Earl Warren: Number 156, Elmer F. Remmer versus United States of America.
Leslie C. Gillen: May it please the Court. This case presents these questions.Did the defendant in the criminal income tax case receive a fair trial at the hands of an impartial jury when unknown to the defense, these things were happening during the trial. A friend of the jury foreman met with and conversed with the jury foreman and told him that the defendant was a tax evader and proposed to him the possibility of receiving a bribe. The F.B.I. investigated the matter. An F.B.I. agent interviewed this juror during the trial. The judge, the trial judge and the United States Attorney prosecuting the case determined to keep this matter concealed completely from the defense which they did. And later, a Deputy United States Marshal in charge of the jury revealed the happening to a second juror and told this second juror that there had been an attempt to tamper with the jury. Now, it may please the Court before embarking upon the facts that I believe should be considered here. May I take a moment of the Court's time to record to the Court the judicial events that brought this case before this Court today? The petitioner was indicted for three income -- three income tax years returns for himself and his wife. On February 22nd, 1952, he was convicted or two of these years and that the jury disagreed as to one other year which happen to be the largest year involved. The trial lasted for three full months and this was an involved and closed network case and the jury deliberated for two days. Now, a tiny motion was made for a new trial and included in that motion was a motion for a hearing on the extraneous jury contacts which incidentally came to the attention of the defense for the first time through inquiries by newspaper reporters, the morning after the verdict was returned. The Court denied a hearing of the extraneous jury contacts and this was upheld by a decision of the Appellate Court for the Ninth Circuit. This Court held that it was error to deny the right to a hearing on the extraneous jury contacts and remanded the matter to the District Court with a directive that, an inquiry, a full hearing should be given to the jury incident to determine whether or not the incident complained of was harmful. The matter was assigned to United States District Judge Goodman of the Northern Districts of California and the hearing was held in Reno -- in Carson City, Nevada. The -- Judge Goodman on July 10th, 1954 made a finding and wrote an opinion in which he found that the incident was harmless. The petitioner petitioned this Court for a rehearing which was granted and the entire matter that is the extraneous jury incident and the other points that had been raised in the initial appeal were remanded by this Court to the Ninth Circuit. Now, when that was done, the petitioner, because this particular jury question had never been briefed or orally argued particularly since the remanded hearing, the petitioner petitioned the Circuit Court for permission to file briefs, seriatim briefs and to present an oral argument. The Circuit Court ordered that concurrent briefs to be filed and denied the right to argue and part of the matter submitted without argument. The Circuit Court returned a per curiam opinion in which no reference are mentioned or discussion was contained concerning any point that was raised including of course this jury point. Now, the -- the petitioner then appealed to this Court and certiorari was granted and this, may it please the Court, is the first opportunity that we have or that we have had to present oral argument on this particular point. The petitioner wishes to present to this Court three major contentions. The first contention is that the evidence developed -- that they developed at the remanded hearing before the District Court, not only fails to overcome the presumption of prejudice but on the contrary, it reveals such a shocking disregard for simple justice as to leave no conclusion except the prejudice resulted. Our second major contention is that the District Judge, Judge Goodman, assigned to the remanded hearing misconstrued the scope of this Court's order with regard to what sort of a hearing should be held. And third, we contend that District Judge Goodman applied incorrect rules to the presumption of prejudice. Now, may it please the Court, very briefly the facts in this matter are these. The trial started on November 28th in Carson City, Nevada and as I have indicated, the Court ended on February 22nd, 1952. On the night of December, 18th, when the trial was a little more than two weeks under way, Mr. I. J. Smith, the juror, who later became a foreman of the jury and incidentally, there were two alternate jurors who sat throughout the trial. Mr. Smith received a visit at his home from one Satterly. Now, Mr. Satterly was a professional craft dealer. He was a felon. He had been convicted of a felony and had served time in Oregon penitentiary. He was a business client of Mr. Smith's. He was a hunting companion of Mr. Smith. He was a friend whom Mr. Smith described as one whom he knew quite well. The ostensible purpose of the visit was insurance business. Present at the visit were the two wives of the two men. The wives sat at one end of the living room, the two men setup the other end of the living room and a conversion was had and during the conversation, Mr. Satterly said to Mr. Smith, "You are on the jury. I know Bones Remmer very well. He sold Cal-Neva for $350,000 on top of the table. I believe he got rather $850,000 on top of the table. I believe he got $350,000 under the table. He has $300,000 that he daresn't -- D-A-R-E-S-N-T touch. "Why don't you make a deal with Bones?" Now, in order to avoid any confusion, I might explain to the Court that petitioner, Elmer F. Remmer has a nickname, Bones, and is commonly known as Bones Remmer. And I might also explain to the Court that the Cal-Neva referred to here is a summer resort in Lake Tahoe and it is so situated that the state lines of Nevada and California run through its main lobby so that legitimate gambling takes place on the Nevada side of the resort and the California side of the resort was simply a summer resort, and Remmer had owned controlling shares ultimately in the Cal-Neva corporation. Now, that was a quote, the exact quote which I gave, Your Honor, which was found in the F.B.I. or presented by the F.B.I. agent who investigated the matter. Now, when this was said to Mr. Smith, Mr. Smith replied heatedly and angrily and raised his voice to such a pitch that it attracted the attention of his wife at the other end of the room and he admonished Mr. Satterly, "I am on the jury. I can't discuss this case or you can't discuss this with me." Smith fretted over this incident, the true meaning and the true intention of these remarks by Mr. Satterly for two whole days as he sat on the jury. And on December the 28th, he determined that he should report the matter to the trial judge, Federal Judge Foley of the District of Nevada. And during the Court recess, the morning recess of the Court, he went into the judge's chambers and he reported the matter to the judge and the judge called in his secretary and had her take down in shorthand what Mr. Smith said and the quote that Mr. Smith attributed to Mr. Satterly. Now, for some reason we know not why, Mr. Smith didn't give Judge Foley the entire conversation at that time but he reported to Judge Foley that this was what Satterly said and I quote from the shorthand from the stenographer's notes that were made at that time. He said that Mr. Satterly said to him, "I know Bones Remmer. You are a member of the jury, why don't you make a deal with me?" And for some reason or other, he didn't make any reference to the Cal-Neva incident or the Cal-Neva reference by Satterly. The trial judge as I say called in a secretary, she took a note down and that became an exhibit at the hearing before Judge Goodman. Later that day, the trial judge called in the prosecuting Deputy United States Attorney, the man who was prosecuting the case and confidentially revealed to him what Smith had reported. And together, they determined that the F.B.I. should be called in to make an investigation and together, they determined that this matter should be concealed from the defense. And they were quite frank afterwards, both to the public press and at the hearing before Judge Goodman as to why they concealed it from the defense. They suspected that the defense had inspired Satterly's visit to Smith and if this were so, they wanted to catch the defense red-handed. Now, on December 22nd, two days later, an F.B.I. agent by the name of Collister visited and questioned Mr. Smith. And at that time, Mr. Smith gave the agent a more complete statement of what had transpired in the Satterly visit. And at that time, he gave Mr. Collister this more comprehensive quote and may I quote that again, he quoted --
Speaker: Where -- where -- where in the --
Leslie C. Gillen: I beg your pardon sir?
