1. The three petitioners were convicted in a federal district
court of violating 18 U.S.C. § 371 by conspiring to defraud the
United States by preventing the criminal prosecution of certain
taxpayers for fraudulent tax evasion. They had succeeded in
obtaining "no prosecution" rulings from the Bureau of Internal
Revenue in 1948 and 1949, and their subsequent activities were
directed at concealing the irregularities through which these
rulings were obtained. They were not indicted until October 25,
1954.
Held: if the main objective of the conspiracy was to
obtain the "no prosecution" rulings, petitioners' prosecution was
barred by the three-year statute of limitations, since no agreement
to conceal the conspiracy after its accomplishment was shown or can
be implied on the record in this case to have been a part of the
conspiracy. Pp.
353 U. S.
399-406.
(a) After the central criminal purposes of a conspiracy have
been attained, a subsidiary conspiracy to conceal the crime may not
be implied from circumstantial evidence showing merely that the
conspiracy was kept a secret and that the conspirators took care to
cover up their crime in order to escape detection and punishment.
Krulewitch v. United States, 336 U.
S. 440;
Lutwak v. United States, 344 U.
S. 604. Pp.
353 U. S.
399-402.
(b) On the record in this case, nothing more is shown than (1) a
criminal conspiracy carried out in secrecy, (2) a continuation of
the secrecy after accomplishment of the crime, and (3) attempts to
cover up after the crime began to come to light. Pp.
353 U. S.
402-404.
(c) The duration of a conspiracy cannot be lengthened
indefinitely for the purpose of the statute of limitations merely
because the conspiracy is kept secret and the conspirators take
steps to bury their traces in order to avoid detection and
punishment after the central criminal purpose has been
accomplished. Pp.
353 U. S. 399,
353 U. S.
404-405.
2. The judge's charge to the jury was not adequate to justify
petitioners' conviction on the theory that the main objective of
the conspiracy was not merely to obtain the initial "no
prosecution"
Page 353 U. S. 392
rulings, but to obtain final immunity of the taxpayers from
criminal prosecution by preventing their prosecution until after
expiration of the six-year statute of limitations applicable to
their tax-evasion offenses, which did not expire until less than
three years before petitioners were indicted for conspiracy --
since the judge's charge left it open for the jury to convict even
though it found merely (1) that the central aim of the conspiracy
was accomplished in 1949, and (2) that the subsequent acts of
concealment were motivated exclusively by petitioners' fear of a
conspiracy prosecution. Pp.
353 U. S.
406-415.
3. Petitioner Halperin was also convicted on other counts of the
indictment charging him with violating 18 U.S.C. § 1503 by
endeavoring corruptly to influence certain witnesses before a grand
jury which was investigating matters involved in the conspiracy. At
his trial, he answered certain questions in a manner consistent
with innocence, and then, over his objection, was subjected to
cross-examination which revealed that he had refused to answer the
same questions, on grounds of possible self-incrimination, while he
was appearing before a grand jury, under subpoena, without benefit
of counsel, without the right to summon witnesses, and without any
opportunity to cross-examine witnesses testifying against him.
Held: in the circumstances of this case, it was
prejudicial error for the trial judge to permit cross-examination
of Halperin on his plea of the Fifth Amendment privilege before the
grand jury.
Raffel v. United States, 271 U.
S. 494, distinguished. Pp.
353 U. S.
415-424.
233 F.2d 556, reversed and remanded.
Page 353 U. S. 393
MR. JUSTICE HARLAN delivered the opinion of the Court.
The three petitioners were convicted on Count 1 of an indictment
brought under 18 U.S.C. § 371 [
Footnote 1] for conspiracy to defraud the United States
with reference to certain tax matters. Petitioner Halperin was also
convicted on Counts 5, 6, and 7 of the same indictment, charging
him with violating 18 U.S.C. § 1503 [
Footnote 2] by endeavoring corruptly to influence certain
witnesses before a grand jury which was investigating matters
involved in the conspiracy charged in Count 1 of the indictment.
Each petitioner was sentenced to five years' imprisonment and fined
under Count 1. On each of Counts 5, 6, and 7, Halperin was
sentenced to two years' imprisonment and a fine of $1,000, the
prison sentences on these Counts and that on Count 1 to run
concurrently. The Court of Appeals for the Second Circuit affirmed,
with the late Judge Frank dissenting. 233 F.2d 556. We granted
certiorari,
352 U. S. 866, in
order to resolve important questions relating to (a) the statute of
limitations in conspiracy
Page 353 U. S. 394
prosecutions, as to which the decision below was alleged to be
in conflict with this Court's decisions in
Krulewitch v. United
States, 336 U. S. 440, and
Lutwak v. United States, 344 U. S. 604; and
(b) the use on Halperin's cross-examination of his prior claim of
the Fifth Amendment's privilege against self-incrimination before a
grand jury. For the reasons discussed hereafter, we conclude that
these convictions must be reversed, and the petitioners granted a
new trial.
On October 25, 1954, a grand jury returned an indictment, Count
1 of which charged petitioners and others with conspiring among
themselves and with others
"to defraud the United States in the exercise of its
governmental functions of administering the internal revenue laws
and of detecting and prosecuting violations of the internal revenue
laws free from bribery, unlawful impairment, obstruction, improper
influence, dishonesty, fraud and corruption. . . ."
The indictment further charged that a part of the conspiracy was
an agreement to conceal the acts of the conspirators. [
Footnote 3] Overt acts within three
years of the date of the indictment were charged. Counts 5, 6, and
7 of the indictment charged petitioners with violating 18 U.S.C. §
1503 in the manner already indicated.
The proofs at the trial presented a sordid picture of a ring
engaged in the business of "fixing" tax fraud cases
Page 353 U. S. 395
by the use of bribes and improper influence. In general outline,
the petitioners' scheme, which is set forth in more detail in the
Court of Appeals' opinion, [
Footnote 4] was as follows:
In 1947 and 1948, two New York business firms, Patullo Modes and
Gotham Beef Co., were under investigation by the Bureau of Internal
Revenue for suspected fraudulent tax evasion. Through
intermediaries, both firms established contact with Halperin, a New
York attorney, and his associates in law practice. Halperin, in
turn, conducted negotiations on behalf of these firms with
Grunewald, an "influential" friend in Washington, and reported that
Grunewald, for a large cash fee, would undertake to prevent
criminal prosecution of the taxpayers. Grunewald then used his
influence with Bolich, an official in the Bureau, to obtain "no
prosecution" rulings [
Footnote
5] in the two tax cases. These rulings were handed down in 1948
and 1949. Grunewald, through Halperin, was subsequently paid
$60,000 by Gotham and $100,000 by Patullo. [
Footnote 6]
Subsequent activities of the conspirators were directed at
concealing the irregularities in the disposition of the Patullo and
Gotham cases. Bolich attempted to have the Bureau of Internal
Revenue report on the Patullo case "doctored," and careful steps
were taken to cover up the traces of the cash fees paid to
Grunewald. In 1951, a congressional investigation was started by
the King Committee of the House of Representatives; the
conspirators felt themselves threatened, and took steps to hide
their traces. Thus, Bolich caused the disappearance
Page 353 U. S. 396
of certain records linking him to Grunewald, and the taxpayers
were repeatedly warned to keep quiet. In 1952, the taxpayers and
the conspirators were called before a Brooklyn grand jury. Halperin
attempted to induce the taxpayers not to reveal the conspiracy, and
Grunewald asked his secretary not to talk to the grand jury. These
attempts at concealment were, however, in vain. The taxpayers and
some of Halperin's associates revealed the entire scheme, and
petitioners' indictment and conviction followed. [
Footnote 7]
The first question before us is whether the prosecution of these
petitioners on Count 1 of the indictment was barred by the
applicable three-year statute of limitations. [
Footnote 8]
The indictment in these cases was returned on October 25, 1954.
