Petition for Writ of Certiorari — Britt v. United States
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Nisike. | hadiecin ote ae
4¥ Office-Supreme Court, UWS.
. FILED
7. U. Se
NOV 9 1964
In the JOHN F. DAVIS. CLERK
Supreme Court of the United States
Ocroser TERM, 1964
No. 3) 6 vi
PAUL A. GORIN, HENRY GRILLO,
and SAUL GLASSMAN,
PETITIONERS,
Vv.
UNITED STATES OF AMERICA,
RESPONDENT.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
FIRST CIRCUIT
Joun F. Cocan, JR.
60 State Street
Boston, Massachusetts 02109
James D. Sr. Cua Attorney for Petitioners
60 State Street
Boston, Massachusetts 02109
Of Counsel
Francis J. Drdento
100 State Street
Boston, Massachusetts 02109
Of Counsel
Blanchard Press, Inc., Boston, Mass. — Law Printers
Page
Opinion Below ...........----sececeecee ceeeeetees 2
Judgments Below .........---ssseeeeeeee eerste: 2
Me ies coh oas ba Weide eh ed ee eee sae oerens 2
Questions Presented ........---:+eeeeeeereeeeeeres 2
Statutes Involved ............ ee cece eect te rere 4
Statement of the Case ..........2 eee eee e eee enters 4
Reasons for Granting the Writ ........-.--.-+++++5> 22
i ag ooo 4a See es een Os eho e RO Hoe Hs 57
Appendix A (Opinion of the Court of Appeals) ...... 2a
Appendix B (Judgments of Court of Appeals) ....... 6a
Appendix C (Statutes) .........--.eee see e rere eee 9a
CITATIONS
Cases
Abel v. United States, 362 U.S. 217, 80 8. Ct. 683
| Rit REPL SaaS) tana s See eee ere ee 34, 35
Attorney General v. Pelletier, 240 Mass. 264, 134 N.E.
407 ; 38 C.J.S. 1042 (1922) ....... eee eee cece eee ees 26
Ballard v. United States, 329 U.S. 187 (1946) ....... 41
Beck v. Washington, 369 U.S. 541, 82 S. Ct. 955 (1962) 23, 24
Benanti v. United States, 355 U.S. 96 (1957) ..-....- 30, 32
Blake v. State, 54 Okl. Cr. 62, 14 P. 2d 250 ........--- 26
Blocker v- United States, 288 F.2d 853 (C.A. D.C. 1961) 0
Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524, 29 L.
Geer rrr reer er cre Teter ee 34, 36
Brock y. United States, 223 F.2d 681 (C.A. 5, 1955) . . 34, 39
Canida y. United States, 250 F.2d 822 (C.A. 5, 1998) -. 37
Carlton v. United States, 198 F.2d 795 (C.A. 9, 1952) .. 91
Cassell v. Teaas, 339 U.S. 282, 70 8. Ct. 629 (1950) ... 24
Commonwealth v. Dougherty, 343 Mass. 299, 178 N.E.
Gd BOA (IDGL) 5. cc ccc ce cecs cee cece eendewees 39
ii Index
Page
Commonwealth v. Publicover, 327 Mass. 303, 98 N.E. 2d
GD TRIED hich dinends de enseendtasiceceseses-wees 38
Costello v. United States, 350 U.S. 359, 76 S. Ct. 406,
(glib Skt a err 24, 25, 32
Counselman vy. Hitchcock, 142 U.S. 547, 12 S. Ct. 195
i RR rep ot ey ee ere Tee eee 36
Davis v. United States, 160 U.S. 469 (1895) ......... 50
Elkins v. Uniled States, 364 U.S. 206, 80 S. Ct. 1437
SOE is wacked Ga 0 Meee 4 n> he Ko od bdr P88 Oba es 39
Emery’s case, 197 Mass. 172 (1871) ............-... 36
Ex parte Baim, 121 U.S. 1, 7 S. Ct. 781 (1887) ....... 25
Fournier v. People, 281 F.2d 888 (C.A. 1, 1960) ....... 25
Frank v. Mangum, 237 U.S. 309, 35 S. Ct. 522 (1915) 26
Gargano v. United States, 24 F.2d 625 (C.A. 5, 1928) 50
Gatlin v. United States, 326 F.2d 666 (C.A. D.C. 1963) 37
Geagan v. Gavin, 292 F.2d 244 (C.A. 1, 1961), cert. de-
nied 370 U.S. 903, 82 S. Ct. 1247 (1962) ........ 23, 25
Glasser vy. United States, 315 U.S. 60 (1942) ......... 41
Gorin vy. United States, 313 F.2d 641 (C.A. 1, 1963),
cert. den. 374 U.S. 829, 83 S. Ct. 1870 (1963) .... 33, 44
Gouled v. United States, 255 U.S. 298, 41 S. Ct. 261,
2 5 f | arr rere 34, 35
Hale vy. Henkel, 201 U.S. 43, 26 S. Ct. 370 (1906) ...... 25
Hammers v. State, Okl., 337 P. 2d 1097 .............. 26
Harris v. United States, 331 U.S. 145, 67 S. Ct. 1098
CE =< 00a abe LOMAS bo seb ede eeeseedees 33, 34, 35
Henderson vy. United States, 237 F.2d 169 (C.A. 5,
DE vacdbiel dikes een Nadasia deed sa aees ¥4ae8 52, 56
In re Sawyer, 360 U.S. G22 (1959) .................. 23
Irvin vy. Dowd, 359 U.S. 394, 79 S. Ct. 825; 81 8. Ct. 1639
SN sib oes cet ctadlecesehdh uel wah baswueh sense > ae
Johnson vy. United States, 333 U.S. 10 (1948) ........ 37
Judd y. United States, 190 F.2d 649 (C.A. D.C.1951) .. 36
Kivrette v. United States, 230 F.2d 749 (C.A,. &, 1956),
Sane, Se Ge Th ED wen Was bie enaene véseseans a7
Index
iil
Page
Lawn v. United States, 355 U.S. 339, 78 S. Ct. 311
| er Pr mErr rn reer ss Lorre os er.
Lopez v. United States, 373 U.S. 427, 83 5S. Ct. 1581
t. | err ee Perr rrr try etree. s
Lunsford v. Uniled States, 200 F.2d 237 (C.A. 10,
en rrr error rrr tr ttt err 1,
Lurding v. United Siates, 179 F.2d 419 (C.A. 6, 1950)
Malatkofski v. United States, 179 F.2d 905 (C.A. 1,
o eeprerrrrers prtrer i TT Cr trite te ee
Malinski v. New York, 324 U.S. 401, 65 S. Ct. 781 (1940)
Mapp v. Ohio, 367 U.S. 643 (1961) ......-...-. 29, 31,
Marbs v. United States, 250 F.2d 514 (C.A. 8, 19957),
cert. dented 356 US. 919 ... 2.2... eseece: En Ne
Marks v. United States, 260 F.2d 377, (C.A. 10, 1958),
cert. denied 358 U.S. 929 ........ ccc cece eee eeeees
Marron v. United States, 275 U.S. 192, 48 S. Ct. 74
CROT ogiscuneadada- beanie tosawaveessneewesasaes
Masciale v. United States, 356 U.S. 386 (1958) . 49,
McNabb v. United States, 318 U.S. 332, 63 S. Ct. 608 26,
Meeks v. Cnited States, 163 F.2d 598 (C.A. 9, 1947) ...
Michel v. Louisiana, 350 U.S. 91, 76 S. Ct. 158 (1955) .
Mooney v. Holohan, 294 U.S. 103, 55 S. Ct. 340 (1939)
Napue v. State of Illinois, 360 U.S. 264, 79 S. Ct. 1173
6: errr ee Per er er oe rte Cera
Nardone vy. United States, 302 US. 379 (3937) .......
Olmstead v. United States, 277 U.S. 438 (1928) .......
Paoli y. United States, 352 U.S. 232 (1997) .......-.
Pagach y. Dollinger, 277 F.2d 739 (C.A. 2, 1960),
affirmed 365 U.S. 458, 81 S. Ct. 650 SEO dx cavaes
Rea v. United States, 350 U.S. 214 (1996) ..........-.
Ryles ¥. United States, 183 F.2d 944 (C.A. 10, 1950),
cert. demied 340 U.S. 6TE ... ccc cccccccscccccces i)
Sherman v. United States, 356 U.S. 369 (1958) .. 49, 90,
Smith v. Texas, 311 U.S. 128 (1940) .........----6-:
Sorrells v. United States, 287 U.S. 435 (1932) .. 50, 92,
24
38
a2
a1
41
oo
lv Index
Spano v. New York, 360 U.S. 315 (1959) .........--. 29
Stirone v. United States, 361 U.S. 212, 80 S. Ct. 270
CRI oa ac Sn hsb nh nkick J a0y ad bniee cqea vedere ee 25
Takahaski v. United States, 143 F.2d 118 (C.A. 9,
BP re er rr Te ere te ee eee 34, 35
Thiel v. Southern Pacific Co., 328 U.S. 217 (1946) .. 41, 42
United States v. Barrasso, 267 F.2d 908 (C.A. 3, 1959) 50
United States v. Clancy, 276 F.2d 617 (C.A. 7, 1960) .. 39
United States v. Greenberg, 200 F. Supp. 382 (S.D. N.Y.
SS ict OTD LED OEE Oe 42, 43
United States v. Hcath, 103 F. Supp. 1, D. Hawaii (1952) 41
United States v. Hoffa, 196 F. Supp. 25, S.D. Fla. (1961) 42
United States v. Klosterman, 248 F.2d 191 (C.A. 3, 1957) 52
United States v. Lefkowitz, 285 U.S. 452, 52 S. Ct. 420
CD eine chek re weeaee (aed tues a baws aleve 34, 35
United States v. Masciale, 236 F.2d 601 (C.A. 2, 1956),
offirmed 356 U.S. 386 .. 1.2... ccc ccc cece cece eees 50
United States v. Sherman, 200 F.2d 880 (C.A. 2, 1952) 51
United States v. Silva, 180 F. Supp. 557 (S.D. N.Y.
BOD ainsi li en ereaireda dn teres inst aesieeueeses 51
United States v. Sizer, 292 F.2d 596 (C.A. 4, 1961) .... 92
United States v. Wells, D. Idaho, 163 Fed. 313 (1908) 26
Walder v. United States, 347 U.S. 62 (1954) ......... 31
Weeks v. United States, 232 U.S. 383, 34 S. Ct. 241, 53
L. Ed. 652, L.R.A. 1915B, 834, Ann. Cas. 1910C,
WONT a cece Rian ew Ease dasa eee 34, 35
Whiting v. United States, 296 F.2d 512 (C.A.1,1961).. 46,
53, 54
Walliams v. State, 166 Ind. BBB ... ccc cece cccesces 26
Wilson v. United States, 221 U.S. 361, 31 S. Ct. 538
t. ; epee SOD Wea. Sood engl erie eee one ner weer 36
Wion v. United States, 325 F.2d 420 (C.A. 10, 1963) 37
Index v
Page
Statutes
Ng rar Cae Vt oy wake eS eas 5 VS ENC oe 4
i Se a Le a a oy REE AON R ER 4
pe Oe errr Seg eerie 4, 27
pe ek er ee 4, 27
ey ain acdw tan Ke iNwbinenes aces 4, 40
Massachusetts General Laws, Chapter 234,
RPE ore oe Pere Cee eT EET ERE 40
Massachusetts General Laws, (Ter. Ed.) Chapter 272,
Gootiame So, TOO aed 100 2. 2.5 ccc ccc ceeses: 4, 38
Rules
Rule 14, Federal Rules of Criminal Procedure ....... 44
Miscellaneous
2 Wharton, Criminal Procedure (1918) 1757 ........ 26
3 Wigmore, Evidence, Section 940 (3rd Ed. 1940) .... 7
In the
Supreme Court of the Anited States
Octoser Term, 1964
PAUL A. GORIN, HENRY GRILLO,
and SAUL GLASSMAN,
PETITIONERS,
v.
UNITED STATES OF AMERICA,
RESPONDENT.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES CCURT OF APPEALS FOR THE
FIRST CIRCUIT
Petitioners respectfully pray that a writ of certiorari
issue to review the judgments of the United States Court
of Appeals fer the First Cireuit, entered in the above-
entitled cause on September 17, 1964.
In accordance with Rule 23 (5), the petitioners nle here-
with a single petition, their appeals in the lower court hav-
ing been heard on a printed Consolidated Reeord Appendix,
?
hereinafter designated ‘*R*’.
La)
Opinion Below
Thcre was no opinion in the United States District Court
for the District of Massachusetts. The opinion of the Court
of Appeals for the First Cireuit is reported in 336 F.2d 211
and is annexed hereto as Appendix A.
Judgments Below
The judgments of the United States District Court for
the District of Massachusetts were entered on November
18, 1963 (R. 9) and are set out at R. 495-499.
The judgments of the Court of. Appeals for the First
Circuit are annexed hereto as Appendix B.
Jurisuiction
The judgment sought to be reviewed is dated, and wus
entered, September 17, 1964.
A petition for rehearing, filed by the defendants, was
denied by the Court of Appeals on October 9, 1964.
The jurisdiction of this Court is invoked pursuant to the
provisions of 28 U.S.C. 1254 (1) and Rule 22 (2).
Questions Presented
1. Should the indictment have been dismissed because of
prejudicial pre-indictment publicity inspired by govern-
ment officials?
29. Where the evidence showed that a government agent
induce the commission of the crime ckarged by vio-
lating federal law, should the trial court have:
a. Granted the defendants’ motions for acquittal,
b. Stricken the evidence obtained thereby, and
ee ee ee
3
ce. Instructed the jury to acquit the defendants if
they found that their criminal conduct was in-
duced by the agent’s violation of law?
Should evidence procured by the government by secret
electronic transmission and recording of private con-
versations and by seizure of a document from a de-
fendant at the time of his arrest have been suppressed
and excluded at the trial on timely objection of the
defendants? |
Where the evidence showed that the grand and petit
jurors were not selected in accordance with federal or
state law, should the trial court have:
a. Dismissed the indictment, and
b. Stricken the panel of petit jurors?
Should the case of each defendant have be 1 severed
for trial because of prejudicial joind r?
Should the trial court have instructed the jury that the
government had the burden of prov.ng beyond a reason-
able doubt that its agents did not induce the commission
of the crimes charged?
Where there was no evidence that any of the defend-
ants were engeged in an established pattern of criminal
activity before the government agent induced the com-
mission of the crimes charged, should the trial court
have:
a. Granted the defendants’ motions for acquittal,
and
b. Instructed the jury that it could not find a lawful
inducement?
