1. Where a defendant in a criminal prosecution in a federal
court voluntarily testifies, and upon cross-examination asserts a
claim of privilege against self-incrimination which the court
unqualifiedly grants, albeit mistakenly, it is error for the court
thereafter to permit the prosecutor to comment upon the claim of
privilege and to permit the jury to draw any inference therefrom
if, as here, it can be said that the defendant's choice of claiming
or waiving the privilege would have been materially affected had he
known that the claim, though granted, would be used to his
prejudice. P.
318 U. S.
196.
2. Objection to the prosecutor's comment on an allowed claim of
privilege in this case was expressly waived by the defendant's
withdrawing his exception to it and acquiescing in the court's
treatment of the matter, and a new trial is not granted. P.
318 U. S.
199.
3. Rulings of the trial court excluding the defendant from the
court room while counsel were arguing the question of the propriety
of a line of cross-examination, and requiring that he resume the
stand without conferring with his counsel concerning a claim of
privilege, to which rulings no exceptions were taken, and which did
not result
Page 318 U. S. 190
in a loss of the privilege,
held, even if assumed to be
erroneous, not prejudicial. P.
318 U. S.
201.
129 F.2d 954 affirmed.
Certiorari, 317 U.S. 610, to review the affirmance of a
conviction of willfully attempting to defeat and evade federal
income taxes.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Petitioner was convicted of willfully attempting to defeat and
evade his federal income taxes for the years 1936 and 1937. He was
acquitted for 1935. Petitioner was a political leader in Atlantic
City and Atlantic County, New Jersey. The prosecution's theory was
that he had received large sums of money from those conducting the
numbers game for protection against police interference, and had
not reported those sums in his income tax returns for 1935, 1936,
and 1937. The defense was that his failure to return all the income
he had received resulted from the mistaken but sincere belief that
he was bound to return only the net balance remaining after
deducting amounts expended for political purposes. The evidence was
that one Weloff and one Towhey, acting alternately, delivered to
petitioner on behalf of the numbers syndicate $1,200 a week from
July, 1935, to November, 1937. About November 1, 1937, Weloff and
Towhey were displaced by one Jack Southern, to whom the syndicate
delivered $1,200 a week. Neither the prosecution nor
Page 318 U. S. 191
the defense would sponsor Southern's testimony. At the request
of the prosecution, the court called Southern as a witness. He
testified that, during November and December, 1937, he delivered
the $1,200 a week to an inspector of police named Ferretti, who was
dead at the time of the trial. He denied that he ever made any
weekly payments to petitioner. No evidence was adduced that
petitioner received any sums from the syndicate during November or
December, 1937. Petitioner took the stand and, on direct
examination, admitted that he had received the weekly payments from
Weloff and Towhey up to November, 1937. For 1937, these admitted
payments totalled $50,400. Petitioner accounted for this sum by
stating that he had reported $30,189.99 in his 1937 return as
"Other commissions," and that he had paid out the balance, roughly
$21,000, as political contributions for that year. On
cross-examination, he denied that he had received payments from
Southern during November and December, 1937.
* He was then
asked "Did you receive and money from numbers in 1938?" Counsel for
the defense objected to the question on the ground that it was not
relevant to the issue, and would tend to prove a different offense
than the one charged in the indictment. The court overruled the
objection. Petitioner then answered the question in the
affirmative. He was then asked, "Who gave it to you?" Counsel for
the defense objected. The court had the jury withdraw. The
prosecutor asked that petitioner
"also be excused from the court room during the argument, and
that, when he resumes the stand, he should do so without having any
opportunity to hear what the argument is about."
The court said "that is a fair request," and ordered petitioner
to retire, which he
Page 318 U. S. 192
did. No objection was made to that action. Counsel for the
prosecution argued that the questions asked in cross-examination
were proper to establish a continuous practice of receiving the
numbers income throughout 1937. Counsel for the defense insisted
that the cross-examination should be limited to the subjects opened
up by the examination in chief. The court expressed the view that
the cross-examination was permissible, since it bore directly upon
credibility. Counsel for the defense then pressed the point that,
even if it otherwise might be proper cross-examination,
nevertheless it was "improper cross-examination for the reason that
it is directed to a future prosecution." He asserted that he made
the claim of privilege on behalf of the accused "in view of the
avowed threat of the government to prosecute him for the very years
concerning which he is now asked to testify." The court replied
that it was for the accused, not his counsel, to make the claim,
and added, "You may advise him of his rights, of course, but it is
for him to determine whether or not he wishes to take advantage of
them." After further argument, the court stated:
"It seems to me that the testimony is perfectly relevant and
material as cross-examination directed to credibility."
