Grunewald v. United States – Oral Argument – April 04, 1957 (Part 1)

Media for Grunewald v. United States

Audio Transcription for Oral Argument – April 03, 1957 in Grunewald v. United States
Audio Transcription for Oral Argument – April 04, 1957 (Part 2) in Grunewald v. United States

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Earl Warren:

Number 183, Henry W. Grunewald, Petitioner, versus United States of America.

Number 184, Max Halperin, Petitioner, versus United States of America.Number 186, Daniel A. Bolich, Petitioner, versus United States of America.

Mr. Davis.

John F . Davis:

Mr. Chief Justice, if the Court please.

By reason of the limitations in this Court’s order granting certiorari, the sufficiency of the evidence to support the jury’s verdict is not now open for consideration.

On this review, we must assume under the questions which the Court agreed to consider that there was sufficient evidence before the jury to prove the participation of each one of these petitioners in a conspiracy to defraud the United States and the administration of the income tax law.

But although it is — it is not necessary to review the evidence on the substantive issue of guilt, the nature of the conspiracy is important in determining the application of this statute of limitations.

This is so since the various acts which took place within the period not barred by the statute must have been found by the jury under the proper instructions to be in furtherance of the conspiracy if they would prevent the running of the statute.

Felix Frankfurter:

May I — may I also ask you about the outset.

When, although, the question of sufficiency of evidence is not before us, particularly with reference to Halperin, if as to him, there should be found to be error, what relation have in due course that if you deal with that, what relation that would have to the — to the verdicts of those not immediate, affected by the claim on his behalf?

That is a question, isn’t it?

John F . Davis:

That is a question and that is a question of judgment as to whether that error is sufficient as to the other defendants so that it should be reversed as to them.

We —

Felix Frankfurter:

Am I — am I —

John F . Davis:

— the dissenting judge —

Felix Frankfurter:

I’m not suggesting answers.

It’s automatic.

I’m suggesting — I’m asking whether it isn’t for us to — whether this isn’t — augment the necessary —

John F . Davis:

And — and then if you did reach that point, then you’d have to consider the sufficiency of the evidence to find out whether it was material or —

Felix Frankfurter:

Not merely the sufficiency, but also the — the weight, the — the —

John F . Davis:

That’s right.

Felix Frankfurter:

— the impressiveness of a proof.

John F . Davis:

That is right.

And the seriousness of the impeachment.

Felix Frankfurter:

Yes.

John F . Davis:

The Government’s case rests upon its proof of a single continuing conspiracy to defraud.

If the petitioners are correct in their assertions that the Government proved a separate and distinct conspiracy to hide the taxes, the criminal tax acts of the particular taxpayers, then our argument would be more difficult because while secrecy in that case would be also a necessary problem of the wrong doing, we would then have a situation much closer to the one that we had in the Krulewitch case, any of the — of the Lutwak case where there’s a specific criminal act which was — had a beginning and an ending and the question of whether or not the secrecy in connection with that particular offense extended the statute.

But in this case, the case was submitted to the jury on the theory that there was a single continuing conspiracy, a tax ring in effect which had been setup in order to process cases of — of people who were found — who found themselves in tax difficulties.

William J. Brennan, Jr.:

Well, Mr. Davis —

John M. Harlan:

Generally?

Audio Transcription for Oral Argument – April 04, 1957 (Part 2) in Grunewald v. United States

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John F . Davis:

Generally.

John M. Harlan:

Well, that was as submitted to the jury, and the Court of Appeals had to decide on that.

John F . Davis:

Yes, I think that the instructions — the instructions to the jury with respect to whether or not the nature of the conspiracy are found at the end of our statement on page 36 —

Earl Warren:

Of what?

John F . Davis:

Of the Government’s brief, the gray-covered brief.

And the Court of Appeals statement, with respect to what is found on page 45, where the Court of Appeals says, “The proof of the existence of a single, over-all conspiracy is simply overwhelming.”

The complicity of Halperin as well as Davis, Hoffman and others, is established beyond, peradventure, of doubt.

The evidence is no less convincing against Grunewald and Bolich, and the jury were warranted in drawing the conclusion that all the circumstances taken together established beyond reasonable doubt that Grunewald and Bolich were not only members of the conspiracy, but that they were the fixers.

Now, Mr. Justice Harlan, I am not here adverting to the — to the theory that there was a — submitted to the jury the question of the — whether the conspiracy ended when they got the no-prosecution decision or whether it continued throughout the period of limitations.

I am merely adverting now to the fact that it was submitted to the jury.

The — the indictment and the instructions to the jury to treat this as a single overall conspiracy in which the co-conspirators where all of the parties involved in all of the transactions.

William J. Brennan, Jr.:

Well, Mr. Davis, does that mean that the acts of consuming, we discussed yesterday, were acts in furtherance of the conspiracy to defraud.

Is that it?

John F . Davis:

That’s right.

William J. Brennan, Jr.:

Now, defraud in what way as regard to those two taxpayers, Patullo Modes and Gotham Beef or generally?

John F . Davis:

Generally.

A general tax fixing scheme where they had setup an apparatus to — to process these cases and other cases.

William J. Brennan, Jr.:

But you mean — and therefore, not really directly related or necessarily related to the Patullo Modes or the Gotham Beef case?

John F . Davis:

Well, they were certainly a part of it and the people involved in it were named as co-conspirators.

William J. Brennan, Jr.:

Well, my difficulty is, which you referred to was still at page 36.

It seems to be a submission of the jury in relation specifically only to Patullo Modes and Gotham Beef, doesn’t it?

The very first or the second sentence of — that appears on what you quote at page 34.

John F . Davis:

Well, that was the question the jury had to determine.

I say it was submitted to the jury as to whether the — whether the conspiracy determined with the receipt of that assurance of no prosecution or whether they should consider that there was a continuing conspiracy with the element of concealment understood by all of the parties.

Felix Frankfurter:

That’s the —

Earl Warren:

You mean — oh pardon me.

John F . Davis:

May it — it may help to look, too, at — at Count 1 of the indictment which appears at page 4 of this long record in which describes the charge as to —

John M. Harlan:

Page — page —

John F . Davis:

It’s page 4 —

John M. Harlan:

Thank you.

Audio Transcription for Oral Argument – April 04, 1957 (Part 2) in Grunewald v. United States

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John F . Davis:

— of this Count, it’s paragraph 1 of Count 1 of the indictment.

And in — in this, it is described.

And the co-conspirator are — are described as being one overall group.

I think the — that factually, the closest situation that we have to — to this situation was that which was involved in the Manton case where it was alleged and — and the question was — was decided on — on appeal that there was a single conspiracy in that case by Judge Manton and those associated with him to impede justice not — there were particular cases named in that case as in this, but they were — they were in business of — of selling the — the services in this — in this particular.

William J. Brennan, Jr.:

Well is the — summarizing it then, you think the submission was in relation to Patullo and Gotham Beef merely as a loss to the cases that —

John F . Davis:

Well, they had — the jury had to determine whether there was a continuing conspiracy or whether it ended when the Gotham Beef and the Patullo Modes case.

I mean that was a question of fact for the jury whether it was a single conspiracy or whether it was a continuing conspiracy.

William J. Brennan, Jr.:

Well —

John F . Davis:

And if they had found that it ended with the decision in the Gotham Beef and Patullo — and Patullo Modes case, that would have been all.

William J. Brennan, Jr.:

But the — the Government offered no evidence that anything gone after the assurance of no prosecution in those cases had relation to any other cases?

John F . Davis:

Oh yes.

There was evidence with respect to other cases.

There’s one other case.

Is it Glover case?

John F . Davis:

The Glover Foundation case, yes.

John M. Harlan:

But didn’t the negotiation on that a matter that terminate in 1950?

John F . Davis:

Yes, those — the — there was — there was nothing in that case within the term of the statute.

But I am now addressing —

John M. Harlan:

Who doesn’t show — you have to show on this theory of the conspiracy that there was an overt, an act of some kind formed within the statute of limitations.

John F . Davis:

That is — that is true.

I am now describing the nature of the conspiracy and I am suggesting that the nature of the conspiracy is not a conspiracy to get Patullo Modes off the hook, to get Gotham Beef off the hook if they were part of it.

But this was a ring setup.

There was a law firm in New York, Schopick & Davis that employed a — a man name Hoffman to find business for them.

Find taxpayers who were in distress.

Then they had Mr. Halperin in their office who was their contact man with Washington who was — who was a friend of Grunewald and would come down and lay the matter before Grunewald.

And Grunewald on — in turn was a close associate of Mr. Bolich.

And Mr. Bolich was, during the first part of the conspiracy, the chief of the — of the criminal — of the fraud investigation in New York.

And during the latter part of the — of the period and until within the period of the statute, an assistant — an assistant commissioner on Bureau of Internal Revenue.

Felix Frankfurter:

Let me get my bearings, Mr. Davis.

This is a prosecution under the conspiracy to defraud which is an open and a closed provision —

Audio Transcription for Oral Argument – April 04, 1957 (Part 2) in Grunewald v. United States

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John F . Davis:

That is —

Felix Frankfurter:

— of the statute.

So, the statute allows you to — to be as it were wholesale or — or deal with the course of business and not directed toward specific statute.

John F . Davis:

I think that is right.

Felix Frankfurter:

Number (2), the indictment of Count 1 is open and not closed.

And therefore, our question is whether the charge orders extensive as the statute in the indictment or whether the statute restricted the jury’s consideration to a fraud in connection with specific taxpayers that appear in the course of evidence. believe even after one has answered that as you indicated at the outset.

Now, there still may be a question not as to the sufficiency of the evidence but whether the record sustained to that theory of a prosecution.

John F . Davis:

That is right.

Felix Frankfurter:

Is that the situation?

John F . Davis:

That is right and the question as to whether the overt acts which happened within the period of the statutes —

Felix Frankfurter:

Well, of course.

John F . Davis:

— are in furtherance of this conspiracy.

Felix Frankfurter:

As Justice Harlan indicated, you’ve got to have an overt act within the period.

John F . Davis:

That is right.

Felix Frankfurter:

And you’ve got to have them related to the conspiracy but not crimes themselves.

John F . Davis:

That’s right.

But I was dealing with the nature of the conspiracy because that is —

Felix Frankfurter:

But that’s where (Voice Overlap) —

John F . Davis:

— very important.

Felix Frankfurter:

— the indictment.

That, you get from the indictment.

John F . Davis:

That you get from the indictment.

Felix Frankfurter:

That’s the —

John F . Davis:

You get from the evidence and you get from the charge.

Felix Frankfurter:

Well, but that that the charge — what I’m suggesting is that the charge may cut down the breadth of the indictment.

John F . Davis:

It could have, yes.

Felix Frankfurter:

And that’s the question of reading the charge in the light of the theory —

John F . Davis:

That’s right.

Felix Frankfurter:

— of — of submission.

John F . Davis:

That is right.

Audio Transcription for Oral Argument – April 04, 1957 (Part 2) in Grunewald v. United States

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Earl Warren:

The Government’s view, when did the conspiracy end?

John F . Davis:

The conspiracy the — well, the conspiracy was in term, an open-end conspiracy, the last — the last overt act which — of which there was evidence.

And therefore, we can accept that as the last — the end of the conspiracy as far as this case is concerned was in May of 1952.

Earl Warren:

And what was that act?

John F . Davis:

That act was — well, I think its appropriate at this time for me to name the six acts, all of the six acts which occurred within the period of the statute of limitations of which this is one, if — if Your Honor pleases.

Earl Warren:

All right.

John F . Davis:

Because I think that —

Earl Warren:

Anyway you want to.

John F . Davis:

— we must — well, these — I don’t think there’s any particular importance in any one of them.

