Petition for Writ of Certiorari — Henry W. Grunewald v. United States

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- PETITION ‘FOR A WRIT OF CERTIORARI TO THE

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Burnexi co RT. us phil ee eilecaro acpi

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HAROLD 8... WILLEY

IN ‘THE

_ Supreme cout. of the Bnited States

OcToBER ‘ Stenm, 1955. -

> No. ] a 8 lk A

3.

¢ '~ “MAX HALPERIN, ° 0

<i | . 7 Petitioner, |

against “f es a

+ .UNITED STATES OF AMERICA.

UNITED STATES. COURT OF APPEALS

FOR THE SECOND CIRCUIT. _

HENRY G. SINGER,

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| = “™ "4 16 Court Street,

} ; Borough of Brooklyn,

New York 2,.N. Y.

HARRY SILVER,

With him on the petition,

Attorney for Petttjoner Halperin, ne:

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he had invoked the Fifth Amendment before -

the Grand’ Jury, as a calculated feature of

cross- examination by the Government at his.

trial; (B) the Court's charge that his claim of:

Constitutional privilege ‘might discredit his

trial testimony; and (C) the court’s refusal to

charge that ‘‘an innocént man may honestly

. ‘elaim that his answers may tend to incriminate

IT.

III.

him.’’, derogated the Fifth Amendment and

constituted a denial of due process at the trial,

invalidating his conv iction... tam BP Ee Matas oe

. “eae PAGE

ans i ee es

STATEMENT OF J URISDICTION...............- Ere cna es oe 2

QUESTIONS PRESENTED......--000----eeeeeees ESRC DUCS RE Ry Te,

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Constitv TION AL *Paoviston | AND Oraec TES Ixv OLVED.: 4

SraremEyr OF THE Oia. ks ert a) isn Pao 5

Arov a ra Ras Siiner soir in eee ve Ee 10°

ot (A) Elicitation euan er Halperin | ae

£

The Cour Appeals erred in holding that the -

Statute of Limitations did not bar prosecution

of Halperin on the conspiracy — (‘Count |

One) MERU es eee es SS

The Court of Appeals’ decision approving of

the Trial Court’s permitting the, government . .

on’ re-direct examination of Davis, to elicit

from. him the fact. that he had made a prior -.

consistent hypothetical statement respecting

a time when he had the same motive to make

a |

‘the Pattullo modes and Gotham payments, at .

aia a

| at

the statement as.he did at the trial, introduces

confusion into a hitherto well-settled rule of

.the law of evidence prohibiting proof of prior

‘ consistent statements. under. such ciréum-

ANNIE soi ccestcecnes pplassndisipnscecsaancletaretecglea dak

PAGE ©

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“IV. The Court, of . Appeals’ opinion .appéars to.

. hold that'a person may be guilty of corrupty—

pting to influence a witness by advising

him % plead the Fifth Amendment even though

the plea is justified. This is contrary to federal

law ompthe aubiect-.........5.0.. ncn aeehoes “ 24

t ¢ : ; 3

ConcLusign- an eon es ee ity ARNIS Pena cosoneesvendos, O06

a sal Eee eae eine: Dee MUL Dalene

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“a

fr . be e

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shy

ite js

Taste or Cases. ;

mens PAGE

Bollenbach.v..United States, 326 U. 8. 607 .......0..2..0. 17

Bruno v. United States, 308 U. S. 287.00... 17

Commbnwealth v. Smith, 163 Mass. 411, 432.000.0000... 18

. Consumers Power Co. v. Nash, 6 Ci ir., TAT esssetanteenne 19

; Dowdy v.U sited States, 4C ir, 46 F, 2d 417... i ber SL is «23

_ Fiswick v. U nited. States, 329 U..S. n : Rainepore one - 19

Guaranty Trust Co. v. a & St. Louis, R. ‘R.

4, BON oe ee Oe eee 19

Kotteakos.v. United States, 328 Ory ar Ce eas ee

Krulé witch v. United States, 386 U.S. 440.0000... - 4,19

Krulewitch v. United States, 326 U.S. 440, ae ~ 20

Latwak v. United States, 344 ‘ULS,. 604... tecarneasty BOy ae

, aes ae v. Transit Co., 204 Mo. | i ER Re oe ee ONE : 13

O'Connell v. United States, 2 Cir., 40 F: 2d 201... See 16

People v. McQuade, 110:N. Y. 284 RAP NONE scisere 19-

Raffel v. United States, 7 en Soe eee ene 3,14

z Slochower v. Board of Higher Education, 100 L. Ea. arr

Ady. Rep. No. 11, p. 449 HERE ash tfe eva oy ++.) 11, 13, 14

United States v. Herron, 28 F. 2d 122, 123, D. C. Calif. 24, 26

United States v. Irvine, 98.U. S. 450:.: Eos seiedieserconates 19

United States v. Minker, 100 1. Ed: Adv. Rep. No. 6,

We TG vn cscaes esc sssresess ents ase tee 16

‘United States v. Modern Reed é Rattan Co., 159 F.

i eee Rice Supivaus caches kebab ated eae aaa ae ae ih le | a

United States v. Potash, 2.Cir., 118 F. 2d 54.00.2000... 23

United States v. Scully, 2 Cir., 224 F. 2d 113 ............... 3s

iv

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STATUTES AND Rvtes.

7 es, . PAGE } |

United States Code, « : ee

RF Ey) &

Section Eval SS ee 45,27 -

Section -1254 of Tithe: 28... eeecessovsessssssseseeegee 2

— Section 1503 of Tithe 18:.....esnvesecsnesecetecenyigeees yp By 27

Rectan Gace of Title 16... cts... Ses 4, 27

Section 3481 of Title 18.022 ecsccececcieceeeee 4,27

Rules of Criminal Procedure, Je

Bio a ne ee pe ioe Cates a? oF

Rule737(c) .......-.. Sateen. nc pee, oe

re ee 1G

Fifth Amendment re nse eee roads hd Wes tomer os” o7

| Avrnorities: ;

. — ° eS. . ae ;

_ Professor Ralph S. Brown, in 40 American Bar Asso-

ciation Journal, 404, 406, May, 1954....0.000.02.:20... a b |

58 Amer. Jur. 465 ‘Witnesses’? Sec, 820... cccccceccceeese. | 23

3 Wigmore on Evidence, p.-725, Sec. 1040......... SSIS «18

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|

On 20 econ anapee eommncery th

o .

IN THE

supreme Court of the United States.

October TERM, 195).

Max Ha.rerry,

al oe

. Petitioner,

against — 7 re ges

ra rae a otis

Unirep States or AMERICA.

:

PETITION FOR A WRIT OF CERTIORARI TO THE »

UNITED STATES COURT OF APPEALS

FOR THE ‘SECOND CIRCUIT.

” The petitioner,. Max Halperin, respectfully prays that a

' writ of certiorari issue to rev iew: the judgment of the United

States Court of Appeals for the Second Circuit, entered

. in this case. . . _— ee ee

f* Opinions Below.

