Petitioners Brief — Pereira v. United States

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FILED

SEP 30 1953

HAROLD B. WILLEY,

IN THE

Supreme Court of the Anited States

Octoper TERM, 1953.

No. 50.

VICTOR EMANUEL PEREIRA and

FUGENE H. BRADING,

Petitioners,

against

THE UNITED STATES OF AMERICA.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT.

BRIEF OF PETITIONERS.

. CHARLES L. SYLVESTER,

/ Wituiam H. Fryer,

” SiwneEy G. KINGs_Ley,

Counsel for Petitioners.

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SUBJECT INDEX.

PAGE

Orrnions or Courts BELOW 1

JURISDICTIONAL STATEMENT 1

STaTEMENT OF THE CasE

Testimony of Mrs. Joyce (Gertrude Joyce Pereira) +

Other Testimony 8

SPECIFICATION OF Errors 11

SratutTes INVOLVED 12

ARGUMENT 14

Pornt I.—Under Rule 26 of the Rules of Criminal

Procedure and the decisions of this Court, the

wife of a defendant in a criminal case may not

testify, over his objection, to confidential communi-

cations made by him during the marriage, where

the case involves no injury to her person or morals.

The matrimonial privilege against disclosure of

confidential communications may not be rejected on

the ground that the marriage is ‘‘sham’’ when the

marriage was valid as between the parties, there

was no express or implied reservation by either,

the marriage was consummated, and the parities not

only cohabited but held themselves out as man and

wife 15

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—— . — COS AS MOD IMIR YP TO A Re Sp I NI BNE BSR

Point II.—When an indictment charges a conspiracy

to commit the same offenses charged in a number of

substantive counts, each of which itself charges a

scheme which amounts to a conspiracy, conviction

on the conspiracy count, followed by a cumulative

sentence, amounts tc double jeopardy 24

Pornt III.—In the absence of evidence of any agree-

ment to use the mails to defraud or to transport

stolen property across State lines, a count charging

conspiracy to commit those offenses must fall........ 27

Pornt IV.—The conviction of the petitioners of the

substantive offenses of using the mails to defraud

and of transporting stolen property was unsup-

ported by proof of the crucial fact of the mailing,

and represents an unwarranted extension of Fed-

eral criminal jurisdiction into the proper domain

of local law enforcement authorities 29

ConcLusiIon

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NOPD i a 8 RGN ABORT TIE tte ite 0

TaBLE oF CASES.

PAGE

Bassett v. United States, 137 U. S. 496 18

Blau v. United States, 340 U. S. 332, 333-334............... 18, 19

Blockburger v. United States, 284 U. S. 299, 304........ 25

Blue v. United States, 138 F. 2d 351, 358 (C. C. A. 6th) 25, 26

Bollenbach v. U. S., 326 U. S. 607, 614... eeeeeee ee 32

Brady v. United States, 24 F. 2d 399 (C. C. A. 8th)... © 31

Braverman v. United States, 317 U. S. 49..............-.---- 26

Clark v. United States, 289 U. S. 1, 14 22

Davis v. United States, 12 F. 2d 253 (C. C. A. 5th)... 26

Decker v. United States, 140 F. 2d 378 (C. A. 4th)... 29

Fulbright v. United States, 91 F. 2d 210 (C. C. A. 8th) 28

Gable v. United States, 84 F. 2d 929 (C. C. A. 7th).... 28

Greenbaum v. United States, 80 F. 2d 113 (C. C. A.

9th) ...... 31

Hopkins v. Grimshaw, 165 U. 8. 342 19 |

Krench v. United States, 42 F. 2d 354, 356 (C. C. A.

ED © eknccscciectensrenenreennrintninionsaanmnee 26 ;

Langer v. United States, 76 F. 2d 817 (C. C. A. 8th).. 28 ;

Lutwak v. United States, 344 U. S. 604 21, 22

Mackett v. United States, 90 F. 2d 462 (C. C. A. 7th)... 31, 32

Mazurosky v. United States, 100 F. 2d 958 (C. C. A.

9th) 28

Menafee v. Commonwealth, 189 Va. 900,55 S.E.2d9 19 4

Mortensen v. United States, 322 U.S. 369, 374............ 29 :

Overton v. State, 43 Tex. 616, 618-9 18, 19

People v. Daghita, 299 N. Y. 194, 86 N. E. 2d 172........ 19

People v. Ernst, 306 Il. 452, 1388 N. E. 116... 19

Pereira v. United States, 202 F. 2d 830 1

Pinkerton v. United States, 328 U. S. 640, 644, n. 4.... 25

Robinson v. United States, 33 F. 2d 238 (C. C. A. 9th)

Rosenberg v. United States, 120 F. 2d 935 (C. C. A.

10th)

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iv |

PAGE

Sealfon v. United States, 332 U. 8. 575 26

Shores v. United States, 174 F. 2d 838 (C. A. 8th)... 19

Stein v. Bowman, 13 Pet. (38 U. 8.) 209, 222................ 18

Stokes v. United States, 157 U. S. 187 31

United States v. Baker, 50 F. 2d 122 (C. C. A. 2d)...... 29, 31

United States v. Cohen, 145 F. 2d 82 (C. C. A. 2d)...... 28

United States v. Crimmins, 123 F. 2d 271 (C. C. A.

eer ee cele moiias Sapa ee tI 11, 27, 28

United States v. Graham, 87 F. Supp. 237 (E. D.

Mich.) 22

United States v. Handler, 142 F. 2d 351 (C. C. A. 2d) 29

United States v. Mitchell, 137 F. 2d 1006 (C. C. A. 2d) 18,19

United States v. Sheridan, 329 U. S. 379, 386-390........ 29

United States v. Walker, 176 F. 2d 564 (C. A. 2d)...... 18, 19

Van Riper v. United States, 13 F. 2d 961 (C. C. A. 2d) 25

Whealton v. United States, 113 F. 2d 710 (C. C. A.