There were six acts which occurred within three years of the date — of the — of the finding of the indictment.

Felix Frankfurter:

There must be particular importance about one at least when —

John F . Davis:

Well, I think they’re all important.

Felix Frankfurter:

All right.

John F . Davis:

I mean I think they are all in furtherance.

Felix Frankfurter:

Do you mean none — none is more important than the other but there must be unimportance to at least one.

John F . Davis:

Well, the — if this Court finds that anyone of these is an act in furtherance of the conspiracy —

Felix Frankfurter:

That’s enough.

John F . Davis:

— that is sufficient to bring the conspiracy within the statute of limitations.

I think that anyone of them is sufficient.

Hugo L. Black:

Do they relate to so-called “tax fixing” or relate to so-called “concealment”?

John F . Davis:

They relate to concealment, all of them.

They — that is right.

They all relate to concealment, but may I say that there may be a difference between — the very nature of this conspiracy makes this different from the Krulewitch or the Lutwak case.

Hugo L. Black:

It might make it two, might it not?

John F . Davis:

Pardon?

Hugo L. Black:

It might make it two conspiracies, might it not?

John F . Davis:

It might make two conspiracies unless the jury on the proper instructions found that it was a — a single conspiracy.

Hugo L. Black:

If your — if your argument is correct up to date, it sounds to me like it will be bound to be two.

John F . Davis:

But what —

Hugo L. Black:

What you think — if you’re saying if you had enough charge in there to support a conspiracy to conceal and to make the — to defraud the Government by concealing and then it says — Justice Frankfurter referred to this governmental operation.

Audio Transcription for Oral Argument – April 04, 1957 (Part 2) in Grunewald v. United States

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John F . Davis:

Well, if Your Honor pleases.

And I refer again to the Manton case.

A conspiracy may have a number of unlawful objects.

It may have the unlawful object of defrauding the United States as it did in the Manton case.

It may have the unlawful object also of impeding justice in violation of a particular statute as was present in the Manton case.

And it may, in addition, have the additional unlawful object of concealing misdeeds of government officials which we say was involved in this case.

There are various objects of a single conspiracy, if the conspiracy is knit together as a single plan of unlawful conduct.

That is what we mean by a single — by a conspiracy, a single conspiracy.

Hugo L. Black:

The problem now is what I really wanted you to discuss is this.

You raise it.

You raised in my mind by your suggestion.

You have clearly a charge of a so-called “tax fixing conspiracy”.

John F . Davis:

That is right.

Hugo L. Black:

That is a conspiracy to fix taxes.

Then you have also, as I understand, you predict clearly a charge of a conspiracy to conceal what — what is done.

And to defeat the Government by concealing, either — either or both of those, I suppose, would constitute a single — could constitute a single conspiracy.

John F . Davis:

It could.

Hugo L. Black:

What I’m wondering is if you can If the Government can by attaching the separate charge of conspiracy to a separate charge.

I mean, conspiracy to conceal separate conspiracy to fix taxes.

If they can by that means interminably continue the — so that the thing — so that there can never be a statute of limitation to their function.

John F . Davis:

I — I don’t think the Government can do it.

But I’d submit to the charging.

I think that it has to charge and prove that there was a conspiracy in which all of these parties were participating, a single conspiracy which had these objectives and on which they acted.

I don’t — I — I think that unless you can prove the coexistence, the — the fact that — and I think that’s what the charge in this Court asked the jury to define.

Whether or not this was one of the items of agreement among these parties at the time they formed this scheme.

Whether — whether this was one of the objectives they had.

I don’t think that any — any act of — of criminality involved certain secrecy.

There’s no question about it.

Hugo L. Black:

(Voice Overlap) — based from what you said that if you had charged — you’ve got enough charge in here, so that you can charge it in two separate counts, you would have had one, a conspiracy to fix taxes.

And secondly, the conspiracy to conceal from the Government both either of which would be enough to condemn.

Audio Transcription for Oral Argument – April 04, 1957 (Part 2) in Grunewald v. United States

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John F . Davis:

But whether they could be separated if it were a single conspiracy, I don’t know.

Hugo L. Black:

That’s right.

But what I — I’m asking you, what — what bothers me and that is this.

If that’d be true and I understood from you that your evidence insofar as overt act show, shows no overt act at all with reference to the fixing of taxes which is within the statute of limitations.

John F . Davis:

That is correct.

Hugo L. Black:

And you would prolong the life of this charge merely by — by the overt act with reference to the other.

Which could have been charged in a separate count and kept alive and the man could have been tried for conspiracy to conceal, I suppose.

John F . Davis:

Well — well, there’s query whether it could be charged —

Hugo L. Black:

(Voice Overlap)

John F . Davis:

— as a separate count.

Hugo L. Black:

(Voice Overlap) —

John F . Davis:

I mean that there is such a thing as multiplicity of — of — if you can make too many crimes out of one crime, why, one’s in difficulty.

There are two.

It’s a —

Hugo L. Black:

A question of it.

John F . Davis:

— question judgment in these cases.

The Manton case deals with this specific problem and deals with it rather well in saying that if you have a single conspiracy in which you have a number of illegal objects, that doesn’t make a number of conspiracies.

It’s still a single conspiracy.

And — and that’s a –a factual question which must be presented to the jury under proper instruction.

So, the jury can determine whether or not the evidence supports this theory.d

The Government can’t make the case because all the Government can do is to — is to present the — the evidence and let the jury pass upon it under proper instructions.

I may say though, that these acts of — this — this case — these acts of concealment, many of the acts of concealment in this case are not afterthoughts.

They’re not something that comes on after the illegal action is complete.

The acts of concealment in this case started with the conspiracy itself.

Felix Frankfurter:

Would you — I think if you refer to the argument, if you’d be good enough to enter the Chief Justice’s question a little while ago —

John F . Davis:

Yes.

Felix Frankfurter:

— as to the precise overt acts on which you rely.

John F . Davis:

Yes.

And these overt acts that I am now referring to are not the acts of concealment which occurred early in the conspiracy.

Although, there were many acts of concealment which occurred right from the beginning.

Audio Transcription for Oral Argument – April 04, 1957 (Part 2) in Grunewald v. United States

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Felix Frankfurter:

But these are essential one.

What are the statutes?

John F . Davis:

But these — these are the — the overt acts of concealment which occurred within the period, which is not barred by the statute of limitations.

And there were six separate acts in which there was evidence going to the jury.

I may say that some help on this — the — the printed activity in a footnote to Judge Frank’s second opinion in this case.

And that may be of some — some help.

On page 382 (a) of Volume 5 of the appendix so-called.

It’s the second — it’s actually the second volume of the record in this case and Judge —

On page 382?

John F . Davis:

382 (a).

I think they’re all A’s.

Felix Frankfurter:

Volume 5, appendix, is that it?

John F . Davis:

That is right.

It’s the white-covered volume and was actually — this — this volume contains the opinions of the Court of Appeals.

And this opinion here as Judge Frank’s dissenting opinion on rehearing in which he deals with this question of the statute of limitations.

And he had set forth in footnote 2 on page 382, these — these overt acts which occurred after October 25, 1951.

Now, these are what happened.

When Mr. Smith, who was an accountant for Patullo Modes was subpoenaed before the King Committee in December, remember in December 1951, Mr. Schopick suggested to him.

Mr. Schopick is one of the conspirators.

Schopick & Davis, suggested to him that he lie to the King Committee about a $500 check which had actually been issued to pay a man named (Inaudible) for making the initial contact between the tax-fixing ring at Patullo Modes.

And Mr. Smith was requested, according to the evidence, to tell the grand jury that this payment was made as an indirect loan from a man name Hoffman who was connected to the ring to (Inaudible) who was his brother-in-law.

That is an overt act of concealment taking place in December 1951.

Second, in the December 1951, Mr. Bolich who was, as I mentioned earlier, the official connected with Internal Revenue Bureau.

In 1951, he had a telephone conversation with the manager of the Washington Hotel.

And Mr. Bolich had shared roomy — rooms with Mr. Grunewald in the Washington Hotel and had asked the management of the Washington Hotel to let him have the records that involved payments of various telephone calls, reference text and so forth.

In 1951, he had a telephone call with the management of the Washington Hotel in which he stated that he — he denied having those records.

That is the second act within the period of limitations.

In May of 1952, when Mr. Grunewald’s secretary was subpoenaed to appear before the grand jury, Mr. Grunewald called her and suggested that she need not remember events which had occurred in his office.

And he sent her money to pay her expenses to New York to appear before the grand jury, which he incidentally (Inaudible)

That’s the third.

Audio Transcription for Oral Argument – April 04, 1957 (Part 2) in Grunewald v. United States

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John F . Davis:

The fourth act occurred in March 1952.

At this time, the Patullo Modes people had decided to cooperate with the — with the grand jury.

They had retained new counsel apart from the counsel involved in this conspiracy.

And the New York members of the ring learned that they had been talking with other counsel and that they intended to tell the whole story to the grand jury decided to make a last minute effort to dissuade them.

And four members of the conspiracy, meeting together, discussed what could be done about it and it was decided that one of them, I think it was Mr. Davis, should talk with these people and try to dissuade them.

And he did, in fact, talk with Max and with Mrs. Segel, both connected with the taxpayer and urge them not to make the disclosures to the grand jury.

Felix Frankfurter:

Are these four who are now petitioners before the Court?

John F . Davis:

Of these four, Grunewald and Bolich as far as individuals involved.

But may I say — may I say, Your Honor, that I would say that this overt acts are equally binding by Mr. —

Felix Frankfurter:

I understand — I understand.

I’m quite and I can quite follow you.

I just want to know whether —

John F . Davis:

Yes.

Felix Frankfurter:

— did you have four there?

John F . Davis:

And in the fifth and sixth while Mr. —

Felix Frankfurter:

So then how come he’s not in this —

John F . Davis:

Not in those.

He appears —

Felix Frankfurter:

In other words, your — one couldn’t find a — renew of its fees or adoption.

You call it what you will, for all the petitioners to this single overt act.

John F . Davis:

Well, that — that is right.

They were not all involved in any one of these acts.

Felix Frankfurter:

It’s not enough if that is a dissociated overt act.

John F . Davis:

That is right.

Felix Frankfurter:

All right.

John F . Davis:

The fifth and sixth overt acts, which I have referred to be together, were meetings by Mr. Halperin and Mr. Davis with the taxpayers involved, the other taxpayers.

It’s called the Gotham Beef Company.

And they — when — when word got around that the — the Patullo Modes people were — were telling that story to the grand jury, it became important, that if possible, to keep the Gotham Beef — Beef people from telling their story.

And there were meetings in February of 1952 and in March of 1952 participated in by both Davis and Halperin in which the attempt was made to keep these people from talking to the grand jury.

And those are the six overt acts.

Audio Transcription for Oral Argument – April 04, 1957 (Part 2) in Grunewald v. United States

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John F . Davis:

And all of them deal with concealment although whether its concealment to protect the conspirators or concealment to prevent reopening of the criminal cases, I cannot tell.

It would be concealment for all purposes.

John M. Harlan:

Did the judge differentiate it between concealment as to those two purposes to this charge?

John F . Davis:

No — no, he did not.

Earl Warren:

Well, Mr. Davis, I’m — I’m not quite clear about your answer to Justice Frankfurter and about the — this next to the last overt act that you — you spoke of where you said it only — only applied to a certain number of the defendants, not — not the rest of them.

Now, I hope —

John F . Davis:

I didn’t mean to say that, Mr. Chief Justice.

Earl Warren:

Well, I — I probably misunderstood you.

Would you mind telling me just what you did say about that?

