__________________ DISTRICT OF TEXAS
										
__________________  DIVISION

UNITED STATES OF AMERICA	                 §
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MOTION FOR PRE-TRIAL HEARING TO DETERMINE ADMISSIBLE OF
 CO-CONSPIRATOR’S STATEMENTS AND BRIEF IN SUPPORT THEREOF

TO THE HONORABLE ///, JUDGE, UNITED STATES DISTRICT COURT FOR THE /// DISTRICT OF TEXAS, /// DIVISION:

I.

MOTION

	The Defendant moves the Court to conduct a hearing in advance of trial to determine the admissibility of out of court statements made by any alleged co-conspirators or codefendants in this case that the Government contends are admissible pursuant to Rule 801(d)(2)(E), F.R.E., or otherwise.  The Defendant objects to the admissibility of such statements and submits that a pre-trial hearing is necessary to determine the admissibility of such statements if the Government intends to offer such evidence.  Those statements are not admissible under the Federal Rules of Evidence and their admission would violate the Defendant’s right to due process of law and to confront the witnesses against them as guaranteed by the Fifth and Sixth Amendments to the United States Constitution.  If the Government alleges that such out of court statements of co-conspirators or co-defendants are admissible into evidence before the jury, the Defendants request that the Government be required to reveal those statements and that a pre-trial hearing be conducted to determine whether or not they are admissible into evidence.
II.
BRIEF
	Rule 801(d)(2)(E), F.R.E. provides that a statement is not hearsay if the statement is offered against a party and is “(E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.”  “Before admitting a co- conspirator’s statement over an objection that it does not qualify under Rule 801(d)(2)(E), .... [t]here must be evidence that there was a conspiracy involving the declarant and the non-offering party, and that the statement was made ‘in the course and in furtherance of the conspiracy.”  Bourjaily v. United States, 107 S.Ct. 2775, 2778 (1987).  The existence of the conspiracy and the defendant’s involvement in that conspiracy are preliminary questions of fact that, under Rule 104 of the Federal Rules of Evidence, must be resolved by the court.  Id.  The Government has the burden of proving by a preponderance of the evidence that there was a conspiracy, that the defendant knew of and participated in the conspiracy and that the statements were made in the course and in furtherance of the conspiracy.  Id., at p. 2779; U.S. v. Silverman, 44 Cr.L. 2206 (9th Cir. 11-16-88); U. S. v. Miliet, 804 F.2d 853 (5th Cir. 1986); U. S. v. Miller, 799 F.2d 985 (5th Cir. 1986). In Bourjaily, the court held that the offered statement itself can be considered by the trial judge in determining whether or not a conspiracy existed and the defendant was a part of it.  However, the statement at issue cannot provide the sole evidentiary support for its own admissibility.  “[T]here must be proof ‘aliunde,’ that is, evidence from another source, that together with the contents of the statement satisfies the preliminary conditions for admission of the statement.  Bourjaily v. United States, supra, 2784 (concurring opinion, Stevens, J.); Glasser v. United States, 315 U.S. 60, 74, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942).  United States v. Perez, 823 F.2d 854 (5th. Cir. 1987); U.S. v. Silverman, supra. This is because out of court statements made by a co-conspirator purporting to implicate others in an unlawful conspiracy are even more suspect than the ordinary out of court statement, which is presumptively unreliable.  U.S. v. Silverman, supra.  “Because of this presumptive unreliability, a co-conspirator’s statement implicating the defendant in an alleged conspiracy must be corroborated by fairly incriminating evidence.  Evidence of wholly innocuous conduct or statements by the defendant will rarely be sufficiently corroborative of the co-conspirator’s statement to constitute proof, by a preponderance of the evidence, that the defendant knew of and participated in the conspiracy.”  U.S. v. Silverman, 44 Cr.L. 2207.
	The Supreme Court in Bourjaily specifically stated that it was not rendering an opinion on the proper order of proof that a trial court should follow in determining the admissibility of statements under Rule 801 (d) (2) (E).  Bourjaily v. United States, supra,. 2779 n. 1.  Therefore, that portion of the James opinion dealing with the order of proof should not be affected by the Bourjaily case.  In James the Fifth Circuit held that District Courts should, “whenever reasonably practical, require the showing of a conspiracy and of the connection of the Defendant with it before admitting the declarations of a co-
conspirator.”  United States v. James, 590 F.2d. 575, 582.  In order to admit the co-conspirator’s statements into evidence the Government, as a preliminary matter, must put on substantial evidence of a conspiracy and of the Defendant’s connection with the conspiracy, sufficient to take the question to the jury.  At the end of the trial, on appropriate motion by the defense, the court must determine as a factual matter whether the prosecution has shown by a preponderance of the evidence that a conspiracy existed, that the co-conspirator and the Defendant against whom the co-conspirator’s statement is offered were members of the conspiracy and that the statement was made during the course and in furtherance of the conspiracy.  United States v. James, supra, 582. Rule 104(c) provides that hearings on preliminary matters shall be conducted outside the hearing of the jury when the interests of justice require.  The court in James stated that its opinion intended to establish only minimum standards for the admissibility of co-conspirator’s statements and that nothing in the opinion should be interpreted as preventing a trial judge from requiring more meticulous procedures to assure that the statements were properly authenticated and that their admissibility is established by a preponderance of the evidence. United States v. James, supra,.583.
	The admission into evidence of out of court statements of alleged co-conspirators presents evidence against the Defendants that they are unable to cross examine because the declarant is not available to testify in Court.  The unavailability of the declarant deprives the Defendant of the ability to cross examine the declarant and to be personally confronted by a witness against him.  Despite authority to the contrary, the Defendant contends that the admissibility of such evidence violates his rights to due process of law and to cross examine and confront the witnesses against him, in violation of his rights under the Fifth and Sixth Amendments of the United States Constitution.

	WHEREFORE, the Defendant prays that a hearing be conducted in advance of trial outside the presence of the jury for the court to determine the admissibility of any coconspirator’s declarations that the Government seeks to have admitted into evidence.
							Respectfully Submitted,

							___________________________________
							Name
							State Bar No. 
							Address
							City, State, Zip
							Telephone
							Attorney for Defendant

CERTIFICATE OF SERVICE

	This is to certify that a true and correct copy of the above and foregoing Motion For Pre-Trial Hearing to Determine Admissibility of Co-Conspirator’s Statements And Brief In Support Thereof was hand delivered to the office of the United States Attorney for the /// District of Texas, /// Division, /// Street, ///, Texas ///, on the /// day of /// , 20/// .

							_____________________________________
							Attorney for Defendant

__________________ DISTRICT OF TEXAS
										
__________________  DIVISION

UNITED STATES OF AMERICA	                 §
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ORDER

	CAME ON to be considered Defendant ///’ s Motion For Pre-Trial Hearing To Determine Admissibility Of Co-Conspirator’s Statements.  Having considered the motion
and the argument of counsel it is hereby
	SIGNED on ____________________ , 20____.

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							JUDGE PRESIDING