Forman v. United States

PETITIONER:Forman
RESPONDENT:United States
LOCATION:Superior Court of Bibb County

DOCKET NO.: 43
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 361 US 416 (1960)
ARGUED: Nov 19, 1959
DECIDED: Feb 23, 1960

Facts of the case

Question

Audio Transcription for Oral Argument – November 19, 1959 in Forman v. United States

Earl Warren:

Number 43, William R. Forman, Petitioner, versus United States.

Solomon J. Bischoff:

Chief Justice —

Earl Warren:

Mr. Bischoff.

Solomon J. Bischoff:

— may it please the Court.

The — this case presents for consideration of the Court, two issues.

One involves the application of the Double Jeopardy Clause of the Fifth Amendment under the facts in this case and the other involves the application of the Statute of Limitations in criminal conspiracy cases.

The — briefly the — with respect to the first issue, the record’s facts are that the petitioner was indicted with another one named Seijas for conspiracy to violate the Section 145 of the Internal Revenue Code, that is that conspiracy to attempt to evade the tax.

The precise method of attempted evasion was described in two — four subsections; one, merely alleges that they conspired to evade without designating or describing any means by which they would attempt to do so and the second subdivision (d) describes a sort of a hybrid violation.

It’s – it alleges that they conspired to evade — to violate Section 145 (b), the tax evasion statute and 1001 of the Criminal Code, the false statement statute, conjunctively.

And — but they conspired to do so by making false statements and presenting false records to revenue officials.

Now, the — the defendant was tried alone on this conspiracy charge and was found guilty and sentenced.

He appealed to the Court of Appeals for the Ninth Circuit where the conviction was reversed with directions to enter a judgment of acquittal.

And that was predicated upon the defense which the petitioner urged throughout the case that the case was barred — prosecution was barred by the Statute of Limitations.

The — the determination of that question as the case developed and I will describe it a little more in detail later, briefly it turned upon the question whether there existed in the case evidence of the subsidiary conspiracy to — to — which would prolong the operation of the Statute of Limitations of the character that had been described in the Krulewitch and Grunewald cases.

And the Court of Appeals determined that there was no evidence of the character and type of agreement that was found necessary to prolong the Statute of Limitations in those two cases and consequently the — directed the judgment of acquittal, said that the — that the — it was error to submit the case to the jury.

Now, after that decision was rendered, the Government filed what it denominated a petition for a rehearing, but which we, the petitioner contends, was not a petition for a rehearing in legal contemplation, although so denominated that it presented to the Court a — new issues for determination upon which it thought they should have another trial.

It presented a — an issue which they called an alternative theory which it said could have been submitted to the jury and the case would have been tried upon that alternative theory.

And they did not challenge the correctness of the one conclusion or the one issue which the Court of Appeals decided, namely that there was no evidence to sustain the conviction on the theory upon which the case was tried and submitted to the jury.

They didn’t ask that the reversal shall be set aside.

It only asked that instead of directing the judgment of acquittal, that the opinion should be modified to direct a new trial.

And the Court of Appeals, in its modifying opinion, merely determined that there was evidence on the record which would have sustained this so-called alternative theory and the case might have been tried on that alternative theory.

That was the language of the modification opinion.

Your Honor will find it at — in the record at page 1936 to 1937.

The Court concluded and said, “It now appears to us that the case might have been tried upon this alternative theory, namely, that the conspiracy continued past the filing of the returns for the purpose of protecting the tax — taxpayers from tax prosecution.”

Now, it — the Court did not say that it was at the — that they found that it had — was an error in his formal conclusion that there was lack of evidence.

It didn’t — that they had — no contention was made on that respect and it didn’t make such a finding.

And this new theory was one that was presented to the Court of Appeals for the first time in this petition which they call the petition for a new trial, but which — before a rehearing, but which we say is an original petition for a new trial.

Charles E. Whittaker:

But right now, it’s the original proceeding in the Court of Appeals you say?

Solomon J. Bischoff:

Yes, we say in legal effect it was a — an original proceeding in the Court of Appeals and I say it was a legal effect of that as such an original proceeding, because the case was not tried on this so-called alternative theory.

The Government took no exceptions to the theory upon which the case was submitted to the jury, didn’t object to those — to that theory.

Solomon J. Bischoff:

It did not request submission to the jury of any instructions predicated on this alternative theory.

And so, there was nothing for the court — the District Court to pass upon in connection with this question of the availability or nonavailability of an alternative theory.

Felix Frankfurter:

May I trouble you to tell us what the Government’s position was on the original appeal by you or by the present petitioner?

Solomon J. Bischoff:

With respect to what?

Felix Frankfurter:

With respect to anything.

What was the Government’s position on their appeal?

Solomon J. Bischoff:

The sole — the sole contention of the Government in the Court of Appeals on the original appeal was to sustain the conviction on the — on their view that there was sufficient evidence to establish this subsidiary agreement.

They sought to sustain the conviction and they only urged that there was no evidence and in their petition for rehearing –

Felix Frankfurter:

May I interrupt you?

Solomon J. Bischoff:

Yes, Your Honor.

Felix Frankfurter:

Is that all?

They — they simply urged that the conviction be sustained, if they defend the charge in the original hearing of the appeal?

There’s some question about the propriety of — of the charge, is there not?

Solomon J. Bischoff:

I’m not quite sure that I understand, Your Honor.

In the — in the Court of Appeals —

Felix Frankfurter:

Isn’t there — isn’t there some question as mischarging by the trial court?

Solomon J. Bischoff:

No.

They did not challenge the accuracy of the instructions as given —

Felix Frankfurter:

You did —

Solomon J. Bischoff:

— in the first appeal.

Felix Frankfurter:

You did.

Solomon J. Bischoff:

No, we did not.

We — we proposed that the instructions upon — which were ultimately — which were delivered to the jury, we didn’t object to them and the —

Felix Frankfurter:

The Court of Appeals found that that was wrong, doesn’t it?

Solomon J. Bischoff:

I beg your pardon?

Felix Frankfurter:

The Court Appeals disagreed with you on that, did they?

Solomon J. Bischoff:

No.

They — in the original opinion, they — they merely devoted themselves to the task of appraising the evidence to determine whether there was any evidence to sustain the conviction upon the theory with its — upon which it was submitted to the jury.

When did — when does the Grunewald case come down from this Court in relation to the argument of the original appeal in your case?

Solomon J. Bischoff:

The Grunewald — when the case was tried and the instructions given, the Court of Appeals’ decision in the Grunewald came down.

Solomon J. Bischoff:

I think it came down during the trial and the court was fully aware — it was made aware of it and — and the instructions as given, were patterned after the rules laid down in Krulewitch and in the Grunewald case.

No, I’m talking about (Voice Overlap) —

Solomon J. Bischoff:

Now, the decision in this Court came down after the judgment of conviction and while the case was pending in the Court of Appeals, but before the briefs were —

Before the briefs?

Solomon J. Bischoff:

— before the briefs were written and the Government, in its brief, discusses the — refers to and discusses the Supreme Court decision in the Grunewald case and not —

But they did not argue at that time (Voice Overlap) —

Solomon J. Bischoff:

They did not present —

— so-called, alternative theory?

Solomon J. Bischoff:

No.

They did not present it in the brief and they did not present it in the oral argument and this alternative theory which is now predicated on the Beacon Brass case, the Beacon — the Beacon Brass case wasn’t even mentioned in the Court of Appeals, until the petition for rehearing was filed.

What about that with reference how they could’ve gathered that alternative theory in the Grunewald case?

Solomon J. Bischoff:

The Grunewald case had dealt with an alternative theory.

The difficulty — the difference was that in Grunewald both theories, the theory of the scope of the conspiracy as contended for by the petitioner — by the defendant, was submitted to the jury and the Court submitted the alternative theory of the scope of the conspiracy as the Government contended.

Both were submitted to the Court.

Felix Frankfurter:

But isn’t the fact that the so-called subsidiary conspiracy instruction, the subsidiary conspiracy instruction was rested — was — that would’ve carried the statute of — that would’ve the period beyond the statutory cutoff, would it not, if —

Solomon J. Bischoff:

If there was evidence.

Felix Frankfurter:

— if — if that was — if that was a valid — if that was as relevant and appropriate instructions and you had asked for that instruction at the trial, is that correct?

Solomon J. Bischoff:

Yes.

