1. When a judge's charge to a jury is accurate and correct, the
extent of its amplification rests in his discretion, and the fact
that the charge is unusually brief does not make it a reversible
error where there is no evidence that the jury misunderstood it.
Pp.
331 U. S.
536-537.
2. In the circumstances of this case, it was not reversible
error to refuse to admit in evidence an unsworn unverified long
distance call slip from the telephone company records four hours
after the case had been submitted to the jury, even if its
exclusion would have been prejudicial error had the offer been
timely and properly verified. Pp.
331 U. S.
537-539.
3. The fact that an army officer had made a confession under
circumstances precluding its use in evidence against him did not
preclude the use in evidence against him of a second confession
made voluntarily six months later after fair warning that it might
be used against him and when he was under no restraint except that
he could not leave his base limits without permission -- even
though the second confession was but an elaboration of the first.
Pp.
331 U. S.
539-541.
4. Conviction by court-martial for violating the 95th and 96th
Articles of War, by conduct unbecoming an officer and gentleman and
conduct prejudicial to good order and military discipline, does not
bar, on the ground of double jeopardy, another trial in a civil
court for a conspiracy to defraud the Government by depriving it of
the faithful services of an army officer in violation of 18 U.S.C.
§ 88, since the two offenses are not the same even though they
arise out of the same facts. Pp.
331 U. S.
541-543.
156 F.2d 964 reversed.
Page 331 U. S. 533
Respondents were convicted in a District Court of conspiracy to
defraud the Government by depriving it of the faithful services of
an army officer in violation of 18 U.S.C. § 88. The Circuit Court
of Appeals reversed. 156 F.2d 964. This Court granted certiorari.
329 U.S. 706.
Reversed, p.
331 U. S. 543.
MR. JUSTICE JACKSON delivered the opinion of the Court.
This is a sordid three-sided case. The Government charged all of
the defendants with conspiring to defraud by depriving it of the
faithful services of an Army officer. 18 U.S.C. § 88, 35 Stat.
1096. The defendant Radovich, the officer in question, admits
receipt of money from the other defendants and admits the
questioned actions, but denies the conspiracy, claiming the others
induced him to accept a bribe. The defendants Bayer admit payment
of the money, but claim they were victims of extortion by Radovich.
The jury found all guilty, but recommended "the highest degree of
clemency for all three defendants." The Court of Appeals for the
Second Circuit reversed. [
Footnote
1] We granted the Government's petition for certiorari.
[
Footnote 2]
Page 331 U. S. 534
The principal facts are admitted, and it is contested inferences
which are decisive of the issue of guilt. None of the defendants
testified. It would serve no purpose to review the evidence in
detail. It justifies finding as follows:
The Bayer brothers were manufacturers of yarn and thread, and
bore good names in their circle. Samuel had three sons in the
service. One of them, Martin, with Melvin Usdan, a nephew of both
Bayers, was involved in this case. Martin's health had not been
robust. These two boys enlisted in the Air Corps on the day which
Samuel had learned was the last on which a volunteer could select
the branch in which to serve. They were almost immediately assigned
as file clerks at Mitchel Field, Long Island. In January, 1943, at
a night club, Elias Bayer picked up the acquaintance of two
officers stationed there. They were interested in obtaining
uniforms at wholesale. The Bayers eventually aided them and others
to obtain uniforms and paid for them, though they claim to have
understood that the officers were to pay for them. The acquaintance
extended to other officers, and there was considerable
entertainment. In April, 1943, replacement of men in clerical
positions by Women's Army Corps personnel was impending, and one
Col. Jacobson requested a transfer of these two boys with the
effect, as Samuel understood it, of assuring them a year's
assignment at Mitchel Field. Jacobson was given a dinner at the
Waldorf and presented with four new automobile tires.
This transfer placed the two boys under command of Radovich. By
July, there were rumors that the officers were receiving gifts from
the Bayers, and Radovich told Samuel that the boys would have to be
transferred. Samuel wanted them kept at Mitchel Field. Radovich
made a transfer from his unit to the medical detachment at the same
field, which at first was disapproved, and then
Page 331 U. S. 535
he accomplished it by an exchange of personnel. After the
transfer was made, Samuel paid Radovich some $1,900 or $2,000.
In August, 1943, the boys were again transferred, to a unit of
airborne engineers for overseas duty. Both Bayers were greatly
concerned about this, and besought their friends among the officers
to prevent it. Radovich had gone. He had joined an Air Commando
group with high priority on personnel. But he several times talked
with Captain Pepper, in charge of personnel, about transferring
these boys from the overseas service to Air Transport Command for
service only in continental United States. This could not be done.
