The opinion of the court was delivered by: DUSEN
MEMORANDUM SUR DEFENDANTS' SUGGESTED ORDER REQUIRING THE UNITED STATES TO ESTABLISH BY INDEPENDENT EVIDENCE THE CONSPIRACY AND MEMBERSHIP OF THE CONSPIRATORS THEREIN
Defendants have asked for this provision in the pretrial order (paragraph 27):
'27. The Government shall be required to establish by prima facie evidence (1) the existence of the conspiracy charged in the indictment; and (2) membership in the conspiracy of
'(a) each defendant before offering the ex parte acts or declarations of one defendant against another defendant,
'(b) each defendant and each non-defendant conspirator before offering the ex parte acts or declarations of a non-defendant conspirator against any defendant.'
The general rule is that a prima facie conspiracy should be shown before the acts and/or declarations of a conspirator are admissible against the other conspirators.
There are cases where acts
and declarations of co-conspirators were admitted against the other conspirators before proof of the conspiracy.
A conspiracy may be shown by: a course of dealings,
tacit understanding, agreement or acquiescence,
and acts and declarations of the co-conspirators.
This court is bound by the rulings of the Supreme Court of the United States, which has said:
'In order that the declarations and conduct of third parties may be admissible in such a case, it is necessary to show by independent evidence that there was a combination between them and defendants, but it is not necessary to show by independent evidence that the combination was criminal or otherwise unlawful. The element of illegality may be shown by the declarations themselves.'
Part (2) of the above paragraph 27 is dependent upon the court's discretion. A series of cases support the following proposition:
'The order in which evidence is received is within the discretion of the trial court and, therefore, error could not be predicated upon the admission of evidence as to the acts of an alleged co-conspirator prior to proof that the defendant was connected with the conspiracy.'
However, proof that the co-conspirator, whose declarations are admitted against the other defendants, had joined the conspiracy must be from an independent source.
It is noted that evidence which may fall under the terms of the above-quoted suggested paragraph 27 may be admissible for other reasons. Alleged criminal violations committed by agents of the two defendant corporations may be admissible under the general rule that where 'there is an officer or agent of a corporation with broad express authority, generally holding a position of some responsibility, who performs a criminal act related to the corporate principal's business. * * * the courts have held that so long as the criminal act is directly related to the performance of the duties which the officer of agent has the broad authority to perform, the corporate principal is liable for the criminal act also, and must be deemed to have 'authorized' the criminal act.'
Additional reasons for the admission of acts or declarations of corporate agents against their principals are discussed in cases such as United States v. United Shoe Machinery Corp., 89 F.Supp. 349 (D.Mass.1950).
Concerning the foundation upon which documents may be admitted under the Federal Business Records Act, 28 U.S.C.A. § 1732(a), the federal courts have held that it is not a requirement in a criminal case that the person who actually prepared the subject record testify concerning it. In United States v. Olivo, 278 F.2d 415 (3rd Cir. 1960), where a witness testified to the mode of preparation in the trade and then within his company, it was held that the paper was properly admitted, even though no employee from the particular branch where the paper was prepared testified. The court stated at page 417:
'* * * it (the Federal Business Records Act) was intended to eliminate the technical requirement of proving the authenticity of records and memoranda by the testimony of the maker.'
The trial judge contemplates including language such as the following in the pre-trial order, since the above authorities do not justify the use of the language used in the above-mentioned paragraph 27 as submitted by defendants:
'Wherever the Government does not plan to establish by prima facie evidence (1) the existence of the conspiracy charged in the indictment; and (2) membership in the conspiracy of
'(a) each defendant before offering the ex parte acts or declarations of one defendant against another defendant on the ground that they are acts or declarations of a co-conspirator,
'(b) each defendant and each non-defendant conspirator before offering the ex parte acts or declarations of a non-defendant conspirator against any defendant on the ground that they are acts or declarations of a conspirator, the Government shall submit a written offer of proof to the trial judge and counsel for defendants the trial day before calling such witness to explain why it is not feasible to establish (1) and (2) above before showing such acts or declarations, unless the trial judge, for cause shown, dispenses with such requirement.'
MEMORANDUM SUR DEFENDANTS' REQUEST FOR RULING THAT 28 U.S.C.A. 1732 IS INAPPLICABLE IN THIS CASE (DOCUMENT 153)
On December 6, 1963, defendants filed with the pre-trial judge their MEMORANDUM IN SUPPORT OF DEFENDANTS' MOTION FOR A PRE-TRIAL RULING THAT 28 U.S.C.A. 1732, RELATING TO THE ADMISSIBILITY OF BUSINESS RECORDS, IS INAPPLICABLE IN A CRIMINAL PROCEEDING, which has been docketed as Document 153. This Memorandum, relying on the Sixth Amendment provision that 'the accused shall enjoy the right * * * to be confronted with the witnesses against him,' concludes with the following language at page 10:
'For the above stated reasons the defendants request that the Court rule that 28 U.S.C.A. § 1732 is ...