Petition for Writ of Certiorari — Lutwak v. United States

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me pees

~ RARY

suited & COURT, UST,

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ee

Aw. THE |

Supreme Court of the United States

Ocrober Term, 19: Sy

No. “= GG

°

MARCEL MAX LUTWAK, “MUNIO KNOLL, anp

2 REGINA TREITLER,

' Petitioners,

: Us. Z

UNITED STATES OF AMERIC A,

falas | at Respondet.

PETITION FOR WRIT. OF CERTIORARI TO THE

' UNITED STATES COURT OF APPEALS FOR -

*THE SEVENTH CIRCUIT.

ANTHONY Brap.ey Espen,

Ricuanp F. Warr,

Bernarp WEIssRovRD, |

. Counsel for Petitioners.

JosepH L. NEe.uts,

Dunnixe, Nevius & Lenpiy,

“Of Counsel.

INDRA,

Ph

Fiswick v -U nited States (1946), 829 U.S Mio 9

i

v8 oy PAGE

Carhionia DOW 5 054 on 3c os ewes eas Rees oye nC

Ph Pt RSE RRR Sapa SES See ae ci oe ri eae 2

- Questions capper CECE REET Le ee resent

Statutes involved......... bese wae alee s Gere eae 3

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i)

23

CrraTIons.

Cases; | ;

Bassett v. United States (1890), 137 U.S. 496.,..2....:

Brunner v. United States (U. A. 6th, 1948), 168 I. (2d)

OR bares FE re eRe rer ee Ts cess areaen 15

CangMbsi v. U nited States (C. A. 6th, 1927), 19 Fr. (2d)

1 BG SS RE MERA AE ME pacar p N ReeENe Biel ae oA ae

& hurch. v. Hubbart (1804), 2 Cranch. 287..... rock i 20

Clark v. United States (C. A. 5th, 1932), 61 F, (2d)

Me ola ves wees Veecuyoe Rete Lae Oe eek MMS Ree Cee EO 12

Commissioner vy, Hyde (Cc. & 2d, 1936), 82 F. (2d) 174 20

Commonwealth v. Stevens ( (1907), ‘196 Mass. 280...... Z3

Cosulich Societa Triestina Di Navi sisi v. E iting (C.

A, 2d, 193 33), 66 F 14d OK. es eens 20

Cuba R- Co. v. C rosby (1912), 999 U.S. ae peer

Dowdy v. United States (C. A. 4th, cae 46 F. als

WE ERR ERE RARER REO e Fe ME ee ba ole 12

‘Dune ‘an V. JU nited States (€. A. ith, 1928), 2 23 F. (2a) oe >

Ezzard v. U nited States (C. A. Stie, 1925), 7 ie ye (2d) 808 22

rT

ii

Fr ‘ranzen vy. B. I. PuPont de Nemours &.Co. 1C. A. 3d,

1944), 146. F. (2d) S3B.G- . +. -. eee eeeeerercesere ts 19:

Funk v. U nited States (1433), 290 U..S. 371....- nes Wy ae

Gordon vy. Commissioner (C. « \. 9th, 1935), 75 PF. (2d)

ae nearer MAA PAE ard ac Nae Ya et eae

se Geli & Co. v. - Gunard § S. 8, Co. See A. 2d, atta 48

OW: (Ody TR vin keen nce teers nes ‘21

pt y. United States (1949), 336 U.S. 705... 14, 15

Helvering Vv. Gowran (1937), 802 U.S, 238....- - See

Holt v. United States (C, A.d0th, 1937), o4 ag (2d). 90 12

Krulewitch v.U nited States (1949), 386.0. 8. 440. 10, 11,13

Lilienthai v. United States (1878), 97 U.S. 2 37 Se eee

Lincoln v. Riley (1920), 217 TIL. App. 001.-..--++> onan

Logan v. United States (1892), 144 U. S263.0......-- on

Miles v. United ‘States (188), 100 UB. 904.5... Say 14

alent pci States (C. A. Sth, 1951), sees ca de 749 12

nt 5 738 oP SoA etyin Cad eee bo ew OEE ONT ee PE 20

Paul v. U aited States (C. A. 3d, sees 79 F. (2d) 561. —15

‘y. KB. Riley Inv. Co. v. Commissioner (1940), 311 U.S.

State v. Henneman (19: 36), 40 N. M. 166, 96 P. 941130 2

-Tofanelli v. United States’ (C, A. 9th, 1928), 28 F. (2d)

iily oe or a oe a a A OE EO e ERO ETE x;

Toshiko Inaba v. Nagie C. (. 9th, 1929), 36 P. 2a) 481 1

Unite d States v. Blau (9. 51), 340 U. S. 332 BN Ji pee we

United States ex sy Jelie v. ‘District Director (C. A.

2d, 1939), 106 F. (2d) V4. wees eee e neces Meee Are yg 2

United States v. Hall’(C. A. 2d, 19: 50), 178 F. (2d) 85 3: 4

United States-v. Krulewitch (C. A. %d, 1948), 167 F.

(SAV GEE oe ae oe Sea: bebe er ed el coer e 1

oe

i

United States v. Rubenstein (C. A. 2d, 1945), Lot F.

