In a jury trial in a federal court, respondents were convicted
of willfully attempting to evade federal corporate income taxes.
The Court of Appeals reversed on the ground that their privilege
against self-incrimination had been violated by the admission of
evidence obtained as a result of timely voluntary disclosures made
by them in good faith in the hope of obtaining immunity from
criminal prosecution under a policy then followed by the Treasury
Department. After petitioning this Court for certiorari, the
Government moved that the case be remanded to the District Court
for further proceedings, on the ground that newly discovered
evidence revealed that testimony at the trial concerning the
timeliness and good faith of respondents' disclosures was perjured
and fraudulent.
Held: this Court will not review a case on the basis of
a record so challenged as being tainted with perjury and fraud; the
judgment of the Court of Appeals is vacated, and the case is
remanded to the District Court for reexamination in further
proceedings on the issues relating to respondents' allegedly
voluntary disclosures. Pp.
355 U. S. 234-246.
(a) This Court will not review a case when the record is
challenged, on the basis of newly discovered evidence, as being so
tainted with perjury and fraud.
Communist Party v. Subversive
Activities Control Board, 351 U. S. 115;
Mesarosh v. United States, 352 U. S.
1. Pp.
355 U. S.
241-242.
(b) Here, a convincing showing has been made that newly
discovered evidence will show that testimony concerning crucial
questions as to the timeliness and good faith of respondents'
disclosures was perjured and fraudulent, and this Court will not
review the decision of the Court of Appeals until these charges
have been resolved. Pp.
355 U. S.
242-243.
(c) Since respondents were found guilty by the jury, the motion
to remand involves no question of double jeopardy. P.
355 U. S.
243.
Page 355 U. S. 234
(d) The Government's new showing does not relate to an issue
submitted to the jury, but to a preliminary question relating to
the admissibility of evidence, and, since the Court of Appeals set
aside the verdict on that point, fair administration of justice
requires that the Government have an opportunity to show that that
decision was obtained by respondents on a corrupt record
attributable to their own fraud. Pp.
355 U. S.
243-244.
(e) This Court will not sanction a rule which would prohibit
appellate review upon a record suspect of taint when the taint
might operate to the disadvantage of the defendants, but which
would require review when the taint might operate to their
advantage. P.
355 U. S.
244.
(f) Since the charges as to the integrity of the record must be
fully aired and the District Court is the proper forum for that
purpose, it would be unnecessary and wasteful to remand this case
to the Court of Appeals. Pp.
355 U. S.
244-245.
(g) On remand, additional evidence to be presented by both sides
will be confined to the issue whether certain evidence admitted at
the trial should have been suppressed, and the District Court will
make appropriate new findings of fact on that issue, and enter
appropriate new final judgments on the basis of such findings. Pp.
355 U. S.
245-246.
225 F.2d 394, judgment vacated and case remanded to District
Court.
MR. JUSTICE HARLAN delivered the opinion of the Court.
This case presents an unusual question involving the integrity
of a criminal trial in the federal courts.
The Solicitor General has filed a motion in this Court to remand
the case to the District Court for further proceedings. This motion
is based on a proffer of evidence
Page 355 U. S. 235
alleged to have come into the possession of the Government after
the United States had petitioned for certiorari to review a
decision of the Court of Appeals setting aside the conviction of
the respondents. It is claimed that such evidence shows that the
decision of the Court of Appeals was based upon a perjurious record
attributable to the fraud of the respondents.
A clear appreciation of both the proceedings in the lower courts
and the peculiar circumstances in which the Government's motion
arises is essential to an understanding of why we believe the
motion to remand must be granted.
In 1953, the respondents and Frank J. Huebner, after a jury
trial in the United States District Court for the Northern District
of Illinois, were convicted of willfully attempting to evade the
1945 and 1946 federal corporate income taxes of the Shotwell
Manufacturing Company. [
Footnote
1] Prior to trial, they moved for dismissal of the indictment
on the ground that their voluntary and timely disclosure of these
tax derelictions to the taxing authorities entitled them to
immunity from prosecution under the Treasury's former "voluntary
disclosure policy." [
Footnote
2] This motion was denied by the District Court after a
pretrial hearing. Respondents and Huebner then moved, no the
same
Page 355 U. S. 236
ground, for suppression of the evidence obtained from them by
the taxing authorities as a result of their alleged disclosure.
