U.S. v. Hoosier, 76-1112

• Decision Date: 11 October 1976
• Docket Number: No. 76-1112,76-1112
• Citation: 542 F.2d 687
• Parties: 1 Fed. R. Evid. Serv. 1201 UNITED STATES of America, Plaintiff-Appellee, v. Herman D. HOOSIER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 687

542 F.2d 687

1 Fed. R. Evid. Serv. 1201

UNITED STATES of America, Plaintiff-Appellee, v. Herman D. HOOSIER, Defendant-Appellant.

No. 76-1112.

United States Court of Appeals Sixth Circuit.

Argued June 9, 1976.

Decided Oct. 11, 1976.

Ted F. Walker, Nashville, Tenn. (Court-appointed), for defendant-appellant.

Charles H. Anderson, U.S.Atty., Joe B. Brown, Nashville, Tenn., for the U.S.

Before EDWARDS and LIVELY, Circuit Judges, and McALLISTER, Senior Circuit Judge.

PER CURIAM.

Appellant seeks to overturn his jury conviction on one count of armed robbery of a federally insured bank. Four witnesses identified him, three of them positively, as the person who robbed the bank in Clarksville, Tennessee.

Another witness, Robert E. Rogers, testified that he had been with the robbery defendant before and after the bank robbery, that before the bank robbery defendant told him that he was going to rob a bank, and that three weeks after the bank robbery, he saw defendant with money and wearing what he thought were diamond rings, and that in the presence of defendant, the defendant's girl friend said concerning defendant's affluence at that point, "That ain't nothing, you should have seen the money we had in the hotel room," and that she spoke of "sacks of money." Although both defendant and his girl friend disputed these facts in their testimony, obviously the resolution of that fact dispute was for the jury, and we must assume the jury resolved it in favor of the government by its verdict of "guilty."

Appellant's sole appellate argument to this court, however, is that the testimony elicited from the fifth witness concerning appellant's girl friend's statement was inadmissible hearsay, and that it was reversible error for the District Judge to fail to grant the objection to its admission.

Relevant to this issue is Rule 801(d)(2)(B) of the Federal Rules of Evidence, which reads in applicable part:

(2) Admission by party-opponent. The statement is offered against a party and is . . . (B) a statement of which he has manifested his adoption or belief in its truth, or . . .

The Advisory Committee's note concerning this rule is as follows:

(B) Under established principles an admission may be made by adopting or acquiescing in the statement of another. While knowledge of contents would ordinarily be essential, this is not inevitably so: "X is a reliable person and knows what he is talking about." See McCormick § 246, p. 527, n. 15. Adoption or acquiescence may be manifested in any appropriate manner. When silence is relied upon, the theory is that the person would, under the circumstances, protest...