Brief for the United States — James Herman Bostic v. United States

Supreme Court brief1971

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Text

Jurisdiction. ____-_+2--_-- Bp, Da

Questions presented. --......-=----- Freres ey =

Statement:

‘I. The charges‘in the indictment and their

ERE aR PSS ea ep Re as

II. The evidence against petitioner_________

III. Evidence of other events____.________-

IV. The trial court’s instructions__________-

Argument: . Aa

Introduction and summary ----- aoaak ian AnER

I. Petitioner’s conviction is overwhelmingly

- supported by evidence other than the ©

_ statements . of * co-conspirators, which

_were in any event properly admitted

under narrow traditional principles: __

; IL. Petitioner was properly tried with his.co-. .

defendants even though his arrest —

caused his withdrawal from the con-

spiracy before its termination _~_____-

III. Petitioner’s remaining contentions are .

STRING PAI oad co a ewe econ cd,

A. An impartial jury was eaters

La Ee ee :

- B. The trial was coma —

: by the trial — ae eee

as ae ee ile ra itn odes

21-399—71——1

Opinion NEP ae Ae PONS SOTO ine |

30 -

"37

-CITATIONS

Cases: OD als | Page

Barnes v. United States, 381 F. 2d ecisans * ae

‘ Bayless v. United States, ee ee 36, 40

. Bruton v. United States, 391 U.S. 123_---- 21, 28, 36

California v. Green, 399 U.S. 149___---.---- 27, 28

Chapman v. California, 386 U.S. 18_-------- 21

Delaney v. United States, 263 U.S. 586..:--.. - 22

4 Dutton v. Evans; 400 U.S. 74__------------- 18, 19,

a 20,22, 28, 29

| Fernandez v. United ‘States, 329 I’. 2d 899__2- 35

Fiswick v. United States, 329 U.S. 211-~---=. 32,33,

a 2 _ Frazier v. Cupp, 394 U.S. 731-_--..---.---.- 21,2

: Grunewald v. United States, 353 U.S. 391-_---- 18, 19

‘ Harrington v. California, 395 U.S. a. Zi

i ; | Krulewitch y. United States, 336 U.S. 440____ 18, 19

: Lutwak v. United States, 344 U.S. 604-_~_--- ee |

; _ Opper v. United States, 348 U.S. ole ae:

4 - Parker v. United States, 404 F: 2d 1193, |

if _ certiorari denied, 394 U.S. 1004_-__----_-- 36.

j Pinkerton v. United States; 328 U.S. ee 31, 32

Posey v. United States, 416 F. 2d ‘B45, cer-

tiorari denied, 397 U.S. 946-__-_-_---~---- 35

Schaffer v: United States, 362 U.S. 511--_----- 34

Swain v. Alabama, 380 U.S. 202__---------- 39

United States v. Agueci, 310 F. 2d 817, cer-

tiorari denied, 372 U.S. 959_-_.-.-------- 33, 35

United States v. Ballentine, 410 F. 2d 375,

| certiorari denied, 397 U.S. 928 ___------- 29

United States v. Boone, 401 F. 2d 659, cer-

tiorari denied sub nom. Jackson v.” ‘United DS are

States, 394 U.S. me: 3: HER ai ey Way 29

United States v. Jordan, 399 F. 2d 610.

e United States v. Rabin; 316 F. 2d Seer ae

certiorari denied, 393 U.S. 1006... .<...... see

AL DORE i Lp AP ie DP

. ‘Cases—Continued

United “States v. Roselli, 432 F. 2d 879,

certiorari denied February 22, 1971 (No.

1029, this Term) ---~- bas? ie teas hia toeite Graces

United States v. Vida, 370 F. 2d 759,

certiorari denied, 387 US. Se ieee rage

Wong Sun v. United. States, 371 U.S. 471-___-

Constitution, statute and rules: -

‘ United States Constitution, Confrontation *“

Clause; Sixth Amendment-~--------.-----

SB As eh as dewe nt iedsinnwes 1 sheadin

Rule 8(b), F. R: Cr. Pos) a eR :

Rule 14, F. R. te A Bees SO eae

Page

om, as

: : as the Supreme Gout of he inte ad

OcTOBER —_ 1970.

No. 5250

J. AMES HERMAN Bostic, PETITIONER

> v.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF‘

APPEALS FOR THE SIXTH OIRCUIT @&

> ; oe > 0

-BRIEF FOR THE UNITED STATES

_ OPINION BELOW.

-' The opinion of the. court of appeals - (A. 37-62) is

reported at 424 F. 2d 951. ;

JU RISDICTION

The judgment of -the court.of appeals was entered

on April-20, 1970. The. petition for a writ of certiorari

was filed on May 19, 1970, and was granted on Janu- -

ary 11, 1971 (A. 62). Tlie jurisdiction of this’ Court . ~

rests on 28 U.S.C. 1254. _

(1)

I cd ae a neh ae Seles -

s. = ee , i a

9 .. - QUESTIONS PRESENTED ‘ be

. FR. e

1) Whether petitioner’s convictions on the stibstat-

tive curd conspiracy. charges wel e tainted by. inadinis-

et evidence. ° es

: hethe Yo in the cireumstaiices of this case, peti-

tioner was prejudiced by: the refusal of ‘yt trial judge

to: eratit his motion for seve ‘aney oat, :

. Whether petitioner’ Was otherwise denic “la fair

. tae ” :

aay ’ Sa ,* i fi

STATEMENT a s

Ses oe CARERS IN THE INDICTMENT AND ‘THEIR

er _ DISPOSITION

ze ‘ * ¢

"Setiiionst “ina; seven: ‘others were . indicted j in the

United States District Court. for thes Middle District.

mus Tennessee on various counts of an eight-gount in-,

dictment ° (A. 1-5). Cougt. one charged all with con-

spiracy y to commit arined: vobbery of federally tnsured

‘banks and. to. place lites of bank, cnipleyees in jesp-

ardy (A. 1). Eleven overt acts wér'e charged in fur-

therance of the conspiracy, with petitioner specifically

named as- participating only in Overt Act 1—that on

April 24, 1967, he and co-conspirator James Larry

Ferguson (who was later killed} robbe dl the sordeaux

“§

“Branch of the Commerce Union Bank of Nashville,

Tennessee ( (A. 3). The remaining ten overt acts in-

volved: the flight of the participants. in that robbery

and receipt and ° concealment of the funds obtained

(Ov ext Acts 2 and 3)!’ the planning and commission,

» ‘Overt Act 2 charged two of io conspirators (Géorgia

Ethridge agd Sammy Ray Cole) with assisting petitioner and

Ferguson i in making their escape (A. 2). .

“conspirators. (Overt Acts* 4-6, 9); the. possession of,

an unregisteréd, sawed-off shotgun by one €o- conspira-_ ;

tor (Ov ert t Act 7); the harboring of petitioner by CO-

" conspiri ator W illiafiy Beard with knowledge of -a ft ed-

eral warrant for his arrest COvert Act 8): and the

' planning and execution of the killing of Ferguson by

_ : conspirgtors’ Gary Ethridge and Beard, in ‘order to.

“of ‘other Bank caitisites by certain of ‘botiipaels , ee

prevent him: from disclosing to law enforee ment”

‘agents. the offenses: charged. in. the indictment (Overt hae

‘ Acts 10 and 11;.A.3). .

Count two- ‘charged petitioner, Gery Ethridge,

Greaygia Ethridge, Jahn Leeman,’ and Sammy Ray

Cole with the robbery of -the_ Bordeaux Bank: OD

April 24~ 1967, and count thyee * charged that peti-

tioner, both -Ethridges, Leeman and Cole _possessed

money from the Bordeaux Bank robbery (A, 3).

Petitioner was not hamedsin any of the remaining

substantive . counts .inchidh

charged ~ it on Se ptember 2 23, 1967 (more than three —

months after petitioner's s arrest), defendants Beard.

and Gary Ethridge killed James Ferguson to avoid

‘appreRension for the-bank robberies. YA. 5).

-f The charges against Leeman, whose trial had heen. severed

(A 103-104), were dismissed several months after tlre trial

because of his death (Docket Entries A. XVI). _ :

*Count four, charging co-conspirator Beard wit} coneceal-

ment .of petitioner, a federal fugitive, and count: five charging .

‘ Beard with possession of an unregistered firearm, w “erp severed,

and, subsequent to the .trial, dismissed on the government's

motion (A. 67; 69). Counts six and seven charged various

of the defendants with the robbery of the Third National

Bank of, Nashville, Tennessee, on August 3, 1967.

_ . ve

ig count eight which __

vt |

. ‘ J

te ox

Petitioner was found guilty of each of the hi

counts in which he Was charg ed. He receifed en-

tences of five years on eount one (the conspiracy

count), twenty years on. compat. two, and ten years oni

‘count three, the _ latter two senteyce sto rim ¢on-

x currently with ‘each . other but consecittively to the

. sentence ont the conspiracy tount.' The court of ap-

_peals affirmed (A. 37-62).!

, & ;

' ly THE EVIDENCE AGAINST. PETITIONER ot%

The two substantive counts. 6f which petitione r

was convicted dealt with the robbery of, the Boi ‘deaux -

- Bank. in Nashville, Tennessee on: April 24, 1967.

