Petitioner was convicted in a federal district court for
inducing a woman (the complaining witness) to go from New York to
Florida for the purpose of prostitution, transporting her from New
York to Miami for that purpose, and conspiring with another woman
to commit those offenses. At his trial, there was admitted in
evidence over his objection testimony concerning a statement made
by the coconspirator to the complaining witness more than six weeks
after the transportation to Miami had been completed, which implied
that petitioner was guilty and suggested concealing his guilt.
Held:
1. The hearsay declaration attributed to the coconspirator was
not admissible on the ground that it was made in furtherance of the
conspiracy to transport. Pp.
336 U. S.
441-443.
2. Nor was it admissible on the ground that it was in
furtherance of a continuing subsidiary phase of the conspiracy --
i.e., an implied agreement to conceal the crime. Pp.
336 U. S.
443-444.
3. Since it cannot be said on the record in this case that the
erroneous admission of the hearsay declaration may not have tipped
the scales against petitioner, it cannot be considered a harmless
error under 28 U.S.C. (1946 ed.) § 391, and the conviction is
reversed. Pp.
336 U. S.
444-445.
167 F.2d 943, reversed.
Petitioner was convicted in a federal district court of
violations of the Mann Act and of conspiracy to commit those
offenses, 18 U.S.C. §§ 88, 398, 399 (now 18 U.S.C. §§ 371, 2421,
2422). The Court of Appeals affirmed. 167 F.2d 943. This Court
granted certiorari. 335 U.S. 811.
Reversed, p.
336 U. S.
445.
Page 336 U. S. 441
MR. JUSTICE BLACK delivered the opinion of the Court.
A federal district court indictment charged in three counts that
petitioner and a woman defendant had (1) induced and persuaded
another woman to go on October 20, 1941, from New York City to
Miami, Florida, for the purpose of prostitution, in violation of 18
U.S.C. § 399 (now § 2422); (2) transported or caused her to be
transported from New York to Miami for that purpose, in violation
of 18 U.S.C. § 398 (now § 2421), and (3) conspired to commit those
offenses in violation of 18 U.S.C. § 88 (now § 371). Tried alone,
the petitioner was convicted on all three counts of the indictment.
The Court of Appeals affirmed. 167 F.2d 943.
And see
disposition of prior appeal, 145 F.2d 76. We granted certiorari
limiting our review to consideration of alleged error in admission
of certain hearsay testimony against petitioner over his timely and
repeated objections.
The challenged testimony was elicited by the Government from its
complaining witness, the person whom petitioner and the woman
defendant allegedly induced to go from New York to Florida for the
purpose of prostitution. The testimony narrated the following
purported conversation between the complaining witness and
petitioner's alleged coconspirator, the woman defendant.
"She asked me, she says, 'You didn't talk yet?' And I says,
'No.' And she says, 'Well, don't,' she says, 'until we get you a
lawyer.' And then she says, 'Be very careful what you say.' And I
can't put it in exact words. But she said, 'It would be better for
us two girls to take the blame than Kay (the defendant), because he
couldn't stand it, he couldn't stand to take it.' "
Page 336 U. S. 442
The time of the alleged conversation was more than a month and a
half after October 20, 1941, the date the complaining witness had
gone to Miami. Whatever original conspiracy may have existed
between petitioner and his alleged coconspirator to cause the
complaining witness to go to Florida in October, 1941, no longer
existed when the reported conversation took place in December,
1941. For on this latter date, the trip to Florida had not only
been made -- the complaining witness had left Florida, had returned
to New York, and had resumed her residence there. Furthermore, at
the time the conversation took place, the complaining witness, the
alleged coconspirator, and the petitioner had been arrested. They
apparently were charged in a United States District Court of
Florida with the offense of which petitioner was here convicted.
[
Footnote 1] It is beyond doubt
that the central aim of the alleged conspiracy -- transportation of
the complaining witness to Florida for prostitution -- had either
never existed or had long since ended in success or failure when
and if the alleged coconspirator made the statement attributed to
her.
Cf. Lew Moy v. United States, 237 F. 50. The
statement plainly implied that petitioner was guilty of the crime
for which he was on trial. It was made in petitioner's absence, and
the Government made no effort whatever to show that it was made
with his authority. The testimony thus stands as an unsworn,
out-of-court declaration of petitioner's guilt. This hearsay
declaration, attributed to a coconspirator, was not made pursuant
to and in furtherance of objectives of the conspiracy charged in
the indictment, because, if made, it was after those objectives
either had failed or had been achieved. Under these circumstances,
the hearsay declaration attributed to the alleged coconspirator was
not admissible
Page 336 U. S. 443
on the theory that it was made in furtherance of the alleged
criminal transportation undertaking.
