                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-7-2007

USA v. Weaver
Precedential or Non-Precedential: Precedential

Docket No. 04-3888




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                                          PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT

                       No: 04-3888

            UNITED STATES OF AMERICA,
                     Appellant

                            v.

                  DELORES WEAVER


         Appeal from United State District Court
          for the Eastern District of Pennsylvania
                  (D.C. No. 04-cr-00320-1)
         District Judge: Honorable John P. Fullam

                 Argued: January 16, 2007

Before: McKEE, AMBRO, and STAPLETON, Circuit Judges

                (Filed: November 7, 2007)


Patrick L. Meehan
Anthony J. Wzorek, Argued
United States Attorney Office
615 Chestnut Street, Suite 1250
Philadelphia, Pennsylvania 19106
Attorney for Appellant



                             1
Thomas A. Bergstrom, Argued
138 Davis Road
Malvern, Pa. 19355
Attorney for Appellee

                            OPINION

McKEE, Circuit Judge

       The government appeals the district court’s grant of

Delores Weaver’s motion in limine. The order precluded the

government from introducing a recorded telephone conversation

in its case-in-chief. For the following reasons, we will vacate

the order and remand.1

      I. Factual Background and Procedural History 2




       1
        The district court had subject matter jurisdiction
pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to
28 U.S.C. § 3731. Our review of the district court’s
interpretation of the Rules of Evidence is plenary. We review
the court’s findings of fact for clear error. United States v. Cruz,
910 F.2d 1072, 1081 (3d Cir. 1990).
       2
        A detailed overview of the underlying conspiracy is
described in detail in Judge Ambro’s related opinion in United
States v. Ali, No. 05-2098. [cite will be added]. Accordingly,
rather than again detailing that background here, we will refer
only to those facts that pertain to issues Weaver is raising.


                                 2
       The government’s allegations include averments that

Faridah Ali, the assistant director of the Sister Clara Mohammed

School (the “School”), and Delores Weaver, the director of the

Adult Basic Education (“ABE”) program at the Community

College of Philadelphia (“CCP”), devised a scheme to defraud

CCP out of rental payments to the School by representing that

they were providing ABE classes that were never taught and

then splitting payments CCP sent to compensate the School for

those nonexistent classes.         To help establish Weaver’s

involvement in the scheme, the government wanted to introduce

a conversation between Faridah Ali and her sister, Zaynah

Rasool, that occurred on September 4, 2001 (the “September 4

conversation”).

       During the September 4 conversation, Ali and Rasool

discussed various administrative matters at the School,

commented on some of the School’s faculty, and talked about

the School’s arrangement with CCP.         Ali also made the

following comments about Sayeeda Quaye, a teacher at the


                               3
School: “[S]he got paid for all summer from [CCP].” This statement

prompted Rasool to respond: “[S]he ain’t did nothing.”               Ali

continued: “[A]lways people gonna be backbiting us as much as we

do for them.”

        The conversation then turned to Weaver. Ali complained as

follows that Weaver had not put her on CCP’s payroll: “Delores is .

. . just like you said, she does not want me . . . to have more than her.

And now that I bought this big car, I’m gonna have to pay for it.”

The discussion continued:

Ali:            [Weaver]’s being a B and I’m so sick of her. I’ll be so
                glad when I won’t need her no more. Gonna be
                asking for half of what the school get. You know
                what I’m saying?
Rasool:         Yeah. It’s . . . petty and rotten and illegal.
Ali:            Yeah.
Rasool:         Cause she’s already gettin’ other stuff. Uh, so I mean
                come on now it ain’t no sense in just going overboard.
Ali:            Right. But I just don’t want to do anything right now
                with Sayeeda and them and jeopardize what we got
                with the college, you know. Cause you know they be
                the one’s to be calling and saying they ain’t nobody
                here at this time go check the, you know what, I know
                they’d do that.

App. 134-37.

