UNITED STATES, 336 U.S. 440 (1949)
convicted in a federal district court for inducing a woman (the
complaining witness) to go from New York to Florida for the purpose
of prostitution, transporting her from New York to Miami for that
purpose, and conspiring with another woman to commit those offenses.
At his trial, there was admitted in evidence over his objection
testimony concerning a statement made by the co-conspirator to the
complaining witness more than six weeks after the transportation to
Miami had been completed, which implied that petitioner was guilty
and suggested concealing his guilt. Held:
1. The hearsay
declaration attributed to the co-conspirator was not admissible on
the ground that it was made in furtherance of the conspiracy to
transport. Pp. 441-443.
2. Nor was it
admissible on the ground that it was in furtherance of a continuing
subsidiary phase of the conspiracy - i.e., an implied agreement to
conceal the crime. Pp. 443-444.
3. Since it cannot
be said on the record in this case that the erroneous admission of
the hearsay declaration may not have tipped the seales against
petitioner, it cannot be considered a harmless error under 28 U.S.C.
(1946 ed.) § 391; and the conviction is reversed. Pp. 444-445.
Petitioner was convicted in a federal district court of violations of the Mann Act and of conspiracy to
offenses, 18 U.S.C. §§ 88, 398, 399 (now 18 U.S.C. §§ 371, 2421,
2422). The Court of Appeals affirmed. 167 F.2d 943. This Court
granted certiorari. 335 U.S. 811. Reversed, p. 445.
Jacob W. Friedman
argued the cause and filed a brief for petitioner.
Robert W. Ginnane
argued the cause for the United States. With him on the brief were
Attorney General Campbell, John R. Benney, Robert S. Erdahl and
Joseph M. Howard.
MR. JUSPICE BLACK
delivered the opinion of the Court.
A federal district
court indictment charged in three counts that petitioner and a woman
defendant had (1) induced and
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U.S. supreme Court Reports
woman to go on October 20, 1941, from New York City to Miami,
Florida, for the purpose of prostitution, in violation of 18 U.S.C.
§ 399 (now § 2422); (2) transported or caused her to be transported
from New York to Miami for that purpose, in violation of 18 U.S.C. §
398 (now § 2421); and (3) conspired to commit those offenses in
violation of 18 U.S.C. § 88 (now 371). Tried alone, the petitioner
was convicted on all three counts of the indictment. The Court of
Appeals affirmed. 167 F.2d 943. And see disposition of prior appeal,
145 F.2d 76. We granted certiorari limiting our review to
consideration of alleged error in admission of certain hearsay
testimony against petitioner over his timely and repeated
The challenged testimony was elicited by the Government from its complaining witness, the person whom petitioner and the woman defendant allegedly induced to go from New York to Florida for the purpose of prostitution. The testimony narrated the following purported conversation between the complaining witness and petitioner's alleged co-conspirator, the woman defendant.
The time of the
alleged conversation was more than a month and a half after October
20, 1941, the date the complaining witness had gone to Miami.
Whatever original conspiracy may have existed between petitioner and
his alleged co-conspirator to cause the complaining witness to go to
Florida in October, 1941, no longer existed when the reported
conversation took place in December, 1941. For on this latter date
the trip to Florida had not only been made - the complaining witness
had left Florida, had returned to New York, and had resumed her
residence there. Furthermore, at the time the conversation took
place, the complaining witness, the alleged co-conspirator, and the
petitioner had been arrested. They apparently were charged in a
United States District Court of Florida with the offense of which
petitioner was here convicted.[fnl]
It is beyond doubt
that the central aim of the alleged conspiracy - transportation of
the complaining witness to Florida for prostitution - had either
never existed or had long since ended in success or failure when and
if the alleged co-conspirator made the statement attributed to her.