42d) 915: Seve ewrsentaesees< Oseee ‘ie @ §le 0 0:8 6.0 8.3 Oe 6 4.84 0-8 y 19

) sais States v. Vigorito (C, A. 2d, 1933), 67 F. (2d)

CMe Gash oho eicce ce ae ah 6 chee TTS tie ee 22

United States v. Walker (C. As 2d, 1949), 176 F. (2d)

tl esta hie atc ee st bitwe kaos oes ee dewey Ueber eet

United States ¥. Wiggins (1840), 39 UL S. 384........ eae (13)

Yoder vy. United States (€. A. 10th, 1935),.80 F. (2d) »

| SE ena ne ree eae. pS yet Pee eee wes BO

Statutes: ees. | |

-. Title 8, UL SVC. § §180a...... Prete re are oe etaroe 3,5

"Title 8, US. Gs 220(e), peeks. apie eee ee

Title $0), 60/690) ee Seah oN eP 4,5, 6,

Title 16, U0. Fe Or 480! 5 vere POS annoy 4,3.

dp revised Criminal Code provision is?18 U. 8. C.

§ 371 (1948) ) |

Miseellane OUS: Sst : ‘ | |

Rule 26, Fed. Rules ( riminal i Nrocedure Cates See 14, 17; 24

Annotation, 11 A. L. R. 2d 646. (4949)... 0... ey ey:

>

IN THE

Sefreme Court of the United States

.

Cente Tero, 1951.

?

Sele: M ARC EL MAX LUTWAK,: MUNIO KNOL L, AND

| REGINA TREITLER,

‘ . Petitioners,

a,

vs. .

sires Shares S OF AMERICA, .° *

Responde nt. ~

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED. STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT.

To the Honorable, the ae Justice and the Associate Jus-

. tices of the Supreme Court of the United States:

Your petitioners, Marcel Max Lutwak, Munio Knoll, and

Regina Treitler, defendants below, r espectfully pray that

‘ a’ Writ of Certiorari issugevo review the judgment of the |

Uyited States. Court of Appeals for the Seventh Circuit,

entered on January 3, 1952. ‘The Court of Appeals affirmed

the-judgment of. the United States “Distr Court for the |

Northern District of Illinois, Fastet n Division, finding’ the

Petifioners guilty of a charge of conspiracy to violate

Sections 180a and 220(¢), Title 8, U. S. Code. A petition

for rehearing was filed by Petitioners in the Court of- Ap-

pes als on Janttary 18, 1952; it was denied'in a supplemental

opinion of that C ourt on April 16, 1952.

&s

OPINIONS BELOW.

4

The original “opinion of the Court of Appeals for the

Severith Circuit, dated January 3, 1952, * its supple-

- mental opinion, dated April 16, 1952, are both-as Ban un-

reported (R. 391 ar and 404-14).

JURISDICTION. 185)

The jurisdiction of this Court is’ invoked under - Title :

28, U.S. C Sagtion 1254 (1) (62 Stat. ok oe

~_

‘QUESTIONS PR ESENTED.

1. Are wives competent to testify against their hus-

bands in a federal criminal case involving no personal

wrong to the wives? ;

2. Is it proper for the wives of defendants i in-a, federal

‘criminal case, although presumed to be prima facie in-

competent as: witnesses, to testify as to the very facts nec-

essary to establish their competency, “when those facts

constitute a major portion_sf the evidence with respect

to the principal issue to be determined by the jury?. .

3. Ave the-acts and declarations of a conspirator after

‘ the termination of a conspiracy and not in furtherance of

it admissible against absent co- conspirators on the ques-

tion of their intent to conspire?’

4, In.a federal criminal case, in which.the government |

es

3

is seeking to establish the invalidity of marriages cantractéd

inh foreign country, is not the burden upon the gevern- —

ment to prove such invalidity under the applicable for-

- eign law, and-does not that burden r{uire the government _

to prove the foreign law? -

5. . Where twe giarriages are shown, is it not the pre-

sumption that the second marriage is valid, and. is not

the burden on the party attacking such second marriage to

overcome the presumption that the first marriage was dis?

- solved? Is not an instruction which fails to indicate to

the jury that there is a presumption in favor of the second -

-marriage erroneous? .

“~

STATUTES INVOLVED. -

Title 8, U. S. C., Section 180a:

» Any alien who after Mareh 4, 1929, enters the United

States at any time or place other than as designated

by immigration officials or. eludes examination or ‘in-

spection by immigration officials, or obtains entry to’

the United States by a willfully, false or misleading

representation or the willful concealment of a mate-

rial: fact, shall-be guilty of a misdemeanor and, upon

conviction, shall be-punished by. imprisonment for not . i

more thar.one year or by a fine ‘of not more. than

$1,000, or by both such fine and imprisonment. —

Lille 8, U. 8. C., Section 220(e):

Whoever knowingly makes under oath any ‘false.

statement in any application, affidavit, or other docu)

ment required by the immigration laws or reg@lations

_ presgribed thereunder,-shall, upon conviction thereof,

. be fined not more_than $10,000, or imprisoned for not

- more than five reat, or both.

