United States Court of Appeals,
Eleventh Circuit.
No. 94-4259.
UNITED STATES of America, Plaintiff-Appellee,
v.
Leopoldo HERNANDEZ-MIRANDA and Atilano Dominguez, Defendants-
Appellants.
March 26, 1996.
Appeal from the United States District Court for the Southern
District of Florida. (No. 93-401-CR-DLG), Donald L. Graham,
District Judge.
Before EDMONDSON and DUBINA, Circuit Judges, and CUDAHY*, Senior
Circuit Judge.
CUDAHY, Senior Circuit Judge:
Atilano Dominguez, Leopoldo Hernandez-Miranda and two others
served as middlemen in the shipment of a truckload of marijuana.
All four were charged with possession of marijuana with intent to
distribute and with conspiracy to engage in that crime, and
Dominguez and Hernandez-Miranda went to trial on those charges.
The jury returned guilty verdicts against Dominguez on both charges
and against Hernandez-Miranda on the possession charge; but it
acquitted Hernandez-Miranda of the conspiracy charge. Both
defendants appeal their convictions, raising issues about the
sufficiency of the evidence against them. Dominguez also raises an
issue with respect to the jury instructions regarding his theory of
defense. In an unpublished order issued today under Circuit Rule
36-1, we decide all of those issues but address another matter
*
Honorable Richard D. Cudahy, Senior U.S. Circuit Judge for
the Seventh Circuit, sitting by designation.
here. This issue pertains to the admission of testimony containing
out-of-court statements in the government's case against Hernandez-
Miranda. For the reasons set forth below, we find that those
statements were properly admitted as coconspirator's statements.
Some of the most probative evidence offered against Hernandez-
Miranda came from the testimony of Martin Mercado, one of the four
conspirators, who attributed inculpatory statements about the crime
to Hernandez-Miranda. When recounted in Mercado's testimony, these
statements might, of course, have been objectionable as hearsay.
The district court decided that they were not hearsay,
characterizing them as coconspirators' statements not classifiable
as hearsay and admissible under Federal Rule of Evidence
801(d)(2)(E). Therefore, the district court admitted Mercado's
testimony containing these statements.
Hernandez-Miranda contended at oral argument that his
acquittal on the conspiracy charges operates retroactively to make
the admission of these statements erroneous. He reasons that his
acquittal of conspiracy established that he and Mercado were not
coconspirators and, therefore, that Rule 801(d)(2)(E) does not
apply to Mercado's testimony.
Several criminal defendants have invoked this reasoning in
our cases. We have regularly rejected this reasoning and continue
to do so. As we noted in United States v. Kincade, "once the court
has determined that the government has made the requisite showing
of a conspiracy, "the admission of testimony under the
co-conspirator exception to the hearsay rule is not rendered
retroactively improper by subsequent acquittal of the alleged
co-conspirator.' " 714 F.2d 1064, 1065 (11th Cir.1983) (quoting
United States v. Cravero, 545 F.2d 406, 419 (5th Cir.1976), cert.
denied, 429 U.S. 1100, 97 S.Ct. 1123, 51 L.Ed.2d 549 (1977)). This
principle applies whether it is the declarant or the witness who is
acquitted of conspiracy. See United States v. Collins, 779 F.2d
1520, 1533 (11th Cir.1986).
The district court here did everything necessary for the
application of this principle. See United States v. James, 590
F.2d 575 (5th Cir.) (en banc), cert. denied, 442 U.S. 917, 99 S.Ct.
2836, 61 L.Ed.2d 283 (1979). After the jury was impaneled and
before the trial began, Hernandez-Miranda advised the court of his
intention to challenge the admission of Mercado's testimony about
his statements. The court then asked the government to proffer its
evidence relating to Hernandez-Miranda's participation in the
conspiracy. This proffer satisfied the district court that there
was sufficient evidence of a conspiracy, and it allowed the
admission of Mercado's testimony. Given this finding by the
district court, the admission of the coconspirator statements was
proper.
The judgment of the district court is
AFFIRMED.