Petitioners Brief — Rosenberg v. United States

IN THE

Supreme Court of the United States

Ocroser Term 1945

No.

———

Ernest Wess, Irene Weisz, Ferenc Wersz and

Geza FrrepMan,

Petitioners,

—against—

Tue Unrrep States or AMERICA,

Respondent.

——

BRIEF IN SUPPORT OF THE PETITION FOR A

WRIT OF CERTIORARI

1. Jurisdiction

The facts with regard to jurisdiction have been set forth

in the foregoing petition.

2. Statute and Regulations Which Are Involved

Herein

The statute allegedly violated read as follows: (Sec. 6,

Chap. 508, 54 Stat. at L. 712): “An Act to expedite the

Strengthening of the National Defense.”

12

“Sec. 6. Whenever the President determines that it is

necessary in the interest of national defense to prohibit or

curtail the exportation of any military equipment or muni-

tions, or component parts thereof, or machinery tools, or

material, or supplies necessary for the manufacture, servic-

ing, or operation thereof, he may by proclamation prohibit

or curtail such exportation except under such rules and

regulations as he shall prescribe. Any such proclamation

shall describe the articles or materials included in the pro-

hibition or curtailment contained therein. * * * (Penal

Provision) * * * The authority granted by this section shall

terminate June 30, 1942, unless the Congress shall otherwise

provide.”

On July 2, 1940 (Government’s Exhibit 1, in evidence) the

President issued his Proclamation No. 2413 whereby the

administration of Sec. 6 was delegated to an Administra-

tor of Export Control and it was further proclaimed that

on and after July 5, 1940, certain named articles and ma-

terials should not be exported from the United States, “ex-

cept when authorized in each case by a license” issued by the

Secretary of State in accordance with the rules to be stated

from time to time by the said Administrator. Among the

named articles was “Q—Platinum Group Metals.”

3. Statement of the Case

The basic facts have been stated in the foregoing peti-

tion. Certain other facts will be called to the attention of

the Court, particularly in the point discussing the evidence

before the Trial Court.

4. Summary of Argument

1. The Cireuit Court of Appeals erred in holding that

there was no variance from the charge of a single con-

13

spiracy to the proof of three separate and distinct con-

spiracies.

9. The Circuit Court of Appeals erred in holding that

the statute upon which the indictment is based is constitu-

tional.

3. The Cireuit Court of Appeals erred in holding that

the statute upon which the indictment is based did not ter-

minate on June 30, 1942, but was extended by Act of June

30, 1942.

4. The Circuit Court of Appeals erred in holding that

the defendants were not prejudiced by irrelevant evidence

and that the evidence was sufficient to sustain the convic-

tions.

5. The Circuit Court of Appeals erred in holding that the

trial Court did not commit reversible error in admitting

platinum and Friedman’s bank records as part of the Gov-

ernment’s case against all of the defendants.

5. Argument

POINT I

The Circuit Court of Appeals erred in holding that

there was no variance from the charge of a single con-

spiracy to the proof of three separate and distinct con-

spiracies.

This proposition is also considered and discussed in the

brief submitted on behalf of the defendants Rosenberg,

Freier and Eisler.

A fatal variance occurred affecting the substantial rights

of the defendants. Three different and disconnected con-

spiracies were proven at the trial.

14

Berger v. United States, 295 U. 8. 78;

United States v. Siebricht (C. C. A. 2) 59 F. 2d

976;

Terry v. United States (C. C. A.) 7 F. 2d 28.

There was a material variance in this case. The indict-

ment charges one offense, the proof adduced by the Govern-

ment show three distinct different offenses. The main con-

spiracy, which is the one alleged in the indictment involved

the defendants Rosenberg, Freier, the Government wit-

nesses, Koppel, Abe and Hersch Neumann, and the named

co-conspirator Arnold Weisz. The defendant Eisler is in-

volved in this conspiracy through hearsay. The Canadian

conspiracy involved the same group, except Eisler, and al-

legedly included the defendants Ernest Weiss, Irene and

Ferenc Weisz. The third conspiracy, adduced by the Gov-

ernment were the dealings between Arnold Weisz and the

named conspirator in the indictment, Mezenen. The defen-

dant Friedman is brought into the case by reason of this

third conspiracy in view of his association with Arnold

Weisz.