It was therefore incumbent on the Government to prove that the
conspiracy, as contemplated in the agreement as finally formulated,
was still in existence on October 25, 1951, and that at least one
overt act in furtherance of the conspiracy was performed after that
date. [
Footnote 9] For where
substantiation of a conspiracy charge
Page 353 U. S. 397
requires proof of an overt act, it must be shown both that the
conspiracy still subsisted within the three years prior to the
return of the indictment and that at least one overt act in
furtherance of the conspiratorial agreement was performed within
that period. Hence, in both of these aspects, the crucial question
in determining whether the statute of limitations has run is the
scope of the conspiratorial agreement, for it is that which
determines both the duration of the conspiracy and whether the act
relied on as an overt act may properly be regarded as in
furtherance of the conspiracy. [
Footnote 10]
Petitioners, in contending that this prosecution was barred by
limitations, state that the object of the conspiratorial agreement
was a narrow one: to obtain "no prosecution" rulings in the two tax
cases. When these rulings were obtained, in October, 1948, in the
case of Gotham Beef, and in January, 1949, in the case of Patullo
Modes, the criminal object of the conspiracy, petitioners say, was
attained, and the conspirators' function ended. They argue,
therefore, that the statute of limitations started running no later
than January, 1949, and that the
Page 353 U. S. 398
prosecution was therefore barred by 1954, when the indictment
was returned. [
Footnote
11]
The Government counters with two principal contentions: first,
it urges that, even if the main object of the conspiracy was to
obtain decisions from the Bureau of Internal Revenue not to
institute criminal tax prosecutions -- decisions obtained in 1948
and 1949 -- the indictment alleged, [
Footnote 12] and the proofs showed, that the conspiracy
also included as a subsidiary element an agreement to conceal the
conspiracy to "fix" these tax cases, to the end that the
conspirators would escape detection and punishment for their crime.
Says the Government,
"from the very nature of the conspiracy . . . there had to be,
and was, from the outset a conscious, deliberate, agreement to
conceal . . . each and every aspect of the conspiracy. . . ."
It is then argued that, since the alleged conspiracy to conceal
clearly continued long after the main criminal purpose of the
conspiracy was accomplished, and since overt acts in furtherance of
the agreement to conceal were performed well within the indictment
period, the prosecution was timely.
Second, and alternatively, the Government contends that the
central aim of the conspiracy was to obtain
Page 353 U. S. 399
for these taxpayers, not merely a "no prosecution" ruling, but
absolute immunity from tax prosecution; in other words, that the
objectives of the conspiracy were not attained until 1952, when the
statute of limitations ran on the tax cases which these petitioners
undertook to "fix." The argument, then, is that, since the
conspiracy did not end until 1952, and since the 1949-1952 acts of
concealment may be regarded as at least in part, in furtherance of
the objective of the conspirators to immunize the taxpayers from
tax prosecution, the indictment was timely.
For reasons hereafter given, we hold that the Government's first
contention must be rejected, and that, as to its second, which the
Court of Appeals accepted, a new trial must be ordered.
I
We think that the Government's first theory -- that an agreement
to conceal a conspiracy can, on facts such as these, be deemed part
of the conspiracy, and can extend its duration for the purposes of
the statute of limitations -- has already been rejected by this
Court in
Krulewitch v. United States, 336 U.
S. 440, and in
Lutwak v. United States,
344 U. S. 604.
In
Krulewitch, the question before the Court was
whether certain hearsay declarations could be introduced against
one of the conspirators. The declarations in question were made by
one named in the indictment as a co-conspirator after the main
object of the conspiracy (transporting a woman to Florida for
immoral purposes) had been accomplished. The Government argued that
the conspiracy was not ended, however, since it included an implied
subsidiary conspiracy to conceal the crime after its commission,
and that the declarations were therefore still in furtherance of
the conspiracy, and binding on
Page 353 U. S. 400
co-conspirators. This Court rejected the Government's argument.
It then stated:
"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
[Government's] 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."
"We cannot accept the Government's contention. . . . 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 co-conspirators. We are not persuaded to
adopt the Government's implicit conspiracy theory, which, in all
criminal conspiracy case,s would create automatically a further
breach of the general rule against the admission of hearsay
evidence. [
Footnote 13]"
Mr. Justice Jackson, concurring, added:
"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. . . ."
"It is difficult to see any logical limit to the 'implied
conspiracy,' either as to duration or means. . . . On the theory
that the law will impute to the confederates a continuing
conspiracy to defeat justice, one conceivably could be bound by
Page 353 U. S. 401
another's unauthorized and unknown commission of perjury,
bribery of a juror or witness, [etc.]. . . ."
"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.
[
Footnote 14]"
The
Krulewitch case was reaffirmed in
Lutwak v.
United States, supra. Here again, the question was the
admissibility of hearsay declarations of co-conspirators after the
main purpose of the conspiracy had been accomplished; again, the
Government attempted to extend the life of the conspiracy by an
alleged subsidiary conspiracy to conceal. Although, in
Lutwak, unlike in
Krulewitch, the existence of a
subsidiary conspiracy to conceal was charged in the indictment, the
Court again rejected the Government's theory, holding that no such
agreement to conceal had been proved or could be implied.
The Government urges us to distinguish
Krulewitch and
Lutwak on the ground that, in those cases, the attempt was
to imply a conspiracy to conceal from the mere fact that the main
conspiracy was kept secret and that overt acts of concealment
occurred. In contrast, says the Government, here, there was an
actual agreement to conceal the conspirators which was
charged and proved to be an express part of the initial conspiracy
itself.
We are unable to agree with the Government that, on this record,
the cases before us can be distinguished on such a basis.
The crucial teaching of
Krulewitch and
Lutwak
is that, after the central criminal purposes of a conspiracy
have
Page 353 U. S. 402
been attained, a subsidiary conspiracy to conceal may not be
implied from circumstantial evidence showing merely that the
conspiracy was kept a secret, and that the conspirators took care
to cover up their crime in order to escape detection and
punishment. As was there stated, allowing such a conspiracy to
conceal to be inferred or implied from mere overt acts of
concealment would result in a great widening of the scope of
conspiracy prosecutions, since it would extend the life of a
conspiracy indefinitely. Acts of covering up, even though done in
the context of a mutually understood need for secrecy, cannot
themselves constitute proof that concealment of the crime after its
commission was part of the initial agreement among the
conspirators. For every conspiracy is, by its very nature, secret;
a case can hardly be supposed where men concert together for crime
and advertise their purpose to the world. And again, every
conspiracy will inevitably be followed by actions taken to cover
the conspirators' traces. Sanctioning the Government's theory
would, for all practical purposes, wipe out the statute of
limitations in conspiracy cases, as well as extend indefinitely the
time within which hearsay declarations will bind
co-conspirators.
A reading of the record before us reveals that, on the facts of
this case, the distinction between "actual" and "implied"
conspiracies to conceal, as urged upon us by the Government, is no
more than a verbal
tour de force. True, in both
Krulewitch and
Lutwak, there is language in the
opinions stressing the fact that only an
implied agreement
to conceal was relied on. [
Footnote 15] Yet, when we look to the facts of the
present cases, we see that the evidence from which the Government
here asks us to deduce an "actual" agreement to conceal reveals
nothing beyond that adduced in prior cases. What is this
evidence?
