AI Case Brief
Generate an AI-powered case brief with:
đKey Facts
âïžLegal Issues
đCourt Holding
đĄReasoning
đŻSignificance
Estimated cost: $0.10â$0.50 per brief, depending on opinion length and retries
Full Opinion
USCA11 Case: 22-14219 Document: 87-1 Date Filed: 09/25/2024 Page: 1 of 18
[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-14219
____________________
UNITED STATES OF AMERICA,
PlaintiïŹ-Appellant,
versus
JOHN HOLLAND,
EDMUNDO COTA,
WILLIAM MOORE,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:17-cr-00234-AT-CMS-1
____________________
USCA11 Case: 22-14219 Document: 87-1 Date Filed: 09/25/2024 Page: 2 of 18
2 Opinion of the Court 22-14219
Before WILSON, JILL PRYOR, and BRASHER, Circuit Judges.
BRASHER, Circuit Judge:
This appeal is about an exclusion from the hearsay rule for
the statements of a partyâs coconspirators. The government ac-
cused the defendants of participating in an illegal healthcare kick-
back scheme and sought to introduce at trial out-of-court state-
ments made by the defendantsâ alleged coconspirators. But because
the district court held that the government failed to prove that the
defendants had the relevant mental state to make their conduct a
crime, the district court refused to admit the statements. The dis-
trict court erred. One need not show that a conspiracy was unlaw-
ful to introduce coconspirator statements. So long as those state-
ments were made during and in furtherance of a joint venture that
included an opposing party, the statements are admissible. Because
the district court excluded the statements in this case based on an
erroneous view of the law, we reverse and remand.
I.
The Anti-Kickback Statute is a federal law prohibiting peo-
ple from referring or accepting the referral of patients covered by a
federal healthcare program in exchange for a payment. 42 U.S.C.
§ 1320aâ7b. This statute was allegedly violated by John Holland,
William Moore, and Ed Cota. Cota and his wife Tracey ran a set of
clinics for Hispanic women and children, which the parties call
Clinica. Holland and Moore, meanwhile, were hospital executives
for Tenet Healthcare. Holland and Moore allegedly increased the
number of childbirths at Tenet hospitals by paying the Cotas to
USCA11 Case: 22-14219 Document: 87-1 Date Filed: 09/25/2024 Page: 3 of 18
22-14219 Opinion of the Court 3
refer Medicaid or Medicare-covered pregnant women to the hospi-
tals. The payments, the government says, came in the form of con-
tracts to hire the Cotas to provide translation services for the
women that they referred.
Tracey Cota pleaded guilty to violating the AKS by partici-
pating in this scheme. The district court accepted that plea, finding
âa basis of fact that comprehends each and every element of the
offense charged to which she is pleading.â But the other defendants
maintain that their business relationship did not violate the AKS, in
part because they lacked the relevant mental state or mens rea.
In prosecuting the three defendants, the government in-
tended to rely on out-of-court statements from several of their un-
indicted coconspirators. The defendants moved for a pretrial hear-
ing under United States v. James, 590 F.2d 575 (5th Cir. 1979) (en
banc),1 which requires a district court to determine the admissibil-
ity of coconspirator statements under an exclusion from the hear-
say rule. The government consistently objected to how the defend-
ants envisioned the hearing, calling it an improper âattempt to con-
duct a mini-trialâ on the AKS conspiracy charge. The government
argued that the court should not allow the defendants âto contest
whether a crime occurredâ or address the âwholesale exclusion of
all co-conspirator statements on the ground that no crime oc-
curred.â In its final brief in response to the defendantsâ arguments,
1 We are bound by decisions of the United States Court of Appeals for the
Fifth Circuit issued before October 1, 1981. Bonner v. City of Prichard, 661 F.2d
1206, 1209 (11th Cir. 1981) (en banc).
USCA11 Case: 22-14219 Document: 87-1 Date Filed: 09/25/2024 Page: 4 of 18
4 Opinion of the Court 22-14219
the government asked the district court to decline the defendantsâ
âinvitation to hold an impermissible summary judgment proceed-
ingâ on whether the defendants committed a crime.