3d) 29

Williams v. North Corelina, 395, v. S. 226, 232............ 20

Wolfle v. United States, 291 U.S. 7, 13-14... 17, 23

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pe ve

SraTures.

PAGE

62 Stat. 928, 28 U. S. C. 1254(1).... 1

62 Stat. 763, 18 U.S. C. 1341...... 2,12

62 Stat. 701, 18 U. S. C. 371 (Conspiracy).................. 2,13

62 Stat. 806, 18 U. S. C. 2314 (National Stolen Prop-

erty Act) 2,13

62 Stat. 763, 18 U. S. C. 1341 (Mail Fraud)................ 2,12

Rules of Criminal Procedure, Rule 26.......... 14, 15, 17, 18, 32

AUTHORITIES.

Annot., 10 A. L. R. 2d 1389...... 19

2 Freeman, Judgments (5th ed. 1925) Sec. 906............ 20

2 Wigmore, Evidence, Sec. 488, p. 574.............---..---.-- 18

8 Wigmore, Evidence,

ee ee ee ee 21

2) Ea 17

SS ene va 23

BE IE pieinicipreiniitircnceoretencninctcen sail sii 19

Fe I cciascissanieendsesoniaiands 19

Sec. 2341(2) ............-....... 18

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LLM PEE RT IR A Ne IR a a ae

IN THE

Supreme Court of the United States

Ocroser Term, 1953.

Victor Emanvew Perema and Evcene H. Braprna,

Petitioners,

against

Tue Unrrep States or AMERICA.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT.

PETITIONERS’ BRIEF.

Opinions of Courts Below.

There was no opinion in the United States District Court

for the Western District of Texas, El] Paso Division.

The majority opinion of Rives, C. J., in the Court of

Appeals for the Fifth Circuit is reported in Pereira v.

United States, 202 F. 2d 830, and appears at pages 148-158 :

of the record. ;

The dissenting opinion of Hutcheson, Ch. J., is reported

at 202 F. 2d 837 and appears at pages 158-159 of the record.

Jurisdictional Statement.

The jurisdiction of this Court is invoked under 62 Stat.

928, 28 U.S. C. 1254(1).

Certiorari was granted by this Court on June 15, 1953

(R. 164).

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Statement of the Case.

This Court has granted certiorari (R. 164) to review

a judgment of the United States Court of Appeals for the

Fifth Circuit (R. 160) which (Hutcheson, Ch. J., dissent-

ing in part) affirmed a judgment of the United States

District Court for the Western District of Texas, El Paso

Division (R. 141) convicting the petitioners on three counts

of an indictment (R. 141).

The indictment originally included eleven counts, eight

of which were dismissed at the close of the trial on the

Government’s motion (R. 1-8, 109).

The petitioners were convicted under the first count

(R. 1-2) of a charge of mail fraud (62 Stat. 763, 18 U.S. C.

1341) ; under the tenth count (R. 5-6) of a charge of violat-

ing the National Stolen Property Act (62 Stat. 806, 18

U. S. C. 2314); and under the eleventh count (R. 6) of a

charge of conspiracy to commit the acts alleged in the first

ten counts, including the eight which had been dismissed

on the Government’s motion (62 Stat. 701, 18 U. S. C. 371).

The First Count alleges that Brading and Pereira, the

petitioners, ‘‘devised and intended to devise a scheme and

artifice to defraud Mrs. Gertrude J. Joyce’’ by falsely

representing that Pereira was obtaining a divorce in

Denver, Colorado and was to receive $48,000 as a settle-

ment; that he was a wealthy businessman; that he was a

hotel man of wide experience and had an option to buy a

certain hotel in Greenville, Texas; that it was a fine finan-

cial proposition and would earn a fine living for Mrs. Joyce

and him; that he needed immediate cash for this purpose

(R. 1); that Brading was a wealthy oil man and was to

close an oil lease; that if Mrs. Joyce would lend Pereira

$5,000 he would double his money; and that Pereira was

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violently in love with Mrs. Joyce (R. 2). It is alleged that

Mrs. Joyce advanced $35,286.78 to Pereira and lent the

defendants $5,000, and that she was induced to marry

Pereira (R. 2). This count alleges that on June 15, 1951,

for the purpose of executing the scheme, Pereira and

Breding

‘‘caused to be placed in an authorized depository

for mail matter a letter addressed to the Citizens

National Trust & Savings Bank, Los Angeles,

California, to be sent and delivered by the Post

Office establishment of the United States’’ (R. 2).

The Tenth Count alleges that on the same date Pereira

and Brading, with unlawful and fraudulent intent, caused

to be transported in interstate commerce from El Paso to

Los Angeles a check drawn by Fewel & Company on

Citizens National Trust & Savings Bank payable to Mrs.

Joyce in the amount of $35,286.78 (R. 5-6).

The Eleventh Count alleges that, commencing on or

about April 19, 1951, Pereira and Brading conspired to

commit the offenses set out in the first ten counts of the

indictment (including the eight counts dismissed on the

Government’s motion at the close of the trial (R. 109)) and

that pursuant to that conspiracy they performed each of

the overt acts alleged in the preceding ten counts (includ-

ing those dismissed) ; had a conversation with Mrs. Joyce

and Kathryn Joyner in the Del Norte Hotel at El Paso;

opened an account at the State National Bank in that city

in the name of Pereira; and on June 15, 1951 caused Mrs.

Joyce to endorse a check at the Del Norte Hotel (R. 6).

The single incident which is the asserted basis of Fed-

eral jurisdiction is the alleged mailing for collection by the

State National Bank of El Paso, Texas, to the Citizens

National Trust & Savings Bank of Los Angeles, California,

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of a check drawn on the Citizens Benk by Fewel & Company

to the order of Gertrude J. Joyce (who was at that time the

wife of the petitioner Pereira).

