United States v. John Holland, 117 F.4th 1352

The government charged several defendants with violating the federal Anti-Kickback Statute (AKS) by allegedly paying for referrals of Medicaid and Medicare patients.
The alleged scheme involved hospital executives and clinic operators arranging contracts that the government contends constituted illegal kickbacks.
At trial, the government sought to admit out-of-court statements made by alleged co-conspirators under the hearsay rule exception for co-conspirator statements.
The district court excluded these statements, holding the government failed to prove the defendants had the mental state (willfulness) required for a criminal AKS conspiracy.
The government appealed, arguing that the exclusion misapplied the Federal Rules of Evidence, specifically Rule 801(d)(2)(E).
The Eleventh Circuit considered not just the parties’ arguments but also whether Rule 801(d)(2)(E) requires proof of an unlawful conspiracy for admissibility of co-conspirator statements.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Must an unlawful conspiracy be proven to admit co-conspirator statements under Rule 801(d)(2)(E)?	No; a joint venture suffices—unlawfulness not required.	Yes; government must prove criminal conspiracy (with required mental state) to admit statements.	The court held that the rule only requires a joint venture, not unlawful conspiracy, for admissibility.
Did the district court err in excluding the co-conspirator statements?	Yes, based on incorrect legal standard.	No, because the government did not prove necessary unlawful intent.	The district court abused its discretion by misinterpreting Rule 801(d)(2)(E).
Can the government raise the correct legal standard on appeal if it did not argue it in its briefs?	Yes; correct law applies regardless of parties’ arguments.	No; unfair to allow new arguments after litigating on different basis.	The court applied the correct interpretation of the law despite parties’ prior arguments.
Is the Confrontation Clause implicated by the admission of co-conspirator statements under these facts?	No; statements not testimonial.	Yes; defendants claim right to confront witnesses.	The court found no Confrontation Clause problem, citing precedent.

Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229 (coconspirator exclusion applies to both lawful and unlawful ventures)
Bourjaily v. United States, 483 U.S. 171 (requirement of some evidence of conspiracy for admissibility, but not proof of illegality)
United States v. Postal, 589 F.2d 862 (Rule 801(d)(2)(E) applies to joint ventures regardless of criminality)
United States v. James, 590 F.2d 575 (pretrial hearings to decide admissibility, not crime itself)
Crawford v. Washington, 541 U.S. 36 (nontestimonial statements by coconspirators not barred by Confrontation Clause)