BOURJAILY v. UNITED STATES
No. 85-6725
Supreme Court of the United States
Argued April 1, 1987—Decided June 23, 1987
483 U.S. 171
Stephen Allan Saltzburg argued the cause for petitioner. With him on the briefs were James R. Willis and James M. Shellow.
Lawrence S. Robbins argued the cause for the United States. With him on the brief were Solicitor General Fried, Assistant Attorney General Weld, and Deputy Solicitor General Bryson.*
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
Federal Rule of Evidence 801(d)(2)(E) provides: “A statement is not hearsay if ... [t]he statement is offered against a party and is ... a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.” We 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. 479 U. S. 881 (1986).
In May 1984, Clarence Greathouse, an informant working for the Federal Bureau of Investigation (FBI), arranged to sell a kilogram of cocaine to Angelo Lonardo. Lonardo agreed that he would find individuals to distribute the drug. When the sale became imminent, Lonardo stated in a tape-recorded telephone conversation that he had a “gentleman friend” who had some questions to ask about the cocaine. In a subse-
Petitioner was charged with conspiring to distribute cocaine, in violation of
We are therefore guided by our prior decisions regarding admissibility determinations that hinge on preliminary factual questions. We have traditionally required that these matters be established by a preponderance of proof. Evidence is placed before the jury when it satisfies the technical requirements of the evidentiary Rules, which embody certain legal and policy determinations. The inquiry made by a court concerned with these matters is not whether the proponent of the evidence wins or loses his case on the merits, but whether the evidentiary Rules have been satisfied. Thus, the evidentiary standard is unrelated to the burden of proof on the substantive issues, be it a criminal case, see In re Winship, 397 U. S. 358 (1970), or a civil case. See generally Colorado v. Connelly, 479 U. S. 157, 167-169 (1986). The preponderance standard ensures that before admitting evidence, the court will have found it more likely than not that the technical issues and policy concerns addressed by the Federal Rules of Evidence have been afforded due consideration. As in Lego v. Twomey, 404 U. S. 477, 488 (1972), we find “nothing to suggest that admissibility rulings have been unreliable or otherwise wanting in quality because not based
Even though petitioner agrees that the courts below applied the proper standard of proof with regard to the preliminary facts relevant to Rule 801(d)(2)(E), he nevertheless challenges the admission of Lonardo‘s statements. Petitioner argues that in determining whether a conspiracy exists and whether the defendant was a member of it, the court must look only to independent evidence—that is, evidence other than the statements sought to be admitted. Petitioner relies on Glasser v. United States, 315 U. S. 60 (1942), in which this Court first mentioned the so-called “bootstrapping rule.” The relevant issue in Glasser was whether Glasser‘s counsel, who also represented another defendant, faced such a conflict of interest that Glasser received ineffective assistance. Glasser contended that conflicting loyalties led his lawyer not to object to statements made by one of Glasser‘s
“[S]uch declarations are admissible over the objection of an alleged co-conspirator, who was not present when they were made, only if there is proof aliunde that he is connected with the conspiracy. ... Otherwise, hearsay would lift itself by its own bootstraps to the level of competent evidence.” Id., at 74-75.
The Court revisited the bootstrapping rule in United States v. Nixon, 418 U. S. 683 (1974), where again, in passing, the Court stated: “Declarations by one defendant may also be admissible against other defendants upon a sufficient showing, by independent evidence, of a conspiracy among one or more other defendants and the declarant and if the declarations at issue were in furtherance of that conspiracy.” Id., at 701, and n. 14 (emphasis added) (footnote omitted). Read in the light most favorable to petitioner, Glasser could mean that a court should not consider hearsay statements at all in determining preliminary facts under Rule 801(d)(2)(E). Petitioner, of course, adopts this view of the bootstrapping rule. Glasser, however, could also mean that a court must have some proof aliunde, but may look at the hearsay statements themselves in light of this independent evidence to determine whether a conspiracy has been shown by a preponderance of the evidence. The Courts of Appeals have widely adopted the former view and held that in determining the preliminary facts relevant to co-conspirators’ out-of-court statements, a court may not look at the hearsay statements themselves for their evidentiary value.