We asked for the —

Felix Frankfurter:

And therefore, the Government tried to sustain the conviction on the assumption that the subsidiary conspiracy, the area charged was a proper charge in this case and it rested on that, is that correct?

Solomon J. Bischoff:

In the — in the Court, it didn’t challenge it, it didn’t — expressly —

Felix Frankfurter:

I’m trying to find out what the position of the Government was on the first — on the — on the original appeal, before the rehearing and I want to know if I’m correct in —

Solomon J. Bischoff:

I — I —

Felix Frankfurter:

— in — if I’m correct in this Mr. Bischoff.

That there was a charge given at your request, if you were the trial counsel, I don’t know who they were —

Solomon J. Bischoff:

I was associated with Mr. Mead.

Felix Frankfurter:

That — that if petitioner’s counsel at the trial, asked for an instruction which carried the period beyond the present controversy — controversial cutoff herein, the Court of Appeals said that that was an improper charge, but am I right in saying that the Government tried to sustain its — the conviction that you had at the trial, on the basis of the propriety of that charge, is that correct?

Solomon J. Bischoff:

I have to correct Your Honor’s premise — for a moment before answering the question.

Felix Frankfurter:

(Voice Overlap) —

Solomon J. Bischoff:

The — the instruction, as it was submitted, was predicated on the proposition that an attempt to evade had been committed when false return was filed in March 15th.

Solomon J. Bischoff:

Then it went further and that was our view of the decision of the Court of Appeals in Grunewald and the decision at Krulewitch, and that went further according to our requested instruction, unless, the jury could also find from evidence that there was an express original agreement between the conspirators to continue to act in concert, to conceal the offense — the offense and the conspiracy to prevent detection after the offense came to life.

If there was such an agreement, why of course, the statute would be extended and that was the instructions given.

That — that was — I briefed it a little, but that — that’s the essence of the instruction.

Charles E. Whittaker:

Mr. Bischoff —

Solomon J. Bischoff:

Yes, Your Honor.

Charles E. Whittaker:

(Inaudible) the instruction upon the so-called subsidiary conspiracy was given in language proposed in your request, was it?

Solomon J. Bischoff:

Substantially in the language proposed in our request.

Charles E. Whittaker:

Now, who raised the question that that was error in the Court of Appeals, did you?

Solomon J. Bischoff:

No.

Nobody raised the question of error in the Court of Appeals in that instruction as given.

Charles E. Whittaker:

But is that —

Solomon J. Bischoff:

That was —

Charles E. Whittaker:

— basis upon which the Court of Appeals reversed?

Solomon J. Bischoff:

No, the Court of Appeals —

Charles E. Whittaker:

What was the basis?

Solomon J. Bischoff:

The Court of Appeals reversed because there was no evidence of the character and quantity —

Charles E. Whittaker:

To sustain the theory of the instruction?

Solomon J. Bischoff:

— to sustain the theory of the instruction.

Charles E. Whittaker:

But could you raise that — does not one when he submits a charge to a court based on a certain set of facts, thereby admit that those facts necessary to support that instruction do exist?

Solomon J. Bischoff:

No, not necessarily Your Honor.

We first moved for judgment of acquittal because there was no evidence sufficient to submit to the jury on this subsidiary conspiracy, but when the Court ruled against us —

Charles E. Whittaker:

The trial court.

Solomon J. Bischoff:

— the trial court I’m talking about, ruled against us, we were — were forced of the necessity of limiting the — the operation of the Statute of Limitations by — on the — on the court’s assumption that there was evidence, but that does not — did not preclude us from continuing to maintain our position that there was no evidence sufficient to go to the jury on this subsidiary instruction.

So that the mere fact that we requested an instruction after the courts declined to — to agree with us, that there was lack of evidence, does not — was not an admission by us that there was evidence, and we maintained that petition and that was the basis of our appeal to the Court of Appeals and it sustained us in that contention that there was no evidence.

Felix Frankfurter:

But the — the Government asked for affirmance of the conviction on the basis of the record that was then before the Court of Appeals (Voice Overlap) —

Solomon J. Bischoff:

That’s right.

That’s right did they ask for —

Felix Frankfurter:

They took that position?

Solomon J. Bischoff:

They took that position, but —

Felix Frankfurter:

But what — but nobody — did you — did you — although in the light of your answer to Mr. Justice Whittaker, did you say — did you and your appeal in the court of — before the Court of Appeals say that that was a misleading charge to the jury because there was no foundation for giving it?

Solomon J. Bischoff:

No.

We — we contended that instructions should not —

Felix Frankfurter:

Have to be given.

Solomon J. Bischoff:

The case should not have been submitted to the jury at all.

It wasn’t a question of the accuracy or inaccuracy of the instruction as given.

We said that there was no justification for submission of the case to the jury at all —

Felix Frankfurter:

I understand that, but —

Solomon J. Bischoff:

— because there was no evidence.

Felix Frankfurter:

— but if — if a court gives the jury an instruction which has no foundation in the record and that instruction would mislead the jury into believing that they could find on the basis of that instruction.

Solomon J. Bischoff:

Well that — that was the —

Felix Frankfurter:

You did not — you did not make that argument, did you, in the Court of Appeals?

Solomon J. Bischoff:

We contended that it was error to submit the case because there was no evidence —

Felix Frankfurter:

But —

Solomon J. Bischoff:

— warranting submission.

Felix Frankfurter:

— more specifically, you did not say that the jury may well have gone to the jury, they have considered the whole — everything that was put before them and the (Inaudible) somebody say that judge told us that if we find the subsidiary conspiracy, we could bring in a verdict of guilty.

You did not say that that was a misleading instruction, did you?

Solomon J. Bischoff:

No.

We did not say it was a misleading instruction.

We said —

Felix Frankfurter:

But it was a misleading instruction, wasn’t it?

Solomon J. Bischoff:

We —

Felix Frankfurter:

(Voice Overlap) to the Court of Appeals.

If — if a court — a court isn’t engaged on a specific question of charging a jury in abstract, isn’t it?

Solomon J. Bischoff:

We — we did not argue it in terms of misleading.

We in — argued to the Court of Appeals in terms that it should not have been — the case should not have been submitted at all for lack of evidence.

Potter Stewart:

That is —

Solomon J. Bischoff:

And —

Potter Stewart:

Now what do you mean the lack of evidence?

Because it was barred on the Statute of Limitations was it that (Inaudible) last?

Solomon J. Bischoff:

Well, lack of evidence to sustain the existence of the subsidiary conspiracy which alone would have operated to extend or prolong the operation of the Statute of Limitations.

Solomon J. Bischoff:

In other words, the Statute of Limitations, its application depended upon whether there was a prolongation or whether it started to run from the time of the filing of the false returns.

Potter Stewart:

On March 15th of 1941?

Solomon J. Bischoff:

It was March 15th, 1946.

Felix Frankfurter:

So did the Government say that there was evidence to satisfy that charge?

Solomon J. Bischoff:

Yes.

They maintained —

Felix Frankfurter:

So — so therefore, they — they tried to sustain the verdict on the ground that there was evidence to sustain that charge.

Solomon J. Bischoff:

That’s right.

Felix Frankfurter:

And then the Court of Appeals comes along and says, there wasn’t evidence to sustain that charge and therefore, we order the dismissal of the indictment.

Solomon J. Bischoff:

They (Voice Overlap) —

Felix Frankfurter:

Is that right?

Solomon J. Bischoff:

— order.

Felix Frankfurter:

If the Government says, well you have no business to dismiss the indictment because of convict — she can be — we have another chance — since you threw out that ground, we have another chance, I’m not saying that’s right or wrong, I just want to know what it is, we have another chance by which you established that the statute has not run.

That’s the case —

Solomon J. Bischoff:

(Voice Overlap) case —

Felix Frankfurter:

All right.

Solomon J. Bischoff:

They came in after the Court found that we were entitled as a matter of law to a judgment of acquittal at the hands of the District Court.

But through the fortuitous circumstance they erroneously failed to give us that acquittal, they now say, we ought to — the Government ought to have another chance to try him upon another theory.

And in the — and it is conceded here that this theory was not requested, they said so in the petition for the new trial which is —

Charles E. Whittaker:

Theory of possible question, I don’t understand?

Solomon J. Bischoff:

They did not request submission —

Charles E. Whittaker:

The Government didn’t?

Solomon J. Bischoff:

The Government did not request.

Charles E. Whittaker:

You did?

Solomon J. Bischoff:

No.

