STATE OF NEW JERSEY v. ROBERT K. THOMPSON HAROLD E FOX and DAVID M. GAVIN -

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4580-10T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

ROBERT K. THOMPSON, HAROLD E.

FOX and DAVID M. GAVIN,

Defendants-Respondents.

_____________________________

October 26, 2011

 

Argued September 12, 2011 - Decided

 

Before Judges Parrillo, Grall and

Alvarez.

 

On appeal from Superior Court of New

Jersey, Law Division, Mercer County,

Indictment No. 06-08-0090.

 

Thomas R. Clark, Deputy Attorney

General, argued the cause for appellant

(Paula T. Dow, Attorney General, attorney;

Mr. Clark, of counsel; Steven J. Zweig, Frank J. Ducoat, and Hillary Horton, Deputy

Attorneys General, on the brief).

 

Robert S. Bonney, Jr. argued the cause

for respondent Harold E. Fox (Lomurro, Davison, Eastman & Munoz, PA, attorneys;

Mr. Bonney and Matthew K. Blaine, on the brief).

 

Charles E. Waldron, attorney for

respondent David M. Gavin joins in the

brief of respondent Harold E. Fox.

 

PER CURIAM

This is an interlocutory appeal from a pre-trial order in a criminal prosecution for official misconduct. The indictment charges employees of the New Jersey Department of Treasury (Treasury) and OSI Collection Services, Inc. (OSI), which provided a variety of tax-collection services through various contracts with Treasury between 1995 and 2007. The prosecution is based on allegations that some of Treasury's employees accepted personal benefits such as meals, drinks and entertainment from OSI employees and improperly performed their official duties related to the award, extension and administration of OSI's contracts. State v. Thompson, 402 N.J. Super. 177, 182, 184 (App. Div. 2008). By order of the trial court, affirmed as modified on a prior interlocutory appeal, the forty-two-count indictment is now limited to six counts. Id. at 181-82.

Defendant Harold E. Fox, formerly the deputy director of Treasury's Division of Taxation, and David M. Gavin, the assistant director of Taxation's compliance activity are charged together in one remaining count.1 The charge against Fox and Gavin is official misconduct in violation of N.J.S.A. 2C:30-2a and N.J.S.A. 2C:2-6. More particularly, this count alleges their participation in selecting members of a committee that evaluated bids on a contract for collection of delinquent taxes awarded to OSI in 2004, with a purpose to benefit themselves or others and with knowledge that their conduct was unauthorized. See Thompson, supra, 402 N.J. Super. at 183, 186-87. According to the State, an e-mail written by Gavin on May 7, 2004 is "the basis for" its case against Fox; it concerns appointment of the committee members.

On this appeal, the State challenges an order precluding the use of hearsay statements made by Gavin in the May 7 e-mail

as proof of Fox's guilt. The State contends that the statements are not excluded because they fall within N.J.R.E. 803(b)(3)-(5).2 For the reasons stated below, we affirm. I

Treasury's Division of Taxation collects taxes, and to accomplish that Taxation uses and oversees OSI's tax-collection services. As noted above, Gavin and Fox were employed in Taxation. Although Fox and Gavin were subordinate to the Director of Taxation, Robert K. Thompson, Fox was Gavin's superior and rated his performance. As the assistant director of compliance activity in Taxation, Gavin and employees assigned to compliance were expected to supervise and work with OSI employees. Between 1995 and 2004, OSI or its predecessor collected delinquent taxes pursuant to contracts with the State.

The State acknowledges that it has no direct evidence that Fox ever accepted a personal benefit from OSI, and relies on evidence indicating that Gavin and others in Taxation did. Because OSI's contract to recover delinquent taxes would expire in July 2004, toward the end of 2003 employees in two divisions of Treasury began the steps to award a new three-year contract for delinquent tax-collection services.

Treasury's Division of Purchase and Property oversees the award of State contracts for services. Because of the cost and nature of the contract, the Director of the Division of Purchase and Property would award it to the "responsible bidder whose [conforming] bid . . . will be most advantageous to the State, price and other factors considered." N.J.S.A. 52:34-12g.