Speaker: How far on your brief?
Leslie C. Gillen: This, may it please the Court, is at page 167 of the hearing before Judge Goodman, the remanded hearing and it is an exhibit, is it (d), is it not?
Speaker: (Inaudible)
Leslie C. Gillen: Sir?
Speaker: The trial was (Inaudible)
Leslie C. Gillen: Yes, Your Honor. It had begun on November the 28th and continued throughout with some recesses.
Speaker: (Inaudible)
Leslie C. Gillen: Sir?
Speaker: There were no recesses in the trial during the Saturdays --
Leslie C. Gillen: There were Saturday and Sunday recesses and later on in the trial, may it please the Court, due to some blizzards there was a recess and also, there was a Christmas, one or two-day Christmas recess because Christmas, the Christmas season had intervened. I might -- might read from page 67 this exhibit -- 167 this exhibit, these were the notes of the F.B.I. agent. Smith "Yes, I'm busy everyday." He said, and that refers to Satterly. "I know Bones Remmer very well. He sold Cal-Neva club for $850,000 on top of the table, believed he got $350,000 under the table, has about $300,000 that he daresn't touch. Why don't you make a deal with Bones?" Smith stopped him. "You know Jim. I'm not supposed to talk about that case over there. I'm on the jury.” No more was said. The Court had questioned him not to talk about the case but a person persisted bring it to the attention of the Court. Thought that Satterly was feeling him out, I don't believe he has been in contact with Remmer but believe he would make arrangements if reception been cordial. Remmer watched Smith enter judge's chambers to talk to judge during recess Thursday morning, thought it over, decided to report it and so on. Now, if I may proceed. On December the 24th, 1951, the F.B.I. agent made a preliminary report to the prosecuting Deputy United States Attorney and in that report, he said that he had found no evidence to connect the defense with Satterly or Satterly's visit. And it might be noted here that the F.B.I. agent had not attempted to contact Satterly or to interview Satterly or nobody from the F.B.I. had. Sattery -- Satterly had left the State but Satterly's new out-of-state address had been provided by Smith or arranged to be obtained by Smith for the agent. On January the 4th, the agent reported his findings to the trial judge.Further investigation was suspended but the investigation was not closed. In fact, it was not closed for better than two months later. In fact, it was not closed until 16 days after the conviction of the petitioner and as I have stated to the Court, the defense knew nothing with these goings on throughout the entire trial and until the morning after the verdict was returned when newspaper reporters came and made inquiries of us as to what we would have done if we had known that these things had been going on. Now, on January the 4th, 1952 when the F.B.I. agent reported to the judge what he had found out. The F.B.I. agent told the judge about the reference to Cal-Neva and the over-the-table purchase price and the under-the-table purchase price incidentally, Cal-Neva -- Remmer's interest in Cal-Neva was sold along time after the closing bracket of the indictment period, years later. However, the Cal-Neva -- Remmer's financial connections with Cal-Neva Corporation was a very important issue in the trial because his growing account and various other things had been testified to by numerous witnesses throughout the trial. In fact, it was referred to in the opening statement, the trial judge knew that it was an issue and the trial judge learned as the trial went along before Smith reported to him and after Smith reported to him that Cal-Neva was a very important issue. Now, apparently, from the record, the first that the trial judge heard of the Cal-Neva reference by Satterly and his visit to Smith was when the reporter reported the matter -- the agent reported the matter to him. The trial judge did nothing to mitigate whatever had occurred here in the way of prejudice or bias. He -- he didn't declare a mistrial. He didn't call in the defense although in January the 4th, he was advised there was no evidence the defense had any culpability in this thing. He didn't replace Smith by one of the alternate jurors and he didn't even make -- but in our opinion would be -- have been a very feeble and futile attempt to disabuse Smith's mind of any bias that he may have had. And may it please the Court, throughout this entire trial then, Smith, later became foreman of the jury, Smith was left on tenterhooks. Smith was left without any knowledge or information as to what was happening to this investigation. For all he knew, he was under scrutiny and suspicion himself throughout the trial. For all he knew, Satterly might have been contacted by the nationwide F.B.I. organization and for all he knew Satterly for self-preservation, realizing that it was a serious matter might have attempted to turn the tables on him and said, "I didn't proposition Smith. Smith propositioned me. I didn't suggest the bribe to him. He suggested the bribe to me." For all Mr. Smith knew, those things were going on behind his back and we may well realize what could have been the natural reactions of Mr. Smith while he sat through that jury with this cloud hanging over his head. Certainly, it's not unreasonable to believe that Mr. Smith felt that his position was a very precarious one. Certainly, when he became foreman of the jury and commenced on his deliberations with the jury, Mr. Smith must -- as any human being would have felt, must have felt or must have considered seriously what will be thought of me or what will even happen to me if I dare vote for an acquittal in this case. Now, may it please the Court, the third -- the fourth extraneous contact took place with another juror by the name of Curnow, his friend with whom he belonged to a pistol team, the Deputy United States Marshal Boyd, he was one of the Marshals in charge of the jury encountered him during the trial at the time which he placed at about the middle of the three months -- of the three months trial and asked him if he had been approached by anyone on the outside about the case and told him, and there are two statements made by Mr. (Inaudible) on this, told him that somebody had attempted to bribe the juror or told him that somebody had attempted to approach a juror. Now, coming from a government official who is also his friend, it can readily be conceived that this left its mark upon Mr. (Inaudible) Mr. (Inaudible) when this matter was called to his attention by Mr. Boyd, remembered that he had seen a woman juror, a Mrs. Mack walking into the judges chambers and he concluded that it mustn't have been Mrs. Mack who was involved in this attempted approach. Now, as it developed a long time later, Mrs. Mack had paid during the course of the trial a visit to the judge in his chambers. And Mrs. Mack had gone there for an altogether different mission something to do with the health problem of her own. But certainly, this impression that was left with (Inaudible) was carried into the jury room by him when he deliberated. Now, may it please the Court, this Court in its previous decision in this case -- in its previous decision in this case stated that any -- in a criminal case, any private communication, contact or tampering directly or indirectly with the juror during a trial about the matter pending before the jury is for obvious reasons deemed presumptively prejudicial. If not made in pursuance of no on -- rules of court and instructions and directions of the Court made during the trial with full knowledge of the parties. Now, fitting the facts as I have related them to Your Honors with the example laid down, we