Brief for the Respondent in Opposition — Cohen v. United States

Supreme Court brief1945

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Statutes and regulations involved__.__-__--________-_. 6, 2

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CITATIONS

Cases:

penton w. THonkel, A496 UB the 3a Se se 14

Billings v. Truesdell, 321 U. 8. 542... -....---_......- 10, 12

Cohen v. United States, 294 Fed. 498, certiorari denied, 264

U.S. 584__ ee eg ee ee pee ee, 14

Crinnian v. United States, 1 F. (2d) 643__._____________. 14

Daniels v. United States, 17 F. (2d) 339_________________ 14

Falbo v. United States, 320 U. S. 549__._.__.________.____. 11

Fall v. United States, 60 App. D. C. 124, 49 F. (2d) 506,

certiorari denied, 283 U. 8. 867_...___..........-_..- 15

Fisher v. United States, 8 F. (2d) 978, certiorari denied, 271

OT cd ea sc te ea ee eet BC omen es Oe 16

People v. Lafaro, 250 N. Y. 336 ;

United States v. Birdsall, 233 U. 8. 223

United States v. Goldstein, 135 F. (2d) 359

United States v. Mitchell, 322 U.S. 65.._.___________ 18, 21, 22

United States v. Woods, 66 F. (2d) 262

Statutes and Regulations Involved:

Section 37 of the Criminal Code (18 U. 8. C. 88)

Section 117 of the Criminal Code (18 U. 8. C. 207). 10, 13, 14, 24

The Selective Training and Service Act of 1940 (54 Stat.

885, 50 U.S. C. App. 301-318):

Sec. 10 (a)__-

Sec. 10 (a) (2)

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Statutes and Regulations Involved—Continued.

Selective Service Regulations: Page

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ete ee ee ea pp reas ea a eee oes 12, 27

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NEE Orn Pon ee ne Oa ak melas mies 28

BR SaaS pl ta SM Seg ena es eS UL pepe 7a ay 29

Miscellaneous: ,

Miller, Handbook of Criminal Law, p. 474-~.------------ 15

Selective Service System—

Local Board Memorandum No. 80_-_--------------- 12, 29

Memorandum to all State Directors No. 1-415____--- 12, 33

Memorandum to all State Directors No. 1-423____-_-- 34

Plate Director Advice No; 204+... 22.5. cc casccen 12, 36

Inthe Supreme Court of the Mnited States

Ocroser TERM, 1944

No. 723

EMANUEL Max CoHEN AND ALBERT CHARLES

SCHNEE, PETITIONERS

Unirep States or AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES CIRCUIT COURT OF APPEALS FOR THE NINTH

CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the Circuit Court of Appeals (R.

386-399) is reported at 144 F. (2d) 984.

JURISDICTION

The judgment of the Circuit Court of Appeals

Was entered September 29, 1944 (R. 399-400). A

petition for rehearing was denied November 6,

1944 (R. 400). The petition for a writ of cer-

tiorari was filed December 2, 1944. The jurisdic-

(1)

tion of this Court is invoked under Section

240 (a) of the Judicial Code, as amended by the

Act of February 13, 1925. See also Rules XI and

XIIL of the Criminal Appeals Rules promul-

gated by this Court May 7, 1934.

QUESTIONS PRESENTED

The principal contentions raised by the peti-

tion for a writ of certiorari are:

1. Whether in the circumstances presented by

the case certain actions of petitioner Cohen, a

Government Appeal Agent in the Selective Serv-

ice System, and of the local draft board to which

he was attached were within their official capacity

within the meaning of Section 117 of the Criminal

Code (18 U.S. C. 207).

9. Whether the trial court erroneously received

in evidence certain statements made by petitioner

Schnee, on the theory that they were statements

by a coconspirator regarding the conspiracy made

during the existence of the conspiracy.

2 Whether the admission in evidence of certain

oral statements made by petitioner Schnee under

circumstances claimed to render applicable the

rule of McNabb v. United States, constituted re-

versible error.

