542 F.2d 687 (6th Cir. 1976)
The United States charged Hoosier with armed robbery of a federally insured bank located in Clarksville, Tennessee.1 At trial, four witnesses identified Hoosier as the robber, three of them positively.2
Robert E. Rogers testified that he had been with Hoosier before and after the bank robbery.3 Before the robbery, Hoosier told Rogers that he was going to rob a bank.4 Three weeks after the robbery, Rogers saw Hoosier with money and wearing what he thought were diamond rings.5
In the presence of Hoosier and Rogers, Hoosier's girlfriend commented on his affluence, stating that it was nothing compared to the money they had in the hotel room and speaking of sacks of money.6 Hoosier and his girlfriend disputed these facts in their testimony.7
The jury resolved the factual dispute in favor of the government and returned a verdict of guilty.8 Hoosier appealed his conviction to the Sixth Circuit, contending that the testimony about his girlfriend's statement was inadmissible hearsay and that the district judge committed reversible error by admitting it over objection.
Whether the district court erred in admitting the testimony of Robert E. Rogers concerning the statement made by the defendant's girlfriend in the defendant's presence?9
Rule 801(d)(2)(B) of the Federal Rules of Evidence provides that a statement is not hearsay if it is offered against a party and is a statement of which he has manifested his adoption or belief in its truth.10 Adoption or acquiescence may be manifested by silence when, under the circumstances, the person would protest the statement if untrue. This calls for an evaluation in terms of probable human behavior.11
No. The testimony of Robert E. Rogers regarding the girlfriend's statement about the sacks of money was properly admitted because Hoosier was present when the statement was made and did not deny it.12 Given that Hoosier had previously confided in Rogers about his plan to rob a bank, the circumstances indicate that his silence manifested adoption of the statement's truth under probable human behavior.13
The Advisory Committee's note supports this application in criminal cases.14 Recent Supreme Court decisions resolve concerns about self-incrimination.15 The jury's resolution of the factual dispute in favor of the government further supports the admission.16 Evidence of Hoosier's affluence three weeks after the robbery aligns with the statement.17
The district court did not err in admitting the testimony, and the conviction is affirmed.18