiracy. The
defendant has requested an evidentiary hearing to determine the
admissibility of co-conspirator statements that the government
may seek to introduce at trial. In this case, the defendant and
the Court have already had an extensive preview of the evidence
during the trial of United States v. John J. Johnson,
CR-H-92-152, and the government has clearly shown the involvement
of the defendant Glazier Foods Company, and its bid manager John
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J. Johnson, in the charged conspiracy. The government therefore
requests that it be allowed to follow the usual practice of
structuring the presentation of its case-in- chief to allow the
Court to make a preliminary factual determination pursuant to
Fed. R. Evid 104(a) as soon as practicable and that
co-conspirator statements as defined by Fed. R. Evid.
801(d)(2)(E) be conditionally admitted subject to the
establishment of an adequate foundation for admissibility.
I
CLARIFICATION OF THE LEGAL STANDARDS
FOR ADMISSIBILITY OF CO-CONSPIRATOR STATEMENTS
The defendant clearly misstates the standards for
admissibility of co-conspirator statements. Defense Motion ¶ 2.
Co-conspirator statements are properly admitted if the trial
court makes a factual determination that the government has
established, by a preponderance of the evidence, that:
1. a conspiracy existed;
2. the declarant and the defendant were members of the
conspiracy; and
3. the statements were made in the course and in
furtherance of the conspiracy.
Bourjaily v. United States, 483 U.S. 171, 175-176, 107 S.Ct.
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2775, 2778 (1987); United States v. James, 590 F.2d 575, 590
(5th Cir. en banc), cert. denied, 442 U.S. 917 (1979); see also
Fed. R. Evid. 104(a) and 801(d)(2)(E). The trial court will
only be reversed if its findings are clearly erroneous. United
States v. Chase, 838 F.2d 743, 749 (5th Cir.), cert. denied,
486 U.S. 1035 (1988); United States v. Snyder, 930 F.2d 1090,
1095 (5th Cir. 1991), cert. denied, U.S. , 112 S.Ct. 380
(1992).
II
THE LAW DOES NOT REQUIRE A SEPARATE HEARING
In the pre-eminent case on this issue, the James case,
the Fifth Circuit prescribed a procedure for handling
co-conspirator statement evidence. The en banc panel held that
Rule 104(a) requires the judge alone to make the preliminary
determination of admissibility. 590 F.2d at 580-81. With
respect to the order of proof, the Fifth Circuit held that "[t]he
district court should, whenever reasonably practicable, require
the showing of a conspiracy and of the connection of the
defendant with it before admitting declarations of a
co-conspirator." Id. at 582. If not practicable, the court may
admit the statements subject to later connection. Id. at 582;
Fed. R. Evid. 104(b); see also Bourjaily, 483 U.S. at 176 n.1,
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107 S.Ct. at 2779 n.1 (". . . we do not express an opinion on the
proper order of proof that the trial courts should follow in
concluding that the preponderance standard has been satisfied in
an ongoing trial" (emphasis added)).
Recently, however, the "constraints" of the James
procedure have been significantly relaxed. United States v.
Perez, 823 F.2d 854, 855 (5th Cir. 1987); see also United
States v. Gentry, 839 F.2d 1065, 1074 (5th Cir.), cert. denied,
U.S. , 111 S.Ct. 2034 (1988); United States v. Rocha, 916
F.2d 219 (5th Cir. 1990), cert. denied, U.S. , 111 S.Ct.
2057 (1991). In Rocha, the Fifth Circuit held that:
The district court need not make a
determination prior to the
introduction of the statement,
whether the proposed statement
complies with Rule 801(d)(2)(E).
Instead, the court may . . . allow
the introduction of the challenged
statement, subject to the
prosecutor's subsequent
establishment of an adequate
foundation.
916 F.2d at 239, citing United States v. Kimble, 719 F.2d
1253, 1257 (5th Cir. 1983), cert. denied, 464 U.S. 1073
(1984).
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Thus clearly, in the Fifth Circuit, a separate
hearing is not required by law, but rather the trial court
may admit co-conspirator statements subject to the later
establishment of an adequate foundation.
III
THE COURT MAY CONSIDER THE HEARSAY STATEMENTS
THEMSELVES IN DETERMING ADMISSIBILITY
In this case, the government intends to offer
substan-
tial independent evidence which will prove the conspiracy
charges. Nevertheless, in making its initial
determination regarding the admissibility of
co-conspirator statements, the Court may consider both the
hearsay statements the government seeks to admit, as well
as independent evidence of the conspiracy. Bourjaily v.
United States, 483 U.S. at 181, 107 S.Ct. at 2781;
see also Gentry, 839 F.2d at 1074; United States v.
Valdez, 861 F.2d 427, 432 (5th Cir. 1988), cert. denied,
489 U.S. 1083 (1989). The rationale for this is found in
Bourjaily where the Supreme Court stated:
In making its determination [the
court] is not bound by the rules
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of evidence except those with respect to
privileges. . . .
* * *
[Rule 104(a)] on its face allows
the trial judge to consider any
evidence whatsoever, bound only by
the rules of privilege. . . .
* * *
Even if out-of-court declarations
by co-conspirators are
presumptively unreliable, trial
courts must be permitted to
evaluate these statements for
their evidentiary worth as
revealed by the particular
circumstances of the case.
* * *
We think that there is little
doubt that co-conspirator's
statements could themselves be
probative of the existence of a
conspiracy and the participation
of both the defendant and the
declarant in the conspiracy . . ..
