Lawn v. United States

PETITIONER:Howard Lawn
RESPONDENT:United States
LOCATION: U.S. District Court for the Southern District of New York

DOCKET NO.: 9
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 355 US 339 (1958)
ARGUED: Oct 14, 1957 / Oct 15, 1957
DECIDED: Jan 13, 1958
GRANTED: Oct 15, 1956

ADVOCATES:
Joseph Leary Delaney – for the petitioners in 10
Milton Pollack – for the petitioner in 9
Roger Fisher – for the respondent

Facts of the case

These are two consolidated cases involving several individuals involved in a tax evasion scheme. The petitioners were indicted and testified before a grand jury without being warned of their constitutional privilege against self-incrimination. For this reason, the district court dismissed the indictment. The appeals court affirmed the dismissal. While the appeal was pending, the United States initiated a new grand jury proceeding and, at a trial by jury, the petitioners were found guilty. The U.S. Court of Appeals for the Second Circuit affirmed. The petitioners suspected that prosecutors used privileged information gained in the first indictment to aid in the second proceeding, violating the Due Process Clause of the Fifth Amendment.

Question

Did the district court abuse its discretion by denying the petitioners a hearing to determine whether information gathered at the first indictment was used in the second proceeding?

Earl Warren:

Number 9, Howard Lawn, Petitioner versus United States of America.

Mr. Pollack.

Milton Pollack:

May it please the Court, Your Honors.

This is an act — conspiracy case which was tried in the Second Circuit in 1955.

The trial commenced on January the 10th 1955 and was concluded in March.

Mr. Lloyd P. Stryker was the counsel for the defendant at the trial.

William J. Brennan, Jr.:

All of them.

Milton Pollack:

All of them.

Mr. Stryker died during the year 1955 and I was consulted and retained in this matter in January 1956, some four weeks before the case was to be briefed in the Court of Appeals.

An appeal that already been taken by Giglio and Livorsi in case number 10.

That appeal was held suspended until Judge Walsh sentenced Mr. Lawn eight months after the trial in December of 1935.

Then he took an appeal and there had been a stipulation to join the two appeals.

The failure of the lower courts to follow the doctrines announced by this Court some 30 years ago in Berger against the United States is the principal matter on this field.

As Your Honors are fully aware conspiracy cases involve defendants at the center of the conspiracy and sometimes seek the latch on a fringe defendant because of some association which is charged against this fringe defendant.

Lawn is a fringe defendant.

His conviction must have been as much a surprise to the government as it was to the petitioner.

His acts and I have been at pains to go through some 3000 pages of record and to supply this Court with a detailed schedule of each and every page reference in this entire record where the name Lawn is mentioned regardless of a character mentioned.

And I have set forth at page 80 to my principal brief in a schedule form on one page, every single reference that is made to Mr. Lawn in this entire 3000-page record —

Felix Frankfurter:

Which one of these briefs Mr. Pollack?

Milton Pollack:

I beg your pardon sir.

Felix Frankfurter:

Which one of your briefs?

Milton Pollack:

This is the main brief, the first brief that I submitted, it’s an 80-page brief.

William O. Douglas:

85?

Milton Pollack:

80, the last page of the entire brief.

William J. Brennan, Jr.:

Are you –

Harold Burton:

(Inaudible)

Milton Pollack:

No, no on this dispute,

Felix Frankfurter:

August 20.

Milton Pollack:

The brief is dated —

Felix Frankfurter:

August 20, the filing is —

Milton Pollack:

Oh you probably saw, Your Honor, yes.

You are asking as I take it position to your legal points to review this submission together.

Milton Pollack:

Yes Your Honor.

We contend in this Court that Lawn had no prima facie connection whatever with any conspiracy and that in addition to that there was an egregious trespass on Lawn’s rights both by the manner of this prosecution and by the fact that his motion was not granted to dismiss him from the case and I will develop those points.

Lawn was accused here of aiding his principals, two principals to evade their tax obligations by non-payment of their tax debts and to orient the charge against Lawn let me say, Mr. Lawn is not here as a taxpayer.

He didn’t aid or counsel the taxpayers on their reports.

He didn’t file any reports for them.

He was an employee in an enterprise that sought to develop sugar out of waste material, almost like developing gold out of sea water, but they thought that they were going to be able to accomplish this.

And he was engaged to head up the import export trade and the research and development of that project and enormous sums went into that project.

Lawn was trained as a lawyer and I think it is very important at the outset of the augment to spike any notion that Lawn appeared in this prosecution in the slightest degree at any page of each and every one of these references, that I make in the record that Lawn appeared in any professional capacity in any transaction or action.

He did not in any time function at any matter as a lawyer.

His co-defendants were advised by top notch attorneys in their fields and tax experts even for the simplest transaction and because the government has made some point of this in my reply brief, Your Honors will find at page 22 the list of the activities involving lawyers and the identification, and name, and record reference of every lawyer who had anything whatever to do on a legal level with this man.

The government conceded in this case that the counts against Lawn and there are three out of the ten, two — counts seven and nine under conspiracy count are positive on the premise that the tax returns of Lawn’s principals, the tax returns of Lawn’s principals not his tax returns because they are not involved here, were proper and properly filed, but that non payment of taxes was the basis of the crime which Lawn allegedly aided.

Lawn had no personal stake or interest in whether or not these people paid their taxes.

He had no obligation to see that they did pay their taxes.

He had no personal advantage accruing to him if they didn’t or if they (Inaudible) payment of their taxes and there is no proof whatsoever and I confidently state that and stated it in my main brief and requested the solicitor general and the attorney below to point to any court reference in the record.

There is no proof whatsoever that Lawn knew — that there is nothing to show that Lawn knew that there was a tax due from anyone of these principals.

There is nothing to show that Lawn knew that the tax was unpaid, and there is nothing to show that Lawn knew that there was an intent not to pay it.

Felix Frankfurter:

What was the substantive offense?

Milton Pollack:

The substantive offense —

Felix Frankfurter:

I have read the brief so just bear that in mind.

Milton Pollack:

The substantive offense was that Giglio bought himself, this is count seven, Giglio bought himself a home down in New Jersey.

Felix Frankfurter:

(Inaudible) substantive, I mean what was the offense to which he was a fringe defendant, you said non payment, (Inaudible) they didn’t pay?

Milton Pollack:

He didn’t pay.

The government said that they didn’t — they fraudulently concealed the means of payment.

Felix Frankfurter:

Where is the conspiracy?

Milton Pollack:

The conspiracy.

Felix Frankfurter:

Helping people —

Milton Pollack:

Not to pay their taxes —

Felix Frankfurter:

Just not pay, does — the tax is due and —

Milton Pollack:

To hide their assets.

Felix Frankfurter:

To hide their assets.

Milton Pollack:

To hide their assets.

Yeah, well whether I raise that point in my brief and I am not going to detain the Court —

Felix Frankfurter:

I just wanted to know what it was?

Milton Pollack:

Right, incriminating presumptions were indulged in by the court below with respect to Lawn’s knowledge, this basic knowledge that it even was necessary to prove that he has and the incriminating presumptions were that Mr. Lawn who was a phi beta kappa graduate of a Harvard Law College and graduate of Harvard Law School was a very smart man and he should have known that it was up to him to know what was going on as Judge Clark says below in the transactions that were proliferating around him but there was no proof, not a scintilla of or proof that Lawn was anything more than a smart man, legally astute and stands by with indifference, because he had no obligation whatever with the respect for the taxes of these other people.

The case against Lawn in short was either non-existence or so hopelessly weak that the pattern of the prosecution becomes a vital consideration on this appeal.

May I turn to that.

From the inception the prosecution was an indefensible, violation of the petitioner’s rights to a fair trial.

This is of a special impact against a man in Lawn’s position of the fringe defendant because he was on the outer most fringe of any supposed conspiracy for the others not to pay their taxes.

The case itself got off to a bad start.

Judge Goddard dismissed the indictment, the first indictment in 1952 because of the misconduct of the prosecutors and violation of the Fifth Amendment.

These people had been served with informations in 1950 and in 1952 when they were punitive defendants to felony charges on the same matters, they were held before a Grand Jury and under subpoena that was extracted from them their personal and partnership record, and Judge Goddard on motion dismissed the indictment, outlawed the evidence, suppressed it and ordered it to be returned, and as Your Honors will find out key evidence that got itself into the trial in this case was not returned.

After the 1950 indictment, 1952 indictments were dismissed, the government proceeded to obtain a sealed indictment which for a practical purposes parallels the 1952 indictment and they kept that sealed while they were taking an appeal to the Court of Appeals of the Second Circuit, and they also kept the records that had been ordered to be returned as a stay order, but they had those records while that Grand Jury was operating in 1953 to indict these people on the same counts.

And then when their appeal was dismissed because it wasn’t timely taken, the government hadn’t perfected its appeal timely and the decision became final.

The indictment was open, but the records were still not returned in 1954 on an application to another district judge, Judge Palmieri, then seeking to go into the question as to whether any of this illegal outlawed evidence had been used in the 1953 Grand Jury proceedings, which failed because Judge Palmieri did not permit them to go into what had been used, open up — to create that 1953 indictment.