STATUTES AND REGULATIONS INVOLVED

The applicable statutory provisions and Selee-

tive Service Regulations, as worded at the times

in question, are set forth in the Appendix, infra,

pp. 24-29.

STATEMENT

On March 31, 1943, petitioners were indicted

in the District Court of the United States for the

Southern District of California in two counts

(R. 2-7). Count one (R. 2-5) charged that on

March 6, 1943, there was pending before Loeal

Board No. 199, Los Angeles, California, an appli-

cation by one James L. Sartor, a Selective Serv-

ive registrant who had already been inducted into

the Army, for a recommendation by the board to

the Army that his furlough be extended; that pe-

titioner Cohen was the Government Appeal Agent

attached to the local board; and that petitioners

on or about March 6, 1943, unlawfully conspired

with intention to defraud the United States ‘hy

endeavoring to corruptly obstruct, impede, hin-

der, impair and interfere with the due adminis-

tration of the proper and lawful function of the

United States Army in the granting or denying

of an extended furlough to’’ Sartor, in that for a

sum of money petitioner Cohen, as Government

Appeal Agent, would endeavor to corruptly obtain

from the local board a favorable recommendation

with respect to Sartor’s furlough application, in

violation of Section 37 of the Criminal Code (18

U.S. C. 88). Count two (R. 5-7), incorporating

by reference the facts alleged in count one, charged

that petitioners unlawfully conspired to violate

Section 117 of the Criminal Code (18 U.S. ¢.

207) by asking for money from Sartor for the

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purpose of influencing the action of petitioner

Cohen in the performance of his official duty as ¢

Government Appeal Agent in respect of Sartor’s

application for a recommendation relating to his

request for a furlough extension. Petitioners

were convicted on both counts (R. 20-21), but

judgment was entered only on the second count.

Petitioners were each fined $2,500 and sentenced

to imprisonment for nine months (R. 28-32). On

appeal, after rehearing, the Circuit Court of Ap-

peals for the Ninth Circuit affirmed the judgment

of the District Court (R. 399-400).’

The evidence in support of the judgment may be

summarized as follows:

Sartor, a Selective Service registrant with Local

Board No. 199, Los Angeles, California, was in-

ducted into the United States Army on October

14, 1942. At the time of his induction he was

given a short furlough and thereafter was granted

various extensions until March 8, 1943, when he

was to report for active duty (R. 67-68). The

purpose of the furloughs was to enable him to dis-

pose of his holdings, a retail liquor store, a bar,

‘On May 19, 1944, the Cireuit Court of Appeals, Judge

Healy dissenting, reversed the conviction on the ground that

petitioner Cohen’s official duties as Government Appeal

Agent did not include authority to recommend an extension

of furlough for a registrant already inducted into the Army

(Pet. 41-50). On June 17, 1944, the court gre anted the Gov-

ernment’s petition for rehearing (R. 384-385). On Septen-

ber 29, 1944, it affirmed the judgment of the District Court

(KR. 385).

Pow Mya [OLGA ISR SEN

and an equity in an apartment house, without

financial loss. On February 11, 1943, Sartor re-

quested an additional 60 days’ deferment from

active duty by letter addressed to Major General

Joyce of the Ninth Service Command, Fort Doug-

las, Utah (R. 68-69), and was advised by letter

from Lt. Col. A. E. Merrill of that Command that

a recommendation from his local Selective Service

Board would be necessary to secure a further

extension (R. 70, 71). At the direction of his

local board (R. 71), Sartor went to the place

of business of petitioner Cohen, the Government

Appeal Agent, on Monday, March 1, 1943, and

showed him Lt. Col. Merrill’s letter suggesting

that he obtain the draft board’s recommendation

with regard to his application for a further fur-

lough (R. 72). Cohen instructed Sartor to appear

at the draft board headquarters that evening.

