Delli Paoli v. United States – Oral Argument – October 18, 1956 (Part 2)

Media for Delli Paoli v. United States

Audio Transcription for Oral Argument – October 18, 1956 (Part 1) in Delli Paoli v. United States

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Earl Warren:

Mr. Greenberg, you may proceed.

Daniel H. Greenberg:

Thank you, sir.

I was at the point in the — in detailing the advancement of this case and I will turn now to the last day, the day on which alcohol was discovered at the garage and the day on which all of the defendants were apprehended.

This day, December 28, 1951, the facts as proven by the Government’s agents, and I might say at this point that all of the evidence was introduced by the Government, either through Government agents or the testimony of witnesses.

And other than by cross-examination, the defendants offered no direct proof.

On December 28, the defendant, Margiasso and King, met at the service station, the Bruckner Boulevard service station.

And there, Margiasso took King’s car and went away.

King remained there and after a little while, Delli Paoli showed up and his car was placed on the greasing rack and while his car was being serviced, he and King engaged in conversation.

All of this was observed by Government agents observing this gas station through field glasses from some distance away.

After — after Delli Paoli’s car was finished being serviced, it was taken off the rack and thereafter, the two men continued to be with each other until Margiasso returned.

And at that moment, King got into his car and drove away and he drove from this point in the east Bronx down to Harlem where he was apprehended by the agents.

They followed him from the service station and a number of cans of — of bootleg were found in the car.

Nothing further was observed during — and this was in the early part of the evening.

Nothing further was observed until Margiasso was seen to come back to the service station at about 10 o’clock.

Delli Paoli’s whereabouts were not known and the agents watched Margiasso, and pretty soon, Whitley showed up.

Now, Whitley came to the service station.

Margiasso got out of his car and went into Whitley’s car and drove it away and drove to this — to this garage at Harding Park, the house location.

And there, Margiasso was observed to open the garage doors, but evidently, something alerted him because leaving the garage doors open, he got back into Whitley’s car and started to drive away when the agents seized him.

And on this person, they found keys which fitted the lock of this — of the garage.

They went back to the garage.

The doors were open and located inside the garage were 153 five-gallon cans of alcohol.

They took Margiasso back to the service station where Whitley was found and he had a brown paper bag with a thousand dollars in cash in — inside the bag and these men were arrested.

And as the agents started to leave, Delli Paoli started to drive into the service station.

One of the agents, a man named Fay, engaged Delli Paoli in conversation and after a few moments, Delli Paoli started to back out of the service station.

And as he did so, a car was brought up alongside of him and then a police car came in behind them and so he was prevented from backing out of the service station.

The reason I detail those facts is because the Government has claimed that this was an attempt to flee on the part of Delli Paoli, which would be evidence of consciousness of guilt.

Agent Fay, the man who engaged Delli Paoli in conversation was never called as a witness nor was his absence unexplained.

The only evidence we have as to the kind of conversation was agent (Inaudible) characterization that they appeared to be having some sort of an argument, that is, Fay and Delli Paoli.

But what was said, we don’t know.

The Government claimed in the court below that this was attempted escape, which could properly be considered by the jury.

Daniel H. Greenberg:

I countered that — that there was no such thing.

The majority of the Court of Appeals said nothing about it, they ignored the point.

And Judge Frank in dissent said that it’s hardly evidence of escape.

They pressed the point here too.

There’s nothing to show that Delli Paoli knew he was being interrogated or being apprehended by a Government agent or by any other police officer.

You have the same sort of situation as this Court passed upon in the Di Re case where a — where we had an arrest of a man who was subsequently found to have illicit ration — gasoline ration stamps on this person who did not protest his arrest.

And in this case, we don’t know what the conversation between the two persons was.

We don’t know what prompted Delli Paoli to back out at the service station because the record is completely barren in all of these facts.

Now, after —

What — what was the relation of Paoli to the — to the house that had the garage where they —

Daniel H. Greenberg:

A relative of his lived there for some time.

I understand.

He — he bought it?

Daniel H. Greenberg:

No, sir.

Pierro, the —

Pierro.

Daniel H. Greenberg:

— third man bought it for his sister, Mrs. Stacio, and a Mrs. Destefano, a cousin of Delli Paoli lived there.

Paoli never lived there?

Daniel H. Greenberg:

No, he never lived.

He lived in the neighborhood and everything here happened within the radius of — of a few blocks of where Pierro lived, Margiasso lived and Delli Paoli livee, and where the service station was also located.

I doubt that the distance between any of these places was more than a mile.

Although at the place where King was apprehended in Harlem was more than six miles away through some of the most heavily traffic streets of the City of New York.

Now, five days after these men were apprehended, and it’s conceded by all that the conspiracy terminated with the arrest of these defendants, Whitley accompanied by his lawyer, went to the offices of the Alcohol Tax Unit and there, he executed a detailed confession, which is printed as an appendix to Judge Frank’s dissenting opinion, which is printed as an appendix to the petitioner’s brief in this case.

And this confession, if Your Honors would read it, would observe, spells out quite in some detail the Government’s theory of this case that is the long-range conspiracy culminating in the events of the final night and approximately two of the three pages are dealt with particularity with the details of the alleged criminal conduct of Delli Paoli and it is petitioner’s argument, that this is the only evidence of substance in the case against them.

