MEANS v. U.S.,
469 U.S. 1058 (1984)

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U.S. Supreme Court

MEANS v. U.S. , 469 U.S. 1058 (1984)

469 U.S. 1058

No. 83-6866

Marvin ROTH
No. 84-605

Supreme Court of the United States

November 26, 1984

On petition for writ of certiorari to the United States Court of Appeals for the Sixth Circuit.

On petition for writ of certiorari to the United States Court of Appeals for the Eighth Circuit.

The petitions for writs of certiorari are denied.

Justice WHITE, with whom Justice BRENNAN joins, dissenting.

These cases raise three recurring issues regarding the administration of the co-conspirator exception to the hearsay rule. [Footnote 1] Federal Rule of Evidence 801(d)(2)(E) provides that "a statement by a coconspirator of a party during the course and in furtherance of

Page 469 U.S. 1058 , 1059

the conspiracy," when offered against that party, is not hearsay. The Rule has given rise to confusion among the lower courts with regard to when, by what standard of proof, and in light of what evidence the trial court should determine whether the necessary conspiracy existed.

In No. 83-6866, a critical prosecution witness testified to incriminating statements made to him by petitioner's co-conspirator. The Sixth Circuit held that these statements were properly introduced pursuant to Rule 801(d)(2)(E). 729 F.2d 1462 (1984). It concluded that the independent evidence, "when viewed in conjunction with the [hearsay] statements made by Blotske concerning [petitioner's] participation," established the existence of a conspiracy by a preponderance of the evidence. Pet. for Cert. 9. Thus, the Court of Appeals relied on the challenged statements to support the existence of the conspiracy pursuant to which those statements were introduced.

This approach was first adopted by the Sixth Circuit in United States v. Vinson, 606 F.2d 149, 153 (1979), cert. denied, 444 U.S. 1074 and sub nom. Thompson v. United States, 445 U.S. 904 (1980), and has been approved en banc, United States v. Piccolo, 723 F.2d 1234, 1240, and n. 1 (6 Cir.1983) (en banc), cert. denied, 466 U.S. 970 (1984). Though not entirely without support,2 it is inconsistent with the stated position of every other Federal Court of Appeals. See United States v. Jackson, 201 U.S.App.D.C. 212, 228-229, 627 F.2d 1198, 1214-1215 (1980); United States v. Nardi, 633 F.2d 972, 974 (1980); United States v. Alvarez-Porras, 643 F.2d 54, 56-57 (CA2), cert. denied, sub nom. Garcia- Perez v. United States, 454 U.S. 839 (1981 ); Government of the Virgin Islands v. Dowling, 633 F.2d 660, 665 (CA3), cert. denied, 449 U.S. 960 (1980); United States v. Gresko, 632 F.2d 1128, 1131-1132 (CA4 1980); United States v. James, 590 F.2d 575, 580-581 (CA5) (en banc), cert. denied, 442 U.S. 917 (1979); United States v. Regilio, 669 F.2d 1169, 1174 (CA7 1981), cert. denied, 457 U.S. 1133, 73 L. Ed.2d 1350 (1982); United States v. Bell, 573 F.2d 1040, 1043-1044 (CA8 1978); United States v. Miranda-Uriarte, 649 F.2d 1345, 1349 (CA9 1981); United States v. Andrews, 585 [469 U.S. 1058 , 1060]

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