itioners Brief on Certiorari With Appendix Attached — Krulewitch v. United States

ea 3 a PRE

: Supceme Court nf the United tates

ae *

4D

Petitioner.

~ October Term, 1948.

* | ie Le 143.

e . ALVIN KRULEWITCH,

‘AGAINST Oo

SB.

UNITED ST. \TE S nial AMERICA,

pe ey Re spond ne,

-Petitioner’s Brief on Certiorari to the Unit ed States

Court of Appeals for the Second Circuit

With Appendix Attached. ° §' 2 Le.

mF OB W. J REPMAN,

Ate vine if fesp Petit Dy hs

.LopE& Array Paxss, Ine., 65-67 Duane St., N. ¥. ©. Tel) WOrth-2-08s9

, a by va.

INDEX a

in) é Dee

ie Statement Or ear an Mery kw wis 2 ce i

(puntos ee Eh ee Oa Br (ote “tae koe

Jurisdiction tet a anew wen ee Re aera sm paewes a

iN~ om; Statutes involv * TAME MO oe acne Cn Rete Nts Die rete Se ee

foie ae ae ‘Statement, ‘of M eet rs Involved

ARGUMENT: r

Pornr [—It° was prejudicial and reversible error

: - for the trial Court to receive in-evidence, over

objection, iinportant alleged declarations of a

coconspirator anade without the knowledge “or

- consent of petitioner after thet termination of.

fhe, alleged conspiracy and. not in furtherance ‘e

Sie eae Be ee os,

i Porn I1.—Under. ‘the ‘circumstances disclosed, the

error ne of isnot one that.-may be ig-;

: MME so ee <f GG oP ays = aie Meta

Bee ; ees }

WORCLUMON os, pera an oe Pethe Se da 5s |

Aspewera 8 re ek Oy a oe ene

_ CASES CITED . |

> Ah Fook Chang v. United States, 91 P 2d MOD,

Bryan ve U nited States, 17 I: 2a 4 ( tle,

Clark v. United States. 64 IK. coc Menpall SUC

Collenger vil nited States, 50 FF, 2d eee eee

1,

PAGE

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.

SoS we bo-ho to

ae ‘ 2 *

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Dowdy v. United: States, 46 F. 2d 417 .......6... aby

Fain v. United States, 200 F505 ..:.......... ee 19 ©:

Feder v. U8. 257 eas be 13

Fiswick v. United States, 329 U.S. 211; 91 L. Ed. 7

Fie ol Ble ata aE vs ig a ale eg wa ede ti ole te i

seks aa - @ 4 bys

Gambino %. United States, 108 F. 2d 140.,...%%.. : 15

Gerson v. United States, 20° fk. vd 4) Vig Pome trae eo ry eeme .

‘Hauger v. United States, 173 F. 54 se wew pases sss le ies

Heard v. United States, 205 F. 829°..... Niateves* ae

Hogg v. -U nited States, o3 F. OE ae ae Aes |

Holt v. United, States, D5 F. 2d" 90 Pa : Sead eo Se aml

Kelton vy. United States, 294 F, 491. eee et Moree: 20

Kotteakos v. United States, 328 U.S. 7 50, bes L. Ed. |

1907 tae es SF ees bea rae es A ee RF EF oy ee

-Mayola v. United States, 71 ¥. Qd , Care BAe res ay ae a

Minner v. Untted States, 57 F. 2d 506 ccna cues 20

Nibbilink v. Enited..States, 66°F."2d 178 ......... 18

. Queen v. Hepburn, 11 U. S, 290, 3 L, Ed. 348 ies

Seeman Y. “United States, a0) a te 2. ere 17

- Sorenson v. United States, 143. B 820....+..5..... 18

" Sugarman v. United States, 3%42 2d 663 ..2..0.0.. 9

“Tofanelli v. United States, 26 F. 20: 500 :... 25... 19

a . Pm . Pi 2

United St: ifes vo Goodman, 129 Fy 2d. 1009 2000... nh

- United States v. Groves, fe © Oe Oe exec Se

I'nited States v. Lonardo, 67 F. 2d 883....../0..." ° VW

Van Riper v. United States, 13 F. 2d 941 ...... cy 4

AUTHORITIES CITED.

Underlill 6n Criminal Evidence, Section 495 ......0 0 17

ae ae eo eTe Bs THE

&

Supreme Court af the United States

Oerosen Tr RM, 148,

-

one — —

: Wor : ALV IN Kre LEWITCH, e Ses . . “i

, : “Petitioner,

. x paenneeee es : j ie Ta, : mis e -

eee aes AGAINST. ,-‘ ° ; No. 143.

= 1 . 5 Js :

* Unirep Sratres or AMEnica, Set eee Se

4 oa, Respondent. J- : .

- be ° -

Be | Petitioner’ 's Brief on Certiorari to the United States Court

: of Appeals for the Second Circuit.

Ve

° <=

Statenient,.

| On October 11, 1948, this Court granted-a writ of cer-

fiorari directed to the United States. Court of Appeals for

the Second Circuit, to review a judgment of that Court’.

entered on May 11, 1948, affirming: a jud¢ment of the Dis-

trict Court to the U nithd States’ for the Southern District |

-New York, entered therein’ on April 25, 1947, con-

visting petitioner of a violation o@18 U.S: ¢ ‘oil,’ Sees. 398,

399 and S88, after triak before Hon. James P, "eamy, Dis-

triet- Judge, and avjury (R. 16: numerie al réferences: here-

in, unless otherwise indicated, relate to pages of the tran-

ieee seript of fecord). In granting certiorari, this Court lim .

| y ited: the review to the third quéstion presented by the orig- —

. Inal’ pefition. That question ‘arose. upon .petitioner’s con-

Se -

?

tention that it was prejudicial and reversible error for ‘the -

trial Court to receive in evidenee, aver. objection, impor-

tart alleged dedarations of a coconspirator made without

. the knowledge or consent .of petitioner after the terniina-

tion of the alleged couspiraey and not. in‘ fhrtherance .

thereof. - Other matters were presented by the petition,,

but in view of the limitation of the sedpe of the appeal

they will, of course, not be argued herein, - o.

- Opinions Below. .

The. opinion of the Cireuit Court of Appeals herein,

which is annexed to'the certified transcript of record (857-

867), i is reported in 167 F.'2d 943:. The opinion on a’ prior

appeal in the samie case appears in 145 F..2d 76. No opin- .

ion: was rendéred by the District Court, except the opinion

condemning, the:unlaw ful’ search: and seizure and granting

petitioner's motion to suppress (105- 106). .

; Pe : :

are meee urisdiction.

Pa]

The javtediccion of the Supréme Court of the United’

States is invoked under Judicial Code, See. 240° (a),

amended, also known as 28 U: S. Code See. 347.

Siatases Involved:

The statutes involved are Title 18;" Sections 398: and

899, United States Code, and Title 18, Section’ 88, U nited 3 ;

Siates Code. They réad as' follows:

- ©

Title 18. Seétion 398, U.S . Code

Seetion 398... W aiTe-SLAVE TRAFFIC; TRaNSPoRTA-

TION. OF Woman or Gree FOR IMMorAL PURPOSES, OR |

© Procvring Ticker. Any person’ who shall know-

ingly transport or eause to be transported, or aid

or assist in, obtaining fransportation for, ar in trans-

porting in interstate or foreign commerce, or in any

Territory or in the District of Columbia, any woman.