Over the governmentâs objection, the district court decided
to hold a pretrial âpaperâ hearing to test whether the government
could prove that the defendants engaged in an AKS conspiracy with
their alleged coconspirators. Based on the governmentâs eviden-
tiary presentation, including the guilty plea of one coconspirator,
Tracey Cota, the district court recognized that the charged cocon-
spirators worked together toward a common goal: âIt is beyond
dispute that (1) Holland, Moore, and Cota worked together to cre-
ate contractual relationships between Clinica and Tenet hospitals,
(2) under the terms of the contracts, Tenet paid Clinica, and (3)
Clinica referred patients to Tenet hospitals.â But the district court
held that this showing was not good enough. To admit the offered
coconspirator statements, the district court believed that the gov-
ernment had to prove by a preponderance of the evidence that the
defendantsâ conduct was illegal to meet its burden under Rule
801(d).
Specifically, the district court concluded that the govern-
ment needed to show that the participants in this scheme willfully
violated the AKS. And the district court believed willfulness re-
quired knowledge of illegality. Because the district court found that
the government did not prove knowledge of illegality, and thus
willfulness, to its satisfaction at the paper hearing, the district court
reasoned that the government had not proven the existence of an
USCA11 Case: 22-14219 Document: 87-1 Date Filed: 09/25/2024 Page: 5 of 18
22-14219 Opinion of the Court 5
illegal AKS conspiracy. And without an illegal conspiracy, the dis-
trict court held that it could not admit coconspirator statements
under the coconspirator exclusion from the hearsay rule.
The government appealed the district courtâs decision. In
their briefing, all parties assumed implicitly that the government
had to prove the charged AKS conspiracy to admit the statements,
with the government insisting that it could prove the defendantsâ
guilt and the defendants maintaining that it could not. But in a let-
ter to the parties, we raised a question left unaddressed by them:
Does a conspiracy need to be unlawful to introduce coconspirator
statements under the Federal Rules of Evidence? In other words,
was the district court wrong to conclude that the government
needed to prove, before trial, all the elements of an illegal AKS con-
spiracy to have the coconspirator statements admitted? The parties
addressed this question at oral argument and in letters to the court
under Federal Rule of Appellate Procedure 28(j). We answer it
now.
II.
Under 18 U.S.C. § 3731, the United States can appeal a dis-
trict courtâs decision to exclude evidence in a criminal proceeding.
Here, the government appeals after the district court excluded
statements from the defendantsâ alleged coconspirators. We re-
view a district courtâs evidentiary rulings, including those concern-
ing the admissibility of coconspirator statements, for an abuse of
discretion. United States v. Magluta, 418 F.3d 1166, 1177 (11th Cir.
2005). But a district court abuses its discretion âper seâ when it bases
USCA11 Case: 22-14219 Document: 87-1 Date Filed: 09/25/2024 Page: 6 of 18
6 Opinion of the Court 22-14219
âan evidentiary ruling on an erroneous view of the law.â Bearint ex
rel. Bearint v. Dorell Juv. Grp., Inc., 389 F.3d 1339, 1345 (11th Cir.
2004) (citing Conroy v. Abraham Chevrolet-Tampa, Inc., 375 F.3d 1228,
1232 (11th Cir. 2004)). In essence, â[a] district courtâs interpretation
of the Federal Rules of Evidence receives de novo review.â United
States v. Ahmed, 73 F.4th 1363, 1380 (11th Cir. 2023) (citing Doe No. 1
v. United States, 749 F.3d 999, 1003 (11th Cir. 2014)).
III.
This appeal turns on the hearsay rule. â[A] statement, other
than one made by a declarant while testifying at trial, offered in
evidence to prove the truth of the matter assertedâ is hearsay.
United States v. Rivera, 780 F.3d 1084, 1092 (11th Cir. 2015) (citing
Fed. R. Evid. 801(c)). Generally, hearsay is not admissible. Fed. R.