Although the fraud charged by the indictment was an

ordinary scheme to obtain money by false pretenses, the

single alleged mailing which was an adventitious conse-

quence of the scheme and which was the basis of the convic-

tion of the defendants has been punished by a maximum

sentence, as to each of the petitioners, of five years on the

mail fraud count, a concurrent maximum sentence of ten

years on the stolen property count, and a cumulative sen-

tence of two years on the conspiracy count (R. 143-144).

Testimony of Mrs. Joyce (Gertrude Joyce Pereira).

The Government’s case rested largely—and its essential

elements entirely—on the testimony of Gertrude J. Joyce

who, during the greater part of the period to which the

indictment refers, including the times of the principal

material misrepresentations, of the mailing and of the con-

summation of the fraud, was the wife of the petitioner

Pereira. She was by her own account fifty-five years old—

at least ten years older than Pereira (R. 46)—and had been

married twice before (R. 11, 53, 55). She was a woman of

substantial means, and had various business and property

interests (R. 55-56).

She testified that she and her haif-sister, Kathryn

Joyner, casually met the appellant Brading, known to them

as Lee, on the steps of the Del Norte Hotel in El Paso,

Texas (R. 11-12). Brading took them into the cocktail

lounge of the hotel and introduced them to Pereira (R. 12).

The four visited Juarez that evening and the next, having

dinner and attending various night clubs (R. 13, 14).

Pereira was already making love to Mrs. Joyce (R. 14).

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aa eae % “ RES SMA Rae i AF THE

Within two days from the time when they first met, and at

her suggestion (R. 42-43), she had invited Pereira and

Brading to become house guests at her home in Roswell,

New Mexico (R. 14). They accepted the invitation (R. 14).

Pereira told her that he was a hotel man from Denver,

that he was getting a divorce there, and that he had given

some hotels to his wife Ada as part of the divorce settle-

ment (R. 50, 51). At Roswell, he received a telegram say-

ing that his divorce would soon be granted and that he

would soon receive $48,000 as his share of a property settle-

ment (R. 15, 17).

Pereira and Brading had been talking about the oil

business, and saying that when Pereira received his money

he would go into that business with Brading (R. 15).

Brading later told her that there were some leases on which

they could double their money, but that Pereira would have

to pass up the opportunity because his funds would not be

available for a month (R. 15, 16). Pereira was not present

(R. 16). Brading said that he himself was investing

$2,000, and asked her to let Pereira have $5,000 (R. 16).

She accordingly wrote out a check for $5,000 (R. 16).

She and Pereira visted El Paso several days later, stay-

ing there several days (R. 17). Pereira told her that

Brading was going to meet him there to sign some leases

(R. 17).

They visited Juarez again that night, drove back to

Roswell and ‘‘had a good, gay time’’ (R. 17). She invited

some friends to a birthday party in Pereira’s honor (R. 17).

- AA few days later, at Pereira’s suggestion that they ‘‘take

a little trip together and become better acquainted,’’ and

at her expense, he and Mrs. Joyce took a trip to Wichita

Falls, where they spent several days (R. 17-19). A letter

she then wrote to Miss Joyner boasts of ‘‘loads of fun’’ and

a severe hangover (G-2, R. 19-20). Brading joined them

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there for the weekend, and all three then drove to Dallas

(R. 20) where they sojourned a few more dévs (R. 43-46).

There they attended various parties in the company of a

lady known as Red Snapper, ‘‘an old, old friend’’ of Mrs.

Joyce (R. 57), and who completed the foursome (R. 58).

At all of these occasions Pereira and Mrs. Joyce stayed

at hotels where, as the majority opinion in the Court of

Appeals aptly put it, they observed the proprieties of reg-

istering in their own names for separate rooms (R. 44-45,

47, 151).

Pereira and Mrs. Joyce then went to Hot Springs for

a few days, and there decided to get married in Kansas

City (R. 23, 24). They proceeded to Kansas City, where

their conduct was such as to give evidence of an extended

course of immoderate drinking and to leave small doubt of

the degree of their intimacy (R. 46-49).

Pereira had expressed the expectation of being able to

buy a Cadillac (R. 22-23). Mrs. Joyce volunteered to lend-

him the money (R. 23-24).

Mrs. Joyce and Pereira were married in Kansas City

on May 25, 1951 at a wedding attended by all of her friends

in Kansas City and by Brading and Kathryn Joyner, who

flew up for the ceremony (R. 25). All of them attended

a cocktail party the next day at the home of her friends,

who were ‘‘very prominent people in Kansas City’’ (R.

25). Shortly after the marriage she advanced the funds

with which he purchased the Cadillac (R. 25-26).

Pereira told his wife, in Brading’s presence, that he

had telephoned Greenville, Texas and found out that he

could buy a hotel there (R. 27-28). He suggested that they

drive by Greenville and see it (R. 28). They visited the

Washington Hotel at Greenville, and looked at it (R. 28,

29). Pereira and Brading discussed the question whether

it would be advisable for Pereira to buy it, Brading saying

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alla PEELE NS OSE MN AE Sint POOR aa LAR ma

that he did not know anything about the hotel business

(R. 28).

In Dallas, Pereira had a private discussion with his wife

about the hotel in Greenville (R. 29). He suggested that

she go in with him on the investment, and said that he

thought he could buy the hotel for $78,000 (R. 29). She

offered to sell some securities for that purpose (R. 29).

He said that he had a broker named E. J. Wilson whom he

was going to see about the deal (R. 29). He went out and

was gone all day, and returned saying that he had an

option on the hotel (R. 29). The option was not offered

or received in evidence, but she was permitted to testify

as to its contents (R. 30).

