United States v. Joseph F. Radeker , 664 F.2d 242 ( 1981 )

McKAY, Circuit Judge.

Defendant was tried in September 1979, nearly a year after this court in United States v. Andrews, 585 F.2d 961 (10th Cir. 1978), held that under Fed.R.Evid. 104(a) and (b)¹ and 801(d)(2)(E)² a coconspirator’s hearsay statement is not admissible unless the trial judge finds three facts by a preponderance of . the evidence. The trial judge must determine that the conspiracy existed, that the declarant and the particular defendant were members of the conspiracy, and that the statement was made during the course of and in furtherance of the conspiracy.

Defendant properly objected to certain testimony as hearsay. The government concedes that “the court failed to then or later make a specific finding on the record that the government had carried its burden under the applicable rules.” Brief of Appellee at 13. There is no support in the Federal Rules of Evidence or in Andrews for the proposition that a trial court can avoid its responsibility to make such a finding on the ground that the defendant did not request it.

Fed.R.Evid. 104(b) provides that the testimony is simply not admissible unless the condition is fulfilled: “the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.” (Emphasis added).

Andrews held that “testimony, otherwise hearsay, offered against a coconspirator cannot be admitted unless the existence of the conspiracy is established by independent evidence.” 585 F.2d at 966 (emphasis added). Andrews makes clear that hearsay testimony by an alleged coconspirator is inadmissible if the defendant properly objects to it. It becomes admissible only if the government carries its burden of proving, and the trial court specifically finds, the three facts mentioned above.

United States v. Petersen, 611 F.2d 1313 (10th Cir. 1979), cert. denied, 447 U.S. 905, 100 S.Ct. 2985, 64 L.Ed.2d 854 (1980), although decided after the trial of this case, explained the meaning of Andrews.

[W]e held, in Andrews, that such statements could be admitted, at the close of all evidence and prior to submission of the case to the jury, only if the trial judge determines that it is “more likely than not” that the conspiracy existed, that the declarant and the defendant against whom the conspirator’s statement is offered were members of that conspiracy, and that the statement was made during the course and in furtherance of the conspiracy.

611 F.2d at 1327 (emphasis added). We further explained that

[o]ur Andrews holding was simply that a district court judge, under Rule 104 of the Federal Rules of Evidence, must determine, prior to admission of the hearsay statement, as a factual matter, that the Government has shown by independent evidence that it is more likely than not that [the three facts described above existed].³

Id. at 1330.

Fed.R.Evid. 104, as Andrews and Petersen explain, explicitly conditions the admission of such statements upon a showing by the government and a specific finding by the trial court of the three facts described above. Nowhere does either opinion suggest that these duties of the government and the trial court arise only if the defendant specifically requests them. These obligations arose in this case when defendant objected to the -testimony on the proper ground: hearsay. The government, as the party seeking to introduce the testimony, had the burden to see that the conditions were satisfied. We have recently reiterated and reinforced these rules governing the conspiracy exception to the hearsay rule. United States v. Stipe, 653 F.2d 446 (10th Cir. 1981).

We have also considered other cited cases and conclude that they do not support the government’s position. In United States v. Brewer, 630 F.2d 795 (10th Cir. 1980), the issue was not raised on appeal, id. at 801, and therefore the court’s discussion of that issue was dicta. In United States v. Rios, 611 F.2d 1335, 1340 (10th Cir. 1979), we held that Andrews did not apply because the trial was prior to Andrews. United States v. Owen, 536 F.2d 340 (10th Cir. 1976), has nothing to do with hearsay. United States v. Kramer, 521 F.2d 1073 (10th Cir. 1975), was decided before the effective date of the Federal Rules of Evidence and before Andrews.

The “hazard from loose application of rules of evidence” in conspiracy cases, Krulewitch v. United States, 336 U.S. 440, 453, 69 S.Ct. 716, 723, 93 L.Ed. 790 (1949) (Jackson, J., concurring), is present in this case, and makes reversal necessary.

REVERSED AND REMANDED for a new trial.

SETH, C. J., does not concur in this opinion and filed a separate dissent.

1 . Fed.R.Evid. 104(a) and (b) provide:

(a) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.

(b) Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

2 . Fed.R.Evid. 801(d)(2)(E) provides:

(d) Statements which are not hearsay. A statement is not hearsay if—

(2) Admission by party-opponent. The statement is offered against a party and is ... (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

3 . A limited exception provides that if the government can show it is “not reasonably practical” to establish the existence of the conspiracy prior to the admission of hearsay evidence, the court may admit the statements subject to a subsequent finding of the three facts. United States v. Petersen, 611 F.2d at 1330. The government admits, however, that there was never any finding by the trial court in this case.