Earl Warren: Mr. Davis.
John F . Davis: Mr. Chief Justice, if the Court please. In the petitioner's reply brief, it is stated at page 9 and 10 that the Government has grossly misstated the procedural settings in which the question of improper joinder arises. This is enlarged upon on the following page. I assume that an accusation for that kind is not likely made and rather, the point is, itself, in part and I think it has to be responded to, if only to give the Court the citations in the records which we rely upon in making the statement which we made. The Court will have to look at the record to know whether the Government has grossly misstated the procedural setting, so -- and I don't think that it is good use of time to do so during the argument. If I may, I will give the page references in the printed records, which sustain the position, which we've taken. Page 11 (a), page 19 (a), page 21 (a).
William J. Brennan, Jr.: That says, whether the motion was --
John F . Davis: Whether them -- that's right. I -- I think it is not important to argue the point on its merits because I can see that the Court has the power to do justice and see that the fair trial has given whether a motion is made or not, but when the statement like this is made in -- in the counsel's brief, I assume that it's -- it should be replied to. There was, by the way, a motion for new trial made after the verdict. They renewed their -- at that time, they renewed their motion for judgment and made a motion for new trial, but there was no motion before the verdict. Now, in a case such as this, the theories of law in the pleadings and precedents, I think, I'm pretty useless unless they are applied to the facts of the particular case. I think it is futile to argue about improper joinder without reference to the nature of the transactions, which are here involved. But basically, the question is whether or not, these petitioners received a fair trial when they were tried together in spite of the fact that the conspiracy count was found not to be sufficiently supported to go to the jury. I think the best starting point in this case is to look at the indictments which are reprinted at page 5 (a), which is repeated to 5 (a) to 7 (a) of the -- of the record. The indictments are simple indictment in four counts, the first three of these counts charge the substantive effect of transporting and causing to the be transported in -- in interstate commerce, goods -- stolen goods to a value in excess of $5,000. And those charged in the first count are the three Stracuzzas, Anthony, Mario and Dorothy together with the petitioner -- one of the petitioner -- two of the petitioners here, Max and Norman Schaffer, who maintained a clothing store in Lebanon, Pennsylvania. The second count is identical with the first, except that the owner of the store who received the goods was Benjamin Marco and the third count, again is identical with the first two, except that the Hyman Karp is the store owner who had received the stolen goods. The fourth count was the conspiracy count which tied all of them together as a -- as a general conspiracy and as to which the Court found that there was not sufficient evidence to go the jury. On page 8 (a) is a second indictment, which also charges conspiracy, this time a conspiracy to steal goods from interstate commerce and -- but there is only a conspiracy charge here and this indictment was dismissed at the same time that the count on conspiracy in the first indictment was dismissed and it really raises no different questions. Now, the evidence in this case shows that the Stracuzzas were engaged in buying stolen property from truck drivers in New York City and they were selling this property from a establishment they maintained in New York City to the owners of clothing stores, operated by the two Schaffers in Lebanon, Pennsylvania, by Mr. Karp in Fall River, Massachusetts and by Mr. Marco in Bluefield, West Virginia. The evidence showed that these purchases must have known that the merchandise they received was stolen. They contracted to buy it at a predetermined percentage of its wholesale price either 55% or 60% or 65% as the case may be. The Stracuzzas reshipped to these buyers in interstate commerce, in lots, each one of which was less than $5,000 in value. However, during the period of two and a half months, which is covered by this indictment, each purchaser purchased more than $5,000 dollars worth of -- of property. And this is specifically stipulated by each one of the defendants at the trial, example form of the stipulation appearing on page 21 (a) of the record, where it is specifically stated that the aggregate value of the property shipped to the Schaffers was in excess of $5,000. Actually, the record shows that the Schaffers received something like $19,000 of property, that Mr. Karp received $17,000, and that Mr. Marco received about $23,000 worth of property. I think that the order of the presentation of proof is significant in this case, in order to determine whether or not a severance should've been ordered. The nature of the proof was this. First, Anthony Stracuzza, who had pleaded guilty, testified for the Government and he described the overall nature of the entire transaction showing that the goods were stolen and received by him and his brother and was sold to these individual store owners, with no attempt being made to -- to hide the -- the source of the -- of the goods. His testimony and cross-examination, covered about a week of time. Since he was an accomplice, he was more than an accomplice, he was really the heart of the whole transaction and was far from a trustworthy person, the Government felt that it was necessary to substantiate his testimony. And it proceeded to do so with evidence from FBI agents who had kept his place under surveillance and who had also checked the receipt of the goods in the various stores. And was also substantiated by evidence from the transporting agencies who testified as to the property being stolen from them, however, the evidence as introduced, showed little or no relationships between the individual petitioners who are here and on that basis, the judge -- the trial judge determined at the end of the Government's case, that the Government had not made out an overall conspiracy. And he took that account away from -- from the -- from the jury and submitted the remainder of the case to the jury. At that time, there was a discussion as to whether or not, it was possible for the jury to distinguish the evidence between the individual dependents and the judge was very clear in his statements that he saw no difficulty in it and that he would cover up with instructions. Now, our first problem is the application of the rule, as to joinder, to this set of facts. Now, the rule -- our present rule is 8 (b) of the Rules of Criminal Procedure, set forth at page 3 of the Government's brief and we are concerned with joinder of defendants. Now, this rule permits the joinder