What is the test for admitting a co-conspirator's statement against a defendant?

Romero next challenges the district court's admission of the co-conspirators' statements against him, on the basis that there was insufficient evidence to establish his connection to the conspiracy. Such fact-based challenges to the district court's ruling on co-conspirators' statements are reviewed for clear error. United States v. Vowiell, 869 F.2d 1264, 1267 (9th Cir.1989).

Federal Rule of Evidence (FRE) 801(d)(2)(E) provides for admission of hearsay against a party if it is "a statement by a coconspirator of a party during the course and in furtherance of the conspiracy." Such out-of-court statements are only admissible after the government establishes by a preponderance of the evidence that 1) a conspiracy existed and that 2) the defendant was connected to it. Bourjaily v. United States, 483 U.S. 171, 175 (1987). In determining whether the government has established a defendant's connection to the conspiracy, the district court may consider the out-of-court statement, along with all other evidence. Id. at 181. The out-of-court statement standing alone, however, is insufficient to establish participation in the conspiracy. United States v. Silverman, 861 F.2d 571, 577 (9th Cir.1988).