The main conspiracy and the Canadian conspiracy are

definitely different offenses, one involved shipments to

Portugal, the other a shipment to Canada. The indictment

charges no crime in connection with Canada. The Court

however allowed testimony of the Canadian conspiracy

since the platinum there involved was later used in connec-

tion with the main conspiracy. The third conspiracy (Flush-

ing affair) is wholly unrelated to the other two. The deal-

ings of Arnold Weisz and Mezenen were not part of or the

same venture of the defendants in the main and Canadian

conspiracies.

Since different conspiracies were proven and only one

conspiracy is charged, a material and fatal variance oc-

curred.

15

United States v. Siebricht (C. C. A. 2) 59 F. 2d

976.

The variance charged here is one which clearly affected the

substantial rights of the parties.

Berger v. United States, 295 U. 8. 78.

It is settled law that where one conspiracy is charged,

proof of different and disconnected ones will not sustain a

conviction.

POINT II

The Circuit Court of Appeals erred in holding that

the statute upon which the indictment is based is con-

stitutional.

This proposition is also fully considered and discussed in

the brief submitted on behalf of the defendants Rosenberg,

Freier and Eisler. This Court is respectfully referred to

that brief for the authorities and full discussion of this

constitutional question.

See. 6 of the Act of July 2, 1940 (54 Stat. at L. 714) upon

which the indictment is based, clearly grants legislative

powers to the President. It falls within the type of legisla-

tion proscribed in the N. R. A. cases,

Schechter Poultry Corp. v. United States, 295

U. S. 495;

Panama Refining Co. v. Ryan, 293 U. S. 388;

and also

United States v. Butler, 297 U.S. 1.

16

The statute here involved is not one involving foreign

affairs, such as the one sustained in United States v. Curtiss-

Wright Exp. Co., 299 U.S. 388, but is definitely one involv-

ing an internal affair, which is within the sole province of

Congress to control and determine (Gorin v. United States,

312 U. S. 19; United States v. Schwimmer, 279 U. S. 644,

650). This statute is clearly distinguishable from the one

before the Court in the case of United States v. Von Clemm.,

136 F. 2d 968. In the Von Clemm case the statute and the

order of the President fell within the “sphere of foreign

relations and is thus free from the limitations imposed on

delegated authority”; and in that case it is important to

note the Order of the President was confirmed and ap-

proved by a retroactive act of Congress, thereby curing the

question of improper delegation in the original statute. Sec.

6, here, dealing with our national defense, does not fall with-

in the “sphere of foreign relations”, our national defense is

an internal matter; nor was the President’s Order, which

the defendants here allegedly violated, confirmed by any

subsequent act of Congress.

Sec. 6, it is submitted, was definitely an improper delega-

tion of power to the President. As such the statute being

void, the judgment against the defendants must be reversed

and the indictment dismissed.

POINT Ill

The Circuit Court of Appeals erred in holding that

the statute upon which the indictment is based did

not terminate on June 30, 1942, but was extended by

Act of June 30, 1942.

This proposition is likewise fully discussed in the brief

submitted on behalf of the defendants Rosenberg, Freier

and Kisler and this Court is respectfully referred to such

discussion for the authorities in support of this Point.

17

Sec. 6 of the Act of July 2, 1940 (54 Stat. at L. 714)

upon which the indictment here is based, expired on June

30, 1942. This statute was a peace-time measure and re-

lated to strengthening the national defense. Section 6 par-

ticularly, referred to military articles and their exportation.

Said statute contained no savings clause.

On June 30, 1942, Congress passed 56 Stat. at L. 463.

This Act intended to amend See. 6 of the Act of July 2, 1940.

The Act of June 30, 1942, however, was a war-time measure.

It extends the power of the President, it covers all articles

of exportation and is not limited to military articles, it

grants power to the Board of Economie Warfare in the

execution of the Act, and it contains a savings clause.

It is submitted that the Act of July 2, 1940, was impliedly

repealed by the Act of June 30, 1942. The two acts are

different and one is not an amendment of the other so that

the first Act is kept alive for purposes of prosecution for a

violation of it before such alleged amendment.

United States v. Tynen, 11 Wall. 88;

Posadas v. National City Bank, 296 U.S. 497, 503;

Murphy v. Utter, 186 U. S. 95, 105;

59 Corpus Juris 919.

Since Sec. 6 contained no savings clause and the defen-

dants were brought to trial after its termination, the prose-

cution was therefore improper and the judgment of convic-

tion herein must be reversed.