John F . Davis:

What — what I — what I will say now, is that an overt act of concealment if made by anyone of the conspirators in order to carry out the purpose, the objectives of the conspiracy, will keep the conspiracy alive as to the entire group even though it’s an individual act and even though there is no knowledge of that act — of that specific act, if I may say, by the other conspirators.

Earl Warren:

Then they all are bound by this act to be —

John F . Davis:

They all are bound by this act.

Earl Warren:

Yes.

Felix Frankfurter:

Well, then, I actually — and that actually mean in this overt act (Inaudible)

John F . Davis:

So, the real question before this Court is whether, pursuant to proper instructions, the jury could have found that these acts were in furtherance of the objectives of a conspiracy, single conspiracy entered into by all of the parties.

The instructions to the — of the judges set forth at page 36 and 37 of — of our brief.

And they are very specific that — that concealment must have been, must have been considered an objective of the conspiracy and must have been known by the conspirators to be such.

John M. Harlan:

Concealment of what?

What purpose?

John F . Davis:

For any illegal purpose.

He did not go into the question as to whether it was to protect the taxpayers or to protect the conspirators.

He said, if one the purposes of the conspiracy was to conceal, like continuing concealment, if that was one of the purposes of the — of the conspiracy, it would — it would be enough.

John M. Harlan:

Supposing the judge in charge that you may find from anyone of these overt acts, the purpose was to conceal, to protect the conspirators and if you find that that was an object to the conspiracy you may convict.

Would that stand up under Krulewitch?

John F . Davis:

I think it wouldn’t because I think —

John M. Harlan:

It would not?

John F . Davis:

I think that then you would be using the overt acts after —

John M. Harlan:

I agree.

John F . Davis:

— what would otherwise be the completion of the crime just to keep it alive —

John M. Harlan:

Therefore —

Audio Transcription for Oral Argument – April 04, 1957 (Part 2) in Grunewald v. United States

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John F . Davis:

— and I think that’s what Krulewitch was trying to prevent.

John M. Harlan:

Therefore, to escape Krulewitch, the concealment here must be concealment with the purpose of protecting the taxpayers.

John F . Davis:

Not, necessarily, Your Honor.

Not if one of the elements of the conspiracy itself, the original conspiracy, before the (Inaudible) of carrying on their — their taxes.

In — in order to maintain the ring, in order to keep it going, one of the objects, let’s assume that they reduced it to writing in which, of course, they don’t.

But let’s assume that we have a conspiracy where they all sign in — in — under the document or something.

And they say, the objects of this conspiracy are to fix taxes.

And we cannot keep this going unless we keep quiet that our man in Washington is Bolich.

If any taxpayers learned that our man in Washington is Bolich and Grunewald, that’s also — we must agree that whatever happens, we will keep that quiet.

And everyone signed it.

All of the parties, Grunewald, Bolich relied on it.

That would be one of the objects in the conspiracy.

And there’d be no question, I think, that so long as they were carrying out that object of maintaining that secrecy that they were carrying out one of the unlawful objects which they have, confederate together, to perform.

Now, Justice — Judge Frank in his — in his dissent, draws a very strong distinction and says, you can imply from overt acts, a conspiracy to protect the taxpayers but you cannot imply conspiracy to maintain the — the ring in effect.

And that I — I respectfully differ.

I think that’s the issue before this Court, whether — whether he is right in that.

If he is right in that, why, then we are wrong in our — in our petition here.

William O. Douglas:

I read the Manton case a little differently than apparently you do.

It seemed to me that the act of concealment thereby (Inaudible) was in act that what the Court used to make on a case of his inclusion in the Manton’s.

John F . Davis:

Yes, you’re quite right, Mr. Justice Douglas.

I didn’t mean to refer to the Manton case as being a concealment case.

I don’t think there’s anything in it that helps us on concealment.

I refer to the Manton case because it seems to me the closest case that I find in the books factually to illustrate what I mean by, in this case a tax ring, in that case, it was a ring to — to sell justice in — in the Second Circuit.

Felix Frankfurter:

Mr. Davis, let’s see if you do help me in the thing that troubles me.

Suppose you have a conspiracy that is not completed in the sense that the object hasn’t been accomplished.

Conspiracy to rob a post office.

And take today as when the conspiracy, when the statute of limitations is very short.

I don’t know whether it’s been extend generally.What is it now?

John F . Davis:

It’s now five years.

Felix Frankfurter:

Five years.

Audio Transcription for Oral Argument – April 04, 1957 (Part 2) in Grunewald v. United States

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Felix Frankfurter:

What are the days that one knew about it?

John F . Davis:

It was three years when this was —

Felix Frankfurter:

Well then — then there was someone.

There were two.

There were — suppose the conspiracy has not been accomplished within the short statute of limitations, an extended conspiracy to rob a post office or conspiracy to counterfeit a $10 bills, you know.

And suppose during the period of incompletion while the — the thing is about two years having to run, there’s been a — an effort during those two years to cover up possible informers.

And suppose after the two years, they, not knowing about it or not thinking about it or not being reflected at all about it, the statute of limitations still actually their — in their mind without any — any kind of overt conduct with reference to robbing the post office until after they can hear the witness.

If — if anything don’t — we’d spend the night with you, but don’t think — you maybe, call upon somebody, may ask you, in the future whether we spent the night with you (Inaudible).

But here is $500, $200.

Here’s a great big tip.

Don’t you tell.

What would you do with that case?

Now, let me put my —

John F . Davis:

Well —

Felix Frankfurter:

— general problem.

John F . Davis:

Well —

Felix Frankfurter:

In other words, if you — as you said very early, concealment is almost a necessary part of every crime wherein it’s covering your tracks.

What’s the matter with that case compared to this case?

John F . Davis:

Well, although —

Felix Frankfurter:

The difference I want to put.

Although in that case, you have a conspiracy for a specific purpose.

John F . Davis:

Well, that’s what I was about to say.

I can think that part of my reasoning in this goes to do the — the use of the conspiracy statute to reach a Mann Act violation that was involved in the Krulewitch case.

Two people were involved in — in the Mann Act there that — and it’s a very different situation where you have an open-end apparatus, a ring such as involved here or in the — or in the Manton case or in the Haas against Henkel case where there’s a continuing effort and — and the — the objective —

Felix Frankfurter:

I can understand that if as in the old case of the two gentlemen engaged in partnership on a highway.

That’s the old pleading as you put it.

If you had three conspirators say, let’s go in this business of fixing some official in the Treasury Department who are avoiding prosecution for five years.

Suppose they themselves give.

But if and when the law puts a terminus on the — on the prosecution, haven’t you got a different situation?

John F . Davis:

Well, not necessarily, if they say let us go in as long we can — just as long as Mr. Bolich’s in a position to do us any good.

Audio Transcription for Oral Argument – April 04, 1957 (Part 2) in Grunewald v. United States

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John F . Davis:

I don’t know.

They — that these things — these —

Felix Frankfurter:

Well —

John F . Davis:

— these conspiracies —

Felix Frankfurter:

But that wasn’t — I can — I can yield to that hypothesis.

But will that be the kind of a conspiracy to put to the jury in the charge?

John F . Davis:

I — I think that in — in essence with the one which put to the jury.

Whether there was a continuing conspiracy to sell.

Felix Frankfurter:

But then you don’t need these overt acts.

Except for —

John F . Davis:

Pardon?

Felix Frankfurter:

Then you do not need the overt acts to help out the time element.

John F . Davis:

Well, you have to —

Felix Frankfurter:

If you need the overt acts it’s because you need an overt act —

John F . Davis:

Well, you need —

Felix Frankfurter:

— but you don’t need it for an extension of the statute of limitations.

John F . Davis:

You need some proof — you need some proof of the continuation of this — of the conspiracy —

Felix Frankfurter:

But you said that there are —

John F . Davis:

— to put in the statute.

Felix Frankfurter:

— agreement.

The jury could find in the nature — in the arrangement of the party, their relationship that the conspiracy was let’s milk this.

Let’s have this golden goose, as long as Bolich is the goose.

John F . Davis:

I think, though if —

Felix Frankfurter:

That’s — that’s a different (Voice Overlap) —

John F . Davis:

I think, Your Honor — I think, Your Honor, that the Courts have said that there must be evident of — evidence of overt acts within the term of the statute in order that you have the content — the — the conspiracy.

I wouldn’t think it would be necessary if you had a –a firm agreement for five years.

I — I don’t see any — then that would, to my mind, unless there were some evidence of abandonment.

Then you wouldn’t have to have the overt acts.

But if you had open-end agreement, you have to have some evidence to the jury.

Felix Frankfurter:

But you can’t prove the open-end merely by the existence of an overt act.

Audio Transcription for Oral Argument – April 04, 1957 (Part 2) in Grunewald v. United States

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John F . Davis:

No, that is right.

You’ve got to — you’ve got to establish that these parties got together and made this time as an agreement in the beginning.

If it’s just a case —

Felix Frankfurter:

(Voice Overlap) —

John F . Davis:

— of that saving their skins in the end, by then you cannot extend the statute that way.

That’s attacking — that’s what was wrong with Krulewitch.

Felix Frankfurter:

But — but you give me the impression that you have to deal with the suggestion that your answer made that the statute of limitation in this case is safe by the overt acts.

Now, if you’re right that the conspiracy was to do this shabby business so long as — what’s his name — is — is — then — then you get your statute of limitations on — then you have no problem of statute of limitations.

You may have a problem with overt act.

That’s a different story.

But you don’t prove you’re within the statute through the overt act.

John F . Davis:

No, but you can prove the continuation of the conspirators — the conspiracy as long as the conspirators are carrying on acts in accordance with their original agreement.

Felix Frankfurter:

I agree with that.

Earl Warren:

Mr. Davis, suppose in your case here, the only act that you have — overt act that you have within the statute of limitations is an act of the subornation of perjury at the time of the grand jury investigation to conceal the guilt of this people.

Would that keep it alive?

John F . Davis:

It — it could.

I mean —

Earl Warren:

Well — well, just take, would it in this case?

John F . Davis:

It would be a — if the jury determined on proper instructions that this act was pursuant to the original conspiracy then this — that would keep it alive.

I mean there would be evidence on which the jury could recently make that finding.

Earl Warren:

Whether it was five or ten or twenty five years thereafter.

John F . Davis:

Five or ten or twenty five years thereafter.

Earl Warren:

After your last overt act of — of the conspiracy.

John F . Davis:

You mean the last preceding overt act of the conspiracy.

Earl Warren:

Yes, yes.

John F . Davis:

That would be very — I’m not sure that the jury’s verdict could be upheld in a case like that.

I mean it would be a question that whether there were sufficient evidence on which a jury could reasonably find a continuation through that very act.

And I think it would be very difficult to uphold a verdict where there has been a period of that — of that duration.

Then it looks as though this was a supplemental act or something that someone did not pursuant to the original conspiracy.

In this case, there was no such lapse.

Audio Transcription for Oral Argument – April 04, 1957 (Part 2) in Grunewald v. United States

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Earl Warren:

Well, there was — there was four years.

Unless you have — unless you take into consideration this acts of concealment.

John F . Davis:

Well, they were —

Earl Warren:

Now, suppose it was —

Hugo L. Black:

No.

Earl Warren:

— suppose it was five years more than that.

And they — they still had — had the thought in mind of concealing their crime if they — if they testified.

I mean if subornation of perjury was committed.

And that was the only overt act you have within the statute of limitations.

You — you think that it would have kept alive the whole conspiracy.

John F . Davis:

Well, I think it’d be a question for the jury.

And then a question as to whether that was a reasonable thing.