Both Glasser and Nixon, however, were decided before Congress enacted the Federal Rules of Evidence in 1975. These Rules now govern the treatment of evidentiary questions in federal courts. Rule 104(a) provides: “Preliminary questions concerning ... the admissibility of evidence shall be determined by the court .... In making its determina-
Petitioner concedes that Rule 104, on its face, appears to allow the court to make the preliminary factual determinations relevant to Rule 801(d)(2)(E) by considering any evidence it wishes, unhindered by considerations of admissibility. Brief for Petitioner 27. That would seem to many to be the end of the matter. Congress has decided that courts may consider hearsay in making these factual determinations. Out-of-court statements made by anyone, including putative co-conspirators, are often hearsay. Even if they are, they may be considered, Glasser and the bootstrapping rule notwithstanding. But petitioner nevertheless argues that the bootstrapping rule, as most Courts of Appeals have construed it, survived this apparently unequivocal change in the law unscathed and that Rule 104, as applied to the admission of co-conspirator‘s statements, does not mean what it says. We disagree.
Petitioner claims that Congress evidenced no intent to disturb the bootstrapping rule, which was embedded in the previous approach, and we should not find that Congress altered the rule without affirmative evidence so indicating. It would be extraordinary to require legislative history to confirm the plain meaning of Rule 104. The Rule on its face allows the trial judge to consider any evidence whatsoever, bound only by the rules of privilege. We think that the Rule is sufficiently clear that to the extent that it is inconsistent with
Nor do we agree with petitioner that this construction of Rule 104(a) will allow courts to admit hearsay statements without any credible proof of the conspiracy, thus fundamentally changing the nature of the co-conspirator exception. Petitioner starts with the proposition that co-conspirators’ out-of-court statements are deemed unreliable and are inadmissible, at least until a conspiracy is shown. Since these statements are unreliable, petitioner contends that they should not form any part of the basis for establishing a conspiracy, the very antecedent that renders them admissible.
Petitioner‘s theory ignores two simple facts of evidentiary life. First, out-of-court statements are only presumed unreliable. The presumption may be rebutted by appropriate proof. See Fed. Rule Evid. 803(24) (otherwise inadmissible hearsay may be admitted if circumstantial guarantees of trustworthiness demonstrated). Second, individual pieces of
We think that there is little doubt that a 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. Petitioner‘s case presents a paradigm. The out-of-court statements of Lonardo indicated that Lonardo was involved in a conspiracy with a “friend.” The statements indicated that the friend had agreed with Lonardo to buy a kilogram of cocaine and to distribute it. The statements also revealed that the friend would be at the hotel parking lot, in his car, and would accept the cocaine from Greathouse‘s car after Greathouse gave Lonardo the keys. Each one of Lonardo‘s statements may itself be unreliable, but taken as a whole, the entire conversation between Lonardo and Greathouse was corroborated by
We need not decide in this case whether the courts below could have relied solely upon Lonardo‘s hearsay statements to determine that a conspiracy had been established by a preponderance of the evidence. To the extent that Glasser meant that courts could not look to the hearsay statements themselves for any purpose, it has clearly been superseded by Rule 104(a). It is sufficient for today to hold that a court, in making a preliminary factual determination under Rule 801(d)(2)(E), may examine the hearsay statements sought to be admitted. As we have held in other cases concerning admissibility determinations, “the judge should receive the evidence and give it such weight as his judgment and experience counsel.” United States v. Matlock, 415 U. S., at 175. The courts below properly considered the statements of Lonardo and the subsequent events in finding that the Government had established by a preponderance of the evidence that Lonardo was involved in a conspiracy with petitioner. We have no reason to believe that the District Court‘s factfinding of this point was clearly erroneous. We hold that Lonardo‘s out-of-court statements were properly admitted against petitioner.3
We also reject any suggestion that admission of these statements against petitioner violated his rights under the Confrontation Clause of the Sixth Amendment. That Clause provides: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses
While a literal interpretation of the Confrontation Clause could bar the use of any out-of-court statements when the declarant is unavailable, this Court has rejected that view as “unintended and too extreme.” Ohio v. Roberts, 448 U. S. 56, 63 (1980). Rather, we have attempted to harmonize the goal of the Clause—placing limits on the kind of evidence that may be received against a defendant—with a societal interest in accurate factfinding, which may require consideration of out-of-court statements. To accommodate these competing interests, the Court has, as a general matter only, required the prosecution to demonstrate both the unavailability of the declarant and the “indicia of reliability” surrounding the out-of-court declaration. Id., at 65-66. Last Term in United States v. Inadi, 475 U. S. 387 (1986), we held that the first of these two generalized inquiries, unavailability, was not required when the hearsay statement is the out-of-court declaration of a co-conspirator. Today, we conclude that the second inquiry, independent indicia of reliability, is also not mandated by the Constitution.