29 C. J. S. Criminal Law, See. 27, p. 79, and cases

cited therein under note 87.

18

POINT IV

The Circuit Court of Appeals erred in holding that

the defendants were not prejudiced by irrelevant evi-

dence and that the evidence was sufficient to sustain

the convictions.

A conspiracy is a partnership for eriminal purposes.

U.S. v. Kissel, 218 U. 8. 601, 608.

The Neumann brothers and Koppel showed no concern

for any of the persons charged by the Government with hav-

ing had any connection with the platinum exportation. It

must be presumed that these chief witnesses did not omit

anything. On their testimony, it is evident that they, them-

selves, did not consider the defendants Geza Friedman,

Ernest Weiss, Irene Weisz and Ferenc Weisz as associates.

None of these defendants contributed to the funds invested

in platinum and none shared in the proceeds of sale.

Each has been brought in by a series of unrelated acts,

by their own bank records, by hearsay statements or by

suspicion aroused by reason of their relationship with

Arnold Weisz. .

The argument with respect to the insufficiency and pre)-

udicial effect of the evidence against the defendants Geza

Friedman, Ernest Weiss, Irene Weisz and Ferene Weisz

is separately set forth below.

Geza Friedman

The testimony of the Government’s chief witnesses,

Hersch Neumann, Abe Neumann and Alexander Koppel

established beyond doubt that Friedman was not a “part-

ner” in the Main Conspiracy.

19

Friedman’s name first appears in the record in Hersch

Neumann’s testimony (166) in which the witness said that

the “partners”, during the week of April 7, 1941 (163),

discussed the possibility of sending platinum to Canada.

Neumann said that Arnold Weisz told the “partners” that

he had learned from Friedman (upon Friedman’s return

from Canada) that a profit could be made by sending

platinum to Canada. That “hearsay” statement is the sole

link connecting Friedman with the “Canadian Affair”.

Friedman had actually gone to Canada on March 13, 1941,

to obtain a permanent visa (3830). That he made the trip

for that purpose has never been disputed. He denied that

he had talked to Arnold Weisz about exporting platinum

to Canada (3846). Arnold Weisz did not testify.

The indictment had cited Friedman’s trip to Canada as

one of the overt acts (#11) in furtherance of and for the

purpose of effecting the object of the conspiracy. When

Friedman’s counsel objected to Neumann’s remark about

Friedman, the Court stated that it would be stricken out

if the Government failed to “connect it up” (167). Yet the

Court, in its charge to the jury, asked the following ques-

tion: “did he (Friedman) when he went to Canada, prior

to April 9, make inquiries as to the price of platinum?”

(4668).

Hersch Neumann’s remark (166) was heard by the jury

on September 23, the first day of the trial. The Court’s

charge was given on October 22. Thus the jury was directed

to consider hearsay evidence, presented a full month be-

fore, in deciding whether Friedman had inquired in Canada

about the price of platinum, and, if they concluded that he

did so, to weigh that finding against him in deciding that

he knew about the scheme to export platinum to Continental

Europe and had agreed to take some part in the venture.

He had gone to Canada on March 13 and had been with

Arnold Weisz in Flushing on June 4, 1941, a period em-

20

bracing almost the entire life of the conspiracy. If the jury

decided that Friedman knew about the platinum dealings

of the conspirators before March 13th, it is certain that no

consideration would have been accorded his protestations

that he had been an innocent participant in the “Flushing

Affair”.

. Friedman’s bank records were put in evidence by the

Government (4063-4069) and the fact brought out that he

had deposited about $30,000 in the first seven months of

1941 (4070). The inference was plain enough—that Arnold

was sharing his illegal profits with Friedman (4062). But

a full explanation by him of his finances was not permitted

(4079-4083). Yet the Court in its charge to the jury (4673)

after referring to these bank records and, particularly, to

the deposits of $7,700.00 made in April, 1941 (4062), asked:

“Now, where did that money come from?” thereby not only

creating a basis for speculation by the jury but also indi-

eating that it was dishonest money.

Where, indeed, did Friedman’s money come from? Or

specifically, in view of the Court’s emphasis upon the figure,

where did the April, 1941, deposits of $7,700.00 come from!