» There was no opinion in the District Court, The prevail-

ing and dissenting opinions in the Court of Appeals have

. not yet been officially reported. The prevailing opinion is

printed i in Vol. V appendix at pages 288a to 316a. The dis-

senting opinion of Judge Frank is printed in Vol. V appen-

' dix at pages 31Ga to 357a. Petitioner’s ‘application for

‘rehearing, was denied without opinion by the majority.

Judge Frank dissented in an opinion not yet officially

reported. It*is printed in Vol. V appendix at pages 380a

to 393a. 3 ee Oey ,

f Sintisiaesinh of Jurisdiction.

_ .The Court of Appeals herein’ affirmed the canviction of

the petitioner by a divided court by judgment dated and

entered on April 10, 1956, the majority consisted of Judges

Medina and Hincks.’ Judge Frank voted to reverse peti-

tioner’s conviction and to grant him a new trial. |

Petitioner duly filed for rehearing, which was denied

by order.dated and entered on June 1, 1956, Judge Frank

dissenting. This petition is filed within thirty days there-

7 after.

The mandate of: the Court of Appeals herein has been |

stayed by the Court of Appeals. pending. application for

certiorari, pursuant to its Rule’ 28(c).

The jurisdiction of this Court is invoked under Section

1254 of Title 28, United States Code, and Rule 37(c) of the

_Rulés of Criminal Procedure.

Questions Presented.

_ 1. When a defendant testifies in his own defense at his

trial, and his answers to questions show that, although

-averring his innocence, he was justified in invoking the

Fifth Amendment with regard to like questions before a‘

Grand Jury—as in this case all agree—is not that defendant

denied due process when the Governnient on cross-exami-

nation brings out before the trial jury, the fact that he

refused to answer the questions beforfhe Grand Jury,

upon such constitutional grounds?

. 2. When a defendant has been ‘subpoenaed to testify

before a Grand Jury in arf investigation, of which he isa

primary target, has claimed his Constitutional privilege,

advised the Grand Jury that he was doing so as an innoeent

man ensnared in suspicious circunistances and because-he

a .

ial

-

could rot cross-examine or be represented by counsel, may

the trial court charge the jury that they may consider °

his refusal to testify before the Grand Jury on the score «

of his credibility, although his trial testimony was éntirely —

consistent with his position before the Grand Juryt

3. Under the cireumstances surrounding a defendant's , ee

appearance before a-Grand Jury-a as set forth in the last -_

preceding paragraph, does not the Court’s instruction as

aforesaid iNegally impeach and impede the. defendant’s °

statutory right to be a witness on his own behalf?

4 Does. the rationale, of Raffel v. United States, 371

U.S. 244, apply to prior invocation of the Fifth. Amend-

ment ‘before a Grand Jury as distinguished ‘from such

action at a prior, trial? |

‘S. Does ‘not the ddktrine and rationale of Slochower

v. Hrdeily of Higher Education, decided. by this Court ‘April:

» 1956, compel the conclusion that a défendant .under the

EE LO MSS aforesaid, is denied due process of law

when he is examined by the Government and compelled

‘to admit that he refused to answer questions ‘before

the Grand Jury, and the Triat Court advisés the jury they

may consider that re ‘fusal on the subject of his credibility?

6. Is not a defendant, particularly one who asserted

that he was invoking the Fifth Amendment as an innocent |

man being plotted against and beset by: suspicious circum-

stances entitled to have the jury charged, ‘‘An innocent

man may, honestly claim his answers may tend to incrimi-°

nate him’’? |

7. Does it constitute due process to ‘subpoena a person.

to testify before a Grand Jury in an investigation of which

he isa primary target, and thereby permit’an examination ,

before trial of a de facto defendant? .

*8. Does not the opinion of the Court of Appeals that

the statute of limitations against conspiracy was not tolled,

in that certain owert acts of concealment when committed °

were. ‘chargeable to the original’ conspiracy disregard and

deny effect to this Court’s views—on proof. of subsidiaty

___-eoneealment conspiracies, fs set forth in Krulewitch v.-

United States, 336 U.S. 440, and Lutwak v.d’nited States,

344°, S. 6042 | 7

9. Does not ‘tlie conclusion - of the Court of Appeals

- herein.that a single conspiracy rather than a ‘multiplicity

of conspiracies are disclosed by the record, run counter to *

this Court’s decision, in Kotteakos ve United States, 328

U.S. 7501 | | x ?

10. Does not the record disclose thay/ the a of

one characterizable as the chief architect of the alleged

conspiracy was: improperly bolstered by -proof of his

hypothetical prior consistent statements at a time w hen he

~ had the Si une motives to prevaricate as-at the trial, and does

not the conclusion of- the Court of Appeals that stich evi-

dence of prior consistent statement was admissible contti-

tute a potentially harmful precedent in the administration

7 of erfminal Justice in the federal courts?

11. ‘Does a lawyer who advises a witness to plead the

- Fifth Amendment where the witness is justified in doing

‘so become guilty of corruptly ende “av oring to influence the

- witness merely becausé the interposition of. the Constitu-’

tional privilege might also serve to. protect the person giv-

| ing the ee: |

®

Constitutional Provision and Statutes Involved.

The constitutional. and statutory provisions involved

sare, Fifth Amendment, 18 U. S.C. 371, 18 U.S. 2c. 3282,

18 U.S. C. 1503 and 18 U. S. €. 3481. They are eens in

s

Gan aan cM” Minds -

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. .

,

Statement of the.Case.

‘The pie taneteladines seven counts was filed on-

October 25, 1954, against petitioner Max Halperin, Henry

W. Grunewald, Daniel A. Bolich and-others ;' in Count 1

all defendants-are tharged with conspiracy to defraud the

United States in the exercise of its governmental functions

of administering ‘the internal revenue laws, and to conceal

the acts of the conspirators, in violation of the general con--

spiracy statute, 18 U.S. C:, Section 371; in C ounts 0; 6 and

7 ‘peti tioner Halperin and others are charged with having

corruptly endeavored to influence witnesses before ‘the -

Grand Jury in the Eastern District of. New York i in viola-

tion of 18 U. S. (., Section 1503. The conspiracy is

alleged to’ have been in operation from January 1, 1946 ~

to the return date of the indictment: and the activities of

Halperin, charged in Counts 5, 6 and 7, are alleged to have

taken place in March, 1952. Counts 3 and 4 were dismissed’

and are not involved on this petition. r

Although the Court of Appeals unanimously -affirmed

the convictions. of Grunewald and Bolich, Judge Frank

filed a dissenting opinion as to the petitioner Halperin,

- holding that his Constitutional, rights were violated, by the

government's cross-examination at the trial, disclosing |

the fact that he had Poe his Constitutional privilege |

»

1 Grunewald and Boljch are also ee in this Court by

+ agate petitions for. certiorari.

