Bourjaily v. United States
483 U.S. 171 (1987)
Rule of Law:
A court may consider a co-conspirator's hearsay statement itself when determining by a preponderance of the evidence whether a conspiracy existed and the defendant was a member for the purpose of admitting that statement under Federal Rule of Evidence 801(d)(2)(E). The Confrontation Clause does not require a separate inquiry into the reliability of such statements if they meet the rule's requirements.
Facts:
- Clarence Greathouse, a Federal Bureau of Investigation (FBI) informant, arranged to sell a kilogram of cocaine to Angelo Lonardo.
- Lonardo stated in a tape-recorded phone call that he had a “gentleman friend” who would distribute the drug.
- In a subsequent call, Greathouse spoke directly with the “friend,” who was petitioner Bourjaily, about the cocaine's quality and price.
- Lonardo and Greathouse agreed the sale would occur in a hotel parking lot, where Lonardo would transfer the cocaine from Greathouse’s car to the friend's car.
- At the designated location, FBI agents observed Lonardo place a kilogram of cocaine into Bourjaily’s car.
- The agents immediately arrested both Lonardo and Bourjaily.
- A search of Bourjaily’s car revealed over $20,000 in cash.
Procedural Posture:
- Bourjaily was charged in U.S. District Court with conspiracy to distribute cocaine and possession of cocaine with intent to distribute.
- At trial, the government introduced telephone statements made by co-conspirator Angelo Lonardo over Bourjaily's objection.
- The District Court admitted the statements, finding the government had established the existence of a conspiracy by a preponderance of the evidence.
- A jury convicted Bourjaily on both counts.
- Bourjaily (appellant) appealed to the United States Court of Appeals for the Sixth Circuit, arguing the statements were improperly admitted.
- The Court of Appeals affirmed the conviction, upholding the District Court's evidentiary ruling.
- The United States Supreme Court granted certiorari to resolve questions regarding the admission of co-conspirator statements.
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Issue:
Under the Federal Rules of Evidence, may a trial court consider a co-conspirator's out-of-court statement itself when determining, by a preponderance of the evidence, whether a conspiracy existed as a preliminary matter for admitting that same statement against a defendant?
Opinions:
Majority - Chief Justice Rehnquist
Yes. A trial court may consider a co-conspirator's statement when making a preliminary factual determination regarding the statement's admissibility under Rule 801(d)(2)(E). The court must be satisfied by a preponderance of the evidence that a conspiracy existed and the defendant was a member. Federal Rule of Evidence 104(a) explicitly permits a court, when deciding preliminary questions of admissibility, to consider any evidence not subject to privilege, which abrogates the common-law 'bootstrapping' rule from Glasser v. United States that required proof aliunde (from an independent source). The Confrontation Clause does not require a separate inquiry into the reliability of a co-conspirator's statement because the co-conspirator exception is a 'firmly rooted hearsay exception,' and statements falling within such exceptions are deemed inherently reliable for constitutional purposes.
Concurring - Justice Stevens
Yes. While agreeing with the majority's conclusion, this opinion offers a different reading of Glasser v. United States. The 'bootstrapping' rule should be interpreted not as completely forbidding consideration of the hearsay statement, but as requiring that the statement cannot be the sole evidentiary support for its own admissibility. There must be some corroborating evidence from another source ('aliunde'). This interpretation, which allows the statement to be considered along with other independent evidence, is fully consistent with the plain language of Federal Rule of Evidence 104(a).
Dissenting - Justice Blackmun
No. The Federal Rules of Evidence were not intended to abolish the long-settled common-law rule requiring that the existence of a conspiracy be established by evidence independent of the co-conspirator's statement itself. The majority's rigid 'plain meaning' reading of Rule 104(a) ignores that Rule 801(d)(2)(E) codified a common-law exception that included the independent-evidence requirement as a crucial safeguard against unreliable hearsay. By removing this safeguard, the Court alters the exception so fundamentally that it can no longer be considered a 'firmly rooted hearsay exception.' Therefore, the Confrontation Clause demands a separate inquiry into the statement's 'particularized guarantees of trustworthiness,' which the majority wrongly avoids.
Analysis:
This decision significantly altered federal evidence law by formally abolishing the common-law 'bootstrapping rule' that had been followed by most federal circuits. By allowing trial courts to consider the hearsay statement itself in determining its admissibility, the ruling lowers the foundational burden on prosecutors seeking to introduce co-conspirator statements. This makes it easier to establish the existence of a conspiracy and get powerful evidence before a jury. Furthermore, the Court's holding solidifies the principle that hearsay exceptions 'firmly rooted' in jurisprudence automatically satisfy the Confrontation Clause's reliability requirement, thereby streamlining constitutional analysis for such evidence.
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