find the facts to reveal this. There were four direct private communications and contacts involving two jurors during the trial. They were about the matter pending. They were not made in pursuance of known rules of the Court and the instructions and directions of the Court made during the trial and they were without the full knowledge of the parties because as I have said throughout the entire trial, the defense was ignorant of all these going on -- goings on behind their backs. For those reasons, may it please the Court, we contend that the petitioner by reason of these extraneous communications with the jurors, the petitioner was prejudiced in four specific respects. First, Satterly's pretended acquaintanceship incidentally developed later on at the remanded hearing, two and half years later that Satterly didn't know Remmer at all, only knew him by sight, knew his nickname, Bones. Satterly's pretended acquaintanceship with Remmer and Satterly's pretended knowledge that Remmer had gotten $350,000 under the table and therefore, evaded tax to that extent. And the fact that recounting the issue had become a very important issue throughout the trial in our opinion was never negative and that impression was left with the jurors who knew about it or heard about it particularly Mr. Smith. Second, the evidence taken at the remanded hearing does not establish that Satterly's bribery proposal was harmless or was a joke. And third, dependency of the F.B.I. investigation throughout the trial which kept Smith on tenterhooks and led him to believe that he might be under suspicion and scrutiny and the defense being kept in ignorance and certainly under suspicion because Satterly's -- Satterly had never been contacted or interviewed to determine what he meant by his remarks, we submit respectively deprive petitioner of a fair trial. Now, the Court -- this Court in its previous opinion in this case recognizes this danger in this language. The sending of an F.B.I. agent -- I quote, the sending of an F.B.I. agent in the midst of a trial to investigate a juror as to its conduct is bound to impress the juror and is very apt to do so unduly. A juror must be of free to exercise his functions without the F.B.I. or anyone else looking over his shoulder. Now, certainly Mr. Smith was left to believe having received no further information on the subject. He was left to believe that the F.B.I. and perhaps the -- the trial judge and perhaps the prosecuting attorney and Lord knows who else was looking over his shoulder as he sat there deliberating, listening to the evidence and ultimately deliberating on the jury. Now, on the case -- now, may it please the Court, reference has been made and in fact it was adapted and capitalized upon by the Government in this case that Satterly's approach may have been an innocuous approach, may have been a joke and the speculation that it was a joke has gathered momentum in the case. Now, I would like the Court's permission to just analyze whether anybody that was concerned with this matter at anytime treated it as a joke. Smith didn't treat it as a joke first because when the approach to him was made, he replied angrily to a client and a friend. He raised his voice heatedly so that it attracted his wife's attention. He worried and fretted for two days and then he went in and reported the matter to the trial judge during the trial. Now, the trial judge didn't treat it as a joke. He had his secretary take down a memorandum in shorthand and get the exact words that were spoken and they even noted the time that the report was made, 11:05 on the morning of December the 20th that Mr. Smith came into the chambers and reported this. The trial judge didn't take it as a joke or consider it as a joke when he called in the prosecuting attorney for the Government and confidentially told him what had happened. Now, the prosecutor didn't take it as a joke when he and the judge decided to call in the F.B.I. to make an investigation to see whether all this was inspired by the defense. And they didn't take it as a joke when they decided to keep it from the defense because they felt if they let the defense in on it, it would frustrate the investigation that they were going to have the F.B.I. make. Now, the F.B.I. didn't take it as a joke because the F.B.I. agent had to get an official clearance from Washington D.C. as to whether or not he should make the investigation. And the F.B.I. in Washington D.C. didn't consider it as a joke because they gave official authorization for the investigation to be made and the F.B.I. agent didn't consider it as a joke when he went and interviewed Mr. Smith. And Mr. Smith didn't consider it as a joke when he enlarged on the visit of Satterly. And none of the Government officials were involved and that thing considered as a joke when they held the investigation opened and didn't close it until 16 days after the trial had ended and the petitioner had been convicted. And certainly, Mr. Boyd, the Deputy United States Marshal in the middle of the trial didn't consider it as a joke when he told his friend, (Inaudible) that somebody had been -- had made an attempt to bribe or an attempt to tamper with the jury. And so we say, may it please the Court, that certain -- certainly this was not at anytime considered a joke by anyone concerned and this mere speculated contention that it might have been a joke is something that it is now being used -- is now being as an excuse for the flagrant conduct of this entire matter. No attempt was ever made even though it might have been to have abuse Smith's -- disabuse Smith's mind of the possibility that here was a serious thing that he was involved in. We feel that even if the attempt have been made that it would have been futile because we feel it from the very moment that this incident occurred with Satterly and Smith began worrying about it that Smith was fatally infected with prejudice. Now, may it please the Court, petitioner contends that Judge Goodman applied incorrect rules or rather Judge Goodman misconstrued the scope of this Court's directive on the remanded hearing. Judge Goodman interpreted this Court's remand to mean that this Court intended by the words that were used, intended that an inquiry should be made to determine whether the visit of the F.B.I. agent to Mr. Smith alone was harmful and to ignore all the other things in the -- and the results of those other things that occurred subsequently. We don't believe that Judge Goodman was warranted in adapting such a limited interpretation because this Court in its opinion used interchangeably the plural firm of -- form of the word "incidents" as well as the singular form of the word "incident". We had asked for a comprehensive hearing from the trial judge and from the Circuit Court and from this Court to determine just exactly what happened, and we believe, may it please the Court, that this Court was and is now concerned with everything that happened that may reasonably have created a prejudice in the minds of any juror or a juror whether it was an incident or whether it was several incidences. Now, may it please the Court, our final major contention is that Judge Goodman applied incorrect rules as to the presumption of innocence -- presumption of prejudice, I beg your pardon, presumption of prejudice. He followed -- he did not follow the rule that has been consistently adhered to by all of the decided cases that we have read passing on this problem. Those cases hold that the presumption of prejudice requires a new trial unless the circumstances foreclose any reasonable possibility of harm. And we understand that all the petitioner has to do is to show that the overt thing occurred and then from what occurred is