Schaffer v. United States

RESPONDENT:United States
LOCATION:Fleetwood Paving Co.

DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 362 US 511 (1960)
ARGUED: Mar 24, 1960
DECIDED: May 16, 1960

Facts of the case


  • Oral Argument, Part 2: Schaffer v. United States – March 24, 1960 (111)
  • Oral Argument, Karp & Marco v. United States – March 24, 1960 (122)
  • Audio Transcription for Oral Argument, Part 2: Schaffer v. United States – March 24, 1960 (111) in Schaffer v. United States
    Audio Transcription for Oral Argument, Karp & Marco v. United States – March 24, 1960 (122) in Schaffer v. United States

    Audio Transcription for Oral Argument, Part 1: Schaffer v. United States – March 24, 1960 (111) in Schaffer v. United States

    Earl Warren:

    Number 111, Max Schaffer and Norman Schaffer, Petitioner versus United States.

    Mr. Kossman.

    Jacob Kossman:

    Mr. Chief Justice, may it please the Court.

    The first question in here is whether there a conspiracy count has been dismissed by the trial judge on the ground that there was simply no evidence to have sustained in the first place whether it’s proper to continue the joint trial and to submit to the jury the remaining substantive counts against each of the defendants charging each defendant who are the petitioners here with an independent and unrelated effects.

    Felix Frankfurter:

    I am — I am sorry, I tried to call you but I couldn’t.

    Jacob Kossman:

    I am sorry.

    Felix Frankfurter:

    Would you — would you state that the case is — are you — did you state what the case about?

    Jacob Kossman:

    I stated what the first point was.

    I’ll restate it.

    Felix Frankfurter:

    Would you mind doing it again?

    Jacob Kossman:

    I’ll just restate it.

    The first question is this. Can a trial against three defendants who have nothing to do with each other, unrelated and their charge was three similar offenses of which there’s no joint participation —

    Felix Frankfurter:

    You mean three substantive counts against three unrelated defendants?

    Jacob Kossman:

    That is correct, who only in the words of the Court of Appeals who were only brought to trial because there was a — a conspiracy count which was so defective that when the government’s case was over, the trial judge said there is no evidence.

    Outwent the conspiracy count.

    Felix Frankfurter:

    But when the three independent substantive offenses were consolidated for trial, they were consolidated with a conspiracy charge against those three defendants as defendants under the conspiracy indictment, is that it?

    Jacob Kossman:

    That is correct.

    There is also a conspiracy indictment in addition but for the sake of this case that was also thrown out of the Government’s evidence and as the Court of Appeals said it’s not relevant to the discussion because the same principle applies.

    If the conspiracy count is on with the jury, the jury would acquit the conspiracy, would you be here pending that there’s any improper joint or substance to the offenses?

    Jacob Kossman:

    I could not be here on that point.

    We have another point involved.

    I understand that and (Inaudible).

    Jacob Kossman:

    No, no.

    I — I might feel bad.

    I might say that there really was no evidence that it was really worthless and — but on the other hand, I have to go on the assumption that if the trial judge let a conspiracy count go to the jury that at least it was a prima facie case and the people may well of guilty of conspiracy, and just because the jury acquitted, I couldn’t take advantage of that.

    In — in other words — the mere — once there’s enough evidence to justify original joinder.

    What happens in the jury box cannot be used as a basis to come before this Court and say, well, the jury said there wasn’t conspiracy.

    The test is from the beginning, is there — but when it goes to the jury, is there a justification for having three separate people being tried?

    You don’t quarrel with the original joinder of the substantive offenses of the conspiracy now?

    Jacob Kossman:

    I — I can’t quarrel in the sense that —

    In other words, you couldn’t (Inaudible) and made a motion on the face of the indictment that this was an improper joinder.

    Jacob Kossman:

    That is correct — that —

    At what point is the — is the — that the substantive offenses at least become joinable?

    Jacob Kossman:

    Well, only when at — at the end of the Government’s case, the Court, the trial court on its own motion, on its own motion said there’s no evidence of a conspiracy.

    I — I couldn’t stop it.

    In other words the (Inaudible) of the conspiracy indictment must be taken for granted.

    I couldn’t file a motion to dismiss.

    There’s nothing that could be done about it.

    That’s the unfair thing.

    If bracketing individuals with a conspiracy count that is meaningless and in spite of the warnings of course that the Court has from at least 10-15 years has warned prosecutors about the danger of the widespread conspiracy indictments, and in spite of a great deal of respectable authority that it isn’t fair to indict an individual for the substantive count and a conspiracy to commit the substantive count.

    Now, the posture of the case when the conspiracy count was found out to be — does not worth the paper it was written on, is that you have three respondents who didn’t know each other, has nothing to do with each other, and yet their case had to go to the jury.

    That is when I say how to go to the jury as the trial court felt that because he could admonish in cautionary — within cautionary instruction for the jury that there wouldn’t be prejudice.

    William O. Douglas:

    I take it there a denial of the motion for separate trials after the conspiracy count.

    Jacob Kossman:

    If there was a conspiracy count, there was a — and there is this disagreement with the — with the Government.

    I’ll — I’ll put it this way.

