Petitioner for ReHearing — Lutwak v. United States

LIBRARY

SUPREME COURT. US

IN THE |

- Supreme Court of the United States.

‘OCTOBER Tens, 1952. < |

eee \

* No. 66

° ‘ f- ;

- MARCEL MAX LUTWAK, MUNIO KNOLL, ax

Ne ' REGINA TREITLER, |

ees Dag e ° Petitioners,

vs.

UNITED STATES OF AMERICA,

-Respolttent.

-ONW RIT OF CERTIORARI TO THE U NITED STATES COURT OF APPEALS .-

FOR THE SEV ENTH CIRCU IT.

PETITION FOR REHEARING. .

' AnrHoony Brapiey Esen,

Ricwarp F. Wart,

Bernarp WEISSBOURD, . °

oe: _ Counsel for Petitioners.

Josepa L. NEuis,

Dunstino, Nevius & Lunpry,

Of Counsel.’

— -——- —E te n= 2 mnenree wee —_

~ Supreme Court of the United States |

{

“Ocroner Tr RM, 1952. ; os |

o f No. 66.

. Ze.

MARCEL MAX LOTWAK. MUNIO. KNOLL, AND |

vi RE GINA TREITLE ‘Saat |

wes Rg tna Par Petitioners,

: ‘UNITE D STRATES OF AMERICA,

- Respondent. eh

ON Ww RIT OF CERTIORARI TO THE, UN ITED STATES COURT OF APPEALS

. FOR THE SEV ENTH CIRCUIT.

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- PETITION FOR R REHEARING. 2

" O

To ‘the Chief. Justice ee the Associate Justices of the

_ Supreme Court of the United States:

Petitioners respectfully pray for a rehearing in this

cause and a recorsideration of this Court’s opinion of

_ February 9, 1953. In support of this. petition, petitioners

"state to the Court as follows:

&

INTRODUCTION.

ey

Because the decision of this Court has the highest prece-

dent value, its impact in the fields of evidence, conspiracy,

and trial tacgics is sweeping. \New and @itherto unthought

Oo”

Ca.

- of rules of law have been adopter which revolutionize the

entire’ concept of. criminal responsibility and make con- -

viction by association a real possibility, - : While investi-

gating committees have heretofore extensively: engaged in

. (such practices, persons. judicially accused of crime have

‘until now always been secure in their belief that they °

_ could never: be convicted’ by ev idence of acts neither per-

formed now autherized by them. This decision, unless re

pare, de destroys that basie idea which has always

clothed our criminal’ jurisprudence. Under the opinion

of this Court inthis case one charged with participating

_ in a conspiracy may now be convicted by evidetice of acts

performed by another alleged conspirator after the ter-

mination of the conspiraey, merely upon Q showing that

the acts of the other were relevant in some respect to the

conspitacy: ‘In announcing this rule, this Court lias over-

rujed its own pronouncements to the contrary, repeated _

time and time again in over a’ Latter years of its history,

and it has ignored’ or abandoned the further rule that

evidence to be admitted «must -be not only relevant ‘but

also competent. ;

Unless this rule is reconsidered, sterline changes in |

_ the admission of evidence have been, authorized, proving

that bad cases indeed do make bad Iaw. . Thus, where one

is charged with having. been associated in crime’ with an-

other ‘he will have admitted against him, merely becausé

it is relevant, the flight, escape, or attempted suicide of that

other person. By the same token he may be adjudged

guilty because of the introduction of evidence that. the

one with whom he is charged’ with having associated y

crime bribed, influenced, or intimidated a witness, juror,

_or prosecutor. He niay find himself in prison: behacas that

other person destroy ‘ed or fabricated evidence. Proof Shat

his associate committed like or similar crimes also un

the rule announced by: this o ourt will become admissible .

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against him. All of these matters are Rearly relevant,

but in the past have been limited jgp the one«dloing the act.

This decision now opens wide the door so as to bind by

these acts all persons charged with association in the

common enterprise. *

Further, this. Court has affirmed these convictions upon

a theory of the case nev advanced by. the government

3. below and never considered by the jury, the trial court, or

the Court of Appeals. The theory upon which petitioners

were tried and under Ww hich evidence was admitted against

them would here require. a reversal. Nevertheless, if this

decision is not reconsidered, petitioners aust serve two .

‘years in’ prison for-the commission of an effence never

passed upon by the jury convicting.them, and against which

they never interposed a defense because of their reliatice

upon the failure of the government properly to prove the case ,

against them in thasetting adopted by the government and ~

the trial court. This is entrapment of the worst sort and

offends against every concept of due process. »

°

Finally, the jury was instructed that the conspiracy, con-

tinued up to.the date of the indictment. This Court’s de-

‘cision, however, jeanouneed that the conspiracy terminated 7

two and one-half years earlier. Consequently, the jury,

under the ‘instructions given it, could have found peth

_ tioners guiJty on a finding of ‘‘overt acts”’, which, although

-~eharged Mm the indictment, this Court has found not to be

in furtherance_of the conspiracy.

pon itioners realize that petitions for rehearing are rarely

granted; yet here, because of the widespread consequences

. which must follow. this decision, they fervently hope that

‘this Court, in its role of final dispenser of justice,. will see

fit to close the Pandora’s box which this case has opened.

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FOR PURPOSES OF THEIR ADMISSIBILITY INTO EVIDENCE

POST-CONSPIRACY ACTS ARE NOT DISTINGUISHABLE FROM

POST-CONSPIRACY DECLARATIONS. SUCH ACTS AND SUCH

. DECLARATIONS ARE INCOMPETENT AS TO ABSENT CON-

_ SPIRATORS SINCE NOT AUTHORIZED. | —

The handling of petitioners’dbjection to the general

‘admission of acts and declarations after the termination

_of the conspiracy—by the government, by the trial court,

and by the Court of Appeals—constitutes a remark-

able example of legal broken field running. At the

trial, relving upan the charge in the indictment of-a-sub-

-sidiary coyspiracy to conceal, the government offered evi- ©

dence of acts and declarations occurring after December

5, 1947. The trial court admitted much of this evidence

against all the lefendants on the theory, advanced by the

governme@t, that it was in furtherance of the alleged con-

spiracy to conceal the’commission of the crime (see, @. g.,

R. 66-67). Neither the governmenf “prosecutor nor the.

court, however, quéstioned the general rule prohibiting the

admission against all conspirators of acts and declara-

tions occurring after the termination of the conspiracy. .

Both the prosecutor and the court, impliedly conceding the

- rule, avoided its applieation by finding that the conspiracy ©

had not términated. o

On appeal to the Court of Appeals,. the conspiracy to.

concéal theory was quietly dropped by both the govern-

ment and the court. Thegovernment thcre argued that

since the conspiracy contemplated the procurement of di-

vorees after the entry into the country, the conspiracy

continued’ until those divorces hag been: obtajied (Gov’t

Br., Ct. of App., pp. 38-40; Answer to Pet. fot Rehearirg,

Ct. of App., pp. 19-20). But the Court of Appeals de-

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clined to adhere either to the ‘‘conspiracy’ to conceal’’

“theory or the ‘‘conspiracy. to obtain divorces’’ theory. _

- Rathenit stated a quite different reason for upholding the

admission of such post-conspiracy evidence, without in any

way questiening the rule prohibiting the admission gen-

erally of post-conspiracy acts ag well as declarations.

The Court of Appéals wrote (R. 399): |

Complaint is made that the court permitted evidence

of events in America subsequent: to the, entries.’ _

‘When we remember that ‘this case turned almost en-—

tirely upon the question of the validity of the Parisian

marriages and that whether they were valid, in turn,

depended upon the intent of the parties at the time the

- ceremonies 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 °

after they returned to America were relevant and

competent for the jury to consider: in ‘determining

whether: in fact, they reflected an intent to have per- .

‘formed valid. marriages pr whether they tended to

show that the intent was merely to pretend to be

married. (Kmphasis added.) gee

In its Brief in Opposition to the Petition for a Writ of

Certiorari, however, the,government did not seck to de-

fend the.Court of Appeals’ intent theory. Rather it re-

verted to the conspiracy to conceal the erime charge of the

indictment, emphasizing that the ease differed from Krule-_

‘witch v. United States, 336 U.S. 440 (1949), in that the con-

spiracy to-conceal was charged here while only implied

there. It. also -argued that the conspiracy ‘included’ an _

agreement on the part of the husbands-and wives to live.

apart after they came, to the United States (pp. 19-22}. gi

In its main Brief (pp. 36-42), ‘the governnient advanced

the additional contention that the prohibition against’ post-

conspiracy evidence applied to declarations only, and not

to acts. This was the first time. that: any such. distinction

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between acts and ‘declarations had been advanced> the

prosecutor in.the trial court, the trial judge, ‘the govern-

ment in the Court of Appeals, and the Court of Appeals i in

_____.two opinions never once questioned the basje rule an-

- nouneed in Logan vy. United States, 144 U. a (1892).

In fact the government in its Brief-in Opposition to the

Petition for a Writ of Certiorari, while not disenssing the

* rule explicitly, conceded its 2 para to both acts and

declarations in asserting, at page 22, that ‘‘the conspiracy

was still operative at the time of all acts of statements of

conspirators’ admitted in evidence ‘against .other partici-

‘pants. 99

Moreover, these varying ‘views disclose that the con-«

‘spiracy terniinated at different times in different courts.

