A federal district court indictment charged in three counts that petitioner and a woman defendant had (1) induced and persuaded another woman to go on October 20, 1941, from New York City to Miami, Florida, for the purpose of prostitution, in violation of 18 U.S.C. § 399 (now § 2422); (2) transported or caused her to be transported from New York to Miami for that purpose, in violation of 18 U.S.C. § 398 (now § 2421); and (3) conspired to commit those offenses in violation of 18 U.S.C. § 88 (now § 371.) Tried alone, the petitioner was convicted on all three counts of the indictment. The Court of Appeals affirmed. 2 Cir., 167 F.2d 943. And see disposition of prior appeal, 2 Cir., 145 F.2d 76, 156 A.L.R. 337. We granted certiorari limiting our review to consideration of alleged error in admission of certain hearsay testimony against petitioner over his timely and repeated objections.
The challenged testimony was elicited by the Government from its complaining witness, the person whom petitioner and the woman defendant allegedly induced to go from New York to Florida for the purpose of prostitution. The testimony narrated the following purported conversation between the complaining witness and petitioner's alleged co-conspirator, the woman defendant. 'She asked me, she says, 'You di n't talk yet?' And I says, 'No.' And she says, 'Well, don't,' she says, 'until we get you a lawyer.' And then she says, 'Be very careful what you say.' And I can't put it in exact words. But she said, 'It would be better for us two girls to take the blame than Kay (the defendant) because he couldn't stand it, he couldn't stand to take it." The time of the alleged conversation was more than a month and a half after October 20, 1941, the date the complaining witness had gone to Miami. Whatever original conspiracy may have existed between petitioner and his alleged co-conspirator to cause the complaining witness to go to Florida in October, 1941, no longer existed when the reported conversation took place in December, 1941. For on this latter date the trip to Florida had not only been made-the complaining witness had left Florida, had returned to New York, and had resumed her residence there. Furthermore, at the time the conversation took place, the complaining witness, the alleged co-conspirator, and the petitioner had been arrested. They apparently were charged in a United States District Court of Florida with the offense of which petitioner was here convicted.
It is beyond doubt that the central aim of the alleged conspiracy-transportation of the complaining witness to Florida for prostitution-had either never existed or had long since ended in success or failure when and if the alleged co-conspirator made the statement attributed to her. Cf. Lew Moy v. United States, 8 Cir., 237 F. 50. The statement plainly implied that petitioner was guilty of the crime for which he was on trial. It was made in petitioner's absence and the Government made no effort whatever to show that it was made with his authority. The testimony thus stands as an unsworn, out-of-court declaration of petitioner's guilt. This hearsay declaration, attributed to a co-conspirator, was not made pursuant to and in furtherance of objectives of the conspiracy charged in the indictment, because if made, it was after those objectives either had failed or had been achieved. Under these circumstances, the hearsay declaration attributed to the alleged co-conspirator was not admissible on the theory that it was made in furtherance of the alleged criminal transportation undertaking. Fiswick v. United States, 329 U.S. 211, 216-217, 67 S.Ct. 224, 227, 91 L.Ed. 196; Brown v. United States, 150 U.S. 93, 98-99, 14 S.Ct. 37, 39, 37 L.Ed. 1010; Graham v. United States, 8 Cir., 15 F.2d 740, 743.