Petitioners were convicted of a conspiracy to defraud the United
States by obtaining the illegal entry thereto of three aliens as
spouses of honorably discharged veterans. They had conspired to
have three such veterans journey to Paris, there go through
marriage ceremonies with three aliens, bring them to the United
States, and obtain their entry under the War Bridges Act. The
parties to the marriages were not to live together as husband and
wife, and were to take whatever legal steps were necessary to sever
the legal ties; but these facts were to be concealed from the
1. For the purposes of this case, the question of the validity
of the marriages is immaterial. Pp. 344 U. S.
2. In the circumstances of this case, the trial court did not
err in permitting the "wives" to testify against their "husbands."
Pp. 344 U. S.
3. It was not error for the trial court to admit testimony as to
various acts of different petitioners, done after the conspiracy
ended, without limiting the evidence to the particular defendant
who performed the act, where the acts were relevant to show the
spuriousness of the marriages and the intent of the parties in
going through the marriage ceremonies. Pp. 344 U. S.
4. On the record in this case, the admission against all of the
conspirators, though not present when it was made, of a single
declaration made after the conspiracy had ended was harmless error
under Rule 52(a) of the Federal Rules of Criminal Procedure. Pp.
344 U. S.
195 F.2d 748, affirmed.
The Court of Appeals affirmed petitioners' conviction of a
conspiracy to defraud the United States.195 F.2d 748. This Court
granted certiorari. 344 U.S. 809. Affirmed,
344 U. S.
Page 344 U. S. 605
MR. JUSTICE MINTON delivered the opinion of the Court.
The petitioners, Marcel Max Lutwak, Munio Knoll, and Regina
Treitler, together with Leopold Knoll and Grace Klemtner, were
indicted on six counts in the Northern District of Illinois,
Eastern Division. The first count charged conspiracy to commit
substantive offenses set forth in the remaining five counts and
conspiracy "to defraud the United States of and concerning its
governmental function and right of administering" the immigration
laws and the Immigration and Naturalization Service, by obtaining
the illegal entry into this country of three aliens as spouses of
honorably discharged veterans. Grace Klemtner was dismissed from
the indictment before the trial because her constitutional rights
had been violated before the grand jury. At the conclusion of all
the evidence, the District Court dismissed the substantive counts
against all of the defendants because venue had not been shown in
the Northern District of Illinois. The jury acquitted Leopold Knoll
and convicted the three petitioners on the conspiracy count. The
Court of Appeals affirmed, 195 F.2d 748, and we granted certiorari,
344 U.S. 809.
We are concerned here only with the conviction of the
petitioners of the alleged conspiracy. Petitioner Regina Treitler
is the sister of Munio Knoll and Leopold Knoll,
Page 344 U. S. 606
and the petitioner Lutwak is their nephew. Munio Knoll had been
married in Poland in 1932 to one Maria Knoll. There is some
evidence that Munio and Maria were divorced in 1942, but the
existence and validity of this divorce are not determinable from
the record. At the time of the inception of the conspiracy, in the
summer of 1947, Munio, Maria, and Leopold were refugees from
Poland, living in Paris, France, while Regina Treitler and Lutwak
lived in Chicago, Illinois. Petitioner Treitler desired to get her
brothers into the United States.
Alien spouses of honorably discharged veterans of World War II
were permitted to enter this country under the provisions of the
so-alled War Brides Act, which provides in pertinent part:
". . . notwithstanding any of the several clauses of section 3
of the Act of February 5, 1917, excluding physically and mentally
defective aliens, and notwithstanding the documentary requirements
of any of the immigration laws or regulations, Executive orders, or
Presidential proclamations issued thereunder, alien spouses or
alien children of United States citizens serving in, or having an
honorable discharge certificate from the armed forces of the United
States during the Second World War shall, if otherwise admissible
under the immigration laws and if application for admission is made
within three years of the effective date of this Act, be admitted
to the United States. . . ."