After a further pretrial hearing, the District Court also denied
this motion, later filing an opinion in which it found that the
disclosure was not made in good faith. [
Footnote 3]
On appeal, the Court of Appeals affirmed as to the dismissal
motion, but reversed as to the suppression motion, set aside the
convictions, and remanded the case for a new trial. 225 F.2d 394.
[
Footnote 4] The Court of
Appeals found that the respondents' disclosure was
bona
fide, and also ruled that the disclosure was timely, an issue
which the District Court had not reached. [
Footnote 5] The Government petitioned us for certiorari
on the suppression issue, and the respondents and Huebner
cross-petitioned on the dismissal issue. [
Footnote 6] Thereafter, the Government filed its motion
to remand, on which, as later amended and supplemented,
respondents
Page 355 U. S. 237
and Huebner joined issue by the filing of answers. [
Footnote 7] Considering that the
matters presented by the motion to remand raised an important issue
affecting the proper administration of justice in the federal
courts, we granted the Government's petition for certiorari,
"limited to the issues raised in the amended motion to remand
and supplement thereto and the respondents' answer to the amended
motion to remand. [
Footnote
8]"
352 U.S. 997. We denied the cross-petition for certiorari. 352
U.S. 998.
For an understanding of the significance of the newly discovered
evidence [
Footnote 9] proffered
by the Government, some knowledge is required of the position taken
by the defendants in the District Court on the suppression issue.
The substance of that position was presented by Leon J. Busby,
Shotwell's accountant, who testified at both the hearing on the
motion to suppress and at the trial. He stated that the Shotwell
Company, in each of the years 1945 and 1946, had received
substantial cash payments for black market candy sales above
OPA
Page 355 U. S. 238
ceiling prices; [
Footnote
10] that these receipts were not recorded on Shotwell's books
and were not reported in its income tax returns; that he first
learned of these facts in the course of conversations with H.
Stanley Graflund, Shotwell's comptroller, during a trip they took
to New York early in January, 1948; that, immediately upon his
return to Chicago, he discussed the matter with respondents Cain
and Sullivan; that he recommended disclosing the omissions to the
taxing authorities; and that, at the direction of respondents, he
revealed the entire affair to Ernest J. Sauber, Deputy Collector in
Chicago, in a series of conferences beginning in the latter part of
January, 1948, at one or more of which conferences he was
accompanied by Cain. He also testified that, thereafter, acting
under Sauber's instructions and assurances that only a civil
liability was involved, he and his staff, with the assistance of
Cain, Huebner, and Graflund, conducted an exhaustive investigation
over a period of several months to reconstruct the Shotwell figures
on the black market transactions. He said that these figures were
furnished in August, 1948, to a revenue agent for scrutiny.
Sauber and Cain gave similar testimony, except that Sauber fixed
Busby's first visit to him at about the middle of March, 1948.
Cain's explanation of Shotwell's failure to report the black market
receipts in its income tax returns was that he believed such
receipts were not taxable, since they were used by Shotwell to
purchase black market supplies, [
Footnote 11] and therefore gave rise to no profit.
[
Footnote 12]
Page 355 U. S. 239
In support of its motion, the Government has filed with the
Court the affidavits of Huebner and Graflund, which they executed
after the Government filed its petition for certiorari. These
affidavits paint a sharply different picture of the entire affair;
indeed, they flatly contradict the tale unfolded on behalf of the
respondents in the District Court. More specifically: (1) Graflund
swears that the first time he discussed the black market
transactions with Busby was at Busby's home in late June, 1948, at
which time Busby gave no indication that he had previously known of
these transactions; [
Footnote
13] (2) Graflund and Huebner swear that at no time prior to a
meeting held in July, 1948, were they ever advised or led to
believe by respondents that Shotwell's black market receipts had
been disclosed to the Treasury; (3) Huebner swears that it was at
this July, 1948, meeting that Cain first told him that a voluntary
disclosure would be made, and that Cain also gave him to understand
that it had been "agreed" that the date of the disclosure "would be
set at June 15, 1948"; [
Footnote
14] (4) Graflund and Huebner swear that, prior to the middle of
July, 1948, no work was done by anyone to assemble records or data
for the purpose of making a disclosure to
Page 355 U. S. 240
the tax authorities, and that the alleged offsetting payments
for black market supplies were, in fact, concocted "out of thin
air" at the July meeting; and (5) Huebner swears that, in July and
August, 1948, he gave Cain $10,000 which Cain said he needed "to
fix the tax difficulty we were in." [
Footnote 15] Huebner says in his affidavit that he was
not asked to testify in the District Court "because I had stated I
would not lie on the stand."
