Petitioners Brief — Cohen v. United States

IN THE

Supreme Court of the United States

October Term, 1944

EmANUEL Max ConeN and ALBERT

CHARLES SCHNEE,

Appellants,

US.

Unitrep STATES OF AMERICA,

Appellee.

BRIEF IN SUPPORT OF PETITION FOR WRIT

OF CERTIORARI.

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To the Honorable Harlan F. Stone, Chief Justice of the

United States Supreme Court. and to the Honorable

Associate Justices Thereof:

I.

The Ninth Circuit Court of Appeals Erred in Holding

That Local Selective Service Board No. 199 Had

Any Jurisdiction of James L. Sartor After He

Had Been Inducted Into the Armed Services;

Without Such Jurisdiction No Offense Was Com-

mitted.

Selective Training Civil Service Act of September

16, 1944, as amended:

54 Stat. 8&5 C-720, 50 U.S. C. A. Appx. section

301 et Seq.

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Il.

The Ninth Circuit Court of Appeals Erred in Taking

Into Consideration on Rehearing Secret Directives

of the Selective Service Director Entitled “Local

Board Memorandum No. 80” Issued January 10,

1942, and “Memoranda or Directives to State Di-

rectors No. I-415” Dated April 17, 1942, and “No.

1-423” Dated May 18, 1942, and “State Director

Advice No. 204” Dated May 8, 1943.

None of these directives was introduced in evidence in

the trial of the case. No witnesses testified to them and

no witnesses were made available to the defendants who

could testify that there were other directives that might

have changed, altered or supplmented these directives or

whether any of them ever reached Local Boatd 199, or

that it ever had cognizance of them or were acting under

any so-called directives. None of these directives appear

in the Federal Register. It was therefore error for the

Circuit Court to consider them on the appeal of the case.

In its petition for rehearing the Government cited for

the first time various directives which it is claimed were

issued by Selective Service. (Appellee’s Petition pp.

10-13.)

The jurisdiction of the Circuit Court of Appeals is

strictly appellate. (Title 28, Sec. 225, U. S.C.) In the

absence of consent or stipulation of the defendants that

court was without power or authority to consider these

directives in reaching its decision.

It is respectfully submitted, therefore, that the Circuit

Court erred in taking cognizance of these so-called di-

rectives.

—23—

In Edwards v. U. S., 312 U. S. 473, 480; 85 L. Ed.

957. 963, the court said:

“The government introduced in the Court of Ap-

peals a purported transcript. .

“Finally, the government contends that the refusal

to order the production of the testimony was not

prejudicial. This argument presupposes that the of-

fer to produce in the trial court and that actual

production in the Circuit Court of Appeals was ade-

quate. Otherwise we cannot know what the testi-

mony was which is relied upon for the amnesty. We

think that neither offer was an adequate proffer. In

neither instance was the petitioner given an oppor-

tunity to cross-examine; no witness produced the

transcript; it was not certified as a part of the rec-

ord from the trial court or as a part of the records

of the agency. The record certified to the Circuit

Court of Appeals is the record on which the appeal

is to be heard. Criminal Appeals Rules VIII and

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The directives first produced by appellee on its peti-

tion for rehearing were no part of the record below. No

Witness testified to them. Their existence rests in the

secret files of the military organization. There may be

many others that may change or alter their tenor. Ap-

» _pellants had no opportunity to examine or cross-examine

the witness who produced them; neither the court nor

jury below, nor the Circuit Court, had the benefit of

such examination and cross-examination.

As said in the Edwards case. 312 U. S. at 482:

“The parties must be given an opportunity to plead

and prove their contentions or else the impressions

of the judge arising from sources outside the record

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dominates results. The requirement that allegations

must be supported by evidence tested by cross-ex-

amination protects against falsehood. The oppor-

tunity to assert rights through pleading and testi-

mony is essential to their successful protection. In-

fringement of that opportunity is forbidden.”