2(onnt 2 of the indictment was against Bolich, Sternberg ‘and

Scherm as employees of the Bureau of Internal Revenue. Steinberg —

, and Scherm were acquitted, Bolich was convicted. Mavis, Schopick

-and Hoffman were named as defendants, but the case as to them

was ‘severed. Petitioner, Halperin. was sentenced ‘to five years

imprisonment and hone 000 fine on count, 1, and two years imprison-

ment and $1,000 ach of caunts 5, 6 and 7, prison sentences

to run pees

Grunewald was convicted of conspiracy under Count 1, but the

Court acquitted f him under Counts 5 5, 6 and 7 (583).

5 aa 6

hefore the Grand Jury. Judge * Frank again dissented’

from the. majority ruling denying a re-hearing to the afore-

said defendants, this time extending his dissent to the Stat-

ute of Limitations’ point, and holding that the conviction |

of all ofthe defendants was barred by the Statute of

Limitations. ce aps

The charges in the indictment arose ak of the’ admin-..

istrative disposition of two alleged tax evasion cases which -

were being investigated by the Internal Revenue Bureau.

One was known as the Pattullo Modes case and. the other

as the Gotham Beef case. Both concerns were represented

by the New York law firm. of Schopick & Davis (303, 317-

318).° Petitioner Halperi::, a practicing attorney for forty: -

five years (616), now in his 72nd-year (615), had shared

office space with the firm at the time in eeretees (617- ,

619). :

According to the testimony of Davis, who was the gov-

ernment’s chief witness, he had suggested to Halperin that

‘Halperin contact Grunewald in Washington to gét help in

thé Pattullo Modes case, and that. Halperin, after some nego-

‘tiation, told him that Grunewald had agreed to accept

$100, 000 (328-330), Thereafter, on January 5, 1949, Bolich,

then Assistant. Commissioner of. Internal Revenue, told the

Agent i in charge of the Pattullo Modes case to close out the

_ Pattullo Modes case on a non-pyosecution basis (475- 476).

This decision was announced ite: taxpay ers on January

10, 1949 (445, 477-478).

The. object of. the Pattullo Modes ° Liissatitions was

expressed by ifs principal Marks, named as co- o-conspirator,

but not indicted, as follows:

“He [Davis] gays all he could promise was that

there would be a memorandum put into our. file that

the case was to be settled on a civil basis”” (36).

o

3 References are to pages in | Granewal tasein appendices im

nr / e a . ~~ cr “a Po ae

“4

| ‘2 | - 7

In the Gotham Best case, according to the govern-

ment’s. prose, $60, 000 was put in escrow by the principals

therein (168, 326) and on October: 28, 1948, they were told

that the-case was closed without criminal prosecution (284).

The object of this transaction was expressed. by the

Gotham Beef principal Tobias, also named as a co- con-

‘ spirator, but not indicted, as follows: .

‘‘Now, the exact terms of the escrow * * °

was * * * that until I were to have heard with

my own ears from the’ Special Agent’s office from

~ a-responsible official that there was to be no crim-

‘ inal. prosecution in the Gotham matter °. * * the

.money was not to be released’’ (167). .

Petitioner, Halperin, a lawyer, now over 71 years of age,

was the only one of. the three convicted defendants who

testified i in his own behalf. His testimony on direct showed

his professional assocfation with several alleged co- -con-

spirators, and his “acquaintanceship with others, and pro-

fessional employment in cénnection with the tax matters

(620-686). Halperin strongly protested his i innocence. His

narration of the extent of his participation in the tax mat-

ters being entirely exoneratory in tenor (Pattullo Modes,

621-623, 629, 630, 635; 636, 641-646 ; a Beef, 667- 670-

675) ee

Thereupon, the Gov ereinent was permitted to elicit from —

. Halperin, and bring to the conspicuous notice of the jury

upon cross- examination, over objection and exception (695,

705), that Halperin had invoked the Fifth Amendment ;

before a Grand Jury in response to questions relating to.

_the aforesaid associations and dealings (694-708). despite

- the fact that both the majority option and the dissenting

* Judge Frank, commenting upon the evidence, wrote (Vol, Vv

appendis page 329a) :

‘‘The evidence against Halperin. is not en:

The jury could have reasonably acquitted him.’

- conspiracy.

Pe tae 8

‘opinion in tlie Court of Appeals acknowledge that Halperin

was justified in, claiming his Constitutional privilege upon

the record (Vol. V—Appendix pages 31la, 317a).°

On re- direct, it Was shown by reference to the Grand

_ Jury minutes, that Hafperin informed ‘the Grand’ Jury

that he was an innocent man and that he: was invoking. the

Fifth Amendment (719, 7 720), ‘because he had no right to —

ceedings (722). Halperin also adv ised the Grand ‘Jury that

he was acting on advi ice of counsel (719, 721). Halperin,

"cross-examine. witnesses: against him in Grand Jury pro- -

‘it must be noted further, was a target of the Gand Jury

investigation (709, 710). Bil

Thus,. ° ‘it was slinaativelp, and indeed, conclusively

shown that ‘no inconsistency éxisted between Halperin’s

course of conduct before the Grand Jury.and. at the trial.

Nevertheless, | in this case, in ‘which all that could stand

. between. Halperin and conviction was his credibility, the.

Trial C ourt authorized the jury to reject his testimony 9n..

the ground that he had asserted ‘his Constitutional privi-

lege before the Grand Jury (768; xeeption T7?).

Moreover, the ‘Trial Court denied the reqjuest to charge

a

- An innocent man may honestly claim that ihis answers:

may tend to incriminate him”’ (798, 728, 729).

The only overt acts shown to have been committed within

three.years of the filing of the indictment, related only to

acts of concealment.: Her, prosecution was barbed under

TRU. S. C., Section 328—all agree—Pre -ailing Opinion

(Vol. V—Appendix-p. 310a), Dissenting-Opinion, (Vol: V—

Appendix pp. 385a, 386a), unless there‘existed an end-

lessly surviving conspiracy to conceal as part of the original

5 Judge Frank wrote ‘‘No one doubts he ‘Phen properly asserted

the en oiae Vv appendix, 3lja). © -

Ba es

After the credibility: of ‘the co- “conspirator Davis. (as to.

whom trial had | been severed) who was the Gov ernment’s .

pr incipal witness, had béen subjected to devastating attack,

the Government on re-dire¢t attempted to rehabilitate him

by eliciting from him over objection and exception (395-

407) that on or about the time of a Grand Jury investiga-

tion into the subject matter of this prosecution, and pursu-

ant to a proposal by the witness that he would cooperate —

with the Government in its case against the appellants

herein (395, 398, 399), Davis had made, through an attor-

ney, a hypothetical statement consistent with his trial

testimony, _ This testimony was admitted despite the fact

that Davis’ ‘motive to fabricate at that time coincided with .

