Enormous Conspiracies and Hearsay

The rules of evidence prevent out-of-court statements from being presented as evidence, unless one of numerous exceptions apply. By definition, the rules deem statements by co-conspirators in furtherance of the conspiracy to be non-hearsay. The government often aggressively employs that evidentiary carve-out in criminal cases. In the recent Sixth Circuit Court of Appeals case of United States v. Musaibli, the government succeeded in arguing that a conspiracy could consist of thousands of people, conceivably all of whose statements would not count as hearsay.

Factual Background

In Musaibli, the government indicted the defendant on terrorism charges, including providing material support to a terrorist organization (ISIS) and conspiracy to do the same. Some of the government's primary evidence included bureaucratic records from ISIS, including purported fighter rosters, payroll records, and a marriage certificate. Recognizing the likely hearsay objections to this evidence, the government moved before trial for the court to rule on admissibility. As its key witness in support of the documents, the government put forth an ISIS database administrator who had pleaded guilty in a separate matter and was cooperating with the government. That individual described the records and identified the defendant's information in them. The defendant, for his part, argued that he was a hostage of ISIS and forced to fight for them.

The trial court ruled that the records were hearsay. Chief among its concerns were the undefined scope of the conspiracy and that allowing the records into evidence would conflate "the defendant's culpability based on the ISIS organization's criminal and terroristic activities generally." The government appealed, and the Sixth Circuit reversed, ruling that the records were admissible as co-conspirator statements.


The post below proceeds in two parts. Part I explains a procedural disparity that allows the government, but not defendants, a pre-trial opportunity to get a second bite at the apple in evidentiary rulings. Part II explores how the Court concluded that conspiracies could be virtually unlimited in size.

Part I - Asymmetrical Evidentiary Appeal Rights in Criminal Trials

Federal courts are courts of limited jurisdiction. Usually, evidentiary rulings are not considered final rulings for purposes of appeal, and so the courts of appeal generally lack jurisdiction to hear such challenges before a final judgment. The first portion of Musaibli focused on the Court's jurisdiction to hear a pretrial evidentiary appeal, which arises from a special right of the federal government.


If a defendant seeks to exclude evidence - including the key evidence in the case - and the trial court denies the request, trial proceeds. If the jury convicts him based on that evidence, then he can appeal afterwards. Meanwhile, in all likelihood, he will sit in jail. Unless wealthy, he may have run out of funds to finance his defense by this point and instead may need to resort to a public defender. If the appeals court eventually rules in his favor that the evidence should have been excluded, then the matter is remanded, so the defendant can be tried again - unless, of course, the appellate court rules that the evidentiary ruling was wrong, but harmless, in which case the defendant remains in jail.

The government, however, has special appeal rights that criminal defendants lack. Once a jury is empaneled, jeopardy attaches and, in the event of an acquittal, the Fifth Amendment prevents retrial for the same crimes. In order to prevent the "asymmetry" of the government potentially losing a conviction because of an adverse evidentiary ruling by a district court, Congress enacted 18 U.S.C. § 3731, which allows the government to appeal "orders excluding evidence in criminal cases."

Legal Requirements

There are five factors the government must meet in order to utilize the pretrial appeal process. They are: (1) a trial court order excluding or suppressing evidence; (2) made before jeopardy attaches, e.g., a jury is empaneled; (3) the government "certifies" that the appeal is not for purposes of delay and that the "evidence is a substantial proof of a fact material in the proceeding"; (4) the government appeals within thirty days of the trial court decision; and (5) the government diligently prosecutes the appeal. In practice, so long as the government checks the procedural boxes, the government can appeal pretrial evidentiary rulings whenever those rulings are adverse to the government and impact a major aspect of the case.


If a trial court rules against the government on a key motion to suppress, an appeal can follow immediately. The court of appeals can reverse. If the trial court does not suppress the evidence, then a defendant has no recourse until after a verdict. On appeal, the court of appeals may reverse, and then the defendant faces a new trial. The system is designed such that the government can guarantee its best evidentiary case against a defendant before any juror sits in the box. Defendants, by contrast, must endure a war of attrition before given the opportunity to challenge unfavorable evidentiary rulings, even if those rulings go to the heart of the case.

Part II - A Conspiracy of Tens of Thousands

Federal Rule of Evidence 801(d)(2)(E) does not create a hearsay exception for co-conspirator statements; those statements are deemed to be not hearsay at all. Musaibli posed the question of how large can a conspiracy be and still qualify for the exemption. In ruling that "there is no magic number of co-conspirators past which unity unravels," the Sixth Circuit effectively endorsed treating the entire ISIS organization as a giant conspiracy, at least for purposes of the Rules of Evidence.

