United States District Court, N.D. Illinois, Eastern Division
April 16, 2004.
UNITED STATES OF AMERICA, Plaintiff,
PHILLIP J. COZZO et al., Defendants.
The opinion of the court was delivered by: JAMES ZAGEL, District Judge
MEMORANDUM OPINION AND ORDER
Defendants Phillip Cozzo and Frank Useni have made several
evidentiary motions in limine pertaining to the Government's
intended use of alleged coconspirator statements pursuant to
Federal Rule of Evidence 801(d)(2)(E). Rule 801(d)(2)(E) provides
that a "statement" is not hearsay if it is "offered against a
party" and is a "statement by a coconspirator of a party during
the course and in furtherance of the conspiracy." The admission
of a coconspirator statement against a defendant is proper where
the government establishes by a preponderance of the evidence
that: (1) a conspiracy existed; (2) the defendant and the
declarant were members of that particular conspiracy; and (3) the
statement was made during the course and in furtherance of the
conspiracy. See Bourjaily v. United States, 483 U.S. 171, 175
(1987); United States v. Haynie, 179 F.3d 1048, 1050 (7th Cir.
1999). I now address the Defendants' objections to the use of
coconspirator statements. In doing so, I assume, arguendo, that
all participants in these conversations are coconspirators. Surveillance Tape No. 80
Defendants object to the use of a portion of a surveillance
tape involving a conversation between testifying codefendant
Rosario DiMarco and Cozzo on July 2, 1996.*fn1 Specifically,
Defendants object to the portion of the tape corresponding to the
tape transcript from line 47, page 1 to line 18, page 2.
Defendants argue that even if the participants are discussing
some conspiracy, it is not clear that they are discussing the
alleged conspiracy at issue here. See, e.g., United States v.
Piper, 298 F.3d 47, 54-55 (1st Cir. 2002) (holding that district
court erred in admitting tape-recorded conversation between an
alleged coconspirator and a third party because the conversation
was most accurately characterized as an attempt to persuade a
third party to purchase drugs from a source other than the
defendant and, thus, the conversation was not in furtherance of
the charged conspiracy involving the coconspirator's agreement to
distribute drugs supplied by defendant). Whether this is true
depends on what DiMarco testifies to regarding the conversation
in court. If he testifies that they were discussing the present
conspiracy, then the portion is admissible. On the other hand, if
he testifies that they were discussing a separate issue, then the
portion is not admissible. Accordingly, I reserve judgment on
this objection until then.
Testimony of Donna Dombrowski
Defendants object to witness Donna Dombrowski testifying that
unindicted and deceased coconspirator Fred Bigham told her than
he, codefendant William Shlifka, and Cozzo were taking a piece of
the proceeds from the operation of the Grand Palace Bingo Hall.
While the testimony regarding Bigham himself is admissible, it is
questionable whether the testimony regarding Shlifka and Cozzo is admissible because it is not clear
that the statement was made "in furtherance" of the alleged
In determining whether a statement was made "in furtherance" of
a conspiracy, courts look for a reasonable basis upon which to
conclude that the statement furthered the conspiracy's
objectives. United States v. Shoffner, 826 F.2d 619, 628 (7th
Cir. 1987). Under the reasonable basis standard, a statement may
be susceptible to alternative interpretations and still be "in
furtherance" of the conspiracy, and the statement need not have
been exclusively, or even primarily, made to further the
conspiracy. Id. Also, the statement need not be important or
essential to the conspiracy; it need only be just important
enough to serve some purpose to promote the conspiracy's
objectives in order to be admissible. United States vGajo,
290 F.3d 922, 929 (7th Cir.), cert. den., 537 U.S. 938 (2002).
In general, a statement which is "part of the information flow
between conspirators intended to help each perform a role" is
admissible under Rule 801(d)(2)(E). United States v. Santos,
20 F.3d 280, 286 (7th Cir. 1994) (quoting United States v.
Johnson, 927 F.2d 999, 1001 (7th Cir. 1991)).
Courts have found a wide range of statements to satisfy the "in
furtherance" requirement. See, e.g., United States v. Herrero,
893 F.2d 1512, 1527-28 (7th Cir. 1990); Garlington v. O'Leary,
879 F.2d 277, 283-84 (7th Cir. 1989). These include statements
made: (1) to identify other members of the conspiracy and their
roles, United States v. Magee, 821 F.2d 234, 244 (5th Cir.
1987); United States v. Roldan-Zaoata, 916 F.2d 795, 803 (2d
Cir. 1990); (2) to recruit potential coconspirators, Shoffner,
826 F.2d at 628; (3) to control damage to an ongoing conspiracy,
United States v. Van Daal Wyk, 840 F.2d 494, 499 (7th Cir.