As explained in documents submitted to the trial court, the first step for the State in the process of procuring contracts for services is preparation of a request for proposal (RFP) used to solicit bids. RFPs are developed by the Purchase Bureau in the Division of Purchase and Property and the State agency or agencies using the service, in this case Taxation. David Kern, a senior buyer in Treasury's Bureau of Purchase in the Division of Purchase and Property, was assigned as the Purchase Bureau's senior buyer for this contract.

In December 2003, Gavin was working on a RFP for the delinquent tax contract. He sent a revised version of the RFP to Linda Eagleton and Steven Itell, employees in the compliance section that reported to Gavin and worked with OSI, and asked for their suggestions. Gavin copied Fox on that e-mail, and on January 6, 2004, Gavin sent Fox a draft RFP. In the e-mail, Gavin pointed to a provision of the RFP addressing start-up time and observed that it favored OSI because OSI would not need any start-up time. Gavin invited Fox's "comments, edits etc." There is no direct evidence of a response from Fox on that draft. Gavin sent another e-mail to Fox on February 5, providing him with a copy of a RFP that he had "just sent" to the Purchase Bureau.

On February 17, 2004, Kern, as the senior buyer for the Purchase Bureau, sent Gavin a timeline that called for delivery of the RFP that day. Kern asked Gavin to review the Purchase Bureau's report on Taxation's RFP and reply with comments. Later that day, Gavin forwarded Kern's e-mail to Fox, noted that there were "no real changes" and said he intended to write Kern to clarify that the contract was for an hourly not a contingent fee. Fox responded, reminding Gavin of a conversation they had with their director, Thompson, about a penalty provision to apply if the contractor failed to meet performance levels for minimum guaranteed collections. Fox noted that the provision in the draft RFP was not an adequate penalty.

On February 20, 2004, Fox asked counsel for Taxation to meet with him and Thompson to discuss use of an hourly rather than a contingency fee. Fox did not copy Gavin on that e-mail. The attorney agreed to meet, and on March 3 she sent a revised provision on liquidated damages to Fox and Thompson. Fox approved the draft, and on March 4 the attorney sent it to an acting chief in the Division of Purchase and Property, inviting the chief's comments. The attorney copied Gavin on that e-mail.

Between March 4 and April 13, 2004, Gavin communicated with Kern, the acting chief, and Taxation's counsel. Fox was not a recipient of any of those e-mails.

On April 14, 2004, Gavin e-mailed Kern and advised the RFP had been reviewed and revised to state "guaranteed minimum amounts . . . to further protect [the] State's interest." Gavin copied Fox on that e-mail. Kern returned the RFP to Gavin with marginal comments on May 4 and sought his reaction. Gavin sent the marked-up copy to Fox, bringing Fox's attention to comments Gavin had highlighted and saying he would "refrain from comment until" Fox looked at the provisions. The employees from the Department of Purchase and Property questioned the justification for the high guaranteed minimums stated in the RFP.

On May 5, 2004, Kern wrote to the acting chief of Purchase and Property. Kern advised the chief that he had told Gavin the RFP "was weighted to[o] much in the favor of the incumbent." He also reported that Gavin had asked for a meeting to discuss the issue with the acting chief. Kern asked the chief to schedule one, and she suggested a meeting the next day. Although no one from Taxation was copied on either of those e-mails, the chief has notes indicating a May 6 meeting with Gavin and Fox on a contract for tax-collection services.

On the morning of May 7, 2004, Kern e-mailed Gavin and asked him to "decide on four (4) members to participate on the committee" that would evaluate the bids returned on delinquent tax recovery RFP. Fox was not copied.

The record includes the following description of a bid evaluation committee and its role in the process of awarding a contract. Prior to receipt of bid proposals, the Director of the Division of Purchase and Property decides whether to appoint an evaluation committee to review bids and make a recommendation on award of the contract. If an evaluation committee is used, the director may accept or reject its recommendation in making the final decision. The committee members are "generally State employees." Ordinarily, there are five members: one from the Purchase Bureau, who serves as the committee chair; one or more from the agency or agencies that will use the service and have pertinent expertise, one of whom will draft the committee report; and one or more State employees "from an agency not directly affiliated with the [u]sing [a]gency," to "provide an objective outlook . . . or an area of expertise not directly available within a using agency."