The Court‘s decision in Ohio v. Roberts laid down only “a general approach to the problem” of reconciling hearsay exceptions with the Confrontation Clause. See 448 U. S., at 65. In fact, Roberts itself limits the requirement that a court make a separate inquiry into the reliability of an out-of-court statement. Because “hearsay rules and the Confrontation Clause are generally designed to protect similar values,”
The judgment of the Court of Appeals is
Affirmed.
JUSTICE STEVENS, concurring.
The rule against “bootstrapping” announced in Glasser v. United States, 315 U. S. 60, 74-75 (1942), has two possible interpretations. The more prevalent interpretation adopted by the Courts of Appeals is that the admissibility of the declaration under the co-conspirator rule must be determined entirely by independent evidence. The Court correctly holds that this reading of the Glasser rule is foreclosed by the plain language of Rule 104(a) of the Federal Rules of Evidence. That Rule unambiguously authorizes the trial judge to consider the contents of a proffered declaration in determining its admissibility.
I have never been persuaded, however, that this interpretation of the Glasser rule is correct. In my view, Glasser holds that a declarant‘s out-of-court statement is inadmissible against his alleged co-conspirators unless there is some corroborating evidence to support the triple conclusion that there was a conspiracy among those defendants, that the declarant was a member of the conspiracy, and that the statement furthered the objectives of the conspiracy. An otherwise inadmissible hearsay statement cannot provide the sole evidentiary support for its own admissibility—it cannot lift itself into admissibility entirely by tugging on its own bootstraps. It may, however, use its own bootstraps, together with other support, to overcome the objection. In the words
Thus, the absence of any legislative history indicating an intent to change the Glasser rule is entirely consistent with the reasoning of the Court‘s opinion, which I join.
I disagree with the Court in three respects:1 First, I do not believe that the Federal Rules of Evidence changed the long- and well-settled law to the effect that the preliminary questions of fact, relating to admissibility of a nontestifying co-conspirator‘s statement, must be established by evidence independent of that statement itself. Second, I disagree with the Court‘s conclusion that allowing the co-conspirator‘s statement to be considered in the resolution of these factual questions will remedy problems of the statement‘s unreliability. In my view, the abandonment of the independent-evidence requirement will lead, instead, to the opposite result. This is because the abandonment will eliminate one of the few safeguards of reliability that this exemption from the hearsay definition possesses. Third, because the Court alters the traditional hearsay exemption—especially an aspect of it that contributes to the reliability of an admitted statement—I do not believe that the Court can rely on the “firmly rooted hearsay exception” rationale, see Ohio v. Roberts, 448 U. S. 56, 66 (1980), to avoid a determination whether any “indicia of reliability” support the co-conspirator‘s statement, as the Confrontation Clause surely demands.