The record clearly shows where these deposits did not come

from!

In connection with the principal conspiracy, the Neu-

manns received the proceeds of the sale of the first ship-

ment in April (14383). But Arnold’s share was less than

$1,000.00 (1462). The proceeds of the second shipment

were not received until May 12, 1941 (1502). Arnold Weisz

had been arrested on the conspiracy charge and was still

in jail when the proceeds of the third shipment had been

received (399). The “partners” never recovered the pro-

ceeds of the fourth shipment (838). Mezenen testified that

two shipments by Clipper were consummated (2912-15).

but the first shipment did not go to Lisbon until some time

in May (2910-11). Arnold Weisz could not have received

21

the proceeds of the Clipper shipments until the latter part

of May.

The conclusion is inescapable that Friedman’s April de-

posits of $7,700.00 (which, incidentally, exceeded his average

monthly deposits), did not include Arnold Weisz’s illegal

profits in the conspiracy charged in the indictment. These

funds, therefore, must be presumed to have been honestly

acquired by Friedman. It follows that there was no “aecess

of wealth” as described by the learned Circuit Court (p.

9198 of the Decision) which held that the Trial Court com-

mitted no reversible error in admitting Friedman’s bank

statements showing “large deposits during the period here

involved” (p. 2197 of the Decision).

Another element presented by the Government in sup-

port of its case against Friedman is the fact that Fried-

man had printed or written various cables and other papers

for Arnold Weisz. It is contended by the Government (and

obviously accepted as a fact by the Circuit Court) that

Friedman wrote the delivery instructions given Mezenen,

but the record is confusing in that regard.

Arnold Weisz lived in Friedman’s home. Friedman tes-

tified that on occasions Arnold had asked him to write cables

or post cards or to address letters (3879). At Arnold’s re-

quest, Friedman, some time after his return from Canada,

accompanied Arnold to an attorney, Berger, who was told

by Arnold that he intended to export platinum. Arnold

retained Berger to inquire about a license (3841-3845).

Friedman explained that he did not know there was any-

thing wrong with Arnold’s handling of platinum (3957).

As stated above, the record relating to the delivery in-

structions given by Arnold Weisz to Mezenen is confusing.

Government Exhibits 52 to 58 were identified by Mezenen

(2935-2947). Exhibit 54 contained only a name and address

written in ink. Miller, an F. B. I. employee, gave an opin-

ion that Friedman wrote the name and address, but the

22

identity of the person who prepared Exhibit 58, a letter of

instructions, was not brought out. The Court, in its charge

to the jury, mentioned “letters” written by Friedman for

Arnold Weisz but did not remind the jury that the Govern-

ment had not connected Friedman with the letter of instruc-

tions introduced as Exhibit 58.

Arnold Weisz’s scheme to export platinum by Clipper

plane was unquestionably a solo venture. He concealed

from his “partners” his association with Mezenen (504-6).

To obtain the platinum he delivered to Mezenen, Arnold

used Felsenberg, obviously because he did not want the

others to know about it. A very significant fact in connec-

tion with the purchase of the platinum used for the Clipper

shipments is that Arnold Weisz did not employ Friedman

for that purpose. The record shows that the “partners”

were not particularly secretive in buying the platinum used

in the shipments by sea.

The Government contends that there was sufficient cir-

cumstantial evidence to warrant the finding of the jury in-

sofar as Friedman is concerned. But the evidence is lacking

in substance and does no more than create a suspicion of the

existence of the fact to be established. It is settled law that

where a finding is based upon circumstantial evidence “the

circumstances relied upon must be not only consistent with

the guilt of the defendants, but must be inconsistent with

their innocence.” Shannabarger v. United States (C. C. A.

99 F. 2d 957, 961).

In accord see:

Zito v. United States (C. C. A. 7) 64 F. 2d 772,

oe v. United States (C. C. A. 5) 48 F. 2d 26,

a v. United States (C. C. A. 5) 87 F. 2d 183,

ae v. United States (C. C. A. 8) 50 F. 24 37, 43.