Of course, when it was received in evidence on the trial as the last bit of proof offered by the Government, it was scrupulously directed to the jury that they were not to consider it as evidence against anybody but the confessor, Whitley.

It was not evidence against any of the other persons named therein and was not to be considered by them.

Of course, objection was made to the offer of proof of this confession.

Suggestions were made that the names of the codefendants on trial ought to be deleted.

This suggestion was rejected and the jury had the full details of it before them.

It was read to them.

Daniel H. Greenberg:

There’s no mention in the record that the jury had it in the jury room with them during their deliberations but being quite familiar with the practices in the southern district, I can say that they most likely did have this and the other exhibits, other physical documents in the jury room with them.

They were made available to the jury.

Now, if I may, I would like to turn first with — with Your Honor’s consent to the second point of my brief and that is the propriety of receiving in evidence this confession by Whitley and its use in adjudicating the guilt of the petitioner Delli Paoli.

Felix Frankfurter:

Would you begin now to state before you comment on it exactly what took place in the admission of that (Inaudible)

Daniel H. Greenberg:

Your Honor, Mr. Justice Frankfurter, I was not the trial counsel.

My knowledge —

Felix Frankfurter:

Is that —

Daniel H. Greenberg:

Yes.

Felix Frankfurter:

(Inaudible)

Daniel H. Greenberg:

I find —

Felix Frankfurter:

Even-steven.

We’ve got the record and you have the record.

Daniel H. Greenberg:

Yes.

At the end of all — well, let me say that at the beginning, the only inference made at any point in the trial that there was to be any evidence of any admissions was in the opening statement of the prosecutor to the effect that Whitley admitted that he bought alcohol from Delli Paoli, and that appears at page 12 of the record in the following fashion.

I’ll read one sentence before it and this in the prosecutor’s opening.

“Just of that moment, the defendant Delli Paoli drove into the gas station and he also was placed under arrest.

Following this, the defendant, Whitley, admitted that on this evening he had arranged to obtain some alcohol from Delli Paoli and that the arrangement was that Margiasso was to deliver to him in the car which he had driven to this location on Bruckner Boulevard.

Now —

Had Delli Paoli made a motion for a separate trial?

Daniel H. Greenberg:

No, sir.

No motions were made for — for a separate trial.

The case was trialed three years after these defendants were apprehended.

No motions were made for severance.

Was he represented by the same lawyer who represented him when he made his confession?

Daniel H. Greenberg:

I doubt — you mean Whitley, sir?

I mean Whitley.

Daniel H. Greenberg:

No.

Whitley was represented by a different man on the trial than at the time he made the confession.

He — a man named Adams represented him when he went to the Alcohol Tax Unit on January 5th and it was defended by another man on the trial.

Did Whitley take the stand?

Daniel H. Greenberg:

Sir?

Did Whitley take the stand?

Daniel H. Greenberg:

None of the defendants —

None.

Daniel H. Greenberg:

— took the stand.

Whitley was represented by a man named Farrara on the trial.

Now, the witness Greenberg as an agent Greenberg, William Greenberg, who is a lawyer, testified in substance that he is an agent of the tax unit — Alcohol Tax Unit, and that on January 5, Whitley appeared with his lawyer and there he — he executed this document and then that it was offered in evidence and that was all there was to it.

It was the last bit of proof in the case.

And — and Greenberg was the last witness.

Until that —

William J. Brennan, Jr.:

On the objection made on behalf of Delli Paoli?

Daniel H. Greenberg:

Yes, sir.

William J. Brennan, Jr.:

What was the objection?

Daniel H. Greenberg:

Objection were that it was hearsay as to him that it violated the rule in Krulewitch of this Court, and that it was prejudicial and harmful, and that it should not be received in evidence.

And extensive colloquy in Court and in chambers ensued and there they adjoined overnight while memoranda was submitted to the trial judge as to the effects of the Krulewitch case upon the propriety of receiving this confession and the following day, the Court received it with admonitions to the jury not to consider it as evidence of the guilt of any of the people named therein, other than that of the confessor.

What’s the offense, not guilty?

Daniel H. Greenberg:

No, sir.

Whitley made a detailed confession in January 5, 1952 and then pleaded not guilty and stood trial and was convicted on the trial, and was sentenced on the trial — after trial.

So far as the record shows, Delli Paoli didn’t know about this confession that was introduced, is that right?

Daniel H. Greenberg:

As — if Your Honor pleases, so far as Whitley’s attorney goes, he didn’t know that his man had made a confession until it was offered in evidence on the trial.

No one knew and Whitley had forgotten about it.

I guess the level of his education was not very high.

Earl Warren:

How was Whitley treated by way of punishment?

Daniel H. Greenberg:

Whitley —

Earl Warren:

A comparison.

Daniel H. Greenberg:

Whitley was then serving another sentence and the punishments were as follows.

Whitley received one year in addition to the other — consecutive to another sentence he was then serving.

King received three years on count one and one year on count three to run concurrently.

Margiasso received two years on each of three counts to run currently.

Pierro, the man who bought the house and whose only connection with the conspiracy was that, received a two-year suspended sentence with two years probation.

Daniel H. Greenberg:

Delli Paoli received two years imprisonment.

Earl Warren:

Two years imprisonment?