    By — actually since there’s a conflict between what the District Attorney — I beg your pardon — with — with what the Solicitor General and what I say happened, and what the record says happened, I’d better refer to the actual record.

    Now on page 12 (a) of the record, it’s an extensive record, it would be on the first part 12 (a), 13 (a).

    I — I might say that no — no question of — was raised in the Court of Appeals that decided this case on the merits.

    No question was ever raised by the District Attorney before the Court of Appeals as to whether there was a motion for severance or a motion to dismiss.

    The Government and their brief takes the position that we were arguing a motion for judgment of acquittal and we did not ask for motion for severance.

    And then in fact they say we never asked for a motion of — for a new trial even where it’s apparent throughout the — the entire record that we asked continually for motion for new trial, filed a motion for new trial.

    But it comes to — on page 12 (a).

    The Court on 12 (a), that’s the trial court said, “Well, I don’t think you may come anywhere close to the standard that you have to prove as to whether there were three separate conspiracies or just a general conspiracy.

    I’d — I’d like to refer back again to page 11 (a).

    Now, I will hear the motions of the defendants but I think it will save me sometime because I am very much concerned about the conspiracy counts if I hear the Government first as to what you think the proof is on both conspiracy counts.

    Well, the — if that the Court heard the Government first, the Court said, “Well, I assume that all defendants move to dismiss —

    Earl Warren:

    Where are you —

    Felix Frankfurter:

    Where are you reading from?

    I don’t follow you.

    Earl Warren:

    I don’t either.

    Jacob Kossman:

    I am reading from page 11 (a) in the record.

    Felix Frankfurter:

    Oh, 11 (a), you said — (Voice overlap)

    Jacob Kossman:

    Oh, I beg your pardon.

    Felix Frankfurter:

    All right.

    Jacob Kossman:

    I beg your pardon.

    Earl Warren:

    Well that’s the middle of the page.

    Felix Frankfurter:

    All right.

    Earl Warren:


    Jacob Kossman:

    At the bottom page.

    Now, I will hear the motions of the defendants, but I think it will save me sometime because I am very much concerned about the conspiracy count.

    If I hear the Government first as to what you think the proof is on both conspiracy counts. Well I admitted what the Government stated and then the Court.

    Well, I assume that all defendants move to dismiss all of the various counts in both indictments at least for the first motion and Court grants the motion with regard to both conspiracy counts.

    Then Mr. Marren (ph) who was the District Attorney asked may I — asked that the Court whether dismissal was based on if they had approved a single conspiracy because of the variance and the Court replied.

    Well, I don’t think you may come anywhere near close to the standard that you have to prove.

    Now, on 12 (a) the — the Court was concerned about the aggregate value.

    Now jumping to 13 (a), Mr. Steinberg in the middle of 13 (a) —

    William O. Douglas:

    Now the aggregate value, that’s your other point.

    Jacob Kossman:

    That’s the other point, yes.

    William O. Douglas:

    That the groups involved or something.

    Jacob Kossman:

    I beg your pardon?

    William O. Douglas:

    That’s after the group of it — aggregate part of the —

    Jacob Kossman:

    That’s the group, the aggregating of whether $5,000 can be —

    William O. Douglas:


    Jacob Kossman:

    So, Mr. Steinberg said, he was the trial counsel there for two of the — one of the defendants.

    If Your Honor please, you have deprived yourself of hearing a great argument on motion.

    Before we get to those points, Your Honor, I would like to address myself to the huge mass of evidence which has been admitted here subject to connection on the conspiracies which Your Honor has dismissed and Your Honor is familiar with the Canella case.

    In the brief, I stated the Canella case which is 157 F.2d, which concerns itself with the motion for new trial due to prejudicial evidence, Kotteakos case, and I suppose that was a shorthand method of referring to the Court to the point that — that he met — he kept to unmake it.

    The Court said, yes, but the mess can be very easily segregated and so the conversation is about — about segregation on page 14 (a).

    It’s not just one sentence.

    Now, the entire page without taking the time of the Court to read it, aside from that there’s evidence here.

    Jacob Kossman:

    And jumping to the fourth paragraph, now, if there were no conspiracy indictment on this case that or from the beginning, and the District Attorney has to take that chance.

    That it was this calculated risk.

    He wants to — he wants to proceed on a conspiracy indictment knowing the risk of showing an indiscriminate evidence hoping it will be connected later but not having succeeded in doing that.

    He took that calculated risk that a great deal would go in which might prejudice, one man and another man.

    Skipping now since he failed the conspiracy test he’s now in the position of having put that evidence then.

    And I seriously feel Your Honor that there’s a very great doubt that no matter what instructions Your Honor conscientiously gives, it would be very difficult to erase that.

    The Court says, “I don’t think so.”

    Now, I suggest that under those circumstances that the — that’s the equivalent of saying, we want a new trial; we want a motion for severance.

    However, even the Government, there should be severance at that point.

    However the government doesn’t make an issue of that the way I have and this, impatiently say, that this wasn’t arguing on a motion for judgment of acquittal.

    We’re strict speaking of — it — it isn’t team in the new informal manner during the course of the Court having decided to fill out the conspiracy counts.