Evid. 802. Excluded from the definition of hearsay, though, are out-
of-court statements offered against an opposing party that the op-
posing party made. See Fed. R. Evid. 801(d)(2). That hearsay exclu-
sion also covers statements made by an opposing partyâs surrogate,
including: (A) statements âmade by the party in an individual or
representative capacity,â (B) statements âthe party manifested that
it adopted or believed to be true,â (C) statements made by some-
one âwhom the party authorized to make a statement on the sub-
ject,â (D) statements âmade by the partyâs agent or employee on a
matter within the scope of that relationship and while it existed,â
and (E) statements âmade by the partyâs coconspirator during and
in furtherance of the conspiracy.â Id.
USCA11 Case: 22-14219 Document: 87-1 Date Filed: 09/25/2024 Page: 7 of 18
22-14219 Opinion of the Court 7
The last of theseâthe coconspirator exclusionâis at issue
here. To understand the scope of this exception, we look to the
plain language of Rule 801(d)(2)(E). See Travelers Prop. Co. of Am. v.
Ocean Reef Charters LLC, 71 F.4th 894, 907 n.9 (11th Cir. 2023). The
word âconspiracyâ as used in the rule can refer to either (1) an
agreement to do something unlawful or (2) the act of working to-
gether toward a shared goal (i.e., a joint venture). See, e.g., Conspire,
Websterâs New World Dictionary (2d ed. 1972) (â1. To plan and act
together secretly, esp. in order to commit a crime 2. To combine or
work together for any purpose or eïŹectâ). The defendants argue
that the ïŹrst deïŹnition applies, and the government argues that the
second governs. We agree with the government. The Supreme
Courtâs precedent and our own both suggest that the word âcon-
spiracyâ in Rule 801(d)(2)(E) means an arrangement to work to-
gether toward a shared goal. That deïŹnition is also supported by
our sister circuits, leading treatises, and the text of the rule.
A.
We will begin with the relevant precedents of this Court and
others. We first identify precedents that instruct that the cocon-
spirator exclusion does not depend on the lawfulness of the con-
spiracy at issue. We will then turn to the authorities cited by the
defendants.
1.
Before the Federal Rules of Evidence were even adopted,
the Supreme Court held that the common-law coconspirator
USCA11 Case: 22-14219 Document: 87-1 Date Filed: 09/25/2024 Page: 8 of 18
8 Opinion of the Court 22-14219
exclusion from the common-law hearsay rule did not require proof
of unlawfulness. Over a century ago, a coal company sued officers
of a union for working with its employees to unionize its mine in
restraint of trade. Hitchman Coal & Coke Co. v. Mitchell, 202 F. 512,
533â46 (N.D. W. Va. 1912), revâd, 214 F. 685 (4th Cir. 1914), revâd,
245 U.S. 229 (1917). The district court, relying on statements from
the officersâ coconspirators, found for the coal company. Id. at 555â
57. The Fourth Circuit reversed, in part because the company did
not establish that those who made the statements had entered the
conspiracy for an unlawful purpose. Mitchell v. Hitchman Coal &
Coke Co., 214 F. 685, 708 (4th Cir. 1914).
The Supreme Court reversed the Fourth Circuit, directly ad-
dressing an objection that the district court relied on inadmissible
evidence in finding for the coal company. Hitchman Coal & Coke Co.
v. Mitchell, 245 U.S. 229, 249 (1917). The Supreme Court explained
that, for coconspirator statements to become admissible, âit is not
necessary to show by independent evidence that the [conspiracy]
was criminal or otherwise unlawful.â Id. Why? The Supreme Court
explained that the coconspirator exclusion is rooted in agency law
and can apply to lawful ventures:
The rule of evidence is commonly applied in criminal
cases, but is of general operation; indeed, it origi-
nated in the law of partnership. It depends upon the
principle that when any number of persons associate
themselves together in the prosecution of a common
plan or enterprise, lawful or unlawful, from the very
act of association there arises a kind of partnership,
USCA11 Case: 22-14219 Document: 87-1 Date Filed: 09/25/2024 Page: 9 of 18
22-14219 Opinion of the Court 9
each member being constituted the agent of all, so
that the act or declaration of one, in furtherance of
the common object, is the act of all, and is admissible
as primary and original evidence against them.
Id. (emphasis added).