"In view of the witness' testimony, unless it runs afoul of his
right not to be required to incriminate himself, it seems to me
that that is a right which he may waive or claim, and that that is
a personal right that he may be advised by counsel when a question
is asked, and that he will have to determine himself whether he is
going to claim it or not."
Petitioner resumed the stand. The question "Who gave it to you?"
was repeated. Counsel for petitioner then advised him of his
constitutional privilege, which he thereupon claimed. The court
ruled, "You may decline to answer."
Page 318 U. S. 193
The prosecutor, in his address to the jury, commented at some
length on petitioner's assertion of his constitutional
privilege:
"I asked him, 'Did you get the money in 1938?,' and he said,
'Yes.' Well, of course, then a lot of little things happened. They
didn't like that, because, naturally, you say, 'Well, I don't
understand that, Mr. Johnson.' I wish you could have asked him
questions then. You say, 'Mr. Johnson, you say that suddenly,
November 1st, 1937, you stopped getting the $1,200 from numbers;
then, in 1938, you started to get it again? How come?' You don't
get it, you don't get it because it isn't the truth. That is what
cross-examination is for."
"So then we went beyond that. We said, 'Who did you get it
from?' He said, 'I claim my privilege against self-incrimination. I
violated the income tax law in 1938; I don't want to tell you about
that. I am having enough trouble with 1935, six, and seven.' If he
could have claimed his privilege on the stand here with respect to
1935, six, and seven, he would have done it. He would claim
anything that is necessary to get him out of any predicament he is
in. Well, now, ladies and gentlemen, if he got that numbers money
in 1938, who did he get it from? He must have got it from Jack
Southern. Maybe he got it from Inspector Ferretti, but he admits he
got it. Well then, if he got it, he got it during the last two
months of 1937. They didn't say anything about that to you, because
they were trapped. No need of them talking about it. It is for me
to point that out to you."
"Now, ladies and gentlemen, can you believe that man told you
the truth about anything on the witness stand when he admits that
he got numbers money in 1938, but won't tell you who he got it from
on the ground it would incriminate him? If you can believe that
that man is innocent of this charge when he stands right up in
front of you and says he cannot answer a question about 1938, that
he just got through
Page 318 U. S. 194
answering for 1937 on the ground it would incriminate him, well,
then, I just don't get it."
An objection was made to these statements and overruled, and an
exception was noted. The next morning, before the court charged the
jury, various other objections were submitted. During the colloquy,
the court stated that there
"were a number of matters referred to last evening. . . . I
ruled on some of them, all of which rulings I indicated I would
reconsider. Now, have you mentioned to me now all the points you
desire to refer to?"
Counsel for petitioner replied,
"We withdraw whatever was said last night . . . I think the only
fair thing to do is to forget everything that happened last night,
and start this morning."
The objection previously made to the prosecutor's comment on the
accused's failure to testify was not renewed. Nor was any request
made to the court to charge the jury to disregard petitioner's
refusal to testify. Though the prosecutor's comment on the
accused's failure to testify was again adverted to, it was in a
different connection. Counsel for petitioner contended that the
prosecutor's statement that the claim of privilege amounted to an
admission of income tax violation in 1938 was "an entire
misconception of . . . the claim of privilege," inasmuch as the
basis of the claim "is that the testimony . . . would have a
tendency to incriminate him," and "not that it would prove him
guilty." The court indicated that this objection was well taken,
and should be called to the attention of the jury. The court added,
"He is not being charged with any 1938 tax." The prosecutor then
said,
"It is a question of his good faith and his credibility, and the
answers he has already given on similar questions. That is the
purpose for which the questions were permitted."
The court thereupon stated, "I think I probably should indicate
to the jury that that is the full extent of it." Counsel for
petitioner remained silent, making no objection. No error was
asserted in the
Page 318 U. S. 195
motion for a new trial or in the assignments of error on the
ground that the prosecutor's comment or the court's charge on the
inference from the claim of privilege was improper.
The court, in its charge, stated that petitioner's refusal to
answer the question on the ground that it would tend to incriminate
him "may only be considered by you in testing his credibility as to
the answers which he did give and his good faith in the matter,"
and that petitioner was not being tried for anything he did in
1938. To this charge, no objection was made.
The Circuit Court of Appeals affirmed the judgment of
conviction, one judge dissenting. 129 F.2d 954. The court held that
the exclusion of petitioner from the courtroom during the colloquy
did not result in prejudice; that the cross-examination covering
1938 income was proper, and that the allowance of comment on the
claim of privilege was justified. The case is here on a petition
for a writ of certiorari.