    They said — and they wouldn’t hear about the argument of substantive count.

    At any rate it was brought to the attention of the Court.

    No issue was ever made by the Government either in the Court of Appeals which considered this point on the merits.

    And no issue was ever made on — on the brief, on the merits in this particular point.

    Felix Frankfurter:

    I noticed that in the docket entries on page 2 (a) —

    Jacob Kossman:


    Felix Frankfurter:

    — the defendants renew motion for judgment of acquittal and for a new trial.

    Jacob Kossman:

    That’s correct.

    Felix Frankfurter:

    Decision reserved.

    Jacob Kossman:

    And I believe Your Honor on page — going to page 64 (a) on the same appendix, of course the printer here printed the appendix and then 64 (a) at the bottom part, 64 (a).

    At the bottom part Mr. Steinberg entered in the record if Your Honor please, we would like to renew our motion for an acquittal at the present time and also for a new trial on behalf of all defendants in the Court for a new trial based upon the same reasonings.

    Mr. Steinberg?

    Jacob Kossman:

    Yes sir and the —

    Felix Frankfurter:

    Did they — well, I don’t see what you’ve read and make out case, because you — that a promotion for severance was renewed.

    That’s not such an esoteric motion — motion that one has to imply from words asking for a totally different kind of relief.

    Did you say the Court of Appeals dealt with the problem?

    Jacob Kossman:

    The — the Court of Appeals dealt with the problem on the merits and the question as to who —

    Felix Frankfurter:

    On what merit was that the —

    Jacob Kossman:

    On the merits of —

    Felix Frankfurter:

    That severance should have been granted?

    Jacob Kossman:

    But, no.

    The — the Court of Appeals put it at this way.

    They said, “Were it not for the conspiracy count, this prosecution could never have started but there is still — that there was no prejudice in the case because of the courts have been struck since 50 times.

    Felix Frankfurter:

    Well, I understand.

    There are two questions under Mr. Kossman.

    One, whether a motion for severance is as you think you contest in this case that they made that motion and would have made it in terms.

    I mean that at the most a rarer thing.

    One, whether a motion for severance the granting of which, assuming that the starting point was incontestable and not objectionable as you answered Justice Harlan, whether at a later stage there should have been a severance order.

    And as to that you say the Government says that a motion for severance was not made and I don’t think what you read there as it was made.

    But as I understand it there is another question whether a motion for severance or not in principle to try three people for conspiracy and to try the same three people unrelated to the substantive offenses is intrinsically prejudicial way of conducting a trial.

    And it is that latter question that the Court of Appeals dealt on the merits, isn’t that right?

    Jacob Kossman:


    That is correct.

    Felix Frankfurter:

    Why don’t you proceed to discuss that, instead of trying to find in the record a motion to severance or no motion for severance that was made?

    Jacob Kossman:

    Well —

    William O. Douglas:

    I gather not only there was no motion for severance but there was no motion for mistrial on this count either way, is there?

    Jacob Kossman:

    That — that is correct and — and that I find myself with those exact words.

    That is correct but my quote is reading that page and there two pages without using the magic word “severance”, It simply said “it’s unfair to go ahead” and they quoted the case which was — in other words we were conscious.

    It’s not an afterthought.

    We were conscious of the problem at that particular moment and the Court said “No, I don’t think so.

    I think though I can proceed without any prejudice.”

    And he warned the jury that the —

    Felix Frankfurter:

    Well, that’s in the case, they called, the Court of Appeals dealt with them then.

    Jacob Kossman:

    Then, of course the Court of —

    Felix Frankfurter:

    It was appealed.

    So why do you take your time arguing something that, here by virtue of fact, was adjudicated by the Court of Appeals?

    Jacob Kossman:

    Now, how did the Court of Appeals treat this problem?

    The Court of Appeals stated if it hadn’t been for the conspiracy, you couldn’t have had the joinder.

    But we don’t feel, as quoting the Court of Appeals, we don’t feel that the defendants were prejudiced and the reason why is this.

    Jacob Kossman:

    They said, the trial judge gave over 50 cautionary instructions.

    Now we submit that itself is almost — there’s a right paradox in almost stating that 50 instructions were necessary in order to keep the evidence separated between the — there are really four defendants but treating the petitioners in this case as one or two, the three sets of defendants.

    Number two, the Court of Appeals felt that the evidence in this case, which dramatizes though the lack of a reason why there ever should have been conspiracy count put on here was — was easily separated.

    There was no evidence involving A which involved B or involved C, all separate and distinct, and therefore, less likelihood for confusion.

    Now, we take the position that the jurors cannot carry two sets of mental books and they cannot keep in their head what’s admissible only if the conspiracy is finally printed and what is inadmissible because no conspiracy was printed.

    The court said, now you keep the evidence about one, so that’s one.

    The court — the trial court did everything that was possible under the circumstances.

    They tried request the jury not to mix up the evidence about what one person said about the other.

    We say two things.

    One, we had no business being tried because even if there was no prejudice you just can’t try three people who had nothing to do with each other.

    Felix Frankfurter:

    What you mean is that you can’t pair it out whether there was prejudice.