It is obvious that the Government's new evidence casts the
darkest shadow upon the truthfulness of the disclosure testimony
given by or on behalf of the respondents in the District Court. If
true, it indicates that what the respondents have sought to
represent in the District Court, the Court of Appeals, and in this
Court as a voluntary disclosure, made in a timely manner and in
good faith, was instead but a further step in a conspiracy to "fix"
Shotwell's tax difficulties, possibly involving the corruption
Page 355 U. S. 241
of government officials, [
Footnote 16] and certainly entailing an attempt to
perpetrate a fraud upon the courts. Were we to undertake to review
the Court of Appeals upon a record as suspect as this, we might
very well be lending ourselves to the consummation of a fraud which
may already have made the Court of Appeals its unwitting victim. In
these circumstances, it is imperative that the case be remanded to
the District Court for a full exploration of where the truth lies
before the case is allowed to proceed further. The integrity of the
judicial process demands no less.
The path to our decision is clearly marked by this Court's
actions and pronouncements in two recent cases,
Communist Party
of United States v. Subversive Activities Control Board,
351 U. S. 115, and
Mesarosh v. United States,
352 U. S.
1. In each case, the Court refused to consider the
questions presented for review in the face of a challenge to the
integrity of the record based on newly discovered evidence. In
Communist Party, the Court remanded the case to the Board
with directions to resolve the charges of taint, and to make a
fresh determination on the merits if taint were found. [
Footnote 17] In
Mesarosh,
the Court, believing that the record clearly demonstrated that a
key government witness had been wholly discredited, took more
drastic action by reversing the convictions of the petitioners and
remanding the case to the District Court for a new trial. The basic
reason for the Court's action in
Page 355 U. S. 242
both cases was made manifest in its opinions. In
Communist
Party, supra, at
351 U. S.
124-125, the Court said:
"The untainted administration of justice is certainly one of the
most cherished aspects of our institutions. Its observance is one
of our proudest boasts. This Court is charged with supervisory
functions in relation to proceedings in the federal courts.
See
McNabb v. United States, 318 U. S. 332. Therefore,
fastidious regard for the honor of the administration of justice
requires the Court to make certain that the doing of justice be
made so manifest that only irrational or perverse claims of its
disregard can be asserted. . . . We cannot pass upon a record
containing such challenged testimony. We find it necessary to
dispose of the case on the grounds we do, not in order to avoid a
constitutional adjudication, but because the fair administration of
justice requires it."
In
Mesarosh, supra, at
352 U. S. 14, the
Court said:
"This is a federal criminal case, and this Court has supervisory
jurisdiction over the proceedings of the federal courts. [Citing
McNabb, supra, in a footnote.] If it has any duty to
perform in this regard, it is to see that the waters of justice are
not polluted. Pollution having taken place here, the condition
should be remedied at the earliest opportunity."
A convincing showing is, of course, necessary to bring these
principles into play. We think that such a showing has been made
here. The newly discovered evidence contained in the affidavits
from the prospective witnesses Graflund and Huebner cuts to the
very heart of the testimony adduced by respondents to show that
they made a timely and
bona fide disclosure to the
Treasury, the sole issue involved in the suppression hearings and
the issue on which the outcome of the case in the Court of Appeals
turned. It is plain that either the testimony in the District
Page 355 U. S. 243
Court was untrue or these affidavits themselves are the product
of fraud. This is a matter for the District Court to determine. One
thing is clear. This Court cannot be asked to review the decision
of the Court of Appeals until these charges have been resolved.
In both the
Communist Party and
Mesarosh
cases,
supra, the action of the Court enured to the
benefit of the defendants. In this instance, the further
proceedings below may work to the advantage of the Government.
[
Footnote 18] In the
circumstances of this case, we think that the distinction makes no
difference. Because they were found guilty by the jury, respondents
concede, as they must, that the motion to remand involves no
question of double jeopardy.