As the senior buyer, Kern was to serve as the member from the Purchase Bureau. After receiving Kern's e-mail, Gavin sent the May 7, 2004 e-mail at issue on this appeal to four employees who were later appointed to complete its membership. The four employees were: two Eagleton and Itell who worked for Gavin in the compliance section of the Division of Taxation, the using agency, and had worked with OSI under the prior contract; the other two Marguerite Desantis and Maria Salamandra worked in Treasury's Division of Revenue, which manages the State's receipts and accounts receivable. There is no evidence indicating that Desantis or Salamandra worked directly with employees in Taxation or OSI's employees.

Gavin wrote:

I have discussed the evaluation committee selections for the DEL RFP with Harry. We agree that you would be excellent representatives based on your overall knowledge and expertise with contracts. Representation from two Divisions also is in keeping with the goal of fair and impartial review. Harry has touched base with Revenue Deputy Jim Fruscione regarding Maria and Marguerite serving on the committee. Please sign the Evaluation Committee member Acknowledgment & Certification sheet contained in the attachment and return to me as soon as possible. I will keep you informed as we move on. We appreciate your help.

 

Gavin copied Fox on this e-mail.

Salamandra forwarded a copy of Gavin's e-mail to her deputy director, James Fruscione. But Fruscione has no recollection of a conversation with Fox on the issue.

Long before this e-mail, in January 2003, Gavin had written to Fox asking whether it would "be better" for neither of them to get involved in the "OSI delinquency" when it comes up. Fox agreed that they could not be "part of the evaluation team for the delinquency contract[s]."

The State acknowledges that it has no direct evidence that Fox ever accepted a personal benefit from OSI. A State investigator who interviewed Fox testified at a preliminary hearing and indicated that he said he had received a gift basket that he returned. She also "believed" he said that he had beers with OSI employees, sometimes they picked up the tab and sometimes he did. Fox also said he attended a conference, or "maybe more than one," where he had dinners paid for by OSI.

There is evidence indicating that Gavin accepted meals, drinks and a golf outing paid for by OSI. Eagleton and Itell told an investigator that Gavin encouraged them to have dinner and lunch with OSI employees, which they did on occasion and reluctantly. They reported that Gavin, but not Fox, attended.

II

A

The State seeks leave to use this e-mail to establish Fox's conduct in connection with the appointment of members of the valuation committee: Fox "discussed the evaluation committee selections" with Gavin; Fox agreed with Gavin that the recipients "would be excellent representatives based on [their] overall knowledge and expertise with contracts"; and Fox contacted "Revenue Deputy Jim Fruscione" to pave the way for that deputy's subordinates, Desantis and Salamandra, to serve as members. Because the State offers the e-mail to prove the truth of the facts Gavin asserted at a time when he was not testifying, it is hearsay. N.J.R.E. 801(c). Gavin's e-mail includes additional hearsay, statements Fox allegedly made to Gavin while Fox was not testifying. N.J.R.E. 801(c). That included hearsay, Fox's statement, would be admissible through Gavin's testimony at trial as a statement made by a party opponent pursuant to N.J.R.E. 803(b)(1), and it is not at issue.

As the proponent of Gavin's May 7 e-mail, the State relies on the provisions of N.J.R.E. 803(b) that identify statements that "are not excluded by the hearsay rule" and are excepted from its scope as a vicarious statement of a party opponent. The State claims that it is admissible under three exceptions for vicarious statements:

(3) a statement by a person authorized by the party to make a statement concerning the subject, or

 

(4) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or

 

(5) a statement made at the time the party and the declarant were participating in a plan to commit a crime or civil wrong and the statement was made in furtherance of that plan.

 

[N.J.R.E. 803(b)(3)-(5).]

B

The standard for our review is clear. "In reviewing a trial court's evidential ruling, an appellate court is limited to examining the decision for abuse of discretion." Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008). Moreover, where, as here, the question is admission of a hearsay statement made by someone other than the defendant about the defendant's thoughts, the trial court is expected to act with circumspection. See State v. McLaughlin, 205 N.J. 185, 205 (2011) (discussing hearsay offered to show defendant's state of mind on a future event); State v. Brown, 170 N.J. 138, 156 (2001) (noting that "extra caution must be exercised when deciding whether a hearsay statement should be admissible as evidence under the adoptive admissions exception"; that exception addresses statements, that like Gavin's e-mail, are made by a declarant other than the party against whom it is admitted, N.J.R.E. 803(b)(2)).