    Jacob Kossman:

    Even if there —

    Felix Frankfurter:

    You mean you can’t — it’s impossible.

    Your argument on this point is not just — even if there was no prejudice, you mean to say one can’t find out whether there was or wasn’t prejudice.

    Jacob Kossman:

    Well —

    Felix Frankfurter:

    It’s in the hearing in the situation.

    It’s all —

    Jacob Kossman:

    I — I say it’s – it — it goes — even conceding that there would be no prejudice.

    If we had 12 — 12 people who won the — the $64,000 question.

    The smartest individuals in the world but we had 12 IBM machines in there.

    You just can’t try under our system of Government, three people or 30 people together.

    Felix Frankfurter:

    But, why not?

    Jacob Kossman:

    Why not?

    Because they don’t get —

    Felix Frankfurter:

    What this has got to do with our system of Government, why not?

    Jacob Kossman:

    Because under our system of Government we believe that each individual is to be judge for what he himself does and he should not be put in an atmosphere of guilt as a result of what some other people have done.

    Felix Frankfurter:

    You’ve just said that if there were 12 men in that box and could make all the differentiations and it would keep apart to New York together with — had a double set of bookkeeping —

    Jacob Kossman:


    Felix Frankfurter:

    — you assumed even then it wouldn’t be right.

    Jacob Kossman:

    No, well, you can’t —

    Felix Frankfurter:

    That’s an abstract proposition you’re offering, is it?

    Jacob Kossman:

    But — I — I think it’s concrete in the sense that —

    Felix Frankfurter:

    Why is it Concrete?

    You haven’t told us yet why it’s concrete.

    Jacob Kossman:

    Well, the reason why it’s concrete is that law — our Rule 8 (a), Rule 8 (b) does — doesn’t permit that if you — if I will go to statutory basis.

    In other words, Rule 8 (b) which — which recognizes the fundamental right of a man to be left alone and not only to be left alone but what’s more important to be tried alone Rule 8 (b) puts it this way.

    Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transactions or in the same series of acts or transactions constituting the offense or offenses.

    Hugo L. Black:

    Is this — is this your position that under the rule, under Rule 8, if they have not charged a conspiracy, they could not have joined the allegation or indictment, in those substantive counts?

    Jacob Kossman:

    That is correct.

    That’s what the Court of Appeal said.

    Hugo L. Black:

    But when the judge dismissed the conspiracy trial, didn’t let it go to the jury, then you were in the same position as you would have been had the indictment obtained no conspiracy count, it was the judge’s duty as a matter of law irrespective of presence of — of the prejudice to grant your motion.

    Jacob Kossman:

    That is correct.

    Hugo L. Black:

    Is that your position?

    Jacob Kossman:

    That’s correct.

    And it’s one of those things of course that you could never raise before the particular trial.

    Now, why should the Government on — if there were no legal reason, why should the Government on moral grounds have the windfall of inadmissible evidence of one person against another?

    To give an example, there were only 1600 pages of testimony that tried for 17 days, one of the defendants in this case we had this supplier, main Government witness.

    He stated that this one defendant, Karp, told him in the conversation, he says, “I am worried.

    Do you have protection?”

    Well, what change did the — the two other defendants have with — with that statement?

    Another defendant had witnesses from his store.

    These people were three small storekeepers who were buying merchandise, one in West Virginia and one in Massachusetts and one in Lebanon, Pennsylvania.

    One person said the —

    Felix Frankfurter:

    These three defendants was — were West Virginia, Massachusetts and where?

    Jacob Kossman:

    And Lebanon, Pennsylvania.

    Felix Frankfurter:

    Where was this trial?

    Jacob Kossman:

    In New York City, because they came to the supplier in New York City and they worked out of indictment that they caused to be transported.

    Now, one of the defendant’s employee said that — he said, “I can sell this dresses cheaper because they’re stolen.”

    Now our defendant, petitioner here, when he was in the store — by the way this was a public store.

    It wasn’t they’ve — you paid by check.

    Jacob Kossman:

    It wasn’t a secrete proposition involved the — the question that the defendants based their hopes of freedom with the jury was that there was no — they have no knowledge that this was stolen merchandise.

    Now, the defendant when he was found in the place by the agents, the Federal Bureau of Investigation agents, he said, and it wasn’t true, but people do say these things.

    It’s the first time I’ve even been here.

    Now, I’ve certainly been dealt with for the other two people, and especially in order to dramatize the fact that he was there, they darkened the court room and showed moving pictures to prove that he was there.

    Now, I am now taking into the specific elements of — of actual prejudice, but this Court — this Court can’t possibly deal with the thousands and thousands of cases that take place where you have to show actual prejudice.

    This Court has said over and over again in the Grunewald case warned prosecutors to be careful of this wide sweeping conspiracy charges.

    Now of course where people conspire together, they have to take the risk of being tried together.

    It’s true.

    They may suffer but that is part of the — there’s nothing can be done about it.

    They’d have to polish there the trauma of conspiracy.

    Sure, you can go on Rule 14 and give mighty reasons as to why there should be a severance.