On June 2, 1951, Mr. and Mrs. Pereira returned to Ros-

well and there attended a party or ball, because she ‘‘ wanted

everyone to meet’’ him (R. 30). On June 11th, he told

her that he had called Wilson’s office about an extension

of the option (R. 31), and later told her that he had

received a telegram signed in the name of Wilson extending

the option (R. 31).

Mrs. Pereira, after directing the sale of certain securi-

ties, received as the proceeds of the sale a check of Fewel &

Company, her brokers, for $35,286.78, drawn on the Citizens

National Trust & Savings Bank of Los Angeles (R. 31,

G-4, R. 33). She and Pereira went to El Paso to deposit

the money because he had an account at the State National

Bank there, and because she

‘¢. .. decided I did not want everybody in Roswell to

know about this deal’’ (R. 31).

A few days later Pereira told her that Brading wanted

him to drive to a little town in Texas to pick up some oil

leases (R. 34). On the morning of June 15, 1951 Brading

and Pereira departed (R. 34-35), and she did not see them

again until the trial (R. 36).

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She was divorced from Pereira on June 16, 1951

(R. 10), more than a month after the date of the indictment

(R. 1) and less than two months before the trial (R. 8).

Other Testimony.

Miss Kathryn Joyner corroborated her half-sister’s

testimony as to the circumstances under which they first

met Brading and then Pereira (R. 62-65). For the rest,

she merely testified that Pereira had mentioned receiving

a telegram about his divorce and a $48,000 settlement, that

the four had stopped at Greenville on the way from Kansas

City to Dallas after the wedding, and that Pereira had said

he had looked at the hotel to lease (R. 64-65). She testified

that Mrs. Pereira never said anything to her about these

financial transactions with her husband (R. 65).

The Clerks of the Denver courts having divorce juris-

diction testified that there was no divorce case there in

1951 or during several preceding years to which Pereira

was a party (R. 65-66, 75-76).

The lessee of the Washington Hotel at Greenville and a

representative of the owner of the hotel denied knowledge

of any option to Pereira, but the lessee testified that there

had been a considerable amount of activity by interested

persons looking generally toward the purchase of the fee

ownership as well as the lease (R. 69-70, 77-81). The hotel

had been listed for sale (R. 80). The lessee also testified

that he had discussed with a broker the possibility of a

transfer of the lease (R. 78-80, 81-82), and that although

he was approached about the possibility of selling the lease

he could not do so without the consent of the owners

(R. 78-79) and of his partner (R. 81).

A friend of Mrs. Joyce residing at Ruidosa, New Mexico

(R. 84) testified that Mr. and Mrs. Pereira were her guests

at a dinner party in June; and that Pereira expressed love

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for his wife, stated that he had owned several second rate

hotels, and said that he had to fly back to Greenville to take

up an option on a hotel there (R. 84-86). Brading was not

present at this time (R. 87).

There was evidence that a telegram was sent from Fort

Worth to Pereira in Roswell on June 13th (G-12, R. 83)

purporting to authorize a seven-day extension of an option

by E. J. Wilson (R. 82). The proprietor of a telephone

answering service in Fort Worth testified that Brading

was a customer of his service at this time, and was known

to him as E. J. Wilson (R. 107-108).

There was also testimony that on the afternoon of June

20th Pereira, accompanied by a woman, registered as

‘‘Victor Perry’’ at a hotel in Oklahoma City (R. 88-92).

There was no direct testimony as to the deposit in any

mail depository of the check of Fewel & Company in the

amount of $35,286.78 (G-4, 33) and its transmission by mail

to the Citizens National Trust & Savings Bank for collec-

tion. An officer of the State National Bank at Dallas testi-

fied that, according to the bank’s records, the check was

entered for collection and sent by mail to the Citizens

National Bank with instructions to ‘‘wire fate’’, wire advice

of payment was later received, and payment made to

Pereira (R. 95-99). A clerk of the bank testified that the

check was deposited for collection and sent to California,

and the alleged proceeds paid to Pereira, but it is apparent

that his testimony as to the alleged mailing was also based

on the records of the bank rather than being first-hand

(R. 104-105).

There was evidence that a telegram sent on April 24,

1951 from Denver, signed ‘‘Curtis’’ and addressed to

Pereira at Roswell, giving a purported net figure of a

property settlement as $48,895 (G-10, R. 68, 66-67) was sent

by a friend of Pereira named Gibson after receiving the

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“9ST RE

text from Pereira in the form of a written message in his

handwriting (R. 70-75).

The defendants did not testify or offer evidence in

their own behalf, but rested at the end of the Govern-

ment’s case (R. 109).

After dismissal of eight counts charging mail fraud,

the jury convicted the petitioners of the charge of mail

fraud under the first count, of transporting stolen property

under the tenth count, and conspiracy under the eleventh

count (R. 141). The sentence of the Court was the maxi-

mum confinement under Count One, five years; the maximum

confinement under Count Ten, ten years, to run concur-

rently; and a cumulative sentence of two years under

Count Eleven (R. 143-145).

The Court of Appeals affirmed the judgment, Hutcheson,

Ch. J., dissenting in part (R. 160). The Court held that the

testimony of Mrs. Pereira (now once more Mrs. Joyce)

was in general admissible against her husband by reason

of the divorce prior to the trial. It held, moreover, that the

petitioner Pereira could not assert his privilege against

the disclosure of confidential matrimonial communications

made to his wife during the marriage, because as far as he

was concerned the marriage was a mere ‘‘sham and pre-

tense’’. The Court held that when the check of $35,286.78

received by Mrs. Pereira from her brokers and endorsed

by her to him was mailed for collection by the El Paso bank

to the Los Angeles bank on which it had been drawn, that

mailing constituted the mailing referred to in the first count,

the interstate transportation of a security obtained by

fraud as charged in the tenth count, and the culmination

of the conspiracy charged in the eleventh (R. 148-158).