Daniel H. Greenberg:

Two, which he’s now serving.

Felix Frankfurter:

Does the record shed any light why there was this three-year delay?

Daniel H. Greenberg:

No, sir.

But —

Felix Frankfurter:

And that was ordinary time of flagging his own interest?

Daniel H. Greenberg:

Not in my time, if your Honor please, when I was an Assistant United States Attorney, we — sometimes, we try them expeditiously, but a very large and cumbersome case, sometime not.

I don’t think this was a large and cumbersome case, although it took eight days to try.

William J. Brennan, Jr.:

Well, was Whitley in prison much of that time?

Daniel H. Greenberg:

I think Whitley went to prison between the time of — he was apprehended here and the time he was tried in the other case.

William J. Brennan, Jr.:

Any of the other defendants included?

Daniel H. Greenberg:

Just King.

King and Whitley were the purchases of the illicit alcohol and Delli Paoli, Margiasso and Pierro were charged as being the salesmen — the salesmen.

Now, of course, this Court in Krulewitch laid down what we thought was a — a rule that hearsay statements of this sort, whether oral or written, ought not to be accepted in evidence.

And it comes down to the question of the problem of the ability of the jury to follow instructions as Judge Jackson said in Krulewitch.

It’s an unmitigated fiction to believe that prejudicial effects can be overcome by instructions to jury.

Felix Frankfurter:

Have you readily amend what the judge told the juries?

Daniel H. Greenberg:

It’s reprinted at length if — if the Court — Mr. Justice —

Felix Frankfurter:

Yes.

Daniel H. Greenberg:

— Frankfurter, in the Government’s brief.

(Inaudible)

Daniel H. Greenberg:

He repeated his admonition.

I will say that Judge Dawson was most scrupulous in his instructions and I think he — he felt he was coming within the limits of the cases decided in the Second Circuit that Judge Hand speaks of in his opinion for the Court.

He — page 34 and 35 are places where — where Judge — where Judge Dawson’s charge to the jury is indicated and at an earlier point, his instructions at the time that this confession was received in evidence is also repeated.

The petitioner makes no —

If you’re going to let in this — if you’re going to let this confession in at all, you have no suggestion that he should have said more about it than he did say about it.

Daniel H. Greenberg:

No, sir.

That is exactly my point.

That — that if anyone could have protected the rights of the defendants, Judge Dawson did.

Daniel H. Greenberg:

I say of course, that it was error to receive it in the first place, unless, there was excision or unless under the circumstances, a separate trial as to Whitley was ordered.

I subscribe to Judge Frank’s view that harmful effects cannot be undone by —

(Inaudible) and all three-judge Court of Appeals including Judge Frank agrees that the circumstances of this particular Government’s position or the counsel.

Daniel H. Greenberg:

In the way in which it was suggested by a counsel on the trial, I agree with Your Honor, it would not have.

It would have required taking out large parts of the confession itself.

As to the other parts we — we have no way of knowing whether it would have destroyed its usefulness to which the Government was entitled as a document to be used against Whitley only, and perhaps the price that ought to be —

Now, the reason I raised that was (Inaudible)

Daniel H. Greenberg:

Yes.

The only issue.

Daniel H. Greenberg:

Yes.

Unless of course — in other cases to come in the future, some form of excision can be accomplished and it was also my argument in the Court of Appeals that that had been a practice in that — in that office in the Southern District of New York to make excisions and cover up portions of documents which were improper and which might be prejudicial and that suggestion was not accepted in this case.

It was offered.

It was not followed.

Now —

William J. Brennan, Jr.:

(Inaudible)

Daniel H. Greenberg:

Yes, Your Honor.

That’s one of my quarrels is that more than half the document deals with Delli Paoli’s conduct rather than with Whitley’s conduct and I say that the Government had a very real purpose in — in offering this document and that real purpose was to get these facts of — of Delli Paoli’s alleged criminal conduct before the jury because they had no other evidence and that the use of this document did cross the line of demarcation, which this Court laid down in the case such as Lutwak where only one item of — of hearsay was received against the particular defendant or even in the case, the most recent case on which the Government relies in Opper were taken altogether with all the evidence.

It was found that the — that the statements of (Inaudible) the co-defendant, were not so prejudicial as to warrant eliminating from evidence who are reversing a conviction which had a firm foundation on other substantial evidence.

We don’t have that here.

We have here a situation where it — I don’t think it has the evidence against Delli Paoli, in this case, rises even to the level of circumstantial evidence, and circumstantial evidence is certainly good evidence.

It’s to be pointed out that Delli Paoli was not charged as an aide or an abettor as well he might have been had he in fact aided and abetted in the commission of these crimes to the extent contended for by the Government.

It’s a — the case against Delli Paoli was a very weak one.

Felix Frankfurter:

On what is —

Daniel H. Greenberg:

Excuse me, sir.

William J. Brennan, Jr.:

Were the motion were (Inaudible)

Daniel H. Greenberg:

Oh, yes.

That — I — I would say that in all respects, those rights were adequately protected and that the record was clean insofar —

William J. Brennan, Jr.:

Like that of the trial judge to say that the evidenced apartment where his confession was sufficiently (Inaudible)

Daniel H. Greenberg:

Yes.

Yes, I say so.

