BOSTIC v. UNITED STATES

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Argument of Thomas C. Binkley

Chief Justice Warren E. Burger: Number 5250, Bostic against the United States.

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

Mr. 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 --

Chief Justice Warren E. Burger: Was this while he was a fugitive?

Mr. 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.

Justice John M. Harlan: And you do not claim the proof in that, so did away with the co-conspirator?

Mr. Thomas C. Binkley: Did away with what if Your Honor --

Justice John M. Harlan: The Co-conspirator Rule?

Mr. 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.

We allowed the prosecution -- the prosecution of course, can start the case any way they want to, the prosecution started this case in this case with the murder count and then the jury has to sift through 13 days of testimony and determine whether or not this conspiracy in fact existed before they can start determining, before they can weigh the testimony and we submit especially in the framework of our case, that it was difficult for the trial judge to keep up with the statements without requiring the jury to in effect determine whether the conspiracy existed by the hearsay statements they were hearing.

And we feel that the proper rule, the rule which should be required of any District Court in trying this would be first to determine whether the conspiracy exists without turning this over to the jury and it is our contention that the rationale of the Bruton case would require this route.

Justice John M. Harlan: That’s an argument that was made as long as I’ve been at the bar, every trial, every conspiracy trial, the judge has admitted subject to connection that argument was always been made for 40 years?

Mr. Thomas C. Binkley: Yes sir.

Well, if Your Honor please, I think now would be --

Justice John M. Harlan: (Voice Overlap)

Mr. Thomas C. Binkley: I think now would be the perfect time to change it.

I think we have come this way and I think this is the way the Courts are leaning and as was stated in one of the cases, there’s no way that we can guarantee a defendant perfect trial.

We have to guarantee him as fairer trial as we can and certainly you obviate some of the difficulties you have if you require that at first be established that the conspiracy exists.

Justice John M. Harlan: Because the judge did charge in this case regarding recollecting charge, but the jury did not infer membership conspiracy -- in the conspiracy except through the testimony of the defendant, the testimony which was directly admissible against the defendant?

Mr. Thomas C. Binkley: Yes sir.

But this is the problem that the Court has been faced with in the Jackson case and others and as was stated so by Justice Jackson in the Krulewitch case that you just can't expect the jury to be able to sift all of this through and there has to be a limitation on human beings.

And in the present case before the court with the conglomeration of proof that was offered, we just feel that it would be impossible for the jury to determine this.

Our second proposition is concerned with the fact that we are stating that the petitioner herein was deprived of a fair trial by or was prejudiced by not having a severance.

His case was different from the other defendants involved in that he was incarcerated at a time the alleged murder was committed, at the time the second bank robbery was committed and could have had no part in this, at least, it would have to be affirmatively shown that he had a part in it.

Since the 1966 Amendment to Rule 14, it’s up to the district judge if he sees there’s going to be some prejudice involved to sever the cases.

This can be done even without motion.

Chief Justice Warren E. Burger: But now when you just said that he claims that he was incarcerated in prison when this took place, I’m not sure what the antecedent to this was, but he wasn’t incarcerated when the bank robbery occurred, was he or when --

Mr. Thomas C. Binkley: May it please, Your Honor, he was incarcerated on June the 5th.

He wasn’t incarcerated at time of the first bank robbery took place which was April of 24th 1967, but there was a second substantive charge of a bank robbery which took place on August the 3rd and he was incarcerated at that time.

Chief Justice Warren E. Burger: He could be part of a conspiracy in that connection, a preexisting conspiracy, could he not?

Mr. Thomas C. Binkley: Well --

Chief Justice Warren E. Burger: It covered that he may have intended to cover many bank robberies, but was interrupted by his recapture?

Mr. Thomas C. Binkley: Well, if Your Honor please, I haven’t been able to find a quote from this Court directly on this that the Court of Appeals have held in two cases cited in our brief that once a conspirator is arrested at least as far the conspiracy is concerned, his part in the conspiracy is terminated.

