The opinion of the court was delivered by: ALESIA
Before the court is the government's pre-trial written proffer of evidence, submitted pursuant to United States v. Santiago, 582 F.2d 1128 (7th Cir. 1978), summarizing the evidence that the government expects to adduce at trial to establish that a conspiracy existed; that each of the defendants participated in the conspiracy; and that the co-conspirator statements sought to be introduced were made during the course of and in furtherance of the conspiracy.
Under Federal Rule of Evidence 801(d)(2)(E), statements made by a co-conspirator of a defendant during the course of and in furtherance of the conspiracy are not hearsay when offered against the defendant. Before these statements will be allowed into evidence, however, the court must determine that the government has demonstrated, by a preponderance of the evidence, that as to each defendant "(1) a conspiracy existed, (2) the defendant and the declarant were members thereof, and (3) the proffered statement(s) were made during the course of and in furtherance of the conspiracy." United States v. Cox, 923 F.2d 519, 526 (7th Cir. 1991). See also United States v. Perez, 28 F.3d 673, 677 (7th Cir. 1994); United States v. Ford, 21 F.3d 759, 763 (7th Cir. 1994); United States v. Wesson, 33 F.3d 788, 796 (7th Cir. 1994), cert. denied, 513 U.S. 1100, 115 S. Ct. 773 (1995) (each applying the preponderance standard to all three prongs of the admissibility test). In making this determination, the court may examine the hearsay statements sought to be admitted. Bourjaily v. United States, 483 U.S. 171, 181, 107 S. Ct. 2775, 2781, 97 L. Ed. 2d 144 (1987).
Count One charges defendants T.J. Morrow, Anthony Morrow, and Sandra McKee with conspiring to possess with intent to distribute and to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1). Count Six charges defendants T.J. Morrow and Anthony Morrow with conspiring to possess a firearm, both previously having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). The remaining counts charge the defendants with various substantive offenses. The conspiracies encompass the various criminal conduct charged in the other counts in the indictment. In its Santiago proffer, the government has provided detailed information about each alleged conspiracy. The following information is only a summary of the government's proffered evidence, which is considerable.
According to the government's proffer, beginning on April 23, 1996, a confidential informant working with law enforcement officers had numerous conversations and meetings with T.J. Morrow related to the informant's purchase of crack cocaine from T.J. Morrow. The law enforcement officers supplied money to the informant for the crack cocaine buys, and gave the informant a recording device to record his conversations with T.J. Morrow. On April 24, May 3, May 16, and October 4, 1996, the informant bought crack cocaine from T.J. Morrow, and then turned the crack cocaine over to the law enforcement officers. (Government's Proffer at 12-20.) Defendants Anthony Morrow and Sandra McKee facilitated the October 4, 1996, drug buy. (Id. at 17-20.)
In addition to crack cocaine, the informant also bought four guns from T.J. Morrow, on May 27, August 8, October 24, and October 29, 1996. (Id. at 20.) Each purchase was carried out under the supervision of law enforcement officers, who conducted surveillance and monitored a recording device installed in the informant's car. (Id.) Moreover, the law enforcement officers recorded phone conversations between the informant and T.J. Morrow preceding the October 24, 1996, transaction. Anthony Morrow was involved in the October 24, 1996, transaction. (Id. at 21-22.)
The evidence proffered by the government and summarized above shows by a preponderance of the evidence that a narcotics conspiracy existed between T.J. Morrow, Anthony Morrow, and Sandra McKee, and that a firearms conspiracy existed between T.J. Morrow and Anthony Morrow.
B. Each defendant's participation in the conspiracy
The court may consider the "words and deeds" of each defendant in establishing his participation in the alleged conspiracy. United States v. de Ortiz, 907 F.2d 629, 632-35 (7th Cir. 1990), cert. denied, 498 U.S. 1029, 111 S. Ct. 684 (1991). The court may "reach the necessary level of satisfaction [to admit co-conspirator statements] at least in part on the basis of hearsay." Id. at 634.
A defendant joins a conspiracy if he agrees with a conspirator to one or more of the common criminal objectives set forth in the indictment; it is immaterial whether the defendant knows, has met with, or has agreed with every conspirator. United States v. Boucher, 796 F.2d 972, 975 (7th Cir. 1986); United States v. Balistrieri, 779 F.2d 1191, 1225 (7th Cir. 1985), cert. denied sub nom. DiSalvo v. United States, 475 U.S. 1095, 106 S. Ct. 1490 (1986). A defendant, even if not an "agreeing" member of the conspiracy, also may be found guilty of conspiracy if he knew of the conspiracy's existence at the time of his acts, and his acts knowingly aided and abetted the conspiracy. United States v. Kasvin, 757 F.2d 887, 890-91 (7th Cir.), cert. denied, 474 U.S. 1032, 106 S. Ct. 592, 88 L. Ed. 2d 572 (1985).
Furthermore, the government need not prove that a defendant knew each and every detail of the conspiracy or played more than a minor role in the conspiracy. United States v. Liefer, 778 F.2d 1236, 1247 n.9 (7th Cir. 1985); United States v. Towers, 775 F.2d 184, 189 (7th Cir. 1985). In addition, any of the defendants may be found to have participated in a conspiracy even if they joined or terminated their relationship with core conspirators at different times. United States v. Ramirez, 796 F.2d 212, 215 (7th Cir. 1986); United States v. Noble, 754 F.2d 1324, 1329 (7th Cir.), cert. denied, 474 U.S. 818, 106 S. Ct. 63, 88 L. Ed. 2d 51 (1985). The determination is individual; each defendant is entitled to separate consideration of his alleged participation. Thus, the court will consider each defendant in turn.
According to the government's proffer, T.J. Morrow played the lead role in the narcotics conspiracy. T.J. Morrow sold thousands of dollars' worth of crack cocaine to the informant on several occasions. T.J. Morrow's conversations with the informant indicated that T.J. Morrow purchased cocaine for resale as crack cocaine, and set the prices for the crack cocaine he sold. On all occasions, T.J. Morrow dealt directly with the ...