BOURJAILY V. UNITED STATES, 483 U. S. 171 (1987)

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U.S. Supreme Court

Bourjaily v. United States, 483 U.S. 171 (1987)

Bourjaily v. United States

No. 85-6725

Argued April 1, 1987

Decided June 23, 1987

483 U.S. 171


In a tape-recorded telephone conversation with a Federal Bureau of Investigation (FBI) informant arranging to sell cocaine, Angelo Lonardo, who had agreed earlier to find individuals to distribute the drug, said he had a "gentleman friend" (petitioner) who had some questions. In a subsequent telephone call, the informant spoke to the "friend" about the drug's quality and the price, and later arranged with Lonardo for the sale to take place in a designated parking lot, where Lonardo would transfer the drug from the informant's car to the "friend." The transaction took place as planned, and the FBI arrested Lonardo and petitioner immediately after Lonardo placed the drug into petitioner's car. At petitioner's trial that resulted in his conviction of federal drug charges, including a conspiracy charge, the Government introduced, over petitioner's objection, Lonardo's telephone statements regarding the "friend's" participation in the transaction. The District Court found that, considering both the events in the parking lot and Lonardo's statements, the Government had established by a preponderance of the evidence that a conspiracy involving Lonardo and petitioner existed, that Lonardo's statements were made in the course and in furtherance of the conspiracy, and that the statements thus satisfied Federal Rule of Evidence 801(d)(2)(E), which provides that a statement is not hearsay if it is made "by a coconspirator of a party during the course and in furtherance of the conspiracy." The Court of Appeals affirmed, agreeing that Lonardo's statements were admissible under the Federal Rules of Evidence, and also rejecting petitioner's contention that, because he could not cross-examine Lonardo (who exercised his right not to testify), admission of the statements violated his Sixth Amendment right to confront the witnesses against him.

Held: Lonardo's out-of court statements were properly admitted against petitioner. Pp. 483 U. S. 175-184.

(a) When the preliminary facts relevant to Rule 801(d)(2)(E) -- the existence of a conspiracy and the nonoffering party's involvement in it -- are disputed, the offering party must prove them by a preponderance of the evidence, not some higher standard of proof. Rule of Evidence 104(a) requires that the court determine preliminary questions concerning the admissibility of evidence, but the Rules do not define the standard of

Page 483 U. S. 172

proof. The traditional requirement that such questions be established by a preponderance of proof, regardless of the burden of proof on the substantive issues, applies here. Pp. 483 U. S. 175-176.

(b) There is no merit to petitioner's contention -- based on the "bootstrapping rule" of Glasser v. United States, 315 U. S. 60, and United States v. Nixon, 418 U. S. 683 -- that a court, in determining the preliminary facts relevant to Rule 801(d)(2)(E), must look only to independent evidence other than the statements sought to be admitted. Both Glasser and Nixon were decided before Congress enacted the Federal Rules of Evidence, and Rule 104(a) provides that, in determining preliminary questions concerning admissibility, the court "is not bound by the rules of evidence" (except those with respect to privileges), thus authorizing consideration of hearsay. Such construction of Rule 104(a) does not fundamentally change the nature of the coconspirator exception to the hearsay rule. Out-of court statements are only presumed unreliable, and may be rebutted by appropriate proof, and individual pieces of evidence, insufficient in themselves to prove a point, may in cumulation prove it. Thus, a per se rule barring consideration of Lonardo's statements during preliminary factfinding is not required. Each of his statements was corroborated by independent evidence, consisting of the events that transpired at the parking lot. Accordingly, it need not be decided whether, under Rule 104(a), the courts below could have relied solely upon Lonardo's hearsay statements to establish the preliminary facts for admissibility. If Glasser and Nixon are interpreted as meaning that courts cannot look to the hearsay statements themselves for any purpose, they have been superseded by Rule 104(a). It is sufficient in this case to hold that a court, in making a preliminary factual determination under Rule 801(d)(2)(E), may examine the hearsay statements sought to be admitted. Pp. 483 U. S. 176-181.

(c) Admission of Lonardo's statements against petitioner did not violate his rights under the Confrontation Clause. The requirements for admission under Rule 801(d)(2)(E) are identical to the requirements of the Clause, and since the statements were admissible under the Rule, there is no constitutional problem. In this context, the Clause, as a general matter, requires the prosecution to demonstrate both the unavailability of the declarant and the indicia of reliability surrounding the out-of-court declaration. However, a showing of unavailability is not required when the hearsay statement is the out-of-court declaration of a coconspirator. United States v. Inadi, 475 U. S. 387. Moreover, no independent inquiry into reliability is required when the evidence falls within a firmly rooted hearsay exception, such as the coconspirator exception. Pp. 483 U. S. 181-184.

781 F.2d 539, affirmed.

Page 483 U. S. 173

REHNQUIST, C.J.,delivered the opinion of the Court, in which WHITE, POWELL, STEVENS, O'CONNOR, and SCALIA, JJ., joined. STEVENS, J., filed a concurring opinion, post p. 483 U. S. 184. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post p. 483 U. S. 186.

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