Eleventh Circuit Makes Wide-Ranging Ruling On Application Of Co-Conspirator Hearsay Exception

Last week, the Eleventh Circuit held that a conspiracy need not be unlawful to introduce co-conspirator statements under Federal Rule of Evidence 801(d)(2)(E), reversing the district court's exclusion of certain statements. The court held that the government could admit a co-conspirator's statements against a defendant even if it failed to establish a criminal conspiracy "[s]o long as those statements were made during and in furtherance of a joint venture that included an opposing party" under Rule 801(d)(2)(E). United States v. Holland, et al., No. 22-14219, slip op. at 2 (11th Cir. Sept. 25, 2024) (emphasis added).

The government had alleged that the three defendants violated the Anti-Kickback Statute, which prohibits individuals from referring or accepting the referral of patients covered by a federal health care program in exchange for payment. At trial, the government sought to rely on out-of-court statements from several unindicted co-conspirators and the