Petitioner is one of five co-defendants convicted in a joint
trial in a federal court on a federal charge of conspiring to deal
unlawfully in alcohol. Without deleting references to petitioner,
the court admitted in evidence a confession of another
co-defendant, made after termination of the conspiracy, but the
court stated clearly at the time, on several other occasions, and
in its charge to the jury, that the confession was to be considered
only in determining the guilt of the confessor, and not that of any
of the other defendants. The conspiracy was simple; the separate
interests of each defendant were emphasized throughout the trial;
admission of the confession was postponed to the end of the
Government's case; in the main, the confession merely corroborated
what the Government had already established; its references to
petitioner were largely cumulative; and there was nothing in the
record indicating that the jury was confused or failed to follow
the court's instructions.
petitioner's conviction is sustained. Pp.
352 U. S.
1. The evidence admitted against petitioner was sufficient to
sustain his conviction. Pp. 352 U. S.
2. Under the circumstances of this case, the court's
instructions to the jury provided petitioner with sufficient
protection, so that the admission of his co-defendant's confession,
strictly limited to use against the confessor, did not constitute
reversible error against petitioner. Krulewitch v. United
States, 336 U. S. 440
distinguished. Pp. 352 U. S.
(a) The court's instructions to the jury were sufficiently
clear. Pp. 352 U. S.
(b) On the record in this case, it is fair to assume that the
jury followed the court's instructions. Pp. 352 U. S.
229 F.2d 319 affirmed.
Page 352 U. S. 233
MR. JUSTICE BURTON delivered the opinion of the Court.
A joint trial in this case resulted in the conviction of five
co-defendants on a federal charge of conspiring to deal unlawfully
in alcohol. Only the petitioner, Orlando Delli Paoli, appealed. The
principal issue is whether the trial court committed reversible
error, as against petitioner, by admitting in evidence a confession
of a co-defendant, made after the termination of the alleged
conspiracy. The trial court declined to delete references to
petitioner from the confession, but stated clearly that the
confession was to be considered only in determining the guilt of
the confessor, and not that of other defendants. For the reasons
hereafter stated, we agree that, under the circumstances of this
case, such a restricted admission of the confession did not
constitute reversible error.
In the United States District Court for the Southern District of
New York, the jury convicted petitioner and four co-defendants,
Margiasso, Pierro, Whitley, and King, of conspiring to possess and
transport alcohol in unstamped containers and to evade payment of
federal taxes on the alcohol. [Footnote 1
] The Government's witnesses testified that they
had observed actions of the defendants which disclosed the
procedure through which Margiasso, Pierro, and petitioner supplied
unstamped alcohol to their customers, such as King and Whitley. The
Government also offered, for use against Whitley alone, his written
confession made in the presence of a government agent and of his
own counsel after the termination of the conspiracy. [Footnote 2
] The court postponed the
introduction of Whitley's
Page 352 U. S. 234
confession until the close of the Government's case. At that
time, the court admitted it with an emphatic warning that it was to
be considered solely in determining the guilt of Whitley, and not
in determining the guilt of any other defendant. The court repeated
this admonition in its charge to the jury.
The Court of Appeals affirmed petitioner's conviction, with one
judge dissenting. 229 F.2d 319. We granted certiorari especially to
consider the admissibility of Whitley's post-conspiracy confession.
350 U.S. 992.
Petitioner first attacks the sufficiency of the evidence
connecting him with the conspiracy. The Government's evidence,
exclusive of Whitley's confession, showed that the defendants'
conspiracy to deal in unstamped alcohol centered around a garage
used for storage purposes in a residential district of the Bronx in
New York City and gasoline service station, also in the Bronx. The
service station was used by Margiasso, Pierro, and petitioner as a
place to meet customers and transfer alcohol.