    But when people who don’t conspire together, when people who have nothing to do with each other, they should have to sit together, they should have to be — present their three different defenses together to the same jury, so it — that — that’s basic and that’s fundamental to bring you from New York to Washington.

    Suppose three people went to a liquor store in Washington, each one bought liquor.

    It turns out that the liquor is stolen.

    It has been hijacked.

    Should those three people be tried?

    Should 30 people be tried?

    If they go and visit some gambling place and — and there’s raid?

    Should they be tried for conspiracy?

    The question of substantive offense is a different proposition involved where the evidence is so clear.

    Now, the strange thing about this case is — is that the Government, the Government on the one hand, argues here.

    They didn’t argue that in the Court of Appeals.

    There’s been a shift in position.

    They now claim, the Government, that Court of Appeals was wrong.

    And I have an unexpected ally in — in the Court of Appeal’s opinion.

    They say that the Court of Appeals in the Second Circuit was wrong in saying that without the conspiracy, you couldn’t try the case.

    And they’ve worked out a theory that this is really a joint proposition involved.

    And they have quoted 30 cases which to my mind is true, that prove our point because in the cases they — they cite I mean it’s — well take one, they cite H.J.K.

    Theatre as an analogous circumstance, 236 F.2d case, a Second Circuit case.

    That’s what they cite as — as analogous to this.

    Jacob Kossman:

    What happened in that case?

    The — the appellants were indicted in nine indictments, and so — and Rosenblum and one of the corporate defendants were charged with willful attempts to be paid — and evade taxes.

    Joint returns were filed.

    There was a community of interest.

    They were together.

    In those cases when people come under Rule 14 and say, “We wish to have a severance,” that’s the discretionary proposition for this illegal proposition.

    You certainly cannot compare this case and the 30 or 40 other cases that they’ve cited.

    Now, the strange thing is this.

    That of all the cases that the Government cited, for some special reason, maybe perhaps it was an oversight, they did not cite the case of Ingram versus United States, 272 F.2d which was in the reply brief that I filed on Tuesday.

    I only received the Government’s brief last Tuesday. 272 F.2d 567, they did cite a later case 272 F.2d 800 for a point which — when you read that case, it proves our point.

    There was a joinder there, people — community of interest, people involved.

    Now, in the Ingram case —

    Is that Judge Sobeloff’s opinion?

    Jacob Kossman:

    That’s Judge Sobeloff’s opinion.

    Now, Judge Sobeloff quoted I — well, I have this — I — I can only deteriorate by trying to — by trying to quote indirectly so I better quote directly what Judge Sobeloff stated there.

    “Rule 8 (b) specifically states when it is permissible to join defendants in a single indictment and trial.

    It provides that two or more defendants may, italicized, be jointly charged if they are alleged to have participated in the same act or transaction.

    The necessary inference from this is that they may not be jointly indicted or tried in the absence of a common act or transaction.”

    Now Rule 14 confers upon the trial judge’s discretion to relieve from prejudicial joinder.

    Several defendants may have been involved in the same act or transaction but for some reason, one of them may be prejudiced and they appeal to the discretion of the court.

    It’s to avoid injustice in such situation that Rule 14 vests the trial judge with wide discretion, but the joinder of defendants and offenses totally unconnected is prohibited by Rule 8 (b).

    It’s not a matter of discretion.

    Now certainly, that — that speaks for itself and Rule 13 which provides for the consolidation of indictments assumes, assumes that it could have originally been placed in one indictment.

    Well, that’s so much for the — the — for the — the first point.

    It’s fundamental.

    It’s basic.

    And — and since the Government is now defending this on its merits, what might take place if such a — a procedural gimmick is permitted is not too hard to visualize.

    Now it has nothing to do with good faith or bad faith.

    The Government states that I don’t — I don’t prove bad faith even the Court below said I — I don’t prove bad faith and I don’t say it wasn’t bad faith, but I say it just as an individual may be the subject of an illegal search, an illegal arrest that getting the — an illegal detention.

    The Government has to have a — a high moral standard when it comes to — to the administration of criminal justice.

    Jacob Kossman:

    They can’t use evidence that they get in a bad way and say “I beg your pardon, we didn’t mean to do it in a bad way.”

    Well, now the second point is — it really was my third point, but because the Government switched again in this case, it now becomes the second point.

    Now at the trial — at the trial level, the proposition was put forth by the Government and accepted by the trial judge that you can add separate and distinct transactions in order to arrive at the $5,000 valuation.

    The trial judge asked the District Attorney to prepare a charge based on that and a charge was so given.

    We ask that the case be submitted to the jury on this point only if there could be — if they would be aggregated according specifically the to Andrew’s case.

    That was refused.

    Now, at the Court of Appeal level, the Court of Appeals did not decide the issue of separate and distinct.

    They said it is not necessary because here we have a unity of purpose.

    Here, we have an agreement, which we deny there is, but therefore it’s not necessary to decide.

    Now on our petition for certiorari — and as matter of fact the petition for rehearing, we called attention of the Court to the Grunewald point, namely that you cannot convict an individual on a theory first put forth by the Court of Appeals.

    And here, it was particularly aggravating, because here, they’re convicting us on a theory that we had asked to be submitted to the jury which was refused.