That the Government thought its own case was inade-

quate in the trial court is shown by the fact that it chose

to produce new evidence in the form of these directives

in the Circuit Court of Appeals. That the Circuit Court

thought the case below was inadequate is shown by the

fact that in that court the judgment was reversed until

this new evidence in the form of directives was presented

there.

The case should therefore be reversed, so that upon a

new trial both sides may elicit all the directives and pro-

ceedings by adequate testimony “tested by cross-examina-

tion” of witnesses, and so that the case may not be decided

“from sources outside the record.”

See also Burke v. Tregre, 22 L. Ed. 158, 159, 19 Wall.

519, 526, wherein it was said by this court:

“It may be that the courts of the country would

take judicial notice that Louisiana, at the time men-

tioned, was in the military occupation of our forces,

under General Banks, but we know of no rule of law

or practice requiring this, or any other court, to take

notice of the various orders issued by a military com-

mander in the exercise of the authority conferred

upon him.”

—25—

The Federal Register Act, Title 44, sections 305, 307,

provides that judicial notice may be taken of rules and

regulations published in the federal register. These di-

rectives are not among the rules and regulations published

in the federal register. Under the rule of inclusio unis

exclusio alterius the directives not published are not to be

given judicial notice.

, Ill.

The Ninth Circuit Court Erred in Extending the

Scope of the Directives Beyond Their Plain Lan-

guage Assuming That It Has Jurisdiction to Do

so, in Applying Such Directives to Local Draft

Boards, Not Specified in the Directives.

Regulation 1-415, dated April 17, 1942, is directed to

all state directors. Nothing is said in the regulation re-

garding /ocal boards, and nothing is said therein regard-

ing appeal agents. The conclusion of the Circuit Court

rests on sheer conjecture, and extends the words “state

directors” to include “local draft boards.”

The situation is comparable to that of employers of

persons inducted into the service who are asked for recom-

mendations, or where the Red Cross or social service or-

ganizations are asked for them. But these recommenda-

tions do not make the persons who are asked for them

liable as acting as officers of the United States.

The regulation dated May 8, 1943, which the Govern-

ment offered on rehearing, was a month and two days

after the date of the alleged conspiracy. which was March

6, 1943. But even in that regulation the responsibility is

placed upon the state director, not upon any local boards.

=

The Circuit Court of Appeals substituted the words

State

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“local board” and “appeal agent’? for the words

even in the directive. Thus it is respectfully

’

director,’

submitted that the Circuit Court superimposed and added

words in the directive for the purpose of establishing a

crime, and that the construction thus given the statute

and memoranda is a strained construction.

Since Sartor became a soldier, subject to the exclusive

jurisdiction of the Army, the power of the selective service

board had ended. This is shown by the action of the

Army in granting furloughs.

Another fact that we think the Circuit Court over-

looked in its affirmation of the judgment is that Cohen

at no time made a recommendation to the board. All of

his acts in behalf of Sartor were prior to March 6, 1943,

the date of the commencing of the alleged conspiracy.

He had written and sent a letter, it is true, but prior to

that date. He had done all that he thought was within

his power to aid Sartor prior to that date.

Harry H. Harrison, a member of Local Draft Board

199, said that on March 6, 1943, when the board had a

meeting, the matter of Sartor was presented to the board

and Cohen said to the board members that he “was going

to submit the case to us without recommendation as to

Private Sartor’ [R. 182]. “Cohen said, ‘It’s up to you

gentlemen, but it’s much better if a man goes into the

service not feeling resentful about anything.’ That is all

he said about the mental attitude of Mr. Sartor. He

submitted it to us for recommendation. He didn’t urge

us to grant it or not grant it.” [R. 185.]

This testimony negatives any evidence of acting for

money to influence his official action, or his acting at all.

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This court has held that a crime cannot be built up by

strained construction and it erences beyond the scope of

the statute. (Pierce v. U. S., 314 U. S. 306, 86 L. Ed.

226; Viereck v. U. S., 318 U. S. 253, 87 L. Ed. 734; Ex

parte McNulty, 77 Cal. 164.)