Although we are not bound by Hitchman Coalâs analysis of
the common law rule in interpreting the modern Rules of Evi-
dence, there is also no indication that the codiïŹcation of
Rule 801(d)(2) disturbed it. When the Federal Rules of Evidence
were enacted in the 1970s, âthe co-conspirator exception to the
hearsay rule [wa]s steeped in our jurisprudence.â Bourjaily v. United
States, 483 U.S. 171, 183 (1987). Courts often find common law de-
cisions helpful in interpreting the modern Rules of Evidence. See,
e.g., Tome v. United States, 513 U.S. 150, 160 (1995). And the legisla-
tors who enacted the Federal Rules wrote that, even though Rule
801(d)(2) ârefers to a coconspirator, it is this committeeâs under-
standing that the rule is meant to carry forward the universally ac-
cepted doctrine that a joint venturer is considered as a coconspira-
tor for the purposes of this rule even though no conspiracy has
been charged.â S. Rep. No. 93-1277, 93d Cong., 2d Sess. 24 (1974)
as reprinted in 1974 U.S.C.C.A.N. 7051, 7073.
In any event, shortly after the Rules were enacted, our pre-
decessor court held that the admissibility of evidence under Rule
801(d)(2) does not turn on proof of an unlawful conspiracy. In
United States v. Postal, 589 F.2d 862 (5th Cir. 1979), the United States
caught three men aboard a sailboat several miles south of the
USCA11 Case: 22-14219 Document: 87-1 Date Filed: 09/25/2024 Page: 10 of 18
10 Opinion of the Court 22-14219
Florida Keys and charged them with conspiracy to possess mariju-
ana with intent to distribute. Id. at 865â68. The district court con-
ducted a bench trial and found the defendants guilty, relying in part
on the sailboatâs logbook to understand the boatâs movements. Id.
at 865, 886. As one of several arguments to reverse, the defendants
objected to the admission of the logbook on the grounds that it was
hearsay. Id. at 886 n.41. Our predecessor court rejected that argu-
ment under Federal Rule of Evidence 801(d). It held that, for pur-
poses of the coconspirator exclusion, âthe agreement need not be
criminal in nature.â Id. Instead, because âthe voyage was a âjoint
ventureâ in and of itself apart from the illegality of its purpose[,] . . .
the logbook was therefore admissible as nonhearsay under the
rule.â Id.
We note that at least eight of our sister circuits agree with
the Postal courtâs reading of the coconspirator exclusion.2 This list
2 See United States v. Russo, 302 F.3d 37, 45 (2d Cir. 2002) (stating that â[t]he
objective . . . need not be criminal at allâ); In re Japanese Elec. Prod. Antitrust
Litig., 723 F.2d 238, 262 (3d Cir. 1983) (explaining that it would be an error to
require âa showing not only that there was a combination between the de-
fendants, but also that the combination was unlawfulâ), revâd on other grounds
sub nom. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986);
United States v. El-Mezain, 664 F.3d 467, 502 (5th Cir. 2011) (holding that âa
statement may be admissible under Rule 801(d)(2)(E) if it is made in further-
ance of a lawful joint undertakingâ), as revised (Dec. 27, 2011); United States v.
Musaibli, 42 F.4th 603, 615 (6th Cir. 2022) (explaining that â[w]hen determining
whether a conspiracy existed under Rule 801(d)(2)(E), the key is coordinated
actionâ (cleaned up)); United States v. Kendall, 665 F.2d 126, 130 (7th Cir. 1981)
(explaining that ââconspiracyâ as an evidentiary concept . . . and âconspiracyâ as
a concept of substantive criminal law are not coterminousâ and referring to
USCA11 Case: 22-14219 Document: 87-1 Date Filed: 09/25/2024 Page: 11 of 18
22-14219 Opinion of the Court 11
includes the Fifth Circuit, which also agrees that our shared prece-
dent in Postal resolved this issue. See United States v. El-Mezain,
664 F.3d 467, 502 (5th Cir. 2011), as revised (Dec. 27, 2011). Leading
treatises agree with this position too. See 30B Charles Alan Wright
& Arthur R. Miller, Federal Practice and Procedure § 6778 (2023 ed.)