of defendants charged to have participated in the same act or transaction, or in the same series of acts or transactions. The rule was adopted, as this Court well knows pursuant to the advice by this Court -- pursuant to the advice of an advisory committee, who in then note state that the purpose of this rule was to adopt the more lenient position on joinder of defendants, which had been followed by the Fifth and the Second Circuit as distinguished from a limited rule as the joinder of defendants, which had received recognition in some other circuits. And it was in that light as a -- as a purposeful adopting of a more lenient rule that the -- the rule was submitted to this Court and adopted. At the same time, of course, Rule 14 was adopted and Rule 14 is the rule which protects the defendants from any possible prejudice from the relaxation with respect to the rule of joinder. Rule 14 provides that if the defendant or the Government is prejudiced by a joinder of offences, then the trial court shall take appropriate action, either through severance or otherwise, to protect the -- to protect the parties. Now, the question is an application of this general rule to this factual situation. Is this is a series of transactions which can properly be joined in a single indictment? And basically, I think the way it should be approached -- I think it falls within the language of the rule and I think that the approach that should be taken to it is -- can -- is this the kind of a case -- is this the kind of a trial where the individual defendants can be given a fair trial, when they are tried together or is the nature of case such, that it must be separate and have separate trials? There are really four cases in this Court that -- that deal specifically with this type of problem and they go to one land to the other and the fact of the matter is that, they can be distinguished on -- on their facts, whether or not, as the Court would look at them, it is possible for -- or not whether it's possible, but whether there is prejudice to the -- to the defendants, whether it appears that prejudice would occur, if they were tried together. The Kotteakos case, which is one of the most recent cases, is a case where it was felt that they should not have been tried together, because in that case, there were 32 persons which would -- who were charged with conspiracy, involved eight separate groups of transactions and the Court felt that in that -- in that setting, it was impossible for a jury to separate the -- separate the matter out. I have -- I think that if the Court will look at this record and -- and notice that the kind of testimony that was introduced, the nature of the proof, that it will become apparent that there isn't any fuzz in this, as to -- as to which defendant the proof applies to. The -- the proof is -- the proof that Stracuzza gave in the first place, dealt with the first pile of that transaction upon -- in the -- in the beginning, that is the nature where the goods came from, it obviously applies to all of the defendants. And then he dealt with his dealings with each one in turn.
Felix Frankfurter: Have we had any case like this, in which it is conceded, as I understand, that the joinder was proper, valid, not -- not even contested, like some of the defendants, except by one defendant. Is that right?
John F . Davis: Well --
Felix Frankfurter: There's -- there's only by one?
John F . Davis: And not on the basis of -- of this joinder, yes.
Felix Frankfurter: Not on the basis of this. Where the -- where the joinder was not contested or where no question is now raised that that was improper to begin with, but where the basis of joinder namely, immunity, all defendants were involved in conspiracy where the basis of joinder fails at the end of the Government's case. Have we had any case like that?
John F . Davis: Well, I think basically Mr. Justice Frankfurter that both the Berger case and Kotteakos case or that case. In both of those cases, it went to the jury on a conspiracy. There was no question, they couldn't have been severed because there was an issue of -- of conspiracy and it went to the jury.
Felix Frankfurter: Yes. But in the Kotteakos, we had the whole -- we had several conspiracy united at a single trial.
John F . Davis: But it was charged as a single conspiracy.
Felix Frankfurter: Yes, but -- but --
John F . Davis: So that they were tied together, as in this case, with a charge of a general conspiracy.
Felix Frankfurter: As I understand, as I recall, I haven't reread it directly to this problem. In Kotteakos, as to (Inaudible) the difficulty was the multiplicity of a non-coextensive conspiracies among different defendants, is that right?
John F . Davis: That is right. If there's a series of eight conspiracies, instead of one conspiracy in effect, but it went to the -- but in answer to -- to Your Honor's first question, it -- it couldn't have been severed, before it went to the -- before the case was tried because there was, as in this case, a generally conspiracy charge. The same is true of the -- of the Berger case that went to the jury as a single conspiracy, but the Court, in reviewing it, said that the evidence wouldn't support a charge of the single conspiracy, that the most that it would prove would be two conspiracies in the Berger case. In --
Felix Frankfurter: They're all --
John F . Davis: -- other case (Voice Overlap) --
Felix Frankfurter: Weren't there also some questions of the basis on which it was left to the jury finally, where there's a confusion whether it has one or several?
John F . Davis: That's right.
Felix Frankfurter: So that you -- from my -- from my reading or for my thinking on this subject, there were questions in those cases that are independent of a problem of propriety of joinder?
John F . Davis: That's right. There were questions of -- of proper instruction. There's no question about proper instruction here. Now, in the McElroy case, they were all substantive counts that were charged. There was no question of tying together with a conspiracy. They were just a series of substantive counts, two attempt to murder and -- and two acts of arson. And they were tied together in time and place, but not all the defendants were involved in each of the counts. And in that case, the Court said that the -- there was an improper joinder, because they felt that there was not enough relationship between the series of acts which was involved. But here, the -- it makes -- it makes good sense, both from the point of the defendant and the point of view of the Government, but this kind of a trial to be carried on at one time. To -- to try the case first against the Stracuzzas and -- and the Schaffers, maybe getting a convection and maybe not, then to try the case against the Stracuzzas and -- and Karp and then against the Stracuzzas and -- and Marco would -- would certainly harass the Stracuzzas, if nobody else and yet they were involved in each one of these -- in these transactions.