Cf. Lew Moy v. United States, 237 F. 50. The statement plainly
implied that petitioner was guilty of the crime for which he was on
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U.S. Supreme Court Reports
trial. It was made
in petitioner's absence and the Government made no effort whatever
to show that it was made with his authority. The testimony thus
stands as an unsworn, out-of-court declaration of petitioner's
guilt. This hearsay declaration, attributed to a co-conspirator, was
not made pursuant to and in furtherance of objectives of the
conspiracy charged in the indictment, because if made, it was after
those objectives either had failed or had been achieved. Under these
circumstances, the hearsay declaration attributed to the alleged
co-conspirator was not admissible
on the theory that
it was made in furtherance of the alleged criminal transportation
undertaking. Fiswick v. United States, 329 U.S. 211, 216-217; Brown
v. United States, 150 U.S. 93, 98-99; Graham v. United States, 15
F.2d 740, 743.
Government recognizes that the chief objective of the conspiracy –
transportation for prostitution purposes – had ended in success or
failure before the reported conversation took place, it nevertheless
argues for admissibility of the hearsay declaration as one in
furtherance of a continuing subsidiary objective of the conspiracy.
Its argument runs this way. Conspirators about to commit crimes
always expressly or implicitly agree to collaborate with each other
to conceal facts in order to prevent detection, conviction and
punishment. Thus the argument is that even after the central
criminal objectives of a conspiracy have succeeded or failed, an
implicit subsidiary phase of the conspiracy always survives, the
phase which has concealment as its sole objective. The Court of
Appeals adopted this view. It viewed the alleged hearsay declaration
as one in furtherance of this continuing subsidiary phase of the
conspiracy, as part of "the implied agreement to conceal." 167 F.2d
943, 948. It consequently held the declaration properly admitted.
We cannot accept
the Government's contention. There are many logical and practical
reasons that could be advanced against a special evidentiary rule
that permits out-of-court statements of one conspirator to be used
against another. But however cogent these reasons, it is firmly
established that where made in furtherance of the objectives of a
going conspiracy, such statements are admissible as exceptions to
the hearsay rule. This prerequisite to admissibility, that hearsay
statements by some conspirators to be admissible against others must
be made in furtherance of the conspiracy charged, has been
observed by federal courts. The Government now asks us to expand
this narrow exception to the hearsay rule and hold admissible a
declaration, not made in furtherance of the alleged criminal
transportation conspiracy charged, but made in furtherance of an
alleged implied but uncharged conspiracy aimed at preventing
detection and punishment. No federal court case cited by the
Government suggests so hospitable a reception to the
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U.S. Supreme Court Reports
use of hearsay
evidence to convict in conspiracy cases. The Government contention
does find support in some but not all of the state court opinions
cited in the Government brief.[fn2] But in none of them does there
appear to be recognition of any such broad exception to the hearsay
rule as that here urged. The rule contended for by the Government
could have far-reaching results. For under this rule plausible
arguments could generally be made in conspiracy cases that most
out-of-court statements offered in evidence tended to shield
co-conspirators. We are not persuaded to adopt the Government's
implicit conspiracy theory which in all criminal conspiracy cases
would create automatically a further breach of the general rule
against the admission of hearsay evidence.
under the harmless
error statute if upon consideration of the record the court is left
in grave doubt as to whether the error had substantial influence in
bringing about a verdict. We have such doubt here. The Florida
District Court grand jury failed to indict. After indictment in New
York petitioner was tried four times with the following results:
mistrial; conviction; mistrial; conviction with recommendation for
leniency. The revolting type of charges made against this petitioner
by the complaining witness makes it difficult to believe that a jury
convinced of a strong case against him would have recommended
leniency. There was corroborative evidence of the complaining
witness on certain phases of the case. But as to all vital phases,
those involving the sordid criminal features, the jury was compelled
to choose between believing the petitioner or the complaining
witness. The record persuades us that the jury's task was difficult
at best. We cannot say that the erroneous admission of the hearsay
declaration may not have been the weight that tipped the scales
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