<

3. 2

or girk for the UTpose of prost titution 1 & debayehery, ,

or for any otker immoral purpose, or with. the-intent

and purpose to: ‘induce, entice, or compel such woman

‘or girl'to bee ‘Ona. pr stitute or to give herself up to

debauchery, ‘or to engage in-any other immoral prac- |

tice ; -or: who shall knowingly procure or..obtain, or

cause to be procured or obtained, or aid or assist’ in

_ procuring or obtaining, any: ticket Or tickéts, or ans,

form. of transportation or - evidence of: the: right’

thereto, to be used by any woman or girl in intefstate —

or foretgn commeree,:.or in any Territory or the Dis-

trict ‘of Columbia, in going to any place for the pur-.

pose of prostitution or debauchery, or for any other

immoral purpose, or witht the: intent or purpose on

the part of such person'to induce, entice, or compel

‘her te give herself. up. to the practice of. prostitu-

_.tion, or. to: give her self - up- to debauchery, ,or any

_’ than five years, 6r by both such fine and imprison-.

- ment, in the discretion of the court. (June 25, 1910,

Other immoral. practice, Ww hereby any such w oman or

girl shall be transported in interstate or foreign com-

merce, or in any Territory or the District of Colum-

bia,. shall be deeméd guilty of a felony, and upon

-¢onviction .thereof shalk, be punished by a fine not

exceeding $5,000, or by imprisonment of not. more

c. 395, Seetion 2, 36 Stat. 825.) ;

ae ~ Title 18, ‘Section '399—U. S. ‘Code

*. — (Re, Ww hite Slave Traffic) |

399. Same ; induei ing transportation for immoral

-purposes.—Anv¥ person tho shall knowingiy per-

. ‘suade, induce, entice, or covrce, or cause to be per- -

_ suaded, induced, enticed, or coerced, or aid-or assist

in persuading, inducing enticing or. coercing any

woman or girl to go from one place to’ another in~

emacs 4: or foreign commereé, or'in any Territory

ie eee 2 4

foe “4°

9 : : oe ; ;

or. the. District of Columbia, for. the purpose. of:

prostitution ox debauchery, or for’any other immoral

purpose;.or with the intent and purpose on ‘the part

of such person that such woman or girl shall engage

in the practice of prostitution or debauchery, or any

other i impor al practice, whether with or without her

consent, and who shall thereby. knowingly cause or

aid or assist in causing such woman or girl to go

and to be carried or transpor ted asa passenger “ypon

na line or route of any common carrier or carriers

interstate. oreforeign) commerce, or any Ter-

an or the District of Columbia, shall be deemed

guile of a felony and on conviction thereof shall

be’punished by.a fine of not more than $5,000, or he

imprisonment for.a term, not exceeding five years

or by both such' fine and imprisonment, in the: dis-

—eretion of the court. (June 25, 1910, -e. 399, : See. 3,

| 86 Stat. 825.) _

| \

‘Title 18, Gadtion 88—U. S. Code

‘88. (CRIMINAL Cope, Section 37.) ConspiRInG TO°

Commit OFFENSE AGarNst Unrrep Srates.--If two

or more persons conapire either to commit any of-

. —-fense against the: United States, or to defraud the

United States in any manner or for.any purpose,

and one or more of stich parties do any act.to effect

the object of the conspiracy, each of the parties to

such ¢onspiracy shall be fined not more than $10,000,

\: or - imprisoned not more than two years, or both: :

| AR. S. Section 5440; May 17, 1879, ¢. 8 21 Stat. 4;

* Mare 4;.1909, ec, 321, Section pire 35 Stat. 1006.) °’

Statement of Matters Involved.

The indictment (11-16) charges ia three counts that

“petitioner (who will. occasionally be referred to herein as”

, c

¢

fis!

ee

the defendant), togéther with one Rose Snskerman, a to-

defendant (not tried herein): firstly, persuaded and in-

———

; duced one Elizabeth M: iry Johnston to go from New York

City to Miami, Florida, on October 20th, 1941, for the pur-

pose of prostitution | secondly, on the same date trans-+

ported. or caused her to* be transported from New- York

City to Miami, Florida, for that purpose; and thirdly,

conimencing September 15th, 1941, conspired with the co-,

defendant to communit those. offenses. Three overt acts-are: |

claimed, occurring October Ist, 15th ‘and 20th, 19412

Defendant was arrested on December’ 6, 1941, and was_

released in bail conditioned upon his appearance to answer

the charge in Florida. Upon the adjournment of the United

States Grang Jury forthe Southern District of Florida in

February, 1942,-the United States Attorney-for that dis-

trict issued a certificate that there would be no prosecution

against defendant, his appearance bond was released and _

cancelled and the matter was, terminated so. far as any

- prosecution in Florida was. cone ‘erned (80-86).

On January 4th, 1943, defendant was indicted in New

York on the same charge (3). The case was tried four

times. The first trial was-had before Clancy, D./., and a

° jury from July 7th, 1945, to July 13th, 1943, and resulted

in a disagreement (2). The second trial was had ‘before

Porterie, D./., and:-a jury from August 25th, 1943, to Sep-

tember Ist, 1943, and resulted in a conviction (2), which,

however, was reversed by: the Circuit Court of Appeals on

August Ist, 1944, with an opinion by Learned Hand, Cire.

J. (2), reported in 145 F. 2d 76. The.third trial was had :

ome Moskowitz, D. J.. and a jury on February 18th and

19th, 1946, and ‘esulted in’a mistrial (2). ‘The fourth:

trial, occurring from April Sth to 25th, 2947, resulted in

the conviction affirmed in 167 F.2d -943, with respect to

-which the present certiorari was granted,

@ During thevlast tFial the District Court conducted an

inquiry on defendant's application, to suppress ev idence

iNegally seized... This hearing'was held in the a absence of

. | : 6

/

the jary and resulted. in rts eranting of defendant’ s mo-

tion, (9, 105-106, 225-227}. po : |

. The jury made ‘a soccummoncdation of® leniency _the2)

after specific ints tructions by the Court on that Subject

(761-762). ;

Defendant was sentenced .to two years iniprisohment,

to he followed by two years’ probation (767). | i

. Upon the imposition of sentence the District Judge

stated that ‘there are some questions,’ and forthwith ad-

migted defendant to bail pending appeal (767). ~ /

The notice of appeal was duly filed on April 30th, 1947. °

-(1@); and supplemental notice’ of appeal from an order

‘denying. motion for request to remand was filed on De-

vember 6th, 1947 (11), Judgment of affirmanc® was ren-

dered on May 11th, 1948, in an opinion by Chase, Cire. J,

-On-or about June 9th, 1948, the Circuit Court of Appeats

granted a stay: pending the filing of the petition for cer-

tiorary, and on the-.same day Mr. Justice Jackson signed

an order-extending the time of petitioner to file his peti-

-tion for certiorari to and including July 10th, 1948 (860).

That petition was duly filed, and granted to the extent in-

dicated. aaa eer

re Xe

‘Statement: of sad: :

Tt does-not appeatnecessary to extend’ this brief un-

inte by.a protracted review of the facts. The ease against

defendant rests almost in its entirety on.the testimony of

Elizabeth Johnston, also variously known as, Elizabeth |

Mary Scrrentino, Jovee Winters, Jovee Winston, Mrs.

Curfis and. ‘otherwise | (47). The substance of her testi.

mony, viewed in the light most favorable to the Govern-

ment, Was Jersely outline d in. the opinion. of the Circuit

Court of Appeals on the first appeal (146 F. 2d 76).

All of the tystiniony given by her, to the exte nt that it

inerimingsed defendyit, was flat ly denied b¥ him (985), an

intfividual who has been. in a reputable and substantial ad-

Vertising business for many years (012-018). The Circuit

*

Court of. Appeals in the same opinion mi: ide’ the” Toll owjng.

‘comment upon her testimony and credibility !

‘*She ‘was undoubtedly. anounruly and extremely >

unstable person, she had bee On. We ayward from the

outset of her career, and had early served a term in

a reformatory pues hysteric ‘al Woman, probably

never well balaneed emotionally, and in any event

_enervated by a lifé from girlhood of carousing and

‘debaue ak tae 2 ungoverned moods and .caprices

* * * Joyce herself was shown to be to the last de-

gree e untrustu orthy.”’ ‘(Italics ours.)