* Leeman {who was also named i il ‘these two counts Dut,

| whose; ftial had’ been severed) testified as a govern- .

ge Inent ‘witness concerning the plang of the Bor-

deatix Bank robbery: He stated that somggime in

April 1967, after several months of general discussion,

he and Gary Lee Ethridge talkec “seriously” aheut

robbing the’ Bordeaux Bank (A. 278-280). Agreeing

___that_dire sat no place-for, 7s"

(A. 280), ad decifted to find someone to commit .

* Disposition as to the other atonidais wag as follows: ‘Each

was found guilty of the conspiracy charge. Gary Lee Ethridge *

was found guilty on counts two, three, and eight, and acquitted

on. count Seven. Georgia Ethridge owas ‘ac quitted on counts

two and three. Beard was convicted on counts seven and eight.

and acquitted on* count six, Cole was fotind guilty on counts

‘two and :three.Self was- found not ‘guilty’ on counts six and

seven _(A. 38).

°The petitions for writs of certiorari filed by the’ six other

defendants, were denied by this Court on January 11, 1971

(Nos. earl 5427, ams, ADT: i; O.T.. 1970),

SS | ae

ae % -

the robbery. Larry Ferguson was spbiroachel. cand:

_. agreed to take part in _ the robbery (A. 281). Accord-,

" ing’ to Leeman, Ferguson. advised that he could get

? petitioner—who _ had jest broken-Rut, of the peniten-

tiary and needed , some 1noney “to assitt (A, 281-

7 282). The plans for the® robbery and escape were

. developed in- some detail at a three. to four hour

meeting at the Ethridge home, on\, ‘April 21, 1967,

attended by Leeman, Gary Ethridge Fergugon anil

petitioner. GA. 283, 289-290, 295-296 ). | | Following this °

“ meeting, petitioner and Ferguson ewere . -takengto a.

-gnotel in? Manchester, Tennessee, where they stayed

during the weekend;* the purpose of leaving Nash-

_ ville was to avoid the possibility of petitioner’s being’ ee

* . arrested (A, 290-291). On April 24, ‘the morning of

the Jank robbery, Ethridge, Leeman‘ and Cole drove

‘ to" Mahe hester and brought Ferguson and petitioner

‘back to Nashvillé ( 290-291). The bank was robbed

that day pursuant to the plans formulated - at tlie

April _21_ meeting (A, 283-284 289-290), — ,

’ Leeman testified that after robbing the bank,. the

plan was. fowpetitioner: and Ferguson to drive to the

parking’ lot. of a local hospital, where ¢o-defendant-

Cole would he WALEING ; at this point they. were ‘to

‘Leeman was. not cetatn ‘hide “petitioner or Fergusén

had told him of canada escape from the ‘penitentiary fam

Wine AM | . Sy eSRER SS

7 A motel “manager ‘testified that a person named “Ferguson”

had registered at the motel on April 21 and stayed. with |

another man; both chee ked out On the 24th (Tr. 2579-2580).

The two arrived in a Mustang which state vehicle records

showed to be * registergd to Georgia Ethridge (Tr. 2585).

; 421-399-171

“4

”

a : ‘switch car s—fiom a- Pontine toa stolen Giditns ona”

then drive. off. Cole and petitioner were to get out of -

chee the car and hide in the-w oods, while Ferguson was to:

2 drive to-a.- nearDy ‘beer joint” (A: 286-288, 292). :

- Georgia E ‘thridge Was, to pick up Fergtison and, after. :

—

aly, _. dark, to get petitigner and Cole from the woods tA. ‘

| 288-289, 593). Shortly after: the 1 robber, Y, "Leeman ‘and

eee Gary I thrigge met_at the FE ithridge house ; they were

soon joined hy Georgia Ethride ee and. Fe erguson (A: .

' 292-293). Ferguson said “they -had robbed a bank”

: and obtained a. “sack full of money” (A. 293; see A. .

\? 289-290, 308). “By prearrangement, Leeman, Ethridge, ee

- Cole, Ferguson and petitioner Bostic. met some hours iat

after tlie robbery at the home of, one Perry Patton 1

and divided equally the $99, 000 taken in The: robbery -

(A. 290, 293-204), Leeman, testified that following this

he and Gary Ethridge took, petitiener to Lotijsville t ie

“(get him-out of town” (Ai 294).

Judith Farmer, who had been Bostic” s girl friend at

x the time-of the robbery, testified asa government wit-

. o; > “ness (A. 404-405 ») that on the evenitig of the’ robbery | + :

| petitioner picked her up in Nashville driving. a new’

car and wearing a ‘‘fanc ty? ’ suit and a diamond ring.

( A. 4] jd—-416). They then commenced a jgurney which

: ultimate lv led. them, to DaytonaeB seae ¥, Florida (where

she met co- Conspirators Beard and. Ferguson) ; after a

stay there they wtyrned to Bowling Green, Kentucky |

(A. 405-406, 408, 4162417, 425). The night their ‘trip |

aN _-- began, petitioner showed, her. a large sum of money —

« - . (A, 407). When they arrived.in Louisville, he showed

her a suitease of nioney which he said had come from” .

aero ee

yt rem of. the Bordeaux Bank (A. 407, 416) ; he

told her that he had. aged netted B07 50 from

‘te robbéry (A. 406-407). ae cf

During their stay in Day tona. Beach, petitioner de-

ser ‘ibed the robbery to Miss Rarmer’i in detail (A. 417).

He said that He ‘and Ferguson had entered the bank |

; cand robbed: ‘it; that he had used a pistol and Fer guson

a sawed-off. shotgun ; that he had worn black - hoot |

| which - -he ‘had, later disposed of; that befgre enter ing

the bank he had discarded the “nylon, oe mask

d |

lyg was supposed to wear bee ‘ause’ it bothe nm ‘and

“just wore sun-glasses” ; that, Ferguson had wer oe

stocking mask during the robbery; and that iif.addi--

tion. to regular emFency “petitioner had take na liag

— of pennies worth $90.00 (A, 417-419). terre |

“Shirley” Anne Burton, pe titioner’s cousin and Miss° .

“Farmer's friend, who j ined Miss- Farmer aiid peti-

tioner in Florida (A. 436-438), t testified ‘that peti-

tioner had “almost Gl ‘racked Upr’. when he heard that

the authorities. were trying ‘‘to Spin?’ the Bordeaux |

robbe Ty on * ‘other: guys’? who: had kohbed a differ of

bank that, same day (A. 439, 436-440) >: ,/ p o :

The government also introduced tesf{imony of wit. -.

Bp ee

‘Petitioner further told haar that Gary Eehridiiyhad eters

the robbery; that a Pontiac and Cadillaé,- perry by Eth-

ridge, had been used as getaway cars: that, after the robbery, he

. had driven the Pontiae from the bank; that thé cars had been |

‘switched at-a loéal hospital ‘where Cole: way waiting with the

had been pi ‘ked up later in the day, afer which the loot had

been divided into five equal portions af*Patton’s house (A. 421-

424). This riccorded with Leemzin’s testimony, about the escape

pes (see ehpre, pp. 5-6): or

Cadillac: that he had been. let out in yd woeds: te that he

. i)

- of his co-conspirators planned ac

| talking. abort buying “ta

Aesses to-the robbery—-which dovetailed with Miss.

#; armer’ ’s testimrtiy* ¢ concerning the Wearing apparel

“ of the tao, Tobbers, the typerof weapons employed, the

Fact that the maa with sunglasses and blagk boots took

£50. Ou ‘worth of pennies. from the vault and the fact.

. that the robbers left the Wank in a 1967 Pontiae ( .

320-327 ; see” ilgo the corroborative testimony of bank |

customers, A. 328-330). The license titimber on ‘the

- Pontiac. was faken down by 4 nierchant’ wiho witnessed

the getaway (A. 331). The ear, Which had beef stolen |

| (A, rom 360), was Inter recovered at the Iycal hospital -

“CA? 9393) “An employee of the hospital testified -

~ that Ke had seen a white Cadillae parked an the’ ot

for sever ‘al days prior to the robbery in thé, same spot

“where the Pontiac was recovered (A. 333-334)."

2. There was also evidence that(petitionerand certain’

attempted to burglar-

. ze the Bank of’ Orlinda. o

Linda. _Letos, who was ‘also’ present in Florida: with.

petitioner arid other co- conspirators (A. 442), testified.

that during their stat petitigneraind the others. were.

Ss” to be used to cut through

safes (A, 447-448). Miss eae testified that dufing

ani in Daytona, Beach petitioner told her that

*A stolen white Cadillac was JAtéestecovered by"the FBI and

identified by the: hospital employee ‘as being the car he had seen

parked in ‘the lot (A. 334335, 336-538).- Friends’ of co-con--

spirator Self testified to the circumstances surrounding the tlieft

of ‘the Cadillac (A. 338-339, 344-349). 3 ve

This attempted robbery was Overt Act 6, as to which ‘Gary.

_- Ethridge, William Beard aid James Ferguson, but not petitioner,

Were named as\participants ( (A. 2). .