We didn’t — we contended there was no alternative theory.

Charles E. Whittaker:

But after your motion for the record first was not and the court was — Committee contained (Inaudible)

Solomon J. Bischoff:

Oh, I — I see what Your Honor has in mind.

There — this alternative theory is not to be confused — the alternate theory that is being urged.

Now, it’s not to be confused with the subsidiary conspiracy which would have operated to prolong the Statute of Limitations.

Solomon J. Bischoff:

The alternative theory which they urge was on theory that there was — there was another scope of the conspiracy which contemplated something else that all — which would — which went beyond the conspiracy involved in the instructions as given, it was an alternative theory which is — was being superimposed on the theory embodied in the instructions as given and they wanted an opportunity to go back and try this case over again.

Felix Frankfurter:

They have no theory, the Government — the only theory the Government had when it came before the Court of Appeals is that the record, the evidence before the jury validated or justified, was verdict of the jury, is that right?

Solomon J. Bischoff:

That’s right.

Felix Frankfurter:

They were disappointed in the view the court took.

Solomon J. Bischoff:

Yes.

Felix Frankfurter:

And they said, don’t throw us out permanently because on the — on the allegations of the indictment, we can establish the allegations if you give us a chance, that’s the case.

Solomon J. Bischoff:

And that’s the case.

Felix Frankfurter:

All right.

Solomon J. Bischoff:

Now, had they come to the Court of Appeals —

William J. Brennan, Jr.:

Well, may I just ask.

Solomon J. Bischoff:

Yes, Your Honor.

William J. Brennan, Jr.:

The initial charge was of conspiracy to evade which as the case was submitted to the jury, was not one upon which a conviction could be found unless there had been a subsidiary conspiracy after March 1953 or in a subsidiary (Voice Overlap) —

Solomon J. Bischoff:

In a subsidiary conspiracy to —

William J. Brennan, Jr.:

To conceal.

Solomon J. Bischoff:

— to continue to act in concert to —

William J. Brennan, Jr.:

After 1953?

Solomon J. Bischoff:

— that’s the – after 1946.

William J. Brennan, Jr.:

1946.

Now, what’s the ultimate — what was the ultimate theory?

Solomon J. Bischoff:

The — the ultimate theory is — as I understand it and I’m — frankly, I never did get a clear understanding to what we they were trying to project, but they said we can disregard the filing of the — of the false return as a time from which the statute had commenced the run, but we claim merely that there was from the beginning — from the very beginning, merely a conspiracy that they would conceal the evasion or the attempted evasion and that that was a continuous conspiracy.

William J. Brennan, Jr.:

With an overt act sometime after 1946.

Solomon J. Bischoff:

That’s right.

William J. Brennan, Jr.:

Is that right?

Solomon J. Bischoff:

That was —

William J. Brennan, Jr.:

And that’s the alternate theory?

Solomon J. Bischoff:

That’s the alternative theory which they are projected for the first time in the petition for rehearing.

Now —

William J. Brennan, Jr.:

Before the Court of Appeals?

Solomon J. Bischoff:

Before the Court of Appeals.

Now, they said — and in their petition for rehearing in the Court of Appeals, they frankly stated in their petition and the petitioners attached as an — an appendix to the Government’s brief on the — in our position to the petition for writ of certiorari.

Solomon J. Bischoff:

They expressly stated that they did — that they had not requested — that the case was not submitted to the jury on this alternative theory.

William J. Brennan, Jr.:

Well, are you telling us that at the trial originally, they tried the case as if an agreement with you that the period ran from March 1946, unless there was a subsidiary conspiracy on or after that date?

Solomon J. Bischoff:

Yes.

William J. Brennan, Jr.:

Is that it?

Solomon J. Bischoff:

That was the way the case was tried and the way it was submitted —

William J. Brennan, Jr.:

And now —

Solomon J. Bischoff:

— and they acquiesced in it.

William J. Brennan, Jr.:

And now, you’re saying that their alternative theory is that no, it didn’t date — the statute doesn’t date from March 1946, but rather from some later date when there was a last overt act in — pursuance of a continuous conspiracy (Voice Overlap) —

Solomon J. Bischoff:

That’s right.

Now, that’s what they projected for the first time and even in the brief in this Court, they explained the — at page 22, they say in explaining why they didn’t project this theory in the trial court or even in the Court of Appeals.

They say, at that point the Government trial counsel should have objected, but he did not do so.

I’m reading at page 22 —

At the time — at the time — I just want to get over now in this case, at the time this case was tried, Grunewald did not come down from this Court?

Solomon J. Bischoff:

That’s right.

And therefore, you – both the Government you were unaware of what the Government is held by this Court in Grunewald, right?

Solomon J. Bischoff:

That’s right.

And that was the atmosphere in which this charge to the jury was made on the theory which the Government tried to develop?

Solomon J. Bischoff:

Not entirely.

We also tried it under the atmosphere of the Krulewitch case —

The Krulewitch case.

Solomon J. Bischoff:

— which was embodied later —

Right —

Solomon J. Bischoff:

— by — and adopted by the Court of Appeals and later by this Court and in fact, was enlarged upon.

And now, when you brought to the Court of Appeals before the briefs were filed, Grunewald had come down?

Solomon J. Bischoff:

That’s right.

And I suppose that you rely heavily on Grunewald case?

Solomon J. Bischoff:

Yes.

We have —

(Voice Overlap) Court Of Appeals for the first time on the basic premise of Grunewald case.

Solomon J. Bischoff:

That’s right.

You say the Government did not argue the alternative theory originally —

Solomon J. Bischoff:

That’s right.

— in trying to distinguish Grunewald?

Solomon J. Bischoff:

That’s right.

How did it distinguish Grunewald?

Solomon J. Bischoff:

It didn’t distinguish Grunewald at all.

They were — they devoted themselves — themselves entirely to establishing that there was evidence sufficient under the theory embodied in the — in the instructions as given.

That was the sole position of the Government on the original appeal until they presented the petition for rehearing.

Earl Warren:

Mr. Bischoff, may I ask you in presenting this alternative theory, did the Government contend that there — there was evidence sufficient in the first trial to sustain them on that theory or — or did they contend that if — if permitted to retry the case, they could.

Solomon J. Bischoff:

No, it was the former, Your Honor.

Earl Warren:

The former.

Solomon J. Bischoff:

They contended in the petition for rehearing that there was evidence prior — from which the jury —

Earl Warren:

Yes.

Solomon J. Bischoff:

— could’ve found the existence of this alternative theory.

Earl Warren:

Yes.

Solomon J. Bischoff:

But it was the — projected at that time.

Earl Warren:

Yes.

Solomon J. Bischoff:

Now, of course, the case — the Court of Appeals and appellate courts must review the case upon the theory upon which it was tried and —

Felix Frankfurter:

If the courts don’t — they adjudicated the theory they adjudicate rights and wrongs, convictions, judgments, they don’t adjudicate theory.

Solomon J. Bischoff:

But that’s true, but that — I used the term theory upon every basis upon which a conviction could be obtained.

That for example, if there are four pieces of evidence which would sustain a conviction, they can’t try him on one and then if defeated, indict him and try him on another.

They — upon every ground, upon all evidence, upon all phases upon which a case could have been tried in the first instance — which theory upon which the Court must review it as it was submitted and that is particularly true in a criminal case.

It wasn’t a —

Felix Frankfurter:

I don’t accept that principle.

The principle that I understand is that if there’s a conviction and the convicted person appeals, he opens up the whole proceeding.

And what should be done on appeal is for the appellate court to determine whether it should send the case back or should say no, this is so frivolous and so wrong that we direct the District Court to dismiss it.

That’s what I understand that (Inaudible) to these appeals (Voice Overlap) —

Solomon J. Bischoff:

We — we do not agree that that is the function of the appellate court in a criminal case.

Felix Frankfurter:

Well, I’d suppose that’s your —

Solomon J. Bischoff:

The —

Felix Frankfurter:

Now, which you could get around the double jeopardy —

Solomon J. Bischoff:

The —

Felix Frankfurter:

— provision to Constitution.

Solomon J. Bischoff:

Because — if that were true, then the Government — the Court of Appeals could remand the case for trial — retrial, every time that some other new theory is projected by the Government.

Felix Frankfurter:

There is (Voice Overlap) —

Solomon J. Bischoff:

The Government is entitled to only one trial to try the case —

Felix Frankfurter:

(Voice Overlap) —

Solomon J. Bischoff:

— once.