The purpose of these comments by:Learned Hand, Cire. J.,

was to show that it was error ‘on the trial then. being re-.

view ed to withhold froti defendant ‘for iisé on cross- exam-

ination a certain signed statement of the witness at vari-

ance with her ‘testimony. The Court thus described ‘it!

a

‘‘Jovee bad been questioned.at her home by an

| ;

‘agent of th Federal Bureau of Investigation ;on

December 8, 1941, thirteen months before 4he indict-

ment was filed; she. signed a written statement of

five pages which the agent took away with him, and

which completely exculpated the accused, saying that —

she'and Seokerman had gone to Miami.of their own

‘choice, to ‘work’ there on their: own account ; that

‘the aecused had nothing whatever to do with their ;

going, although he had gone down later and had seen.

, them: and that, the witness had never had anv il-

licit relations with me Cac

oe

As to this contradictory: statement ‘aldo the’ Gourt ob-

" served:.

the scales in favor ‘of “the accused. sie

1

.

Cs

“* © © We surely eqinel say that this cireum-”

stantial story .so totally at variance with her testi- .

mony, might not haye created enough ‘doubt to turn .

~"

8

If she had already been ‘*shown to-be to the last degree~

untrustworthy we can faprly “irge that this formal dee-

laration, actually used on the last trial. operated well-nigh

conclusively to deprive her testimony of any trace of ered- |

ibility, and that the convietion Was nec vessarily chargeable —

at least in part t& the serious error abont to be argued. :

That: the same witness did not make a bbtter showing

on the last trial appears from the following. observ ations

_ in the opinion of Chase, Cire. J. (861): .

“Tt had already been shown that she had been a

prostitute since her teens. She had admitted on _

cross-examination that she was living at the time of |

the trial in an illicit relationship and had keen do-

ing so for ‘about eleven months. She had readily .

stated that she had previously lied about this -very

ease in a.sworn statement to. an F.B.1. agent...She

‘had conceded /that she had attempted to blackmail -

the appellant and that she had been arrestéd. upon

several occasions and spent time in at least three

reformatories.”’ ? ae

. a | ° mr : ; . . | ; .

We reiterat@ that. the conviction sought to’ be reviewed

rests almost exclusively upon the testimony of’ this un-

savery witness.

%

“Specification of Error to Be Urged.

| Tn} view of the. neces ‘of the present review, the ‘sin-,

gle point to be arg ed herein is as follows: . sy pes

It was prejudicial and ‘reversible érror for the trial .

Court to receive in evidence, over objection, important al..

-leged declarations of a coconspirator | made without the

knowledge or consent of petitioner after the termination

of the alleged conspiracy and not in furtherance ther eof.

e

te

9 .

_ 2» ARGUMENT.

ay © POINT 1.

It was prejudicial and reversible error for- the. trial

ey Court to receive in evidence, over objection, important al-.

‘ leged declarations of a coconspirator made without the

knowledge—or consent of petitioner after the termination

_ of the — conspiracy and not in furtherance thereof.

ad s

'

| In eG to simplify the Teferences to as portions

‘of the record bearing most directly on the subject matter

of the single legal question presented, we have taken the

liberty of appending to this brief the several pertinent ex-

tracts from the record, including that portion of the open-.

ing statement bearing on the evidence, the testimony itself

and the paragraph from the opinion of the-Cireuit Court:

of Appeals dealing with: the point involved. .

.» The indictment specifies September 15th, 1941, as the

date of the inception of the conspiracy, and alleges that it

was part.of the conspiracy that certain acts were to be per-

formed in or about the month of October, 1941 (13-14).

Three: specific overt acts are alleged, with the dates. in-

valved being October Ist, 15th aud 20th, 1941 (15). The

complaining witness was ‘arrested early in December, 1941

(109), by an agent, of the Federal Bureau of Investigation

at Canandaigua, N. Y., where on December 8, 1941, she

signed. a statement exonerating defendagt (824). A few

days later she was-taken from Qgnandaigua to Rochester, —

Ghat. for a week (110), where she was visited by her

eaitner and by the codefendant, one Rose Sookerman. At

the time of this visit both the defendant and the codefend-

ant were also already under arrest (979). :

It is therefore quite evident that any theretofore exist-

ing conspiracy was at an end, for defdndant and codefend-

ant were certainly not conspiring to entice or transport

the complainant after both. alleged ‘offenders and the al- .

‘ leged victim had been arrested. It follows that statements ”

.

——

10

of the codefendant made at this time could in no sense be -

viewed as being in furtherance ef the consphacy,

! jit must be remembered that the®? eodefendant Was mor

trial, so fhat there was no need to ot ffer her statements

s being incriminatory of herself. ° The Governme nt never

offered any proof, nor did’ it aA that defendant an-

thorized or even knew of the statements niade. by her.

- The commission. of the error now relied upon’ was fore

nr lowed in the opening. statement of the United States:

Attorney. Brief as that statement was, this very conver-

gation was detailed at length (34-35), although“even at _

that stage of the proceedings defendant unsuccessfully .ob-

‘jected to all references thereto, duly noting an exception.

Finally, when the complaining witness was asked to state

a conversatign had between her and Miss Sookerman and

not .in defendant's presence, defendant: ‘immediately ob-

jected. The Government took the position (110). that the

conversation, was an act in furtherance of the conspiracy.

Defendant, on the other hand, contended (110-111) that

ae alleged conspiracy, ended with the transportation and

that the statement was not hinding on defendant. '

Nevertheless, the trial Court overruled the objection

and permitted the complaining witness to give the fol-

tewing testimony (111-112), aggravating the damage. by

indicating to the jury that the alleged declaration of Miss

+, Sookerman constituted evidence of defendant’s: intent

even though it’was not in furtherance af any conspiracy |

lll). - ». ies Ae , |

‘‘She‘asked me, she says, ‘You didn't talk vet?’

And I savs, ‘No.’ And she says, ‘Well, don’t’ she

says, ‘until we get vou a lawyer.’ And then she

says, ‘Be very careful what vou sav.’ And T can't

put jt in exact words: But shd said, ‘It: would be

better fer us'two virls to take the Blame than Kay

- (the defendant) because he. vot ldn“t stand it, he

couldn't stand to take ‘it.’

In short, , the ‘complaining Witness was allowed to state

that the codefgndant, after the termination of the conspir-

‘

~

me

11 a Pin: a

acy, fastened upon defendant a plain imapubatin ef guilt

‘The Court was promptly apprised: that this supposed dee

‘laration Was a post-arrest matter and-retn—tatterance

of the conspiracy, hat pp rrogeeded on the theory that a “dee.

laration of a’eoconspirator, whenever made, conld be ae-

cepted -as evidence @f intent (HIT). We have been un: bani

to discover any authority for such. a proposition,

» Wereiterate that the Government offered no proof ;

whatsoever that defermdant: authorized: or had evei’ the

slightest knowledge of the statement in question.: 3

In Fiswick v. Unitgd States, 329 U.S. 211, 91 L. Ed.

196, this Court had under consideration the admissibility

of statements made by a coconspirator after the termina-.

tion of the conspiracy. A conviction of conspiracy to de-

‘fraud the United States in the exercise of its governmen-

tal functions byNiolating the Alien Restriction Act of. 1940

was -reversed, solely ov the, ground that the trial Court

erred in receiving against appellants testimony s to state-

ments. made by a coconspirator after the termination of

the conspir acy. The general rule. was thus: stated in the

“opinion of: Mr. Sustic e Douglas: ae : "es

ei While the act of one partner in crime is admis-

sible against ‘the others where it is in fags eee

the» ergninal undertaking, | Pinkerton — United

States, 328 U.S. 640, 646, 647, 90 L. Ed. 1489, 1495, /

1496, 66 S.Ct. 11805 and casés cited, all such re-

“sponsibility is at an end. when the conspiracy ends,

Logan v. United States, 144 ©. S. 263, 309, 26 ae

Kd. 4 pt 445, 12S. Ct. 617; Brown v. Enited States,

150 U.S. 93,-98, 37 L. Mad. 1010, 1013, 14 S.Ct. 37.

Sea confession or admission by one co-con-.

spirator ‘after he has been apprehended is not jn.

any sense a furtherance of the. criminal enterprise.