Tn the trial court, there was a continuing conspiracy to

conceal. But the Court of Appeals, in adopting the ‘‘in-

tent”? theory, apparently, conceded that the conspiracy a

minated at tha date of last,entry. The government, of

course, some shift in emphasis, always assested

: thatthe conspirhey éontinued beyond December 5, 1947.

Thus, in the one respect in which it has been consistent, the

- government has been consistently wrong. Four this Court’s

5 opinion now finally decides, as petitioners have contended

‘in all.courts, that the conspiracy. énded on December 5,

_o tA. This Court announces a new basis for the general

admission of post-conspiracy acts, however, and finds that

», thé admission of one post-conspiracy declaration against

f all is harmless error. Thus as to declarations, at least,

| this Court declines to adhere to the view of the Court of

Appeals. And as appears below, this Court’s reasoning-

goes far beyond anything announced by the courts er con-

tended by the government below: tt holds that post-con-

spiracy acts, if relevant, are admissible generally—against

actor and mon-actor alike.

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A. 4 =

In determining that the conspiracy ended on December

5, 1947, the date of entry into the United States of the

third alien, Leopold Knoll, this Cqurt rejeets the-eonten-

tion advanced by the government, and spelled out in the

indictment, that there was_a subsidiary conspiracy to con-

ceal the conspiracy which continued beyond December 5,

1947, since, although alleged,.such a couspiracy was not

‘Snved Consequently, the acts and declarations of: the

conspirators after that date could not be admitted into

- qvidence generally against all conspirators on the theory

that they were in furtherance of the subsidiary conspiracy

to conceal, » = 7°: mn ne ;

Nonetheless the Court poncludes that acts taking slate

after December 5, 1947 were properly admitted against

all the conspirators, insofay as they were ‘ relevant to show,

the-spuriousness of the marriages and the intent of the,

parties in going through the marriage ceremonies e 6 ek

(Op. p. 13). Or, as the Court expresses it in the follow-

ing paragraph, ‘tinal acts were ‘‘relevant to prove the

conspiracy * * *’’ (Op. p. 14). aes

To reach this conclusion the Court draws a sharp dis-

tinction between acts and decla rations, Declarations, be- _

ing subject to a hearsay objection, are, according to the»

Court, only admissible against a co-conspirator when in

furtherance of the conspiracy. This Court thus recognizes

that such declarations must ‘be competent as well as rele-

vant: Yet apparently competency is not to be considered

where post- -conspiracy acts are under scrutiny, since this

Court states that the cases dealing with declarations, such

ds Krulewitch v.- United States, 336 Als S. 440 (1949), |

and Fiswick v. U ‘nited States, 329 U. S. 221 (1946), have

‘‘tio application to acts of a sotieieatae or others which

” were relevant to prove the conspiracy.”’ The Court then

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indicates that the language in Logan v. United States, 144

U. S. 2638, 309 (1892), which refers to both acts and vt

- Jarations as being covered by the rule is dictum, ®hif

—toverlooks the faet that the objection. to the ay oe

is that they are hearsay. This reason is not. applicable

- to acts whieh are not intended to be a means of expres-

_ sion”? ‘

It is. submitted that: the Scart in thts distinguishing

“between acts and declarations, has miseoneeived the rule

excluding such evidence againsé absent co-conspirators af-

ter the. termination of the conspiracy and has, in effect,

overruled more than a hundred. years of settled law, re-

-peatedly announced by ,this and other federal courts, and

as so understood applied in. numerous cases.

pee a:

Preliminari iy, itsis necessary to emphasize that in a

conspiracy trial, despite the form in which the indictment

_is drawn, each alleged conspirator is on trial as ‘an indi-

vidual. His guiit or innocence is to be determined by the

evidence-asto him. If the jury is riot convinced that such

evidence implicates him, he is entitled to an acquittal.

. Whether a-defendant: entered into any illegal agreement

is to be decided solély from what he said and did- never

Fe Ae

from what someone else said and did.

As: aBeneral proposition, the declar ations of a defend-

ant constitute admissible evidence as against him. Whether

or not there is a heaisay objection to the introduction of

such declarations depends upon the manner in which they

are sought to he proved. But once they are admitted against.

" the declarer, he further question which arises in a con-

~ spiraey trial is whether such declarations may properly

be admitted as against one or more co-defendants.

ee

That question does not pose any hearsay problem. Rath-

er it presents a straight-forward’ question. of authority.

For, quite obviously, whether. what conspiggtor A has said,

whith is in iidcnne against A, may also go into evidence

against conspiratpe B depends upon whether there is -

anything to indicate that B authorized A to-make such a

- Statement. This, then, is the significance of the formula--

.. tion ‘‘in furtherance of the conspiracy.’’ For if A and B;

along with others, have agreed to a program:-of action in

such a fashion as to. bring a cgnspiracy into being, then

A, B, and each of the others ‘have mutually authorized

each other to carry out the scheme. What A then says, in

furtherance of the scheme, he says as the agent for the

others, and at the trial what A said constitutes s competent —

evidence against B and the others, as well as against A,

SUP ENE RE NEY ?

= declarer. | ,

* Thus to get A’s declaration into evidence against, B, two

determinations must be made; first, it is necessary to con-.

‘elude that. the declaration is ‘admissible against A™ and

second, once it is held ‘to be admissible against A, it is

necessary to find that a gonspiracy existed and that the

declaration was in furtherance of it, since under those

circumstances it follows that B authorized A to say what

he did or,.put another way, that A made the statement as |

the agent for B, thus making the statement competent.

Analyzed in this fashion, it is .plain-that any hearsay ob-

jection can arise. at the first stage only, that is, when noth-

ing but the admissibility of the statement against the

_ declarer is involved. At the second stage; the question in-

-volves a problem of the law of agency.’ At that stage if

‘has absolutely nothing to do with hearsay.

' It likewise appears, from this analysis of the matter, that

Jn determining the problem at the second stage, i.e., wheth-

er what A said is coliyetent as against B, the- considera-

10

tions are identical regardless of whether the evidence

offered is A’s declaration-or A’s act. . For, the hearsay

problem, if any, having heen resolved at the first stage,

‘the subsequent . determination relates solely to A’s auth-

ortty to act.or speak for B. Depending upon the nature of

the tharge, therefore, the problem is: Was A the agent for

B and was he acting in the course of. his agency in saying

or doing what he did? Or were A and, B co-conspirators

and was what A said or did in furtherance of the con-

‘spiracy? Thus in an agency ‘case the basis of a ruling

that the evidence as fo A, the agent, may be admitted

against B, the principal, is the determination that the ac-

tion or statement was ‘‘within the spe of the agent? ’s

authority’’, while in a cons iracy case the same problem

is formulated in terms of whether the action. or statement

was ‘‘in furtherance of the conspiracy.’’ Apart from the

difference in . language, however, the problems and their

solutions are identical.

¢.

The text-writers,’ both in this country and in England,

have analyzed and discussed the problem in. this fashion,

and so has this Court and numerous lower. federal courts.

-» The coupling of ‘‘acts’’ and ‘‘declarations’’ in these texts

and decisions overlooks nothing; rather it invelves giving

_@ proper recognition to the fact that the basic problem.

relates to the law of priheipal and agent. In fact, the

definition of a conspiracy as ‘‘a partnership in crime’? is

sufficient, without more, to reveal that the ‘underlying is-

sues of relationship, dnd guthority are problems of agency.

<. The following authorities are typical:

Underhill, Criminal Evidence (3d ed. 1923), § 718, pp.

961-63: or |

When men are associated for a common purpose,

and with a-common object in view, the law, presuming

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that the benefits, “if any, which may ensue from their

accomplishment will be shared by all, impresses upon

the conspirators or -partners, eollectiv ely, thé attribute >

of individuality so far as the common design is con-

cerned. No snes of: the combination will be per-

mitted to escape the consequences of the aetions or

words of his associates. Such acts and deciarations

are also admissible on:the grounds of agency. But the.

acts and declarations in order to be admissible must’

have been made in furtherance of the common design

or must accompany and explain such act or dectaration.

Acts and declarations which do not relate to the con-

spiracy or which aré not im- furtherance thereof are

not admissible aver objection. (Emphasis nei

Phipson, The Law of Evide nee (8th ed. 1942), p

So, acts and declarations aftcr the ev ent a

for has happened, are nv: generally receivable, since |

’ these eannot.be in furtherance of the common purpose.

Wigmore, Evidence (Vol. IV), $1079, pp. 130-31:

The tests therefore are the same, whether that which*

is offered is the act or the admission of the co-con-

- spiratoy; in other words, the question is purely one of

criminal law, or of conspiracy as affecting Joint civil

liability, and its solution is not to be sought in any -

prineiple of Evidence. ee added.)

See also, to the same-effeet, Greenleaf, Law of Evidence

_ (1897) Vol. I, § 111, pp. 174-77; Stephen, A Digest of the

Law of Evidence (Fourth Eng. ed 1892), Art. 4 (Acts of

_ Conspirators), pp. 10-1]. )

es The language ‘‘acts and declara¥ions’’ has been used

many times by this Court and in fact appears to be: a

formulation developed from Mr. Justice Story’s opinion

in United States v. Gaoding, 12 Wheat. 460 (1827). The

problem there had to do with evidence as to declarations

of the master of a ship which were sought to be intro-

duced against the ship-owner, who was on trial for viola-

)

tion of the slave trade att. In answering the problem

posed by the offered evidence, Mr. Justice Story wrote as

follows, at page 469: )

Whatever the agent does, within the scope of his

authority, binds his principal, and is deemed his act.