May 15, 1967." - One . *

ate

he and the: others wert going to rob the OF linda, baink :

he purchased “[o]xygen tanks” in Daytonawhich he

took with’ him to Bowling Cireen, Kentucky (A. 407- :

408, 425-427; see also A. 439-440, 464-465). Miss

Farmer. was with petitioner when he transported the

“tanks” to Bowling .Green where -they met ~ Be ard,

Ferguson ‘and, ove Jimmy Je nkins (A. 407-408,, 427).

i Upon their arrivat: at sowling ” Green on. the

weekend of. May AD (A. All), yetitioner told Miss

Farmer that his purpose was to reb the Orlinda Jank *

(A. 427; 409). He-left her at. a motel for a short

time; he- thereafter returned with Beard,* advising

nie that they had’ “case[d]’”’ the ‘bank (A. 409-410) and

“it looked pretty: good” (A. 412, 428). Miss Letos

testified. Seat she was present. whi petitioner, in the

| presence - Of Beard, Ferguson and Jenkins, said that-

' the bank “was a cinch” and only one policeman jpa-

trolled the neighborhqod. Petitioner stated that Gary

: Ethridge and Vale would participate in rend robbery ;

(A. 453). ;

~ Early. on the morning. of May 15, the Orlinda bein

was broken into: The cashier, wlio lived in an apart-

ment above the bank, tPtified that he had been awak-

ened by noises and ‘had switched on all of the lights -

im the bank (A. 433-434). At abeut 6:00 that morning

his inspection revealed: the breaking. In front of the §~

- -yault he found: “a set of: acetylene torches” and “two

tanks” (A. 434-435). Miss Letos testified that early .

that same morning she saw petitioner, Beard, Fer-

guson and one J enkins. “[T]Jhey” told her that after ~ |

they had gained eritry to-the bank"and were “getting —

- P

“s. ready to put’ the tor sh on the : safe,” a light went er

a and they -Neawd someone say \" ‘we've got you new”;

_at this . point, hey fled. (A, 459). Each shad mud se :

his - feet ““beeause ‘they. 1 ran | ‘though the: mud -and it

was all messy from the 1 rain, the night hefore?’ - (tbid.).

At about BuO th: it morning,. petition told Mike Por-

te r that the» attempted robbery. heed heen all “fouled,

lip,” * ecatise. “there was’a watchman orva patrolmarr:

around the hank” (A. 412-413; 429), Fhe following

day petitioner left Bowling Green, telling: Miss Farm ae

. ev that *his reasoyi Toreleaving: Was to. “plan another tal

hank robbe py” (A 429-4, 30). ane Vf

’

S Soneee tie aia ATL. EVIDENCE OF OTUPR EVENTS --

‘

B Petitioner sil sient by FBI agents ol June Ree

5, if 167, on’ “the char: ‘ge Of,unlawful flight to avoid Con. x

. finement following ghiis April ll escape: from the: Ten- ,

“Nessee State. Pe nitentiary, and thereaftey remained -

in confitiement (A. i aoe | Sl NP: |

- In essence, the evidence regarding ts subsequent.

ee Ao : Z — murder of sMerguson® diswed that . 1 September a ae

ra ae 1967 “some, three ‘months aftey ielitiogee's June

o>: : " The overt _acts ited to ‘have coe after that date

: “dealt With the. robhery. on August. 3 3, 1967, of the Third Na-”

re ce “tional, Bank of, Nashville by . Beard ‘and Self (Overt Act -9; .

Soe een suibstanti counts 6 and 7; A. 3, 45) and the murder of

aoe Ferguson by ard, at the scan of Gary. Ethridge, in

ae September 1967 <(Ov ert Act¥ 10 and 11, sfibstantive count

8; 4. 3, 5), iS , tiny :

The evidence relating to the partic ipatioy of — in the -

August robbery a ars at Tr. 1752-175 53, M341, 2356, 2434

. % ‘2436, baeraeas as to Beard relevant. facts appear at Tr. 2392-

2395, 2 I die Sc ty a ay

‘

nex , . . ° *.

° . ° mi - >

. . ° . »* 2 ‘. iS

ss . . ° e .

e -

| | Some, Gren

ah ; . @- NSE

arrest), Gary Ethridge ‘asked -Charles Bobo to kill

Ferguson for “a fee” because. the latter was trying ~

‘to involve Ethridge “in. some: bank robberies * * #7? |

tA. 23-238). Beard’s ‘SSinetime employer, one Carney” Ss .

ri! | of A. 392), testified that. in August 1967 Beard. told him

Ci | ie that “Ferguson. had stated he was going to cause: him AP

Pes ae .' 5, fie it of trouble, by tellingy everything” he knew. ___ Reais

: Ppedts “him”; Beard further told Carney: that “he. had .to get

i <n | ; xd of [Fer guson], he couldn’t afford for him to go to

~ Court on him’? (A. 394; 395). Beard’ sought to borrow

a Car ney’s Tifle but the latter. refused to lend it: and

Alo "-attenipted to convince Beard not—ta.k ill: Ferguson -

Nik prtedier. (A. 394-896). ‘Linda Letos testified that § é had a con-

‘ versation with Geary . Ethridge i in which he inquired con- °.

ae eae é ee cerning her interview with the FBI; he told her that,* -

Fe: che was concerned “that someone shad heen giving 3

ieee er type of information about the banks” and said

neat by that “he had an awful lot to lose, and he wouldjblow

somebody's . head off if Bed oe, 2 ware of Poe's Me

6 Ce : Pe dee

. Ferguson was - shot amd killed on sipiesobieh 23, coat

1967 (Tr. 3249). He managed to stagger to the front

porch of a Mr. and Mrs. Watson. There was testimony

| that Ferguson told the Watsons and other passersby Ls

-.-. that Beard had shot: him because- he krew too much

‘about:gome bank robberies CA. 202-208). The morning

i? Ferjusta killing, Beard told a friend, Vaughn, .

| te : that he’ “had shot five, timés” at a person “that shot =

at him” “and. that “he was going -to make three oF |

four hundred or going to pick up” that stini ( A. 209-

e .

anhka .

es) shy ~ 7 * bi . ~

C < ee . ath ° te sae y. Pa

e .. - we ;° A

‘ “

Oke

» 210). o No evidence. “was “Introduced in any. way con- i

» ° og oe

ao. ‘ < , ol * ron eas

necting. petitioner with the killing-of Ferguson. |

Each of the defendants on trial (except ca)

ee - testified (see, ¢.g., A. 499, 500-501, 505-529, 540-542).

Petitioner preserited 1 no ev idence in his own es, and

did not cross-examine any of his co-defendants. - His

counsel’s argument to the jury was ‘that the ’govern-

inet witnesses were not wor thy of belief. ~

fat fe) closing argument to the jury, the prosectitor

“eina the governmenit’s ©: ase on the conspiracy count

as follows (Tr. 3636) :

“We say that the agreeme nt did cxiet. Ww ‘e say

that at the center of this. couspiayy,a man whon

instigated , this entire - arrangement ‘and plan,

was Mr. Gary ‘Lee Ethridge, and Mr. Ethridge

was the man who was at the center of thi® con-

spiracy plan from April, at its inee ption,

through the 23rds of September when James ”

Larry Ferguson was.murde1 ‘ed.

‘We. Say that other %f these’ defendants may

have enter ed or: left this ‘conspifacy as it pro-’

ceeded. We-start off in April with Sammy Ray -

Cole being involved, J ames Herman Bostic, and

- others. In June, Mr. Bostic leaves the con-

spiracy, because. he’s arrested and sent ‘to the

penitetitiary, So at that point of course, Bostic

is no longer Agee to the conspiracy, nt none:

theless, this would not prevent this from being

a single continuing conspiracy if you found that

Mr, Ethftdge continued to operate it and con-

2 Earlier in September Beard ‘had. told Vaughn that “Fer-

_ guson was. Fa too much andehad to be. taken care. of”

(A. 209). 7 ee ee ee

=i \

(=)

a ‘position.

ald a : ¢ 13”

finued to a as ie herd of the angle on-going i

agreement. -

” By the Saiue . token, William Eugene Beard,

we do not contend, was invoved in this con-

spiracy at the beginning. We contend that he

Bank robbery, and- that his first act in further-

_. -anee of this conspiracy. was the robbery ‘or Ss

“\ ~ Burglary of the bank of Orlinda.

- . So the theott is, if: a is a spualiioatea™ con-

_ spitaey, individual mem) ers: of the conspiracy

can_entét or leave ‘the conspiracy, and they still

. inay be liable if thesthacts were committed while ..

- they were members. So that’s our theory and

- * j e ‘yy \

t IV. SHE TRIAL Coy RT’S INSTRUCTIONS—~

The eguit Sipst read the indictment, including - he

‘conspiracy count arn ‘the statement of overt acts: (Tr.

3874-3877). It then instwActed i dageh general prin-.

ciples of conspiracy” law (325-3 -38§83),, pointing

out,. inter alia, that it was the government’ S position

“that. it was - the purpose of the conspiracy to enter

fede rally insured banks and to take therefrom money -

“owother things of value exceeding one Liccomsiven dof

ae 6°) subsequently ‘peferting to the ov ert acts; the conrt defined

them.as “act[s] apart from the ‘conspiracy ™%and performed to

effect the object of the conspiracy” ( A. 552). He instructed that

it was necessary only for the jury to be “convinced beyond a’

reasonable dpubt, that. one of these acts was knowingly per-.

formed in furtherance of the conspiracy in order to satisfy this °

particular requirement of the law” and that the “overt act

requirement may be satisfied by‘evidence concerning the per-

_. formance of an overt act by any of the alleged conspirators or by

a duly-authorized agent of the conspirators” (A. 553). .