Hutcheson, Ch. J., concurred in the affirmance as to both

petitioners on Count One, the mail fraud count, and as to

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~~ OTR Bie EM HS LIA BA it

Pereira on Count Ten, the transportation count. He dis-

sented as to Brading on Count Ten because proof that

Brading caused the transportation was wholly lacking. He

also dissented as to both petitioners on Count Eleven, the

conspiracy count, on the ground that conviction as to that

count and the cumulative sentence amounted to double

jeopardy; and on the further ground that, following

United States v. Crimmins, 123 F. 2d 271 (C. C. A. 2d), the

fact that a jury might have found the petitioners guilty of

the substantive offense did not authorize a conviction of the

conspiracy (R. 158-159).

Specification of Errors.

1. The Court of Appeals erred in holding that the wife

of a defendant in a criminal case may testify, over his

objection, to confidential communications made by him

during the marriage, where the case involves no injury to

her person or morals.

2. The Court erred also in holding that the matrimonial

privilege against disclosure of confidential communications

may be rejected on the ground that the marriage is

‘‘sham’’, and such communications disclosed, in a case

where the marriage was undoubtedly valid as between the

parties, there was no express or implied reservation by

either, the marriage was consummated, and the parties not

only cohabited as man and wife but so held themselves out

to the world.

3. The Court erred, further, in holding that when an

indictment charges a conspiracy to commit the same

offenses charged in a number of substantive counts, each

of which itself charges a scheme which amounts to a con-

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i —:

spiracy, conviction of the conspiracy count followed by a

cumulative sentence on that count does not amount to double

jeopardy.

4. The Court erred in holding that there may be a con-

viction of conspiracy to use the mails to defraud and to

transport stolen property across State lines in the absence

of evidence of any agreement to do so.

5. The Court erred in holding that the boundaries of

Federal criminal jurisdiction may be extended into the

proper domain of local law enforcement authorities in

order to deal with transactions amounting to ordinary

larceny by fraud, through interpretation of the mail fraud

and stolen property statutes, where the jurisdictional facts,

the use of the mails and the transportation in interstate

commerce, are not proved.

Statutes Involved.

62 Stat. 763, 18 U. 8. C. 1341 (Mail Fraud):

Whoever, having devised or intending to devise any

scheme or artifice to defraud, or fear obtaining money or

property by means of false or fraudulent pretenses, rep-

resentation, or promises, . . . for the purpose of executing

such scheme or artifice or attempting so to do, places in

any post office or authorized depository for mail matter,

anv matter or thing whatever to be sent or delivered by the

Post Office Department, or takes or receives therefrom,

any such matter or thing, or knowingly causes to be

delivered by mail according to the direction thereon, or at

the place at which it is directed to be delivered by the

person to whom it is addressed, any such matter or thing,

shall be fined not more than $1,000.00 or imprisoned not

more than five years, or both.

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62 Stat. 806, 18 U. 8. C. 2314 (National Stolen Prop-

erty Act):

Whoever transports in interstate or foreign commerce

any goods, wares, merchandise, securities or money, of the

value of $5,000.00 or more, knowing the same to have been

stolen, converted or taken by fraud ... shall be fined not

more than $10,000 or imprisoned not more than ten years,

or both....

62 Stat. 701, 18 U. 8. C. 371 (Conspiracy):

If two or more persons conspire .. . to commit any

offense against the United States ... and one or more of

such persons do any act to effect the object of the con-

spiracy, each shall be fined not more than $10,000 or

imprisoned not more than five years, or both.

;

he eared

ARGUMENT.

Summary of the Argument.

Point I. Under Rule 26 of the Rules of Criminal Pro-

cedure and the decisions of this Court, the wife of a defend-

ant in a criminal case may not testify, over his objection, to

confidential communications made by him during the mar-

riage, where the case involves no injury to her person or

morals. The matrimonial privilege against disclosure of con-

fidential communications may not be rejected on the ground

that the marriage is ‘‘sham’’ when the marriage was valid

as between the parties, there was no express or implied reser-

vation by either, the marriage was consummated, and the

parties not only cohabited but held themselves out as man

and wife.

Point II. When an indictment charges a conspiracy to

commit the same offenses charged in a number of substan-

tive counts, each of which itself charges a scheme which

amounts to a conspiracy, conviction on the conspiracy count,

followed by a cumulative sentence, amounts to double

jeopardy.

Point III. In the absence of evidence of any agreement

to use the mails to defraud or to transport stolen property

across State lines, a count charging conspiracy to commit

those offenses must fall.

Point IV. The conviction of the petitioners of the sub-

stantive offenses of using the mails to defraud and of trans-

porting stolen property was unsupported by proof of the

crucial fact of the mailing, and represents an unwarranted

extension of Federal criminal jurisdiction into the proper

domain of local law enforcement authorities.

icnntiinsiiiaemasnanimnnntll

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pe Rae R BA <

POINT I.

Under Rule 26 of the Rules of Criminal Procedure

and the decisions of this Court, the wife of a defendant

in a criminal case may not testify, over his objection,

to confidential communications made by him during

the marriage, where the case involves no injury to her

person or morals. The matrimonial privilege against

disclosure of confidential communications may not be

rejected on the ground that the marriage is “sham”

when the marriage was valid as between the parties,

there was no express-or implied reservation by either,

the marriage was consummated, and the parties not

only cohabited but held themselves out as man and

wife.

The evidence which, in the view of the Government,

shows that the delivery by Mrs. Pereira of the check of

Fewel & Company to her husband was obtained by fraud,

was principally her own testimony. At the time of the

principal material misrepresentations as to which she

testified, and of the alleged consummation of the fraud and

the mailing, she was the wife of the petitioner Pereira.

