Bourjaily v. United States
483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987)

  • Greathouse was an FBI informant.  He agreed to sell some cocaine to Lonardo in a sting operation.
  • Lonardo told Greathouse that he had a ‘friend’ interested in buying the cocaine.  Greathouse later spoke to the ‘friend’ over the telephone about the deal.
    • Greathouse testified that the ‘friend’ was Bourjaily.
  • Lonardo met Greathouse in a parking lot and put the cocaine into Bourjaily’s car.  Both were immediately arrested for drug possession.
  • At trial, the prosecution introduced the phone call between Bourjaily and Lonardo into evidence.
    • Bourjaily objected on the grounds that the conversation was hearsay.
    • The prosecution countered that the conversation was not hearsay because it met the met the FRE 801(d)(2)(E) exception because they were statements made by a co-conspirator during the course of and in furtherance of the conspiracy.
    • Bourjaily countered that the prosecution could not establish that a conspiracy existed between Bourjaily and Lonardo existed, so the exception did not apply.
      • Basically, Bourjaily argued that the phone call established the conspiracy, but since it was inadmissible you couldn’t prove the conspiracy existed, and so the phone call was inadmissible.
        • Kinda like a Catch-22.
        • This is known as the bootstrapping rule, because the evidence isn’t allowed to pull itself up by its own bootstraps
  • The Trial Judge allowed the evidence to be admitted.
    • The Trial Judge found that the statements Lonardo made in the phone call, and the incident in the parking lot were enough to prove by a preponderance of the evidence that a conspiracy existed.
  • The Trial Court found Bourjaily guilty of drug possession.  He appealed.
  • The Appellate Court affirmed.  Bourjaily appealed.
  • The US Supreme Court affirmed.
    • The US Supreme Court found that a Court does not need evidence independent of the statements themselves in order to conclude that a conspiracy existed.
      • Basically, a statement that a conspiracy exists can be admitted under the FRE 801(d)(2)(E) exception, even if no other independent evidence exists to prove the conspiracy.
      • The technical reason why this is allowed is that FRE 104(a) allows preliminary questions concerning admissibility to be determined by the Court.  Therefore, a court can decide to listen to the statements, decide if those statements show a conspiracy, and then admit them because they were made in furtherance of the conspiracy.
  • The decision in this case reversed the pre-FRE common law, which used the bootstrapping rule to exclude evidence that was not backed up by independent evidence.