421-399—71——-3

caine into the conspiracy, after -the Bordeaux.

Oy a

ret Pe 2

lars” (Ur. 3886). 'The court read the provisions of Is

U.S. % 2113(a), (cy and (dl), thie violations of whic h

were the alleged objects of the conspiracy (Tr. 38 SR7—

3888). The -eourt specifically postponed reference to

sibseetion (e)—whieh refers to a killing during a

hank robbery-—with the comment that it would be “read

Tater in connection with another eharge” (Tr. 3888—

3688), 305: °° ss

The court further instructed that in order tor con-

viet, the jury had to’ find a single continuing Gon-

-spiracy to rob federally insnied banks: if admonished,

howeve ry that such a congpirac Vv Was not transformed

‘into separate couspiracies hetause hew members joined

and others departed -€A., DE-555), With regard to

withdrawal the: court inistructed that “what was re-

_ quired vas “some affirmative. act clearly indicating

that the conduct of the party withdrawing ‘is incon-

sistent With his ‘association with the conspiracy, and

his connection With. it is required in order to establish |

a withdr: wal”? (A, 54-555), Later in its charge the

court elaborated further on withdrawal, observ ‘ing that.

“it may be based on “direct or circumstantial evidence”’

and “may he indicated by conduct wholly inconsistent

with the theory of continuing adherence to the con-

-——

spiracy v" ‘i 557). It further instr ucted “tas requested.

by one of the parties * * *. that an accused * * *

must join in the agreement to be guilty of conspiracy,

and even if he commits an overt act, he does not

violate the statiite unless he does j join in the agreement

jtself” (A, 558). The court- had earlier charged that

whether or not a particular defendant was a trember

9 ; e a " r

“Himst’ be dooited salely on “the ¢ evidence concerning his

own ‘dictions, ‘conduc; declarations” or statements, and

his own. connection with the action and conduct of &

others” (A. 553).

‘Turning: to the substantive charges, isc court made

“leas that the ‘murder charge in Count eight itvolved

only Ethridge and Beard (see, e.g -Tr- 3912-3920).”

Petitioner’s trial counsel raised nd objection and did

not request any additional instr uctians (A. O61).

ARGUMENT oi - +

INTRODUCTION AND SUMMARY

. . Ps 4

Petitioner was charged and convicted -of two sub- :

~ stanti® counts dealing with the sordeaux Bank rob-

hery. and one count.of conspiracy to rob fede rally in- .

‘sured Iinks. While the murder of co-conspirator. Fer-

guson and the induceme nt of that murder. were ~

charged as: two of the eleven overt acts:and in a subs

-stantive nuader count, petitioner was not tamed as

involved in either of these overt ac ts or charged ii

* The court had bettie instrué ted (Tr. 3872 2):

Each oflense, and the evidence applicable thereto, should

_ be eonsidered separately, and you are to render separate

- verdicts on ‘each count: ‘of the indictment which will be’

submitted to you. The fact: that you may find one or more ~

of the defendants guilty or not “guilty of ohe or more of

the offenses * * * should not control, must not control your

verdict: with respect to any other offense charged or Ww ith

respect to any other defendant.

Each defendant must ‘also be consiflered as to guilt or

innocence separately from any other defendant and sep-

araté verdicts rendered as to each defendant.

“It had also pointed out that there were three categories of

- offenses before the jury—a conspiracy charge, a bank robbery

charge and “the killing charge” (Tr. 5873-3874). :

@ 3

ei ae ened

wi;

*. 4 os , e -.

. Ghirs 16 =

° > * -

the substantive count. Nor did the’ conspiracy count

«include any charge of conspiracy to murder, as we |

erronrously stated in our brief in opposition in /this-

case, Moreover, government counsel said explicitly in

his closing argument that it was. the- prosecution’ s

‘ theory that petitioner had left the conspiracy’ three

months before Ferguson’s. murder by virtue of

his arrest, and was not responsible for what océur red

thereafter sce supra, pp. 12-13). The government’s e Ni-

dence did not in any way tie petitioner to the planning ’

of the murder; it pointed the other way—thi at ins

participation began soon alter: his Prison .excape in)

April 1967 and ended with-his ar rest on Juned, 1967.

Accordingly, while Wwe gigree with the court below

that “this conspiracy. continued until after the niurder

had heen -eommitted” in light of the “evidence -that *,

killing of informants was a part of the —- plan for

operation of the bank robbery ring’? (A, 58), we

submit that- that: Ponape Senos 0

—the validity. ‘of. petitioner's. conviction. and need not hy

considered here. The court of appeals’ discussion of thi: s~

point may haye been affected by a misapprehension « on

its part as well that the conspiracy count charged con-

spiracy’ to murder rather than a simple conspiracy to

rob as to which the miirder Was referred to only inci-

dentally as one of the eleven overt acts (see A. 37).

And although the court—erroneously we think in light

of the.evidence and the. prosecutor’s s explicit conces-

sion—expressed the view (A. 58) that petitioner re-

mained in the conspiracy -at the time of.the murder :

notwithstanding his inearceration, that conchision was

a Pee

‘ &

not nec essary to: the affirshance of Ins conviction, what-

ever its relevance. to” the convictions of other co-con-

spirators. For, as we shall urge, the direct evide nee. of

acts that took: place before petitioner’ s incarce ration |

overwhelmingly. “showed both that he: had thei heen a

= member. of: the conspiracy and that a number of tlie

overt acts cliarged (ineluding the Bordeaux robbery in

which petitioner was a principal) took place during that -

earlier period. There is'no indication in the record of

the trial that the jury had any reason whatever to

consider the murder or anything else that followed the

_arrest in its determination of petitioner’s guult.

Kor similar, Feasons, we urge in Point I of our

Argument, that there is no substantial issue in this case

as to the admissibility of the few extrajudicial state-

_ments by petitioner’s co- -conspirators that thay have

borne on his enilt. Such statements were plainly a

minor factor in the overwhelming proof against peti- :

tioner, which was based primarily on direct testimony

about. his” participation and his own admissions. No-

“statenient mentioning petitioner related to the. ‘post-

arrest ‘period, and the statements either fell narrowly

within the familiar liearsay exception for co-conspira-

tor. deélarations in f urtherance of the conspiracy dur-

ing the time when petitioner was clearly a participant,

or else were restricted to the impeachment of a testi-

fying co-defendant.

As we view the. case, the only matter arising out of

the murder. of. Ferguson ‘that is remotely relevant to

petitioner involves joinder: Was- petitioner fatally

_ prejudiced by being tried ‘together with the two de-

ik 5 pees

- fendants charged’ with the substantive offenses of.

nae ae cmunder and hy the introduction of evidence concern- .

inig the murder ?. Ourposition on this i issue, which we

- develop in Point I of the Argument, is that: since

| the conspiracy was so:plainly unitary in nature (even

7 Af though .petitioner dropped out - before its termina-

pha: tion) and since his lack of responsibility ‘for the mur-

: “der qwas male so manifest by the 6¥ ‘ideneg, a severance

- lwas, not required to-afford him a- fair trial, Nor was

petitioner any” other .sense “(as: We Urge in Point

2 TIT) denied a fair trial °° ae :

Ac wordingly, we do not believe that ‘the case raises

and thus will not treat the issue whether 4 member of

a conspiracy who is incarcerated before a conspiracy: ’s

térvhination may he bound by the declarations of

. other members made mn the progess of seeking to

, ' conceal the agreement’s existence by killing a member

who they fear is going to confess to the authorities.

That question is not here, ¢nter alia, because the regord

shows that this was not the theory under which the

eovernment tried this ease or the court submitted it

to the jury. There is, in’short, no Yeason for the Court

+. * ‘to reconsider the long-standing federal evidentiary

rule precluding. application of the traditional co-

conspirator hearsay exception | to. the concealment.

_phase of a conspiracy. See Gr unewald v. United

| States, 353 U.S. 391, 399-406; Krulewitch v. United

States,- 336 U.S: 440, 443-444; Lutwak v. United

States, 344 U.S. 604, 616-617. Were the issue actuaply ”

— . posed, we would argue that under Dutton v:- Evans sy

400 U.S. 74, this rule is merely evidentiary and not

_@ @

compelled by the gequirements of the Confrontation |

Clause of the-Sixth Arnendment. ** Whether to depart

from. the federal evidentiary rule announced ‘in the

Krulewitch and Grunewald rulings would, however,

be a different and more difficult issué. That rule_is:

“intertwined not only with the federal substantive

“law of conspiracy, but also’ with such related issues

as the impact of the statute of limitations upon. con-

“spiracy prosecutions;’ ’ Dutton v. Evans, supra, 400 |

U.S. at 82. This evidentiary question involves weighty

considerations .of federal’ policy which niilitate

strongly against its reconsideration except where

ecessarily put in issue by a conerete case. ‘This is

not, we submit, such a case.