to be determined whether or not any reasonable harm would have come or whether or not the presumption has been overcome by showing that it was entirely innocuous thing as some of the cases related where a judge -- trial judge steps to the door of the jury room and says, “Do you jurors want to go to lunch now or later today?” The -- we say, may it please the Court, that the hearing, the remanded hearing not only failed utterly to overcome the presumption of prejudice but as a matter of fact developed some additional things from which the only conclusion that could be reached was that prejudice resulted. Now, Judge Goodman in misapplying the rules concerning such an incident as this stated in his opinion as follows. And I will read from page 38 of the hearing transcript which is part of Judge Goodman's opinion. He says, "But that means, that decision would rest on conjecture and hypothesis and not fact. The Supreme Court had the power to decide the question involved as a matter of law. It did not do so, hence, our decision must be on fact." Now, may it please the Court, I think the answer to that is found in this Court's previous opinion -- previous opinion at page 229 of Remmer versus the United States, 347 U.S.229. This Court said, we do not know from this record nor does the petitioner know what actually transpired or whether the incidents that may have occurred were harmful or harmless. And I think that's the answer to why this Court didn't decide that at the time. In other words, there had never been a hearing held to determine just exactly what had happen, what had transpired and now, there was a hearing held to determine just what had happened. And that hearing we submit wasn't to be limited to one thing, it was to be limited, it was to encompass anything that may have violated the sanctity that surrounds a jury in any case. We feel, may it please the Court, that Judge Goodman took the position of removing the burden which this Court has said rest heavily upon the Government when such a thing occurs as this, remove the burden from the Government and place it upon the shoulders of the petitioner. And in effect require the petitioner to prove that he had been harmed rather than insist that the Government prove that the facts did not reveal reasonably that any harm could have been -- could have befallen the petitioner. Now, may it please the Court, we respectfully suggest after having read every decided case, I believe, extent involving the extraneous contacts with jurors. We believe that this is the most flagrant case of record. We believe that it is far more flagrant that what occurred even in the Mattox case because in this case, the judge participated in what went on and the judge honestly though he may have done it instead of attempting to mitigate the harm was to -- which was done actually exercise judgment which exaggerated or -- or aggravated what harm may have been done. And we submit, may it please the Court, that the conclusion that all of these things that I have related to this Court lead inevitably to the conclusion that there was prejudice that was never overcome that befell the defendant or the petitioner in this case. Thank you.
John R. Benney: May it please the Court. The Government's position in this case is that the District Court did carry out the mandate of this Court, it is previously here. And that the District Court did have before it Judge Goodman on the hearing sufficient evidence to show that the contact here were harmless. In this Court's prior opinion, it stated and I believe we have it in our brief at page -- in the Government's brief at page 24, it announced the rule that any private communication, contact or tampering directly or indirectly with the jury man during a trial about the case was being presumptively injurious or prejudicial. But that that presumption was not conclusive and it could be overcome by evidence, as I understand this Court's decision. But the burden is heavily on the Government to do that and we say the Government has met that burden in this case. There was a hearing of about three days, I believe. The Government presented the testimony of 26 witnesses, everyone who could possibly have any knowledge of the affair. The judge was not very scrupulous in following the rules of evidence and he let in most everything that came on. He gave the petitioner ample opportunity to cross-examine and the petitioner did make a searching -- conduct searching, cross-examination, the Government's principal witness. Now, we say that evidence was sufficient to overcome the presumption of prejudice that the trial court did not abuse its discretion in any manner in finding petitioner was not harmed by these incidents. Now, petitioner's counsel adverts to the fact that the trial judge seem to narrow this Court's opinion down to the F.B.I. investigation where he let in all of the evidence on the contact with the juror and as I see his decision, it decides it on all questions. Now, it's true that Mr. Satterly contacted juror Smith in this case during the trial. That is, he came to his house. He had legitimate business for coming to his house and this juror Smith was an insurance broker and real estate broker and Mr. Satterly had have some insurance business with him and he had -- he didn't come under a protest. He came there for business reasons and while he was there he made this statement, "I know Bones Remmer very well. He sold Cal-Neva Club for 850,000 on top of the table but he -- he got $350,000 under the table, has about $300,000 that he doesn't -- I believe the printer apparently didn't like the word "daresn't" so he -- he corrected it, "doesn't touch. Why don't you make a deal with Bones." Now, those are the words he said. And Mr. Smith, as the Court found, was a very upright and conscientious jury man. That statement bothered him a little. And he said in his testimony that he didn't consider it a serious joke in his own mind at that time, but that he -- that Satterly was accustomed to joking with him, bantering and playing jokes and hunting and shooting his -- someone who testified here that he was shooting the other man -- Mr. Smith decoys when he's hunting. He said -- what bothered him was the trial judge's instructions. Every act -- before every recess, the trial judge admonish the jurors to be careful about talking to anyone else or to let anyone else talk to them about it, about the case if they persisted. Now, he -- he was -- he had a little trouble in his mind. Mr. Satterly shut up quickly when Mr. Smith demonstrated with him, he couldn't talk to him about it. But Mr. Smith thought maybe that came within the judge's instructions and being a conscientious man, he finally decided to relieve his mind. He would have to report it to the judge. He did report it to the judge and at the time he reported it to the judge, he chose the judge, he didn't think it was serious. He thought it was a joke. That word joke is being used a great deal in here, I think, what he did was he didn't consider the serious remark. It was a passing remark made in a joking fashion to him and he stopped immediately. He told the judge that. The judge seemingly was of the opinion that it was and he told him to treat it as such. Now, some moment is made to the fact that the judge called in the F.B.I. Well, it was not an -- exactly the point of what the judge thought of it. It was the point with which Smith thought of it. Smith told the judge at that time -- we think that was evidence that corroborates Smith. The judge testified that Smith told him contemporaneously with this contact with him. A -- a very few days later, the F.B.I. man called upon him in his office.Privately, we admit we make no -- no goings about