Page 353 U. S. 403
First, we have the fact that, from the beginning, the
conspirators insisted on secrecy. Thus, the identities of Grunewald
and Bolich were sedulously kept from the taxpayers; careful steps
were taken to hide the conspiracy from an independent law firm
which was also working on Patullo's tax problems; and the taxpayers
were told to make sure that their books did not reflect the large
cash payments made to Grunewald. Secondly, after the "no
prosecution" rulings were obtained, we have facts showing that this
secrecy was still maintained. Thus, a deliberate attempt was made
to make the above-mentioned independent law firm believe that it
was its (quite legitimate) efforts which produced the successful
ruling. Finally, we have the fact that great efforts were made to
conceal the conspiracy when the danger of exposure appeared. For
example, Bolich got rid of certain records showing that he had used
Grunewald's hotel suite in Washington; Patullo's accountant was
persuaded to lie to the grand jury concerning a check made out to
an associate of the conspirators; Grunewald attempted to persuade
his secretary not to talk to the grand jury; and the taxpayers were
repeatedly told by Halperin and his associates to keep quiet.
We find in all this nothing more than what was involved in
Krulewitch, that is, (1) a criminal conspiracy which is
carried out in secrecy; (2) a continuation of the secrecy after the
accomplishment of the crime; and (3) desperate attempts to cover up
after the crime begins to come to light; and so we cannot agree
that this case does not fall within the ban of those prior
opinions.
In effect, the differentiation pressed upon us by the Government
is one of words rather than of substance. In
Krulewitch it
was urged that a continuing agreement to conceal should be implied
out of the mere fact of conspiracy, and that acts of concealment
should be taken as overt acts in furtherance of that implied
agreement to
Page 353 U. S. 404
conceal. Today the Government merely rearranges the argument. It
states that the very same acts of concealment should be used as
circumstantial evidence from which it can be inferred that there
was from the beginning an "actual" agreement to conceal. As we see
it, the two arguments amount to the same thing: a conspiracy to
conceal is being implied from elements which will be present in
virtually every conspiracy case, that is, secrecy plus overt acts
of concealment. [
Footnote
16] There is not a shred of direct evidence in this record to
show anything like an express original agreement among the
conspirators to continue to act in concert in order to cover up,
for their own self-protection, traces of the crime after its
commission.
Prior cases in this Court have repeatedly warned that we will
view with disfavor attempts to broaden the already pervasive and
wide-sweeping nets of conspiracy prosecutions. [
Footnote 17] The important considerations
of policy behind such warnings need not be again detailed.
See Jackson, J., concurring in
Krulewitch v. United
States, supra. It is these considerations of policy which
govern our holding today. As this case was tried, we have before us
a typical example of a situation where the Government,
Page 353 U. S. 405
faced by the bar of the three-year statute, is attempting to
open the very floodgates against which
Krulewitch warned.
We cannot accede to the proposition that the duration of a
conspiracy can be indefinitely lengthened merely because the
conspiracy is kept a secret, and merely because the conspirators
take steps to bury their traces, in order to avoid detection and
punishment after the central criminal purpose has been
accomplished.
By no means does this mean that acts of concealment can never
have significance in furthering a criminal conspiracy. But a vital
distinction must be made between acts of concealment done in
furtherance of the main criminal objectives of the conspiracy and
acts of concealment done after these central objectives have been
attained, for the purpose only of covering up after the crime.
Thus, the Government argues in its brief that,
"in the crime of kidnapping, the acts of conspirators in hiding
while waiting for ransom would clearly by planned acts of
concealment which would be in aid of the conspiracy to kidnap. So
here, there can be no doubt that . . . all acts of concealment,
whether to hide the identity of the conspirators or the action
theretofore taken, were unquestionably in furtherance of the
initial conspiracy. . . ."
We do not think the analogy is valid. Kidnappers in hiding,
waiting for ransom, commit acts of concealment in furtherance of
the objectives of the conspiracy itself, just as repainting a
stolen car would be in furtherance of a conspiracy to steal; in
both cases, the successful accomplishment of the crime necessitates
concealment. [
Footnote 18]
More closely analogous to our case would be conspiring kidnappers
who cover their traces after the main conspiracy is finally ended
--
i.e., after they have abandoned the kidnapped person
and then take care to escape detection. In the latter case, as
here, the acts of covering up can, by
Page 353 U. S. 406
themselves, indicate nothing more than that the conspirators do
not wish to be apprehended -- a concomitant, certainly, of every
crime since Cain attempted to conceal the murder of Abel from the
Lord.
We hold, therefore, that, considering the main objective of the
conspiracy to have been the obtaining of "no prosecution" rulings,
prosecution was barred by the three-year statute of limitations,
since no agreement to conceal the conspiracy after its
accomplishment was shown or can be implied on the evidence before
us to have been part of the conspiratorial agreement.
II
In view of how the case was submitted to the jury, we are also
unable to accept the Government's second theory for avoiding the
statute of limitations. This theory is (1) that the main objective
of the conspiracy was not merely to obtain the initial "no
prosecution" rulings in 1948 and 1949, but to obtain final immunity
for Gotham and Patullo from criminal tax prosecution; (2) that such
immunity was not obtained until 1952, when the statute of
limitations had run on the tax evasion cases which the petitioners
conspired to fix; [
Footnote
19] (3) that the conspiracy therefore did not end until 1952,
when this object was attained; (4) that the acts of concealment
within the indictment period were overt acts in furtherance of this
conspiracy; and (5) that the prosecution was thus timely. [
Footnote 20] In short, the
contention is that the agreement
Page 353 U. S. 407
to conceal was to protect the taxpayers, rather than the
conspirators, and, as such, was part of the main conspiracy, rather
than a subsidiary appendage to it, as under the Government's first
theory.
The Court of Appeals accepted this theory of the case in
affirming these convictions. It stated:
"What the fixers had to sell was freedom from criminal
prosecution for tax frauds. What the taxpayers bargained for was
protection from a tax evasion prosecution."
"
* * * *"
"This conspiracy is wholly unlike the ordinary illegal scheme,
in that the jury may well have inferred that the official
announcement that there would be no criminal prosecution of the
taxpayers
Page 353 U. S. 408
was merely the delivery of a substantial installment of what
appellants agreed to deliver for the huge sums paid. The six-year
Statute of Limitations . . . did not run in favor of the taxpayers
until some time after the commission of the overt acts relied upon.
In the interval, there was no assurance, other than continuing
efforts by Grunewald, Bolich, and the others, that the whole
nefarious business might not be brought to light, followed by the
revocation of the decision not to criminally prosecute the
taxpayers. This is a significant element in the proofs adduced by
the government, as concealment of the conspiratorial acts was
necessary not only to protect the conspirators from a conspiracy
prosecution, but also to protect the taxpayers from a tax evasion
prosecution."