PETITIONER'S CONVICTION - IS OVERWHELMJNGLY | SUP-

. PORTE I) BY EVIDENCE OTHER’ THAN THE STATEMENTS OF

-C0-CON SPIRATORS, W HICH WERE IN ANY’ EVENT PROP-

ERLY ADMITTED UNDER NARROW TR 5 gaiiciswaracacs’ PRINCIPLES.

As his “primary contention’’ (Pet: Br. 4... 19-2 ip Pa

petitioner argues that the co- conspir ator hearsay rule

as applied here violates the Confrontation Clause of the

Sixth Amendment. This conténtion wholly overlooks the

fact that the government’s case against’ him was pri- °

marily presented and. amply proved by direct evidence

supra, points out, 400.U.S. at 82-83: “It is clear that the

limited scope of the hearsay exception in federal conspiracy.

trials is a Earn! not of the. ones ‘Amendment weed of ine

oases oS

- +. Independent of any evidence whose admissibility de-

pended upen the co- -conspirator exception to the |

hearsay rule. Moreover, to the extent that the rule Was

a the basis for the. admission of evidence, this is hardly

a ground for complaint since ‘the validity of the rule :

as narrowly applied liere—both as a constitutional and

federal evidentiary matter—has leng heen settled and: °

was expressly. endorsed -in this Cagrt’s decision’ this:

~ Term in Dutton v. Evans, 400°U. S. 74, 81.

i, Petitioner concedes (Pet. Br. 9) tMeit the govern-

| 3

ment’s “clear ly admissible”’ evidence against him was |

believed by the trier of fact—and the j jury’s verdict, we

submit, attestS to the fact that it was—that evidence is *

sufficient to support his conviction for bank robbery and |

for participation in a conspiracy lasting from April 21

- to June 5, 1967, the date when he was ar rested. And the

. Weight of that “clearly admissible” evidence plainly

‘ overwhelmed the limited amount of pertinent evidence

- in the form of co-conspirators’ statements. |

‘The direct evidence against petitioner, set forth in

detail in the Statement, indluded the testimony of sev-

* ered co-conspirator Leeman, whose major ¢ontribu-

: | tion was a -deseription—of the—planning-of-the-Bor--

deaux robbery and of the-escape which was to follow ;

he testified that these plans were developed at a three

to four hour meeting j jn which he as well as petitioner

participated. Nor did Leeman’s testimony stand alone.

Miss Farmer, and Miss Letos (and to a lesser extent

Miss Burton) testified to admissions made by petitioner

' that overwhelmingly:established his guilt both of the

robbery of the. Bordeaux bank and of his participa-

os °

ne a

: .

“

G..

‘ tion :in the conspiracy. Moreover, .the testimony of

«| these witnesses ‘was corisistent with and corroborated |

by bank employees and others wlfo testified about the °

details of the Bordeaux robber: y and the efforts to ait .

glarize theOrlinda bank.

It is thus plain that if this case raises any issues + a

ee regarding the co-conspirator rule, it does so only in a ;

a tangential and peripheral way. By the same token, if

there wére some instances where inadmissible hearsay

outside of that rule was introduced into evidence,

these were so minor as t6 have no ‘impact in the over-

all context."* See Chapman v. California, 386 U.S. 18;.

Harrington v. California,“395 U. S.. 250 ; Frazier a

Cupp,.394 U.S. 731, 735-737. We shall, howev er, go on

to examine thé specific instances at trial where out-of-

court statements relating. to petitioner were admitted.

We think it clear that there is no serious ground for

objection ‘to those occasional bits of evidence, all ‘of

which related to the period seem e petitioner’ s incar- ~

ceration.

- 2. While not clearly spelled. out, petitioner’ s hear-’

.-- Say objections appear to be aimed principally at cer- «

" _ tain minor portions of Leeman’s testimony which were

based on. information acquired by him from co-con-

“ gpirators, and at the cross-éxamination of co-conspira- :

tor Beard regarding’ prior inconsistent statements

° As this Court pointed out in. Bruton v. United States. 391

U.S. 123, 135: “Not every admission of inadmissible hearsay or

_ other evidence can be considered to be reversible er roy unay ‘oid-

able through limiting instructions; instances: occur in almost

every trial where inadmissible ev idenee creeps in, usually inad-

v ertently. Ee

jets a aghe 5s 4 - s a ‘|

5 ; 4 : 8 rf of

° *. e i —_ . .

iE hae hess has ; } 8

: : 22 :

; @. : :

| | . which to some extent reported! what Beard had been |

hee g. told by other conspirators about the commission of |

ae * thed sordeaux robbery and Ferguson’ s murder” oh

st j :

ee ee Apart from. the bulk of Leeman’s testimony : J-

me Mig ; ready. adverted to, he testified ‘to certain otlier mat-

‘ters which might, he. said to involve the co- s-conspira-

7 tyr’ hearsay ‘rule. ‘He - stated, for example, that

| petitiond® had broken out of the. pe nitentiar \ and"

Ve an nn o needed: money. Lee man Was uncer tain as to whe ther. he <

: was told this by Fer gison, or petitioner, but ff it came:

. :

from Ferguson: it was during the early stages: we rtain-~

ing to the planning of the Bordedts-bank rvabbery CA,

* 981 9892) in addition, since he was not piedtnt during wo ty

4 ~ . s that robbery and did not assist in the actual escape, .

| Leeman must— have obtained his’ information ‘about’

ce Fa those: happenings from- Ferguson, or.‘later: that day

cS _, trem ‘petitioner at the Smeeting - held to divide sthe

aos atolen, money (see A. 289-290, 293-294). If the ‘informa-

tion caine from petitioner, it was ptainly admrissible’ .—

as his admission. Assuming that it came from Fer-

. ‘guson, its: admissibilityg involved: the co-conspirator ,

nae exce ption i in its normal, long-established application—

CMGa a 40-5 to statements by “a co- conspiri itor pr furtherance’s -

of .an ongoing conspiracy,, See, €.9.5° Dutton v. Hvans,

- 400 US. 74, 81; Wong Sun v. United States, 371 US.

eS ery the information. from Ferguson

a: Of cou ‘se. the fact ‘that ‘Fer euson wes ‘dead at thie time ae

trial did no ‘render his aannis } in further rance of the scheme

=a inadmissible. See, ¢.g., Delaney yx. United States, 263 U.S. 586, °

® - 590. For ani extended discussion’ of the rationale of the co-con-

a | . | #irator pele to the hearsay rule sce the Brief for Unitéd-

Be pgs : States as. Iynicus Curiae in the Dutton cise (No. 10, this Term,

pp. ae

* obviously in dire furtherance of the ongoing

“(testified ‘to by Lee man) that the’ iiss TY ald escape %

went without. a htitely emboldened the Conspirators to %

nie Mitinue furthezjn their “iNegal venture? and thus ee

furthered the unlawful scheme. And, the earlier state- .

ments made to Leé man by ‘Ferguson that’ pe titioner™ tein

* was being recruited. to! assist in the ‘robbay, -was

, as _

b. The hearsdy stitements mentioning ‘petitioner

Ww hich were elicited during the testimony of co-conspir®’

ator Beard involve /somewhat® different considera-

tions. That testimony did not relate to ‘statements in

furtherance of: the conspirady, but it was not offe red:

7. by the goverhment or allowéd into-evidence as proof |

of petitioner’s guilt. t. Rather, it was properly admitted | °

for narrowly, limited purposes, :

-, G) Beard testified in. his own defense, in large

megsurg to the effect that he had not murdered Fergu-

“son (see, .¢.9., Tr. 3236-3240, 3244-3246, 3249-3988, ©

3290-33300). While Beard was on the > stand, the dis- :

trict court specifically instructed the jnry v that any of

his statements made after his avbest . could he con ee

sidered only against him and not against any other |

defendant (A. B07). Beard had in faet been inter-- 1 —+

a vieRed by FBI agent Hillin on seven occasions -be- oo

tween May and October 1967; * Agtnt Hillin had pre- -

viously |’ testified that such interviews (preceded by

‘Miranda warnings) had taken, place and.that he aig

obtained information, about the.. Bor deaux robbery y%

from Beard, but Hillin had refated not ie of the de-

's Beard was initially arrested on Yer D. 1987 ae 479) :

was thereafter out on bail until his arrest in September es

+ following Fergusoy’s niurder, vee

Fs ©

tails of this information and had not- mentioned pe- °

titioner’ 'S name in his. testimony (A. 478, 483-488,

(491). og

On eross-ciamiflatio£ by the government, Beard

admitted that Ferguson had ‘described the Bordeaux

robbery to him (A. 11-513) ; he also had heard

' petitioner talking about: the robbery, but not in detail

(A. 513). At this point, the prosee¢ ‘utoy asked if Bear ”

_ . recalled attending a meeting held.at Gary Ethridge’s -

house during May 1967: Counsel. for certain of the

_ co-defendants (but -not for petitioner) objected, ‘and

government counsel said that* he intended to go into —

the details about, the meeting anid to cross-examine on

the basis of.a pretrial statement Beard had. made

about .the meetirig. In. the presence of the jury, the

~ Court stated that this would Be. admissible to test

‘ . Beard’s credibility (A. 514). |

Beard was then asked about a’ ‘statement he had given

to agent: Hillin when the latter visited his house in’