Then Radovich proposed to use his unit's higher priority to
requisition the boys for it, to drop them as surplus, and thereupon
to have them transferred to the Air Transport Command for domestic
service. Pepper agreed this might be done. Radovich told Pepper it
was "worth his while" to get it done, and he would see that doing
it was worth Pepper's while.
On November 22, 1943, Radovich requisitioned the transfer of the
boys to his unit, to report November 25. Almost at once, he also
requested that they be transferred out of his unit and to Air
Transport Command. This was effected shortly. Elias Bayer and one
of name unknown to the record then delivered $5,000 to Radovich,
who sent Pepper $500. Pepper testified that he destroyed the
check.
The Government, from these facts and other evidence, draws, as
did the jury, the inference of conspiracy. The Bayers say they were
victims of extortion, and there is evidence that Radovich used the
transfer to his own unit, one of extremely dangerous mission for
which these boys had neither training nor aptitude, to force money
out of the Bayers. Radovich denies the conspiracy, and pleads
certain court-martial proceedings as a bar.
Page 331 U. S. 536
The issue as to whether the Bayers tempted Radovich with a bribe
or Radovich coerced them with threats is one with evidence and
inferences both ways. Radovich was a gallant and skillful flier,
and explained his conduct thus: "I was going overseas on a very hot
job, and didn't expect to come back, had the wife and the baby,
figured I might just as well take care of them." The Bayers were
persons of some means, thoroughly frightened at the prospect of
service for these boys in combat areas, and ready to use their
means to foster the boys' safety. Whether they were victims of
extortion or voluntary conspirators was for the jury to say, and
the reversal does not rest on any inadequacy of proof. The grounds
of reversal by the Court of Appeals raise for our consideration
four questions of law.
1. The Bayers assigned as error the trial judge's charge as to
conspiracy. The Court of Appeals unanimously said, "There is no
question but that this charge was an accurate, albeit brief,
statement of the law." But a majority thought that "the statement
was so cryptic as to be difficult to understand, if not to be
actually misleading to a jury to laymen," while one Judge thought
it "a welcome relief from much judicial verbosity." [
Footnote 3] We are not certain whether a
reversal as to the Bayers would have been rested on this criticism
of the charge alone. We do not consider objection to the charge to
amount to reversible error. Once the judge has made an accurate and
correct charge, the extent of its amplification must rest largely
in his discretion. The trial judge, in the light of the whole trial
and with the jury before him, may feel that to repeat the same
words would make them no more clear, and to indulge in variations
of statement might well confuse. How far any charge on technical
questions of law is really understood by those of lay background
would be difficult to
Page 331 U. S. 537
ascertain, but it is certainly more evident in the living scene
than in a cold record. In this case, the jury asked a rereading of
the charge on conspiracy. After repeating his instruction, the
court inquired of the jury whether anything about it was not clear,
or whether there was anything which they desired to have amplified.
Nothing was suggested, although inquiry was made as to other
matters. While many judges would have made a more extended charge,
we think the trial court was within its area of discretion in his
brevity.
2. The Bayers won reversal on another ground. After the jury had
been out about four hours, it returned for instructions and asked
to have parts of the summations of counsel read. The court declined
to read parts. It was at this point that counsel for the Bayers
asked to reopen the case and to put in evidence a long distance
call slip from telephone company records. It was the memorandum of
a call on November 24, 1943, from one we assume to be Radovich,
spelled on the ticket "Ravish," from Arlington, Virginia, to
Bayer's number in New York. The ticket tended to corroborate Samuel
Bayer's secretary, who testified to receiving such a call and who
was the Bayers' chief witness on the subject of extortion. It also
tended to contradict a Government witness. The matter had become of
importance because of the District Attorney's argument that the
Bayers' witness falsified her story. The court had already, at
respondents' request, after the jury had been instructed, told them
that a check of the Bayers' records showed a collect call from
Washington that day, but, on request of counsel for Radovich, the
court had also stated that the record did not show who made the
call. We will assume that the proffered evidence was relevant,
corroborative of the Bayers' contentions, and, had the offer been
timely and properly verified, its exclusion would have been
prejudicial error.