The case of an accused who voluntarily takes the stand and the
case of an accused who refrains from testifying (
Bruno v.
United States, 308 U. S. 287)
are, of course, vastly different.
Raffel v. United States,
271 U. S. 494. His
"voluntary offer of testimony upon any fact is a waiver as to all
other relevant facts, because of the necessary connection between
all." 8 Wigmore, Evidence (3d ed., 1940) ยง 2276(2).
And see
Fitzpatrick v. United States, 178 U.
S. 304,
178 U. S.
315-316;
Powers v. United States, 223 U.
S. 303,
223 U. S. 314.
The cross-examination did not run afoul of the rule which prohibits
inquiry into a collateral crime unconnected with the offense
charged.
Boyd v. United States, 142 U.
S. 450. Inquiry into petitioner's income for 1938 was
relevant to the issue in the case. As contended by the prosecution,
the receipt of money from the numbers syndicate prior to November,
1937, and after December, 1937, might well support a finding of the
jury
Page 318 U. S. 196
that, in view of all the circumstances, the payments were not in
fact interrupted during the last two months of 1937. The amount and
source of the 1938 income accordingly were relevant to show the
continuous nature of the transactions in question. That line of
inquiry therefore satisfied the test of relevancy, and was a proper
part of cross-examination.
See Cravens v. United States,
62 F.2d 261, 273;
Mehan v. United States, 112 F.2d 561,
563;
Weiss v. United States, 122 F.2d 675, 682;
Bullock v. State, 65 N.J.L. 557, 575, 47 A. 62. Though the
issue might have been more aptly phrased by the court in terms
other than credibility, the meaning of the ruling in its context is
plain. Thus, we may assume that it would not have been error for
the court to deny petitioner's claim of privilege. In such a case,
his failure to explain the source of his numbers income in 1938
could properly be the subject of comment and inference. As stated
by this Court in
Caminetti v. United States, 242 U.
S. 470,
242 U. S. 494,
an accused who takes the stand
"may not stop short in his testimony by omitting and failing to
explain incriminating circumstances and events already in evidence,
in which he participated and concerning which he is fully informed,
without subjecting his silence to the inferences to be naturally
drawn from it."
But, where the claim of privilege is asserted and unqualifiedly
granted, the requirements of fair trial may preclude any comment.
That certainly is true where the claim of privilege could not
properly be denied. The rule which obtains when the accused fails
to take the stand (
Wilson v. United States, 149 U. S.
60) is then applicable. As stated by the Supreme Court
of Pennsylvania,
"If the privilege claimed by the witness be allowed, the matter
is at an end. The claim of privilege and its allowance is properly
no part of the evidence submitted to the jury, and no inferences
whatever can be legitimately drawn by them from the legal assertion
by the witness of his constitutional right. The allowance of the
privilege
Page 318 U. S. 197
would be a mockery of justice if either party is to be affected
injuriously by it."
Phelin v. Kenderdine, 20 Pa. 354, 363;
Wireman v.
Commonwealth, 203 Ky. 57, 62, 63, 261 S.W. 862.
And see
State v. Vroman, 45 S.D. 465, 473, 188 N.W. 746;
Carne v.
Litchfield, 2 Mich. 340;
People v. McGungill, 41 Cal.
429. We also think that the same result should obtain in any case
where the court grants the claim of privilege and then submits the
matter to the jury, if that action may be said to affect materially
the accused's choice of claiming or waiving the privilege and
results in prejudice. The fact that the privilege is mistakenly
granted is immaterial.
