United States v. Peter Schmit, United States of America v. Rex Lee Swinford

Peter Matthew Schmit and Rex Lee Swinford appeal their convictions of conspiring in violation of 21 U.S.C. § 846 to possess, manufacture and distribute methamphetamine and other controlled substances in violation of 21 U.S.C. § 841 (a)(1).

I. The Hearsay Claims

Appellants’ principal contention is that the district court erred in admitting a tape recorded statement and handwritten notes on pages of a desk calendar as “statement[s] by a coconspirator of a party during the course and in furtherance of the conspiracy.” Fed.R.Evid. 801(d)(2)(E).

To satisfy the Rule “[t]here must be evidence that there was a conspiracy involving the declarant and the nonoffering party, and that the statement was made in the course and in furtherance of the conspiracy.” Bourjaily v. United States, 483 U.S. 171 , 107 S.Ct. 2775, 2778 , 97 L.Ed.2d 144 (1987). [W]hen the preliminary facts relevant to Rule 801(d)(2)(E) are disputed, the offering party must prove them by a preponderance of the evidence.” Id. at 2779. In making these preliminary factual determinations the court “may examine the hearsay statements sought to be admitted ... ‘and give [them] such weight as [its] judgment and experience…