23

The cumulative effect of the speculations and inferences

created by the testimony and evidence in connection with

Friedman and the further inferences, innuendos and specu-

lations presented in the charge to the jury, clearly presented

a situation to the jury, that even if this defendant (Fried-

man) was not a member of the conspiracy group, he must

be guilty of something ;—all that money, living with one of

the conspirators, doing him favors, lending him money, tak-

ing him to a lawyer, sending a cable using the letter oF >

The Court said in United States v. Silva, 131 F. 2d 247, 249:

«* * * There is no magic about a cownt charging con-

spiracy. It is simply an accusation of a distinct crime

and evidence in support of it must be so clear and

convincing as to leave no reasonable doubt. The gov-

ernment merely fails in its proof when its evidence

but creates a sort of a mystery as to which one guess

is as good as another. Copeland v. United States, 5

Cir. 90 F. 2d 78; Shannabarger v. United States, 8

Cir. 99 F. 2d 957; Kassu v. United States, 5 Cir. 87 F.

2d 183.

“Reversed.”

The words of the Circuit Court in the case of Marcante

v. United States (10th Cir.) 49 F. 2d 156, is apropos in

view of the attending factors here involved (p. 158):

“«*** Tf it extremely difficult for an experienced judge

to trace the skeins of scattered testimony to so many

individuals; with inexperienced jurors, such compli-

cated testimony is too apt to become a confused jumble

and a verdict to represent an impression that the de-

fendants are guilty of something, with little reference

of the crime for which they are charged.”

24

It is submitted that the evidence against Friedman is

insufficient, and that the doubt which may have existed, ac-

cording to the Cireuit Court of Appeals, should have been

resolved in his favor.

Ernest Weiss

Financial records also play an important part in the

Government’s case against Ernest Weiss. A statement

from Ernest Weiss’ bank (Gov't Ex. 37b) showed that on

May 8, 1941, there was credited an item of $8,943 (1394).

This amount had been forwarded by one Pancado Mores

from Portugal (4329). Ernest Weiss paid the full amount

to his brother, Arnold Weisz (4324), who was in the busi-

ness of foreign exchange (2348).

The brief of the United States on the appeal to the Cir-

euit Court cited this deposit in the summary of the evi-

dence against this defendant. It is mentioned again in the

decision affirming the conviction (p. 2196 of the Decision)

in which the Circuit Court said:

“In addition to Ernest Weiss’s activities in connection

with the Canadian transaction, the evidence showed a

payment to his bank account from the Chase National

Bank of $8,943; and the jury was not limited in the

inferences it might draw by his own testimony that

he knew no more than that this money belonged to his

brother Arnold and that he paid it all to Arnold.”

But the record again indicates that this money could not

have represented funds payable to Arnold Weisz in con-

nection with the criminal activities charged in the indict-

ment.

It is obvious that the Pancado Mores payment could not

have arisen out of the Main Conspiracy. Abe Neumann

paid Arnold Weisz less than $1,000. as his share of the

first shipment (1462). The Neumanns received the full pro-

ceeds of the second shipment on May 12, 1941.

meres ae~Tgt —

oe

25

A careful reading of the testimony of the Government's

witness, Mezenen (2907-2910) shows that the first package

of platinum involved in the “Flushing Affair” was not deliv-

ered in Portugal until after May 8th, the date the sum of

$8,943. had been credited to Ernest Weiss’ bank account in

New York.

Ernest Weiss allegedly took some platinum to Canada

and he returned this platinum to his brother Arnold without

disposing of it. Arnold Weisz returned the platinum to his

group of co-conspirators, Abe Neumann, Hersch Neumann,

Koppel, Rosenberg and Freier. The group thereafter used

this platinum for shipment to Portugal. Ernest Weiss was

not a member of this group. There is not a bit of evidence

to make him a party to the conspiracy charged in the indict-

ment.

The Court in its charge to the jury, however, charged if

Ernest Weiss knew that the platinum he brought back was

to be used by his brother and others for the offense charged

in the indictment, such knowledge could be considered by the

jury in determining whether “he was a part and parcel of

the conspiracy.”, The Court in its charge said (4663-4666) :

“Of course, the exportation to Canada is not the crime

charged in the indictment herein; and if it was his

(Ernest Weiss) only act in relation to the conspiracy

charged in the indictment, he would not be guilty. But

did he do more than that? Did he bring back to this

country the platinum which had been given to him to

take to Canada, with the knowledge of the desire of his

brother and the others who may have been conspirators,

to sell at a large profit abroad? And therefore, you

must consider whether in doing that, if he was doing

something more than the taking of the platinum to

Canada, and whether bringing it back where it might

be sold abroad, if he knew that is what they were doing

Poe LLM OE ONE OTE OREO erm Re ee RE EN ey.