It must, indeed, be shown, that the agent has- the

authority, and that the act is within its seo but ©

these being conceded, or proved, either by Pe toictic }

of business, or by ‘@xpress authorization, the same |

conclusion arises, in ant of law, in both cases. Nor

_ is there any authority f fining the rule to civil

eases. On the contrary, it is the known and familiar

principle of criminal jurispr udence; that he who com-

mands, or procures a crime to be done, if it is done,

is guilty of the crime, and the act is his act. This is:

so true, that even the agent may be innocent, when

the procurer or principal may be convicted of guilt,

as in the case of infants, or idiots, employed tg ad-

minister poison. The proof of the command, or pro-

curement, may be direct or indirect, positive or cir-°

_ cumstantial; but this is matter for the consideration

of the jury, and not of legal competency, Sa, im cases

ee conspiracy and riot, when once the conspiracy or

combination is established, the act of one conspirator,

in the prosecution of the enterprise is considered the

act of all, and is evidence against all. Each is deemed

to consent to, or command, what is done by any other

in furtherance of the conimon object. (Emphasis

“added. )

In applying this decision in American Fur. Company v.

Umited States, 2 Pet. 358 (1829), ‘Mr. Justice W ashington

wrote, at- page 364:

.

The principle asserted in the decision of that point,

‘and applied to the case was, that whatever an agent

does, or says, in reference to the business in’ which he

is at the time employed, and within the: scope of his

authority, is done or said by the principal and may

be proved, as.well in a criminal as a civil case; in like

mannef as if the evidence applied pe rsonalty td the

principal. (Emphasis added. }

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In Logan v. Unitéd States, 144 U: S. 263,°309 (1892),

Mr. Justice Gray, whe® stating the “ale which this Court

finds overlooks the hearsay objection to declarations, cites

the Gooding case. Mr. Justice Jackgon, in Brown v. United -

‘States, 150 U.S. 93, 98 (1893), likewise uses the formula-

’ tion ‘facts and declarations”? , citing Mr. Justice Gray’s

opinion in the Logan case, in addition to otheréauthorities.

In Wiborg ¥. United State s, 163 U. S.'631, 657 (1896), Mr.

Chief Justice Fuller states the rule as announced By Mr.

Justice Washington in the, American Fur Company case.

And more. recently, in Fiswick v. United. States; 329 U.S.

211 (1946), where the problem had to do. with statements,

“Mr. Justice Doulgas announced the rule as follows, at page

217:

While the act of one partner in-crime is admissible

against the others where it is in furtherance of thé

a

eriminal undertaking, Pinkerton v. United States *** ©

all such responsibility ig at an end when the conspiracy

ends. Logan v. United States, 144 U. S. 263, 309. *"* *

Brown v. United States, 150 U. S. 93, 98. wae (Em-.

phasis added.)

Ste also the language used by Mr. Justice Brown in -

Bannon v. United States, 156 U. S. 464, 469 (1895),. and

by Mr. Justice Brewer in Clune v. United States, 159 U.S.

290, 593 (1895). And ef. Queen v. Blake and v6, 6 Q. B.

126 (1844).

The lower federal courts, citing one or more of these

Supreme Court opinions, have likewise adhered to the

formulation ‘‘acts and declarations?’, and. their decisions

are indicative of a: consistent recognition that the prob-

"Jem is one of ageney. ‘For example, see United States v.

Gardiner, Fed, Cas. No. 15,186a, 25 Fed. Cas. 1245, 1252

emt 64 D: (*, 1853); Heard v. United States, 255 Fed, 829,.

834 (C. A. Sth, 1919); Me rril v. United States, 40 F. 2d

315, 316 (C. A. Sth, 1930) ; AMinner v. United States, 57 F.

aie ae Sek

2d 506, 511 (C. A. 10th, 1932).. In United States v. Leka-_

_.cos, 151 F, 24.170 (C. AA. 2d 1945), rev'd sub nom. Kotteakos -

. v. United States, 3g8 U. S. 440 (1946), Judge Learned .

_-Hand wrote, at pag V2: ps

The acts and declarations of confederates, oink or

future, are never competent. against a party except in

so far as they are steps in furtherance of a purpose

common to him and thems Declarations are no. different

from other acts; ‘they. become competent only when

they are uttered in order to accomplish the common

purpose. (Emphasis added.)

‘ The same view is apparent in the opinion in’ Sabbatino

v, United States, 298 Fed. 409. (C. A. 2d 1924), where

Sabbatino claimed that the evidence did not connect him

sufficiently with ike others to justify finding that he was

a conspirator. His conteation was that most of the evi-

dence against him related to his acts after the conspiracy,

to bribe federal prohibition officers, had terminated. In

affirming, Judge Hough | wrote, at page 412;

Under this head of argument the well-known doc-

trine of the Logan Case, 144 U.S. 263, 12 Sup. Ct. 617,

' 36 L. Ed. 429, is invoked. The decision does not apply

here, for, admitting fully that the acts or declarations

of one conspirator, mie after the conspirator has

ended, are not admissible against the other conspira- ;

tors, and admitting (but not holding) that many, if not

most, of the acts of Ralph Sabbatino given in evidence

oveurred after the conspiracy had ended, it remains

untrue that a conspirator may pot be convicted by his

own acts, no matter when those: acts occurred: The

prohibition is against affecting the plurality by the

acts of one, committed after the scheme has terminated

either iv success or failure; but the one always remains

affected by his. own acts: That is the inexorable law

of all life. (Emphasis added.)

“In Giordano v. United States, 9 F, 2d 830 (C. A. 2d 1925),

which involved a conspiracy to brinS liens into the United

which involv spigacy Malic 7

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States i in violation of the immigration law s, evidence was

‘admitted generally with regard to a repayment of money

by one of the conspirators to one of ‘thé aliens after the

~ termination~ of- the couspiracy. * The court held that this —

“ore

evidence was improperly admitted in ¥iew ofthe rule of

the Gooding, Logan, age Brown cases. Since only one act

- was involved, howev er, the court ruled that the’ error, Was

non- prejudicial.

Acts before a epnspiracy is formed are-likewise inadmis-

sible generally, since obviously not in. furtherance’ of the

conspiracy. ‘Thus in-Morrow v. United States, 11. F. 24

256.(C. A. 8th, 1926), the court ‘reversed convictions for.

conspiracy to violate the bankruptey act because ceftain

financial transactions of one of the conspirators were ad-

mitted: into evidence generally even though they had taken

placé several months se, “to the time fixed in. the indict-

and Logan decisions, along with many others. In a similar

case, the same court, again through Judge Kenyon,yfeached .

the same result.. Gerson v. United States, 25 F. 2d 49 (C.

A. 8th, 192g). And see Millér v. United States, 133 Fed.

‘ment as the commencebfent of the conspiracy. In announe- ~~

ing the rule to be applied, Judge Kenyon cited the Brown

3377 353 {C. A; Sth, 1904); Wilson v. United States, 109 Fr. |

2d 895, 896 (C. A. 6th, 1940).

Moreover, the decisions cited above make it abundantly

clear that evidence of acts offered against all conspirators

2 begomes compe stent against all because, and only because,

the acts are held to be in furtherance of the conspiracy,

and they invariably assume that acts committed’ either

before or after the period involved in the conspiracy can-

not be in furtherance of the conspiracy. In this connection,

the following additional decisions are in point: Hitchman

Coal & Coke Co., “045 U.S. 229, 249. (1917); where in hold-

ing that certain acts and declarations ‘in furtherance of

‘

16

the common object’? were ‘admissible against the defend-

ants, Mr. Justice Pitney observed that the rule admitting

such evidence against defendants other than the actors oy

declarers. ‘‘originated in the law of partnership’’; Pink-

erton v. United States, 328 ae 640, 645-48 (1946);

ie hy.v. United, States, 285° Fed. 801, 815 (C. A. 7th,

923); Uyited States v. Food and Grocery Bureau of

- rs California, ‘3 B. Supe. 966, 969-73 (SD. Calif,

a 1942). :

.

°

Dd.

ad

‘This Court cites no authority whatsoever for its view

that acts stand on a different footing from declarations.