        Weaver filed a motion to exclude the entire September 4

conversation from trial on the grounds that she was not a party


                                   4
to it and Rasool was not a member of the conspiracy. The court

granted the motion without holding a hearing based on the

strength of the briefs and its review of a transcript of the

September 4 conversation. The court did not accept either of the

grounds for exclusion asserted by Weaver.

       Rather, the court reasoned that the September 4

conversation was inadmissible because the statements made

therein “cannot be regarded as having been made in furtherance

of the alleged conspiracy . . . .” 3 App. 2. The court also

concluded that it was difficult to extrapolate any “statement of

fact” from the conversation because “the statements seem to

constitute derogatory opinions having no conceivable value.”

Id. at 2-3. Accordingly, the court ruled that the statements were

not admissible under Federal Rule of Evidence 801(d)(2)(E).

The court then granted the government’s motion to stay



       3
        Rule 801(d)(2)(E) provides: “A statement is not hearsay
if— . . . the statement is offered against a party and is . . . a
statement by a coconspirator of a party during the course and in
furtherance of the conspiracy.” Fed. R. Evid. 801(d)(2)(E).

                               5
Weaver’s trial pending appeal. This appeal followed.

                         II. Discussion

    A. Rule 801(d)(2)(E)’s “in furtherance” Requirement

       The government argues that the district court erred in

ruling that the September 4 conversation was inadmissible

hearsay.     The government contends that the statements are

excepted by the hearsay rule under Rule 801(d)(2)(E).4 In order

for an out-of-court statement to meet the co-conspirator

exception:

       the district court must find by a preponderance of
       the evidence that: (1) a conspiracy existed; (2) the
       declarant and the party against whom the
       statement is offered were members of the
       conspiracy; (3) the statement was made in the
       course of the conspiracy; and (4) the statement
       was made in furtherance of the conspiracy.

United States v. Ellis, 156 F.3d 493, 496 (3d Cir. 1998); United

States v. Vega, 285 F.3d 256, 264 (3d Cir. 2002). Other than


       4
        “Technically, the federal rules exclude admissions from
the definition of hearsay rather than treating them as exceptions
to the rule against hearsay.” United States v. Gibbs, 739 F.2d
838, 843 n.10 (3d Cir. 1984) As in Gibbs, “[f]or simplicity, we
will refer to the ‘co-conspirator exception.’” Id.

                                6
finding that the September 4 conversation was not in furtherance

of the conspiracy, the district court failed to make any findings

in respect to the other foundational requirements of Rule

801(d)(2)(E).

       However, Weaver concedes that the district court

implicitly found “the existence of a conspiracy, that Ali and

Weaver were members of the conspiracy, and that the

[September 4 conversation took place] during the course of the

conspiracy,” Appellee’s Br. 8 n.5, and she does not contest

these implied findings.5    Rather, she argues only that the

September 4 conversation is inadmissible because it was not in

furtherance of the conspiracy and because the statements are

irrelevant, just as the district court concluded. We disagree.

       Our analysis is guided by several of our prior decisions

addressing this issue. In United States v. Ammar, 714 F.2d 238

(3d Cir. 1983), four members of a nine-person conspiracy,



       5
       We will therefore consider these issues waived, and will
not address them.

                               7
Ghassan Ammar, Judith Ammar, Marshall Stillman, and Roger

McFayden, were tried and convicted on several charges

stemming from their conspiracy to import and distribute heroin.

Two of the indicted co-conspirators, Charles Rossi and Michael

Dugan, pleaded guilty and testified for the government. The

two unindicted co-conspirators, John Welkie and Gilber Bunner,

also testified against the defendants at trial. The other three

indicted co-conspirators, Ibraham Ammar, Abedeen Ammar,

and Naim Dahabi, were fugitives when the trial began. Id. at

243. All of the conspirators who went to trial were convicted.

       On appeal, Judith and Stillman challenged the admission

of certain out-of-court statements made by their co-conspirators

on the grounds that the statements were not in furtherance of the

conspiracy because they merely “constituted narratives of past

events . . . .” Id. at 252. Specifically, Judith challenged the

admissibility of Ghassan’s statements to Welkie and Rossi that

when he and Judith returned from a trip to Beirut, Lebanon to

purchase heroin they were checked at customs, but their heroin


                               8
had not been discovered. Stillman challenged the admissibility

of Ibraham’s statements to Ghassan, Judith, and Welkie that

“Stillman owed them a lot of money for the last shipment of

heroin and would have to pay up before he could get another

package.” Id.