26

with the platinum and that was the reasonable use to

which it was to be put, then it is for you to say whether

or not he was a part and pafcel of the conspiracy.

«* * ® Was he part and parcel of this conspiracy, or

was he just a side issue, whose only part in the trans-

action was to go to Canada with some platinum to sel,

or, in fact, he did not take any platinum at all? And if

he did take, when he brought it back, did he know he

was bringing it back to be used for transportation?

“Of course, you have to judge the actions not only by

the spoken word, but by the surrounding circumstances.

Was the man just used for this particular purpose,

without any knowledge, or did he know what was going

on; and did he lend himself to the scheme? The selling

in Canada would not have been sufficient to charge him

with this conspiracy alleged in this indictment. And if

he sold the platinum in Canada, that would have been

the end of it, but he did not sell it; he brought it back.

What did he bring it back for? Did he know the use

to which it was intended to be put?”

It is clearly indicative that Ernest Weiss’ guilt of the

crime charged was to be based on his knowledge of the sub-

sequent acts of the main conspirators.

There is no proof that Ernest Weiss was part of the plan

or scheme charged in the indictment. “Conspiracies cannot

be established by a mere suspicion nor does the evidence of

mere relationship between the parties or association show a

conspiracy” (15 C. J. S. Conspiracy Sec. 93, p. 1150). The

fact that Ernest Weiss may have had knowledge of the con-

spiracy, did not tpso facto make him privy to it. There must

be some evidence to show that Ernest Weiss agreed to take

some part in the venture.

United States v. Kissel, 218 U. S. 601, 608;

United States v. Dellaro (C. C. A. 2d), 99 F. 2d 781.

—_

27

The fact that Ernest Weiss committed a wrong in taking

the platinum to Canada cannot by implication involve him

in another wrong committed by others who used the same

platinum, regardless of whether he knew the subsequent use

to be made of the platinum by the others. It is submitted

that the Court erred in submitting the case against Ernest

Weiss on the theory of knowledge on his part as to the use of

the platinum “to which it was intended to be put” by the

group of which he was not a member. In support of this

proposition, this Court is referred to the decision in the case

of United States v. Peoni, 100 F. 2d 401, where the defendant

Peoni in the court below was found guilty of a conspiracy to

possess counterfeit bills. The evidence in that case showed

that Peoni sold the counterfeit bills in question to one

Regno; and Regno sold the same bills to Dorsey. Peoni was

convicted of being an accessory to Dorsey and a co-conspir-

ator to a plan whereby Dorsey obtained possession of the

bills for utterance. The Court reversed the conviction, say-

ing at page 402:

“* * * Peoni was not an accessory to Dorsey’s posses-

sion; his connection with the business ended when he

got the money from Regno, who might dispose the bills

as he chose; it was no moment to him whether Regno

passed them himself and so ended the possibility of

guilty possession or (p. 403) whether he sold them to

a second possible passer. His utterance of the bills was

indeed a step in the casual chain which ended in Dor-

sey’s possession, but that was all. Perhaps he was

Regno’s accessory.

“ee . o . .

“The same reasoning applies to the conspiracy count.

Assuming that Peoni and Regno agreed that Regno

should have possession of the bills, it is absurd to say

28

that Peoni agreed that Dorsey should have them from

Regno. Peoni knew that somebody besides Regno

might get them, but a conspiracy also imparts a con-

cert of purpose, and again Peoni had no concern with

the bills after Regno paid for them. At times it

seemed supposed that, once some kind of criminal con-

cert is established, all parties are liable for everything

any one of the original participants does, and even for

what those do who join later. Nothing could be more

untrue. Nobody is liable in conspiracy except for the

fair import of the concerted purpose or agreement as

he understands it; if later comers change that, he is

not liable for the change; his liability is limited to the

common purposes while he remains in it. The confu-

sion is perhaps due to the fact that everything done by

the conspirators—including the declarations of later

entrants—is competent evidence against all, so far as

it may fairly be thought to be in execution of the con-

cert to which the accused is privy, though that doc-

trine too is often abused.”