Sd

4

Title 18, U. S. C., Section 88 (the.revised Criminal Code

Title 8, U. Ss. C., Section 232:

coe

provision is 18.U. S. “Oe Section 371 _(1948)):

‘If two or more persons conspire either to commit

‘any offense against the United States, or to defraud

the United States in any manner or for any purpose,

and one or more of suc parties do any-act to effect

the object of the conspiracy, each of the parties Yo

such conspiracy shall. be fined not more than $10,000,

or imprisoned not more than two years, or ‘both.

ad

Notwithstanding any of the. several clauses of sec-.

tion 136 of this title, excluding physical#y and mentally

. defective aliens, and notwithstanding the documentary

requirements of any of the immigration laws or regu-

lationgy; Executive orders, or Presidentia! proclama-

tions fssued thereunder, alien spouses or alien chil-

dren United States citizens serving in, or having

an fionorable discharge certificafe from the armed

forces of the United States-during’ the Second World

War shalé if otherwise admissible under the immigra- :

-tion laws and if application for admission is made

within three years of Decerfiber. 28, 1945, be admitted

to the U nited States." * *

oS ~

~F

% Oy ns 5 e : Q.

ti e " STATEMENT.

| rere \

Petitioners were convicted by ‘a jury sitting. for the

United States District Court for the Northern District of.

[limois, “Eastern Division, upon an indictment which —

charged them with conspiring (1) to commit certain of-

fenses set ‘forth in five substantive counts, and (2) to |

defraud the United States of and concerning its govern-

mental funetion and right. to administer the. immigration

laws and the Immigration and Naturalization Service of

the Department of Justice, in violation of Title 1, U/S.

Code, Section 88. R. 4-9),

The fjve substantive counts charged Petitioners with

securin Sie illegal entry under the War Brides Act (Title

8, U. AC., Section 232) at. the Port of New York of three

aliens » Nuding the Petitioner Munio Knoll), by megns of

false and miNeading representations and the Sueseeadat #

: eae facts with respect to the marital stattis of the

aliens, tn violation of Title 8, U. S, Code, Section 180a, and

with making false statements .under ‘gall, Siitleraina-sush:

marital status in syne pers by the apn ae a

laws of the United State violation of Title 8, U.

Code, Section 220(c) (R. 9- 14). In effect, the ths ep

charged that the Petitioners had arranged ‘‘ostensible’’

marriages between discharged veterans and aliens for the

purpose of securing the entry of the aliens into the United

States under the War Brides At.’ | x

-At the conclusion of the vovernment’s case, Petitioners

moved_ for: acquittal on the substantive counts (R. 288),

and all five counts ‘were dismissed by the trial court .on

the ground that proper venue as to them had not been 7

-proved (R. 290). a1).

wos

i

3 tints ee

3 | 6 bein |

O25 2

” Petitioners, pertected appeals to the Couri’ of Appeais

_for the Seventh Circuit on the grounds, 2mong others,

that (1) -tire trial court bad erred, ‘in admitting into evi-

denee acts and declarations of co-conspirators. occurring

-after the alleged conspiracy had ‘terminated and not in

furtherance of it; (2) the wife of-a defendant in a erim-

inal ease is incompetent to testify against him; and (3)

2 the validity, of the marriages by which entry of the aliens

was accomplished under the War Brides Act ought he

determined gecording to the law of the country wheré the

marriages took place, namely, | varices bince the. govern-'

ment failed to prove that und’r French law the Marriages

were invalid, there was failure of Brook with. respect toa

vital element of the government’s case, sae =

qe

The Court of Appeals aftirmed the vonvictions, and. in so

doing it did not, dispute the essentiil’ facts upon “which

Petitioners resteg the above contentions. Rather the Court

below rejected’ Petitioners’ arguments \as to the law a

\ plicable to those facts, and in its two \opinions: stated :

var ‘lety of reasons for doing so. The original opinion of a

‘Court below is set out at R. 391 -400; the opinion denying

the petition for rehearing, at R. 404-14. i ;

“a

W ith regard to Petitioners ’ first argument, the Court

below, iv its first opinion, sido the patton that the acts

_and declarations of a conspirator after the termination of

the conspiracy and not in furtherance of it are admissible

against absenf co-conspirators on the question of their

intent to enter into ard_earry out the conspiracy (R. 399).

This ruling remained unchaifged in the second opinion of

the Court below. @ Dy

With regatthta Petitioners’ second contention, the Court

helow.seemed’ to agree, in its first opinion, that wives in al

eriniinal ‘ease are incompetent to testify ‘against their

chusbands. (R.°397), but coneluded that sineé the validity

7:

of the marriages was contested and was therefore a ques-

tion of fact for the jury, and since the jury by its verdict

resolved that question by finding the’ marriages invalid,

there were in fact no marriages and herice the rule as to.

tlie incompetency of wives did not arise. In their Petition

for Rehearing, as well as in their original Brief, Peti-

-tioners pointed out to the Court of Appeals that such a

ruling permitted the jury to become judges; not’ only of

the contested question of: fact relating to the validity of

the marriages, but also of the question of law relating to

the Gonipetency of the wives as witnesses. In addition, the

Petitioners argued that this ruling permitted the trial court

to invade the provinee of the jury, for, by permitting the

wives to testify, the court in effect. was raling upon the

ultimate question which the jury had to deeide, naniely,

the validity of the marriages. In-4ts second opinion, tle

(‘ourt below shifted its ground ‘and held directly that wives,

under the modern trend of judicial thought, are competent.