July (A. 014). This. statement was that Beard -had.

attended a meeting in May at Gary Ethridge’s house

to plan a robbery; the meeting was attended by Fer- -

guson, Gary Ethridge, petitioner and one Jenkins,

. and the. prior Bordeaux’ robber y was discussed. by

Ferguson and Ethridge and, to a lesser extent, by

- i fA. 919). Beard admitted making the

3g The Tbdetitiing portion “of: the st atement made’ by-« hana

to FBI Agent Hillin was, that at this meeting “Fish [F erguson |

and Gary [Ethridge] at that time said the. ‘robbery for this time _

would be a cinch, that it would be just like the Commerce Union °

_ at Bordeaux which ba! had pulled” TA. or nae)-

tc St GR

statement to the FBI, but initially testified that ‘it

was a lie (A. 515-516). As’ the. cross-examination ~

progressed, he admitted making a statment to the agent

that. the “Bordeaux robbery.* was planned- by Gary

Ethridge and Leeman, but said he’ could not “sav

of [his] own-knowledge whether it was true or false”

(A. 517). He then admitted making statements to

FBI Agent Hillin that Ferguson had “pulled” peti-

tioner into the Bordeaux robbery, but indicated dif-

_ ficulty in remembering exactly who had -given him

the information (A. 517-520).*” He indicated: that

most of the information regarding that robbery came

from Ferguson, but did not recall Gy else was

present at ‘the time (A. 521-522). He\thén read the

statement and recalled that he had told Agent Hillin

that the ‘information “was gotten from Ferguson,

la)

_ Bostic and Ethridge * *-*” (A, 524), At this june, __

ture, Beard said that he believed that petitioner had

shown him the place where he had jumped out of the .

- Cadillae and hid in the‘woods following the Bordeaux

robbery and that petitioner had buried a sack of fifty

dollars in -perinies there. (A, 524,. 526). He alsé ad-

mitted ‘as “probably. true’? the tatimnen le had made »

that he was present with Ferguson, Ga y Ethridge,

and petitioner when Ethridge held up a shotgun and

20 Several times during: cross-examination Beard stated in

- the jury’s-presenée that he had invented the May meeting (A.

524-526), but he did not’in his subsequent, cross-examination

. deny’ that he had received information about the Bordeaux -

robbery from his fellow conspirators on éther occasions, .

. 26 sin

"stated that it had made thom a lot -of- money CA.

528-529).

~~ When the cross-examination of. Beard heciied toa

paleo ‘statement (made to Agent Hillin afte 2 i

Beard’s second. arrest following Ferguson’s murder)

that he knew: that Ferguson had reported that Self

had tried to kill PNap, counsel’ for Self ob jected (AL

930-952). The judey then specifically instructed the

jury that the state ent was admitted * “solely with

respect. to what effect it may havé on the evedibility”’

of Beard (A. 536). He further cautioned the jury -

hot to consider the prior statement ‘ ‘as evidence’*

against Self (the only one impligated. by Beard’s post--

arrest statement regarding “Kerguson’s murder) on

any counts of the indictment i In which Self Was named

and that ‘tinelndes, the conspiracy count and the rob-

be Ty counts” CA; 536).

Tn his final charge t to the jury, the judge said L(A.

DAS—549):

Prior fncotisintent EIS are not in and

oof themselves, as T have instructed you duning .

the course of the trial, substantive evidence.

They may be-used, however, On CrOSS-exaimina--

tion for purpases of impe ichment or to refresh

“In the jury's presence, singe adinifted that he had told -

FBI Agent Hillin on October 11, 1967, that he had “heard” ©

that Self had attempfed to iit Ferguson and that le re- .

ceived information from Ferguson that an aftempt had been -

‘made on his life (A. 534-535). He testified, however, that

while he may have made. the statement, it was “not true”

(AL 535) and he did not know who killed Ferguson (A. 535-

536). ene:

\ .

Teg SEEN i tI Dag BEN

a aw itness’ recollection or r whe re G party is taken

hy surprise by his own witness’ testimony, the

Court may permit the pretrial state ‘ment to be

used asthe. basis for eross- -extmining the wit-

hess in an effort to lrave him accept such state--

ment in whole or in part as his: present testi-

mony.. To the extent. that he does so, his present

testimony is substantive proof ta be weighed

as to credibility and value by the jury, but in

that event? it is the witness’ present testimony

that constitutes ‘substantive pr oof, and not the

: ior inconsistent statement. ; :

(Gi)! Po thecexte nt: th: if Beard te ‘stified to. what peti-

tiener himself -had. told him concerning the Bordeaux

robbery, -this. would -be no different than statements

petitioner had made to Miss Farmer and Miss Te tos

and. was proper ly admissible against petitioner as his.

own admissions, It 3 1s doubtful, however, that. the. jurv

considered even these. as to petitione r iviasmuch as

‘most seemed to relate to the May meeting which Beard

denied having taken place, and the tr ial court ad-

monished the jury that only ifta witness jdopte ‘da

prior statement during his trial testimony could it be’

. considered as substantive proof of the events.”

For the same reason, it is fair to conclude that the .

\ jury did. not consider against petitioner Beard’s out-

of-court statements ‘concerning What other members

= Under California v. Green, 399 U.S. 149, petitioner thus

received more than he was constitutionally entitled to by: that

instruction. Green makes clear that the Constitution would al-

low the prior statement to - considered as substantive proof.

BRIDES eee RRR td Oe”

of the ring had told him about the Bordeaux robbery.”

At all events, reference to these statements at trial

for the limited purpose of attaeking Beard’s credi-

bility was proper under familiar principles and does

not bring this case within the rationale of Bruton Vv.

’ United - ‘States, 391 US. 123, as petitioner suggests

(see Pet. Br. 25-26). He re the goy ernment merely ~

sought to impeach a co-defendant who took the stand

by ‘asking -him 1 about prior statements. Bruton in-

ee a ee

velved the materially different situation where the

power@illy incriminating extrajudicial statements of

-accodefendant, who stands accused side-by-side with

the defendant [and who does not testify], are delib-

erately spread before the. jury ina joint tial’? 391

“3 Although in the “special setting: of this case there is. no-

reason to reich the iss e, we ser iously quest ion whether, at Jeast

us a constitutional matter, these statements attributed to other

C0- conspirators would have been inadmissible against .peti-

‘tioner., There was a strong indication that Peard was telling

- the truth when.he made the statement to the F BL regard-—

ing what his fellow conspirators had told hita of the Botdeaux

robbery: “There. was thus overwhelming. in: dependent evidence —

that petitioner and those who described. the events to Beard

had participated in the. Bordeaux robbery ; there was no ap-

parent reason for these other eonspirators to lie to Beard; and i

it was against their penal interest to make these statements.

See Dutton. Evans, supra, 400 U.S. at 88-89. -

Moieover, not only was” ‘Beard available fos cross-examina-

_ tion by petitioner but so were the other defendants, who all

testified in their own defense. Yet petitioner failed to avail —

himself of that right as to any of the defendants. See Ca/ifor-

Hi V. Green, 399 U . 149, 153-164.

DP gM TOG: . ——_

U.S. at 135-136." Indeed, the dissimilarity between

the two situations is particularly emphasized in this

case by thé fact that the statements given by Beard |

to the FBI relating to petitioner added nothing te

the overwhelming independent evidence of petitioner’s

a er ee re 8 ay FS

. Suilt established through testimony introduced as part

of the government’s direct case. See Dutton y..Evans,: - .

supra, at 88, and the concurring opinion of Mr. Jus-

tice Blackmun, 400 U.S. at 90-93.

In sum, even if one accepts the highly doubtful -

proposition that certain portions of the evidence’ ad-

duced during the governments cross-examination —

Beard were considered against petitioner by the jury:

- despite the trial court’s instructions,” such considera-

eel

} ~~

* Such limited use of a’ co-defendant’s prior statement to

impeach hin‘ as a witness ‘has been held consistent oe

Bruton rule by the lower federal courts. See, €.g.. United States ° 7

v. Ballentine, 410 F. 2d 375 (C.A. 2), certiorari denied, 397

U.S. 928; United States v. Boone, 401 F. 2d 659 (CLA. 3),

certiorari denied sub nom. Jackson vy. United States, 394. U.S.

933. q A * }

* Although the trial court’s instruction during the trial

“regarding” limit®i* use did not expressly -réfer ‘to petitioner ..

as -it did to co-defendant Self, this was obviously due

to the fact that the court delivered this particular admonition

immediately following reference to Beard’s statement con-

cerning the murder of Ferguson in which no reference was

made to petitioner (see supra p- 26). We deal more directly

‘in Point IL with the question whether the introduction of

', evidence of the murder supports petitioner's contention that

he.was the victim of prejudicial joinder, and urge that he was not.

. ive

meee > eel .

tion would have been harmless given the quality and

quatitity of other plainly admissible evidence which

convincingly established his guilt on the conspiracy

and substantive counts.” | .