1988); (4) to keep coconspirators advised as to the progress of
the conspiracy, United States v. Potts, 840 F.2d 368, 371 (7th Cir. 1987); (5) to conceal the criminal objectives of
the conspiracy, United States v. Kaden, 819 F.2d 813, 820 (7th
Cir. 1987); United States v. Xheka, 704 F.2d 974, 985-86 (7th
Cir. 1983); (6) to plan or to review a coconspirator's exploits,
United States v. Molt, 772 F.2d 366, 368-69 (7th Cir. 1985); or
(7) as an assurance that a coconspirator can be trusted to
perform his role, United States v. Buishas, 791 F.2d 1310, 1315
(7th Cir. 1986). On the other hand, statements that consist of
"idle chatter, narrative declarations and superfluous casual
remarks" do not satisfy the "in furtherance" requirement and are
inadmissible hearsay. United States v. Johnson, 927 F.2d 999,
1002 (7th Cir. 1991) (quotations and citation omitted).
The most difficult questions regarding admissibility of
coconspirator statements involve statements in which one
conspirator says that "X" defendant perpetrated some bad act or
played some role in the conspiracy. The argument against
admissibility in such situations is that recitations of past
history arguably do not further the cause of the conspiracy and
fall within the category of idle chatter.
Sometimes relating past crimes and current roles do "further"
the conspiracy. One situation is when such information keeps the
conspiracy intact. For example, in United States v.
Westmoreland, 312 F.3d 302 (7th Cir. 2002), cert. den.,
538 U.S. 1042 (2003), a witness testified that her husband had come
home covered in blood and told her that he had helped the
defendant on trial bury someone who had owed the defendant money
and who had "talk[ed] too much." Id. at 309. The Seventh
Circuit held that this statement did further the conspiracy
because the statement, which the witness perceived as a threat,
was intended to preserve the conspiracy by frightening the
witness and dissuading her from informing the authorities about
the defendant's drug scheme. Id. at 309-10. There is also a line of cases involving long-lived criminal
organizations in which information about participants in a
conspiracy and their respective roles furthers the conspiracy.
For example, in United States v. Russo, 302 F.3d 37 (2d Cir.
2002), cert. den., Hickey v. United States, 537 U.S. 1112
(2003), a witness testified that he was told that the defendant
on trial had become a captain within an organized crime family
and that the defendant's son told him and another individual that
the codefendant was "with" the family. Id. at 46. The Second
Circuit held that these statements were in furtherance of the
conspiracy because they furthered maintenance of the syndicate by
giving associated persons information about its membership. Id.
Concerning the present statement, I am inclined to prohibit its
use as to Cozzo and Shlifka. While it might be important for
Dombrowski to know that Bigham, Cozzo and Shlifka are key players
in the conspiracy's organization, such as in Russo, and while
Bigham might have intended to frighten Dombrowski and dissuade
her from informing the authorities about the scheme, such as in
Westmoreland, neither of these classic scenarios seems to be
the likely explanation. Rather, the more likely explanation is
that because Dombrowski was helping Bigham recount the money he
brought home each night before depositing a predetermined amount
in the various checking accounts of posts of the veterans groups,
she needed to know that there would be extra money left over
after her counting. It appears that this extra money would go
straight to Bigham, and hence, that is why Dombrowski's statement
would be admissible against him. But the statement as it pertains
to Cozzo and Shlifka is nothing more than idle chatter or past
declarations. If Dombrowski was handling the skim for Cozzo and
Shlifka as well as for Bigham this conclusion would be different,
but it appears she was only doing so for Bigham. Accordingly, I prohibit the use of any statement by
Dombrowski regarding Bigham telling her that Cozzo and Shlifka
were taking a piece of the proceeds absent any evidence that
Dombrowski was handling part of the skim for Cozzo and Shlifka.
Confrontation Clause Issues
Finally, Defendants have made a general objection to the use of
surveillance tapes on the grounds that their use violates the
Confrontation Clause, citing Crawford v. Washington,
124 S.Ct. 1354 (2004). In Crawford, the Supreme Court held that the Sixth
Amendment prevents the admission of any "testimonial" out of
court statements by an unavailable witness unless there was a
prior opportunity for cross-examination. However, Crawford does
not alter the law relative to "nontestimonial" out of court
statements, such as coconspirator statements. Such statements are
not subject to the Confrontation Clause. Id. at 1374.
Accordingly, Crawford does not provide a basis for excluding the
surveillance tapes. See, e.g., United States v. Reyes, 2004 WL
613071, *2 n. 4 (8th Cir. Mar 30, 2004).