Earl Warren: Number 183, Henry Grunewald versus United States of America. Number 184, Max Halperin, Petitioner, versus United States of America and Number 186, Daniel A. Bolich, Petitioner, versus United States of America. Mr. Bennett.
Edward J. Bennett: May it please the Court. Henry Grunewald, the petitioner in Number 183 together with the other two petitioners was convicted in the Southern District of New York of conspiracy to bring about corrupt Revenue Department decisions and fraud of the United States and to conceal the crime from all investigating agencies in the future. The significant feature for present purposes is that element of concealment because without it prosecutions of the crime would have been barred admittedly by the statute of limitations and it is admitted by the Government, was conceded upon the trial that they had proven no act within the limitations period except an act of concealment. The conviction on this conspiracy count, which is count one of the indictment in the record, was affirmed by the Court of Appeals for the Second Circuit with Judge Frank dissenting. The majority held that there was, as part of the original crime, a conspiracy to conceal for all the future and therefore subsequent acts of concealment sufficed to bring the original crime down within the period of the statute of limitations. Judge Frank's dissenting held that the conviction was improper under the principles stated by this Court in the Krulewitch case and the Lutwak case in which this Court held that no conspiracy to continue to conceal a crime which had been accomplished would be implied from the crime itself and that subsequent acts of concealment would not serve to extend the life of the conspiracy because it would destroy the statute of limitations and would make one man, who would conspire with another, responsible for the other's acts for all the future. For example, if he went out three or four years after the crime and shot a witness, if you are going to imply a conspiracy to conceal, why all of the original conspirators would be responsible. Now, in order to see how those principles fit into this case, I should give Your Honors a brief outline of the facts. In 1948, there were two corporate taxpayers who are being investigated for income tax fraud by the Fraud Bureau of the Internal Revenue. The function of that Bureau was to determine whether or not to recommend criminal prosecution. And under their administrative practice if at any point in their investigation they determine not to recommend criminal prosecution, the criminal phase ends and the matter is then remitted to the civil side for assessment of taxes, penalties, whatever it may be. The point is that the critical thing in such an investigation is to get a recommendation of no criminal prosecution. Both of these taxpayers, one was named Gotham Beef Company and the other Patullo Modes were represented by the same firm of attorneys in New York. That firm headed up by a man named Davis. Davis was a Government witness and testified that through the petitioner Halperin, help was obtained from the petitioner Grunewald, whom I represent, to bring about that recommendation. The theory being that Grunewald was a friend of the third petitioner, Bolich who during the period in question was an official in the Internal Revenue Department. During part of the time he was the head of the New York office of the Fraud Bureau and thereafter was an Assistant Commissioner of Internal Revenue with authority in the premises. The Gotham Beef Company decision came down in October 1948, no criminal prosecution. On January 10, 1949, the Patullo Modes decision was announced, no criminal prosecution. The indictment in this case was found October 25, 1954, a lapse of almost six years with admittedly a three-year statute of limitation. Now, how is the gap filled? In February of 1952, there was impaneled in Brooklyn, New York a grand jury to investigate these cases and perhaps others. That grand jury subpoenaed before it at least three witnesses from the two taxpayer companies and it appeared that in February and March on three different occasions at one point Davis spoke to one of those witness, Davis was the attorney who had represented the taxpayers originally. Davis spoke to one of them and found out he was going to testify and said he was crazy to do so and he ought to at least to consult some other attorneys and his current attorneys before he did it. On two other occasions, Mr. Halperin, the petitioner in 184 I believe it is, spoke to the other two witnesses and said he was going to rely on his constitutional rights. He was going to stand silent. He has been subpoenaed also before the grand jury and he thought it would be a wise thing for everybody to do so and perhaps the whole thing would flow over. Now, those three items are claimed to be items of concealment, those three incidents. There's a fourth item but perhaps while among those three I might mention parenthetically that those three incidents were made the subject of substantive counts of attempting to interfere with witnesses, counts five, six and seven in the indictment. But the trial court acquitted all defendants on those counts and sent them to the jury only as against the defendant Halperin. However, they remained in the case from the Government's standpoint on the theory that they are attempts to conceal. There the fourth item of concealment that I mentioned is one involving directly my client Grunewald. He lived here in Washington and in May of 1952, a girl who lived here and who had been his part-time secretary for some several months in the latter part of 1949, after these cases had been disposed of, and for some several months in the latter part of 1950 was subpoenaed to appear before that Brooklyn grand jury and presumably to tell whatever she might know about Grunewald. He in speaking with her immediately thereafter has said, “They can't do that. They can't require you to tell my personal affairs and you could say you don't remember.” Now, accepting that as an act of concealment, we have three to three-and-half