In December, 1949, petitioner, using the alias of "Bobbie
London," was associated with Margiasso and Pierro in inspecting the
garage and in negotiating for its purchase. For $2,000 in cash,
title to the garage and an adjacent cottage was taken in the name
of Pierro's sister. In 1950, the garage was repaired, its windows
boarded up and its doors strengthened and padlocked. Petitioner
lived not far away, in the Bronx, and was observed, from time to
time at the garage or using a panel truck which was registered
under a false name. During the daytime, this truck generally was
parked near petitioner's home or the garage, but neighbors
testified that it was in use late at night. In it petitioner
transported various articles to the garage or elsewhere. On one
occasion, petitioner, with Margiasso, loaded it with bundles of
cartons suited to
Page 352 U. S. 235
the packing of 5-gallon cans. Late in 1951, petitioner used an
additional truck, also registered under a false name. In addition,
he frequently drove to the service station in a Cadillac car. On
December 18, 1951, he used this car in making delivery of a large
package to a near-by bar.
During December, 1951, the service station often was used as a
meeting place for Margiasso, Pierro, and petitioner. Margiasso and
petitioner were there on the evening of December 28. [Footnote 3
] At about 7 and 10 p.m.,
respectively, King and Whitley arrived. Each turned over his car to
Margiasso. Margiasso drove King's car to the garage and returned
with it heavily loaded. King then drove it away. Government agents
followed him until he stopped in Harlem. There they arrested him
and took possession of 19 5-gallon cans of unstamped alcohol found
in his car. Later in the evening, Margiasso took Whitley's car to
the garage and was arrested in it when leaving the still-open
garage. The agents thereupon seized 113 5-gallon cans of unstamped
alcohol they found in the garage. Whitley, who had been waiting for
Margiasso at the service station with $1,000 in a paper bag, was
arrested on the agents' return with Margiasso.
Petitioner's presence at the service station on the evening of
December 28 was closely related to these events. He waited there
with King for Margiasso to return with King's car containing the 19
cans of alcohol.
Page 352 U. S. 236
He was there again with Margiasso at about 10 p.m., but left
shortly before Whitley came. He returned while Margiasso, Whitley,
and the agents were there, and was arrested while attempting to
Petitioner contends that the above evidence shows merely that he
was a friend and associate of Pierro and Margiasso. We conclude,
however, from the record as a whole, that the jury could find,
beyond a reasonable doubt, that petitioner was associated with
Pierro and Margiasso in the purchase of the garage and the use of
the panel truck, that he knew that unstamped alcohol was stored in
the garage, that he had access to it, and that he was an active
participant in the transfers of alcohol to Whitley and King.
Accordingly, we agree with Circuit Judge Learned Hand's statement
made for the court below, following his own summary of the evidence
of petitioner's participation in the conspiracy:
"Not only was all this enough to connect him with the business,
but the jurors could hardly have failed to find that he was in the
enterprise. The whole business was illegal, and carried on
surreptitiously, and the possibility that unless he were a party to
the venture, Pierro and Margiasso would have associated [with] him
to the extent we have mentioned is too remote for serious
229 F.2d at 320. [Footnote
In considering the admissibility of the Whitley confession, we
start with the premise that the other evidence against petitioner
was sufficient to sustain his conviction.
Page 352 U. S. 237
If Whitley's confession had included no reference to
petitioner's participation in the conspiracy, its admission would
not have been open to petitioner's objection. Similarly, if the
trial court had deleted from the confession all references to
petitioner's connection with the conspiracy, the admission of the
remainder would not have been objectionable. The impracticality of
such deletion was, however, agreed to by both the trial court and
the entire court below, and cannot well be controverted.
This Court long has held that a declaration made by one
conspirator, in furtherance of a conspiracy and prior to its
termination, may be used against the other conspirators. However,
when such a declaration is made by a conspirator after the
termination of the conspiracy, it may be used only against the
declarant and under appropriate instructions to the jury.
". . . 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. S. 590
, 159 U. S.
. See United States v. Gooding,
Wheat. 460, 25 U. S. 468
-470. But such
declaration can be used against the co-conspirator only when made
in furtherance of the conspiracy. Fiswick v. United
States, 329 U. S. 211
, 329 U. S.
; Logan v. United States, 144 U. S.
, 144 U. S. 308
-309. There can
be no furtherance of a conspiracy that has ended. Therefore, the
declarations of a conspirator do not bind the co-conspirator if
made after the conspiracy has ended. That is the teaching of
Krulewitch v. United States,
], and Fiswick v. United States, supra.
dealt only with declarations of one conspirator after the
conspiracy had ended. . . . "
Page 352 U. S. 238
"Relevant declarations or admissions of a conspirator made in
the absence of the co-conspirator, and not in furtherance of the
conspiracy, may be admissible in a trial for conspiracy as against
the declarant to prove the declarant's
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
Such declaration is inadmissible as to all but
". . . These declarations [i.e.,
those admissible only
as to the declarant] 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 States, supra,
336 U. S. 453
opinion); Blumenthal v. United States, 332 U. S.