that. Everything was done here that's been said practically in the way of factual approach to the juror. We -- the F.B.I.man in talking to him received the same statement that he didn't think that Satterly was serious about it. He thought it was a jocular remark.So, so far as Smith was concerned that end of the matter. The judge, when the F.B.I. man came in, he told him, "He thought it was a joke." F.B.I. man made a report. Now, we say that that is strong evidence to support the judge's findings that Smith was not prejudiced. If he didn't take the remarks seriously then it follows that he wasn't prejudiced in the remark or wouldn't carry it along with him. Now, the judge made -- had the investigation made. He probably had some doubt in his mind of what this man Satterly was doing or what he was up to. He probably thought, well, we better investigate him and see what he did said -- say. Now, the -- the conference or the report by Smith to the judge apparently was a very hurried thing and between the recess of the Court in the morning. And it's quite understandable that the judge couldn't take time when his trial was on, he adjust the recess to call a further -- further recess to go on with it until he found out a little more about it. So, he called for the investigation and the F.B.I. man did investigate. Now, there is further testimony that Smith never considered it. He testified that he never consider this as coming from the defendant which of course supports his idea that it wasn't serious. Do you know -- have any idea it was coming or emanating from the defendants at all in anyway fashion. So, his -- his view was that it was not coming from the defendant and that if he had thought that Satterly was serious, he would have thought merely that Satterly was probably just trying to make a deal on his own since -- feeling him out to see whether or not he might be subject to something if he, Satterly, wanted to going in a little farther with it. Now, he had a right probably to think along those lines. Satterly, quite didn't -- didn't seem to have any -- he was working in gambling establishments. Didn't seem to have any regular business or profession, perhaps he made his money on his ways. I don't know it, inferences somewhat along that line. Now -- now -- when -- now, there is also evidence by Mrs. Satterly who said that her husband was always a joker. She testified that. Satterly by the way could not recall whether or not -- he could not recall rather that he had made the remark. He said if he had made such a remark, it was only in fun. Now, we say all of that, the totality of things there were something that the District Court could rely on a showing that Mr. Smith wasn't prejudiced by the remark itself and we say that the fact that he didn't consider is coming from the defendant adds to that and supports it. And we say that the judge's testimony and the testimony of the F.B.I. agent that Smith told them contemporaneously with the act incident that he didn't consider it seriously. We think that is a corroboration of Mr. Smith's statement after hearing here that he didn't consider it seriously at the time and considered it was made in a jocular mood at that time. Now, later on in the hearing, Mr. Smith testified that he wiped the matter from his mind after the -- he talked to the judge and the F.B.I. man. He had nothing more in his mind about it that it -- he wiped it from his mind, it -- to the extent that he forgot. Now, we say all of these things tied in together make a picture from which the Court could reasonably find that Mr. Smith was not prejudiced at any time. We must remember that this was a long trial. It went on for weeks after this and Mr. Smith said that when he came out to the courtroom after the verdict had been rendered and the newspaperman were waiting to meet him and asked him about it that he was dumbfounded that it came up again at the question. He was astonished by the whole thing. Said he'd -- he'd wiped it from his mind, didn't remember. He dismissed the whole thing from his mind. Now, I want to make one statement about the Satterly statement itself. Now, it is -- there's an inference in there, of course, there some quite of an inference in there of bribery or some imaginative. Possibly, you can conjecture that the man meant some bribery under some circumstances but it isn't a direct and persistent attempt with the man who had the potential service fee power to carry it through. He made the statement. He stopped. Mr. Smith knew he was going to leave Reno permanently the next day at least he told him. He was on his way, that is, everything packed when he come by. The reason he came by to Smith because he'd had an accident with his automobile and got another automobile and he had to have his insurance transferred. But he knew he was going to leave Reno the next day and going to leave the State. So, we say that taking all that in its totality, it -- it isn't like a persistent offer to bribe somebody, a definite offer to bribe. It isn't as serious as that in my opinion and in situations where there is a strong implication that it comes from one of the parties in the case. Here, I don't think there was any implication at all that Mr. Satterly was there at the behest of the defendant or any other party in that case. And Mr. Smith felt the same way about it and he was the man contacted. He isn't a -- a man who was evasive in any fashion. He isn't a man who can say anything about it. He wanted to relieve his mind. He wanted to be honest about it. He went to the judge and I think he did relieve his mind. I think instead of hurting the defendant by going to the judge, I think he helped the defendant. He relieved his own mind of any prejudice of any he ever had. Any lingering doubts that he had if he had any. He says they were on the judge's instructions, not that it came from the defendant or not that he was serious. But he was a little worried about the judge's instructions. Now, we think all of those things tie in. Now, Mr. Smith testified directly, he didn't have any prejudice in his mind. That was admitted by the trial judge with a great deal of misgiving. He was afraid that authorities might be divided as to whether that was admissible. Now, there are authorities to the effect. It is admissible if it's corroborated and we say it's corroborated here, there's something corroborated here because Smith testified he didn't consider it seriously and that was corroborated by the judge's testimony and by the F.B.I. agent's testimony of what Smith said contemporaneously with the contact. So, we say that's corroborated. Now, we have -- we have the situation then. To sum up, we have another matter of the (Inaudible) jury. Now, I don't understand the record of saying that a deputy marshall told him that somebody had been approached. He asked him if he heard of any such a thing and when he asked him why he said, "Well, I'm just curious." Now, that the -- they didn't -- the District Judge didn't seem to find that there was another, that the evidence on that did find that the evidence was so vague and he didn't make finding on that. But he said he didn't make a finding that there was no -- no significance to it, no prejudice. He didn't say anything that would cause him to -- to put prejudice in his mind and I think the judge was correct in making that finding. Now, the Court of Appeals agreed with the judge that he was correct in his findings on these things. And we say that under a well-established rule of this Court laid down in the -- both the, I believe in a civil matter in the Group of Investors, I believe it is, Comstock versus Group of Investors. I have to find that in my brief, that -- and the Delanay case and Smith case. They're