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Case 1:20-cr-00330-PAE Document 456 Filed 11/12/21 Page4of10 Page 4 With respect to the first prong of this rule, “[t]he conspiracy between the declarant and the defendant need not be identical to any conspiracy that is specifically charged in the indictment” or that is the subject of the relevant trial. /d.; see also United States v. Russo, 302 F.3d 37, 45 (2d Cir. 2002) (explaining that this is because co-conspirator’s statement exception “has its roots in” principles of agency). “In fact, the Second Circuit has held that it is not even necessary that the Government charge a conspiracy to take advantage of Rule 801(d)(2)(E).” United States v. Ulbricht, 79 F. Supp. 3d 466, 483-84 (S.D.N.Y. 2015) (citing United States v. DeVillio, 983 F.2d 1185, 1193 (2d Cir. 1993)); see also United States v. Maldonado-Rivera, 922 F.2d 934, 962 (2d Cir. 1990) (“Though . . . Fed. R. Evid. 801(d)(2)(E) requires proof that both the declarant and the party against whom a declaration is offered be members of the same conspiracy, it does not require that the conspiracy be one charged in the indictment.”), cert. denied sub. nom. Ramirez-Talavera v. United States, 501 U.S. 1211 (1991). To admit a co-conspirator statement made in furtherance of an uncharged conspiracy, the Government must show only that the declarant and the defendant in question were members of a conspiracy that somehow was “‘factually intertwined’” with the charged offenses. See United States v. Stratton, 779 F.2d 820, 829 (2d Cir. 1985) (quoting United States v. Lyles, 593 F.2d 182, 194 (2d Cir. 1979), cert. denied 440 U.S. 972). When determining whether the predicate conspiracy has been established, the Court is not bound by the rules of evidence, see Fed. R. Evid. 104(a), and “the district court may consider the hearsay statement itself” as evidence of “the existence of a conspiracy.” United States v. Padilla, 203 F.3d 156, 161 (2d Cir. 2000) (citing Bourjaily, 483 U.S. at 181). Moreover, although Rule 801(d)(2)(E) “requires that both the declarant and the party against whom the statement is offered be members of the conspiracy, there is no requirement that the person to whom the statement is DOJ-OGR-00006956