Felix Frankfurter:

— some other considerations come in to play, Mr. Bischoff, namely, considerations of fair judicial administration and this Court in its review of the Courts of Appeals may decide in its general supervisory power that it isn’t right that this person should be subjected to another trial.

Solomon J. Bischoff:

This —

Felix Frankfurter:

But the — but the other — but the basic responsibilities that the Court of Appeals to decide what it should do when a person has been convicted, seeks to review that conviction and rips open the whole situation.

Solomon J. Bischoff:

In order to — is to follow that theory would —

Felix Frankfurter:

(Voice Overlap) —

Solomon J. Bischoff:

— emasculate —

Felix Frankfurter:

— that the theory — that’s the — that’s the Court’s —

Solomon J. Bischoff:

— to follow that —

Felix Frankfurter:

— decision as I understand it for 100 years.

Solomon J. Bischoff:

The — we take for example, in a recent case of Aphet and old cases, members of this Court have — have stated that even in cases where a single offense gives rise to a violation of several statutes while he maybe subjected to multiple penalties, he can only be tried once and if he’s tried more than once, there’s a violation of the — of the constitutional protection against double jeopardy.

Felix Frankfurter:

Of course, it is tried in more than one setting and the whole question whether he is — he is being tried more than once.

Solomon J. Bischoff:

Now, if he is tried and — and the verdict has been rendered and the — endorsement in the Court of Appeals, the — the Government has denied the right to appeal even whether they — whether the — that they should — they — they can’t cross appeal, they can’t assert — assign error in the — as the — as the appellee and the — the fact that they are denied the right of appeal, all of these denials of the Government are geared to the constitutional prohibition against double jeopardy that —

Charles E. Whittaker:

Mr. Bischoff may I (Voice Overlap) —

Solomon J. Bischoff:

Yes.

Charles E. Whittaker:

Your client could put in jeopardy only one time.

Solomon J. Bischoff:

That’s right.

Charles E. Whittaker:

Now, when did his initial jeopardy end in your view?

Solomon J. Bischoff:

When he was tried and convicted that was a trial and he was either subject to — to stand convicted or — or discharged from it, unless the reversal of the conviction is predicated merely upon errors which infect the trial.

As for example, the — the introduction or — or rejection of the evidence or — or errors in instructions, when their reversal is on that ground, the courts have held that that vitiated the first trial.

There is none and in effect, he’s — didn’t have a fair trial, but it’s a defendant that rises that question.

He is seeking the new trial because of these errors.

Charles E. Whittaker:

So your answer to my —

Solomon J. Bischoff:

But when — may I just conclude, Your Honor?

But when the reversal is predicated upon the ground that the — there was no evidence, the warranting submission of the case to the jury it’s an adjudication that he was entitled to a judgment of — of acquittal in the first instance and that the — then in that situation, the Court of Appeals must give him the relief which he was entitled to in — in the first instance.

Now —

Charles E. Whittaker:

When your —

Felix Frankfurter:

Have the Court Of Appeals taken to account that if — if there’s a conviction and the claim is made that he should’ve directed a verdict of acquittal and that motion is denied.

And the case goes to the jury and the jury brings in a verdict of guilty and there is an appeal and the court deals by right, there wasn’t evidence to sustain the verdict.

Is it a constitutional requirement for the Court of Appeals to deny the rights of the Government and say, “We thought we have plenty of evidence, but we do not say there’s a gap.

We control that gap in the new trail.”

Do you think that’s unconstitutional?

Solomon J. Bischoff:

Yes, Your Honor, because then the Government is the one who is seeking to try the man twice.

Felix Frankfurter:

Convince me of that —

Solomon J. Bischoff:

It’s the —

Felix Frankfurter:

— and I’ll have to order the great deal of law.

Solomon J. Bischoff:

To use — to use the Justice Douglas’s statement in the Sapri case, it’s just asking for another — to go at the citizen, I think that’s what it comes to.

Now, when the — otherwise, he can be tried today on — on one theory as it was submitted to the Court and the Government seeks to sustain that conviction, then when it’s defeated, it says, “Now we want to go back and try him on another because we have another theory.”

And the Court of Appeals says, “Go ahead and try it, does it try him again.”

Charles E. Whittaker:

Your answer then to my question is the initial jeopardy ended when the Court of Appeals filed with the clerk its original opinion?

Solomon J. Bischoff:

I think so, yes.

Charles E. Whittaker:

All right.

Now then, you therefore say that that became a final judgment in acquittal — the adjudication?

Solomon J. Bischoff:

Well, I would limit that because I am not unmindful of the fact that when an opinion is handed down, it’s not immediately final because there exists a right given by all rules of court to apply for a rehearing.

Charles E. Whittaker:

And that was done?

Solomon J. Bischoff:

I beg your pardon?

Charles E. Whittaker:

And that was done?

Solomon J. Bischoff:

And that was done.

Now —

Charles E. Whittaker:

And sustained.

Solomon J. Bischoff:

But had the petition been in legal effect a — an application for rehearing, we recognize, of course, that the Court of Appeals could say, yes, we were in error.

We thought there was no evidence, but our attention has been directed to this piece of evidence, or that piece of evidence which we’ve overlooked and they could say, “We were in error” and so we revise our views.

Could I ask a question?

Solomon J. Bischoff:

Yes, Your Honor.

Supposing one reads his trial record as you think that wouldn’t call the alternative theory and its subsidiary (Inaudible) both embraced in the court’s charge of the jury, but that as a rule all (Inaudible) certain as to which way the jury — as to what ground the jury went on because of ambiguities in the charge, how do you distinguish this case to those and these statues and (Inaudible)

Solomon J. Bischoff:

The Grunewald case, the defendant who had a right to seek a new trial, moved for a new trial.

The — the Government doesn’t have any rights to move for a new trial.

The Government can’t move for a new trial under trial of court, denied that right.

Whether the judges — the instructions were right or wrong, or whether he committed the error in the instructions, the Government couldn’t have moved for a new trial in the trial court.

And it couldn’t seek a new trial as appellee in the — in the criminal case in the Court of Appeals, but in the — in Grunewald, the defendant said there was error not in the law as it was annunciated or as submitted, but there was error because in submitting the alternative theory to the jury, it hadn’t — it was not sufficiently identified.

It was equivocal and the jury could have been — it was — didn’t have enough yardstick by which to measure or distinguish that the one theory from the other.

But to the principles of law were sustained, but in the Grunewald, that theory was submitted to the jury in the first place.

The Court was then reviewing the action of the trial court.

It had right to review, had jurisdiction to review, but if when a — when a matter is not presented to the trial court in any form and we cite numerous cases to that effect, when a matter is not submitted to the trial court and you come to the appellate court and you want them to consider that question for the first time, then you’re invoking the original jurisdiction of the court and its particularly improper in a criminal case because in a criminal case, the — the court of — the Government can’t seek a relief by reason of errors made in the trial court.

Perhaps, I didn’t make myself clear (Voice Overlap) —

Solomon J. Bischoff:

Well, I’m sorry, Your Honor.

Supposing that a theory appears in this record, the alternative that both have been submitted by the trial court to the — the jury, the case has been submitted under both theories, what would be your position —

Solomon J. Bischoff:

Our — our position is that the court having found that there was no evidence that that was final, unless by petition for rehearing, they were able to demonstrate to the court that they — that they overlooked the evidence, but it couldn’t come there and ask the court to entertain a new theory or a new basis for indictment.

That was — that’s our — our view and the — we cite of the cases in our brief — of the time to refer to them all.

Earl Warren:

Mr. Bischoff, may I ask you this, assuming that the case was tried on the theory which it was tried and with the charge that was given and then on the original hearing before the Court of Appeals and in their briefs, the Government set forth this alternative theory, would your position have been the same before the Court of Appeals as it is here?

Solomon J. Bischoff:

Yes, Your Honor.

Earl Warren:

It would have been —

Solomon J. Bischoff:

We say — but we say that the Court of Appeals had no jurisdiction to entertain that new phase either in its original opinion or under the petition for rehearing, because it was not, in legal effect, a petition for rehearing.

Our view is and — that if whenever you in — present to the appellate court entirely new issue, which was not ruled upon in the court below, it’s no longer – it’s not a court of review, being asked to try a case de novo.

That is what it — what it amounts to and that particularly (Inaudible) in criminal cases.

