Shotwell Mfg. Company v. United States – Oral Argument – October 15, 1962

Media for Shotwell Mfg. Company v. United States

Audio Transcription for Oral Argument – October 11, 1962 in Shotwell Mfg. Company v. United States

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Earl Warren:

Shotwell Manufacturing Company, et al., Petitioners, versus United States.

Mr. Oberdorfer.

Louis F. Oberdorfer:

Mr. Chief Justice, may it please the Court.

I want to discuss in the remaining time available to the Government the defendant’s contention that the individual defendants have been compelled to be witnesses against themselves in violation of the Fifth Amendment to the Constitution.

And that the so-called voluntary disclosure that was made in this — at the administrative stage in this case should not have been admitted in evidence during the trial.

The voluntary disclosure policy of the Internal Revenue Service and the Treasure Department prevailed for a period in the 1940s until 1952.

That policy was a corollary of our self-assessment federal tax system.

That system assumes that when — that the individuals assess themselves that they — when they make out of tax return, they write down on the return the true facts of their liability, their income, and their deductions, and they file it.

And it is from this that their civil liability is established.

The voluntary disclosure policy in the period that we’re discussing developed, as I say, is a corollary of that self-assessment system.

It was understood by the then tax authorities that during World War II because manpower — enforcement manpower were short because of the temptations of war time business and a lot of other things, that people may not and many people may not have met their tax — their civil tax obligations on the return date.

And the voluntary disclosure policy was adopted not to empty the jails and not to forgive people for crime, but to collect the taxes that might have been missed in those circumstances.

And the policy was essentially very simple.

A person who had omitted income or understated his taxable income was told in a general statement that if before an investigation had been begun of his tax return, particular year, he came in and made a voluntary disclosure which presumed in its context and I — we say in its text, that the taxpayer told all the facts were necessary to establish his civil liability and cooperated in the settlement of it that he would, having paid the civil liability and his civil penalties that mightily do, other government would not prosecute him for the crime of tax evasion.

In this case, we have — so far as this voluntary disclosure is concerned, the question A of whether the disclosure was timely, that is whether it was made before an investigation had begun.

And secondly, whether the other terms of the policy were met namely that the taxpayer cooperated with the authorities in achieving what was the basic objective of the policy namely; the establishment and payment of a civil liability.

In the posture of the case now, we do not contend that the so-called statement was untimely.

We acquiesce in Judge Norbye’s finding that the disclosure occurred before an investigation had begun.

We do contend, and this is one of the areas, it’s already been discussed on the facts that not only did these defendants fail to cooperate in the determination of their civil liability.

They didn’t just sit silent and wait to be pursued which might be a questionable case.

They affirmatively and overtly attempted to deceive the authorities as to their civil liability acting under the smoke screen of their so-called voluntary disclosure.

The courts have had, the lower courts have already had cases involving the question of whether a so-called voluntary disclosure made after an investigation had begun, was admissible in evidence.

And the Second Circuit among others has held that an untimely disclosure that is one begun after an investigation, one made after an investigation has begun is not admissible.

And as a matter of fact, the — these cases include cases where the taxpayer was ignorant of the fact that the investigation had begun.

(Inaudible) and the lower courts have nevertheless held that such disclosures are admissible in evidence because the terms of the voluntary disclosure policy which are fairly clear were not met.

And as —

Arthur J. Goldberg:

(Inaudible)

Louis F. Oberdorfer:

Yes Your Honor.

Arthur J. Goldberg:

(Inaudible)

Louis F. Oberdorfer:

Relative.

Arthur J. Goldberg:

I mean, is that (Inaudible)?

You say that — it’s confusing (Inaudible) or is it involved or you require it or you can tell me and tell the very (Inaudible).

I think this is (Inaudible).

I find in other (Inaudible).

Louis F. Oberdorfer:

Mr. Justice Goldberg, there are some additional remarks in that particular speech which I’ll just quote.

“In excusing the man from criminal prosecution, we are merely taking a sensible step to produce the revenue called for by law with the minimum cost of investigation.

The man who makes a voluntary disclosure saves us a lot of money in investigating.

In return, we can spare him a turn in jail.

This is your business from his standpoint and it is good business from the Government’s standpoint.

That’s as far as once your statement itself is concerned.

In addition, this statement of Secretary Schneider on May 25, 1947, which was subsequent to Mr. Wancho’s statement which was before the so-called voluntary disclosure in this case and which is perhaps more authoritative than Mr. Wancho said having described the voluntary disclosure policy, “This presumes of course, that the recipient taxpayer cooperates with agents of the Bureau in determining the true tax liability”.

Arthur J. Goldberg:

Are there any series involving the (Inaudible)?

Louis F. Oberdorfer:

We have to concede, Mr. Justice, that there was never a ruling or a regulation having the formality and the precision of the (Inaudible) state, that certainly true.

But the whole context of the policy, we believe, puts — put any taxpayer on notice that even if he — if he, in this case for example, had come to the Treasury and said, “I know I’ve received some unreported income.

I’m not sure of what I did with it.

Or even, I don’t care to tell you what I did with it.”

That would be one thing.

This is a case where the taxpayer said that he’d received some unreported income.

But then came in affirmatively and attempted to mislead by a series of actions, a series of statements, and by the finding of documents, a filing which almost has the dignity of the filing of an amended return.

And this series of representations, oral representations to Mr. Sauber, the filing of documents to Mr. Lima, and the evidence we have of an attempt to fix the case by a settlement which presumed that the fictitious expenditures had in fact been made.

All those things are not mere passive acquiescence.

Actually, they are acts.

They are steps in the commission of the crime that’s charged here, namely the evasion of taxes from 1945 and 1946.

Mr. Justice Goldberg, you asked the other day about whether the filing of those statements was a crime and the answer that we gave at that time may have suggested merely that it was a separate crime punishable by a separate indictment.

But the fact is, under this — particularly under this Court’s decision in the Beacon Brass case of which is cited in our brief, this particular act or this series of acts are, as I say, steps in the commission of the crime that was tried here.