Daniel H. Greenberg:

That’s what —

William J. Brennan, Jr.:

You suggest that’s not —

Daniel H. Greenberg:

I suggest that that’s the — at an examination of the — of the evidence will show that that is not so and —

Felix Frankfurter:

Well, is it — must we not assume — must we not assume that there was enough evidence that would have allowed the Court to judge to send the case to the jury had there been no confessions touching how you fought in order to be with your problem not the first part of your argument, but on the question, which you are raising on this of the admissibility subject to admonition must we not have sued whereas there’s no point in the argument I think that theoretically, intellectually, there was a basis of the jury finding him guilty on what clause properly allowed to go to the Court.

Daniel H. Greenberg:

I say there was not enough evidence —

Felix Frankfurter:

(Voice Overlap) —

Daniel H. Greenberg:

— to submit the case to the jury.

Felix Frankfurter:

Well, that’s — that’s your first point you give.

Daniel H. Greenberg:

Yes, sir.

Felix Frankfurter:

But on this question, and the question that you raised of the — whether the admonition to the jury that they mustn’t consider anything pertaining power to confession.

We must assume that other — that there is — we must assume that there is a case to go to the jury apart from that.

Is that true?

Daniel H. Greenberg:

I would say in answer to your —

Felix Frankfurter:

I’m not saying that —

Daniel H. Greenberg:

Yes, I understand your question.

Felix Frankfurter:

I’m not saying that you don’t make the point.

You do make the point.

Daniel H. Greenberg:

Yes, I understand your question.

Felix Frankfurter:

Yes.

Daniel H. Greenberg:

I would say that assuming that there was enough other evidence to go to the jury, the admission of this confession —

Felix Frankfurter:

I understand that.

Daniel H. Greenberg:

— turned the balance.

Felix Frankfurter:

(Inaudible)

Daniel H. Greenberg:

Yes.

But I say —

Felix Frankfurter:

What you’re saying is — and I suggest (Inaudible) you must say there was enough apart from this.

Daniel H. Greenberg:

I don’t concede that there was enough.

I say that judge erred in sending it to the jury in the first place.

Felix Frankfurter:

But — but that’s not — that does — that’s unrelated to the question of confession.

Daniel H. Greenberg:

Yes, sir.

Daniel H. Greenberg:

That’s true.

Felix Frankfurter:

All right, that’s all I’m saying.

Daniel H. Greenberg:

Yes.

Just — just what was the objection that Delli Paoli’s counsel made to the introduction of it?

Is that — do we have to go to the record to get that?

Daniel H. Greenberg:

I think — I don’t believe you would have to.

I would — I would say if Your Honor, that it’s sufficient to state that the — that the defendant’s rights in regard to taking objection were adequately protected by an exception on the record and I don’t think that’s a question here.

(Voice Overlap) something to the introduction of —

Daniel H. Greenberg:

Yes.

— nothing else.

Daniel H. Greenberg:

That’s — that is true.

Felix Frankfurter:

May I —

He did do that.

Daniel H. Greenberg:

Yes, they did do that.

Felix Frankfurter:

May I suggest before you sit down that you give some — give to the Court your view of what kind of principle you think should guide us in making this determination?

Unless, you offer the generality that no confession which includes a reference to a nominal defendant, to a co-defendant, no matter how restricted by the Court is of — is an admissible doctrine or rather that the — the admonition is too weak and necessary to destroy whatever effect, reference, physical reference in the confession you convey.

Now, what is your proposition that — on which you want us to reverse it?

Now, on this point, I’m not talking about confession.

Daniel H. Greenberg:

I’m sorry, sir.

I didn’t catch the end.

Felix Frankfurter:

What — what is your proposition of law unless you go to the full length that I’ve indicated that whenever you got co-defendants of a conspiracy case, it is beyond the power that no confession can be admitted that makes any reference by name to a co-defendant who isn’t himself the next time you take a confession no matter how serious and clear and compelling so far as language can compel.

The judge admonishes the jury and paid no attention to it and only restricted to the person whom it affects.

Is that your general proposition or just special?

Daniel H. Greenberg:

I would say as — as Justice Holmes once said, you’d have to prick out the cases interstitially and go — go to them one by one based upon their facts that you cannot make a hard and fast rule to cover every situation.

But that this is one case where the balance of propriety where the point of no return was reached and passed and where there was no going back and that Judge Hand’s placebo theory is what it comes down to be a bread pill, a sort of a fiction, a medicinal lie which undermines the truly more relationship between a Court and jury and the litigants before it.

Thank you.

Earl Warren:

Mr. Bishop.

J. F. Bishop:

I regret — may it please the Court.

I regret to have to open the discussion on this apprehension here, inadvertent I’m sure but the whole color of the case as to what evidence was presented to the jury here.

Independently of this confession, I believe, has been presented with one very important omission which I want to put into the facts and then get on with my argument.

J. F. Bishop:

As I understood the statement and perhaps I misunderstood it.

On the three crucial times when the pattern of this conspiracy was demonstrated and evidenced in the testimony without contradiction, it was not just a matter of Mr. Delli Paoli appearing at that filling station after a transfer had been made, but the record is very clear that the pattern was invariable each time.

The first thing that would happen is Margiasso, the man who drove the cars, would appear at that filling station.

That happened each time.