I
The Court recognizes that, according to the common-law view of the exemption of a co-conspirator‘s statement from the hearsay definition, an offering party was required to establish, as preliminary factual matters, the existence of a conspiracy and a defendant‘s participation therein by evidence apart from the co-conspirator‘s statement. Ante, at 177. In the Court‘s view, this settled law was changed in 1975 by the adoption of the Federal Rules of Evidence, par-
I agree that a federal rule‘s “plain meaning,” when it appears, should not be lightly ignored or dismissed. The inclination to accept what seems to be the immediate reading of a federal rule, however, must be tempered with caution when, as in the case of a Federal Rule of Evidence, the rule‘s complex interrelations with other rules must be understood before one can resolve a particular interpretive problem. See generally Cleary, Preliminary Notes on Reading the Rules of Evidence, 57 Neb. L. Rev. 908 (1978) (“[T]he answers to all questions that may arise under the Rules may not be found in specific terms in the Rules“). In addition, if the language of a rule plainly appears to address a specific problem, one naturally would expect legislative history (if it exists) to confirm this plain meaning. In this case, Rule 104(a) cannot be read apart from Rule 801(d)(2)(E), which was a codification of the common-law exemption of co-conspirator statements from the hearsay definition, an exemption that included the independent-evidence requirement. An examination of the legislative history of Rule 801(d)(2)(E) reveals that neither the drafters nor Congress intended to transform this requirement in any way. In sum, the Court espouses an overly
A
In order to understand why the Federal Rules of Evidence adopted without change the common-law co-conspirator exemption from hearsay, and why this adoption signified the Advisory Committee‘s intent to retain the exemption‘s independent-evidence requirement, it is useful to review briefly the contours of this exemption as it stood before enactment of the Rules. By all accounts, the exemption was based upon agency principles, the underlying concept being that a conspiracy is a common undertaking where the conspirators are all agents of each other and where the acts and statements of one can be attributed to all. See 4 J. Weinstein & M. Berger, Weinstein‘s Evidence ¶801(d)(2)(E)[01], pp. 801-232 and 801-233 (1985) (Weinstein & Berger); Davenport, The Confrontation Clause and the Co-Conspirator Exception in Criminal Prosecutions: A Functional Analysis, 85 Harv. L. Rev. 1378, 1384 (1972) (Davenport). As Judge Learned Hand explained this in a frequently quoted remark:
“When men enter into an agreement for an unlawful end, they become ad hoc agents for one another, and have made a ‘partnership in crime.’ What one does pursuant to their common purpose, all do, and, as declarations may be such acts, they are competent against all.” Van Riper v. United States, 13 F. 2d 961, 967 (CA2), cert. denied sub nom. Ackerson v. United States, 273 U. S. 702 (1926).
Each of the components of this common-law exemption, in turn, had an agency justification. To fall within the exemption, the co-conspirator‘s statement had to be made “in furtherance of” the conspiracy, a requirement that arose from the agency rationale that an agent‘s acts or words could be attributed to his principal only so long as the agent was act-
The final feature of the co-conspirator hearsay exemption, the independent-evidence requirement, directly corresponds to the agency concept that an agent‘s statement cannot be used alone to prove the existence of the agency relationship.
“Evidence of a statement by an agent concerning the existence or extent of his authority is not admissible against the principal to prove its existence or extent, unless it appears by other evidence that the making of such statement was within the authority of the agent or, as to persons dealing with the agent, within the apparent authority or other power of the agent” (emphasis added). Restatement (Second) of Agency § 285 (1958).
See Levie, 52 Mich. L. Rev., at 1161. The reason behind this concept is that the agent‘s authority must be traced back to some act or statement by the alleged principal. See 1 F. Mechem, Law of Agency § 285, p. 205 (1914).
Thus, unlike many common-law hearsay exceptions, the co-conspirator exemption from hearsay with its agency rationale was not based primarily upon any particular guarantees of reliability or trustworthiness that were intended to ensure the truthfulness of the admitted statement and to compensate for the fact that a party would not have the opportunity to test its veracity by cross-examining the declarant. See Davenport, 85 Harv. L. Rev., at 1384. As such, this exemp-
Although, under common law, the reliability of the co-conspirator‘s statement was never the primary ground justifying its admissibility, there was some recognition that this
“Active conspirators are likely to know who the members of the conspiracy are and what they have done. When speaking to advance the conspiracy, they are unlikely to describe non-members as conspirators, and they usually will have no incentive to misdescribe the actions of their fellow members.” Lempert & Saltzburg 395.