    And the Court of Appeals said “We don’t have to decide the other point.

    This is good enough.”

    So we say that under the Grunewald thing, there was no problem in that.

    And I — and the Government knows that because when they came here on the brief that they filed here on the merits, they now say they’re not satisfied by saying the Court of Appeals is wrong the first time; they now say the Court of Appeals is wrong the second time.

    It’s the trial court that’s right.

    They now say that separate transactions can be — and this thing can be aggregated and — and submitted to the jury, therefore, bypassing the Grunewald point, because if that is correct — In other words, if you can charge a person in an indictment, add up $5,000 on a separate and distinct transactions, then Grunewald doesn’t apply, because the Government has a right to come here and they certainly have tried and — and put forth every possible reason to sustain the verdict but —

    It is only if the transactions charged against each defendant that were aggregated, is that right?

    Jacob Kossman:

    That’s correct, each count.

    No transactions involving counts against other defendants be utilized against any other.

    Jacob Kossman:

    That’s right.

    It was horizontal, not vertical.

    Now, the question is whether — whether that is permissible.

    Well, the legislative history is not as clear as it should be and there’s that old saying that when the legislative history is not too clear, one should look at the statute.

    And looking at the statute as I read it, and I must confess every time I read it and reread it and reread it, I — I feel there’s possibilities of other meanings none — none of which fits in with the Government’s interpretation of the statute, which is utterly farfetched and against our whole common law background of criminal law, against the decision in the Andrew’s case which Congress was conscious of when they reenacted the statute and that — and they cite no authority for it.

    They say it and saying it the — they live and go with that.

    Now, what does the act — how does the act read?

    The actual statute reads as follows.

    “Whoever transports 2314 in interstate or foreign commerce any goods where merchandise, securities, or money of the value of 5,000 or more.”

    Now, it doesn’t read, whoever transports in one or more shipments, goods of $5,000.

    Jacob Kossman:

    The whole concept of criminal law is one act, one crime, two acts, two crimes.

    The only — the only variation of that principle is that its found according to a conspiracy or single plan.

    As a matter as fact, if there’s a conspiracy to transport goods of more than $5,000 that doesn’t even have to be a single shipment.

    Value has no place in the — in the conspiracy angle just a mere conspiracy plus an overt act.

    Now, if there hadn’t been the Andrew’s case, if there hadn’t been the discussion of the legislative history, if we were going according to the English system, whoever transports in interstate or foreign commerce goods of the value of $5,000, I would say that it refers to one transportation.

    Yes there’s a definition of value. Value means the aggregate value of all goods, but some — in the particular indictment.

    But to me, that takes care of the situation in case an individual takes various items in the same truckload.

    In other words if someone steals stuff from a — let’s say a ladies dress shop comes forward with the fur coat, feels the fur coat is incomplete by itself and takes shoes, handbags, jewelry, he would not be in a position to say each item — each item is less than 5,000.

    That’s what — if there was no legislative history, I would take that as the — as the — the logical reading whoever transports goods in the value of $5,000 because the concept of retroactive criminal liability, the concept that you can take $10 now and a $1,000 now, in two years, another $1,000 and a year of $1,000 and does not necessary even come to same owner and that — that just doesn’t make sense, bearing in mind that’s a criminal statute.

    Bearing in mind that this is not only a criminal statute but that it’s the type of criminal statute which isn’t so necessary to protect our — the Federal Government and the federal responsibilities, because this is a supplement to the states.

    Each one of these individual if they do something wrong can be punished by the State.

    This is not the type of conspiracy where they’re stealing from the trains or where they’re stealing from the — from the platforms.

    We have — we have a history where Justice Holmes in analyzing the Motor Vehicle Act stated that in his opinion, an airplane was not a — a motor vehicle, and therefore, one could not be charged.

    So, the — the entire concept looking at the statute itself.

    Now going back to the legislative history, what do we find through these expressions?

    In the event that a defendant is charged in the same indictment with two or more violations of this Act, then the aggregate value of all goods shall constitute the value thereof.

    Now, I don’t understand it, because two or more violations, how can it be a violation unless it’s 5,000?

    So if we’re going to adopt the — the well known usage of Congressional English and say by violations they mean infractions, then I can reconcile it, but looking at it literally, two or more violations, they don’t have to aggregate to get the $5,000.

    Now, it may well be —

    Potter Stewart:

    What we’re looking at now are two or more violations?

    Can you put what you’re referring to?

    Jacob Kossman:

    I am referring to — on page 41 of my brief — the brief where I am quoting — where I am quoting the — the — about the legislative histories.

    And as a matter of fact, I see I have the appendix.

    I have the entire histories back there confining myself — perhaps, I should skip from there to (a) 11 where I actually have the exact words of the — of the people preparing the managers, preparing the — that’s (a) 11.

    Section 5 of the present act provides that in the event — in the event the defendant was charged with two or more violations the aggregated value of the property.

    Now the word “violations” can’t mean what it normally means under those circumstances because one violation is good enough without the aggregation.

    Now therefore it may well be that it means infractions.

    It may also well mean that there were several sections under the Act that required no moneys like stealing, transporting dyes or receiving with a value of $500.