-his motive to fabricate at the trial. :

In February 1952 a grand jury was ; aati to inves:

tigate administration of the Internal*Revenue Laws and

their enforcement, The evidence in support of the charge

1 Counts 6 and ‘7 that Halperin.attempted to corruptly

aoe Berman and Tobias, Gotham Beef principals, as

prospective witnesses, shows however that Halperin merely,

advised them to plead the Fifth Amendment after learning ‘

from Berman for the first time that $60,000 had. been put

up by them in escrow m connection Ww ith their tax case (682):

Under Count 5, there was no evidence that Halperin

himself, had spoken to the Pattullo Modes. principals con-

cerning-his role as a gkand jury witness. The evidence. did

not support comv iction in consequence of Davis’. conv erie

‘tion with Marks since all that had been discussed by- Hale

perin with Davis was speculation as to whether his clients

would claim their Constitutional privilege before the grand

jury (367, 368). was ‘

| | \ | 10

" .. ARGUMENT.

=

I ;

(Questions Presented 1-7, )

(A) ‘Elicitation from’ appellant Halperin that ~he

had invoked the-Fifth Amendment before the Grand

Jury, asa calculated feature of cross-examination by

the Government at his trial; (B) the Court’s charge

that his claim of Constitutional privilege might discredit

. his trial testimony; and (C) the Court’s refusal to

charge that “an innocent man ‘may honestly claim that -™

his answers may tend to ineriminae i” derogated |

the Fifth Amendment and constitu denial of due

process at the trial, invalidating his ‘conviction.°

. In view of the fact that petitioner was: justified upon the

record in refusing to answer questions before the Grand

Jury under the Fifth Amendment, as indeed tlie prevailing

and the minority opinions in the Court of. Appeals (V ol. V—

A ppendix pp. 31la, 317a), and the Tr ial Court. (768) agree,

it follows that the moment the Gov ernment launched. upon

the project of exposing Halperin’s claim of Constitutional

privilege. on his cross-examination before the trial jury,

he was denied due process by. being arbitrarily penalized |

for having taken’ adv antage of his C ‘onstitutional right.

The penalty resulting from the jury’s.inevitable preju-

‘ile against a person refusing to incriminate himself, fol-

lows from the ‘popular coneeption that the Constitutional

.amendment was intended only. for the ‘protection of ‘the

‘ 6 Phases of this point wére the saliect of Judge Frank’s djs-

sent from the prevatling opinion affirming Halperin’ s‘ conviction,

o

¢ <i

waitin Was intenaified and’ given judicial direction. when

the Prial Court charged the jury in-effect that they might

disbelieve ‘Halperin's testimony and convict him in conse:

- quence of. his having inv ‘oked the Fifth Amendment before :

the Ghend Jury: (768).§ :

‘There can be no. doubt that given the acknowledged « cir-

cumstancd‘that Halperin was justified i in claiming. his Ton-

stiiutional privilege, that undey the doctrine of. Slochower -

vy, Boord a@f Higher Education (100 L. Ed. Ady. Rep. No. 11, 7

p: 449}, decided by this Court on April 9, 1956, Halperin, ;

was being denied due process, by being arbitrarily penal-

ized for liaving invoked the Fifth Amendmext

In the Slochower case, this Court wrote (at p- 404,

supra).: . :

“At the outset we ‘must condemn the practice. “

imputing a ‘sinister meaning to the exercise of a

.. person’s constitutional right ‘under the Fifth Amend-

ment. The right of an accused person to refuse to

testify, Which had been in England merely a rule of

evidence, was so important to our forefathers that

they raised it to the dignity ef a constitutional enact-

ment, and it' has been recognized as ‘one of the most

valuable prerogatives of the citizen’. Brown ev.

_ Walker, 161 U.S. 591, 610, 40 L. ed. 819, $25, 16 S. Ct.

644. We have reatirsecd our faith in-this principle

recently in Quinn v.U nited States, 349 ”. S. 155, 99

«7 Ag stated by Pictou Ralph S. Brown, Jr., a Professor of

Law at Yale Law Sc hool, in 40 American Bar Association Journal,

404, 406, May, 1954:

“What does the public | know maak the Fifth pe ea

anyway? It is told in-every headline on the authority of

prominent legislators, that silenee means guilt.’’

‘8 The Trial Court instructed the jury: *‘Iowever. it was proyfer

for the Government to question the defendant’ with respect to his

previous iny ocation of the Fifth Amendment, but you may consider

this avidence of his’ prior assertions of the Fifth ‘Amendment only

for the purpose of ascertaining the weight you choose to give to his.

present testimony with respect ta the same matter$ upon which he

ie previously asserted his Conntitgtionsl privilege’”” (768):

%

Fo ae

12

L. ed. 964; 7d S. Ct. 668, In U llmann v. U niied d States,

*>—U. S.— (100 L. ed. Advance p. 361, 76 S. Ct.—),

decided last month, we. scored the assumption that

‘those who claim this priv ilege are either criminals __

or perjurers. The privilege against’ self-incrimina-

, tion would be reduced .to a hollow mockery if its

exercise could be taken as equivalent either to a

_ confession of guilt or a conclusive Presumplion of

perjury. . |

As we ; potated: out in. Uliiiana, a witness may

have a reasonable feat of prosecution and yet be .

_ innocent of any wrongdoing. The privilege serves to

protect the innocent who otherwise might be ensnared

by ambiguous cep ct See Grisw old, the Fifth.

. Amendment Today (1955). 6.

. °

o ‘ = _* . o *

_@ -

(p. 455) ‘In pradtiont effect the questions sia

are taken as confessed and nfade the basis of the

‘discharge. No consideration is given to such factors

“as ithe subject matter of the questions, remoteness

ee the period to which they are directed, or justifica-

tion for exercise ‘of. the privilege. It matters not

whether the plea resulted from mistake, inadvertence

or legal advice, couscientiously given, whether wisely

or unwisely.

‘* _@ hae: & ° re “4s --@

Since no inference of guilt was possible from the

claim before the Federal committee, the discharge

falls of its own weight as wholly without support.

There has not. been the-‘protection of the individual

Mr. Justice ( 'ardozo characterized as the very essence

of due process.’ Ohie Bell Telephone Co..v. Com-

mission, 301 U.S, 292; 302, 81 L. ed. 1093, 57 S. Ct.

724,”

If the record disclosed theit:Halperin ’s testimony at his |

trial indicated that Halperin was perjuring himself when

ne had claimed his testimony would tend to incriminate and

that in fact he" was not etisnared i in suspicion raising circum. -

stances, it might be that’ the discrepancy might have been

the subject of cross examination without denial of due

' proves! This, however, was conspicuously not the ease.

His justification to refuse to answer before the Grand Jury

is conceded.. He was entitled. to inv oke. the Fifth Amend-

ment. anid :

This result was appreciated by the Court in Masterson

v. Fransit Co., 304 Mo. 507, 524,.525, which wrote:

“The right of. fhe motorman to refuse to testify

under the circumstances stated was a personal right

of such high importance that it is expressly guarded,

in the Constitution itself. It is there given absolutely

and unequivocally, yet we are now asked to declare

that it isa right which the citizen will exercise at his

peril, the peril of being branded with-suspicion, the

peril of having it brought up against him to impeach

himself if he should ever assert his innocence. Such

‘a ruling would Be a gross impairment of the comsti-

, _ tutional right ;’ | . .