He was there before this thing happened and so clearly by appointment that we can’t rely on the laws of chance or just good company or loneliness to account for each of the three instances.

On December 18, that night, on December 28, that night, and then later, again, the same pattern, he appeared first.

He conferred with Margiasso.

They were seen talking by the agents.

Then, petitioner would either leave or he would sit around with a man characterized as the buyer and Margiasso will take the buyer’s car, drive to the garage, and we have little doubt as to his filling it each time because there is affirmative testimony that each time that car was returned by Margiasso, it was heavily laid and the back was down, and of course the second time they caught the car and it was found to contain 90 — 95 gallons of unstamped alcohol.

And the third time of course, the same pattern, petitioner went away and then when he came back before Margiasso should return, of course, Margiasso had been arrested, but the petitioner was there.

Now, the jury was not apprised by that clear testimony as to what the — the petitioner’s status was in the transaction, but it was very clear that he was the man that was to be there at every transfer, whether he was the supervisor, the collecting agent, or what, but he was there each time.

It was not an — a single case without anything in the whole collocation of evidence as in the raid where he happened to be there at — at a time when someone else entirely was being arrested.

He was there each time and when he drove up that last time, of course, Margiasso wasn’t there.

Whitley had been arrested with a thousand dollars in a paper bag, and we shant take the time to quarrel as to whether he tried to escape or not because it’s very clear.

He tried to back out of there when the agents talked to him.

And he would have made good his escape if another agent’s car hadn’t blocked him off and if a police — police cruiser hadn’t come up to the side so much for that.

I mention this in such detail because what was before this jury told that jury everything with uncontradicted testimony as a result of good, high-class investigative work over a long period of time by the alcohol agents.

That jury had before it every detail that was in the confession except the one additional item that Whitley after describing that process which had been fully described in the testimony and attested on three of these patterned occasions, Whitley added the fact that petitioner was there as the collecting agent, which added not a great deal, but we’re not here arguing a case on the theory that there was an error here which was harmless.

We’re contending that under the federal rules of criminal procedure as under the statute of Congress before that, joint trials are an accepted matter of procedure and the courts rely on those.

There is no exception in the federal rules of criminal procedure taking away the specific discretion of the trial judge to prevent abuses.

So we are not arguing here that there was an error which we say was harmless.

We are arguing here that there was no error in admitting a confession.

It was properly safeguarded because that is within the right of the judge under the rules and under the decisions.

I want to quote here from a case which was measurably more difficult than this one.

The Opper case, in which there was serious question as to whether a person accused of bribing a government employee had actually done so, and in that case, the employee’s confession Hollifield was admitted.

Mr. Justice Reed, speaking for the Court, in answer to exactly the contention that is here made said this, and I read.

“The trial judge here made clear and repeated admonitions to the jury at appropriate times that Hollifield’s incriminatory statements were not to be considered in establishing the guilt of the petitioner to say that the jury might have been confused amounts to nothing more than an unfounded speculation that the jurors disregarded clear instructions of the Court in arriving at their verdict.”

Our theory of trial relies upon the ability of a jury to follow instructions.

There is nothing in this record to call for reversal because of any confusion or injustice arising from the joint trial.

Now this disposition of exactly the contention here in a much worse case is — was nothing new.

J. F. Bishop:

In Lutwak, the Court made the same disposition despite the greater seriousness of that case as attested in the dissent of Mr. Justice Frankfurter, Mr. Justice Jackson, which pointed out that in that case, there was not just as in this case one single confession to be kept from all the rest of the evidence, but there were eight occasions which was pointed out in the dissent in which evidence was admitted against this or that defendant and not against the rest of the defendants.

And in the opinion of this Court in Lutwak, despite the fact that that had been vigorously pointed out and despite the fact that obviously is a much tougher case than one in which only a single admission is the subject of a caution to the jury.

In that case, this Court stated that they recognized the burden on the jury, and again, implicitly recognized that juries have to be trusted with things infinitely more dangerous.

Juries are constantly cautioned not to allow their prejudices to intervene.

They’re cautioned not to allow the fact that defendant does not take the stand, that they must not give any effect to that.

And by and large, if the jury system is to survive, it must be — the jury must be considered as having some integrity and some sense.

Now, in that case, the — this Court, in Lutwak, stated, all these difficulties have been pointed out in several cases citing them.

The rule has, nonetheless, been applied and it’s cited at Blumenthal, which is a yet earlier case of this Court in which a group of persons selling whisky over the OPA scale price were brought together and admissions of some were admitted against themselves and not against others.

The Government is aware of the problem, but we think that the solution of it, to throw up hands and just about vitiate all the opportunity for joint trials by saying that you simply can’t have a joint trial, if there’s an item of evidence, as in this case, a single item of evidence that can’t be used against all of them, you can’t have a joint trial.

Well, that’s too extreme.

We think that that is a retroactive changing of the rules after the trial has been held under the rules.

We may submit also that if this Court were sitting today as a legislative body, being asked to change the rules are to enact law, that it would require pretty serious consideration to make an absolute rule that you can’t have joint trials unless every item of evidence can be used against each defendant.

The Congress, when it first enacted the joint trial statute did so in recognition of the fact that these were piling up in cases against defendants and there is also protection for the defendants in the fact that if you had five separate trials, their expenses would go up and the question of how they might be prejudiced would depend on the order trial.