The Court’s enunciation in United States v. Falcone, 109

F. 2d 579, aff’d 311 U.S. 205 is also applicable, where it said

(581):

« ® © * Civilly, a man’s liability extends to any injuries

which he should have apprehended to be likely to fol-

low from his acts. * * * There are indeed instances of

criminal liability of the same kind, where the law im-

poses punishment merely because the accused did not

forbear to do that from which the wrong was likely to

follow; but in prosecutions for conspiracy * * *, his

attitude * * * must be more positive. It is not enough

that he does not forego a normally lawful activity, of

tne fruits of which he knows that others will make an

SS eee oes 1 kee ee.

29

unlawful use; he must in some sense promote the ven-

ture himself, make it his own, have a stake in its out-

come.”

The proof here is insufficient to make Ernest Weiss one

of the conspirators involved in the count charged in the in-

dictment. He did not “in some sense promote the venture

himself, make it his own, have a stake in its outcome.”

See:

United States v. Silva (C. C. A. 2), 181 F. 2d 247.

The evidence creates no more than a suspicion, and as such

was insufficient to support a conviction.

Center v. United States (C. C. A. 4), 96 F. 2d 127,

130.

“Cireumstances which merely raise suspicion or give

room for conjecture are not sufficient evidence of guilt”

(Kassin v. United States (C. C. A. 5), 87 F. 2d 183,

184).

The Government for want of evidence to connect Ernest

Weiss with the crime charged created inferences from his

connection with another offense and his relationship with

his brother Arnold who was one of the alleged co-conspira-

tors. No one connected with the crime charged identified

Ernest Weiss as one of the “partners” to the venture. Sus-

picion or conjecture cannot take the place of evidence.

The conviction of Ernest Weiss, it is submitted must be

reversed.

See: :

Gerson v. United States (C. C. A. 8), 25 F. 2d 49;

Caringella v. United States (C. C. A. 7), 78 F. 2d

563, 566;

30

Dahly v. United States (C. C. A. 8), 50 F. 2d 37,

43;

15 C. J. S. Conspiracy Sec. 93, p. 1150, and cases

cited in notes 79, 80, 81.

Ferenc Weisz

There is really nothing against the defendant Ferenc

Weisz insofar as the conspiracy charged in the indictment is

concerned. His alleged connection with the Canadian affair

cannot by inference, as we have shown in regard to Ernest

Weiss, be used as the basis to make him “part and parcel of

the conspiracy”. The proof shows that his brother Arnold

Weisz called Ferenc Weisz to the office of the “partners” of

the main conspiracy to type an insurance agreement entered

into between defendant Freier and Arnold Weisz, after one

of the “partners”, Abe Neumann, refused to type the same

unless he was paid $5 (1644). At the request of his brother

Arnold, Ferenc Weisz called to get moneys due Arnold from

the conspirators, Hersch and Abe Neumann (344, 399).

Again at his brother’s request he allegedly delivered the

package of platinum returned from Canada (209).

The Government’s witness, defendant Koppel, testified

that he had general conversations with Ferenc Weisz about

platinum, but such talks were all outside of the conspiracy.

This is the extent of Ferenc Weisz’s participation.

Does this participation make Ferenc Weisz a “partner”

to the conspiracy charged in the indictment? He had no

stake in the conspiracy. There is no proof to show that

Ferenc Weisz joined the conspiracy partnership. Such par-

ticipation without an agreement to join the conspiracy can-

not make Ferenc Weisz one of the co-conspirators. In the

ease of Dahly v. United States (C. C. A. 8), 50 F. (2d) 37,

the general rule which should be applied here is stated

(p. 43)

———rrrrrorr _

eee

31

“Circumstantial evidence is equally available with direct

evidence to prove the conspiracy, but suspicion and

conjecture cannot take the place of the evidence. Guilt

must be established beyond a reasonable doubt, and

where the evidence is consistent with innocence as with

guilt no conviction can properly be had. Even parti-

cipation in the offense which is the object of the con-

spiracy does not necessarily prove the participant

guilty of conspiracy. The evidence must convince that

the defendant did something other than participate in

the offense which is the object of the conspiracy. There

must, in addition thereto, be proof of the unlawful

agreement and participation therein, * * *.”

The proof in the case at bar does not show that Ferenc Weisz

joined or participated in any agreement with the conspira-

tors. Such evidence is lacking.