    Is it possible that it meant those particular sections?

    Well, in view of the legislative history, I — I couldn’t take that meaning.

    Jacob Kossman:

    I took the meaning that based on other things stated in — in the history namely, (a) 16.

    Let’s say I’ll go to — not so much of (a) 16.

    There’s another section here that they changed the language.

    They now refer to “if a person is charged with a series of violations, then you can aggregate a series of transactions.”

    Now under those circumstances, I took the meaning and I had it ready made for me that that Judge Parker did in the Andrew’s case.

    He said, “Where there’s unity of purpose, where there’s a conspiracy, where there’s a plan, you can add up.”

    And that’s been the law in all our States.

    I quoted two cases, one from California, one from New York.

    I quoted the ALR in the reply brief which adds up thousands of cases and the whole philosophy has been in charging people with grand larceny.

    You can only charge him with grand larceny if you add up the little larcenies but only — only if there’s a — if it’s done pursuant to a plan.

    Now otherwise, without the plan, you — you cannot add up.

    So this statute makes sense, punishes bad people who conspire to transport across the line goods in amount of more — 5,000 or more even without them transporting $1, takes care of statute of limitations which otherwise would be very a difficult proposition.

    In other words, suppose someone in the first four years to $4,000 worth of stuff, stolen stuff.

    The sixth year, the seventh year, he takes $2,000 is there a crime committed?

    This business of retroactively saying that these things that you did in the past are criminal because of what you did three, four, five years later.

    That’s not part of our philosophy and we have to assume that Congress in passing this particular section, this particular statute, which was bitterly contested.

    I mean, they turned down 500, they turned down 1,500, they turned 2,500 and they made it $5,000 a minimum, so it means exactly what it says.

    Now —

    What do you think of the value section means?

    Jacob Kossman:

    Well the value section means — that — the — the value section refers, 2211 refers to the prior history.

    They say that you cannot read 2211 in the present code without going back to the history, and if you go back to the history, then — then you were dealing with the series of violations, series of transactions which — which the legislative history talks about.

    Now, it can be aggregated value just in the indictment because you can have an indictment with ten different counts and each count was spelled over a long period of time then the — there would be the — those problems of statutory limitations involved as well as retroactivity involved.

    Now, the Court of Appeals of the Second Circuit agrees that there must be unity of purpose.

    There must be an agreement, The Government has not got — has not come forth with one case.

    They simply say so but where is one case to prove their point?

    Charles E. Whittaker:

    Does the Court of Appeals (Inaudible)?

    Jacob Kossman:

    The — the Court of Appeals decided and which we disagree and whether we’re right or wrong is unimportant because every case states that in that area of disagreement as to whether there is or there is not a — an agreement that it must be submitted to the jury.

    But the Court of Appeals says we don’t have to decide (Inaudible) because here, there was an agreement.

    Precisely, the question that we have submitted to the — asked the trail court to submit to the jury, is there or is there not an agreement.

    Now, of course, the Government states here that the Court of Appeals was wrong that it isn’t necessary to have an agreement.

    Jacob Kossman:

    But the Court of Appeals in the Second Circuit felt the necessity of — of that there is an agreement.

    Now why do we say there’s no agreement?

    I don’t want to run away from the merits of the situation aside from the Grunewald thing, because here the evidence conclusively shows that there was no agreement.

    How were — how were the — how were the goods purchased?

    The individual came into the place and selected it.

    There was no agreement.

    There was an agreement.

    It’s a play on words.

    There was an agreement on amount of discount, how it would be transported.

    But suppose I will go into a discount store here in Washington and I say “How much will you charge me if I buy this so much?

    How will you ship it?”

    Details of a contemplated transaction is not an agreement to purchase and that’s submitted even in the Court of Appeals where they took — they contemplated and no special amount was involved.

    Now actually what were the mechanics of buying the things?

    Well, here is the way it happened in the prior occasion.

    Earl Warren:

    Where are you?

    Where are you reading?

    Jacob Kossman:

    I am now in page 40 on the record.

    Earl Warren:

    40, 40 (a)?

    Jacob Kossman:

    40 without the (a).

    Earl Warren:

    Oh yes.

    Jacob Kossman:

    This is the Government’s permission.

    Earl Warren:


    Jacob Kossman:

    By the way, the Government seems to be so afraid of the Grunewald point that they don’t even print it in there appendix.

    Now maybe it’s the printer’s mistake or maybe it’s proves the point that they say that you like to forget what hurts you.

    On page 40, well, they would look at that merchandise that is displayed on hand there and berk would show the invoices describing this merchandise.

    If they wanted it, it would go right out, now that refers to prior transactions before this particular individual.

    How did our person’s — Schaffers buy stuff?

    By selection.

    Stuff was even returned so there was no standing agreement and to cap the climax with this — which were — it’s — it’s so unusual I will let the record to speak for itself, but to cap the climax, what does the Government finally say, what does the Government say about this business of you can add up separate and distinct.

    They say — they say here, there was a prearranged agreement which contemplated — I am reading from the Government’s brief on page 50 which contemplated continuous shipments at specified discounts, at specified types of goods.