And you recall that taxpayer’s counsel suggested that this indictment was brought on the eve of the exploration of the statute of limitations.

Under the Beacon Brass case, the statute of limitations began to run all over again when these taxpayers made these fraudulent representations which I say almost have the dignity of an amended return.

There is a question lurking here as to whether or not assuming as we do in this Judge Norbye found that these representations were fraudulent.

You recall it, Judge Norbye found in — I quote his statement on page 1766 of the appendix.

The defendants made a dishonest, faults and fraudulent disclosure because such a disclosure did not conform to the true facts.

Louis F. Oberdorfer:

The so-called voluntary disclosure was concocted for the expressed purpose of misleading the tax official.

Hugo L. Black:

May I ask you, was that —

Louis F. Oberdorfer:

Yes sir.

Hugo L. Black:

— an issue before the original jury that convicted him?

Louis F. Oberdorfer:

Not in those terms, Mr. Justice Black.

The original jury was charged that if it found that the payments received by the defendant corporation were expended for inventory, the jury should acquit the defendants.

And we say that the conviction, the verdict of conviction necessarily reflects a finding of fact by the jury that whatever happened to the money, a large sum of it did not — was not spent in the inventory.

Hugo L. Black:

On the evidence, the — as to the finding of the jury on the evidence then they hold.

Louis F. Oberdorfer:

Yes sir.

Hugo L. Black:

And was this buttressed and the hearing before Judge Norbye was referenced to this crucial point in the trial of the case?

Louis F. Oberdorfer:

By buttressed, there was — the matter was not referred back to the jury.

Hugo L. Black:

Was there new evidence?

Louis F. Oberdorfer:

There was — there was a —

Hugo L. Black:

New evidence to prove the Government’s side of that issue, wasn’t it?

Louis F. Oberdorfer:

There was additional — there was evidence that proved not only that the funds were not expanded for inventory.

There was evidence which Judge Norbye found in support of his conclusion, his finding of fact that the money which had been represented to have been spent for inventory actually was taken out of the corporation by the individual defendants.

Hugo L. Black:

Was that an issue in the original trial?

Louis F. Oberdorfer:

That was not established that they were — although, that — there was evidence to that effect at the original trial.

Hugo L. Black:

And it was relevant, was it not?

Louis F. Oberdorfer:

Not necessary to the verdict, no sir.

It was not necessary to the verdict that the money found its way into the individual’s pockets.

Hugo L. Black:

The evidence of time and it was relevant, was it not?

Louis F. Oberdorfer:

The timeliness was not an issue before the jury as I recall it sir, no sir.

John M. Harlan II:

The whole issue is (Inaudible)?

Louis F. Oberdorfer:

Well, I would say, Mr. Justice Harlan, that this Court’s previous opinion and decision and disposition of the case confirmed what the — in effect, confirmed what the lower courts had done namely, tried this issue of admissibility to the judge.

The — as I recall it, the defendants requested in their original motions to suppress that the matter be tried to the judge.

And this proceeding that is — followed this Court’s opinion, namely, the second suppression hearing is in effect a continuation of the original suppression hearing before the judge.

Hugo L. Black:

But they — one of the crucial issues in that case was whether they had decided to follow the Government by this alleged report of that limit.

Louis F. Oberdorfer:

Oh, yes sir they —

Hugo L. Black:

And that Judge Norbye has announced — strengthen that, has he not, about the evidence which was heard a part which he says is based on evidence before the grand jury of which he has now found either to be grossly exaggerated, exonerated of thought.

Louis F. Oberdorfer:

Before the petit juries.

Hugo L. Black:

Yes, before the petit jury.

Louis F. Oberdorfer:

The — if I understand your question, Mr. Justice Black, the — what happened before the jury has not been disturbed at all by the suppression hearing.

Hugo L. Black:

Had not been sup — disturbed —

Louis F. Oberdorfer:

The jury’s verdict —

Hugo L. Black:

— of his right —

Louis F. Oberdorfer:

Sir?

Hugo L. Black:

— finding is the same but how do we know it would have been the same?

How do we know what the jury would have found in the original trial of these defendants if it had this evidence which now has been found that was referenced to the witnessed used against them where Judge Norbye has found that it’s exaggerated or grossly exaggerated?

How can we know what their verdict could’ve been?

Louis F. Oberdorfer:

Mr. Justice Black, the finding of Judge Norbye about the dimension of the word exaggeration if I may so, sir, has been exaggerated in turn.

Hugo L. Black:

But my — my question is based on the fact whether it’s exaggerated or false, whether it was — has the judge found peculiar or there’s nothing wrong about it on that witness’ part, whether he just testified wrong.

Louis F. Oberdorfer:

Well —

Hugo L. Black:

Why is that not a jury question which should have been sent back in the jury to the trial on a motion on the new trial?

Louis F. Oberdorfer:

I —

Hugo L. Black:

That’s my — that’s my question.

Louis F. Oberdorfer:

Well, I will — I’ll address myself to that.

The — in an income tax — criminal income tax case, the Government does not have the burden of proving the exact amount of the gross income or deductions or taxable income that has been erroneously and fraudulently reported.

It’s enough and if — and this Court has held that, it’s enough to have proof that there was a substantial amount relatively speaking.

Now Judge Norbye’s finding about exaggeration on the part of the witness Lubben is followed by this if I may quote it and then I’ll come back directly to your question, sir.

But the evidence is overwhelmingly clear and I’m quoting from page 1758 of the appendix.

Hugo L. Black:

This is Judge Norbye’s opinion on the motion for new trial on this evidence which was crucial at both sides.

Louis F. Oberdorfer:

This is the motion — this is the supplemental hearing on the motion to suppress.

Earl Warren:

This is on remand.

Louis F. Oberdorfer:

Yes sir.

Earl Warren:

Yes.

Louis F. Oberdorfer:

But the evidence is overwhelmingly clear that not only were substantial sums of black market money paid to Shotwell as premium payments by Lubben during 1944, 1945, and 1946, totaling between $300,000 and $400,000.