It is respectfully submitted that the Wastersonf™rase

view coincides with the recent decisions of this Count tule.

minating “in the Slochower decision. \

‘There ts no more firmly established ‘rule in the field of

ei evidence than that which requires that only when incon:

sistency has been shown may former conduet be weighed

against the witness’ credibility (3 Wigmore on Evidence,

Page 725, Section 1040).

It is interesting to note that in Commonwe valth v. Smith.

163 Mass. 411, 432, the Court in approving the right io:"

cross examine a witness regarding a prior claim of refusal

to answer on the ground of self-incrimination, found it

necessary first to’search for and purport to find the element

of inconsistency. Thus concerning the nature of the Gon-

stitutional privilege, as intended only for the guilty, the

Court noted: ze 2

e ai , ¢e

tp ttniasnisioay

,

14

: ee

o .

m

“The defendantyin€ Such case now says he is inno-

cent. “Fé formerly did not say he was innocent, but.

. . tliat he would not answer lest he might incriminate.

himself. ses

In our: ease, even this niiscanceived inconsistency did

‘not exist. ‘Halperin did formerly say he was innocent and

- his testimony shows moreover that his i innocence, as noted -:

in the Slochower case, Was of a nature beset by ‘cireum-

stances of guilt which justified this action. . a

‘@ The Massachusetts Court erred in failing to recognize

that innocence and self-incrimination are_not mutually

exclusive but may readily co-exist, hut within the frame-

work of the Court’s mistaken view, the fact remains’ the

Court appreciated. at must be able. to pinpoint an incon-

sist tency before if could hold the witness’ credibility may be

de emed _inipoached by’ the jury. :

| The’ case of Raffel v. U litted Stafes, 271 U. S.'494 is not

to the contrary, and in any event, it has been reversed in

principle by*the recent trend of this Court's decisions cul-

minating in the Slochower case. On these phases, the Court

is urgently, respectfully referred to the dissenting opinion

of Judge Frank (Vol. V—Appendix pp. 3r7a- en). mang- -

festly, written before this Court's decision.”

The’ Trial Court compounded ‘the prejudicial] effect of

this instruction authorizing petitioner’s conviction via the

destruction of his eredibility because of his irvocation of

of the Fifth ‘Amendment by refusing to charge as requested

that ‘An innocent man may honestly claim that-his answers

may tend to incriminate him’’ (798, 728, 729), especially

in view of the Court’s attitude toward Halperin’s claim

* The appeal herein. was argued’ in the Court of Appeals on

’ November 15.16, 1955. Its decision was announced April 10, T1956.

| The Sloe Wower. case decision became publie on April 9, 1956.

‘ ? . =

.

-

15

of honatigitionn’ privilege, as exemplified by his remarks.

in the course of trial.’°

The prev ailing opinion ov erlooked the vital difference

between the requested charge and that given (768) : the |

requested charge Ww ould have served to correct ‘the jury’s

misconceptions that.an innocent man can not claim to be

incriminated by his answ ers, ‘and thus have explained to- thie

jury why Halperin’ s action before the Grand Jury was

irrelevant to :-the Fssues The char ge as‘given,merely arbi-

trarily directed dibjew +. to disr egard what they undoubtedly

deemed an important relevant fact. as

For discussion in another ééntext of the futility. of

.. admgnishing a jury tocdisregard what it may deem inaypor-

<

While Halperin was* being cross examined, the Court inter-—

preted: the Constitutional privilege in such fashion as to literally,

destroy the defendant Halpeyin:s credibility. . The Cqurt said

(697) **T know the Governmeut’s position. As I see it.-Mr. Corbin,

no witness canbe compelled to testify against Kimseif. The wit-

ness. is called before the grand jury and the answer was, I refuse

to answer-something on the ground that if I answer that ¢ question

it will-inériminate me. Mr. Corbin: Tend to inecrimirngjte. The

Court: Or tend to ineriminate. * * *.??

* The Court went. further and said (703). ‘‘The Court: Weald

an answer to that question have incriminated you or tend to inerimi-

nate you?’’ “Upon objection, it was withdrawn. Agaiyp, at page

705, Mr. Halperin was still being examined with respect to hs

claim of privilege beforé the Grand Jury. ‘The Court asked (705\_

‘‘And you say the answers given were’ true?’’, to which again

objection’ was" ‘takeri, and the: Court went on‘ to- say ‘ The: witness

_ says he testified before the Grand Jury. . I want to find out, when

he says the question is'there and the ayswer is there, whether he

is also conceding that..he was sworn to tell the truth and it was a

truthful answer; not that it is mergly in the minutes, but that

that is. the sworf testimony.’

Counsel objected that it was ‘an implication + the Court that

the witnes# was lying. The Court again replied that he was not

implying ‘‘that it was untrue.’’; that all he wanted to find out

was that the defendant was not merely admitting that it was in

the minutes, but that it was sworn testimony.

During the exchange motion for a «mistrial and the withdrawal

ofa juror was made, it, was denied and-an exception taken (704).

It is, thus, abvious that with the leverage of Halperin’ s claim

of privilege, the Court destroyed his eredibility before the jury aad *

the charge was even less than lip service to the rule.

oo oe

tant, relevant facts, mistakenly or.otherwise, see Dissenting

‘Opinion. below and ‘Appendix ‘thereto (Vol. V—appendix

pp. 32Ua, 331a, 3402). Of course, an Expository instruction

showing the facts to be irrelevant is an entirely different.

matter and, not’ subject to the charge of psychological

futility. | : ao 7

Militating further to remove the Trial Court’s rulings

on the subject of the Fifth Amendment from conformity

to the essential dictates of ‘‘appropriate judic idance’’.

(Bollenbach.v. United States, 326 U.S. sor is the

fact that petitioner, Halperin was the target of the Grand

Jury investigation (709, 710, not contested by Govern-

ment). He was a ‘‘de facto accused’? in the language of

United States v. Scully, 2 Cir, 225 F. 2d 113. He should

not have been,’ ‘alled before,the Grand Jury at all, since

by doing so, the Government was seeking an unsanctioned

exatuination before trial. In‘ the Scully case, the Court

, -

wrote at page 116 of 225 PF. 2d:

“Indeed, one would suppese that, as a matter of

ethics or fair play. or policy, a prosecutor would in

all cases a from calling as a witness before a

Grand Jury at§ person who is de jure or de facto an_

accused. The absence of appeals to this court involv-

“ing the problem under discussion would seem to

. indicate that some such rule or practice is observed

in the prosecutors’ offices in this circuit.’?

Gieeey nited States’ v. Minker, 100 L. Ed. Adv. Rep.