years after the event. I'm omitting an incident of 1950 which the trial court omitted and discharged, which doesn't affect the principle and just for simplicity's sake. We have these incidents of three to three-and-half years after the event of possible efforts at concealment. And I think if that were the only question before Your Honors, it would be clear that the decisions in Krulewitch and Lutwak apply. That when the investigation draws close to a man who has committed a crime and he tries to cover up or conceal, that sort of conduct is in the nature of afterthought. It does not mean that three-and-half years before, all of the conspirators must be deemed to have agreed to conceal for all of the future. So, we have to go back one step further to the period of the original crime, and I may say to Your Honors that this theory is advanced in the Government brief and was relied on likewise by the majority opinion in the court below. In connection with that phase, the original criminal -- the period of the original crime there are two thoughts that they advanced. First, they say, the Court of Appeals said it, “Well, these men must have known they were committing a crime. They must have known that they would be subject to investigation or they might be subject to investigation, so they must have intended to conceal.” In other words, from the mere fact that they were committing the crime, they must have intended to conceal it. Now that, Your Honor, is precisely what you said in the Krulewitch case that you rejected in the very word. So there was one last recourse and that is this. They say that in the course of the commission of the original crime there was surreptitious conduct. For example, and these three items are hence relied upon in the Government's brief. They say that at one point in the course of that original conspiracy. There was a question of money passing and the conspirators insisted that the money passed or be collected or moved in cash rather than by check and therefore they must be intending to conceal. At another point, they say that the conspirators did not even disclose to the taxpayers, who were part of the conspiracy, the name of their contact man in Washington, who was said to have been Grunewald. Therefore, they say they were concealing him. A third thing, one of the taxpayers had a legal representative who was making certain arguments before the tax authorities. He was apparently not cognizant of anything else that was going on and the Court of Appeals says, the Government repeats, they did not disclose to him that they had a conspiracy working. In other words, they didn't tell anybody that they were accomplishing their result by corrupt means, so they were concealing. And so that you have the question to mere -- does mere (Inaudible) of conduct in the course of the commission of a crime permit an influence that for all of future all of the conspirators are conspiring to conceal from all future investigating agencies. And I submit to Your Honors that that such an inference isn't wholly unreasonable inference, it's an impossible inference. Just see what it means.
Speaker: Was that the theory in which the case was submitted to the jury?
Edward J. Bennett: I believe so, Your Honor.
Speaker: Was it the theory on which the Court of Appeals refer in the conviction?
Edward J. Bennett: I believe so, Your Honor. There's an additional theory that I'll --
Speaker: Well, the Court of Appeals refer in the conviction on the theory that the -- the conspiracy was not -- did not end with the no prosecution notice but included a immunity from prosecution.
Edward J. Bennett: That -- that's another phase of the theory which I was coming to after I discuss the concealment, I'll be glad to discuss it.
Speaker: Now -- but now, but all I'm getting at is that the theory you're discussing now, as I understand it, is not the theory on which the Court of Appeals refer in the conviction but was the theory in which the case was submitted to the jury. And as I read the briefs, the Court of Appeals sustained the conviction on a theory that was not submitted to the jury. Am I wrong about that?
Edward J. Bennett: Oh, you're correct about that, but that was part of the reason for their -- the Court of Appeals' action. They had this additional theory, that is -- it was perfectly apparent that this is a difficult situation. They said in the majority opinion, perhaps this conspiracy was not just to get this no criminal prosecution recommendation. Perhaps the conspiracy was to guarantee the taxpayers immunity from prosecution for the entire period of statute of limitations open against them.For example, in the Patullo Modes case, it might have been down until the end of 1952 and 1953. Now, that was one of the theories advanced but I think it's fair to say that that was only one theory of the Court of Appeals because if you will look at Judge Medina's opinion, you will see what he says all of the things that I have said, he has said they must have known they -- they would be open to investigation. He said there was concealment because they did these things, they asked for money instead of cash, instead of check.They didn't disclose the conspiracy to an innocent lawyer in the picture and they did other elements of concealment. In other words, I don't think that the Court of Appeals rested so firm as the majority solely on the proposition that the period of the original conspiracy was bounded by the statute of limitations against the taxpayer. And if they did, and I may as well go into that right now, I think it would be quite insupportable in the record. In the first place, it was not the theory which the trial courts submitted to the jury because the trial court told the jury just about what I have said here in respect of the two no prosecution decisions and they said to them, you'll find that quoted in my brief, "Did the conspiracy end when they obtained those no prosecution decisions in 1949 or did it include an agreement to conceal for all the future. And if it did then you can find that subsequent acts of concealment were an overt act now."