(âRule 801(d)(2)(E) uses the familiar term âconspiracy,â but it . . .
addresses teamwork more generally.â); 4 Christopher B. Mueller &
Laird C. Kirkpatrick, Federal Evidence § 8:59 (4th ed. 2013) (Aug.
2023 Update) (âThe [exclusion] can apply even if the proponent
does not show that the venture is unlawful, and the absence of an
element that may be important from a substantive perspective
does not block use of the [exclusion].â (citations omitted)).
2.
For their part, the defendants argue that the coconspirator
exclusion requires that a conspiracy be unlawful. That proposition,
the defendants say, is supported by several authorities. We disa-
gree. None of the authorities they offer purport to overrule or limit
the former as âa âjoint ventureâ exception . . . or a âconcert of actionâ excep-
tionâ (citations omitted)); United States v. Layton, 855 F.2d 1388, 1399 (9th Cir.
1988) (noting that âthe goal or objective of the common enterprise would ap-
pear to be irrelevantâ), overruled on other grounds by United States v. George, 960
F.2d 97 (9th Cir. 1992), as recognized by Guam v. Ignacio, 10 F.3d 608 (9th Cir.
1993); United States v. Kaatz, 705 F.2d 1237, 1244 (10th Cir. 1983) (holding that
a district court did not err in admitting coconspirator statements because it
âcorrectlyâ determined that âthe defendants were engaged in a joint ventureâ);
United States v. Weisz, 718 F.2d 413, 433 (D.C. Cir. 1983) (holding that âRule
801(d)(2)(E) . . . is not intended to limit applicability of the doctrine to unlaw-
ful combinationsâ).
USCA11 Case: 22-14219 Document: 87-1 Date Filed: 09/25/2024 Page: 12 of 18
12 Opinion of the Court 22-14219
the precedents discussed above. None of them adopt the defend-
antsâ reading of the hearsay rule. Indeed, they donât even address
the issue at all.
The defendantsâ first group of cases are about the eviden-
tiary standards that apply to proving a conspiracy under
Rule 801(d)(2)(E); but they do not suggest, much less hold, that
Hitchman Coal and Postal are bad law. See Bourjaily, 483 U.S. at 175;
United States v. Tombrello, 666 F.2d 485, 490 (11th Cir. 1982); United
States v. Grassi, 616 F.2d 1295, 1301 (5th Cir. 1980); United States v.
Perry, 624 F.2d 29, 31 (5th Cir. 1980). In Bourjaily, the Supreme
Court held that there must be evidence of a conspiracy before a
court can admit coconspirator statements. 483 U.S. at 175. But it
did not hold that, before admitting those statements, a court must
find that the conspiracy was unlawful. Indeed, it recognized that
âthe evidentiary standard is unrelated to the burden of proof on the
substantive issues.â Id. Similarly, in Tombrello, we held that a court
cannot admit statements made by a coconspirator before or after
the relevant conspiracy. 666 F.2d at 490. But we never said that the
conspiracy must be unlawful. True, in justifying the coconspirator
exclusion, we said that conspirators are âpartners in crime.â Id. But
we used that phrase in its idiomatic sense, referring to individuals
working closely together, and further justified the coconspirator
exclusion by likening it to an agency relationship. See id. Likewise,
in both Grassi and Perry, our predecessor court held that mere pres-
ence or association does not count as participation in a conspiracy
for the coconspirator exclusion. Grassi, 616 F.2d at 1300â01; Perry,
624 F.2d at 31. Yet in neither case did our predecessor court hold
USCA11 Case: 22-14219 Document: 87-1 Date Filed: 09/25/2024 Page: 13 of 18
22-14219 Opinion of the Court 13
that the exclusion requires the relevant conspiracy under Rule
801(d)(2)(E) to be unlawful.