233 F.2d at 564-565.
We find the legal theory of the Court of Appeals
unexceptionable. If the central objective of the conspiracy was to
protect the taxpayers from tax evasion prosecutions, on which the
statute of limitations did not run until 1952, and if the 1948 and
1949 "no prosecution" rulings were but an "installment" of what the
conspirators aimed to accomplish, then it is clear that the statute
of limitations on the conspiracy did not begin to run until 1952,
within three years of the indictment. [
Footnote 21]
Furthermore, we agree with the Court of Appeals that there is
evidence in this record which would warrant submission of the case
to the jury on the theory that the central object of the conspiracy
was not attained in 1948 and 1949, but rather was to immunize the
taxpayers completely from prosecution for tax evasion, and thus
continued into 1952. The many overt acts of concealment occurring
after 1949 could easily have been motivated at
Page 353 U. S. 409
least in part by the purpose of the conspirators to deliver the
remaining "installments" owing under the bargain -- to-wit, the
safeguarding of the continued vitality of the "no prosecution"
rulings. [
Footnote 22]
Furthermore, there is evidence showing that, from the beginning,
the aim of the scheme was not restricted to the merely provisional
and necessarily precarious "fixing" of the taxpayers' troubles
which was achieved in 1948 and 1949. [
Footnote 23] A jury might therefore
Page 353 U. S. 410
fairly infer that it was part of the conspiratorial agreement
that Grunewald and Bolich would make continuing efforts to
safeguard the fruits of the partial victories won in 1948 and 1949
by trying to immunize the "no prosecution" rulings from change. In
other words, we think a jury could infer from this evidence that
the conspirators were prepared and had agreed to engage in further
frauds and bribery if necessary in order to maintain in effect the
tentative rulings obtained in 1948 and 1949. [
Footnote 24]
Page 353 U. S. 411
If, therefore, the jury could have found that the aim of the
conspiratorial agreement was to protect the taxpayers from tax
prosecution, and that the overt acts occurring in the indictment
period were in furtherance of that aim, we would affirm. We do not
think, however, that we may safely assume that the jury so found,
for we cannot agree with the Court of Appeals' holding that this
theory of the case was adequately submitted to the jury.
The trial judge's charge on the problem of the scope and
duration of the conspiracy was as follows:
"You will recall that the indictment states, among other things,
that it was part of the conspiracy that the defendants and
co-conspirators would make"
"continuing efforts to avoid detection and prosecution by any
governmental body, executive, legislative, and judicial of tax
frauds perpetrated by the defendants and co-conspirators through
the use of any means whatsoever, including, but not limited to, . .
. the influencing, intimidating, and impeding of prospective
witnesses to refrain from disclosing the true facts."
"In other words, the indictment alleges that the conspiracy
comprehended within it a conspiracy to conceal the true facts from
investigation, should investigation thereafter eventuate. This is
an important element of the first count of the indictment which you
must take into consideration, inasmuch as the Statute of
Limitations of the charge of criminal conspiracy is three years,
and, unless the conspiracy was continuing to a period within three
years prior to the date of the indictment, October 25, 1954, and
some overt act was performed within that three-year period, the
crime, if any, alleged in the first count of the indictment would
be outlawed. It is the contention of the government that the
conspiracy did not end when the
Page 353 U. S. 412
taxpayers were advised that there would be no criminal
prosecution recommended by the Special Agent's office, but that an
integral part of the entire conspiracy was an agreement to conceal
the acts of the conspirators, and that, when thereafter an
investigation was started by Congress and by the Grand Jury in the
Eastern District of New York, the conspirators performed overt acts
in pursuance of the original conspiracy designed to conceal the
true facts; and that these acts occurred within three years prior
to the date of the indictment. On this issue, it will be necessary
for you to determine whether, beyond a reasonable doubt, you can
conclude that the conspiracy was of the nature described in the
first count of the indictment and comprehended an agreement to
conceal, and whether some overt act took place in the period of
three years prior to October 25, 1954, to carry out such purpose of
the conspiracy."
"
* * * *"
"To determine whether certain of the alleged overt acts were in
furtherance of the object of the conspiracy, you have to determine
the duration of the conspiracy. Did it end when the Pattullo
[
sic] Modes people and the Gotham Beef people received an
assurance of no prosecution from the Bureau of Internal Revenue, or
was a part of the conspiracy a continuing agreement to conceal the
acts done pursuant thereto? In determining whether a part of the
conspiracy was an agreement to continue to conceal the illegal acts
after their consummation, you may not imply that such an agreement
was part of the conspiracy. You would have to find from the
evidence of the acts and declarations of the co-conspirators that
there was an understanding or agreement to conceal the conspiracy.
If you find that
Page 353 U. S. 413
such an agreement or understanding to conceal the conspiracy was
not a part of the conspiracy to defraud the government, but no more
than an afterthought brought to the surface when the
co-conspirators were confronted with the Grand Jury and King
Committee investigations, then you must find, as a matter of law,
that the defendants are not guilty of the crime charged in the
first count of the indictment. If you find that the evidence shows
beyond a reasonable doubt that, as a part of a conspiracy to
defraud the government, there was an agreement or understanding to
conceal the illegal acts, and that this too was an objective or
part of the conspiracy, then you may find that such understanding
was a part of the conspiracy. However, you must additionally
determine whether this objective of the conspiracy was known to the
defendants. If this objective was known originally by only part of
the conspirators, but thereafter, during the existence of the
conspiracy, the scope of the conspiracy was extended so as to
include such an agreement to conceal, and if you find that some of
the defendants did not know of the expansion to include the
agreement to conceal, you may not impute to them the knowledge of
their co-conspirators, and they could not be found guilty of the
crime charged in Count One."
We are constrained to agree with Judge Frank that this charge
did not adequately enlighten the jury as to what they would have to
find in order to conclude that the conspiracy was still alive after
October 25, 1951. For the charge as given failed completely to
distinguish between concealment in order to achieve the central
purpose of the conspiracy (that is, the immunization of the
taxpayers from tax evasion prosecution), and concealment intended
solely to cover up an already executed crime --
Page 353 U. S. 414
(that is, the obtaining of the "no prosecution" rulings). The
jury was never told that these overt acts of concealment could be
taken as furthering the conspiracy only if the basic criminal aim
of the conspiracy was not yet attained in 1949. On the charge as
given, the jury might easily have concluded that the petitioners
were guilty even though they found merely (1) that the central aim
of the conspiracy was accomplished in 1949, and (2) that the
subsequent acts of concealment were motivated exclusively by the
conspirators' fear of a conspiracy prosecution. As far as we know,
therefore, the present convictions were based on the impermissible
theory discussed in the first part of this opinion -- namely, that
a subordinate agreement to conceal the conspiracy continued after
the central aim of the conspiracy had been accomplished.
Furthermore, if the convictions were based on a finding that the
overt acts of concealment were done with the single intention of
protecting the conspirators' own interests, then it is irrelevant
that these acts in fact happened to have the effect also of
protecting the taxpayers against revocation of the "no prosecution"
rulings. For overt acts in a prosecution such as this one are
meaningful only if they are within the scope of the conspiratorial
agreement. If that agreement did not, expressly or impliedly,
contemplate that the conspiracy would continue in its efforts to
protect the taxpayers in order to immunize them from tax
prosecution, then the scope of the agreement cannot be broadened
retroactively by the fact that the conspirators took steps after
the conspiracy which incidentally had that effect.
We thus find that the judge's charge left it open for the jury
to convict even though they found that the acts of concealment were
motivated purely by the purpose of the conspirators to cover up
their already accomplished crime. And this, we think, was fatal
error. For the facts in this record are equivocal. The jury might
easily have
Page 353 U. S. 415
concluded that the aim of the conspiracy was accomplished in
1949, and that the overt acts of concealment occurring after that
date were done pursuant to the alleged conspiracy to hide the
conspirators. As we have said, a conviction on such a theory could
not be sustained. Under such circumstances, therefore, it was
essential for the judge to charge clearly and unequivocally that,
on these facts, the jury could not infer a continuing conspiracy to
conceal the conspiracy, whether actual or implied. Further, it was
incumbent on the judge to charge that, in order to convict, the
jury would have to find that the central aim of the conspiracy was
to immunize the taxpayers from tax prosecution, that this objective
continued in being through 1951, and that the overt acts of
concealment proved at trial were at least partly calculated to
further this aim.