See United States v. Ball,
163 U. S. 662,
163 U. S. 672.
Their objection that it is "unfair" to allow the Government at this
stage of the proceedings to "bolster" the record relating to the
suppression issue is likewise unacceptable. It is undeniable, of
course, that, upon appellate reversal of a conviction, the
Government is not limited at a new trial to the evidence presented
at the first trial, but is free to strengthen its case in any way
it can by the introduction of new evidence. We think that, in the
peculiar circumstances of this case, the fair administration of
justice requires that the Government should have a similar
opportunity here. For if the Government's evidence is found to be
true, it would then appear that the Court of Appeals' decision
setting aside the verdict was obtained by the respondents on a
corrupt record attributable to their own fraud. In the further
proceedings in the District Court, the respondents will, of course,
have a reciprocal opportunity to sustain the validity of their
asserted voluntary disclosures.
Page 355 U. S. 244
We should not lose sight of the fact that the Government's new
showing does not relate to an issue submitted to the jury in the
proceedings below, but rather to a preliminary question as to the
admissibility of evidence. [
Footnote 19] Hence, to grant the Government's motion is
not to permit it to "bolster" the evidence upon which the verdict
of guilty was returned by the jury in this case. That verdict
clearly must stand or fall on the sufficiency of the evidence
already introduced at the trial.
In these circumstances, acceptance of the respondents' position
on this motion would be tantamount to sanctioning a rule which
would prohibit appellate review upon a record suspect of taint, if
the taint might operate to the disadvantage of the defendants, but
which would nevertheless require review if the taint might operate
to their advantage. We cannot subscribe to that quixotic result.
The fair administration of justice is not such a one-way
street.
The respondents contend that the motion to remand should
originally have been addressed to the Court of Appeals, and that we
should now send the Government back to that Court. [
Footnote 20] This contention is essentially
one
Page 355 U. S. 245
addressed to our discretion, and, in the circumstances of this
case, we find it unavailing. The Government was not in a position
to make the motion until after its petition for certiorari had been
filed in this Court. The course of this litigation has already been
protracted. We are abundantly satisfied that the charges as to the
integrity of the record must be fully aired, and that the proper
forum for this is the District Court, because of its intimate
familiarity with the record and its facilities for sifting
controverted facts. In this state of affairs, we think that it
would be both unnecessary and wasteful to remit the Government to
the Court of Appeals.
Cf. Mesarosh, supra, at
352 U.
S. 13.
We conclude with a word about the nature of the further
proceedings in the District Court. The additional evidence to be
presented by both sides will be confined to the suppression issue.
The District Court will make such new findings of fact on this
issue as may be appropriate in light of the further evidence and
the entire existing record (
see Carroll v. United States,
267 U. S. 132,
267 U. S.
162), including findings on the question of the
timeliness of respondents' alleged disclosures. [
Footnote 21] If the District Court decides,
on the basis of its new findings, to
Page 355 U. S. 246
adhere to its original decision on the motion to suppress, it
will then enter new final judgments based upon the record as
supplemented by its new findings, thereby preserving to all parties
the right to seek further appellate review, including respondents'
right to have reviewed by the Court of Appeals alleged errors in
the original trial which that court did not reach in the previous
appeal. If, on the other hand, the District Court concludes after
the further proceedings that the motion to suppress should have
been granted, it would then become its duty to accord the
respondents a new trial.
In accordance with the views set forth in this opinion, we make
the following disposition of this case: (1) this Court's order of
February 25, 1957, which granted with limitations the Government's
petition for certiorari, is vacated, and such petition is granted
without restriction; (2) the judgment of the Court of Appeals is
vacated; and (3) the case is remanded to the District Court for
further proceedings consistent with this opinion.
It is so ordered.
[
Footnote 1]
Internal Revenue Code of 1939, § 145(b), 53 Stat. 63. The
Shotwell Company manufactured candy and marshmallows. Cain was
President, Sullivan, Executive Vice President and General Counsel,
and Huebner, Vice President. Huebner is no longer a respondent
here.
See notes
6 and
|
6 and S. 233fn7|>7
infra.
[
Footnote 2]
Under that policy, first announced by the Treasury Department in
1945, the Department did not refer to the Department of Justice for
prosecution cases of intentional income tax evasion where the
taxpayers had made a clean breast of things to the Treasury before
any investigation had been initiated by the Revenue Service. This
policy was set forth in various informal announcements by Treasury
officials, but was never formalized by statute or regulation. The
policy was abandoned in January, 1952.
[
Footnote 3]
The propriety of this pretrial procedure is not before us.