Fiswick v. United
States, 329 U. S. 211,
329 U. S.
216-217;
Brown v. United States, 150 U. S.
93,
150 U. S. 98-99;
Graham v. United States, 15 F.2d 740, 743.
Although the Government recognizes that the chief objective of
the conspiracy -- transportation for prostitution purposes -- had
ended in success or failure before the reported conversation took
place, it nevertheless argues for admissibility of the hearsay
declaration as one in furtherance of a continuing subsidiary
objective of the conspiracy. Its argument runs this way.
Conspirators about to commit crimes always expressly or implicitly
agree to collaborate with each other to conceal facts in order to
prevent detection, conviction and punishment. Thus, the argument is
that, even after the central criminal objectives of a conspiracy
have succeeded or failed, an implicit subsidiary phase of the
conspiracy always survives, the phase which has concealment as its
sole objective. The Court of Appeals adopted this view. It viewed
the alleged hearsay declaration as one in furtherance of this
continuing subsidiary phase of the conspiracy, as part of "the
implied agreement to conceal." 167 F.2d 943, 948. It consequently
held the declaration properly admitted.
We cannot accept the Government's contention. There are many
logical and practical reasons that could be advanced against a
special evidentiary rule that permits out-of-court statements of
one conspirator to be used against another. But however cogent
these reasons, it is firmly established that, where made in
furtherance of the objectives of a going conspiracy, such
statements are admissible as exceptions to the hearsay rule. This
prerequisite to admissibility, that hearsay statements by some
conspirators to be admissible against others must be made in
furtherance of the conspiracy charged, has been
Page 336 U. S. 444
scrupulously observed by federal courts. The Government now asks
us to expand this narrow exception to the hearsay rule and hold
admissible a declaration, not made in furtherance of the alleged
criminal transportation conspiracy charged, but made in furtherance
of an alleged implied but uncharged conspiracy aimed at preventing
detection and punishment. No federal court case cited by the
Government suggests so hospitable a reception to the use of hearsay
evidence to convict in conspiracy cases. The Government contention
does find support in some, but not all, of the state court opinions
cited in the Government brief. [
Footnote 2] But in none of them does there appear to be
recognition of any such broad exception to the hearsay rule as that
here urged. The rule contended for by the Government could have
far-reaching results. For under this rule, plausible arguments
could generally be made in conspiracy cases that most out-of-court
statements offered in evidence tended to shield coconspirators. We
are not persuaded to adopt the Government's implicit conspiracy
theory, which, in all criminal conspiracy cases, would create
automatically a further breach of the general rule against the
admission of hearsay evidence.
It is contended that the statement attributed to the alleged
coconspirator was merely cumulative evidence, that, without the
statement, the case against petitioner was so strong that we should
hold the error harmless under 28 U.S.C. (1946 ed.) § 391. In
Kotteakos v. United States, 328 U.
S. 750, we said that error should not be held
harmless
Page 336 U. S. 445
under the harmless error statute if upon consideration of the
record the court is left in grave doubt as to whether the error had
substantial influence in bringing about a verdict. We have such
doubt here. The Florida District Court grand jury failed to indict.
After indictment in New York, petitioner was tried four times, with
the following results: mistrial; conviction; mistrial; conviction
with recommendation for leniency. The revolting type of charges
made against this petitioner by the complaining witness makes it
difficult to believe that a jury convinced of a strong case against
him would have recommended leniency. There was corroborative
evidence of the complaining witness on certain phases of the case.
But as to all vital phases, those involving the sordid criminal
features, the jury was compelled to choose between believing the
petitioner or the complaining witness. The record persuades us that
the jury's task was difficult, at best. We cannot say that the
erroneous admission of the hearsay declaration may not have been
the weight that tipped the scales against petitioner.
Reversed.
[
Footnote 1]
The Florida grand jury failed to indict, and the cases there
were closed without prosecution in February, 1942. The New York
indictments were not returned until January, 1943.