Speaker: Agreement to conceal but who's benefit, the taxpayers' benefit or the defendants' benefit?
Edward J. Bennett: All he said was conceal, so that conceal for the benefit of the defendants would have been ample to convict which is the point -- one of the points of Judge Frank's difference with the charge as given by the Court. May I finish off my discussion of the theory of the extended conspiracy that is after making the suggestions that I have referred to with respect to the possibility of inferring a continuing agreement to conceal from mere (Inaudible) of conduct which means that if I say to someone, "I'll take cash instead of check," I am therefore -- thereby authorizing my co-conspirator three to four years from now to bribe a witness or to shoot a witness or do something like that. I say that's an impossible inference to draw. That from mere surreptitious conduct in the course of the crime that you cannot derive a conspiracy to conceal. Now, to go back, Mr. Justice Harlan, to the suggestion of Judge Medina in the majority opinion that perhaps the conspiracy was bounded by the statute of limitations as against the taxpayers which in his view might have extended it down until the end of 1952. As I say that was not submitted to the jury. I think Judge Frank confirms us in that that it was not submitted to the jury. In the second place, its directly contrary to the evidence, the evidence was very clear. One taxpayer said, "The lawyer told me." All I can guess here you don't get anything in the way of -- of public certificate or anything, all you get is a memorandum put in the files no criminal prosecution because that's the way that Bureau acts. And when they got that they paid the money that they were supposed to pay. In the other case, the fellow said, "If I can hear from an official in the Bureau that there will be -- they have decided no criminal prosecution, I'll pay." He heard it and he paid. And all that was over by January 10, 1949. That was the object of the conspiracy and to get that recommendation of no criminal prosecution because it was that administrative practice that prevailed, that once you got that there wasn't any. Now, going back to Judge Medina's theory again, as I've said it wasn't borne out by the evidence. It wasn't submitted to the jury. Third, no matter how long a conspiracy might be projected at the start, when it comes to proving a criminal conspiracy on the trial, you have to prove it by some act. The Government has to prove the continuance of the conspiracy, it's the criminal case, they must prove their case. And it is conceded here that there was no act proven except an act of concealment within the three years prior to indictment, so that this theory of an extended conspiracy really has no substance towards Your Honor. It wasn't submitted, this isn't borne out by the facts, it's over borne by the very concessions made by the Government. As a matter fact, Your Honors, I think there's something wrong with this whole theory of conspiracy to conceal. Now, I may be going a little further than I should for that I have to on this, but as I see it our criminal conspiracy statute makes it a crime to agree to commit an offense whether its by fraud or by infraction of a particular statute. The point is agreeing to commit something that is an offense, a mere general purpose to conceal which you can derive from every criminal conspiracy. It doesn't constitute a criminal object so as to make it a crime under our federal conspiracy statute. I may conceal by perfectly legitimate means. I may take the most direct possible concealment when, if I am a criminal, I am called upon directly for information as to the acts done, I may refuse to answer. That is an actionable to say from a criminal standpoint. Concealment is really only a motive and a joint intention to conceal becomes criminal only when there is an agreement upon some criminal act. So that even after a crime has been committed and even if the party is intended to do some concealing, you don't get into a criminal conspiracy until you find them combining at sometime later to join in some criminal act and then you have a new conspiracy. You don't have the old act, the old criminal conspiracy brought down today. Here you have a conspiracy which we must assume was found by the verdict of the jury to bring about these corrupt acts. It was clearly on the record, accomplished by January 1949, possibly as I say and I don't need to go into the details, some incident in 1950 but still well beyond the limitation period. We have nothing in the limitation period of three years before October 25, 1954 except an act of concealment, an individual act of one or the other of the conspirators trying to cover up just as you have in the Lutwak case, just as you have in the Krulewitch case.
Felix Frankfurter: What was this indictment form, Mr. Bennett?
Edward J. Bennett: For conspiracy to defraud the United States in the administration of the Revenue Department --
Felix Frankfurter: That's a very different --
Edward J. Bennett: -- prosecution of offenses against the revenue.
Felix Frankfurter: That's a very different kind of a conspiracy from a conspiracy to violate an offense with some other substantive statute?
Edward J. Bennett: Well, it's --
Felix Frankfurter: That was --
Edward J. Bennett: The -- the statute --
Felix Frankfurter: I wondered as you talk, I was a little puzzled. If you got a conspiracy to violate a substantive statute then of course you must make out the conspiracy within the framework of the substantive offense. But if this is within the old Curley case doctrine, namely, that this is a conspiracy to defraud the United States, then you establish the case -- you establish that there is a defrauding of the Government in its governmental activity.