To admit the hearsay, the trial court must be satisfied that the conditions of admissibility are established by a fair preponderance of the evidence and reasonable inferences. N.J.R.E. 104(a); see State v. Phelps, 96 N.J. 500, 505, 507-13, 519 (1984) (discussing co-conspirator exception now stated in N.J.R.E. 803(b)(5)).3 The proponent has the burden of proof. Id. at 518-19. The drawing of an inference is a question of "'logic and common sense.'" State v. Samuels, 189 N.J. 236, 246 (2007) (quoting State v. Powell, 84 N.J. 305, 314 (1980)). Inferences may be "based upon probabilities" but not "surmise and conjecture." Wilson v. Winstead, 470 F. Supp. 263, 268 (E.D. Tenn. 1978).

The trial court's inquiry as to the existence of conditions permitting admission of hearsay is factual in that it requires an evaluation of the evidence relevant to the requisite conditions. Assuming that the trial court properly understood the prerequisite conditions, a reviewing court does not "substitute its own judgment for that of the trial court, unless the trial court's ruling was so wide of the mark that a manifest denial of justice resulted." Brown, supra, 170 N.J. at 147 (internal quotation marks omitted).

The State argues that we should review the matter de novo because the trial court, contrary to the law, did not consider the content of the e-mail along with the other evidence in determining whether the conditions for admission were established. That argument does not require extensive comment, because the trial court's written opinion demonstrates consideration of the content of the statements. While the court did not draw the inferences the State urged as to the law, the court accurately set forth and applied the rules stated in Phelps, supra, 96 N.J. at 509-11.

To the extent the State argues that the conditions for admission of hearsay statements may be established with reference to the statement at issue alone, the State is mistaken. See id. at 510. For that proposition, the State relies on a question the United States Supreme Court left open in Bourjaily v. United States, 483 U.S. 171, 107 S. Ct. 2775, 97 L. Ed. 2d 144 (1987), but the federal evidence rule the Court applied has since been revised to require consideration of the statement and state that the conditions for admission cannot be established by the statement alone. Fed. R. Evid. 801(d)(2); see Fed. R. Evid. 801 advisory committee's note.4 In this State independent evidence is essential, and, if it is "substantial" the court may also consider the hearsay at issue if the court decides it is "reliable and trustworthy." Phelps, supra, 96 N.J. at 511, 518-19. Thus, even if the hearsay statements alone were adequate, which it is not, it would not be sufficient to establish the conditions for admission under either federal or State law.

The question for us is whether in light of the evidence in addition to the hearsay statement, the trial court was clearly mistaken in concluding that the State failed to establish the conditions for admission. Having resolved the common questions, we consider the trial court's rulings on the three exceptions at issue separately below.

III

A

We find no abuse of discretion in the trial court's decision to preclude admission of the e-mail on the ground that Gavin was not "authorized by Fox to make a statement concerning the recipients' appointment to the evaluation committee. N.J.R.E. 803(b)(3). The trial court's findings can be summarized as follows. Although employed in the Division of Taxation and one of Fox's several assistant directors, Gavin was working with Kern, an employee of the Division of Purchase and Property, on the bidding of the RFP. Kern was the senior buyer on the project, and Kern asked Gavin to provide a list of prospective committee members, without any notice to Fox. Kern's request demonstrated confidence that Gavin could perform the task of naming four members of the committee, which Kern would chair, without consulting Fox or Thompson. In the court's view, evidence tending to show Fox's participation in drafting the RFP, even assuming a motive and action leading to an RFP favorable to OSI, was not evidence indicative of Fox's role in the appointment of members of the bid-evaluation committee or that Gavin required his approval. The court found no significance in Gavin's asking Fox for advice on their participation as members of the evaluation committee a year earlier. In the absence of any evidence other than the statement suggesting Gavin sought Fox's authorization apart from the e-mail, the court found that the decision was left to Gavin.