And for its assertion that‘vets which are relevant to prove

the conspiracy are eked ‘feven though they might

liave’ occurred after the ednspiracy ended?’, it cites, in

addition to the Rubenstein case, only Fitzpatrick v. United

States, 178 U. S. 304 (1900), and Ferris v. United States,”

40 F. 2d 837 (C. A. 9th, 1930). But the language of Mr.

Justice Brown in the Fitzpatrick case, at pages 312-13, em-

_phasized that to’ constitute ‘competent evidence for the

jury the facts offered miust be ‘‘part of the whole trans-

action’ * * * ‘‘oceurring at any time before the incident

was closed’’ * * * or taking place from the time the crime

‘‘was first contemplated to the time the transaction was

closed.’ (Emphasis added.) Likewise in the Ferris case,

in which @vidence as.to the conduct-of two defendants after

their-arrest was admitted against other conspirators, the

appellants, the ‘court concluded, at page 839, that the con- —

spiracy had not terminated at the time of the arrest of

those two defendants but ‘‘continued until the ‘arrest of

_appellants.’’ Yet here, even though this Court determines

that ‘‘on this record * * * the conspiracy ended December

5, 1947,’ numerous acts taking place as long as two-and-a-

half years after that date are held to be admissible against

absent conspirators. a eae :

17

Nor can this holding rest upon United States v. Ruben-

stein, 151 F. 2 915, 917 (C. A. 2d, 1945). For there the evi-

dence was admitted in order to.corroborate the testimony of

the spouses as to what they had originally intended and

agreed upon. Here, however, three marriages are involved,

dnd the acts of all six parties to those marriages after entry”

—and after termination of the conspiracy—were admitted

generally, even though only one party to one marriage,

Bessie Osborne, had testified adversely on the quéstion of

her and Munio Knoll’s intent in getting married. Thus-

there was only one marriage with respect to which there

was any spousal testimony indicatiag lack of proper mari- 3

tal.intent to be corroborated. As a matter of fact, the

testfmony. of Grace Knoll was to.the effect that she and

Leopold Knoll intended to be married in the fullest sense

of the word; and so did the testimony of Maria Lutwak

‘concerning her marriage to Marcel. Evidence of the acts

of the parties to those two marriages after the termination ,

of the conspiracy thus did not. and could not cor raborate

spousal testimony showing lack of intent.

In addition, thig Court has overlooked petitioners’ ar-

gument that in any event the acts occurring after the

conspiracy were not relevant as to those who took no

:part in them (Pet. Reply Br., p. 6). Thus, ever under

the Court’s reasoning here, such acts should have been.

limited to those defendants performing them

18

IL.

THE BASIC ELEMENT UNDERLYING PETITIONERS’ CONVIC-

TIONS BY THE JURY WAS THE ASSERTED INVALIDITY OF .

THE MARRIAGES. HENCE THE NATURE OF THE MARRIAGES

WAS MOST MATERIAL. THE GOVERNMENT FAILED TO

PROVE INVALIDITY, AND CONGRESS'IN ENACTING THE WAR

BRIDES ACT DID NOT INTEND TO EXCLUDE THOSE VALIDLY

MARRIED.

The case in the trial court turned on ‘the question as

to whether the marriages were invalid. It was submitted

to the jury on that , Re and the trial court instructed

extensively on: that point (R. 338- 340). An examination

of the instructions indi¢ates beyond question that the jury

could fot have found petitioners guilty without deciding

that the marriages were invalid. Because of the adher- ©

ence of. the trial court to the theory that the invalidity of —

the marriages was the core of the case and because that

invalidity had not been proved by the law of the place_

wherg they occurred, the trial court indulged in the ‘‘as-

sumption’’ that ‘‘the law of Paris, France’’ is the same

. as that of Chicago, Illinois (R. 189).

The Court of Appeals also ‘adopted this theory of the

case, stating that,‘‘if valid marriages came into being the.

faet that the motives back of them were entries into this

country would be wholly immaterial’? (R. 893), and- ‘‘ be-

‘fore the jury could properly conclude that the scheme be-

came an alleged conspiracy, it was necessary that the evi-

- dence be sufficient to justify the conclusion that the three

marriages were void—of no. legal effeet—and that. they:

were so intended, for, if they were valid, the government

cannot complain’’ (R. 393), and ‘‘we are confronted, then,

- -with the erucial question of whether the evidence justifying

a finding that the so-called marriages were void’? (R. 395- .

396). In order to overcome the failure of the government

19

to prove invalidity by French law, the Court of Appeals

also engaged in the erroneous presumption that the mar-

riage laws of a foreign country are presumed to be the

same as those, ‘‘obtaining in ‘the forum’? (R. 414). That

court based its decision on the ground that the magriages

.. were sham and void under the law of his ountry (R. 396).

‘ In this Court, the government abandoned the theory upon

which the case was tried and ¢ubmitted to the jury and

argued here for the first time that the validity of the mar-

riages In question was immaterial (Gov’t Br., pp. 66-75).

- This Court has apparently accepted that view (Op., #&.

ee F.3> although it refers to the marriseye between the par,

Hee as ‘‘pretended marriage ceremonies”’ (Op., .p. 5);

‘spurious, phony: marriages. (Op., p. 5), “fake marriages”’

(Op., p. 7) and ‘‘ostensible marriages’’ (Op., p. 9). This

Court’s inconsistency in stating that-it does ‘‘not believe —

that the validity of the. marriages is’ material’? (Op., p. 7)

is clearly demonstrated by its later statemert that ‘‘the

e&sential fact of the conspiracy,was the existence of phony

marriage ceremonigs entered into for the sole purpose of

‘deceiving the immigration authorities and perpetrating a

fraud upon the United States”’ ene added) \Qp., p. =

13). -

Apart from this, however, stnce this Céart’ has found a

_ ample evidence of a conspiracy to defraud the government,

it is chrious/that under the charge in the indicfmeni peti-

tioners must have schemed to accomplish their purpose.

either by misrepresenting ‘that there were valid marriages |

or by concealing the true gature of the marital relation-

ships, or both, Under that thiarge the misreptesentation -

or the omission ‘to disclose could have : arisen only in con-

‘nection With the execution of ¢pplications for admission to

the United States by the aliens—Maria, .Munio, and Leo- .

pold (Gov’t Exs. 1, -2, and 35). The application’ of Munio

rose

20.

Knoll—Zygmunt Roman-Kiewicz—Exhibit No. 2, is ap-

pended to this petition. The other applications are similar

in all respects,

* The making of such applications’ was required by a regu-

lation issued by the Commissioner of Immigration and

Naturalization. Title 8, U. S. C. A. § 222; 8 Code of Fed.

Reg., 1949 Supp.,.Part 126, pp. 90, ef seq. The regulation

had the force and effect of law. Mastrapasqua V.: Shaugh- .

nessy, 180 F, 24/999 (C.,A 2d: 1950); Hamburg-American:

Line ¥. United States, 65 F. 2d 369 (C. A. 2d, 1933): By

that regulation and .the application forms which’ were

issued under it, that which was material to entry was

defined.

An exainination of the :applications indicates that the *

aliens made claim that they were non-quota* immigrants

under the provisions of the War Brides Act. In support

-of. their claim they were required to state that they were ~

married to honorabiy-discharged veterans of World War

IL. In additioxi, they acknowledged that all excludable ©

classes of aliens had heen explained to them and that, they

were not members of any-such class. The excludable

classes set forth on the application forms did nof refer. in

any way to an alien contracting a marriage for the sole |

purpose of securing entry.

The three aliens answered fully all. inghir.. 28 put to them

by the applications, stating they were married to veterans,

the dates and places. where the marriages took place, and

the military and discharge status of their spouses. The,

application forms prepared lv the United States Depart-

ment of Justice asked for those facets and nothing more. :

Having given the goverument the facts it demanded,

were the aliens nonetheless required to state something

additional, particularly in view of the fact that a long list

of, excludable classes had been. recited to them? And if

er &

ee mice

they had stated: their intentions to separate Some their

spouses upori, entry, could they have been excluded under :

any law-ef the’ United States?

.

If there was a duty upon the alieus to speak further it

arises only from the construction of the War Brides Act .

by this Court to che effect that when Congress used the

words ‘‘alien spouse’? it referred to one of ‘‘two parties

who have undertaken to establish a life together and as-

~-

sume certain duties‘ and obligations’ (Op., p. 7).. Thus

this Court now contends, by reason of its affirmance of the

- convictions below, that these three aliens in Paris, France

in (1947 should have known what this Court in 1953 says

Congress must pave intended in passing the Act, in the

‘absence of any evidence of sych intent, and even though

three ‘Justices cannot agree’ with that interpretation.

Conceding, arguendo, the: intent of petitioners to enter

into marriages forthe sole purpose of securing entry into

this country, and conceding further their intention to sepa-

‘rate upon arrival, the record is completely empty of any

evidence of their intent to conceal this information from ©

the immigration authorities.. Thus, even if there be a

concealment, there could he no fraud upon the gevernment

since the intent to conceal was never proven,, ~- a

. In interpreting the Congressional intent underlying the

War Brides Act, this Court made no referencé. to the

source material from which! such intent’ is usually ascer-

tained. As a matter of fact, there was no need for this

Court to consider what Congress had in mind whe it

passed the W ar Brides Act, since the statute is completely

unambiguous. Osaka Shosen Kaisha Line v. United

oe 300 TU. S. 98 (19387); United States v. Corbett, 215

U. S. 233 (1909). ‘The word ‘*spouses”’ in the Act is clear

and ae e and can only mean persons legally wedded.

But even if the intent underlying the War Brides Act is.