+
8. Should the trial court have permitted the defendants
to offer evidence of their lack of any criminal record
on the issue of predisposition to commit the crimes
charged?
9. Should the trial court have stricken overt acts cor-
mitted by the defendants as a result of entrapping
activities of the government agent?
10. Should the trial court have excluded evidence of bias
on cross-examination of the government’s principal
witness?
Statutes Involved
The statutes involved in this case are 18 U.S.C. 201, 18
U.S.C, 371, 18 U.S.C. 1995, 26 U.S.C. 7213(a) (1), 26 U.S.C.
7214(a) (4), 28 U.S.C. 1861, Massachusetts General Laws,
Chapter 234, Section 1, and Massachusetts General Laws,
Chapier 272, Sections 99, 100, 101.
The pertinent texts of these statutes are annexed hereto
as Appendix C.
Statement of the Case
On September 6, 1961, av indictment in three counts was
returned against the petitioners and one other defendant,
Natheniel Bergman.! Count One charged all four defend-
ants with conspiring to bribe Charles J. McCaffrey, an
ewy «yee of the Treasury Department, and to defraud the
United States in its governmental functions, in violation
of 18 U.S.C. 371. Count Two charged all defendants except
Grillo with having, on June 27, 1961, and Jure 28, 1961,
bribed McCaffrey by giving him ten thousand (10,000.00)
1 Bergman is not a petitioner here. He was convicted on the two
counts in which he was named as a defendant and was sentenced to
an eighteen-month term of imprisonment (reduced from three years).
J
dollars in violation of 18 U.S.C. 201. Count Three charged
petitioner Grillo only, as a Treasury Department employee
acting in connection with the revenue laws of the United
States, with having conspired with the other three, named
as co-conspirators but not as defendants, to defraud the
United States in its governmental functions, in violation of
26 U.S.C. 7214(a,\/ 7 (R. 10-16).
Each petitioner pleaded not guilty (R. 1).
Each petitioner moved to dismiss the indictment on the
ground that it was returned by grand jurors calculatedly
prejudiced against petitioners by governmentally inspired
publicity (R. 16, 18, 19-26). These motions were supported
by evidence of newspaper articles, marked Exhibit A, (R.
25) dated Saturday, August 26, Sunday, August 27, and
Monday, August 28, 1961, respectively. In these articles,
Attorney General Robert Kennedy was quoted as saying:
‘“‘The case was investigated vigorously and skillfully
by the Inspection Service of the Internal Revenue
Service. Actions of (1.R.S. Commr. Mortimer) Caplin
and the men of the Inspection Service reflect the
integrity of the Interna] Revenue Service and are in
the highest tradition of the Federal Service.
‘‘Mr. McCaffrey is a courageous American and typifies
the loyalty and integrity of the men of the Internal
Revenue Service.’’ =
Nine days after publication of the last article complained
of, the petitioners were indicted.
In addition, each petitioner, in a joint motion, moved to
dismiss the indictment on the ground that the list from
which was drawn the grand jury which returned the indict-
ment was drawn contrary to law (R. 31-32). Kvideice
adduced in support of this motion established that the
6
grand jurors were selected by the jury commissioners of
the United Siates District Court for the District of Massa-
chusetts from the jurv lists of the various cities and .°wns
in Massachusetts. The Boston Election Commission, which
is charged with the annual preparation of jury lists for the
City of Boston, selected jurors solely from the lists of
registered voters in the various wards of the city. Then,
by reference to the list of inhabitants prepared annually
by the city police department, the Commission eliminated
those exempt from jury service by the General Laws of
Massachusetts, Chapter 234, Section 1 (R. 502-3).
On the same grounds, the petitioners moved to strike the
jury panel from which was drawn the petit jury at their
trial. (R. 32-33).
Separate motions for severance were also filed by each
petitioner (R. 16-17, 18-19, 26-28).
Finally, in joint motions, each petitioner seasonably
moved (1) to suppress evidence obtained from a document
which was taken from the person of the petitioner Glassman
shortly after his arrest (R. 29) and (2) to suppress certain
evidence obtained by mechanical or electronic means (R.
29-30).
With respect to the motion relating to the document taken
from Glassman’s person, there was evidence tending to
show that, on August 26, 1961, Inspector Richard Callahan
served a warrant of arrest on Glassman. Shortly there-
after, at the office of the United States Marshal, Glassman
was asked to put all his persona! effects on a desk. In
addition, he was instructed to empty the contents of his
wallet onto the desk. After Glassman complied, Callahan
could see that there were still papers in the wallet and re-
quested Glassman to let him see them. Glassman stated
that they were personal pipers and unimportant. When
Callahan stated that he wanted to see them anyway, Glass-
man produced them. Among them was a yellow piece of
(eed
paper containing figures and writing. Callahan thereupon
copied the contents of the paper onto another piece of
paper and returned the original to Glassman. The Court
admitted the copy made by Callahan as Exhibit 36. The
paper purportedly constitutes a record of the financial
agreement, and payments made thereunder, by and between
Bergman, Glassmar and Gorin (R. 82-89).
With respect to the motion relating to the listening de-
vices, it was stipulated that the devices were used without
the permission of any court or of any agent of the Common-
wealth of Massachusetts and without the permission of any
of the defendants, but with the permission of Charles J.
McCaffrey (R. 30-31). The facts relating to the use of
these devices are hereinafter set forth.
All the above-described motions were denied by the trial
court.
On February 20, 1963, the Court of Appeals vacated
judgments of conviction entered on March 19, 1962, and
remanded the case for a new trial. On June 3, 1963, this
Court denied the defendants’ petition for a writ of cer-
tiorari.
The petitioners were tried for the second time beginning
October 1, 1963, and convicted on October 31, 1963. Judg-
ments of conviction were entered on November 18, 1963.
The petitioners’ petition for rehearing was denied by the
Court of Appeals on October 9, 1964.
The evidence adduced at the trial tended to prove the
following facts:
The tax returns of the defendant Nathaniel Bergman, a
Hartford attorney, had heen under investigation by the
Intelligence Unit of the Hartford District Office of the In-
ternal Revenue Service since June, 1959. Bergman re-
tained a Hartford attorney, one Hurney, te represent him.
Some time before June, 1961, when the case was about to
come under the jurisdiction of the Boston Regional Office
8
of the Internal Revenue Service, the petitioner Paul Gorin,
who practiced law in Boston, was retained to act as co-
counsel.
On May 1, 1961, the case arrived at the Boston Regional
Office of John Deneen, Assistant Regional Commissioner,
Intelligence. At the time, Deneen’s Executive Assistant
was the petitioner Henry Grillo. In Deneen’s absence, his
duties were assumed by Grillo. There was nothing unusual
- about the conduct of the case while pending in Deneen’s
Office (R. 38).
On May 24, the case was forwarded to Charles J. Me-
Caffrey, Chief of Enforeement in the Office of Regional
Counsel, Boston (R. 37).
On May 25, McCaffrey received the case and assigned it
for review to an attorney named Griffin (R. 127, 135-136).
McCaffrey and the petitioner Saul Glassman, a Boston
attorney, had known each other since March, 1960, when
they joined a United States Maine Corps Reserve volun-
tary training unit (VTU) consisv.ng of reserve officers who
were lawyers. Early during their acquaintance, Glassman
told McCaffrey that he specialized in ree! estate matters.
MeCaffrey stated that the practice of a tax specialist was
very lucrative. He suggested that Glassman take courses,
in tax law and, generally, that he look into the possibilities
of a tax practice (R. 130-133).
Sometime in March, 1961, when Glassman mentioned an
impending trip to Europe, McCaffrey commented that
covernmen: employees with large families find it difficult
to save money (R. 138).
Up to May 31, 1961, Glassman never had diseussed any
ease in Enforcement with McCaffrey and MecCaffrev had
no reason to doubt Glassman’s honesty and integrity ( R.
144).
On that day, May 31, 1961, Glassman called McCaffrey
and said that he wanted to talk with MeCaffrey about a
9
case in McCaffrey’s office and would see him at th. TU
meeting that night (R. 142-143). The call made McCaffrey
‘‘yneasy’’ and, on the spur of the moment, he stated that
he did not intend to go to the meeting that night (R. 144-
145). Glassman said he would ca!! the next morning, to
which McCaffrey replied, ‘‘All right’’ (R. 143). Immedi-
ately after the call, MeCaffrey called in an attorney named
Markham and asked him to make a record of the call (R.
144).
At the time that he stated that it would be ‘‘all right’’
for Glassman to call the next morning, McCaffrey knew
that it would be improper to discuss any case with Glass-
man, because he knew that Glassman did not have a
Treasury Card or a power of attorney in any case in the
Regional Counsel’s office (R. 147-148).
On the same day, May 31, McCaffrey signed the name of
his immediate superior, John Edwards, to a letter addressed
to Gorin, in which it was suggested that a conference on
the Bergman case be held on June 13 (R. 140-141, 369, 407).
The next day, June 1, Glassman called McCaffrey and
requested a conference (R. 150). McCaffrey said:
‘‘What is the name of tke case so I can get the files
and refresa my recollection about the case?’’ (R. 152)
Glassman thereupon identified it.as the Bergman case (R.
150). At this point, McCaffrey knew that Gorin was the
counsel of record in the ease (R. 152).
At the conference of June 1, McCaffrey, in conceded
violation of TreaSury propriety (Ri. 147) and policy (R.
336), disclosed to Glassman the approximate amounts of
the civil deficiencies, the opening and closing net worth
figures, and that Bergman had some 248 savings bank ac-
counts (R. 334-335). Glassman closed the conference with
10
the comment that, in a ease >f such magnitude, ‘‘there is
enough of a fee in it for all of us.’’? McCaffrey thereupon
reported the conversation to his imnediate superior, John
Edwards (R. 167). Since the ‘“ys’? could have referred to
the three attorneys in the case (Glassman, Gorin, and
Hurney), McCaffrey and Edwards did nothing further in
the matter (R. 167, 171).
Sometime between May 31 and June 15, Gorin spoke to
McCaffrey and obtained an extension of time for the
conference to July 6. MeCaffrey did not mention that he
had talked to Glassman about the case (R. 369, 407).
On June 6, McCaffrey called Glassman and went to Glass-
man’s office ou VTU business. Glassman mentioned that
he expected a visit from a friend of Bergman and would
get in touch with McCaffrey later.
On June 8, McCaffrey and Glassman were together at a
VTU meeting, but there was no discussion of the Bergman
case (R. 167).
On the night of June 14, McCaffrey and Glassman met at
a VTU meeting. After the meeting, McCaffrey asked Glass-
man for a ride to South Station. On this occasion, Glass-
man mentioned his fee in the Bergman case (R. 175-176).
He stated that he had told Bergman’s friend that he wanted
$35,000 if the ease were killed in McCaffrey’s office and that
the money would have to be put in escrow.
On the following morning, June 15, McCaffrey reported
the conversation of the evening before to his superior,
Edwards. Asa result of his talk with Edwards, the matter
was reported to the Regional Inspector on the same day
(R. 177). Shortly thereafter, McCaffrey met with an In-
spector named Kiely (R. 184).
On June 20, McCaffrey telephoned Glassman. One pur-
pose of the call was to ing.tire whether Glassman was yong
to the VTU meeting the following night. The other pur-
pose was to inform Glassman that he, McCaffrey, had had
2
the Bergman case transferred back to him. Glassman said,
‘‘Wonderful’’ and asked to come over, to which McCaffrey
acquiesced (R. 188-189).
Just prior to this conversation, Inspector Kiely had in-
stalled a radio transmitter in a drawer of McCaffrey’s desk
(R. 75).
At MeCaffrey’s office, McCaffrey said:
‘‘T’ve had the case transferred to me because T’ll have
better control of it.’’ (R. 190)
The transfer of the case to McCaffrey was in accordance
with Kiely’s instructions (R. 66).
There was another discussion about Glassman’s fee and
MeCaffrey observed that the fee was about ten per cent of
the tax deficiency (R. 192). McCaffrey then said:
“We know what we are talking about. Let’s lay it
on the line. What do you have in mind for me?’’
(R. 193)
Up to that point, Glassman had not offered McCaffrey a
bribe (R. 192). in response to McCaffrey’s question, Glass-
man said:
‘Whatever you think.’’
Subsequently, in the same conversation, Glassman stated
that McCaffrey would get between ten ané fifteen thousand
dollars, to which McCaffrey responded that it was more
money than he had ever had in his life (R. 195). MeCaffrey
suggested that the money be in small bills. The conversa-
tion about payments of money to McCaffrey was consistent
with Inspector Kiely’s instructions to McCaffrey (R. 66).
12
On tae following night, June 21, McCaffrey drove up to
the building where the VTU meeting was to be held. When
he saw Glassman, he called and beckoned him over to his
ear (R. 196), in which an electronic recording device had
been installed (R. 76-77). McCaffrey stated that he would
have a Criminal Action Memorandum (CAM) recom-
mending no criminal prosecution drawn in the rough by
the following Tuesday, June 27 (R. 197, 340). When Glass-
man said, ‘‘So soon?’’ McCaffrey replied
‘‘Well, Saul, here’s the point: If they are going to
stall, I can’t do it. I mean I don’t want to draw atten-
tion to the case by an unusual number of postpone-
ments.’’ (R. 340)
McCaffrey said also that ‘‘the fastest way is the best way”’
(R. 199) and inquired from whom he would receive the
money (R. 200).
The two men then left the automobile and entered the
Marine Corps Building. McCaffrey later motioned Glass-
man out to the rear porch and asked:
‘Do you or anyone else want to review the CAM?’’
(RK. 344-345)
At the time, McCaffrey had in mind that Gorin would be a
potential observer of the CAM. McCaffrey knew that a
CAM should not be shown to unauthorized persons and that
it would be unusual for a private lawyer to see a CAM
(R. 345-346).
Glassman respended by saying that he would, himself,
review the CAM. McCaffrey then stated that he would bring
a copy of the CAM to Glassman’s office on the following
Tuesday, June 27 (R. 346).
On the next day, Jung 22, McCaffrey telephoned Glass
13
man to confirm their appointment for the following Tues-
day (R. 201).
Ox June 27, McCaffrey brought to Glassman a rough
draft of the CAM (R. 346) and asked him to read it over
(R. 208). When Glassman asked about the « ivisability of
a conference with Gorin, McCaffrey ‘suggested’? a back-
dated letter from Gorin (R. 205), stating:
“Just a minute. I’ll shoot you a copy. For (blank)
sake, be carcful with it. If this gets out, there is only
one man that let it out, and that’s me. Now, here’s
the point. Let him look at the copy, go over it, write
me a back-dated letter.’’ (R. 346)
The purpose of the letter was to make the record appear
that the CAM was based on information received from
Bergman’s attorney (R. 205-206). This is the same back-
dated letter which is charged in Overt Act No. 3 as having
been written by Gorin (R. 347).