When Sartor appeared at the board’s office he was

interviewed by Cohen, who dictated a letter as Gov-

ernment Appeal Agent to the Army authorities

describing Sartor’s property holdings and financial

position and stating that Sartor requested an ex-

tension of his furlough on the basis of those facts.

The letter was posted by Sartor on the following

day (R. 71-74) and on the same day Sartor again

called on Cohen and told him that the letter was

not ‘any good”’ because it did not contain a recom-

mendation. Cohen then advised Sartor that he

had no authority to make a recommendation. On

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the following day Sartor again went to see Cohen,

requesting a recommendation, and Cohen again

advised him that he had no power to make a reeom-

mendation. (R. 75.)

Sartor did not see Cohen again until the fol-

lowing Saturday morning, March 6, 1943, when at

about 11:00 a.m. Cohen stopped at Sartor’s place

of business in his automobile, blew his horn, and

when Sartor came out stated to him that he had

someone by the name of ‘Davis’ who was going

to help him get an extension from the Army and

that ‘Davis’? would telephone him in about 10

or 15 minutes about getting the extension CR. 75,

76). Shortly thereafter Sartor received a_tele-

phone call from ‘Davis’, who told Sartor that a

60-day extension would cost $2,000 (R. 76, 78-79).

Sartor told him he thought the price was too high,

but that he should call him again CR. 79). About

one hour later Cohen again appeared in his car

outside of Sartor’s place of business, blew his

horn, and when Sartor came out drove him around

the block in Cohen's ear. When Sartor entered

the ear Cohen asked, “Did he call vou up?”

Sartor related his conversation with ** Davis”? and

Cohen stated that he had nothing to do with the

Sartor and said that * Davis’? would *tcome down

and see’ Sartor (R. 78-80). Cohen did net ad-

transaction. Cohen then deseribed ** Davis’

vise Sartor that the dratt board had just decided

to recommend a 30-day extenston of Sartor’s fur-

lough and that a wire to this effect already had

been sent to the Army authorities (R. 81).

“Davis”? again telephoned Sartor at about one

o'clock on the same day and promised to see what

he could do for him for $500 (R. 81). ‘Davis”’

called Sartor a third time an hour later and in-

formed Sartor he could get him a 30-day furlough

for $500. He instructed Sartor to put the money

in an envelope and to deliver it to a Mr. Popkin,

the manager of a nearby theater, at about 2:30

o'clock that day. Because Sartor did not have

enough money on hand, ** Davis’? agreed to a par-

tial payment. (R. 82, 83, 106-107.) Sartor eom-

plied with ** Davis* *’ instructions, but before doing

so apprised one Donovan, a detective from the

Los Angeles Police Department, of the develop-

ments (R. 83-85). As soon as Sartor delivered

the envelope containing the money, Donovan pre-

sented himself to Popkin and requested delivery

of the envelope. About one hour later, after he

had called his attorney and talked on the telephone

with an official of the Los Angeles Police Depart-

ment, Popkin surrendered to Donovan the en-

velope given him by Sartor (R. 147-149). Dono-

van opened it and found in it the money placed

there by Sartor. (CR. 114-115.)

Popkin testified that petitioner Schnee with

whom he was friendly had called him early in the

afternoon of March 6, 1943, and asked him to

accept delivery of an envelope for him. Schnee

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told Popkin that the envelope would be addressed

toa ‘“*Mr. Davis’? and would be delivered at ap-

proximately 3 o’clock and that ‘tthe man deliver-

ing the envelope knew him [Schnee] as Mr.

Davis.’ (R. 144-145.) Popkin received the on-

velope from Sartor at the request of Schnee and

testified that after he had surrendered it to Don-

ovan, he told Donovan he would call the man

known as “Mr. Davis.”’ He ealled Schnee’s home

and left a message with his wife. [In response to

that message Schnee therafter called Popkin and

they conversed concerning the envelope while

Donovan listened on another telephone, CR. 115-

117, 148-149.) Immediately thereafter Schnee

was Interviewed by Donovan and others (see infra,

p. 16). THe denied having any part in the bribery

scheme, but admitted that he knew petitioner

Cohen (R. 150). At this point he was placed

under arrest (R, 123).