[
Footnote 4]
The Court of Appeals did not pass on other contentions made by
the respondents in support of a reversal of their conviction.
[
Footnote 5]
More specifically, the Court of Appeals held that there was an
effective voluntary disclosure and that the Government's use of the
evidence thereby obtained from the respondents violated their
rights under the Self-Incrimination Clause of the Fifth Amendment.
The District Court simply held that the alleged voluntary
disclosure was defective, and did not discuss the Fifth Amendment.
In the present posture of this case we do not reach the correctness
of these rulings of the two lower courts, or any other question
going to the merits of the respondents' conviction.
[
Footnote 6]
We deferred consideration of the petition and cross-petitions
for certiorari for some months on the basis of representations made
by the Solicitor General in his letters of December 6, 1955, and
June 1, 1956, which culminated in the filing of the Government's
motion to remand.
See 351 U.S. 980. As originally filed,
the cross-petition was conditional on the Government's petition
being granted. After the Government moved to remand, respondents
withdrew the conditional limitation, and Huebner withdrew his
cross-petition in its entirety.
[
Footnote 7]
Huebner later withdrew his answer and consented to the
Government's motion.
[
Footnote 8]
Respondents point out that this limitation of our writ in effect
amounted to a denial of the Government's petition for certiorari,
and therefore that the motion to remand, which was not before the
Court of Appeals, must be regarded as an attempt to invoke an
original jurisdiction which we do not possess. We shall dispose of
respondents' point by vacating our limited with and granting,
nunc pro tunc, the Government's petition for certiorari,
without restriction. This removes all question as to our
jurisdiction, 28 U.S.C. § 2106;
Mesarosh v. United States,
352 U. S. 1, and
prejudices neither party, because we shall decide only the issues
raised by the motion to remand.
[
Footnote 9]
Respondents have made no such showing in opposition to the
Government's motion as would justify our questioning the accuracy
of the Solicitor General's representation that the Government's
proffered evidence is "newly discovered."
[
Footnote 10]
The Government puts the figure at some $380,000; the
respondents' figure is about $160,000.
[
Footnote 11]
Except for the amount of $6,000 which was reported in the
Shotwell returns.
[
Footnote 12]
Although the Treasury policy at the time denied deductability to
such black market expenditures, the courts later held that this
kind of expenditure was deductible.
See Sullenger v.
Commissioner, 11 T.C. 1076.
[
Footnote 13]
According to Graflund's affidavit, it would appear that the
respondents were spurred into action after Sam Krane, a Special
Agent of the Internal Revenue Service, visited the Shotwell office
on June 21, 1948. The affidavit states that Krane requested records
and information relating to Shotwell's transactions with one David
G. Lubben, from whom Shotwell had been receiving large sums of
money which were not recorded in its regular books; that Graflund
made certain records available to Krane, and was "criticized" by
the respondents for having done so; and that Graflund conferred
with Busby within a few days after Krane's visit.
[
Footnote 14]
In his affidavit, Huebner states:
"On November 13, 1952, Sauber testified at the hearing on the
defendant's motion to suppress evidence that Busby and Cain had
contacted him in March, 1948. After hearing Sauber testify, I told
Cain I thought the voluntary disclosure date was supposed to be
June 15, 1948. Cain said to me, 'Ssshhh! There is nobody that knows
anything about this. Keep quiet.'"
[
Footnote 15]
The Solicitor General represents that, if the motion to remand
is granted, Revenue Agent Joseph M. Lima will testify that, on July
30, 1948, he was instructed by his Group Supervisor, Ralph Johnson,
to make an immediate audit of Shotwell's 1946 return; that
thereafter he was instructed by Johnson to allow (as offsets)
over-ceiling purchases totaling more than $300,000 which were
wholly unsubstantiated and whose allowance was contrary to the
existing Revenue Service policy; and that he then prepared a report
showing a tax deficiency for 1945 and 1946 of about $20,000, which
report he destroyed at Johnson's direction in September, 1948,
after the Intelligence Unit of the Service had made inquiries about
the case. In this connection, Huebner states in his affidavit:
"Cain also told me, sometime in about late July, 1948, that he
was about to settle the tax case. Shortly thereafter, Cain told me
he had settled the tax case for a tax deficiency of $20,000.00"
"In October, 1948, Busby told me that there had been a meeting
in the fraud division at the Internal Revenue office and that hell
had broken loose; that some Internal Revenue people had a heck of a
time destroying papers that had been made up for the purpose of
billing Shotwell for taxes."
