United States v. Doerr
886 F.2d 944 (1989)

  • Doerr and Pixley owned several strip clubs.  They were arrested on suspicion of running a prostitution ring.
  • At trial, the prosecution attempted to introduce a statement made by Doerr to his brother and a statement made by Pixley to a customer.
    • Generally, statements made out of court are not admissible on the grounds they are hearsay.
    • The prosecution argued that these 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.
    • Doerr argued that the statements were inadmissible because they were not made in furtherance of the conspiracy, so they didn’t qualify for the exception.
  • The Trial Judge allowed the statements to be admitted into evidence.
  • The Trial Court found Doerr guilty of running a prostitution ring.  He appealed.
  • The Appellate Court reversed the Trial Judge’s decision to admit the evidence.
    • The Appellate Court found that the term “in furtherance of” should be read to mean, “information flow between conspirators intended to help each perform its role.”
      • In this case, both statements were just idle chatter to people not related to the conspiracy.
      • The prosecution argued that the customer had expressed interest in investing in the strip club, and the brother sometimes worked as a doorman at the strip club.  However the Appellate Court didn’t find that persuasive.
    • The Appellate Court found that since the statements were not made “in the furtherance of” the conspiracy, they did not meet the FRE 801 (d)(2)(E) exception and were therefore not admissible since they were hearsay.
      • “In furtherance” means that the statement was made for purposes of:
        • Recruitment
        • Damage control
        • To keep co-conspirators advised
        • Attempt to conceal the conspiracy.
        • However, narratives and idle chatter are not made in furtherance of a conspiracy.
      • Btw, a conspiracy is not only a criminal offense, but it also a civil claim.  Evidence can be admissible in a civil case if it was made in the furtherance of a conspiracy, even if it is a civil claim, not just a criminal prosecution.
  • The bad news for Doerr was that the Appellate Court found that the admission was harmless error and upheld the convictions.
  • Btw, even if the statements were not admissible against the co-conspirators, the statements are always admissible against the person making the statements because those are admissions.