VTestitving in his own defense petitioner Cohen

stated that he had been appointed Government

Appeal Agent in September 1940 and had acted

in that capacity through the period in question

here CR. 202); that “it is my job to present mat-

ters for registrants’ CR. 228); that Sartor’s loeal

board referred the matter of Sartor’s reeom-

mendation to him and that it was his function to

present Sartor’s application to the draft board

(R. 214, 224); that when the Sartor matter was

first presented to him, he requested the clerk of

the draft board to communicate with the Coor-

dinator of Selective Service to determine “wheth-

er the Board had jurisdiction to entertain such a

recommendation” (R. 209), and that he was there-

after informed that the Coordinator had advised

that the hoard possessed jurisdiction to make a

recommendation in Sartor’s case (R. 209); that

when Sartor consulted him on March 4, 1943, “I

told him that the Board had jurisdiction; that I

will present it to them * * # at a meeting on

Saturday morning’ (R, 209); that he suggested

to the board that it meet on Saturday morning,

Which was not its regular Ineeting time (R, 226);

vid that on Saturday “I went down for the sole

purpose of presenting Sartor’s name, he was so

insistent, and talked so persistently I brought the

matter up’? (R. 227),

While these events Were taking place, the Army

authorities received the letter written by peti-

tioner Cohen as Government Appeal Agent

(supra, p. 5) and, regarding it as a favorable

recommendation from the loeal board. granted

Sartor another sixty-day furlough (R. 178).

When it was discovered that Cohen's letter was

not the recommendation of the board and that the

board had thereafter recommended only a thirty-

day furlough, the sixty-day furlough which had

been granted was immediately canceled by the

military authorities (R. 179-180),

ARGUMENT

1. Petitioners’ basic contention (Pet. 21, 31)

appears to be that the alleged conspiracy did not

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relate to any of Cohen’s official duties and hence

could not be a conspiracy to violate Section 117 of

the Criminal Code. Petitioners argue that when

Sartor was inducted into the armed forces his

local board’s jurisdiction over him and Cohen’s

official duty as Government Appeal Agent in

respect of him ended. We submit that, in the

light of the relationship which exists between the

Selective Service System and the armed forces,

(a) Cohen’s and the local board’s actions, which

the solicited bribe was to influence, were within

their authority, and (b) petitioners conspired to

commit an offense under Section 117 of the Crimi-

nal Code even if, strictly speaking, the functions

performed by the Selective Service System in

relation to post-induction furloughs are beyond

its authority.

In the words of this Court in Billings v. Trues-

dell, 321 U.S. 542, 547, “the mobilization program

established by the Selective Service System is de-

signed to operate ‘as one continuous process for

the selection of men for national service’—a_ proc-

ess In which the civil and military agencies per-

This Court there was

form integrated functions.’

concerned with those phases of the process of

selection which precede induction; but we think

its characterization of the relationship of the

Selective Service System to the armed forces is

equally applieable to the functions of the System

after a registrant has been inducted.

Section 10 (a) (2) of the Seleetive Training and

Service Act (infra, p. 25) empowers local boards

to hear and determine ‘all questions or claims

with respect to inclusion for, or exemption or de-

ferment from, training and service’? under the

Act “of all individuals within the jurisdiction”’

of the boards. Under Selective Service Regula-

tion 603.54 (infra, p. 26) the jurisdiction of each

local board extends to all persons registered in

or subject to registration in the area for which it

Was appointed. The local board’s functions do

not end with its selection of registrants for mili-

tary service in the manner summarized in Falbo vy.

United States, 320 U.S. 549. It does not strike

a registrant from its rolls upon his induction but

is required to reclassify him I-C (member of land

or naval forces); he remains registered with it.

Selective Service Regulation 622.15 (infra, p. 28).