Since, under the judge's charge, the convictions on Count 1
might have rested on an impermissible ground, we conclude that they
cannot stand, and the petitioners must be given a new trial as to
this Count.
III
What we have held as to the statute of limitations disposes of
the conviction of the three petitioners under Count 1, but does not
touch Halperin's conviction on Counts 5, 6, and 7 for violating 18
U.S.C. § 1503. [
Footnote 25]
As to those Counts, Halperin, who took the stand in his own defense
at the trial, contends (a) that the Government was improperly
allowed to cross-examine him as to the assertion of his Fifth
Amendment privilege before a grand jury investigating this
conspiracy, before which he had been called as a witness, [
Footnote 26] and (b) that the
evidence did
Page 353 U. S. 416
not justify his conviction on these Counts. For the reasons
given hereafter, we think that the first contention is well taken,
but that the second one is untenable.
In 1952, Halperin was subpoenaed before a Brooklyn grand jury
which was investigating corruption in the Bureau of Internal
Revenue. Testimony had already been received by the grand jury from
the Patullo and Gotham taxpayers, which linked Halperin with the
tax fixing ring. Halperin was asked a series of questions before
the grand jury, including, among others, such questions as whether
he knew Max Steinberg (an employee of the Bureau of Internal
Revenue and a co-defendant in the charge under Count 1); whether he
knew Grunewald; whether he had held and delivered escrow money paid
to Grunewald by Gotham after the "no prosecution" ruling; and
whether he had phoned Grunewald to arrange a meeting between one of
his own associates and Bolich. Halperin declined to answer any of
these questions on the ground that the answers would tend to
incriminate him, and that the Fifth Amendment therefore entitled
him not to answer. He repeatedly insisted before the grand jury
that he was wholly innocent, and that he pleaded his Fifth
Amendment privilege only on the advice of counsel that answers to
these questions might furnish evidence which could be used against
him, particularly when he was not represented by counsel and could
not cross-examine witnesses before the grand jury.
When the Government cross-examined Halperin at the trial, some
of the questions which he had been asked before the grand jury were
put to him. [
Footnote 27] He
answered
Page 353 U. S. 417
each question in a way consistent with innocence. The Government
was then allowed, over objection, to bring out in cross-examination
that petitioner had pleaded his privilege before the grand jury as
to these very questions. Later, in his charge to the jury, the
trial judge informed them that petitioner's Fifth Amendment plea
could be taken only as reflecting on his credibility, and that no
inference as to guilt or innocence could be drawn therefrom as to
Halperin or any co-defendant. [
Footnote 28]
Page 353 U. S. 418
In thus allowing this cross-examination, the District Court
relied on
Raffel v. United States, 271 U.
S. 494, where this Court held that a defendant's failure
to take the stand at his first trial to deny testimony as to an
incriminating admission could be used on cross-examination at the
second trial, where he did take the stand, to impugn the
credibility of his denial of the same admission. In upholding the
District Court here, the Court of Appeals likewise relied on
Raffel, and also on one of its own earlier decisions.
[
Footnote 29] Halperin
attacks these rulings on these principal grounds: (a)
Raffel is distinguishable from the present case; (b) if
Raffel permitted this cross-examination, then the trial
court erred in refusing to charge, as Halperin requested, that "an
innocent man may honestly claim that his answers may tend to
incriminate him"; (c) in any case,
Raffel has impliedly
been overruled by
Johnson v. United States, 318 U.
S. 189; and (d) compelling Halperin to testify before
the grand jury, when he had already been marked as a putative
defendant, violated his constitutional rights, so that, by analogy
to the rule of
Weeks v. United States, 232 U.
S. 383, his claim of privilege could in no event be used
against him. We find that, in the circumstances presented here,
Raffel is not controlling, and that this cross-examination
was not permissible.
It is, of course, an elementary rule of evidence that prior
statements may be used to impeach the credibility of a criminal
defendant or an ordinary witness. But this can be done only if the
judge is satisfied that the prior statements are in fact
inconsistent. 3 Wigmore, Evidence,
Page 353 U. S. 419
§ 1040. And so the threshold question here is simply whether, in
the circumstances of this case, the trial court erred in holding
that Halperin's plea of the Fifth Amendment privilege before the
grand jury involved such inconsistency with any of his trial
testimony as to permit its use against him for impeachment
purposes. [
Footnote 30] We
do not think that
Raffel is properly to be read either as
dispensing with the need for such preliminary scrutiny by the judge
or as establishing as a matter of law that such a prior claim of
privilege with reference to a question
Page 353 U. S. 420
later answered at the trial is always to be deemed to be a prior
inconsistent statement, irrespective of the circumstances under
which the claim of privilege was made. The issue decided in
Raffel came to the Court as a certified question in quite
an abstract form, [
Footnote
31] and was really centered on the question whether a defendant
who takes the stand on a second trial can continue to take
advantage of the privilege asserted at the first trial. This Court
held, in effect, that, when a criminal defendant takes the stand,
he waives his privilege completely and becomes subject to
cross-examination impeaching his credibility just like any other
witness:
"His waiver is not partial; having once cast aside the cloak of
immunity, he may not resume it at will whenever cross-examination
may be inconvenient or embarrassing."
The Court, in
Raffel, did not focus on the question
whether the cross-examination there involved was in fact probative
in impeaching the defendant's credibility. In other words, we may
assume that, under
Raffel, Halperin in this case was
subject to cross-examination impeaching his credibility just like
any other witness, and that his Fifth Amendment plea before the
grand jury could not carry over any form of immunity when he
voluntarily took the stand at the trial. This does not, however,
solve the question whether, in the particular circumstances of this
case, the cross-examination should have been excluded because its
probative value on the issue of Halperin's credibility was so
negligible as to be far outweighed by its possible impermissible
impact on the jury. [
Footnote
32] As we consider that, in the
Page 353 U. S. 421
circumstances of the present case, the trial court, in the
exercise of a sound discretion, should have refused to permit this
line of cross-examination, we are not faced with the necessity of
deciding whether
Raffel has been stripped of vitality by
the later
Johnson case,
supra, or of otherwise
reexamining
Raffel.
We need not tarry long to reiterate our view that, as the two
courts below held, no implication of guilt could be drawn from
Halperin's invocation of his Fifth Amendment privilege before the
grand jury. Recent reexamination of the history and meaning of the
Fifth Amendment has emphasized anew that one of the basic functions
of the privilege is to protect innocent men. Griswold, The Fifth
Amendment Today, 9-30, 53-82.
"Too many, even those who should be better advised, view this
privilege as a shelter for wrongdoers. They too readily assume that
those who invoke it are either guilty of crime or commit perjury in
claiming the privilege."
Ullmann v. United States, 350 U.
S. 422,
350 U. S. 426.
See also Slochower v. Board of Higher Education,
350 U. S. 551 at
350 U. S.
557-558, when, at the same Term, this Court said: "The
privilege serves to protect the innocent who otherwise might be
ensnared by ambiguous circumstances."