In Viereck v. United States the Supreme Court of the

United States had before it, in war time, the prosecution

of a German propagandist actively engaged by an alien

enemy. The court held that one may be subjected to pun-

ishment for crime in federal courts only for the commis-

sion or omission of an act defined by statute or by regu-

lation having legislative authority, and then, only if pun-

ishment is authorized by Congress. The court refused

to read language into the act which the Government urged

it to do.

In its first decision the Circuit Court of Appeals said:

“We express no opinion as to the official status

of the local draft board’s action in the instant situa-

tion. However, even assuming the draft board had

jurisdiction, we believe that Cohen had none. The

Selective Service Regulations in effect during the

period herein involved provide for the appointment

of a government appeal agent and outline his duties.

They show that his sole function is to aid registrants

under the Selective Service Act through the medium

of appeals with respect to their classification by the

local board . He is in the nature of an attorney whose

services are rendered without charge to registrants

in appealing their classifications. He has no function

outside the field of draft classification and within

that field his duties are limited to those of counsel

on appeal.

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“In the instant case Sartor had been inducted into

the army several months before he requested his

draft board to recommend an extension of his tur-

lough. The problem of his classification under the

Selective Service Act had long before been finally

settled. Under the Act of its Regulations a gov-

ernment appeal agent has no possible official duty

in connection with an inductee or with any matter

pertaining to a furlough of one already in the army.

Therefore, he was not ‘an officer of the United States

or a person acting for or on behalf of the United

States in any official capacity’ nor could he in the

circumstances ‘ask * * * money * * * with

intent to have his * * * actionon any * * *

matter which may at any time be pending, or which

may by law be brought before him in his ofheial ca-

pacity, or in his place of trust or profit, influenced

thereby.’

“Appellant Cohen, then, could not have committed

an offense against the United States under sec. 207,

Title 18 USCA, as charged herein, and neither he

nor appellant Schnee could have conspired to commit

such an offense. See United States v. Furer (DC

Cal.), 47 Fed. Supp. 402, 405; United States v.

Boyer (DC Mo.), 85 Fed. 425, 426; United States

v. Gibson (DC Ill), 47 Fed. &33, 834. In every

case cited by the government to the contrary there

was some semblance of authority, which is entirely

missing here, for the act concerning which the bribe

was asked or given.

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“Our conclusion herein is supported by the reason-

ing of a recent decision of the Supreme Court, Bill-

ings v. Truesdell, March 27, 1944, wherein the court

differentiated carefully between the jurisdiction of

civil and military authorities over those selected un-

der the Selective Service Act.

“Since the case must be reversed upon the points

hereinabove treated, we do not treat of other points

urged by the defendant as cause for reversal.”

In its second decision the Circuit Court said, using

somewhat the same language, but adding the directives :

_ “We have not been able to find in the Selective

Service Act or in the regulations promulgated there-

under any provision specifically authorizing the local

draft board or its appeal agent to recommend fur-

lough extensions for one already inducted into the

army: we have found nothing vesting in the board

or its appeal agent any jurisdiction at all over an

inductee. Unquestionably, one actually inducted is

subject to military jurisdiction. Billings v. Trues-

dell, 321 U. S. 542. However, with respect to a

furlough extension such as that requested by Sartor

it is the policy and practice of the military authori-

ties to require a recommendation of the extension

by the local draft board of the applicant. Accord-

ing to the testimony of an army liaison officer, to

follow any other procedure would in effect ‘nullify

the procedure of the Selective Service System in or-

dering a man in, so we make it a rule.’

— =

“That local boards habitually have performed

duties in connection with inductees is evident from

various memoranda issued by the National Head-

quarters of the Selective Service System. Local

Board Memorandum No. 8&0, issued January 10,

1942, discusses separation of inducted men trom ac-

tive military service and their transfer to the En-

listed Reserve. It reveals a duty of cooperation be-

tween civil and military authorities: ‘After a man

has been inducted into military service he passes

into military control and questions concerning his

retention in or separation from active service are

responsibilities ot the War Department. All tinal de-

terminations must be made by the military authori-

ties and it is the expressed intention and desire ot

the War Department that such determinations be

made in accordance with the facts presented and in

the best interests of all concerned. /t is the fuite-

tion of all clements of Selective Service, when called

upon through proper channels, to assist the War De-

partment with information and recommendation con-

sistent with the fects.” (Emphasis added. )

But there is nothing in the Selective Service Act that

gives the local board any such jurisdiction as the Circuit

Court finally interprets.