Page 331 U. S. 538
But the item of evidence was disputed. The District Attorney had
not seen the slip, and did not admit the interpretation Bayer's
counsel put upon it. Counsel for Radovich objected. To have
admitted it over his objection might well have been prejudicial to
him. The trial court had already, as he admitted, and as Radovich's
counsel charged, given the Bayers the benefit of an irregular
conveyance of information to the jury about the call which had not
been regularly proved. Moreover, defendants offered no witness to
authenticate the slip. As the trial court pointed out to counsel,
his proposal was merely to hand to the jury "an unverified
memorandum from the telephone company." Even during the trial, such
an offer, with no foundation in testimony and against objection,
would have been inadequate. To have admitted it with no witness to
identify or support it, would have cut off all cross-examination by
both the Government and Radovich, and cross-examination would not
have been unreasonable concerning a slip in which the Bayers wished
Arlington to be taken as equivalent to Washington, and "Ravish" to
identify Radovich. The evidence, if put in after four hours of
deliberation by the jury, would likely be of distorted importance.
It surely would have been prejudicial to the Government, for the
District Attorney would then have had no chance to comment on it,
summation having been closed. It also would have been prejudicial
to the other defendant, Radovich, who, with no chance to
cross-examine or to comment, would be confronted with a new item of
evidence against him. The court seems to have faced a dilemma,
either to grant a mistrial and start the whole case over again or
to deny the Bayers' request. Certainly a defendant who seeks thus
to destroy a trial must bring his demand within the rules of proof
and do something to excuse its untimeliness.
Not only was the proffer of the evidence technically deficient,
but no excuse for the untimeliness of the offer
Page 331 U. S. 539
appeared. It is true, no doubt, that counsel was surprised at
the argument made by the District Attorney, which would have been
less effective had this evidence been in. But Miss Solomon, an
employee of defendants, and, hence, an interested witness, was left
to carry the burden of proving extortion without the corroboration
of the testimony of her employer-defendants. This was defendants'
right, but it should have been apparent that every bolster to her
credibility would be important. It is well known that the telephone
companies keep such records, and they seem to have been easily
obtained when asked for. We do not consider it reversible error to
refuse to let this unsworn, unverified slip be put into evidence
four hours after the case had been submitted to the jury. The
judgment of reversal as to the Bayers was, in our opinion,
erroneous.
3. Radovich's case raises additional questions. The first
concerns the receipt in evidence of his confession of March 15 and
17, 1945. In absence of the jury, the Court heard testimony before
admitting it, and thereafter most of it was repeated before the
jury. The proof against Radovich largely rested on the
confession.
After service of distinction in Burma, Radovich, then 24 years
of age, was ordered to report to Mitchel Field. Upon arrival on
August 9, 1944, he was placed under arrest and confined in the
psychopathic ward in the station hospital. Here, for some time, he
was denied callers, communication, comforts, and facilities which
it is needless to detail. Charges for court-martial were not
promptly served on him, as said to be required by the 70th Article
of War, nor was he taken before a magistrate for arraignment on any
charges preferred by civil authorities. Military charges were
finally served on May 30, 1945. Meanwhile, under such restraint, he
made a first confession on September 5 or 6, 1944. Without more, we
will assume this confession to be inadmissible under the rule
Page 331 U. S. 540
laid down in
McNabb v. United States, 318 U.
S. 332, and
Anderson v. United States,
318 U. S. 350. But
this confession was neither offered nor received in evidence.
A second confession made to Agent Flynn of the Federal Bureau of
Investigation on March 15 and 17, 1945, was received, however, and
the Court of Appeals has held it to be "patently the fruit of the
earlier one," [
Footnote 4] and
equally inadmissible, citing
Silverthorne Lumber Co. v. United
States, 251 U. S. 385;
Nardone v. United States, 308 U.
S. 338.
At the time of this confession, Radovich was still at Mitchel
Field, but only under "administrative restrictions," which meant
that he could not depart the limits of the base without leave.
Flynn testified that Radovich had a number of conversations with
FBI agents. He had volunteered some facts not in the original
statement, and the meeting of March was to incorporate the whole
story in one statement. Flynn warned him his statement might be
used against him. Radovich requested the original statement, and
read it before making the second. The March statement is labeled a
"supplementary" statement, and is "basically" the same as the
earlier one, but went into more detail. The District Attorney
refused to produce the first statement, which was not offered in
evidence, and the court sustained him, having examined the
statement and found no material conflict between them.
