“Continuing-Conspiracy” Doctrine Reaffirmed: Post-Arrest Co-Conspirator Statements Admissible under Rule 801(d)(2)(E)
Comprehensive Commentary on United States v. Diego Fagundez (11th Cir. 2025)

I. Introduction

United States v. Diego Fagundez, No. 24-12147 (11th Cir. Aug. 8, 2025), presented the Eleventh Circuit with a familiar trilogy of appellate challenges in narcotics prosecutions: (1) evidentiary objections to the admission of co-conspirator statements, (2) confrontation-clause complaints about statements made after a conspirator’s arrest and cooperation with law enforcement, and (3) disputes over the quantity of drugs attributable to the defendant for sentencing purposes.

At its core, the appeal forced the Court to decide whether a conspiracy “ends” for evidentiary purposes once one member is arrested and decides to cooperate, and whether statements made by other conspirators thereafter are still “in furtherance of” the conspiracy. The panel (Judges Jill Pryor, Brasher, & Black) answered in the affirmative, thereby strengthening what practitioners have dubbed the “continuing-conspiracy” doctrine. The opinion also reaffirmed the Eleventh Circuit’s liberal approach to drug-quantity findings at sentencing.

II. Summary of the Judgment

The Court affirmed both the conviction and 235-month sentence of Diego Fagundez for conspiring to distribute 50 grams or more of methamphetamine, rejecting all three grounds of appeal:

1. Evidentiary Ruling: The district court did not abuse its discretion in admitting numerous text messages and phone calls between two alleged co-conspirators, Ryan Nance and Eduardo “Shorty” Cervantes, under Federal Rule of Evidence 801(d)(2)(E).
2. Post-Arrest Statements: Even statements made after Nance’s arrest (when he began cooperating with law-enforcement) remained admissible because the conspiracy between Cervantes and Fagundez continued. Any arguable error was harmless beyond a reasonable doubt.
3. Drug Quantity: The district judge’s finding that 5.963 kilograms of methamphetamine were attributable to Fagundez was a “conservative estimate,” far from clearly erroneous.

III. Detailed Analysis

A. Precedents Cited & Their Influence

• United States v. Holland, 117 F.4th 1352 (11th Cir. 2024) – Clarifies that “conspiracy” for Rule 801(d)(2)(E) equates to “an arrangement to work together toward a shared goal,” endorsing a broad sweep. The panel leaned on Holland’s wording to emphasize that informal, fluid collaborations still count as conspiracies.
• United States v. Underwood, 446 F.3d 1340 (11th Cir. 2006) – Restates the three-part test (existence, membership, in-furtherance) for admitting co-conspirator statements; the Court recited Underwood verbatim, then layered the current facts onto its framework.
• United States v. Wenxia Man, 891 F.3d 1253 (11th Cir. 2018) – Supplies two helpful doctrines: (i) district courts may conditionally admit statements and later tie up the evidentiary foundation; (ii) a government informant can serve as “connecting link” between conspirators. These concepts justified the district court’s sequence of proof and undermined defendant’s claim that Nance’s cooperation broke the conspiracy.
• United States v. Casamayor, 837 F.2d 1509 (11th Cir. 1988) – The seminal Eleventh Circuit case holding that a conspirator’s arrest does not dissolve the conspiracy as to the remaining actors. Cited to reinforce the “continuing-conspiracy” rationale that undergirds today’s decision.
• United States v. Curbelo, 726 F.3d 1260 (11th Cir. 2013) & United States v. Carter, 776 F.3d 1309 (11th Cir. 2015) – Provide the governing harmless-error tests (constitutional vs. non-constitutional) and highlight that a testifying declarant’s statements ordinarily do not violate the Confrontation Clause.
• United States v. Dixon, 901 F.3d 1322 (11th Cir. 2018) – Reaffirms that drug-quantity findings can rest on “fair, accurate, and conservative” approximations; used here to bless the 5.963-kilogram attribution.

B. The Court’s Legal Reasoning

1. Rule 801(d)(2)(E) & The “During and In Furtherance” Requirement

Rule 801(d)(2)(E) states that a statement “made by the party’s co-conspirator during and in furtherance of the conspiracy” is not hearsay. The Court emphasized two crucial interpretive points:

• Low evidentiary threshold: The government only needs a preponderance of the evidence to show the three Underwood elements.
• Liberal “in-furtherance” standard: Following Wenxia Man, the Court reiterated that even statements identifying participants, updating status, or preserving trust can further the conspiracy.