[
Footnote 2]
Commonwealth v. Smith, 151 Mass. 491, 24 N.E. 677;
People v. Mol, 137 Mich. 692, 707, 100 N.W. 913, 918;
Hooper v. State, 187 Ark. 88, 92, 58 S.W.2d 434, 435;
State v. Gauthier, 113 Ore. 297, 307, 231 P. 141, 145;
State v. Emory, 116 Kan. 381, 384, 226 P. 754, 756;
Carter v. State, 106 Ga. 372, 376, 32 S.E. 345, 346-347;
Watson v. State, 166 Miss.194, 213, 146 So. 122, 127;
Baldwin v. State, 46 Fla. 115, 120-121, 35 So. 220, 222;
State v. Strait, 279 S.W. 109 (Mo.).
MR. JUSTICE JACKSON, concurring in the judgment and opinion of
the Court.
This case illustrates a present drift in the federal law of
conspiracy which warrants some further comment because it is
characteristic of the long evolution of that elastic, sprawling and
pervasive offense. Its history exemplifies the "tendency of a
principle to expand itself to the limit of its logic." [
Footnote 2/1] The unavailing protest of
courts against the growing habit to indict for conspiracy in lieu
of prosecuting for the substantive offense itself, or in
Page 336 U. S. 446
addition thereto, [
Footnote 2/2]
suggests that loose practice as to this offense constitutes a
serious threat to fairness in our administration of justice.
The modern crime of conspiracy is so vague that it almost defies
definition. [
Footnote 2/3] Despite
certain elementary and
Page 336 U. S. 447
essential elements, [
Footnote
2/4] it also, chameleon-like, takes on a special coloration
from each of the many independent offenses on which it may be
overlaid. [
Footnote 2/5] It is
always "predominantly
Page 336 U. S. 448
mental in composition" because it consists primarily of a
meeting of minds and an intent. [
Footnote 2/6]
The crime comes down to us wrapped in vague but unpleasant
connotations. It sounds historical undertones of treachery, secret
plotting and violence on a scale that menaces social stability and
the security of the state itself. "Privy conspiracy" ranks with
sedition and rebellion in the Litany's prayer for deliverance.
Conspiratorial movements do indeed lie back of the political
assassination, the
coup d'etat, the putsch, the
revolution, and seizures of power in modern times, as they have in
all history. [
Footnote 2/7]
But the conspiracy concept also is superimposed upon many
concerted crimes having no political motivation. It is not intended
to question that the basic conspiracy principle has some place in
modern criminal law, because to unite, back of a criminal purpose,
the strength, opportunities and resources of many is obviously more
dangerous and more difficult to police than the efforts of a
Page 336 U. S. 449
lone wrongdoer. [
Footnote 2/8]
It also may be trivialized, as here, where the conspiracy consists
of the concert of a loathsome panderer and a prostitute to go from
New York to Florida to ply their trade (
see 145 F.2d 76
for details), and it would appear that a simple Mann Act
prosecution would vindicate the majesty of federal law. However,
even when appropriately invoked, the looseness and pliability of
the doctrine present inherent dangers which should be in the
background of judicial thought wherever it is sought to extend the
doctrine to meet the exigencies of a particular case.
Conspiracy in federal law aggravates the degree of crime over
that of unconcerted offending. The act of confederating to commit a
misdemeanor, followed by even an innocent overt act in its
execution, is a felony, and is such even if the misdemeanor is
never consummated. [
Footnote 2/9]
The more radical proposition also is well established that, at
common law and under some statutes, a combination may be a criminal
conspiracy even if it contemplates only acts which are not crimes
at all when perpetrated by an individual or by many acting
severally. [
Footnote 2/10]
Page 336 U. S. 450
Thus, the conspiracy doctrine will incriminate persons on the
fringe of offending who would not be guilty of aiding and abetting
or of becoming an accessory, for those charges only lie when an act
which is a crime has actually been committed. [
Footnote 2/11]
Attribution of criminality to a confederation which contemplates
no act that would be criminal if carried out by any one of the
conspirators is a practice peculiar to Anglo-American law. "There
can be little doubt that this wide definition of the crime of
conspiracy originates in the criminal equity administered in the
Star Chamber." [
Footnote 2/12] In
fact, we are advised that "The modern crime of conspiracy is almost
entirely the result of the manner in which conspiracy was treated
by the court of Star Chamber." [
Footnote 2/13] The doctrine does not commend itself to
jurists of civil law countries, [
Footnote 2/14] despite universal recognition that an
organized society must have legal weapons for combatting organized
criminality. Most other countries have devised what they consider
more discriminating principles upon which to prosecute criminal
gangs, secret associations and subversive syndicates. [
Footnote 2/15]
Page 336 U. S. 451
A recent tendency has appeared in this Court to expand this
elastic offense and to facilitate its proof. In
Pinkerton v.