Now certainly a person in jail, I’m sure, could take part in a conspiracy, but I think at the time he’s arrested, there would be a presumption that his part has ended then it would be on the Government to affirmatively show that his part continued.

Chief Justice Warren E. Burger: What does that add to the Government’s burden -- burden to prove every element beyond a reasonable doubt.

Is that an additional burden?

I’m having difficulty seeing what your point is there?

Mr. Thomas C. Binkley: Well, as far as proving the conspiracy, this doesn’t add.

As far as proving the continuing part of the conspiracy, this is just a rule of evidence, if Your Honor please, of the burden of going followed with the proof.

Certainly the Government can show that he was a part of the conspiracy and if the Government can prove that he was a part of it up to a point and they prove this beyond a reasonable doubt, certainly he can be convicted of conspiracy.

The complaint the petitioner makes about the matters that took place after he was arrested is that this not only affected the conspiracy account, it affected the substantive count and put him on a position where as we argue in the case.

There were only two witnesses against him and witnesses we say were of questionable character, but the totality of the circumstances in this case, put the petitioner in such a position that it’s our contention the jury couldn’t weigh the testimony of these two witnesses against him.

And we feel this could all have been taken care of by a severance and the severance was asked for initially.

For example, as we point out, the case was started by the prosecution putting on evidence of a murder that took place.

There was four days of testimony concerning this murder which the petitioner had no part in whatever.

And then we had testimony concerning this other bank robbery, there was testimony in the record and the Government sought to put in testimony where witnesses had been intimidated and certainly this was something that by the allegations had to happen after the petitioner had been incarcerated.

Chief Justice Warren E. Burger: Was there any request for an instruction as to the proof concerning the substantive acts that took place after the rearrest and recapture of the petitioner?

Mr. Thomas C. Binkley: No.

Chief Justice Warren E. Burger: Request for an instruction on that?

Mr. Thomas C. Binkley: No sir.

There were -- there were objections made all during the trial concerning this, but to my best recollection, we didn’t ask for any special instructions.

Chief Justice Warren E. Burger: You certainly -- it would have been appropriate to request and appropriate to grant an instruction specifically aimed at the substantive events after his recapture, would it not?

Mr. Thomas C. Binkley: Well, we feel that it possibly would and quite in the light of the judges’ rulings during the trial.

Chief Justice Warren E. Burger: No, but if you’d asked for that instruction and it had been denied, your arguments that you’re making now would have a good deal of more force at least with me, but you didn’t ask for such an instruction?

Mr. Thomas C. Binkley: No sir.

Now, if Your Honor, may it please the Court.

The third matter, we are contending is concerned with whether not the conspiracy continued and as far as the petitioner was concerned after he was arrested.

And there apparently the Government is not contesting this particular part of it and as we’ve stated -- as we’ve stated before our primary contention here is even if we have had limiting instructions with the mass of proof that went in this case, both hearsay and non-hearsay and for matters unrelated to the charges against the petitioner that I don’t think it’s our contention there is no way the jury could have sifted through this and come up with a proper decision.

And there’s no way with the instruction from the Court that the jury could have sifted the admissible from the inadmissible and rendered a fair verdict at least as far as this petitioner is concerned.

If the Court has no other questions at this time, I would like to reserve my remaining time for rebuttal.

Justice Potter Stewart: I just have one or two questions.

Turning to the opinion of Judge Edwards in the Sixth Circuit, there’s a paragraph there that says, as to Bostic, although he had been returned to the penitentiary sometime before Ferguson’s murder, there is no evidence that he had renounced or withdrawn from the conspiracy.

You may remember that.

Mr. Thomas C. Binkley: Yes sir, I remember that.

Justice Potter Stewart: And it is now my understanding in the light of this record that the Government never claimed that he continue to be a member of the conspiracy after his arrest and return to prison and I’m referring to the part of the record that appears on page 12 and 13 of the Government’s brief which shows that the prosecutor made clear that in June, Mr. Bostic leaves the conspiracy because he’s arrested and sentenced and sent to the penitentiary.