, 332 U. S. 559
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 v. Gottfried,
F.2d 360, 367."
Lutwak v. United States, 344 U.
, 344 U. S.
-618, 344 U. S. 619
See also Opper v. United States, 348 U. S.
, 348 U. S.
Page 352 U. S. 239
Petitioner contends that Krulewitch v. United States,
336 U. S. 440
requires the exclusion of a post-conspiracy confession of a
co-conspirator. That case dealt with the scope of the
co-conspirators' exception to the hearsay rule. This Court held
that the utterance of a co-conspirator made after the termination
of the conspiracy was inadmissible against other co-conspirators.
Unlike the instant case, the declarant was not on trial, and the
question whether his utterance, implicating other alleged
conspirators, could be admitted in a joint trial solely against the
declarant, under proper limiting instructions was neither presented
The issue here is whether, under all the circumstances, the
court's instructions to the jury provided petitioner with
sufficient protection so that the admission of Whitley's
confession, strictly limited to use against Whitley, constituted
reversible error. The determination of this issue turns on whether
the instructions were sufficiently clear and whether it was
reasonably possible for the jury to follow them. [Footnote 5
When the confession was admitted in evidence, the trial court
"The proof of the Government has now been completed except for
the testimony of the witness Greenberg as to the alleged statement
or affidavit of the defendant Whitley. This affidavit or admission
Page 352 U. S. 240
be considered by you solely in connection with your
determination of the guilt or innocence of the defendant Whitley.
It is not to be considered as proof in connection with the guilt or
innocence of any of the other defendants."
"The reason for this distinction is this: an admission by
defendant after his arrest of participation in alleged crime may be
considered as evidence by the jury against him, together with other
evidence, because it is, as the law describes it, an admission
against interest which a person ordinarily would not make. However,
if such defendant, after his arrest, implicates other defendants in
such an admission, it is not evidence against those defendants,
because, as to them, it is nothing more than hearsay evidence."
The substance of this admonition was repeated several times
during the cross-examination of one of the government agents before
whom the confession was made, and a final warning to the same
effect was included in the court's charge to the jury. [Footnote 6
] Nothing could have been
Page 352 U. S. 241
more clear than these limiting instructions. Petitioner, who
made no objection to these instructions at the trial, concedes
We may also fairly proceed on the basis that the jury followed
these instructions. Several factors favor this conclusion: (1) The
conspiracy was so simple in its character that the part of each
defendant in it was easily understood. There was no mass trial, and
no multiplicity of evidentiary restrictions. (2) The separate
interests of each defendant were emphasized throughout the trial.
Margiasso and petitioner were represented by one attorney. Each of
the other defendants was represented by a separate attorney.
Throughout the trial, the separate interests of each defendant were
repeatedly emphasized by his attorney and recognized by the court.
] A separate trial
never was requested on behalf of any defendant. (3) The trial court
postponed the introduction of Whitley's confession until the rest
of the Government's case was in, thus making it easier for the jury
Page 352 U. S. 242
the confession separately from the other testimony. This
separation was pointed out by the trial court. Neither side
thereafter introduced any evidence. (4) In the main, Whitley's
confession merely corroborated what the Government already had
established. In the light of the Government's uncontradicted
testimony implicating petitioner in the conspiracy, the references
to petitioner in the confession were largely cumulative. (5) There
is nothing is the record indicating that the jury was confused, or
that it failed to follow the court's instructions.
It is a basic premise of our jury system that the court states
the law to the jury, and that the jury applies that law to the
facts as the jury finds them. Unless we proceed on the basis that
the jury will follow the court's instructions where those
instructions are clear and the circumstances are such that the jury
can reasonably be expected to follow them, the jury system makes
little sense. Based on faith that the jury will endeavor to follow
the court's instructions, our system of jury trial has produced one
of the most valuable and practical mechanisms in human experience
for dispensing substantial justice.
