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Where the district court admits a non-conspirator's statements to provide context to a coconspirator's statements properly admitted under Fed. R. Evid. 801, such an approach is appropriate because statements are not hearsay to the extent they are offered for context and not for the truth of the truth of the matter asserted. A district court should exercise great caution when admitting a non-conspirator's statements to provide context to admissible declarations.
The business owned by defendant Bogdan Gajo caught fire and burned moderately. During the arson investigation, government agents examined the business’ outgoing telephone records, which led them to an individual named Jay Smith. Agents questioned Smith, who ultimately agreed to cooperate with the government. Smith stated that a former co-worker named Edward Baumgart approached him at his place of employment and introduced him to defendant. According to Smith, Baumgart told him that defendant needed a building burned down. Smith declined. Ten months after the fire, Smith contacted Baumgart at the direction of a federal ATF agent. Smith and Baumgart engaged in two conversations, each of which was recorded and ultimately introduced into evidence. At trial, Smith described his meeting with Baumgart and defendant. During Smith's cross-examination, defense counsel established that Smith could not remember if defendant said anything to him in English. The government, over defense counsel's objection, then moved to admit Smith's grand jury testimony as substantive evidence. The district court ruled that Smith's lack of memory as to what defendant said at the Banks Grill meeting was inconsistent with his grand jury testimony and admitted the transcripts. Defendant was convicted of conspiracy to commit arson in violation of 18 U.S.C. § 371, solicitation to commit arson in violation of 18 U.S.C. § 373, arson in violation of 18 U.S.C. § 844(I), and mail fraud in violation of 18 U.S.C. § 1341. On appeal, defendant argued that the district court erred in admitting tape-recorded conversations between two witnesses as those conversations did not fall within the definition of non-hearsay related to statements made by a coconspirator because one witness was never a member of the conspiracy, and that the district court erred in admitting as substantive evidence that particular witness's grand jury testimony.
The court held that defendant preserved the issue for appellate review and that the district court properly admitted the tape-recorded conversations because a conspiracy still existed at the time of the conversations and the district court included only those statements necessary to provide meaning to the non-conspiracy member's responses in the conversations. The court further held that the district court did not abuse its discretion in admitting limited portions of the witness's grand jury testimony. Accordingly, the court affirmed the defendant’s convictions.