See also 4 J. Wigmore, Evidence §1080a, p. 199 (J. Chadbourn rev. 1972) (“[T]he general idea of receiving vicarious admissions, is that where the third person was, at the time of speaking, in circumstances that gave him substantially the same interest to know something about the matter in hand as had the now opponent, and the same motive to make a statement about it, that person‘s statements have approximately the same testimonial value as if the now opponent had made them“) (emphasis in original). And the components of the exemption were understood to contribute to this reliability. When making a statement “during the course of” and “in furtherance of” a conspiracy, a conspirator could be viewed as speaking from the perspective of all the conspirators in order to achieve the common goals of the conspiracy, not from self-serving motives. See Davenport, 85 Harv. L. Rev., at 1387. In particular, the requirement that a conspiracy be established by independent evidence also is seen to contribute to the reliability issue. Yet that requirement goes not so much to the reliability of the statement itself, as to the reliability of the process of admitting it: a statement cannot be introduced until independent evidence shows the defendant to be a member of an existing conspiracy. See id., at 1390 (“Independent evidence of the conspiracy‘s existence and of the defendant‘s participation in it may supply inferences as to the reliability of the declaration“); Lempert & Saltzburg 395.
More importantly, by explicitly retaining the agency rationale for the exemption, the Advisory Committee expressed its intention that the exemption would remain identical to the common-law rule and that it would not be expanded in any way. The Advisory Committee recognized that this agency rationale had been subject to criticism.7 The draft
The Advisory Committee thus decided to retain the agency justification, in general, and the “in furtherance of” language, in particular, as a compromise position. It thought that the traditional exemption appropriately balanced the prosecution‘s need for a co-conspirator‘s statements and the defendant‘s need for the protections against unreliable statements, protections provided by the components of the common-law exemption. See 4 Weinstein & Berger ¶801(d)(2)(E)[01], p. 801-235. The Advisory Committee, however, expressed its doubts about the agency rationale and, on the basis of these doubts, plainly stated that the exemption should not be changed or extended: “[T]he agency theory of conspiracy is at
B
Accordingly, when
As the Court recognizes, ante, at 177, in the more than 10 years since the enactment of the Federal Rules of Evidence, the Courts of Appeals, almost uniformly, have found no conflict between
II
The Court‘s second argument in favor of abandonment of the independent-evidence rule might best be characterized as an attempt at pragmatic or “real world” analysis. The Court suggests that, while a co-conspirator‘s statement might be presumed unreliable when considered in isolation, it loses this unreliability when examined together with other evidence of the conspiracy and the defendant‘s participation in it. Ante, at 179-180. In the Court‘s view, such a consideration of the statement will reveal its probative value, as the facts of this case demonstrate. Proceeding in this “real world” vein, the Court believes that the trial court is capable of detecting any remaining unreliability in the co-conspirator‘s statement and that the defendant is afforded the opportunity to point
I, too, prefer an approach that includes a realistic view of problems that come before the Court. See, e. g., Lee v. Illinois, 476 U. S. 530, 547-548 (1986) (dissenting opinion). I am inclined, however, to remain with the traditional exemption that has been shaped by years of “real world” experience with the use of co-conspirator statements in trials and by a frank recognition of the possible unreliability of these statements.