When we pass to the issue of credibility, we deem it evident
that Halperin's claim of the Fifth Amendment privilege before the
Brooklyn grand jury in response to questions which he answered at
the trial was wholly consistent with innocence. Had he answered the
questions put to him before the grand jury in the same way he
subsequently answered them at trial, this nevertheless
Page 353 U. S. 422
would have provided the Government with incriminating evidence
from his own mouth. For example, had he stated to the grand jury
that he knew Grunewald, the admission would have constituted a link
between him and a criminal conspiracy, and this would be true even
though he was entirely innocent and even though his friendship with
Grunewald was above reproach. There was, therefore, as we see it,
no inconsistency between Halperin's statement to the grand jury
that answering the question whether he knew Grunewald would tend to
furnish incriminating evidence against him and his subsequent
testimony at trial that his acquaintance with Grunewald was free of
criminal elements. And the same thing is also true, as we see it,
as to his claim of privilege with respect to the other questions
asked him before the grand jury and his answers to those same
questions when they were put to him at the trial. These conclusions
are fortified by a number of other considerations surrounding
Halperin's claim of privilege:
First, Halperin repeatedly insisted before the grand jury that
he was innocent and that he pleaded his Fifth Amendment privilege
solely on the advice of counsel.
Second, the Fifth Amendment claim was made before a grand jury
where Halperin was a compelled, and not a voluntary, witness; where
he was not represented by counsel; where he could summon no
witnesses; and where he had no opportunity to cross-examine
witnesses testifying against him. These factors are crucial in
weighing whether a plea of the privilege is inconsistent with later
exculpatory testimony on the same questions, for the nature of the
tribunal which subjects the witness to questioning bears heavily on
what inferences can be drawn from a plea of the Fifth Amendment.
See Griswold,
supra, at 62. Innocent men are more
likely to plead the privilege in secret proceedings, where they
testify
Page 353 U. S. 423
without advice of counsel and without opportunity for
cross-examination, than in open court proceedings, where
cross-examination and judicially supervised procedure provide
safeguards for the establishing of the whole, as against the
possibility of merely partial, truth.
Finally, and most important, we cannot deem Halperin's plea of
the Fifth Amendment to be inconsistent with his later testimony at
the trial because of the nature of this particular grand jury
proceeding. For, when Halperin was questioned before the grand
jury, he was quite evidently already considered a potential
defendant. The taxpayers whose cases had been "fixed" by the
conspiratorial ring had already testified before the grand jury,
and they gave there largely the same evidence as they did later at
trial. The scheme was thus in essence already revealed when
Halperin was called to testify. Under these circumstances, it was
evident that Halperin was faced with the possibility of an early
indictment, and it was quite natural for him to fear that he was
being asked questions for the very purpose of providing evidence
against himself. It was thus quite consistent with innocence for
him to refuse to provide evidence which could be used by the
Government in building its incriminating chain. For many innocent
men who know that they are about to be indicted will refuse to help
create a case against themselves under circumstances where lack of
counsel's assistance and lack of opportunity for cross-examination
will prevent them from bringing out the exculpatory circumstances
in the context of which superficially incriminating acts
occurred.
We are not unmindful that the question whether a prior statement
is sufficiently inconsistent to be allowed to go to the jury on the
question of credibility is usually within the discretion of the
trial judge. But where such evidentiary matter has grave
constitutional overtones, as
Page 353 U. S. 424
it does here, we feel justified in exercising this Court's
supervisory control to pass on such a question. This is
particularly so because, in this case, the dangers of impermissible
use of this evidence far outweighed whatever advantage the
Government might have derived from it if properly used. If the jury
here followed the judge's instructions, namely, that the plea of
the Fifth Amendment was relevant only to credibility, then the
weight to be given this evidence was less than negligible, since,
as we have outlined above, there was no true inconsistency
involved; it could therefore hardly have affected the Government's
case seriously to exclude the matter completely. On the other hand,
the danger that the jury made impermissible use of the testimony by
implicitly equating the plea of the Fifth Amendment with guilt is,
in light of contemporary history, far from negligible. Weighing
these factors, therefore, we feel that we should draw upon our
supervisory power over the administration of federal criminal
justice in order to rule on the matter.
Cf. McNabb v. United
States, 318 U. S. 332.
We hold that, under the circumstances of this case, it was
prejudicial error for the trial judge to permit cross-examination
of petitioner on his plea of the Fifth Amendment privilege before
the grand jury, and that Halperin must therefore be given a new
trial on Counts 5, 6, and 7.
Finally, we find no substance to Halperin's contention that he
was, in effect, convicted for advising, as a lawyer, some of the
witnesses before the grand jury that they had a right to plead
their Fifth Amendment privilege. The evidence against Halperin
under these Counts was quite sufficient to make out a case for
submission to the jury.
For the reasons given, we hold that the judgments below must be
reversed, and the cases remanded to the District Court for further
proceedings consistent with this opinion.
It is so ordered.
Page 353 U. S. 425
* Together with No. 184,
Halperin v. United States, and
No. 186,
Bolich v. United States, also on certiorari to
the same court.
[
Footnote 1]
This section provides:
"If two or more persons conspire either to commit any offense
against the United States or to defraud the United States, or any
agency thereof, in any manner or for any purpose, and one or more
of such persons do any act to effect the object of the conspiracy,
each shall be fined not more than $10,000 or imprisoned not more
than five years, or both."
[
Footnote 2]
18 U.S.C. § 1503, provides, in relevant part:
"Whoever corruptly . . . endeavors to influence, intimidate, or
impede any witness, in any court of the United States or before any
United States commissioner or other committing magistrate, or any
grand or petit juror, or officer in or of any court of the United
States . . . in the discharge of his duty . . . or corruptly . . .
influences, obstructs, or impedes, or endeavors to influence,
obstruct, or impede, the due administration of justice, shall be
fined not more than $5,000 or imprisoned not more than five years,
or both."
Grunewald and Bolich were acquitted on these Counts.
[
Footnote 3]
Paragraph 7 of the indictment alleged:
"It was a part of the conspiracy that the defendants and
co-conspirators would make continuing efforts to avoid detection
and prosecution by any governmental body . . . of tax frauds
perpetrated by the defendants and co-conspirators, through the use
of any means whatsoever, including but not limited to, bribery,
improper influence and corruption of government employees, the
giving of false testimony, [etc.]. . . ."
Paragraph 13 alleged:
"It was further a part of the conspiracy that the defendants and
co-conspirators at all times would misrepresent, conceal, and hide
and cause to be misrepresented, concealed and hidden, the acts done
pursuant to and the purposes of said conspiracy."
[
Footnote 4]
233 F.2d at 559-562.
[
Footnote 5]
A "no prosecution" ruling is an internal decision by the
investigative branch of the Bureau of Internal Revenue not to press
criminal charges against a taxpayer.
[
Footnote 6]
The payments were made in cash. In order to raise the money and
leave no traces, the taxpayers made unrecorded sales, the profits
of which were again unreported income. Further large fees were paid
to Halperin and his associates.
[
Footnote 7]
Petitioner Bolich was also convicted on Count 2 of the
indictment, which charged him and two other Bureau of Internal
Revenue employees with conspiracy in violation of 26 U.S.C. §
4047(e)(4). He was sentenced to three years' imprisonment and a
$5,000 fine on this Count, the prison sentence to run concurrently
with the five-year sentence on Count 1. The Court of Appeals held
that both Counts related to the same conspiracy, and set aside the
separate fine on Count 2.
