The Special Issues of Coconspirator Evidence and Parallel Government Enforcement

• Pages: 109-131

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CHAPTER IV

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

himself.

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).