Edward J. Bennett: Quite so, Your Honor.
Felix Frankfurter: And if you put barriers or you consciously defeat the endeavors of the Government to find out whether the taxpayer owes money, that, I take it, is rather a conspiracy to defraud the United States in its governmental operations.
Edward J. Bennett: Well, insofar as these two taxpayers were concerned, admitting that there was an attempt to get them free of prosecution. That was accomplished by January 10, 1949.
Felix Frankfurter: Or to prevent the relevant piece of evidence getting to the prosecutor of the Treasury Department?
Edward J. Bennett: I didn't hear you --
Felix Frankfurter: Suppose the conspiracy is a conspiracy to prevent a vital piece of evidence or information to get to the Treasury on the basis of which they will impose a tax. Now, if there's a necessary mens rea, as I understand it, that the conspiracy to defraud the United States in its governmental operation, isn't it?
Edward J. Bennett: It -- it might be if that essential piece of evidence would be part of their prosecution --
Felix Frankfurter: Well now, you can take (Voice Overlap) --
Edward J. Bennett: It might be an obstruction of justice.
Felix Frankfurter: -- if two or more people take measures to prevent enforcement, the collection of taxes by appropriate means with a willful purpose that the Government shouldn't find out about it. I think if that's a conspiracy to defraud the United States in its governmental operations.
Edward J. Bennett: Yes. I -- I have no --
Felix Frankfurter: I'm quite well aware -- I'm quite well aware that the Curley case proved that, the old Morris case and others, that that's a very wide range statute.
Edward J. Bennett: Right.
Felix Frankfurter: I'm quite aware of that. But it does -- it is now -- by now abundantly established, take the people who got information which they shouldn't have had from the Department of Agriculture as to the crop forecast, take all the cases where there's a willful purpose to block the Governments doing that which legally and wisely and orderly.
Edward J. Bennett: I have no quarrel with any of those cases, Your Honor.
Felix Frankfurter: Then why -- the reason I raise that is because your minimization of -- of concealment not being important.
Edward J. Bennett: Well --
Felix Frankfurter: Wondering whether this is a substantive offense to conceal the duty to report but the other kind of concealment raises a kind of different question --
Edward J. Bennett: As I --
Felix Frankfurter: -- and has a different significance.
Edward J. Bennett: As I said, it -- it goes farther than I need to go. But the point I had in mind was this, that as to the conspirators themselves, there was no obligation on their part and could be no obligation on their part to reveal their crime.
Felix Frankfurter: No, but certainly a man can -- can lock his lips, he has no duty to go forward and tell the Government about things. But there is a duty which is -- which may involve a crime not to put blocks in the way of the Government finding out.
Edward J. Bennett: It -- it may be if there are any of those things that he couldn't properly do, for example, I don't think it would be defrauding of the Government for me affirmatively to refuse to reveal a crime, my crime.
Felix Frankfurter: No, but --
Edward J. Bennett: So when --
Felix Frankfurter: -- to suggest -- but to suggest to somebody keep your mouth shut --
Edward J. Bennett: Now, there --
Felix Frankfurter: -- and say you don't know or you can't remember.
Edward J. Bennett: If -- if he suggest to someone to lie to the Government agent --
Felix Frankfurter: Well --
Edward J. Bennett: -- investigating, yes, that would -- that might be --
Felix Frankfurter: I won't debate whether he's saying I don't know when you do know he is lying. It comes close to (Voice Overlap) --
Edward J. Bennett: That -- that might be a new crime.
Felix Frankfurter: No, no, no, it doesn't -- it isn't a new crime, it characterizes a conspiracy.
Edward J. Bennett: Well, as I say that concealment that I was speaking of was the concealment on the part of the conspirators of them -- themselves of their own part in the crime. And of course our position has been that in this particular case, the scope of the conspiracy was definitely settled by the evidence and it was over by January 10, 1949.
Felix Frankfurter: And I take it by the charge, too. I take it the conspiracy defined a -- by the indictment, it must be maintained by the evidence. But I take it in the manner in which what the judge tells the jury is the conspiracy, is the kind of a conspiracy that must be established because you can't find that they may have found some other conspiracy have it been put to them.
Edward J. Bennett: That's right, Your Honor. And what he told them here that they had to find was -- was this conspiracy over January 10, 1949 wasn't a conspiracy to conceal.
Earl Warren: Mr. Stand.