59 Stat. 659, 8 U.S.C. § 232.
The first count of the indictment charged that the petitioners
conspired to have three honorably discharged veterans journey to
Paris and go through marriage ceremonies with Munio, Leopold, and
Maria. The brothers
Page 344 U. S. 607
and Maria would then accompany their new spouses to the United
States and secure entry into this country by representing
themselves as alien spouses of World War II veterans. It was
further a part of the plan that the marriages were to be in form
only, solely for the purpose of enabling Munio, Leopold, and Maria
to enter the United States. The parties to the marriages were not
to live together as husband and wife, and thereafter would take
whatever legal steps were necessary to sever the legal ties. It was
finally alleged that the petitioners conspired to conceal these
acts in order to prevent disclosure of the conspiracy to the
The conspiracy to commit substantive offenses consisted in that
part of the plan by which each of the aliens was to make a false
statement to the immigration authorities by representing in his
application for admission that he was married to his purported
spouse, and to conceal from the immigration authorities that he had
gone through a marriage ceremony solely for the purpose of gaining
entry into this country with the understanding that he and his
purported spouse would not live together as man and wife, but would
sever the formal bonds of the ostensible marriage when the marriage
had served its fraudulent purpose.
The statute defining conspiracy reads as follows:
"If two or more persons conspire either to commit any offense
against the United States or to defraud the United States in any
manner or for any purpose, and one or more of such parties do any
act to effect the object of the conspiracy, each of the parties to
such conspiracy shall be fined not more than $10,000, or imprisoned
not more than two years, or both."
18 U.S.C. (1946 ed.) § 88, now 18 U.S.C. (Supp. V) § 371.
Page 344 U. S. 608
The sections of the statute which it was alleged the petitioners
conspired to violate provide in pertinent part:
"Any alien who hereafter enters the United States at any time or
place other than as designated by immigration officials or eludes
examination or inspection by immigration officials, or obtains
entry to the United States by a willfully false or misleading
representation or the willful concealment of a material fact, shall
be guilty of a misdemeanor and, upon conviction, shall be punished
by imprisonment for not more than one year or by a fine of not more
than $1,000, or by both such fine and imprisonment."
45 Stat. 1551, 8 U.S.C. § 180a.
"Whoever knowingly makes under oath any false statement in any
application, affidavit, or other document required by the
immigration laws or regulations prescribed thereunder, shall, upon
conviction thereof, be fined not more than $10,000, or imprisoned
for not more than five years, or both."
43 Stat. 153, 165, 8 U.S.C. (1946 ed.) § 220(c), now 18 U.S.C.
(Supp. V) § 1546.
From the evidence favorable to the Government, the jury could
reasonably have believed that the following acts and transactions
took place, and that the petitioners conspired to bring them about.
Lutwak, a World War II veteran, was selected to marry Maria Knoll,
his aunt by marriage. He went to Paris, where he went through a
marriage ceremony with Maria. They traveled to the United States,
entering the port of New York on September 9, 1947. They
represented to the immigration authorities that Maria was the wife
of Lutwak, and, upon that representation, Maria was admitted. They
never lived together as man and wife, and, within a few months,
Munio and Maria commenced living together in this
Page 344 U. S. 609
country as man and wife, holding themselves out as such. Lutwak,
in the meantime, represented himself to friends as an unmarried
man. Lutwak and Maria were divorced on March 31, 1950.
Lutwak and Mrs. Treitler also found two women -- Bessie Benjamin
Osborne and Grace Klemtner -- who were honorably discharged
veterans of World War II and who were willing to marry Munio and
Leopold so that the brothers could come to the United States.
Bessie Osborne was introduced to Treitler by Lutwak, and went to
Paris accompanied by Treitler. There, she went through a pretended
marriage ceremony with Munio Knoll, and, on their arrival at New
York City, Munio was admitted on November 13, 1947, on the
representation that he was married to Bessie Osborne. The marriage
was never consummated, and was never intended to be. The parties
separated after entering the United States, and they never lived
together as husband and wife at any time. Bessie Osborne's suit for
divorce from Munio was pending at the time of the trial.
Still later, Grace Klemtner, who was also a World War II veteran
and an acquaintance of Regina Treitler, went to Paris and went
through a pretended marriage ceremony with Leopold. They then
traveled to the United States, where Leopold was admitted on
December 5, 1947, upon the representation that he was the husband
of Grace Klemtner. They immediately separated after their entry
into this country, and they never lived together as husband and
wife at any time until about the time Grace Klemtner appeared
before the grand jury which returned the indictment. This was
approximately April 1, 1950, more than two years after the marriage
ceremony in Paris. Bessie Osborne and Grace Klemtner received a
substantial fee for participating in these marriage ceremonies.