all cited on our -- I can't seem to (Inaudible) in a second. On those -- on those cases they -- let me find it now, Comstock, 32 -- page 32 of our brief, I believe. In those cases, this Court has laid down the rule and is followed pretty closely that when there's a concurrent findings of two courts below, this Court won't disturbed them unless an very exceptional error has been made. Now, we say there's been no such error made here because there was ample evidence before the District Court to support his decision. Now, his -- since he has made that decisions, since he has made the finding that there was no harm in conformity with this Court's mandate and that is what this Court said in this case to find out if it was harmful. Petitioner's says, "Oh, well there's a heavier burden than that on the Government. He says you got to show not only that there was no actual harm but you got to show that there was no reasonable possibility of harm.” Well, now he -- he seems to rely, I believe, on several cases. He relies on Stone, 113 F.2d CA6 and he relies on Little, 73 F.2d 861, and he also relies on Marine case, a District Court case in Delaware but that seems to me there's two particular cases there, Stone. Stone stated that it could -- the prejudice could be overcome only by showing that no harm might be done. Marine said, could be overcome only if it was shown that no harm could have taken place. And the Little case seems to hold, there isn't overcome unless the contact was necessarily harmless. Now, we say the rule of those three cases if applied here is in conflict with this Court's opinion in sending it back down. This Court said in its opinion that the presumption is rebuttable. Now, we say if you apply or could be a rule or might be a rule or unnecessarily rule, that turns the presumption into a conclusive presumption and there is no, shall I say mathematical way of showing there's no factual way of showing whether there could be harm or whether there might be harm or necessarily be harm. If there was no actual harm then what has the defendant to complain of, no actual harm. Now, I -- we believe that this Court laid down the correct law when it sent the case back and that it meant what it said. It said go down and handle the hearing and determine if it were -- if it was harmful to petitioner, if it was grant a new trial. We say that was what the Court did. It found as a fact and that there was no necessity of it to go into speculation as to what might be or what could be, what necessarily might be, et cetera. Now, we say that if a rule is laid down in this class of cases which foreclosess all fact finding then it opens a door to put some pretty serious abuses. We say that it would make it possible every little jury contact. Now, we're living in an age when juries aren't locked up and made to pass while they are going through their deliberations, as they once were. They are left -- he may leave, permitted to go home. Now, it seems humanly impossible that there may not be a transgression of the judge's orders once in a while but if there is a transgression, we say this Court has laid down the correct rule that go into the matter, hold a hearing and point out that there was any actual harm done. Now, if there's enough evidence to do that, that is all there is necessary and there's no need of a new trial. If it wasn't actually harm, we don't see why it is so important that there couldn't have been any harm, or might have been any harm. Now, as I say, if that -- if the answer -- if the -- the theory underlying that is that we must that all then is to protect the jury system which -- which of course, I agree that we must protect the jury system. It seems though we mustn't open the door to grave abuses of the jury system. It seems to me that it would be just as bad to open the door, as it would be to protect the system. You're going to protect it in the manner that may destroy it, that's dangerous. I -- I could -- a state of -- a statement of Justice Cardozo in Snyder versus Massachusetts, 291 U.S. 122, this was not a case of this kind. This was where -- it was a view by the jury without the defendant's presence, but he said concerning these very thin things that come on in criminal cases. He says there is danger that the criminal law will be brought into contempt, I put some starts. If gossamer possibilities of prejudice to a defendant or can nullify a sentence pronounced by a court of competent jurisdiction in obedience to law and set the guilty free. Now, we think that if he closes the door to fact findings and make conclusive presumptions that it's what that does, it would open the door to abuses and make every contact no matter what something that you couldn't answer. Now, we don't believe the lower court to be that.
Speaker: Well, nuances of that, is that it?
John R. Benney: No.
Speaker: So, is that whether you have any or -- perhaps some are done.
John R. Benney: If you made a conclusive presumption out of it. If you play a rule of law which makes it a conclusive presumption then of course there would have been no need for this Court to send it back down. It could have. It knew that the F.B.I. investigated. It knew that he was contacted through the precise words he said were not before the Court at that time.
Speaker: Well, the rule that you have here is that it then was the conclusion of the judge, whether there was any --
John R. Benney: Harm.
Speaker: Harm.
John R. Benney: That is a rule laid down by this Court in -- when the case was here previously, whether there was any harm to petitioner. Now, the judges found that.
Speaker: They're developed within the lower court on the defense so certain facts --
John R. Benney: That's right.
Speaker: -- gets --
John R. Benney: And the Court has found that there was no harm on those facts.
Speaker: Yes.
John R. Benney: Now, we say, the only reviewable problem here would be whether the judge abused his discretion. We think that's the only reviewable proposition that comes before this Court in the ultimate. Did he really -- did he abuse his discretion? Was there any reasonable amount of evidence there? Was there -- could -- I would say clear and convincing evidence that he -- that there was harm done.
Speaker: And the burden's the other way, isn't it?
John R. Benney: The burden is on the Government. We admit that's -- this Court told us, the burden was on the Government. We met that burden. We went ahead with the evidence, went on with 26 witnesses. We did all of that and we say now it's true. I -- I don't agree Your Honors that judges should talk to jurors by themselves or I don't believe that they ought to call in the F.B.I. during a case. But -- and it may will be that the Court made a mistake in doing that. But we say that matter was before the Court before and the Court sent it back for a hearing on the facts to determine harm, and we say therefore that if you can't say now that it would've lay him off at that time, that it would've come out anything more than come out at this time. A record was made of what was said and done, not only by the judge and but by the F.B.I. man. Now, it does seem that's a little different from everyone calling on his own memory at this late date to determine this. They are corroborated by written writings that were made contemporaneously with that. Now, we say that there was ample evidence here to do that, to show no harm. The Court was right in doing it. That the Court did follow the rule laid down by this Court for it to follow in determining whether there was harm, and that it was not under any duty to apply a rule of any other quantum or measure of evidence in order to decide the case. We respectfully submit that the decision should be affirmed.
