dissenting:
At least three separate reasons dictate that some or all of these cases should be reversed. These cases represent the application to separate conspiracies of the “chain conspiracy” doctrine developed for drug cases, a practice condemned by both the Supreme Court in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946) and this court in United States v. Butler, 494 F.2d 1246 (10th Cir. 1974). In *1334addition, I have considerable doubts about the sufficiency of the evidence.1 However, because the use of an improper standard for determining the admissibility of co-conspirator statements here so clearly dictates reversal, these other issues need not be treated in this opinion.
This court properly determined in United States v. Andrews, 585 F.2d 961 (10th Cir. 1978), that the Federal Rules of Evidence (enacted before the trial of this case) requires a trial judge to find three facts by a preponderance of the evidence before ad-mitting the hearsay statements of co-conspirators. He must determine that the conspiracy existed, that the declarant and the particular defendant were members of the conspiracy, and that the statement was made during the course of and in furtherance of the conspiracy. In these cases, however, the trial judge used a prima facie standard which may well have resulted in the pyramiding of otherwise inadmissible evidence.
Without even the benefit of briefing or oral argument, the majority has applied retroactivity analysis to an area where it decidedly does not belong. The doctrine developed by the majority results in a clear judicial usurpation of congressional prerogatives. The Federal Rules of Evidence is a statute, with a congressionally mandated effective date. In its analysis of Rules 104(a), 104(b), and 801(d)(2)(E), Andrews is purely a statutory interpretation case, as the majority acknowledges. See majority opinion at 1328, 1329. Andrews “was not based on constitutional grounds; rather it was premised on the proposition that the recently adopted Federal Rules of Evidence altered the procedural requirements in this area.” Majority opinion at 1328. Nonetheless, according to the majority, the Chevron Oil requirement is satisfied: “[T]he decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, . . . or by deciding an issue of first impression whose resolution was not clearly foreshadowed.” Chevron Oil Co. v. Huson, 404 U.S. 97, 106, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971). Andrews did not overrule past precedent; the Federal Rules of Evidence did.
The majority opinion appears to have at its core an outmoded jurisprudential view that statutes do not become law until a court ratifies them. See, e. g., J. C. Gray, The Nature and Sources of the Law (1909). I suspect that the majority’s view is limited by the facts to conspiracy cases. If we had before us a conviction under a previously unconsidered criminal statute, I cannot seriously believe that this court would apply the same retroactivity analysis. But in order to affirm convictions, some of which are supported by only the most tenuous evidence, the majority here takes upon itself the amendment of a statutory effective date. When Congress has mandated change, we are not permitted to rely on “our view . . . that the prior procedures sufficiently protected defendants from the dangers inherent in the admission of co-conspirator hearsay statements.” Majority opinion at 1329.
The defective standard used by the trial court, and approved by this court, is not saved by the majority’s reanalysis of the evidence to find the critical facts by “a preponderance of independent evidence.” Majority opinion at 1331. We may not, as an appellate court, constitutionally find facts which flow from disputed evidence and which result in a criminal conviction. The function of determining evidentiary ad*1335missibility belongs to the trial court applying legally mandated standards.2
. Even the trial judge seemed to have serious doubts with respect to defendant Leonhardt, but he inexplicably failed to grant the motion for judgment .of acquittal. At the sentencing the court urged Leonhardt to appeal because “[t]he case against you ... is very thin. I let it go to the jury because I thought there was barely enough evidence to get to the jury, . but I may have very well been wrong on that.” Record, vol. 28, at 40. The court further urged the filing of a Fed.R.Crim.P. 35 motion for reduction of sentence “which I assure you I will consider very, very carefully in the event that [the conviction is] affirmed.” Record, vol. 28, at 40.
. The delicacy of the fact-finding function in these cases is emphasized by the lengthy consideration the majority necessarily gives to the sufficiency of the evidence claims. In making its determinations of sufficiency, however, the majority might well have used some evidence that, under a proper Andrews standard, should not have been before the court at all.