There is an abundance of evidence in this record of a conspiracy
to contract spurious, phony marriages for the
Page 344 U. S. 610
purposes of deceiving the immigration authorities and thereby
perpetrating a fraud upon the United States, and of a conspiracy to
commit other offenses against the United States.
Petitioners present three principal contentions: (1) Their
conspiracy was not unlawful, because the marriages involved were
valid marriages; (2) The trial court erred in permitting the
ostensible wives of these marriages to testify against their
so-alled husbands, and (3) The trial court erred in admitting
testimony of various acts and declarations of different
petitioners, done and said after the conspiracy had ended, without
limiting the evidence to the particular defendant who performed the
act or made the statement.
At the trial, it was undisputed that Maria, Munio and Leopold
had gone through formal marriage ceremonies with Lutwak, Bess
Osborne, and Grace Klemtner, respectively. Petitioners contended
that, regardless of the intentions of the parties at the time of
the ceremonies, the fact that the ceremonies were performed was
sufficient to establish the validity of the marriages, at least
until the Government proved their invalidity under French law. They
relied on the general American rule of conflict of laws that a
marriage valid where celebrated is valid everywhere unless it is
incestuous, polygamous, or otherwise declared void by statute.
See Loughran v. Loughran, 292 U.
, 292 U. S. 223
Restatement, Conflict of Laws, §§ 121, 132-134. Neither side
presented any evidence of the French law, and the trial court ruled
that, in the absence of such evidence, the French law would be
presumed to be the same as American law. The court later instructed
the jury that,
"if the subjects agree to a marriage only for the sake of
representing it as such to the outside world and with the
understanding that they will put an end to
Page 344 U. S. 611
it as soon as it has served its purpose to deceive, they have
never really agreed to be married at all."
The petitioners claim that the trial court erred in presuming
that the French law relating to the validity of marriages is the
same as American law, and they further contend that, even under
American law, these marriages are valid.
We do not believe that the validity of the marriages is
material. No one is being prosecuted for an offense against the
marital relation. We consider the marriage ceremonies only as a
part of the conspiracy to defraud the United States and to commit
offenses against the United States. In the circumstances of this
case, the ceremonies were only a step in the fraudulent scheme and
actions taken by the parties to the conspiracy. By directing in the
War Brides Act that "alien spouses" of citizen war veterans should
be admitted into this country, Congress intended to make it
possible for veterans who had married aliens to have their families
join them in this country without the long delay involved in
qualifying under the proper immigration quota. Congress did not
intend to provide aliens with an easy means of circumventing the
quota system by fake marriages in which neither of the parties ever
intended to enter into the marital relationship; that petitioners
so believed is evidenced by their care in concealing from the
immigration authorities that the ostensible husbands and wives were
to separate immediately after their entry into this country and
were never to live together as husband and wife. The common
understanding of a marriage, which Congress must have had in mind
when it made provision for "alien spouses" in the War Brides Act,
is that the two parties have undertaken to establish a life
together and assume certain duties and obligations. Such was not
the case here, or so the jury might reasonably have found. Thus,
when one of the aliens stated that he was married, and omitted to
explain the true nature of his marital
Page 344 U. S. 612
relationship, his statement did, and was intended to, carry with
it implications of a state of facts which were not in fact
Because the validity of the marriages is not material, the cases
involving so-alled limited purpose marriages, [Footnote 1
] cited by petitioners to support their
contention that the marriages in the instant case are valid, are
inapplicable. All of those cases are suits for annulment in which
the court was requested to grant relief to one of the parties to a
marriage on the basis of his own admission that the marriage had
been a sham. Where the annulment was denied, one or more of the
following factors influenced the court: (1) A reluctance to permit
the parties to use the annulment procedure as a quick and painless
substitute for divorce, particularly because this might encourage
people to marry hastily and inconsiderately; (2) A belief that the
parties should not be permitted to use the courts as the means of
carrying out their own secret schemes, and (3) A desire to prevent
injury to innocent third parties, particularly children of the
marriage. These factors have no application in the circumstances of
the instant case. Similarly inapplicable are the cases where a
marriage was entered into in order to render the wife incompetent
to testify against her husband in a pending trial, because in none
of those cases was it proved that the parties to the marriage did
not intend to enter into the marital relationship in good faith.