Judge Palmieri nevertheless said they are entitled to their record back, I order you to return their personal records, and yet we know in this case, through what the Solicitor now says was an inadvertent mistake of the prosecutor.

That one of the key papers, a $15,000 check which was the only conceivable link that the government had to link Lawn to crime, and was spelled out its thesis for the purposes of the jury, that he had participated in fruits and therefore must have been part of a conspiracy, that $15,000 check was not returned.

Judge Palmieri refused to permit an investigation into the 1953 Grand Jury proceedings because he had received vouchers in the form of affidavits, seven of them, from the prosecutors saying, we didn’t use any tainted evidence, we promise not to use any tainted evidence and the tainted evidence won’t be used on the trial and Judge Palmieri said in the face of those representations, I leave it to the trial and if there is any use on the trial that you can take that up with the trial judge.

On the trial itself —

Did he say quite that?

Milton Pollack:

Yes sir.

I thought you said he didn’t find enough basis to warrant an investigation?

Milton Pollack:

No, I think Your Honor will find, the motion to suppress the use of all illegally obtained materials, I’m reading from the record 183, first volume, (Inaudible) there from must also be denied.

Defendants can only complain if this material is used against them.

United States attorney has sworn that this material will not be used in the future and this oath is sufficient.

That was precisely bottomed on that proposition.

Now on the trial itself, Mr. Stryker made recount of hands, about six of them, to obtain a hearing on the use of outlawed evidence, because he was satisfied from the parallelism of this case that they had to have used these 80 cartons of personal records somewhere as to get that 1953 indictment.

But Judge Walsh refused any such enquiry and I think it becomes important to see from all the affidavits and I’ll detain the Court for a moment to point to one of these affidavits and there were 27 affidavits supplied in all in this prosecution and six open court vouchers of like kind, and I draw Your Honor’s attention to record 2948, that’s in the fourth volume, the supplemental appendix, printed with a brown cover, and there you’ll see a sample of these vouchers that headed off inquiry and one of those samples Mr. White —

Earl Warren:

What page was that please?

Milton Pollack:

2948 Your Honor.

Earl Warren:

Thank you.

Milton Pollack:

Mr. Wessel, the prosecutor says this affidavit is submitted to the Court together with other affidavits attached hereto to certify the record, that the assurances made by the government in connection with the use of certain documents have been fully carried out, paragraph two.

Paragraph five; throughout the trial of this case I carefully analyzed everything, I underscore everything, item of evidence used by the government and I’m certain that none, none he said of the described material was used in any way.

None of the questioned evidence was used as direct evidence and cross examination to refresh a witness’ recollection in preparation for or during the trial as a lead to evidence, or in any other manner.

And if Your Honors so desire, I can supply you the page references to 27 such affidavits filed and six express statements, one coming as late as a time when just before thee people were sentenced, in a burst of propriety, the prosecutor again at one — on page 2083, I would like to state again if Your Honor please positively, finally, affirmatively, I will do it under oath any way that I possibly can that I am positive that there has been nothing in this case from the trial before the Grand Jury that in any way comes from those categories.

These lowing reassurances of course must have had some kind of an impact of the Court and they certainly do on Mr. Stryker, but they turned out as the Solicitor now says to be an inadvertent mistake with the piece of evidence.

The inadvertence was about the one thing that affected Lawn, because when he appeared before that Grand Jury that Judge Goddard said had no business to hold him before the Grand Jury, he produced four pieces of paper, one of them was this check, the second one was the stub end piece from which the check was made and then two other checks, but this one check was drawn to Howard Lawn and endorsed by Howard Lawn and show that Howard Lawn had gotten $15,000 on November 7, 1945.

He didn’t take the stand to testify to what their transaction was, but the prosecutors used that very effectively by showing this was — he must have been doing something as Your Honors will see he said, what did he get the money for?

It wasn’t his salary which he was getting separately (Inaudible).

Lawn was the forgotten man during this trial as attested by the schedule to my brief and the sporadic references in the case.

And when the time came for the summation, the prosecutor was visibly touched by Mr. Stryker’s demonstration of the hole in the government’s case, and the unreliability of the tales of admitted perjurers and criminals who testified for the government and he was impelled to bolster the government case by giving his unsworn testimony to the jury, by announcing that he was scarping his original plan of summation.

He was touched to acquit as a trial lawyer and then he proceeded for testify to the jury by the means of the summation and that took two forms.

Number one, he vouched for the truth of the tale of Roth and Lubben and told the jury that they were telling the true, and number two he induced prejudice against the petitioner Lawn by ascribing a host of collateral crimes or misconduct, not material and not shown by any of the evidence, but it was his witnesses who had been in that category so he thought it was desirable to accuse Mr. Lawn likewise, so what did he do?

This was a tax, aiding a tax conspiracy, so Lawn found himself on the summation at the end of a seven weeks trials without any evidence in the record or material for the trial being accused on summation of fixing, bribery, fraud, personal tax evasion, forgery; and yet the charge here was that these tax principals hadn’t paid their taxes.

Not satisfied that he had done well enough, he told the jury that if they couldn’t swallow the tales of Roth and Lubben these two key witnesses on whom the government depended for a convictions here, they told the jury, but don’t forget you can’t deny the $15,000 check.

No matter what you think of their testimony he argued the summation, you can’t deny the (Inaudible) evidence and here is the $15,000 check, but that was outlawed proof, and that found at record 2604 in the summation.

Earl Warren:

Is it conceded that is outlawed proof now —

Milton Pollack:

I am trying to say to Your Honor, I don’t know what the government is conceding on this proposition.

They have conceded that gone this far, they said it was an inadvertent mistake of the prosecutor to use this evidence because it was inconsistent with the affidavits that he filed.

I read that as meaning that they had no business using it, because if it wasn’t a mistake, then I don’t know what they’re talking about and if it was a mistake, they had no business using it.

Now doesn’t that appear right on the face of the check, that was marked as Grand Jury exhibit with a – was a Grand Jury exhibit.

Milton Pollack:

That did not indicate Your Honor that the pay back had come from the tainted 1952 proceedings.

Why not?

Milton Pollack:

Because papers other than those that Mr. Lawn produced were produced by the government from innocent sources, and they were all marked with the Grand Jury mark, but there was one telltale mark that identifies this as the paper that Lawn produced and should have been returned to him by the order of suppression.

Now let me see if I can go over that again.

The government had a whole hoard of papers, some it had obtained on its own, other papers it had obtained through subpoena.

All of the papers were marked as Grand Jury exhibits, GRJ, date 7/15/52, exhibit number so and so, but only one of the papers, two of the papers I should say or four of the papers, because he produced four, had an identification on it that proved unarguably within the confines of this record, that this was the check and this was the stub that Lawn produced on July 15, 1952 that Judge Goddard said was suppressed.

And Your Honors will be interested to know how it happened that I develop this, and if I may indicate to you why I happened to find what I am about to tell you.

Hugo L. Black:

May I ask you before you do that, the government knows whether (Inaudible) you mean they don’t —

Milton Pollack:

The government apparently — the government didn’t know a thing about this and I claim to be the first discoverer of this thing at the time that I had entered the case.

Hugo L. Black:

I should think the government would know whether this case which we are talking about was (Inaudible)

Milton Pollack:

I think they should know it, and I don’t think there’s any question about it.

I think —

Hugo L. Black:

Are they disputing —

Milton Pollack:

That’s undisputed Your Honor.

Hugo L. Black:

Undisputed —

Milton Pollack:

Undisputed, exactly which is the copy that was introduced before the ‘52 Grand Jury.

Now at the time it was introduced before the Grand Jury, they gave the check back to Lawn, the original, but said now before we give it back to you want to take a Photostat, so they photostatted it.

And they have a process down there in the southern district of New York, that when they photostatted it, they stamp photostatted by the United States District Attorney’s Office July 15, 1952 and it was that telltale stamp that I discovered.

Now here is the way the exhibit came, you see footside and backside of the check voucher, but if you — and put together with staples at the top, but if you look inside the original, and this is a copy, because I didn’t want to disturb the original when it first came down here, if you look inside you will find a nice pink stamp on both sides of these presumably hollow sides, presumably sides that were blank.

Now the paper had all of the other elements necessary, they said Grand Jury Exhibit 4, 7/15/52 and it had file exhibit number 61B or A as the case maybe for the check, but only one piece of paper, the one that came from that Grand Jury’s extraction under subpoena had the stamp on it, photostatted by the District Attorney’s office July 15, 1952.

Mr. Stryker tried to launch an inquiry at various times during the trial, into the use of tainted evidence on the trial.

He was frustrated.

I have a record of each of those places if the Court is interested.

The Court of Appeals held that the use of Exhibit 61 A and B, that’s the check and the check stub was harmless evidence.

Earl Warren:

In what manner did he try to bring it to the attention of the Court, could you tell us briefly?

Milton Pollack:

At the time that the check was introduced, the check was first brought by the — I assume Your Honor means the trial court.

Earl Warren:

Yes I do.