"To say that the jury might have been confused amounts to
nothing more than an unfounded speculation that the jurors
disregarded clear instructions of the court in arriving at their
verdict. Our theory of trial relies upon the ability of a jury to
follow instructions. There is nothing in this record to call for
reversal because of any confusion or injustice arising from the
joint trial. The record contains substantial competent evidence
upon which the jury could find petitioner guilty."
Opper v. United States, 348 U. S.
, 348 U. S. 95
See also Lutwak v. United States, 344 U.
, 344 U. S.
-620; Blumenthal v. United States,
332 U. S. 539
332 U. S.
Page 352 U. S. 243
There may be practical limitations to the circumstances under
which a jury should be left to follow instructions, but this case
does not present them. As a practical matter, the choice here was
between separate trials and a joint trial in which the confession
would be admitted under appropriate instructions. Such a choice
turns on the circumstances of the particular case, and lies largely
within the discretion of the trial judge. Accordingly, we conclude
that leaving petitioner's case to the jury under the instructions
here given was not reversible error, and the judgment of the Court
of Appeals is affirmed.
In violation of 18 U.S.C. § 371, and I.R.C.1939, §§ 2803(a),
2806(e), and 2913. Margiasso and King were also indicted and
convicted for the substantive crime of possession of 19 5-gallon
cans of unstamped alcohol, and Margiasso of another 113 of such
The confession appears as an appendix to the dissenting opinion
below in 229 F.2d at 324-326. It is also printed as an appendix to
this opinion, post,
p. 352 U. S.
On that occasion, the procedure followed closely the pattern
observed by government agents on December 18 when, at 9 p.m.,
Margiasso and petitioner had been at the service station. A Pontiac
car, with two occupants, drove up. The occupants got out. Margiasso
drove away in their car and, half an hour later, returned with it
heavily loaded. When the two men drove it away, government agents
tried to follow it. However, they lost it in traffic, and no
arrests were made. The agents noted the car's license number, found
it registered under a false name, and, on December 28, recognized
it as the one in which Whitley then came to the service
Participation in a criminal conspiracy may be shown by
circumstantial, as well as direct, evidence. See, e.g.,
Blumenthal v. United States, 332 U. S. 539
332 U. S. 557
Glasser v. United States, 315 U. S.
, 315 U. S. 80
Direct Sales Co. v. United States, 319 U.
; United States v. Manton,
107 F.2d 834,
For longstanding recognition that possible prejudice against
other defendants may be overcome by clear instructions limiting the
jury's consideration of a post-conspiracy declaration solely to the
determination of the guilt of the declarant, see also Cwach v.
212 F.2d 520, 526-527; United States v.
205 F.2d 480, 483-484; Metcalf v. United
195 F.2d 213, 217; United States v. Leviton,
193 F.2d 848, 855-856; United States v. Gottfriend,
F.2d 360, 367; United States v. Pugliese,
153 F.2d 497,
500-501; Johnson v. United States,
82 F.2d 500; Nash
v. United States,
54 F.2d 1006, 1007; Waldeck v. United
2 F.2d 243, 245.
"Before you make those motions -- I will again advise the jury
that any admissions by the defendant Whitley after the date of his
arrest can be considered by you in connection with the
determination of the guilt or innocence of the defendant Whitley,
together with the other testimony. But any admissions by the
defendant Whitley are not to be considered as proof in connection
with the guilt or innocence of any of the other defendants. The
reason for that I explained before to you, that the admission by a
defendant after his arrest of participation in an alleged crime may
be considered as evidence by the jury against him with the other
evidence because it is, as the law describes it, an admission
against interest which a person ordinarily would not make. However,
if such a person, after his arrest, implicates other defendants in
such admission, it is not evidence against them, because, as to
those defendants, it is nothing more than hearsay evidence. I
advise you of that in connection with the testimony of the last
witness [Greenberg] as to any oral statements made by Whitley or
any written statements made by Whitley."
Safeguarding the separate interests of the defendants, the court
"The existence of the conspiracy and each defendant's connection
with it must be established by individual proof based upon
reasonable inference to be drawn from such defendant's own actions,
his own conduct, his own declarations, and his own connection with
the actions and conduct of the other alleged co-conspirators."