So at that point, of course, Bostic is no longer a party to the conspiracy, that’s all.

I gather from the things I’ve just read you that the Court of Appeals was at least in that respect misapprehended what the -- what the Government’s claim was, didn’t it?

Mr. Thomas C. Binkley: Apparently so, the statement made by Judge Edwards’ is clearly in conflict with other Court of Appeals decisions and this is the only statement that I know of made in the trial.

This is about prosecutor where he says that he leaves the conspiracy because he is sent to the penitentiary, but continuing all in here I don’t know what the jury thought of this man where it says, “so at this point of course, his no longer part of the conspiracy,” but nonetheless, this would not prevent this from being of single continuing conspiracy.

Justice Potter Stewart: Well, that was the -- that was the overall conspiracy hatched up by Etheridge.

In the opposition to the petition for certiorari in this case, the Government stated as a fact that there had been a charge here of conspiracy to commit murder and there was no such charge in the indictment, was there?

I’m not being critical of you.

I’m saying that was a misstatement, I gather, in the Government’s opposition.

Mr. Thomas C. Binkley: Well, there was a charge, a substantive charge as a part of the conspiracy and then there was another charge of committing murder to avoid apprehension so --

Justice Potter Stewart: And Bostic was not charged with murder or with conspiracy to commit murder, am I right about that?

Mr. Thomas C. Binkley: That’s right.

Of course, they're charged in one count and he wasn’t named in that -- with -- they were 11 overt acts in the conspiracy count with -- if I recall, this being, the murder charge being the 11th one.

He wasn’t named specifically in that.

It’s a part of the overt acts of the conspiracy count that all parties in the trial were --

Justice Potter Stewart: Because the fact is that as was made clear, he was in prison for about three months before the murder was committed and on the day the murder was committed.

Mr. Thomas C. Binkley: Yes sir.

Chief Justice Warren E. Burger: Am I correct that in the prosecutor’s opening statement to the jury, he said that there was no intent on the part of the Government to show that Bostic had any part in the murder or conspiracy to commit murder?

He affirmatively told the jury that?

Mr. Thomas C. Binkley: I believe, my recollection doesn’t serve me well on that, if Your Honor please --

Chief Justice Warren E. Burger: After Miss Rosenberg.

Mr. Thomas C. Binkley: He might have.

Chief Justice Warren E. Burger: But my impression of the record that his opening statement made that very clear.

Mr. Thomas C. Binkley: Yes sir.

Chief Justice Warren E. Burger: It was in connection with statement I think that at that point, Bostic goes out of the conspiracy?

Mr. Thomas C. Binkley: Well, sir, of course.

He didn’t come back for ten days and this jury was a locked up for 29 days, so a lot transpired but I’m sure if Your Honor recalls that, that was said.

Chief Justice Warren E. Burger: Thank you.

Ms. Rosenberg.

Argument of Beatrice Rosenberg

Ms Beatrice Rosenberg: May it please the Court.

I think maybe this case --

Chief Justice Warren E. Burger: Could you raise your voice.

Ms Beatrice Rosenberg: I’m sorry.

I’m saying that, I think maybe we inadvertently mislead the Court.

Chief Justice Warren E. Burger: Ms. Rosenberg, perhaps you should lower the podium where you can get closer to the microphone.

You’re going the wrong way.

Ms Beatrice Rosenberg: I’ve gone the wrong way.

Chief Justice Warren E. Burger: Very well.

Ms Beatrice Rosenberg: It is going down.

Chief Justice Warren E. Burger: We have some very tall men here today.

Very well.

Ms Beatrice Rosenberg: This quotation on page 12 to 13 in our brief is in volume 22 of the record which got lost at that time.

We didn’t have as a matter fact at the time our brief in our opposition was filed.

We also had filed a separate brief on behalf of the other petitioners which stated the facts and so that we didn’t file a separate statement of the facts as to Bostic, but I accept what the Court of Appeals had said and there was a mistake in the Court of Appeals.

It said that the charge was conspiracy to rob banks and commit murder.