They were married on May 25, 1951 (R. 10), and the alleged

operative facts as to which she testified occurred thereafter

during May and June (R. 29-63). They were not divorced

until November 16, 1951 (R. 10), more than a month after

the date of the indictment (R. 1) and less than two months

before the trial (R. 8).

Under continuing objection on the ground that her testi-

mony related to confidential communications between hus-

band and wife (R. 10, 28, 29, 32, 36), she testified to the

following alleged conversations and events, among others:

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She sold some securities in California and obtained from

her brokers, Fewel & Company, a check for $6,956.55 (R.

25-26, G-3). She gave her husband this check when a

Cadillac automobile which he was purchasing was ready

for delivery (R. 25-26). He stated that the car would cost

$4,750 (R. 26). She told him that she wanted the rest of

the money returned to her, and he replied that they would

settle all that later (R. 26). He kept the money and did not

return it to her (R. 26).

Over the same objection, which was explicitly reiterated

(R. 29), she was permitted to relate the following conver-

sation: Pereira said that if she wanted to go in with him

on the investment, he could buy the Washington Hotel for

$78,000 (R. 29). She told him that she had some securities

she could sell, on which she was not making a large return

(R. 29). She said that she knew that he was capable and

she trusted him; and she offered to sell the securities (R. 29).

When she was unable to reach her brokers by telephone, he

suggested that she telephone them when they returned home

(R. 29). He said that he had a broker named E. J. Wilson

in Fort Worth, whom he was going to see about this deal,

and that he had not really made up his mind about it until

she said she would put up the money (R. 29). When Pereira

returned after an absence he reported that they had

obtained the hotel ‘‘for a song’’; that there was an old man

running it for years who wanted to get rid of it; that it was

a wonderful deal, and that he had an option on it (R. 29).

Over the same objection, she was permitted to testify

that her husband went to Fort Worth to see about the hotel,

told her that he had obtained an option on it and that he had

paid $2,500 down, and produced a purported option (R.

30). He toid her that he had telephoned his lawyer and

obtained $2,500, which he had used to make the down pay-

ment (R. 30). About June 15, her husband told her that

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_——

he had telephoned Wilson’s secretary, and received a tele-

gram granting an extension of the option (R. 30-31). When

the check from Fewel & Company arrived, they discussed

their affairs and decided that they would bank the money

in El Paso because she didn’t want everybody in Roswell,

her home town, to know about the deal (R. 31). Pereira

told her that he was going to El Paso to sign some papers

in liquidation of his prior divorce, and for which money

was waiting for him in El Paso (R. 32). She delivered and

indorsed the check to him (R. 32). On June 18, 1951,

Pereira told her that he was going to leave early next morn-

ing and be back early that afternoon, and that he would

pay her what he owed her the next day (R. 34-35).

Rule 26 of the Federal Rules of Criminal Procedure

provides in part:

‘‘The admissibility of evidence and the com-

petency and privileges of witnesses shall be governed,

except when an act of Congress or these rules other-

wise provide, by 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.’’

We assume that the divorce, although it occurred after

the date of the indictment and shortly before the trial,

rendered Mrs. Pereira competent to testify against her

former husband. 8 Wigmore, Evience, Sec. 2237. But

the husband’s privilege against disclosure of confidential

communications by him to his wife, which is the privilege

here asserted by Pereira, is quite distinct from the general

privilege excluding the testimony of one spouse against

the other. Wolfle v. United States, 291 U.S. 7, 13-14. It is

settled that the special marital privilege against the dis-

closure of confidential communications, as distinguished

from the general privilege prohibiting testimony by one

spouse against another, survives a divorce.

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8 Wicmorz, Evmence, Sec. 2341(2);

United States v. Mitchell, 137 F. 2d 1006 (C. C,

A. 2d);

United States v. Walker, 176 F. 2d 564 (C. A,

2d), cert. den. 338 U.S. 891.

In Bassett v. United States, 137 U. S. 496, in reversing a

conviction for polygamy on the ground that the testimony

of the lawful wife as to disclosures by her husband of his

second marriage was improperly permitted, this Court sus-

tained the following single assignment of error (see 137

U. S. at 497):

‘‘The District Court erred in permitting Mrs.

Sarah Bassett, the former legal [i. e. the first] wife

of the plaintiff in error, against his objection, to

testify to a confidential communication made to her

by him, while they were husband and wife, and not

in the presence of any other person.”’

Brewer, J., speaking for the Court (at 505) quoted from

Stein v. Bowman, 13 Pet. (38 U. 8S.) 209, 222, in which Mr.

Justice McLean said:

‘*Tt is, however, admitted in all the cases that the

wife is not competent, except in cases of violence

upon her person, directly to incriminate her husband,

or to disclose that which she has learned from him

in their confidential intercourse.’’ (Italics supplied.)

Bassett v. United States was decided under statutes

which were, like Rule 26, declaratory of the common law.

(See 137 U.S. at 504; 2 Wicmore, Eviwence, Sec. 488, p. 574;

Overton v. State, 43 Tex. 616, 618-9.) The opinion of this

Court in the Bassett case was clearly based upon the com-

mon law privilege against the disclosure of confidential

marital communications. As recently as Blau v. United

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ae ee or

States, 340 U. S. 332, 333-334, the Court reaffirmed that it

had ‘‘no doubt’’ as to the privilege. See also United States

v. Walker, 176 F. 2d 564, 567 (C. A. 2d), cert. den. 338 U. 8S.

891.