Lucadamo v. United States (C. C. A. 2), 280 F.

653, 657;

Marrash v. United States (C. C. A. 2), 168 F. 225,

231.

And as was said in Marino v. United States (C. C. A. 9), 91

F, 2d 691 at page 695:

“On the other hand, an accused must join in the agree-

ment to be guilty of a violation of the statute, for even

if he commits an overt act, he does not violate the

statute unless he joined in the agreement.”

(See copious citations of authority under notes

20 and 21 in the Marino case.)

The evidence against Ferene Weisz, it is submitted, is too

weak to sustain a conviction.

a ae hey re. we trade 2y Tye

Irene Weisz

She may have participated in the Canadian affair, which,

however, is not the crime charged in the indictment. In con-

nection with the conspiracy charged, the testimony in the

record reveals that Irene Weisz carried some platinum to

her brother Arnold’s office; but was not present when the

platinum was delivered Silva for exportation (1491). That

she was present when Koppel asked his “partners” for a pass

to board the boat “Guine” (251) and she volunteered to get

such a pass and obtained it for Koppel. This is the extent

of her participation. It is significant that she was never

present at conferences of the “partners” concerning the

vital matters of their venture; and on one occasion she was

told to step out of the room while the “partners” discussed

something important (2783).

It is submitted that the evidence is inadequate to sustain

Irene Weisz’s conviction.

POINT V

The Circuit Court of Appeals erred in holding that

the trial court did not commit reversible error in ad-

mitting platinum and Friedman’s bank records as

part of the Government’s case against all of the de-

fendants.

The defendants Ernest Weiss, Ferenc and Irene Weisz

clearly had no connection with Mezenen nor were they in

any way associated with Friedman. These defendants were

not concerned with any conspiracy to export platinum

through Mezenen and Mario via Clipper. Arnold Weisz’s

dealings with Mezenen were definitely extraneous and no

part of any conspiracy involving these defendants. Nor

was Friedman in privy with them. Yet the proof attending

33

Friedman’s alleged connection with the extraneous deals of

Arnold Weisz was admitted into evidence as against these

defendants, as part of a single offense.

The only platinum introduced at the trial was the plat-

inum found on Mezenen. The defendant Friedman made

large bank deposits during the times alleged in the indict-

ment. The source of these deposits was not shown by the

Government still the Court allowed them into evidence, leav-

ing it to the jury to decide on inferences and not on evidence

where these deposits came from.

The introduction of the platinum (Exh. No. 51) was prej-

udicial and affected these defendants’ substantial rights.

This platinum was foreign to the activities and offense

charged against them, yet this evidence is given to the jury

as evidence against these defendants. This would be analo-

gous to a situation where A and B commit a robbery, B and

C commit another, and A is convicted on the money found

on C.

The effect of the introduction of some platinum in the

case can be readily surmised. For seven days the jury heard

testimony about the precious metal, but saw no metal. And

then, the F. B. I. produced the valuable metal for all to be-

hold! The Court ruled it was admissible against all the

defendants. So the defendants, here, are found guilty on

platinum found on one Mezenen—a total stranger to them

and by no stretch of the facts a co-conspirator.

The jury for days heard testimony on the shares contrib-

uted by each conspirator in each shipment. Each one’s

share was comparatively small. The defendants here con-

tributed nothing. The bank accounts of Friedman (definite-

ly not a co-conspirator) are at a later time introduced

en masse by the Government. The Government shows no

connection between these deposits and platinum or any

conspiracy involving these defendants. The deposits are

suspiciously large. Where did Friedman get the money?

34

The effect of this evidence is apparent. It served only

the one purpose of implicating all the defendants with these

~ unusual deposits.

It is submitted that this evidence, and the inferences

raised by reason of its presence in the case was highly prej-

udicial and constituted reversible error as against the de-

fendants Ernest Weiss, Irene and Ferenc Weisz.

CONCLUSION

The judgment of conviction should be reversed and

the indictment dismissed.

Respectfully submitted,

Harotp Sr. L. O’DovGHERTY,

Attorney for Petitioners,

Ernest Weiss, Irene Weisz,

Ferenc Weisz and Geza

Friedman.

Joun R. STARKEY,

Epwin F. Buaney,

On the Brief.

QnPurniedien

ee