Then, referring to the CAM McCaffrey said:
‘Do you have a photostatic machine here in the office?
Why don’t you have the girl run it off now?’’ (R. 350)
The photostat thus made is the same one which is charged
in Overt Act No. 2 as having been made by Glassman (R.
351).
During the course of the meeting of June 27, Glassman
paid McCaffrey $5,000 (R. 203). Also during the mecting,
Glassman stated that Grillo had been approached and was
ready for the arrival of the CAM at the o.fice of Regional
Intelligence. Glassman also stated that Gorin was ‘‘O.K.”’
(R. 350).
On June 28, McCaffrey went to Glassman’s office again
and was given the second, and final, installment of $5,000.
14
On this vecasion, he delivered to Glassman the smooth copy
of the CAM (R. 211). At this point, ech man had done
all he promised under the agreement (E.. 351-352) and the
alleged bribery was complete (R. 408).
On July 7, McCaffrey callea Glassman to tell him that he
had received ‘‘howls’’ from Mr. Deneen, Grillo’s superior,
concerning the CAM (R. 213, 354.)
On July 10, McCaffrey visited Glassman’s office and was
given the back-dated letter signed by Gorin as originally
suggested by McCaffrey. At this time, McCaffrey said to
Glassman :
‘‘} hear that Deneen is away on vacation. In his
absence then, Grillo is the man. It is time for him to
act.”’ (R359).
During the course of this same conference, McCaffrey
said:
‘«T think I have done all T promised to do. If I can be
of any help let me know’’ (R. 356).
At that conference also, Glassman said:
‘If the CAM doesn’t go through, I’m not unhappy.”’
(R. 356)
McCaffrey responded:
‘*Well, Iam in a way” (R. 356).
On returning to his sftice, McCaffrey found a letter just
received from one Murphy, Chief of Intelligence ‘nthe
Hartford District Office, to the effect that Murphy intended
to file a vigorous protest to the CAM. The letter had been
15
forwarded through the office of Regional Intellig->se and
bore the signature of Grillo indicating his approval (R.
230, 357). In spite of Glassman’s prior statement that he
would not be unhappy if the CAM were overturned (R.
358-359), McCaffrey, with the concurrence of the Govern.
ment investigators, called Glassman to advise him of the
receipt of the letter (R. 357-359).
In the evening of July 11, electronic listening eqnipment
was installed in MeCaffrey’s office and, during the evenings
of July 11 and 12, in Grillo’s office (R. 90).
On July 13, MeCaffrey called Grillo directly, broached
the subject of the Bergman case, and invited Grillo over
to see his new offices. The call, however, failed to evoke
action by Grillo (R. 360). This was the first covversation
between McCaffrey and Grillo about the Bergman case
(R. 408).
On the next day. July 14, McCaffrey received a letter
from Gorin’s co-counsel of record, Hurney, inquiring as
to the result of the conference originally scheduled for
June 13 and then rescheduled for July 6 (R. 369-570).
McCaffrey did not ‘‘think of’’ the obvious reply to the
Hurney letter; that is, to advise Hurney that the confer-
ence of July 6 had been cancelled in accordance with a
letter from Gorin dated June 15 (R. 370). Instead, MeCaf-
frey and the Government investigators determined that
‘‘the only logical person to talk to about it would be Gorin”’
(R. 364).
On July 18, in ‘‘preparation’’ for a meeting between
McCaffrey and Gorin, which, did not take place until July
20, microphone’ were installed in McCaffrey’s office with
wires leading to a receiver and tape recorder located in a
vearby utility closet (R. 77-78).
In the merning of July 19, McCaffrey called Glassman
and asked whether he ought to bring the Hurney letter
with him to the VTU meeting of that evening, to which
16
Glassman replied in the affirmative (R. 217). McCaffrey
also called Grillo that morning and invited him to visit
McCaffrey’s new offices. This call to Grillo also produced
no results (BR. 249-250).
In the evening of July 19, at the VTU meeting, Glassman,
after being invited by McCaffrey into the cloak room,
delivered to McCaffrey a legal brief from Gorin (R. 220)
and was stown the Hurney letter (R. 218). Then McCaf-
frey, subtly suggesting that he call Gorin directly, said,
with reference to the letter:
‘‘T’m a little bit upset about it because it has come in
through the front office. It has been handstamped and
logged in. My first impulse was to call Gorin and be
a little indignant about it and ask him, ‘Aren’t the
co-counsel speaking to ene another?” ”’ (R. 365).
This was the first statement made by anyone in any form
of words which made reference to a call to Gorin (R. 365).
When Glassman approved of the call, McCaffrey said:
‘‘Well, all right. If there is no objection I will cali
him’’ (R. 366).
Moreover, with reference to his intended call to Gorin
concerning the Hurney letter, McCaffrey said to Glassman:
‘“And Gorin, I hope, will say, ‘Look, Mae, I’ll take
care of it.’’’ (R. 367).
McCaffrey conceded that he ‘‘encouragec ,’’ ‘“wanted,’’ and
‘‘expected’’ Gorin to take some action in reference to the
Hurney letter (R. 368-369).
Then, on the morning of July 90, McCaffrey telephoned
Gorin directly (R. 373-374).
17
There then followed a series of meetings between Gorin
and McCaffrey on July 20, July 25, July 27, August ],
August 3, August 8, and the morning of August 14. These
were followed by meetings between McCaffrey, Gorin, and
Bergman in the evening of August 14 and again in the
morning of August 15. On the latter date, Grillo joined the
meeting, but only during Bergman’s temporary absence.
During the course of these conferences, Gorin was drawn
quickly and surely into the original McCaffrey-Glassman
ecuspiracy. On two occasions, in response to direct inquiries
from McCaffrey, in Bergman’s presence, Gorin stated that
he had paid Grillo $1500 (R. 389-390).
On July 20, at the first McCaffrey-Gorin conference,
Gorin asked McCaffrey what he wanted done concerning the
Hurney letter. McCaffrey suggested that Gorin obtain an
exclusive power of attorney.
On July 25, as a direct result of McCaffrey’s suggestion,
Gorin delivered to McCaffrey a revocation of the power of
attorney of both himself and Hurney (R. 376).
On July 27, Gorin invited McCaffrey golfing. The day
began with a complaint by McCaffrey that his golf clubs
were dilapidated and ended with Gorin’s having given
McCaffrey a new bag and set of clubs (R. 376).
On August 1, McCaffrey was Gorin’s luncheon guest at
a Boston restaurant and, on August 3, Gorin visited Me-
Caffrey’s office (R. 377).
On August 8, from a suburban Boston golf course, Gorin
returned a call from McCaffrey to Gorin’s office. McCaffrey
had received instructions to go to Washington concerning
a certain Goldfine civil tax case and suggested to Gorin that
he might also be interested in the matter. McCaffrey said
that Gorin would have tc come in that day or not at all
because McCaffrey was required to leave for Washington
that very afternoon. To Gorin’s excuse that he was at a
golf course, McCaffrey urged that Gorin take a taxi. To
18
Gorin’s excuses that he was dressed in golf shorts and
unshaven, McCaffrey responded that that would not make
any difference (R. 381-383, 392-393).
Gorin finally relented and came to McCaffrey’s office or
that day. Thereupon, McCaffrey, to Gorin’s statement that
the case was ‘‘important,’’ responded by saying:
‘‘T know it’s important but is it valuable?’’ (R. 383)
Apparently, nothing further was done on the matter by
either McCaffrey or Gorin.
Similarly, other conversations between McCaffrey and
Gorin concerning other cases that would be coming ito
McCaffrey’s office never developed beyond the talking stage.
On August 10, McCaffrey again called Gorin’s office.
Gorin returned the call from a hotel in New Hampshire.
That evening, Gorin called McCaffrey to inquire about the
official protest of Intelligence to the CAM. McCaffrey
stated that it was a formidable protest and that it might
be necessary to get together with Grillo. Gorin said that
he would visit McCaffrey the following Monday, August 14
(R. 384-385).
In the morning of August 14, Gorin arrived at McCaf-
frey’s office. McCaffrey was critical of Grillo’s inactivity
in ‘“‘watering down’’ the protest (R. 385). When Gorin
offered to call Bergman in order to obtain additional infor-
mation requested by McCaffrey, McCaffrey asked:
‘How aboni Grillo?’’ (R. 385).
McCaffrey then called Grillo and turned the telephone over
to Gorin, who requested Grillo to come to McCaffrey’s office.
Grillo stated that he could not come (R. 278, 385-386).
In the evening of the same day, Angust 14, Bergman
joined MeCaffrey and Gorin. During the course of the
19
evening, McCaffrey made repeated references to the need
for persuading Grillo both to confer with McCaffrey con-
cerning the protest and to take some favorable action in
the case at the Office of Regional Intelligence (R. 269-278).
On the next day, August 15, Grillo was finally drawn
into a conference with McCaffrey and Gorin. This is the
same conference which is charged as Overt Act No. 9 and
which McCaffrey testified he tried in every way he could
to bring about (R. 387).
Prior to the conference, McCaffrey had called Grillo.
When Grillo returned the call, McCaffrey turned the tele-
phone over to Gorin, who asked Grillo to come to Me-
Caffrey’s office. Grillo asked to speak to McCaffrey and
informed h'm that he could not come until 10:30 A.M. (R.
287-289). McCaffrey at no time informed Grillo that Gorin
was no longer Bergman’s attorney of record (R. 303).
During the conference at McCaffrey’s office, McCaffrey
made the direct request of Grillo to ‘‘straighten this case
out’? in Deneen’s absence. Grillo refused, stating that he
would get into serious difficulty (R. 308). Grillo made other
statements which were sympathetic with the stated desires
of McCaffrey and Gorin to override the protest to the CAM
(R. 309-312).
Aiso during the course of this conference, McCaffrey
offe-ed to Bergman a copy of the Special! Agent’s Report
and handed :. to Gorin, who accepted it. This is the same
report which is charged in Overt Act No. 10 as having been
‘requested’? by Bergman. MeCaffrey testified that the Act
as charged is incorrect (R. 390-391).
Electronic listening devices, by which conversations were
monitored and/or recorded, were used by the Government
as follows:
June 20, McCaffrey-Glassman, at McCaffrey’s office:
Fargo radio transmitter placed in McCaffrey’s desk. Radio
receiver and tape recorder placed in nearby utility closet.
20
Conversation monitored by Inspector Kiely and testified
to by him (R. 39-41).
June 21, McCaffrey-Glassman, in McCaffrey’s automobile
and in Marine Corps Reserve building: Fargo radio trans-
mitter placed in McCaffrey’s automobile. Receiver and
recorder placed in Government vehicle (R. 44-45, 76-77).
Minifon wire recorder placed on McCaffrey’s person (R.
46). Conversation in automobile monitored by Inspector
Kiely and testified to by him (R. 44-45). Wire recording
of conversation in automobile and in building played to
jury (R. 91-97).
June 27, McCaffrey-Glassman, at Glassman’s office: Kell
radio transmitter and Minifon wire recorder placed on
McCaffrey’s person. Receiver and recorder placed directly
across the street. Conversation monitored by Inspector
Kiely and testified to by him (R. 47-48). Wire recording
played to jury (R. 97-109).
June 28, McCaffrey-Glassman, at Glassman’s office : Same
devices as on June 27 (R. 49, 77). Wire recording played
to jury (R. 109-110).
July 10, McCatirey-Glassman, at Glassman’s office :
Minifon wire recorder placed on McCaffrey’s person (R.
50).
July 19, McCaffrey-Glassman, at the Charlestown Officers
Club: Minifon wire recorder placed on McCaffrey’s person
(R. 51-52).
July 20, McCaffrey-Gorin, at McCaffrey’s office: On July
18, dynamic microphone yiaced behind the radiator with
wires leading to a nearby utility closet where a tape recorder
was located. Conversation monitored by Inspectors Kiely
and Callahav and testified to by both Inspectors (R. 52-54,
77-78).
July 25, McCaffrey-Gorin, at Children’s Hospital:
Minifon wire recorder placed on McCaffrey’s person (Rt.
50-56).
21
July 27, McCaffrey-Gorin, at Blue Hills Country Club:
Minifon wire recerder placed in bag owned by McCaffrey,
but no recording made (R. 56-57).
August 1, McCaffrey-Gorin, at Gorin’s office and Yankee
Fisherman restaurant: Minifon wire recorder placed on
MeCaffrey’s person (R. 57-58).
August 3, McCaffrey-Gorin, at McCaffrey’s office: Dy-
namic microphone, originally placed behind radiator on.
July 18 in preparation for July 20 conference, remained
in place, with cable leading to recorder in nearby utility
closet. Conversation monitored by Inspectors Kiely and
Callahan in utility closet and testified to by both Inspectors
(R. 58-59, 78-79).
August 8, McCaffrey-Gorin, at McCaffrey’s office: Dy-
namic microphone behind radiator leading to recorder in
utility closet. Conversation monitored by Inspectors Kiely
and Cellahan in utility closet and testified to by both In-
spectors (R. 59-60, 79-80). Tape recording played to jury
(R. 394-398).
August 14 (A.M.), McCaffrey-Gorin, at McCaffrey’s
office: Dynamic microphone lead'ng to recorder in utility
closet. Conversation monitored by Inspectors Kiely and
Howard in closet and testified to by Kiely (R. 61-62).
August 14 (P.M.), McCaffrey-Gorin-Bergman, at McCaf-
frey’s office and the Yankee Fisherman Restaurant: Dy-
namie microphone leading to recorder in utility closet.
Minifon wire recorder placed on McCaffrey’s person.
Conversation in MeCaffrey’s office monitored by Inspector
Kiely in utility closet and testified to by him (R. 62-64).
August 15, (1) McCaffrey-Gorin-Bergman, (2) MeCaf-
frey-Gorin-Grillo, and (3) McCaffrey-Gorin-Bergman, all
at McCaffrey’s office: Dynamic microphone leading to
recorder in utility closet. All three conversations mon!-
tored by Inspector Callahan and testified to by him (R. 64,
80-81). Tape recording played to jury (R. 110-119).
22
Anent the conversations in McCaffrey’s office, a battery
opcrated tape recorder and extension microphone had been
placed in McCaffrey’s desk on July 11 and remained in
place until about August 15 (R. 75). Apparently no tapes
were made from this recorder; at auy rate, none was in-
troduced.
In addition to the conferences outlined above, Grillo’s
part of a telephone conversation, on August 1.4, with Gorin
was recorded by means of a microphone in Grillo’s govern-
ment office, leading to a tape recorder in another building.
Grillo’s part of the conversation was monitored by In-
spector John Buckiey and testified to by him (R. 401-404).
