United States v. Grant

¶6PER CURIAM:

¶7Defendant was tried and convicted of aiding and abetting in the commission of a bank robbery of a federally insured bank in violation of 18 U.S.C.A. § 2113(a) and (d) (1970).1 The defendant *66conterids on appeal to this Court that the trial court improperly admitted hearsay evidence and evidence which was obtained in violation of his Miranda rights.2 Further, he asserts that the evidence presented was insufficient. We find these contentions to, be without merit and affirm.

¶8The defendant initially challenges the trial court’s admission of statements made by defendant’s two partners as they accosted a bank guard while defendant waited in the getaway car nearby. The guard testified that one of the bandits told him that he was going to blow his head off at the time when he was initially assaulted.3 We reject out of hand the defendant’s contention that this statement was inadmissible hearsay.

¶9First, it was said by one of his cohorts in the criminal enterprise then under way. So it is chargeable to him on accepted notions of agency. See, Park v. Huff, 5 Cir., 1975, 506 F.2d 849, 859 (en banc); United States v. Gattie, 5 Cir., 1975, 511 F.2d 608, 611.

¶10It is well established in this Circuit, see, Park v. Huff, supra,at 859 and others, see e. g., Carbo v. United States, 9 Cir., 1963, 314 F.2d 718, cert. denied, 377 U.S. 953, 84 S.Ct. 1625, 12 L.Ed.2d 498; United States v. Carminati, 2 Cir., 1957, 247 F.2d 640, cert. denied, 355 U.S. 883, 78 S.Ct. 150, 2 L.Ed.2d 113, that a statement of one conspirator in a crime is admissible against another participant when (i) the declaration is made in furtherance of the conspiracy, (ii) during the pendency of the conspiracy and (iii) when there is independent proof of a nexus between the declarant and the defendant. Carbo v. United States, supra.

¶11Here all of these elements are unquestionably met, for it would be fatuous for us to conclude that the statement was not made in furtherance of the conspiracy and during the conspiracy. Similarly, there is ample evidence in the record connecting the defendant and the declarant as participants in a common criminal enterprise.4

¶12While it is true that at the time this statement was admitted the prosecution had not yet presented any evidence connecting the defendant to the bank robbery attempt, this Court has repeatedly held that the trial court has broad discretion to admit statements made in furtherance of the conspiracy without first establishing the conspiracy and the defendant’s connection therewith.5See Nelson v. United States, 5 *67Cir., 1969, 415 F.2d 483, 487; Strauss v. United States, 5 Cir., 1963, 311 F.2d 926; Landers v. United States, 5 Cir., 1962, 304 F.2d 577.

¶13Next, the statement was not presented to prove the truth of the matters asserted therein so that its reliability was dependent upon the credibility of the declarant.6 Although not then technically7 applicable the Federal Rules of Evidence reflect these same views. 8

¶14We must also reject the defendant’s argument that his Miranda rights were not fully related to him before custodial interrogation began.9 Defendant’s claims in this regard must be rejected as a matter of fact, for after interrogating the FBI agent as to the specifics of the Miranda warnings which were administered prior to interrogation the Court concluded that all of the Miranda warnings had been read to the defendant, that there existed no coercion and that the statements made by the defendant were made freely and voluntarily.10

¶15Finally, on the basis of our many cases,11 we reject defendant’s claim that the evidence is insufficient as a matter of law to sustain the jury’s verdict. The record contains ample evidence upon which a jury could reasonably conclude that defendant aided and abetted in the attempted bank robbery.

¶16Affirmed.