       We rejected the defendants’ argument that the foregoing

statements were not admissible under Rule 801(d0(2)(E)

because they were not made in furtherance of the conspiracy.

We explained:

       Statements between conspirators which provide
       reassurance, serve to maintain trust and
       cohesiveness among them, or inform each other
       of the current status of the conspiracy further the
       ends of the conspiracy and are admissible so long
       as the other requirements of Rule 801(d)(2)(E) are
       met. Such statements are more than ‘mere
       narratives’ of past events.

Id. at 252. (citations omitted).

       We distinguished the admissible out-of-court statements

at issue there from the inadmissible out-of-court statements at

issue in United States v. Provenzano, 620 F.2d 985 (3d Cir.

1980). We explained that the statements in Provenzano “had

                                   9
been made to non-members of the conspiracy who had no need

to know about the matters disclosed.” Ammar, 714 F.2d at 252.

Provenzano concerned the admissibility of out-of-court

statements of the defendants’ co-conspirator (and the

government’s chief witness), Ralph Picardo, about the

defendants’   involvement    in    a   labor-kickback   scheme.

Specifically, the defendants argued that statements Picardo had

made to his girlfriends, Paulette Compton and Mary Ann Hart,

and one of his employees, Alan Abromowitz, concerning (1) the

defendants’ roles in the scheme, (2) the legitimacy of a

corporation central to the scheme, (3) how two other

corporations central to the scheme were capitalized and

financed, (4) Picardo’s high regard for one of the defendants,

and (5) the fact that Picardo traveled to Florida on one of the

defendant’s orders, were inadmissible under Rule 801(d)(2)(E)

because those statements were not in furtherance of the

conspiracy.

       However, we concluded that Picardo’s statements to


                              10
Compton, who had been in charge of one of the businesses at

the center of the scheme while Picardo was in jail, were

admissible under Rule 801(d)(2)(E) because “[i]f [she] were to

run the business, she had to know the details, and therefore,

Picardo’s telling her the sordid details was in furtherance of the

conspiracy.” Id. at 1001. Picardo’s statements to Hart and

Abramowitz were not admissible under the co-conspirator

exception. “Only if there was a reason for [them] to know these

things about the conspiracy could the statements have been in

furtherance of the conspiracy.” Id. We further reasoned that the

statements made to Hart and Abramowitz were not in

furtherance of the conspiracy because they were “Picardo’s

errand runners. The district court made no findings, and the

Government has pointed to no evidence indicating anything

Picardo told them could have furthered the conspiracy.” Id.

       In United States v. Gibbs, 739 F.2d 838 (3d Cir. 1984),

we rejected the defendant’s contention that the trial court erred

in admitting out-of-court statements against him because the


                               11
statements “were mere narratives of past fact and not made to

induce conduct that would further the goals of the conspiracy .

. . .” Id. at 845. The statements at issue in Gibbs involved

conversations between Joseph Quintiliano, Charles Bilella, and

David White that implicated Stephen Gibbs (also known as

“Jake”) in a conspiracy to import and distribute marijuana.

White and Bilella both testified that Quintiliano told them that

he planned to sell the marijuana to a previous customer named

“Jake,” that “Jake” was getting impatient about receiving the

drugs, and that Quintiliano had invited “Jake” to visit him to

review plans to import the drugs.

       White also testified that he met Gibbs in Philadelphia the

day after Quintiliano told him about “Jake’s” visit. Gibbs had

introduced himself as “Jake,” and Gibbs matched the description

Quintiliano had given him of “Jake.” White further testified that

Quintiliano told him that “Jake” wanted to buy the marijuana

that was being imported, but needed time to raise the money.