] Much more closely
related is the case of United States v. Rubenstein,
F.2d 915, 918-919, in which the court held that, where
Page 344 U. S. 613
two persons entered into a marriage solely for the purpose of
facilitating the woman's entry into this country, and with no
intention by either party to enter into the marriage relationship
as it is commonly understood, for the purposes of that case they
were never married at all. In the instant case, as in the
case, there was no good faith no intention to
marry and consummate the marriages even for a day. With the legal
consequences of such ceremonies under other circumstances, either
in the United States or France, we are not concerned.
Much of the evidence of the conspiracy comes from the lips of
the so-alled wives of these spurious marriages. The next question
with which we are confronted is whether these so-alled wives are
competent to testify against their purported husbands in this
criminal prosecution and thus incriminate the so-alled
Civil marriage ceremonies were entered into by the parties in
Paris as above indicated. Must these ostensible marriages be
recognized as creating spouses in order that the marital
relationship may be claimed to prevent the wives from testifying
against the husbands? At common law, the wife could testify neither
for nor against her husband in a criminal case, but, since Funk
v. United States, 290 U. S. 371
wife may testify in favor of the husband.
A review in the Funk
case of the cases in this Court
revealed the inconsistencies of the rule which made a wife
incompetent to testify on behalf of her husband, and this Court
resolved the question in favor of competency. The Funk
case left the rules of evidence as to the competency of witnesses
to be formulated by the federal courts or Congress in accordance
with reason and experience. Wolfle v. United States,
291 U. S. 7
291 U. S. 12
Page 344 U. S. 614
There followed the promulgation by this Court of Rule 26 of the
Federal Rules of Criminal Procedure, which reads as follows:
"RULE 26. EVIDENCE"
". . . The admissibility of evidence and the competency and
privileges of witnesses shall be governed, except when an act of
Congress or these rules otherwise provide, by the principles of the
common law as they may be interpreted by the courts of the United
States in the light of reason and experience."
This rule was a paraphrase of Mr. Justice Stone's statement in
at 291 U. S. 12
Under this rule, the competency of witnesses is to be governed
by the principles of the common law as they may
interpreted by the courts in the light of reason and experience.
The governing principles are not necessarily as they had existed at
common law. Congress has not acted, and has specifically authorized
this Court to prescribe, rules of criminal procedure, but the rules
do not specifically answer the problem here. Therefore, it is open
to us to say whether we shall go further and abrogate this common
law rule disqualifying one spouse from testifying in criminal cases
the other spouse.
When the good faith of the marital relation is pertinent and it
is made to appear to the trial court, as it was here, that the
relationship was entered into with no intention of the parties to
live together as husband and wife, but only for the purpose of
using the marriage ceremony in a scheme to defraud, the ostensible
spouses are competent to testify against each other. Here again, we
are not concerned with the validity or invalidity of these so-alled
marriages. We are concerned only with the application of a common
law principle of evidence to the circumstances of this case. In
interpreting the common law in this instance, we are to determine
Page 344 U. S. 615
"in the light of reason and experience," we should interpret the
common law so as to make these ostensible wives competent to
testify against their ostensible husbands. The reason for the rule
at common law disqualifying the wife is to protect the sanctity and
tranquility of the marital relationship. It is hollow mockery for
the petitioners in arguing for the policy of the rule to invoke the
reason for the rule and to say to us "the husband and wife have
grown closer together as an emotional, social, and cultural unit,"
and to speak of "the close emotional ties between husband and wife"
and of "the special protection society affords to the marriage
relationship." In a sham, phony, empty ceremony such as the parties
went through in this case, the reason for the rule disqualifying a
spouse from giving testimony disappears, and with it the rule.
"It has been said so often as to have become axiomatic that the
common law is not immutable, but flexible, and, by its own
principles adapts itself to varying conditions."
Funk v. United States, supra,
at 290 U. S.
The light of reason and experience do not compel us to so
interpret the common law as to disqualify these ostensible spouses
from testifying in this case. We therefore hold that, in the
circumstances of this case, the common law rule prohibiting
anti-spousal testimony has no application. These ostensible wives
were competent to testify.
Most of the evidence in this case consisted of testimony of the
acts and declarations of the defendants. The petitioners contend
that, because some of these acts and declarations took place after
the conspiracy ended, they were erroneously admitted without being
properly limited to the defendant who did the act or made the
Page 344 U. S. 616
testified to. We must therefore decide when the conspiracy
ended. The petitioners contend it ended when the last of the
parties, Leopold Knoll, was admitted to the United States on
December 5, 1947. Then and there, they say, the fraud, if any, was
complete, and the conspiracy to violate the statutes was complete.