In this — the facts of this case, however, there were continuous acts which the — which the record shows from 1949, when the original no- prosecution decision was made, right up through by — recited these six acts which occurred after the — it — within the period of — of the statute.

But for example, Mr. Grunewald’s secretary testified that during this interim period which we’re talking about that Mr. Halperin came down to see Mr. Grunewald 10 times in this period between after the conclusion of the — the no prosecution and these overt acts that we’re talking about.

So that this isn’t a — a case of going back and resurrecting a — a dead conspiracy in this case.

The evidence in the case shows a continuation of this association together.

Earl Warren:

Well, I thought you said in answer to one of the justices that the — that all of the six overt acts that occurred within the statute of limitations had to do with concealment.

John F . Davis:

That is right, Your Honor.

They did.

All of these that occurred after —

Earl Warren:

Yes.

John F . Davis:

— October 25, 1951.

But I do not mean by to that imply that nothing happened between and between the fixing of the particular cases and these acts.

They didn’t act within the — they didn’t come within the period of the statute.

And so they’re not overt acts which will keep the statute aligned.

But they prevent — they give substance to the jury’s finding that these particular acts were in furtherance of a continuing conspiracy because it was continuing throughout the period.

Did they occur after the — the alleged member of the conspiracy with where the Government had left it?

No, I think not.

He left in December of — December of 1951.

I don’t think they were —

Audio Transcription for Oral Argument – April 04, 1957 (Part 2) in Grunewald v. United States

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Hugo L. Black:

(Voice Overlap) — overt acts that you’re relying on here occurred.

John F . Davis:

Oh some of this occurred before he left and some after, the once that — they — they occurred.

Hugo L. Black:

I mean the ones that would — that you say that from being part —

John F . Davis:

Yes.

Hugo L. Black:

— of the statute of limitations.

John F . Davis:

That is — that’s right.

Most of them occurred after he had left the Government.

Hugo L. Black:

And was there any evidence that the conspiracy continued after he left the Government?

A — it’s a conspiracy to do the —

John F . Davis:

Oh, no, I think —

Hugo L. Black:

(Voice Overlap) — things by which you’d —

John F . Davis:

No, I think there could be — we could make no claim that the tax ring was in business after Mr. Bolich left the Government.

John M. Harlan:

Is that right?

John F . Davis:

I think that put an end to — to any attempt to fix new tax cases.

John M. Harlan:

Well, in that connection, could I ask you, when did the King Committee start operating?

John F . Davis:

That was in 1951, early in 1951.

John M. Harlan:

1950 or 1950 or 1951.

John F . Davis:

Must it — it may have been 1950.

John M. Harlan:

1950.

John F . Davis:

It may.

I think that’s right.

John M. Harlan:

Now —

John F . Davis:

I — no, 1951.

I think, Your Honor —

John M. Harlan:

1951.

John F . Davis:

— but I’m not sure.

John M. Harlan:

Maybe.

(Voice Overlap)

John F . Davis:

The King and the Keene Committee had changed from one to the other but that they were before the grand jury.

They were in 1950 or 1951, I think.

Audio Transcription for Oral Argument – April 04, 1957 (Part 2) in Grunewald v. United States

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John M. Harlan:

Well, my point is simply one.

Whatever the date was after the King Committee started operating, do you think its reasonable inference that the acts of concealment there could have been — after that time, could have been directed to getting new business?

John F . Davis:

No, I don’t think —

John M. Harlan:

(Voice Overlap) — the committee instead of covering up all the tracks.

John F . Davis:

I don’t know how seriously they took it.

I don’t think they could get very much new business while the King Committee and the Keene Committee were on that trail.

John M. Harlan:

Well, my impression was that the King Committee was in 1950 which it seemed to me to —

John F . Davis:

February 1951, if you’re going to page 30 of our brief.

John M. Harlan:

Well, thank you.

John F . Davis:

I — I think that that certainly put a — put a handicap in the new business.

William J. Brennan, Jr.:

Well, Mr. Davis, did I understand you to answer the Chief Justice that Bolich left the Government in December 1951?

John F . Davis:

1951, yes.

William J. Brennan, Jr.:

1951?

John F . Davis:

That’s right.

And I can —

William J. Brennan, Jr.:

(Voice Overlap) —

John F . Davis:

— give you the precise date in the exhibits to this page.

Oh, I beg your pardon.

It’s November — November 16th, 1951.

William J. Brennan, Jr.:

1951?

(Voice Overlap)

John F . Davis:

1951.

William J. Brennan, Jr.:

1951?

John F . Davis:

That’s right.

It’s —

William J. Brennan, Jr.:

Well, I understand you also to say that on his leaving the Government, the conspiracy necessarily ended because — without him?

John F . Davis:

No, no.

That isn’t what I meant.

William J. Brennan, Jr.:

Oh.

John F . Davis:

I meant that on his leaving the Government, they could no longer get new — process to new business.

Audio Transcription for Oral Argument – April 04, 1957 (Part 2) in Grunewald v. United States

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John F . Davis:

They could no longer hold themselves out as a tax fixing ring.

William J. Brennan, Jr.:

Well, how — how could anything they did and I gather all of these acts as I looked at, that you referred this to — to 382 (a), all six of them occurred after Bolich left the Government?

John F . Davis:

Not all of them.

One of them occurred before but the others after.

William J. Brennan, Jr.:

Which one would that be?

The —

John F . Davis:

The December 1951.

No.

There are two in December.

Oh, he’d left in November.

I beg your pardon.

They all occurred after that.

William J. Brennan, Jr.:

Everyone did.

John F . Davis:

Everyone occurred after he had left.

William J. Brennan, Jr.:

Now, I have difficulty following your —

John F . Davis:

Well —

William J. Brennan, Jr.:

— theory that they had any relation to the overall conspiracy which hinged this.

I understood you to say earlier upon Bolich because without him, nothing could be accomplished in the way of these (Voice Overlap) —

John F . Davis:

Of new business.

But our — our theory is that the objects of the conspiracy on testifying concealment and this is what the Court — the — the trial court instructed the jury.

You have to find the concealment.

It was also an object of the initial conspiracy.

If this was a — if this conspiracy depend solely upon tax fixing, if it ends when they can no longer get new clients, it ends when Bolich leaves the Government.

William J. Brennan, Jr.:

Well, I thought you defined the — the conspiracy for us as the Government sees it as framed in the indictment.

John F . Davis:

That is right.

William J. Brennan, Jr.:

As a conspiracy to do tax fixing as long as Bolich was in office and thus in a position to make it possible to fix.

John F . Davis:

And, if I may say, if I may add to that, and also to conceal the acts of tax fixing.

And maybe that’s partially to protect the taxpayers and partly to protect the conspirators.

But the — the —

William J. Brennan, Jr.:

Well, now let’s see.

Audio Transcription for Oral Argument – April 04, 1957 (Part 2) in Grunewald v. United States

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William J. Brennan, Jr.:

Let — let us —

John F . Davis:

The indictment itself includes the concealment —

William J. Brennan, Jr.:

Let’s — let’s stop there a minute.

If it’s to protect the taxpayers, was any element of the conspiracy as a conspiracy to protect the taxpayers charge?

John F . Davis:

Yes.

William J. Brennan, Jr.:

Did he do it?

John F . Davis:

Well, I — I beg your pardon.

It isn’t mentioned as such.

It just mentioned conspiracy to — to protect the conspirators and the conspirators — named conspirators enclosed the taxpayers.

William J. Brennan, Jr.:

Now, you’ve completely confused me now.

I was just following it for a while but if all these hinges on Bolich, I don’t see how you can contend that these acts subsequent to his departure from the Government could reasonably be viewed as anything except acts to protect themselves.

John F . Davis:

And — well, they can still protect the tax — the taxpayers, too.

I mean, they still can, assuming for a minute it is important that Judge Frank thought it was to distinguish between the two.

The conspirators are still under an obligation insofar as conspirators are to try and protect these taxpayers from the fraud being disclosed and the criminal cases reopened against the taxpayers.

And as the — Bolich being in the — in the bureau isn’t essential to carrying out that object of the conspiracy.

Hugo L. Black:

Let me see if I understand you.

As you were saying that your indictment charge and the court charge as used, these and these people had conspired to do at least two things.

One, to have a ring to fix taxes if they keep doing that.

And the other to protect themselves and the others who are engaged benefitted by it from prosecution by concealment.

John F . Davis:

That is right.

Hugo L. Black:

And that even though the part of the objective of a tax fixing had come to an end because it couldn’t function very well —

John F . Davis:

That’s right.

Hugo L. Black:

— after some of the people left the Government.

You — it still remained in existence for the purpose of the concealment feature.

John F . Davis:

That is right.

Hugo L. Black:

And that that saved it from the statute of limitations.

John F . Davis:

That is our specific position.

And then this, I think, a position which is recognized as — as possible in both Krulewitch and in Lutwak, too.

William O. Douglas:

Well, I take to mean that in order to fix a tax you not only have to give a — if you notice there would be no — no prosecution but mostly no prosecution.

John F . Davis:

During the — the life of — of the statute of limitations against those people.

Audio Transcription for Oral Argument – April 04, 1957 (Part 2) in Grunewald v. United States

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That’s right.

Earl Warren:

Mr. Davis —

John F . Davis:

And may I say this.

Then it may clarify it.

There is a six-year statute.

There was a six-year statute with respect to the tax liability end of — end of it.

It’s a separate statute, which extends within this period.

So that there’s no question about that.

Earl Warren:

Mr. Davis, if we were to eliminate from the record the six overt acts having to do with concealment, the acts that bring it within the statute of limitations, would there be sufficient in the record to establish that — that part of the conspiracy, which has to do with concealment?

John F . Davis:

There would be — yes.

There would certainly be enough to —

Earl Warren:

What —

John F . Davis:

— establish concealment.

But not — not acts within the period.

Earl Warren:

No, no.

Let’s now —

John F . Davis:

Yes.

Earl Warren:

— we eliminate from the case —

John F . Davis:

Yes.

Earl Warren:

— entirely.

John F . Davis:

These six acts?

Earl Warren:

These — these six acts.

John F . Davis:

That’s right.

Earl Warren:

Is there enough remaining in the record to establish that one of the purposes of this conspiracy was concealment?

John F . Davis:

I think there is ample, Your Honor.

Earl Warren:

What — what just —

John F . Davis:

Well, I’ll give you —

Earl Warren:

(Voice Overlap) —

John F . Davis:

I’ll give you — I wouldn’t — I will give you give a — a few examples.

I — I want to get, if I can, the Fifth Amendment problem here for a minute —

Audio Transcription for Oral Argument – April 04, 1957 (Part 2) in Grunewald v. United States

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Earl Warren:

Yes, (Voice Overlap) —

John F . Davis:

— but I do want to — this is very important.

One thing was in agreement, for example, that they would not tell the names of the Washington people.

And there’s evidence in the record from repeated witnesses that when the New York conspirators were asked about who were involved in — in Washington, they refused to disclose the names.

Earl Warren:

Well, isn’t that a common thing in the bank, any bank (Voice Overlap) —

John F . Davis:

It may well be.

But here is evidence of — an — of a agreement, a — a joint effort to conceal the — the names of the Washington group.

Now, there is an another example.

At the time Davis and Schopick were engaged in trying to get the no-prosecution agreement, the Patullo Modes stock enterprise retained separate lawyers, Saver & Schwaeber, I think their names were.

And then the question came up when — when they were making progress, “Should these people, the separate law firm, be dismissed?”

And Mr. Grunewald is, according to the evidence, advised that we keep Saver & Schwaeber in the picture.

They were the legitimate lawyers.

I mean they had no — no part in the ring.

They’d be retained, and actually they were paid $15,000, to be a part of a legitimate front for the — for the settlement of this tax claim.

