IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

NEWNAN DIVISION

UNITED STATES OF AMERICA )

)

vs. ) ) xxxxxxxxxxxxxxxx

)

xxxxxxxxxxxx )

_____________________________)

MOTION IN LIMINE TO PRECLUDE ADMISSION

OF CO-CONSPIRATOR HEARSAY STATEMENTS

COMES NOW Defendant, xxxxxxxxxxx, by and through undersigned counsel, and respectfully moves this Court for an order precluding admission at trial of any out-of-court statements purportedly made by any indicted or unindicted co-conspirators which directly or indirectly referred to xxxxxxx, or which otherwise may be used to incriminate xxxxxxx. In support of this motion, Mr. xxxxxxx and his counsel show the Court the following:

(1)

A total of three defendants, including xxxxxxx, are charged in the indictment in this case. The indictment consists of three counts, and count one is a conspiracy charge.

(2)

Undersigned counsel anticipates that the Government will attempt to offer into evidence out-of-court statements made by one or more indicted or unindicted co-conspirators at trial. Undersigned counsel further anticipates that some or all of those out-of-court statements either refer to xxxxxxx, directly or indirectly, or otherwise would be used to incriminate xxxxxxx.

ARGUMENT AND AUTHORITY

Pursuant to Rule 801(d)(2)(E) of the Federal Rules of Evidence, statements that would otherwise be hearsay are admissible if they are "by a co-conspirator of a party during the course and in furtherance of the conspiracy." For a declaration by one defendant to be admissible against other defendants under this subsection of Rule 801, the Government must establish by a preponderance of the evidence the following: (1) that a conspiracy existed, (2) that the defendant and the declarant were members of that conspiracy, and (3) that the statement was made during the course and in furtherance of the conspiracy. United States v. Van Hemelryck, 945 F.2d 1493, 1497-98 (11th Cir. 1991). The Government is required to satisfy this burden before such out-of-court statements by a co-conspirator are admissible because out-of-court statements are generally presumed to be unreliable, unless such presumption is adequately rebutted by sufficient proof. See Bourjaily v. United States, 483 U.S. 171, 179 (1987).

In the present case, any out-of-court statements by co-conspirators which the Government seeks to admit at trial should be carefully reviewed by the Court before their admission, and should be admitted only if the Government satisfies the burden set forth above. In order to minimize any prejudicial impact of such statements, the Court should make a determination as to their admissibility before the statements are presented to the jury. Otherwise, if the Court allows the statements to be admitted subject to the Government satisfying its burden of proof later during the trial, and the Government fails to satisfy that burden, the jury will have heard the damaging statements and will have difficulty not considering them in their deliberations, even if the Court gives a curative instruction.

CONCLUSION

Based on the arguments set forth above, xxxxxxx respectfully requests that this Court rule that any out-of-court statements by co-conspirators are inadmissible at trial in this case, unless the Government has satisfied its burden of proof that the hearsay exception under Rule 801(d)(2)(E) applies to such statements. Furthermore, xxxxxxx requests that this Court makes such a determination as to admissibility of such out-of-court statements before the statements are actually presented to the jury.

DATED: This ______ day of June, 1993.

Respectfully submitted,

_________________________________

R. GARY SPENCER

Attorney for: JOSEPH PAUL xxxxxxx State Bar Number: 671905

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