Speaker: Did you -- you sustain the joinder, as I understand it, independently as the joining of the conspiracy count.
John F . Davis: That is right. I think that this is -- these participants in a series of acts of transactions and therefore, it's -- it's an appropriate joinder.
Speaker: (Voice Overlap) material --
John F . Davis: That is right. And we make this the second -- the second point that whether this be sold or not, that at the time the Government commenced the trial, there was a proper joinder, because of the conspiracy count. And when that was thrown out, then the remedy was to force severance if the judge felt that at that time, there was prejudice. And that time, it was incumbent upon the defendants to -- to show why they were prejudiced and if they did -- couldn't was -- there, it was entirely proper to continue the case and that's --
Felix Frankfurter: How long had the trial been on when the conspiracy charge is taking from the jury?
John F . Davis: The entire trial --
Felix Frankfurter: (Voice Overlap) --
John F . Davis: -- Your Honor. The entire trial -- the -- that the entire Government's evidence was in and the defendants put in no evidence.
Felix Frankfurter: Yes. I want to know how -- how many days of trial there as they --
John F . Davis: That they were little over two weeks. I can't remember whether it was seven --
Felix Frankfurter: And the --
John F . Davis: -- six days week to five days.
Felix Frankfurter: (Voice Overlap) the jury?
John F . Davis: That is right.
Felix Frankfurter: That how many more days of trial were there?
John F . Davis: There were no more days of trial.
Felix Frankfurter: They -- they ended them?
John F . Davis: The -- the Government rested and the defendant put in no evidence.
Felix Frankfurter: Oh, was -- was the -- was there ever a suggestion at any -- at any time in the course of the trial that the conspiracy charge was included in the indictment and was true horn to get in the joinder?
John F . Davis: I think that -- I don't think that accusation is -- is made. It's -- it's been denied here today.
Felix Frankfurter: He denies it at the end.
John F . Davis: Yes. The counsel said that he wasn't accusing the Government of bad faith in sort of case, but he was saying it opened the way up to bad faith. And in reply to that, I would say that Rule 14 would protect against -- which allows the -- the trial court to prevent prejudice, would protect against bad faith. Sorry, Mr. Justice Whittaker, you --
Charles E. Whittaker: Well, you didn't answer the question. I was curious to know whether or not, the defendants did offer in the evidence, they seem other than that.
John F . Davis: No. They offered no evidence at all. They -- they were attempting to get the judgment -- to get the whole case taken away from the jury, before it went to the jury.
Charles E. Whittaker: The whole trial, except for the submission, included with the Government's case.
John F . Davis: That is right entirely. Well, this makes no difference, but I would say that they introduced the stipulations as to value after the Government's case was tried and a stipulation as to how some other testimony would be -- would appear, if it were presented, but except for those stipulations, there was no evidence.
Felix Frankfurter: Where does the phrase -- I noticed that the phrase in the present -- in the present -- in our Rule 8 (b) or a series of acts or transactions, connected together was used by Chief Justice Fuller in McElroy. You know the argument of that? It goes with a -- with a prior case? Is the McElroy case that --
John F . Davis: There's the Pointer case. The Pointer case was --
Felix Frankfurter: The Pointer case was against the same defendant.
John F . Davis: Yes, but at that time, they -- they used the same joinder. Both McElroy and Pointer rely on the same -- on the same provision of law as to whether it's proper joinder.
Felix Frankfurter: Here's -- I understand it, but where does it come from? There is no rule in its decision.
John F . Davis: No. No, there isn't.
Felix Frankfurter: It's just common law at all, of course, the --
John F . Davis: That is right.
Felix Frankfurter: Now I want to know what they argument with the -- if as Chief Justice Fuller in McElroy, the thing that or the -- Mr. Justice Harlan did in Pointer.
John F . Davis: I think Mr. Justice Harlan uses this in Pointer. I think Pointer is the first one and -- and that -- that in -- in McElroy, he accepts the theories --
Felix Frankfurter: All right.
John F . Davis: -- of -- of Judge Harlan in Pointer. And -- but distinguishes the case. With respect to the prejudice to the defendants in the -- in the evidence that -- which was in the case, I read the entire transcript not only the record here and the only item that I find there and it's referred to in -- in the briefs, where there could be confusion as to which defendant, particular evidence was introduced with respect to, was when a Federal Bureau of Investigation's agent testified that Mr. Karp had told him that he had seen the Schaffers, who are also petitioners, Karp is one of the defendant, that he had seen them at one of these places of business. Now technically, I think this evidence cannot be introduced against the Schaffers because this is hearsay evidence and made out of that presence and I think it is not proper evidence against the Schaffers. It came in under instructions, specific instructions, that it was to be used against Karp only. It came in without any objection from the Schaffers and what is more, it is entirely unprejudicial to the Schaffers because they claimed, time and time again, that they were at this -- these places of business and that they did buy goods there. And for someone to say that they were seen at a place where they insist that they were, can hardly do them damage.