And the conspirators cold-bloodedly agreed that this $15,000 in effect should be spent in order to have this front.

Now, this — there are other elements.

Take for example, the payments in the case.

They were involved in these two particular cases we’ve talked about.

There were $160,000 paid.

Now, it’s interesting the difference in the way these payments were made and the payments of the fees that were paid for the lawyers.

These payments were all made in cash.

They are made in — in bills.

Bills, moreover, which were not supposed to be of too large denominations.

Bills which were to be obtained not by selling assets which could be traced, not by withdrawing money out of bank accounts which could be traced, but money which could be obtained by the taxpayers to make these payments without there being any — any method of — of tracing them.

Earl Warren:

Isn’t that a normal thing in any corruption case?

John F . Davis:

I don’t — I don’t know.

It is an act of — it is an agreement, a — an conspiratorial attempt to conceal in connection with this over — overriding conspiracy.

Earl Warren:

Do you think an act of that kind would — would continue the conspiracy at —

John F . Davis:

I think — I think, Your Honor, that it can be submitted to the — to the jury as this judge did whether there was sufficient evidence to determine that these people agreed on concealment.

And that when the jury finds that there was — that was in the term of the agreement, that this Court would not be in a position to reverse it.

Audio Transcription for Oral Argument – April 04, 1957 (Part 2) in Grunewald v. United States

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Hugo L. Black:

Concealment of what?

John F . Davis:

Concealment of the elements.

Hugo L. Black:

(Inaudible) — affected by what you ask — your answer is suggesting.

Is there any evidence before the — the six acts that would show that the original agreement was that they would try to deceive the grand jury or the Government in the way that they tried to do in these —

John F . Davis:

Well —

Hugo L. Black:

— six covert acts?

John F . Davis:

— well, the — yes there is the King Committee.

There was an attempt to try and prevent them from talking before the congressional committees.

Hugo L. Black:

Well, is there any agreement —

John F . Davis:

Which is — which is of the same nature and which occurs in the — in this interim period.

Hugo L. Black:

Well, that — that you say someone did that.

John F . Davis:

That’s right.

Hugo L. Black:

Before you.

John F . Davis:

That’s right.

Hugo L. Black:

And do you have any other evidence that they had agreed on which a verdict could — findings had read that they had agreed among themselves within the statute of limitation to a conspiracy which included efforts to fool the grand jury and to testify (Voice Overlap) — in all courts?

John F . Davis:

No — no, until — until the committee started, I didn’t — I don’t find any — any overt acts in connection —

Hugo L. Black:

And how long had the so-called tax-fixing ring has been operating at that time?

John F . Davis:

Well, the first acts are involved during 1927 and 1948.

And the — it runs through to the attempt to get the Clover Foundation in 1949.

And that was the last major outside contract.

Hugo L. Black:

Then your — your evidence, so far, as the support of the finding that they were going to try to procure folks swearing before the agencies relates or has found for the first time in 19, what?

John F . Davis:

1951.

And I think —

Hugo L. Black:

1951.

John F . Davis:

When the King Committee —

Hugo L. Black:

The King Committee.

John F . Davis:

Again, that depends on the question which I —

Hugo L. Black:

And how many were engaged in there?

How many participate in there?

John F . Davis:

Well, I’m — I’m sorry I haven’t reviewed the evidence to put that mind —

Audio Transcription for Oral Argument – April 04, 1957 (Part 2) in Grunewald v. United States

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Hugo L. Black:

(Voice Overlap) —

John F . Davis:

— but I think it was Davis — Davis, Schopick and — and Hoffman in New York.

Maybe Mr. Halperin, too.

I don’t remember.

Hugo L. Black:

Any of the taxpayers?

John F . Davis:

And with the tax — with the taxpayers.

That’s what I’m talking about.

They tried to get the taxpayers not to tell the stories to the — to the committee.

Earl Warren:

Mr. Davis, we’ve — we’ve taken a great deal of your time on questions.

And I know you want to get to the Fifth Amendment issue.

We’ll give you ten minutes more in which to discuss that matter, if you want.

And, of course, we give the counsel also ten minutes more.

John F . Davis:

Thank you, Your Honor.

I — I think that it is a very important issue and I’m —

Earl Warren:

Yes.

John F . Davis:

— I’m sorry I used all the time on the others because —

Earl Warren:

Well, it — you couldn’t it help.

You couldn’t help it.

John F . Davis:

We did it, actually.

Earl Warren:

[Laughs]

John F . Davis:

Well, I’m turning then, if I may, to the Fifth Amendment question and at the present time.

What happened — what the — what actually happened was this.

Mr. Halperin who is one of the defendants in the case took the stand in his own defense.

And he testified extensively and explicitly with relation to — with reference to his business relationships with Schopick & Davis, his knowledge with the Patullo Modes and the Gotham Beef’s matter and his own relationships with Grunewald.

Now, he denies all guilt, whatsoever.

And he contradicted a great many of the evidentiary details, which witnesses for the Government had presented.

On cross-examination, over objection of counsel, he was asked concerning action which he had taken before the Brooklyn grand jury where he had answered some of these very questions, which were presented to him here, but had claimed the privilege against self-incrimination with respect to some of the very questions which he answered on trial.

The witness pointed out that he claimed this privilege before the grand jury because he didn’t have the right of cross-examination, he wasn’t represented by counsel.

And he claimed that he felt that he was innocent then.

And he felt that he was innocent, now.

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John F . Davis:

The Court instructed the jury that the assertion of the privilege, not to incriminate oneself, may not be taken by the jury as a basis from which the jury can draw any inference of guilt.

And then the judge told the jury that it could consider the prior claim and this is — this instruction is quoted on our brief at page 68 and 69.

He could — the jury could consider the prior claim of privilege for the sole purpose of ascertaining the weight you choose to give his present testimony with respect to the same matters upon which he previously invoked his privilege.

And the question before us is whether these are proper instructions and whether it was proper to permit the — the witness to be examined with respect to his prior claim of privilege.

Felix Frankfurter:

Would you be good enough to take just a minute?

I meant to ask Mr. Singer, if he gets around to it.

What — what appeared before the grand jury, did I understand correctly that the grand jury minutes were made available all (Inaudible)

John F . Davis:

I don’t think all of the minutes were made available.

Felix Frankfurter:

Well, I mean, with reference to this matter.

John F . Davis:

Mr. Halperin’s testimony was certainly made available —

Felix Frankfurter:

With reference (Voice Overlap) —

John F . Davis:

— to Mr. Singer.

Felix Frankfurter:

With reference to this matter?

John F . Davis:

That’s right.

Felix Frankfurter:

And would you please tell what those minutes reveal as to the — as to the manner in which the terms in which he made claim before the grand jury?

John F . Davis:

Well, yes.

The — the — there were great many claims and in general, he claimed the — the privilege in — in perfectly formal fashion as a lawyer would asserting his claim privilege on the basis of this may tend and —

Felix Frankfurter:

Yes.

John F . Davis:

— he was always careful as they may tend to incriminate me.

And then, he explained to the grand jury, although the record is — is a little unclear, but it’s in this record here.

He explained to them that he believed he was innocent.

That this — he didn’t want admitting any detail.

Felix Frankfurter:

He did — he did make that — he did make that statement before the grand jury as part of the assertion of his claim.

Is that right?

John F . Davis:

That is right.

And he said that he didn’t want to talk there because this — and this — it’s a little garbled, but I would interpret what he said as meaning that he didn’t have the right of cross-examination.

He preferred to talk where he confronted the witnesses and had a basis for cross-examination.

Felix Frankfurter:

Well, it appears that he did give the grounds other than merely reciting the formula.

John F . Davis:

I — I think that is right.

How did he get before the grand jury?

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John F . Davis:

He was subpoenaed to appear before the grand jury.

Was that in Brooklyn?

John F . Davis:

In Brooklyn, it was the Brooklyn grand jury.

That’s right.

The second grand jury is in Manhattan?

John F . Davis:

Pardon?

Where was the second grand jury?

John F . Davis:

In — in the Southern District in Manhattan.

Just in that grand jury.

John F . Davis:

That’s right.

That was in (Inaudible) and the first one was technically in the Eastern District but this called throughout this record, the Brooklyn grand jury.

Now, this — this issue of a witness taking the stand and being queried as to prior inconsistent position, is not new.

It was before this Court specifically in Raffel against the United States.

Felix Frankfurter:

Isn’t enough of the whole problem where there is inconsistency?

John F . Davis:

Well, I — I — the question is can it be distinguished?

That’s right.

Is — is that it — or whether — well, that’s not the nub of the case.

Judge Frank also said that he felt that this Court would — would not follow Raffel today.

Felix Frankfurter:

Well, I’m — I’m not thinking about Raffel or Judge Frank.

I mean, if I have to consider the problem anew, can I begin by, is the case disposed of by saying that a witness can take an inconsistent position without having the jury consider whether that inconsistency, doesn’t make his testimony that’s trusthworthy.

John F . Davis:

That — that —

Felix Frankfurter:

If I stated the problem that way —

John F . Davis:

You —

Felix Frankfurter:

— and I do not think I would be stating the problem accurately myself.

John F . Davis:

The — the — well, let me ask you —

Felix Frankfurter:

The answer to that question is yes.

There’s no problem.

John F . Davis:

That’s right.

Felix Frankfurter:

And the problem —

John F . Davis:

The question is where there is some —

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Felix Frankfurter:

And the problem that — that evaporates by its statement —

John F . Davis:

— whether there is some particular additional protection given because the silence was made under the claim of the Fifth Amendment.

Felix Frankfurter:

And even more.

I think, is that an additional fact.

Namely, that he stated precisely the grounds why —

John F . Davis:

Well, I think that — I — I don’t think that really — in — in Raffel, I also stated the grounds that he just did — he wasn’t because he was guilty.

It’s because his lawyer told him.

Felix Frankfurter:

Well —

John F . Davis:

But I think that that is a matter, if I may say so, Your Honor.

I think that’s a matter for the jury to weigh in determining whether there is inconsistency.

I don’t think that is a — it goes to the question of whether it should go to the jury.

Felix Frankfurter:

Can I tell you why I make a — I put this problem to you?

Because the Government in its brief, in its very able brief by that very able lawyer, William D. Mitchell in the Raffel case relied very heavily on Commonwealth against Smith in 163 Massachusetts, very heavily.

And going to Commonwealth against Massachusetts one finds that the Court there said that defendant in such case now says that he is innocent.

He formally did not say that he was innocent, but that he would not answer lest he might incriminate himself.

John F . Davis:

Yes.

Felix Frankfurter:

Now, you may say that’s just legal stuff.

John F . Davis:

Well —

Felix Frankfurter:

But it does, to me, make a difference as the intimation of Justice Clark’s in the question.

Here is a fellow summoned by a subpoena or he had no choice.

He didn’t take one position one day and another position in another.

He’d been summoned.

He had no choice but to respond to the subpoena as everyone must or he may claim not to testify.

But the duty to respond is there as Marshall or even in the case of Burton v. United States doesn’t give a reason of — for not coming.

And then he said, “I’m innocent but I won’t talk to you for these and these reasons.”

Now, I say to you, you can’t ask that question —

John F . Davis:

That —

Felix Frankfurter:

— merely by saying, “Of course, you can impeach him with this for contradictory statements.”

John F . Davis:

The Massachusetts case is certainly — support that position.

May I then refer to the cases which had followed Raffel.

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John F . Davis:

Raffel — the Raffel case was decided in 1926, I believe.

1926 by — by Justice Stone.

Since then, there have been a great many cases in the Courts of Appeals, although not before this Court, in which the issue of the Raffel case has been before the Courts of Appeals.

