Motion for a Pretrial Hearing to Determine the Existence of any Conspiratorial Agreements — USA v. Okojie (Dkt. 38, S.D. Ga.)

Record facts

U.S. District Court for the Southern District of Georgia · No. 4:22-cr-00084-LGW-BWC · Doc. 38 · 2022-09-15 · Docket on CourtListener

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
UNITED STATES OF AMERICA           )
       )
v.
       )
 CASE NUMBER: CR422-0084
       )
BERNARD OKOJIE, 
       )
Defendant 
       )
       )
DEFENDANT BERNARD OKOJIE’S    
MOTION FOR A PRETRIAL HEARING 
TO DETERMINE THE EXISTENCE OF ANY  
CONSPIRATORIAL AGREEMENTS
COMES NOW, BARNARD OKOJIE, Defendant, by and through his undersigned
counsel of record, and on information and belief that the government intends to introduce
co-conspirator hearsay statements against him at trial, moves this court to conduct a
pretrial hearing pursuant to United States v. James, 590 F.2d 575(5th Cir. 1979)(en banc)
for the purpose of determining whether said co-conspirator hearsay statements are
admissible as evidence against the Defendant.  Mr. Okojie further moves this court to
require the government to submit evidence at the James hearing to establish:
(a)
the existence of any conspiratorial agreements; and
(b) 
the sufficiency of the evidence against the Defendant to establish his 
involvement in the alleged conspiracies. 
The indictment alleges two conspiracies and various actions by Mr. Okojie and
co-conspirators, but never identifies any co-conspirators or what the agreements were.  
Case 4:22-cr-00084-LGW-BWC     Document 38     Filed 09/15/22     Page 1 of 6