Leslie C. Gillen: May it please the Court. I should like to answer one or two contentions made by my opponent. He began by saying very lightly that Mr. Smith after this encounter with Mr. Satterly, that it bothered his mind a little and that he reported it to the judge and after that, the weight of this burden was taken off his shoulders and he thought no more about it, everything was fine after that. But as a matter of fact throughout the entire trial Mr. Smith was, as I pointed out before I left, uninformed of what kind of an investigation was being made, what was being developed by it, what was the result of it, whether he was being watched or not. And as a matter of fact, we find and the record reveals that on the very night of February 22nd, 1952, immediately after the jury returned its verdict and was discharged. And on their way home that Mr. Smith was still fretting over, and worrying over, and puzzled over the contact that he had from Mr. Satterly -- with Mr. Stterly. There was an arrangement between these jurors, an expanse sharing arrangement that they would ride back and forth those who lived in Reno, back and forth to Carson City, a distance 30 miles where the case was being tried. And Mr. Smith, a juror, Mr. Timken, Juror Mrs. Mack, and a Juror -- Alternate Juror Morris rode back and fought together. As they were riding back to Reno, after returning the verdict on the night of February 22nd, 1952, as the record reveals, Mr. Smith advised or informed Mr. Timken that during the trial, he had been approached by someone and that he was not sure. But that he was being felt out to see whether or not he would be amenable to taking a bribe and that he had reported it to the judge and that is found at page 184 of the remanded hearing transcript. The question was by the United States Attorney, "Do you recall during that trip?" This is the trip home, "The conversation between you and Mr. Smith and Mrs. Mack?" Answer "It was a general conversation, what a relief it was to be through with the thing and what a strain it had been and so on and so forth." And then he says, I think this is the concluding lines of his answer. Mr. Smith mentioned that he didn't know whether he had been approached or not, and so he reported it to the judge and it was passed over. That was about the text to the thing. I couldn't say word for word. And on the next page, he was asked whether during the trip -- whether during the trip to from Carson City to Reno, "Did Mr. Smith tell you at that time, what happened to him?" Answer "That as you mean as to Satterly?” Question “Yes.” Answer “He didn't use any name as I can remember and as I've said, it was mentioned in a casual way. He -- he had thought possibly, he had been approached, and he had brought it to the judge.” Now -- and the question "He mentioned it on that trip?" Answer "Yes. That night." Now, that was the night after the -- immediately after returning the verdict. Now, on that night when they got from Carson City to Reno, they changed automobiles and Mr. Smith drove Mrs. Mack to her home at another part -- in another area of Reno. And, at that time, at her front door, they had a conversation. And that is found, may it please the Court, at page 174 and page 175 of the remanded hearing transcript. And this was -- I believe, the jury's examination -- oh, this is cross-examination and by myself, question “Mrs. Mac, did Mr. Irving Jay Smith ever thanked you for participating in finding Mr. Remmer guilty on some of the counts of the indictment and tell you that he had been under pressure?" Answer "He did." And on page 175, I might read the answer, "And when and where did he say that?" Answer "That night he brought me home from Carson City on February 23rd," it was the 22nd, she made an error on the date, "And picked up his car, Mr. Timken's house and brought me to my home at 105 Gardener Street. I asked Mr. Smith if owed him any money and he said, no, and I thanked him for the ride. And he also said to me, I want to thank you too Mrs. Mack because, I had been under terrible pressure." And lower down on the same page 175. Question "Did you ask Mr. Smith what he meant by his remark that he was under pressure?" Answer "I didn't truly ask Mr. Smith, no. He said, sometime I will discuss it or we will to get together and talk or something of that kind, and I thanked him and said good night." Now -- now, may it please the Court, a few days later or rather two weeks later, Mr. Smith met Mr. Morris, the Alternate Juror, Mr. Morris wasn't on the home trip from Carson City to Reno that night because the jury had been out two days, the alternate jurors had been excused so that Mr. Morris wasn't riding on that occasion. And two weeks later, he had met Mr. -- Mr. Smith and Mr. Morris met in Reno. Mr. Morris had by this time seen the publications in the Daily Press about this incident that had occurred during the trial, incidentally that as -- has always been a very significant thing. Throughout a three months trial, the defense was kept completely in the dark about this contact, the F.B.I. investigation, everything else. But the Deputy United States Marshal knew about it, and the press knew about it because immediately after the -- the jury went out, the press went to the United States Attorney and went to the judge and asked them, what about this contact that was made with the jury? It appears that a lot of people knew about it but certainly the defense didn't know about it. Now, when Mr. Morris, Elton Morris, the Alternate Juror and Mr. Smith met, Mr. Morris had seen this in the newspapers and Mr. Morris asked Mr. Smith about it. And the question is -- and the answer is on page 221 of the same remanded hearing transcript. Question "Well, did Mr. Smith tell you that the man told him --
Hugo L. Black: Did you say 221?