[
Footnote 16]
See note 15
supra.
[
Footnote 17]
Section 14(a) of the Subversive Activities Control Act expressly
authorizes courts of appeals to remand cases to the Board for the
taking of further evidence. 64 Stat. 987 at pp. 1001-1002. Our
authority to act in similar fashion is found in the broad
provisions of 28 U.S.C. § 2106, which grants us power, incident to
our appellate jurisdiction, to "vacate . . . any judgment" brought
"before [us] for review," and to "require such further proceedings
to be had as may be just under the circumstances."
[
Footnote 18]
The Government does not concede the correctness of the Court of
Appeals' decision upon the existing record.
Cf. United States
v. Johnson, 327 U. S. 106,
327 U. S.
111-112.
[
Footnote 19]
Respondents did not urge below, nor do they suggest here, that
the question of admissibility of the disputed evidence was properly
an issue for the jury. Rather, their contention has been that the
judge should have sustained the motion to suppress.
[
Footnote 20]
It has also been suggested that these charges of fraud could be
dealt with at the new trial which the Court of Appeals has ordered.
But, as the Court of Appeals has directed suppression of the
evidence obtained by the Government as a result of the alleged
voluntary disclosure, it seems clear that, at the new trial, the
Government could not use that evidence, or the fruits thereof,
unless the "suppression" aspect of the judgment of the Court of
Appeals is vacated. We think that the sound administration of
justice precludes that course because, if the Government's evidence
is true, the net effect would be to grant the respondents a new
trial, not otherwise justified, procured by their own fraud.
[
Footnote 21]
Respondents have contended that the Government's new evidence is
irrelevant to the issue of timeliness because, even assuming its
truth, the disclosure was timely, since no formal investigation was
initiated by the Revenue Service until after July, 1948, the time
that the Government's new evidence indicates that the respondents
first communicated with the Treasury. We find it unnecessary to
deal with this contention, because the new evidence is, in any
event, clearly relevant to the question whether a
bona
fide disclosure was in fact ever made. Moreover, in the
present state of the record, this Court should not pass on
respondents' argument as to timeliness, because (a) the District
Court has not yet made a finding on this issue, and (b) the
Treasury "voluntary disclosure policy" was never formulated with
sufficient precision to enable us to apply it mechanically.
Dissenting opinion of MR. JUSTICE BLACK, with whom THE CHIEF
JUSTICE and MR. JUSTICE DOUGLAS concur, announced by MR. JUSTICE
DOUGLAS.
By remanding this case so that the Government can introduce
additional evidence to save the conviction thrown out by the Court
of Appeals, I think the Court takes unnecessary and unprecedented
action which may have far-reaching and unfortunate ramifications
not yet clearly foreseen. I would deny certiorari, and thus permit
the case in its regular course to go back to the District Court for
a new trial pursuant to the decision of the Court of Appeals. At
this trial, the Government could introduce any evidence which it
now has, new or otherwise, and a full hearing could be had on its
charges of perjury and fraud.
Page 355 U. S. 247
The Court of Appeals held that defendants' incriminating
disclosures were secured by promises of immunity made by various
government officials, and that such disclosures could not be used
to convict defendants because of their privilege against
self-incrimination under the Fifth Amendment. Now this Court sends
the case back to the District Court to hear new evidence and make
new findings with respect to whether defendants' disclosures were
made in good faith and in full accordance with certain vague
conditions attached to the offers of immunity. [
Footnote 2/1] The majority asserts that it is not
ruling on the merits of the defendants' Fifth Amendment claims, but
it seems to me a vain and wasteful act for the majority to return
the case to the District Court for these supplemental proceedings
unless it assumes that neither the Fifth Amendment nor any rule of
evidence in the federal courts bars the use of incriminating
admissions induced by promises of immunity where the disclosures
are not made with pure motives. If we are going to concern
ourselves with the case at all, I believe we should at least give
full consideration to the legal problems involved in defendants'
requests for suppression before remanding the case for any further
proceedings.
I think the Fifth Amendment questions raised here are important,
unsettled, and not susceptible to off-hand resolution, particularly
with respect to incriminating evidence which the defendants
actually turned over to the Government in hope of securing immunity
from prosecution. In
Bram v. United States, 168 U.