Felix Frankfurter: Did -- I don't suppose the judge or did the judge know when he denied this motion that he had before him all the evidence there would be in the case? In other words that the --
John F . Davis: No, he didn't know, because he -- he discussed the problems of value when he said, “Now, I'm going to withhold judgment on your motion for dismissal --
Felix Frankfurter: Until I hear the rest.
John F . Davis: -- until I hear the rest and I warn you.” He said. So he must -- I warn you if go ahead that you may hurt yourselves rather than help yourselves by going ahead with more evidence. He was thinking then of the question of value. The aggregation of values that cross-examination might help on that problem. So he said, “If you want to go -- I -- I warn you, you -- you may hurt yourselves, but I'm not going to make a judgment on your motion at the present time.” And then they rested. They didn't go ahead with any addition.
Charles E. Whittaker: Now, when you say emotion, so we'd clear about that, are you referring to the proceedings on page 11 to 19 of the record?
John F . Davis: 11 to 21 (a).
Charles E. Whittaker: 21 (a).
John F . Davis: The motion is formalized on page 21 (a), at the bottom of the page.
Felix Frankfurter: Is there any -- is there any basis for saying that the defendants might've been influenced not putting in a case, but resting on the Government's case because of -- that the joinder up to that time that had made it difficult to dissever the unrelated testimony of, at least, one witness.
John F . Davis: Well, I think that's -- that's a hard question to answer. It's a question of judgment. The issue and really the only issue which they were trying out, and this I say from reading the record, there's no single place you can -- you can find it. The only issue they were trying out with guilty knowledge of these individual store buyers. There was no question that they bought large quantities of material and they bought them from the Stracuzzas. There's no question that the Stracuzzas stole this stuff.
Felix Frankfurter: When you say that, what's the basis for saying that?
John F . Davis: Which, that this is the only issue?
Felix Frankfurter: That's the only issue they've contested.
John F . Davis: Well --
Felix Frankfurter: Did this --
John F . Davis: Just --
Felix Frankfurter: You mean on the basis of the occurrence of cross-examination?
John F . Davis: On all -- well, on the nature of their cross exam -- the nature of the briefs, the stipulation that they received stolen goods from the Stracuzzas, the question that -- well, there's no contradiction that the Stracuzzas stolen the -- stole the goods, I -- that's the only issue really that there was left in the case. As I say, this is a question of judgment and people can quiver with it. They can talk about whether there's sufficient evidence and things like that, but basically, that's what the trial was about as I read the transcript, whether or not, these people had any guilty knowledge that the materials they were receiving were stolen.
Felix Frankfurter: Did the judge disclose his mind, why he thought there'd be no prejudice?
John F . Davis: He said that the evidence was all introduced in a -- in an orderly way that it was easily attributable to the individual defendants and that there was -- and may I say this, that we are fortunate in this case in having the charge of the court to the jury here, set out in full from pages 58 to about 60 or so of the -- of the brief. And I -- I think that as a method for this Court to determine the -- the general nature of what this evidence was, how well it could be divided, that this charge of the judge to the jury, which is one of the charges that outlines the evidence, gives a very -- a very fair idea of what the nature of the evidence was.
Felix Frankfurter: When you say, in this case, we're fortunate in having a charge that a sufficient justification for me to say that I think it would help in all criminal cases that come here, if the Government sought that you always had the full text of the charge in the record.
John F . Davis: Well, it's -- it's particularly convenient to have it printed too, because --
Felix Frankfurter: That's what I'm talking about.
John F . Davis: -- when single -- yes.
Felix Frankfurter: I mean in our record, not in the stenographic meaning.
Earl Warren: Mr. Davis, is there -- is there any significance to the judge holding up his ruling on that motion and then admonishing the defendants? Now, I warn you to put any evidence in, you might be doing it to your detriment, because I will use that against you. Is there any -- is there -- is that a fair proceeding?
John F . Davis: Yes, I think so. Let me -- let me explain the context in which this was done. This was really on the second point that I am coming to, with the question of aggregating the shipments, so as to make up a total of $5,000, before you get federal jurisdiction. And the judge had been worried because the only Court of Appeals case which was not in this circuit, but in another circuit, had indicated that you couldn't add them together unless there were a -- unless there were some agreement that all of this stuff should be shipped. That's the -- that's the Fourth Circuit. It's -- it's a dictum in the case, but the Fourth Circuit had said this. And Judge Murphy was disturbed about the question of whether the Government's case was -- fell within that and how he should -- how he should decide this as a matter of law. Now, what he was really saying to the defendants was I don't know to how I'm going to decide this question of law, but if you go ahead with evidence and if it -- if it turns out that we've -- that there are shipments, if the shipments in one lot are over $5,000, by then, you will have done yourself some harm. Now, this isn't done before the jury -- this is to the -- to the --
Earl Warren: You know, I understand that.
John F . Davis: -- to the lawyers.
Earl Warren: Yes.
John F . Davis: And he's just saying you -- you know how to try your own case, but if you -- if you make it -- if you make this case, well then, this problem will -- will disappear. And that's all he's doing. He's not --
Felix Frankfurter: And to make --
John F . Davis: He's not scaring them or anything. He is -- he is wanting them really.
Felix Frankfurter: If you make this case, what -- what's that. I don't follow that Mr. Davis.
