Accord, e.g.,United States v. Haynie,
179 F.3d 1048, 1050 (7
United States v. Rodriguez
, 975 F.2d 404, 406 (7
II. THE LAW GOVERNING THE ADMISSIBILITY OF CO-SCHEMERS’STATEMENTS
Rule 801(d)(2)(E) of the Federal Rules of Evidence provides that a “statement” is nothearsay if it “is offered against a party” and is “a statement by a co-conspirator of a party during thecourse and in furtherance of the conspiracy.” The admission of a co-conspirator statement againsta defendant is proper where the government establishes by a preponderance of evidence that: (1)a conspiracy or scheme existed; (2) the defendant and the declarant were members of that particularconspiracy or scheme; and (3) the statement was made during the course and in furtherance of theconspiracy or scheme.
See, e.g., Bourjaily v. United States
, 483 U.S. 171, 175 (1987);
United Statesv. Westmoreland
, 312 F.3d 302, 309 (7
Proffer is the Approved Method of Proffering Co-SchemerStatements
In this Circuit, the preferred way for the government to makes its preliminary factualshowing as to the admissibility of such statements is by filing a pretrial written proffer of thegovernment's evidence.
See, e.g., United States v. Hoover
, 246 F.3d 1054, 1060 (7
United States v. Irorere,
228 F.3d 816, 824 (7
In making its preliminary factual deter-minations, the Court must consider the statements themselves as evidence of a conspiracy andwhether the statements the government seeks to admit were made in furtherance of that conspiracy.
United States v. Brookins
, 52 F.3d 615, 623 (7
United States v. Maholias
, 985 F.2d869, 877 (7
Cir. 1993). Indeed, the Court may consider all non-privileged evidence.
See United States v. Lindemann
, 85 F.3d 1232, 1238 (7
Case 1:08-cr-00888 Document 306 Filed 04/14/10 Page 3 of 91