Now — now, the — they’re — in the further exemplifications that I did that we call attention to the fact that the federal rules of criminal procedure expressly prohibit the reexamination of the giving of instructions or the failure to give instructions unless they are brought to the attention of the Court and exception taken and if in the case of failure to give instructions, there is an absence of request for submission, that rule precludes review.

The District Court could not have reviewed its instructions, its failure to give instructions involving the alternative theory and the Court of Appeals had no jurisdiction under this rule to review the — the failure to give instructions embodying theory even though there’d be evidence to sustain it.

Now, we submit — of the — here correct rule of what is laid down on the — on the only case that directly passed upon this subject was a case in the Ninth Circuit, the Corn case as to what power the Court of Appeals has upon reversal, whether to direct an acquittal or to — or to direct a new trial.

Whether there’s that discretionary power in that respect.

Now, that Court held squarely that there was no discretion in that situation.

That if the defendant was entitled at the close of the Government’s — of the entire case to a judgment of acquittal, that became vested right, an accrued right that it had and it can’t — couldn’t be taken away from unconstitutionally.

And therefore, when the Court of Appeals reverses on the ground that there was no evidence warranting submission of the case to the jury, if that — it could do noting else, but to give him the same relief and the same kind of judgment that he was entitled to receive at the hands of the District Court in the first instance.

That was his accrued right as the courts put it.

Solomon J. Bischoff:

Now, the court in that case, gave a good deal of consideration to the question that examines the authorities at length and came to that conclusion.

And I haven’t found any case in which the force of the reasoning employed has ever been has offset — the value that court as — as precedent.

We think that the philosophy of that case ought to be adopted by this Court.

Charles E. Whittaker:

The Government — the Government doesn’t dispute that policy does it?

Solomon J. Bischoff:

Well, I — apparently they do here.

They — they’re here claiming that the court had — had a discretion to direct a new trial under these conditions that prevail here.

Charles E. Whittaker:

Are you saying however, that the Ninth Circuit never did far — never did has between, does it — that there was not (Inaudible)

Solomon J. Bischoff:

The only — Your Honor, through — they say that of course, but it gets us back to the question of whether their petition that they presented to the Court of Appeals, presenting this new theory, if they call it, for the first time, was in reality a — a petition for rehearing.

If they were in — in legal — if in legal contemplation, they were asking the case that tried — the court to try the case de novo then it had no jurisdiction to examine the case or to entertain that petition.

And I say they have no jurisdiction to do that because that question was never presented to the trial court and wasn’t presented to the courts in the first instance and that’s kind of a petition, despite the fact they call it a petition for rehearing, must be considered for what it is in a legal effect, a petition asking the Court of Appeals for a new trial on — so that he could be tried on the theory that the man was never tried on before.

Now, I want to reserve it particular — may — for rebuttal, Your Honor.

Earl Warren:

You may, Mr. Bischoff.

Mr. Sellers.

Abbott M. Sellers:

Mr. Chief Justice, may it please the Court.

I should like to take a few minutes to settle once and for all, the chronology here of this case and to demonstrate, without any doubt, that from the very beginning, from the indictment all the way through the case, the Government took the position in line with the so-called alternative theory upheld by this Court in Grunewald, namely, a continuing conspiracy on what this Court called in adopting the Second Circuit that is a dissent in the Second Circuit’s characterization, namely, the installment theory of conspiracy.

The Government did not submit this case that is the indictment was not drawn.

The case was not argued to the jury.

The evidence was not so framed on the subsidiary conspiracy theory that this Court struck down in — in Grunewald.

Now, to pursue that further, the indictment charged these two individuals with conspiring first to the attempt to evade the taxes of one of the conspirators.

Second, it charged a violation of the evasion statute 145 (b) and the false statement statute, by means of making false statements in order to cover up the income of Seijas, one of the conspirators.

It then alleged 33 overt acts pursuant to the conspiracy, seven of which occurred within six years of the returning of the indictment.

So that’s the first point.

The indictment did not depend upon a subsidiary conspiracy theory.

Now the evidence; just briefly to review the overt acts that were established here within the six-year period before indictment.

The Government — that is the indictment alleges four acts 24, 26, 29 and 30, which consists in a revenue agent visiting both of these conspirators who had a joint office and who ran these pinball machine out of partnerships and that agent during the period 1948, made numerous visits to that office, talked to both conspirators, discussed various phases of the — the taxes and the taxes or rather, and the income of the four pinball partnerships operated by the — this business and submitted two reports which resulted in minor deficiencies.

In the course of that investigation, they were — the agent asked for and was given books which were false that namely, they did not disclose the true income of the four pinball partnerships and the evidence is uncontradicted in that respect.

Again, in 1931, I mean in — I beg your pardon, overt act 31, in 1951, at the request of the agent’s Seijas had prepared and that was given to Seijas and he in time, turned it over to the revenue agents, a net worth statement, which showed no additional income for the period, 1942 through 1945.

That is no unreported income, whereas in truth and in fact, the evidence later established that there was at least $86,000 that was not included in those books, neither was it included in the returns of Seijas, that’s overt act 31.

Overt act 32 and 33, maybe looked together, consisting of statements made by Seijas in the year 1952, January, the lower year before this indictment was returned.

Those statements, one of them in effect, was that Seijas believed that he had reported all of his income from the year of 19 — the year of 1942 through 1945.

Abbott M. Sellers:

The other statement was that in relation to $165,000 shown on this net worth statement, that he, Seijas, had no knowledge where that money came from, but notwithstanding the fact that in the early 1953, which as we say, was the time when this conspiracy was abandoned.

Seijas came to the agents and said that $165,000 belongs in 1942 through 1945.

So, the evidence was not submitted on the theory of a — of a subsidiary conspiracy namely a conspiracy to conceal a conspiracy.

Earl Warren:

Mr. Sellers, when was the latest overt act prior to — or what was the date of the latest overt act prior to the — these — these discussions and — and statements to the revenue officer, you just talked to us about?

Were they within six years?

Abbott M. Sellers:

Yes, all of these acts that I’ve just described 24, 26, 29, 30, 31, 32 and 33 —

Earl Warren:

Yes.

Abbott M. Sellers:

— were all within six years of the indictment.

Earl Warren:

Yes, I know, but we’re dealing with some taxes that go back to 1942 and 1943.

Now —

Abbott M. Sellers:

19 —

Earl Warren:

— was — was there a — a period of six years between these transactions that you’re just talking about now and the last overt act otherwise proved?

Abbott M. Sellers:

I’d answer that in — in this way, sir.

The indictment charges evasion of Seijas’ these taxes for 1942 through 1945.

Earl Warren:

Yes.

Abbott M. Sellers:

The return for the last year charged in the indictment, namely, 1945 —

Earl Warren:

Yes.

Abbott M. Sellers:

— would be due March 15, 1946.

Earl Warren:

1946 —

Abbott M. Sellers:

So all that putting that in the chronology of these overt acts, overt acts 24, 26, 29 and 30, which occurred in 1948, would be within the six years.

Overt Act 31, which has occurred on December 1951, namely, the net worth statement submission, would be within the six years.

Earl Warren:

That’s all I was asking, don’t take anymore time.

Abbott M. Sellers:

And for that matter, 32 and 33 —

Earl Warren:

Yes.

Abbott M. Sellers:

— because they occurred in January 1952.

Earl Warren:

Yes.

Abbott M. Sellers:

Now, in the opening statement, I’m — I’m proceeding still along the line to demonstrate to Your Honors, that the Government throughout, did not rely on the so-called subsidiary conspiracy theory.

The case was tried throughout on the theory that this was a conspiracy to attempt to evade taxes, not a conspiracy to conceal a conspiracy.

Potter Stewart:

Well then, if that is true, did the United States Attorney or the Assistant, trying this case, make an egregious error and not requesting the trial judge for instructions to that effect, to the jury?

Abbott M. Sellers:

No, sir, for the reason that the court gave a sufficient instruction covering the continuous conspiracy theory and that is pointed out, sir, in the Government’s brief, page 4, Footnote 3.

Abbott M. Sellers:

We submit, Your Honor, that — that that charge is consistent.

Earl Warren:

Where is that to be the —

Abbott M. Sellers:

That’s at page 4 of the Government’s brief in this Court, Footnote 3.

It has several quotations from the instructions.