Leslie C. Gillen: I beg your pardon? 221, Your Honor, of the -- of the remanded hearing, Judge Goodman's hearing. The question was asked, "Well, did Mr. Smith tell you that the man told him if he strung along with Mr. Remmer as a juror in the case that he could make himself some month -- make himself a lot of money." Answer "Well, there were words to that effect." Question "By the way, do you know Satterly yourself?" Answer "I didn't know him till he was here, don't know who he was." And again on page 222, Mr. Morris testified. Question "Tell me what he said that is in regard to what he thought about Mr. Satterly approaching him." Answer "That he had known that man. That he joked a lot.” Did he evidently figured it was a joke -- that he evidently figured it was a joke? The reason he took it to the judge, he kind of wondered if the man was feeling him out or wasn't feeling him out and he just wanted to know what to do about it, the reason he took it to the judge." This was cross-examination. Now, I would like to answer with regard to what my opponent said about the Curnow act. Now, the Curnow incident was dismissed by Judge Goodman in a footnote of his opinion. But Mr. Curnow set a good deal or more about this contacted that was made with him by the Deputy United States Marshall, both in testimony and in -- in an affidavit that he made for an agent McGee of the F.B.I. The -- Curnow's testimony is found at page 209 of the particular testimony, I'm going to refer to, of the remanded hearing. He was asked, "Now Mr. -- now, Mr. Curnow did you say to Mr. McGee, the Federal Bureau of Investigation Agent that you have noted that Mrs. Mack, one of the two women jurors had gone into the judge's chambers, and you thought at the time Mr. Boyd's remark therefore concerned her. However, you later learned that she had been mentioning an illness problem to the judge, is that so?" Answer "Yes." Question "So in other words, when Mr. Boyd talked to you about some juror here being contacted, you recalled that you had seen Mrs. Mack going into the judge's chambers and you thought she was the juror who was approached, is that correct?" Now, may it please the Court, there was an exhibit taken from the United States Attorneys' Office and put in by the petitioner of this hearing, of this remanded hearing. And in that, and that is found at page 210 it says, defendant Exhibit F and that was a statement taken on March 23rd, 1954 at Reno, Nevada by F.B.I. agent Mr. McGee, who was evidently investigating in preparation for remand hearing for the United States Attorneys' Office. And that reads impart, I was a juror in the case of United States versus Elmer Remmer. I did not at anytime receive any information from I.J. Smith during the course of the trial that he had been approached by a person concerning a matter possibly connected with the trial. I do recall that during the trial I was asked by Deputy United States Marshal Hue Boyd, whether I had heard of anyone being contacted that is anyone on the juror -- jury. Mr. Boyd also asked me whether anyone on the jury had discussed anything indicating that someone on the jury had been contacted. I answered Mr. Boyd on the negative, since no such matter had come to my attention. I -- and then later in -- in the same affidavit probably page 211, the same transcript, as a matter of fact, I had noticed that Mrs. Mack had gone into the judge's chambers and I thought at the time that Boyd's remark might therefore concern her. However, I later learned that she had been mentioning an illness problem to the judge, so that Mr. Boyd and Mr. Curnow had discussed, may it please the Court, that there had been an approach or a contact with a juror and nothing had ever been done to negative or that in Mr. Curnow's mind or to disabuse Mr. Curnow's mind of what might have happened. Now, may it please the Court, we -- we cannot conceive how counsel can contend that the presumption of prejudice was overcome here in the light of these overt acts that were established at the remand hearing and that were presented to Your Honors this morning. We cannot see how counsel can distinguish this case from the Mattox case. And in our opinion, we feel that this case is more flagrant even as I have said in the Mattox case. The Court will remember that in the Mattox case, the matters complained of was that where that the -- that the bailiff who was in charged of the jury, had apparently in a friendly way, not an F.B.I. agent investigating a juror, but this bailiff had in a friendly way advised the jurors that he had some information on this case that this wasn't a first man that Mattox had killed, that Mattox had killed another man. Now, let us -- let us compare that with what happened here. A man approaches a juror and proposes the possibility of a bribe. Now as we said it didn't take it as a joke, despite what counsel said. He didn't take it as a joke said Smith didn't because he raised his voice angrily at this man that he knew who was given the joking. He raised his voice angrily. He fretted about it for two days, and he then went and reported it to the judge and two days after that, an F.B.I. agent was accusing him about the thing. The judge was setting a motion in the investigation. The prosecuting attorney was setting a motion in the investigation. The defense was kept in dark -- in the dark about the thing. Now, very closely akin to the Mattox case is the contact between Boyd and the -- the juror Curnow and that of course was a remark, not about something that the petitioner has done but about something that was being done with the juror. And it's not unreasonable to believe that, the only conclusion that could have been drawn by Mr. Curnow or the only conclusion that could've been drawn by Mr. Smith was that any illicit proposal or any improper conduct toward the jury was certainly not being done by the Government, it was being done by the defense. That's the only conclusion that they could've arrived at. And, may it please the Court, it became -- it became -- insofar as Mr. Smith was concerned, it became most harmful because of the reference to the under the table county, the corporation transaction. Because the record will show, may it please the Court, that there were numerous witnesses testifying right at the time that this was going on about Cal-Neva, making it a very important issue. December the 19th, there was testimony about the petitioner's relation, financial relations with Cal-Neva. December the 19th, there was testimony on that.December the 18th, Mr. Smith was contacted by Satterly. December the 20th, there was testimony of that -- about that commencing at 10 o'clock in the morning in the original transcript of the trial at page 1599. At 10:05 that morning there was a -- 10:05 that morning -- no at 11:05 that morning, I beg your pardon, 10:55 that morning, there was a recess taken, it is noted in the record, and the shorthand reporter's notes are at least this -- the judge's secretary's note showed that she took down this memorandum of Mr. Smith's visit to Judge Foley at 11:05 and there was a reconvening of the Court's morning session at 11:15. On December the 20th, there was testimony about Cal-Neva and the petitioner on January the 2nd, 1952, there was testimony about it from two witnesses. On January the 3rd, there was testimony about it from two witnesses. And on January the 4th, the day that -- that Judge Foley received the report from Mr. Collister, there was a day's recess because one of the Government attorneys had to be at hearing at San Francisco. And on the following court day, which is was a Monday, January 7th, now the judge had received the report, telling them for the first time about this important issue was discussed by Satterly and also telling him that the investigation showed no connection between the defense and Sattery. On January the 7th, there was further testimony about Cal-Neva and also, on January the 8th and for practically, every other day during the taking of testimony reference was made about the Cal-Neva transaction. And Mr. Smith was hearing that everyday. And Mr. Smith was remembering everyday that Satterly said, "I know this man, this defendant very well. He sold this place for $850,000. He got $350,000 under the table. He has $300,000 that's available. Why don't you make a deal with him, you're on the jury?" Now, may it please the Court, we submit that no reasonable purchase can review these facts and say here there was presented a situation which could not reasonable have caused either one of these jurors to have a -- a -- an incurable prejudice against the defendant in this case either to distress and dislike from what they thought might be going on or for fear of their involvement that they too should be charged with oppression. Thank you.