6

22 ' :

to be ednsidered, this Court’s ¢onclusion is insupportable

_ under familiar prineiples of statutory interpretation. In

the first place, it is evident that Congress, in passing this

Act,‘intended-to expedite the procedures by, which alien’

husbands and wives of veterans of World War II could

enter this country. And that was all, for*prior: to the

. passage of that Act, Congréss. had made provision for the

entry of such spouses. Thus a citizen of the United States,

by filing a petition under Title 8, U. S. C. A., § 209 (b),

could obthin the entry of an alien wife, no matter when’

'. they were warried, and of an alien husband, if married

prior to July d, 1932, as non-quota immigrants. Title 8,

US CA § 24 (a). Alien husbands ‘married to citizen |

-wiyes, after ‘J uly h. 1932 could be adinitted under the same

: proncere. as prefereace-quota immigrants. Title = US

©. A, $206 (a) (1) (A A. | | :

a. iiténe forth thoes: eligible to enter as above, Con- .

gress referred to them as “the wife.or the husband of a

citizen of the United St: 1tes”* , Title. 8, U.S. C..A., § 204 (a),

and ‘‘the husbands of Récocs of “the United States a

marriages o@curring on: or after * July 5.1932,” Title 8

U.S. C. A., § 206 (a) (1) (A). Moreover, in eages petite

under those statutes the courts have always defermined.

whether one is a husband or a wife by referring to the

Jaw of the. place where the marriage was. contracted. —

Consulich Societa Di Navigazion v. Elting, 66 F. 2d 534

(C. A. 2d, 1933) ; Ex parte Soucek, 101 F. 2d 405 (C. A.

7th, 1939). Even the case of United States v. Rubenstein,

151 F.2d 915 (C. A. gd, 1945), cited by this Court against

petitioneds, stands for this proposition, since the marriage .

there was ruled invalid in the light of: the law of New

Jersey, the place where‘the marriage occurred.

Further, if 1937,Congress passed a statute ‘which pra-

vided that a non- aot or preference- quota alien, who had

4

heen adniitted on the representation that he Was mar ried

* \ é rat E ,

f,

23

to a’citizen but who subsequently secured judicial an-

nulment of such marriage retroactive to Me date of its

celebration, was to be deported on the ground that, because

of fraud, he was not entitled to admission ‘when he arrived

in the United States. Title 8, U. S.C. A., § 213 (a). Thus

the cases cited by petitioners (Pet. Br, p:. 47), holding :

“

that an annulment would not be granted under the cireum-

stances of this case are indeed most material.

in passing the War Brides Act, Conyress is presumed

to have had in mind prior lbisialnticn on tlre. saite subject,

_as well as judicial decisions construing that. legislation.

The War Brides Act should be construgé: in ‘the’ light of -

the prior statutes and decisions. United Stutes v. Jeffer-

son Elec. Mfg. Co., 291 U. S. 386 (1934).

., When this rule of statutory construction is applied it fol- -

lows that Congress, i in enacting the War Brides Act, must

have intended that all those vi idly: marr ied by the: law of

‘the countries where the marriages took place were admis--

‘sible except where an annulmet relating back to the date

of marriage was secured. If thas is.so, there could here,

have been no eoncealment of a material fact, since

tioners fully stated to the immigration authorities all

Congress ; ‘equired’ they state. In addition it is pointed

out that e ler the new Immigration Act, Title 8,

‘U.8. CAL G 1251(e), Congress has not gone as far as.

this Court but has made. deportable only one. who is di-

_vorced within two years after securing entry by virtue of

a marriage, unless the Attorney General. is satisfied that

such marriage was not contracted for the purpose of evad-

: ing the inimigration laws. In this case no divorce took

‘place within two years of entry.

Further, an extensive search of the statutes indicates no

legislation by virtue ef which tf aliens here could have

been excluded if they had fully stated’to the immigration

authorities their intention subsequently to secure divorces,

(ff

: 4 , . o4 3

if the marriages were in fact vad. If they were invalid,

then this Court is faced with determining the question of

the necessity of proving invalidity by French law, a ques-

tion which it-has avoided answering. ' |

The case of United States v. Rubenstein, 151 F. 2d 915

(C. A. 2d 1945), relied upon by this Court as supporting its

view *(Op., p: 8) is distinguishable. In that case, the alien

entered by virtue of a petition filed by a ree of the

United States pursuant. tio Title 8, WV. S.C. A. § 204. Un-

der the terms of that statute the citizeh was expressly re-

quired to state that he would be responsible for the sup-

port of his wife.” Title 8, U. S. C. A. § 209(b) (6). This

was not so in the applications here. The court there found .

that the omission to state that the parties infended to

.? obtain a divoree amounted to the concealment of a fact

which -was-material to the admission of the,alien, because

it related to the statement cancerning support of the alien

after: entry. As. stated above, the decision was further

- buttressed. by a. finding by that court that the marriage

itself was inyalid, based upon an application of the law

of New Jersey. @ !

a

ee

bo

or

*- 10.

PETITIONERS HAVE BEEN DEPRIVED OF DUE PROCESS OF.

LAW AND THEIR RIGHT TO A TRIAL BY JURY IN THE. FOL-

LOWING RESPECTS:

- THE ADMISSION OF POST- CONSPIRACY ACTS IN THE TRIAL

COURT WAS UPON-A BASIS ENTIRELY DIFFERENT FROM THAT

FOR THE FIRST TIME ANNOUNCED BY THIS COURT.

THE TERMINATION OF THE CONSPIRACY ON DECEMBER 5,

.1947 INEVITABLY INVALIDATES. A SUBSTANTIAL PORTION

OF THE TRIAL JUDGE'S CHARGE TO THE J URY.

THE THEORY OF THE OFFENSE STATED IN. THIS coURT’s

OPINION IS NOT THE SAME AS THAT UPON WHICH THE JURY

Was INSTRUCTED AND THE CASE SUBMITTED.

S 2

The manner in whic this case has progressed Ph

the courts—spawning new- rules at one stage and repudiat-

ing them at the next, changing character-so as better to -

avoid awkward legal principles, transférming the question

around which the contest in the trial court entirely cen-

tered into an issue ‘‘not material’? (Op., p, 7), and ren-

dering surplusage thé lengthy instructions given the jury

as to the validity of the marriages, with the government

altering its views and arguments in cach succeeding brief

—raises a serious question as to whether or-not defend-

ants, confronted by such shifts and turns, can in any real

sense be said. to have had a fair trial: After all, the de-

fense of persons under criminal indictment should not de-

generate into a guessing game, iy which defendants’ egun- -

sel are burdened with the impossible task of. anticipating |

at the trial all the theories the government will not advance’ °

until appeal, and of deciding what to do on the: basis of

hunches as to which of the rules of evidence accepted by the

government and the trial court for , purposes of the’ trial

will be radically altered retroactively by a higher court.

26

In this case, éfter a careful analy SIS of the record in the |

light of the indictwegt, the government’s presentation of

‘its éase, the court’s instructions to the jury, and the rules

_ of evidence upon which testi ony was admitted, rejected,

or limited, counsel for the defendants determined not to

present a defense. As stated to the trial court it has

‘become the conclusion of counsel fer. defendants jointly

‘that on the present state of the eon we will not sar in”

any defense: Teri waco a Bes OD), , |

toe Counsel’ s pt ee took into account the following: (1)

that the case as presented by the government and as sub:

mitted to the jury under the court’s instructions raised as a

. crucial issue the validity of the marriages, and that the mis-

_fepresentation the jury was asked to find-as an objective

of the Hanapleed was a misrepresentation -as to marital

- status, i. e., that so-and-so was married when in fact he

‘Was not; be (2) that acts and ‘declarations of. conspira-

‘tors taking place after the termination of the conspiracy .,

which petitioners contended occurred on December 5,

1947—were inadmissible as to absent co-conspirators.

* ° ad

‘It. is obvious that the trial court and the Court of Ap-

peals entertained the same assumptions: they viewed the

issues at the trial in the same light as petitioners’ coursel,

“and they acknowledged the rule that acts and declarations

—.

\: are inadmissible against absent co- conspirators if. oceur-

ring after the termination of the congpiracy. The instruc-

tions leave no. doubt *that the validity or invalidity of the

marriages constituted the key issue, In the trial court’ 8

concept of the case; and the Court of Appeals was most

explicit in announcing its agreement (R. 392, 399, 399, 413).

And both courts tacitly gave recognition to the rule about

acts and declarations after the termination of the con-:

“spiracy, while finding novel and different ways of avoiding ©

fs application. erate

A.

— F ‘

As to the ahs concerning acts. and declarations after

the termination of the conspiracy, petitioners’ cou el, the

trial court, and the Court of Appeals would appegf to have

been amply justified in relyi ing upon the aythoritative

statements to be found in numerous decisions \and texts.

-Some.of these have already been cited above, and doubt-

less if counsel had the time to run d@wn all the pertinento

authoriti s, dozens and dozens of other pronouncements of

the rule couRh be found. But more, counsel have been

unable to locatXany. decision or text which announces the

rule which this Court has evolved. To the best .of counsel's ©

knowledge, there is no expression of such a rule, ard the:

very fact that the gove rnment and the trial court resorted

toa subsidiary conspiracy to conceal theory and that the

Court of Appeals announced an ‘‘intent??’ theory. is per-

suasive indication that what this Court says is now the.

rule has never before been said to be the rule by any au-

thority. For it would be more than a waste of effort, it

would be ridiculous for the government and the lower

courts to try so hard to circumvent the post-conspiracy

acts and declarations rule if in fact that rule had been

what this Court states it to be.