Certain other telephone conversations, to which MecCaf-
frey was a party, were recorded on McCaffrey’s end only.
Although not all recordings were played in open court
for the jury, all were introduced in evidence and the jury
was told that the Court would order played any other
recordings the jury might wish.
Reasons for Granting the Writ
1. Tue Court or Apprats Has Decrpep THree Important
Questions PERTAINING TO THE PERMISSIBLE Conpvuct oF
OFFIceRs AND AGENTS OF THE Unirep States tN CRIMINAL
Prosecutions Wuicu Sertovsty AFFECT THE PetIrion-
ers’ ConstiITUTIONAL RicHts.
a. In holding that pre-indictment publicity inspired vg
government officials did not warrant dismissal of
the indictments, the Court of Appeals decided an
important question of federal law in a manner not
in conformity with the decision of this Court.
Each of the petitioners moved to dismiss the indictment
on the ground that it was returned by grand jurors calcu-
22
latedly prejudiced against them by publicity directly in-
spired by Government officials (R. 16, 18, 19-26).
Government officials issued a news release just before
the Government’s principal witness, McCaffrey, was
scheduled to testify before the grand jury. In that release,
the Aitorney General of the United States placed his im-
primatur upon the courage, honesty, and loyalty of McCaf-
frey. The news release, as could have been anticipated, was
carried in newspapers published throughout Massachusetts.
Petitioners’ contention is that there is a right under the
Fifth Amendment to the Federal Constitution to be indicted,
if at all, by grand jurors free of calculated,’ governmentally
instigated prejudice or that proper standards for the eu-
forcement of the crimina! law in the federal courts sanction
only indictments by a grand fury uninfluenced by improper
forces generated by the prosecutor.
At the outset, it should be noted that neither Beck v.
Washington, 369 U.S. 541, 82 S. Ct. 955; nor Geagan v.
Gavin, C.A. 1, 292 F.2d 244, cert. denied, 370 U.S. 903, 82
S. Ct. 1247, foreclose petitioners’ contention Not only did
both of these cases deal merely with the minimum require-
ments of the Due Process Clause of the Fourteenth Amend-
ment, but Beck left unanswered the question of whether a
state prisoner has a federal constitutional right to have
charges against him considered by a fair and impartial
grand jury2 The four members of the Beck majority, while
indicating that it might be that ‘‘the Due Process Clause
1 In the sense meant by Frankfurter, J., dissenting, in Jn re Sawyer,
360 U.S. 622, 664, when he asked, “Even though the (prosecutor)
may not have had a provable desire, the specific intent, to affect the
pending trial and its outcome, are we really required to attribute to the
(prosecutor) a child-like unawareness of the inevitability that (his)
remarks would be reported and find their way to judge or jury, as
they did?”
2 The Court, however, in affirming Geagan v. Gavin, 181 F. Supp.
466, decided that there-was no such right.
24
of the Fourteenth Amendment require(s) (a)... State,
having once resorted to a grand jury procedure, to furnish
an unbiased grand jury,”’ intentionally avoided the question
by concluding that the State of Washington, so far as was
shown by the record, did supply an unbiased grand jury
in that ease. 369 U.S. at page 546, 82 S. Ct. at page 958.
Two members of the minority, Mr. Justice Black, w:th
whom the Chief Justice concurred, assumed ‘‘the right of
defendants to fair and impartial grand jurors.’’ 369 U.S.
at page 559, 82 S. Ct. at page 965. The third dissenter,
Mr. Justice Douglas, said, ‘‘Jt is well-settled that when
either the Federal Government or a Scate uses a grand jury,
the accused is entitled to those procedures which will insure,
so far as possible, that the grand jury selected is fair and
impartial.’’ 369 U.S. at page 579, 82 S. Ct. at page 97% 3
See also Cassell v. Texas, 339 U.S. 282, 08. Ct. 629;
v. Louisiana, 350 U.S. 91, 102-104, 76 S. Ct. 158, 165-166.
(Italics supplied.)
That there is such a right or standard, as petitioners
claim under the Fifth Amendment or urge under the super-
visory powers of the federal courts, seems clear.
The Fifth Amendment to the Federal Constitution not
only requires federal prosecutions for serious crimes to be
instituted by ind:ctment, but also guarantees due process
of law to all federal prisoners. It must have been those
provisions of the Fifth Amendment which this Court ad-
verted to in Costello v. United States, 350 U.S. 359, 363,
264. 76S. Ct. 406, 409 and Lawn v. United States, 355 U.S.
259, 349, 78 S. Ct. 311, 317, when it said iu effect that the
Fifth Amendment requires tat an indictment be returned
not only by a legally constituted grand jury, but also by an
unbiased grand jury. Cf. Beck v. Washington, 369 U.S.
541, 546, 82 S. Ct. 955, 958.
if, contrary to the view of the Court of Appeals for the
25
First Ciyeuit,? the Due Process Clause of the Fourteenth
Amendment should ultimately be held to require an un-
biased grand jury, then the Due Process Clause of the Fifth
Amendment must be construed to impose at least the same
requirement. It would be frivolous to suppose that ‘‘due
process of law’’ meant one thing under the Fourteenth
Amendment and something less under the Fifth Amend-
ment. Cf. Fournier v. People, C.A. 1, 281 F.2d 888, 891
(footnote) ; Frankfurter, J., concurring, in Malinski v. New
York, 324 U.S. 401, 415, 65 S. Ct. 781, 788.
Finally, the notion that a prosecutor may purposely
prejudice a grand jury with immunity is certainly a concept
that is foreign to our standards of decency and fairness.
As was said in Costello v. United States, 350 U.S. 359, 362,
76 S. Ct. 406, 408, the very purpose of the grand jury pro-
cedure is ‘‘to provide a fair method for instituting criminal
proceedings against persons believed to have committed
crimes.”’
Its object, according to Stirone v. United States, 361 U.S.
212, 218, 80 S. Ct. 270, 273, is to limit a person’s jeopardy
‘‘to offences charged by a group of his fellow citizens act-
ing independently of either prosecuting attorney or judge’’.
It was ‘‘designed as a means, not only of bringing to trial
persons accused of public offenses upon just grounds, but
also as a means of protecting the citizen against unfounded
accusation, whether it comes from government, or be
prompted by partisan passion or private enmity.”’ Ex
parte Bain, 121 U.S. 1, 11, 7 S. Ct. 781, 786. ‘‘The most
valuable function of the grand jury (has been) not only to
examine into the commission of crimes, but to stand be-
tween the prosecutor and the accused.’ Hale v. Henkel,
201 U.S. 43, 59, 26 S. Ct. 370, 373. See also Costello v.
United States, 350 U.S. 359, 362, 76 S. Ct. 406, 408; 2
) As expressed in Geagan v. Gavin, 992 F.2A 244, cert. denied, 370
U.S. @@5, 82 S. Ct. 1247, affirming 181 F. Supp. 466.
26
Wharton, Criminal Procedure (1918) 1757; 38 C.J.S. 983.
(Italics supplied.)
The jealousy with which this safeguard has been pre-
served is well demonstrated by the following cases, in each
of which the conviction was reversed because of the prose-
cutor’s improper influence upon the deliberations of the
grand jury. United States v. Wells, D. Idaho, 163 Fed. 313,
325-327; Williams v. State, 188 Ind. 283, 303-307 ; Blake v.
State, 54 Oki. Cr. 62, 14 P.2d 240; Hammers v. State, Oki.,
337 P.2d 1097. Sce also Attorney General v. Pelletier, 240
Mass. 264, 207-310, 134 N.E. 407, 419; 38 C.J.S. 1042.
To permit the prosecutor to influence a grand jury by
prejudicial publicity, ealeulatedly issued or initiated by
him, would make a mockery of the very purpose of the
grand jury procedure. It would reduce that procedure to
a mere sham or pretense.
This Court has squarely held that the securing of a guilty
verdict by the intentional use of perjured testimony,
Mooney. v. Holohan, 294 U.S. 103, 59 S. Ct. 340; Napuc v.
State of Illinois, 360 1J.S. 264, 79 S. Ct. 1173, or by intimi-
dation, Frank v. Mangum, 237 U.S. 309, 35 S. Ct. 522, or by
massive publicity, /rvin v. Dowd, 359 U.S. 394, 79 S. Ct.
825; 81 S. Ci. 1639, stimulated by the prosecutor, is consti-
tutionally abhorrent.‘
In any event the issue here presented is not limited to
the rock-bottom requirements of the Due Process Clause
of either the Fifth or Fourteenth Amendments. As this
Court stated iv McNabb v. United States, 318 U.S. 332, 340,
63 S. Ot. 608, 613, ‘Judicial supervision of the adminis-
tration of criminal justice in the federal courts implies the
duty of establishing and maintaining civilized standards of
procedure and evidence. Such standards are not satisfied
merely by observance of those minimal historic safeguards
4 Even under the Fourteenth Amendment.
27
for securing trial by reason which are summarized as ‘due
process of law’ and below which we reach what is really
trial by force.’’
b. The Court of Appeals erred wm affirming the trial
court’s denial of the Petitioners’ Motions for Judg-
ment of Acquittal, Refusal to Strike evidence ob-
tained by violation of law and refusal to instruct
the jury that the Petitioners should be acquitted if
their commissions of crime were the result of Mc-
Caffrey’s violations of law.
The evidence adduced at the trial established that Mc-
Caffrey on June 1 disclosed confidential information con-
cerning the Bergman case to Glassman knowing Glassman
did not have a power of attorney from the taxpayer and
that he did not even have a Treasury card (R. 147-148, 334-
336). Such disclosures were clearly in violation of 26
U.S.C. 7213(a)(1) and 18 U.S.C. 1905 and pertinent LR.S.
regulations. |
The petitioners moved to strike the evidence that was
unlawfully obtained thereby and duly objected to the denial
of their motions (R. 405-406, 408-410) ; requested the Court
to instrnet the jury that if they found that the defenda ‘ts’
commission of the alleged crimes were induced by McCaf-
frey’s violation of law they should acquit the defendants;
and made specifie objection to the Court’s refusal to so
instruct the jury (R. 452-455, 456, 461, 483-484).
The only logical inference to be drawn from the fact of
this unlawful disclosure by MeCaffrey was that McCaffrey
intended to induce Glassman to proceed with whatever plans
Glassman might have or might develop which McCaffrey
speculated were, or might become, unlawful and improper.
The information disclosed from confidential files was
essential to Glassman’s becoming involved in any future
28
proceedings, since the information enabled Glassman to
convince Gorin, the attorney for Bergman, that Glassman
had a direct pipeline into the files of the Enforcement Di-
vision. GQlassman’s otherwise unexplained possession of
the information would enable him to demonstrate to the
taxpayer or the attorney for the taxpayer that Glassman
had a friend in the Enforcement Division and that his sup-
posed friend had already proven a willingness to violate
the law to help Glassman.
The conclusion is inescapable that McCaffrey disclosed
the information from the Bergman file to Glassman for the
purpose of leading Glassman down the path to whatever
other unlawful conduct might reasonably be expected to
follow.
And, as intended, Glassman did pass along his newly
acquired confidential information to Gorin, who was duly
impressed with the fact that Classman had access to such
confidential information. Gorin in turn told Bergman that
Glassman must have a good friend in Enforcement, since
he otherwise could not have known what he knew.
This persuaded Bergman to engage the services of Glass-
man to look into the matter further, and eventually led to
McCaffrey’s demand for payment and Glassman’s agree-
ment thereto.
MeCaffrey’s intentional viola.ion of the law thus was a
key and an essential step in the chain of events leading to
the conspr.acy, and to payment of the purported bribe to
McCaffrey, for which the defendants here were tried. And
McCaffrey, by his own testimony, never intended to take
a bribe for himself but :ather intended to enforce the law.
This Court has firmly established the policy that govern-
ment agents shall not violate the law in order to enforce
the law.
It was aptly said by Mr. Justice Brandeis, dissenting in
Olmstead v. United States, 277 U.S. 438, 479 (1928) :
29
“The greatest dangers to liberty lurk in insidious en-
eroachment by men of zeal, well: meaning but w.thout
understanding.”
Further, at 485:
‘Decency, security and liberty alike demand thai
government officials shall be subjected to the same
rules of conduct that are commands to the citizen. In
a government of laws, existence of the government
will be imperilled if it fails to observe the law scrupu-
lously . . . Crime is contagious. If the Government
becomes a Jawbreaker, it breeds contempt for law; it
invites every man to become a law unto himself; it
invites anarchy. To declare that in the administration
of the criminal law the end justified the means—to
declare that the Government may commit crimes in
order to secure the conviction of a private criminal—
would bring terrible retribution. Against that per-
niciovs doctrine this Court should resolutely set its
face.’’*
In fact, evidence obtained by illegal practices is uni-
formly excluded from use at a subsequent trial.
In Spano v. New York, 360 U.S. 315 (1959), a state court
conviction based on a confession obtained by unfair methods
was reversed. The defendant had turned himself in to the
police, was represented by an attorney, and refused to
answer questions. Nevertheless the police persisted in
questioning him for a period of several hours and eventu-
ally obtained a confession by using one Bruno, a police
officer and a childhood friend of the defendant, to play upon
his sympathies by the use of false statements. Of such
practices this Court said at 320:
' $ _— in part with approval in Mapp v. Ohio, 367 U.S. 643, 659
1961).
30
‘‘The abhorrence of society to the use of involuntary
confessions does not turn alone on their inherent un-
trustworthiness. It also turns on the deep-rooted
feeling that the police must obey the law while enfore-
ing the law; that in the end life and liberty can be as
much endangered from illegal methods used to convict
those thought to be criminals as from the actual crimi-
nals themselves.’’
With reference to the conduct of Bruno, this Court also
noted, at 323:
‘‘Petitioner was apparently unaware of John Gay’s
famous couplet:
‘An open toe may prove a curse,
But a pretended friend is worse,’
and he yielded to his false friend’s entreaties.’’
In the present case McCaffrey, a pretended friend of
Glassman, indeed proved to be worse than a curse. He
deliberately violated the laws he was bound to uphold for
the purpose of causing his ‘‘cordial acquaintance’’ to em-
bark upon and carry out a plan resulting in a heavy fine,
a jail sentence, ignominy and disgrace.
While the courts do not enforce the common moral and
ethical obligations of friendship, the courts do and should
insist that no government agent should violate the law to
betray a friend—or a cordial acquaintance.