S. 532,
168 U. S.
542-543, the Court referred with approval to the rule
that
". . . a confession, in order to be admissible, must be free and
voluntary -- that is, must not be extracted
Page 355 U. S. 248
by any sort of threats or violence,
nor obtained by any
direct or implied promises, however slight, nor by the
exertion of any improper influence. . . . A confession can never be
received in evidence where the prisoner has been influenced by any
threat or promise, for the law cannot measure the force of the
influence used, or decide upon its effect upon the mind of the
prisoner, and therefore excludes the declaration if any degree of
influence has been exerted."
(Emphasis supplied.)
In accord with this statement, it appears to have been generally
assumed in this Court that the Fifth Amendment bars the use against
a defendant in a criminal prosecution of confessions or admissions
secured from him by promises of immunity.
See, e.g., Hardy v.
United States, 186 U. S. 224,
186 U. S. 229;
Ziang Sung Wan v. United States, 266 U. S.
1,
266 U. S. 14;
Smith v. United States, 348 U. S. 147,
348 U. S. 150.
And so far as I can tell, this Court has never considered whether
lack of good faith deprives a suspect of the Fifth Amendment's
protection when he makes disclosures under a promise of immunity,
or under just what circumstances and to what extent this might be
true. I do not mean to intimate any view on the merits of this
problem now, but I do register a protest against the manner in
which the majority disposes of the case.
I believe the majority has also disregarded another significant
and crucial consideration -- the role of the jury in passing on the
admissibility of defendants' disclosures. In
Wilson v. United
States, 162 U. S. 613,
162 U. S. 624,
the Court laid down a rule which it has never questioned:
"When there is a conflict of evidence as to whether a confession
is or is not voluntary, if the court decides that it is admissible,
the question may be left to the jury, with the direction that they
should reject the confession if, upon the whole evidence, they are
satisfied it was not the voluntary act of the defendant. "
Page 355 U. S. 249
Just recently, in
Smith v. United States, 348 U.
S. 147,
348 U. S. 151,
the Court stated that the question of voluntariness was properly
left to the jury where a taxpayer claimed he had made certain
disclosures on the strength of promises of immunity by revenue
officers.
Cf. Kent v. Porto Rico, 207 U.
S. 113,
207 U. S.
118-119.
In the lower federal courts, there seems to be considerable
difference of opinion as to whether the
Wilson case makes
it mandatory that the jury participate in the process of
determining whether a confession is voluntary, or whether the
jury's participation is a matter of discretion with the trial
judge. [
Footnote 2/2]
E.g.,
compare United States v. Leviton, 193 F.2d 848, 852,
certiorari denied, 343 U. S. 946,
with Lewis v. United States, 74 F.2d 173, 178-179. In at
least the District of Columbia Circuit, the rule appears to be
settled that the trial judge must submit the question of
voluntariness to the jury for its independent determination.
McAffee v. United States, 70 App.D.C. 142, 105 F.2d 21. In
the States, a number of different methods of allocating the burden
of determining the voluntariness of a confession between the judge
and jury have been followed, but the trend seems to be that the
judge should determine voluntariness in the first instance, and, if
he finds that the confession is voluntary, then should submit the
case to the jury with instructions not to consider the confession
as evidence unless they also find it voluntary. As a matter of
fact, the Court in
Wilson relied on state cases which had
laid down this so-called "humane" rule. I myself favor such a rule,
which is particularly beneficial where, as here, the question of
admissibility turns to a large extent on the credibility of
witnesses.
I think that the principles established in
Wilson and
subsequent cases clearly apply to the questions of
admissibility
Page 355 U. S. 250
raised in this case. Under these principles, the trial judge at
a minimum, has the option of submitting such questions to the jury.
But the majority's disposition of this case precludes that
possibility at the partial new trial which it orders. It attempts
to avoid this infirmity by saying,
"the Government's new showing does not relate to an issue
submitted to the jury in the proceedings below, but rather to a
preliminary question as to the admissibility of evidence."
And it continues,
"Respondents did not urge below, nor do they suggest here, that
the question of admissibility of the disputed evidence was properly
an issue for the jury."
But these answers are obviously inadequate. We are not concerned
with what has happened or what was urged, but with how this case
will be handled in the future. If the new trial ordered by the
Court of Appeals had been allowed to stand, the defendants would
not have been barred from demanding that the question of
admissibility be submitted to the jury just, because they had not
made a similar request at the first trial or on appeal.