"* * * *"
"To find any defendant guilty of conspiracy, you must find that
he actively participated therein. Mere knowledge of an illegal act
on the part of any co-conspirator is insufficient. Mere association
of one defendant with another does not establish the existence of a
"* * * *"
". . . if you find that every circumstance relied upon as
incriminating is susceptible of two interpretations, each of which
appears to be reasonable, and one of which points to a defendant's
guilt, the other to his innocence, it is your duty to accept that
of innocence and reject that which points to guilt."
APPENDIX TO OPINION OF THE COURT
Whitley's confession reads as follows:
"UNITED STATES OF AMERICA"
"SOUTHERN JUDICIAL DISTRICT OF NEW YORK"
"James Whitley, being duly sworn, deposes and says:"
"I reside at 65 West 133rd Street, Apartment 4 E, New York, N.Y.
I make this statement in the presence of my attorney, Mr. Bertram
J. Adams of 299 Broadway, New York, N.Y., after being fully advised
that, under the Constitution of the United States, I have the
privilege and right of not saying anything at all; that, if I
answer any question, anything I say could be used against me in any
criminal proceeding. Being fully aware of my rights, I make this
statement of my own free will to Special Investigators Albert
Miller and William Greenberg in the office of the Alcohol and
Tobacco Tax Division, 143 Liberty Street, New York, N.Y. "
Page 352 U. S. 244
"Sometime around Thanksgiving of 1949, a friend of mine
introduced me to a man known to me as Tony. This man asked me if I
wanted to buy some alcohol, and I told him I did. The meeting
occurred on 126th Street in Harlem. The man then told me to meet
him the next day at a candy store on the south side of 119th
Street, just east of First Avenue. When I got there, Tony
introduced me to a man whose name I do not know. This man told me
to meet him that night on 100th Street and Second Avenue. I met him
there. He took my car and drove away. A little while later, he came
back and told me that the car was parked on 103rd Street and Second
Avenue. I had purchased two 5-gallon cans of alcohol on that
occasion, and paid him just before he drove away in my car.
Thereafter, I would meet this man around that candy store about
twice a week, and the same procedure would be followed. This
continued until about June or July of 1950."
"Tony was about 5' 4' in height, about 55 years of age, had a
dark complexion and stocky build and, I believe, had brown eyes. He
was apparently of Italian extraction. The other man who sold me the
alcohol was apparently also of Italian descent, and he had a dark
complexion. He spoke in broken English. He had black hair, and was
about 27 or 28 years of age and was about 5' 9',' in height.
(Sometime in 1950, Investigator Whited of the Alcohol and Tobacco
Tax Division asked me about him and showed me his picture.)"
"At about that time, this man sent me to Carl. He introduced
Carl to me and told me that Carl would take care of me from then
on. I would meet Carl on Second Avenue between 121st Street and
122nd Street in a seafood restaurant, and would purchase the
alcohol from him."
"Carl is about 5' 10' in height, has blond hair, blue eyes,
light complexion, and is about 30 years of age. He is apparently of
Italian descent. He is about 160 pounds.
Page 352 U. S. 245
Carl would usually come to my home to see me and ask me if I
"Just before Carl went to jail in 1950, he introduced me to
Bobby. I have been shown a photograph bearing ATU 3643 N.Y. dated
12/29/51 of Orlandi Delli Paoli, and I identify it as that of the
man known to me as Bobby. This was sometime in the summer of 1951.
Bobby would come to my house to see me. If I placed an order with
him, he would set the date and the time for seven or eight o'clock
in the evening when I was to pick up the alcohol. The first time I
met him at 138th Street and Bruckner Boulevard, in the Bronx. He
took my car and was gone about one-half hour, and then returned
with the alcohol. The second time, I met him on the corner of
Bruckner Boulevard and Soundview Avenue. From then on, he would
alternate the procedure: I would meet him one night on 138th Street
and the next time at Soundview Avenue."