As a consequence of this vagueness, without pretrial determination as to what
conspiracies and agreements are at issue, and the identity of the participants in those
agreements, an appropriate determination as to admissible co-conspirator statements
cannot be made.
Mr. Okojie further moves that if, at the conclusion of the James hearing it appears
that as to him there is not sufficient evidence of a conspiracy or the declaration at issue
was not in furtherance of that conspiracy, then the court not allow other hearsay evidence
to be admitted against him. 
Mr. Okojie asserts that the foregoing procedure of law is necessary to avoid
denial of his right to due process of law and to overcome abuses of the Defendant’s rights
which will otherwise occur in the course of the trial herein, and that simply requiring the
government to offer its proof at trial, rather than a full and fair pretrial determination, will
deprive the Defendant of the protection sought to be afforded by this process.
MEMORANDUM OF LAW
There is a long-recognized exception to the hearsay rule that a statement made by
one member of a conspiracy during the course of and in furtherance of the conspiracy
may be used against the other members of the conspiracy if certain conditions are met. 
Federal Rules of Evidence, Rule 801(d)(2)(E).  While this Rule moves co-conspirator
statements from the realm of hearsay, admissibility depends upon proof that there is a
conspiracy, that the statement was made during the course of an in furtherance of the
conspiracy, and the declarant and the defendant must be members of the conspiracy. 
Anderson v. United States, 417 U.S. 211, 218 n. 6(1974).
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The admissibility of a co-conspirator’s declarations in a conspiracy trial is a 
critical question.  The evidence endangers the integrity of the trial because the relevancy
and apparent probative value of the statements may be so highly prejudicial as to color
other evidence even in the mind of a conscientious juror, despite instructions to disregard
the statements or to consider them conditionally.  James v. United States, 590 F.2d
575(5th Cir. 1979)(en banc).  As a result, such statements should be evaluated by the
trained legal mind of the trial judge.
The James Court clearly held that:
“Rule 104(a) requires that the judge alone make the determination
of the admissibility of the evidence.  The jury is to play no role in
determining the admissibility of the statements.”  Id. at 579-80.
The “prima facie” test which was used when the jury had a role in determining the
use of the statements under the ruling of the United States v. Apollo, 476 F.2d 156(5th
Cir. 1973), is no longer appropriate.  See James, supra at 580.
The James Court held:
“... as stated in the Court in Nixon, supra, a declaration by one
defendant is admissible against other defendants only when there
is sufficient showing, by independent evidence, of a conspiracy
among one or more other defendants and the declarant and if the
declarations at issue were in furtherance of that conspiracy;
418 U.S. at 701, 94 S.Ct. At 3104, 41 L.Ed.2d at 1060, and that
‘as a preliminary matter, there must be substantial independent 
evidence of a conspiracy at least enough to take the question to 
the jury.”  Id. p. 581.
This connection of Rule 104(a) Federal Rules of Evidence comports with earlier
Supreme Court Pronouncements that admissibility must depend upon independent
evidence in order to prevent this statement from “lifting itself by its own bootstraps to the 
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level of competent evidence.”  Glasser v. United States, 315 U.S. 60, 75, 86 L.Ed. 680, 
701(1942)
While the Supreme Court in Bourjaily v. United States, 483 U.S. 171, 107 S.Ct.
2775(1987) held that the trial judge may consider the proffered hearsay statements in
determining whether they are admissible under the co-conspirator exception to the
hearsay rule, a pretrial hearing can still serve to prevent unfair prejudice to the defendant
which cannot be overcome by instruction to the jury.  The Court in Bourjaily did not
change the requirements that the conspiracy involve the declarant and the defendant
against whom the statement is offered, or that the statement was made during the course
of and in furtherance of the conspiracy.  Whether all of these requirements are met is still
a preliminary question of fact that under the Federal Rules of Evidence 104(a) shall be
determined by the court using “preponderance of the evidence” as the standard. 
For the court to make these determinations in a hearing prior to the trial will
prevent prejudice to the defendant from the jury’s having heard the inadmissible
evidence.  Further, the court will be better able to determine that the statement was made
by a declarant who was a member of the same conspiracy at the same time as this
defendant which is required for the statement to be admissible.  United States v.
Christopher, 923 F.2d 1545(11th Cir. 1991); United States v. Garcia, 13 F.3rd 1464(11th
Cir. 1994).  This determination became even more involved and critical in a matter as
alleged in the present indictment which contains several co-conspirators and numerous
objects of the conspiracy over a substantial period of time.
As a consequence, a pretrial determination of the existence of a conspiratorial 
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agreement among the parties, if any, is absolutely necessary in order to avoid potential 
prejudice against the Defendant.  Should the government be permitted to introduce
evidence of alleged co-conspirator hearsay subject to “linking it up” with the Defendant,
or simply be required to order its proof, irreparable prejudice necessitating a severance
and mistrial might occur.  In such unusual circumstances, Mr. Okojie respectfully
submits that consideration of substantial fairness and judicial economy dictate that a
pretrial determination of this important issue should be made.
WHEREFORE, Mr. Okojie respectfully requests that this Court conduct a pretrial
hearing to determine the existence of any conspiratorial agreements and to establish his 
connection thereto, if any, and for such and further relief as this court deems just and
proper.
Respectfully submitted, this 15th day of September, 2022.        
/s/John J. Ossick, Jr. 
Georgia Bar Number 555150
JOHN J. OSSICK, JR., P.C.
Post Office Box 1087
Kingsland, Georgia 31548
Telephone:  912-729-5864 
E-mail: ossick@tds.net
Case 4:22-cr-00084-LGW-BWC     Document 38     Filed 09/15/22     Page 5 of 6

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
UNITED STATES OF AMERICA           )
       )
v.
       )
 CASE NUMBER: CR422-0084
       )
BERNARD OKOJIE, 
       )
Defendant 
       )
       )
CERTIFICATE OF SERVICE
This is to certify that I have this day served all parties in this case in accordance
with the directives from the Court Notice of Electronic Filing (“NEF”), which was
generated as a result of electronic filing.
This 15th day of September, 2022.       
/s/John J. Ossick, Jr. 
Georgia Bar Number 555150
JOHN J. OSSICK, JR., P.C.
Post Office Box 1087
Kingsland, Georgia 31548
Telephone:  912-729-5864 
E-mail: ossick@tds.net
Case 4:22-cr-00084-LGW-BWC     Document 38     Filed 09/15/22     Page 6 of 6

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