John F . Davis: Well, suppose that they put Mr. Schaffer on the stand to prove his innocence and in cross-examination --
Felix Frankfurter: (Voice Overlap)
Felix Frankfurter: -- it proves that there were --
Felix Frankfurter: And he -- he -- and he proves the $5,000.
John F . Davis: Yes. Why, they -- then the court no longer has his legal problem before it. Then that's -- that's what Judge Murphy was saying to them, I think.
Felix Frankfurter: But does the -- does the proof of $5,000 as to one of the three defendants, take care of the indictment against them. You're coming to that.
John F . Davis: Now, I am coming to that and I don't think it does. But I don't think we have to come -- I don't think we have to reach that point.
Felix Frankfurter: Well, I didn't mean to anticipate.
Earl Warren: Mr. Davis, one other thing I -- I noticed this morning, when -- when counsel was reading, I think, it was on page 13 (a). He says, “As Your Honor knows, there are over 200 exhibits involving over 1000 sheets of paper here.” Do you -- what significance do you give to that on the complexity of the -- of the case, when they're all being tried together.
John F . Davis: Well, the -- most of these are checks as -- as stated by the -- by the judge in response with checks on these individual defendants --
Earl Warren: He says 200 exhibits and 1000 sheets.
John F . Davis: Well, of the others -- many of the other exhibits were the shipping papers though -- to get the term that's used in -- in the record, but it's the manifest of the shipping papers that went with the goods. What happened was that they'd get a bale of goods that were stolen from a truck and it would have a bill of lading, in effect. I'm not using the right terms but --
Felix Frankfurter: Invoices.
John F . Davis: Invoice of some kind, which would show the manufacture and the person to whom it was to go and the price and the description of the things. And the Stracuzzas would cut of the portion of it, which showed the people who it was going to. But they would leave the rest of this invoice in the bale, when they send it on to these clothing merchants, so that the clothing merchants -- this people didn't trust each other very fair, so if the clothing merchants would know what the wholesale value was and could pay the 50%, 60%, 65% of the -- of the price. Well, there were hundreds, hundreds of these invoices introduced in -- in the evidence, primarily to show that the recipients must've realized that this, if nothing else, shows that the goods were stolen goods. And those take up the large number of the exhibits. I don't think that any of the exhibits really raise any problem about crossing a line between the guilty knowledge of one independent and the other. I think they're all -- all free.
Felix Frankfurter: How many witnesses were there in the -- for the Government, in number?
John F . Davis: Oh, I would think that they were probably 15 -- maybe 20. But it --
Felix Frankfurter: If -- if the defendants had -- how many trial counsels were there for the defense?
John F . Davis: There were three separate trial counsels. Each -- each -- rather there's the two Schaffers -- we've treated the two Schaffers as one here and I think, it's easy -- these two Schaffers had one and Mr. Karp and Mr. Marco each had -- had one.
Felix Frankfurter: And it -- as the record -- would the record show that the stenographic minute that each of the 15 witnesses or whatever they were, are separately cross-examined at length by the different defendants, or is there a good deal of taking over by someone loyal for the defense.
John F . Davis: Well, the principal witness, Anthony Stracuzza, was extensively cross-examined by each of them and -- but they wouldn't -- each of them cross-examined -- an FBI agent would've checked Mr. Karp's store and will check the receipt of -- of these goods at Mr. Karp's place of business. And as to him, the cross-examination would be entirely by Mr. Karp's lawyer and most of the evidence was like that after Stracuzza -- after the Stracuzzas (Voice Overlap) --
Felix Frankfurter: How many pages are there in this two weeks trial, do you know?
John F . Davis: The typewritten pages, 1600 pages.
Felix Frankfurter: 1600.
John F . Davis: Quite a long trial, because the cross-examination took a -- took a long time.
Felix Frankfurter: How many days as chief of the Government's reliance on the stand?
John F . Davis: I -- I beg your pardon?
Felix Frankfurter: How many -- of the 1600 pages, how many are taking up by the -- by the Government's witness, by the (Inaudible)?
John F . Davis: By Stracuzza --
Felix Frankfurter: Yes.
John F . Davis: -- himself? Well, he --
Felix Frankfurter: Half of -- half of the minutes?
John F . Davis: No, probably not half. He was on for a week --
Felix Frankfurter: He was on for a week --
John F . Davis: -- eight days, I think, with the cross-exam. He was on about three days on direct examination and about three days on cross-examination.
Felix Frankfurter: So he is of half the trial worthy.
John F . Davis: He was pretty nearly half of the trial. Well, he was the -- he proved the case. I mean the rest of the material was just because he is a thief and -- and he had to be -- it had to be confirmed. You couldn't go to the jury on his testimony alone.
Earl Warren: I was wondering, Mr. Davis, there were three Stracuzzas, who were charged in this conspiracy and was it one -- one or more of them who had pleaded guilty?
John F . Davis: Two of them that pleaded guilty.
Earl Warren: Two of them pleaded guilty. I wonder why they -- why they didn't try the third one with these people, when they tried them on the conspiracy charge?
John F . Davis: Mr. Chief Justice, I would like, if I may, to leave that to the second argument.
Earl Warren: Well, --
John F . Davis: It -- it's --
Earl Warren: All right.