The armed services may invoke the assistance of

local boards in dealing with matters lying within

their competence after induction, as the Army did

in this case in suggesting that Sartor obtain the

recommendation of his board with reference to

the extension of his furlough. As Colonel Mer-

rill testified (R. 177), “if we did otherwise * * *

the effect would be to nullify the procedure of

the Selective Service system in ordering a man

seo

mm,

“In respect of the reliance of the military authorities on

the recommendation of the registrant's local board Colonel

Merrill's letter to Sartor (R. 70) explained the procedural

requirement as follows:

It is suggested that you present a copy of this conmu-

nication to your Local Board, and ask them to make their

Pursuant to the Act and regulations, official

memoranda of the Selective Service System, cited

in the opinion of the court below (R. 391-392),

have continuously recognized and provided for

functions of local boards with respect to reg-

istrants who have been inducted into the armed

forces. Local Board Memorandum No. 80, issued

on January 10, 1942 (infra, pp. 29-33), imposes

upon local boards the duty to cooperate with the

military authorities in connection with the sepa-

ration of inducted men from active military serv-

ice and their transfer to the Enlisted Reserve for

proper reason. Memoranda Nos. 1-415 and 1-423

to State Directors, dated April 17 and May 18,

1942 (infra, pp. 33-36) and State Director Advice

No, 204, dated May 8, 1943 (infra, pp. 36-37)

impose similar duties with respect to post-indue-

tion furloughs and post-induction stays of active

service for newly drafted men.’

Paragraph 605.71 of the Selective Service Regu-

lations (iufra, p. 27) provides for the Govern-

recommendation through the State Director of Selective

Service, Plaza Building, Sacramento, California, It is

the function of the Selective Service System to register,

classify, and deliver for induction men who are con-

sidered eligible and qualified for such procedure. It is

not consistent that the War Department should nullify

the action of the Selective Service System by unduly

extending the deferment status of individuals selected

for service. Hence the procedure suggested above.

‘As this Court noted in Bil/ings vo Truesdell! 321 UL S.

542, 554, the induction procedure has again deen changed to

eliminate post-induction furloughs and stays in ordinary

Cases,

ment Appeal Agent to undertake investigations

“after classification’’ of registrants, with respect

to matters submitted by the local board, and ‘‘to

impart to the local board * * * information

which in his opinion ought to be investigated.’’

Petitioner Cohen caused an inquiry to be made of

the Coordinator of the Selective Service System

concerning the power of the local board to make a

recommendation in Sartor’s case (supra, pp. 8-9)

and was advised that it was vested with authority

to do so. The board acted upon his suggestion.

In causing the board to meet and consider Sartor’s

request that an additional furlough be recom-

mended, he was legally as well as de facto (in the

words of Section 117 of the Criminal Code, infra,

p. 24) “acting for or in behalf of the United

States, in any official capacity, under or by virtue

of the authority of * * * [a] department or

office of the Government * * *.’'* He acted

*We perceive no merit in petitioners’ assertion (Pet. 31)

that since the Army mistakenly granted Sartor a furlough

prior to March 6, 1943, the day the draft board met (see

supra, p. 9) there was no valid basis for count two of the

indictment, as the matter for which the official action was

to be sought had already been accomplished. Regardless of

whether the local board’s recommendation would have had

any operative effect, there is no question that the board might

make a recommendation tothe Army or that petitioner Cohen

in his official capacity as Government Appeal Agent partici-

pated in the presentation of the matter to the local board.

In these circumstances a conspiracy to obtain a bribe to

influence Cohen’s official action was a conspiracy to violate

Section 117 of the Criminal Code.

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officially when he interviewed Sartor at the board’s

office and evidently had reference to further offi-

cial action in his subsequent dealings.

The .court below properly took judicial notice

of ‘‘the general system which * * * has now

been in force and operation throughout the country

for several years’”’ (Crinnian v. United States, 1 F.