In the second group of cases, we affirmed district courts for
admitting coconspirator statements. See United States v. Hough,
803 F.3d 1181, 1193 (11th Cir. 2015); United States v. Hartley,
678 F.2d 961, 972 (11th Cir. 1982), abrogated by United States v.
Goldin Indus., Inc., 219 F.3d 1268 (11th Cir. 2000). We noted that
the district court had found facts supporting the existence of a crim-
inal conspiracy. Hough, 803 F.3d at 1193; Hartley, 678 F.2d at 972.
But our reasoning does not suggest that the district court couldnât
have admitted the statements if only a joint venture had been
proven. To draw that conclusion would be âto commit the fallacy
of the inverse (otherwise known as denying the antecedent): the
incorrect assumption that if P implies Q, then not-P implies not-
Q.â N.L.R.B. v. Noel Canning, 573 U.S. 513, 589 (2014) (Scalia, J., con-
curring in the judgment). Sometimes, the very nature of a Rule 801
conspiracy will make the fact of that conspiracy unlawfulâan
agreement to commit murder, for example. But it need not always
be so, as in Postal when the defendants jointly sailed a boat.
Alongside the above precedents, the defendants offer a con-
stitutional argument. They say that our view of the coconspirator
exclusion undermines the right of criminal defendants to confront
the witnesses against them as guaranteed by the Sixth Amend-
mentâs Confrontation Clause. But âthe Confrontation Clauseâ is
concerned with âthe testimonial statements of a witness.â United
States v. Caraballo, 595 F.3d 1214, 1227 (11th Cir. 2010). And
USCA11 Case: 22-14219 Document: 87-1 Date Filed: 09/25/2024 Page: 14 of 18
14 Opinion of the Court 22-14219
âstatements in furtherance of a conspiracyâ are âby their nature []
not testimonial.â Crawford v. Washington, 541 U.S. 36, 56 (2004).
B.
We believe the weight of authority from our court and oth-
ers resolves this issue. But we will briefly explain why the surround-
ing text of the rule does not require a district court to inquire into
whether the statements were made during illegal activity.
Rule 801(d)(2), which contains the coconspirator exclusion,
has nothing to do with illegality. It excludes opposing party state-
ments from the hearsay rule. See Fed. R. Evid. 801(d)(2) (carrying
the heading âAn Opposing Partyâs Statementâ). In addition to state-
ments that were literally made by oneâs opposing party, the rule
also excludes statements that are attributable to an opposing party
based on agency principles. See, e.g., Hitchman Coal, 245 U.S. at 249.
For example, the statements of an opposing partyâs agents and em-
ployees are treated the same way as the statements of that oppos-
ing party and thus are also not hearsay. Fed. R. Evid. 801(d)(2)(C)â
(D). Similarly, the rule excludes from the definition of hearsay third
party statements that are adopted or ratified by the opposing party.
Fed. R. Evid. 801(d)(2)(B). None of those other exclusions require
a district court to assess whether an out-of-court statement was
made for an illicit purpose.
And there is no basis in the text to read such a requirement
into only the coconspirator exclusion. The exclusion exists in both
civil and criminal proceedings, just like the other hearsay exclu-
sions about opposing party admissions. See Fed. R. Evid. 1101(b).
USCA11 Case: 22-14219 Document: 87-1 Date Filed: 09/25/2024 Page: 15 of 18
22-14219 Opinion of the Court 15
And when the Rules of Evidence apply differently to allegations of
criminal activity, they expressly say so. See, e.g., Fed. R. Evid.
404(a)(2). Instead, it is much more reasonable to think that the co-
conspirator hearsay exclusion operates similarly to its sister exclu-
sions concerning opposing party admissions: they all treat state-
ments by some third party acting on behalf of the opposing party
as analogous to admissions by the opposing party. See Wright &
Miller, supra, § 6778 (âSupport [for the joint venture reading of the
coconspirator exclusion] comes from the other iterations of Rule
801(d)(2) that reach out to admit statements of non-party declar-
ants engaged in benign arrangements with the party.â).
The defendants say that our decision in United States v. James,
established a new type of preliminary proceeding to assess whether
the opposing party and the out-of-court declarant committed a
crime together. But they are misreading James. In James, we held
that a district court should assess the admissibility of out-of-court
statements before admitting them. Specifically, âwe h[e]ld that
Rule 104(a) requires that the judge alone make the determination
of the admissibility of the evidenceâ because â[t]he jury is to play
no role in determining the admissibly of the statements.â James, 590
F.2d at 579â80. But nothing in James contemplates a pretrial hearing
to assess whether an out-of-court declarant or a party is guilty of a
crime.