Law of the Co-Conspirator Hearsay Exemption

Rule 801(d)(2)(E) defines as non-hearsay any statement "made by the party's coconspirator during and in furtherance of the conspiracy." "To invoke this hearsay exclusion, the government must demonstrate by a preponderance of the evidence that (1) a conspiracy existed, (2) the defendant was a member of the conspiracy, and (3) the co-conspirator's statement was made in furtherance of the conspiracy." In meeting this test, the "government may rely on the contents of the co-conspirator statements to demonstrate each of these elements, but must also offer independent, corroborating evidence to that effect."

Even though co-conspirator statements evade the ban on hearsay, the government does not need to charge the other alleged co-conspirators with a crime. In fact, the government does not even need to charge the defendant with a conspiracy count in order to utilize Rule 801(d)(2)(E) to circumvent the bar on hearsay. And, even though a defendant can be convicted only when the evidence shows guilt beyond a reasonable doubt, the government can introduce potentially devastating co-conspirator statements so long as it meets "the less onerous preponderance-of-the-evidence standard."

Legal Analysis

In concluding that the trial court "clearly erred," the Sixth Circuit found that the government proved by a preponderance of the evidence "the existence of a conspiracy to provide ISIS with the alleged material support." Documents indicating the defendant's status as a fighter in a specific battalion and his marriage certificate were deemed "probative of both a coordinated effort to provide ISIS with material support and of [the defendant's] involvement in those efforts." According to the Court, "statements which identify the participants and their roles in the conspiracy are made in furtherance of a conspiracy."

The Court gave significant weight to the government's "extraordinary" witness, the database administrator. Essentially an ISIS record keeping agent, that witness's testimony showed that "an intricate conspiracy to provide ISIS with personnel and services existed, [and] that this conspiracy was supported by a sophisticated bureaucratic apparatus that kept track of its members and incentivized their service through salaries and other benefits."

The defendant argued that construing the co-conspirator carve-out to apply so broadly "would allow the government to enter any statement made by any participant in ISIS's sizeable membership, regardless both of how tangentially connected this was to his conduct." The Sixth Circuit agreed that the defendant's "concern has merit." Then, the Sixth Circuit essentially sidestepped that concern by analogizing the case to organized crime and noting that "membership in one Mafia family without more is insufficient to have statements made by members of other families be admissible under Rule 801(d)(2)(E)."

Through its holding, the Sixth Circuit refused to place any sort of numerical cap on the number of co-conspirators captured by the exemption in Rule 801(d)(2)(E). Rather, in the Sixth Circuit's view, the "clear boundary" to the government's alleged conspiracy is "providing ISIS with material support and resources in the form of personnel and services." That may mean that the defendant is correct that virtually any ISIS member would qualify as a co-conspirator, but the Sixth Circuit insisted that the co-conspirator exemption is not entirely limitless, because, for example, "statements made by those offering services and personnel to other terrorist groups are outside the limits of this conspiracy."


At various points, estimates of membership in ISIS exceeded 30,000 fighters. The Sixth Circuit's endorsement of a conspiracy of everyone providing support or services to ISIS would sweep in all of those individuals. Elsewhere, the Sixth Circuit has held that "hearsay is unreliable, almost by definition." United States v. Givens, 786 F.3d 470, 473 (6th Cir. 2015). It is difficult to square the intent of the evidentiary rules in ensuring the reliability of evidence with a decision effectively exempting from hearsay restrictions a conspiracy the size of the population of Myrtle Beach.

The Musaibli case also highlights the disparity between the standard of proof for evidentiary admissibility of co-conspirator statements and conviction, which becomes particularly notable when the substantive crimes include conspiracy. Although the substantive crime must be proved beyond a reasonable doubt, the government can introduce the key evidence so long as it meets a lesser preponderance standard. In effect, the government can invoke the co-conspirator hearsay exemption by showing it is more likely than not that a conspiracy existed, and then use the now-admissible co-conspirator statements to establish the substantive offense of conspiracy, even if it could not have proven beyond a reasonable doubt the existence of a conspiracy in the first place without those co-conspirator statements.

It is easy to lack empathy for the particular defendant in Musaibli, but the holdings in the decision are precedential in subsequent cases. By endorsing expansions to the scope of the co-conspirator exemption, the Court makes it easier in the future for the government to admit evidence that otherwise should be barred by the hearsay rules. In particular, bookkeepers and administrators who oversee an organization's documentary evidence become "extraordinary" witnesses capable of authenticating documents and potentially testifying against anyone alleged to have been part of a conspiracy involving that organization, regardless of how large or sprawling.