United States v. Flecha

United States Court of Appeals for the Second Circuit · 1976 · Evidence

539 F.2d 874 (2d Cir. 1976)

Updated August 22, 2026

EvidenceRule 801(d)(2)(B)admission by silenceadoptive admissionhearsayco-defendant statementarrestsilence

Facts

Customs agents surveilled a Colombian freighter and observed Flecha, who was not a crew member, repeatedly conferring with crew members Suarez and Pineda-Marin late at night. Agents then saw Flecha, Gonzalez, and others drag four large bales to an unlighted area of the ship's deck, after which men moved through a hole in the pier fence and toward the ship; the bales were later found to contain 287 pounds of marijuana. After the defendants were arrested and lined up, Agent Cabrera heard Gonzalez say in Spanish, apparently to Flecha, "Why so much excitement? If we are caught, we are caught." The trial court instructed the jury that the statement was not binding on certain co-defendants, but denied Flecha's request for the same limitation because Flecha had been standing next to Gonzalez.

Issue

Whether a co-defendant's post-arrest statement, made in the defendant's presence, was admissible against the defendant as an adoptive admission based solely on the defendant's silence. If not, whether the erroneous admission required reversal.

Rule

A statement is not admissible as an adoptive admission by silence merely because it was made in the party's presence and heard by him. Silence may be treated as adoption only when the circumstances are such that, in ordinary experience, a person would naturally have denied the statement if it were untrue; when the person is under arrest, not at liberty to respond, or the circumstances do not naturally call for a reply, silence does not suffice.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Police in Phoenix arrested Devin Mora and Luis Ortega outside a warehouse after finding stolen electronics nearby. While both men stood handcuffed beside a patrol car, Luis said to Devin, "We both knew the boxes were hot," and Devin said nothing.

Is Luis's statement most likely admissible against Devin as an adoptive admission based on silence?

Explanation. A statement is not admissible as an adoptive admission merely because it was made in the party's presence and heard by him. The key question is whether, in ordinary experience, the circumstances were such that the person would naturally have denied the statement if it were untrue. Here Devin was under arrest and handcuffed, so silence is as consistent with prudence as with assent. Presence and hearing are necessary but not sufficient.