This court has held that the jurisdiction of local boards

ends when the inductee is inducted into the service.

( Billings v. Truesdell, 321 U.S. 542.) The decision of

the Circuit Court is in conflict with this decision.

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IV.

The Circuit Court of Appeals Erred in Holding That

Even if the Local Board Had Jurisdiction the Gov-

ernment Appeal Agent Had Any Jurisdiction.

The appeal agent’s duties are expressly set forth in the

regulations (section 603.71) which says, “For each local

board a government appeal agent shall be appointed. The

duties of the person so designated are . . . after

classification to investigate and report upon matters which

are submitted for his investigation by the local board.”

The work of the appeal agent, of course, is to handle

appeals from local classifications. His work obviously

ceases in his official capacity when the inductee, following

all appeals, has finally been inducted into the service. It

would be a very strained construction to give the local

appeal agent any other power or authority. The statute

and regulations give him none. It is only by stretching

the act beyond its plain language that the court has been

able to confirm the conviction in this case.

Vv

The Circuit Court of Appeals Erred in Holding That

There Had Been a Conspiracy to Ask a Bribe

With Intent to Influence Cohen’s Official Action,

Since Sartor Had Already Been Granted an Ad-

ditional Furlough by the Military Authorities a

Day or Two Before March 6, 1943, Which Pre-

cluded Any Conspiracy to Influence Cohen’s Off-

cial Action, as the Matter for Which the Official

Action Was Allegedly Sought Had Already Been

Accomplished.

It is impossible for an officer to violate section 207.

Title I8 UL S.C. A. by asking for money with intent that

—-32-—

it influence him in a matter which is not before him

officially.

Gunning v. People, 59 N. EK. 494 (Ill);

Commonwealth v. Reese, 29 5. W. 352:

State v. Butler, 77 S. W. 500;

In re Yee Gee, 83 Fed. 145;

Benson v. United States, 27 App. (D. C.) 331.

It is elementary that if the acts sought to be induced

by bribery are foreign to the duties of the officer in-

volved the officer has not the capacity to commit the ot-

fense of seeking a bribe in relation to such acts.

Pierce v. United States, 314 U. S. 306, 86 L. Ed.

226;

United States v. Gibson, 47 Fed. 833;

United States v. Boyer, 85 Fed. 425;

Gunning v. People, 59 N. E. 494 (IIL);

State v. Butler, 77 S. W. 560.

Appellant Schnee had no official capacity whatsoever,

and it is not asserted that he was in any manner acting

under or by virtue of any authority delegated to him by

the Government.

If Schnee could not be a principal Cohen could not be

an aider or abettor or a conspirator with one who could

not be a principal. (United States «7. Falcone, 109 Fed.

(2d) 579.)

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VI.

The Circuit Court Erred in Upholding the Admission

Into Evidence of Conversations Had With Appel-

lant Schnee After Schnee’s Arrest on March 6,

1943, at the Studio of 20th Century-Fox, Which

Conversations Were Participated in by Three Gov-

ernment Witnesses and Appellant Schnee in the

Absence of Appellant Cohen. [R. 130-133, testi-

mony of John E. Barr; R. 117-123, testimony of

Thomas W. Donovan; R. 149-151, testimony of

Harry Marvin Popkin. ]

“If the conspiracy has come to an end, whether

by success or failure, the admissions of one con-

spirator by way of narrative of past facts are not ad-

missible against the others.” (Logan v. United States,

144 U. S. 263, 309.)

During the trial the Government produced in its case

in chiet, three witnesses, who were present at a conversa-

tion on the atternoon of March 6, 1943, at the studio of

20th Century-Fox Film Studio, which conversation was

held and participated in as between the three Govern-

ment witnesses and Schnee, as set forth in the above para-

graph. Appellant Cohen was not present on this occasion.