Rudolph Stand: May it please the Court. I represent the petitioner Bolich, former Assistant Commissioner of Internal Revenue, who was convicted together with Grunewald and Halperin on a charge of conspiracy to defraud the United States in violation of the general conspiracy statute. And -- and Bolich alone was also convicted on Count 2 of this seven count indictment on a charge of a conspiracy under the Internal Revenue law, Section 4047 subdivision (e) (4), which by its very terms applies specifically to revenue officers and agents. When this case came on for review before the Court of Appeals, they unanimously affirmed the judgment of conviction was against Bolich, who was sentenced to five years imprisonment and fined $10,000 on Count 1, and was also sentenced to three years imprisonment on Count 2 with a fine of $5000 of -- for his conviction on that offense. The Court of Appeals originally affirmed that conviction by a divided court, the late Judge Frank dissenting solely as against Halperin on constitutional grounds which will be argued by Mr. Singer who represents him, and on petitions for rehearing presented by all the petitioners who are now before this Court. That application was denied with Judge Frank this time extending his dissent to include all defendants. And in such dissent and in the course of his opinion, he voted to grant each of the defendants a new trial upon the ground that the trial court committed serious error in its charge with respect to the vital question involved in this case, namely, the application of the three-year statute of limitations. Since there are three petitioners before this Court and since Mr. Bennett has covered as rapidly as he could the question of the statute of limitations. I will confine my argument within the short time alloted to me to the question of the multiplicity -- the multiplicity of conspiracies here involved and very briefly to the constitutional question which affects the petitioner Halperin and which both petitioners Grunewald and Bolich contend likewise affected them in the most serious degree because Halperin was the only witness called on behalf of these petitioners. And when his testimony was destroyed by the Court's charge to the jury and which he stated that they had the right to -- to consider adversely Halperin's credibility because he had chosen to rely upon his constitutional rights by such a charge which was most vigorously and persistently protested by each and every counsel, he thereby destroying, not only the defense of Halperin, an attorney of over 40 years practice at the bar but destroyed and demolished completely the defense of the other two petitioners.
Felix Frankfurter: Since you have limited time, would you -- I hope it will -- in the contemplation of your argument that you say appropriate -- take appropriate time dealing with the Raffel case which I take it is -- is the -- is the most important abstraction to your intention, isn't it?
Rudolph Stand: Well, the -- no, that -- the Raffel case is the problem which Mr. Singer will deal with.
Felix Frankfurter: Oh, he will deal with that?
Rudolph Stand: Yes.
Felix Frankfurter: All right. I beg your pardon.
Rudolph Stand: I represent the petitioner --
Felix Frankfurter: Yes, but I thought you --
Rudolph Stand: -- Bolich. No, but in view with my -- of --
Felix Frankfurter: You said it destroyed -- it affects all the other -- it affects the other defendants because of Halperin's sentence.
Rudolph Stand: Yes, but that subject will be elaborated --
Felix Frankfurter: All right.
Rudolph Stand: -- and dealt with --
Felix Frankfurter: I'm -- I'm sorry.
Rudolph Stand: -- in two phases by my learned friend Mr. Singer. I will get right down to the rock bottom question here involved that I'm going to argue matters that question of multiplicity of conspiracies. I will of necessity just have to touch in broadest outline some of the facts with respect to Bolich because in a large measure his case stands on a different footing from that of the other petitioners. Bolich was Assistant Commissioner of Internal Revenue during the period involved in this prosecution and I'm speaking now of 1948. He was the Special Agent in charge of the four Bureau in the City of New York. As Mr. Bennett pointed out, two companies were under investigation by the federal authorities, the Patullo Modes Company which was a dress manufacturing concern and the Gotham Beef Company which was engaged in business in New York City. Both of these corporations who were in hot water, who were in difficulties with the Government were represented by a co-conspirator and a named defendant in this indictment which case was severed from that of the petitioners before this Court. They were the clients of a man named Davis, who was a member of the law affirm of Davis and Schopick, and who had in their employ a man named Hoffman who was a stirrer for this law affirm and although not a lawyer shared a major portion of the income of these attorneys. The case of the Gotham Beef Company came to Special Agent Bolich's attention in 1948 when Davis, representing himself to be their attorney, called on this official at whose duty it was to receive taxpayers, whose duty it was to receive any attorney representing taxpayers and Davis represented to Bolich that there was no tax evasion affecting his client. Whereupon Bolich, the petitioner said, "Who is the conferee in charge with this investigation?" And he was told that it was a man named Kuehl. Whereupon, Bolich said, "Go to the conferee, submit what facts you have and the matter will take its regular course." Of course, I don't want to present merely one side of this picture. The Government contends that Bolich was perhaps influenced in his conduct in connection with the Gotham case because Davis had claimed he had difficulty in contacting Mr. Bolich, that whenever he tried to phone him he was busily engaged either on the telephone or in conference with the Treasury Department officials. But when the petitioners Halperin and Grunewald got