‘ " & IL

PETITIONER WAS PROPERLY TRIED WITH HIS CO-DEFEND-

ANTS “EVEN THOUGH HIS ARREST CAUSED HIS WITH-

DRAWAL FROM THE CONSPIRACY _BEFORE ITS ‘TERMINA-

TION | | :

3, Petitioner was not Saar in the substaritive

count charging the murder of Ferguson. He was

named only as a co-conspirator in the charge*of con-

_Spiracy to rob banks, as to which some of the eleven

overt acts charged involved events occurring after.

petitioner’s arrest, including the murder of Fergu-

son.” As: we -have‘urged, there-can-be-no- doubt that—

petitioner | was a member of the conspiracy to rob

* One Cantey, Beard’s sometime employer, also testified

. that he had a conversation with Beard about the . Bordeaux

bank robbery (in which Beard had not participated) several

months after the robbery. He stated that: during ‘this - con-

versati@n Beard told him that “thirty thousand dollars” had

been taken, but that it was not a lot.of money w hen divided

five ways. Petitioner ‘was not named in Carney’ s testimony,

and the jury was instructed to consider his testimony only

against .Beard (A. 396-397). It could ‘not seriously be con-

tended that this incidental reference’ (followed immediately.

by instilating instructions) to a matter regarding which there

was overwhelming support. in the record by unchallenged ad-

asa evidence had any impact in this lawsuit. See Frazier

vi Cupp, 394 Us: 731, 735-736. Pere

* Petitioner Was not named in any ov ert iat occurring after his

arrest in ‘June 1967.

EN ee ee

31.

banks. As disctissed in Point f there was sventwhinhin:

ing evidence of his payticipation in the Bordeaux

robbery; the evidence that he remained a part of the

conspiracy and | participated in the - ‘unsuccessful *

Orlinda robbery was equally. overwhelining, consist-

ing of proof of his own acts and declar ations.

~ On the. other hand, there is nothing in this record

which would support the view that petitioner was’

a member of the “conspiracy at the time the plan

to murder Ferguson was ‘developed and carried out...

_ Whatever might have been the situation if the murder

of Ferguson had beén contemplated or planned be-

fore petitioner was arrested (cf. Pinkerton.v. United

States, 328 U:S. 640), -t there is no evidence in this ree-

ord that such. was the sittiation—here. Petitioner was .

arrested on June 5, 1967, and, so far as this record re-

veals, the plans for Ferguson’s murder did not take

root until several months thereafter. There is .also

nothing in the record to show that any of the remain-

ing con8Pirators visited or took an interest in peti-

tioner. after he was arrested. Under these cireum-

stances. we believe that petitioner’ S arrest effectuated

his withdrawal from the conspiracy whateter sub-

jective desire he may or may not have had to con-

tinue as one of the group. That is particular ly true

‘since the murder of Ferguson, while obviously an

outgrowth of the robberies, was not the basis for a con:

spiracy charge and was not so involved in the original —

scheme.to rob banks that it could be said to have been

‘within. the contemplation of the ‘conspiracy at the

time petitioner joined in April or before he withdrew

2«

“4

he stated. that ‘‘In ‘June, Mr. B

_ Spiracy because he’s arrested and sent to the penitenti-

- ary. So at. that point of course, Bostie is no longer a

- <s

in June. Of: Pinkerton v0 Tnited - States,. supra, 328

US. at 646; ‘Fiswiek v. United States, 329 U.S. 211.

217. : :

Although the tria sullge did so affirmatively

_ charge the jury that pe titioner had been-wWithdrawnh

from the conspiracy by his arrest, leaVing the issue of

w ithdrawal tec ‘hnically as one of Aact for the ge

the United States Attorney statdd amequivocally that

the gover: nment regarded petitigner as having. been

withdrawn from the conspiracy by virtue of his arrest ;

party to the eonspirac y * * * (Tr, 3636; the state-

structions to the jury must be read in the light of |

this-statement, and the fact that nothing in the evidence

tied petitioner intq the conspiracy after his arrest.

indeed the evidence points entirely the other way.

The trial ‘court deemed ‘withdrawal in- general an

issue of fact for the jury to resolve ; accordingly it did

not instruct that the eyidence of the overt.acts deal- -

: mg with Ferguson's ; murder Could not be relied upon

* 28 The obvious implications of the court’s instructions were

that if the jury found withdrawal: as to a particular defendant,

“ it could not consider against him any.acts or statements of

co-conspirators after that, date. We are unable to find any.

. request by petitioner that this be spelled out further, nor has

our examination disclosed: any indication in the record that

any specific charge on arrest as constituting withdrawal was

ever requested by petitioner’s counsel. After the final instruc-

tions. were given, petitioner's courisel indicated that he had no

requests for additional instructions ( 561 ).

sti¢ leaves the con-

to establish the existence of the conspiracy as a pun-

ishable crime” as regards petitioner: In. retrospect,

we think such an instruction would have ‘been ap/pro-

fe priate in view of the evidence against petitioner and

the government’ s categorical submission concerning.

petitioner’ s limited participation. Nevertheless, this

omission was-not prejudicial in the circumstances, Cf...

United States v. Agueci, 310 F. 24 817, 839-840 (C.A. °

2), certiorari denied, 372 U.S. 959. The trial court did

make clear that commission of a any one of the eleven

overt acts would suffice to meet the statutory require-

~ ments of 18 U.S.C. 371; that a defendant/s own con-

duet and declarations were the crucial determinants ms,

of his Membership in-the scheme; tliat mere co

' sion of an overtact without membership i in the: venture-

Was insufficient to convict; and, implie itly, that with-

drawal terminated a participant’s responsibility for

subsequent activities of the conspiracy. Viewed in light

of the United States Attor ney’s concession and the

_Plain import of the evidence, petitioner’s arrest would

-naturally and normally be treated by: the jury as con-

duct wholly. inconsistent with any theory of his con-

tinued adherence to the conspiracy,

2. This’ case. thus presents no issue of imiputing to

petitioner acts-done or statements made by . others

' (including the murder) after -petitioner’s arrest.

Rather, as to petitioner, the question is the different

2° At common law an overt act was not, necessary to estab- |

lish, a conspiraey; it is required under 18 U.S.C. 371, and the. -

statute of limitations cominences to run, unless otherwise sus-’

pended; from the last overt act during the conspiracy. ‘See,

C45 Fisiwick v. O nited States, supra, aa0 at 216.

~~”

‘Be é : oer ‘s 34

one ctl: ik was, ‘wifair to try him with certain”

CO- -defendants who were also charged in the .se parate

iE Lay suhstantive count with murder ing a co-conspirator,

| When. the record js examined as a whole, this cireum- |

| stance did not render the joint trial unfair.

..There clearly was a single conspiracy, y .centered

Zk see ee Ethridge venich contemplated bank robberies

: as an ongoing business venture. The’ murder of Fer-...

elson Was’ obviously designed not simply to conceal »

robberies that had already occurred but.to enable the

central conspirator Gary Exhr idge to remain free to

at continue in the business of planning and exe uting

| Nee bank robberies. All the substantive counts—ine ‘uding

HY 2d er the murder charge—were thus interwoyen with the

, . °. *. conspiracy. ain- these circumstances, the joinder of

Sit — eounts was jiroper even though all defendant: were

- not charged in all counts. Rule 8(b), E.R. @r. P.,-allows:

Sor the joinder of ck fendants “in the same indictment ** *

- . if they are alleged to have participated i in the same ae .

| or transaction or in the same series of acts or trans-

actions constituting an offense or offenses.’* This Rule

specific ally provides. that all defendants need not Ie

named in all counts for joinder to be justified. |

‘The original joinder being proper; the i issue narrows

to the question whether petitioner was so prejudiced

i that a severance was required under Rule 14, E.R. Cr.

ie Pe Resolution of that question essentially rested in the

‘sound discretion of the trial judge, Sch affer v. United

_ States, 362 U.S. 511, 514-517; Opper v. United States,

; oe 348 U.S. 84, 95. There was no abuse of diséretion- in

BB -

“refusing a siergnée in this case. a. trial of: six de-

fendants, in and of itself, . canhardlys he said to be

massive, and, although. there was extensive. evidence

prodticed, the. fac ‘tual issues were hot “complex. See -

United States v: Roselli, 432 F, 2 879, 898-902 (C.A. = °

9), certiorary denitd February 22, 1971 (No. 1029, this

Term); see also” United States v. Agueci, sepra, The

evidence ‘e against petitioner was clear. and easily coni-

partmentalized; and Ife was clearly out of the picture

after: his arrest. His participation in the conspiracy

was shown by Tirect : evidence relating to both the

Bordeaux and Or linda rol bberi ies; substantiv ely he was

~ charged only with the Bor ae robbery. There is no

ait,

- reason to beligge that “the j jury in reaching the verdicts 3

-it-did im perly consiaered evidence material only to a

-the guilt ofthers or to the proof of other offenses.”

United States v. Rabin, 316 Fy 2d 564, 568 (C.A. 7); » .

“

(C.A. 9). . ;

This is especially ey ident in this case since the se-_

lective verdicts as’ to the various co- -defendants.who

were lesser members of: the conspiracy—as was pe-

titioner—show that none of the defendants were swept

_ into a-conviction by a finding of “mass” guilt. See

Posey v. United States, 416 F. 2d 545, 550-551, (CLA.

