Kenneth E. Fairley v. United States

Historically, this Court has limited the evidence admitted pursuant to the “coconspirator exception” to the hearsay rule (FRE 801(d)(2)(E)) to statements made during and in furtherance of criminal conspiracies. The limitation results from the Court’s understanding of the common-law history of this exception to the hearsay rule, the plain language of the rule, and its legislative history. The Fifth Circuit, however, along with the Second, Ninth, and D.C. Circuits, have expanded the coconspirator exception to the hearsay rule, and now admit hearsay statements made when there is only a noncriminal relationship between the “coventurers.” This is in contrast to the First, Third, Fourth, Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits, all of which continue to require that the conspiracy described in FRE 801(d)(2)(E) be a criminal one. In Fairley’s case, the crux of the Government’s evidence consisted of three tape recordings made by the coconspirator over a year after any criminal conspiracy had ended. Nevertheless, the Fifth Circuit, relying on its earlier holdings that “a conspiracy [for purpose of hearsay exclusion] may be shown ‘merely by engaging in a joint plan [ ] . . . that was non-criminal in nature,’ ” deemed the recordings admissible, because they evidenced an ongoing, non-criminal “joint venture.” Thus, the issue presented is: Whether FRE 801(d)(2)(E) permits the admission of out-of-court statements that were