at 66. Thomas received from Rufus Sims some of the cash proceeds of the narcotics conspiracy and stored these funds in a safe deposit box she opened in the name of a third party. Later, Rufus Sims and Thomas used these funds to purchase the Boeger property in Trust through nominees. Government's Proffer, at 69.
Ruby Chambers' participation in the conspiracy will be established by evidence that Chambers acted to conceal the income from and assets obtained by the proceeds of the illegal distribution of narcotics. Government's Proffer, at 66. Chambers (Rufus Sims' wife) worked with Rufus Sims at "The Table" on occasion and assisted Sims in making covert purchases of property with narcotics proceeds, including a 1989 Astro Van. Government's Proffer, at 83. Rufus Sims provided Chambers the money for this purchase and was the owner in fact of the van. Id. Sims and Chambers used the name Hopkins on the car title and the alias "Tina Day" to conceal the true source of the money used to purchase the van as well as the true owner of the vehicle. Government's Proffer, at 83-84. Chambers also accompanied Estella Sims to Forest Park bank to retrieve the cash proceeds of the narcotics conspiracy from a safe-deposit box. Government's Proffer, at 84.
Richard Goldstein's participation in the conspiracy will be proven by evidence that Goldstein handled real estate deals and other transactions on behalf of Rufus Sims to conceal income from and assets obtained by the proceeds of the illegal distribution of narcotics. See Government's Proffer, at 66-67. According to the Government's Proffer, the real estate purchases involved in this case were made using "structured transactions" or transactions designed to evade currency reporting laws and make difficult the identification of the actual purchaser of the property. Government's Proffer, at 69. Goldstein used a false social security number on the escrow account he opened for purposes of completing Sims' real estate transactions. Id. Goldstein also used inactive land trusts to purchase Sims' property to conceal the fact that Sims was buying expensive real estate and that he had access to huge sums of cash. Id.
C. Statement Made in "Furtherance" of the Conspiracy
In determining whether a statement was made "in furtherance" of the conspiracy or joint venture, courts look for a reasonable basis upon which to conclude that the statement furthered the conspiracy. United States v. Shoffner, 826 F.2d at 628. Under the reasonable basis standard, a statement may be susceptible to alternative interpretations and still be "in furtherance" of the conspiracy; the statement need not have been exclusively, or even primarily, made to further the conspiracy in order to be admissible under the conspirator exception. United States v. Shoffner, 826 F.2d at 628. In Garlington v. O'Leary, 879 F.2d 277 (7th Cir. 1989), the Seventh Circuit reviewed an extensive array of decisions on this issue:
A co-conspirator's statement satisfies the "in furtherance" element of Rule 801(d)(2)(E) when the statement is "part of the information flow between conspirators intended to help each perform his role." United States v. Van Daal Wyk, 840 F.2d 494, 499 (7th Cir. 1988). Statements that further the objectives of a conspiracy can take many forms, including statements made to recruit potential co-conspirators, see United States v. Shoffner, 826 F.2d 619, 628 (7th Cir.), cert. denied, [ 484 U.S. 958, 108 S. Ct. 356, 98 L. Ed. 2d 381] statements seeking to control damage to an ongoing conspiracy, see Van Daal Wyk, 840 F.2d at 499, Statements made to keep co-conspirators advised as to the progress of the conspiracy, see United States v. Potts, 840 F.2d 368, 371 (7th Cir. 1987); and statements made in an attempt to conceal the criminal objectives of the conspiracy, see United States v. Kaden, 819 F.2d 813, 820 (7th Cir. 1987); United States v. Xheka, 704 F.2d 974, 985-86 (7th Cir.), cert. denied, 464 U.S. 993, 78 L. Ed. 2d 682, 104 S. Ct. 486 (1983). . . .
Garlington, 879 F.2d at 283-84. However, "narrative declarations, mere 'idle chatter,' and superfluous casual conversations" are not statements made in furtherance of a charged conspiracy. United States v. Doerr, 886 F.2d 944, 951 (7th Cir. 1989). Finally, it is immaterial that statements otherwise "in furtherance" of the conspiracy were made to a government witness, informer or agent. United States v. Mealy, 851 F.2d 890, 901 (7th Cir. 1988).
After reviewing the proffer submitted by the government, this court finds that the government has established, by a preponderance of the evidence, that the co-conspirator statements at issue fall within the scope of Rule 801(d)(2)(E) of the Federal Rules of Evidence. Based upon the written Santiago proffer, it is more likely than not that a conspiracy existed, that defendants participated in the conspiracy, and that statements were made "during the course of and in furtherance of" the conspiracy. As a preliminary matter therefore the statements are not hearsay and thus are admissable against the defendant co-conspirators. In this circuit, however, the trial judge has the option of conditionally admitting the co-conspirator declaration evidence subject to actual proof of these matters at trial. See United States v. Santiago, 582 F.2d 1128, 1131 (7th Cir. 1978); United States v. Cox, 923 F.2d at 526. The court exercises that option here.
Accordingly, for the reasons stated above, the government's evidentiary proffer as to co-conspirator statements is conditionally admitted under Rule 801(d)(2)(E) of the Federal Rules of Evidence, subject to proof of the conspiracy at trial.
Date: OCT 23 1992
JAMES H. ALESIA
United States District Judge