Government's witness Donovan was a police officer |R.

112, testimony of Donovan].

Upon the arrival of the three Government witnesses.

Barr, Donovan and Popkin at the studio, they confronted

appellant Schnee, who was an employee there, and Dono-

van informed Schnee that he, Schnee, was under arrest

on an extortion charge |[R. 132. testimony of Govern-

ment’s witness John E. Barr].

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The three Government’s witnesses then engaged Schnee

in conversation and jointly interrogated him concerning

his prior actions and declarations relating to his transac-

tion involving the arrangement for Sartor (the person

from whom the appellants were charged with soliciting

a bribe) to deliver bribe money to appellant Schnee

through the medium of Government's witness Harry Mar-

vin Popkin, and they also questioned Schnee as to his

prior actions in relation to appellant Cohen.

As the record discloses in the case of each witness, ap-

pellant Cohen specifically objected to the introduction ot

this evidence on the first ground that the same called for

hearsay testimony as against appellant Cohen, and was

incompetent, and on the second ground that it called for

the declaration of his co-conspirator Schnee, made after

the object of the conspiracy had terminated.

The trial judge in the instance of each witness over-

ruled the objection and allowed evidence of the conversa-

tion and Schnee’s replies to the interrogations to be re-

ceived. The appellant’s duly excepted to the court's rul-

ing. At the conclusion of the Government’s case appel-

lant Cohen moved to strike this testimony from the evi-

dence, which motions were denied and duly excepted to.

[For motion to. strike this testimony of Government’s

witness Barr see R. pp. 200, 201: for that of Govern-

ment’s witness Donovan see R. pp. 198 and 199; and for

that of Government’s witness Popkin see R. p. 200. |

=

A summary of the testimony of the three witnesses al-

lowed into evidence is here set forth:

Donovan said Schnee admitted he talked with Popkin

shortly before Donovan arrived at the studio. Appellant

Schnee denied he had talked to Popkin at an earlier hour

that day. Donovan stated Barr asked Schnee when he

had last seen appellant Cohen, and Schnee said he had

either seen Mr. Cohen or talked with him on the tele-

phone that morning (March 6, 1943) [R. 122-123, testi-

mony ot Donovan].

Barr stated that Popkin asked appellant Schnee if he

remembered calling him earlier in the day about an en-

velope a man named Sartor was to deliver to Popkin at

2:15 p.m. and Schnee replied he did not know what Pop-

kin was talking about. Barr stated that Schnee told him

he had seen Cohen in the morning (March 6, 1943)

about an income tax matter | R. 132, testimony of Govern-

ment’s witness Barr].

Popkin testified that appellant Schnee declared to Officer

Donovan that he had not talked with Popkin on the tele-

phone at all on the day in question (March 6, 1943),

and that Schnee denied he had requested Popkin to receive

an envelope for him. Popkin further recited that appel-

lant Schnee declared he knew appellant Cohen but he had

not seen Cohen that day (March 6, 1943) |[R. 150-151,

testimony of Popkin].

The prejudice of allowing appellant Schnee's asserted

statements, made at a time when he was under arrest. to

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be admitted into evidence against appellant Cohen rests

upon the proposition that the statements of Schnee were

all conradicted by a preponderance of testimony furnished

by Government’s witness [R. 174, testimony of Alice Pet-

tus; R. 173, testimony of John Okey; R. 167, testimony

of Ruth Brown; R. 142-147, testimony of Harry Popkin].

These extra-judicial statements supported an inference

of a consciousness of guilt on the part of a person alleged

and contended to be appellant Cohen’s co-conspirator. In

other words, the false statements and declarations of ap-

pellant Schnee were matters that were allowed to militate

against appellant Cohen.