into the picture, a conference was speedily arranged within the course of a few days. I notice the -- the flash so I'll have to cutdown on the -- the outline of my facts, but I will sum up the Gotham case. The record is -- is unchallenged that Kuehl recommended no prosecution in the Gotham case. It was confirmed by Baradel, a respected official who was 30 years in the -- in the Internal Revenue service. And going to the Patullo case which I can only touch on in a moment, in that case Baradel made a recommendation that there wasn't -- that there'd be no prosecution after he had ascertained from Commissioner Bolich, that Bolich had agreed with attorneys representing these -- these taxpayers, that if they made full -- if they had shown full cooperation to the Government that the case could be -- would be given a non-prosecution consideration. Both Kuehl and both Baradel said that their judgment was not in anyway influenced by Bolich. Now, in this case, there were four volumes of testimony covering over 1900 pages with Bolich's name not even mentioned accepting -- by one witness who gave his -- a testimony regarding the Gotham case. There were a series -- all the list indictment charged one long continuing conspiracy with this element of concealment which eventually was resulted in the trial court directing an acquittal as to Counts 5, 6, and 7 with respect to Bolich and Grunewald. It appeared beyond any question from the evidence that there were a series of separate independent wholly unrelated transactions. Incidentally, on the Count 2, there were two officials -- two revenue agents, Steinberg and Scherm, who were charged with having acted in concert with Bolich under Count 2, which the Court of Appeals said was substantially the same as Count 1. And therefore, vacated the fine imposed but held that there was no prejudice because the prison sentence is ran concurrently. We have evidence of all these transactions, where all of which went in on the theory of that their declarations would be admissible against the petitioner Bolich. And we claim without going into details that our case falls directly within the principles of the Kotteakos case. Both the judges charge in the Kotteakos case and the charge in this case stated as a matter of law that there was one single conspiracy. When Your Honors examine this record, you'll find at least eight or nine separate conspiracies which by the very nature in a seven weeks trial so overwhelmed less petition of Bolich, they could not have been -- could not have received a fair trial in this case. The courts have repeatedly been concerned with the -- with the abuse of the conspiracy statute and especially where a single charge is made and more than one charge is proven.
Earl Warren: Mr. Singer.
Henry G. Singer: I shall approach directly in this constitutional question in -- in the Raffel case. But briefly before I go and just for two minutes let me give you the setting in which it occurred. Halperin who was convicted here was called before a grand jury, he was lawyer. He was called before a grand jury in 1952, before Your Honors had decided the Ullmann, Quinn, Emspak cases. And when he went before that grand jury, he was questioned about the incidence which become or later became a part of the indictment and part of the trial. And for the first time that I can find in recorded cases, a defendant told the grand jury, Mr. Halperin, that he refused to answer but that he was innocent. I want that to remain because that's in the record. He also told the grand jury and not only would he refuse to answer on the ground under the Fifth Amendment but because two, he was acting on the advice of his counsel. Three, he had no right to cross-examine the witnesses. And four, he was being -- being deprived of the right to be confronted by the witnesses. And so much for that until we come to the trial, it took place some three years later almost until today. And now Halperin fulfilled the promise that he had made in the grand jury when he said he was innocent. That he had -- didn't have the right to cross-examine the witnesses or be confronted by him or have the assistance of counsel. He took the stand and he was the only one of the petitioners who did and proved his innocence to the point at least where Judge Frank in his dissenting opinion said there was sufficient -- what I -- his exact words are quoted there was sufficient to warrant the jury acquitting Halperin. Now, the cross-examination now started by the Government after the direct was completed and Halperin was asked whether or not he had refused to answer before the grand jury some three years before. And he said he had over objection, exception in the various motion. Well, he moved for a mistrial, we did everything he could legally do to stop the proceeding. The Court took the position that under the Raffel case and under this Court's denial of certiorari which of course was never an authority, that the -- the District Attorney had a right to bring out the denial, the refusal to answer on the very minute with an inconsistent statement. And I want to take that problem first because that's the serious problem, first in the point of cross-examination before we even discuss the constitutional question. Now, I say to Your Honors directly, what's inconsistent about a man telling a grand jury he's innocent and telling a trial jury he's innocent? Merely because -- now, this was the classic example and even judge -- and the -- Judge Medina in the prevailing opinion pointed out that Halperin had told the grand jury he was innocent and the other things I told. Of course the direct examination didn't disclose it. And I couldn't bring it out until I could get possession of the grand jury minutes during the recess or overnight to show that Halperin had -- that the statements weren't inconsistent. That he had said to the jury below, the grand jury that he was innocent and that there was no difference in his testimony. Now, the theory of inconsistency having been dissipated, there was no basis