    Jacob Kossman:

    We read the reference to this fact referring to the Court of Appeals fact that they found that there was an agreement in the opinion below, as merely spelling out that closeness of relationship.

    Now, I don’t know the difference between the spelling out and the finding as a fact.

    The Court of Appeals spelled it out.

    They found it as a fact.

    It wasn’t necessary under that statement to therefore consider the proposition whether it was separate and distinct.

    By finding as a fact, they deprived us of a jury right, to have the jury pass on that, and that is just one more instance of what we truly can say is we did not a get a fair trial in this Court.

    Potter Stewart:

    Mr. Kossman you — you’ve told us several times that the Court of Appeals held that there had to be an agreement in order to aggregate, and I’ve just been glancing over Judge Medina’s opinion beginning on page 104 of the record.

    Could you — could you tell me in what part of that opinion that holding appears?

    Jacob Kossman:

    Page 110.

    Potter Stewart:


    Jacob Kossman:

    Page 110.

    Potter Stewart:

    Yes I am there.

    Jacob Kossman:

    We need not — not the — we need not now decide what ruling should be made in the case where the transactions are truly, “separate and distinct.”

    Much may depend upon the facts of a particular case.

    Here however, it is perfectly clear that the shipments with respect to each appellant were not “separate and distinct.”

    Although the overall conspiracy between the Mr. (Inaudible) and the four appellants was not established.

    The proofs disclosed that each appellant as efficient “Unity for the purpose of the statute.”

    And that — before I forget, that of course is what the Government argued in the Court of Appeals, and I — and I quoted the excerpts from the brief.

    In other words, there was a switch there too, that the District Attorney who tried the case on the — on the separate and distinct upon reflection, very honestly presented to the Court of Appeals which adopted his reasoning that there has to be a claim, not conscious of the fact at that moment that perhaps it has been more forceful in bringing it to the attention of the Court but we did what we could, but it had never been submitted to the jury.

    All goods — and they’re in — now that is — that — that paragraph 110 (a) is “spelling out” by — by the Government today and not fact finding.

    And we submit tha, in essence, they’ve done not only the defendants an injustice, they’ve done the Court of Appeals an injustice, they’ve done the administration of criminal law an injustice by presenting the same arguments under different labels and yet not exposing the weakness of the original argument.

    Felix Frankfurter:

    Before your sit down —

    Jacob Kossman:


    Felix Frankfurter:

    — may I ask you whether the motion — the original motion of severance, was that in writing?

    Jacob Kossman:

    No because it was during the trial.

    Felix Frankfurter:

    But not —

    Jacob Kossman:

    Oh that there’s the — I beg your pardon — I beg your — the original motion of severance was made by one party but not on the grounds that there was a misjoinder of party or a misjoinder of offense.

    He sought relief solely on the ground that because one of the defendants had a criminal record, he didn’t want to be part of that.

    But that was in writing.

    Potter Stewart:

    Under Rule 14.

    Felix Frankfurter:

    Now did he —

    Potter Stewart:

    It’s not under Rule 8.

    Felix Frankfurter:

    It isn’t in the record, is it?

    Jacob Kossman:

    It is in the record.

    Felix Frankfurter:

    It is?

    I’d like to —

    Jacob Kossman:

    What — what is in the —

    Felix Frankfurter:

    You mean it was in this (Inaudible) record?

    Jacob Kossman:

    What is in the record — what is —

    Felix Frankfurter:

    I didn’t mean the fact that it was made but the — the document.

    Is the document printed?

    Jacob Kossman:


    The documented is not printed but the affidavit of the District Attorney opposing the severance is printed on — in the record here just before the — just before the Court’s opinion and that is printed out.

    To add insult a injury, that’s on page 103.

    Felix Frankfurter:

    Could — could you have filed with the clerk the copy of the motion — the original motion of severance?

    Jacob Kossman:

    That’s correct.

    Felix Frankfurter:

    Could — could you file that?

    Jacob Kossman:

    It has been filed.

    Felix Frankfurter:

    Pardon me?

    Jacob Kossman:

    It has been filed.

    Felix Frankfurter:

    It has — it’s here, is it?

    Jacob Kossman:

    It is here.

    Felix Frankfurter:

    All right, then.

    Jacob Kossman:

    Now on page 103 — of course that was before the case started.

    Felix Frankfurter:

    I understand that.

    Jacob Kossman:

    That on page 103, affidavit in our position, motion for severance.

    It was only filed by one person, the defendant Karp.

    Felix Frankfurter:

    That is your — your — you didn’t file one or —

    Jacob Kossman:


    Felix Frankfurter:

    — your client didn’t say, didn’t say they drive together.

    Jacob Kossman:

    I beg your pardon.

    How could he, after all the conspiracy count charged that they conspired in diverse different ways.

    Felix Frankfurter:

    Well I know but —

    Jacob Kossman:

    That’s good enough.

    Their affirmance of —

    Felix Frankfurter:

    I mean — I mean you thought so, but I didn’t suppose that — that the — the Court didn’t discretion even when there is a conspiracy not to drive this up to the offenses — separate offenses together.

    All right.

    Earl Warren:

    We’ll recess now.