But also that the greater part of this so-called black money — market money was appropriated by Cain, Huebner, and Sullivan for their own personal use.

So that what Judge Norbye found — still, even though he suggested that perhaps this witness may have exaggerated and he didn’t challenge his good faith in this respect.

He still found a substantial, a very gross amount of omitted income more than enough to have supported the original verdict of the jury if the evidence had been $300,000 or $400,000 rather than whatever it was at the trial.

Hugo L. Black:

But unless my memory is wrong, the defense put up by the defendant’s was that all — that amount was crucial to them because they claimed that they had spent enough on black market contents to offset.

Was not that the case in the original trial?

Louis F. Oberdorfer:

That was their con — that was their contention and —

Hugo L. Black:

It was submitted to the jury was it not, with that issue, with this evidence as to the amount that had been spent, the Government now brings up evidence to show what exaggerated by the witness so that the jury grant — the petit jury did not get the advantage of that evidence.

Louis F. Oberdorfer:

But we must measure the alleged exaggeration and we find that even exaggerated, there was — Judge Norbye found that the evidence was overwhelmingly clear, that’s his word, that the amount on — admitted — the amounts submitted were between $300,000 and $400,000.

Hugo L. Black:

Well, my problem frankly and that it — what it was before.

Who’s been this (Voice Overlap) on trial for his life or his liberty whether the amount was overwhelmingly (Inaudible) — to this extent or to that extent?

Louis F. Oberdorfer:

Well, we — we —

Hugo L. Black:

(Inaudible) of the judge.

Louis F. Oberdorfer:

We say —

Hugo L. Black:

And can that — in that view, (Inaudible) anymore by remanding a case by rehearing by a trial judge that it could in the original trial.

Louis F. Oberdorfer:

One further answer, Mr. Justice Black.

We don’t believe that if this additional evidence that was produced at the supplemental hearing had been offered in support of a timely motion for new trial.

Then under the decisions of this Court under the authorities that a new trial would have been justified by that offer for —

Hugo L. Black:

I’m not talking about a new trial.

I’m talking about in the original trial before the jury commands that people are convicted on one, that basis of issue and evidence of witnesses said to be truthful.

As I recall it, the prosecuting attorney vouched for the truthfulness of this particular witness.

That being the case, its remanded by a hearing by the judge to see whether there was anything wrong then he finds that the witness is supposedly exa — or exaggerated it, certain other facts.

Louis F. Oberdorfer:

The —

Hugo L. Black:

This witness that had been said to be so truthful.

Louis F. Oberdorfer:

We — we’ve not and not — the only answer that the — the final answer that I can — that I would give, Your Honor is that the alleged exaggeration was in effect de minimis and it was not material to the result and it would not have supported a motion for a new trial.

Earl Warren:

Mr. Oberdorfer, when the case was here before, the Government files certain affidavits with us and said that the witnesses would so testify if the case went back.

And the Government also said that those cases — that those affidavits would prove perjury on the part of the defendants, the petitioners here.

And the — and also that it would possibly show corruption in the Internal Revenue Department.

Now may I ask you, if Judge Norbye, in this hearing on remand, found that those affidavits had the effect that you represented to — now, you — I mean the Government represented to this Court that they would have, if the Government had an opportunity to have a hearing.

Louis F. Oberdorfer:

But I can’t find the reference Your Honor.

On the — I refer to the Court, Mr. Chief Justice to page 1770 of the appendix.

Earl Warren:

Yes.

Louis F. Oberdorfer:

At the very bottom of the page, Judge Norbye in a — our quoting, on this record in view of the convincing evidence, there must be a finding and I do so find that fraud permeated the showing made by these defendants before me at the original suppression hearing as well in to — as at the trial, in the supplemental hearing.

Earl Warren:

But that isn’t the finding that these affidavits of yours were true.

Earl Warren:

On the contrary, I thought Judge Norbye found that they were not true in very material respects.

Louis F. Oberdorfer:

As I recall it, the only place where — the only one item which — I don’t think that Judge Norbye found that our affidavits were not true.

Earl Warren:

Well, that’s what they point out to you.

I may be mistaken —

Louis F. Oberdorfer:

Yes.

Earl Warren:

— on the record but I thought that if the original hearing and that — and possibly at the trial, one of the crucial questions was whether the defendants have had ever started to make a disclosure to the Government or had ever made any mention of it to the authorities on or before June 21st of this year, I think that the (Voice Overlap) —

Louis F. Oberdorfer:

1948.

But I (Voice Overlap) — the Government 1948, yes sir.

Earl Warren:

— it was.

The defendants claiming that they — that they started making it on January 18th, and the Government contending that it was not made until the 21st of June.

And your affidavits that were here, as I remember them, showed that you have the testimony that would prove that the defendants had committed perjury in asserting that they had started and had informed the Government on January 18th.

And as I understood it, Judge Norbye found that the affidavits that you submitted to us were not true, and that in all probability, the defendants were right in their testimony that they had brought this thing to the attention of the Government before the 21st of June.

And in all probability, it was on the 18th of January, as they said in the course of a train ride from Chicago to some other place.

Louis F. Oberdorfer:

I think Mr. Chief Justice that on the suppression hearing if Judge Norbye reached the conclusion that we were right when we said that it didn’t happen in January —

Earl Warren:

So, it did not happen.

Louis F. Oberdorfer:

Did not happen in January.

Earl Warren:

Yes.

Louis F. Oberdorfer:

That it — did not happen before March 15th.

Earl Warren:

I thought it was June 21st.

Louis F. Oberdorfer:

That it — but they — but Judge Norbye was compelled to conclude that it occurred sometime relatively shortly before June 21st, (Voice Overlap) —

Earl Warren:

I thought he also said and possibly on this ride on January 18th, am I wrong in that?

Louis F. Oberdorfer:

I just —

Earl Warren:

Well, if you know —

Louis F. Oberdorfer:

Yes sir.