It is rather a frustration. of it. Tf, .as the Cireuit

Court of Appeals thought, the maintenance of the

4 a. : . .

Oa

|

plote tO, deccive the government was the objective of

this-conspiracy, the adinissions made to, the officers

ended it. So far as-each:conspirator who confessed |

was, concerned, the plot was then terminated. ' He

thre ‘TeUPOTr ceased 10, act in the role of a CONS Pir ator.

His admissions were theyefore not adaieuble

agaanst his, erstwht “es fellow conspirators. Crambing

v. United Stat, s(C. CLA. 8d Pa. 108 FL 2d 140, 142,

145."

¢

Tn the same opinion the Court adopted the time of the last

overt act -as the line. of demareation fixing the: end: of the

conspiracy, saving: ; aa een

a

, . ——

*

“The overt aets averred and’ proved may thus

mark the duration, as well as the Scope, “a con-

spiracy. (eure : a2

ee . ie ee . ee . *

“TF as we think, the conspiracy charged and

‘6 proved did not extendrbeyond the date of the last °

overt act, the ‘admissions: of ech petitioner were

improperly employed against .the others.”’ |

While-the -Cirenit Court of- Appeals herein cited, inter

alia, the Fiswick decision, it ruled it to be inapplicable.

notWithstanding the plain effect’ of the holding to be that,”

calthough the result. of a conspiracy may continue, it doys

though it -be part of the co

ment, mene tnade hav o Rae effect of ending it and are >

not thereby become a continuing consparacy ; that contes-

‘sion after apprehens ‘ion is not. in furtherance: of the en-

terprise but rather ay firus ration thereof; and ‘that even

spiracy, to deceive the Govern

The:

not ‘adinissible: against quondam fellow-conspitator=>

sugiestion of the Circuit Court of Appeais that therX

implicit in a conspiraey to violate the liw an aneillary

agreement by the conspirators iter se te conceal the vio-'

- @

s

=

0

a

13

lation tends to.introdive into the law on this = subpeet an i]

Jogical appe nilage That may wel) nullicy te Basie Tine of

H

exclusion, Tt wasin this connection: that the Cireuit Court.

of Appeals reeogrnized that the Fifth Cirenit had held. adi.

rectly tothe CONAN per iD itie \. Vonited States, 14 BP. 20

~!

2 o

~

for certiorari herein, a furt her attempted dis tiheiion of

the Fuswick case wus int rod ie ed on the. hi; Asis _ that— the

_Sookerinan statements wereamade to thee ‘omgrhtining MW if-

ness herein and. nor toa gevernment agent: ergo the yy Wwe re.

calculated to conceal the eXistence of the CONSPILAEy from

the prosecuting authorities. We are aware of no deci-

sion predicated Upon ‘any such refinement of reasoning,

Were ‘this principle to be wenerally adopted, it would be

fraught with possibilities of abuse. The opportunities: for

evading the general doctrine rende ‘ring the declarations il-

admissible vould be so simply ciredinvented as to make it

completely ineffective. poe *

An examination of the authorities in the various cir-

euit courts shows that for more than 40 years it has been

“universally” he ar that evidence of the type. attacked lierenf

is inadmissible in. eritinal prosecutions. . We shail pre-

ceed briefly to- examine - ‘several illustrative cases,

The Second Ciretit: itself has. quite frequently con-

de mned Such proof. Thus, in Feder vo. US. 60. CL AL 2d,

v

IN) 2 257 | Pet 94, Hough, Cire, a. wrote: — . e.

‘This conspir aev had-come to an ond. and wher 3)

‘that occurred, “whether lwosuecess or hiv failure, ‘the

admissions: of ome conspirator by way of narrative

Of past facts are not admissible in evidence against

: 4 the others.” eg .

‘Similarly, in the: lege ding “ase of Van Riper vo UVaited

States (C.C. A. 2d,.1926) 13 ¥. Og M61, L. Hand, Cire: J,,

=.=

wrete: ee

In thie frovernimert "8 brief itr ay) Postion. to pe tit ron

Bens

14 a a

Ser oe

“Merely narrative declarations are not ee

‘Again, in United States y. Lonardo (C. C, A. 2d, 1933) ©. -

67 FB. 2a 883. in reversing a Commiction, L. anit wrote: |

The. statements of Haflen and-Gates were ad:

vial ad against fim over his objection; the. prose

ciition’s theory being that the concerted purpose of -

tet eS confederates had not vet been completely ful-

8 filled, and that the “Wertifatiamof-one were admis: Aker

» sible. against the rest until it! was. We need not 9S

pause to consider whether in facet the 4 comiygon pur- gt

pope. had ended, because it would make no difference

if it had not. Declarations of a confederate ‘made

after his arrest will not, except in most unusual

cases, bé in furtherance of the common’ plan.”

. .

In United States v. Groves (eC: & a. 1941) 1 F.

2d &7, a narrative statement of a Sosa iess made after

“the termination ‘of the conspiracy-was held to have been

improperly admitted, and necessitated a tones of the

‘conv iction. | | ‘

Also,. ‘in United States V. ‘ Booduian (C. C; A. 3a, 1942) e 2% a

129 F. 2d 1009, it was held th: it the statements of an alleged #~

‘coconspirator, to be admissible against others than’ the

declarant, must not ‘only be made while the conspiracy is

pe nding, but must also be in furtherance of the obiect of =F

the conspiracy, and mere narratives declarations .are ex-

cluded, Swan, ‘Cire. J. wrote: - Ms is Tens es rae ee Ean a

‘Kinhorn’s statements ‘that Goodman hid. been

his partner. in the bankrapt’ s business . were not

made to procure. goods or money for his corpora-

tion. They were merely’ narrative declarations of,

>a past fact, . We are unaple to, imagine any way in

which they could have ‘fhrthered tae- objects. of a

Pes eee ee

conspiracy to conceal assets, transfer assets or

falsify books. Nor does +the Geaverniment’s brie f

suggest any or attempt to answer the. appellant's.

argument on this point.** * * We conclude that it

Was error to admit such statements as against the

_appellant, and we cannot say that this evidenve was

> = non-prejudicial.-” ae

The rule is the same in eee (ireuit, where, in

Gambino vw nited. States (C. C. A. 3, 1939) 108 F. 2d 140,

Sette Circ.4J., wrote, in reversing a conviction:

= ‘Tt, therefore, follows that assertions made ‘by’an ©

“—\. accomplice after the termination of the ‘conspiracy

come within the prohibition of the hearsay rule and

:9

are inadmissible.

This ruling was 5 expressly inure? by the Supreme

Court in the Fiswick case, supra. '

Likewise, the Fourth Cireuit in Hauger v. United

States (C.C. A. A, 1909) 173 F. 54, reversed a conviction

“because the declarations and confessions ef an alleged co-

conspirator after the offense had been committed and the

parties had been arrested were held. to -be inadmissible

against the accused. Boyd, Cire. J., quoted from Queen

y. Hepburn, 11 U.S. 200, 3 L. Ed. 348, and added:

-

Y

“So strictly liave the courts’ guarded and -ap-

plied the rulé.thaf hearsay has been held incompe-_

e -

fent-even in aid, of human freedom.” teal

a

hone | in eo sf Fi nilid Stiles re. e = 4, 1951) 46 -

F. 2d. 417, the Court held” statements of a> codefendant

~aftercarrest, not i ‘defendant’ : :"presenee, inadmissible and

reversible error since. they ‘were obviously after: the terii-

--- nation of the couspirae y and not jn furtherance thereof.