United States, 328 U. S. 640, it
sustained a conviction of a substantive crime where there was no
proof of participation in or knowledge of it, upon the novel and
dubious theory that conspiracy is equivalent in law to aiding and
abetting.
Doctrines of conspiracy are not only invoked for criminal
prosecution, but also in civil proceedings for damages or for
injunction, and in administrative proceedings to apply regulatory
statutes. They have been resorted to by military commissions and on
at least one notable occasion when civil courts were open at the
time and place to punish the offense. [
Footnote 2/16] This conspiracy concept was employed to
prosecute laborers for combining to raise their wages and formed
the basis for abuse of the labor injunction. [
Footnote 2/17] The National Labor Relations Act
found it necessary to provide that concerted labor activities
otherwise lawful were not rendered unlawful by mere concert.
[
Footnote 2/18] But in other
fields, concert may still be a crime though it contemplates only
acts which each could do lawfully on his own.
The interchangeable use of conspiracy doctrine in civil as well
as penal proceedings opens it to the danger, absent in the case of
many crimes, that a court having in mind
Page 336 U. S. 452
only the civil sanctions will approve lax practices which later
are imported into criminal proceedings. In civil proceedings, this
Court frankly has made the end a test of the means, saying, "To
require a greater showing would cripple the Act,"
United States
v. Griffith, 334 U. S. 100, in
dispensing with the necessity for specific intent to produce a
result violative of the statute. Further, the Court has dispensed
with even the necessity to infer any definite agreement, although
that is the gist of the offense. "It is elementary that an unlawful
conspiracy may be and often is formed without simultaneous action
or agreement on the part of the conspirators. . . ."
United
States v. Masonite Corp., 316 U. S. 265,
316 U. S. 275.
One might go on from the reports of this and lower courts and put
together their decisions condoning absence of proof to demonstrate
that the minimum of proof required to establish conspiracy is
extremely low, and we may expect our pronouncements in civil cases
to be followed in criminal ones also.
Of course, it is for prosecutors, rather than courts, to
determine when to use a scatter-gun to bring down the defendant,
but there are procedural advantages from using it which add to the
danger of unguarded extension of the concept.
An accused, under the Sixth Amendment, has the right to trial
"by an impartial jury of the State and district wherein the crime
shall have been committed." The leverage of a conspiracy charge
lifts this limitation from the prosecution and reduces its
protection to a phantom, for the crime is considered so vagrant as
to have been committed in any district where any one of the
conspirators did any one of the acts, however innocent, intended to
accomplish its object. [
Footnote
2/19] The Government may, and often
Page 336 U. S. 453
does, compel one to defend at a great distance from any place he
ever did any act because some accused confederate did some trivial
-- and, by itself, innocent -- act in the chosen district.
Circumstances may even enable the prosecution to fix the place of
trial in Washington, D.C., where a defendant may lawfully be put to
trial before a jury partly or even wholly made up of employees of
the Government that accuses him.
Cf. Frazier v. United
States, 335 U. S. 497.
When the trial starts, the accused feels the full impact of the
conspiracy strategy. Strictly, the prosecution should first
establish
prima facie the conspiracy and identify the
conspirators, after which evidence of acts and declarations of each
in the course of its execution are admissible against all. But the
order of proof of so sprawling a charge is difficult for a judge to
control. As a practical matter, the accused often is confronted
with a hodgepodge of acts and statements by others which he may
never have authorized or intended or even known about, but which
help to persuade the jury of existence of the conspiracy itself. In
other words, a conspiracy often is proved by evidence that is
admissible only upon assumption that conspiracy existed. The naive
assumption that prejudicial effects can be overcome by instructions
to the jury,
cf. Blumenthal v. United States, 332 U.
S. 539,
332 U. S. 559,
all practicing lawyers know to be unmitigated fiction.
See
Skidmore v. Baltimore & Ohio R. Co., 167 F.2d 54.
The trial of a conspiracy charge doubtless imposes a heavy
burden on the prosecution, but it is an especially difficult
situation for the defendant. The hazard from loose application of
rules of evidence is aggravated where
Page 336 U. S. 454
the Government institutes mass trials. [
Footnote 2/20] Moreover, in federal practice, there is
no rule preventing conviction on uncorroborated testimony of
accomplices, as there are in many jurisdictions, and the most
comfort a defendant can expect is that the court can be induced to
follow the "better practice" and caution the jury against "too much
reliance upon the testimony of accomplices."
Caminetti v.
United States, 242 U. S. 470,
242 U. S.
495.