for asking a witness a prior statement which was consistent that didn't exist. And so, the Government comes before you know and says, "We have a little different bearing, we say we don't know whether it's consistent or inconsistent but we will go to the extent." Then this -- as I pointed out in my reply brief would say there's a difference between the two. In the one place, he refused to answer, of course they leave out the words saying he was innocent and arrested but in this place he didn't. I say that's hornbook law that it isn't the difference that justifies cross-examination, its inconsistency. And as a matter of fact, they say to Your Honors directly that if Halperin had not testified before the District Court when he was tried under the indictment, he would then have been inconsistent. Because to claim your innocence in one place and then refuse to testify later when you have a fair chance represented by counsel with a judge present, that might then have been inconsistent but of course Halperin did testify. And so now, we're going -- and we -- if we will -- we look at the Raffel case and see first whether it even applies to this situation. Raffel at his first trial -- I don't want to go into the facts, I think Your Honors are all familiar with it, didn't testify at all because there was some claim by some federal agent that Raffel had made an admission. At the -- and there was a disagreement at the second trial Raffel did testify. And then he was asked whether or not he had testified at the first trial, objection finally ordered to say that he did. Now, when the matter came to this Court and Mr. Justice Stone wrote on it, he wrote on a certified question by the old then Circuit Court of Appeals and he said that it was all right to ask him. But there was no claim made at that trial, no charge in the Raffel case that I can find in the record, although Judge Stone speaks of it as a reason for something. If your credibility -- the witness' credibility could be judged on the basis of his refusal to testify ones in his present testimony. But the key to the whole point comes to this very -- the number of the question. Judge Stone says that the right to refuse to answer is a voluntary one that goes to the witness and is his to claim or to reject. That is not our case. And rapidly, let me show you why it isn't. When Halperin was called before the grand jury as a witness, he wasn't like Raffel who had the choice not to take the stand, nobody could comment on it, the Court would have to tell the jury that his failure to testify shouldn't be considered. Oh, no, Halperin was by the very Government itself put into the position where he could not voluntarily make the choice of testifying or not testifying, he was called, he was sworn, he was asked and then it was the Government compelled him. So that when he took the -- took the stand on his own trial, he was in quite a different position than Raffel. Raffel, as I said before like any defendant, didn't have to testify, the Government forced Halperin as a witness and when they did it they might just as well have said, "You, Mr. Halperin, already witnessed before a grand jury. Forget your constitutional privilege because the moment we decide not to give it, we'll call you before a grand jury, have and put you in a position where every lawyer with any reason or -- or rationale of logical thought," would say to him, "Don't answer any questions if you can possibly avoid them." And now they say, "When you come to Court and you do testify in an open trial, we're going to tell the jury that before they can judge the truthfulness of what you say on this subject, we ask you to consider the fact that you, Mr. Witness or Mr. Defendant, have refused to answer the same question before a grand jury." And I say that this Court has gotten away long ago from the Raffel case, you first did it in the Johnson case. It seems to me as clear as crystal that you said or maybe you didn't say directly that the Raffel case was wrong but you certainly wouldn't apply it to Johnson, but the case was affirmed because his counsel had waived all of the objections. Then you had -- had it in four cases running together Emspak, Ullmann, Slochower and Quinn. And there each time this Court said that it was not any reflection with respect to guilt or innocence for a man to plea the Fifth Amendment. And although Your Honors had not yet decided the Ullmann case and the Slochower case when this case was tried, we ask the court below to charge the jury that an innocent man might honestly claim the privileges of the Fifth Amendment. Now, it's strange but perhaps lawyers do think as this Court ultimately determines matters and we hope we can at times guess what you might find because we had -- this was the exact situation. Now, I find that the Circuit Court in the majority and minority opinion say that our request to charge was right. The Government in its brief here say that our request to charge was right. However, the judge refused it and when he did, it's true that he told the jury that you couldn't consider Halperin's refusal to testify on the question of his guilt or innocence but that you could consider his refusal to testify before the grand jury on the question of his credibility with respect to the answers to those questions. Well now, if ever I heard in my mind a distinction without a difference, that's it. What is there in a defendant before a jury other than his credibility when he denies complicity in the crime, there's nothing else. And to say on the one hand that you're not to consider it on the question of his guilt or innocence and on the other hand to say they should've consider it on the question of whether you believe him or not is certainly to say to a jury and if you don't believe him convict him. And you may not -- and you have a right not to believe him because he once pleaded the Fifth Amendment. Now, what's the purpose of the amendment? It's either a right or take it away. Now --
Felix Frankfurter: May I --
Henry G. Singer: Yes.