No. 6, pages 192, 203, decided .by this Court on January

16, 1956 °° ee a nm

This Court once granted certiorari apparently upon this

point, but the appeal was not prosecuted (O'Connell v.

United States, 2. Cir, 40 F. 2d 201, decided .by a divided |

court, certiorari granted .281 U. S. 716, dismissed ‘years

later under Rule 35, 296 U. S. 667. see

p | - , 17

Still another aspect of the multiple error implicit in the

Court’s rukngs arises from the fact that a defendant has

a statutory right to testify, no less than a right not: to

testify. eae aS 5 Ee

In U nited State sv. Modern Reed & Rattan Co.; 159 F.

-2d 656, 658, the Court noted, that the Government in a

criminal case had no right to prejudice the defendant’s elec-

tion of w hether or not he should take the stand in his own

behalf. In thé interest af the full dev elopment of the facts

at a criminal trial, it would appear that a defendant's right

to testify (18 U.S.C. 3481) should be safeguarded, no less

_ than his right not to testify, and should not be prejudiced

in advance,

In conclusion, it need only’ be noted that the error herein

fions, as well as ,appropriate judicial guidance to cine

* sinvolving ta does, constitutional and statutory consi@era-

cannot be deemed merely technical.

Bruno v United State s, 308 U; ‘$. (287, supra;

% * Bollenbach v. United States, 326-U. S. 607, supra:

DisseNtING Opinion, Vol. V, appendix p. 329a.

| IRA en nl

(Questions Presented 8, 9.)

The Court of Appeals erred in holding’ that ihe

Statute of Limitations did not bar prosecution of .

Halperin o on the conspiracy charge (Count One).

dissent on the application for rehearing and vote to grant

all of. the convicted defendants a new trial, but the pre-

vailing opinion commented ; “This” is an interesting and

important question, seemingly oue of first: impression’? -

(Vol. V,-appendix p. 299a).

Ve

"On this ncn ef the case, not only’ did Judge Frank |

a a

18

?

Consideration of this contention is facilitated and focal-

ized by-a passage in the Trial Court’s instructions to the

hi Aaa alee by a cogcessiorr made by the Govern-

ment. : \- ,

The ie fe Court — that ‘ee Statute of bist:

‘tions barred\ conv iction of the defendants upon the First

Count unless an’ overt act was. committed within three

years prior to the date ef the indictntent, that the indict- _

ment alleged that the conspiracy comprehended within it,

a conspiraey to canceal the true- facts from inv estigation

should iny estigation thereafter eventuate, , and that to con-

viet the jury must ‘determine that the conspiracy did

indeed comprehend a couspiracy*to conceal and that an

overt act to’ carry out such purpose gccurred within the

three vear period (750).

This aspect of the: Court’s “charge dovetailed with the

Government’s concession, made in the course of argument

nnon defendants’ motions to dismiss at the end of the Gov-

ernment’s case, that no overt acts other than concealment

had oecurred within the three year period prior to the date. +

of the indietment (S578). ;

The separate conspiracies in our ease, having specific

objectives, terminated whtn the objectives wére accorf-.

plished. Thus, the Pattullo Modes criminal prosecution con-_

spiraey allegedly involving Halperin, Grunewald and

Bolich, ter

municated/to the Pattullo principals 1 in January, 1949 (36,

41, 76, 928.839, 335). The Gotham Beef conspiracy likewise

_terminated when. the decision of. no-prosecution was...

received hy the Gotham principals in October, 1948 (149,

150, 155, 167, 187, 328). These two account for the main-

stream of the Government’s proof, and in view of the direct

inated’ when word of no-prosecution was com- -

-

eg

evidence in the CASE, the date of termination of the coni- :

“spirdey can be set with chronological accuracy.

w '

bi

‘4

“

TF

The direct evidence in-our case with its verbatim context

of separate conspiracies precludes resort to ‘infererices" to

spell out a single-conspiracy.

Conspiracies are deemed terminated when their objective

is accomplished and this accomplishme nt of objective and

end of conspiracy can be pinpointed, in our Ci Ase, as to time

and place. (NKrulewitch v. United States, 336 U.S. 440, 442,

443+ Lutwak v..United States, 344 U.S. 604, 616, 617; People

v. MeQuadv, 110-N. Y. 284,-308 (bribery conspiracy accom-

plished—not continued by co- ‘defendant’s alleged. subordi-

nation of perjury at senate cominittee hea ring); U nited

States-v. Irvine, 98 U. 8. 450, cited in Fiswick v. United

States, 329 U. S. 211, 216.) ” |

,In our ease, it is clear, that the various conspiracies, or

any conspiracy cognizable: under the First Count of the

indictment had terminated more than three years prior t to

the date pf the indictment herein,

Any conspiracy with regard to dissnading the Pattullo

Modes or Gotham Beef. taxpayers from giving testimony

before ‘the Grand Jury or to dissnade them from speaking

-to. Congressional ‘ommittee investigators, upon the record,

_had its genesis after the conelusion of the’'Pattullo Modes

and the Gotham Beef conspiracies. (See Dissenting Opinion, :

on. Petition for Rehearing, Vol. V, appendix p. 38%a).

There ‘is no evidence that before the termination date of.

ether of these conspiracies, it was ever an object of the

seat to dissuade ‘the Pattullo Modes or Gotham

Beef taxpayers from answering questions of the Congres-

sional Committee investigators or from ‘testifying before

the Grand Jury. Indeed, there could not: have been, for |

neither the Congressional Committee nor the Grand Jury

were then in existence: or even projected.

-11Gyaranty Trust Co. v. Minneapolis & St, Louis |

Cir.. 26 F. 9d 747, 757: Consumers Power Co. v; Nash, 6 Cir., a

psd el Amer. Jur. 163. —

The Gov ernment’ s contention, that a subsidiary, .con-

' spiracy to conceal survived the central criminal tax fraud _

objectives, is simply a re-statement of the Government’s

. contentions, made and rejected in Arulewiteh v. United

States, 326 U.S. 440,443, and es 7 v. United State 8, 844

U.S. 604, 616, - ‘

. The position of petitioner Hiatseren, and ‘indeed that of

the other convicted defendants, Grunewald and Bolich, has |

been that the alleged conspiracy herein terminated in 1949 .

- when the taxpayers received administrative assurance of

no criminal prosecution. In support of. this po8ifion we

havé quoted the very words of the respective, taxpayers

concerning the tenor of their understanding: of his 2

conspiracy (s see, supra, pp. 6,7). - S

Although Judge Frank, in his dissenting opinion upon

the petition for rehearing does vot entirely accept this con-

tention and perceives inthe evidence the possibility that’ the —

conspiracy herein encompassed: the purpose of preventing

prosecution of the taxpayers for tax evasion, subsequent to

the no criminal prosecution administrative accomplistiment,

in. 1949, Judge Frank nevertheless acknowledges that the

jury “may well have found—and, for all we know did find-— |

that the conspiracy ended in 1949, since the ° jury may have

found thatit was not a purpose of the conspiracy to prevent .”

prosecution of the taxpayers for tax evasion after that

date’? (Vol. V, Appendix p. 388a). °

Assuming that the jury did so find, Judge Frank pro- |

-ceeds to accept petitioner Halperin's contentions, in the

following language ( Vol, V, Appendix p. 889a) :

‘‘Even so, such an overt agreement to conceal,

made after 194% could not reasonably serve to proy

that the conspiracy, if it otherwise ended in 1999,

_ had, before 1949, included an agreement-—other than

by implication from the mere existence of the con-

g.

