## Facts

- A federal grand jury indicted Frank Breitkreutz for conspiring to distribute methamphetamine; the indictment also named his wife, Janet Breitkreutz, and five men as coconspirators.
- At trial, two of the indicted men testified that Frank Breitkreutz supplied them with roughly 40 pounds of methamphetamine.
- Law enforcement searched two houses connected to the Breitkreutzes and seized physical evidence consistent with methamphetamine manufacture and distribution, including cash, firearms, large quantities of chemicals used to produce methamphetamine, laboratory glassware, and a book describing how to make methamphetamine.
- Officers also seized several pages of handwritten notes. One page, admitted as Exhibit M-21, was found in Janet Breitkreutz’s purse.
- Exhibit M-21 listed chemicals and items of equipment commonly used to produce methamphetamine, along with names and number notations (for example, “Dave(2) 8, 9”).
- The government argued that Exhibit M-21 (together with other seized pages) functioned as a drug ledger tracking sales, receipts, and calculations related to methamphetamine production.
- Over the defense objection that the document’s author was unknown, the district court admitted Exhibit M-21 under Federal Rule of Evidence 801(d)(2)(E) as a coconspirator statement.
- The jury convicted Frank Breitkreutz of conspiracy to distribute methamphetamine, and he appealed.

## Issues

1. Whether the district court erred by admitting Exhibit M-21 under Federal Rule of Evidence 801(d)(2)(E) when the government could not identify who wrote the handwritten statements.

## Decision

- The Sixth Circuit affirmed the conviction.
- The court held that Exhibit M-21 was properly admitted under Rule 801(d)(2)(E) even though the specific author was not identified, because the government presented enough evidence for the district court to find the Rule 801(d)(2)(E) prerequisites by a preponderance of the evidence.

## Legal Principles

- A statement is admissible under Federal Rule of Evidence 801(d)(2)(E) if the proponent shows, by a preponderance of the evidence: (1) a conspiracy existed, (2) the defendant was a member of the conspiracy, and (3) the statement was made during the course of and in furtherance of the conspiracy.
- The trial judge decides the preliminary admissibility facts for Rule 801(d)(2)(E) under Federal Rule of Evidence 104(a) using a preponderance-of-the-evidence standard.
- For Rule 801(d)(2)(E), the government does not have to prove the declarant’s identity by name if the evidence permits the finding that the statement was made by a member of the conspiracy during and in furtherance of it.
- Circumstantial evidence—such as where a document was found, what it contains, and how it fits with other proof of the conspiracy—may support admitting an alleged “ledger” or record as a coconspirator statement.

## Conclusion

United States v. Breitkreutz affirmed Frank Breitkreutz’s methamphetamine conspiracy conviction and approved the admission of a handwritten page seized from a coconspirator’s purse as a coconspirator statement under Rule 801(d)(2)(E), holding that the government need not identify the author so long as the district court can find by a preponderance of the evidence that a conspiracy existed, the defendant participated, and the statement was made during and in furtherance of the conspiracy.


United States v. Breitkreutz, 977 F.2d 214 (1992)