‘Since this rule has never: before been given expression,

While the ‘‘agts and declarations’? formulation has been ~

- enunciated upon innumerable occasions and rarely if ever

questionedy the action of this Court in applying its new

rule retroactively has the effect, under the cireumstances

of this case, of changing the rules under which guilt’ or

innoeéhicé is to be found after the trial j is over. . Had the

gdvernment urged the rule whieh this Court: now an-

nounces ‘at any stage prior to filing its main Brief in this

C ourt—a week before oral argument on December 8, 1952

—or had the tria! court stated that such was the rule, the

\ 28 ©

situation would have been quite different. But the prose-

cutor said nothing whatsoever to suggest that he under-

“stood the law the gvay this Court has now shaped it; nor

did the trial court. .On the contrary, everything the prose-_

-eutor and the trial court did and ae indicates beyond all

doubt that they thought the rule in Logan v. U nited States,

144° U. S.9263 (1892),-meant just. what it said. , For the.

tactics and arguments of the prosecutor and the comuiente

and rulings of the trial court were directed, not at ehang-

ing the ryle by deleting the word ‘‘acts” from: its formula-

tion, but at circumventing it on the basis of a charged

conspiracy: to conceak the crime.

In this connection the: opinion of Mr. Justice Cardozo.

in Shepard v. United States, 290 U.S. 96 (1933), is very

much in point. There ey ‘agi was offered and admitted

on the theory that it _ constituted a dying declaration of the

defendant’s wife inflicating her suspicion that her husband.

had poisoned her, the defendant being charged with” her

murder... When it appeared in the Court of Appeals‘that

‘the facts did not’ warrant‘admitting this evidence as a

dying declaration, the. government contended that.in any

event it was admissible to rebut defense testimony tend-

ize to show that the wife had-in mind the possibility of

committing suicide, since it showed a state of mind incon-

sistent with the presence of ariy such thought. The Court’

- of Appeals decidéd that although inadmissible as a dying |

declaration the’ evidence might go in: on that newly-sug- -

gested ground. This. Court’ rev ersed, and ini the course of .

his decision Mr. J uatiee Cardozo Wrote, at pages-102-3:

- The testimony w was neither offered nor received for

the. strained and -narrow purpose now suggested as

legitimate. It was offered and received a's proof of a

dying declaration... * * * There is no disguise. of

that purpose. by counsel for the Government: They

coycede in all candor that Mrs. Shepard’s aceusation

- | "99 a

of her husband, when it was finally let in, was re-

ceived upon the footing of a dying declaration, and

not merely as indicative of the persistence of a will .

to live. Beyond question the jury considered it for’

the broader purpose, as the court intended that they.

should. A different situation would be here if we

could fairly say in the light of the whole record that

the purpose had been left at large, without identifying

token. There would then. be room for argument that

demand should have beer made for. an explanatory

ruling. Here the course of the trial put the defendant

off his guard. The testimony was received by the .

trial judge and offered by the Government with the

fain understanding that it was to be used for an

itimate purpose, gravely prejudicial. A trial be-

onss_unfair if testimony thus accepted may be used

in an appellate court as though admitted for a differ-

ent purpose, unavowed and unsuspected, (Emphasis

added.) . eee '

Here the reason: for admitting much. of the: post:eon- !

spiracy evidence was stated by the trial court in the pres- —

ence of the jury. (R. 67-68), arid the jury was reminded of

the continuing conspiracy to conceal in the court’s’ instruc-

tions (R. 335). Petitioners’ counsel unsuceessfiilly ob-

. jected that a charge of a conspiracy to conceal violated

this Court’s decision in Krulewitch v. United States, 336°

U.S. 440 (1949), and although this Court has not repudi- |

ated the charging of a conspiracy to conceal,:it did hold

that no sach conspifacy’ had been proved. Consequently,

this Court found that the conspiracy terminated on De-

cember 5, 1947,

- Thus the post-conspiracy acts could not go.into evidence

on the trial court’s theory. Apparently the Court of 4$

_Appeais recognized this, but it nonetheless concluded that

on the defendants’ intent the evident? was proper (R. 399),

Offering evidence for the purpose of showing intent is quite

- different from offering it for the purpose of showing a

\ 2 : : 30 a er

subsidiary conspiracy to conceal, and the ‘‘intent’’ ra-

tionale expressed by the Court of Appeals was ‘una’ vowed

and unsuspected”” at the trial stage. Likewise, offering

evidence for the purpose of showing a conspiracy to com-

mit certain sustantive offenses and to defraud the United”

States is quite different. from offering it for the purpose.

of showing a kubsidiary conspiracy to conceal the principal —

conspiracy. The new ratiofale, expressed by this Court:

“for the first time, was, equally ‘‘unavowed and unsus- —

pected’? at the trial. ae |

Moreover, this Court has only in part. abandoned the

‘*intent’’ rationale for the broader “proof: of the con-

spiracy’’ view, siitee4t considers that post-conspiracy acts.

‘relevant to show the spuriousness of the marriages and’

the intent of the parties in going through the marriage

ceremonies were competent * * *'? (Op. p. 13). Thus,

insofar as the ‘“intent”’ theory | of the he Court of Appeals —

persists in this Court’s decision, evidence improperly ad-

mitted on one basis i is now considered to have bee ‘nh prop-

erly admitted on a much more limited basis. Where -evi-

dence is admitted to show intent, the jurors should be so

advised in order that they. will not erroneously consider it

for some other purpose. But since no one even hinted at

the trial that the purpose of this evidence was to show

intent, defendants had no occasion-to ask for an appropri-

ate instruction. The course of -the trial put them off guard.

B.

- This Court’s ruling that the conspiracy terminated ‘on

December 5, .1947—a ruling which petitioners’ counsel

‘ vainly sought in the trial court—when superimposed, upon

the case works some startling changes, since the indict

ment, the trial, and the charge to the jury all proceeded

“upon the view that the conspiracy continued right up to_

. dl

the date of the indictment. No juror. could possibly

suspected that the conspiracy ended on December 5, 1947, —

‘for the cou instrueted the jury as to what the charge

see the continuation of the conspiraty—and

then gave the indictment fo the jury to fake to the jury-

room (R. 333,335, 343). Thus the only: way in which a -

juryman ‘could have reached the conclusion which this

Court now announces as to the termination of the con-.

spiracy was by disregarding what he was told by. the trial

court he was duty-bound to follow (R. 328).

ie addition to the continuing conspiraey to conceal, which

this Court ae not proved, the indictment charged a

conspiracy teCommit certain offenses and, to defraud the

government from on, or about. July. 1, 1947 ‘‘and con-

“tinuously thereafter up to and including the date of this

indietme@t * * *’’ (R. 4), it being part-_ef-the-conspiracy— cae ca

“that Wer the conspirators. had secured the entry of the

three aliens ‘‘the parties to the aforesaid ostensible mar-

riages would not live. together in the United States ‘as

man and wife and thereafter would take such legal steps

to sever the formal “bonds of : said ostensible marriages as

they saw fit’? (R. 6-7 ). Same yar ae

None of the courts which have considered: this case

- have made any —— as to the effect’ or significance of

this part of the cla of, conspiracy. But adopting this

Court’s view that “there: is no statement in the indictment

of a single overt act of concealment that was committed

after Decembex.,5, 1947, and no substantial evidenee of

any,’ the overt acts listed in the indictment as’ occurring |

after December 5, 1947 can only be regarded as overt acts

in carrying out that part of the conspiracy whéreby the:

- parties to -the marriages would not live together and

would obtain divorces. Thus ov ert aets Nos. 15 through 21,

if they: are overt acts in the carrying cut ef a ‘conspirac v

i)

‘at all, can only be viewed as in furtherance of the con-

32

spiracy to live separate and apart. and to obtain divorces

- (R. So).

_ The trial court charged the j jury as fallow (R. 336-37):

Your inquiry should be: First, Did the defendants,

or some of them, conspire together to do the unlawful

acts charged in the indictment? a aT if they

*~ did so inquire, Did they thereafter, With the view of

.- earrying out the object of such conspiracy, do- one

thing set forth as an overt act in the indictment to-

wards that ¢nd? If they did so conspire togetlier and

take one or more steps, set forth as overt acts, toward

the accomplishment. of that unlawful purpose, the of-

fense of conspiracy is complete, aven though the object

of the conspiracy is never. attamed.

You will observe that the Government and the grand

jury have, in this indictment, charged many overt acts.

An oVrt act means an act done for the purpose of

carrying out the design, the unlawful purpose, and it

must be done by. one or more members of the con-

spiracy, if it has been found that there was_a ¢on-

spiracy , and must be af such a character’as appears

to you to have been done in order to carry out the

unlawful purpose, It is not necessary that you find |

that all of the overt acts charged were performed, but

it is necessary that you find that at least one of the’

overt acts charged was done, and done with the intevit-

of accomplishing the purpose of the conspiracy, before-

you would be warranted igi finding the defendants, or

‘any of them, guilty under this conspiracy count. (Em-

phasis added.) \

Ww hen these instructions are read together with those in.

which the court described to the jury the charge in the

indictment -that i as part of the conspiracy the parties, Hav-

ing secured entry, would not live together in the United

States and would take such: steps as Were” necessary to

‘sever the bonds of marriage (R. 335), it is apparent that

the jury could have found the petitioners guilty of agree-

ing to obtain divorces after entering the United States, and

- that one overt act—perhaps No. 21, Marcel’s ‘divorcing

Maria—was done with the intent of accomplishing that

purpose of the conspiracy, But the conspiracy terminated,

this Court has ruled, on’ Decemper. 5 5, 1947—some two years |

und four months be! ore Marcel secured his divoree.