"About two months ago, I began meeting Bobby at the Shell
gasoline station known as the Bronx River Service Station on
Bruckner Boulevard just past the bridge crossing over to Bronx
River. I would usually leave my car parked on the street near the
gas station and meet Bobby outside of the gas station. He told me
not to go into the gas station, as the attendant might not like
"About a month ago, Bobby introduced me to another man whose
name I do not know. I have been shown a photograph marked ATU 3642
N.Y., dated 12/29/51 of Carmine Margiasso, and identify it as that
of the man to whom Bobby introduced me. Bobby also told me that if
he was not present when I met Margiasso, I was not to give
Margiasso any money, but was to pay him (Bobby) the next time I saw
him. Margiasso also followed the same procedure: he would take my
car, would be gone about 20 minutes, and then return with the
alcohol. Margiasso picked up my car about four times. "
Page 352 U. S. 246
"My purchases from Bobby would consist of two or three 5-gallon
cans of alcohol at a time and were made once or twice a week. The
last two times, I paid Bobby $38 a can."
"On the evening of Friday, December 28, 1951, I had ordered two
cans, and when Margiasso took my car I waited in the Lunch room
near the gas station. When I thought it was time for Margiasso to
return, I went over to the gas station and waited in the office
after purchasing a package of cigarettes. Two officers who were
Federal Officers came in and placed me and William Hudson under
arrest. Shortly after that happened, Bobby drove up and was
arrested by the Federal officers."
"I have read the above statement consisting of three pages and
it is true to the best of my knowledge and belief."
(Signed) James Whitley
"Sworn to before me this 5th day of January 1952."
"(Signed) William Greenberg"
"William Greenberg, Spec. Inv."
"(Signed) Albert Miller"
"Albert Miller, Spec. Inv."
229 F.2d 319, 324-326.
MR. JUSTICE FRANKFURTER, whom MR. JUSTICE BLACK, MR. JUSTICE
DOUGLAS, and MR. JUSTICE BRENNAN join, dissenting.
Prosecutions for conspiracy present difficulties and temptations
familiar to anyone with experience as a federal prosecutor. The
difficulties derive from observance of the rules governing evidence
admissible against some but not all defendants in a criminal case.
Page 352 U. S. 247
derive from the advantages of prosecuting in one trial two or
more persons collaborating in a criminal enterprise. One of the
most recurring of the difficulties pertains to incriminating
declarations by one or more of the defendants that are not
admissible against others. The dilemma is usually resolved by
admitting such evidence against the declarant but cautioning the
jury against its use in determining the guilt of the others. The
fact of the matter is that, too often, such admonition against
misuse is intrinsically ineffective, in that the effect of such a
nonadmissible declaration cannot be wiped from the brains of the
jurors. The admonition therefore becomes a futile collocation of
words and fails of its purpose as a legal protection to defendants
against whom such a declaration should not tell. While enforcing
the rule of admitting the declaration solely against a declarant
and admonishing the jury not to consider it against other
defendants, Judge Learned Hand, in a series of cases, has
recognized the psychological feat that this solution of the dilemma
demands of juries. He thus stated the problem:
"In effect, however, the rule probably furthers, rather than
impedes, the search for truth, and this perhaps excuses the device
which satisfies form while it violates substance -- that is, the
recommendation to the jury of a mental gymnastic which is beyond
not only their powers, but anybody else's."
Nash v. United States,
54 F.2d 1006, 1007.
It may well be that, where such a declaration only glancingly,
as it were, affects a co-defendant who cannot be charged with the
admitted declaration, the rule enforced by the Court in this case
does too little harm not to leave its application to the discretion
of the trial judge. But where the conspirator's statement is so
damning to another against whom it is inadmissible as is true in
Page 352 U. S. 248
the difficulty of introducing it against the declarant without
inevitable harm to a co-conspirator, the petitioner in this case,
is no justification for causing such harm. The Government should
not have the windfall of having the jury be influenced by evidence
against a defendant which, as a matter of law, they should not
consider, but which they cannot put out of their minds. After all,
the prosecution could use the confession against the confessor and
at the same time avoid such weighty unfairness against a defendant
who cannot be charged with the declaration by not trying all the
co-conspirators in a single trial.
It is no answer to suggest that here, the petitioner defendant's
guilt is amply demonstrated by the uninfected testimony against
him. That is the best of reasons for trying him freed from the
inevitable unfairness of being affected by testimony not admissible
against him. In any event, it is not for an appellate tribunal to
know how the jury's mind would have operated if powerfully improper
evidence had not, in effect, been put in the scale against
In substance, I agree with the dissenting opinion of Judge
Frank, below, 229 F.2d 319, 322, and would therefore reverse.