5), certiorari denied, 397 U.S. 946; United States v.

_- Vida, 370 F. 2d 759, 765-766 .(C.A. 6), certiorari. de- ’

nied, 387 US. 910; Barnes v. United States, 381. Fr2d «

263, 264 (C.A.D.C.) ; United. States. v. Jordan, 399

F. 2d 610, 615 (C.A. 2), certiorari denied, 393 U.S.

1005. ‘While murder is a-crime which Juries are not

‘

from the evidence and the summation of government

counsel, that petitioner was not involved in’ the

murder. Indeed at the-very start of the trial on the voir

dire of the j jury, petitioner’s counsel noted that his client

was not charged with murder and asked w hether the

ie jurors would. be prejudiced because he had consorted

with men so charged (Tr. 194-798, 841-42, 1052). Phe

United States Attorney in his opening statement said

that the first item that the government expected to pre ove

was the murder of Ferguson “hy William Eugene Bear d

induced, and counseled to.do so by the defendant, Gary

Lee Etliridge” (Tr. 1158). The testimony of Beatd said

to implicate petitioner has already been discussed (see

supra pp. 23-28). The other defendants hardly men- -

tioned petitioner at all—and. ne, not in connection

with the murder. - :

b. There is a strong public intavenk in joint we :

in appropriate situations. They expedite the adminis-

tr ration _of . justice, reduce the congestion of trial.

dockets, conserve judicial time, lessen ‘the. burden

upon citizens who must sacrifice both time and money .

to serve upon juries, and avoid the necessity of recall-

ing ‘witnesses, who would otherwise be’ called upon _

to testify more than once. Parker v. United States,

“At most his post-grrést_ statements relating to the murder

used for impeachment focused on co- defendant Self and in no

" way involved petitioner (see ssi p. 26).

404 F, 2d 1193; 1196 (C.A. 9),. certiorari denied, 394° —

U.S. 1004; Bayless v. United States, 381 F. 2d 67, 72

-(C.A. 9). Undoubtedly, this interest does not outweigh

the right, of a defendant to a fair trial. Cf. Bruton v.

likely to ‘aust lightly, it was eas clear. to the jur y, he

- | me RM ere he

‘A —_ wen Cll f

+ fl ACRE SA Nhe hE GELNEDOA MITER, De AE

37,

‘United States, 391 vU. s, 123, 134. It i is our iheitesion:

however, that nothing i in this joint trial ‘could be said

to endanger petitioner ’s rights i in bas regard.

le TT

PETITIONER’ S REMAINING ‘CONTENTIONS. ARE Se daa

MERFT

In cursory fashioy, petitioned’, submits for the

_ Court’s consideration a variety of other issues (Pet.

Br. 30-33) that he terms “highlights of the prejudicial

_ Manner in which this trial was conducted” (Pet. Br.

30). "These claims are plainly without merit and war-

rant but summary discussion. , :

A. An impartial jury was properly impaneled.

The claim that the-jury was prejudiced against peti-

tioner has no support in the record. Petitioner was at

most a minor‘figure in the: conspiracy. There ‘is no evi- -

dence of. extraordinary publicity: implicating him in -

the. robberies or as a member of the gang of bank rob-

bers; and-an extensive voir dire examination was con-

ducted before the trial judge over ruled the motion for

a continuance * and for a change of ‘venue. After five

days of jury interrogation the court said that it was

“satisfied it’s a fair and impartial jury, as fair and.

‘impartial as it’s possible to obtain” (A. 186). He ob-

Served that (A. 184-185) : as a,

/e.

1 Petitioner points out no prejudice to his dafiaiee arising

from the denial of the. continuance. The reasons favoring a

joint: trial ‘also militate in favor of a speedy. trial so long as

it is not so speedy as to prevent an. adequate preparation of the -

- defense. There is nothing to indicate in this case that the de-

' fense was inadequately prepared.

Ae ian

You have to reconcile the right of a fair trial

with: the freedom of’ the press. You have to.

make the necessary adjustment, because those

are two fundamental basie rights under our sys?

_ tem. In tliis case I was particularly interested

in determining whether or not it would be pos-

sible to impanel a. fair and impartial jury in

~ view of the publicity which has occurred, and

- in this case there has been, considering the nim-

ber of jurors who have Keon interrogated, there

have been a remarkably few in number who haye

said that newspaper publicity has had anything

to do with their thinking until today, strange as

it may seem. sie

A few of the prospective aaa of the jury,

apparently with the idéa in mind that this would

be a good way to get offa jury, partic ‘ularly a jury

that was to be locked up, made a statement that

they had an opinion derived from publicity, but

I’ve satisfied my mind that you couldn’t get a

fairer jury regardless of what district you went

to in this ease.” By

The questioning of the panel by the prosecutor as to

possible bias against a member of the conspiracy who

made.a bargain with the prosecutor for his testimony

(i.c., Leeman) was within the bounds of propricty.

# The ,charge: that the prosecn (or “suggested special inst ruc-

tions to discourage jurors from admitting they had been

_ prejudiced by newspaper publicity” (Pet. Br. 30), apparently ,

refers to the discussion between the prosecutor and the district

— court about the problem presented by prospective jurors who,

in increasing numbers through the ,cqurse of the five-day

sélection period, were obviously coming to the conclusion that

by claiming to have fixed opinions about the case, they could

avoid the burden of jury service, The prosecutor merely asked

that - district ‘court han dearer the importance . of jury

a“ 6 : e

Ep Heng AE OR Ew em EE

Although Leeman was not, as s petitioner contends, a

“leading member” of the conspiracy, his testimony

| was important in setting forth the full scope of the

conspiracy and the government was entitled to un-.

cgver any bias of potential jurors arising from ‘his

status,’ Moreover, jurors who were excused ' by the

prosecutor on this basis were ordered. excused under

the government’s peremptory challenges (Tr, 789-792,

836, 838, 914-916, 983-985, 1043-1045). See Swain Vv."

Alabama, 380 U S; 202, 218-299)

B. The trial was euets conducted by the tril

judge. spt a

-l. The ordey of proof at trial is diseretionary. with

> the trial ‘court., If the government’ had attempted

to prove the murder at the end-of the dasp, it might

well have been urged that the government sought

‘to Infame the jury. immediately before it .réetired to—

consider its ve dict. In any event, as we have argued,

petitioner Was not charged with the murder and the

jury was’ not confused either purposely or inad- :

vertently—into thinking ‘that he was.

~ervice and the responsibilities that ‘are a part of it, so as to

deter claims of a fixed opinion merely to avoid service (Tr. 1024-

1025). The district court recognized that “they” ve gotten on to the

idea that its going to be a lock-up jury.” In accord with ‘the.

prosecuter’s suggestion if infor med ‘the next group to be

examined that (‘Tr. 1028).-: s

You have been called i to perform what is one of the

_ Most. important. civie duties which a citizen of the United: _

States has to perform, and that is serve. on a jury. m an

important criminal case for the ‘furpose of doing justice

between the parties.

This was clearly an appropriate admonition ited detailing

the essence of any juror’ s obligation. :

nae

———

2. Insofar as we have been able ‘to ascertain front

an examination of the record, the gun seized from ~

Gary Ethridge iti September 1967 was not introduced

into evidence. However that may be, the entry, arrest,

and séarch at the Ethridge’ s house did not involve .

petitioner and provided no evidence against him. |

3. Notwithstanding petitioner’s contention (Br. p.

31), his escape from the penitentiary was an inher-

ent element of Overt Act eight, which charged Beard

‘with harboring petitioner (A. 2). Moreover, it was

relevant to the substantive ‘counts regarding the Bor-

deaux bank robbery in ‘that it tended to show peti-

_ tioner’s need for funds to flee the area. See Bayless

_v.. United States, 381 -F. 2d 67, 72 (C.A. 9). Our

examination.ef the record has .revealed no indication.

that the jury was informed of: the basis for peti-

tioner’ s original incayeeration.

4, Evidence concerning the stolen automobiles was

relevant and necessary.in fully developing the details

of the Bordeaux bank robbery. Petitioner does not

indicate how the evidence of any “unconnected prior

crimes and ineareeration of various parties and non-

parties” (Pet. Br. 31) inflamed “ jury or prej-

sare him.

5. Several gover nment witnesses at triay repudiated

oo out-of-court statements to the FBI and the:

' United States Attorney. One admitted at trial that :

she was afraid (A. 345). Another witness flatly de-

nied making a statement to the FBI, and the district

court, at the prosecutor’ s request, informed him that

| he could be prosecuted for perjury (A. 372). These

-——/s

instances: can hardly be characterized ‘as “repeated

attempts to convince the jury by innuendo that the

defendants had terrorized gover nment witnesses”

(Pet. Br. 31).

CONCLUSION | ;

For. the foregoing: reasons, the judgment of the

court of ——— should be affirmed.

| Erwin N. Gmsworn,

‘ wns on tase Solicitor General.

/ Wi Wisoy,

Assistant Attorney General.

JEROME M. Fer,

Assistant to the Solicitor General.

Beatrice Rosen BERG,

‘Tuomas M. Locxkyey,

Attorneys.

Aprit, 1971.

U.S. GOVERNMENT PRINTING OFFICE: 1978

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.