slight evidence standard on the participation prong in light of the Seventh Circuit's rejection of the standard on appellate review. Cargo, No. 92 CR 442, 1992 WL 206280, at *1.
So assuming a slight evidence standard does not apply for 801(d)(2)(E) determinations, the next question becomes what replaces the standard. One answer is the substantial evidence standard applied in Durrive. This court's opinion in United States v. Messino, 855 F. Supp. 973, 975 (N.D. Ill. 1994), could be read toward that end. However, again, there are at the very least good arguments not to apply the substantial evidence standard to the participation prong. First, as the government notes, the standard is explicitly used by the Seventh Circuit for review of jury verdicts. The task of appellate review is far different from the task of trial court evidence management in the first instance. The Seventh Circuit made this point in Durrive by cautioning district courts not to undermine the government's burden by instructing juries based on a substantial evidence standard. See Durrive, 902 F.2d at 1229 n.6. It follows that it might be similarly inappropriate to apply a substantial evidence test, designed for appellate review, to a lower court's admissibility determination. Second, it is not all that clear whether "substantial evidence" is as substantial as it sounds. Because it is an appellate standard, substantial evidence would tend to be a lenient standard for factual support. And, at least in review of administrative agency decisions, substantial evidence "may be less than a preponderance of the evidence." Freeman United Coal Mining Co. v. Stone, 957 F.2d 360, 362 (7th Cir. 1992).
A third, and most promising, alternative is to apply the preponderance of the evidence standard to all three Santiago ruling prongs. The first and most persuasive reason for such a standard is that the Seventh Circuit trend is in that direction, as previously demonstrated. Another reason for applying such a standard is that the Durrive court's analysis favors simplicity, not bending over backwards to create fine distinctions among the standards for various prongs. The most clear and simple approach is to apply the preponderance of the evidence standard to all three 801(d)(2)(E) prongs.
All that said, if this area of the law needs the perfect test case for clarification, this case is not the one. The reason this case does not squarely present the issues discussed is that the government's evidence that Rufus Sims was a member of the charged conspiracy is nothing short of overwhelming; as explained in somewhat more detail below, the government meets just about any burden one could imagine. Whether the burden is slight, preponderant or substantial evidence, and whether substantial means more or less than a preponderance, the government meets all three prongs.
II. DISCUSSION AND PRELIMINARY FINDINGS
The government is right to point out that the court on October 23, 1992, made a Santiago ruling covering defendant Rufus Sims. Since that date, three developments make the case for 801(d)(2)(E) admission stronger: (1) the court has actually heard much of the government's case before; (2) a jury has found, at least for one codefendant, that a conspiracy existed; and (3) codefendant Richard Goldstein has appeared before this court making a post-sentencing proffer that incriminated Rufus Sims, as well as bolstered the general allegation of conspiracy.
Count One alleges that all defendants, plus Tim Patterson and others known and unknown to the Grand Jury either conspired to distribute narcotics or aided and abetted the conspiracy, an overarching charge incorporating the allegations of all other counts, Counts Two through Nineteen. (Indictment Count I, P 21, at 9.) The Count One conspiracy is also alleged as "Racketeering Activity Number 1" in Count Two, a Racketeer Influenced and Corrupt Organizations Act count. (Indictment Count II, at 14-15.) Count Eight charges a conspiracy to conceal illegal proceeds and to illegally structure transactions in order to impede the United States in its law enforcement. The court turns to the three findings it must make for Rule 801(d)(2)(E) admission.
A. Existence of the Conspiracy
On the prong of existence of a conspiracy, the government has met its burden. The court previously discussed the government's burden in its 1991 opinion. See Sims, 808 F. Supp. at 622-23. Therein, this court noted that the government proffered evidence that members of the conspiracy
(1) obtained supplies of narcotics; (2) mixed and repackaged the narcotics into user-size packets to sell to customers; (3) delivered the narcotics to distribution outlets and picked up cash proceeds from prior sales; (4) obtained and operated individual narcotics distribution outlets, including renting the apartments used for narcotics distribution, hiring workers to staff those outlets, overseeing the performance of those workers, and providing security for the operation of those distribution outlets and the conspiracy in general; (5) punished workers and others who threatened the security of the conspiracy by methods including murder and beating; (6) obtained and maintained large quantities of firearms, including semiautomatic and automatic weapons and grenades, to provide security for the conspiracy; and (7) concealed from the Internal Revenue Service, the Drug Enforcement Administration, and other law enforcement agencies, the income from and assets obtained by the proceeds of the illegal distribution of narcotics.
Id. And, as previously discussed, since then the government's position has improved. The government's evidence of a conspiracy includes photographs, cashier's checks, testimony, and narcotics records. (Government's Proffer at 15-16.) Additionally, as the government notes, in numerous guilty pleas, codefendants have identified a conspiracy.
B. Rufus Sims's Participation
Again, this court's previous discussion of the evidence of Rufus Sims's participation still holds, and in fact has strengthened. The proffered evidence originally included statements of Michael Stevens, Shawn Baker, Maurice Harmon, and William Burch. Sims, 808 F. Supp. at 623-24. To that is added evidence the court heard at the prior trial, as well as the post-sentencing proffer of codefendant Richard Goldstein. (Government's Proffer at 16.) The court finds the government has met its burden regarding Sims's own participation.
C. Statement Made in Furtherance of the Conspiracy
This court previously noted the Seventh Circuit guidance available on the issue of whether a statement is in furtherance of a conspiracy, citing Garlington v. O'Leary, 879 F.2d 277, 283 (7th Cir. 1989):
A coconspirator'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 coconspirators, 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 (1987); statements seeking to control damage to an ongoing conspiracy, see Van Daal Wyk, 840 F.2d at 499, statements made to keep coconspirators 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, 104 S. Ct. 486, 78 L. Ed. 2d 682 (1983).