Earl Warren:

— the record better than I do, we’ll see it later but —

Louis F. Oberdorfer:

It was —

Earl Warren:

— if I’m wrong on it, why was the (Voice Overlap) wrong —

Louis F. Oberdorfer:

It was — we were both — I think that — I think the complete answer, Mr. Chief Justice is that we were both wrong.

That is, that it didn’t occur in January.

Earl Warren:

But you claimed —

Louis F. Oberdorfer:

And that it —

Earl Warren:

— that there was perjury in being wrong and yours was just exaggeration or a mistake.

Louis F. Oberdorfer:

It was a — the — if the — if Your Honor when you examine Judge Norbye’s discussion of the testimony of Mr. Graflund, he explains that Mr. — when Mr. Graflund’s affidavit was presented here, Mr. Graflund then believed and incidentally subsequently testified as he — as his affidavit indicated he would, as to the date of the episode at Busby’s home.

Graflund denying that the train ride had occurred.

Judge Norbye traces Graflund’s thinking process on this.

Graflund never repudiated his affidavit.

Graflund’s affidavit was traversed by other evidence and he was crossed examined.

And Judge Norbye concluded that Graflund was mistaken in his affidavit and explains how he became mistaken.

Earl Warren:

How he might’ve become —

Louis F. Oberdorfer:

Yes, sir.

Earl Warren:

— mistaken but in that — in — at all events, the affidavits that you gave us here to the effect that the perjury would be shown was not substantiated by Judge Norbye’s theory.

Louis F. Oberdorfer:

Not it — not completely so.

There was the — in other words, there was a — I think I just — I wish I could put my finger right on it but I believe that Judge Norbye agreed with us that this episode of January did not occur in January, it didn’t occur anytime during the winter.

I believe Judge Norbye also —

Earl Warren:

Did he say so?

Louis F. Oberdorfer:

Yes sir, I wish somebody would — if I can put my finger on that finding.

Also Judge — I believe Judge Norbye concluded that the preparation of the material to be submitted did not begin (Voice Overlap) —

Earl Warren:

Well that’s different.

That wasn’t the affidavit that was made here to cause this Court —

Louis F. Oberdorfer:

Again.

Earl Warren:

— to do what it did.

The thing that caused the Court to do what it did was the fact that you — the Government made certain representations here that the result below on the suppression was arrived at because the defendants had engaged in perjury and fraud in connection with the testimony.

And you filed affidavits in support of that.

And the case went back.

And as I – as I have read the record, I haven’t read it all, but as I’ve read it, Judge Norbye did not support you insofar as those affidavits were concerned.

He took the whole testimony that he had taken before at the motion on suppression, thrust these things and then he rationalized all of them and said as a package, it showed convincingly that fraud had been performed.

But what I want to know from you is what testimony you brought to this case as a result of those affidavits that were presented to this Court that caused him to change his mind or that caused him to find that conclusively that this was untimely —

Louis F. Oberdorfer:

Well, he didn’t find that it was untimely, Mr. Chief Justice.

We concede that the —

Earl Warren:

Well, that is — that it —

Louis F. Oberdorfer:

— that it was fraudulent.

Earl Warren:

That it was fraudulent.

Louis F. Oberdorfer:

The —

Earl Warren:

Yes.

Louis F. Oberdorfer:

The particular things that I would point to are first of all the testimony of Huebner who was an employee who did not testify at the original trial.

And who, in the supplemental hearing, testified with precision that had not been available before as to the disbursement of this money to the individual defendants.

We also brought in as it was — as we’d advised the Court at the time the case was here before, the testimony relating to the report that had been prepared by revenue Agent Lima which would have settled the case on the assumption that the fictitious expenditures had in fact been incurred.

Earl Warren:

Did the judge make a finding that that was fraudulent or that it was merely a suspicious circumstance?

Louis F. Oberdorfer:

He — it was regard to Lima’s report, he found that Lima had prepared such a report and then had destroyed it —

Earl Warren:

Yes.

Louis F. Oberdorfer:

— which was new.

Earl Warren:

We find that was fraud within the Bureau or as you represented it, it would show?

Louis F. Oberdorfer:

I don’t think that he actually reached the conclusion that that was in so many words fraud.

Earl Warren:

Did the hearing —

Louis F. Oberdorfer:

It was —

Earl Warren:

Did this hearing proved any fraud in the Department of Internal Revenue?

Louis F. Oberdorfer:

Not in those terms, no sir.

Earl Warren:

In any terms?

Louis F. Oberdorfer:

No sir.

It did prove that there had been conversations on the taxpayer’s side.

Earl Warren:

Yes, I didn’t want you — told us about the conversation?

You said possible fraud in this Court using some other authorities where the defendant had been convicted —

Louis F. Oberdorfer:

Yes.

Earl Warren:

— on questionable testimony, gave the same benefit of doubt to the Government and gave you a chance to go back to the Court and use these affidavits.

Now it seems to me, it’s terribly important whether or not, the judge found these affidavits that the Government made to us, word in all essentials true or substantially true.

Louis F. Oberdorfer:

He did not find in so many — in terms that as a matter — as a conclusion, that fraud had been committed in the Internal Revenue Service.

He found specific facts which could have led to that conclusion but he was not — he did not reach the final conclusion that there was in fact fraud.

Arthur J. Goldberg:

How about (Inaudible)?

Louis F. Oberdorfer:

We found that there was a conversation about that but he never found that that had actually been paid to an Internal Revenue Service officer within the corporation.

There had been — there was — there were statements made which could have led to the conclusion that they were fraud but in answer to Chief Justice’s question, I can’t say that the court below found, in fact, that there are, as a conclusion of law, that there was fraud.

Earl Warren:

Mr. Oberdorfer, another thing that I was wondering about.

I noticed from the dates here that it would be five years tomorrow since this Court remanded that case, what is the explanation of that five years in having a simple remand of that kind and it coming back to this Court?

Louis F. Oberdorfer:

Well, part of — part of the explanation is the delay of few months of it, the delay on account of the illness of one of the defendants.