So we say that — that in this case to retroactively change the rules and make an arbitrary assumption on a sort of a psychological speculation that this Court has rejected three times, is something that doesn’t — isn’t called for in the merits.

Now, somewhat tied in with this, of course, is the question of what was there before this jury, in addition.

I have mentioned this extremely clear pattern of how this worked and that was proved as I say again independently except that one detail by the testimony of good police work.

But that isn’t all.

It isn’t to be considered the object of a conspiracy statute.

It’s not — it is to enable all of the people who really conspire and who are in the agreement to be tried and to show the entire pattern.

Now, these three patterns that — that — in which petitioner was caught were not exclusive.

They are not something that just happened.

The — the alcohol agents were watching, the two physical plants involved in this matter for a couple of years.

I’ll go back to 1949, the beginning of the conspiracy, the first thing that happened, and I’ll have to go quickly and I’m afraid in adequately.

The first thing that happened was when they bought that garage.

The Government put on the witness, as witness, the owner of that garage.

He said he had mentioned in the neighborhood tavern that he had the cottage and garage for sale, but it’s clear on specific questions and answers that he was approached.

He did not approach Pierro, who started the negotiations.

What is also in the record and what is omitted is that again, petitioner was the man who was always there.

Pierro worked on the negotiations and did the talking, but by his side in the conversations related to this cottage were already, petitioner and Margiasso.

Then it was petitioner and Pierro who went up and sized up that cottage for nearly an hour.

J. F. Bishop:

That’s all in the record and this — the test is — testimonies before the jury.

And what is also important is petitioner was doing all this under an alias.

He had the name “Bobbie London” and that is the basis of his dealings with this clearly disinterested outsider Crohn (ph) who sold them the cottage.

Now, after that, that cottage was boarded up.

It was specifically adduced in evidence that there were no other repairs at any moment made.

Petitioner was not seen doing the actual physical day labor of boarding up that cottage.Pierro and another man, unidentified, did that.

But petitioner was seen there and if I may jump in the timescale a moment, just a couple of weeks in December of 1951, before the agents closed in, petitioner was one man who could get into that padlocked cottage where the — where they later found some over 500 gallons of unstamped alcohol.

Now it — it’s not an improper —

Well, how — how was that proved?

J. F. Bishop:

Pardon me?

How was that proved?

J. F. Bishop:

The —

He was the one that could get in there.

J. F. Bishop:

By the actual observation of two agents in the testimony to the effect that he went up there and backed up his car and opened the door.

He did that.

He was seen doing that.

That is outside testimony.

It — it is in our brief if you wish to reference right now, you can.

Yes.

But we go beyond the bounds of saying that he was just a good friend when we — when a — an operation of this size from its references, possible potential informers or government witnesses to be sitting around, always present at that time.

I want to go into the matter of two trucks, which were involved in this operation.

Petitioner and Pierro and here again on completely in this separate testimony of the agents.

They were seen to go to a parking lot and bought a Diamond T truck, false registry of the plates, petitioner was seen driving it a number of times, took it out by himself, gassed it up and when that — when that truck was not sitting beside that garage storehouse, it was sitting across the street from petitioner’s residence.

Now, a neighbor testified.

He was a man who worked nights.

He said he would come by there.

This was late in 1951.

At 2:30 in the morning, that truck would be gone.

The daytime, it’d be back.

There was another truck, a Dodge truck which petitioner also was seen working on.

J. F. Bishop:

And here again, this is upright eyewitness testimony.

Petitioner was seen carrying with Margiasso some cartons for 5-gallon cans.

All this alcohol was found in 5-gallon cans.

Seen carrying those cartons from the Dodge truck into the — into the Diamond T truck, and then they drove out to the garage with it.

Now, let me point out a little technicality lest I misrepresent the case even inadvertently, that the — the agents obviously could not sit out in front of that place.

They viewed from a distance.

One of their investigative practices was to drive by and in that quick glance they had to see what was going.

If they followed petitioner from his house to the garage they might trail him at a distance then drive by their place.

That is all in the evidence.

I can’t urge strongly enough that the — that the Government brief’s summary, which, of course, is longer than what I can say today, is still inadequate to give you the feeling of accuracy and detail that was before that jury.

Now, in this case, the agent testified that he saw them go up to the garage door, open the garage door, put some furniture in there.

May I make it clear that on that occasion, the agent had to run before he saw them actually putting those cartons into the garage.

On the other hand, I don’t think that detracts in the least, that they were handling those cartons.

Of course, if petitioner had been disposed to bring in evidence of any legitimate use for those cartons, that will be one thing that cans were not found in the cartons necessarily, but they were engaged in a joint operation and that’s the essence of conspiracy, an agreement which necessarily has to be evidenced by all that’s seen.

So, we have here — well, I — I think that the — that the petitioner’s counsel is adverted to the fact that petitioner was seen there at the cottage and perhaps in the attempt to defend that and the only way that they did try, there is more eloquence and more effect on the jury than anything that could have happened in any other respect.

A neighbor testified to having seen petitioner at this garage premises and she’s testified that — that the woman that was living at those premises was a — had introduced petitioner as a cousin.