Finally, White testified that Quintiliano asked him if he could


                               12
store the marijuana in his shop until “Jake” could raise the funds

to purchase the drugs. Id. at 841-42.

       In rejecting Gibbs’s contention that the foregoing

statements were not in furtherance of the conspiracy, we first

observed that “[t]he in furtherance requirement is usually given

a broad interpretation.” Id. at 845. We also acknowledged that

“statements made to those who are not involved in the

conspiracy are not in furtherance of it just as casual conversation

between co-conspirators that is not intended to induce continued

involvement, or other actions that would not advance the

conspiracy, are not in furtherance of a conspiracy.” Id. (citation

omitted). However, we reasoned that this did not apply in Gibbs

because “[a]s participants in the scheme, it was important for

White and Bilella to be kept abreast of developments to induce

their continued participation and allay any fear they might have

had.” Id. at 846. We also distinguished the statements that had

been at issue in Gibbs, from those in Provenzano. We reasoned

that, unlike in Provenzano—where “the statements were made


                                13
to persons not part of the conspiracy who had no reason to know

about the matters disclosed to them”—all of the statements in

Gibbs “were made to co-conspirators.” Id.

       Weaver attempts to distinguish Ammar and Gibbs by

stressing that they involve drug conspiracies, which “by their

nature and culture are different; many of the conversations are

coded or veiled in some way, making it difficult to ascertain the

purpose or intent of the statements.”      Appellee’s Br. at 8.

Although we agree that drug-conspiracy cases may differ from

the fraudulent financial scheme alleged as the object of this

conspiracy, the legal principles applicable to evidentiary

disputes are the same. Moreover, none of the statements that we

ruled admissible in Ammar and Gibbs were “coded or veiled.”

       In Ammar, the statement Judith challenged was made by

her husband to another member of the conspiracy recounting

how he and his wife outsmarted customs agents to smuggle

drugs into the country. The statement Stillman challenged was

made by one co-conspirator to other co-conspirators and


                               14
informed them that Stillman was delinquent on payments for

drugs he had received and that he was not to be sold any more

drugs until he cleared his debt. The statements were uncoded

and could be understood by someone with no expertise in the

drug trade.

       In Gibbs, Quintiliano’s statements to White identified

Gibbs as “Jake,” kept him current on “Jake’s” desire and ability

to purchase the marijuana, and arranged to store the marijuana

for sale. There is similarly nothing “coded or veiled” about

those conversations. .

       Ironically, Weaver directs our attention to another drug

case, United States v. Reyes, 798 F.2d 380 (10th Cir. 1986), in

arguing that “although there is no ‘talismanic formula’ for

determining the ‘in furtherance of’ requirement, the statement,

at a minimum[,] should advance the object of the conspiracy” to

be admissible under Rule 801(d)(2)(E).       Appellee’s Br. 8.

However, her reliance on Reyes is unavailing.         There, a

government informant, William Ayala, was permitted to testify


                              15
that Raul Reyes’s co-conspirator, Roberto Ramirez, told him

that Reyes was paying for, and distributing drugs. Reyes, 798

F.2d at 384.

       Reyes appealed his conviction for conspiring to possess

and distribute drugs, in part, on the ground that Ramirez’s

statement to Ayala did not satisfy Rule 801(d)(2)(E)’s “in

furtherance” requirement because the government had not

established that Ramirez’s statement “both intended to promote

the conspiracy and did in fact have the effect of promoting the

conspiracy.” Id. The court of appeals rejected that argument,

expressly noting that it “reject[ed] the defendant’s proposition

that the statements must actually further the conspiracy to be

admissible.” 798 F.2d at 384 (emphasis in original). The court

reasoned that “Rule 801(d)(2)(E) . . . says statements need be ‘in

furtherance of the conspiracy,’ not that they ‘further the

conspiracy.’ It is enough that they be intended to promote the

conspiratorial objectives.” Id. (emphasis added). The court

ultimately concluded that Ramirez’s statement to Ayala was in


                               16
furtherance of the drug conspiracy “[s]ince Ramirez’ statements

explained events important to the conspiracy to one of its

members in order to facilitate the conspiracy . . . .” Id.