Earl Warren:

Well, a few months since the —

Louis F. Oberdorfer:

That — yes.

Earl Warren:

— we will take that out of five years, that isn’t very important.

Louis F. Oberdorfer:

And part of it, this case was supposed to have been argued here last spring which accounts for a few more months.

Earl Warren:

Takes a few more months out.

Louis F. Oberdorfer:

And other than that, so far as I know, Mr. Chief Justice, it was the grinding process of getting ready for this proceeding and conducting it.

Earl Warren:

For four years —

Louis F. Oberdorfer:

It —

Earl Warren:

Four years, (Voice Overlap) —

Louis F. Oberdorfer:

It should not have take —

Earl Warren:

— year for those things and four years —

Louis F. Oberdorfer:

It should not have —

Earl Warren:

— of having a simple remand on the case of this kind on facts that go back to 1946.

Louis F. Oberdorfer:

Yes, yes.

This is a serious problem.

Earl Warren:

The — I noticed that the indictment was not filed until the last day before the statute of limitations right, six years.

Louis F. Oberdorfer:

Right, correct.

Earl Warren:

And then it took five years from that date to get to this Court, we remand it and it takes five years for it to come back, isn’t that a commentary on a —

Louis F. Oberdorfer:

It is a — it is a factor that has concerned — concerned us.

If Your Honor will look at this record in that view, I think you will observe that the defense has been very active in this matter.

They have made motions.

They are — I have one thing that pops into my mind is a recollection of a proceeding on remand to disqualify Judge Norbye on the proceedings on remand.

There have been number of motions to assign the case to different judges that the case — I don’t think that the Government or the court below is entirely responsible for the time it’s been consumed.

Hugo L. Black:

May I ask you one other question —

Louis F. Oberdorfer:

Yes sir.

Hugo L. Black:

— because of your familiarity with the record.

I want to get this figured.

Hugo L. Black:

I consider this case very important, not merely for these defendants here, but with reference to the right of trial by a jury —

Louis F. Oberdorfer:

Yes.

Hugo L. Black:

— provided by the Constitution.

Who were the chief witnesses against the defendants?

With that reach, the case could not have proceeded?

Louis F. Oberdorfer:

In the original trial, the —

Hugo L. Black:

That’s right.

Louis F. Oberdorfer:

— principal witness was Mr. Lubben.

Hugo L. Black:

Mr. Lubben.

Louis F. Oberdorfer:

And his bookkeepers.

Hugo L. Black:

Who was that?

Louis F. Oberdorfer:

I don’t remember their names now but Mr. — Miss Feldman.

Hugo L. Black:

Why was Mr. Lubben’s testimony so important?

Louis F. Oberdorfer:

Because Mr. Lubben testified — Mr. Lubben was the customer to whom the sales and over-ceiling prices were made and who paid the amounts which the defendants were accused —

Hugo L. Black:

(Inaudible)

Louis F. Oberdorfer:

— of omitting.

Sir?

Hugo L. Black:

Which were not before you.

Louis F. Oberdorfer:

Yes.

Earl Warren:

In other words, he was a black marketeer with these people as you allege them to be.

Louis F. Oberdorfer:

He was their customer and he paid them more than the O.P.A. ceiling for the merchandise —

Hugo L. Black:

Have you testified and his evidence was essential, was it not?

Louis F. Oberdorfer:

Yes sir, I believe so.

Hugo L. Black:

Have you gotten along with that, as I recall it, am I wrong in thinking that the prosecuting attorney told the jury that he vowed for his integrity?

Louis F. Oberdorfer:

I have — I —

Hugo L. Black:

That’s one of the objections they made?

Louis F. Oberdorfer:

I believe that he didn’t make some remark to that —

Hugo L. Black:

Yes, Mr. Lubben is the man whose evidence was sought to be supported by these affidavits, was it not?

Louis F. Oberdorfer:

I don’t — it wasn’t Mr. Lubben’s evidence that was supported by these affidavits, it was — you see, Mr. Lubben didn’t have — was not a witness to the distribution of the money.

This was — so to say, to support his testimony, —

Hugo L. Black:

But the —

Louis F. Oberdorfer:

-– I think isn’t correct, it was to — it was some additional relevant evidence that wasn’t available to him as a witness.

Hugo L. Black:

The importance of his testimony was that he could testify, they had turned in — they had failed to turn in a lot of payments that he had made them on the black market.

Louis F. Oberdorfer:

Yes sir.

Hugo L. Black:

When it went back, for some reason, Judge Norbye found it necessary to go into great detail to find that while he had misstated the evidence or had not directly stated the evidence, or had exaggerated it, or whatever you please, that he found he was not guilty of deliberate perjury but had merely misstated it.

Louis F. Oberdorfer:

Exaggerated.

Hugo L. Black:

Now, suppose that evidence had been presented to the jury, petit jury, would that have been revelant — relevant to attack the credibility of Mr. Lubben?

Louis F. Oberdorfer:

This could have been develop on cross-examination —

Hugo L. Black:

Could have been developed —

Louis F. Oberdorfer:

That’s right.

Hugo L. Black:

— and they didn’t have it, and they didn’t get it until finally the Government brought it out on this motion for rehearing, motion for —

Louis F. Oberdorfer:

Suppress.

Hugo L. Black:

— remand.

So that you have a case where relevant evidence, relevant, exceedingly relevant to the defendants, is not submitted to the jury to support its verdict but submitted to the judge by piecemeal to support its verdict, to support the Government’s case, is that not true?

Louis F. Oberdorfer:

I wish I could be clear about this but it is my impression that the — first of all, that the evidence which caused Judge Norbye to say that Mr. Lubben exaggerated was not available to the Government at the time of the trial.

Hugo L. Black:

Let’s suppose it’s not of the — Let’s suppose its not.

Louis F. Oberdorfer:

Well —

Hugo L. Black:

There you have a case that the Government is getting its verdict to stick on evidence which have been — which had it been offered by the defendant would likely have given him a right for a new trial before a jury with all that evidence in.