The Government contends that a part of the conspiracy was an
agreement among the conspirators to conceal their fraud by any
means, and so it was alleged in the indictment.
But there is no statement in the indictment of a single overt
act of concealment that was committed after December 5, 1947, and
no substantial evidence of any. Such acts as were set forth and
proved were acts that revealed, and did not conceal, the fraud.
Therefore, there is no evidence in the record to establish as a
part of the conspiracy that the conspirators agreed to conceal the
conspiracy by doing what was necessary and expedient to prevent its
disclosure. There was a statement of Munio Knoll in the record to
one witness, Haberman, that indicated Munio's purpose to cover up
and conceal the conspiracy. This is not evidence that the
conspiracy included the further agreement to conceal. It is in the
nature of an afterthought by the conspirator for the purpose of
covering up. The trial court so understood it, and this statement
of Munio Knoll, as testified to by Haberman, was limited by the
Court as applicable against Munio Knoll only.
This Court, in Krulewitch v. United States,
336 U. S. 440
rejected the Government's contention that, in every conspiracy,
there is implicit an agreement as a part thereof for the
conspirators to collaborate to conceal the conspiracy.
"The rule contended for by the Government could have far-eaching
results. For, under this rule, plausible arguments could generally
be made in conspiracy cases that most out-f-ourt statements offered
Page 344 U. S. 617
evidence tended to shield co-onspirators. We are not persuaded
to adopt the Government's implicit conspiracy theory, which, in all
criminal conspiracy cases, would create automatically a further
breach of the general rule against the admission of hearsay
at 336 U. S.
While the concealment was alleged in this indictment as a part
of the conspiracy, it was not proved. We think on this record that
the conspiracy ended December 5, 1947.
It does not necessarily follow that acts and declarations made
after the conspiracy ended are not admissible. In this case, the
essential fact of the conspiracy was the existence of phony
marriage ceremonies entered into for the sole purpose of deceiving
the immigration authorities and perpetrating a fraud upon the
United States. Acts which took place after the conspiracy ended
which were relevant to show the spuriousness of the marriages and
the intent of the parties in going through the marriage ceremonies
were competent -- such as the fact that the parties continued to
live apart after they came to the United States; that money was
paid the so-alled wives as a consideration for their part in the
so-alled marriages, and that suits were started to terminate
whatever legal relationship there might have been upon the
Declarations stand on a different footing. Declarations of one
conspirator may be used against the other conspirator not present
on the theory that the declarant is the agent of the other, and the
admissions of one are admissible against both under a standard
exception to the hearsay rule applicable to the statements of a
party. Clune v. United States, 159 U.
, 159 U. S. 593
See United States v.
12 Wheat. 460, 25 U. S.
-470. But such declaration can be used against the
co-onspirator only when made in furtherance of the conspiracy.
Fiswick v. United States, 329 U.
, 329 U. S. 217
Logan v. United States, 144 U. S. 263
144 U. S.
-309. There can be no furtherance of
Page 344 U. S. 618
a conspiracy that has ended. Therefore, the declarations of a
conspirator do not bind the co-onspirator if made after the
conspiracy has ended. That is the teaching of Krulewitch v.
United States, supra,
and Fiswick v. United States,
Those cases dealt only with declarations of one
conspirator after the conspiracy had ended. They had no application
to acts of a conspirator or others which were relevant to prove the
conspiracy. True, there is dictum in Logan v. United States,
at 144 U. S. 309
frequently repeated, which would limit the admissibility of both
acts and declarations to the person performing them. This statement
of the rule overlooks the fact that the objection to the
declarations is that they are hearsay. This reason is not
applicable to acts which are not intended to be a means of
expression. The acts, being relevant to prove the conspiracy, were
admissible, even though they might have occurred after the
conspiracy ended. United States v. Rubenstein,
915, 917-918; see Fitzpatrick v. United States,
178 U. S. 304
178 U. S.
-313; Ferris v. United States,
40 F.2d 837,
Relevant declarations or admissions of a conspirator made in the
absence of the co-onspirator, and not in furtherance of the
conspiracy, may be admissible in a trial for conspiracy as against
the declarant to prove the declarant's participation therein. The
court must be careful at the time of the admission and by its
instructions to make it clear that the evidence is limited as
against the declarant only. Therefore, when the trial court admits
against all of the conspirators a relevant declaration of one of
the conspirators after the conspiracy has ended, without limiting
it to the declarant, it violates the rule laid down in Krulewitch.