‘in criminal cases to testify against their husbands (405-13

With ree rard to Petitioner s’ third argument, the Court be-.

ow held, in its first opinion, hat a sham marriage, void un- ;

der the law of this country as against public policy, has no

vatidity, regardless of what the law may have been where —

contracted (R. 396). The Petition for Rehearing pointed

out ‘that a marri age vi alid where celebrated is valid every-

“where, unless it is contrary to the-laws of nature or Is.

declared by. positive law to be void, and that with. respect

to the marriages involved here no law of nature and no

positive law had been violated. In fact, it was pointed

out to the Court below that the majority rule eave validity.

to a marriage entered into for the purpose of accomplish-

ing some definite extra-marital object but pursuant.to an’

understanding that subsequently the parties would go

-_

their separate ways. In its second opinion,.the Court be-

aloha ea eo. :

low again shifted its ground, holding that: in the-aheonde

of proof the marriage laws ef a foreign country are pre-

su edsto be the same as those of the forum, since there

is Ro prestimption that they are different. The Court ruled,

_\ thérefore, that’ sinee the Petitioners had ‘not rebutted the |

presumotion that Frencl law was. the same as Illinois law,

and since under Illinois law- the marriages were void, the

marriages were void under French law (R. 414).

ont

le a oe a

- he - o °

REASONS FOR GRANTING THE WRIT.

The Court below, in holding that the acts and declarations

of a conspirator after the termination of the conspiracy

are admissible against absent co-conspirators to show

their intent, has created a novel doctrine of federal law

in conflict with the applicable decisions ‘of this. Court.

| This doctrine does such violence to standards Af justice

" in criminal cases as to require the exercise of the super-

visory power of this Court over the administration of

-criminal jtistice. eee &

The alleged. objective of fhe conspiracy charged was to +.

secure. the illegal entry of three aliens at the port of

New York (R: 5,. 6). Upon the attainment of that ob-

jective- the conspiracy terminated. Uwited States v.

Rubenstein (C, A. 2d, 1945), 151 F. (2d) 915, 9175 Fis-

- wick v. United States (1946), 329 U. S. 211. Despite. this

fact, the trial ‘Court admitted against all defendants evi-

dence of- acts and declarations of ‘each of them oce urring

‘outside the presence of the others and after the conspiracy

had terminated. This evidence was received’ against ail,

“over objection, on the sole ground (R: 66-69) that the in-

dietment charged -a subsidiary continuing conspiracy to

conceal in the followi ing language:

ae “Tt was further a part of said conspiracy that the

, ‘said defendants would at all times subsequent to the

formation of the ‘said conspiracy conceal such trans-

actions and acts aforesaid and would do such other,

further « and different acts as they might deem neces-

is

10

sary and expedient to prevent the disclosure to the

United States Immigration and Naturalization Serv-

ice of: the existence of said conspiracy vr CR. 7).

On appeal, the defendants ‘contended teat this Court in

Krulewitch v. United States (1949), 336 U. S. 440, had ex-

pressly rejected the grounds upon wide the trial “court |

had admitted such evidence. In that case, thi Court stated

at pp. 443-444:

“This prerequisite to aduiiaubuity. that hearsay

statements by some conspirators to be admissible

against others must be made. in furtherance of the

conspiracy charged, has been scrupulously observed |

by federal courts. The Government now asks us to

expand this narrow exception to the hearsay rule and

hold admissible a declaration, not made in furtherance

of the alleged criminal transportation conspiracy

charged, but ‘made in furtherance of an alleged im-

ie uncharged conspiracy aimed at preventing

detection and punishment. * * * We are not per-

suaded to adopt the Government’s implicit conspiracy

theory which in all criminal conspiracy cases would

-ereate automatically a further breach of the general

rule against: the admission of hearsay evidence.’’

‘ ’

The Court below completely ignored the Krulewitch case

and defendants’ arguments based upon it. Instead, it

‘adopted as # basis for the admission of this testimony a.

_ ground Ey ack it cited no authority and which was

~ never urged or argued by the government. ' It permitted

— ne + op ome ete He

1. -The government, on appeal, had attempted to distinguish the

Krulewitch case on the grounds that here the conspiracy to con-

ceal was expressly charged in the indictment, whereas in thai case

this Court dealt with an implied conspifaAcy to conceal. The Court

_ below apparently rejected this argunf/nt- for the obvious reasons+

that (1) whether the conspiracy to /onceal was expressiy or im-

pliedly charged was immaterial, d: (2), the proot here dis-

- closed that the defendants diseussed their participation in the al-

leged conspiracy with virtually any find everyone and hence there

was no proof G: aa effort to concé “Al at all.

i

'

the admission against all defendants of acts and declara-

tions of ¢uch of the conspirators after the termination of

the conspiracy, on the ground that such acts and declara-

tions were televant and. competent on the question of de-

fendants’ intent to enter into and carry ont the conspiracy.

In this comiection the Court below stated:

elie Bes ‘omiplaint is made that the court ‘permitted evi-.

‘dence of events im America subsequent. to-the ‘entries.