       We understand Weaver to be arguing that Ali’s

statements did not actually facilitate the conspiracy, and

therefore should not be admitted under Reyes. As an initial

matter, we note that we are not bound by Reyes. Moreover,

insofar as Reyes holds that “it is enough” for purposes of Rule

801(d)(2)(E)’s “in furtherance” requirement that statements “be

intended to promote the conspiratorial objectives,” we agree.

However, as Ammar makes clear, the “in furtherance”

requirement of Rule 801(d)(2)(E) can be satisfied when the

declarant merely informs a co-conspirator of the status of the

conspiracy.

 B. Statements Informing about the Status of the Conspiracy

       During an important part of the September 4

conversation, Ali told Rasool: “[Weaver’s] being a B and I’m so

sick of her. I’ll be so glad when I won’t need her no more.


                               17
Gonna be asking for half of what the school get. You know what

I’m saying?” We believe the district court’s analysis of the

September 4 conversation, and the court’s conclusion that it was

inadmissible hearsay that was little more than idle gossip

comprised of “derogatory opinions having no conceivable

probative value,” was unduly influenced by the fact that Ali

referred to Weaver as a “B.” App. 2-3. However, there is

clearly more to the conversation.

       If Ali had only stated that “[Weaver’s] being a B and I’m

so sick of her,” we would agree with the district court. But Ali

went on to say: “I’ll be so glad when I won’t need her no more.”

This statement informs Rasool that Ali was dependent on

Weaver for the success of the fraudulent scheme, and Ali is

lamenting that dependence. Ali also said about Weaver: “Gonna

be asking for half of what the school get.” This statement

informs Rasool that Weaver is requesting a 50% “kickback”

from the rent payments CCP allegedly made to the School.

       Since Weaver was the director of the ABE program at


                              18
CCP, it makes sense that Ali would have been dependent on her

to make sure that CCP did not discover that the School was a

sham site and that CCP continued to make rental payments to

the School. Ali was therefore informing Rasool of the “current

status of the conspiracy” when she expressed dissatisfaction

with her dependence on Weaver and explained Weaver’s request

for half of the School’s payments.

       A declarant’s statement explaining the current status of

the conspiracy is “in furtherance” of that conspiracy only if the

addressee is also a co-conspirator. See Ammar, 714 F.2d at 252

(“Statements between conspirators which . . . inform each other

of the current status of the conspiracy further the ends of the

conspiracy . . . .”) (emphasis added); see also Gibbs, 739 F.2d

at 846 (“As participants in the scheme, it was important for [the

addressees] to be kept abreast of developments to induce their

continued participation [in the conspiracy].”) (emphasis added).

The government argues that Rasool was a co-conspirator. As

noted earlier, the district court failed to conduct an evidentiary


                               19
hearing on Weaver’s motion in limine. However, we think it

clear that, if the government can prove Rasool’s involvement in

the conspiracy by a preponderance of the evidence, the portion

of the September 4 conversation where Ali apprised Rasool of

the status of the conspiracy would be admissible because it

would then be “in furtherance” of the charged conspiracy.

          C. Statements Concealing the Conspiracy

       In United States v. Pecora, 798 F.2d 614 (3d Cir. 1986),

defendants challenged the admission of a recorded telephone

conversation among several unindicted co-conspirators. Their

challenge included the argument that the conversations were not

in furtherance of the no-show scheme at issue there. Id. at 630.

The conversations consisted of statements “trying to get their

stories straight about what their jobs entailed in anticipation of

a government investigation.” Id. at 625. Defendants argued that

the conversations were inadmissible because their purpose was

“to conceal the declarants’ participation in the conspiracy at a

time when the declarants were no longer conspirators, having


                               20
terminated their involvement.” Id. at 630.

       We rejected that argument explaining:

       “[i]f the acts of concealment amount to nothing
       more than (1) a criminal conspiracy which is
       carried out in secrecy; (2) a continuation of the
       secrecy after the accomplishment of the crime;
       and (3) desperate attempts to cover up after the
       crime begins to come to light then declarations
       made during an agreement to conceal are indeed
       not made in furtherance of the conspiracy.

