# Lutwak v. United States > Supreme Court of the United States · March 16, 1953 · 344 U.S. 604 URL: https://www.frixlaw.com/law-library/cases/9420874 ## Case - **Full name:** LUTWAK Et Al. v. UNITED STATES - **Court:** Supreme Court of the United States - **Decided:** March 16, 1953 - **Citations:** 344 U.S. 604; 73 S. Ct. 481; 97 L. Ed. 2d 593; 1953 U.S. LEXIS 2395 - **Precedential status:** Published - **Opinion:** Dissent by Jackson - **Judges:** Minton, Jackson, Black, Frankfurter - **Cited by:** 947 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9420874 ## How later opinions describe it (automated extraction) - holding that the “common understanding of a marriage, which Congress must have had in mind [in enacting the statute in question], is that the two parties have undertaken to establish a life together and assume certain duties and obligations.” - stating that a valid marriage may still be a sham marriage for purposes of § 1154(c) - holding defendants’ post-conspiracy acts were admissible because they showed the defendants' intent to deceive immigration authorities - noting a marriage’s adherence to local law is 21 immaterial if the marriage was “part of [a] conspiracy to defraud the United States” - noting a marriage’s adherence to local law is immaterial if the marriage was “part of [a] conspiracy to defraud the United States” ## Opinion text Mr. Justice Jackson, whom Mr. Justice Black and Mr. Justice Frankfurter join, dissenting. Whenever a court has a case where behavior that obviously is sordid can be proved to be criminal only with great difficulty, the effort to bridge the gap is apt to produce bad law. We are concerned about the effect of this decision in three respects. 1. We are not convinced that any crime has been proved, even on the assumption that all evidence in the record was admissible. These marriages were formally contracted in France, and there is no contention that they were forbidden or illegal there for any reason. It is admitted that some judicial procedure is necessary if the parties wish to be relieved of their obligations. Whether by reason of the reservations with which the parties entered into the marriages they could be annulled may be a nice question of French law, in view of the fact that no one of them deceived the other. We should expect it to be an even nicer question whether a third party, such as the state in a criminal process, could simply ignore the ceremony and its consequences, as the Government does here. We start with marriages that either are valid or at least have not been proved to be invalid in their inception. The Court brushes this question aside as immaterial, but we think it goes to the very existence of an *621 offense. If the parties are validly married, even though the marriage is a sordid one, we should suppose that would end the case. On the other hand, if the marriage ceremonies were for some reason utterly void and held for naught, as if they never had happened, the Government could well claim that entry into the United States as married persons was fraud. But between these two extremes is the more likely case — marriages that are not void but perhaps voidable. In one of these cases, the parties (on the trial) expressed their desire to stay married, and they were acquitted; and no one contends that their marriage is void. Certainly if these marriages were merely voidable and had not been adjudged void at the time of the entry into this country, it was not a fraud to represent them as subsisting. We should think that the parties to them might have been prosecuted with as much reason if they had represented themselves to be single. Marriages of convenience are not uncommon and it cannot be that we would hold it a fraud for one who has contracted a marriage not forbidden by law to represent himself as wedded, even if there were grounds for annulment or divorce and proceedings to that end were contemplated. The effect of any reservations of the parties in contracting the marriages would seem to be governed by the law of France. It does not seem justifiable to assume what we all know is not true — that French law and our law are the same. Such a view ignores some of the most elementary facts of legal history — the French reception of Roman law, the consequences of the Revolution, and the Napoleonic codifications. If the Government contends that these marriages were ineffectual from the beginning, it would seem to require proof of particular rules of the French law of domestic relations. 2. “The federal courts have held that one spouse cannot testify against the other unless the defendant spouse *622 waives the privilege. . . Griffin v. United States, 336 U. S. 704, 714 , and cases cited. The Court condones a departure from this rule here because, it says, the relationship was not genuine. We need not decide what effect it would have on the privilege if independent testimony established that the matrimonial relationship was only nominal. Even then, we would think the formal relationship would be respected unless the trial court, on the question of privilege, wanted to try a collateral issue. However, in this case, the trial court could only conclude that the marriage was a sham from the very testimony whose admissibility is in question. The Court’s position seems to be that privileged testimony may be received to destroy its own privilege. We think this is not allowable, for the same reason that one cannot lift himself by his own bootstraps. 3. We agree with the Court that the crime, if any, was complete when the alien parties obtained entry into the United States on December 5. We think this was the necessary result of the holding in Krulewitch v. United States, 336 U. S. 440 . This requires rejection of the Government’s contention that every conspiracy includes an implied secondary conspiracy to conceal the facts. This revival of the long-discredited doctrine of constructive conspiracy would postpone operation of the statute of limitations indefinitely and make all manner of subsequent acts and statements by each conspirator admissible in evidence against all. But, while the Court accepts the view of Krulewitch , we think its ruling on subsequent acts and declarations largely nullifies the effect of that decision and exemplifies the dangers pointed out therein. For present purposes, we need not maintain that no admission or act of a conspirator occurring after the conspiracy has accomplished its object is admissible against a co-conspirator. And we do not question that at times *623 such evidence is admissible against the actor or speaker alone. But one of the additional leverages obtained by the prosecution through proceeding as for conspiracy instead of as for the substantive offense is that it may get into evidence against one defendant acts or omissions which color the case against all. This case is a vivid illustration of that process in action. The statement of facts in the Government’s brief is punctuated by eight separate footnotes to explain that the testimony recited in the text was limited to one or another defendant. We doubt that any member of this Court, despite our experience in sifting testimony, can carry in mind what was admitted against whom, and we are confident the jury could not. We will not prolong this opinion with an analysis of this testimony. Some of it was very damaging. For example, testimony was admitted, limited to Munio Knoll; that on one occasion he returned to his apartment and had difficulty getting in. When he gained admittance, petitioner Lutwak was going out through the window, leaving Knoll’s wife to explain the phenomenon if she could. This testimony was not admitted against Lutwak, and the jury was adequately warned not to use it against him. But does anybody believe that the jury could forget that picture of Lutwak being caught.taking hasty leave of his co-conspirator’s wife and making a somewhat irregular exit? The salutary rule that evidence of acts which occurred long after the conspiracy terminated is admissible only against particular defendants should be observed in spirit as well as in letter. Here much of such evidence was of such remote probative value, and the instruction limiting its use was so predictably ineffectual, that its admission violated a substantial right of those defendants against whom it could not be used. For these reasons we are impelled to dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9420874. Public record. Not legal advice.