The rule is the same in the Fifth Cireuit, for in Hogq

v. United Scates (C. C. A. 9, 1931) 93 F. 2d 967, Bryan,

Po

a |

4

eo i 16 fee er

rer e P “s - .

Cire. J., ruied that reference by a coe conspirator to defend.

2

ant as his bess, made after the terinination of the conspire _

— acy, Was inadmissible against defendamt, ‘* because at that

time the conspiracy. had been broken up, and the stvie-

iment attributed to Johnson was vce but annem

In Bryan v. United States (C.C. A. , 1927) 17 2d

741, it. was held that the admission a he ee wit

ness that on the morning after defendant's arfest slie was

visited by a third’ person, and of the conv ersation between

them,,- which tended to show that “the visitor: was attempt-

ing to conceal evidence against defendant, in the absence.

*

of any- evidence e that- defendant authorized or had knowl-

edge of such visit, was prejudicial érror. Bry an, { | “ire. J.,

wrote: |

.

%

.

‘*The- Government seeks to sustain the raking on

the theory, that Ison, though not indicted, was a con-

‘spirator, and consequently his declarations and con- :

duct were: binding! on the other conspirators. But”

there js‘\no: evidence that the canspiracy eontinued ©

beyond the time of the seizure, and it is: well settled

that the’ declarations and conduct of a conspirator

‘are binding only upon himself after.the conspiracy

has been abandoned or broken up.”

The ( ourtfurther held that the testimony was not harmless

because merely cumulative; nor could the admission be-

justified on the theory of an attempt by defendant to con-

eeal evidence of his guilt. The judgment of conviction was

reversed on this ground alone, This is the decision which

the. Circuit’ Court in the cas® at bar explicitly recognized,

as having reached a conclusion diametrically opposed to

that which was the result. herein.

Another important decision in the same cireuit-is Clark «

v. United States (C. C, A.5,. 1932) 61 F. 2d 409. ‘There a

conviction was-¥eversed, ‘the Court saying :

= i 8 ° -

The s same Court .quoted with approval fiom Underhill on

AS! ‘he state ments were mn: ube by Thom: is in An-

gist, il ‘is possthle that the’ conspiracy had been,

e t a

abandoned. At any “Ates they Were mere ly a nar- |

rative of psd ovents. And cleatly they were not

as

“made | - Thom: is ime furtherance of the colspiraey, °

"and were not made part of. the res gestae of any

overt at. Tt would-be exte mnding, the rule ‘to unrea-

‘sonable Himits to he rinit these stateny: nts’ made by,

a coconspirator, not’ on trial, to be admitted. Con- | -

sidering the conflic ‘ding. evideneé before the Jyry, we

cannot say that the teskimony, improperly admitted, »

was harinleéss. "These: errors require a reversal of

the judgment.” “teat

‘ ?. - we Ae ; ese

Criminal Evidence, S ction 493:. PAL oe

e ¢

“But those decla ativan only are admissible which

are made by a conspirator during the existence of

-the conspiracy and in furtherance of it. ‘The - state-

)

- ments of a conspirator, made ‘after. the conspiracy

has ceased to: exist, either by success or failure; and

Ss

*

which are. me rely narrative of past eves. (though

in form a confession, cs , an admission.of the con-

‘spiracy) ate not rec divable agatnst a fe llow- -conspir-

ator unless the latter was present when they were.

made and-heard them, and expressly or. by implica:

tion Acq wesc ed in them.’? : o *

.

.

Similarly, in Seeman v. United States (€.°C. A.5, 1936)

90 F.

2d RX .Foster. Cire. J., Wroteg

‘But declarations of.a co-conspirator made after

the conspiracy has terminated, by success or fail-

ure, are not admissible against any’ other person

“than himself unieas that person was present when

they w ere made.’

\ . - es

, F 18 |

The same rule: was follbwed in Nibbelink v. United

States (C..C. A. 6, 1933) 66 F. 2d 178, where a conviction

was reversed ‘and Moorman, Cire. J., wrote: |

‘‘Before the declarations of cocenspirators. can

be received in evidence ‘against one charged with

participating in the conspiracy, it must be shown

— by independent evidence that the gonspiracy existed |

and that the accused was a party,to it at.the time

the declarations were made,”’

-

The mile was likewise applied in the Seventh Circuit .

in Collenger- v. United States (C. C. A. 7, 1931) 50 F.2d

345, where the conviction was reversed, Alfschuler, Cire.

J, writing: -

“Tt is too plain for discussion that this ‘atatemedat

tothe Government ‘agent, ‘far_fronr furthering the

conspiracy, was made ‘after. the conspiracy had

ended, and with the purpose of exposing it and

penalizing the conspirators, and was hearsay as to

all the defendants except Orta * * * Where.there

are many defendants on trial charged with aqgeneral

conspiracy; each is subject to the haztrd of being

ipjuriously affected by alleged acts or statements of

some other defendants, incompetent as to all but

the ones making the statements. “In such situations

courts should he ever alert to minimize, so far as

possible, the- hazard .to. defendarts whom the law

does not! bind by -sueh statements.” we

The rule in the Kighth Circuit has been apphed to a

— of situations. Thus, in Sorenson y. United States

©, (CL.C. A. 8, 1906) 145 I, 820, Sanborn, Cire. J., wrote:

‘4 “ : “ . ‘o. ty, '

° mW here two ‘or more defendants are’ jointly tried

for the same offense, or far a conspiracyto commit |

2

“spiracy; cdiapetent evidence against all, his admissions ia .

Cf. Gerson vo United States (CC. Ay 8, 1928) 2 oF. 2d 49,

' where the same rule was ca to-acts committed prior.

19

it, the declaration of no one of them, made in the’

absence of another after. the completion: of the of:

fe nse, is competent ev idene “e awainst the — F

: In Fain v. United States “(C. C. A. 8, 1913) 209 F. Doo,

it- wats held that; waile the act of one esr ator -in “the

prosecution of the enterprise was, after proof -of the -con-

his ‘narration of /pasi events after the éonspiracy had come

to an end, whether by suecess or failure, were inadmissible

against his fellows. The evidence was ac odingly», held

incompetent against the appellant, and. the’ judgment of

ccuviction was reversed. . - ::

In Heard vy. United States (C.-C. . 8, 1919) 2 55 F. 829,

in reversing a conviction, Sanborn, Cire. J.,-wrote:

cas “While, in cases of corspiraey, the act of one con-

spirator in the prosecution of the enterprise for the

_purpose of attaining its object is: evidence. against

~all,-the act, dedaration, or admission .of ‘one. con-.

spirator by way of narrative of past facts after the

conspiracy has come to an end, either by success or

failur® in attaining its object, is not admissible

against the others." . e

to the formation of the conspiracy,

The rule in the Ninth ae is identical, for in Tofa-

nelli v. United States fe, ©. - 1938) 2 28 F. 2d 580, Rud-

kin, Cire. J. wrote:

“The tent Whether the statement, or declaration

of one conspirator is admissible agai

does not depend entirely. upon Whetler- the: state-

ment Was: ‘made during the existence of the conspir-

st the others ~°

»*

-

e a . i : - : i { P oe . re 9 “«

acy. The statement or declaration must not only

have been made dyring the continuance of the con-_

spira¢y.but it must likewise have been made in fur-

therance of its object.’

