## Facts

- Two armed men robbed a Pennsylvania bank on April 18, 1967, taking $8,950.75, including 25 recorded “bait bills.”
- The government alleged Edward George Booz was one of the robbers; no other suspect was charged.
- On June 12, 1967, Booz deposited cash at another bank that included 18 of the bait bills.
- FBI agents searched Booz’s home on June 14, 1967 pursuant to a warrant but obtained no additional evidence.
- A grand jury indicted Booz in August 1968 for federal bank robbery under 18 U.S.C. § 2113; trial occurred in January 1971 (about 2 years and 5 months after indictment).
- The government’s case was circumstantial, emphasizing Booz’s familiarity with the bank, alleged financial distress, proximity to the area, and testimony tying a reported license plate number (from a witness to an agent) to Booz’s trucks.
- At trial, the witness and FBI agent used the agent’s 1967 notes to refresh memory about the license plate number; the agent then testified to the number the witness had reported.
- Booz presented an alibi and reputation evidence, and argued the bait-bill deposit was consistent with ordinary business activity.
- The jury convicted Booz, and he was sentenced to 15 years’ imprisonment.

## Issues

1. Whether the alibi instruction adequately conveyed that the government must disprove the alibi beyond a reasonable doubt.
2. Whether the agent’s license-plate testimony repeating what a witness reported was inadmissible hearsay, or admissible under refreshed recollection or recorded recollection doctrines with proper foundation.
3. Whether the delay between indictment and trial violated the Sixth Amendment right to a speedy trial.

## Decision

- The Third Circuit reversed the conviction and remanded for a new trial.
- The court held the alibi instruction was reversible error because it did not clearly allocate to the government the burden to negate the alibi beyond a reasonable doubt.
- The court addressed the license-plate evidence and indicated its admissibility on retrial depended on laying an adequate evidentiary foundation under the proper doctrine, rather than permitting hearsay through an agent’s repetition of a witness’s out-of-court statement.
- The court declined to dismiss on speedy-trial grounds but treated the post-indictment delay as substantial and requiring careful consideration, including prejudice, on remand.

## Legal Principles

- An alibi is not an affirmative defense that shifts the burden of proof; the prosecution must prove guilt beyond a reasonable doubt and must disprove an alibi beyond a reasonable doubt when the evidence raises it.
- Alibi instructions must clearly communicate that the defendant need only raise a reasonable doubt and does not bear the burden of persuasion on the alibi.
- Testimony based on investigative notes may raise hearsay problems when it effectively repeats another person’s out-of-court statement; admission requires a proper foundation for present recollection refreshed or past recollection recorded.
- A significant delay between indictment and trial can implicate the Sixth Amendment; courts must evaluate relevant factors, including reasons for delay, assertion of the right, and prejudice to the defense.

## Conclusion

The court ordered a new trial because the jury charge on alibi risked shifting or obscuring the burden of proof, and it cautioned that the government’s license-plate proof must satisfy evidentiary foundations rather than operate as hearsay; it also signaled that the long post-indictment delay warranted close Sixth Amendment scrutiny on remand.


United States v. Booz, 451 F.2d 719 (3d Cir. 1971)