Milton Pollack:

The check was brought into court and marked for identification by the prosecutor, and there was a witness on the stand, Roth, and they asked Roth, could Mr. Stryker examine this man preliminarily with respect to the handwriting on this thing and Mr. Stryker then asked five or six or seven questions with respect to the handwriting on the paper, and then he said no objection, and it was marked in evidence, but he was objecting on the ground of handwriting because under Cogen against the United States he had already objected and made unavailable for all purposes in this prosecution and outlawed forever in this case before the trial as this Court says it must be done, the use of Exhibit 61 A and B, and the argument is made that Mr. Stryker was a very experienced lawyer and then said no objection, so he must have been changing his mind and putting it in, well I’ll argue that issue later in a moment, if I may.

The thing that I’m not clear about is why the stamp by the inside of the check told the defense anymore than the stamp on the outside of the check, which was obvious to everybody.

Milton Pollack:

Because there was only one piece of paper taken from Mr. Lawn, and it was taken from him for photostatting purposes.

The piece of paper taken from him for photostatting purposes was the check.

When they photostatted it, they wanted to identify when and how they had gotten that copy.

So the photostatter of the Southern District Court stamped it, made July 15, 1952 the day that Lawn was there and just before the check was handed back to him, the original.

That’s the only exhibit in evidence that has that stamp because no other document was taken from the people, which was photostatted and the original returned to them.

The original here was returned and the only way you could link it was to show that was the thing that was then being photostatted.

Well obviously it must have been photostatted because the Photostat showed that, and it also showed on its face that the Photostat that was used at the trial was introduced before the Grand Jury.

Milton Pollack:

Right sir.

But it was the pink stamp on the inside of the folds that was concealed either by stapling or by being folded over, which was the telltale evidence that this was a copy that had been obtained in the manner described.

Milton Pollack:

There is going to be some talk here about another copy that they obtained at some other time, and I’m not concerned with some other copy, I’m concerned with the one that they put in evidence, and all I’m concerned with proving to Your Honors is that the piece of paper that went into evidence was the piece of paper that the Grand Jury got from Lawn on July 15, 1952, the Photostat that they made at that time from the original before they handed back the original under the process of the subpoena.

Well I would suppose that would be obvious and the fact that it was marked Grand Jury exhibit.

Milton Pollack:

Yeah, but the Grand Jury — that didn’t taint it, that didn’t necessarily taint it.

Why not?

Milton Pollack:

Because they could have conceivably, as a matter of speculation gotten another copy somewhere else other than from Mr. Lawn, it was a paper that Mr. Lawn produced there that were outlawed.

Charles E. Whittaker:

Then what about these statements, the objection to documents being introduced into evidence (Inaudible)

Milton Pollack:

Mr. Stryker is dead and I have got to go by what I find in the record.

The unconditional statement that there was no objection was not a waiver of the constitutional objection because the constitutional objection had been made and granted in 1952 when it was outlawed.

Mr. Stryker at the time was — in the context in which this was going on, was seeking to launch an inquiry into uses of illegal evidence on the trial, and in the course of one of those inquiries Mr. Stryker said, “I want Your Honor to give me a chance to investigate the use of illegal evidence on this trial and before the Grand Jury.”

And Mr. Stryker said, “I want to make sure that I don’t overlook any constitutional rights that are involved.”

Now I’d like to —

Earl Warren:

What does the Court say to that?

Milton Pollack:

The Court below said that the constitutional error was harmless, that there had been a waiver and that there was no harm whatsoever.

Earl Warren:

No I’m talking about the trial court, what did the trial court just say in response to that statement of Mr. Stryker’s?

Milton Pollack:

Mr. Chief Justice I don’t know which statement we’re talking about.

Earl Warren:

Well you said that Mr. Stryker was trying to exclude tainted evidence and he made this statement which you just quoted a moment ago and he said he didn’t want to overlook anything.

Now what did the Court say in response to that?

Milton Pollack:

The Court said that I haven’t seen any evidence and I have been watching the evidence very carefully for any evidence, anything which indicates that there is only evidence of improper evidence coming into the case.

The Court refused a hearing because here was the prosecutor certifying with these affidavits on all statements and positive assurances and the Court was saying I haven’t seen any evidence of it and Mr. Stryker was saying I want to be sure that nothing unconstitutional gets in here, I’d like to examine this thing, sincerely Your Honors I think that he would try and say I’d like form an inquiry to find out where they got that Grand Jury indictment from and what they are using on the trial and Mr. Stryker said the point was really that we weren’t able to find out, well the Court said, is there anything in this prosecution and Mr. Stryker said I can’t find out, he can’t find out.

Earl Warren:

Did the Court limit him in any way in his examination of witnesses in order to find out if documents were or evidence —

Milton Pollack:

Well the witnesses —

Earl Warren:

— was tainted?

Milton Pollack:

The limitation comes about as a matter of trial experience in this respect.

If you don’t have people who know what went on in the Grand Jury, how can you examine them on cross examinations to determine that they are papers that came from that Grand Jury.

Earl Warren:

Well I’m not challenging Mr. Stryker’s method, I was trying to get the reaction of the court, trail court, to the efforts of Mr. Stryker to establish that there might be tainted evidence.

Milton Pollack:

Mr. Chief Justice the reaction of the trial court started out at the opening gong and January 10, 1955 where the statements that this has all been gone into by Judge Palmieri, I don’t think that there is any reason for us to get into this thing, later on as time went on he said I haven’t seen anything from across my desk, I’m not going to get into these sidelight interesting (Inaudible)

Felix Frankfurter:

Do I understand Mr. Pollack that these matters which Mr. Stryker was dealing in the colloquy we just had between you the Chief Justice, according to which Mr. Stryker wanted to establish that the evidence about to be put in or that had been put in was illicitly obtained, thusfar am I right in saying this?

Milton Pollack:

Yes sir.

Felix Frankfurter:

Now do I understand that those matters had been gone into before the trial started, before judge whoever it was?

Milton Pollack:

Judge Palmieri.

Felix Frankfurter:

In the trial?

Milton Pollack:

No, no.

Felix Frankfurter:

What I want to know is, were these matters, this question that you just read to us of Mr. Stryker —

Milton Pollack:

In the trial.

Felix Frankfurter:

— was in the trial.

Milton Pollack:

In the trial.

Felix Frankfurter:

Now, what I want to know is this, did he raise these questions the first time in the course of the trial or did he re-raise them, having raised them preliminarily as the Nardone requires?

Milton Pollack:

The latter.

Felix Frankfurter:

The latter.

So that he may the attempt to run down the tainted character of this testimony in a separate proceeding, is that right?

Milton Pollack:

That’s right sir.

Felix Frankfurter:

And was he allowed, to pursue the Chief Justice’s question, was he there allowed to establish his case?

Milton Pollack:

No.

Felix Frankfurter:

Well it could be there that the — if that was the first time he raised them he couldn’t have been shut off at the pretrial proceeding, could he?

Milton Pollack:

On September 7th —

Felix Frankfurter:

I want to know the sequence of events.

Milton Pollack:

You see they were seeking to dismiss the 1953 indictment.

Of course they said that, that parallel indictment couldn’t have been attained except by the use of illicit evidence.

Felix Frankfurter:

Very well (Inaudible) establish that?

Milton Pollack:

No.

The judge in that case as I read to Mr. Justice Harlan said I’m accepting the vouchers of a prosecutor that they haven’t used any such stuff before the Grand Jury and that they would —

Felix Frankfurter:

This was before Judge Palmieri?

Milton Pollack:

Yes Your Honor.

Felix Frankfurter:

And it came up and tried before judge —

Milton Pollack:

Walsh.

Felix Frankfurter:

Walsh.

Milton Pollack:

Walsh.

Felix Frankfurter:

Now did Mr. Stryker re-raise the question?

Milton Pollack:

On the opening day of the trial.

Felix Frankfurter:

And he was shut off on a theory that, that had been settled before Judge Palmieri, is that the course of events?

Milton Pollack:

Yes Your Honor and then he independently later on said in the course of the trial one, two, three, four or fives times, I’d like to get into this question and get this inquiry going and he wasn’t permitted to do so.

Felix Frankfurter:

Gravamen of your objection that he was shut off from proving it before Judge Palmieri.

Wasn’t Judge Walsh right in saying this has been gone in?

Milton Pollack:

No the gravamen of my objection is that they used illicit proof on the trial.

Felix Frankfurter:

I understand that — I understand that, but the gravamen was the mode of establishing that fact.

Your argument is not Judge Walsh did isn’t already been gone into, he was right about that, on the very purpose of the proceeding is not to have the trial stopped or interrupted, while your objection is that Judge Palmieri didn’t let him do it, is that right?

Milton Pollack:

That’s right.

Felix Frankfurter:

All right.

Milton Pollack:

Judge Palmieri didn’t let him do it.

Now I’d like to turn to this —

William O. Douglas:

(Inaudible)

Milton Pollack:

No, no appeal.

I’m not sure they can appeal in that, but there was no appeal in any event.

Now, here we have this situation developing on the trial and when we get down to the summation of this hopelessly weak case against Lawn, where the adversaries were described by the prosecutor, that Lubben was a perjurer and black marketeer and practically anything else you want to talk about, he admitted many other crimes and Roth the other government witness.

