United States v. Frank Fernandez

Frank Fernandez was indicted and tried for bank robbery in violation of 18 U.S.C. § 2113 (a). In cross-examination of F.B.I. Agent Thomas Bateman, defense counsel sought to elicit a post-arrest statement Fernandez made to Bateman in which Fernandez denied committing the robbery. The court sustained the government’s objection that the question sought to elicit hearsay.

Since the statement was not to be used against Fernandez, Fernandez acknowledges it was not admissible under the exception to the hearsay rule found in Rule 801(d)(2)(A), Federal Rules of Evidence. United States v. Palow, 777 F.2d 52, 56 (1st Cir.1985).

Fernandez contends his post-arrest statement was not hearsay because it was not offered for the truth of its contents, but to forestall any assumption that he had admitted guilt by silence. Since the government made no suggestion that Fernandez's silence was significant and did not introduce evidence that an accusatory statement was made in Fernandez’s presence or that he failed to respond to such a statement — prerequisites to inferring an admission by silence, see United States v. Moore, 522 F.2d 1068, 1075 (9th Cir.1975)— Fernandez’s justification for eliciting…