Such declaration is inadmissible as to all but the declarant.
In the trial of a criminal case for conspiracy, it is inevitable
that there shall be, as there was in this case, evidence as to
declarations that is admissible as against
Page 344 U. S. 619
all of the alleged conspirators; there are also other
declarations admissible only as to the declarant and those present
who, by their silence or other conduct, assent to the truth of the
declaration. These declarations must be carefully and clearly
limited by the court at the time of their admission, and the jury
instructed as to such declarations and the limitations put upon
them. Even then, in most instances of a conspiracy trial of several
persons together, the application of the rule places a heavy burden
upon the jurors to keep in mind the admission of certain
declarations and to whom they have been restricted, and, in some
instances, for what specific purpose. While these difficulties have
been pointed out in several cases, e.g., Krulewitch v. United
at 336 U. S. 453
(concurring opinion); Blumenthal v. United States,
332 U. S. 539
332 U. S.
-560; Nash v. United States,
54 F.2d 1006,
1006-1007, the rule has nonetheless been applied. Blumenthal v.
United States, supra; Nash v. United States, supra; United States
165 F.2d 360, 367.
In our search of this record, we have found only one instance
where a declaration made after the conspiracy had ended was
admitted against all of the alleged conspirators, even though not
present when the declaration was made. [Footnote 3
] Was the admission of this one item of hearsay
evidence sufficient to reverse this case?
We think not. In view of the fact that this record fairly
shrieks the guilt of the parties, we cannot conceive how this one
admission could have possibly influenced this jury to reach an
improper verdict. A defendant is entitled to a fair trial, but not
a perfect one. This
Page 344 U. S. 620
is a proper case for the application of Rule 52(a) of the
Federal Rules of Criminal Procedure. [Footnote 4
] We hold that the error was harmless.
Finding no reversible error in this record, the judgment is
E.g., Schibi v. Schibi,
136 Conn.196, 69 A.2d 831;
Hanson v. Hanson,
287 Mass. 154, 191 N.E. 673. These and
the other cases cited by petitioners are collected and discussed in
a note, 14 A.L.R.2d 624 (1950).
E.g., Norman v. State,
127 Tenn. 340, 155 S.W. 135;
State v. Frey,
76 Minn. 526, 79 N.W. 518.
R. 208-209. Bessie Osborne testified:
"I asked when action would be taken for divorce and [Munio
Knoll] asked me if I would wait two years because he wanted to
become an American citizen, and it would take that long, and I
agreed to wait."
This hearsay statement attributed to Munio was admitted against
all the defendants.
"(a) HARMLESS ERROR. Any error, defect, irregularity or variance
which does not affect substantial rights shall be disregarded."
MR. JUSTICE JACKSON, whom MR. JUSTICE BLACK and MR. JUSTICE
FRANKFURTER join, dissenting.
Whenever a court has a case where behavior that obviously is
sordid can be proved to be criminal only with great difficulty, the
effort to bridge the gap is apt to produce bad law. We are
concerned about the effect of this decision in three respects.
1. We are not convinced that any crime has been proved, even on
the assumption that all evidence in the record was admissible.
These marriages were formally contracted in France, and there is no
contention that they were forbidden or illegal there for any
reason. It is admitted that some judicial procedure is necessary if
the parties wish to be relieved of their obligations. Whether, by
reason of the reservations with which the parties entered into the
marriages, they could be annulled may be a nice question of French
law, in view of the fact that no one of them deceived the other. We
should expect it to be an even nicer question whether a third
party, such as the state in a criminal process, could simply ignore
the ceremony and its consequences, as the Government does here.
We start with marriages that either are valid or at least have
not been proved to be invalid in their inception. The Court brushes
this question aside as immaterial, but we think it goes to the very
existence of an
Page 344 U. S. 621
offense. If the parties are validly married, even though the
marriage is a sordid one, we should suppose that would end the
case. On the other hand, if the marriage ceremonies were for some
reason utterly void and held for naught, as if they never had
happened, the Government could well claim that entry into the
United States as married persons was fraud. But, between these two
extremes, is the more likely case -- marriages that are not void
but perhaps voidable. In one of these cases, the parties (on the
trial) expressed their desire to stay married, and they were
acquitted, and no one contends that their marriage is void.