The competent evidence, as is pointed out in summary

of the evidence, which tends to establish the existence of

a conspiracy between appellants, is meager and the error

is therefore aggravated by this circumstance. The au-

thorities are unanimous that the extra-judicial statements

of a co-conspirator made after the termination of the con-

spiracy, are not admissible against a defendant such as

Cohen, not present at the time the same were uttered.

It is self-evident that the asserted declarations of appel-

lant Schnee made after he had been placed under arrest

by Officer Donovan, were not made in furtherance of the

objects of the conspiracy. The conspiracy had terminated

in frustration when the bribe money was taken from the

intermediary (Popkin) and the co-conspirator Schnee was

placed under arrest.

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VII.

The Circuit Court of Appeals Erred in Holding That

There Was No Error Committed in Admitting

Into Evidence Statements Taken From Appellant

Schnee Following His Arrest and While He Was

Held in the Custody of a Los Angeles Police Offi-

cer, an Agent of the F.B.I., and in Holding in

Particular That It Was Not Error to Admit Be-

fore the Jury the Fact of Refusal by Schnee to

Sign a Statement for the F. B. I.

Such refusal on the part of Schnee was merely a state-

ment that he was standing on his constitutional rights.

In Johnson v. United States, 318 U. S. 189, this court

said:

“But where the claim of privilege is asserted and

unqualifiedly granted the requirements of fair trial

may preclude any comment. That certainly is true

where the claim of privilege could not properly be

denied. The rule which obtains when the accused

fails to take the stand (Wilson v. United States, 149

U. S. 60, 37 L. Ed. 650) is then applicable. As said

by the Supreme Court of Pennsylvania, ‘If the privi-

lege claimed by the witness is allowed the matter is at

an end. The claim of privilege and its allowance is

properly no part of the evidence submitted to the

jury, and no inference whatever can be legitimately

drawn by them from the legal assertion by the witness

of his constitutional right. The allowance of the

privilege would be a mockery of justice if either party

is to be affected injuriously by it.’ ”

The evidence which the Government offered as against

Schnee regarding his refusal to sign a statement at the

FP, B. 1. was placed before the jury for the purpose of in-

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juring him and must be presumed to have accomplished

that purpose. If a defendant in custody cannot decline

to sign a statement for the F. B. I. without that fact being

used against him in a criminal trial, then his constitutional

privileges guaranteed by the Fifth Amendment to the

Constitution of the United States become valueless.

VIII.

The Circuit Court of Appeals Erred in Permitting the

Statements at the Police Station and the Proceed-

ing Had With Schnee While He Was Being Held

in Custody of the F.B.I. and Before Any Ar-

raignment, and While He Was Denied the Right

to See His Counsel, to Go Before the Jury. It

Was Properly No Part of the Trial.

It is submitted that these proceedings prohibited the

use of any statements made by Schnee while thus held

in custody, and which were presented to the jury for the

purpose of affecting the appellants adversely. (Sec.

300(a), Title 5 and Sec. 395, Title 18, U. S. C. A.; Me-

Nabb v. United States, 318 U. S. 332; Anderson v. United

States, 318 U. S. 350; Gros v. United States, 136 Fed.

(2d) 878.)

Respectfully submitted,

Morris LAVINE,

Attorney for Petitioners and Appellants.

—

State of California, County of Los Angeles—ss.

Morris Lavine, being first duly sworn, upon his oath

deposes and says: that he is the attorney for petitioners

herein, Emanuel Max Cohen and Albert Charles Schnee;

that he has read the foregoing Petition for Writ of Cer-

tiorari to the Ninth Circuit Court of Appeals of the

United States and Brief in Support Thereof, and knows

well the contents; that he has carefully read and studied

the transcript of record and proceedings in the case at

bar; that the matters in said petition are in the judgment

of this affant duly supported in and by said transcript

of record and proceedings, and that he verily believes the

facts stated in said petition are true.

Morris LAVINE.

Subscribed and sworn to before me this 28th day of

November, 1944,

Cuas. B. Hazrenurst,

Notary Public in and for said County and State.