A codefendant in a conspiracy trial occupies an uneasy seat.
There generally will be evidence of wrongdoing by somebody. It is
difficult for the individual to make his own case stand on its own
merits in the minds of jurors who are ready to believe that birds
of a feather are flocked together. If he is silent, he is taken to
admit it and if, as often happens, codefendants can be prodded into
accusing or contradicting each other, they convict each other.
There are many practical difficulties in defending against a charge
of conspiracy which I will not enumerate. [
Footnote 2/21]
Against this inadequately sketched background, I think the
decision of this case in the court below introduced
Page 336 U. S. 455
an ominous expansion of the accepted law of conspiracy. The
prosecution was allowed to incriminate the defendant by means of
the prostitute's recital of a conversation with defendant's alleged
coconspirator, who was not on trial. The conversation was said to
have taken place after the substantive offense was accomplished,
after the defendant, the coconspirator and the witness had all been
arrested, and after the witness and the other two had a falling
out. The Court of Appeals sustained its admission upon grounds
stated as follows:
". . . We think that implicit in a conspiracy to violate the law
is an agreement among the conspirators to conceal the violation
after, as well as before, the illegal plan is consummated. Thus,
the conspiracy continues, at least for purposes of concealment,
even after its primary aims have been accomplished. The statements
of the coconspirator here were made in an effort to protect the
appellant by concealing his role in the conspiracy. Consequently,
they fell within the implied agreement to conceal, and were
admissible as evidence against the appellant.
Cf. United States
v. Goldstein, 2 Cir., 135 F.2d 359;
Murray v. United
States, 7 Cir., 10 F.2d 409,
certiorari denied, 271
U.S. 673. . . . While
Bryan v. United States, 5 Cir., 17
F.2d 741, is by implication directly to the contrary, we decline to
follow it."
I suppose no person planning a crime would accept as a
collaborator one on whom he thought he could not rely for help if
he were caught, but I doubt that this fact warrants an inference of
conspiracy for that purpose. Of course, if an understanding for
continuous aid had been proven, it would be embraced in the
conspiracy
Page 336 U. S. 456
by evidence, and there would be no need to imply such an
agreement. Only where there is no convincing evidence of such an
understanding is there need for one to be implied.
It is difficult to see any logical limit to the "implied
conspiracy," either as to duration or means, nor does it appear
that one could overcome the implication by express and credible
evidence that no such understanding existed, nor any way in which
an accused against whom the presumption is once raised can
terminate the imputed agency of his associates to incriminate him.
Conspirators, long after the contemplated offense is complete,
after perhaps they have fallen out and become enemies, may still
incriminate each other by deliberately harmful, but unsworn
declarations, or unintentionally by casual conversations out of
court. On the theory that the law will impute to the confederates a
continuing conspiracy to defeat justice, one conceivably could be
bound by another's unauthorized and unknown commission of perjury,
bribery of a juror or witness, or even putting an incorrigible
witness with damaging information out of the way.
Moreover, the assumption of an indefinitely continuing offense
would result in an indeterminate extension of the statute of
limitations. If the law implies an agreement to cooperate in
defeating prosecution, it must imply that it continues as long as
prosecution is a possibility, and prosecution is a possibility as
long as the conspiracy to defeat it is implied to continue.
I do not see the slightest warrant for judicially introducing a
doctrine of implied crimes or constructive conspiracies. It either
adds a new crime or extends an old one. True, the modern law of
conspiracy was largely evolved by the judges. But it is well and
wisely settled that there can be no judge-made offenses against
the
Page 336 U. S. 457
United States, and that every federal prosecution must be
sustained by statutory authority. [
Footnote 2/22] No statute authorizes federal judges to
imply, presume, or construct a conspiracy except as one may be
found from evidence. To do so seems to approximate creation of a
new offense, and one that I would think of doubtful
constitutionality even if it were created by Congress. [
Footnote 2/23] And, at all events, it is
one fundamentally and irreconcilably at war with our presumption of
innocence.
There is, of course, strong temptation to relax rigid standards
when it seems the only way to sustain convictions of evil-doers.
But statutes authorize prosecution for substantive crimes for most
evil-doing without the dangers to the liberty of the individual and
the integrity of the judicial process that are inherent in
conspiracy charges. We should disapprove the doctrine of implied or
constructive crime in its entirety and in every manifestation. And
I think there should be no straining to uphold any conspiracy
conviction where prosecution for the substantive offense is
adequate and the purpose served by adding the conspiracy charge
seems chiefly to get procedural advantages to ease the way to
conviction.