In Benanti v. United States, 355 U.S. 96 (1957) this Corrt
held that evidence obtained by state law enforcement offi-
cers by means of illegal wiretapping could not be used to
secure a federal conviction, stating at 102:
31
‘‘Although state agents committed the wiretap, we are
presented with a federal corviction brought about in
part by a violation of federal law, im this case in a
federal eourt.’’ ———
The quoted passage applies w*t’. equal effect to the present
case, except that McCaffrey w <a federal agent. Cf. Nar-
dene v. United States, 302 U.S. 379, 388 (1937) (evidence
obtained by illegal wiretapping by federal agents not ad-
missible in federal court).
In Rea v. United Staies, 350 U.S. 214 (1956) it was held
that a federal agent who had obtained evidence by means
of an invalid federal search warrant could be enjoined from
testifying in a state court on the basis of that evidence.
At 217:
‘‘The obligation of the federal agent is to obey the
Rules ... that are drawn for innocent and guilty
alike .... They are designed to protect the privacy
of the citizen, unless strict standards set for searches
and seizures are satisfied. That policy is defeated if
the federal agent ean flout them and use the fruits of
his unlawful act either in federal or state proceed-
ings.’’
To the same general effect, applying the rule of exclusion
to state courts as well, see Mapp v. Ohio, 367 U.S. 643
(1961).
In Walder v. United States, 347 U.S. 62, 64 (1954), an
unlawful search and seizure case, this Court said:
‘The Government cannot violate the Fourth Amend-
ment—in the only way in which the Government can
do anything, namely through ifs agents—and use the
fruits of such unlawful conduct to secure a conviction.
32
_.. Nor can the Government make indirect use of such
evidence for its case, ... or support a conviction on
evidence obtained through leads from the unlawfully
obtained evidence. ... All these methods are outlawed,
and convictions obtained by means of them are invali-
dated, because they encourage the kind of society that
is obnoxious to free men.”’
It is the policy of this Court that the trial court must ex-
clude all evidence obtained as a consequence of unlawful
official acts: the ‘‘frait of the poisonous tree’’. Costello v.
United States, 365 U.S. 265, 280 (1961).
In the present case it is undisputed that McCaffrey, for
purposes of enforcing the law in his own peculiar manner,
deliberately violated the federal criminal law in disclosing
information from the Bergman tax files to Glassman, and
that, as in the Benanti case noted above, this Court is pic-
sented with
‘a federal conviction brought about in part by a
violation of federal laws, in this case in a federal
court.’? 355 U.S. at 102.
c. In affirming the trial court ’s admission of evidence
procured by the government by secret electronic
transmission and recording and by seizure of a
document from a defendant at the time of his arrest
the Court of Appeals decided an umportant question
of federal constitutional law in a manner not m
conformity with the decisions of this Court.
Prior to trial, petitioners moved to suppress the paper
on which was purporte:iy written how much had been paid
by and was still due from Bergman (R. 29). That paper
had been seized from Glassman at the time of his arrest.
Y 33
Petitioners also moved to suppress various secret Minifon
recordings of conversations between one or more of the
petitioners and McCaffrey and the testimony of agents who
had overheard some of those conversations by means of
hidden radio transmitters or dynamic microphones (R. 29-
30). Some of those conversations took place at McCaffrey’s
office in the Regional offices of the Internal Revenue Service.
One occurred in his automobile. Still others occurred at
different places, including the law offices of Glassman and
Gorin, a hospital, Gorin’s golf club, and a restaurant. Au-
thority for such electronic surveillances had not been ob-
tained from any state court (R. 30-31).
After a hearing, both motions were denied.
At the trial the same objections were renewed and again
denied. Petitioners also objected unsuccessfully to the ad-
mission of the recordings for the further reason that they
were ‘‘ir many places inaudible as to be unintelligible and,
therefore, untrustworthy as evidence.’’ ®
(1) The Paper Seized from Glassman at the Time of
His Arrest.
Even if the search of Glassman’s person was reasonably
incidental to his arrest, the paper could not have been law-
fully seized because it was a private paper ‘‘of evidential
value only’’ and was not an article which could be validly
seized, either under the authority of a search warrant or
during the course of a search incident to arrest. It was
not one of the ‘‘instrumentalities and means by which a
crime is committed, the fruits of crime such as stolen
property, weapons by which escape of the person arrested
might be effected, and property the possession of which is
acrime.’’ Hoerris v. United States, 331 U.S. 145, 154, 67 S.
Ct. 1098, 1103 (1947).
6 Gorin v. United States, 313 F.2d 641 (C.A. 1, 1963).
34
The federa! courts have uniformly held that an indi-
vidual’s private papers wanteu <vlely for use as evidence
of crime cannot “lawfully be searched for and taken even
under a search warrant issued upon ample evidence and
precisely describing such things and disclosing exactly
where they were.’’ United Siates v. Lefkowitz, 285 U.S.
452, 464-465, 52 S. Ct. 420, 423 (1932), and cases ected. To
the same effect are Abel v. United States, 362 U.S. 217, 234-
235, 80 S. Ct. 683, 695 (1960) ; Harris v. United States, 331
U.S. 145, 154, 67 S. Ct. 1098, 1103 (1947) ; Beock v. United
States, 223 F.2d 681, 686 (C.A. 5, 1959); Takahashi v.
United States, 143 F.2d 118, 123-125 (C.A. 9, 1944). They
certainly cannot be seized in the course of a search claimed
to be incidental to a lawful arrest.
In Lefkowitz this Court said at pages 465-467 of 285 U.S.,
at pages 423-424 of 52 S. Ct:
‘The decisions of this court distinguish searches
of one’s house, office, papers or effects merely to get
evidence to convict him of crime from searches such
as those made to find stolen goods for return to the
owner, to take property that has been forfeited to the
governmert, to discover property concealed to avoid
payment of duties for which it is liable, and from
searches such as those made for the seizure of counter-
feit coins, burglars’ tools, gambling paraphernalia, and
illicit liquor in order to prevent the commission of
crime. Boyd v. United States, 116 U.S. 516, et seq., 6
S. Ct. 524, 29 L. Ed. 746; Weeks v. United States, 232
U.S. 383, 395, 34S. Ct. 341, 53 L. Ed. 652, L-R.A. 1915B,
834, Ann. Cas. 1915C, 1177; Gouled v. United States.
supra, 255 U.S. at 306, 41 S. Ct. 261, 65 L. Ed. 647;
Carroll v. United States, supra.”’
39
The paper in the instant case was no more an instru-
mentality of the crimes alleged in the indictment than were
the letters which, in Weeks v. United States, 232 U.S. 383,
397, 34 S. Ct. 341, 344 (1914), were held to have been taken
‘‘in direct violation of the constitutional rights of the de-
fendant;’* or the unexecuted form of contract and the bili
for legal services which, in Gouled v. United States, 200
U.S. 298, 310-311, 41 S. Ct. 261, 265 (1920) were held to
have been taken in violation of the Fourth and F.fth
Amendments, even though seized under a validly issued
search warrant; or the papers which, in United States v.
Lefkowitz, 285 U.S. 452, 464, 475, 52 S. Ct. 420, 423 (1932)
were held to have been exempt from seizure ‘‘even under
a search warrant issued upon ample evidence and precisely
describing such things «nd disclosing such things and dis-
closing exactly where they were;” or ‘‘the application for
a license’? and the ‘‘consignment’’ which, in Takahast v.
United States, 143 F.2d 118, 123-125 (C.A. 9, 1944), were
directed to be -uppressed; or the private papers which, in
Brock v. United Statcs, 223 F.2d 681, 686 (C.A. 5, 1959),
were held to be inadmissible under the Fifth Amendment.
Cases such as Marron v. United States, 275 U.S. 192, 48
S. Ct. 74 (1927); Harris v. United States, 331 U.S. 145, 67
S. Ct. 1098 (1947); Abel v. United States, 362 U.S. 217, 80
S. Ct. 683 (1960); and United States v. Clancy, 276 F.2d
617 (C.A.7, 1960) ; are clearly inapposite. In each of those
cases, the articies seized were used either to commit or
carry ona crime or, as in the Harris case, were property
the mere possession of which was a crime.
The papér in the case at bar, on the other hand, could
not have been found to have been an instrumentality or
means by which the crime was being committed at the time
of Glassman’s arrest. Its seizure could not possibiy be
justified on the ground that it would prevent further v1o-
lations of the law, for the paper, if anything, contained
36
admissions of a crime. Its production, in the face of a
claim of constitutional privilege, could not be compelled
by a subpoena duces tecum.- Boyd v. United States, 116
U.S. 616, 634-635, 6 S. Ct. 524, 534-535 (1886) ; Counselman
vy. Hitchcock, 142 U.S. 547, 580-582, 12 S. Ct. 195, 204-205
(1892) ; Wilson v. United States, 221 U.S. 361, 377, 31 S. Ct.
538, 543 (1911). Cf. Emery ’s case, 107 Mass. 172, 185 (1871).
If sy some strain of logic the paper here involved could
be treated as an instrumentality of crime, the Fourth
Amendment to the Federal Constitution would become the
means for subverting the Fifth Amendment, both of which
proscribe compulsory disclosure.
The opinion of the Court of Appeals states in substance
that Glassman ‘‘voluntarily’’ gave the paper to the arrest-
ing officer, and stresses the absence of threats, promises, or
intimidation.
This conclusion overlooks the realities of the situation
and reflects a divergence of opinion between the Court of
Appeals below and the other Courts of Appeals. Glassman
was under arrest (R. 82) and held in custody in the offices
of the United States Marshal. (R. 82) He declined the offi-
cer’s original request for ihe paper (R. 82) and produced
it only after the officer insisted that he wanted to see it
‘Canyway’’. (R. $3)
In these circumstances, compliance with a ‘‘request”’,
however politely phrased, obviously is compliance with an
order. Surely Glassman was not required to engage in phy-
sical combat with the arresting officers in order to avoid
a waiver of his constitutional rights. He tried to hold back -
the paper. The circumstances obviously were coercive even
if the officer’s words were ‘‘civil’’.
The proper and realistic approach to this issue is stated
in the often-cited case of Judd v. United States, 190 F.2d
649, 650-651 (C.A.D.C. 1951):
37
‘«(The individual) ... may give his consent to the
search and seizure. But such a waiver or consent must
be proved by clear and positive testimony, and it must
be established that there was no duress or coercion,
actual or implied. . . . Thus ‘invitations’ to enter one’s
house, extended to armed officers of the law who de-
mand entrance, are usually to be considered as invita-
tions secured by force... . A like view has been taken
where an officer displays his badge and declares that he
has come to make a search ..., even where the house-
holder replies ‘Al right.’ . . . A finding of consent in
such circumstances has been held to he ‘unfounded in
reason’....’’
“This burden on the government is particularly
heavy in cases where the individual is under arrest.
Non-resistance to the orders or suggestions of the
police is not infrequent in such a situation; true con-
sent, free of fear or pressure, is not so readily to be
found.’ (Case citations omitted.)
For more recent decisions speaking to the same effect,
see, e.g., Gatlin v. United States, 326 F.2d 666, 673 (C.A.
D.C’. 1963) ; Wion v. United States, 325 F.2d 420, 423 (C.A.
10 1963) ; Canida v. United States, 250 F.2d 822, 825 (C.A.5
1958).
The cited cases point out, in effect, that any compliance
with the ‘‘requests’’ of arresting officers must be deemed
involuntary in the absence of very strong proof that com-
pliance was the product of a free will operating with utter
indifference to the circumstances.
This Court has long recognized that a defendant does «ot
waive any rights by producing a document in submission
to authority. See Johnson v. United States, 333 U.S. 10, 13
(1948).
38
This Court should review the decisions of the courts be-
low in view of their obvious divergence from the decisions
of this Court and other Courts of Appeals on this important
question of federal constitutional law.
(2) The secret transmission and recording of private
conversations.
The petitioners contend that their right to privacy was
so invaded by the secret transmission and recording of
private communications that their convictions based upon
evidence procured therefrom should be set aside.
The constitutional issue presented by the circumstances
of the present case should be decided by this Court in view
of its recent decision and the var.ety of opinions in Lopez
vy. United States, 373 US. 427, 888. Ct. 1381 (1963). The
majority in the Lopez case sustained the particular use of
electronic devices there presented in the absence of any
‘violation of federal law or rules of procedure.’’ Lopez
vy. United States, supra at 440. In the present case some
of the petitioners’ conversations were secretly monitored
and recorded in violat:on of state law.
G. L. (Ter. Ed.) e. 272, ss. 99 and 100, as amended through
St. 1959, c. 449, make criminal mechanical or electronic
eavesdropping or wiretapping at any place (s. 99) as well
as the installation of such devices for that purpose (s. 100),
except when done in accor’ .ce with a court order (s. 99).
Cf. Commonwealth v. Publicover, 397 Mass. 303, 98 N.E. 2d
633 (1951). Section 101 makes the mere proof of the in-
stallation of such a device or the tapping of any wire prima
facie the commission of a crime ‘‘unless duly authorized
and done with the consent of the owner or person in control
of the building.’’ That section concludes hy providing that
nothing contained therein or in sections 99 or 100 ‘*shall
39. Cz
render it unlawful for any person to install and use such
a device on premises under his exclusive control.’’ Cf.
Commowvealth v. Dougherty, 348 Mass. 299, 303-305, 178
N.E. 2d 584, 586-588 (1961).
No court order was obtained in the ease at bar (R. 30-
31). While there may be a serious doubt as to whether
state law was violated when conversations in MecCaffrey’s
office or autemobile were electronically monitored or re-
corded (Commonwealth v. Dougherty, 343 Mas:.. 299, 303-
305. 178 N.E. 2d 584, 586-588 (1961) ), there can be no ques-
tion that state law was violated when other conversations
which took place away from the Internal Revenue offices
were overheard or recorded.
This Court’s recognition that federal courts cannot be
‘‘acecomplices in willful disobedience of law,”’ McNabb v.
United States, 318 U.S. 332, 345, 63 S. Ct. 608, 615 (1943) ;
Elkins v. United States, 364 U.S. 206, 223, 80 S. Ct. 1437,
1447 (1960), requ red the exclusion in a federal trial of
evidence obtained in violation of state law. <Any other re-
sult ean only lead to a ‘‘double standard’’, under which
state courts would be required, in the inter -st of ‘‘a healthy
federalism,’’ ‘‘to respect the... eriteria’’ established by
federal courts,’ but federal courts would be permitted ‘‘to
encourage disobedience’’ to state law. ‘*Denying shortcuts
to only one of two cooperating law eniurcement agencies
tends naturally to breed legitimate suspicion of ‘working
arrangements’ whose results are equally tainted,’? Mapp
v. Ohio. 367 U.S. 643, 657-658, 81 S. Ct. 1684, 1693 (1961).
7 By suppressing evidence obtained in violation of the federal consti-
tution, Mapp v. Ohio, supra, or in violation of federal law, Pugach v.