The ruling of the court gave the petitioner the choice between
testifying and refusing to testify as to his 1938 income. An
accused having the assurance of the court that his claim of
privilege would be granted might well be entrapped if his assertion
of the privilege could then be used against him. His real choice
might then be quite different from his apparent one. In this case,
it would lie between protection against an indictment for 1938 and
the use of his claim of privilege as evidence that he did, in fact,
receive the income during the last two months of 1937. Elementary
fairness requires that an accused should not be misled on that
score. If advised by the court that his claim of privilege, though
granted, would be employed against him, he well might never claim
it. If he receives assurance that it will be granted if claimed, or
if it is claimed and granted outright, he has every right to expect
that the ruling is made in good faith, and that the rule against
comment will be observed. Certainly the question whether petitioner
had received income from the syndicate during November and
December, 1937, was an extremely material issue in the case. As we
have noted, petitioner admitted receiving $50,400 from the numbers
syndicate during 1937. And all of this amount, according to the
testimony, was received prior to
Page 318 U. S. 198
November 1, 1937. Of this amount, he reported only $30,189.99 in
his 1937 income tax return. He testified, however, that he had paid
out $21,000 in political contributions for that year. Thus, he
attempted to account for all the numbers income which he had
received that year, and defended on the ground that his failure to
return the $21,000 was due to his mistaken but sincere belief that
he was bound to return only the net balance remaining after
deducting amounts expended for political purposes. The indictment,
however, charged that he had received $62,400 from the numbers
syndicate during 1937. And the prosecution claimed that the weekly
payments of $1,200 continued during November and December, 1937. If
that were established, it would plainly destroy his defense, and
would be cogent evidence of his willful attempt to evade the tax.
All of the direct evidence in the record was to the effect that he
had not received income from the numbers syndicate during November
and December, 1937. There was no basis for concluding that he had
unless that fact was to be inferred from the evidence that he had
received the income until November, 1937, and that he received it
again in 1938. Hence, it would be highly valuable to the
prosecution, and equally damaging to the accused, to have his
failure to testify employed to bolster such an inference.
It is no answer to say that comment on a defendant's refusal to
testify does not in any way place him in jeopardy of being charged
with or convicted of the crime protected by his privilege. That may
be admitted. The problem here is a different one. It is whether a
procedure will be approved which deprives an accused, on facts such
as these, of an intelligent choice between claiming or waiving his
privilege. Knowledge that a failure to testify, though permitted by
the court, would be submitted to the jury might seriously affect
that choice. If the accused makes the choice without that
knowledge, he may well be misled
Page 318 U. S. 199
on one of the most important decisions in his defense. We would,
of course, not be concerned with the matter if it turned only on
the quality of legal advice which he received. But the
responsibility for misuse of the grant of the claim of privilege is
the court's. It is the court to whom an accused properly and
necessarily looks for protection in such a matter. When it grants
the claim of privilege but allows it to be used against the accused
to his prejudice, we cannot disregard the matter. That procedure
has such potentialities of oppressive use that we will not sanction
its use in the federal courts over which we have supervisory
powers.
We are mindful of the fact that there is eminent authority which
may be said to represent the contrary view.
State v. Ober,
52 N.H. 459. That case stands for the general proposition that,
when the accused took the stand "without claiming his
constitutional privilege, it was too late for him to halt at that
point which suited his own convenience."
Id., p. 465. With
that rule, we agree. Whether the facts of that case and the stage
of the proof when the privilege was claimed made the comment on the
accused's failure to testify prejudicial cannot be determined from
the report of the case. The point with which we are here concerned
was not adverted to in the opinion. Indeed, the court stated (52
N.H. p. 465) that the
"whole argument of his counsel now proceeds upon the erroneous
assumption that the ruling of the court [granting the claim of
privilege] was right. That assumption being groundless, his
argument fails."
But, as we have indicated, the problem in this case is quite
different.
We have considered this matter at length because the Circuit
Court of Appeals ruled upon it and approved the procedure followed
by the District Court. But we do not grant a new trial, because of
one circumstance which seems to us controlling. As we have noted,
though an exception was taken to the prosecutor's comment on
petitioner's
Page 318 U. S. 200
refusal to testify, it was later withdrawn. And when the court
invited counsel to bring to its attention any objections or
requests to charge, counsel did not renew the objection. Nor was
any request made to charge the jury on the matter. Moreover, though
the question of the prosecutor's comment was again adverted to by
the defense, the objection was of a wholly different character, and
one which the court indicated its willingness to correct. And when
the court stated what charge it would give the jury on the point,
counsel for the defense stood by and voiced no protest or
objection. We can only conclude that petitioner expressly waived
any objection to the prosecutor's comment by withdrawing his
exception to it and by acquiescing in the treatment of the matter
by the court. It is true that we may, of our own motion, notice
errors to which no exception has been taken if they would
"seriously affect the fairness, integrity, or public reputation of
judicial proceedings."
See United States v. Atkinson,
297 U. S. 157,
297 U. S. 160;
Clyatt v. United States, 197 U. S. 207,
197 U. S.
221-222. But we are not dealing here with inadvertence
or oversight. This is a case where silent approval of the course
followed by the court (
Boyd v. United States, 271 U.