I think I brought out 15 or 20 of his crimes.

He is under indictment now for a lot, he pleaded guilty to ten.

I believe he has admitted about ten more, he can go to jail for 200 years.

Lawn by the way as far as the record showed by a government witness was — I mean he was regarded as a very good character, an excellent lawyer and his capacity as an associate was (Inaudible).

He was raised in Long Branch and had a good reputation as a young lawyer and citizen.

He was the former chief of the Criminal Division of the United States Attorneys’ Office in New Jersey.

And seeing his case going out the window, under the impact of Mr. Stryker’s summation, this prosecutor stepped into the breach with the following.

He said I vouch for Lubben.

The government put Lubben on the stand because they thought Lubben could be vouched for.

I vouch for Roth also, I vouch for them, and I will explain precisely why I do in just a moment, but I vouch for them.

When I say I, I am referring to the District Attorney’s office, and I merely represent them.

We vouch for them because we think they are telling the truth.

And then again Lubben, about Lubben he says I think he told the truth.

He was standing before that jury and guaranteeing the guilt of this defendant and he didn’t have a chance from that point on.

Here was this man representing the great United States saying to this jury, I have knowledge on the basis of which you can rely on me, none of the things in evidence, but you can take my word for it.

As a proper prosecutor, these people are telling the truth, and then as though a little fearful that he had overdone the thing and he said if you have any doubts about Roth and Lubben, you can’t deny the evidence, here is the check, and about the check he kept on saying all the way down the line here is a piece of paper, here is a check, Lawn got a lot of money out of this, he must have been doing something to get it, you heard about his 15,000 legal fee.

Felix Frankfurter:

Is this check (Inaudible)

Milton Pollack:

That’s the outbound check.

Felix Frankfurter:

Is that the check which you claim is tainted and should been excluded?

Milton Pollack:

Right sir.

Felix Frankfurter:

And is that the check which if the Court of Appeals and what I look at, the Court of Appeals — as to which the Court of Appeals says, it’s error, it’s harmless error.

Milton Pollack:

That’s right.

Felix Frankfurter:

So that a check on which the prosecutor relied as heavily as this, a conviction becomes harmless error (Inaudible)

Milton Pollack:

That’s right sir.

Well the Court of Appeals said that it was harmless error because the government had another copy of this check from an untainted source in its possession, was that the basis of it?

Milton Pollack:

Yes, but there was —

And not the basis that —

Milton Pollack:

But the record didn’t talk about it.

Felix Frankfurter:

But that’s a different problem.

Charles E. Whittaker:

Doesn’t that arise in this way (Inaudible) arises upon the government contention that was no objection to the introduction of this check in evidence, once the objection was oppressed away.

Then on appeal, you having discovered that this – there was a photostatic copy of the check and you could use (Inaudible) you sought then to condemn that (Inaudible)

Milton Pollack:

Within the record.

Charles E. Whittaker:

Within the record.

The Court of appeals should notice it.

Milton Pollack:

That’s right.

Charles E. Whittaker:

And then meet that matter which was brought up for the first time, the government then made reference to the fact that you voluntarily or Mr. Lawn voluntarily had given them earlier as photostatic copy of the same check.

Milton Pollack:

That’s a sad way in which to proceed after 27 affidavits and six open court vouches, that they have examined everything and there is nothing wrong and if Mr. Stryker and Mr. Lawn were not entitled to rely on those vouchers and there was an advertent mistake, then, and it appears plain in the record, I don’t see how the Court of Appeals could conceivably have said that there was any way over that constitutional matter once it has been established by Judge Goddard.

Felix Frankfurter:

Mr. Pollack, there are nine of us and the counsel (Inaudible), there are nine of us, but I just like to speak for the only one I can.

I should like you to and also Mr. Fisher to bear in mind (Inaudible) saying this.

If there was in this case a conviction on the basis of a check which should not have been — which was improperly admitted and which was one of main case in the argument in procuring conviction and that was established to the satisfaction of the Court of Appeals, the one I’d like to know what answer there is to that error, if a error it was, that the government could have introduced a very piece of evidence but didn’t or Mr. Stryker having that as an important point raised it.

Now this case is so full of points that it is like buck shot that could all over the lot, but if you can even establish that at least one member of the court (Inaudible) at least one member of the court will be greatly persuaded.

Milton Pollack:

There is no question whatsoever that this was a piece of paper that was ruled out.

There is no question whatsoever from the contract in which Mr. Stryker says that he had not objection, that he wasn’t giving up a single constitutional right, he was addressing himself to a subject matter that the court allowed him to examine preliminarily, the handwriting.

There isn’t any question whatever and the Solicitor General now says that the whole thing was a sorry, they call it inadvertent mistake of the prosecutor.

Well that’s enough, that’s constitutional error.

Felix Frankfurter:

Maybe you — and one more thing, do I understand correctly because I well may not, I haven’t read this record, whether he told you – I didn’t even (Inaudible) except very rarely.

Felix Frankfurter:

Do I also understand that the, that although it maybe true, that the government had a copy of this check and could have introduced it, in fact it wasn’t.

Milton Pollack:

That’s right and I deny that they had an untainted copy there.

Felix Frankfurter:

Well I don’t care about it.

Milton Pollack:

All right.

Felix Frankfurter:

They – (Inaudible)

Milton Pollack:

Right.

Now Mr. Stryker didn’t make an objection to this — to this thing which I said to the Circuit Court, to my mind offended my senses of ethics as to how a prosecutor should sum up especially against a fringe defendant about vouching for him and calling in the government and calling in the whole district attorney’s office and calling his own credibility to guarantee this man’s guilt because he knew these crooks were telling the truth against him.

Now any objection by Mr. Stryker to that, as any trial knows would simply accentuate and embed the point, an objection would have been useless.

If trespass had occurred and the error was obvious and there was no correction from a judge who proceeded, that really helped the government unwittingly and underscoring the point by refusing to charge the testimony of government witness is not to be any — dealt with on any federal level and the testimony of anybody else, that’s at record 2762.

The use of tainted proof has poisoned the world of this prosection that’s full of mistakes.

A recent mistake is the Solicitor General’s effort here to bring in before you an evidence question on some substitute, which I am not going to talk about, I hope he talks about and explains why at this level he has brought before this Court matter that was no part of the record to pull that there was a pre-trial waiver with respect to the check.

Confusion and not proof of crime explains Lawn’s conviction.

The case has been a deplorable prosecution operating by mistakes.

I leave the other points to my brief and if I have two or three minutes left in my time, I might save them for reply.

Felix Frankfurter:

I wondered if you could use, if you could use your (Inaudible) whether you could use your time to better preface than to comment on the summary that Judge Clark made.

After all this case comes here, I think been tried and the conviction sustained before a judge whom I one have a great respect in a unanimous Court of Appeals.

I wonder if you try and better use your time and to comment on Judge Clark’s summary in his opinion on page 29 of his opinion and your petition of certiorari as for Lawn although he did partake, one by one of his statement.

Milton Pollack:

I have endeavored in my briefs to show that none of those statements can be documented from the record and that all of those statements go outside the record and that Lawn did not plan and Lawn did not do the thing and I rest Lawn’s case on the line by line, word by word analysis of Judge Clark’s opinion and ask the government to document if they can do it.

Felix Frankfurter:

You have done that in your main brief.

Milton Pollack:

Yes, Your Honor.

Felix Frankfurter:

All right.

Earl Warren:

Mr. Fisher.

Roger D. Fisher:

Mr. Chief Justice, may it please the Court.

I must state at the outset that I disagree with counsel’s summary of the evidence and disagree with his statement as to holding and decisions below.

I regret this Court will have to fit into the record and decide which one of us is right and I hope to show that on some points at least the government stands correct, I have no choice, this versus the overall fact.

This is one of the – a petitioner with together with the two petitioners in the next case to be argued convicted in a common trial of one of the most vicious and largest criminal tax evasions known to the government.

There was the — they were engaged in black market sugar operations and candy and corn syrup.

During the one year which we are here concerned, he admitted tax liability, belatedly admitted to be sure with over a half-a-million dollars against that some $17000 and put to the total amount the government received.

The conspiracy involved a bold scheme setting up corporations withdrawing the funds, falsifying the record, destroying the record, threatening the lives of potential witnesses against him, running the corporation through dealership where Mr. Lawn was sought to have influence in New Jersey, and then saying there were no funds left by the time the returns were sought.

As per Mr. Lawn, he was a former chief to criminal division in United States Attorney Office in New Jersey.

Roger D. Fisher:

He was on the payroll of somewhere between a $1000 and $1500 a month with his office next to that of Mr. Giglio, the head of the enterprise.

Lawn participated in the critical meeting in the September ’46 when Giglio stated that he was not interested in making a lot of money to become a big taxpayer.

They can do something quick and he outlined the scheme of setting up the corporation, drawing the funds off by false entries and then dissolving the corporation without paying the tax.

