Bostic v. United States

RESPONDENT: United States
LOCATION: Charlotte-Mecklenburg School District

DOCKET NO.: 5250
DECIDED BY: Burger Court (1970-1971)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 402 US 547 (1971)
ARGUED: Apr 21, 1971
DECIDED: May 24, 1971

Facts of the case


Media for Bostic v. United States

Audio Transcription for Oral Argument - April 21, 1971 in Bostic v. United States

Warren E. Burger:

Number 5250, Bostic against the United States.

Mr. Binkley, you may proceed whenever you’re ready.

Thomas C. Binkley:

Mr. Chief Justice and may it please the Court.

My name is Thomas C. Binkley.

I’m a member of the firm of Howser, Thomas, Summers & Binkley and my co-counsel is Mr. Philip Carden from Nashville.

This -- the petitioner in this case, was tried in the Federal District Court in Nashville where he was charged in three counts of an eight-count indictment.

Specifically, he was charged with conspiracy or being a part of a conspiracy to rob banks.

He was charged with the robbing of a bank and he was charged with receiving money from the robbery of this bank.

This trial took some 29 days, not of actual trial time but 29 days to trial.

The petitioner herein was apprehended at the time this trial took place, he had been apprehended and returned to the penitentiary on the 5th day of June.

The bank robbery, he was alleged to have been involved in, occurred on the 24th day of April.

There were other charges --

Warren E. Burger:

Was this while he was a fugitive?

Thomas C. Binkley:

Yes sir, yes sir.

It was pointed out at the trial or it was argued by counsel for the Government at the trial that they were going to show that his escape was a part of the conspiracy, but this was never shown.

This is important for the Court because there were other charges made.

In this eight-count indictment there was a charge of a bank robbery which occurred on August the 3rd which was some two months after the petitioner was put back in jail and then there was also a charge of murder as a violation of federal statute to conceal crimes previously committed.

All of this occurred after the petitioner was returned to the penitentiary.

Now, our primary contentions before the Court, our first proposition; we’re saying that the recent rulings of the Court have changed or should change the conspiracy exception to the hearsay rule.

We think this is specifically, I mean, especially true in view of the Bruton decision, in view of the Jackson versus Denno case decided before Bruton and it’s our contention that Bruton draws these cases together.

As the Court will recall in the Jackson case, it was concerned with the confession which was turned over to the jury under the New York rule which provided that the jury should determine whether the confession is voluntary or not.

We think even though it hasn’t been expanded at this point to cover cases involving conspiracy, it’s our contention that it should follow.

In the Court, in the case -- in the court below, the district judge allowed proof to be offered and determined that the jury should determine whether or not a conspiracy in fact existed, whether or not out of Court statements made by a declarant, who was a part of the -- one of the declarants making out of Court statements was a part of the conspiracy, whether the statements were made in the course of the conspiracy and whether it was in furtherance of the conspiracy.

And you do not claim the proof in that, so did away with the co-conspirator?

Thomas C. Binkley:

Did away with what if Your Honor --

The Co-conspirator Rule?

Thomas C. Binkley:

No sir.

We’re -- it’s our contention that the rationale of Bruton and the cases preceding Bruton, Jackson versus Denno and others which are mentioned in Bruton that the logical consequence is to do away with the conspiracy exception rule as it is now employed by the federal courts.

We can see little difference in allowing, in saying that it’s a violation of constitutional rights to allow a jury to determine the voluntariness of a confession and then on the other hand say that it wouldn’t be proper or that it would be proper for them to determine whether a conspiracy in fact existed.

And we submit in our case, in the present case before the Court, the way it was tried, we allowed the out of court hearsay statements to come in.