The court's determination was not wide of the mark or clearly mistaken. The court focused on the condition critical to the application of this exception to the hearsay rule evidence that Gavin was "authorized by" Fox "to make a statement concerning the subject." N.J.R.E. 803(b)(3). The record establishes, however, that the responsibility for selection of bid evaluation committee members is assigned to the Director of the Division of Purchase and Property. Kern, not Fox, was the representative of that Division; Kern authorized Gavin to select the members; and we, like the trial court, see no evidence, apart from the e-mail, that Gavin either needed or sought Fox's authorization to respond to Kern's request.

At best, the hearsay in the e-mail suggests that Gavin conferred with Fox and that Fox acted to clear the way for two employees from the Division of Revenue to participate. Authorization to speak on the subject, not agreement and cooperation, is critical to application of this exception to the hearsay rule. There is no factual basis apart from the e-mail from which one could infer that Gavin sought authorization from Fox.

The State contends that the content of Gavin's e-mail and the fact that it is copied to Fox compels the inference that Gavin thought he had Fox's authorization. Even if we were to agree that the inference the State suggests reasonably could be drawn based on assumptions about the natural behavior of employees in a bureaucratic setting, it is not one so compelled by logic and common sense that its rejection would amount to a clear mistake. Because the trial court makes the finding, N.J.R.E. 104(a), the question is not whether a jury could draw the inference but whether the court was clearly wrong to reject it.

More important, the authorization is evaluated from the perspective of the authorizer, not the speaker. For example, in United States v. Iaconetti, 540 F.2d 574, 577 (2d Cir. 1976), cert. denied, 429 U.S. 1041, 97 S. Ct. 739, 50 L. Ed. 2d 752 (1977), a case upon which the State relies, the court found that statements made by the defendant to solicit a bribe from "Lioi" and later repeated by Lioi to his partners were admissible as implicitly authorized by defendant. The court found that in soliciting the bribe, the defendant necessarily would expect Lioi to speak to his partners in order to get the money to pay the bribe. Ibid. Conversely, the court found that defendant would not necessarily expect Lioi to speak to his attorney. Ibid. On that basis, the court concluded that the statements Lioi made to a partner were authorized and admissible pursuant to Fed. R. Evid. 801(d)(2)(c), but the statements he made to his attorney were not. Id. at 577-78.

In relying on Iaconetti, the State points to no additional evidence tending to show that Fox would expect Gavin to communicate his views on the nominees' qualifications or his communication with Fruscione to either of the putative committee members. As the trial court found, the evidence is that Kern directed Gavin to select the nominees and thereby authorized him to speak on the subject.

The State also relies on Michaels v. Michaels, 767 F.2d 1185, 1201 (7th Cir. 1985). In that case, the court found sufficient evidence to support a finding that a telex to potential buyers was sent by a person authorized by one shareholder to contact them as the corporation's broker, and the court concluded that the statement would be admissible against the shareholder as a statement made by a person the shareholder authorized to speak, but not against the corporation. Again, the evidence in this case is that Gavin's authorization to name committee members came from Kern, not Fox. Michaels is not helpful.

These decisions of other courts are distinguishable. They do not provide a reason for us to disturb the trial court's determination.

B

In our view, the trial court did not err in determining that the State failed to establish the conditions for admission of Gavin's e-mail pursuant to N.J.R.E. 803(b)(4). That exception applies to statements made by a "party's agent or servant concerning a matter within the scope of the agency or

employment . . . ." The essential relationship must be with the "party against whom the evidence is offered." Ringwood Assocs., Ltd. v. Jack's of Route 23, Inc., 166 N.J. Super. 36, 41 (App. Div. 1979). Thus, the question is not whether Gavin was acting as a servant or agent of his employer, the State, concerning a matter within the scope of that relationship. Cf. Contini v. Bd. of Educ. of Newark, 286 N.J. Super. 106, 125 (App. Div. 1995) (applying N.J.R.E. 803(b)(4) and concluding that an audit consisting of statements by representatives of the Newark school district "who were acting within the scope of their official responsibilities" were admissible against the Board), certif. denied, 145 N.J. 372 (1996); Windmere, Inc. v. Int'l Ins. Co., 208 N.J. Super. 697, 714 (App. Div. 1986) (applying this exception under the former evidence rule, 63(9)(a) and concluding a statement made by an employee of the plaintiff business was admissible against the plaintiff business), aff d, 105 N.J. 405 (1987). The question is whether Gavin was acting as Fox's agent or servant.