S. 104,
271 U. S. 108)
is accompanied by an express waiver of a prior objection to the
method by which the claim of privilege was treated. In such a
situation, the rule stated by Mr. Justice Sutherland in
United
States v. Manton, 107 F.2d 834, 848, is applicable:
"If the failure to enter an exception or assign error had been a
mere inadvertence, the matter might stand in a different light. But
that view cannot be indulged. Plainly enough, counsel consciously
and intentionally failed to save the point, and led the trial judge
to understand that counsel was satisfied. We see no warrant for the
exercise of our discretion to set aside standing rules, so
necessary to the due and orderly administration of
Page 318 U. S. 201
justice, and review the challenge to the legal accuracy of the
charge where, as here, the failure of the judge to follow the text
of the requested instruction was, at the last, induced by the
action of counsel. . . ."
Any other course would not comport with the standards for the
administration of criminal justice. We cannot permit an accused to
elect to pursue one course at the trial and then, when that has
proved to be unprofitable, to insist on appeal that the course
which he rejected at the trial be reopened to him. However unwise
the first choice may have been, the range of waiver is wide. Since
the protection which could have been obtained was plainly waived,
the accused cannot now be heard to charge the court with depriving
him of a fair trial. The court only followed the course which he
himself helped to chart, and in which he acquiesced until the case
was argued on appeal. The fact that the objection did not appear in
the motion for new trial or in the assignments of error makes clear
that the point now is a "mere afterthought."
United States v.
Manton, supra, p. 847.
The remaining objections may be briefly disposed of. It is
claimed that the expulsion of petitioner from the courtroom while
counsel were arguing the question of the propriety of the
cross-examination on his 1938 income deprived him of his right to
be present during the trial.
Cf. Snyder v. Massachusetts,
291 U. S. 97. It is
also urged that petitioner was denied the advice of counsel in that
the court directed that, when he resumed the stand, he do so
without having an opportunity to confer with his counsel about
claiming the privilege. But there is a simple answer to these
objections. Not only were no exceptions taken to these rulings; it
also appears that they did not result in a loss of the privilege
which the court had indicated it would recognize. For, when
petitioner resumed the stand, he was advised of his right to claim
the privilege,
Page 318 U. S. 202
he claimed it, and it was granted. Accordingly, we cannot see
where any prejudice resulted, even if we assume,
arguendo,
that the rulings of the court were not correct.
Affirmed.
MR. JUSTICE MURPHY and MR. JUSTICE JACKSON did not participate
in the consideration or disposition of this case.
* The indictment charged that the defendant had received $62,400
from the numbers game in 1937. It was the difference between that
amount and $50,400 admittedly received which was in dispute.
MR. JUSTICE FRANKFURTER, concurring.
In reviewing criminal cases, it is particularly important for
appellate courts to relive the whole trial imaginatively, and not
to extract from episodes in isolation abstract questions of
evidence and procedure. To turn a criminal appeal into a quest for
error no more promotes the ends of justice than to acquiesce in low
standards of criminal prosecution.
An examination of the entire record of the proceedings leaves me
without doubt that Judge Maris conducted the trial with conspicuous
fairness, and that he committed no error in the rulings complained
of, unless it be one in favor of the defendant. In allowing the
defendant to withhold testimony regarding gambling receipts for
1938, the trial court, in recognizing the threat of future
prosecution of the defendant for evading taxes in that year, was
exercising a merciful discretion. For this avenue of inquiry
plainly was relevant to the truth of the charges against Johnson in
the present proceeding. In view of all that took place at the
trial, to have denied the jury an opportunity to consider the
significance of the defendant's desire not to testify regarding
gambling receipts in 1938 would have been to withhold from them a
factor relevant in determining whether Johnson's explanation of
what he did with the "protection" money received by him in 1936 and
1937 was the truth or just a cock-and-bull story.
Page 318 U. S. 203
That the defendant's senior counsel, a lawyer of long experience
in federal criminal practice, did not take exception to the manner
in which Judge Maris tempered concern for the proper administration
of justice with solicitude for the rights of the defendant
indicates not "waiver" of a right which had been denied, but
recognition that the action of the trial judge was unexceptionable.
The claim that the trial was conducted improperly is obviously an
afterthought. Only after conviction and in an effort to upset the
jury's verdict on appeal was the fair conduct of the trial court
sought to be distorted into an impropriety.