John F . Davis: It's really that part of the heart of the -- of the second argument and I do want to get to the aggregating --
Earl Warren: All right. Go right to it.
John F . Davis: -- and it is -- it is a matter that we will have to go into.
Earl Warren: Go right in.
John F . Davis: The second issue which Mr. Kossman has argued as the three issues in the case is whether or not, it was proper to aggregate the shipments to each one of these defendants in order to reach the jurisdictional amount of $5,000. And I think --
Felix Frankfurter: Would you mind quickly summarizing exactly what the figures are with reference to the shipments?
John F . Davis: Yes. Each one of the individual shipments to each one of these defendants was less than $500. There's no proof in the record of any single shipment of over $5,000. There is a stipulation as to each defendant that although the individual shipments are less than $5,000, the aggregate value of the merchandise shipped to him was in excess of $5,000.
Felix Frankfurter: State that again individually.
John F . Davis: Let me refer you specifically to page 11 of our brief. And this quotes from the stipulation with the Schaffers, but it is same with the others with changes in language, which are not material. “It is hereby stipulated that the aggregate value of the merchandise consisting of ladies wear and apparel, which was transported from the Southern District of New York to Lebanon, Pennsylvania to the defendants, Max Schaffer and Norman Schaffer, during the period from or on or about May 15, up to and including July 27, was in excess of $5,000. Each shipment was a value of less than $5,000.”
Felix Frankfurter: But this -- this is -- these may have been innocent shipments. I mean shipments as to --
John F . Davis: No, these are shipments from --
Felix Frankfurter: Are they necessarily tainted?
John F . Davis: They are shipments from -- from the Stracuzzas to -- to -- and all Stracuzzas said all them -- all of their stuff were stolen. I mean that the stolen goods, yes. I -- I hadn't considered that in the --
Felix Frankfurter: But (Inaudible), but that doesn't --
John F . Davis: Yes, there's no issue really that that's referring to anything but stolen -- but the stolen goods.
Felix Frankfurter: And the question of knowledge is, of course, a different story.
John F . Davis: The question of knowledge -- the question of the sufficiency of the evidence, which isn't -- isn't before the Court of (Voice Overlap).
Felix Frankfurter: That is the sum total of shipment that went to each one these defendants as $45,000?
John F . Davis: That's right.
Felix Frankfurter: You're not aggregating shipment of the three as against anyone?
John F . Davis: That is right. Now, I think under the statute, an argument could be made that all of these shipments to all of the defendants could be aggregated. I don't have to argue that here. We don't reach that on the facts of this case, all we are doing is aggregating the amount of shipments made to in individual defendant. I think it's important to see the language of the statute, it appears at pages 2 and 3 of the -- of the Government's brief. And the important part is the definition of value and on the value what is stated, that value means the market value referred to in a single indictment. And that you see -- I am sorry, I've misread that. And money referred to in a single indictment shall constitute the value thereof. The entire -- it -- it was purposely put in there as the legislative history shows, so that if individual shipments to a -- to a defendant were less than the jurisdictional amount, that the entire amount which could be properly joined together in a single indictment could be added together and could be considered to reach the jurisdictional amount. And the question which we have is really only whether one, whether that's what Congress meant when it said it, because there's really no problem of -- of constitutional law. These are interstate -- these are interstate shipments. Congress didn't have to put any limitation on value at all. It could've said anything of value, shipped -- that was stolen and shipped in interstate commerce could constitute a federal crime. It didn't choose to do so. It felt that this would be bringing the Federal Government too much into the -- into the field of -- that the State should handle. And so it did say that the value should be $5,000. The legislative history shows that what they meant was that if there should be a series, the language is used in the reports, a series of transactions. Now, I don't think that that means what the Fourth Circuit said, that it must be a group of transactions which were agreed to in the beginning. A series seems to me that the -- some transactions which are, in some way, connected together in time, place, proximity, something to make them related to each other. And I think that's what the Court of Appeals was stating when they -- when they --
Speaker: Whether the Andrews case, one, where they were trying to aggregate shipments involving different counts, involving different dependents and using them all against one defendant?
John F . Davis: The -- in the Andrews case, involved different defendants. And one of the defendants was not connected with the others, had received in aggregate, less than $5,000 worth, and the Court, threw that out, as I think they probably should under the statute. It's a question again on whether you aggregate shipments to other people. But the Court threw it out and then they went on, and this is dictum to be sure, because they didn't have to say it, but they did say that they felt that it had to be one scheme on one plan, in order to -- in order to be aggregated under the statute. And that's what gave judge -- I think that's wrong. I think that the Congress meant a -- by a series of transactions, something much looser than a conspiracy or -- or under one contract. I think they meant transactions which between the same people and which have -- have some relationship to each other and that's --
Felix Frankfurter: 100 -- 100 shipments of $50 worth, spread over a year, in your view, would -- would satisfy the statute.
John F . Davis: I -- I think that is so. From the same -- in the -- in the steady course of business between these people --
Felix Frankfurter: We might --
John F . Davis: -- whether under just one contract, or just under individual sales.
Felix Frankfurter: We might have a problem, if you haven't go here, namely, the problems of statute of limitations as (Voice Overlap) --
John F . Davis: You might have -- you might have that and -- and that would be -- that would be bothersome, if it was spread over five years or something like that. You don't have that here.