Now, the charge was the conspiracy to rob banks.

It did allege as one of the overt acts that Beard and Etheridge committed murder, but when you go through the whole record, I think it is fair to say that it was perfectly clear to the jury that Bostic was not regarded as involved in the murder and that appears not only from page, that’s the opening argument at the close of the case that we quote on page 12 to 13 of the case.

I don’t have to tell the Court how important that is to a jury, 12 to13 of our brief.

Chief Justice Warren E. Burger: Then I was mistaken when I said it was opening statement, it was the argument of the jury.

Ms Beatrice Rosenberg: It was the argument of the jury, it was the opening argument at the close of the case, but that appeared earlier the trial too and I call your attention to voir dire of the jury when they’re being picked and that took a lot of time because of the murder, there were 20 challenges, but I think its four times as they were groups called up.

Petitioner’s counsel said, and an example is at page 170 of the record.

Well, he made a statement, “The fact that one of the defendant or more than one of the defendants are charged with minor counts and are being tried along with other persons causing death, would that influence you.”

And then the court said, “Well, let me explain this.”

And it goes on and says, “In count eight, the defendants Beard and Gary Etheridge are charged with causing the death of Larry Ferguson.

Now, in the other counts of the indictment, other defendants are charged with offenses involving bank robberies and a conspiracy to commit bank robbery.

Now, with the fact that these two defendants are charged with causing the death of a person make it difficult to give a fair trial and to find the defendants to the other counts not guilty and this is I say was repeated four times to the voir dire.

The government counsel in his opening statement said how he was going to proceed in the case.

He said, “We’re going to present the proof of the murder first.

The murder that was committed by Beard and acquiesced him or counseled, stewarded by Etheridge and so it was perfectly clear that that murder proof was as to those two and not all as to the others.

Now, after the murder, there is no co-conspirator declaration.

What there is, is a dying declaration by Ferguson, but as to the murder aspect, we don’t get co-conspirator declarations very much at all except to a limited extent perhaps in relation to Etheridge and certainly reading the case as a whole, they were not imputed to this petitioner.

There is nothing in the record which suggests that.

As a matter of fact, in relation to this petition, there aren’t very many to co-conspirators to declarations that have any significance.

Aside from the murder, the proof was like this.

Juan Leeman testified, he was named originally as a defendant, testified that in April, he and Etheridge decided.

They‘ve been in robbing merchandise before.

They cited that wasn’t any good because you can get caught with the merchandise money was safer, that they were going to the bank robberies, but they weren’t going to do it themselves, they would get people to do it for them.

Justice John M. Harlan: Could I ask you one question?

This murder was charged as an act.

An overt act, is that right?

Ms Beatrice Rosenberg: Yes.

Justice John M. Harlan: Now suppose it hadn’t been the only overt act charged in the indictment, could that have been used to prove the conspiracy?

Ms Beatrice Rosenberg: As to Bostic, I don’t think so.

I do not think so.

On that, let me say, that I think a question of --

Justice John M. Harlan: I would’ve supposed it could, but I am surprised with your answer?

Ms Beatrice Rosenberg: Well, I think in relation to Bostic, I think the question of withdrawal from the conspiracy Your Honor is a question of fact.

Justice John M. Harlan: Because he was out of -- out of the --

Ms Beatrice Rosenberg: It’s not only that he was in jail because for example Beard was in jail for a few days and let out on bail.

Beard was arrested when -- Bostic was taken because Bostic was found in his house.

Now, Beard was arrested at that point and then was out on bail and it was after he was out on bail that they committed the third robbery and that they committed the murder.

But the question as to Bostic is a question of withdrawal and that’s a question of fact and on these facts, I think there really isn’t any doubt that he had very nearly been withdrawn from the conspiracy, removed, I don’t know if it was a voluntary withdrawal, but he had withdrawn.

Justice Byron R. White: (Voice Overlap) when he say so to the jury?

Ms Beatrice Rosenberg: Yes.

That’s -- that quotation on page 12 and 13 of our brief.