21 : Seams

spiracy—to ial the conspiracy after 1949, It

could serve, at most, to prove a new conspiracy to

conceal an older conspiracy. Tn that event (although

: such a new conspiracy would be evidence of the

older conspiracy) the defendants could not, on such

evidence, be convicted of the older conspiracy which

ended in 1949, since the statute of limitations would

have run against the older three years after 1949.

See U.S. v. Stebricht, 59 F; 2d 976, 978 (C. A: 2)

to the effect that an old conspiracy ‘‘could not be

revived vi the breath of a new and different con-

spiracy * * *’? The defendants were not indicted

for such a new conspiracy, and the judge’s charge

precluded a conviction based thereon.” west Pi e. £.,

U.S. v. Siebricht, supra.

vA

It follows that, if (1) the jury found—as it may

have—that the conspiracy ended in. 1949, it could

not also reasonably have found (2) that the con-

spiracy included any understanding to conceal the

conspiracy (in order to avoid detection and punish-

ment for conspiracy) other than such ar under-

‘standing implied in the mere fact ‘of the conspiracy.

The second of those firtlings would be bad, under —

Krulewitch. But the charge permitted the jury to

render a verdict of guilty based on both such find-

ings. I thmk the language in Latwak cannot he’

stretched to sanction such a charge, and: that there-

fore the charge was erroneous, ’?.

.. inst

-ended i

V, Appendix pp. 38° Ba, 384a).

Suc

. 23, (79

wald’s |

Appendix, 729)).

Judge Frank concludes that the Court erred in failing .

ruct the jury that if it found that the conspiracy

in 1949, they could not convict the defendants (Vol.

h charge was requested (Grunewald’s Request No.

3), Exception (728) ; adoption by ‘Halperin of Grune-

“Requests and Exceptions (Transcript 4080;

a

_ &

te ently

‘os :

Il.

( Question aie 10.)

| The Court of Aoeals decision approving of the

Trial Court’s permitting the government on re-direct

examination of ‘Davis, to elicit from him ‘the fact that

he had made a prior consistent hypothetical statement

respecting the Pattullo modes and Gotham payments,

“at a time when he had the same motive to make the

statement as he did at the trial, introduces confusion

into a hitherto well-settled rule of the law of evidence |

prohibiting proof of prior consistent statements under

- such circumstances.

On re-direet of Davis, the Government elicited from him

over repeated objections (395-407),-that. at or ahout the

time. of the Brooklyn Grand Jury investigation in 1952,

there Were negatiations with a view to cooperation by Davis

with the Gov ernment, at which Davis, himself, “was not

present, but which negotiations were held at conferences

between Davis’ attorney and the representatives of the

Government (395,398; 399). ee aoe

Over continuing, objection. and exce ption (399-407), the

Gov erpment elicited from Davis that at. such conference,

_ he authorized his ‘‘attorney to make certain disclosures -

‘there’ on a hypothetital basis’? (399). The hypothetical

situation, which he authorized his attorney to dise uss, were

the facts involved in a conspiracy to defraud the United

States in connection with the Gotham Beef and Patiulla

Modes cases .(400). Davis said that’ he authorized his: |

attorney to reveal the fact with respect to the me 000 and

$60,000 (401). |

‘ Thus, Davis had'the same motives to an as at the

“trial. In any event, the circumstances under which the

: | | i . - | ; ees " art

| | 23 eae eens

introduction of prior consistent Mecainacne” - obeeiaeaitiba:

did not exist in this case.

Dowdy v. United States, 4 Cir., 46 F: 2d 417, 424;

| 58 Amer. Jur. 465 ‘*Witnesses”’ See. 829 5

_ Vawee States v. Potash, 2 Cir. 118 sh 2d 54, 57.

Foal

The purported prior consistent statements of Davis, the

record: affirmativ ely shows, are barred under the limitations.

upon the rule sét forth, supra, in the Dowdy case, and in

the quotation from American Jurisprudence. The alleged x

consistent statements (1), were not made-soon after the

‘transaction to wfich they relate; (2). were not made at a

time'when such fact or facts pertinent to the issues involved

as reasonably furnish some test of the witness’ integrity and

aceuracy of recollection, and (4) the alleged consistent state-

nients, it plainly appears, were made at a time when the

witness had the same motive‘in speaking that governed

*. him when testifying. °

Moreover, the Trial Court; itself, invested this errone- .

ously admitted testimony by Davis with the greatest force |

and effect, stating thatit tended to refute 'the charge, that

the testimony given by Davis at the trial was a fabrication

. (898, 404), when actually it: had no such potentiality. It

follows that the Court of Appeals’ @pinion appears to dis-

turb an important principle of law.

al

24

ae

(Question Presented 11.)

The Court of Appeals’ opinion appears to hold that \

“a person may be guilty of corruptly &ttempting to

influence a witness by advising him to plead the Fifth

Amendment even though the plea is justified. This is

contrary to federal law on the subject.

a>

The question of whether a person may be ‘convicted of

corruptly influencing ‘witnesses sole ly on. proof. that he

-ddvised a witness.te plead the Fifth Amendment where the

Witness was justified in doing sq, even though the plea would

also serve the interests ‘of fhe person giving the advice,

is an important question of Constitutional law not directly

decided by this Court. a

The reasoning of the Court in U eid States v."Herron,

28 FY, 2d 122, 123, D.C. Calif., in holding that it is not the

_law to maké criminal the act of advising a witness to plead

the Fifth Amendment: where he is justified in doing so

ir respectiv ¢ of the inotive of the person so advising, is sound,

we respectfully submit. The Court wrote:

‘“In the case of Ex parte Irvine (C. C. 1896) 74 F.

954, Circuit Judge ‘Taft, now Chief Justice of the

United States Supreme Court, in his decision said as*

follows: ‘It is argued by’ sownecl for ‘the respondent

that there was evidence before the trial court to show

that the privilege was pleaded ‘in bad faith, merely

to”save the defendants, and not to protect the wit-

nesses from a prosecution of themselves. * * * We

. do not understand any of the American authorities

to go so far as to hold that where from the evidence

and the nature ofthe question, the court ean definitely,

‘dete ‘rmine that the question, jf answered in a partieu-

lar way, will form a link in the chain of events to.

establish the commission of a crime by the witness,

\

\

|

re 25 3 “ es |

the court should i inquire into the motive of the witness

“ in-pleading his privilege.’

: The witness himself, therefore, is protected i inhis -

claim. of privilege by ine allowed the. privilege,

irrespective of his motive for claiming the same.

