## Facts

- Herman D. Hoosier was charged with armed robbery of a federally insured bank in Clarksville, Tennessee.
- At trial, four witnesses identified Hoosier as the robber, three positively.
- Government witness Robert E. Rogers testified that, before the robbery, Hoosier told him he was going to rob a bank.
- Rogers testified that about three weeks after the robbery he saw Hoosier with money and what Rogers believed were diamond rings.
- In a hotel-room conversation three weeks after the robbery, Hoosier’s girlfriend stated, in Hoosier’s presence, that Rogers “should have seen the money we had in the hotel room,” referring to “sacks of money.”
- Rogers testified Hoosier did not deny or contradict the girlfriend’s statement at the time it was made.
- Hoosier and his girlfriend disputed Rogers’s account, and the jury convicted Hoosier in the Middle District of Tennessee.

## Issues

1. Whether testimony recounting the girlfriend’s out-of-court statement, made in the defendant’s presence and not denied, was inadmissible hearsay or admissible as an adoptive admission under Federal Rule of Evidence 801(d)(2)(B).
2. Whether admission of that testimony required reversal of the bank-robbery conviction.

## Decision

- The Sixth Circuit affirmed the conviction.
- The court held the girlfriend’s statement was properly admitted as non-hearsay because the defendant’s failure to deny it in the circumstances supported an inference of adoption under Rule 801(d)(2)(B).
- The court treated conflicts in testimony about whether the statement occurred as matters for the jury, and accepted the jury’s resolution in favor of the government.

## Legal Principles

- Under Fed. R. Evid. 801(d)(2)(B), a statement offered against a party is not hearsay if the party manifested adoption of, or belief in, the statement’s truth.
- Adoption may be shown by silence when, in context, a reasonable person would be expected to deny an incriminating statement if it were false.
- Whether silence constitutes adoption depends on the circumstances and an assessment of “probable human behavior,” including the setting and the relationship among participants.
- In a private, non-custodial conversation with an associate to whom the defendant had previously disclosed criminal intent, a failure to deny an incriminating remark may support admissibility as an adoptive admission.

## Conclusion

The court upheld the evidentiary ruling admitting a companion’s “sacks of money” remark as an adoptive admission by silence, concluding that the conversational context made a denial naturally expected if the statement were untrue and that the conviction should stand.


United States v. Hoosier, 542 F.2d 687 (6th Cir. 1976)