As explained above, despite the recognized need by prosecutors for co-conspirator statements, these statements often have been considered to be somewhat unreliable. It has long been understood that such statements in some cases may constitute, at best, nothing more than the “idle chatter” of a declarant or, at worst, malicious gossip. See 4 Weinstein & Berger ¶801(d)(2)(E)[01], p. 801-235. Moreover, when confronted with such a statement, an innocent defendant would have a difficult time defending himself against it, for, if he were not in the conspiracy, he would have no idea why the conspirator made the statement. See United States v. Stipe, 517 F. Supp. 867, 871 (WD Okla.), aff‘d, 653 F. 2d 446 (CA10 1981) (“The dangers that an accused may be confronted with numerous statements made by someone else which he never authorized, intended, or even knew about . . . cannot be ignored“). Even an experienced trial judge might credit an incriminatory statement that a defendant could not explain, precisely because the defendant had no ready explanation for it. Because of this actual “real world” experience with the possible unreliability of these statements, the Advisory Committee retained the agency rationale for this exemption in
It is at least heartening, however, to see that the Court reserves the question whether a co-conspirator‘s statement alone, without any independent evidence, could establish the existence of a conspiracy and a defendant‘s participation in it. Ante, at 181; see also ante, at 184 (STEVENS, J., concurring). I have no doubt that, in this ultimate example of “bootstrapping,” the statement could not pass the preliminary factual test for its own admissibility, even under the
III
The Court answers today a question left open in United States v. Inadi, 475 U. S. 387 (1986). There, while observing that the Confrontation Clause usually required the production of a declarant or a showing of his unavailability so that his out-of-court statement could be admitted against a defendant, the Court concluded that this requirement was not constitutionally mandated in the case of a nontestifying co-conspirator‘s statement admitted under
In Roberts the Court did observe that, for Confrontation Clause purposes, “[r]eliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.” 448 U. S., at 66. To understand the significance of this statement, however, it is important to remember why hearsay exceptions satisfy the reliability concern of that Clause. The Court in Roberts explained that “accuracy in the factfinding process” is a central concern of the Confrontation Clause that cross-examination normally serves. Id., at 65. This concern is sometimes satisfied when evidence is admitted under a hearsay exception, even where no cross-examination of the declarant occurs at trial. This is because “‘hearsay rules and the Confrontation Clause are generally designed to protect similar values,‘” id., at 66, quoting California v. Green, 399 U. S. 149, 155 (1970), and because, with respect to a particular hearsay exception, there are adequate “indicia of reliability” of the out-of-court statement. These indicia serve to guarantee the trustworthiness of the declarant‘s statement and thus promote the accuracy of the trial—a function otherwise fulfilled by cross-examination. Thus, to answer the Confrontation Clause‘s concern for reliability with respect to a particular hearsay exception, one must examine what, if any, “indicia of reliability” it possesses. In addition, one must also see how “firmly rooted” the exception is, which suggests that, through experience in its use, the exception has proved to promote the “accuracy of the factfinding process.” See generally Note, 53 Ford. L. Rev., at 1306-1307.
The weakness of the Court‘s assertion—that the Confrontation Clause concern about reliability vanishes because
Second, and more astounding, is the Court‘s reliance upon the “firmly rooted hearsay exception” rationale as it simultaneously removes from the exemption one of the few safeguards against unreliability that it possesses. The Court cannot at all escape from this contradiction by dismissing its alteration of the exception as simply a change in “method of proof.” Because the “firmly rooted hearsay exception” is defined in terms of its “indicia of reliability” for Confrontation Clause purposes, a removal of one of these “indicia” significantly transforms the co-conspirator exemption in a relevant respect. In addition, this change takes away from the exemption any weight that experience with its use by courts may have given it, thus undermining its “firmly rooted” status. In sum, the Court cannot have it both ways: it cannot transform the exemption, as it admittedly does, and then avoid Confrontation Clause concerns by conjuring up the “firmly rooted hearsay exception” as some benign genie who will extricate the Court from its inconsistent analysis.
With such a transformation in the co-conspirator hearsay exemption having been made, the Court‘s reliance upon Roberts’ language concerning the “firmly rooted hearsay exception” is utterly misplaced. Rather, the pertinent language from Roberts becomes the sentence following the one quoted by the Court: “In other cases [where there is no “firmly rooted hearsay exception“], the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.” 448 U. S., at 66. This showing, I believe, would involve an examination of the statement in terms
I respectfully dissent.