In this case the defendant Herron is charged with

influencing, by advising, the witness Rasmussen to

claim a lawful privilege, and I do nat ‘believe it is

the law or the policy of the law to make ‘criminal, no

“matter what the motive might have been, the advi ising

“a witness to do that which wa's lawful and would in

fact have protected the witness from disclosing self-.

incriminating matter.’”’ (Emphasis in origina} )

The Court. of | hile? opinion, on the ‘other hand, -

appears to affirm the conv iction of Halperin on the corrupt ,

influencing of witnesses comata upon evidence of advice

to prospective witnesses to plead the fifth amendment when

thé witnesses could do so with ample. justification. The

Court wrote (Vol. V, Appendix p. 315a) : :

a evidenee adduced in support of Counts-6._

and 7 describes attempts by Experian himself. to

‘iawtioe beth Berman aiid Tobias. The substance:

‘of what Halperin said to both is beflected in the

testimony of Berman that Halperin told him ‘he felt

he was going. fo ‘stand on. his constitutional rights.

and not do any talking. He wanted me to take the

- same stand, that I should not talk and stand on my

constitutional ‘rights. He mentioned the fact that

he had done me a good turn and that was the aqant,

I could do for him.’ ’’?

"22 Halperin’s Pacer marae was, that in March, 1952, he did-not- ‘

eall Berman, but Berman called him (681), and Berman said that

_. Davig was'down to see him the day before (682). Berman told

Halperin that Davis had told him he was trying to make a deal with

the United States Attorney in the Eastern District for immunity

for himself and his partner, and that he wanted Berman to back

him up by stating that: the $60,000 had been paid as a fee (682).

This was the first a oo knew that $60,000 had been involved

in the package (682). Berman asked Halperin what he thought he

_ /

The Court of Appeals’-opinion appears contrary to the

Herron case. \It is manifest -that not only the disposition

_of Counts 6 and 7,-but also of Count 5 is affected by the

Court’s views contrary to those expressed in the Herron

case. -

Conclusion.

t

The writ of certiorari should be granted.

Respectfully: submitted,

Henry G. Srxcer,

| Attorney for Petitioner Halperin.

‘Harry Sipvern, 6 - | |

2 x a ”

With him on the petition.

should do and Halperin said that Berman should consult a lawyer

and that ‘‘If vou ask meas a lawyer, I would.tell you to avail your-

self of your constitutional privilege’ (683), Halperin did not say

that Berman had anything to fear by not talking (683), or that he,

Halperin, had. done Berman a good turn (683). -Halperin never

aided: and abetted anyone fo get Berman to lie or impede justice |

(684). He had no dealing eats or indirectly with Tobias on

March 15, 1952° (684). Wlperin denied any conversation prior to

Davis speaking. to Marks. Under Count Five, dealing with the

influencing of Marks, there is no evidence that -Halpenin, himself;

had any “onversation with Marks with ‘regard to his appearance

before the Grand Jury, and no contention by the Government to

the cantrary. “It is sought to*hold Halperin in consequence of a

. diseussion had=by Halperin with Davis, Schopick and Hoffman, but

ali that was discussed there was a canvass of the sentiment of these

defendants with regard to whether Davis’ ¢lients would pleadtheir

Constitutional privilege. 2

"At fitst they felt that the clients would not talk and would plead -, ~

their Constitutional privilege (367). Later, they became doubtful

about this (368).3and it was decided that Davis should communi-

eate with Marks,<;.° ah oe a:

Fairly read, thé¥e is nothing in. » shh testimony with regard to

these conversations-which would wartant imputing to Halperin any

intent that Davis shauld do more than merely ascertaitNkissclients’ : *

intentions and perhaps, to urge them to give further consideration

to the advisability of their pleading their Constitutional privilege:

Indeed, Davis’ testimony shows clearly that his mission was merely |

one of inquiry and that hé.realized that there must be nothing said °

by him which could be used against him if Marks, as he expected,

would report his conversation to the Grand Jury (369).

© .

Appendix A.

Fifth Amendment,

:

“oe * © nor shall be: “sompelled in any criminal | ‘ase

to be a. - witness against himself. woh dois

" Section 371, Title 18 U. S. C.

“OTL. Conspiracy to commit sees or to de fraud

U nited States

_If two or more persons conspire either to comruit

any offense against the United States, or to defraud

the United States, or any agency thereof: in any

ay : : Py bs pe ~<eme

manner or for any purpose, and oné¢.or more of such

_e

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

spiracy, éach shall be fined not more: than #10,000

or ene not more isin fiv e vears, or both.’

Section 3289, Title 18 U, S. Cc.

(As applicable to offenses prior to 1954 amendment. )

63989. Offense s hot capital. | “.

Except as otherwise expressly prov ed by law,

ho Merson shall be proseeuted, tried, or punished

for any offer nse, not capital, unless ihe fadietnent

is found or the information i is instituted within three:

years next after.such offense shall have been eom-

‘mitted, June 25, 1948, ¢. 645, G2:Stat. S28." 3

Section. 1503, Title 18 TU. 8. C.

61503. Influencing or injuring officer, juror—or

witness generally.—Whoevér corruptly, or*by threats

or force, or by any threatening letter or communica-

tion, endeay ‘ors to influence, intimidate, or impede»

any witness, in any -court of the United States or

before any United States commissidner or other com.

o~

mitting magistrate, or any grand or petit juror, or

f

e

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officer in or of any court of the United States; or

officer who inay.be serving at any examination | or

other proceeding efore any United States conimis-

sioner ‘or other committing magistrate, in the dis-

charge of his duty, ofinjures any ‘party or ‘witness -_

in his parson or ‘propert}on account of his attending

or aving attended such court or examination before

such officer, commissioner, orother committing mag-

istrate, or on account of his “testifying or having

testified’ to any matter pending, therein, or injures

‘any such grand or petit juror in-his | person or prop-

erty on aee ount of any verdict or indictment assented °

to by him, or on account of his being or having been

such juror, or injures any such officer, commissioner,"

~or) other committing magistrate in his person or”

A se ced on account of md per formatice of his official

duties, or eorrtp "or by threats or force, or by

any eae iotiee or communication, influences, -

obstructs, or impedes, or é@ndeayors to influence,

obstruct; or impede, the due administration of justice,

shi ull he fined not more than $5,000 or imprisoned not

more than five vears, or both. (June 25,1948, ¢. 645,

_ See: 1, 62. Stat. 769.)?

Section 3481, Title 18 U. Ss. c.

«Compe tency of accused,—In ial of all persons

‘charged with the commission of offenses against the

United States and in all proceedings in courts martial

and eourts of inquiry yg any State, District, Posses-

sion or Territory, the person charged shall, ‘at. his.

own request, be'a/competentawitness. His failure

“to make such request shall poPichoate. any presump-

tion against hi tn. (June 25, 1948, ¢. 645 »), Sec. 1, 62

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