Potter Stewart: Over how long a period are the shipments?
John F . Davis: Two and a half months, Your Honor.
Potter Stewart: Two and a half years?
John F . Davis: Two and a half months.
Potter Stewart: Oh, months.
John F . Davis: Two and a half months.
Potter Stewart: With respect to each of the three defendants?
John F . Davis: That's right. Well, some of them were shattered, the over all period is two and a half months. It's set forth in the indictment that it's from May until about July 1st, the middle of May, until about July 1st. It's the longest period. One of them is -- is less than that.
Potter Stewart: One other question, so long as --
John F . Davis: Yes.
Potter Stewart: -- I've already interrupted you and this takes us back to quite along your argument.
John F . Davis: Sure.
Potter Stewart: As a matter of the fact, was it -- was it shown at the trial that any of these three defendants, counting the Schaffers as one, knew each other or had any dealings with each other?
John F . Davis: The -- the most that there is evidence of is that -- is the evidence I referred to that the Federal Bureau of Investigation's agent said that Karp told him that he had met the Schaffers at one of these places of business, which would be admissible, as I say, only against Karp in -- in any event.
Felix Frankfurter: That wasn't part of your case. That was not part of your case.
John F . Davis: No. That's not part of our case. (Voice Overlap) --
Potter Stewart: What is certainly part of your conspiracy case in the trial court?
John F . Davis: If -- well, I'm sure that that is --
Potter Stewart: Did it -- at least, they knew each other.
John F . Davis: I think that -- that will --
Potter Stewart: (Voice Overlap) --
John F . Davis: I think that -- that was -- it was prepared and the -- the U.S attorney must've felt that he had something more to present. Why? What happen to it? I -- I have no -- no way of knowing. He had no other evidence as to introduce as to knowledge of the -- of the -- of one of the group or the other.
Tom C. Clark: (Inaudible)
John F . Davis: That is in response to the motion to sever and I assume that he must‘ve thought he was going to prove this is in some way, unless he -- the statement was made. Well I assume, he must have known that he was --
Tom C. Clark: (Voice Overlap) --
John F . Davis: Yes. And the only evidence was that the Karp -- Karp admit the Schaffers. There was no evidence that Marco admitted any of the others. Well, just looking at the statute then, it seems to me that the statute clearly permits the aggregation in the situation like that and that it isn't necessary that there be a -- a plan or agreement and that there really isn't any difference between what the -- how the judge charge the jury. The judge refused the charge to be sure that was asked by the defendants that there had to be a common plan. He said that that wasn't necessary, but I don't need the Court of Appeals as -- as disagreeing with that. I don't think that the Court of Appeals felt that there had to be a contract that a conspiracy or anything like that. I think that there was, all the way through, the idea was that here with a series of sales from one source to the -- to this -- to the -- to the clothing store and that that was sufficient to meet the jurisdictional amount covered by the statute.
William J. Brennan, Jr.: I need to say Mr. Davis, there's no question that as at to each of the shipments made through the Schaffers, there was evidence from which guilty knowledge that the Schaffers have here, stolen goods.
John F . Davis: Well, I say that, but that's -- that's a conclusion. I mean, the -- the jury found them guilty of -- of receiving over $5,000 worth. It's all -- it's all one part.
William J. Brennan, Jr.: I -- I haven't studied the charge.
John F . Davis: It's all one ball of wax and I don't know how any of it could -- could be cut out. I mean it would --
William J. Brennan, Jr.: Well, I haven't read the charge.
John F . Davis: Yes.
William J. Brennan, Jr.: It was the charge that -- as to the Schaffers or had to be a finding by the jury that the Schaffers had guilty knowledge that this was stolen goods as to each of the transaction (Voice Overlap) --
John F . Davis: No, there was no such -- and there was no such charge to -- to the jury. If the jury -- the charge to the jury was that there was evidence from which the jury could find that the -- well, the Court reviews the evidence by the jury -- by the Schaffers, how the evidence ties in with knowledge, but it was left to the jury to find whether or not they knew.
William J. Brennan, Jr.: Well, that's -- but -- but it was left to find -- they would have to find you, did they not, if you aggregate that as to each of these --
John F . Davis: There would have --
William J. Brennan, Jr.: -- was guilty knowledge.
John F . Davis: They -- they would have to find that all of it was stolen and they had knowledge of it, or at least, yes, or at least $5,000.
William J. Brennan, Jr.: That's what I mean, at least $5,000.
John F . Davis: But -- but as you read the -- as you read the record, there's no -- all of these -- all of the materials that -- that the Stracuzzas were selling were stolen. They had no other source to find.
William J. Brennan, Jr.: Well, I wouldn't necessarily follow with it that the Schaffers would know that each shipment that they bought --
John F . Davis: Well --
William J. Brennan, Jr.: -- unless it was evidence as to the fact.
John F . Davis: Well, the evidence -- the evidence is abundant that the method of dealing, showing it was all handled in the same way with the -- with the invoices sent and the discount's the same. I mean -- that if it's no -- there's no basis to distinguish between Schaffer and another.
Tom C. Clark: Judge Murphy's charge sets up the four elements, does it not?
John F . Davis: Yes, it does.
Tom C. Clark: They have to be stolen -- they have to know, if they were stolen and have to deal with $5,000 dollars as to be in commerce?