The Court now gives the Government an opportunity to introduce
new evidence in an attempt to save a conviction it has lost in the
Court of Appeals. If this does not technically infringe the
protection against double jeopardy, it seems to me to violate its
spirit.
Cf. Green v. United States, 355 U.
S. 184;
Kepner v. United States, 195 U.
S. 100,
195 U. S.
128-129. In fact, it is even worse in some respects.
Only the Government stands to benefit from this partial new trial,
while the defendants must fight to keep what they already have. Not
a single case has been referred to or discovered where defendants
have been subjected to such piecemeal prosecution. [
Footnote 2/3] To my knowledge,
Page 355 U. S. 251
it is a new idea that the Government can supplement a trial
record in order to retain a conviction which an appellate court
would otherwise reverse.
Both the Government and the Court concede that the action taken
here is extraordinary, but such disposition is justified on the
ground this is an exceptional case which called for extraordinary
action. I do not agree. In essence, all the Government proposes to
do on remand is to impeach the testimony of certain witnesses for
both sides with alleged newly discovered evidence. No witness has
recanted, nor do the defendants concede that their testimony was
false. If the Government can partially reopen a case to impeach
witnesses, what rational basis is there for denying it a similar
right in any case when new facts appear which persuasively suggest
that it could strengthen its evidence in order to save a conviction
on appeal? This possibility emphasizes the anomalous nature of what
is done here.
The Court proceeds on the assumption that it would be improper
for us to review the suppression question on a record which might
contain materially false testimony,
Page 355 U. S. 252
and that it is better, although concededly unique, to send the
case back for more evidence on that issue. But there is no need to
resort to either undesirable alternative. As I stated in the
beginning, the case should simply be left alone, and allowed to go
back for a new trial. There, the Government can offer all the
evidence it has or can secure, so that a new record can be made on
the suppression issue. In my judgment, it cannot seriously be
contended that the Government would be barred from introducing
evidence on that issue at a new trial. While it is true that the
Court of Appeals ordered the disclosures suppressed, on the
evidence in the record then before it, such ruling should not be
construed as binding at a new trial where substantial newly
discovered evidence is available.
Cf. Aetna Life Ins. Co. v.
Wharton, 63 F.2d 378;
City of Sedalia ex rel. Ferguson v.
Shell Petroleum Corp., 81 F.2d 193. If need be -- and I think
not -- this Court could vacate the judgment of the Court of Appeals
to the extent necessary to allow the Government a
de novo
hearing on the suppression issue at the new trial. 28 U.S.C. §
2106. This would do full justice as far as the charges of tax
evasion are concerned, and, if perjury has been committed, it can
be prosecuted as a separate crime.
I think this case is a dangerous precedent which should not be
launched needlessly into the stream of the law.
[
Footnote 2/1]
"We are not concerned with the motivating force behind an
individual's deciding to come in and talk to us about his evasion.
If he 'gets religion' before we have done anything, he will not be
prosecuted."
Treasury Press Release, May 14, 1947.
[
Footnote 2/2]
The entire subject is annotated in great detail at 170 A.L.R.
567.
Also see 85 A.L.R. 870.
[
Footnote 2/3]
Neither
Mesarosh v. United States, 352 U. S.
1, nor
Communist Party v. Subversive Activities
Control Bd., 351 U. S. 115,
serves as any authority for the Court's action. In the
Mesarosh case, the Government had secured a conviction
which had been upheld by the Court of Appeals. In this Court, the
Government came forward with evidence that one of its principal
witnesses at the trial had committed perjury, and the Court
reversed the conviction and remanded the case for a full new trial.
Here, the United States has lost a conviction in the Court of
Appeals. It now asks us to send the base back to the trial court so
that it can introduce additional evidence in an attempt to salvage
the reversed conviction. The difference between the two cases is
manifest, and crucial.
In the
Communist Party case, administrative findings
were challenged, and this Court remanded the case to the agency so
that it might consider the record free of any perjurious testimony
by government witnesses. The administrative proceeding there can
hardly be equated with the criminal prosecution involved here.
Moreover, in both the
Mesarosh and
Communist
Party cases, the Court's action operated to protect the rights
of defendants, not, as here, to aid the Government. In view of our
traditional methods of criminal justice, this difference is not
without importance.