A dise ‘ussion of. the authorities is conti ained in Mayola

“United States (C.C.°.A. 9, 22: 34) 71 FE. 2d 65, where the

¢ ourt quotes with approv: al from the earlier holding in the

same cireuit in Sugarman v. United States. (C.-C. A. 9)-

35 F. 2d 663, where it.was held:, © - (/4>

, *The true rule is that aéts and declarations of

one conspirator, ini furtherance of the object of the

conspiracy and during its existence, are binding on

all exiorinia ‘of the conspiracy, whether. present or

absent.’ peat ° | :

,

In the same opinion, the rule of Kelton v. United States

(C, C. A. 3) 294 F. 491, in the folowing language, was

quoted with approval: ae eres"

‘A

'** Before the declarations of coconspirators ean be

“received in evidence against one charged With par-

ticipating in the eanspir icy, it must be shown by in®

* depe ndené evidence ‘that. the conspiracy existed and .

that the aeeused was & party to it at the ‘timé the

»

~

i

declarations were made, *2> : * ——

Finally, ‘there’ is te Teuth C ircuitywhere in Minner v.

United States (C.-C. A. 10, 1932) 57 E> be 506, Phillips,.

Cire. J., wrote: ma

ont

‘The ‘acts or declarations of A conspirator firisyr

to’ the fornyttion of the conspiracy or after its ter-—

mination are. not admissible at 1inst bis coconspira-

99

tors. '

Ns

~

.

Oy

Likewise, in_J]olt v. United States (CC. A. 10, 1987).

94 EF. 2d 90, in reversing a‘ conviction, Phillips, Cire. J.,

wrote: ; . |

‘‘ Alexander was a2 coconspirator and the: acts and

declarations of a coconspirator during and. in fur-

therance of the conspiracy: are admissible against.

-his coconspirator. But the statement made by Al- —

-exander tended to defeat rather than’ further the-

conspiracy. It was. a narration of past events,—a

confession of Alexander who @: not on. trial, and

- was clearly inadmissible for any ‘purpose. pera

> we

It is thus plainly established that wherever the question |

has arisen, the several Circuit Courts of Appeals have

come to. the same eenclusion, ee in order to

render dec larations of coconspiratots adinissible against.

an alleged conspirator who was on trial, the declarations

must fulfill the two requirements that they be made during.

the pendency of. the conspiracy and with a view towards

promoting its success. -The testimony we challenge herein,

could not possibly havé furthered a conspiracy which had

already terminated from two standpéints:. firstly, the al-.

leged objects of the conspiracy had already been attained

and consummated; secondly, both of the alleged conspira-—

tors and the witness testifying to the supposed conversa-°

tion were alre ady under arrest. We advert again to the

Circuit Court of Appeals* intimation. that the conspiracy Vv

continued for the purpose of concealing the role’ of’ peti-.

tioner as a conspiretor, This*is not tenable herein, inas-

much as prior to the alleged stitement the witness ud w-

ready signed a statement completely exculpating petitioner

- (824), nor is-such a rule workable in general, for almast

any species of declaration could by ‘distortion of reasoning

be viewed as part of a‘plan to evade detection. We. sub-

mit that the testimony unde T, ‘attack cannot poxaly be. jus-

AY.

. Bi

7?

99

tified logically or reasonably as an act tending to advance

the alleged conspiracy, but that on the contrary it was in-

sinuated into the case solely for the pUrpors of prejudicing

‘petitioner through an indirect, hearsay intimation of his

guilt.. A conviction thus procured should not be permitted

to stand. © ; :

or "POINT IE -

Under the circumstances disclosed, the error com.

plained of is not one.that may be ignored.

We ariticipate that. the Government will argue that the

admission of the testimony in question was harmless and -

therefore not such error as to necessitate a reversal of the:

judgment. The determination of this aspeet off the case

entails .a.study of the matters thoroughly discussed in

Kotteakos v. United States, 3 328 U.S. 750, 90 L. Ed. 1557,

wherein this Court so’ completely treated he rationale and

applicability of the’ hariiless error rule ds to render fur-

ther analysis on our part presumptuous. The conclusion

reached therein is’ summed up in the following language of

Mr. Justice Rutledge: :

“But if one-cannot say, With fair assutanee, after

pondering all that happened without stripping the

erroneous action from the whole, that.the judgment

Was not substantially swayed by the error, it is im-

possible to-conelude that substantial rights were not

affected. The inquiry cannot be merely whether’

there was enough to support the result, wpart from

.the phase affected by the error. It is rather, even

‘©. so,- Whether the error itself had substantial ‘influ-

ence. If so, or if one is left in grave doubt, the con-

vietion cannot stand.’ ts

Another statement of the dudiniiie tae ‘is set forth in

Ah. Fook Chang v. United States, 91 F. 2d 805:

a

cue gs

‘*Finally,.if the record shows error, but does not

disclose whether the error is. prejudicial or whether

it is not prejudicial, it. ts presumed to be prejudi-

cial and to require reversal.’

. Wholly apart from the foregoing principles, we submit

that there are several cogent reasons why the efror we

urge must be deemed prejudicial. They are briefly as fol-

lows: | ; .

1 <A serutiny of the entire record. discloses that the:

case against petitioner was a Weak one, predicated virtu-

ally in its entirety on the impeached and contradictory tes- ..

timony of a single disreputable wittess, who had a ¢om-.

‘pelling motive to inflict injury on petitioner. ‘

°

2. The case was tried four times, and one of the trials

resulted in a disagreement of the jury, a circumstance

which is universally recognized as being indicative of. a

”

real doubt as*te petitioner's guilt.

‘The prosec uter stressed and expressly ontiined this

ve ‘ular evidence in his brief opening, which shows that

he attached considerable Amportance to it. We-urge the

familiar argument that the Govern nent should not be per-

mitted to use and rely strongly on incopapetent evidence to

procure a convicdion and subsequently, when the error is

assailed, seek to minimize its significance. .

Phe U nited States Attorney in Florida, with stomp

ae full knowledite of the: events in issue, disc ‘continued all

proceedings and declined to prosecute petitioner for this

alleged offense or any other. }

5. Thre .j jt .y's recolnmena. tion of mercy herein after

some delil als Ix itse li, a sign that it had grave. qualins

about rendering uny verdict of conviction.

s » é : »

a

e —

,”

6. The previous conviction herein was reversed, bv the

Circuit Court of Appeals on ‘grounds much jess substan-

tial, showing that. that Court reco: gnized the case to be

“eminently one in, which the result,could be affected: by evi.

de nee which in a fess close litigation could He, disregarde d,

7. Even on the appeal from the present conviction, ‘the

‘Cireuit Court of Appeals, w hile swift to term another error

‘Sa harmless irregularity’? (866), did not see fit td dis spose

ofsthe sos point on-any such basis. * 50 |g.

> short, wholly ak from the general principles re-

ferred to in the’ cases cited above, the instant situation dis-

Closes” special and persuasive®reasons why it cannot be

made to turn on a supposition of harmless error. ‘The .

issues herein were litigated so closely that a far less. ma-

terial deviation from proper. procedure could have .in-

fluenced the outcome. Particularly in view of the almost

standard practice of Cirewit Courts of Appeals to reverse

convictions for this very error alone, we submit that the -

error herein requires a reversal, fon yo

od

git ed CONCLUSION.

The judgment appealed from should be reversed.

Réspectfully submitted

Jacon W. FriepMan

. Atlorney for Petitioner

APPENDIX. eee ae dette

‘Extract From Opening Statement by Mr. Hilly.

Ys 4 : ; k al

_ Folie 101” Ce ia: ae

Now, Johnston “ tayed i in her home for a period of thryre

or four days; when she Wi < arrested by a speclal agent of

the Federal Bureau of Investigation, Shi was transférred .

to a jail in Rochester, New York, and remained there for 4

a period of about a week, During that time she was vis-

sited by her mother and by “Sookerman who. had: returned

from Miami, Florida, At that time Sookerman * told her

2 | ae Se hoe, ier me

Mr. .Todarelli¥: Your: Honor,,: 1’ object: to this. Tt is?

plainly hearsay, and 1 do not think it"is proper for Mr.

Hilly to tell the jury anvthing about a conversation be-.

tween Sookerman and this party Joh nston, cate?

~

- Folio 102 | aes. i cert,

°Mr. Hilly: If your Honor, please, I will approach thé

bench on that questian. ©. ‘ -

The Court: Very well. Please come .Up.