I have cited on page 73 of our brief, a group of cases which deal with this specific problem where the prior claim was made in a grand jury.

Felix Frankfurter:

You’re very impressive in your citations.

All I suggest to you when I go to the merits of the Raffel case and find that Justice Stone and this Court relied heavily on a case that is distinguishable, I begin to reconsider the case.

John F . Davis:

But — but Judge — Justice Stone in the Raffel case itself had a situation where the man — he didn’t — and I’m not sure that he said he was innocent.

But he did say, “I am making this claim because my lawyer tells me to.”

I mean —

Felix Frankfurter:

Yes.

All I’m saying is that Justice Stone relied on this — that — that — the —

John F . Davis:

And Justice Stone —

Felix Frankfurter:

I’m — I’m —

John F . Davis:

— felt it should be applied in the Raffel situation.

Felix Frankfurter:

Yes.

I’d say that if — if the fellow relies on an argument that I don’t think is good, this result is no better than the argument on which he relies.

John F . Davis:

But Justice Stone not — didn’t reach his decision solely by —

Felix Frankfurter:

No —

John F . Davis:

— reference to the Massachusetts Court.

He has a — well a — a reasoned opinion here which —

Felix Frankfurter:

Yes, I — I understand.

That’s right — but I — that’s why I say that the Government in it’s brief — I don’t mean to throw estoppel about it.

The Government in its brief relied more heavily, I think, on that than any other case which they brought to the Court’s attention.

That’s a fair statement, isn’t it?

John F . Davis:

That’s right.

I think that’s right.

And there is this distinction which Justice Stone doesn’t — that —

Felix Frankfurter:

Doesn’t make.

John F . Davis:

— specifically refer to.

Although it’s present in — in this case.

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John F . Davis:

And the Raffel case, I think the facts should be stated if only briefly.

Raffel was under trial for a violation of the Prohibition Act.

And a prohibition agent testified that Mr. Raffel had stated that he owned the premises.

In this trial, Mr. Raffel didn’t take the stand.

And the jury failed to reach a verdict in that case.

There was a second trial.

The prohibition agent appeared on the stand again and made exactly the same — gave exactly the same testimony.

Mr. Raffel has — has admitted — has stated in the present witnesses that he owns the place.

Now, Mr. Raffel takes the stand and he testifies and he said, “I never made the admission which the — which the agent says I made.”

And the question is, whether in this situation, it is proper to cross-examine him with respect to his prior inconsistent position at the first trial where he had failed to take the stand.

The problem is — is basically one of — of waiver.

When a witness chooses — a defendant in the case chooses to appear and to testify, Mr. Justice Stone and the other cases upholding the right to cross-examine him, say that he puts his credibility on the line and he can be cross-examined as to — as any other witness with respect to his — his past acts.

For example, he can be cross-examined with respect to past criminal acts which pass — which would — would weigh on — on the weight to be given to his testimony.

If he has taken inconsistent positions with respect to the testimony he know gives in a prior trial that may be brought to the attention of the jury for the jury to weigh, to determine whether or not to believe what he is saying at the present time.

And the nub of this question, if I may say so, is whether or not the protection of — given by the Fifth Amendment is such that some extra special protection should be given to his prior silence because he was silent on a constitutional ground.

And I think that is really the question which is involved here whether he — in order to give — in order to protect and you give an additional — that additional honor of — of sanctity to his — to his prior silence.

John M. Harlan:

Is his grand jury testimony in the record?

John F . Davis:

It is not — well, there are — it’s in — there are exhibits.

That’s true.

Then it’s not printed in this.

John M. Harlan:

The nature of the question —

John F . Davis:

But the exhibits are.

John M. Harlan:

— did his privilege appear?

John F . Davis:

Yes, that’s right.

There is — there is testimony.

John M. Harlan:

(Voice Overlap) —

John F . Davis:

He was tested — there is the testimony and I refer your Court — to the Court generally to pages 691.

This — this is not anything that can be read at the moment because it covers too long a period.

But it’s 691 through about page 696 and I believe it starts again and you have some on 703 to 705.

This is all testimony of Halperin at the present time when he was being examined as to his testimony before the grand — and the grand jury testimony is an exhibit which is largely —

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Felix Frankfurter:

But before — before the trial judge, Mr. Davis, the grand jury testimony —

John F . Davis:

The grand jury testimony —

Felix Frankfurter:

— of Halperin on this — on the (Voice Overlap) —

John F . Davis:

On these things is an exhibit which is lodged with this Court, although, it’s not part of the record.

But I mean not part of this —

Felix Frankfurter:

But it must have been before the trial court, of course.

John F . Davis:

It was before the trial court.

Tried —

Felix Frankfurter:

Could you — could you identify — are –are there many exhibits or this is the only one that’s lodged here?

John F . Davis:

Oh, no.

The only exhibit that is lodged here —

Felix Frankfurter:

Could you —

John F . Davis:

— except — except (Voice Overlap) —

Felix Frankfurter:

— identify that one so that one wouldn’t have to go through everything?

John F . Davis:

Yes, it’s — I have a list of the exhibits.

And —

Felix Frankfurter:

No, just that one.

John F . Davis:

The — the grand jury’s testimony is — Exhibit 8, but who’s Exhibit.

The Court exhibit, it seems to say.

Court Exhibit 7 —

Felix Frankfurter:

Court Exhibit —

John F . Davis:

— is Halperin’s testimony before the grand jury.

Felix Frankfurter:

Thank you very much.

John F . Davis:

And there are other testimonies before the grand jury appears in other Court Exhibit 1, 2, 3, 4.

Felix Frankfurter:

But that’s the one that deals with this problem.

John F . Davis:

Now, when I say that is here with the Court, I — we — we — the — the exhibits in the trial were sent down and were sent over to the — to the — to this — to the clerk’s office.

I do not recollect seeing the grand jury testimony.

This is a list of the exhibits that I have here which was with the volume.

I do not remember seeing —

Felix Frankfurter:

Well, if it isn’t here, could — could —

Audio Transcription for Oral Argument – April 04, 1957 (Part 2) in Grunewald v. United States

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John F . Davis:

It could be.

Felix Frankfurter:

Could — they got through the Solicitor General’s office?

John F . Davis:

I — I think it could be sent down from — from the clerk of the Court.

I don’t see any problem why it shouldn’t be.

Earl Warren:

Suppose you do that for us, Mr. Davis.

John F . Davis:

Yes.

I will ask the same whether —

Earl Warren:

Mr. Singer?

Henry G. Singer:

Since my discussion at this time relates to that very grand jury on the — the question presented, Number 7 which is that it was whether it was right, ethical to call a prospective defendant before the grand jury at all.

It might be interesting for me.

At least it seems to me that the Court might be interested in some ready references to the grand jury testimony as they appear in the record.

Now, on direct examination, on cross-examination, not a word was asked or was said, nor was there a suggestion made that Halperin when he was before the grand jury had done anything else other than claim the amendment in language which would appear that the — that it might tend to incriminate or degrade him.

But when I was furnished or at least furnished the opportunity, the record will show that I asked for a copy of it while the direct — this cross-examination was going on and the Court couldn’t give me a copy so that I could follow it.

It’s right here in the record.

And I said, “Well, I’d like to know whether any questions are omitted or whether it’s the whole of his — of his answers on a subject.”

And I was told I might look over the shoulder of the assistant while he was examined.

I then asked, “Could I be permitted to finish a redirect of Halperin without an opportunity to consult him by having the grand jury minutes immediately?”

Now, that’s in this trial record that’s before you.

And I was told that I would have an opportunity to see them at least as because there were no copies available.

John M. Harlan:

Can you give us the pages —

Henry G. Singer:

Yes.

John M. Harlan:

— without delaying your argument?

Henry G. Singer:

Yes, without delaying it, I can go directly to it.

It would appear it started at page 684.

That’s the very first question.

Oh, I’m sorry, Your Honors.

Excuse me.

It started on page 683 where he was first asked the top of the page, the first question about his grand jury testimony.

Your Honors can see then at page 685 that I made the same argument that I made before this Court that he was not a voluntary witness before the grand jury.

And so that it was distinguished from the Raffel case which is mentioned in the very argument that I made to the District Court, and where I said — I said that the authority of the Raffel case has nothing to do with this situation there.

Audio Transcription for Oral Argument – April 04, 1957 (Part 2) in Grunewald v. United States

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Henry G. Singer:

It was a voluntary taking of the witness stand.

And I said when this witness was not a voluntary witness when he came before the grand jury.

Now, we go on where there were direct questions asked and various exceptions made until at page 694 of the record.

I asked the Court and it’s in the almost the very top of the page.

I said at this point, I would be — I would like to be permitted under the United States against Remington which is a case up in our circuit to be permitted to see these witnesses for grand jury testimony at this very time when the direct examination was going on.

The Court said, “Well, I’d probably be entitled to it, but I have to wait until the examination was finished.”

Right there in the record.

I said I’d like to have it now, so I could follow the examination.

I’m paraphrasing what I said, but it’s in the record.

Well, the Court said, it since it’s going to be adjourned in about 10 minutes, it — it is impossible for me to finish because I said I wanted to finish my redirect on the subject realizing the impact on the jury of this raising of a claim of privilege by a defendant before a grand jury.

Now, if you’ll read on, the Court said it wouldn’t be possible to give it to me.

They were going to adjourn in 10 minutes.

They were going to direct them that I’d be made available.

I mean over the weekend.

And they said it was up to me if I didn’t want to talk to my client about it, but I wanted the jury to know that I didn’t want to talk to him about it because I knew that the grand jury testimony would disclose what as we now learn.

And so, I — the judge said to the — says to the United States Attorney, “Give Mr. Singer a copy of it.”

He said he didn’t have another copy.

And so, we went on with the direct.

And I was — there was — a suggestion was made that I appear over his shoulder, and of course, I said I believe that he would read the questions and the answers properly.

And I know he did and, of course, I waited until the Court recess and then I got a few minutes, but I was never given a copy.

And so, when I returned Monday morning, I proceeded to ask Mr. — I then made my motion to dismiss on the very ground which forms the basis of this claim here that it was wrong to call the target of an investigation before the grand jury.

Up to that time, I’d the slightest notion in the world that they would ever question him about it.

But to continue with this other phase of it for a minute, if I may, I then learned because I had only — well, as a matter of fact, the record will show at one point the assistant asked the defendant whether he had reported to me what he had said before the grand jury.

Whether he had made notes on it and given it to me.

And it appears right in this record.

However, when I got the grand jury minutes, I learned first that there was quite an argument of law between Mr. Halperin and the foreman of the grand jury and Mr. Kennedy who was the Assistant of United States Attorney and Mr. Parker who was President.

Look at page 705, and very rapidly, you will see right below the — the asterisks in the center of the page and that’s to grant my reading of part of the grand jury testimony.

William O. Douglas:

What — what page is this?

Henry G. Singer:

Page 705, sir.

Halperin told the grand jury that he could give them plenty of citations where the Court of Appeals of the State of New York, and I’m reading it, held that it was just as important and even more important for an innocent man to claim the privilege than it was for a guilty person.

Audio Transcription for Oral Argument – April 04, 1957 (Part 2) in Grunewald v. United States

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Henry G. Singer:

And the quotes would indicate that I was reading from the grand jury minutes.

And the foreman replied to him, “These were state cases.

These are in federal cases.”

Read right ahead in the very next answer to he next question.

And then we find Mr. Kennedy or as the witness said he wasn’t sure whether it was Mr. Parker saying, “I’m not disputing your right to claim the privilege, Mr. Halperin,” if you go to the top of page 6.

And Halperin said, “I know you’re not planning my privilege and I regret that I’m compelled to take it as I’ve explained it to you.”