Lawn has been instrumental as the direct testimony of the accountant who was there for meeting who is state evidence in this case, testified for the government as well as one of his partners I might say who testified for the government, Lawn was instrumental in setting up the corporations and then we get around to the times —

Tom C. Clark:

(Inaudible) when you say he was instrumental in setting up the corporation —

Roger D. Fisher:

That’s right, his name did not —

Harold Burton:

That in itself you don’t rely on the —

Roger D. Fisher:

If you —

Tom C. Clark:

I mean just by set up —

Roger D. Fisher:

Not by account.

If you sit in a meeting where you clearly announced the scheme to setup corporations for the purpose of evading taxes, you then are instrumental in setting up the corporation, the corporation then evade taxes, you suggest the receiverships in New Jersey which the testimony said, Lawn suggested it, prior —

Tom C. Clark:

Whose testimony?

Roger D. Fisher:

Testimony of, I believe it was Roth testified that Lawn suggested the receiverships in New Jersey.

He thought it will be better to have in New Jersey where he came from than it would be to have it in New York.

Tom C. Clark:

You did have a testimony there in connection with that trail?

Roger D. Fisher:

Yes we did.

Tom C. Clark:

That he was present at a meeting where they plan to setup a corporation to evade taxes was discussed.

Roger D. Fisher:

Correct Your Honor.

Tom C. Clark:

He did it.

Roger D. Fisher:

That’s correct Your Honor.

Tom C. Clark:

Did he testify about that?

Roger D. Fisher:

He did not take the stand.

I might say that —

Tom C. Clark:

(Inaudible) various corporations suggested there were organized by him?

Roger D. Fisher:

He — the testimony by the accountant that he was instrumental in setting up a group of corporations following that meeting.

Felix Frankfurter:

Was the incorporation or corporation Mr. Pollack said that the corporation to make sugar out of something.

Roger D. Fisher:

Sugar out of waste product, there were groups of corporations, the leading is the American Brands Corporation one of the corporate whose taxes were here involved as being evaded.

The taxpayers are Lawn, Giglio and the American Brands Corporation taxes will have some — several hundred thousand dollars of taxes were not paid.

In September —

Felix Frankfurter:

Was that to just make sugar out of waste product?

Roger D. Fisher:

One of the other Agar International I believe or one of the subsidiary corporations —

Felix Frankfurter:

You have suggested it but do I incur that that was a sham front or a difference here as an instrument of the pay here.

Roger D. Fisher:

No I do not suggest.

Felix Frankfurter:

This was a bona fide incorporation (Inaudible) of validity.

Roger D. Fisher:

There was a candy company of validity that during — sugar rationing last on black market deal as well as their normal candy business —

Felix Frankfurter:

(Inaudible) I am going outside this record, but not — Mr. David Lubben is he a government witness?

Roger D. Fisher:

Yes, he was.

Felix Frankfurter:

Isn’t that he is now — in another case before the government in which he is involved.

Roger D. Fisher:

Yes there is.

Felix Frankfurter:

And he is just a fellow whose property was guaranteed by the District Attorney.

Roger D. Fisher:

I will come to that, yes it was.

Felix Frankfurter:

All right.

Roger D. Fisher:

The scheme of evasion was primarily through keep the government from knowing that the income was earned until the access had been decreed.

Mr. Lawn signed in September ’47 when all tax returns of both individuals and all the corporations involved were late, he signed a request for extension of time in which to pay.

This contrary to what Mr. Pollack said this shows that he knew there were taxes owing, he knew they had not been paid.

I say that the extension of time was based on false consolidation of the corporation which one could surmise, they knew they were not going to be paid.

During the same week in which all these tax returns were filed, all of them late in September 1947, Lawn suggested or participated, to be more precise, in a meeting at which the question of Mr. Giglio’s house was concerned.

Lawn suggested that it’d be agreed that if the house were sold to the accountant Mr. Roth, this would keep the government from getting the house.

The closing then took place in Lawn’s office.

Now that the — as Mr. Pollack has pointed out there were 3,000 pages of transcript in this case.

I have not gotten time to go through the hundreds of references.

I have not checked his list, only spot checked it, and spot check indicated two citations that were not included.

So I — maybe all, they know the all the time — they were not important ones, I have not checked in detail.

I might say one of the critical ways in which petitioner finds the evidence insufficient against him is this statement that the jury could not have considered evidence as to the 15th of September 1947.

And in his brief, I must to turn to this because I — it’s fairly important and I believe counsel (Inaudible).

On page 67 of main brief in number nine, Lawn states the conspiracy to conceal necessarily ended also with the filing of the tax return and the prosecutor so conceded.

I ask the Court to the check the reference at page 2890 where the prosecutor says that the conspiracy culminated in the filing of the tax return, that it reached its higher point, did not end.

The next page, page 69, turning over to petitioner’s brief, starting about the middle of the page, to be connected with the conspiracy, any such alleged concealment through the New Jersey receivership would have to antedate September 12, 15, 1947 when the returns were filed, the judge so charged.

In my view that is incorrect.

The instruction of the Court was that they must find the assets were concealed when the tax was due.

Roger D. Fisher:

That is there must have been a tax owing at the time they were concealed, not had been concealed prior to the time the tax was owing.

In that way petitioner has eliminated the test of the evidence showing that he arranged for the — in that Roth would give false testimony in the New Jersey receivership proceeding.

Now that’s briefly some of the evidences petitioner Lawn, he is a fringe defendant in the sense that it makes the half-a-million dollar or so that the other two defendants did and fringe also he was not.

He was trying to keep his purse clean apparently.

And I wouldn’t be surprised if it was he who suggested that new file eventually, returns showing, disclosing most of his income and hope to avoid criminal prosecution.

Hugo L. Black:

(Inaudible)

Roger D. Fisher:

Page 67.

Hugo L. Black:

67.

Roger D. Fisher:

Of the brief in number nine, it’s in the middle — the end of the first paragraph before the italics, towards the left.

The principal issues here relate to this checking stub, Exhibit 61 A, and 61 B, and the second question is whether petitioner was afforded a fair opportunity to prove his case — the government case against him was based upon tainted evidence, those seem to be the major contentions.

There’s a preliminary one as to the record before this Court.

And I just touched on the record briefly, in the trial record there was no objection taken.

Of course the entire 1952 proceeding Judge Goddard, Grand Jury minutes were not before the jury, they were not in evidence.

At the Court of Appeals the proceedings from the appeals from Judge Goddard’s dismissal of indictment, the entire record, the Grand Jury minutes and that was offered at the Court of Appeals as part of this record to be joined, and that was in first page one of the record, states the counsel proposed to move on the argument that this appeal the appellants will move the Court to consider the record in the prior case as part of the record in this case.

Earl Warren:

Well Mr. Fisher, if you are going to talk about this check, would you mind starting from the very beginning of this check and just pace it through, right through to the Court of Appeals, if you can do that briefly (Inaudible)

Roger D. Fisher:

I think it might, yes.

In 1945 the Tavern Fruit Juice Company, a partnership consisting of Giglio and Livorsi gave petitioner a check for $15,000 and they made an entry on a stub in their books.

Mr. Lawn endorsed the check, canceled by the bank, returned to Tavern Fruit Juice Company record of the partnership where it stayed along with the stub as part of the partnership record from 1945 until 1952.

In 1950 criminal information were filed against the petitioner and others alleging misdemeanor income tax evasion.

About April 1952, petitioner went to Giglio and obtained this check and this stub from the partnership record, petitioner then was under investigation.

In May 1952, and here I’m outside the record, there is a file in our brief as a fact and it is not disputed as a fact in this Court that in May 1952, an occurrence took place in New Jersey, which the government got possession of another — of a photostatic copy of this check.

I believe the counsel will not, certainly will not dispute that.

Felix Frankfurter:

He is not called upon either to dispute or to agree.

Roger D. Fisher:

I’m trying to state the facts that are as the Chief Justice requested Your Honor to go through the chronology.

In July 1952 as the petitioner Lawn received a subpoena in connection with three other, Lubben no — Roth, Giglio and Livorsi to produce any record of the partnership or corporations, there were listed partnerships and corporations.

Lawn responded to that subpoena, produced four pieces of paper, this check, this stub and two other checks not here involved.

He asked if he could retain this, they would give it back to him, they (Inaudible) the government, at the time made copies and gave him, returned the documents themselves to Lawn.

William J. Brennan, Jr.:

(Inaudible) $15,000 —

Roger D. Fisher:

Check.

William J. Brennan, Jr.:

(Inaudible)

Roger D. Fisher:

61, is Exhibit 61 A yes.

William J. Brennan, Jr.:

That’s the one?

Roger D. Fisher:

The stub is Exhibit 61 B, which were both introduced at the trial below.

William J. Brennan, Jr.:

During the month of July of 1952?

Roger D. Fisher:

That’s correct, that’s correct.

William J. Brennan, Jr.:

(Inaudible) at that time.

Roger D. Fisher:

Correct.

William J. Brennan, Jr.:

(Inaudible)

Roger D. Fisher:

That is undisputed.

Earl Warren:

And that is while he was before the Grand Jury or about that time –

Roger D. Fisher:

While he was before the Grand Jury, he came into the Grand Jury, he said, I’ve — the only partnership record he said, and it’s interesting, the only partnership records I have are these four items, he did not indicate there was personal records in any possible way.