(Dise Usston ate ‘the bene ‘h off the record,” ‘not in sel hear-

‘ing of the jury.) oe Port roe

- The Court: The jiry will’ unde rstand that anvthing that

P _ fe said by counsel: ‘in an opening statement is ndt evidence |

at all. kt is simply counsel's idea of what -the evidence

Will be. Youare not to be guided in any way hy the open-

ing statement of counsel. You are to be guided only by

the evidence itself as it COMES in.

Folia 3 . : ; : | ; 6

Mr. TodareWi: Will your Hicnor rule « on my objection?

“The Court: Your. objec ‘tion is overt uled.

Mr. Todarelli: I respectfully except.

a *

,

--

o. °

26 m a ae <5"

ae Lae et ee

Mr. Hilly: At this time Sookerman and Johnston had

a conversation, this is in Rochester, New’York, and at that

Lime. Sgokeiman told: Johnston that thav should take-the

_ sblame for the: tr: ansportation to Miami, Florida, trom, New

-s° York. City, that Krulewfteh was an old man and that. lye

couldn't do time. Ultimately Johnston was taken to Jack-

sonville, Florida, and at that time she was bailed out. She

did- not put up the money fer her bail bond, that was prt.’

up: by Sookerman and Krulewitch, “2s

Exiract From Testimony of E. Sorrentino, for Government, ,-

: Direct.

- Page 109

F olio 32 27

©. ioe. subsequently were you arrested; after vou left

*. New York City were vou arrested? A. Yes, I was.

-. Q: How long after you left New York City were you

"arrested? A. Well, a couple of days tater T think. |

Q. Where were you arrested?) A. Up at my mother’s.

Page 110

Folio 328°

e

Q. Where were you taxen? -A, Right in my home

town, | hip a |

Q. From your home town were vou taken anywhere?

A. Yes. To Rochester La :

Q.. Who arrested. von, Mrs. Sorrentino? | A. An agent’ +

by the name of Frost. ST Ey eae |

Q. And by an agent. yeu mean an FBI agent; is that

correct? A. Yes. |

Q. Did vou remain in

A. As week, \

Q. During that time’ did vou have any visiters’ A. Yes.

F ‘olio 329

‘hester for atv period of time?

Q. Ww ho visited: sour A. Betty and my mother.

.

. .

°

Q. Now at that time, at the time Betty visited you, “did

tion with her? A. Yes. ;

you hit ve a convers

: (). Will vopeCHl us what thar conversation was? ,

= Todarelli 2] object to this, vour Honor,

f he Court: Was, the defendant present? .

. Mr: Hilly: No, he Was not. | | al

The Court: Then how es it: adimissiflle a

: 0. cS, eee: Cee Oieis erpund. if vour Honor please. 7

One of pi counts an the indictment charges a c¢on-

ospiraey dy “this defendant here and. by the defend

» ov, ant ecu. who is presently not-on trial: |

Folio 330

Salt mie The Court: I ~ Jetty Spokermian ? a

Mr. Todareili: Yes, vour Honor. i

: The Court: Betty is Sookerman? ) |

Mr. 7 Podaretli: 7 Was, we &

<r: Hilly ; And this is.an act in fartherance of the.

conspiracy, this’ conversatifn, and consequently the.

Crogerniment wees thi ut fe act of one comspir ator

hinds the other. Deets

| Mr. Todarelli: May, T suggest his, vour Honor,

a. : ‘that if the Conspiraey is \ valid it terminated whe n»

: = the aet violated in the comBpiracy ‘terminated.

ms a, -

« Page 11

— Folio 331

an This, therefore, is n vonversntion i tact took -place

afteg the eunspiraey had ended: and anything that

Was said bw Betts is. binding oniv por etiv ands

not ypidiag upon the defendant. It is jaist like a

~ ¢énfexsion, for example, where a yuan is arrested, he

. cis charged with conspiracy and he confesses. to the

Zé Sek District . Attorney. The court s have uniformly held

} «| ‘ ‘

that that contecsicn is binding ‘ais upon tim be-

cause the conspiracy had ended.

e

- olio 332

The Court: Tsn’t any aet or dee latation of the de

- fenddnt or ‘a co-conspirator either hefove or after

the act, evidence of intent? . oe “

Mr. Todarelli:, No, sir. [ don't mean, to he ne

pertinent at all, your Honor—— |

, The Court: IT have just carefully read Judge

O’Connor’s charge to thie” jury. im the ¢ ‘ha ptt case.

He so charged, and it was the law.

Mr. Podarelli: This was after the arrest,. your

“Honor. eee re. oy

Folio 333 ;

. ’ % ° “

~The Court: T understand. hms

Mr. “‘Todarelli: It was not in furtherance of the

conspiracy. ns -

The Court: T understand. The objection is over-

ruled, The question may be duswered. aN ae

Mr. Hilly: Mr. Reporter, would vou be rood

enough to reread the question: ia the Witness, please.

‘(Ree ord” read. )

A. She hea Ths’, she ‘says, You didtu't talk: vet Ada And

l siuivs, (¢tNg.”’ Sp i

Page 112. | a Sy | | ener a

Folio 334 | - sf

“And she says, ** Well, don't..! she says, ‘‘until we

get vou-a leyyver.

eareful what von sav.

Atm then she says, ‘Be very

* And Tean't put it.in exaet

words. But she said, ‘Tt would be: better for us two.

girls to take the blame than Kay bee ‘alise he couldn’ t

stand it, he couldn't stand to take rt.’

°

2)

PORTE SAL

; What? - ee 7 nN

Page 12

Pe ~

2g

Mr... Todarelli: Now, vour Honor,, IT move that — *

Jhat be stricken out on, the ground that it is quite

apparentathat that conversation was not in further-.

—~_ . ’ eae ce , ‘ P

ance ot any Seahspiracy to transport, in interstate

\

COMME n 2

kr olin 335.

The Court: Motion overruled, |

Mr. Todarelli: I have oné further request, your:

Honor, May we have that-date approximately fixed?

The Court: If the witness can | fix ‘it.

~Q. Can you fix the ee of ‘ hait conversation! A.

Lal . f ‘

Q. Can -vou_fix the-time, Mrs. Sorrentino, of that con- :

versation’ with |Kay—-with Betty Sookerman? A. .Well,

no: I know it was after Pearl Harbor that conversation

Was. = :

Q. Did that conversation occur during the week that

vou were ini Rochester, New York? A. Yes. |

|

Folio oO 36 es fens ‘

°

Qt shop vou this and. ask you if this is your signa-

‘ture? <A. Yes. .

3. Pardon? A. Yes? 7

Q. And: T-ask vou to look at these papers here and I

cask. vou if this is a statement that you made to a special -

agent of the Pedera! Bureau of Investigation? A: Yes-

| Q. And that statement is dated on December 8, 1941,

is thai correci,.and. inat is, the diate. vou made the state-

wy A.: Yes. ote Suen te 7 ;

Mr. Hilby: I, offer it in evidence. 2 |

Mr. Todarelli: No gbjection. — oe Tv

a e = sd ; . : 7

ry)

Page 113 ee an |

Folio 337 rie

.. & 2 ‘: \ = i ” : : a a

The Court: It may be received and marked as an.

exhibit. . i aoe in & |

(Government's: Exhibit 9 for - identification * re.

ceived in evidence.) | 3 :

Mr. Hilly: With ‘vour Honor’s permission I would ©

' Jike to read this statement to tke jury..

~The Court: You may. ie

Mr. Todarelli: Excuse me, May I see 7 Hilly

just a minute? —

(Mr. Todarelli conversed with Mr. Hilly off the

record. )

Folio 338 i ) :

/

/

Mr. Hilly: I am reading now, ladies and gentlemen

- * of the jury, from Government’s Exhibit 5. It is

dated December 8, 1941 (reads Government’s Ex-

hibit 5 to the jury). pea ee 7

Q. Now this statement, Mrs. Sorrentino, that vou gave

to Special Agent Frost on December 8, pol, was that

statement correct?- | Pieper ee eee eae

Mr. Todarelli: I object to that, your Honor.. ie

a ; | .

