What is the test for admitting testimony under Rule 801(d)(2)(E)?

Rule 801(d)(2)(E) provides in relevant part that "[a] statement is not hearsay if ... [t]he statement is offered against a party and is ... a statement by a coconspirator of a party during the course and in furtherance of the conspiracy." Before the court may admit testimony under this rule, the government has the burden of proving by a preponderance of evidence (1) the existence of a conspiracy, and (2) that the proffered statement was made during the course of the conspiracy and in furtherance of the objectives of the conspiracy. See Bourjaily v. United States, 483 U.S. 171, 175 (1987); United States v. Smith, 893 F.2d 1573, 1578 (9th Cir.1990). Although the trial court may consider the hearsay statement in determining whether a conspiracy existed, the court must find some "independent proof" of the existence of the conspiracy. Smith, 893 F.2d at 1578; accord United States v. Gordon, 844 F.2d 1397, 1402 (9th Cir.1988).

2. Standard of review