Now, I want you to go back and see how he was jockeyed before the grand jury.

He used the language as in he ended and the record shows at page 704 at the top of the page.

He used the language that I and then in behalf of the lawyer, I think should advise the client who was — might claim the privilege.

You said I — an advise by my counsel and he mentioned my name but I must have declined to answer any questions under the Fifth Amendment which results in my furnishing evidence which could be used against him.

The United States Attorney wasn’t satisfied with that.

And if you read 705, Mr. Parker says to him, it’s in the record, he said, “Why not say I refused to answer on the ground that it might tend to incriminate or degrade you.”

It’s short.

Well, the witness, before the grand jury said, “All right, if that’s what you want it probably means the same thing.

I’ll say it.”

And there it is.

And the second, the third question on page 705.

So that this was no — you see and when the United States Attorney questioned him, he never said a word about the man having claimed his innocence or about him requesting an opportunity to be confronted by a witness or assisted by counsel or to be able to cross-examine witnesses.

No, it was left alone.

Felix Frankfurter:

But it — where is — would you — could you without —

Henry G. Singer:

Yes.

Felix Frankfurter:

— delay give me a reference to everything that the trial court said to the jury on this subject.

Henry G. Singer:

All that the judge give —

Felix Frankfurter:

Everything.

Henry G. Singer:

— the jury — excuse me, Your Honor.

Felix Frankfurter:

Is it what Mr. Davis referred to the Government’s brief?

Is that all?

Henry G. Singer:

It is all.

It’s on my brief.

Felix Frankfurter:

All right.

Audio Transcription for Oral Argument – April 04, 1957 (Part 2) in Grunewald v. United States

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Henry G. Singer:

And it’s in the Government’s brief at — it’s in my brief, if I find it.

Oh, yes.

It’s in my brief and fall from the bottom of page 17 to the bottom to — and the top of page 18.

Felix Frankfurter:

17 and 18.

Henry G. Singer:

Not one other word was said in the charge.

Felix Frankfurter:

Except the — the denial of the request you made on.

Henry G. Singer:

That’s correct.

Felix Frankfurter:

(Voice Overlap) —

Henry G. Singer:

And incidentally, my exception for a ready reference appears in my note 6 on the bottom of page 18.

So that the whole matter is actually together for the Court’s convenience.

Felix Frankfurter:

Well, then the — the charge that ran for a charge, the defendant, the — the name Halperin was never used.

So that the context must have showed they refer to Halperin.

Isn’t that true?

Henry G. Singer:

Oh, yes.

Felix Frankfurter:

And is this the evidence of a defendant’s privacy?

Henry G. Singer:

Oh well —

Felix Frankfurter:

Then the next page, the defendant —

Henry G. Singer:

Until — well, when I —

Felix Frankfurter:

(Inaudible) and Halperin?

Henry G. Singer:

He was speaking of Halperin.

There was no other witness who claimed —

Felix Frankfurter:

No, I — I understand.

Maybe you didn’t understand that.

Henry G. Singer:

And —

Felix Frankfurter:

But was the — by dealing with the charge, will I see that he’s been talking —

Henry G. Singer:

Oh, yes.

Felix Frankfurter:

— he’s referring to Halperin’s evidence?

Henry G. Singer:

No question about it.

Felix Frankfurter:

Well, I’m not — that isn’t the — that isn’t the innuendo of my question, quite the opposite.

Namely, was he referring to evidence about Halperin but did not put the jury the evidence that he asserted his privilege as an innocent man?

Audio Transcription for Oral Argument – April 04, 1957 (Part 2) in Grunewald v. United States

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Henry G. Singer:

Not a word would you see in this record, anyway.

Felix Frankfurter:

And did — did he summarize — did he purport in — in charging the jury just without binding him in Court to talk about evidence pertaining to Halperin?

Henry G. Singer:

Well, if you’ll take — yes, he did.

Felix Frankfurter:

Where is it?

I want a reference to that.

Henry G. Singer:

Yes.

William J. Brennan, Jr.:

Well, Halperin —

Felix Frankfurter:

I suggest —

William J. Brennan, Jr.:

— is the only —

Felix Frankfurter:

— and I’ll suggest — I should have suggested this to Mr. Davis.

Henry G. Singer:

Oh, yes.

Felix Frankfurter:

It makes reference to Halperin’s —

Henry G. Singer:

Yes.

Felix Frankfurter:

— on it — by which — by way of enlightening the jury —

Henry G. Singer:

Oh, yes.

Felix Frankfurter:

— but talks about this and doesn’t refer to the fact that he claimed innocence.

Henry G. Singer:

Yes.

The Court’s charge —

Felix Frankfurter:

Don’t you think (Voice Overlap) —

Henry G. Singer:

— with reference to Mr. Halperin begins at page 744.

William J. Brennan, Jr.:

Well, he was the only one to take the stand, wasn’t he?

Henry G. Singer:

Yes — he — oh, no.

He was the only petitioner.

Another defendant took the stand who was acquitted.

If you look at the bottom of page 744, the last paragraph, the first mention of Mr. Halperin — excuse me.

All right, 744, he begins with Mr. Halperin.

He then proceeds to do something that I never referred to before.

He goes to 748 still talking about what Halperin had said on this and other accounts.

And then he does a very peculiar thing at the top of page 748 if you will look at it.

Just before he begins to talk about Halperin’s cross-examination, the judge points out quite out of context with any other matter could — that could be discussed.

Audio Transcription for Oral Argument – April 04, 1957 (Part 2) in Grunewald v. United States

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Henry G. Singer:

He gives the jury the stock charge that they had a right to disbelieve all of the witness — all the testimony of any witness who may have testified falsely on any material fact.

Of course, that was a proper charge.

But he put that directly ahead of it, if you just see it on the same page 748.

And then comes right into this business of the constitutional privilege leaving out all the claims of innocence and the reasons given before the grand jury, not as we speak of afterthoughts at a trial.

Well, now, we’ve been arguing up to this point, if I may, the end result of an appearance of a prospective defendant before a grand jury.

And sometimes it’s good to reason backwards so that you can see the end result of an improper act.

Which you’ve got to go to the beginning of it to see that this was no accident.

And I say, it was deliberately engineered.

There’s no question about it.

Felix Frankfurter:

What is it?

It was an —

Henry G. Singer:

This calling of them — of a prospective defendant before the grand jury because if the Raffel case was good law, and I say it never applied to this case anyway, whether it was — if this Court wants to continue the rule in the Raffel case.

It was, I say, part of a well-designed plan to call a man before the grand jury knowing in he would refuse to answer, cutting his answer down from the Fifth Amendment and not obliged to give testimony that could be used against him to the stock phrase.

It will incriminate or degrade me and I don’t know where Mr. Parker, the U.S. Attorney got to degrade me business.

That’s been out of fashion since I was a boy and that’s some years ago.

But that’s the fashion in which it — he was — that’s the point at which he was put.

Now, you’ve got to have put this — you got — I say you must look at it these two ways.

How does it come to this Court?

Well first, on constitutional grounds, is it denial of due process?

And second, a manner which many people overlook throughout the country and that is that this Court, since sometime in 1945 or thereabout, has by statute complete supervision of the procedure in the trial of both federal — in federal courts of both criminal and civil cases.

John M. Harlan:

Could I ask you a question?

Henry G. Singer:

Yes.

John M. Harlan:

Did — did Halperin ask to be excused in compliance with the grand jury subpoena as to (Voice Overlap) —

Henry G. Singer:

He did not —

John M. Harlan:

— to testify?

Henry G. Singer:

He did not.

And I might say to Your Honor, he was called not once but five or six times.

He was there 20 days on different occasions that would do him no good.

Who could vacate the subpoena?

How could anybody move to vacate a subpoena of a person?

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Henry G. Singer:

He might have been asked as he did answer many questions.

You see the subterfuge only is that he’s not a prospect of war as Judge Medina once described the defendant in the Scully case, a de facto defendant.

He’s brought there as a witness.

And like the Government here says, “Oh well, he wasn’t there as a defendant.

He was there as a witness.”

The grand jury in their inquisitorial powers had the right to inquire about many things.

Felix Frankfurter:

Well, in fact — in fact, do I — might infer from what you’ve just said that he was asked questions and answered questions not remotely pertaining to himself, and therefore, was in a split capacity of witness.

Henry G. Singer:

That’s correct.

Now, I want to point out that it goes beyond that.

Felix Frankfurter:

And therefore, the — the fact that he was called there five times, isn’t very significant, is it?

Henry G. Singer:

Oh, yes.

It is because each time there’d be a double deal.

You see —

Felix Frankfurter:

That is he was called as a witness about things wholly remote from himself, testified.But then he was asked a question about himself and he invoked the amendment.

Then he was called again and they again and again asked him and he again and again said, no.

Henry G. Singer:

Same time, every time, there would be — if you get the grand jury minutes and I’ve only saw him for 10 minutes.

I only saw these pages for 10 minutes sufficient to get enough for these questions.

Felix Frankfurter:

I don’t — I don’t understand that if — if a thing is an exhibit in the case —

Henry G. Singer:

It wasn’t —

Felix Frankfurter:

— isn’t in a secret to a counsel in the case.

Henry G. Singer:

Well, may I say this.

If it — you — you noticed the use of the word —

Felix Frankfurter:

Courts —

Henry G. Singer:

— “court’s exhibit.”

It wasn’t shown to the jury.

I had the opportunity —

Felix Frankfurter:

That doesn’t matter.

Henry G. Singer:

I know.

I had the opportunity to see it for 10 or 15 minutes.

I’m not complaining about that.

Audio Transcription for Oral Argument – April 04, 1957 (Part 2) in Grunewald v. United States

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Felix Frankfurter:

I know, but I want to know what the nature of this document is if I (Voice Overlap)

Henry G. Singer:

But I — I should also see it while I was — excuse me, Your Honor.

I’m sorry.

Felix Frankfurter:

All I’m saying, it’s either in the case or it isn’t in the case.

Henry G. Singer:

Well —

Felix Frankfurter:

If it isn’t in the case, I have no business to see it.

If it is, it couldn’t be a secret before you.

Henry G. Singer:

Is it in the case?

It’s not offered an evidence.

It wasn’t shown to the jury.

It’s simply marked as the “court’s exhibit” so at — at any future time if you wanted to see you could and I couldn’t (Voice Overlap) —

Felix Frankfurter:

Did the Court see it?

Henry G. Singer:

Of course, it did.

It examined it.

But that’s what happens with court exhibits.

But let’s — let’s get — I — I will be on that.

Now, the Government’s claim here is, why the grand jury knew nothing about Mr. Halperin.

They didn’t even know the name of Grunewald, the Washington associate, put at this very same time in the Government’s brief.

And it was part of the trial itself.

It showed that Grunewald who was supposed to be and they’ve described him.

Anyway, let’s accept it for this purpose, the so-called Washington associate.

His secretary, Ms. Hain was called before the grand jury and she testified and it’s in the record and in my reply brief and in the Government’s directly, that she was subpoenaed to Brooklyn while this Brooklyn grand jury was being — the proceedings were there being conducted back in 1952.

That she talked to the United States Attorney, to the special assistant, to the first assistant a Mr. (Inaudible) and some Government agent.

But beyond that and the record shows it.

It appears right in the trial testimony when Mr. Halperin was called before the grand jury, the District Attorney was loaded, forebear.

He had an idea in which it would — it would have been perfectly proper that Halperin, a lawyer, would claim that since he was a lawyer, he couldn’t divulge confidential communications.