When. we remember that. this case turnegt almos# en-

tirely upon the question of the validity of the Parisian

, marriages and that whether they were vatid, in turn,

depended upon the intent of the parties at the time the

reremonies occurred, it is clear that not only what was

said and done prior to the time of the marriages, but

that the conduct of the parties and their statements

aftér they returned: t6 America wefe relevant and

competent for the jury to consider in determining

' whether, in fact they reflected an intent to have per-_

formed valid marriages or whether they tended to

show that the intent was merely to pretend to be

married.’ (Emphasis added. 2 (R. 399.)

The decision below is in Scbaieatia of the firmly estab-

lished principle that the acts and declarations of a con- |

spirator are admissible against absent co- conspirators only

when they oceur during the conspirdey and in furtherance.

‘of the common design, and it is f conflict with decisions

of this Court so holding. Arulewitch yw. United States

~ (1949), 336 U.S. 440, 443; Fiswick v. United States (1946),

399 T.. S. 211; Logan v. United States (1892),-144 U.S:

263. The principle +is itself, an exception to the hearsay

rule. Tile decision below how extends that exception so.

as to admit into evidence stateinents and acts of a eor-

spirator not in furtherance of the conspiracy and after

‘it has terminated in any case where intent: 4 a factor.

' -Sinee intent is a vital element in-virtaally every conspiracy,

_the force of the decision isto nullify the hearsay rule in

such prosecutions. It would even permit the use against

one conspirator of the .confession of another although

made outside tlie presence of the first if the confession

bears upon the’ question of intent, as most confessions

do. ee .

The decision below is sa obviously in conflict with the

decisions of other Cireuits that it appears that no argu-

ment ought be “required to demonstrate. how -patent is the

error complained of.' However, we point out that this

Court has already indicated: by its reversal of the Court

—of-Appeals for the Second Circuit in the Krulewitch case

that it will not permit such An extension of the exception

to the hearsay rule. In the de ‘cisio there. under review,

United States v. Krulewitch. (C. A. 24, 1548), 167 Fy (2d),

“943, the lower our had evidencéd in its opinion a belief-

that post-conspiraey statements were admissible. against

absent co-conspirators on’ the question of intent. That—

Court stated, pp. 947-48: |

‘But while it might concéivably be held that this

evidence was admissible to show appellant’s intent

[Unite de States v. Riihe nstein, 151 Fed, (2d) 91: D|, we

prefer to rest our decision on another ground. We

think that implicit in a conspiracy to violate law is

, an agreement among the conspirators to:eoneeal the

violation after as well as before the egal plan is.

consummated.”

Quite obviously this Court, by reversing, took the view

that neither ground set forth by the Court of Appeals

for the Second Circuit was sufficient to permit the intro-

duction of such év idence, since, this. Court would: have

affirmed the decision of the lower Court if either reason

——

4. a B. f. ‘Dowds v. & nited States ah A 4th, 1931 46 KF. 2d 417:

Clark v. Frited States (C. A. 5th. 19: 32), 61 F. 2d -409; Tofa--

nelly vo United States (Ci A. 9th, 1928}, 2R KF oq 580°. Molt

v. United States (CL A, Wth, 1937), 94 F. 24.90; Mora v.

United States (C. A. 5th, 1951), 190 F. 2d 749. 751.

Q

eo 13

or ground were correct. Helvering Vv. Gowran (1987), 302

U.S, 238; J. EB. Riley. me La, v. Commissioner of Internal |

_Revenne (1940), 311\U. S. 55. That the Court of Appeals

for-the Secend Circuit so leone: is quite evident from

its discussion in United States v. Hall (C. A. 2d, 1950),

178 F. (2d) 833, wherein it stated, p. 854:

“For, as we have been recently admonished, state-

ments by one conspirator are to be received agains?

others only when made in’ furtherance of a going’

conspiracy charged against them. Krulewitch\ v. U nited

States, 306 U. S.-440.’’

- This new breach ‘of. the general rulé against the ad-

i

mission of hearsay evidence created by the Court: below

should not be permitted to remain open. As seen, the -

‘decision of the Court’ below has created.a_ conflict: with

- decisions of this Court and the Courts of Appeals for the

.other Cireuits. As the concurring Justices observed

the Krulewitch ease, p. 455, the Court below has ashes

‘‘an ominous expansion of. tlie accepted law of conspiracy.”

As tn that ease, this Court ought to exercise Its super-

visory power over the administration of eriminal justice

and close the br each. ;

Tl.

In holding that wives are competent to testify against their

husbands, the Court below has decided an important

question of federal law in conflict with applicable deci- .

sions of this Court and in conflict with decisions of the

Court of Appeals for the Second, Third and Sixth Circuits.

For the first time in 60. vears, this Court is called fas

to review a decision of a Court of Appeals diree ‘tly holding’

that a wife‘is competent to testify against her husband

in a criminal case not involving a personal wrong agains t

her. The (durt below, in se deciding, held that ‘‘under

14

the modern trend of thought in this country, the spouse,

instead of being incompetent, is to be admitted as an

interested witness, whose erédibility is for the jury”’ (R.