Applying these principles, the Court deemed the dozens of Nance–Cervantes communications replete with coded but intelligible references to methamphetamine transactions and “Diego” (Fagundez) as easily satisfying the liberal test.

2. Post-Arrest Statements & The Continuing-Conspiracy Doctrine

The novel issue was whether statements made after Nance’s arrest could still qualify under Rule 801(d)(2)(E). The Court held they can, borrowing heavily from Casamayor:

• When a conspirator is arrested and turns informant, “there can be no conspiracy between the informant and a solo defendant,” but the arrest does not dissolve the conspiracy among the remaining conspirators.
• Here, Cervantes and Fagundez continued trafficking; Nance served merely as a bridge, and Cervantes’ statements were aimed at advancing the ongoing enterprise (e.g., collecting payment, ensuring delivery).

A potential Confrontation-Clause issue was avoided because both declarants (Nance and Cervantes) testified at trial, rendering their own out-of-court statements non-testimonial for Sixth Amendment purposes under Curbelo.

3. Harmless-Error Analysis

Assuming, arguendo, that admitting Nance’s cooperating statements was hearsay error, the Court concluded the error was harmless under both the constitutional “beyond a reasonable doubt” standard and the non-constitutional “no more than a very slight effect” standard because of the “voluminous” alternative evidence. The panel’s recounting of independent proof (officer surveillance, methamphetamine seizure, and Nance’s in-court testimony) is a blueprint for showing harmlessness in future cases.

4. Drug-Quantity Findings

The Court deferred to the district judge’s “conservative” extrapolation: 3.963 kg seized on December 13 + 2 kg estimated from earlier weekly transactions. Invoking Dixon, the Court stressed two points:

• District courts may approximate when seized amounts do not reflect the true scale.
• Only “speculative” estimates are forbidden; conservative, witness-based estimates are acceptable.

C. Anticipated Impact on Future Litigation

1. Admissibility of Post-Arrest Communications. Prosecutors in the Eleventh Circuit now have explicit appellate blessing to introduce communications occurring after one conspirator has flipped, so long as at least two conspirators continue their unlawful plan.
2. Evidentiary Streamlining. The decision encourages district judges to conditionally admit conversations early, trusting that prosecutors will later satisfy the Underwood test, thereby streamlining lengthy drug trials.
3. Confrontation Clause Litigation. Defendants face higher hurdles to exclude co-conspirator statements when the declarant is available and testifies, even if the statement was made post-arrest or in cooperation with law enforcement.
4. Sentencing Dynamics. By endorsing a modest extrapolation of weekly drug transactions, the Court affirms that conservative but inferential estimates will withstand clear-error review, likely influencing plea-bargain leverage and trial strategy in multi-kilogram cases.

IV. Complex Concepts Simplified

• Hearsay: An out-of-court statement offered to prove the truth of what is asserted. Generally inadmissible unless it falls within an exception or exclusion (Rule 801–804).
• Rule 801(d)(2)(E): Excludes from the hearsay ban any statement by a co-conspirator made during and in furtherance of the conspiracy. Notably, it is an exclusion, not an exception, meaning such statements are categorically non-hearsay.
• In Furtherance: A statement that maintains trust, facilitates payment, requests assistance, or conceals the conspiracy typically qualifies.
• Confrontation Clause: Sixth Amendment right allowing a defendant to cross-examine testimonial witnesses. If the declarant testifies at trial, that right is satisfied.
• Harmless Error: A trial error that does not affect the outcome. Constitutional errors require proof “beyond a reasonable doubt” that the verdict would stand; non-constitutional errors require only that the effect be “very slight.”
• Approximation of Drug Quantity: When physical seizure understates scale, courts can estimate using testimony, surveillance, or transactional patterns, but must avoid guesswork detached from evidence.

V. Conclusion

United States v. Diego Fagundez cements the Eleventh Circuit’s expansive approach to admitting co-conspirator statements, even after one conspirator’s arrest, under what this commentary dubs the “continuing-conspiracy” doctrine. The decision harmonizes Rule 801(d)(2)(E), the Confrontation Clause, and sentencing methodology, providing prosecutors with a potent evidentiary tool while offering district courts clear guidance on drug-quantity findings. Defense counsel navigating multi-defendant drug conspiracies must now contend with an authoritative precedent that renders post-arrest communications—and conservative kilogram approximations—remarkably resilient on appeal.