So, the assistant before the grand jury showed Halperin a paper which he said was a letter from the three Patullo defendants, the three Patullo plans wherein they waived the privilege, the relationship of the attorney claim so as to deprive Halperin of any claim he might have by way of privilege.

And now, to top it all, though, though it’s not in the record and I know there’ll be no denial of it, this very Washington associate, Grunewald, was called before the grand jury in Brooklyn.

There were proceedings in connection with his illness to compel him to testimony.

There were long hearings before the Court and the whole thing is a lot of nonsense.

Audio Transcription for Oral Argument – April 04, 1957 (Part 2) in Grunewald v. United States

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Henry G. Singer:

It’s a lot of expressions and words, which he used, as I say even today, to conceal the fact that there was no mystery before that grand jury that Halperin was a target.

Now, let’s say he wasn’t the prime target.

I don’t know if I’m being shot at whether I care if they hit me in number five or number one on a target.

I am there.

And that’s the point.

Now, let’s see what happens when you do a thing like that.

You start off what might — what might look like a very legitimate thing, subpoenaing a person before the grand jury.

But you know he’s a defendant.

You know he’s the person against whom, and the trial testimony discloses this fact that every single witness with the exception of Davis and Hoffman on cross-examination when I examined them said that they had told the grand jury in Brooklyn every single thing that they told the trial jury.

As a matter of fact, in some instances in an attempt to develop the inconsistency so that I could cross-examine and try to get the Brooklyn grand jury minutes, the judge himself read the Brooklyn grand jury minutes and made a statement that there was no inconsistency.

So, that’s proven conclusively.

But second, now, let’s take Davis and Hoffman.

And this — I might complain to the Court.

You refused to grant one of my questions.

You’ve been very kind in granting the others on a hypothetical question.

Davis, at the stand — now, he was the principal architect.

That this is the man who was supposed to have really conducted this whole thing as I get this, as the trial seemed to show.

He was the brains who figured out how to get the money and how to cheat the clients or whatever he did.

He testified on redirect in an attempt to rehabilitate him after he’d been completely destroyed on cross-examination.

That long before the trial, back in 1952, he had disclosed in full all of these dealings with the Washington associates, would have been — which would have been with Halperin or Bolich and Mr. Grunewald in a hypothetical statement.

What it meant, I don’t know.

I never saw the statement.

The Court permitted the question.

Of course, the statement wasn’t offered.

I objected.

The Circuit Court said that it was a prior consistent statement and it was permitted in.

But that, I’m willing to take that hypothetical statement as proof from the Government’s own lips that that Brooklyn grand jury knew that Halperin was an — a — the prospective defendant.

And now, to cut the climax, the Government comes up with a new one.

It says, “Well, anyway the Brooklyn grand jury could never have indicted Halperin.”

Of course, there was no overt act committed in Brooklyn.

Audio Transcription for Oral Argument – April 04, 1957 (Part 2) in Grunewald v. United States

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Henry G. Singer:

Well, why did they have an investigation there?

Why did they call people before grand juries in the district that has no jurisdiction?

But again, and this is no forum of Mr. Davis.

He forgets that this record shows that the income tax return in the Gotham Beef case was filed in Brooklyn.

There’s testimony in the record.

And that the agents who investigated that — this case was an agent from the Brooklyn office who had referred, not that it’s important, because when we go to the question of due process, we must ultimately come to the old case of Counselman against Hitchcock where this Court said to call a prospective defendant or for a defendant before the grand jury was wrong.

Next, in our own state court and I have cited the cases, they’ve held that to call a man before the grand jury who was a — who was a prospective defendant vitiates the complete case.

Now, Judge Medina in the Scully case in our circuit, and I think, Your Honors, denied certiorari in the matter, said in substance that he couldn’t believe that this was something that was done so generally.

But he said it was wrong and unethical in substance.

If I used the wrong adjective, I’ll withdraw it.

In substance, he said it was wrong.

It was improper.

However, he said, “I hope no United States Attorney would do it.”

In this circuit recently, the Court of Appeals for the District of Columbia said a the recent case, which we’ve cited in the Powell case, the Government cites it.

That Mr. Powell was undoubtedly the target of the investigation but they reversed on another ground and that there was serious doubt as to why they should call it.

Felix Frankfurter:

But your — your own statement to my mind presents the different problems and the one that is implied in your remarks about a minute.

Namely, if you got in this, if you got a person who was — who may be an important witness on matters not related to his own potential criminality but also may be found to be part of a conspiracy, the Government had today, a difficult choice, is confronted with a difficult problem in the administration of justice and I should think it would be extra austere to say that because he may claim the privileges himself, the administration of justice must deny itself the testimony unrelated to himself which he’s able to furnish.

Henry G. Singer:

Mr. Justice Frankfurter, I answered your question rapidly.

When I said that he answered many questions.

But, I, by no means intended to suggest nor to convey to Your Honor or to any of the other justices that there were any questions asked of how a person, which related to any matters outside of this so-called tax fixing ring.

Felix Frankfurter:

Yes.

Henry G. Singer:

There was some that he could answer without furnishing a link in the chain of evidence.

Felix Frankfurter:

Because if he answered any as to which he pled — could plead the privilege, then he certainly opens the door.

Henry G. Singer:

Well, now, it — I don’t want to get involved in the waiver because if ever there was a trap laid for anyone, and I don’t know who he is whether he’s a judge, a lawyer or a layman, who can decide when he waives and when he doesn’t waive.

I would like to see the person in the situation.

It’s easy to explain that later.

And so, you — you can see if you ever get this exhibit where although you claim the privilege at one point, a United States Attorney says to you, “Well, that couldn’t possibly incriminate you.

What difference does it make?”

So, you answer it.

Felix Frankfurter:

And the short answer to my question is that Mr. Davis did not, as I understood him, say that in the — that in his appearance before the grand jury, he in fact waived the —

Audio Transcription for Oral Argument – April 04, 1957 (Part 2) in Grunewald v. United States

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Henry G. Singer:

Of course, he didn’t because the United States Attorney said to him, “You’re entitled to your privilege and I want you to know that I’m not taking it away from you, except that I will tell you what words to use.”

And so, I —

Felix Frankfurter:

Let me ask you this question before you sit down.

Henry G. Singer:

Yes sir.

Felix Frankfurter:

I thought it’s — for me, important.

As counsel for Halperin, departing from this question but relating to it, quite seriously.

Assume you’re right — assume your right, does the testimony as to Halperin, is the testimony or the evidence in the record as to Halperin seriously or weightily or relevantly different from, in weight, from that to which supports the verdict of the other defendants?

Henry G. Singer:

Why don’t we put it this way, Your Honor?

There’s no testimony as far as I can see it, direct testimony except through Halperin because under the factual proof, it would say that Halperin, who made the arrangement with Grunewald, although at one stage in the proceeding, another man, Davis, says he was present just while a word “okay” was said or there was no such proof.

Or the whole thing was a swindle on the part of Davis to cheat his clients out of $160,000.

And that’s the whole thing and that’s why Judge Frank said in his dissenting opinion that the jury could well reasonably have acquitted Halperin.

Now, I have about eight or ten minutes and I would like to go to another subject, if I may.

I might say to Your Honor, now — before I finish And I’m not saying this just for words.

This business of calling people before the grand jury and the question of the Fifth Amendment isn’t new in our country and it’s a little different in England.

Judge Taft pointed that out in one case.

There, the privilege against incrimination in England and when he was a Circuit Court Judge, Judge Taft pointed out was the statutory privilege.Here, it’s a constitutional privilege.

And so, that’s quite a different situation.

But secondly, you talk about star chamber proceedings and the grand inquisition.

What could be worst than to take a man who knows he’s going to be charged with a crime, take him away from his counsel, take him away from the opportunity to cross-examine and ask him a lot of questions about a lot of people and remember what Your Honors have all said here.

That if he says, “I know Joe Brown” who may be his law partner or his brother, he may be deemed to have waived the privilege and opened the door.

I’m not stating an extreme case but as I read the old — the Rogers case, I find that I don’t know where to tell a man to stop.

Now, I want to go to the last of the questions presented.

If I can have just another — I have about three minutes, I think.

Here, we have again the Fifth Amendment.

This presents a rather different problem.

I must agree at the very outset that since this Court doesn’t review facts, that I must accept the Circuit Court’s opinion and majority opinion on this last question.

It leads back to a question that Your Honors asked about the — these acts of concealment.

Somebody asked, “Well, who committed the acts of concealment?”

That is asking people supposedly not to furnish information.

It isn’t true that there weren’t separate charges about it.

Audio Transcription for Oral Argument – April 04, 1957 (Part 2) in Grunewald v. United States

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Henry G. Singer:

Counts 5, 6 and 7 of this indictment actually charges Halperin, Grunewald and Bolich as a substantive offense with having impeded justice by asking three different persons to — to testify so-called not — or not to testify before a grand jury.

We’ll omit the phraseology of the indictment for this purpose.

Yet, at the same time, when the case before the case went to the jury, the trial judge dismissed those counts against Grunewald and Bolich because there was no proof to connect them with him, and yet, the Government now says that under the conspiracy section, they could be held as being responsible for it.

And yet, we all know under section 2 of the — of title 18 and later when the federal justice say in this and a — as a conspirator and so that argument fails by itself.

Those so-called overt acts of concealment were dismissed by the Court as against the others.

But Halperin himself was a lawyer.

And the — as I read the facts, he for motives of his own and I’ll be very frank to say and to protect himself advised three different persons that if they were called before the grand jury, they should plead the Fifth Amendment.

The Court in its majority opinion said that Halperin never told anybody to lie.

He never asked anybody to purge himself.

But as — and apparently, he wasn’t their lawyer.

He had been.

And gratuitously, let’s put it that way.He said to them, “If you’re called, you plead the Fifth Amendment.

I’m going to plead it.”

Now, I ask you, is that a crime?

The Court said, “Of course, and its judge that if you ask anybody to plead the Fifth Amendment, you’re not guilty of a crime.”

However, the facts as the Circuit Court gives it reduces itself to this part.

There were two cases on the Circuit.

One comes from California, Your Honor, in the (Inaudible) case in the District Court.

It’s never been reversed, never appealed and there was the almost similar situation, personal motives.

Now, I say it makes no difference if you’re a lawyer or a layman.

I have a right to tell a stranger even if it’s going to help me and Judge Taft said so in the urban cases, the only other case on this subject that I can point.

The Government has cited none other — I’ll stop at this point.

John M. Harlan:

Does this — could I ask you a question?

Henry G. Singer:

Yes.

John M. Harlan:

Does this point you’re arguing now stand in the penalty of the statute of limitation supposing —

Henry G. Singer:

Of course, it does.

I’ve pointed it out only in relation to those — to those acts of concealment alleged subornation of perjury.

He showed that they were dismissed against two people whom I don’t represent to show you that it couldn’t be part of the conspiracy because if it were, then the conspiracy theory would apply whether it was a substance of a (Voice Overlap) —

John M. Harlan:

Maybe I don’t understand it but there was that — that’s not my question.

Supposing we held the statute of limitation barred this prosecution.

Audio Transcription for Oral Argument – April 04, 1957 (Part 2) in Grunewald v. United States

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John M. Harlan:

Does that leave the count of the indictments still to be disposed of (Voice Overlap) —

Henry G. Singer:

It leaves Counts 5, 6 —

John M. Harlan:

That —

Henry G. Singer:

— and 7 against my client who was personally —

John M. Harlan:

(Voice Overlap) —

Henry G. Singer:

— indicted and not who was personally convicted.

Do I have those extra five minutes that Your Honors said I could have in view of the —

Earl Warren:

I think you have 10 minutes.

Henry G. Singer:

— 10 minutes.

Thank you very much, sir.

Earl Warren:

Yes.