It is thus all too obvious that the trial court should have

‘ instructed” Fhe jury that the conspiracy terminated on

December 5 , 1947, and that certain of the overt acts charged

—Nos. 15 to 21 inelusive—did not constitute ovegt acts

the doing of which would complete the crime of conspiracy,

since post- December 5, 1947 acts could not be in further- -

ance of the conspiracy. But the. trial court, adhéring to

ithe view of the indictment that the conspiracy continued

‘up to. the date of the indictment, did not sv instruct the

| L Fary. - Consequently -the jury was told that certain acts

- could be found to be overt. acts which, on this Court’ S

ruling, could not on any thé ‘ory constitute overt acts in- |

- tended to carry out. the conspiracy or any part of th “Cf.:

Lonabaugh v. United States, 179 Fed. 476, 479- or (C.. A

Sth, 1910). :

Entirely apart from all other considerations. therefore,

- this Court’s finding—correetly in: our view—that the con-

spiracy terminated on December 5, 1947 renders i improper, .

misleading, and error eous as propositions of law the trial

court’s charge to the jury as to the scope, purpose, and

duration of the conspiracy and its instruction with ye-

spect to what acts the jury might find to be tke overt act

or acts: needed to complete the crime. The error thus

revealed by this Court’s ruling is compounded by the fact

that the trial-court turned over the indictment to the j Jurors

to take to the j jury-room. |

It is elementary that the trial court is under a duty to—

chargé the jury fully and-fairly. In’ stating the law ap-

-plieable to or of the particular case, i‘ must confine

REED ee ee aes 34

icself to the issues raised by .the pleadings and the facts

deveioped at the trial, and it must state the law correctly.

Yet while instructions .should ‘not go beyond the issues

~ presented, they should cover all of them, and may not ~

ignore any issues in the case which are supported by some

evidence. 53 Am. Jur., Trial, §§ 573-81. Cf. Bird v, United

States, 180 U. S. 356, 361. (1901); Merchants Mutual In-

. .. surance Co.v. Baring, 87 U. S. 159 (1874) ; Screws v. United

States, 325 U. S. 91 (1945); Morris v. U nited States, 156

F. 2d 525 (C. A. 9th, 1946) ; Beene v. United States, 169

F, 2d 787 (C. A. 9th, 1948). intra

Here, however, the jury was instructed that the con-

spiracy continued \yp,to the date of the indictment. Bi

the conspiracy termjnated on December 5, 1947—over twh-

and-#-half years beforé the indictment. The jury was in-

stru that the indictment charged a conspiracy to COn-.

ceal: The record is undisputed that there was no substantial

evidence got any such conspiracy. The jury was instructed

_ that it could ‘find any one of the twenty-one -overt acts —

charged:in the indictment as an act in furtherance of the.

conspiracy and thus having the effect of completing the

crime,’ Seven oNthe overt acts—since they-took place after

. Deeeriber 5, 1947—could not as a matter of law Se

overt acts in furtherance of the conspiracy.

Thu. this Court,.in correctly finding the termination date

of the conspiracy, has revealed that, since the trial ‘pro:

_ceeded upon a quite different view, the jury was instructed

errol eously. and in such a manner as to make ‘possible a

findi g of guilt on a theory of the. offense w hich the Decem-

| ber « $, “1947 ruling re pudiates.

35

oie MX

' But this i is not all, for this Court's view that the validity

or invalidity of the marriages is immaterial renders ut-

rly peintless the carefully drafted. instructions given by

the court as to the elements necessary to a valid 1 marriage.

Read in its entirety the court’s charge to thé jury\put to

the jury—as thé principal issue—the question as to wheth-

er the three alleged ostensible marriages were valid\or

invalid. The detailed set of instructions on marriage could

‘have no other purpose (R. 339-40), and both the govern-®.

ment (R. 298, 299, 304, 306, 307) and the. defendants ~~

340) proffered instructions on the subject.

Thus the jury was asked to pass upon an issue—in its

view, understandably, the key issue—which the Court now

ays is not material. The anomaly ‘is emphasized by the

fact that, despite its lengthy charge, the trial court did

t instruct the jury at all with respect to what would

(tute ‘‘the wijlful concealment of a material fact’’ or

- under what eircumstances the defendants: would be duty-

\—~ bound : to reveal to the immigration and naturalization

authorities the facts disclosing theirsnarital intent.

Consequently, if,jt was not necessary to find that the

marriages were in@@yd—that issue being immaterial—pre-

sumably the jury must have found that the deferidants

conspired to secure entry for the aliens by the willful con- .

cealment of material facts. Yet the instructions show that

the’ jury was not instructed as to that issue: or told the

rules of. law applicabl® to it in any fashion whatsoever, —

let alone with sufficient clarity to justify arn appellate

~ ceurt’s conclusion—on the record taken ais a whole—that

~the jury did, so find. 2 ONES

Finally, the view that the validity or invalidity ofthe

_marriages is immaterial renders altogether pointléss In- |

be athe

36

2 :

struction No, 22, which advised the ‘jury that “The mar-

riage of a man and a woman where one of the parties

thereto has a husband or. wife by a prior marriage who is

then living and undivorced, is void’’ (R. 339, 354). Peti-

tioners have contended all along that this instruction has

no application to the case at all.. Now, at long last, this

Court’s decision indicates conclusively that petitioners

have, been right. For, if,there was no need for the jury to

‘eonclude that any marriage was void, and if in fact the

whole discussion with respect to validity and invalidity is

beside the point, then what possible purpose can an in-

struction such as Instruction No. 22 serve, but to confuse?

Viewed in retrospect, then, \in light. of this Court’s rul-

ing that, the conspiracy termitjated on December 5, 1947,

the trial ourt’s instructions consist in large part of propo-

‘sitions which are either-erroneoys or utterly out of place.

A jury treated to such a quantity of’ erroneous and. ir-

relevant instruction could hardly be expected to reach a

proper verdict, particularly when guidance as to,other is--

-sues—considered .by this Court to be of the greatest im-

portance—was totally lacking from the trial court’s charge.

It is a denial of due process to sustain convictions un-

der a concept of the offense different from that which

submitted to the jury. It also amounts to a denial a a

jury trial. Cole v. Arkansas, 333 U. S. 196. (1948) ; ef. Vir-

ginian Ry. Co. v. Mullens, 271 U. S. 220 (1926); United

States v. La Franca, 282 ES. 568 (1931).

.. By

OF ee 2 | Iv.

”

THE APPLICATION OF THE OPINION OF THE COURT TO THE

FACTS OF THIS CASE REQUIRES REVERSAL OF THE JUDG-

MENT BELOW AND A NEW TRIAL.

aN ae

Under the Principles Announced by the Court’i in This Case,’

Maria Knoll Was ia ea to Testify Against Her

_ Husband.

’ The opinion of the Court states that ‘*Munio Knoll had

_ been married in Poland in 1932 to one Mari la Knoll. There

is some evidence that Munio and Maria were div oreed in

1942 but the existence and validity of this divorce are not

determinable from the record”’ (Op., p. 2). Maria Knoll,

called as the second witness on behalf of the goyernment,

was the first of the wives to testify. Objection was made

to her competency as a witness on the ground that she .

was married to the defendant. Munio Knoll in 1932, and a

voir dire examination of the witness was requested (R. 41-

42, 57). es

The objections were overruled (R. 57). Maria was per-

mitted to testify at length as to her marriage to Lutwak.

and to dets done by her long after the conspiracy termi-

nated (R. 58-92). This evidence was admitted against all.

The opinion of this Court, holds that the ‘‘ostensible’’

Wives are compétent to testify (Op., p. 10), but. this Court.

has not passed on the ‘qnestion of Maria’ s competency.

The record makes clear that she married Munio Knoll in

Poland in.1932 and that the government nev er prove “da di-

vorce between them. Since that marriage obviously was riot

for ‘‘the purpose of using fit} in a scheme to defraud”

(Op. p. 10), Maria was incompetent to testify against Munio

so Tong as this Court. recognizes the “prohibition against |

anti-spousal testimony. —

.

et ee

38

B.

The Record Does Not Support the Conclusion That ‘Grace

Knoll Was an ‘‘Ostensible’’ Wife, and Consequently It

Was Error to Allow Her to Testify Over the Objection

of Her Husband. s_—™ ‘

| Grace | ‘Klemther Knoll was the last of the wives to tes-

tify. Bess Osborie, who: was the’ ‘‘ostensible’’ wife of

Munio Knoll, had previously testified to a conversation in

‘Paris between Leopold Knoll and Grace Klemtner Knoll

at which the witness was present (R. 216). She testified

that. Leopold Knoll told Grace that ‘‘If you do not in-

. tend to marry mie and stay married to me,.and if you have

only, come over here to. marry me for the purpose of get-

/ ting me into the United States, and if it is for that purpose

pared then you go back home, I do not want to marry you.’ .

_ Grace Knoll testified that her marriage to Leopold was A

consummated before entry into the United States, that she

and her husband liad. been living together as husband and .

wife after April 1, 1959, ‘that they were not diy orced, and

that’ she intended to cohtinue to live with her husband as

~) his wife. “The jury ae ae Grace’ s~ husband, pce ae

Knoll. a

By sniuittng bog sold Knoll, the jury necessar ily de-

_ termined that he‘*was not a member of the. conspiracy

‘alleged, ‘and.also to: ail intents and purposes that his mar-

riage to Grace was ‘not ‘ostensible. > ares

In. the light of’ this judicial determination and of ‘the

testimony showing the intentions of Leopold and Grace

-.to remain mafried, the rule announced in the opinion

_ of the Court with respect to ‘‘ostensible’’ wives is not

applicabld to this marriage. While the Court may have

-_-coneluded that there was. sufficient evidence of the lack

of good fai.” Jn her marriage to hermit Be 88 Osborne. to

39

testify, the record and the jury’s verdict do not permit

thé conclusion that Grace Knoll was a competent witness...