Although a reversal after four trials is, of course,
regrettable, I cannot overlook the error as a harmless one. But I
should concur in reversal even if less sure that prejudice resulted
for it is better that the crime go unwhipped of justice than that
this theory of implied continuance of conspiracy find lodgment in
our law, either by affirmance or by tolerance. Few instruments of
injustice
Page 336 U. S. 458
can equal that of implied or presumed or constructive crimes.
The most odious of all oppressions are those which mask as
justice.
MR. JUSTICE FRANKFURTER and MR. JUSTICE MURPHY join in this
opinion.
[
Footnote 2/1]
The phrase is Judge Cardozo's -- The Nature of the Judicial
Process, p. 51.
[
Footnote 2/2]
The Conference of Senior Circuit Judges, presided over by Chief
Justice Taft, in 1925 reported:
"We note the prevalent use of conspiracy indictments for
converting a joint misdemeanor into a felony, and we express our
conviction that, both for this purpose and for the purpose -- or at
least with the effect -- of bringing in much improper evidence, the
conspiracy statute is being much abused."
"Although, in a particular case, there may be no preconcert of
plan, excepting that necessarily inherent in mere joint action, it
is difficult to exclude that situation from the established
definitions of conspiracy; yet the theory which permits us to call
the aborted plan a greater offense than the completed crime
supposes a serious and substantially continued group scheme for
cooperative lawbreaking. We observe so many conspiracy prosecutions
which do not have this substantial base that we fear the creation
of a general impression, very harmful to law enforcement, that this
method of prosecution is used arbitrarily and harshly. Further, the
rules of evidence in conspiracy cases make them most difficult to
try without prejudice to an innocent defendant."
Annual Report of the Attorney General for 1925, pp. 5-6.
Fifteen years later, Judge Learned Hand observed:
". . . so many prosecutors seek to sweep within the dragnet of
conspiracy all those who have been associated in any degree
whatever with the main offenders. That there are opportunities of
great oppression in such a doctrine is very plain, and it is only
by circumscribing the scope of such all comprehensive indictments
that they can be avoided."
United States v. Falcone, 109 F.2d 579, 581.
[
Footnote 2/3]
Harno,
Intent in Criminal Conspiracy, 89 U. of
Pa.L.Rev. 624:
"In the long category of crimes, there is none, not excepting
criminal attempt, more difficult to confine within the boundaries
of definitive statement than conspiracy."
An English author -- Wright,
The Law of Criminal
Conspiracies and Agreements, p. 11 -- gives up with the
remark: "but no intelligible definition of
conspiracy' has yet
been established."
[
Footnote 2/4]
Justice Holmes supplied an oversimplified working definition in
United States v. Kissel, 218 U. S. 601,
218 U. S. 608:
"A conspiracy is a partnership in criminal purposes." This was
recently restated "A conspiracy is a partnership in crime."
Pinkerton v. United States, 328 U.
S. 640,
328 U. S. 644.
The latter is inaccurate, since concert in criminal purposes,
rather than concert in crime, establishes the conspiracy.
Carson offers the following resume of American cases:
"It would appear that a conspiracy must be a combination of two
or more persons by some concerted action to accomplish some
criminal object; or some object not criminal by criminal means; or,
some object not criminal by means which are not criminal, but where
mischief to the public is involved; or, where neither the object
nor the means are criminal, or even unlawful, but where injury and
oppression to individuals are the result."
The Law of Criminal Conspiracies and Agreements, as Found in
The American Cases, p. 123.
[
Footnote 2/5]
See, for example:
8 U.S.C. § 47, Conspiracy to interfere with civil rights; (1)
Preventing officer from performing duties; (2) Obstructing justice,
intimidating party, witness, or juror; (3) Depriving persons of
rights or privileges. 10 U.S.C. § 1566, Conspiracy by persons in
military service to defraud the U.S. 12 U.S.C. § 1138d(f),
Conspiracy involving Farm Credit Banks, Administration, etc. 15
U.S.C.; §§ 1-3, Conspiracy in restraint of trade; § 8, Conspiracy
in restraint of import trade. 18 U.S.C. as revised by the Act of
June 25, 1948, 62 Stat. 928
et seq., effective September
1, 1948: § 2384, Seditious conspiracy; §§ 2385, 2387, Conspiracy to
impair loyalty of armed forces or advocate overthrow of U.S.