It’s --

Justice Byron R. White: But there was no, there wasn’t any the instruction?

Ms Beatrice Rosenberg: No, there wasn’t any instruction specifically on it.

There was an instruction which is that somebody could withdraw and there wasn’t any instruction on the consequences of withdrawal, although I think it is evident that the person in that is if he had withdrawn, he wouldn’t be held.

But what the judge did say and what the theory of this case is was that Bostic had been shown to be a member of the conspiracy to rob banks on plenty of evidence that had nothing to do with the murder.

Plenty of evidence of what he did and what he and Self said to his girlfriend in Court long before he was apprehended.

This first robbery occurred in April and then they went down to Florida, a group of them.

At this point, Beard comes into the picture.

Apparently he’s a friend of Fergusons and then a whole group of them go up and try to rob a bank in Orlinda, that’s includes this petitioner, at Orlinda, Tennessee, but that bank robbery was unsuccessful because an employee the bank lived above it, heard the noise.

And then they come back and in June, petitioner is arrested.

Now at that point he’s out.

There’s no question I think that on the facts of this case and I think there isn’t any question the jury so understood.

It happened to be as highly selective jury in its verdict even as to the others.

And for example is, in August bank robbery where he was charged but the jury wasn’t satisfied with the proof as to that robbery so the only person who was convicted in relation to that conspiracy was Beard who was shown to have had the money from the robbery in his actual possession.

And while the judge did not specifically charge that the murder was not to be considered in relation to petitioner, he did charge in relation to statements as to others that as -- and that’s at 556 of the record.

The statements, testimonies been offered relating to statements made by one or more of the defendants on one or more occasions.

Testimony being of the witness is Leeman who test -- who was a member of the conspiracy and testified to acts either that he knew about the planning or that had been told to him right after the robbery.

Connie, who relates only to statements by Beard from and that’s petitioners girlfriend and Letos who was with the group in Florida and testified to statements they made there.

So that we do not have as to this petitioner the basic rules going into questions of proving his part in the conspiracy for the time he was in it by statements of co-conspirators.

The major part of the proof against him came from his co-conspirator Leeman and his own personal admissions to his friends.

Now, there was some other co-conspirators statements admitted.

But as a matter of fact when there was an attempt to prove some of the statements that Ferguson had made to some of the girls, at that point, page 148 of the record, counsel have checked it and that didn't come in in that way.

Some other statements by Ferguson came in at another time.

Other complaints that are made by petitioner about hearsay evidence don’t mention him at all.

As a matter of fact, the main complaint is in relation to testimony regarding a young man himself and had nothing to do with petitioner, so that this case really does not involve the Grunewald question or the co-conspirator rule.

Justice Byron R. White: Ms. Rosenberg, you aren’t seeking here to sustain the opinion of the Court of Appeal?

Ms Beatrice Rosenberg: No and our brief in opposition as a matter of fact.

Justice Byron R. White: No.

Because your brief in opposition seem to indicate that indeed this gentlemen was either convicted of murder or conspiracy to murder?

Ms Beatrice Rosenberg: I can only say Your Honor, you have to read the record in regard to Bostic.

Justice Byron R. White: And in connection with the Court of Appeals, you would think the same thing?

Ms Beatrice Rosenberg: Well, that’s right, I think, as I say, there is a combination of things the -- we didn’t concentrate on Bostic and I’m afraid the Court of Appeals didn’t either and particularly --

Justice Byron R. White: Except that, what the Court of Appeals said mean about Bostic may not be sustainable?

Ms Beatrice Rosenberg: What the Court of Appeals said about Bostic is not sustainable in my --

Justice Byron R. White: And so what should we do about that?

Ms Beatrice Rosenberg: Well, I think that the question is whether Bostic’s conviction is sustainable?

Justice Byron R. White: Alright, so we just -- we're talking about a judgment not the opinion?

Ms Beatrice Rosenberg: Right.

I think that the judgment is clearly sustainable.

The opinion is not.