Id. (citation and quotation omitted). However, we recognized in

Pecora that the Supreme Court has cautioned:

       “[b]y no means does this mean that acts of
       concealment can never have significance in
       furthering a criminal conspiracy. But a vital
       distinction must be made between acts of
       concealment done in furtherance of the main
       criminal objectives of the conspiracy, and acts of
       concealment done after these central objectives
       have been attained, for the purpose only of
       covering up after the crime.”

Pecora, 798 F.2d at 630 (quoting Grunewald v. United States,

353 U.S. 391, 405 (1957)). We concluded that the recorded

conversations in Pecora were admissible against the defendants

because “concealment of the existence of the conspiracy enabled

the defendants to continue their illegal payoff scheme for two

                              21
more years . . .”. Pecora, 798 F.2d at 631.

       As quoted earlier, here Ali told Rasool:

       I just don’t want to do anything right now with
       Sayeeda and them and jeopardize what we got
       with the college, you know. Cause you know they
       be the one’s to be calling and saying they ain’t
       nobody there at this time go check the, you know
       what, I know they’d do that.

App. 134-37. Thus, Ali is cautioning Rasool not to upset a

teacher at the School (“Sayeeda”) because that teacher might tell

CCP (“the college”) that there are no ABE classes being taught

at the School (“ain’t nobody there at this time”).         Ali is

obviously concerned that if they upset or anger Sayeeda in any

way, Sayeeda might report the fact that the School is empty

when ABE classes should have been in session, thus revealing

the “no show” scheme. Since it is clear that the purpose behind

these statements was to conceal that scheme so that it could

continue, we conclude that they were made in furtherance of it.

       Moreover, our conclusion that Ali’s statements to conceal

the conspiracy were in furtherance of it is not undermined by the

fact that the district court failed to hold an evidentiary hearing

                               22
on Weaver’s motion in limine.      Even if Rasool was not a

member of the conspiracy, Ali’s efforts to conceal the scheme

were clearly intended to further it. See Reyes, 798 F.2d at 384.

       As we have explained, statements made to inform others

of the status of a conspiracy only further the conspiracy if the

addressees are also interested in the status of the conspiracy.

See Ammar, F.2d at 252; see also Gibbs, 739 F.2d at 846.

Conversely, statements made for the purpose of concealing a

conspiracy can further the conspiracy regardless of whether the

addressee is a co-conspirator. Although jurors may not interpret

this statement as an effort to concealment, the government has

at least satisfied the “in furtherance” requirement of Rule

801(d)(2)(E) and is therefore entitled to have the jury consider

this portion of the September 4 conversation.

       Thus, Weaver’s attempt to define the September 4

conversation as merely being Ali’s “complaints” about Weaver

is not persuasive. Appellee’s Br. at 9. Weaver attempts to

buttress this argument by relying on the reasoning in United


                              23
States v. Licausi, 167 F.3d 36 (1st Cir. 1999). Licausi involved

a conspiracy to rob several supermarkets and convenience

stores. One of the defendants, John Licausi, argued on appeal

that the district court had erred in admitting out-of-court

statements of one of his co-conspirators, Bernie Subocz, to a

female acquaintance, Lori Munroe, because they were not in

furtherance of the conspiracy. Id. at 50.

       Subocz had returned from a crime spree in Ohio when he

told Monroe about several robberies he and his crew had

attempted that had been botched for various reasons. The court

agreed with Licausi that the statements were inadmissible

because “[a]ll but one were made after the crimes they described

took place, and they do not appear to have yielded significant

enough information to constitute reports to a coconspirator,

assuming Munroe could be considered as such.” Id. The court

also concluded that the statements “appear[ed] . . . to be

instances where Subocz was “merely blowing off steam or

venting anxiety” or simply avoiding an argument with his


                              24
girlfriend.

