The opinion of the court was delivered by: Garaufis, United States District Judge.
This Memorandum and Order ("M&O") shall address the motion in limine by defendant Anthony Basile ("Defendant" or "Basile") to preclude hearsay statements by cooperating witness Frank Lino that allege Basile's involvement in loansharking activities. Specifically, the Government will seek to admit testimony by Frank Lino, a cooperating witness, that while he and Robert Lino were incarcerated together, Robert Lino said that he and Basile engaged in loansharking, and that they both lent money to the same customer. (Basile's Mem. Supp. Mot. Exclude, at 1-2.) Basile asserts that this testimony lies outside Fed. R. Evid. 801(d)(2) regarding coconspirator statements, that it contains impermissible multiple hearsay, and that its admission would violate Basile's Confrontation Clause rights. (Id. at 2-3.) For the reasons set forth below, Basile's motion is DENIED. Knowledge of the factual background of this motion is presumed.
"Although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the district court's inherent authority to manage the course of trials." Luce v. United States, 469 U.S. 38, 41 n.4 (1984). "Evidence should be excluded on a motion in limine only when the evidence is clearly inadmissible on all potential grounds. Wechsler v. Hunt Health Sys., Ltd., 381 F. Supp. 2d 135, 140 (S.D.N.Y. 2003).A district court's ruling on a motion in limine is "subject to change when the case unfolds, particularly if the actual testimony differs from what was contained in the . . . proffer." Luce, 469 U.S. at 41.
1. Coconspirator Statement
"[A] statement by a coconspirator of a party during the course and in furtherance of the conspiracy" is not hearsay. Fed. R. Evid. 801(d)(2)(E). The Second Circuit instructs that a party seeking the admission of a statement under Rule 801(d)(2)(E) must show by: a preponderance of evidence independent of the proffered statements demonstrating that there was a conspiracy, that the declarant and the person against whom the statement is offered belonged to the conspiracy, and that the statements were made during the course of and in furtherance of the conspiracy.
United States v. Stewart, 433 F.3d 273, 291 (2d Cir. 2006) (citing United States v. Alameh, 341 F.3d 167, 176-77 (2d Cir. 2003)); Fed. R. Evid. 104(a), 801(d)(2). While the trial judge can consider the proffered statement itself in determining its admissibility, Bourjaily v. United States, 483 U.S. 171, 181 (1989), the statement alone is "not alone sufficient to establish the existence of the conspiracy and the participation therein of the declarant, and the party against whom the statement is offered . . . ." Fed. R. Evid. 801(d)(2). To be considered "in furtherance" of the conspiracy, the statement must "promote or [be] . . . intended to promote the goals of the conspiracy." United States v. Beech-Nut Nutrition Corp., 871 F.2d 1181, 1199 (2d Cir. 1989).
2. Hearsay Within Hearsay
"Each hearsay statement within multiple hearsay statements must have a hearsay exception in order to be admissible." United States v. Cruz, 894 F.2d 41, 44 (2d Cir. 1990) (citing Fed. R. Evid. 805). A party seeking admission of coconspirator statements that contain multiple hearsay must show the Rule 801(d)(2)(E) elements for each layer of hearsay. Pittman by Pittman v. Grayson, 149 F.3d 111, 124 (2d Cir. 1998); United States v. Cruz, 910 F.2d 1072, 1082 (3d Cir. 1990), cert. denied, 111 S.Ct. 709 (1991).
In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held that certain 'testimonial' statements admitted against a defendant without that defendant's ability to cross-examine the declarant would constitute a violation of the Confrontation Clause. One category of inadmissible testimonial statements are those "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Id. at 52. However, "statements in furtherance of a conspiracy [are] generally not testimonial and [are] exceptions to the hearsay rule [and] encounter no Confrontation Clause obstacle." Stewart, 433 F.3d at 292.
I first consider whether the Government has shown by a preponderance of the evidence (1) a conspiracy, (2) the declarant and defendant belonged to the conspiracy, and that the statement was made (3) in the course of and (4) in furtherance of the conspiracy. Fed. R. Evid. ...