The State does not cite, and we have not found, a decision of a court in this State extending the hearsay exception applicable to agents or employees to permit admission of the evidence against a co-worker who is a superior of the declarant. The State relies on decisions applying the parallel federal rule, Fed. R. Evid. 801(d)(2)(D). The trial court concluded that those cases are distinguishable on their facts, and we agree.

Stated generally these federal cases involve businesses owned and operated by the defendant against whom the statements were admitted and statements that were made by a person who reported directly to that owner-operator. In United States v. Paxson, 861 F.2d 730, 734 (D.C. Cir. 1988), cert. denied, 490 U.S. 1006, 109 S. Ct 1641, 104 L. Ed. 2d 157 (1989), the court approved the use of this exception to admit a statement made by the twenty-five-year vice president of Paxson Electric who reported directly to the president, Paxson, the person who made the decisions and "owned the overwhelming majority of" the Paxson Electric's stock. Contrary to the State's claim, the finding of agency in Paxson is not based on an "organization's hierarchy." It is based on the court's conclusion that "the nature of the relationship between Paxson and [the vice president], and between each and the corporation, [established] that the factors normally making up an agency relationship [were] present and that the evidence was properly admitted." Ibid.; accord United States v. Agne, 214 F.3d 47, 54-55 (1st Cir. 2000) (admitting against the owner a statement made by an employee hired by the owner and directed by the owner to handle the matter in which the statements were made); Zaken v. Boerer, 964 F.2d 1319, 1323 (2d Cir. 1992) (admitting against the principal owner of the business who also directed its operations, a statement made by an employee who reported directly to the owner), cert. denied, 506 U.S. 975, 113 S. Ct. 467, 121 L. Ed. 2d 375 (1992). There is no evidence establishing a comparable relationship between Fox and Gavin.

One case the State cites involves a high-ranking officer in a company who was not an owner of the business. United States v. Young, 736 F.2d 565, 567 (10th Cir. 1983), rev'd on other grounds, 470 U.S. 1, 105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985). In Young, the court found that the evidence established the factors normally constituting an agency relationship between the accountant-employees of a corporation and another corporate employee who directed their work. Id. at 567-68. The court relied on testimony from the accountants describing Young's role in their work and on precedents holding that an accountant is the agent of a client. Ibid. As we understand Young, it turns on the general rule applicable to the relationship between accountants and their clients, and the court's understandable unwillingness to apply a different rule in a comparable situation.

In Lippay v. Christos, 996 F.2d 1490, 1499 (3d Cir. 1993), the Federal Court of Appeals for the Third Circuit applied Young in considering a claim of agency based on a supervisory relationship between a police officer and an informant. The court concluded that in that context, a showing of agency requires evidence of regular control by the person against whom the statement will be admitted. Ibid.

Important to our consideration of Young and Lippay, is both courts' recognition that an "'expanding [of] the rule [on statements of agents] to include statements made by any person who is subordinate to a party opponent [could] create a loophole in the hearsay rule through which evidence not contemplated by the authors of Rule 801 could be admitted.'" Id. at 1499 (quoting Young, supra, 736 F. 2d at 567-68). The Young court stressed that the rule is limited to cases in which the factors constituting agency are shown. Young, supra, 736 F.2d at 568.

The State acknowledges that this e-mail is the only evidence of Fox's participation in selection of the committee members. But agency law includes the "concept that an agent's statement cannot be used alone to prove the existence of the agency relationship." Bourjaily, supra, 483 U.S. at 189, 107 S. Ct. at 2786, 97 L. Ed. 2d at 161 (Blackmun, J. dissenting).

In any event, the content of the e-mail is not helpful on the issue of agency. At best, the content indicates Fox's agreement that the employees are qualified and his communication with a fellow deputy director about selection of employees from his Division. That conduct is consistent with Fox lending a hand to Gavin in an inter-division matter outside Fox's authority, not Gavin acting as Fox's agent. Gavin's

e-mail is not reasonably read as conveying information on Fox's behalf or at his direction. Gavin's use of the first person plural does not suggest action done at the behest or command of another. Nor is there anything telling in the identity of the four employee recipients two from the using agency and two from a different agency with Treasury, which is in accordance with the directions on committee composition that Kern gave Gavin.

