Motion for Pretrial Ruling on Existence of a Conspiracy and Admissibility of Co-Conspirator Statements — United States v. Ryan Macaulay (Dkt. 35)

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Defendant Ryan Macaulay's Motion for Pretrial Ruling on Existence of a Conspiracy and Admissibility of Co-Conspirator Statements, Case No. 24-cr-180-PTG-2, Document 35, filed October 25, 2024, in the United States District Court for the Eastern District of Virginia. Macaulay, by and through undersigned counsel, asks the Court to conduct a pretrial hearing on the existence of a conspiracy and on the admissibility of statements of alleged co-conspirators under Federal Rule of Evidence 801(d)(2)(E). The motion states that he is charged by Indictment with Conspiracy to Commit Bank Fraud, in violation of 18 U.S.C. § 1349, and other offenses. It argues that the issue should be decided before trial because of the prejudice a jury's reliance on co-conspirator statements could cause.

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“Motion for Pretrial Ruling on Existence of a Conspiracy and Admissibility of Co-Conspirator Statements — United States v. Ryan Macaulay (Dkt. 35).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/gov-uscourts-vaed-558615-35-0-e5b1eafd8b/, SHA-256 87817bb900fe27bdb5d69f02c6ec9f3c067b0b2fa15581144c8981876739e564.

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Case 1:24-cr-00180-PTG Document 35 Filed 10/25/24 Page 1 of 4 PageID# 140

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA

)
UNITED STATES )
)
v. )
) Case No. 24-cr-180-PTG-2
RYAN MACAULAY )
)
____________________________________)

MOTION FOR PRETRIAL RULING ON EXISTENCE OF A CONPIRACY AND
ADMISSIBILITY OF CO-CONSPIRATOR STATEMENTS

Defendant Ryan Macaulay, by and through undersigned counsel, respectfully moves this

Court to conduct a pretrial hearing to determine the existence of a conspiracy and to determine

the admissibility of any statements of alleged co-conspirators pursuant to Fed. R. Evid.

801(d)(2)(E). Mr. Macaulay is before this Court charged by Indictment with Conspiracy to

Commit Bank Fraud, in violation of 18 U.S.C. § 1349, Bank Fraud, in violation of 18 U.S.C. §

1344, Conspiracy to Commit Money Laundering, in violation of 18 U.S.C. § 1956(h), and

Money Laundering-Unlawful Monetary Transactions, in violation of 18 U.S.C. § 1957. See Dkt.

No. 1.

LAW AND ARGUMENT

Federal Rule of Evidence 801(d)(2)(E) provides that a statement is not hearsay if it is

offered against a party and is a statement made by a co-conspirator or party during the course of

and in furtherance of the conspiracy. The Fourth Circuit has held that such a statement is

admissible if the Court finds “(1) that there was a conspiracy involving the declarant and the

party against whom admission of the evidence is sought and (2) that the statements at issue were

made during the course of and in furtherance of that conspiracy.” United States v. Blevins, 960
Case 1:24-cr-00180-PTG Document 35 Filed 10/25/24 Page 2 of 4 PageID# 141

F.2d 1252, 1255 (4th Cir. 1992); see also United States v. Squillacote, 221 F.3d 542, 563 (4th

Cir. 2000).

Although the Fourth Circuit does not adhere to a “formalistic requirement” that a

conspiracy be determined before the statements can be conditionally admitted, see Blevins at

1256, “the better practice is for the Court to determine before the hearsay is admitted that the

evidence independent of the hearsay testimony proves the existence of a conspiracy sufficiently

to justify the admission of the hearsay declaration,” see United States v. Jackson, 627 F.2d 1198,

1219 (D.C. Cir. 1980). (citing United States v. James, 590 F.2d 575, 582 (5th Cir. 1979), cert.

denied, 442 U.S. 917; United States v. Macklin, 573, F.2d 1046, 1049 n.3 (8th Cir. 1978); United

States v. Petrozziello, 548 F.2d 20, 23 n.3 (1st Cir. 1977)); see also Fed. R. Evid. 104. These

procedures need to precede the trial because of the degree of prejudice Mr. Macaulay will suffer

if a jury were to rely on a co-conspirator’s statements without the court first addressing and

deciding the admissibility question. See United States v. James, supra.

More importantly, the co-conspirator or party must have made the statement “in the

course of and in furtherance of the conspiracy.” See Bourjaily v. United States, 483 U.S. 171

(1987). The party seeking introduction must show the existence of the conspiracy and the

declarant’s role in the conspiracy through independent evidence but may supplement that

evidence with the statements of the declarant. United States v. Afridi, 241 F. App'x 81, 84 (4th

Cir. 2007). In resolving these preliminary facts, the Court may consider all evidence before it,

whether admissible at trial or not, including the co-conspirator statements sought to be admitted.

Bourjaily, 483 U.S. at 176-81. This places a considerable burden on the government to overcome

the presumption of unreliability that attaches to all out-of-court statements while at the same time

producing sufficient evidence to prove by a preponderance of the evidence that a conspiracy did,

2
Case 1:24-cr-00180-PTG Document 35 Filed 10/25/24 Page 3 of 4 PageID# 142

in fact, exist. Id. In reaching its decision, the Court may exercise its wide range of power to

remove Mr. Macaulay from an atmosphere that will cloud a jury’s judgment on the facts alone.

The Supreme Court made clear that under Rule 104(a) of the Federal Rules of

Evidence courts can make decisions on preliminary questions of admissibility of evidence,

including co-conspirator statements under Rule 801(d)(2)(E). Fed. R. of Evid. 104(a); Bourjaily,

483 U.S. at 180-181. As Judge Weinstein commented:

It is the contention of the treatise that a fair and practicable method of protection
to the defendant without violating the letter or spirit of the rule relies in insisting
on a stringent standard of proof before the Court admits a co-conspirator’s statement
in a criminal case. Only if the Court is convinced to a higher degree of probability,
considering hearsay as well as no-hearsay evidence of the conspiracy, of the
defendants’ membership and the statement was made during the course of and in
furtherance thereof should it be admitted.

Weinstein, EVIDENCE §104.

The admissibility of a co-conspirator’s declaration in a conspiracy trial poses problems

precisely 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. As a result, such

statements should be evaluated by the trained legal mind of the trial judge pretrial.

WHEREFORE, for the foregoing reasons, and any others the court may deem

appropriate, Ryan Macaulay requests that this Court conduct a pretrial hearing to determine the

existence of a conspiracy and to determine the admissibility of any statements of alleged co-

conspirators pursuant to Fed. R. Evid. 801(d)(2)(E).

3
Case 1:24-cr-00180-PTG Document 35 Filed 10/25/24 Page 4 of 4 PageID# 143

Respectfully Submitted,

__________/s/___________________
David Benowitz
VSB # 91194
Rammy G. Barbari
VSB # 88414
Price Benowitz LLP
409 7th Street, NW, Suite 200
Washington, D.C. 20004
Tel: 202-271-5249
Tel: 202-870-0139
Fax: 202-664-1331
david@pricebenowitz.com
rammy@pricebenowitz.com

Counsel for Ryan Macaulay

CERTIFICATE OF SERVICE

I hereby certify that on this 25th day of October 2024, a true and correct copy of the

foregoing Defendant’s Motion has been served via CM/ECF to all parties in this matter.

____/s/__________________________
David Benowitz

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