Louis F. Oberdorfer:

Well, but —

Hugo L. Black:

Is that not correct?

Louis F. Oberdorfer:

But I don’t concede that this evidence would have if — would have supported a timely — sustained a timely motion for a new trial.

Hugo L. Black:

Well, that — that would — it would — then you’re saying that it’s not strong enough to give a new trial but it is strong enough to let the Government keep a verdict that was obtained by evidence now found to be wrong and by witness who could’ve been at least considerably impeached by the evidence.

Louis F. Oberdorfer:

Well, the — if — the — I come back to the finding of fact that I quoted that even if Lubben was exaggerating there was still — I forget the adverb now, overwhelmingly clear demonstration that the crime had been committed in substantially the way that it had been presented.

Hugo L. Black:

The judge’s finding —

Louis F. Oberdorfer:

Yes.

William J. Brennan, Jr.:

Not as through a jury.

Well Mr. Oberdorfer in that connection, this type that we were discussing with Mr. Christensen and Mr. Howard was the other day maybe with both of this Appendix D at page 85 of the petition, was that, you know, was that an evidence before the petit jury?

Louis F. Oberdorfer:

Yes sir.

William J. Brennan, Jr.:

Now, I noticed at the bottom of that, my arithmetic’s any good, this indicates receipts of roughly around $368,000 collection.

By whom was that offered, by the Government or by the defendants?

Louis F. Oberdorfer:

This was offered by the Government in rebuttal.

William J. Brennan, Jr.:

And where did the Government get it?

Louis F. Oberdorfer:

The Government got it originally when it was handed to Revenue Agent Lima —

William J. Brennan, Jr.:

By whom?

Louis F. Oberdorfer:

— in August of 1948.

William J. Brennan, Jr.:

By whom?

Louis F. Oberdorfer:

By Busby, I — by the auditor for Shotwell, by Busby —

William J. Brennan, Jr.:

On behalf of Shotwell.

Louis F. Oberdorfer:

Yes sir.

William J. Brennan, Jr.:

So that in that sense, in — an admission was it?

Was it offered as an admission by the Court?

Louis F. Oberdorfer:

It was offered as an admission.

William J. Brennan, Jr.:

So I gather —

Louis F. Oberdorfer:

It was offered as rebuttal.

As — in as — but if — I — the answer to your question is yes.

It was offered as an admission (Inaudible).

William J. Brennan, Jr.:

Now, how far at the trial did Lubben’s testimony as to the amount that he paid, Shotwell exceed or was it less than (Voice Overlap) —

Louis F. Oberdorfer:

As I recall it in the proceedings, it — Lubben’s tabulation on page 19 of our brief shows the total.

William J. Brennan, Jr.:

What was the total?

Louis F. Oberdorfer:

Of Lubben, now —

William J. Brennan, Jr.:

No, we’re still talking about the trial.

Louis F. Oberdorfer:

Yes sir.

William J. Brennan, Jr.:

Well, what was his total then?

Louis F. Oberdorfer:

$453, 872.40.

William J. Brennan, Jr.:

So that does exceed Shotwell’s own admission —

Louis F. Oberdorfer:

Yes sir.

William J. Brennan, Jr.:

— to what it received, by roughly what?

Not — by the hundred —

Louis F. Oberdorfer:

A hundred — that a $100,000.

William J. Brennan, Jr.:

Now, I gather your position is that without Lubben’s testimony, their own admission showed what the expense is.

Louis F. Oberdorfer:

They did do a —

William J. Brennan, Jr.:

Unrecorded income of around $368,000.

Louis F. Oberdorfer:

Their own admissions and the — their own admissions plus the testimony of Lubben’s bookkeeper.

Of course, in turn, this is a tangled web.

Part of their admission is based on information that they got from Lubben.

They had conversations with Lubben.

Byron R. White:

The — Mr. Oberdorfer, isn’t it true that at the trial, the jury had the — these two different versions of the amounts that were involved.

The Lubben capitulation and the defendants own capitulation of the amounts which vary to in $75,000, $80,000, $90,000.

Louis F. Oberdorfer:

That’s correct.

And as a matter of fact, this — I’d — I believe this explanation was made at the trial.

It was certainly made here the other day that this admission was prepared by the defendants as they say out of an abundance of caution.

They claimed they exaggerated.

The jury had (Voice Overlap) —

William J. Brennan, Jr.:

But as I gather Mr. Oberdorfer from the Government’s position is that, as far as you know, the petit jury may completely have disbelieved Lubben and have accepted their own admission —

Louis F. Oberdorfer:

That’s —

William J. Brennan, Jr.:

And on the strength of that had made a finding of guilt because by their own admissions there had been these various substantial amounts around the corner.

Louis F. Oberdorfer:

That’s a logical possibility although —

William J. Brennan, Jr.:

This was a general verdict that they put.

Louis F. Oberdorfer:

That’s correct.

But (Voice Overlap) —

Hugo L. Black:

Well, where were their admission?

What did —

Louis F. Oberdorfer:

Sir?

Hugo L. Black:

— they admit?

How much did they admit they receive on the stand?

Louis F. Oberdorfer:

On the stand — let’s see.

The (Inaudible) —

Hugo L. Black:

As I understand it, they refused, they attacked these figures and said they were given to them by Lubben and they didn’t know whether —

Louis F. Oberdorfer:

That’s correct.

Hugo L. Black:

— that’s correct or not.

Louis F. Oberdorfer:

They had — they — it seems to me they admitted somewhere in the neighborhood of a $150,000 out of their own mouths.

That is the testimony.

Hugo L. Black:

And they claimed did they not that they had stamped of black market commodities —

Louis F. Oberdorfer:

Purchases.

Hugo L. Black:

— an amount equal to that $150,000 which they extented.

Louis F. Oberdorfer:

They were — the jury was specifically charged on that issue.

Hugo L. Black:

That’s why — that was the real crucial issue, wasn’t it?

Louis F. Oberdorfer:

The jury was charged on that.

