## Facts

- An FBI informant arranged to sell one kilogram of cocaine to Angelo Lonardo.
- In recorded telephone calls, Lonardo told the informant he had a “gentleman friend” involved in the deal and later connected the informant with that friend to discuss price and quality.
- Lonardo and the informant agreed to complete the sale in a parking lot where Lonardo would move the cocaine from the informant’s car to the friend’s vehicle.
- At the meeting, Lonardo transferred the cocaine into the friend’s vehicle, and the FBI arrested Lonardo and William John Bourjaily at the scene.
- In a federal drug prosecution, the government offered Lonardo’s recorded statements against Bourjaily as coconspirator statements.
- Bourjaily objected that the statements were inadmissible hearsay and that admitting them without Lonardo’s testimony violated the Sixth Amendment right to confrontation.
- The district court found by a preponderance of the evidence that a conspiracy including Lonardo and Bourjaily existed and that the statements were made during and in furtherance of that conspiracy, admitted the recordings, and Bourjaily was convicted.
- The Sixth Circuit affirmed, and the Supreme Court granted review.

## Issues

1. Whether the court must find the existence of the conspiracy and the defendant’s and declarant’s participation using evidence independent of the challenged coconspirator statements under Federal Rule of Evidence 801(d)(2)(E).
2. What standard of proof governs the preliminary facts for admissibility under Rule 801(d)(2)(E).
3. Whether the Confrontation Clause requires a separate, case-specific reliability assessment for coconspirator statements admitted under Rule 801(d)(2)(E) when the declarant does not testify.

## Decision

- The Supreme Court affirmed in a 6–3 decision authored by Chief Justice Rehnquist.
- The government must prove the preliminary facts for Rule 801(d)(2)(E) admissibility by a preponderance of the evidence.
- In determining those preliminary facts under Rule 104(a), the trial court may consider the coconspirator statement itself along with other evidence.
- Admission of statements satisfying Rule 801(d)(2)(E) does not violate the Confrontation Clause without an additional reliability inquiry because the coconspirator exception is firmly rooted.
- On the record, the Court held the findings of a conspiracy and that the statements were made during and in furtherance of it were supported by a preponderance of the evidence, so the statements were properly admitted.

## Legal Principles

- Preliminary admissibility determinations under Federal Rule of Evidence 104(a), including the foundational requirements for Rule 801(d)(2)(E), are governed by a preponderance-of-the-evidence standard.
- When deciding whether Rule 801(d)(2)(E) is satisfied, the court may consider the offered coconspirator statement itself as part of the Rule 104(a) analysis.
- A statement qualifies under Rule 801(d)(2)(E) only if made during the course and in furtherance of a conspiracy involving the declarant and the party against whom it is offered.
- For Confrontation Clause purposes, no separate reliability screening is required for evidence admitted within a firmly rooted hearsay exception, including coconspirator statements admitted under Rule 801(d)(2)(E).

## Conclusion

The Court held that coconspirator statements are admissible upon a judicial finding by a preponderance of the evidence that a conspiracy existed and included the declarant and the defendant, that the statements were made during and in furtherance of the conspiracy, that the court may consider the statements themselves in making this finding, and that admission under this rule satisfies the Confrontation Clause without an additional reliability determination.


Bourjaily v. United States, 483 U.S. 171 (1987)