412). $t based this conglusion on an application of Rule

26 of the Federal Rules of Criminal Procedure providing

that the compet eney and privtkeges of witnesses should be

governed, in the absence of an act: of Congress, hy the

principles of the common law. as. they may be interpreted

by the Courts of the United States in the light of reason

and experience (R. 413).

The final resolution by iia Court of.the decision below

is, of the utmost importance. If permitted fo. stand. it

will have broad impact in-almost every criminal ease in-

volving a married defendant. And since it is in direct

conflict, as is hereafter shown, with deci isions of this Court

and. Courts of Appeils for the Second, Third and Sixth

Cirenits, it creates a rule of evidence different from that

prevailing in those Circuits. Further, the decision below -

will have national effet on ‘the security ang confidence

of the marit ral Te lationship. and will dist fh domestic tran-.

“a? 2 . a he

quility. eon,

. ees / aca

A. The decision of the Court below is in _ conflict

with decisions of this Court. Abie? a

‘In Miles v. United 3 Stites (41881), 108 ety 304, and

Bassett v. United States (1888), 137 U, "8. yo this Court

decided that wives were not e npetent to testify against,

their spouses. ’ This was recognized hy this Court in Griffin '

v. United States (1949), 336 US Ss. 15, (14- 15, “where the .

Court stated: ; : SS .

! ¢ |

“Phe federal courts have held that: one spouse can-

not ‘testify against the other wnléss/ the. defendant

spouse waives the. privilege “6 0; * @ © Since this

C ourt in the F unk cuse te oft open “the question whether

15.

this rule should be changed, Funk v. United States, :

eee. oth, Gia" * *, it ‘presumably is still the

‘federal rule" for the lower courts.’

: oy iget ia ss.

B. The atin of the Court bciow is in direct conflict

with the decisions of the Courts of Appeals for the Second,

Third and Sixth Circuits. ,

Since: this Court deciden Funk vy. United States (1933),

"290: U.S. 371, that’ spousés were competent t@ testify for

each other, the Courts of Appeals for three Cireuits have

directly held ‘that a wife is incompetent to testify against

her. husband in a federal criminal ease. Paul vy, United

"States (C. A. 3d, 193 9), 79 FB. (2d) 561; Brunner v. United

States (C..A. 6th, 1948), 168 Br. (2d) 281; U nite d oor v.

“Walker (C. A. 2d, 1949), 176 FP (2d) 564, cert. den. 338

U.S. 891. Prior to tlie decision of the Court below, Sy

one Court .of Appeals had’ dee ‘laved otherwise, - Yoder v.

United States (C. A. 10th, 1935), 80 F. (2d) 665. But in

that case, as Judge Learned. Hand pointed out in United

States v. Falker, (C. A, 2d,.1949), 176 F. (2d) 564, .568,

the Court **did ot hie to dee ide? the point, because the

wife. had if fact been’ dy ‘orced, ‘and that made her testi-

mony competent under the old law.’

In the Walker ease, Judge ‘Hand, after reviewing the

authorities, wrote at page : D68 : ae

“We conélude therefore that we shorld await the

choice of Congress between the confli¢ting interests

involved, or such an overwhelming general acceptance

_ by the states of abolition of the privilege, as induced

ST Court to action in Fink v. © nited States,

sui e Sens penn added, )

16

C. The decision of the Court below conflicts in principle

with: the decision of this Court in Funk v. United States

and with Rule 26 of the Federal Rules of Civil Procedure.

Under .the Funk ease ‘changés in the law of evidened in

‘federal criminal cases are to be permitted #‘in the light

of fundamgntally ‘altered’ conditions,’’ 290 UL S. 371, 383.

This Court there announced that in making such changes

federal Courts are to lgok to reason and experience to

find the present rule. Experience is to be ascertained from.

the gener: ay trend of legislative and judicial opinion. How- ~*~

ever, with Yespeet to the rule making one spouse incem-

petent to testify against the other in-a federal criminal

ease, conditions have not been fundamentally altered. The

- climate of judicial opinion remains the same. © (See cases

collected, 11.A.-L. R. 2d 646 (1949).), Furthermore, reason

dictates now that the marriage relationship should be pro-

tected” against “hostile t testimony by one spouse: against

another as it did 10% years ago. Cf. Unite d State ‘s v. Blau

(1951), 340 U.S. 332, 334. Ze

The Court below found a modern trend in cases dentine

-with crimes against the person of the wife, such as pros-

titution—an exception at common law—and ‘ini the Yoder

ease rejected by Judge Hand in United States-v. Walker

_(C. A. 2d, 1949), 176 F. (2d) 564. An examination of state .

court dec/Stons, however, shows that a ‘‘mode m trand’? such

as moved ty C ‘ourt to action in the. Funk_case does not

_ exist. The modern rule is stated at 11 A..L. R. 20-648

(1249) : : af le 7

~

“Thus, a e ime_against one other than a spouse,

regardless of other circumstances, is held by: the’ great

weight of authority not to be an éffense which will

qualify.the defendant’s spouse-to testify for the proxe-

eution.”’ :