Government by force; § 241, Conspiracy to injure person in exercise
of civil rights; § 372, Conspiracy to prevent officer from
performing duties; § 286, Conspiracy to defraud the Government by
obtaining payment of a false claim; § 371, Conspiracy to defraud
the United States; §§ 1501-1506, Conspiracy to obstruct justice; §§
752, 1792, Conspiracy to cause riots at federal penal institutions;
§ 1201, Conspiracy to transport kidnaped person in interstate
commerce; § 2314, Conspiracy to transport stolen property and
counterfeiting instruments in interstate commerce; § 1951,
Conspiracy to violate Anti-Racketeering Act; § 2192, Conspiracy to
incite mutiny on shipboard; § 2271, Conspiracy to cast away vessel.
22 U.S.C. § 234, Conspiracy to injure property of foreign
government. 31 U.S.C. § 231, Conspiracy to obtain payment of false
claims. 34 U.S.C. § 749a, Conspiracy to bid collusively on
construction of naval aircraft. 38 U.S.C. § 715, Conspiracy to
falsify pension claims. 50 U.S.C. § 34, Conspiracy to disclose
national defense information or commit espionage. 50 U.S.C.App. §
311, Conspiracy to violate Selective Service Act.
[
Footnote 2/6]
Harno,
Intent in Criminal Conspiracy, 89 U. of
Pa.L.Rev. 624, 632.
[
Footnote 2/7]
See Senturia,
Conspiracy, Political, IV
Encyc.Soc.Sci. 238 (1931).
On conspiracy principles, German courts, on May 30, 1924,
adjudged the Nazi Party to be a criminal organization. It also held
in 1928 that the Leadership Corps of the Communist Party was a
criminal organization, and, in 1930, entered judgment of
criminality against the Union of Red Front Fighters of the
Communist Party.
See 336
U.S. 440fn2/15|>note 15.
[
Footnote 2/8]
8 Holdsworth,
History of English Law, 383. Miller,
Criminal Law, p. 110.
[
Footnote 2/9]
18 U.S.C.A. § 371. Until recently, the punishment for such a
felony could have been far in excess of that provided for the
substantive offense. However, the Act of June 25, 1948, c. 645, 62
Stat. 683, 701, provides that, in such a case, the punishment for
the conspiracy shall not exceed the maximum provided for such
misdemeanor.
[
Footnote 2/10]
This is the federal law applicable to antitrust prosecutions.
For the history of this conception and its perversion, particularly
in labor cases,
see Sayre,
Criminal Conspiracy,
35 Harv.L.Rev. 393. On the abuse of conspiracy
see
O'Brian,
Loyalty Tests and Guilt by Association, 61
Harv.L.Rev. 592, and Note,
The Conspiracy Dilemma: Prosecution
of Group Crime or Protection of Individual Defendants, 62
Harv.L.Rev. 276.
[
Footnote 2/11]
This statement, of course, leaves out of account the subject of
attempts, with which conspiracy is said to be allied. 8 Holdsworth,
History of English Law, 382.
[
Footnote 2/12]
Id. 382
[
Footnote 2/13]
Id. 379.
[
Footnote 2/14]
"It is utterly unknown to the Roman law; it is not found in
modern Continental codes; few Continental lawyers ever heard of it.
It is a fortunate circumstance that it is not encrusted so deep in
our jurisprudence by past decisions of our courts that we are
unable to slough it off altogether. It is a doctrine which has
proved itself the evil genius of our law wherever it has touched
it."
Sayre,
Criminal Conspiracy, 35 Harv.L.Rev. 393,
427.
[
Footnote 2/15]
Counsel representing the United States, the United Kingdom, the
French Republic, and the Soviet Union, and German defendants,
indulged in some comparisons of the relevant laws of several
nations before the International Military Tribunal at Nurnberg in
connection with organizations there accused as criminal. 8 Trial of
Major War Criminals (GPO 1947), pp. 353,
et seq.; 2 Nazi
Conspiracy and Aggression (GPO 1946), p. 1; Jackson,
The
Nurnberg Case, p. 95.
[
Footnote 2/16]
The Assassination of President Lincoln and the Trial of the
Conspirators, New York, 1865.
See, however, 71 U.
S. 4 Wall. 2.
[
Footnote 2/17]
See Sayre,
Criminal Conspiracy, 35 Harv.L.Rev.
393, 403.
[
Footnote 2/18]
International Union, UAWA v. Wisconsin Employment Relations
Board, ante p.
336 U. S. 245.
[
Footnote 2/19]
Hyde v. United States, 225 U.