Of course, after an accused has once let the cat out of the bag
by confessing, no matter what the inducement, he is never
thereafter free of the psychological and practical disadvantages of
having confessed. He can never get the cat back in the bag. The
secret is out for good. In such a sense, a later confession always
may be looked upon as fruit of the first. But this Court has never
gone so
Page 331 U. S. 541
far as to hold that making a confession under circumstances
which preclude its use perpetually disables the confessor from
making a usable one after those conditions have been removed. The
Silverthorne and
Nardone cases, relied on by the
Court of Appeals, did not deal with confessions, but with evidence
of a quite different category, and do not control this question.
The second confession in this case was made six months after the
first. The only restraint under which Radovich labored was that he
could not leave the base limits without permission. Certainly such
a limitation on the freedom of one in the Army and subject to
military discipline is not enough to make a confession voluntarily
given after fair warning invalid as evidence against him. We hold
the admission of the confession was not error.
Cf. Lyons v.
Oklahoma, 322 U. S. 596.
4. Lastly, we must consider whether the court-martial
proceedings instituted against Radovich bar this prosecution on the
ground of double jeopardy. Radovich was tried, and, on June 29,
1945, convicted by court-martial of violating the 95th and 96th
Articles of War, 10 U.S.C. §§ 1567, 1568, 41 Stat. 806-807. The
offense charged and found was that of conduct unbecoming an officer
and gentleman, and of conduct to the prejudice of good order and
military discipline and of a nature to bring discredit upon the
military service. As to each offense, the specifications set forth
receipt of the same payments of money from the Bayers for effecting
the same transfers that are involved in this indictment. Radovich's
plea in bar was overruled by the trial court upon the ground that
the conspiracy charged in the indictment was not the same offense
as that under the Articles of War. The Court of Appeals disapproved
this ground, but left the issue of double jeopardy to be decided
after retrial because of doubt meanwhile raised about the status of
the military judgment.
Page 331 U. S. 542
The Court of Appeals thought the identity of the specifications
in the court-martial proceedings and the offense charged in the
indictment, and the likelihood that the military court did not
distinguish carefully between the passing of the money and the
arrangement to that end, required the plea in bar to be sustained
under
Grafton v. United States, 206 U.
S. 333. In that case, a soldier on guard duty in the
Philippines shot and killed two Filipinos. He was tried by
court-martial on charge of homicide, and acquitted. A prosecuting
attorney of the Islands then filed in Provincial Court a charge of
"assassination" on identical facts. This Court found not merely the
evidence, but the offense charged, to be identical in everything
but name, and held retrial of the same offense in Philippine Courts
to constitute double jeopardy.
But here we think the District Court correctly ruled that the
two charges did not accuse of identical offenses. The indictment is
for conspiring, and we have but recently reviewed the nature of
that offense.
Pinkerton v. United States, 328 U.
S. 640. Its essence is in the agreement or confederation
to commit a crime, and that is what is punishable as a conspiracy
if any overt act is taken in pursuit of it. The agreement is
punishable whether or not the contemplated crime is consummated.
But the same overt acts charged in a conspiracy count may also be
charged and proved as substantive offenses, for the agreement to do
the act is distinct from the act itself.
Pinkerton v. United
States, 328 U. S. 640,
328 U. S. 644.
In the court-martial proceedings, Radovich alone was accused. No
conspiracy was alleged, and the specification was confined to
Radovich's receipt of money for effecting transfers. This was a
substantive offense on his part under the Articles of War. The
agreement with others to commit it constituted a separate offense,
although among the overt acts proved to establish the conspiracy
were the same payments and transfers. Both offenses could be
Page 331 U. S. 543
charged and conviction had on each. The plea in bar was properly
overruled.
This conclusion makes it unnecessary to decide whether the
disapproval of the court-martial judgment for errors in trial and
without ordering retrial creates a status for the military judgment
such that in no event would it be available to bar this
prosecution.
The judgment of the Circuit Court of Appeals is reversed, and
that of the District Court is affirmed.
MR. JUSTICE FRANKFURTER would affirm the decision of the Circuit
Court of Appeals substantially for the reasons set forth below by
Judge Clark in reversing the conviction of the Bayers, which, under
a charge of conspiracy, carries with it a reversal as to Radovich.
156 F.2d 964 at 967-968.
MR. JUSTICE RUTLEDGE is of the view that the judgment of the
Circuit Court of Appeals should be affirmed insofar as it relates
to the respondent Radovich, for the reasons stated in that court's
opinion. 156 F.2d 964 at 968-970.
[
Footnote 1]
United States v. Bayer, 156 F.2d 964.
[
Footnote 2]
329 U.S. 706.
[
Footnote 3]
156 F.2d at 967.
[
Footnote 4]
156 F.2d at 970.