C.
As a last-ditch effort, the defendants argue that the govern-
ment forfeited the argument that the district court incorrectly
USCA11 Case: 22-14219 Document: 87-1 Date Filed: 09/25/2024 Page: 16 of 18
16 Opinion of the Court 22-14219
applied Rule 801(d)(2)(E). They argue that the government ac-
cepted that it had to prove the defendantsâ guilt to admit the state-
ments by arguing that it could. And, the argument goes, it would
be âunfairâ to â[a]llow[] the government to whipsaw a defendantâ
by admitting evidence based on a previously forfeited argument.
United States v. Ross, 963 F.3d 1056, 1066 (11th Cir. 2020) (en banc).
So the defendants argue that we should affirm despite the district
courtâs error. We disagree.
For starters, the government raised this issue in the district
court. There, the government expressly disputed the idea that it
must prove the elements of a criminal conspiracy to admit this ev-
idence. It told the district court that the Rules of Evidence do not
countenance the âwholesale exclusion of all co-conspirator state-
ments on the ground that no crime occurred.â It also argued that
James does not allow a district court âto weigh the pretrial evidence
and rule that no crime occurredâ or require a âpretrial determina-
tion of the sufficiency of the evidenceâ on the conspiracy count in
the indictment.
Although the government appealed the district courtâs deci-
sion to exclude this evidence, it did not raise these specific argu-
ments about the meaning of Rule 802 until we prompted it. But no
partyânot even the governmentâcan stipulate to the law that
governs its case through its litigation conduct. We have held that
âparties cannot waive [or forfeit] the application of the correct law
or stipulate to an incorrect legal test.â United States v. Dawson, 64
F.4th 1227, 1239 (11th Cir. 2023) (cleaned up). Thatâs why we have
USCA11 Case: 22-14219 Document: 87-1 Date Filed: 09/25/2024 Page: 17 of 18
22-14219 Opinion of the Court 17
explained that a party cannot âwaive or forfeit the existence of a
precedent or the words of a statute.â ECB USA, Inc. v. Chubb Ins. Co.
of New Jersey, No. 22-10811, __F.4th__, slip op. at 6 (11th Cir. Aug.
29, 2024). Instead, â[w]hen an issue or claim is properly beforeâ us,
we âretain[] the independent power to identify and apply the
proper construction of governing lawâ and are ânot limited to the
particular legal theories advanced by the parties.â Kamen v. Kemper
Fin. Servs., Inc., 500 U.S. 90, 99 (1991); see also United States v. Unde-
termined Quantities of All Articles of Finished and In-Process Foods, 936
F.3d 1341, 1350 (11th Cir. 2019).
The government argued below and on appeal that its evi-
dence is admissible under Rule 801(d)(2)(E). We cannot adjudicate
the governmentâs argument without addressing what a proponent
of evidence must establish to admit evidence under Rule
801(d)(2)(E). And we cannot apply an erroneous interpretation of
that rule even if the parties didnât identify the correct one.
***
For these reasons, the defendants are wrong that the district
court should be affirmed. Instead, it must be reversed. It commit-
ted an abuse of discretion by misapplying the standard for admissi-
bility under Rule 801(d)(2)(E). The relevant question the district
court should have asked is whether the out-of-court statements are
offered against an opposing party and were made during and in fur-
therance of a joint venture with that party. On remand, the district
court should apply that standard to the statements at issue to de-
termine their admissibility under Rule 801(d)(2)(E).
USCA11 Case: 22-14219 Document: 87-1 Date Filed: 09/25/2024 Page: 18 of 18
18 Opinion of the Court 22-14219
IV.
The district court is REVERSED. The matter is
REMANDED for further proceedings consistent with this opinion.
Case Information
- Court
- 11th Cir.
- Decision Date
- September 25, 2024
- Status
- Precedential