The opinion of the court was delivered by: Surrick, J.
Presently before the Court is Defendant Kaboni Savage's Motion to Exclude Co-Conspirators' Statements. (ECF No. 391.) For the following reasons, Defendant's Motion will be denied.
On May 9, 2012, a federal grand jury returned a seventeen-count Fourth Superseding Indictment ("Indictment") charging Defendant Kaboni Savage ("Savage") with conspiracy to participate in the affairs of a racketeering ("RICO") enterprise, in violation of 18 U.S.C. § 1962(d) (Count 1), twelve counts of murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1) (Counts 2-7, 10-15), tampering with a witness, in violation of 18 U.S.C. § 1512(a) (Count 8), conspiracy to commit murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5) (Count 9), retaliating against a witness, in violation of 18 U.S.C. § 1513(a) (Count 16), and using fire to commit a felony, in violation of 18 U.S.C. § 844(h)(1) (Count 17). (Fourth Superseding Indictment ("Indictment"), ECF No. 480.)*fn2 Savage was charged, along with three co-defendants, Steven Northington, Robert Merritt, and Kidada Savage, his sister.*fn3 Defendant Lamont Lewis was also charged in the First Superseding Indictment. The charges against Lewis were disposed of by guilty plea on April 21, 2011. On March 14, 2011, the Government filed notices of intent to seek the death penalty against Savage, Merritt and Northington. (ECF Nos. 196, 197, 198.) The Government does not seek the death penalty against Kidada Savage.
Kaboni Savage, Northington and four other co-defendants not charged in the instant Indictment were prosecuted in a 2005 federal drug conspiracy case before the Honorable Mary A. McLaughlin in this District. After a seven-week trial, Savage was found guilty of conspiracy to manufacture and distribute cocaine, money laundering, firearms possession, witness retaliation and other crimes. As part of its investigation of the 2005 drug conspiracy, the Government sought and obtained seven orders authorizing the interception of wire communications ("Wiretap Orders") pursuant to 18 U.S.C. § 2518. The Government advises that "thousands of recorded telephone conversations" were obtained pursuant to the Wiretap Orders and produced to Defendants during discovery. (Gov't's Resp. 3, ECF No. 463.)
On February 21, 2012, Savage filed a Motion to Exclude Alleged Co-Conspirators' Statements. (Def.'s Mot., ECF No. 391.)*fn4 The Government filed a Response in opposition to the Motion on April 12, 2012. (Gov't's Resp.) A hearing was held on the pretrial motions on June 11 and 12, 2012. At that hearing, the parties advised the Court that they did not wish to present evidence or oral argument on this Motion, and the Motion was submitted on the pleadings. Trial of Defendants is presently scheduled for January 7, 2013.
A. The Parties' Contentions
Savage seeks to prevent the Government from offering statements made by co-conspirators at trial on the basis that they constitute inadmissible hearsay. (Def.'s Mot. ¶ 7.) He argues that the statements, which were obtained by use of court-authorized wiretaps, do not qualify as co-conspirator non-hearsay under Federal Rule of Evidence 801(d)(2)(E). (Id. at ¶¶ 5-7.) Rule 801 requires that the Government prove the existence of a conspiracy prior to the statements qualifying as non-hearsay. See Fed. R. Evid. 801(d)(2)(E). Savage contends that, without the co-conspirator statements, the Government is unable to prove the existence of a conspiracy. (Id.) In the alternative, Savage requests (i) that the Government provide him with notice of the co-conspirator statements it intends to introduce against him, and (ii) that we schedule a pretrial hearing at which the Government will be required to lay a foundation with respect to the existence of a conspiracy. (Def.'s Mem. 2.)
The Government responds that Savage's Motion is facially insufficient because he has failed to identify any co-conspirator statement to which he objects. (Gov't's Resp. 1.) The Government further argues that pretrial hearings to determine the admissibility of co-conspirator statements are, "for the most part, a relic of the past" and rarely used by courts within the Third Circuit. (Id. at 4.) Rather than conducting a pretrial hearing, the Government requests that, consistent with Third Circuit precedent, the statements be admitted at trial, subject to the requirement that the Government lay a proper foundation by the close of its case. The Government contends that this practice is appropriate for complex conspiracies like this one, where there is a "large amount of interrelated testimony." (Id. at 5 (quoting United States v. McGlory, 968 F.2d 309 (3d Cir. 1992).)
Pursuant to Federal Rule of Evidence 801(d)(2)(E), a statement is not hearsay if it is offered against the opposing party and "was made by the party's coconspirator during and in furtherance of the conspiracy." Fed. R. Evid. 801(d)(2)(E). To qualify as non-hearsay under Rule 801(d)(2)(E), the Government must first establish by a preponderance of the evidence that
(1) there was a conspiracy involving the defendant and the non-offering party, and (2) the statement was made during and in furtherance of the conspiracy. Bourjaily v. United States, 483 U.S. 171, 175 (1987); United States v. Gambino, 926 F.2d 1355, 1360 (3d Cir. 1991). This preliminary determination is made by the district court, Gambino, 926 F.2d at 1360, and the "statement must be considered but does not by itself establish . . . the existence of the conspiracy or participation in it," Fed. R. Evid. 801(d)(2)(E). There is no requirement that the determination be made at any given time since "control of the order of proof at trial is a matter committed to the discretion of the trial judge." United States v. Continental Grp., Inc., 603 F.2d 444, 456 (3d Cir. 1979); see also United States v. Ammar, 714 F.2d 238, 245-47 (3d Cir. 1983) (affirming district court's admittance of co-conspirator's statements subject to later connection by the government). The necessary quantity of evidence to prove a conspiracy under Rule 801(d)(2)(E) need not be great. The Third Circuit has held that the trial court's determination need only be supported by "slight evidence." United States v. Provenzano, 620 F.2d 985, 999 (3d Cir. 1980).
In complex conspiracy cases the Government is permitted to conditionally admit co-conspirator statements without first laying a foundation with respect to the existence of the conspiracy. The Government must, however, meet its burden to prove the conspiracy by the close of its case. See Gambino, 926 F.2d at 1360-61; Ammar, 714 F.2d at 247; Continental Grp., 603 F.2d at 457. This procedure should be "carefully considered and sparingly utilized"; however, it is appropriate when the conspiracy involves multiple defendants and a "large amount of interrelated testimony." Continental Grp., 603 F.2d at 457; see also Gambino, 926 F.2d at 1360-61 (affirming ...