Hugo L. Black:

And that the jury had to rely on evidence of Lubben or evidence he had supplied to them and put in this — put in here in order to reach a conclusion as to whether that defense was good or bad.

Louis F. Oberdorfer:

Correct.

Hugo L. Black:

And he was a very material witness.

Louis F. Oberdorfer:

He was.

Earl Warren:

He —

Arthur J. Goldberg:

(Inaudible)

Earl Warren:

No, go right ahead.

Arthur J. Goldberg:

(Inaudible) the Chief Justice as to where (Inaudible).

You preferred that they disclosed more (Inaudible) — until March 15, 1948, (Inaudible).

And in other words, (Inaudible) 1945 and in the 1946 taxes (Inaudible) — that any concern effort was made by a (Inaudible) has taken up this so-called (Inaudible).

Doesn’t that (Inaudible)?

That there was a file, March 15, about the (Inaudible).

Louis F. Oberdorfer:

I —

Arthur J. Goldberg:

(Inaudible)

Louis F. Oberdorfer:

I had the impression and I’m sorry to be fuzzy on this because I should be precise.

I had the impression that the thing that convinced Judge Norbye that the visit occurred before June 29 — 21st was a exchange of — in the hospital with a Mr. Horgan, this was just a few days before June 21.

And I had the impression that Judge Norbye had found that this was the thing that cinched it for him, that the interview had occurred before June 21.

He couldn’t disbelieve Horgan.

And that — now, I can’t now tell whether that’s what Judge Norbye found or whether that’s just an inference that we draw.

Earl Warren:

Very well.

Louis F. Oberdorfer:

Thank you sir.

Tom C. Clark:

Can I ask you a —

Louis F. Oberdorfer:

Yes.

Tom C. Clark:

— question on that (Inaudible) Johnson, did I understand you say the other day that it has been indicted now?

Louis F. Oberdorfer:

That’s correct.

They are indicted.

Tom C. Clark:

Now, were they indicted subsequent to our remand?

Louis F. Oberdorfer:

I don’t think so.

But I — the — I’m told that this indictment was returned two days after the cert petition was granted.

That’s before the remand.

Tom C. Clark:

— the third petition is one that had these affidavits here.

Louis F. Oberdorfer:

Yes, in the — well, the affidavits were before you at the time you granted the cert petition, yes sir.

Tom C. Clark:

(Inaudible)

Louis F. Oberdorfer:

But they weren’t — you had — there were some affidavits there, was it not?

Did Huebner (Inaudible)?

Tom C. Clark:

The motion on that was another trial?

Louis F. Oberdorfer:

No sir.

(Inaudible) to gather these people?

Louis F. Oberdorfer:

Sauber was the Deputy Commissioner, Johnson was a Revenue Agent.

Earl Warren:

Very well, Mr. Oberdorfer.

Louis F. Oberdorfer:

Thanks.

Earl Warren:

Mr. Christensen.

George B. Christensen:

May it please the Court.

The turn of events this morning of course has been very interesting to us.

I would like however to go back and clear up a couple of things on which I was not as precise as I should have been on questioning the other day.

Mr. Justice Brennan asked me to explain page 86 of these figures.

You will recall when — Mr. Justice, you and I were trying to look at the — that little memo at the foot of 86 added from L records from Lubben records?

William J. Brennan, Jr.:

Yes.

George B. Christensen:

That figure sir is $1633.06.

William J. Brennan, Jr.:

No, not a $163,000 (Voice Overlap) —

George B. Christensen:

No.

It is carried over, you can see it’s carried across the page here and then added in to the total of $29,000 for the year 1944 which is not an issue in the indictment.

William J. Brennan, Jr.:

I see.

George B. Christensen:

Now, you spoke sir, a moment ago of this being received against the defendants as an admission.

It was so received before the petit jury on the trial.

We say without as until out of evidence that it was an admission.

Its reception was upheld by the Court of Appeals on that basis.

In the face of the evidence, number one, that it was procured by a promise of immunity, and number two, that all of the evidence said, “This is what we make out from Lubben’s records, go ahead and assess on any basis you want.”

Now they — there has been some talk this morning of these workpapers and here they are, all stretched up.

Here’s a reproduction of them.

William J. Brennan, Jr.:

May I ask you, Mr. Christensen.

Do I understand all of four sheets were in evidence, is that it?

George B. Christensen:

Yes sir.

William J. Brennan, Jr.:

Yes.

George B. Christensen:

If you look them over carefully, you will see that the big sheets are the supporting sheets from which the so-called recapitulation, a little sheet is made up.

William J. Brennan, Jr.:

On the first (Voice Overlap), yes.

George B. Christensen:

Then you will see also that right across the top of it, they show what this accountant was doing, memo taken from Lubben record as compared with our records.

And they’re turned over to the agent, make out of it what you can.

Here is what it shows.

Now, with respect to the cash account at the bottom, the disbursement section, there was some question about that the other day.

And in our brief, we say that Mr. Sauber never told us to render an account of the disbursements and I was taken a task of them.

And Mr. Howard and I do not read the record alike.

Mr. Howard says that Busby testified to that and that Cain testified to that and that Sullivan did.

I’ve had the benefit of the weekend.

I have reviewed that char — testimony as carefully as I can.

Busby testified at Record 181 that the payouts for raw materials were not deductible, they were immaterial.

Mr. Cain testified to that general effect at 229, 232, 244, 252, 257, 262, 268, 274, and he testified that on the original 1952 suppression hearing before the Government puts Sauber on the stand.

Sauber never testi — never contradicted that, but he said, “Well, get together, you people can’t file an amended return.

You don’t know what’s going on.

Reconstruct an account as best as you can.”

He said, “Well, talk with everybody that knows about the over-ceiling receipts and disbursement.

And that and this I think is important.

George B. Christensen:

I think Sauber was being perfectly alright, a little cute with our people.

He wanted to get these payouts, I assume if he could to lead on to people who might have received them the old informer trying to pull us along.

He said reconstruct the figures for an accurate tax return.