Consideration of the other evidence apart from the content does not warrant a different conclusion on agency. Neither the e-mails showing Fox's involvement in drafting the RFP nor Fox's semi-annual ratings of Gavin's performance shed light on the selection of the committee members. The trial court's decision is based on Kern's role as the representative of the Director of the Division of Purchase and Property, who was responsible for making appointments to a bid evaluation committee. In the absence of any evidence that Fox assigned Gavin or suggested that Kern assign him to select the committee members, the trial court's decision is not clearly mistaken.

In our view, the arguments of the State, taken as a whole, suggest an agency with respect to the May 7 e-mail that is based on participation in a common plan to do wrong. Where that is the theory of agency, an overly broad reading of the agency exception risks creation of a loophole circumventing the exception for statements made in furtherance of a conspiracy, which in our view would undermine N.J.R.E. 803(b)(5).

C

We further conclude that the trial court did not err in finding that the State failed to establish the conditions essential to admission of the May 7 e-mail as a statement Gavin made in furtherance of a plan to commit a crime or civil wrong in which Gavin and Fox were participating. N.J.R.E. 803(b)(5).

The trial court concluded that this exception was inapplicable because there was no independent evidence of Fox's participation in a plan to select the committee members. Although the trial court accurately described the only charge against Fox, complicity in appointing members of the committee for the purpose of benefiting State employees or OSI, the State correctly contends that the court took too narrow a view of the criminal plan it alleges. As we understand it, the State's allegation is a common plan to have the contract awarded to OSI that had two steps 1) the drafting of an RFP that favored OSI and 2) the appointment of committee members with a bias in OSI's favor.

We affirm on a different basis. To prevail on the motion, the State had to show that Fox and Gavin were involved "in a plan to commit" a crime or civil wrong and that the e-mail was written in furtherance of that plan. The "first" condition is that "the statement must have been made in furtherance of the conspiracy." Phelps, supra, 96 N.J. at 509-10; accord State v. Savage, 172 N.J. 374, 402 (2002). The State made no argument as to how appointment of these four committee members furthered a plan intended to culminate in the award of the contract to OSI. The State does not present an argument based on benefits received by the employees named in the e-mail, evidence that showed Fox had knowledge of the benefits received by Gavin or staff in activity compliance and a plan to continue the pattern, or any anomaly in these ex-officio appointments to the committee, which appear wholly consistent with the established protocol for selection of the members. None of the employees who served on the evaluation committee were named in the forty-two-count indictment returned by the grand jurors.

It is not the role of the court to search for a link between the appointment of these committee members and the possible success of the plan. The State must articulate an argument as to how Gavin's e-mail is a statement in furtherance of a plan and support it with evidence and reasonable inferences, not conjecture. Without that link, there is no basis for concluding that this e-mail relating to the appointment is a statement made in furtherance of plan to wrongfully secure a benefit for OSI or the State employees.

For that reason, we affirm the trial court's determination that the statements are not admissible pursuant to N.J.R.E. 803(b)(5).

Affirmed.

 

1 Gavin is charged in other counts as well, but Fox is not. The count naming Fox is the thirty-fifth count of the indictment, and the fifth count of the remaining six counts.

2 This court denied the State's motion for leave to appeal, but the Supreme Court granted leave and remanded to us for consideration of the merits. In its motion to the Supreme Court, the State did not present argument on N.J.R.E. 803(b)(5). For that reason, the issue is not within the scope of the Court's grant of leave to appeal; nevertheless, in the interest of resolving the question whether the e-mail is admissible, we now grant leave on that issue.

3 The State argues that the existence of pre-conditions for admissibility pursuant to N.J.R.E. 803(b)(3) and (4), should be addressed in the same manner as conditions for admissibility pursuant to N.J.R.E. 803(b)(5). As N.J.R.E. 104(a) applies to all questions of evidence admissible subject to condition, we do not disagree.

4 Fed. R. Evid. 801(d)(2)(C)-(E) (presently provides: "the contents of the statement shall be considered but are not alone sufficient to establish a declarant's authority under subdivision (C), the agency of employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against who the statement is offered under subdivision (E)"). By the Supreme Court's order of April 26, 2011, the rule quoted has been amended effective December 1, 2011; the changes are editorial not substantive.