(2d) 643, 644 (C. C. A. 6)), in determining the

official nature of the actions to which the bribe was

to relate. In order to constitute official action

within the purview of Section 117 of the Criminal

Code (18 U.S. C. 207), it is not required that the

action be prescribed by statute, but sufficient that

it come within the authority and practice of the

agency which the officer is serving. United States

v. Birdsall, 233 U. 8S. 223; Haas v. Henkel, 216

U.S. 462; Benson v. Henkel, 198 U.S. 11; Daniels

v. United States, 17 F. (2d) 339 (C. C. A. 9);

Cohen v. United States, 294 Fed. 488 (C. C. A. 6),

certiorari denied, 264 U. 8S. 584. In the Birdsell

ease this Court stated that it is not ‘‘necessary

that the requirement should be prescribed by a

written rule or regulation. It might also be

found in an established usage which constituted

the common law of the department and fixed the

duties of those engaged in its activities. * * *

In numerous instances, duties not completely de-

fined by written rules are clearly established by

settled practice, and action taken in the course of

their performance must be regarded as within the

provisions of the above-mentioned statutes against

bribery.”’ 233 U.S. at p. 231.

Even if it were thought that functions relating

to Sartor’s furlough were beyond the legal author.

ity of the local board and of Cohen, the offense

of bribery under Section 117 of the Criminal Code

and conspiracy to bribe might be committed with

respect to them. It is sufficient if the official in

question ‘‘acted under color of authority,” at least

if he ‘‘was a de jure officer occupying at the time

a lawful office * * *,* * * acting in a de

facto capacity.”’ Fall vy. United States, 60 App.

D. C, 124, 49 F. (2d) 506, 509, certiorari denied,

283 U. S. 867. Such is the prevailing doctrine

with respect to the crime of bribery. Miller,

Handbook of Criminal Law, p. 474. It cannot be

doubted that Cohen’s acts were ‘“‘under color of

authority’’ in this sense. At the very least, he

acted ‘‘corruptly in a matter to which he * * *

[bore] some official relation’. People v. Lafaro,

250 N. Y. 336, 342 (1929).

2. Primarily on the theory that the conspiracy

had already ended, petitioners contend (Pet. 33-

36) that the trial court committed reversible error

in receiving in evidence testimony relating to oral

statements made by petitioner Schnee when he was

first questioned at his place of employment, prior

to his removal to police headquarters. Since it is

clear that the object of the conspiracy had not been

accomplished at the time the statements were

623712—44——--3

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= BERNE

made and that the bribery scheme was still opera-

tive except as it had been frustrated without the

knowledge of the parties, we submit that petition-

ers’ contention is without merit.

The contention has reference to Schnee’s con-

versation with Donovan, Popkin, and one Barr

immediately after the incident at Popkin’s theater

when Sartor’s envelope was recovered (supra,

p. 7). Donovan, Popkin, Barr, and Popkin’s

wife called on Schnee at his place of employment

at about 4:30 p. m. on March 6, 1943, about two

hours after Sartor had delivered part of the bribe

to Popkin (R. 130). In the course of their eon-

versations with Schnee he denied that he had had

any part in the bribery scheme or that he had

initially called Popkin earlier in the day. He ad-

mitted that he knew Cohen and that he had seen

him on the morning of that day, but he claimed

that he saw him with respect to an income tax

matter. (R. 117-123; 130-133; 150-151.) At this

point, Donovan advised Schnee ‘‘that I was going

to take him up town to the police station’? (R.

123).

We think it is clear that Schnee’s statements

were those of a conspirator seeking to conceal the

conspiracy and, as such, were admissible against

both petitioners. United States v. Goldstein, 135

F. (2d) 359 (C. C. A. 2); United States v. Woods,

66 F. (2d) 262 (C. C. A. 2); Fisher v. United

States, 8 F. (2d) 978 (C. C. A. 1), certiorari

denied, 271 U. S. 666. Contrary to petitioners’

contention at the trial (R. 121), the delivery of

the money by Sartor to Popkin did not accom-

plish the object of the conspiracy, which was the

receipt of $500 by Cohen and Schnee. At the

time of Schnee’s statements none of the money

had been received by petitioners. Sartor had

delivered $155 to Popkin (R. 84; see supra, p.