William J. Brennan, Jr.:

And that wasn’t submitted under the Grand Jury subpoena (Inaudible)

Roger D. Fisher:

That’s correct.

The dismissal, Judge Goddard dismissed the indictment, there were six indictments brought, Judge Goddard found the procedure of subpoenaing defendants who were named on information and possibly involved in the Grand Jury investigation, requiring him to produce documents, requiring him to testify.

With that he particularly took exception of the fact that Giglio had four times come before the Grand Jury and gone back to the judge in order to produce more records.

I might parenthetically say we read the compulsion as solely directed towards corporate records and the government still believes that, that decision of Judge Goddard was erroneous, but we are not here arguing that.

Felix Frankfurter:

May be (Inaudible)

Roger D. Fisher:

I do not contend to be (Inaudible)

Felix Frankfurter:

Did Lawn appear before Judge Goddard and drawn into (Inaudible) before Judge Goddard.

Roger D. Fisher:

Yes, there was a —

Felix Frankfurter:

And was the document, which he was asked to produce, did the document – let me change that, did he produce this check and the stub in response to the subpoena, to produce before Grand Jury?

Roger D. Fisher:

Yes Your Honor he did.

Felix Frankfurter:

And in the proceeding before Judge Goddard, was the check and the stub among the documents that Judge Goddard considered as improperly to have been elicited?

Roger D. Fisher:

May I answer that question this way?

Before Judge Goddard there was no motion to suppress, there was no motion to outlaw records.

The motion was to dismiss the indictment.

Judge Goddard dismissed the indictment, he found — he said expression of a judge, in the record the opinion is printed, the part I’m referring to in 2871 of the record, fourth volume, but with the expression of a judge, to dismiss an indictment, when you think some things were bad or wrong.

He said he’d dismiss the indictment, he found the procedure of compelling persons who had known the defendant was bad, he found that the (Inaudible) of the documents that were produced by Mr. Giglio by forced compulsion were wrong, he dismissed the indictment.

But then said —

Felix Frankfurter:

Did he include the duties – the compulsion of production in response to (Inaudible), was that before him?

Roger D. Fisher:

The issue of subpoena to all four defendants in the form they were — was not fractured in anyway.

Felix Frankfurter:

But compendiously it was before the —

Roger D. Fisher:

That’s right, the issue was a procedure followed, whether some of the documents, in fact it was are some of these documents on which the indictment based obtained in violation of the Fifth Amendment —

Felix Frankfurter:

What I want to know is did Judge Goddard compendiously or comprehensively pass on the fact that it was improper to issue this subpoena to Lawn and asked him to produce the things which he did produce.

Roger D. Fisher:

I would say no, because the oral record, the four items he produced were records of partnership and it was (Inaudible)

Felix Frankfurter:

(Inaudible) question because unless that even —

Roger D. Fisher:

That issue was not before the Court, my answer is —

Felix Frankfurter:

All I’m saying is, I don’t care at this moment and I have no view at all, if Judge Goddard was wrong in saying that he had no business to call for documents if it was corporate or partner or an unincorporated association, he may have been wrong, I just want to know the external fact.

Did Judge Goddard dismiss this indictment because a) witnesses were summoned who were in fact were then under suspicion or suspected defendants and b) because they were asked to produce documents which in his opinion, right or wrong, the government had no business to call.

Roger D. Fisher:

I’d ask Your Honor to read his opinion and study (Inaudible)

Felix Frankfurter:

All right – (Inaudible)

Roger D. Fisher:

The scope of his opinion was on the procedure that it was bad.

He mentioned the fact that they had not been formally advised of their rights, the great assessment of fact that Mr. Lawn, the former Chief of the Criminal Division of the US Attorneys’ office had been told that had a privilege against self incrimination.

But thinking of as a group, as applied to Lawn, the arguments seemed to have less merit.

But didn’t he direct returns —

Roger D. Fisher:

Yes may I —

— of all the documents that had been subpoenaed from Lawn and these were (Inaudible)

Roger D. Fisher:

He did.

And it was not the check, the disputed check among those documents.

Roger D. Fisher:

He did.

Therefore aren’t you stuck whether the decision was right or wrong with his opinion?

Roger D. Fisher:

Therefore we’re not stuck Your Honor, if Your Honor pleases.

He pointed out it also evident that such evidence is obtained in violation of these rights, maybe ordered suppressed and returned.

And then he goes on and says it is directed that the government, the government directed to return to the respected defendant partnership and personal papers produced by them.

We had already returned to Mr. Lawn the four documents produced by him.

It was argued at this time that the order —

William J. Brennan, Jr.:

(Inaudible)

Roger D. Fisher:

I’m on that right now Your Honor.

At this time it was argued that below the order — I’m wrong not this time, if there was no motion to suppress, no motion, anything; nothing was returned this time, in point of fact it went to — take the chronology alone (Inaudible)

William J. Brennan, Jr.:

He had produced the original, the four papers (Inaudible)

Roger D. Fisher:

That’s correct.

William J. Brennan, Jr.:

And he appears before the Grand Jury.

Roger D. Fisher:

That’s correct.

William J. Brennan, Jr.:

He turns them over I take it to someone in the Grand Jury?

Roger D. Fisher:

He said (Inaudible)

William J. Brennan, Jr.:

Someone got before the Grand Jury.

Roger D. Fisher:

That’s right.

William J. Brennan, Jr.:

Now the four of them were then (Inaudible)

Roger D. Fisher:

He then asked if he could have the documents returned to him.

William J. Brennan, Jr.:

The four of them?

Roger D. Fisher:

Yes four of them, and he said, they first said, well you could give a photostat if you’d like, then they said well maybe we could make Photostats and the originals now, and then the record stops.

William J. Brennan, Jr.:

So you Photostat.

Roger D. Fisher:

That’s correct.

William J. Brennan, Jr.:

And then he gets the originals back.

Roger D. Fisher:

That’s right.

William J. Brennan, Jr.:

And then when this order of Judge Goddard came down, he gave them nothing (Inaudible)

Roger D. Fisher:

No documents of any kind was returned to anybody at this time.

The next stage —

Felix Frankfurter:

May I ask —

Roger D. Fisher:

There was a stay while the case was on appeal, it was stayed by stipulation.

Yes Your Honor.

Felix Frankfurter:

There was — and I’m not sure, I think it was (Inaudible) was this dismissal of the indictment by Judge Goddard appealable?

Roger D. Fisher:

We thought it was.

Felix Frankfurter:

Did you appeal?

Roger D. Fisher:

It was filed too late the Second Circuit held.

Felix Frankfurter:

So if you did appeal —

Roger D. Fisher:

Under the problem of was when the second judgment (Inaudible)

Felix Frankfurter:

The order then — Judge Goddard’s opinion was final as far as the record.

Roger D. Fisher:

That’s correct.

Felix Frankfurter:

You then file a new indictment?

Roger D. Fisher:

A fresh indictment was returned in 1953.

Felix Frankfurter:

Did you raise — did you on the appeal of this conviction before the Court of Appeals, was the decision, around the decision by Judge Goddard open for review before the Court of Appeals and did you raise the correctness of the rulings that he made?

Roger D. Fisher:

In the cases —

Felix Frankfurter:

(Inaudible) were not protected.

Roger D. Fisher:

No we indicated — we thought the ruling was not correct and they argued with greater extent to the Court of Appeals than we do here, that the government is not bound by this.

They argued it can’t be, the Court (Inaudible)

Felix Frankfurter:

What did the Court of Appeals do?

Roger D. Fisher:

Didn’t meet that issue, didn’t have to, they sustained it on the – this one on the waiver on that ground.

Felix Frankfurter:

All right.

Do you think — suppose you are not bound here bound here by the waiver (Inaudible) you can open — you are free here because your views I am not saying you are not (Inaudible)

Roger D. Fisher:

We believe that Judge Goddard did not have, he didn’t – in fact let me say, petitioner’s position is that dismissing the indictment with no motion to suppress, no order to suppress and nothing else, dismissing the indictment in order to return a document, that he held that these documents, in the 80 (Inaudible) of the documents Giglio supplied, the four pieces of paper that Lawn had supplied, each one of those had a personal privilege to each of the four defendants, and we say that no such issue was before it and certainly not involved in that case.

The only issue, there was no motion to suppress, there was no motion to return these.

The only issues argued and litigated was whether the indictment should be dismissed.

Felix Frankfurter:

Just for a reason.

Roger D. Fisher:

For a reason.

Felix Frankfurter:

(Inaudible)

Roger D. Fisher:

Of the procedure, correct.

Now in 1953 a new indictment was returned by a different Grand Jury before which another petitioner has testified.

The petitioner then moved to dismiss this indictment on the ground that it was identical, almost identical to five of the six indictments that had been submitted previously.

This motion was denied.

Now at this time they moved — this was the protective motion to suppress, which they think protects them from making any objections later on in the trial stage and I’d like to turn the same page of the record in which Mr. Pollack was reading, 183 of volume one of the record.

