The Special Issues of Coconspirator Evidence and Parallel Government Enforcement

As noted in Chapter III, direct proof of an antitrust conspiracy can be
difficult to obtain. That said, one potential source is evidence obtained
from members of the alleged conspiracy itself. Indeed, testimony offered
from coconspirators may be particularly incriminating.
In many cases, evidence from coconspirators is available only t hrough
out-of-court statements reflected in documents or covert recordings made
during a criminal investigation. But out-of-court statements of
coconspirators are not automatically admissible. Nor are coconspirator
invocations of the Fifth Amendment. This chapter addresses the special
issues associated with proving participation in a conspiracy through
statements of coconspirators.
This chapter also examines the impact of parallel government
proceedings—largely, though not entirely, criminal investigations—upon
issues of proof in related cases. The Antitrust Division through its leniency
program actively encourages conspirators to withdraw from a conspiracy
and expose its existence in exchange for amnesty from prosecution.
Leniency applications often result in a series of plea agreements by other
coconspirators. Likewise, government civil actions can have important
evidentiary effects in related civil actions. Accordingly, this chapter
reviews the impact of leniency, pleas, and government civil actions upon
issues of proof.
A. Statements by Coconspirators
Hearsay is “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of
the matter asserted.”1 By that definition, an out-of-court statement by an
alleged coconspirator may be considered classic hearsay.
Exceptions from this definition, however, have long existed for certain
statements of coconspirators. Significantly, Federal Rule of Evidence
1. Fed. R. Evid. 801(c).
110 Proof of Conspiracy Under Federal Antitrust Laws
801(d)(2) declares that admissions by a party-opponent are not hearsay.
Statements by coconspirators may fall into this category. Under Federal
Rule of Evidence 801(d)(2)(E), a coconspirator statement is considered a
party admission, and thus not hearsay, if it is “offered against an opposing
party” and (i) is a statement “made by the party’s coconspirator,”
(ii) “during” the conspiracy, and (iii) “in furtherance of the conspiracy.”2
Such statements may therefore be imputed to the coconspirator and
rendered admissible as if the statement was made by the coconspirator
Rule 801(d)(2) poses a unique admissibility issue in the context of
proving a conspiracy. The rule appears to require the existence of and
participation in a conspiracy as a predicate for admissibility. In other
words, the admissibility question is in part synonymous with the
underlying question of whether there was a conspiracy. The federal courts
have wrestled with this “bootstrapping” problem for decades.
1. Bourjaily v. United States
The Supreme Court squarely addressed this issue in 1987. In Bourjaily
v. United States,3 the Supreme Court granted certiorari to answer three
questions regarding the admission of statements under Rule 801(d)(2)(E):
“(1) whether the court must determine by independent evidence that the
conspiracy existed and that the defendant and the declarant were members
of this conspiracy; (2) the quantum of proof on which such determinations
must be based; and (3) whether a court must in each case examine the
circumstances of such a statement to determine its reliability.”4
Bourjaily was charged with conspiring to distribute cocaine and
possession of cocaine with intent to distribute.5 During the trial, a
telephone statement by the coconspirator who arranged for the sale of the
cocaine to Bourjaily was admitted into evidence under Rule 801(d)(2)(E)
over Bourjaily’s objection.6
Bourjaily relied on a previous Supreme Court decision, Glasser v.
United States,7 to argue that the district court erred by conside ring the
content of the coconspirator statement itself in resolving the dispute over
2. Fed. R. Evid. 801(d)(2)(E).
3. 483 U.S. 171 (1987).
4. Id. at 173.
5. Id. at 174.
6. Id.
7. 315 U.S. 60 (1942).

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