Dollinger, 277 F.2d 739 (C.A. 2, 1960), affirmed 365 US. 458,
81 S. Ct. 650 (1961).
40
2. in affirming the trial court’s refusal to dismiss the
indictment and to strike the panel of petit jurors o%
the ground that both the grand and petit jurors
were not selected in accordance with federat law the
Court of Appeals has decided a question of federa!
law which directly affects the administration of
justice in every federal district court and which has
not been, but should be, settled by this Court.
Prior to the commencement of the trial, all the Appellants
moved to strike the petit jury panel (R. 32-33) and to dis-
miss the Indictment \R. 31) on the ground that the jurors
:n each body had been improperly selected. The trial court
denied each motion (R. 31-33).
The evidence adduced at the first trial * and at pre-trial
hearing on the motions of the defendants established that
jurors are selected by the United States Jury Commis-
sioners for the District of Massachusetts from lists of
jurors supplied to the Commissioners by the cities and
towns within that part of the District designated by the
District Court as the source from which jurors are to be
drawn (1-R. 110-111). The evidence further established that
the lists from the City of Boston are selected by the City
of Boston Election Commissioners solely from the lists of
registered voters in that City (1-R. 114). This method of
selection is violative of federal law and of Section 1 of
Chapter 234 of the General Laws of Massachusetts.
The Civil Rights Act of 1957, 28 U.S.C.A. 1861, provides
as foilows:
‘‘Any citizen of the United States who has attained
the age of twenty-one years and who has resided for
8 The evidence taken on the selection of the jury panels at the first
trial was incorporated as part of the record in the second trial by stipu-
lation (R. 502-503). References to the record of the first trial are
designated “1-R.” ‘
4i
a period of one year within the judicial district, is
competent to serve as a grand or petit juror. . .”’
The standards against which jury selection methods are
to be tested were set forth by this Court in Thiel v. Southern
Pacific Co., 328 U.S. 217 (1946), at page 220:
‘“‘The American tradition of trial by jury, considered
in connection with either criminal or civil proceedings,
necessarily contemplates an impartial jury drawn from
a cross-section of the community. Smith v. Texas, 311
U.S. 128, 130; Glasser v. United States, 315 U.S. 60,
85. This does not mean, of course, that every jury
must contain representatives o7 all the economic, social,
religious, racial, political and geographical groups of
the comnunity; frequently such complete representa-
tion would be impossible. But it does mean that pro-
spective jurors shall be selected by court officials with-
out systematic and intentional exclusion of any of
these groups. . .”’
In United States v. Heath, 103 F. Supp. 1, D. Hawaii (1952),
at page 2, it was said:
‘If the jury list from whence came this Grand Jury
was not a legal cross-seztion of those in the com-
munity qualified to be considered for jury duty as
defined by Supreme Court decisions, then the list was
invalid ... A good Grand Jury could not possibly re-
sult from an invalid list. Ballard v. United States,
1946, 329 U.S. 187 at page 195.”’
Two cases have arisen in other districts wherein ob-
jections were made to panels of jurors on the basis that
the jurors were selected solely from lists of registered
42
voters or from among those qualified under state law for
service as state jurors.
United States v. Hoffa, 196 F. Supp. 25, S. D. Fla. (1961),
involved an indictment returned by a federal grand jury
selected from lists of qualified voters in the State of Florida
and, in some cases, from lists of persons qualified under
Florida law for jury ‘aty. On the basis of the Thiel and
Ballard cases the District Court dismissed the indictment
without a showing of prejudice saying, at page 29,
‘“From the date of this amendment (to the federal
jury selection laws by the enactment of sec. 1861), and
at the time of the selection of the names added to the
jury box for the drawing of the grand jury on June
11, 1959, the limitations upon jury selection under the
Florida State laws, including a requirement that a
prospective juror must be a registered voter, were no
longer to be considered in selecting jurors in Federal
Courts. Indeed, this very requirement of registration
to vote, existing in many states, was one of the prime
reasons for the change in the Federal Statute by
Congress.”’
In United States v. Greenberg, 200 F. Supp. 382, S.P.
N.Y. (1961), the defendant challenged the array from which
the grand jury which had indicted him was drawn. The
challenge was based upon evidence that the jury commis-
sioners selected potential jurors from the lists of registered
voters within the judicial district. The Court considered
the evidence and denied the challenge on the ground that
the method of selection was within the statute and resultcd
in a fair cross-section.
It is clear that 28 U.S.C. 1861 was violated in the instant
ease. Moreover, if ihe Court in Hoffa is correct in its
statement that one of the prime reasons for the change in
the federal statute by Congress was the elimination of the
43
voter test existing in many states, then the method of se-
lection used in the present case can only result in a jury
which the Congress of the United States has declared to
fall short of the ‘‘fair cross-section’ test. This is com-
pounded by the fact that a violation of state law, not present
in the Greenberg case, underlies the list submitted to the
Federal Jury Commissioners by the Boston Election Com-
missioners.
Assuming that the discrimination which occurred in this
ease (and which is still occuring in the District of Massa-
chusetis) did not amount to a violation of the petitioners’
constitutional ~ights, there remains the important federal
question as to whether the Civil Rights Act of 1957 is to be
given force as an extension of the constitutional require-
ments surrounding the selection of federal juries or is
merely to be considered an idle direction of the Congress,
to bc disregarded so long as the requirements of the Con-
stitution are met.
It cannot be gainsaid that the metaod of selection of
jurors is of prime importance in the administration of
criminal justice. It would seem to follow that the interpre-
tatic.: of a federal statute on the subjest should he of equal
importance to this Court.
3. In affirming the trial court’s denial of the peti-
tioners’ motions for severance the Court of A ppeals
decided an important question of federal law which
has not been, but should be, settled by this Court.
The trtal court denied the petitioners’ several motions
for severance made before and during the trial (R. 16-19,
26-28). Such motions were grounded upon the evidentiary
problems caused by the fact that evidence of entrapment
had to come from co-defendants, the dificulty of limiting
evidence in the minds of the jury aad the harmful effect to
“4.
44
a co-defendant’s case in the eyes of the jury should a co-
defendant be called to the stand and forced to c'sim his
privilege not to testify against himself. ‘
This Court did not reach these issues in Paoli v. United
States, 352 U.S. 232 since in that case, unlike the present
one; ‘“A separate trial never was requested in behalf of any
defendant.’’ 352 U.S. at 241.
Rule 14 of the Federal Rules of Criminal Procedure pro-
vides for severance where ‘‘a defendant . . . is prejudiced
... by such joinder for trial. . .”’
When events occur thet meke continued joinder im-
proper or inappropriate (impossibility of proof of a defense
or prejudice resulting from trial proceedings here) the
trial court has a duty to preserve the rights of the de-
fendant to a fair trial by acting to sever.
4. In affirming the trial court’s instructions that the
burden ox proving that the crimes charged were
induced by government agents was on the peti-
tioners and in ‘affirming the trial court’s denial of
the petitioners’ motions for acquittal, the Court of
Appeals decided un important federal questions m
a manner not ir conformity with the opinions of
other Courts of Appeals and which has not been,
bui should Le, settled by this Court.
The trial ecurt charged the jury in substance that as to
the defense of entrapment the defendants had the burden
of proving by a preponderance of the evidence that they
were induced to perform the alleged crime by action of
government agents. This was in accord with the decision
of the Court of Appeals for the First Cireuit in Gorin v.
United States, 313 F. 2nd 641 (C.A. 1, 1963), cert. den. 374
U.S. 829, 83 S. Ct. 1870 (1963). The defendants objected
45
to the charge and affirmatively requested that the Court
charge the jury that the Government had to prove the lack
of such inducement beyond a reasonable doubt and duly
objected to the refusal so to charge the jury (R. 445, 401,
456, 461, 474, 482, 492). |
The crucial facts established at the trial with respect to
entrapment may be summarized as follows:
(a) Re: Glassman
The entrapment of Glassman lies primarily in the fact
that it was McCaffrey who first suggested the payment of
money to himself (R. 192-193) and, therefore, induced the
commission of the crime. This suggestion, made on June
20, when listening devices were first installed, should be
viewed against the background 0° prior events, namely :
(1) McCaffrey’s encouragement of Glassman to
enter the practice of tax law (R. 132-133).
(2) McCaffrey’s wistful comment about the diffi-
culty of saving money (R. 138).
(3) McCaffrey’s response to the brief telephone
conversation of May 31 in having Markham make a
record, us if MeCaffrey knew precisely where the road
would lead (R. 144), coupled with the sending of a
letter on the same day to Gorin (Ex. C; R. 140-141, 369,
407).
(4) McCaffrey’s willingness, on June 1, to confer
with Glassman and to disclose information of a highly
confidential nature to him (R. 143, 150-152, 334-339).
(5) MeCaffrey’s transfer of the case to himself for
‘‘hetter control of it’? (R. 190).
(6) Generally, McCaffrcy’s constant availability to
Glassinan.
46
The solicitation of June 20 by McCaffrey should be
viewed in the light of subsequent events as well; as, for
example, MeCaffrey’s insistence on haste, thereby effee-
tively depriving Glassman of the opportunity for further
consideration and possible withdrawal (R. 199, 340).
Since admittedly the suggestion (or inducement) to pay
money to McCaffrey first came from agents acting on be-
half of the Government, a judgment of acquittal should
have been entered unless the Government proved beyond
a reasonable doubt the predisposition of the defendants to
commit the alleged crime. No such evidence was introduced
that would warrant a finding of predisposition on the part
of the defendant Glassman. There is no evidence of any
pre-existing course of conduct of bribing government of-
ficials and (although such evidence was erroneously ex-
cluded; see, infra) he had no previous criminal record.
There was no ‘“‘established pattern of criminality.’’ Whit-
ing v. United States, 296 F.2d 512, 516 (C.A. 1, 1961).
Glassman’s conduct from May 31 until June 20, when
Me(affrey solicited the bribe, was at most ambignous and
was as consistent with a lawyer seeking assistance in what
to him admittedly was a strange, new field of the law from
one who had recommended that he become interested in it
(R. 132-133), as it was with ar attempted bribe; an act
that would be totally inconsisten. with any previous conduct
on his part. If the evidence had ceased just prior to Mc-
Caffrey’s solicitation, it is clear that an acquittal would
have been required. Certainly to this point the evidence
would not constitute proof beyond a reasonable doubt of a
disposition to commit the alleged crime, not to mention 4
predisposition to bribe government agents. Thus any con-
duct that would otherwise be criminal on the part of Glass-
man resulted directly from McCaffrey 's explicit solicitation
and constituted entrapment as a matter of law.
47
(b) Re: Gorin
The entrapment of Gorin began as early as June 1, when
McCaffrey, knowing that Gorin was the attorney of record
in the Bergman case, nevertheless disclosed highly confi-
dential information in the case to Glassman for use by
Glassman in the solicitation and eventual entrapment of
Gorin and Bergman (R. 334-335, 338).
The use of Glassman as the instrumentality of Gorin’s
entrapment resumed on June 21 when McCaffrey inquired
whether ‘‘anyone else’’ might ‘‘want to review the CAM”’
(R. 344-345). This was the first of a series of subtle sug-
gestions cesigned for transmission to Gorin and calculated
to lure him into the illicit venture. The pattern continued
as follows:
(1) McCaffrey’s suggestion to Glassman that Gorin
be shown a copy of the CAM (R. 346-347).
(2) MeCaffrey’s suggestion to Glassman that Gorin
write a back-dated letter in support of the CAM (R.
205, 346).
(3) MeCaffrey’s telephone conversation of July 7
with Glassman (R. 213, 354) and their conference and
telephone conversation of July 10 (R. 355-359), which
were intended to induce Gorin to obtain Grillo’s co-
operation in insuring the success of the venture; and
this, in spite of Glassman’s statement of July 10 that
he would not be ‘‘unhappy’’ if the CAM failed (R.
358.359).
(4) The manner in which the Hurney letter was
used as a pretense (R. 369-372) for the direct contact
of Gorin and the direct solicitation of h's assistance
in the venture, particularly McCaffrey’s message to
Gorin through Glassman:
ee ————
48
‘‘And Gorin, I hope, will say, ‘Look, Mac, [ll
take care of it.’ ’’ (BR. 367).
Then, on July 20, the entrapment was completed by Me-
Caffrey’s direct call to Gorin. Having been gradually
conditioned by McCaffrey over the period of the prior fifty
days, Gorin accepted the situation, complied with McCaf-
frey’s request for assistance, and was soon enmeshed in
the illicit venture.
Prior to July 20, McCeffrey had no conversations with
Gorin concerning the Bergman case except the one in which
their conference was postponed to July 6. There was, prior
to that date, no reason to believe that Gorin was privy to
the bribery. Moreover, there was no evidence adduced
during the trial which would prove that Gorin was pre-
disposed to commit the erime of bribery, with the possible
exception of statements made by Gorin on and after July
20. However, such statements were made long after the
initial entrapment and were themselves the product of the
entrapment.
(ec) Re: Grillo
The first clear attempt to use Glassman as the instru-
mentality of Grillo’s entrapment occurred on July 10 when
McCaffrey stated to Glassman that it was ‘‘time’’ for
Grillo ‘‘to act’? (R. 355). This was followed by two direct
calls to Grillo, on July 13 and July 19, respectively, which
failed to produce any results.
The solicitation of Grillo through indirect means resumed
on August 19, when McCaffrey told Gorin that the protest
to the CAM was formidable and that it might be necessary
to get together with Grillo (R. 385). Having been entrapped
himself, Gorin was now being used as the instrumentality
eee ——
49
of Grillo’s entrapment. The pattern of solicitation con-
tinued as follows:
(1) The repeated complaints and exhortations of
August 14 concerning Grillo’s inactivity and the need
for assistance from him (R. 269-278).
(2) The direct call from McCaffrey to Grillo of
August 15 (R. 287-289), resulting in the conference
which McUaffrey testified he tried in every way to
bring about (R. 387).
(3) The direct solicitation of Grillo by McCaffrey
on August 15 to ‘‘straighten this case out’’ (R. 308)
As in the case of Glassman and Gorin, no evidence was
introduced to show either a reasonable cause to believe that
Grillo was corrupt or predisposed to bribery.
(d) Generally
The timing of the installations of the listening devices in
McCaffrey’s office on June 20, July 12, and July 18, and
in Grillo’s office on July 11 and 12, was not merely acci-
dental. Each installation was immediately followed either
by a telephone call from McCaffrey to one of the patitioners
“or by a conference in McCaffrey’s office with one of the
petitioners. The conclusion is inescapable that the Govern-
ment deliberately set about to lure the petitioners into
MecCaffrey’s office for the purpose of creating evidence for
a criminal prosecution.
