Bourjaily v. United States

RESPONDENT: United States
LOCATION: Harris County Courthouse

DOCKET NO.: 85-6725
DECIDED BY: Rehnquist Court (1986-1987)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 483 US 171 (1987)
ARGUED: Apr 01, 1987
DECIDED: Jun 23, 1987

Lawrence S. Robbins - Argued the cause for the respondent
Stephen Allan Saltzburg - Argued the cause for the petitioner

Facts of the case

William Bourjaily was arrested after receiving a quantity of cocaine in a parking lot from Angelo Lonardo. At Bourjaily's trial, the government introduced statements Lonardo made in a telephone conversation with an informant regarding a "friend" who had questions about the cocaine. The district court, considering the events in the parking lot and Lonardo's statements over the telephone, found that the government had established that a conspiracy existed between Bourjaily and Lonardo, and that Lonardo's statements over the telephone had been made in the course of and in furtherance of the conspiracy. Accordingly, the court held that Lonardo's out-of-court statements satisfied Federal Rule of Evidence 801(d)(2)(E) and were not hearsay.


(1) In order to consider the statements of a coconspirator as non-hearsay, must the court determine by evidence independent of the statements themselves that the conspiracy existed and that the defendant and declarant were members of this conspiracy? (2) What is the quantum of proof on which such determinations must be based? (3) Must the court in each case examine the circumstances of such a statement to determine its reliability?

Media for Bourjaily v. United States

Audio Transcription for Oral Argument - April 01, 1987 in Bourjaily v. United States

Stephen Allan Saltzburg:

--indeed, that's what it is in many civil cases... and didn't take the time to look and never considered the point.

Lawrence S. Robbins:

If the rule is that it can only come up when the defense lawyer makes the objection, says the statements are crucial and unreliable, it is a safe bet it will happen every day and given that there is no apparent benefit from it to defendants, it can't be that the confrontation clause requires the system to absorb it.

How much do you really lose if that point is decided against you?

Lawrence S. Robbins:

In conclusion, it seems to us that one overarching principle has guided the framers of the Federal Rules of Evidence and that principle is stated in 402: all relevant evidence is admissible.

I mean, a trial judge can still say that a lot of these unsupported declarations are not trustworthy, and he can reject them for that reason.

Lawrence S. Robbins:

In urging this Court this afternoon to reject the bootstrapping rule and to reject an independent reliability test for admissible co-conspirator statements, we believe that we are being most faithful to that presumption of admissibility.

Stephen Allan Saltzburg:

I'd like to say that we... and Mr. Bourjaily because "we" in this case is every defendant who will subsequently go on trial.

Lawrence S. Robbins:

We free the trial judge to look at all non-privileged items and by so doing allow him to send relevant evidence to the jury without the encumbrance of an exclusionary rule that is no longer fit to this system.

Stephen Allan Saltzburg:

We believe it is so important that it would be better for this Court to hold that as long as the independent evidence requirement is strictly enforced, and as long as the preponderance of the evidence standard is used, that no confrontation clause analysis ought to be employed.

Lawrence S. Robbins:

By rejecting a redundant test for the reliability of otherwise admissible statements we leave to the jury its traditional function of examining all relevant evidence and separating for itself the wheat from the chaff.

Stephen Allan Saltzburg:

It is that important for, if I may give an example, there is no question in this case that there is certain circumstantial evidence that is highly incriminating against Mr. Bourjaily, he is found with a kilo of cocaine in his car in a parking lot.

Lawrence S. Robbins:

We believe that when judge and jury perform their assigned functions, the rules of evidence function as they were expected to by their framers.

Stephen Allan Saltzburg:

But there is also no doubt that the bulk of the evidence in this case involved taped conversations that didn't include him, that didn't mention him, that simply made reference to vague "others".

Lawrence S. Robbins:

If there are no further questions.

Stephen Allan Saltzburg:

Had, in this case... had Mr. Bourjaily pulled into that parking lot and seen his friend Lonardo truly in an innocent, fashion anti gone up and embraced Lonardo, very well might have been enough for a trial judge to say, "We'll let in the statements".

William H. Rehnquist:

Thank you, Mr. Robbins.

Stephen Allan Saltzburg:

Now, you may fairly say to me,

William H. Rehnquist:

Mr. Saltzburg, you have four minutes remaining.

Stephen Allan Saltzburg:

"Do we know that a trial judge would do that?"

Mr. Chief Justice, I have two points, if it please the Court.

And my answer, fairly, is "No".

Number one, Justice O'Connor, you asked a question about how this Court should go about interpreting rules when there is silence and I would address, if I might, there are three examples of cases I would like to cite that are not in the briefs but I think it would, if I may make reference to them, might enlighten the answer to your question.

I do not know that a trial judge would but I do know from the decided opinions if a trial judge did, the Court of Appeals would view that as within the permissible range of fact finding by the court.

The government, the United States, has argued that, let the relevant evidence come in, let silence be disregarded, when it came to interpreting the twin of Rule 801(d)(2)(E) the twin is (d)(2)(D).

It is that important.

That covers agents' statements generally, not just co-conspirators as argued to the courts of appeals, that the pre-rules approach should be taken, that even though Rule 801(d)(2)(D) draws no distinction between the government and a defendant, between the government and a corporation, that pre-rules decisions did and that the silence... it was so important in the pre-rules decisions, the silence should be taken as determinative.

That is why, at the risk of losing time on the confrontation argument, I stand here and say that in the view of many this issue of whether the independent evidence requirement will be removed is of such substance that it is not conceivable it would have been decided by silence in the course of an amendment process where all assumed the opposite to be true.

A good example is the case, United States versus Kempiles, 609 Fed. 2d 1233, Seventh Circuit, 1979 in which this Court denied review.

But I would move to the confrontation clause issue next unless the Court has further questions on the evidence issue.

No rule was thought clearer--