Prosecution of D for importing and selling bootleg copies of the software program “Mirrors XP” and with conspiracy to commit that act. To prove D's guilt, the prosecution calls W, who testifies that a few weeks before the police arrested D, X, and Y for the crime, she overheard a conversation between X and Y in which X stated, “D's bringing in a shipment of MXP on TAL flight 612, and we'll be meeting him at O'Hare.
Which of the following statements is correct?
A. If the judge finds that there is evidence sufficient to support a finding both that there was a conspiracy and that X was involved in it, the evidence admissible under the coconspirator rule.
B. If the judge finds that there was a conspiracy and that X was involved in it, the evidence is admissible under the coconspirator rule.
C. Because the existence of a conspiracy is a fact the jury must ultimately decide, the judge need not make any preliminary determination of that fact. However, the evidence will not be admissible unless the judge finds that X was involved in any conspiracy the jury might decide existed.
D. X's statement is admissible as a simple party admission under FRE 801(d)(2)(A).