~

tie ae ee ee,

Cases from only two states are cited in opposition to this

" proposition, while cases from fourteen states are eited in

support of | oe oe eee

The decision ofthe Court below, therefore, by announcing

a new rule with respect te-competency of spouses to testity

against each. other in criminal cases, in the face of an

overwhelming weight of authority to the contrary, con-

fliets in principle with the decision of this Court in®the

Funk case, and with Rule 26° of the Federal Rules of

Criminal Procedure. ter tra

‘1. Decisions by the Courts ‘of Arkansas, Delaware, Georgia,

Michigan, Missouri, Nebraska, Nort! Wrolina, Ohio, Oklahoma,

- South Dakota, Texas, Washington, Wes Virginia, and Wisconsin

are ¢ited in support of the above sfiated proposition. In addition’

to decisions in some of these statés, decisions by eourts in Colorado,

Counecticut, Minnesota, Mississippi, Pennsy Ivania, Tennessee and:

Utah are cited .in suppert of the. proposition that: “It has ‘also

been-held by a majority of courts that a erinie by one spouse

against the other, even though it involves extreme personal vio-

lenve, will not, if committed prior to the marriage, render the i

jured spouse competent as a witness against his or her wife ‘or

husband. 1,A. L. R. 2d 649.7: And decisions by courts in ot /

nois and Virginia are cited in support | of the pr. position that:

‘* And, finally, where a crime committed by one spouse is emen-

tially’ an offense against . the property of the other (for example,

Jayson, forgery, or the ft), testiniony of the latter is generaTly de."

/ Aared not to be admissible in evidegee against the defendant:”’

“431A. L. R. 2d 650. : sa

i. : \ mani

’ 4 / ; ; e >

j

‘

oe Cot eaten

The Court below, in holding that the marriage Jaws of

France would be presumed to be the same as those of ©

Illinois, that it was thérefore the duty of defendants to

show them ‘to be different if in-fact they were, and that

in the absence of such a showing the marriages were

void under French law, decided important questions of

criminal law and of conflict of laws in a manner contrary

to settléd principles, iri such a manner as improperly to

shift the burden of proof to the defendants, and in con-

. flict with decisions of this Court and of Courts of Appeals '

For the Second, Third, Sixth, and Ninth Circuits.

The marriages in which the defendants participated and

which the government aileged to be invalid took place in

Paris, France (R. 60, 199, 247). TheCourt below conceded

‘that the contest in the trial court centered about two factual

questions— —“Did the defendants conspire and if so,- did

‘the Government prove by competent evidence that the

marriages were in fact invalid?”’ (R. 392.) As to the latter

question, thie Court below stated that if the defendants

‘hadbona fide intentions to éntér into the marital rela- /,

tion, theyshad_g perfect right to invoke the provisions of

- the War Bride Act in gaining access to this country. We

are confronted then with the crucial question of whether

the evidence justified a finding that the so-called marriages

were void.’’ (R. 395-6,) re 7

~ At the trial despite Petitioners’ argument that the bur-

den wfs on the government to. prove the law of France

with regard to the invalidity of the marriages, the trial

court stated that Mt “would assume “the law of chee,

France. is the same as the law of Chicago, Illinois.”? (RP.

189.) Consequertly, no evidence as to “French law was

introduced. by the Government.

”

19

A. The ruling of the Court below that the marriage.

laws of France would be presumed to be the same as those

- of Illinois conflicts with applicable decisions of this Court

and of the Courts of Appeals for the Second and Ninth

Circuits. eb see oe

- In its original opinion the Court below affirmed the’ ruling

ofAhe’ trial court.on+the question of French law but on

the different ground that “2 sham marriage, void under.

- the laws of this country as agains

publie policy, can

have no validity. Lincoln 'v. Riley, 217 Ill. App. 571.’

The petition for rehearing poisted out that Lincoln. v:

Riley referred only to a public policy which was declared

by statute and that since in the case at bar there was no

such. a publie policy,’ the validity of the marriages

should have been determined by the law of se space where

‘they were contracted, 2. e:, France.' O “i Sate. “He

The Court below ther eupon, ly its second opinion, shifted

its ground buf again reached A same result. This it did |

by ruling that the marriage laws of a foreign country,

e . S - S eo!

in the ‘absence-of -proof to the contrary, are presumed. to

be the same as those of the foru and that the burden

of showing the contrary was on p¥titioners. This ruling

conflicts with decisions of this Court, holding that no

such presumption may be e1 ngaged in, particularly ‘where :

the law of th@ féreign country is derived from the civil .

law rather tha common law regions.

The leading case on this subject is Cuba R. Co. v. Crosby.

(1912), 222 U. S. 473, -in which this Court held that the

come ee Corer ee ates a a

ey hae f this ‘gonnection the petitioners in their briefs and peti-

tion for rehearing cited U.S. v. Rubenstein, (C. 2d 1945), a.

Fed. 2d 915; Franzen vy. E. 7 DuPont de Nancor. & Co. (C.

3d,°1944), 146 Fed: 24 837,-ynd Toshiko Inaba v. Nagle (C1 A

— 8th, 1929) 36 Fed. 2d 48f. ‘These cases established that the valid-

ity of a marriage must be determined by the 1 law of the place were

contracted. ’

| Seba .

burden was on the plaintiff to prove that he had a right

to recover under Cuban law and that in the absence of

such proof it would not be presumed that the Cuban law

was the same as that of the forum. See also Church v.