This is Judge Palmieri’s decision denying motion to dismiss the indictment and denying the motion to suppress.

Granting a defendant’s motion to suppress at this time, wouldn’t (Inaudible), down the last paragraph of page 183, would necessitate an investigation of all of the government’s evidence.

Such an investigation would entail a great deal of useless effort, because much of this material, which has been collected since 1948 will not be used at the trial.

Of course if during the course of the trial defendants have reason to believe that illegally obtained material is being or maybe used against them, they can object at that time and it will incumbent upon the trial judge to rule on their objection.

This was the decision which Mr. Pollack relies on, the petitioner here relies on, making it unnecessary to object to trial for illegally obtained evidence there, because they had made their object before Judge Palmieri their motion to suppress.

Earl Warren:

But isn’t that based upon the language which precedes it, in which he says the United States attorney has sworn that this material will not be used in the future course of this case and at this stage of the proceedings that this oath is sufficient.

Roger D. Fisher:

Right.

At this stage of the proceeding —

Earl Warren:

Yes, the oath is sufficient.

Roger D. Fisher:

Right.

Earl Warren:

Granting the defendant’s motion to suppress at this time would necessitate an investigation of all the government’s —

Roger D. Fisher:

The point I make now Your Honor is at this stage of this proceedings, this does not meet the requirement of an objection of an advanced trial, which waives the requirement of making an objection during the trial.

You can’t do that.

The judge said at this stage of the proceeding we haven’t got enough to go into this question.

If it appears at any time that something is coming up, make an objection at that time.

Earl Warren:

But he did have some reliance upon the oath of the District Attorney that they would not be (Inaudible)

Roger D. Fisher:

That’s correct Your Honor, that’s correct.

But the —

Felix Frankfurter:

Does the affidavit mean that US attorney swore that I now swear that we’re not going to use it, but I changed my mind at the trial?

Is that what affidavit means?

Roger D. Fisher:

No, no.

Felix Frankfurter:

Well what did it mean?

Roger D. Fisher:

The affidavit meant that he was not going to use any evidence obtained by the means which Judge Goddard found unconstitutional.

Felix Frankfurter:

Apart from the question of (Inaudible).

I should think to say, if I may bring this to your attention, it seems to me that Judge Palmieri or any other judge could say well now since the US Attorney says I’m not going to use this, there is no point in (Inaudible) at the trail.

To allow that to be done really goes on the face of you thought was undesirable in the Nardone case.

You want to break up the trial by something that a cause for a free trail is the (Inaudible)

Roger D. Fisher:

Please the Court.

The government is investigating this census of criminal tax (Inaudible) for a number of years since 1948.

1954 they asked if they — for an order suppressing all the material which had been brought by subpoena before the Grand Jury and all these include summons.

Judge Palmieri says in view of the fact the government has said they don’t plan to use this stub, they have given us an affidavit, they are not going to use this material.

We think the better procedure, in view of the large volume of material is for you to make an objection at the trial on any item appears (Inaudible) from the source of any item that is not known to you, pick it up at that time.

Now I’ll come to that, because we think the procedure here was far more than required by Nardone, that they were given every opportunity to cross examine throughout the trial and they were given further opportunities to suggest any item which they did not know about and they failed to come forward.

Felix Frankfurter:

Let me ask you this question, in this proceeding which Judge Palmieri said, if the US Attorney in his affidavit disavowed the use of evidence which he subsequently introduced at the trial.

Roger D. Fisher:

It’s — on a construction of the affidavit and a construction of what mean by evidence; I’ll go into that now.

The government had obtained this check, this is an explanation (Inaudible) far outside the record, (Inaudible)

Earl Warren:

Why not stay with the record first and then we’ll go into what was outside the record, wouldn’t that be —

Roger D. Fisher:

All right, on the record —

Earl Warren:

Just stay with the record.

Roger D. Fisher:

Now by the record, you mean the record as documented in the Court of Appeal, but not as documented here.

Felix Frankfurter:

These four volumes isn’t that all we’ve got?

Roger D. Fisher:

Right.

A large amount of that was not before the trial court and was introduced without objection by the government in the Court of Appeals.

Earl Warren:

Let’s take the record as we have got there.

Roger D. Fisher:

No the case.

The government filed affidavits that were not new to trial, any evidence which obtained anyway from the defendant’s testimony of production partnership documents under subpoena in the 1952 Grand Jury.

Back at the trial the government offered in evidence, Exhibit 61 A and 61 B.

It is not of record, on the face of the record that these were copies of the check which petitioner offered to 1952 Grand Jury.

The government concedes that as a fact.

It’s true they are a copy, we have no doubt it, the record does not show that.

William J. Brennan, Jr.:

Why don’t you (Inaudible)

Roger D. Fisher:

The date on the back, there were number of documents before the Grand Jury on that date.

We made copies of other documents which were not before the Grand Jury.

The government’s entire photostating equipment of the US Attorney’s office in New York could have anything produced on that day, without that date stamp on the bank.

William J. Brennan, Jr.:

(Inaudible)

Roger D. Fisher:

It could have been — if it could have gotten other copies of the same check which were offered by government witnesses at the same Grand Jury proceeding.

William J. Brennan, Jr.:

Well you mean by that (Inaudible)

Roger D. Fisher:

Yes indeed Your Honor.

William J. Brennan, Jr.:

(Inaudible)

Roger D. Fisher:

Photostat or like Photostat.

If you go back (Inaudible)

William J. Brennan, Jr.:

(Inaudible)

Roger D. Fisher:

That’s right.

Well I’m not saying it is.

I might say that the —

William J. Brennan, Jr.:

You’re conceding it’s —

Roger D. Fisher:

We’re conceding it’s not.

We’re saying that the record does not establish, the record testimony before the Grand Jury is Mr. Lawn says I have check dated in November 7, 1945 to meet Tavern Fruit Juice Company.

It doesn’t say the amount of the check, doesn’t identify which check was numbered which in the exhibits.

Roger D. Fisher:

Off the record we concede that it’s the check, no doubt about it, but on the record to start checking the record, we think the same rules ought to apply both times, which are undisputed facts outside the record.

Earl Warren:

You wouldn’t mislead the Court about, as to whether it was the same check or not (Inaudible), would you?

Roger D. Fisher:

No I guess not.

Earl Warren:

(Inaudible)

Roger D. Fisher:

It is because —

Earl Warren:

It is the same check.

Roger D. Fisher:

That’s right Your Honor and I might, if I might say at this stage that the outside the record again, petitioner does not acquit a case and says denied that we had another check in the government’s possession prior to the —

Earl Warren:

That’s an entirely different thing then (Inaudible)

Felix Frankfurter:

We don’t know what Mr. Stryker knew about that, do we?

Roger D. Fisher:

No we have no idea —

Felix Frankfurter:

Well then how can he — that shows to be different (Inaudible)

Roger D. Fisher:

Well we don’t know whether Mr. Stryker examined it, knew it was the check that should be obtained before the Grand Jury and then decided not to raise any objection because he knew the government (Inaudible) that check.

Felix Frankfurter:

I say we don’t know whether they can use that rule?

Roger D. Fisher:

No he is not.

Petitioner’s grievance here depends on your assumption, Mr. Stryker did not know.

Felix Frankfurter:

No, it rests on the assumption (Inaudible) stick to the record —

Roger D. Fisher:

Petitioner made no attempt objection.

At the trial when it was offered Mr. Stryker examined the check, asked ten questions about it, details of handwriting, differences of handwriting and then said no objection.

Near the end of the trial Judge Walsh —

Earl Warren:

May I interrupt you to ask this?

Before that colloquy took place, was the issue ever raised by Mr. Stryker, at the trial concerning the admissibility of any of this tainted evidence?

Roger D. Fisher:

Yes, at the trial by that time Stryker had cross examined a number of witnesses as to the date to which they had obtained documents to determine whether it could have been leads and clues for 1952 Grand Jury.

He had repeatedly tried to attack the 1952 and 1953 indictment and was repeatedly stopped from attacking the indictment.

He was not stopped.

He was not stopped from any cross examination, as the source of any item of evidence offered at the trial.

Now near the —

Earl Warren:

You mean as to whether it was use at the Grand Jury?

Roger D. Fisher:

That’s correct.

Earl Warren:

How could he cross examine the witness, as to whether something was used before the Grand jury?

Roger D. Fisher:

Before the —

Earl Warren:

If it was Mr. Lubben for instance, how would Mr. Lubben know whether a document was introduced before the Grand Jury or not?

The prosecutor be the only one who would know that?

Roger D. Fisher:

Depends which Grand Jury you’re taking about.

No, If I may please, the tainted evidence of the 1950 — the so called tainted evidence, the 1952 Grand Jury proceeding.

At the trial, petitioner had in their hand, the original document they had presented, Lawn (Inaudible).

He had the complete testimony, the minutes given to him of that Grand Jury.

He knew what was tainted.

He couldn’t possibly mistake it.

He had one hand the check, the original check for $15,000.

Then along comes the government and introduces 61 A, which was a photostatic copy of that check, in evidence.

Now (Inaudible) well could have said now where did you get that copy of the check, let’s look at it does it come from this, no, in other cases they did.