Petitioner then — petitioner’s counsel at the trial then called this woman back as their own witness and tried to adduce from her some testimony that maybe petitioner’s business were, out there, was social.

Asked them — asked this lady whether he was out there with the woman and the instant that the witness replied no-no, she was (Inaudible) dismissed and taken from the stand.

And that is the only explanation or attempted explanation that any of these petitioners made.

Now, as — that there is a great deal of additional detail with respect to the nights in question.

I have observed in the brief, although not in today’s argument there was nothing secretive because some of this was done in daylight.

But there’s something very substantial and secretive about boarding up the garage windows and that was so recognized in the trial because petitioner’s attorneys tried to adduce from the neighbors a — a danger of floods, a danger of children playing and so forth, all to — to explain why these glass windows of the garage were boarded up.

Nothing more has come of that and its obvious purpose, of course, was there eloquent to petitioner when he visited as it is to the jury when they finally found over 500 gallons of alcohol there.

Now, that is the posture of the case.

I want to mention also the posture of the trial because if ever a judge, and I think this is conceded all around, truly separated the case, this was it.

It was not like the Opper case where there was — the dangerous fact that in the middle of a testimony, the confession was admitted, and despite admonitions, the jury might intermingle it.

It is true what was said by opposing counsel that this confession came in after the rest of the testimony.

But at the risk of doubling the Court’s work, I hope that this will be read later.

We have placed in — in — largely because there’s only typed-in transcript here.

We have set forth in great detail how the jury was protected from untoward effects here.

J. F. Bishop:

So that the case will, as I think was suggested by Mr. Justice Frankfurter, have to go on a new absolute rule rather than any showing of real confusion in this case.

Felix Frankfurter:

What was the confession the last (Inaudible)

J. F. Bishop:

It was a — it was an affidavit —

Felix Frankfurter:

An affidavit.

J. F. Bishop:

— of one person.

There was no case here as — as —

Felix Frankfurter:

What was actually in this —

J. F. Bishop:

Pardon?

Felix Frankfurter:

What was actually within course of the trial, eight days trial.

At what stage of the trial was that talked about?

J. F. Bishop:

At the end, but —

Felix Frankfurter:

At the end.

J. F. Bishop:

But before, very long instructions which went to the other matters again.

That will appear also in the record.

In other words, it was safeguarded in this fashion.

First of all, as far as there being any surprise element as pointed out the — the prosecuting attorney at the beginning of the trial adverted to this — to this admission by Whitley and he did it not in any way that would influence anyone, but rather to a — he was going through the chronology of events there.

That was the time to — to demand the severance or to appropriate or to call for any other remedies and not, as well as the case after two and a half days of the trial to make first an objection that it should not be binding on the other defendants.

That was the first objection that was interposed when this was mentioned and the judge stated as we have pointed out in our brief here, immediately, that that of course was understood.

That it would be admitted only against Whitley.

Felix Frankfurter:

It wasn’t introduced two and a half days after the trial was started?

J. F. Bishop:

It — it was offered and the judge said he was going to keep that entirely separate and he looked up the law in it and then when all of the other evidence was in separately before the jury, then he — then he — he went through this procedure and —

Felix Frankfurter:

What law (Inaudible)

J. F. Bishop:

Well, that [laughs] — that the real objection to it was not what we now have before this Court.

Whitley’s counsel brought in the standard objection of coercion and the like, and that fell very badly by the way.

Beside, I’ll just have to refer you to the record.

It was never pursued and Whitley of course has not — it was never pursued here or elsewhere.

It was just a —

Felix Frankfurter:

What — what —

J. F. Bishop:

He said he didn’t know what he was doing, but he was there with the lawyer.

Felix Frankfurter:

You mean it was a simple case, if it was a standard rule to involve that the confession that he admitted there was doctrine that was learned in this case by admonishing the juries to pay no attention to its reference, to anybody else that the — the set of conventional rule doesn’t require any long thought than to bother anybody.

J. F. Bishop:

He had some other things to think about of great moment.

In this respect, the question that was raised before this Court as to whether it would be possible to — to delete, so that the question would not come up and he concluded, and I think rightly, that there had been so much evidence against detailing the whole thing.

Felix Frankfurter:

There wasn’t awareness of the psychological mischief that this could — generally for the jury no matter how restrictive.

Was that fair?

J. F. Bishop:

That is not fair.

There was an —

Felix Frankfurter:

That was trouble, what to do with a doctrine which implicated a (Inaudible) to whom it wasn’t valid evidence.

J. F. Bishop:

I think that the judge’s concern was not as to whether he could validly admit the document with proper admonitions but it was a very great solicitude only as to making sure that it was safeguarded by the proper admonitions, not the doubt which is stated.

That is from my own reading of the record and I — I recommend that a reading of the record will dispose —

Felix Frankfurter:

I think you’ll find more than to the — very alike to the need of seeing to it that they don’t have it count against this petition.

J. F. Bishop:

That is right.

I just want to make clear that he was not in doubt after Lutwak and the other —

Felix Frankfurter:

(Inaudible) I don’t mean to advice you —

J. F. Bishop:

Yes.

I — I —

William J. Brennan, Jr.:

(Voice Overlap) —

J. F. Bishop:

Pardon me.

William J. Brennan, Jr.:

(Inaudible)

J. F. Bishop:

That is right.