[
Footnote 8]
The governing statute was 18 U.S.C. § 3282, which provided:
"Except as otherwise expressly provided by law, no person shall
be prosecuted, tried, or punished for any offense, not capital,
unless the indictment is found . . . within three years next after
such offense shall have been committed."
[
Footnote 9]
On September 1, 1954, the statute of limitations was amended to
provide for a five-year limitation period. 68 Stat. 1145, 18 U.S.C.
(Supp. III) § 3282. Since the amending statute was, by its terms,
made applicable to offenses not barred on its effective date, that
is, September 1, 1954, it would seem that, in fact, the crucial
date here is September 1, 1951, rather than October 25; in other
words, if the conspiracy was still alive after September 1, it was
not barred. However, the case was tried on the theory that October
25 was the crucial date, and we so treat it in this opinion. The
error, of course, was favorable to the petitioners, and was
therefore harmless. On the other hand, since we hold that
petitioners must have a new trial, the error may be corrected.
[
Footnote 10]
See, in general, Lutwak v. United States, 344 U.
S. 604;
Krulewitch v. United States,
336 U. S. 440;
Bollenbach v. United States, 326 U.
S. 607;
McDonald v. United States, 89 F.2d 128;
United States v. Manton, 107 F.2d 834; Cousens, Agreement
as an Element in Conspiracy, 23 Va.L.Rev. 898; Sayre, Criminal
Conspiracy, 35 Harv.L.Rev. 393; Note, 62 Harv.L.Rev. 276; Note, 56
Col.L.Rev. 1216.
[
Footnote 11]
In support of this theory, petitioners point to evidence showing
that the administrative practice of the Bureau of Internal Revenue
was that only recommendations to prosecute would be reviewed at a
higher echelon, whereas a determination of no prosecution would,
for all practical purposes, end the case. They also emphasize that
payment to Grunewald was made under the terms of an escrow which
released the money when the "no prosecution" rulings came down.
Petitioners further urge that the acts of concealment occurring
after 1949 show, at most, that a new and separate agreement to
conceal was entered into after 1949, an agreement which was not
charged in the indictment.
Cf. United States v. Siebricht,
59 F.2d 976. In view of our disposition of the case, we need not
deal with this contention.
[
Footnote 12]
See n 3,
supra.
[
Footnote 13]
336 U.S. at
336 U. S.
443-444.
[
Footnote 14]
Id. at
336 U. S.
455-456.
[
Footnote 15]
See 336 U.S. at
336 U. S. 444,
336 U. S.
455-458.
[
Footnote 16]
One might cite as an example Grunewald's attempt at influencing
his secretary not to talk to the grand jury, accompanied by an
offer to "pay her expenses." Under the Government's
Krulewitch theory, the argument would have been (in Mr.
Justice Jackson's words) that the "law will impute to the
confederates a continuing conspiracy to defeat justice," and that
therefore the other confederates are "bound by another's
unauthorized and unknown . . . bribery of a juror or witness." But
no different result is achieved by saying that the attempted bribe
of the witness is evidence from which one can infer an "actual"
conspiracy to "defeat justice." In both cases, the essential
missing element is a showing that the act was done in furtherance
of a prior criminal agreement among the conspirators.
[
Footnote 17]
Delli Paoli v. United States, 352 U.
S. 232;
Lutwak v. United States, supra; Krulewitch
v. United States, supra; Bollenbach v. United States,
326 U. S. 607.
[
Footnote 18]
See Rettich v. United States, 84 F.2d 118;
McDonald
v. United States, 89 F.2d 128.
[
Footnote 19]
The tax evasion cases were governed by a six-year statute of
limitations, 26 U.S.C. (1940 ed.) § 3748, which began to run when
the last return, pertaining to the year 1946, was filed by the
taxpayers.
[
Footnote 20]
The Government also suggests a further theory under which this
conspiracy could be deemed to have lasted into the indictment
period. Under this theory, the central aim of the conspiracy was
not specifically to "fix" the tax troubles of Gotham and Patullo,
but to engage in the continuing business of fixing any and all tax
fraud cases. If this were the aim of the conspiracy, acts of
concealment could have been in furtherance of this aim by enabling
the ring to stay in business so that it could get new cases.
Evidence supporting this theory, says the Government, is that, in
1950, after the "no prosecution" rulings in the Patullo and Gotham
cases, Halperin engaged in negotiations with another firm which was
in tax difficulties. Although these negotiations came to nothing
due to disagreement about the fee to be paid to the conspirators,
the incident is presented as evidence that the conspirators were
actively soliciting future tax clients in 1950, and were thus still
"in business."
We cannot accept this theory of the Government. The trouble is
not only that the theory was never submitted to the jury, but that
no overt act done to further the purpose of engaging in "new"
business was charged or proved to have occurred after October 25,
1951. If one of the purposes of the conspiracy was to engage in the
business of fixing tax cases generally, it must be deemed to have
been abandoned in 1951, when investigations of the petitioners
started in Congress, since the 1951 and 1952 activities of the
conspirators consisted merely of covering up old ventures, rather
than seeking new ones, and since there is no indication that there
was an intent to resume operations after the investigations had
ended. Indeed, upon the oral argument, the Government seemed to
abandon this theory.
[
Footnote 21]
The indictment was clearly sufficient to cover submission of
this theory to the jury.
See n 3,
supra.
[
Footnote 22]
One might cite as a typical example an incident in the record
occurring in November, 1949, 10 months after the "no prosecution"
ruling was handed down in the Patullo case. The Special Agent who
had been working on the case wrote a final report on it which
stated that Patullo was not prosecuted solely because of Bolich's
decision. This report was sent to Bolich, who thereupon called the
Chief of the Conference Section and asked him to write an
explanatory memorandum on the case so as to "take a little heat off
the situation." This attempt to "doctor" the report might easily
have been motivated not only by fear for himself, but by a purpose
to safeguard the "no prosecution" ruling from change in order to
maintain the immunity of the taxpayers.
[
Footnote 23]
The negotiations between Halperin and his associates and the
taxpayers were never very specific as to what exactly was to be
accomplished. The tenor of the discussions was that, if the
taxpayers would hire the mysterious "influential" man in
Washington, the matter "would be ended," the "prosecution end of
the case" would be avoided, the matter would be settled "in a civil
way, without criminal prosecution." In the same tenor, the
accountant of Gotham Beef testified that
"nothing at all was to be paid unless the criminal prosecution
had been eliminated. It was further understood that they were not
at all concerned with the amount of the tax that might result by
way of assessment, but it was either that they were completely
successful in eliminating criminal prosecution . . . or there would
be no fee at all."
In other words, there is little indication that it was the
specific and narrow end of obtaining the "no prosecution" rulings
which was to be the
quid pro quo.
This is further buttressed by the fact that the taxpayers were
well aware of the precarious nature of the 1948 and 1949 rulings;
it is quite clear that they realized that this did not "end" the
danger of criminal prosecution. Thus, the Patullo taxpayers were
aware that the continued investigation of their books for the
purposes of civil tax liability exposed them to constant danger of
"tipping the applecart." They were warned to "keep their mouths
shut," and a further payment of $25,000 was made for the "boys in
New York" so that no one would "raise a fuss about the phony deal
that had been put through." Another Patullo officer testified that,
after the "no prosecution" ruling,
"we still were not at ease about the thing. We knew that we were
elated over the results, but we still were worried about it. There
was cooperation to take care of. We had to make this payoff for the
New York boys. We were not through with it at that time. We never
knew when something else was going to come up. We weren't through
at all. . . . For two years after that, we still weren't through
with the thing."