Felix Frankfurter: May I interrupt you? Would you please state all that the judge has charged --
Henry G. Singer: Yes.
Felix Frankfurter: -- on this subject matter, namely, that he --
Henry G. Singer: I --
Felix Frankfurter: -- declined your request --
Henry G. Singer: If -- if the client --
Felix Frankfurter: -- for an affirmative charge that an -- that pleading the Fifth Amendment may be a plea by an innocent man, he denied that?
Henry G. Singer: Yes, sir. I would --
Felix Frankfurter: He gave a -- in fact gave a charge that they're not to have counted against him?
Henry G. Singer: Against him on the question of his guilt or innocence, not and -- but he specifically said, and his whole charge is quoted in full at pages 718 in my brief. And he said twice he did more than that. Oh, no. He told the jury and I don't know why he did it, but it was a gratuitous statement and I think it was as harmful as to even mention of the Fifth Amendment. He said it was proper and he said it twice, it was proper for the Government to cross-examine the defendant Halperin on his claim of the privilege. But he forgot to tell the jury that Halperin had told the grand jury that he was innocent and the other reasons. So all that we had left was not a fair, if we -- if we would even go to this extent why come in fairness would have -- would have almost demanded I say. That if you're going to put two so-called different statements before a grand -- before a jury, you should put all of both. Not purely the word Fifth Amendment which apparently carries with it and no matter what the courts may say, no matter what anyone of you -- how he feel the (Inaudible) of guilt. There's no question about it today in the layman's mind, we've heard it in the last few days. I might say even the chief executive made some comment in that regard within the last week, somebody had -- somebody who had something to hide.
Felix Frankfurter: Now, may I --
Henry G. Singer: Yes.
Felix Frankfurter: Is this a fair summary of what the charge was? Mr. Davis will correct me if he thinks it's unfair, if it is not accurate. He -- he told the jury that they mustn't -- they mustn't draw anything against the defendant for his failure to take -- to answer before the grand jury, but he also told him that it was quite proper for the Government to bring that fact out as an impeaching element of his credibility.
Henry G. Singer: That's correct, sir.
Felix Frankfurter: All right.
Henry G. Singer: Now, I say that taking that alone coupled with his failure to put all the facts, we took the proper exception in this regard that we now had a position where there was neither the Fifth Amendment nor a discrepancy nor a difference. Of course, I must stop at this point, this Fifth Amendment comes out and this question will come up in my discussion tomorrow on the two other questions which your -- the Court has certified for my discussion. I wanted to point out that if the defendant and the -- Judge Frank seems -- went -- went on this theory, that if a man had a right to testify under the statute 3481 of the Title 18, he had a right to do it without the Government having -- and I like to use judge -- Justice Frankfurter's words, without the Government having thrown a block at him before he went to trial, by having called him before the grand jury, forced him in there and then question. Now, it's true it wasn't the same grand jury that indicted him but it's true that they used the evidence. And so I say to Your Honor, on this phase of the -- of our -- of the discussion, this was error that went right to the heart of the case. With it, Halperin had to stay convicted. Without it, as Judge Frank said, he had a fair chance to be acquitted. In addition, we went along further than that. The judge during his cross-examination said to Halperin, "When you said before the grand jury that you refuse to answer on the ground of self-incrimination, was that true?" Which would indicate of course that and mind you the question, some of them were directly to the heart of this case and some were as to in -- of what I would deem inconsequential matters. When we objected the Court said, "Well, I want to know was he telling the grand jury the truth when he refuse to answer on the ground of self-incrimination?" And I say to the Court that again at that the point the Court forgotten his cross-examination and he destroyed the defendant at that time to point out that the man said he was innocent. But that he -- he was in a position, where as the record would show, that to testify at that time was to subject him to criminal charges, not the ones involved in this case. There was a cabal against -- against Halperin. There was a conspiracy by other people to have him indicted for perjury. There was no question that this went right to the heart of the case.
Earl Warren: Well, we're very close to four-thirty (Voice Overlap) --
Henry G. Singer: Well, that's why I --
Earl Warren: Mr. Davis, you --
Henry G. Singer: That's why I stopped, Your Honor.
Earl Warren: We'll adjourn.