Notably, on page 5, the bottom of the page, where it says “Third — in other words, these are the elements that the Court said that the jury must find, third that one or more of the alleged conspirators committed an overt act or acts within a period of six years form the filing of the indictment here in further answer the conspiracy and during its continuous purpose of the object of the conspiracy, just refer it too the namely, attempted evasion.

It does not say conspiracy to conceal or conspiracies.

Potter Stewart:

Certainly the Court of Appeals missed just the whole point of your brief.

Abbott M. Sellers:

The Court of Appeals missed the whole point, sir and it recognized it in its opinion written on the Government’s request for rehearing.

That it overlooked that and said in effect that the — the case might — as it said, might well have been tried on that theory.

We submit the case was tried on that theory this — as a matter of fact, sir —

Potter Stewart:

The Court of Appeals in its — in its subsequent opinions, didn’t accept that qualification, had them tried on that theory, but all of a sudden (Voice Overlap) —

Abbott M. Sellers:

The Court of Appeals, the farther it went was to say it might have been tried.

Potter Stewart:

Because it didn’t agree with your present contention that it was tried after you get —

Abbott M. Sellers:

They were said in so many words.

It said the evidence tended to show that there were these acts which would be consistent with that theory and then it said, it might have been tried.

Felix Frankfurter:

Is that a time which might have been?

Abbott M. Sellers:

That’s the language, sir.

Felix Frankfurter:

Does that — does that mean, it could’ve been or it might be considered to have been filed?

Abbott M. Sellers:

Well —

Felix Frankfurter:

Did you ask for —

Abbott M. Sellers:

I would answer that, Mr. Justice Frankfurter, in saying that — that I think its fair to say that the Court of Appeals was not convinced that it had been tried on that theory, but —

Felix Frankfurter:

Well, I understand that — that’s an oath of dubiety, but its effect was that —

Abbott M. Sellers:

But I find conviction is —

Felix Frankfurter:

To give power or doubt on its part.

Abbott M. Sellers:

Well, there’s not doubt on our part, sir, but I —

William J. Brennan, Jr.:

Mr. Sellers, may I ask on the petition rehearing that the Government say in effect, we did try on that theory, give as an affirmance you were wrong to have the verdict.

And that’s (Voice Overlap) —

Abbott M. Sellers:

In — in its original —

William J. Brennan, Jr.:

Petition (Voice Overlap) —

Abbott M. Sellers:

— on it’s original brief in the Court of Appeals.

William J. Brennan, Jr.:

And the original brief —

Abbott M. Sellers:

It presented the correct theory along with the other theories.

William J. Brennan, Jr.:

Well, what you do on the petition for rehearing?

Abbott M. Sellers:

On the petition for rehearing, we sought to point out to the Ninth Circuit that the case had been properly presented to the Court.

William J. Brennan, Jr.:

To the end then of having an affirmance?

Abbott M. Sellers:

To the end of asking for a new trial and the attitude of the Court — I mean, of the Government there was, that admittedly, there had been some confusion brought about by the chronology of these circumstances that I will now relate.

William J. Brennan, Jr.:

Well, (Voice Overlap) —

Abbott M. Sellers:

The second —

William J. Brennan, Jr.:

— what — what confuses me is, in place to what you just told us and what pointed out to us in page 5 I still don’t understand why the Government didn’t ask on rehearing for an affirmance.

Why did it ask for a new trial?

Abbott M. Sellers:

Well, as I have stated, the Government recognized that there had been some confusion in the — in presenting the case to the Ninth Circuit, because of the — the Grunewald decision.

And also, of course, the fact that there had been instructions submitted to the jury in the original trial which as we pointed out, presented the Government’s theory and also an instruction at the request of this petitioner which submitted the erroneous Grunewald theories of subsidiary conspiracy.

Now, the Government recognized that it must share part of the blame in connection with the submission of that erroneous instruction.

It should have objected.

Charles E. Whittaker:

To what?

Abbott M. Sellers:

Well, I think that the Government owes it to any court to advise it what its — its view of the law is in connection with the submission of instructions.

Charles E. Whittaker:

How could a defendant claim prejudice before the District Court is in fact, the same words in instruction he stressed?

Abbott M. Sellers:

Well, that’s a little hard to understand, sir, but nevertheless, its fair to say that the — the Government thought that it should share part of the blame for he confusion that resulted in the — its failure to point out to the trial court that it was an error in giving this instruction.

Tom C. Clark:

Mr. Sellers —

Abbott M. Sellers:

I —

Tom C. Clark:

— what you are saying that the — you couldn’t tell from the jury who decided the case on what you call the Grunewald theory or what decided on the other theories?

Abbott M. Sellers:

That’s exactly right, sir.

And in that respect, it’s not distinguishable from the Grunewald case, itself.

Mr. Justice Whittaker, may I correct a statement I made?

The chronology — chronology of the situation was this with respect to the Grunewald case.

The Court of Appeals for the Second Circuit handed down its decision April 1956.

And that decision recognized in affect, two theories, the so-called subsidiary conspiracy theory, although Judge Frank dissented.

And also, the continuing conspiracy theory, the trial followed that by a few weeks, so that at the time the instructions were given to the jury on the authority of the Second Circuit’s opinion, it — it appeared that there was no error in the — in the instruction with respect to subsidiary conspiracy, because this Court had not spoken and the Second Circuit had endorsed it.

Then, the trial ended on August 9th — August 15, 1956 and the following May, nine months later, this Court handed down the Grunewald decision and, of course, struck down the implied subsidiary conspiracy theory.

Charles E. Whittaker:

Which the Court has given on the motion?

Abbott M. Sellers:

No, sir.

That — that request had been given by the petitioner, at the request to the petitioner.

Charles E. Whittaker:

In Grunewald?

Abbott M. Sellers:

Oh, in Grunewald —

Charles E. Whittaker:

It’s here, but I — I realized here is given at the request of petitioner.

This — let me just see, if I can clear up the cobwebs in mind.

I understand you to say that the indictment was adequate to sustain, you’ve raised a proof for that.

The Court can deal dominantly on the motion for rehearing that easily, so the three issues give way to that the charge that the Court has given was correct up to the point where you added to the thrust of the defendant, which leaves therefore depending on which by that you agree.

Well, then what I cannot understand is why — what the defense added would create (Inaudible) when everything else was fine (Inaudible) complain not to Ninth Circuit’s find that what you asked for and got places him to the place where he was (Inaudible)

Abbott M. Sellers:

If I understand your question, sir, it was why we had not pointed out that the petitioner had requested this instruction?

Charles E. Whittaker:

Well, I understand this evidence in the record to (Inaudible) must conceive that.

The only thing — I think that you would — and I’m wasting your time, I’m sorry, I just don’t understand (Voice Overlap) —

Abbott M. Sellers:

Well I —

Charles E. Whittaker:

— the Ninth Circuit reversed the case.

Abbott M. Sellers:

Well, I think it reversed the case — you mean on the first —

Charles E. Whittaker:

Yes.

Abbott M. Sellers:

— occasion?

Because the — there were some confusion in the manner in which the case was presented to it.

Charles E. Whittaker:

So that because of the thrust made for the defendant for a charge to support (Inaudible)

Abbott M. Sellers:

Yes, sir.

Charles E. Whittaker:

That’s all, isn’t it?

Abbott M. Sellers:

Essentially all.

Earl Warren:

Mr. Sellers, you haven’t quite finished your chronology and you got to — you got to the point where the decision of this Court in Grunewald came down.

Now, what date was that and then what happened afterwards in your proceeding?

Abbott M. Sellers:

The — this Court’s decision in Grunewald was May 27th, 1957.

The decision of the Court of Appeals, the first decision, namely, remanding the case for judgment of acquittal was September 15, 1958.

Earl Warren:

1958.

Abbott M. Sellers:

And then within the 30-day period, the — the Government requested a rehearing and on October the 27th, at six weeks later, the Court of Appeals handed down its decision with respect to the petition for rehearing, modifying its original opinion and instead remanding it for a judgment of acquittal, remanded the case for a new trial.

Earl Warren:

Now, how did you treat the Grunewald issue in your briefs in the appellate court?

Abbott M. Sellers:

I think its fair to say, Your Honor, that in the first place, we clearly submitted the case on the basis of continuing conspiracy, that is the theory that we had tried the case on.

Abbott M. Sellers:

There — there had been some language in our brief in the — to the Court of Appeals which did not clearly distinguish between the doctrine of continuing conspiracy as opposed to a subsidiary conspiracy to conceal a conspiracy.