Now when Roth was on the stand, I’ll refer to one example, page 1322 of the record, Mr. Stryker cross examining Mr. Roth.

Now Mr. Roth is it a fact that you testified before the Grand Jury in July or August of 1952, and skipping down, Mr. Roth, yes that is right, yes sir.

Did you tell the truth before the Grand Jury, yes sir and so forth.

Were you asked (Inaudible) prior to your testimony and were you asked to subpoena duces tecum to produce any and all books and records, then he goes on.

And then he asked on page 1323, this was to show that he was allowed to cross examine as to whether any evidence has been before that Grand Jury.

Stryker says did you produce the papers that you were asked about here in this Court, and that you said you found in some envelope as I recall.

Answer, at that time I did not produce it because I found that just recently on account of moving from the premise.

Time and again he was allowed to cross examine.

We’ve made a number of references in the brief, on 1657 another one asking Mr. Gartner, would you good enough to tell the government when you got the — tell me when the government took from you these documents, and the answer over on the next page is 1950, May 17, 1950.

Earl Warren:

Mr. Fisher may I ask you if there is any place in this record prior to the admission on this check, where Mr. Stryker represented to the Court what his position was as to this illegal entity, the so called tainted evidence and what he was trying to get from the Court by reasoning, by way of an assurance, that it would not be used against his client.

Roger D. Fisher:

He was — I believe it’s before this was introduced certainly they were placed in 1354 taxes and there are other examples of the pre – at the hearing before the trial started, he —

Earl Warren:

Before the same judge or —

Roger D. Fisher:

Before the same judge, before Judge Walsh.

Earl Warren:

Yes.

Roger D. Fisher:

He wished to have the indictment dismissed and he repeated that, had the indictment dismissed because the Grand Jury and that question is in the next case.

It was the Grand Jury, he had a right to go to the Grand Jury.

Petitioner Lawn did not claim the right, does not raise the question here of the right of attacking the indictment in this case.

But that was what Mr. Stryker said, he was not trying to eliminate a particular item of evidence.

At no point in the trial that he object to any item of evidence as being tainted, as possibly being tainted.

Roger D. Fisher:

He wanted to get the whole indictment dismissed.

And that was the trust of his questioning throughout the trial.

There is a great deal of discussion to this issue throughout the trial that Judge was fully aware of his position.

And the Judge repeatedly said if you will show me anything you don’t know where it comes from, I’ll stop the trial.

We’ll have a hearing.

But we are not going to have a hearing unless you can tell me some piece of evidence you want to be questioned.

Felix Frankfurter:

Did he now – here is Mr. Stryker – was Mr. Stryker’s point of view that the second indictment was invulnerable as the first one and for the same reason?

Roger D. Fisher:

It’s – yes that was his view that the second indictment was so similar to the first and it should be dismissed on that ground or at least he should be allowed to see the Grand Jury minutes to determine whether —

Felix Frankfurter:

I thought you just said that he got a copy of the minutes?

Roger D. Fisher:

The ‘52 Grand Jury, the tainted, so called tainted — he was not given and has not there’s statement given, a copy of the 1953 Grand Jury minutes.

Mr. Lawn does not claim —

Felix Frankfurter:

Is this a matter of grace (Inaudible)

Roger D. Fisher:

No Judge Goddard, in a proceeding before Judge Goddard.

Earl Warren:

Mr. Fisher then I understand — as I understand you have no place in this record prior to the admission of this particular check that Mr. Stryker the — Mr. Stryker make any objection to the introduction of evidence on the ground that it was tainted by reason of that first —

Roger D. Fisher:

That is correct, that is correct.

Now to finish up our chronology and see if we can go for argument after that, the Court of Appeals, in the Court Of Appeals, the court asked the counsel to go through the record, asked the defense counsel to go through the record, give them the memorandum, taking the evidence item by item and suggesting any item of evidence that could have come from the grand — 1952 Grand Jury.

This was to see that I have tried to keep out the evidence all of it’s careful if will you please go through and see if you can find any item of evidence that could have — that could have been developed from 1952 Grand Jury.

And he was Lawn, the original check in one hand, the photostatic copy of the check in the other hand and now says, oh I didn’t see the date of photostats were made, that could have no way have affected his doing, this might have been a copy of that check.

It’s — the date on the face of it, the Grand Jury marking was 7/15/52, the photostat couldn’t be made before that.

The date was right here underneath the photostat.

If it been made any date after that petitioner would still object to it having come from the document he produced, it wouldn’t make any difference what date the original copy had.

Well the — in the Court of Appeals the petitioner first raised this point.

Court of Appeals decided that Stryker had waived — the defense counsel had waived any objections at the time of the trial and also referred to the government’s offer to show they had other copies in existence prior to the 1952 Grand Jury proceeding.

Now we believe, and on this record there are four grounds with a three ground – and I pick right on the record, three grounds on which this Court should affirm the Court of Appeals as to these three documents.

First is that on the record there are partnership papers of a partnership of which Lawn was not a member, a former employee, he could at no time have asserted the privilege that was offered to him, they were not tainted as they can in any event, any possible way, these records, the canceled check after it’s cleared to going back to partnership, the stub (Inaudible).

Felix Frankfurter:

This testimony of a technical common law of partnership.

Roger D. Fisher:

There was an agreement yes (Inaudible) that’s right.

Felix Frankfurter:

Well he has never yet said that that doctrine of corporation (Inaudible)

Roger D. Fisher:

I think —

Felix Frankfurter:

I don’t think it has —

Roger D. Fisher:

I suggest that the —

Earl Warren:

Was Lawn a member of the partnership?

Roger D. Fisher:

Lawn was not a member of the partnership.

There were not — my suggestion is that if this Court should hold, Lawn could have had a privilege as it is, you will be saying that a man under investigation may go out and get incriminating papers wherever they are from other people’s business records, get them into his possession and claim privilege.

Felix Frankfurter:

Well, that doesn’t follow it rightfully in his possession, go out and get it, had its implications —

Roger D. Fisher:

He —

Felix Frankfurter:

I just don’t want to take your time but I am not at all clear that the doctrine, that I am very familiar about corporation and unincorporated associations and trade unions applies to partnership

Roger D. Fisher:

In one — three chances on that he went out to get his trial under criminal investigation for use in his investigation.

Felix Frankfurter:

Well if I give somebody else a document which I don’t have to give him but I give it to him and he is asked to produce it, he can say no, it may incriminate him, I should think that is very plain and said clearly whether it doesn’t apply the partnership, well what you are doing, it is simulating partnership to have a very different status in Anglo American law for unincorporated associations.

Roger D. Fisher:

That’s — on that one my suggestion is that a million dollar a year income business with sugar and corn syrup is a business, and that business record of all incorporated associations and the allied.

The second —

Felix Frankfurter:

(Inaudible)

Roger D. Fisher:

Neither, neither court ruled — neither Judge Goddard nor Judge Palmieri ruled these documents were privileged.

The res judicata did not hold, as I discussed before, the privilege applies.

Now our second independent ground is waiver at the trial when Mr. Stryker examined the documents for (Inaudible) more in the record, asked 10 questions about the details of the handwriting and made no objection.

Now this was a photostatic copy of the check, these documents, the check and stub, passed the document that Lawn had produced before the 1952 Grand Jury.

This check as Mr. Pollack has said, the large check, the only large check involved in this case is Lawn.

Now certainly his counsel and petitioner knew what was involved.

It’s inconceivable that they were taken by the surprise or didn’t realize this is the same check that they have produced in the court.

Only conceivable thing is they decided not to make any objection or I think the worst which I would not suggest some other lawyer in the same position might have said, let’s see this go in the record and we’ll have an appeal of the point later on.

We believe that neither party to dispose that covered by the affidavit, covered by the order before.

Both the government and Lawn knew this check had been delivered to the government before, both of them knew the government had copies of this which Lawn had delivered and neither party ever considered this photostat (Inaudible) as being one of the tainted document that’s what got in a wrong briefcase as Mr. Pollack says.

I’d say, that’s the implicit fact of – in fact both prosecutor making these affidavit, introduces, Mr. Stryker continually to objecting to any possibility of tainted evidence wants the check go in, the important check.

Neither of them ever considered that to have been covered by the statement.

It’s only after new counsel hired, retained after the case is in the Court of Appeals who would then go on in the assumption that every copy of this check, this particular photostatic copy was, was covered by the order.

Our third ground is that did not find the memorandum requested by the Trial Court, specifically memorandum to show any exhibit that could have come from the tainted document, petitioner waived any objection which were necessarily had been raised by that memorandum.

He could not have complied the District Court’s requests, repeated requests, three or four times the District Court said, will you give me a memorandum, when he is going through the record any item that could have been obtained, defense counsel did not.

Now they could not have gone through it.

They have check in one hand Exhibit 61(a) here not even suggested the possibility, that this exhibit might have come from that check is a photostatic copy, they had one in one hand, and one in the other.

And the judge asked him repeatedly to suggest any evidence that could have been tainted, any compliance with that request could have produced the objection or given us the opportunity of the District Court to tell this document did not privileged and (Inaudible)