Assuming that the privilege against the disclosure of

confidential marital communications is limited, like the

privilege against anti-marital testimony, to exclude cases

where the alleged injury is to the wife’s person or her

morals (8 Wicmorg, Evivence, Sec. 2338), this is clearly not

such a case as falls within that narrow exception. It does

not involve any offense against her person or subjection

of her to any moral degradation such as appears in the

Mann Act cases. See Sheres v. United States, 174 F. 2d 838

(C. A. 8th); United States v. Mitchell, 137 F. 2d 1006

(C. C. A. 2d). By the great weight of authority as well as

on principle, offenses against the wife’s property do not

come within the exception. Overton v. State, 43 Tex. 616,

618; People v. Ernst, 306 Ill, 452, 138 N. E. 116; Note (1950)

98 U. of Pa. L. Rev. 719, 726; cf. Hopkins v. Grimshaw, 165

U. S. 342.*

The observation in Blau v. United States, 340 U. S. 332,

333, that marital communications are ‘‘presumptively con-

fidential’’ means simply that they are deemed to be confi-

dential unless the contrary is proved. 8 Wicmorg, Evimence,

Sec. 2336, cited at 340 U. S. 332, 333. These conversations

and communicatious occurred between husband and wife

in private, and neither in the presence of nor through any

other person. There is no evidence that they were intended

for transmission to others, or that they were not intended

to be confidential; indeed, the reverse is the case.

* Acts or transactions as well as conversations fall within the

scope of the privilege. People v. Daghita, 299 N. Y. 194, 86 N. E.

2d 172; Menafee v. Commonwealth, 189 Va. 900, 55 S. E. 2d 9;

Annot. 10 A. L. R. 2d 1389; see 8 Wiamore EvIDENcE, See. 2337.

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That all of these conferences and communications were

confidential and were intended to be so is shown by all the

surrounding circumstances: Mrs. Pereira disclosed nothing

of them to Miss Joyner, her half sister (R. 65) and

explicitly said that she wanted her to know nothing about

them (R.59). She asked that Pereira refrain from discuss-

ing them with Brading (R. 58-59). She insisted that she did

not want people in Roswell to know about these transac-

tions (R. 31, 58); indeed, this was the reason why, at her

suggestion, the check from Fewel & Company was deposited

in the bank in E] Paso rather than at Roswell (R. 31).

The Court of Appeals appeared to recognize that the

communications and conversations which are the basis of

the Government’s case were confidential and privileged,

saying:

‘*.,. Her competency to testify to any communi-

cations between husband and wife which were con-

fidential and privileged remained unaffected by the

divoree. [Citing authorities]’’ (R. 153).

The Court held, however, that ‘‘insofar as the defend-

ant Pereira was concerned’’ the marriage relation was

merely a sham used as a means to perpetrate a fraud, and

that the privilege against disclosure of confidential com-

munications was not available to him (R. 153).

This was error. There is no question that the marriage

was valid as between the parties; indeed, the divorce was

a conclusive adjudication to that effect. 2 Freeman, Jupe-

MENTS (5th ed. 1925) Sec. 906; see Williams v. North

Carolina, 325 U. 8. 226, 232. There was no express or

implied reservation by either party. The marriage was

consummated, they cohabited as man and wife, and they

held themselves out to the world as married. They agreed,

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without reservation, to marry (R. 23-24). The wedding

ceremony in Kansas City was attended by all of the bride’s

friends residing there, ‘‘very prominent people in Kansas

City’’ (R. 24-25), and the bride and groom attended a

cocktail party in their honor at the home of some of them

(R. 25). They attended a ball at Roswell, where she

‘‘wanted everyone to meet’’ Pereira (R. 30). They lived

at Roswell as husband and \..fe (R. 30-40). Pereira paid

by his own check such expenses as the salary of the man-

servant at her home (G-7, R. 40, 38) and her doctor’s bill

(G-8, R. 40, 38). Mail addressed to her as ‘‘Mrs. Gertrude

Joyce Pereira’’ was delivered (G-5, R. 36-37). They dealt

as husband and wife with an automobile dealer who sold

them a Cadillac (R. 48, 72). They visited friends as hus-

band and wife (R. 32-33, 38, 84-85).

In Lutwak v. United States, 344 U. S. 604, in which this

Court held that the wives of the defendants were competent

witnesses against their husbands, and by inference free

from the privilege against disclosure of marital communica-

tions, the marriage ceremonies were indeed sham, being

entered into under explicit agreements that the ceremonies

were to be of no effect. The parties never cohabited as

spouses, and never intended to do so; and the marriages

were properly held to be void ab initio (344 U. S. at 613-

615). The case at bar, however, is more than even a

‘limited purpose’’ marriage, to which this Court referred

as presenting a different problem (344 U. S. at 612).

The authorities cited by the Court of Appeals (R. 284-

285) as avoiding the privilege against confidential commu-

nications in this case are not in point. Indeed, that Court

has misread 8 WicmorsE, Evmence, Sec. 2230, n. 3. The

passage cited, referring to the privilege against anti-

marital testimony, says that the benefits of the privilege

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“«| . . are gained by the ingenious wrongdoer who

brings himself within its formal terms by marrying

the witness after service of subpoena and thus creat-

ing ‘ad hoc’ a domestic peace which is to be jealously

safeguarded.’’ (Italics in original.)

It is clear that the Court of Appeals has simply misread

this passage as saying ‘‘are not gained’’, and thus inno-

cently reversed its meaning. The actual text supports the

petitioners’ contentions. In the Lutwak case this Court

recognized the validity, for the present purpose, of a mar-

riage entered into in order to render the wife incompetent

as a witness. 344 U.S. at 612.

Clark v. United States, 289 U.S. 1, 14, cited by the Court

of Appeals, did not involve the marital privilege, but con-

cerned the ‘‘inveterate but vague tradition’’ (289 U. S. at

13) against a juror’s testifying regarding the jury’s delib-

erations. The importance of that ‘‘privilege’’ cannot be

compared with that of the privilege against disclosure of

marital confidential communications, in weighing the social

values for and against its refusal.