On these facts, I don’t say that there weren’t other facts where somebody in jail might be held to be a member of the conspiracy.

Justice Byron R. White: No, I understand that, but on these facts?

Ms Beatrice Rosenberg: On these facts, no.

The opinion is not sustainable.

Justice John M. Harlan: I’d like to go back to the overt act.

How can you tell from this verdict whether or not the murder which is charged as one of the overt act was not the overt act that was used by the conspiracy?

Ms Beatrice Rosenberg: Well, we do know that the jury found other overt acts.

Justice John M. Harlan: Were they special verdicts?

Ms Beatrice Rosenberg: Well, no they were not special verdicts, but they were counts of the indictment which charged this first bank robbery which petitioner was in and charged receiving the money from that bank robbery which was split five ways.

Justice John M. Harlan: Do you run into a sort of a (Inaudible) problem?

Ms Beatrice Rosenberg: Well, I don’t think we do because it’s perfectly clear that the jury found on ample, more than ample evidence that petitioner committed this Bordeaux bank robbery.

Now, he was charged with being a member of the conspiracy which to rob banks.

The judge by the way specifically refused to charge on Pinkerton in this case.

He said, in doing that, he said, the murder in this case is not charged as an object of the conspiracy, it’s charged as one of the overt acts.

In the face of the fact that the jury clearly found that these people were in a conspiracy, they commit the Bordeaux robbery and something else they didn’t a specific of finding about the bank robberies but they clearly found that because those were substantive of events charged to jury as to those substantive offense since you can’t consider co-conspiracy statements.

He went beyond what he was required to do, but he did so charge and as I say the evidence is overwhelming that they did do this bank robbery.

Then it is perfectly clear that the jury found the conspiracy to rob banks and at least the overt act of the Bordeaux robbery whether in addition it also found the murder would be unimportant.

Chief Justice Warren E. Burger: Wasn’t there another at least arguable response to that, namely that the Government conceded, well more than conceded, asserted flatly that after he returned to prison on his recapture, he was out of the conspiracy.

Ms Beatrice Rosenberg: Yes.

Chief Justice Warren E. Burger: That was probably at least as strong as an instruction to the court since it came right through the prosecutor?

Ms Beatrice Rosenberg: Well, I think that that is and I think that is very clear.

I also think that if you go through the record which you can’t do when you start just putting together all the objections in the appendix and now it goes around them, I think if one goes through the record, one can see that the Government really did try to keep the event compartmentalized.

They said clearly in the beginning, were going to present the evidence of the murder first and the murder concerns Beard and Etheridge, those only -- those two.

Then later on when there’s some attempt by Beard to imply that Self which again a young man who wasn’t, didn’t even come up on appeal might have tried to murder him.

They said, “Well, he wasn’t even charged with the murder.

It was made clear to us at trial that while it was an overt act in doings of the conspiracy with Etheridge as the center of the conspiracy, that don’t come through the trial also.

It was perfectly clear throughout the trial that nobody was saying that not only Bostic, but Self and some of the other defendants, nobody was accusing anybody but Beard and Etheridge as being responsible for the murder and with Etheridge the real center of the conspiracy.

Justice Harry A. Blackmun: Ms. Rosenberg, let me be very sure of your of your position.

Do I take it in a response -- in your answer to in response Justice White’s question, despite the misapprehension of the Sixth Circuit panel and Judge Edwards in his opinion, is it the Government’s position that this case in any event need not be remanded to the Sixth Circuit?

Ms Beatrice Rosenberg: Yes.

That is our position because our position is that it is perfectly clear on this record in every way that Bostic was not charged directly or by implication with the murder.

On the other hand, it is perfectly clear on this record that Bostic was properly convicted both of the Bordeaux bank robbery with which he was charged and winged with being a member of the conspiracy for the length of time that he was out of jail.

Justice Harry A. Blackmun: I suppose he will always feel as long as that opinion stands, he’s charged and convicted of something else, would he?

Ms Beatrice Rosenberg: Well, Your Honor, I think it’s significant that in the petition for certiorari and I think in his brief he says the question is, whether the Court of Appeals should have charged him as being responsible for the murder.