John F . Davis: That's right and this is, of course, left to the jury to find. I mean he was --
Tom C. Clark: But he told him, they'd have to find (Voice Overlap).
John F . Davis: That is -- that's -- that is right.
Earl Warren: Mr. Kossman.
Jacob Kossman: This -- this was no open and shut case. The charge of the Court on page 55 (a) states -- 55 (a), the front part of the book, “You will recall that Stracuzza testified that he did not tell any of defendants that the goods were stolen, although he testified that all the goods he sold were in fact stolen?” The Government claims that the circumstantial evidence from which you properly draw the inference against each defendant, is the sum total of a number of different facts and circumstances. And referring to the transcript, which is not printed, is 578, the question was asked of Stracuzza, “Did you tell any of your customers that the goods were stolen?” The answer was, no. And Stracuzza had eight or nine other customers which are in the record. That's point number one.
Earl Warren: He is a Government -- a Government's witness?
Jacob Kossman: That's right. He was the main Government witness. He was the supplier and he said, I didn't tell anybody that the goods were stolen.
William J. Brennan, Jr.: But Mr. .Kossman, the very next paragraph of Judge Murphy's --
Jacob Kossman: I beg your pardon?
William J. Brennan, Jr.: The very next paragraph of Judge Murphy's charge, suggests that that finding could be made based on all the circumstances including the manufacturers invoices and so forth?
Jacob Kossman: It's -- that is correct, when the judge states, for example, as against all the invoices. It says that the manufacture invoices which Stracuzza says were -- were an obvious indication that the goods were stolen, but there are many not to argue the case on the merits and we didn't because of the jury's verdict, but since it's been introduced, but there are many -- many discount houses all over the country, where they have original manufacture's invoices and they show it to people. But this was a circumstantial evidence case. Now, the Court of Appeal --
Tom C. Clark: (Voice Overlap) Mr. Stracuzza says he inserted the invoices in the shipment.
Jacob Kossman: I beg your pardon?
Tom C. Clark: I -- I gather that what you just read and what Mr. Stracuzza said were that the invoice were included in the shipment. And the judge goes on to say that these were an obvious indication that the goods were stolen because the man was just liberated and torn all of (Inaudible) prices we'll have a portion to be different from the invoice.
Jacob Kossman: Well, the word, “it” I think refers to the -- the Government. In other words, it wasn't exactly the Court expressing his own opinion, as such, for example, as against all the defendant, it --
Tom C. Clark: The Government --
Jacob Kossman: -- says. I mean --
Tom C. Clark: (Voice Overlap) --
Jacob Kossman: Now, secondly on page 114 of the Court of Appeals-based opinion --
Tom C. Clark: What page was it?
Jacob Kossman: Page 114. The first -- the first paragraph -- page 114, “Each defendant live in a different part of the east, except to the two Schaffers, who operated the store together. And there is nothing in the record to indicate that anyone of them knew that Stracuzzas dealings with the others.” Now, this -- there was that loose testimony they asked the -- in a statement one of the other defendants. “Did you know the Schaffer?” And he said, “I was introduced to him years ago.” That's all there was to then. Mere -- I was introduced. That's -- that's all that was to that. Now, the next point which, I think, is most important is this and that comes to 19 (a). The Court said, “What I am going to do puts you in the most unique position. I am going to assume you raising for a motion to dismiss so on and so forth. And you know from reading the cases, that you put your case in at your peril, because it might develop to your disadvantage.” Well, it's not correct for the Government to represent to this Court that that referred to the fact that if a man had taken the stand, they might have asked him a question on cross-examination, was the shipment more that $5,000, because they knew, no shipment was $5,000. They were added up, so that the -- that problem didn't come into play at all when the judge said that. The -- the defendant -- they had the record of the shipments. So that came in context and you'll have to read, I am sorry, I didn't print by new -- it didn't -- it wouldn't develop this way. Between 1429 -- between 1430 and 1434 of the transcript, you'll see that the defendants, one that there were -- had subpoenaed Stracuzza's wife and there was a question whether they -- she should or could not testify. They had witnesses, the -- the wives of these individuals and they thought, trusting from memory, that the case might take another week in order to put their defense on. Now, they decided not to. I can't represent to Your Honor the reason why they cited because I can only talk from the record, but certainly when the Court says that you put -- they -- the Government can't represent that that expression had to deal with the -- that there was the transportation because that was out of the picture. No one could say on cross-examination that any shipment was more than $5,000, because if they could, the Government won't approve that on direct examination. They had the record of it. So to leave that impression --
Speaker: Where do you make any point of this independently then?
Jacob Kossman: Well, we -- we make that point in this -- in the sense that at leading -- leading that in the year for the Court to say that, does affect the disposition of a -- of a joint trial, but I cannot say, I cannot positively represent that as a result of what that took -- what he said, that they did not put on their defense. But it seems to me that in expression like that, most logically, would. At any rate, I only -- I never mentioned this on direct examination. I only mentioned it now, in order to remove the impression that the Government wanted -- that the reason we didn't put on was on account of the $5,000 that might've come out in cross-examination. Now, all we've always asked is for a separate trial and that a charge that there be an aggregation of $5,000. That's what we ask in the lower court, that's what ask in the Court of Appeals and that what we ask here.