This Cotrt has not considered the issues here presented
on the law of entrapment since 1958, when it decided
Sherman v. United States, 356 U.S. 369, and Masciale v.
United States, 356 U.S. 386. Each of those cases presented
the conventional entrapment situation of a direct solici-
tation of crime by a government agent. Such a situation
30
is also presented here by the circumstances of the peti-
tioner Glassman’s entrapment. And even if it is assumed
that Glassman was not entrapped, the case presents the
novel questions as to how far the Government may g0
and what methods it may lawfully use in the encourage-
ment of a person like Glassman, who is suspected of having
an intent to commit bribery, where it is known that such
person will endeavor to enlist the assistance of other
innocent persons, like Gorin. |
The petitioners contend that while the governme .t need
not disprove entrapment unless the issue is raised by th:
evidence, nevertheless the burden is upon the government
to disprove inducement if that issue is made apparent by
the evidence (as it clearly was in this case). If entrapment
is shown, the defendant is not guilty of a crime. Entrap-
ment is not in the nature of a plea in bar relied upon
despite guilt. Sorrelis v. l ‘nited States, 287 U.S. 435, 452
(1932). j rere
The burden of proving guilt beyond a reasonable doubt
never shifts, but remains upon the government throughout
the trial. Lurding v. United States, 179 F.2d 419, 422 (C.A.
6, 1950). Blocker v. T nited States, 288 F.2d 853, 856 (C.A.
D.C. 1961) (insanity) ; Davis v. United States, 160 U.S. 469,
487 (1895) (insanity); ('nited States v. Barrasse, 267 F.2d
908, 910 (C.A. 3, 1959) (alibi). In each of these cases a
conviction was reversed because the court ’s instructions
to the jury indicated that the burden might be on the
defendant to prove some element of defense.
The other Courts of Appeal have been unanimous in
ruling that the harden is upon the government to disprove
inducement, or, if inducement is shown, to prove sufficient
excuse for inducement. Marks v. United States, 260 F.2d
277. 381 (C.A. 10, 1958), cert. denied 358 U.S. 929; Marbs v.
Inited States, 250 F.2d 514, 516 (C.A. 8, 1957), cert. denied
356 U.S. 919; United States v. Masciale, 236 F.2d 601, 603
51
(C.A. 2, 1956), afirmed 356 U.S. 386; Lunsford v. United
States, 200 F.2d 237, 239 (C.A. 10, 1952) ; Carlton v. United
States, 198 F.2d 795, 798 (C.A. 9, 1952) ; Gargano v. United
States, 24 F.2d 625, 626 (C.A. 5, 1928).
If the issue is raised, the government must prove beyond
reasonable doubt that there was no entrapment. Ryles v.
United States, 183 F.2d 944, 945 (C.A. 10, 1950), cert. dented
340 U.S. 877.
The trial court and Court of Appeals below appear to
nave relied upon a portion of the Second Cireuit’s opinion
in United States v. Sherman, 200 F.2d 880, 882-883 (C.A. 2,
1952), in which was stated:
“Therefore in such cases two questions of fact arise :
(1) did the ageni induce the accused to commit the
offence charged in the indictment; (2) if so, was the
accused ready and willing without persuasion and was
he awaiting any propitious opportunity to commit the
offence. On the first question the accused has the
burden; on the second the prosecution has it.’’
(The same statement is quoted in Kivette v. United
States, 230 F.2d 749, 754 (CA. 5, 1956), cert. demed 395
U.S. 935).
Ilowever, as explained in United Staves v. Silva, 180
F. Supp. 557, 558 (.o.D.N.Y. 1999), the reference to ‘‘the
burden’? with respect to inducement, in the quoted passage,
meas the burden of going forward with the evidence ; and
the burden of proof beyond reasonable doubt as to induce-
ment (or, more precisely, lack of inducement ) remains upon
the government.
Under our system of jurisprudence, no man may he con-
victed unless proven guilty beyond reasonable doubt. This
ruje is so firmly established as to require no citation of
authorities. The rule set forth in the Silra case, placing
352
the burden of going forward with the evidence upon the
defendant, but leaving the burden of proof as to absence
of inducement upon the government, is sound and proper.
The ccurts below clearly erred (although the error may
be understandable in light of the ambiguous language
quoted above), in misplacing the burden of proof as to
inducement, and, since the petitioners’ defense was that of
entrapment, the error clearly was prejudicial to them and
required that their convictions be reversed. There can be
no doubt that the elements of entrapment recognized by
this Court and the Courts of Appeals were presented by
the evidence at the trial. e.g. Sherman v. U nited States, 356
U.S. 369 (1958); United States v- Sizer, 292 F.2d 596, 599
(C.A. 4, 1961) ; Malatofsks v. United States, 179 F.2d 905,
918 (C.A. 1, 1950) ; Lunsford v. Umted States, 200 F.2d 237,
_ 0 (C.A. 10, 1952) ; United States v. Klosterman, 248 F.2d
191, 196 (C.A. 3, 1957).
The comprehensive question presented here is whether
the law of entrapment can be developed to meet highly
sophisticated methods of inducement to crime, which avoid
the clumsy, direct solicitations heretofore condemned by
this Court.
Moreover, in the present case the evidence showed entrap-
ment as a matter of law. This Court and the vast majority
of the Courts of Appeals have consistently heid that a
defendant may not be convicted of a crime which was
induced by government agents unless such defendant was
engaged in an established pattein of continuing eriminal
conduct prior to the inducement. ¢.g. Sorrelis v. United
States, 287 U.S. 435 (1932) ; Sherman v. United States, 356
U.S. 369 (1958); Masciali v. United States, 306 U.S. 386
(1958); United States v. Klosterman, 248 F.2d 191 (C.A.
3, 1957) ; United States v. Sizer, 292 F.2d 596 (C.A. 4, 1961) ;
Henderson v. United States, 237 F.2d 169 (C.A. 9, 1956) ;
Ryles v. United States, 183 F.2d 944 (C.A. 10, 1950), cert.
53
denied 340 U.S. 877. The Court of Appeals for the First
Circuit has also applied this rule in other recent cases.
e.g., Whiting v. United States, 296 F.2d 512 (C.A. 1, 1961).
In United States v. Klosterman, supra, the test of entrap-
ment directly applicable to the present case was set forth:
‘‘We do not think that the degree of persuasion is
significant where the first approach is made by the
agent of the law to an apparently innocent man.’’ 248
F.2d at 196.
The application of the above rules to the undisputed facts
of the present case leads to the inescapable conclusion that
entrapment of the petitioners was shown as a matter of
law. The undisputed facts established by the testimony of
government witnesses were as follows:
1. McCaffrey was a government agent, charged with
responsibility in connection with criminal matters or
possible criminal matters. (R. 90).
2. McCaffrey at all times was acting in the interests
of the government, and never intended to accept a
bribe which would influence his decision on the Berg-
man tax evasion case. (R. 195, 399)
3. The first suggestion of any payment to McCafirey
was made by McCaffrey himself (K. 192-193)
4. MecCaffrey’s suggestion of the bribe was made hy
him under instructions from government officials (R.
172-180).
Therefore, under the genera] entrapment doctrine, the
petitioners were entitled to judgments of acquittal unless
there was evidence sufficient to establish beyond reasonable
doubt that they were already engaged in a continuing course
of criminal conduct. There was no sich evidence. The
~~. Se ees Sree ee —— = =~ Ts -- *
34
record is barren of any indication that any of the peti-
tioners had ever attempted to bribe anybody with respect
to anything prior to MeCaffrey’s request for payment i"
connection with the Bergman tax case.
While it was error to deny the petitioners’ motions for
judgments of acquittal in the absence of any evidence of
‘*predisposition’’, such error was compounded by excluding
evidence of the lack of any prior criminal record on the
part of Glassman. The petitioners duly objected to the
exclusion of such evidence (R. 65).
Surely if a pre-existing purpose to engage in criminal
concaect might be shown by a record of prior convictions,
Whiting v. United States, supra, at 516, the absence thereof
is admissible to show lack of such predisposition.
>. In affirming the trial court’s instructions of the jury
with respect to predisposition in the absence of any
evidence of predisposition the Court of Appeals
decided an important question of federal law in a
manner not in conformity with the decisions of this
Court.
The trial court instructed the jury that if the defendants
proved inducement but the Government proved beyond a
reasonable doubt that the defendants were predisposed to
commit the alleged crimes, they should find no entrapment.
The defendant objected to the giving of such instructior
(R. 445-447, 448, 456, 461, 471). The petitioners urge cla
it was error to charge the jury with respect to their pre-
disposition where there was no evidence of such predispo-
sition. There was no evidence of any ‘‘continuing course
of criminal activity.’’ Whiting v. United States, 296 F.2d
a12 (C.A. 1, 1961).
Since the jury was entitled to believe that the Court's
instruetion related to some portion of the testimony, they
ay)
could only conclude that it related to the conduct of the
defer dants in the commission of the alleged crime as
charged in the indictment and that they could consider such
evidence as the ‘‘predisposition’’ the Court referred to in
its charge. Since predisposition to commit crime furnishes
only an excuse tu federal officers to induce a person to
commit an offense, evidence of the commission itself can
hardly be the foundation for such an excuse. As Justice
Roberts said in Sorrells v. United States, supra, at 459:
‘‘The accepted procedure, in effect, pivots conviction
in such cases, not on the commission of the crime
charged, but on the prior reputation or some former
act or acts of the defendant not mentioned in the
indictment.”’
To charge the jury in effect that they could consider
evidence of the commission of the alleged offense as evi-
dence of predisposition was clearly contrary to the opinions
of this Court.
6. In affirming the trial court’s refusal to strike overt
acts committed by the petitioners as a result of
entrapment activities of a government agent the
Court of Appeals decided a question of federal law
in a manner not in conformity with the decisions of
other Courts of Appeals.
A motion of the appellants to strike the overt acts alleged
in the conspiracy counts of the indictment was denied by
the lower court (R. 405-406, 408-409).
Overt Act No. 2 charged that Glassman made a photostat
of the CAM (R. 11, 14). McCaffrey admitted that he told
Glassman to make the photostat (R. 350-391).
PIE teres On ote
gprtean S
56
Overt Act No. 3 charged that Glassman delivered a back-
dated letter from Gorin to McCaffrey (R. 11,14). McCaffrey
admitted that he told Glassman to have Gorin write the
letter (R. 346-347).
Overt Act No. 9 charged that Gorin, Bergman, and Grillo
diseussed the Bergman case with McCaffrey (R. 12, 15).
McCaffrey admitted that he did everything he could to
bring this conference about (R. 387).
Overt Act No. 10 charged that Bergman requested, and
Gorin cbtained, a copy of the Special Agent’s Report in
the Bergman case (R. 12, 15-16). McCaffrey admitted that
he offered the report to Bergman and that the =:ct as
charged is incorrect (R. 390-391).
Assuming, for the sake of argument only, that the law
of entrapment did not provide a complete defense to the
Indictment, the government may not entrap the petitioners
into the commission of overt acts which are later alleged as
an essential element of the crime. Henderson v. United
States, 237 F.2d 169 (C.A. 5, 1956).
An overt act is an essential element and allegation in
the erime of conspiracy. 18 U.S.C. 371. The jury must
unanimously find the commission of at least one properly
alleged overt act. It is impossible te wetermine from the
general verdict which overt act may nave been the basis of
unanimous agreement among the jurors.
The conviction, therefore, cannot stand if any one of the
overt acts was corrupted by entrapment.
7. In affirming the trial court’s exclusion of evidence
of bias on cross-examination of the government ’s
principal witness the Court of Appeals ignored a
fundamental rule of evidence.
The government’s chief witness, McCaffrey, was asked
on cross-examination whether he was anxious for the gov-
oT
ernment to prevail. The question was excluded without a
prior objection by the government (R. 400-401).
That there can be no valid objection to such a question
is beyond doubt. See 3 Wigmore, Evidence §940 (3rd ed.
1940).
Where, in addition, the question is put to the govern-
ment’s chief witness and is excluded without prior objection
from the government, the error is prejudicia!. Meeks v.
United States, 163 F.2d 598 (C.A. 9, 1947).
Conclusion
For the foregoing reasons it is respectfully submitted
that this petition for a writ of certiorari should be granted.
The decision of the Court of Appeals presents serious and
important questions of federal law, the resolution of which
is vital to the administration of federal criminal justice.
Respectfully submitted,
Joun F. Coean, JR.
60 State Street
Boston, Massachusetts 02109
Attorney for Petitioners
James D. Sr. Cia
60 State Street
Boston, Massachusetts 02109
Of Counsel
Francis J. DiMento
100 State Street
Boston, Massachusetts 02109
Of Counsel
ee ee
la
Appendix A
United States Court of Appeals
For the First Circuit
No. 6256.
HENRY GRILLO,
DEFENDANT, APPELLANT,
v.
UNITED STATES OF AMERICA,
APPELLEE ;
No. 6262.
SAUL GLASSMAN,
DEF*°NDANT, APPELLANT,
Vv.
SAME;
No. 6264.
PAUL A. GORIN,
DEFENDANT, APPELLANT,
v.
SAME.
ad
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAfSACHUSETTS.
Before Woopsury, Chief Judge, and HartTicaN
and Axpaicu, Circuit Judges.
Manuel Katz, with whom Paul T. Smith was on brief, for Henry
Grillo, appellant.
James D. 8t. Clair, with whom Hale and_Dorr was on brief, for
Sau! Glassman, appellant.
BIE Fy
or
PRG aR at tae titer +
~~ 2, te. Eee rer ee eT
2a
Francis J. DiMento, with whom DiMento and Sullivan was on brief,
for Paul A. Gorin, appellant.
John J. Curtin, Jr., Assistant U. S. Attorney, with whom W. Arthur
Garrity, Jr., United States Attorney, and William F. Leoney, Jr..
Assistant U. S. Attorney, were on brief, for appellee.
OPINION OF THE COURT.
September 17, 1964.
Woopsury, Chief Judge. This court on a previous appeal!
considered and rejected a number of contentions advanced
by these appellatts. We remanded, however, for a new
trial for what we considered to be an error in the charge
with respect to the burden of proof on the issue of entrap-
ment. Gorin v. United States, 313 F.2d 641 (C.A. 1, 1963}.
At the second trial the court charged in accordance with
our opinion but the appellants fared no better and they
have again appealed.
We reaffirm our previous holdings. Only a few matters
require consideration on this appeal.