483 U.S. at 177-180, 107 S.Ct. 2780-2781 (emphasis added).
Once a conspiracy is found to exist, the
requirement that a statement be made in furtherance of the
conspiracy is construed broadly. United States v. Snyder,
930 F.2d at 1095; United States v. Lindell, 881 F.2d
1313,
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1320 (5th Cir. 1989), cert. denied, 496 U.S. 926,
110 S.Ct. 2621 (1990); United States v. Lechuga, 888
F.2d 1472, 1479-80 (5th Cir. 1989); United States v.
Ascarrunz, 838 F.2d 759, 763 (5th Cir. 1988).
Likewise, once the court has determined that such
statements are admissible, they should be considered by
the jury with all of the other evidence without special
instructions. Ascarrunz, 838 F.2d at 762; see also United
States v. Elam, 678 F.2d 1234, 1249-50 (5th Cir.
1982).
CONCLUSION
The government requests that it be allowed to
structure the presentation of its case-in-chief to allow
the Court to make a preliminary factual determination
pursuant to Fed. R. Evid. 104(a) as soon as practicable,
and to conditionally admit co-conspirator statements as
defined by Fed. R. Evid. 801(d)(2)(E) subject to the
establishment of an adequate foundation for admissibility.
The separate hearing proposed by the defendant would only
serve to prolong and unduly complicate the proceedings.
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Respectfully submitted,
JANE E. PHILLIPS
JOAN E. MARSHALL
MARK R. ROSMAN
Attorneys
U.S. Department of Justice
Antitrust Division
1100 Commerce St., Rm. 8C6
Dallas, Texas 75242-0898
(214) 767-8051
CERTIFICATE OF SERVICE
This is to certify that true and correct copy of the
foregoing United States' Response to the Defendant's Motion for a
Separate Hearing to Determine the Existence of a Conspiracy and
proposed Order was sent via Certified Mail-Return Receipt
Requested this 25th day of April, 1994, to:
Joel M. Androphy, Esq.
Berg & Androphy
3704 Travis Street
Houston, Texas 77002
JANE E. PHILLIPS
Attorney
U.S. Department of Justice
Antitrust Division
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
UNITED STATES OF AMERICA ) Criminal No. H-94-58
)
v. )
)
GLAZIER FOODS CO., )
)
Defendant. )
)
O R D E R
Upon consideration of the Defendant's Motion for a
Separate Hearing to Determine the Existence of a Conspiracy and
the Response of the United States,
The Defendant's Motion is hereby DENIED.
IT IS HEREBY ORDERED that:
1. The Government will structure the presentation of its
case-in-chief to allow the Court to make a preliminary factual
determination pursuant to Fed. R. Evid 104(a) as soon as
practicable; and
2. Co-conspirator statements as defined by Fed. R.
Evid. 801(d)(2)(E) are conditionally admitted subject to the
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establishment of an adequate foundation for admissibility.
DONE AND ENTERED THIS day of , 1994.
____________________________
UNITED STATES DISTRICT JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
UNITED STATES OF AMERICA ) Criminal No. H-94-58
)
v. )
)
GLAZIER FOODS CO., )
)
Defendant. )
)
GOVERNMENT'S RESPONSE TO THE
DEFENDANT'S MOTION FOR A SEPARATE
HEARING TO DETERMINE THE EXISTENCE OF A CONSPIRACY
The United States of America, through its undersigned
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attorneys, hereby responds to the Defendant's Motion for a
Separate Hearing to Determine the Existence of a Conspiracy. The
defendant has requested an evidentiary hearing to determine the
admissibility of co-conspirator statements that the govern-
ment may seek to introduce at trial. Such a hearing is not
necessary because the defendant, as well as the Court, has
already had an extensive preview of the evidence in this case
during the trial of United States v. John J. Johnson, No.
Cr-H-92-152 (S.D. Tex.), and because the government has clearly
shown the involvement of the defendant Glazier Foods Co. and its
vice president, John J. Johnson, in the charged conspiracy.
Moreover, the law does not require a separate hearing to
determine the admissibility of co-conspirator statements.
Recently, the "constraints" of the procedure announced in United
States v. James, 590 F.2d 575, 590 (5th Cir. en banc), ##--##
cert. denied, 442 U.S. 917 (1979), have been significantly
relaxed. See United States v. Perez, 823 F.2d 854, 855 (5th
Cir. 1987). In the Fifth Circuit, a separate hearing is not
required by law, but, rather, the trial court may admit
co-conspirator statements subject to the later establishment of
an adequate foundation. United States v. Rocha, 916 F.2d 219
(5th Cir. 1990), cert. denied, 111 S.Ct. 2057 (1991).
Co-conspirator statements are properly admitted if the
trial court makes a factual determination that the government has
established, by a preponderance of the evidence, that (1) a
conspiracy existed; (2) the declarant and the defendant were
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members of the conspiracy; and (3) the statements were made in
the course and in furtherance of the conspiracy. Bourjaily v.
United States, 483 U.S. 171, 175-176, 107 S.Ct. 2775, 2778
(1987). In making its admissibility determination, the court may
consider both the hearsay statements the government seeks to
admit, as well as independent evidence of the conspiracy. Id. at
181. In this case, as in the Johnson case, the co-conspirator
statements will meet the requirements of Bourjaily.
Accordingly, the government respectfully requests that
it be allowed present its case-in-chief so that the court may
make a preliminary factual determination pursuant to Fed. R.
Evid. 104(a) as soon as practicable, and conditionally admit
co-conspirator statements as defined by Fed. R. Evid.
801(d)(2)(E) subject to establishment of an adequate foundation
for admissibility, and that the Motion be denied.
Respectfully submitted,
"/s/"
JANE E. PHILLIPS
JOAN E. MARSHALL
MARK R. ROSMAN
Attorneys
U.S. Department of Justice
Antitrust Division
1100 Commerce St., Rm. 8C6
Dallas, Texas 75242-0898
(214) 767-8051
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