       Here, even if we were to concede that some of Ali’s

statements during the September 4 conversation can be fairly

characterized as “merely blowing off steam or venting anxiety,”

the bulk of her statements are qualitatively different than those

in Licausi. All but one of the statements in Licausi were made

after the crimes were committed, and were obviously not

intended to conceal prospective criminal activity. Accordingly,

the statements were not in furtherance of a conspiracy. See id.

       Conversely, as we have explained, Ali’s statement to

Rasool concerned the need to proceed with caution in order to

prevent revelation of the scheme that would result from the

discovery of empty classrooms and require an explanation of

how the proceeds were being used.

              D. Admissibility of Rasool’s Statements

       The government appears primarily interested in admitting

Ali’s statements during the September 4 conversation.

However, if the government intends to introduce Rasool’s


                                25
statements against Weaver under the co-conspirator exception,

it must establish by a preponderance of the evidence that Rasool

was also a conspirator. As we have noted, the government never

had a chance to establish Rasool’s membership in the

conspiracy. Of course, in addition to establishing Rasool’s role

in the conspiracy, the government must also satisfy the other

requirements of Rule 801(d)(2)(E). See Ellis, 156 F.3d at 496.

        E. Relevance of the September 4 Conversation

       The district court also ruled the September 4 conversation

irrelevant. Federal Rule of Evidence 401 defines “relevant

evidence” as “evidence having any tendency to make the

existence of any fact that is of consequence to the determination

of the action more probable or less probable than it would be

without the evidence.”      Fed. R. Evid. 401.      Here, Ali’s

statements to Rasool during the September 4 conversation

confirm essential elements of the conspiratorial scheme.

Specifically, Ali informed Rasool that she was dependent on

Weaver for the scheme to continue and that Weaver requested


                               26
half of the School’s proceeds from the scheme.           Ali also

instructed Rasool not to upset Sayeeda and thereby jeopardize

the scheme, as we have just explained.

       It is, of course, ultimately for the jury to interpret those

statements.. However, they are certainly relevant to the charges

against Weaver because Ali’s statements to Rasool tend to make

it more probable than not that Weaver knew about the scheme

to defraud CCP and was involved in it. Accordingly, the district

court erred in finding the September 4 conversation irrelevant.

       In conclusion, we will remand for the district court to

provide the government with the opportunity to present evidence

in support of its allegation that Rasool was a co-conspirator. We

recognize that “the control of the order of proof at trial [for

admission of statements under Rule 801(d)(2)(E)] is a matter

committed to the discretion of the trial judge,” Ammar, 714 F.2d

at 246, and leave it to the court to decide whether to: (1) conduct

a pretrial evidentiary hearing on Weaver’s motion in limine; or

(2) conditionally admit the challenged conversation “subject to


                                27
the requirement that the government make [its Rule

801(d)(2)(E)] showing by the close of its case,” id. at 247. See

id. (noting that the latter procedure should be “carefully

considered and sparingly utilized”) (quoting United States v.

Continental Group, Inc., 603 F.2d 444, 457 (3d Cir. 1979)).

After hearing the relevant evidence, whether at a pretrial hearing

or during the trial, the district court will then be able to

determine whether the        government has proven          by a

preponderance of the evidence that the portion of Ali’s

statements to Rasool informing her of the status of the

conspiracy are admissible under Rule 801(d)(2)(E).

       If the evidence shows that Rasool was, as the government

claims, a co-conspirator in the charged conspiracy, that portion

of the conversation would be admissible under Rule

801(d)(2)(E). If, on the other hand, the evidence shows that

Rasool had no involvement in the charged conspiracy, the

district court should grant Weaver’s motion with respect to that

portion of the conversation only. However, regardless of the


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district court’s findings in respect to Rasool’s involvement in the

conspiracy, Ali’s statements to Rasool regarding Sayeeda and

concealing    the   conspiracy are     admissible    under   Rule

801(d)(2)(E).

                               III.

       For the reasons stated above, we will vacate the district

court’s order granting Weaver’s motion in limine and remand

for further proceedings consistent with this opinion.




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