S. 347. Mr. Justice Holmes, on behalf of himself and
Justices Hughes, Lurton and Lamar, wrote a vigorous protest which
did not hesitate to brand the doctrine a oppressive and as "one of
the wrongs that our forefathers meant to prevent."
225 U.
S. 347,
225 U. S.
387.
[
Footnote 2/20]
An example is afforded by
Allen v. United States, 4
F.2d 688. At the height of the prohibition frenzy, seventy-five
defendants were tried on charges of conspiracy. A newspaper
reporter testified to going to a drinking place where he talked
with a woman, behind the bar, whose name he could not give. There
was not the slightest identification of her nor showing that she
knew or was known by any defendant. But it was held that being back
of the bar showed her to be a coconspirator, and, hence, her
statements were admissible against all. He was allowed to relate
incriminating statements made by her.
[
Footnote 2/21]
For courtroom technique employed in the trial of conspiracy
cases by both prosecution and defense,
see O'Dougherty,
Prosecution and Defense under Conspiracy Indictments, 9 Brooklyn
L.Rev. 263. His survey, which accords with our observation, will
hardly convince one that a trial of this kind is the highest
exemplification of the working of the judicial process.
[
Footnote 2/22]
United States v.
Huson, 7 Cranch 32;
United
States v. Worrall, 2 Dall. 384;
United States
v. Coolidge, 1 Wheat. 415;
United States v. Eaton,
144 U. S. 677,
144 U. S. 687;
United States v. Bathgate, 246 U.
S. 220,
246 U. S. 225.
See, however, Warren, New Light on the History of the
Federal Judiciary Act of 17, 37 Harv.L.Rev. 49, 73.
[
Footnote 2/23]
Cf. Tot v. United States, 319 U.
S. 463.
MR. JUSTICE BURTON, dissenting.
While I agree with the opinion of the Court that the hearsay
testimony in question was not properly admissible, I regard its
admission, under the circumstances of this case, as an absolutely
harmless error.
In speaking of harmless errors that may result from the
admission of evidence, this Court has said:
"Errors of this sort in criminal causes conceivably may be
altogether harmless in the face of other clear evidence, although
the same error might turn scales otherwise level, as constantly
appears in the application of the policy of § 269
* to
questions of the admission of cumulative evidence."
Kotteakos v. United States, 328 U.
S. 750,
328 U. S.
763.
Page 336 U. S. 459
Again, in determining whether error in the admission of evidence
should result in a reversal of a judgment, we said that the
question is --
"what effect the error had or reasonably may be taken to have
had upon the jury's decision. . . ."
"
* * * *"
"If, when all is said and done, the conviction is sure that the
error did not influence the jury, or had but very slight effect,
the verdict and the judgment should stand, except perhaps where the
departure is from a constitutional norm or a specific command of
Congress."
Id. at pp.
328 U. S.
764-765.
The issue before us involves no constitutional question or
specific command of Congress. The trial was a long one concerning
personal conduct involving simple issues of fact. The record of it
covers more than 800 pages. The jury must have been thoroughly
familiar with the issues and with the degree of dependability, if
any, to be placed upon the oral testimony of the petitioner and of
the two witnesses involved in the conversation that is before us as
reported by one of them. The evidence supporting the jury's verdict
was cumulative, repetitive and corroborated to such a point that I
cannot believe that the verdict or the rights of the parties could
have been appreciably affected by such weight as the jury may have
attached to this reported snatch of conversation between two people
of such negligible dependability as was demonstrated here. After
this extended fourth trial, to set aside this jury's verdict merely
because of this particular bit of hearsay testimony seems to me to
be an unrealistic procedure that tends to make a travesty of the
jury system which is neither necessary nor deserved. I would affirm
the judgment below.
* Section 269 of the Judicial Code, as then in effect and as in
effect at the time of the trial of the instant case and of the
entry of the judgment below, provided:
"SEC. 269. . . . On the hearing of any appeal, certiorari, writ
of error, or motion for a new trial, in any case, civil or
criminal, the court shall give judgment after an examination of the
entire record before the court, without regard to technical errors,
defects, or exceptions which do not affect the substantial rights
of the parties."
40 Stat. 1181, 28 U.S.C. § 391.
Rule 52(a) of the Federal Rules of Criminal Procedure, as
continuously in effect during and since the time of the trial of
the instant case and as still in effect, provides:
"RULE 52. HARMLESS ERROR AND PLAIN ERROR."
"(a) HARMLESS ERROR. Any error, defect, irregularity or variance
which does not affect substantial rights shall be disregarded. . .
."