All the rest of this material from the — as to the — the mechanics.

For instance, in the confession, the mechanic — mechanics are indicated that the — that the buyer would take his car to a certain point and — and this filling station with such a point —

Well — well, I think —

J. F. Bishop:

— and that Margiasso would drive off with it.

That is all in the evidence.

There’s nothing new about that.

Potter Stewart:

No, but is — is there anything in the evidence comparable to the statements of the witness confession that he made several purchases from Bobbie who is Paoli, that first time, he met him at one place.

The second time, he met him in a different place and from then on, he would overnight the procedure indicating that there had been a number of purchases made directly from Bobbie or Paoli?

J. F. Bishop:

That is — is just a statement of what is in the evidence three times, except of the pay master aspect which I accepted, that he did the collecting.

But as to — as to Paoli, being present for these things, sending Margiasso off to fill up the car, bringing it back —

Potter Stewart:

It strikes me though that the fact that Whitley has said was that most of the purchases, the actual purchases, and he speaks in smaller quantities doesn’t he of five gallons at a time of purchases of that character.

Potter Stewart:

Isn’t that the fact?

J. F. Bishop:

Yes, surely.

Potter Stewart:

And this seems to me though that he has put in the confession Bobbie in the position of having been the salesman to him on a large number of occasions.

Isn’t that part of the trial session?

J. F. Bishop:

Well, if — first of all, I think that we disagree as to how much is added by this matter.

When you say that he adduced some additional earlier occasions in which the same pattern was going through, I don’t believe that adds much to the force upon the jury of the vivid description of the three patterns.

As I said, the only thing that was added was that he was the paymaster.

William J. Brennan, Jr.:

Well, this is what I have reference to.

This is Whitley speaking.

This was some time in the summer of 1951.

Bobbie would come to my house to see me.

If I placed an order with him, he would set the date and the time for seven or eight o’clock in the evening when I was to pick up the alcohol.

The first time I met him on 138 Street in Bruckner Boulevard in Bronx, he took my car and was gone about one-half hour and then returned with the alcohol.

Second time, I met him on the corner of Bruckner Boulevard and Soundview Avenue.

From then on, he would alternate the procedure.

I would meet him one night in 138 Street, and the next time at Soundview Avenue.

That adds only a little you think to what you’ve described for us as the evidence outside the confession?

J. F. Bishop:

Yes, and I would defer the answer to that until the totality of the evidences before the Court.

I said at the outset, that what I’ve given the Court here is lamentably, skeletal depiction of what happened.

What — what has been added and what has just been read, it seems to me, is a repetition of the pattern, but no explanation or deviation from the pattern of any moment from those three clear occasions when that is exactly what he did and exactly what was testified to before the jury.

Now, there were occasions before and the jury no doubt could infer from the evidence before it, not even the confession.

Potter Stewart:

And on the —

J. F. Bishop:

That has happened lots of times and then the agents couldn’t catch up all the time.

Potter Stewart:

On the three occasions you mentioned, do the testimony identify Whitley as the one who was meeting with —

J. F. Bishop:

Whitley was there twice.

On — on December 18, a Pontiac drove up which the agents identified.

They didn’t see Whitley or identified him as such.

They got away on the night of — of December 18, but that same Pontiac came back in the night of — of the 28th.

At that time, Whitley was caught and from that, I would say that there were clearly before the jury two occasions in which it was a proper inference that that heavy loading of the car was exactly like — was the other two occasions.

I — I don’t want to be taken to minimize the fact that anything that you — that is admitted against only one defendant may carry over a little, but the courts have got to keep going.

J. F. Bishop:

They can’t have five trials for one trial and the defendants cannot have five trials when one trial would suffice.

There is carry over and this Court has three times stated that that carry over, dangerous as it may be, is a proper — that the — that the trial judge does not abuse his discretion if he is very careful about seeing to it that the jury separates that evidence and doesn’t apply it.

Now in this case, there was no real problem of intermingling of the evidence and two or three defendant saying this you can — you can carry over against defendant A, B, and C but not against D and E nothing of that kind.

There was one affidavit, one defendant, and the judge clearly told them, “Don’t hold it against any of the rest.”

Now that, a jury can do.

Earl Warren:

Mr. Bishop.

J. F. Bishop:

Yes.

Earl Warren:

The thing that’s bothering me is this.

If the evidence is as clear as you think it is, that Paoli was a seller of the liquor, why didn’t they charge him with being a seller along with the others that they did so charge?

Why did they charge him only with the conspiracy?

J. F. Bishop:

For these reasons.

First, they did not charge the others as — as sellers.

The substantive counts were possession.

Now, the technicalities of actual possession by petitioner might not have been made out.

In fact, he was clever enough to see to it that he didn’t have possession.

He sent Margiasso out to fill up the cars and to bring them back.

It’s just for that purpose that Congress has enacted a conspiracy statute so that a person who takes one piece of a process can be caught.

I don’t purport to know what was it, within the judgments of the prosecuting attorneys in this case.

But I do say that these substantive accounts might well have failed as to actual possession or even a clear aiding and abetting of a possession by petitioner in this case, but he was definitely in the conspiracy whereby Margiasso got the possession, and where King got the possession and Whitley got the possession as to the actual handling of this.

He was the man who was always there.