In our opinion on the previous appeal we set out tke
charges laid against these Aefendants-appellants and the
facts adduced at the first trial in some detail. Repetition
here wovld serve no useful purpose. It will suffice to say
that entrapment was a principai if not the major isste at
both trials. On the previous appeal the appellants con-
tended that the evidence established entrapment as a matter
of law whereas the government contended that the evidence
fuiled even to raise the issue. We rejected both contentions
aud agreed with the district court that the evidence as to
entrapment raised an issue for the jary. The same .con-
tentions are presented on this appeal and again we reject
them. ‘The principal difference between the evidence at the
two trials is that the defendant Glassman elected to testify
at the first trial but did not take the stand at the second.
This weakened the evidence of entrapment. Perhaps it
weakened that evidence to the point of supporting the
.
i Rsk AaLiia sh REG IS lak HOS
}
3a
government’s contention. But we can give the appellants
the benefit of the doubt, as the district court did by sub-
mitting the issue te the jury a second time.
Another contention now advanced is that the court below
erred in not striking and withdrawing from the consider-
ation of the jury certain alleged overt acts on the ground
that the evidence established that the alleged conspirators
who perpetrated the acts had been entrapped into commit-
ting them. We reject the contention. The most that can
be said of the evidence is that the government agents left
the door unlocked for the perpetrators of the acts to hift
the latch and walk in. That is not entrapment.
Another contention is that the court below erred in ad-
mitting in evidence a verbatim copy of notations on a piece
of yellow paper found in Glassman’s possession when he
was arrested.
Glassman was taken into custody on a warrant of arrest,
the validity of which is not challenged, by an inspector of
the Internal Revenue Inspection Service of the United
States Treasury Department and a Deputy United States
Marshal. The arresting officers took Glassman to the
United States Marshal’s office in Boston and asked him
to put his personal effects on a desk. Glassman complied.
he inspector then asked Glassman to empty the contents
of his wallet. Glassman did so in part but the inspector,
noticing that some papers were still in Glassman’s wallet,
asked to see them all. Glassman said that the papers re-
maining in his wallet were personal and unimportant, but
the inspector said he wou « like to see them anyway. There-
upon Glassman produ. a sheet of yellow paper with
figures and notations on it showing the division of Berg-
man’s fee between the alleged conspirators and the dates
and amounts»of the payments made by Glassman to Me-
Caffrey as stated in our previous opinion. The inspector
MII Oe ee ee ee
g
4a
copied the yellow paper verbatim and the copy was admitted
in evidence over the appellants’ objections.
The appellants do not contend that the search of Glass-
man’s person upon his arrest was illegal. Nor can they.
‘‘Where one had been placed in the custody of the law by
valid action of officers, it was not unreasonable to search
him.”’ United States v. Rabinowitz, 339 U.S. 56, 60 (1950),
citing Weeks v. United States, 232 US. 383, 392 (1914).
Their contention is that the yellow paper was a private
document wanted only as an item of evidence to aid in
obtaining a conviction and as such could not be lawfully
seized under the rule of nited States v. Lefkowitz, 285
U.S. 452 (1932), and similar cases. We do not agree. It
seems to us that 2he memorandum was as admissible in
evidence as the books of account and utility bills held
properly admitted in Marron v. United States, 275 US.
192 (1927), or the false documents held admissible in Abel
v. United States, 362 U.S. 217 (1960). But however that
may be, there was no rummaging about for the paper as in
Lefkowite. The agent saw papers remaining in Glassman’s
wallet and Glassman handed the yellow paper over volun-
tarily by acceding without objection to the officer’s civil
request to look at it. There is no evidence that the arrest-
ing officers used any threats or held out any promises of
reward to obtain the paper or to copy it. Nor can it be
assumed that Glassman handed over the paper in ignorance
of his rights, or that he was intimidated by the mere re-
quest of the offices. Glassman was @ member of the Massa-
chusetts Bar and a colonel in the United States Marine
Corps Reserve. If he had any right to refuse inspection
of the yellow paper, he waived it by voluntarily giving the
paper to the officer.
The appellants’ objections to the admissiou aud ex-
clusion of evidence present no questicns of substance what-
ever. The rulings made were either clearly correct as a
——————————————— rer, stst~—
Avid Rae BURNER be
vf
rs
e
:
5a
matter of law or well within the discretion of the district
judge. Discussicn of the rulings in detail would serve no
useful purpose.
Judgment will be entered affirming the judgments of the
District Court.
: Appendix B
Unrrep Srates Court oF APPEALS
FOR TH® FIRST CIRCUIT
No. 6262.
HENRY GRILLO,
DEFENDANT, APPELLANT,
v.
UNITED STATES OF AMERICA,
APPELLEE.
JUDGMENT
September 17, 1964
This cause came on to be heard on appeal from the United
States District Court for the District of Massachusetts,
and was argued by counsel.
Upon consideration whereof, It is now here ordered, ad-
judged and decreed as follows: The judgmen* of the Dis-
trict Court is affirmed.
By the Court:
(s) Roosr A. STINCHFIELD,
Clerk.
[ec: Messrs. St. Clair and Curtin. ]
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Unrtrep Srates Court or APPEALS
FOR THE FIRST CIRCUIT
No. 6262.
SAUL GLASSMAN,
DEFENDANT, APPZLLANT,
v.
UNITED STATES OF AMERICA,
APPELLEE,
JUDGMENT
September 17, 1964
This cause came on to be heard on appeal from the United
States District Court for the District of Massachusetts,
and was argued by counsel.
Upon consideration whereof, It is now here ordered, ad-
judged and decreed as follows: The jndgment of the Dis-
trict Court is affirmed.
By the Court:
(s) Roger A. STINCHFIELD,
Clerk.
[ee: Messrs. St. Clair and Curtin.].
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Unrrep Srsres Court OF APPEALS
FOR THE FIRST CIRCUIT
No. 6262.
PAUL A. GORIN,
DEFENDANT, APPELLANT,
v.
UNITED STATES OF AMERICA,
APPELLEE.
JUDGMENT
September 17, 1964
This cause came on to be heard on appeal from the United
States District Court for the District of Massachusetts,
and was argued by counsel.
Upon consideration whereof, It is now here ordered, ad-
judge * and deereed as follows: The judgment of the Dis-
trict Court is affirmed.
By the Court:
(s) Roser A. STINCHFIELD,
Clerk.
fee: Messrs. St. Clair and Curtin.] oa
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Appendix C
18 US.C.:
“$201. Offer to officer or other person
‘¢Whoever promises, offers, or gives any money or
tiung of value, or makes or tenders any check, order,
contract, undertaking, obligation, gratuity, or se-
curity for the payment of money or for the delivery
or conveyance of anything of value, to any officer or
employee or person acting for or on behalf of the
United States, or any department or agency thereof,
in any official function, under or by authority of any
such department or agency or to any officer or person
acting for or on behalf of either House of Congress,
or of any committee of either House, or both Houses
thereof, with intent to influence his decision or action
on any question, matter, cause, or proceeding which
may at any time be pending, or which may by law be
brought before him in his official capacity, or in his
place of trust or profit, or with intent to influence him
to commit or aid in committing, or to collude in, or
allow, any fraud, or make opportunity for the commis-
sion of any fraud, on the United States, or to induce
him to do or omit to do any act in violation of his
lawful duty, shall be..... sty
18 U.S.C.:
‘6371. Conspiracy to commit offense or to defraud
United States
‘If two or more persons conspire either to commit
any offense against the United States, or to defraud
the United States, or any agency thereof in any manner
or for any purpose, and one or more of such persons
do any act to effect the object of the conspiracy, each
shall be .. .”’
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18 U.S.C.:
‘*41905. Disclosure of confidential information gener-
ally
Whoever, being an officer or employee of the United
States or of any department or agency thereof, pub-
lishes, divulges, discloses, or makes known in any
manner or to any extent not authorized by law any
information coming to him in the course of his employ-
ment or official duties or by reason of any examination
or investigation made by, or r-turn, report or recc rd
made to or filed with, such department or agency or
officer or employee thereof, which information concerns
or relates to the trade secrets, processes, operations,
style of work, or apparatus, or to the identity, confi-
dential statistical data, amount or source of any in-
come, profits, losses, or expenditures of any person,
firm partnership, corporation, or association; or per-
mits aixy income return or copy thereof or any book
containing any abstract or particulars thereof i be
seen or examined by any perser except as provided by
law; shall be .. .”’
26 US.C.: °
‘$7213. Unauthorized disclosure of iaformation
(a) Income returns.—
(1) Federal employees and other persons.—It
shall be unlawfal for any officer or employee of the
United States to diviuge or to make known in any
manner whatever not provided by law to any person
the amount or source of income, profits, losses, expen-
ditures, or any particular thereof, set forth or disclosed
in any income return, or to permit any income return
or copy thereof or any book containing any abstract or
particulars thereof to be seen or examined by any per-
son except as provided by law; and it shall be unlawful
a ease nee en A, RA a ree
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lla
for any person to print or publish in any manner what-
ever not provided by law any income return or any
nart thereof or source of income, profits, losses, or
expenditures, appearing in any income return ; and any
person committing an offense against the foregoing
provision shall be guilty of a misdemeanor and, upon
conviction thereof, shall be . . .”’
26 U.S.C.:
“67214. Offenses by officers and employees of the
Uxtted States
‘““(a) Unlawfui octs of revenue officers or agents.—
Any officer or employee of the United States acting in
connection with any revenue law of the United States—
_ (4) who conspires or colludes with any other
person to defraud the United States ; or
shall be .. .”’
Mass. G.L. ¢. 234:
“81. Qualification; exemptions. A person of either sex
qualified to vote for representatives to the general court,
whether a registered voter or not, shall be liable to serve
as a juror, except that the following persons shall be
exempt:
The governor; lieutenant governor; members of the
council; state secretary ; members and officers of the
senate and house of representatives during a session
of the general court; judges and justices of a court:
county commissioners ; clerks of courts and assistant
clerks and all regularly appointed officers of the courts
of the United States and of the commonwealth ; regis-
ters of probate and insolvency; registers of deeds;
sheriffs and their deputies; constables; marshals of
2 LE SER 0 eRe
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the United States and their deputies, and all other
officers of the United States; attorneys at law; settled
ministers of the gospel; officers of colleges ; preceptors
and teachers of incorporated academies; registered
practicing physicians and surgeons; persons over
seventy years of age; persons under twenty-five years
of age; members of the Ancient and Honorable Ar-
tillery Company; members of the volunteer militia;
superintendents, officers and assistants employed in or
about a state hospital, insane hospital, jail, house of
correction, state industrial scheol or state prison;
keepers of lighthouses ; eonductors and engine drivers
of railroad trains; teachers in public schools; engine-
men and members of the fire department of Boston,
and of other cities and towns in which such exemption
has been made by vote of the city council or the in-
habitants of the town; Christian Science practitioners
and readers, respectively; women trained nurses;
women assistants in hospitals; women attendant
nurses; mothers of children under sixteen years of age
or women having custody of such children and women
members of religious orders.’’
Mass. G.L. c. 272: | :
‘499. Eavesdropping; use of devices; wire tapping;
cuurt’s order
Whoever, except in accordance with an order issued
as provided herein, secretly or without the consent of
either a sender or receiver, overhears, or attempts
secretly, or without the consert of either a sender or
receiver, to overhear, or to aid, authorize, employ, pro-
cure, or permit, or to have any other person secretly,
or without the consent of either a sender er receiver,
to overhear any spoken words at any place by using
any electronic recording device, or a wireless tap or
We ae eer —_——-
1 GP aR ON LA BO RETR EE IE FER LS DPS Vs HISD
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electronic tap, or however otherwise described, or any
similar device or arrangement, or by tapping any wire
to intercept telephone communications, shall be guilty
of the crime of eavesdropping and shall be punished by
imprisonment for not more than two years or by a fine
of not more than one thousand dollars, or both.
Such order may be issued and shall be signed by any
justice of the supreme judicial or superior court upon
application of the attorney general or a district attor-
ney for the district verified by his oath or affirmation
that there are reasonable grounds to believe that evi-
dence of crime may thus be obtained. The finding by a
judge or justice that there are reasonable grounds
to believe that evidence of crime may thus be obtained
shall be final and not subject to review. S. d orders
shall-deseribe or identify (1) the urpose thereof ;
(2) the location of and the person or persons who are
to be so overheard or whose communications are to be
so intercepted if known; (3) if telephone communica-
tions are to be so intercepted the telephone line if
known; (4),the person or persons who are authorized
to so overhear or intercept, or the person or persons
under whose supervision such overbearing or inter-
ception is to be conducted.
In connection with the issuance of such an order, the
justice may examine on oath the applicant and any
other witness he may produce, for the purpose of satis-
fying himself of the existence of reasonable grounds to
believe that evidence of crime may be thus obtained.
The finding by a judge or justice that there are reason-
able grounds to believe that evidence of crime may thus
be obtained shall be final and not subject to review.
Any such order shall be effective for the time specified
therein, but not for a period of more than three months,
unless extended or renewed by the justice who signed
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and issued the original order, pon satisfying himself
that such extension or renewal is in the public interest.
Any such order, together with the papers upon which
the application was based, shall be delivered to and
retained by <he applicant as authority for such inter-
ception or directing such overhearing or interception
of the telephone communications transmitted over the
instrument or instruments described. A true corv of
such order shall at all times be retained personally by
the judge or justice issuing the same. In case of emer-
gency and when no such justice is available, the attor-
ney ger 2ral or the district attorney for the district may
issue such order, but within seventy-two hours there-
after the said attorney general or district attorney
upon oath or affirmation setting forth all the facts, shall
apply to a justice of the supreme judicial or superior
court for a court order to issue validating the acts of
said attorney general or district attorney. If the court
refuses, after hearing, to validate such prior order of
the attorney general or district attorney, said prior
order shall cease to be effective, and no further action
thereunder may be taken.”’
Mass. G.L. ¢. 272:
6100. Acquiescing in installations or wire tapping for
eavesdropping
Whoever, ertept when authorized under section
ninety-nine, for the purpose of eavesdropping as de-
fined in section ninety-nine, either on his own account
or as the servant or agent of another, permits or acqul-
esees in the installing of any electronic recording de-
vice or any similar device or arrangement, or the tap-
ping of any wire, shall be punished by imprisonment
for not more than two years or by a fine of not more
than one thousand dollars, or both.”’
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Mass. G.L. ¢. 272:
‘©6101. Installation or tapping of wires as prima facie
evidence; installation on controlled premises.
Proof of ‘+ installation in any building of any
device or u.srangement which may be used for the
purpose of violating the provisions of section ninety-
nine by listening to any spoken words or proof of the
tapping of any wire, unless duly authorized and unless
done with the consent of the owner or person in control
of the building, shall be prima facie evidence of the
commission of the crime of eavesdropping ; but nothing
contained in this section or sections ninety-nine and
one hundred shall render it unlawful! for any person to
install and use such a device on premises under his
exclusive control.”’
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.