The Government will argue, citing Umited States v.

Graham, 87 F. Supp. 237 (E. D. Mich.),* that one who has

wrecked his marriage by perpetrating a fraud against his

wife should not escape punishment by asserting his marital

status as a means of suppressing what is likely to be—as

in this case it is—the only available proof of the vital

elements of the offense.

That argument begs the question, and overlooks the

reason for the privilege. The rule of privilege arising out

of certain personal relationships deliberately suppresses

evidence in a particular case for the purpose of protecting

* The question of confidential communications was not actually

presented in the Graham case since the Court there found that no

confidential communications were involved. See 87 F. Supp. at 238.

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the integrity of the social institution exemplified by that

relationship, because the protection of the social institution

is deemed a greater good in the long run than the disclosure

of truth in one case. 8 Wicmore, Evipence Sec. 2336. The

priest is forbidden to testify because preservation of the

secrecy of the confessional is deemed a greater good in the

long run than disclosure of the truth in the particular case;

the physician is forbidden to testify because the healing of

disease as facilitated by the patient’s full confidence is

deemed a greater good in the long run than disclosure of

the truth in one case; the attorney is forbidden to testify

because the need of society for his effective advice to his

client is deemed a greater good in the long run than punish-

ment for a particular offense. As this Court said in Wolfle

v. United States, 291 U.S. 7, 14, through Mr. Justice Stone:

‘‘The basis of the immunity given to communications

between husband and wife is the protection of marital

confidences, regarded as so essential to the preserva-

tion of the marriage relationship as to outweigh

the disadvantages to the administration of justice

which the privilege entails.’’

A defendant in a criminal case invokes in his own behalf

tke privilege against disclosure of confidential communi-

cations between him and his spouse. When the Court

grants that privilege it does so not for his sake but for

the sake of the others, and for the preservation and

strengthening of marriage as a social institution.

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POINT II.

When an indictment charges a conspiracy to com-

mit the same offenses charged in a number of substan-

tive counts, each of which itself charges a scheme

which amounts to a conspiracy, conviction on the con-

spiracy count, followed by a cumulative sentence,

amounts to double jeopardy.

Hutcheson, Ch. J., dissented from the decision of the

Court of Appeals sustaining the conviction on the eleventh

count, which charged a conspiracy to commit the offenses

charged in the first ‘ten substantive counts. The second

to ninth counts inclusive, which all charged a scheme to com-

mit mail fraud, were dismissed on the Government’s

motion (R. 109). In his dissent Hutcheson, Ch. J., said

(R. 159):

‘‘T am in no doubt that as a general rule a con-

spiracy count and a substantive count cannot be said

to charge the same offense so that one excludes the

other. I am equally in no doubt, however, that

where, as here, the indictment merely charges that

the conspiracy was to commit the same offenses

charged in the substantive counts, a conviction on

two of those counts and a dismissal of all the others,

followed by a conviction and cumulative sentence

on the conspiracy count, is to run a good principle

into the ground, and make double jeopardy of the

conspiracy count and the sentence on it.’’

This Court has recognized that the conspiracy statute

is being much abused, and has been carried beyond the

theory which supposes a serious and substantially con-

tinued group scheme for cooperative law breaking; and

that the joinder of conspiracy and substantive counts

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especially is being used arbitrarily and harshly. Pinker-

ton v. United States, 328 U. S. 640, 644, n. 4.

In determining whether the joinder of the conspiracy

count with the substantive counts amounts to double jeop-

ardy within the meaning of the Fifth Amendment to the

Constitution,

‘‘The applicable rule is that where the same

act or transaction constitutes a violation of two dis-

tinct statutory provisions, the test to be applied to

determine whether there are two offenses or only

one, is whether each provision requires proof of a

fact which the other does not.’’ Blockburger v.

Umited States, 284 U. S. 299, 304.

Each of the substantive counts alleges that the two peti-

tioners joined in a scheme to commit the acts which the

conspiracy count charges them with conspiring to com-

mit (R. 1-6). Under the terms of this indictment it is

plain that, as this Court said in Pinkerton v. United States,

328 U. S. 640, 644:

‘*A scheme to use the mails to defraud, which is

joined in by more than one person, is a conspiracy.’’

It has accordingly long been settled law that the rules

of evidence applicable in such a case are the same as those

where a conspiracy is charged.

Blue v. United States, 138 F. 2d 351, 358 (C. C.

A. 6th), cert. den. 322 U. S. 736-737 ;

Robinson v. United States, 33 F. 2d 238 (C. C.

A. 9th);

Van Riper v. United States, 13 F. 2d 961 (C. C.

A. 2d).

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It has also long been settled that, just as where a con-

spiracy is charged, the act of each participant in further-

ance of the common scheme is deemed the act of all.

Blue v. United States, 138 F. 2d 351, 358 (C. C.

A. 6th) cert. den. 322 U. S. 736-737 ;

Davis v. United States, 12 F. 2d 253 (C. C. A.

Sth), cert. den. 271 U. S. 688.

The scheme thus charged in the Eleventh Count is pre-

cisely the same as that charged in the substantive counts.

By its terms it, alleges that the petitioners (R. 6)

. unlawfully and knowingly conspired to commit

the various offenses against the United States which

are fully described and set out in the first ten counts

of this indictment ...’’

As this Court held in Braverman v. United States, 317

U. S. 49, such an indictment, taken as a whole, charges only

one offense and may be the basis of only one punishment:

‘*Whether the object of a single agreement is to

commit one or many crimes, it is in either case that

agreement which constitutes the conspiracy which

the statute punishes. The one agreement cannot be

taken to be several agreements and hence several

conspiracies because it envisages the violation of sev-

eral statutes rather than one’”’ (317 U.S. at 53).