Hence, it was error to admit the testimony of Grace

- Knoll over the objection of her husband Leopold Knoll,

as against both Leopold Knoll and. the other defendants.

The- error was compounded ‘by. calling her as a.court’s

witness, and by asking her questions which required her

to plead the privilege aguinst self-incrimination.

he Admission Against the Defendafits of Declarations -

Not in Furtherance of the Conspiracy Was Prejudicial

Error. . os | Sip

The opinion of the Cour: asserts that only one declara-

.tion tiade after the conspiracy ended was admitted against

all the alleged conspirators. ‘The Court, however, holds

that the error was harmless, - : :

Yet another declaration, mace prior to the termination of —

the conspiracy but not in furtherance of the common de-

sign, was also adin'tted against all of. the defendants even

~ though some of them were not present when the declaration |

was made. (The government contended in its Brief (p.34 fn.

18) that this declaration was not in fact admitted against

all of the conspirators, but government counsel, at the time

of oral argument, conceded in conversation with petition-"’

ers’ counsel that in fact. this second declaration was \so

admitted against: all.) | | |

So that the record is perfectly clear, these are the facts.

-conéerning that declaration. The record shows (R. 155)

that the witness. Haberman was asked if he had a con-

versation with the defendants Munio Knoll and Marcel

Lutwak about the defendant Leopold Knoll. He answered,

‘‘yes’’, and ‘then the jury was asked to step oat of the

0

ae as

room before the witness related the conversation. Haber- .

man then said, out of the presence of the jury (R. 155):

By the Witness:: Mr. Munio Knoll told’ me the

reason he was.in New York was because he -was

expecting ri brother from Europe, and Mr.. Marcel .

Laitwak said he probably will arrive the following day

and will be able to stay in Chicago. Then:Mr. Munio

Knoll said to nie, ‘‘ Well, you see how easy it is if vou

know how to come to the United States.’ :

Defense counsel objectéd that this conversation was not in

_ furtherance of the conspiracy charged and was therefore -

not admissable ageinst’the other defendants (R. 155-60).

Thereupon the court overruled the objection (R. 160), and

in the presénce of the jury, Haberman testified (R. 160):

Q, Will you relate the conyersation? .

A: Mr. Munio Knoll told me that the purpose

for his stay in New York was because he was expect-

™ ing the arrival of his brother Leopold, and Mr. Mar-

eel Lutwak remarked that they had been expecting

him for two days now, and he hadn’t arrived, and if |

he did not arrive by tomorrow, which would be Wednes-

day, he, would have to, go back for business reasons to |

Chicago. | / .:

@. Was there anything else said at that particular

time about the matter? i. j qireln

A, No. ,.The only thing that was sdid is that when

~ Mr. Munio Knoll mentioned about his brother coming, ©

he says, ‘‘ You see how easy it is to come to the United

States if you"know-how.’?. > ok ea

. This Conversation was not properly admitted against

the defendant Regina Treitler since the italicized portion

was not in furtherance of the conspiracy. |

Government Exhibit No. 19 is a certified copy of the di-

vorce décree terminating the marriage of Maria and -

Mareel Lutwak. This decree was obtained Jong after

thé conspiraey ended.’ A certified copy of it was admitted

| ee Sno Bek ; :

7 Steerer eee

a)

te, S

-

“41

against all of the defendants over objection, although such

a writing is meameay, 0}: Parad Seal wigs 2

Moreover, Government Exhibits Nos. 22, .23,-24 and 25

are pliotographs of Munfo Knoll, Maria, and other people

- in night plubs many months after the termination of the

alleged conspiracy. These photographs are evidence of a

hearsay nature showing that Munio and Maria were to-

gether in night clubs, and hence some of them are not prop-

erly admissible against Marcel Lutwak,.and nong of them is

‘competent against Regina Treitler. In any event, the pro-

bative value of the presence together of Maria and Munio

Knoll in night clubs is remote, and the photographs were

prejudicial in that they conveyed to. the jury the idea that.

‘these refugees were. rich night-club-goers celebrating thbir

ilegal entries. =°. 2 tert

Thus, there were admitted ‘against Regina Treitler two-

damaging declarations, foitr photographs, and the divorce

a. a . | cS AROSE 2

There was admitted against Marcel Lutwak one declara-

tion and two photographs, | ae

Against Munio Knoll there Was admitted the divorce de-

eree, - | \

’

In considering whether the erroneous admission of these °

exhibits and testimony. is *reversible error, the govern-

ment’s case against each of the defendants must be cor- .

sidered separately. It is submitted that, in the case of

all three, to deny that the admission of these declara-

tions and hearsay evidence was prejudicial is to vitiate the

_ harmless error rule. % * ; es,

In Krulewitch v. United States, 336 U.S. 440 (1949),

a ‘single declaration not in furtherance of the conspiracy

charged was held to: be improperly admitted against the

defendant. That sinele declaration was not considered to

be harmless error, 7

| /

Fal emer

: me

_ The government here charged one overall: conspiracy in-

vol¥ing three ostensible marriages to facilitate Mlegal en-

tries into the United:States. Yet there is absolutely: no +

evidence that’ any other defendant had anything to do

with Marcel Lutwak’s trip to,Paris during which he mar-

ied Maria. It is perfectly consistent with all the facts

1 the record to contend that this marriage was in no way

- connected with the others.

While we donot here urge that to draw the inference.

of one conspiracy from the - evidence in the record was

error, the lack of evidence connecting the Marcel-Maria_

marriage with any overall scheme is significant in deter-_

mining what is and what is not harmless error. Cf. Kot-

teakos v. United States, 328 U.S. 750 (1945).

_ Also of significance is the fact .that the testimony of the

wives. apart, the most important evidence came from the

witnesses Haberman and Ludnier, both of whom confessed_

anfmosity toward the defendant Manto Knoll.. Ludmer’s

wife, for example, wrote a. letter to Munio Knoll threaten-

ing to expose him if he did not pay her $15,000 (R. 124-25), ©

and althongh the letter was notpermitted to be used to

impeach Ludmer; Ludmer’s hatred for the defendant Munio

Knoll is clear from-his testimony.

/

‘Finally, Bess Osborne, the-ostensible w ife without ee

s testimony a conviction .could not have been obtained, and |

Maria Knell, Munio Knoll’s first wife, were accor plice.

witnesses. Accomplice testimony is unreliable pnder any

_-citéumstanees, and is particularly dubious when it is re-.

membered that these accomplices were not indicted, w here-

S Grace Knoll, another ‘‘ostensible’’ wife, who refused-to

cooperate with the government, was indicted, — : °

These facts, in view of the entire record, should’ ‘give

_ Pise. to some hesitation before the conclusion is reached that

the jury might not have been influenced: by damaging: dee-

larations improperly admitted against all the: defendants.

43 4

_ Conclusion. .

This petition for rehearing has not been prepared. as a

routine gesture. Nor—and counsel so certify—is it in-

tended. for purposes of delay. Ruther jt is submitted by

reason of petitioners’ —and counsel ’s—passidnate convic-

tion that a grave injustice has been done—both to the

persons inv olved i in this case and to the principles and pro-

cedures which have ‘pastes the Anglo-American legal system

great. |

An effort has therefore beer’ made to express, as clearly

and fully as possible, the implications of this “Court's de-

| cision—not only with respect to this” ease itself but also

with respect to the eriminal law, and particularly the rules’

of evidence pertaining in trials of conspiracy.

With all due respect to this’ Court, we submit that the

arguments advanced in this petition permit of only ‘one

result: the convictions must be reversed. And that result—

we say to the Court—is a small price to pay for the preser-

vation of rules of law basic to our finest traditions and our

ees il 1: Caml a ict .

Respectfully submitted,

ANTHONY Brapiey Keen,

Ricnarp F. Warr, _

he tee a ~ Beryarp Weisspourp, |

23 February 1948. ; . _ Counsel for Petitioners.

_Josepu L. NELLIS, 3 . | Pie: ;

Dunnine, Neus & Lunpry,

Of Counsel. °

-

.

CERTIFICATE OF COUNSEL. :

T hereby certify that the foregoing ‘Petition for Rehear-

ing is presented 1 in n good faith and not for delay. |

‘

3 rcp neal ated niga at

C ounsel for Petitione rs.

APPLICATION FOR ADMISSION 10 THE UNITED STATES

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and for ©

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lag ow classes ex lained to me, apd I ¢ @ member of anyone of such claasia: Paupers;

rants; polygamists; anarch 3 Persons w.io believé in or advorate the overthrow by force or veelenee

States, or the absassination of public officials, or the unlawful destruction of meh mi cpl or who ha

sea ie psig procurers; persons liable to become public charges; persons — byt

tted to leave the United States voluntarily ‘under the order of deportation; aliens ineli

th nse of the United States under the provisions of section 23 of the act of F ook 7k 1917;

service. ad eo Lt

W HEREfORE, I a ply for adisleatan to the United States, and for registration

under the Alien. istration Act of 1940, of — and my above-named accom)

panying alien children under 14 years f age ‘ “3

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