The Court: On what ground? x

Mr. Todarelli:. On the ground that vou ean’t im- .

peach your own Witness. : :

Fohe 339 Seana ‘

‘ Mr. “Hilly. 1 am_ not attempting to impeach niy

own witness, your Honor,

Mr, Todarelli: The question sounds like it to me,

Was it correct? 3 ae | ;

The Court: I will permit the question, *

A). Was that statement correct? ‘Al*No.

| You: maile thie statement after your conversation

with Betty? A. No, T didn't: T made it on BLY own. .-

Q. You made that statement on vour own? A. ¥ee.

Page 114

: .« Folio 340

Mr. Pinto: I did not. get that. That was private

= — chetween you and the witriess.-. |

a Hilly: I did not intend it to be private.

| eo The Witness:-I made that statement on my own.

a Mr..Pinto: I did not get‘it. Might we hear it?

Mr. Hilly: Will you read the answer, please, Mr.

Reporter, , so that Judge Pinto ang oi Todarelli

ean hear it.

— (Answer read.)

Page 193

- Folio 578. - * s.

&

tet aie ATION

The W itness : | AS soon as T was takenin custody

I was. taken to‘the Post Office, arid) Mr. Frost sat

down, and J said all this to him, and, as soon ‘as it

was finished, this was probably maybe an hour later,

i ' maybe less than that, I don’t know, and T signed it.

~ > Q. You called him Frost. The fact is it is Trost, isn’t

2 it. T-r-o-s-t?. A. I don’t know. T said Frost. | |

- : ©. T am not arguing with you aBout it. He asked you

A lot of questions be ‘fore he started to write these things

out; am I right? A. Yea, that is true. :

v

Folio 580 - A \

\

X

NS 32 a

—— 7

ee

Folio 5

©. You Widn’t t write this, did you, except to sign it? A.

No. I just Signed it..

Q. Mr. Byost wrote it out: is that right? A. Tes, sir.

Q. And iat Was done after he had questioned you for

some time? A. Yes. .

Q. Where were \you arrested, by the way; ‘at: your -—

mother’s home? “A. Yes, I was. | F oo

‘Q. By. Mr. Trost iy nself? A. No. He had .another

man. with him. - cae cae ae

Page 10P

Q. And the two of them 100k, ¥ you down to the Post

Office? ~ A: Yes.

Q. Is that right? A. Yes.

Q. Now, between the time. that they nicked you up at

your home and the: time that vou read. and signed this

statement, had you been in communication with anybody

at all? A. No. ; | \

Q. All, Sauget You didn’t see Mr. Kav, cer ertainly, did

you?. A, No,.did not.

Q. You didn’t see any lawyer? A. No.

Q. You didn’t see any friend? A. Na.

s.

Page 194

Folio 581° ;

Q. W hen vou left to go “back to Canandaigua for. the

| holidays vou hadri’t discussed with Mr. Kay: the possibility

| of vour being arrested on this ro harge, had vou? A. When

what? 5

- Q. ¥ou hadn't talked about’ being arrested on any

dake like this, had vou? A, No. — | i

‘Q. All right. So that. when you made this statement,

Government?s Exhibit 5, vou were telling the truth, weren't

a 7 | ’ J ~

you? A. No, I wasn’t. I-just. tried to save him, to save --

, » ¢€ ; | ; . ;

us all.

. Folio 582.

~Q. Well, Kay didn: “t tell vou to put any of the things

‘ in here that vou put in, did he? AL, No, he did not. I-

just- nae

Q. Betty hadn't talked with vou, had she? A. No.

_ Q. The fact of the matter is tliat Betty, came up to see

you in jail ‘affer this was taken, isn ‘t that right? *A. Yes,

that is right. |

Page 195 _

Folio 583

Q. When you said that: no threats. or ‘promises’ had

been made to you and that you were making this statemént:

of your own, free will knowing that it could be. used in.

court against you, that was true, wasn't it? A. What?

‘That IT had signed it? Yes,.sure, I signed it.

Q. Mr. \Trost didn’t threaten you, did-he? A. No.*

Q. He akked you to tell the truth, didn’t he? A. Well,

——

Q. Didn’t\he’ insist upon your telling only the truth?

A. I know. T-am sorry T didn’t.

> .Q. Didn’t he? Did-he not? A. Yes. Well, naturally.

he asked me questions, and that is all. He says, ‘Do you

ae swear this is the truth?"’ And I savs, **¥es, I do.’’, oe

Extract From Opinion of Circuit Court,of Appeals. .

; Pages 862-863 » - | b : ~

i

“The evidence of the government supported its allega- Fas

‘tions thge the witness just mentioned, Mrs. Sorrentino, a

was transported | fron New York to Florida* by the appel-

lant and that in ‘so doing he acted in ‘#oncert. with Miss

Sookerman, “who had been indicted fer that conspiracy, and

ua 2 a - ©

| ee

convicted on the previous trial. appeared on this trial

| thar Wis, Sorrentino had been arrested: ig December, 194i

rs spon her return fromm Florida and taken. to Rochester,

: om: ¥. where she Was ¥isited/ by: Miss Sookerm: in. The wit-

ness Was then perinitted over hevappellant 's objce (lon to

, testify, that - the .co-eonspir ator, after having asked. the

* witness Jif+she had talked vei Sand heen val that she had.

= not, said to her, Wall, don't until we vet vou a lawyer. e

2 ‘And, then. coming, Be very care ful what you say, fol-

» Towed by: iat | would. be better’ for ns tw 0 virls to bike the

Blame than Kay (the defendant) ‘bee: use he eouldn’t stand .

a ity he-eau! td . stand ‘to take ‘7? \ The objection was that

* Ahe alleged ; conspiracy | ended with, the transportation and

“that this, state ment af the CO- conspirator, having been made

= ie thereafter, conseg rently. was not binding upon this” uppel-.

lant. See Fiswick ve U hited S: tates, 329 US 241, 217, 6¢

i. Ct. 224, 91 L. Ed. 196; Galatak ve United ‘States, 8-Cir.,

- 80. F,. 2415, 23, 24, certiorari denied; 297-Ur S. 711, 56.

“gs Ct..574, 80 Li nd. 998. But while it- oo conceivably.’

_:be held that this evidence: Was ‘admissible to, show appel-

Jant?s intent, we prefer to rest ‘our ‘decision. on another

/. wast d., We. think that implicit, in a Conspiracy to- violate

a el S : the law is an agreement, among the conspirators to. con-

Same cs ceal the violation after as wWell:as hefore” the illegal -plan

peer consummated. Thugs the conspiracy continues, at least

Seer 4k purposes of concealment, even after its: primary aims

have. heeh accomplished.” The statements of the co-con.”

~sprrator Here were made in an’effort fo protect: the appel->

—.. Warit. by* concealing his role in ‘the! conspiracy. (“. se-

ane oa < dant they fell’ within: the implied agreement to. coriceal,

and were admissthle as evidence against the appellant. <Cf.

rea ““Vnitat Stites v.. Golds tein, 2°Cir;, 135 EF: 2d: 339; bap

Mey ge. FE beg States , 4K, 10 F, 2d°409, certiorari denied, 2

+ 1 $673, 46 Ss, Ct. 486,. 20 L Ed. ‘1144. While a v.

Bie .e aie States, 5 ir. . A, F. 2d. 741, is by implieatton-di-

ees | rectly, to the contrary, Wee decline to follow ite! Cee

ied ee se . oe Pale . : : . ‘ . : Wr ; 4

y . : F : jus 4 a . eh “‘- .

pa . ; es : s vs