7), but even that money was recovered before

it reached petitioners. When he was interviewed,

petitioner Schnee plainly did not regard the econ-

spiracy as being at an end. In these circum-

stances, aside from the fact, pointed out by the

Circuit Court of Appeals (R. 399), that Schnee’s

statements were not prejudicial evidence since he

testified to the same effect at the trial, we submit

that the trial court properly concluded that ihe

statements were made prior to the termination

of the conspiracy and were therefore admissible

against both petitioners.

3. Finally, petitioners contend (Pet. 37-38)

that the trial court committed reversible error in

receiving in evidence the testimony of F. B. TI.

agent MacCulloch as to statements made by

Schnee while in custody, but prior to arraignment.

Particularly, petitioners complain of Mac-

Culloch’s testimony that Schnee refused to sign

a statement unless advised to do so by his at-

torney. Consideration of the circumstances sur-

rounding Schnee’s examination prior to arraign-

ment and of the fact that his statements were

of an exculpatory nature compels the conclusion,

in our view, that ‘‘the foundation for appli-

SELLER ALLS LEME MOLI RO CR Te Te ETE

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cation of the McNabb doctrine are here totally

lacking.”’ (United States v. Mitchell, 322 U. S.

65, 69.) For it is clear that Schnee’s oral state-

ments were not secured during a period of illegal

detention and that petitioners” convictions do not

rest, in any sense, on the statements.

As we have shown, supra, pp. 8, 16, after Schnee

Was interviewed at his place of employment, he

was advised by detective Donovan that he would

have to accompany him to the Los Angeles police

station. At Schnee’s request they first: proceeded

to lis home, where he left his automobile, and

where he saw his wife (R. 125). He told her

that he was going to police headquarters for ques:

tioning (R. 252-253). At this point, shortly after

5:00 p.m. on Saturday, Mareh 6, 1943, Donovan

called the Federal Bureau of Investigation imto

the case since it involved a violation of federal

law (R. 124, 127, 183, 151). Sehnee testitied that

the agents arrived at police headquarters shortly

after 7:00 pom. (CR. 255). There is nothing in

the record showing any interrogation of Schnee

by the agents until almost LO: 00 p. un, at which

tune they requested him to accompany them to

the F. B. 1. office **so that we could get the story

in this case’? (R. 277). Schnee replied, ‘*L will

be very glad to go along and tell you what [ know”

(CR. 277, 260). Sehnee and the F. B. L. agents,

accompanied by Popkin, Sartor, Donovan, and

three other persons who apparently were wit-

nesses, proceeded to the F. B. 1. office, arriving

there at approximately 10:00 p. m. (R. 151, 257,

281).

Schnee testified that at a time not precisely

stated he requested and received permission from

the F. B. I. agents to telephone his wife. He did

not seek to call an attorney (R. 256, 268). The

agents then proceeded to examine each of the per-

sous present, none of whom had as yet been ar-

rested (R. 161, 260, 278), concerning the ease

(R. 279). In respect of the interrogation of

Schnee, Agent Wells testitied (R. 278-279), “I

advised Mr. Schnee that we were interested in

getting his story in this case; wanted to hear

what he had to say about it. I advised him at

that time that he did not have to make any state-

ment; [advised him that he did not have to say a

word unless he had talked to his attorney, or

unless he wanted to. IT advised him at that time

that anything he did say would be used against

him in court. He said. ‘Ll will be glad to tell you

fellows anything you want me to.’ *’ Schnee de-

nied any knowledge of illegal acts (R. 162). He

admitted that he had called Popkin at 4:00 p.m.

in response to his telephone message (supra, p.

8S) and that he knew Cohen and had seen him

that morning with regard to an income tax pro-

blem; but he denied knowing Sartor (R. 163-164,

257). Schnee deciined to sign a statement unless

he was advised to do so by his attorney (R. 164;