But at least, at one — in one point of the argument, one of the points of the arguments was that an adequate instruction had been given and the case had been tried on the continuing conspiracy issue.

Earl Warren:

You did take — take notice in your briefs of the decision of this Court in Grunewald?

Abbott M. Sellers:

Yes, sir.

We —

Earl Warren:

Are those —

Abbott M. Sellers:

That’s decided.

Earl Warren:

Are those briefs in the record?

Abbott M. Sellers:

No, sir.

Earl Warren:

Would — have you a copy of them that you could submitted to us?

Abbott M. Sellers:

Yes, sir.

Earl Warren:

Would you do that, please?

(Inaudible)

Earl Warren:

Yes, I — I —

Abbott M. Sellers:

You want — you want all of the briefs —

Earl Warren:

In the (Voice Overlap) —

Abbott M. Sellers:

— in the parties’ file, in connection with all three of the Ninth Circuit’s decisions (Inaudible)

Earl Warren:

Yes, we would — we would like that.

William J. Brennan, Jr.:

You (Inaudible) the Chief Justice petitions to rehearing because you filed —

Earl Warren:

Yes.

William J. Brennan, Jr.:

— one and then the appellant filed.

Abbott M. Sellers:

You want the pleadings — the pleadings also, yes, sir.

Earl Warren:

Yes, if you please.

Could I ask you a question before you go on, assume that one reads the trial court record, particularly the trial court’s charge as submitting this case to the jury only, solely only, on the premise that there was a — that there was a subsidiary conspiracy, what’s the Government’s position in that event?

Abbott M. Sellers:

The Government’s position in that event is that the charge was improper and that there should be a new trial.

Earl Warren:

Well, is — was the charge in that — in that manner?

Abbott M. Sellers:

The charge was presented at both ways.

You see the Court on its own motion had submitted it properly, that as it now turns out to be properly.

That is —

Earl Warren:

Yes.

Abbott M. Sellers:

— on the theory on which the Government had tried the case, a — a continuing conspiracy to accomplish the initial objective, namely, to evade taxes.

Now, the petitioner came in and requested the Court to put in another instruction on the other theory that was involved in the Grunewald case, the theory that this Court ultimately struck down in Grunewald case.

Earl Warren:

Were you relying on that theory at all?

Abbott M. Sellers:

We have never relied on that theory, Your Honor, never, from the very time the indictment was drawn until this point.

Earl Warren:

It’s always been a continuing conspiracy.

Abbott M. Sellers:

Continuing conspiracy and I was in the middle of one point of pointing out that the Government’s opening statement to the jury, closing statement, as well as the instructions which we have discussed, preceded on the continuing conspiracy theory.

William J. Brennan, Jr.:

Mr. Sellers, I would just like to clear one last thing up for in the sequence of opinions of the Court of Appeals.

You’ve now, pointed out to us and you’re continuing with the other evidences of it, that in fact, there was a charge on the continuing conspiracy theory and also a charge that submitted by the defendant on the subsidiary conspiracy here.

And yet, the last opinion, do I correctly read it of the Court of Appeals, says this.

“We held that the case was submitted to the jury on an impermissible theory.

The jury was simply not properly instructed.

As we noted in our modifying opinion, the indictment was sufficient here to present — and the indictment was sufficient to present an alternative theory.

Furthermore, the record contains evidence which would tend dissent — sustain proof of overt acts and so forth in that theory.”

Do I correctly read this that at least the Court of Appeals had no impression that the case had been submitted to the jury on both theories?

Abbott M. Sellers:

I think the reading of the Court of Appeals’ second decision (Voice Overlap) —

William J. Brennan, Jr.:

Well, this is the last one.

Abbott M. Sellers:

I know, sir.

Oh, but (Voice Overlap) —

William J. Brennan, Jr.:

Or the second —

Abbott M. Sellers:

— the second one, I think, leaves no doubt but that the — the Government had pointed out that — that the — the alternative theory that is the continuing conspiracy theory which this Court held to be unexceptionable in Grunewald, was also before the court, before the trial court.

William J. Brennan, Jr.:

The second opinion makes that clear?

That’s on your petition for rehearing then, is it?

Abbott M. Sellers:

Yes, sir.

The Government says — this is on record —

William J. Brennan, Jr.:

1965 —

Abbott M. Sellers:

— 1937 —

William J. Brennan, Jr.:

Oh, yes.

Abbott M. Sellers:

The Government concedes that the case was submitted to the jury on an impermissible theory, but says that as in the Grunewald case, the indictment here presented an alternative theory.

So on —

William J. Brennan, Jr.:

No question about the indictment doing it, but the question is whether it was submitted on — to the jury on the alternative theory and you’ve been giving us evidences that it was submitted to the jury on the alternative theory, but —

Abbott M. Sellers:

Well —

William J. Brennan, Jr.:

— I don’t find in this opinion that the Court of Appeals considered to that and submitted on two theories, does it?

Abbott M. Sellers:

Well, I think it’s inherent in the statement of the Court of Appeals that when they say that the case might’ve been tried on this alternative theory —

William J. Brennan, Jr.:

Well, and they’ve heard of it — in the last opinion, they indicate that it had not considered (Voice Overlap) —

Abbott M. Sellers:

I don’t read that in the same way Your Honor does so that to rule out that the other one was not in the indictment, I mean in the charge.

Earl Warren:

Well, Mr. Sellers, you — you said to me that the — that the trial court first correct — correctly instructed to jury and then you said that the petitioner asked for further instructions, which was granted.

Abbott M. Sellers:

Well —

Earl Warren:

Now, would you read to me the portion on the court’s instructions that correctly discharged the jury on your — on your theory.

Abbott M. Sellers:

They’re contained, sir, on page — on our — in our brief, pages 4 and 5, in Footnote 3.

Particularly as I pointed out a while ago on bottom of page 5, the next to the last paragraph that is in the footnote says, “Third and goes on to point out that the jury must find that one — one or more the conspirators committed an act, an overt act or action within a period of six years prior to the following indictment herein, in furtherance of the conspiracy and during its continuance to accomplish the object, namely, attempted evasion of the tax liability of Seijas.”

Now, that clearly is charging a continuing conspiracy to accomplish the original objective of the conspiracy, not a conspiracy to conceal a conspiracy.

I should also like to say a few words on the point that we emphatically disagree with the petitioner’s statement that the Court of Appeals, when it granted the petitioner’s original request and remanded the case for judgment of acquittal, that the Court of Appeals based that decision on the evidence.

Your Honors please, on page 1934 and 1935 of the record, the Court of Appeals after a lengthy discussion of the two theories in Grunewald and pointing out that — that the subsidiary conspiracy to conceal a conspiracy is invalid, ends up by saying, “Upon the authority of this decision, namely, Grunewald of the Supreme Court, we hold that it was error to permit the case to go to the jury.”

Furthermore on its — in its — among other places, in its third opinion on record 1940, the Court emphatically says, “Denies that it had taken that initial action on the basis of insufficiency of evidence.”

It pointed out that it took that action because it didn’t understand originally that the Government was relying on the continuing conspiracy theory.

It’s the Government’s position that — that — but for this single item, namely, the instruction to the jury on the theory that there was a — there had to be a conspiracy to conceal a conspiracy, had that instruction not have been injected into the record by this petitioner, that this case would come to this Court with a flawless record that would support the conviction and we see no distinction otherwise, between this case and Grunewald.

And there’s no reason, it’s apparent that this petitioner should be given any different treatment than was given to Grunewald, because there was a — it’s the same confusion as to — that may have been created in the minds of the jury as to which theory was the proper one.

Earl Warren:

Mr. Sellers, does this part of the instruction that Footnote 3 have to do with the alternate theory to — at bottom of the page, to determine whether certain alleged overt acts were committed in order to promote the object of the conspiracy and the applicability of the Statute of Limitations, with respect thereto, you must first determine the duration of the conspiracy.

Did it end at some particular time or was there also an agreement between Mr. Seijas and Mr. Forman to continue concealment after 1945 of their activities relating to the amusement company earnings during the years 1941 and 40 — through 1945?

Abbott M. Sellers:

I beg your pardon, sir?

Where are you reading from?

Earl Warren:

Of evading the income tax liability of Mr. Seijas — well, I’m reading at the bottom of page 4 —

Abbott M. Sellers:

I see.

