A favorite blog – federalevidencereview – has this:
Second Circuit confirms that statements made by a co-conspirator to an undercover agent may be admitted without violating the Confrontation Clause where the co-conspirator “was unaware that he was speaking to agents for the government or that his statements might later be used at a trial,” in United States v. Sabir, _F.3d _ (2d Cir. Feb. 4, 2011) (Nos. 07-5531-CR CON, 07-1968-CR L)
Under what circumstances can co-conspirator statements under FRE 801(d)(2)(E)made to an undercover agent, which are obtained during an ongoing investigation, be admitted without violating the Confrontation Clause under the Sixth Amendment. The Second Circuit recently relied on a prior decision of then-Circuit Judge Sotomayor to address this issue.
This makes sense in situations where the accused doesn’t know that the person he’s talking with is law enforcement or perhaps a nark.