And, referring to the payment for the "New York boys" in
1949:
"[W]e never felt too sure about anything, because the civil
settlement still had to be made, and we knew there were people that
had to go through it and pass on it and everything, and, while this
was going on, we were told that we would have to get up some more
money."
A jury could thus easily infer that the conspirators' function
did not end in January, 1949, and that the conspiratorial agreement
contemplated further efforts to immunize the taxpayers from tax
prosecution.
[
Footnote 24]
It should be mentioned that the Court of Appeals was unanimous
in finding that there was sufficient evidence in the record to
warrant the submission of the case to the jury on the theory that
the central objectives of the conspiracy were not achieved until
the statute of limitations ran on the tax evasion charges. Judge
Frank, while dissenting on the ground that the charge to the jury
was inadequate in putting the case to the jury on this basis -- a
view which we share,
see infra -- agreed that, under a
proper charge, the jury might infer that the conspiracy was still
alive through 1951.
See 233 F.2d at 592-596.
[
Footnote 25]
See n 2,
supra.
[
Footnote 26]
Grunewald and Bolich also make this contention on their own
behalf.
[
Footnote 27]
The questions were: (1) Whether petitioner held escrow money
which was subsequently delivered to Grunewald; (2) whether
petitioner knew Grunewald; (3) whether petitioner made a telephone
call to Grunewald relative to an appointment between Bolich and one
Davis, a member of the conspiracy; (4) whether petitioner had filed
a power of attorney in the Glover case; (5) whether he had ever met
one Oliphant, an official in the Treasury; (6) whether he knew
Steinberg; (7) whether he knew Tobias, the accountant of Gotham
Beef; (8) whether he had ever met Grunewald in the Munsey Building
in Washington.
[
Footnote 28]
The charge as to this point was as follows:
"During the cross examination of one of the defendants, the
government questioned the defendant as to his previous statements
before the Brooklyn Grand Jury in which he refused to answer
certain questions on the ground that answers to them might tend to
incriminate him. These questions related to matters similar to
those to which the defendant testified at this trial when he took
the stand. No witness is required to take the stand, or required to
give testimony that might tend to incriminate him; but when a
defendant takes the stand in his own defense at a trial, it is
proper to interrogate him as to previous statements which he may
have made under oath concerning the same matter, including his
assertion of his constitutional privilege to refuse to testify as
to those matters before a grand jury. You may use this evidence of
a defendant's prior assertions of the Fifth Amendment for the sole
purpose of ascertaining the weight you choose to give to his
present testimony with respect to the same matters upon which he
previously invoked his privilege."
"The defendant had the right of asserting the Fifth Amendment
when he appeared before the Grand Jury, and I charge you that you
are not to draw any inference whatsoever as to the guilt or
innocence of the defendant in this case by reason of the fact that
he chose to assert his unquestioned right to invoke the Fifth
Amendment on that previous occasion. However, it was proper for the
Government to question the defendant with respect to his previous
invocation of the Fifth Amendment, but you may consider this
evidence of his prior assertions of the Fifth Amendment only for
the purpose of ascertaining the weight you choose to give to his
present testimony with respect to the same matters upon which he
previously asserted his constitutional privilege. It is not to be
considered in a determination of the guilt or innocence of any
co-defendant."
[
Footnote 29]
United States v. Gottfried, 165 F.2d 360, 367.
[
Footnote 30]
When the trial court first ruled that the Government could
cross-examine as to petitioner's Fifth Amendment plea, it did not
do so on the grounds of inconsistency reflecting on credibility. In
fact, the implication to be drawn from the record is that the court
at that time felt that the jury might use this evidence for any
purpose at all, including the drawing of inferences as to guilt or
innocence. When the Government first embarked on this method of
cross-examination, the judge overruled objections in these
words:
"The Court: I know the Government's position. As I see it, Mr.
Corbin [a defense attorney], no witness can be compelled to testify
against himself. The witness is called before the grand jury and
the answer was, 'I refuse to answer something on the ground that if
I answer that question it will incriminate me.'"
"Mr. Corbin: Tend to incriminate."
"The Court: Or tend to incriminate. A witness can make that
statement. No witness has to take the witness stand, as I
understand the law, and, if a witness has so stated, then he could
not be compelled to take the stand here, but if a witness
voluntarily takes the stand and is asked in a previous proceeding
did you say any testimony on this subject would incriminate you,
that can be considered by the jury for such benefit or such worth
as the jury may want to give it."
When the defendants asked that, at the very least, the use of
this evidence be restricted to the question of credibility, the
judge contented himself with asking for a memorandum of law on the
subject. Thus, although later, in the charge to the jury, the
matter was specifically restricted to the issue of credibility,
there was no inquiry by the judge at the time of the initial
admission of this evidence as to whether a sufficient showing of
inconsistency had been made.
[
Footnote 31]
The certified question was:
"Was it error to require the defendant, Raffel, offering himself
as a witness upon the second trial, to disclose that he had not
testified as a witness in his own behalf upon the first trial?"
271 U.S. at
217 U. S.
496.
[
Footnote 32]
In
Raffel, this Court assumed that the defendant's
failure to testify at the first trial could not be used as evidence
of guilt in the second trial, 271 U.S. at
271 U. S. 497.
The Court further stated that
"the trial judge might appropriately instruct the jury that the
failure of the defendant to take the stand in his own behalf is
not, in itself, to be taken as an admission of the truth of the
testimony which he did not deny."
As already indicated, p.
353 U. S. 418,
supra, here, the trial judge refused to charge that "an
innocent man may honestly claim that his answers may tend to
incriminate him."
MR. JUSTICE BLACK, with whom THE CHIEF JUSTICE, MR. JUSTICE
DOUGLAS, and MR. JUSTICE BRENNAN join, concurring.
I concur in the reversal of these cases for the reasons given in
the Court's opinion, with one exception.
In No. 184, the petitioner, Halperin, appeared before a grand
jury in response to a subpoena. There, he declined to answer
certain questions, relying on the provision of the Fifth Amendment
that "No person . . . shall be compelled in any criminal case to be
a witness against himself."
Later at his trial, Halperin took the stand to testify in his
own behalf. On cross-examination, the prosecuting attorney asked
him the same questions that he had refused to answer before the
grand jury. This time, Halperin answered the questions; his answers
tended to show that he was innocent of any wrongdoing. The
Government was then permitted, over objection, to draw from him the
fact that he had previously refused to answer these questions
before the grand jury on the ground that his answers might tend to
incriminate him.
At the conclusion of the trial, the judge instructed the jury
that Halperin's claim of his constitutional privilege not to be a
witness against himself could be considered in determining what
weight should be given to his testimony -- in other words, whether
Halperin was a truthful and trustworthy witness. I agree with the
Court that use of this claim of constitutional privilege to reflect
upon Halperin's credibility was error, but I do not, like the
Court, rest my conclusion on the special circumstances of this
case. I can think of no special circumstances that would justify
use of a constitutional privilege to discredit or convict a person
who asserts it. The value of constitutional privileges is largely
destroyed if persons can be penalized for relying on them. It seems
peculiarly
Page 353 U. S. 426
incongruous and indefensible for courts which exist and act only
under the Constitution to draw inferences of lack of honesty from
invocation of a privilege deemed worthy of enshrinement in the
Constitution. To the extent that approval of such a rule in
Raffel v. United States, 271 U. S. 494, has
vitality after
Johnson v. United States, 318 U.
S. 189,
318 U. S.
196-199, I think the
Raffel case should be
explicitly overruled.