And although the Court of Appeals really says is, that it wasn’t -- there was no showing of affirmative withdrawal from the conspiracy, I don’t think, they said he did it or really had any part in it and they just said technically, legally he had withdrawn.

I think that was wrong because I think that on these facts would show, he was taken over the penitentiary and there’s absolutely nothing in the record to show that anybody even visited him after that.

I think it would be wrong to impute the murder to him, but I don’t think it was done at the trial.

I think it was made perfectly clear that he wasn’t involved.

Chief Justice Warren E. Burger: Mr. Binkley, do you have anything more?

You have about nine minutes if you wish.

Rebuttal of Thomas C. Binkley

Mr. Thomas C. Binkley: Nine minutes, yes sir.

May it please the Court.

There has been some confusion on this and I think at least for our argument today, we’ve been drawn away to what might possibly be one of the minor issues in the case.

But to answer in a way, the record will show the parts of the testimony we’ve cited in the appendix will show, that the prosecutor wouldn’t do me any favor and the petitioner any favor when he conceded that the petitioner was back in the penitentiary because I’ve tried in most to the case keep that out.

And so I didn’t feel like I could elaborate on this man’s incarceration because it certainly doesn’t help you before a jury to let you know that your client's from that place of residence at this time is a state penitentiary.

Chief Justice Warren E. Burger: Yes, but didn’t it help you quite a bit to have him cut loose from this, at least very much premeditated murder, motivated murder?

It would help him a lot better, didn’t it?

Mr. Thomas C. Binkley: Yes sir.

I believe that, I’m sure that did help him if in fact this was done.

The count was still tied on to the conspiracy charge and it’s just a question of whether the jury can remove this from their minds and take it away, especially in view of everything else that came in.

Now, there was a testimony.

It’s pointed out in our brief and we’ve cited examples in the appendix of portions where the Government impeached their own witnesses with prior statements not made by the person, but alleged to have been made by the FBI man where the statement of what the FBI man said the witness said was read in open court to impeach.

There was also some testimony of declarations made by Ferguson, who of course was dead and who we had no way to cross examine.

There was also an FBI report brought in by -- when Beard was being testified, of course, this takes Beard a little out of the rationale of the Bruton case, but we submit that we’ve pointed out instances where this has happened.

Now, there was a discussion in Court when Ferguson’s brother was testifying and they were trying to allow this to come in by asking Ferguson’s brother first, if he knew any of the parties and then saying, “Now, don’t name the parties but go ahead and tell us what was said” and of course that was objected to, but that was allowed to come in.

It’s our contention that it should be spelled out that now is the appropriate time, the rationale of the Bruton case, taking into account the Jackson case and others should set down the rule that the Government, just like in a -- question of volunteer confession, the trial judge should first determine there is a conspiracy before he allows all of this hearsay to come in and then ask the jury after you’ve heard all this, determine whether conspiracy existed.

A conspiracy case is a difficult case to try.

The record shows that every piece of hearsay and double hearsay was brought into this record by the prosecutor standing up and saying, but Your Honor, this is a conspiracy case which means everything goes.

This -- it’s our contention that now is the time and certainly if the Court doesn’t feel that this should be reversed on -- under the Bruton rule, certainly it was prejudicial and prejudice could have been taken away by severance.

And certainly with the obstacles, the difficulties the Court of Appeals found in this that the judge, the trial judge found, certainly it should have been known that we could have avoided any of this by having a separate trial and we’ll never know.

Of course, we concede the jury convicted, but we’ll never know, how they would have weighed the testimony of the two witnesses against the petitioner herein had their minds not been cluttered with all these other things that I couldn’t remove from the jury just as I couldn’t remove myself from the counsel table where we were required to be by the Court.

And it’s our contention that this case should be reversed and remanded on our two grounds.

Chief Justice Warren E. Burger: Thank you, Mr. Binkley, thank you Ms. Rosenberg.

The case is submitted.