# Brief for the United States — James Herman Bostic v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1538%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the United States - **Published:** January 1, 1971 - **Citation:** 402 U.S. 547 ## 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 ie Opinion NEP ae Ae PONS SOTO ine | ee 30 - 36 "37 39 41 ee -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... . 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) 7 - 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). . ey J “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 f 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 99 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 . * 6 e 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 we “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 a 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 . . ° . »* 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 ? . “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). : oy § - & @ 3 ei ae ened \ wi; ms *. 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 ~ b: 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. I e- 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 © As the opinion of Mr. Tustice Stew art’ in Dutton v. Evans. 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 2 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- a 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 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 © 5 eo 24 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 25 s 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. - Y BRIDES eee RRR td Oe” 28 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 . 30 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 a * 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 Yd time petitioner joined in April or before he withdrew 2« “4 es a" 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 - 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 e ——— 40 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 Y 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. 4 Aprit, 1971. _? U.S. GOVERNMENT PRINTING OFFICE: 1978 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1538%3A3. Public record. Not legal advice.