Hubbart (1804),,2 Cranch. 287; United States v. Wiggms,

- 39 U.S. 334.

i

The decision below in this respect is also in conflict with

decisions of the Second Circuit in the cases of Cosulich

Soscreta Triestina Di Navigazione v. Elting (C. A, od 1933),

66 Fed, 24, 534, 536; Uj S. ex rel. Jelic v. Dishict Director

of’ Immigration (CG. A. 2d, 1939), 106 Fed. 2d, 14; Ozanic

v..U, 8. (C. A. 2d 1948), 165 Fed. 2d 738, 744; and Commis-

sioner v. Hyde (C. A, 2d, 1936), 82 Fed, 2d, 174. .

nm the first of these cases the question of an alien

; woman ’s admissibility to the United States’ depended: upon

the validity of her marriage by proxy th Italy to a man

then domiciled in New Jersgy and a citizen ef the United

States. No proof on the law. of Italy on proxy marriages

was introduced and the Court declined to presume it,

stating that ‘“‘It would be a violent presumption that [the -

law of Italy on that subject]. corresponded with our

own.”? , is >

> < hd 7

In the Jelic case the Court held that a- failure by the °

‘Director of Immigration and Naturalization to prove the

German law relating to. forgery, Vv itiaged a finding of moral

turpitude by him : against the respondent,

In the Ozanie case the Court held that there was no

presumption that the law of Yugoslavia as to the measure

of damages was thesame as the United States, and finally

in the Hyde ease, the Court of Appeals for the Second

Cireuit ruled that theré is no presivfiyition that Frene 1 law

is the same as that of New York with respect to the

construction of a trust agreeme™ executed in Franee.

Further, the decision below also ec unots with the de-

cision of the Court of Appeals for the’ Nuith Cireuif in

2g 3 er Se

Gordon v. Commiasione iy (CL A. 9th, 1935), 75 Fed. 2d, 429,

430, that there is no oe that Canadian law as to

the rights of a husband and wife is the same as California

law. | sei

To summarize the matter as plainly as “possible, the

rulings below~ (1) excused the government from proving

what would otherwise be an essential fact; namely, the

law of France with respect to the validity of the ‘mdr-

riages involved; (2) pronounced ‘the law of France to be

the same as ‘thgt of Illinois; (3) placed upon the. defend.

ants the burden of showing any differences betw een Freie ‘h

and Illinois sires la law. Ley |

| ie showing

This position wa taken in the absence of

that it would he improper of virtually impossible for the

eovernment to be- required to prove French law, and ji

fact the: Assistant United States Attor ney indicated that

he had looked into the French law to some extent (R. 189).

And most startling of, all, it was taken with respect tothe

laws of a country whose legal’ systein has very little in

common with our own. As the cases cited above indicate,

the limits even in civil cases, of permissible presumptions

as to foreign law are quite narrow w here a civil law country

such as France is involved.) he limits are even narréwer

when the question is something Pea than a routine on

fee E. Geli € Co. v. Cunard S. S. Co. (@: A. 2d, 1931), 4§

F.2d, 115; 117. _ Here, quite cae the question of the

validity of the marriages was BE ee but simple, and in

fact it is one upon which there is cor siderable divergence

among the several states, | :

The authorities cited by the Court below in support/of

its ruling are singularly inapposite (R. 414). Not one of

them is a‘federal criminal ‘ase. Not.one of them is a crim. .

inal case involving the Jaw of a foreign country. Not one

of them presumes that the marriage law ef a foreign coun-

+ < wre

‘.

eee

g>

‘

4

74° : on,

24 iia 3

. a @

“aby urde n of cout in criminal eases and permits pre- fe

sump ions us ‘te the existence of facts essential to con-

vietion. Sapett adh 79:

=e .% »

7. | desire’ for ‘the develégment of: a neva body of

at of ev idence as expressed in-Rule 26 of the Bederal”

Rules of: ‘Criminal Protedure has een dealt a hard hlow. ;

The need.’ stich uniformity is particularly ~vital in*the

field: of-conspiracy. since it “is there that the government

may nearly -always choose the venue. This is strikingly

apparent "in*this case where,.in addition to the conspira

the indictment contained, five substantive counts which ie

were dismisséd because the proper venue as to ther lay i in

the Southern or Eastern District’ of New York.

v bringing the indictment in the NortherheDistrict of

. prois + rather ‘than the Southern . or Hastern District of

fo

haye ‘prevented the’ adfnission of all of the evidence here

iplained of. This court ought not place ifs imprimatur

on such practices which can exist orily: hecause of lack

of uniformity. The errors in the decision below. require}

the exercise: of the supervisory power: of this court over),

the adininistration of erimine il justice. .

We earnestly urge that this petition for 3 a Ww rit of Cer-

tiorari be granted. |

°

£

: Respectfully. subipitted, n

& :

: >See . Awntuony Brapiey Espey, ;

Ss. __ . Ricwarp F. Wart,

BERNARD, WEISSBQURD,

Counsel for Retitioners.

Josern L. NELLIs, 7 BA .

DUNNING, Nevius & Lunpry, : atcee

-of Washington, D. C., Fiero le

Of .Counsel.

evidence aieaiha ifthe So Second Circuit, which seat

e .