Certainly, if these marriages were merely voidable and had not been
adjudged void at the time of the entry into this country, it was
not a fraud a represent them as subsisting. We should think that
the parties to them might have been prosecuted with as much reason
if they had represented themselves to be single. Marriages of
convenience are not uncommon, and it cannot be that we would hold
it a fraud for one who has contracted a marriage not forbidden by
law to represent himself as wedded even if there were grounds for
annulment or divorce and proceedings to that end were
The effect of any reservations of the parties in contracting the
marriages would seem to be governed by the law of France. It does
not seem justifiable to assume what we all know is not true -- that
French law and our law are the same. Such a view ignores some of
the most elementary facts of legal history -- the French reception
of Roman law, the consequences of the Revolution, and the
Napoleonic codifications. If the Government contends that these
marriages were ineffectual from the beginning, it would seem to
require proof of particular rules of the French law of domestic
"The federal courts have held that one spouse cannot testify
against the other unless the defendant spouse
Page 344 U. S. 622
waives the privilege. . . ."
Griffin v. United States, 336 U.
, 336 U. S. 714
and cases cited. The Court condones a departure from this rule here
because, it says, the relationship was not genuine. We need not
decide what effect it would have on the privilege if independent
testimony established that the matrimonial relationship was only
nominal. Even then, we would think the formal relationship would be
respected unless the trial court, on the question of privilege,
wanted to try a collateral issue. However, in this case, the trial
court could only conclude that the marriage was a sham from the
very testimony whose admissibility is in question. The Court's
position seems to be that privileged testimony may be received to
destroy its own privilege. We think this is not allowable, for the
same reason that one cannot lift himself by his own bootstraps.
3. We agree with the Court that the crime, if any, was complete
when the alien parties obtained entry into the United States on
December 5. We think this was the necessary result of the holding
in Krulewitch v. United States, 336 U.
. This requires rejection of the Government's
contention that every conspiracy includes an implied secondary
conspiracy to conceal the facts. This revival of the long
discredited doctrine of constructive conspiracy would postpone
operation of the statute of limitations indefinitely and make all
manner of subsequent acts and statements by each conspirator
admissible in evidence against all. But, while the Court accepts
the view or Krulewitch,
we think its ruling on subsequent
acts and declarations largely nullifies the effect of that
decision, and exemplifies the dangers pointed out therein.
For present purposes, we need not maintain that no admission or
act of a conspirator occurring after the conspiracy has
accomplished its object is admissible against a co-onspirator. And
we do not question that, at times,
Page 344 U. S. 623
such evidence is admissible against the actor of speaker alone.
But one of the additional leverages obtained by the prosecution
through proceeding as for conspiracy instead of as for the
substantive offense is that it may get into evidence against one
defendant acts or omissions which color the case against all.
This case is a vivid illustration of that process in action. The
statement of facts in the Government's brief is punctuated by eight
separate footnotes to explain that the testimony recited in the
text was limited to one or another defendant. We doubt that any
member of this Court, despite our experience in sifting testimony,
can carry in mind what was admitted against whom, and we are
confident the jury could not. We will not prolong this opinion with
an analysis of this testimony. Some of it was very damaging. For
example, testimony was admitted, limited to Munio Knoll, that, on
one occasion, he returned to his apartment and had difficulty
getting in. When he gained admittance, petitioner Lutwak was going
out through the window, leaving Knoll's wife to explain the
phenomenon if she could. This testimony was not admitted against
Lutwak, and the jury was adequately warned not to use it against
him. But does anybody believe that the jury could forget that
picture of Lutwak being caught taking hasty leave of his
co-onspirator's wife and making a somewhat irregular exit? The
salutary rule that evidence of acts which occurred long after the
conspiracy terminated is admissible only against particular
defendants should be observed in spirit, as well as in letter.
Here, much of such evidence was of such remote probative value, and
the instruction limiting its use was so predictably ineffectual,
that its admission violated a substantial right of those defendants
against whom it could not be used.
For these reasons, we are impelled to dissent.