Earl Warren:

— of your brief — in that Footnote 3, to which you referred me as — as to the character of the charge made by the — seems to be —

Abbott M. Sellers:

And your question is whether that is a correct instruction to support —

Earl Warren:

No, I’m — the question is, as I understood you to say that the Court instruct them just on the one theory that it had to — that it was — it was a continuing conspiracy until petitioner injected this auxiliary conspiracy theory in to it.

But this — this — these are the judges’ instructions to which you refer me and doesn’t this set out that theory itself?

Abbott M. Sellers:

No, sir.

Earl Warren:

And that —

Abbott M. Sellers:

When a fix of concealment there, he’s — he’s not requiring to concealment of the conspiracy.

Earl Warren:

But he says, did it end at some particular time referring to the — the original conspiracy or was there also an agreement between Mr. Seijas and Mr. Forman to continue concealment after 1945 of their activities relating to the amusement company earnings during the years 1941 through 1945 for the purpose of evading the income tax liability of Mr. Seijas and Mr. — Mrs. Seijas and others?

Abbott M. Sellers:

That is — that’s perfectly consistent with the theory of a continuing conspiracy, sir.

Earl Warren:

Is it, but I —

Abbott M. Sellers:

The Court has —

Earl Warren:

— I don’t think — I think they’re more of the — the (Voice Overlap) —

Abbott M. Sellers:

I think the — well, I think all it is — is necessary to bring to focus the essential differences between the — the good instruction and the bad, is to read entirely Footnote 3, beginning on page 4 and continuing on page 5 which is the good instruction.

Earl Warren:

Yes.

Well, that’s what I’m reading.

Abbott M. Sellers:

And the —

Earl Warren:

That’s the (Voice Overlap) —

Abbott M. Sellers:

— the bad one is in the body of the brief, beginning on page 5.

Earl Warren:

Well, I guess, you said that —

Abbott M. Sellers:

In other words, when you speak of concealment, you have to differentiate concealment of a conspiracy to conceal and a concealment of true income in order to effectuate an evasion of taxes.

So, the use of the word concealment appears in both the good and the bad instruction.

I think if Your Honors please, if you have no questions, that would conclude the Government’s argument.

Earl Warren:

Very well.

Abbott M. Sellers:

Thank you.

Earl Warren:

Mr. Bischoff, you may conclude.

Solomon J. Bischoff:

If it please the Court, I’m — I don’t quite understand why it is set out here or that some question is in — is suggested as to whether this alternative theory was submitted.

I want to read from the petitioner’s petition when it applied what (Inaudible) to be new trial.

It said, “It must be conceded that the case was not submitted to the jury in accordance with the theory outlined above.”

Now, the Government knew all along that that theory had been submitted and so told the Court of Appeals when it applied for a new trial.

Earl Warren:

Well, may I ask Mr. Sellers — what is your response to that Mr. Sellers, if I may?

May I —

Abbott M. Sellers:

(Voice Overlap) —

Earl Warren:

— may interrupt just a moment because that’s been bothering me too.

Abbott M. Sellers:

I — I beg your pardon, but I didn’t get your statement.

Earl Warren:

Will you — will you state it again Mr. —

Solomon J. Bischoff:

I stated — it says that in the Government’s petition to the Court of Appeals, which they sought a modification for — to remand for a new trial, told the Court and I’m reading from their petition, it must be conceded that the case was not submitted to the jury in accordance with the theory outlined above.

Earl Warren:

And that’s a continuing conspiracy.

Solomon J. Bischoff:

Yes, that — they —

Earl Warren:

Yes.

Solomon J. Bischoff:

— the kind of conspiracy that they —

Earl Warren:

If I may just — if we may just let, Mr. Sellers —

Abbott M. Sellers:

My answer to that question, sir, is that is an inadvertence.

The Government should have said — should have said solely in accordance with the theory outlined above.

Earl Warren:

All right.

You may proceed now, Mr. —

Solomon J. Bischoff:

Now, as Your Honor, it was also — it was also asserted here that at least, I may have been mistaken, but I understood counsel to say that the Court of Appeals considered and decided some issue other than the question whether their was sufficient evidence to submit to the jury.

Now, here this is the concluding statement of the Court in its first opinion.

And it reversed, after analyzing Krulewitch and Grunewald cases and the kind of evidence that must be presented to establish the subsidiary conspiracy and the elements of such a conspiracy which included that first that the evidence must be direct, that it must be an expressed original agreement.

That it must be an agreement to continue to act in concert to conceal and so on.

After discussing all that, the Court concludes by saying, “The policy that blocked the theories stated in Krulewitch, blocks this one also.”

In other words, if this was the conclusion that the evidence was insufficient, it was the only issue decided.

On the authority of this decision of the Court, we hold that it was error to submit the case to the jury.

Now, it’s been — the counsel asserted that the — that because of a new trial was directed in the Grunewald case, the same should be done here, I saw no difference.

Well, there’s a marked difference, a very important difference.

In Grunewald, they were not confronted with the constitutional protection against double jeopardy.

In the Grunewald, it wasn’t the Government that was seeking a new trial.

In Grunewald, the defendant appealed and the defendant sought the new trial.

In the criminal case, the defendant — the — the Government has no right to a new trial and we — in that respect, we call attention of the Court to Justice — to Justice Cardozo’s statement in the Palko case.

We cited at page 23 of our brief.

He said the, “It, referring to the Fifth Amendment, forbade jeopardy in the same case, if the new trial was at the instance of the Government and not upon the defendant’s motion.”

That’s the problem we have here.

I’m a little puzzled by your statement (Inaudible)

Solomon J. Bischoff:

We — we moved for a new trial in the District Court.

No.

Apparent appeal, you say court below urged design that happens only for a new trial on grounds only discovered evidence.

An additional ground set forth therein and in it returned to your motion for a new — motion of the District Court and specified one other thing that you want us to (Inaudible) that there wasn’t enough evidence to warrant a special case at the jury.

Solomon J. Bischoff:

Well, may it please the Court.

Solomon J. Bischoff:

We make distinct request for relief in the appeal.

Your Honor was referring to the relief sought in the Court of Appeals.

We distinctly and carefully segregated the kind of relief we sought.

We said in the conclusion, I’m reading from page 109 and when Your Honors will see the brief with counsel, but just you’ll see it there any conclusion that judgment should be reversed and directed to enter judgment of acquittal, if reversal is based on any of classifications that they’re numbered 1, 2, 3, 4, 5, and 7.

Now, 1 and 3 presented the questions that we’ve been discussing here, the absence of evidence.

The insufficiency of the evidence and we were now to say, if reversal is based on specifications of error numbered 6, 7, 9 and 10, a new trial should be ordered.

Now, those presented assignments of error relating to errors in — in admission of evidence and so on, which would warrant the reversal with a new trial.

We carefully segregated, so we would not be construed as having waived our demand for a judgment of acquittal, if we are sustained in our contention that the evidence was insufficient.

We took our precaution and in the cases that we cite in our brief governing this question of waiver, we call attention to the Green case in which the Court has said and rejected the contention that the taking of an appeal in and off itself is a waiver of the constitutional protection and throws the case open at large.

That called — this Court called attention to Justice Holmes’ statement in which he said that a waiver must be knowingly and intentionally made that can’t be inferred, that there’s a strong presumption against waiver of a constitutional right.

It called attention to Justice McKenna’s statement to say in effect, so, we can see no reason of why we should be deemed to have the waived a — the constitutional protection because we exercise the perfectly lawful right to appeal.

After (Inaudible) of the question of the discretionary power to remand on reversal with direction for judgment by acquittal or a new trial, we’d like to call attention to the Copacus case decided by this Court.

We cite it at page 15 of our reply brief on which the Court construed what was formally 206 Section 269 of the Judicial Code, which is roughly called the harmless error statute.

It’s a discretionary statute which gives the courts power to disregard harmless error and coming to an ultimate conclusion.

And it’s a — in that respect, it’s similar in its operation to Section 2106 of the Judicial Code which is relied on here by the Government as to the kind of relief that the appellate court can give.

The Court — this Court said that in construing that statute while it confers discretion, there must be no departure from a constitutional norm.

Well, you’re confronted with that constitutional norm in a criminal case.

If you’re going to say that you have discretion to direct a new trial even though the defendant in the criminal case was entitled as a matter of law, as a matter of right to a judgment of acquittal in — in the trial court, then you (Inaudible) of the constitutional protection against double jeopardy.

We think the same principles apply.

Earl Warren:

We’ll recess for now.