Now that, if it please the Court, gets us into one of the difficulties that clouds everyone’s thinking and it’s so easy to do it.

Mr. Sauber was speaking as of 1948.

And at that time, these payouts were utterly immaterial.

We could not take a deduction for him whether we paid them as constructive dividends for raw materials or anything else.

By the time of trial — by the time of trial in 1952, the law had trade and if we could show we paid out what we took in we had no net income.

Now, there’d been talk about how much this exaggeration was.

Permit me to take the worst figures I can for my clients, the figures which I can backup from Judge Norbye’s findings erroneous though we think some of them are.

Arthur J. Goldberg:

Mr. Christensen, may I ask you what do you (Inaudible)?

George B. Christensen:

No difference.

No difference because —

Arthur J. Goldberg:

What?

George B. Christensen:

— you are talking — you were talking solely of the return to corporation, the Shotwell Manufacturing Company.

It had to account for all of these as income, as gross income.

And until we claim a deduction for it which we couldn’t claim in 1948 either as constructive dividends, couldn’t take that as a deduction of course, nor as a payout for raw materials.

And what Judge Norbye has been saying for years and years and years when you disclose on behalf of a corporation, you’ve also got to tell if the corporation officers personally have been up to any hanky-panky.

He thinks they have.

We say it isn’t so.

But it would not be material to Shotwell’s tax return on the law as of the time of the 1948 disclosure.

Now as to the amount of the exaggeration, it was — the Government claimed, it proved $454,000 by Lubben and his book which Government proof, not our proof, Government proof upon the remanded hearing showed had been doctored.

William J. Brennan, Jr.:

But tell me Mr. Christensen, wasn’t the issue of Lubben’s credibility before the jury in face of his testimony, whether from the books or (Inaudible) or both of $450,000, these papers constructing, reconstructing $368,000 and as I understand it, the testimony the defendants themselves that know — was only a $150,000.

Now, did that confront the jury with an issue of Lubben’s credibility.

George B. Christensen:

Yes.

What it confronted it, it confronted it, Mr. Justice Brennan in this posture with the United State attorney standing up, not merely on the theoretical endorsement of the witness they’re vouching for but striving in front of that jury saying, “I’ll tell you, David Lubben is an honest citizen.

This is so.

And his books are correct.”

Now the Government proof on the remanded hearing shows that Lubben is a confirmed perjurer both Graflund and Huebner testified the instances, $145,000 payment, another sum, $50,000 of where Lubben lied.

This is Government evidence brought out by the Government.

George B. Christensen:

And Government evidence out of the mouth of Huebner, that a Treasury employee, a fellow by the name of Tobias and one time worked for Lubben said, “Yes, I worked with Lubben doctoring up his books and charging items up to Shotwell they never had.”

Hugo L. Black:

Was that evidence have been admissible to impeach Lubben’s credibility —

George B. Christensen:

It would sir.

Hugo L. Black:

— before the petit jury?

George B. Christensen:

It would certainly would, and you were then faced with precisely what you are putting your finger on Mr. Justice Black, when you have admittedly false evidence, exaggerated evidence, not mistaken evidence.

Before a jury, can a judge say, “Well, I think the exaggeration wasn’t enough that jury would have come in and found them guilty anyway.”

And we say there’s nothing in the history of this Court that indicates that our right to jury trial can be violated that much.

In the Mesarosh case and the Communist Party case I think it was a contention was made.

Well, there’s enough valid evidence in the record to support the finding of the Subversive Control Board.

This Court said, “That isn’t — they answered it.

Get that out of the record.

Get detained off and let the tribunal take a fresh look at it.”

Now, the — there was a question in this process of the Graflund conversion to this new story in which the chronology was quite involved the other day.

If I might take a moment to give you that, Graflund testified as a Government witness on the original trial, he was asked, nothing particularly relevant to the disclosure although he had been thoroughly interviewed.

And the notes that were brought out in the remanded hearing showed that.

When the reinvestigation started, he was interviewed by the Treasury on November 8, 1955.

He didn’t tell the story about this of being true.

On May 10, 1956, the prosecutors who had a grand jury working interviewed him at great length.

On August 28, 29, and 30, 1956, he was before the grand jury and he said, “I revealed all of these to Busby on a train in January.

I told them all about it.

That’s the starting place of the disclosure.”

He was very graphic about it.

He put in details that no one had ever heard of.

Now the proceeding is going on here.

The motion to remand was filed in this Court on October 15, 1956 in an amendment form a month later.

And on the 24th of November 1956, we filed our answer to the motion to remand in which we tried to be as vigorous as we could and we were unconvincing to the Court.

We said this is hearsay, all you’ve got is a hearsay affidavit from a Treasury detective and a Government lawyer.

Where are the witnesses?

What are they talking about?

The prosecutors then went back to Mr. Lubben on February 3rd, 1957.

George B. Christensen:

And they made no record of what happened upon that interrogation.

So I assume he didn’t change his testimony.

They went back at him and got him in for another session on February 17, 1957.

And again, they made no notes or record of that one.

So, we must assume that was unsuccessful.

But on February 20, 1957 for the first time, Mr. Lubben said, “Oh” — or Mr. Graflund said, “Oh, it’s a mistake.

I’ve never told this to Busby on the train.

Nothing like that happened.

I went out to see him in July and he was startled to hear there’d been any black market transactions.”

And then several months later on August 17, 1957, his affidavit to that effect was filed here.

That is the chronology of Graflund, its set forth in a chronology attached to our brief.

Hugo L. Black:

What is the materiality of that to the original trial and this?

George B. Christensen:

Well, (Inaudible) —

Hugo L. Black:

The two being with reference to the date.

George B. Christensen:

The materiality of it to the suppression issue Mr. Justice Black, is this.

And it’s very material, it’s crucial in my humble judgment.Because my people have always said, “The reason we made the disclosure was because our tax adviser, our tax accountant, Busby told us to.

We’ve never had any other — never made any other statement as to the genesis of the disclosure.”

And the significance then of the affidavit to you that Graflund or that Busby knew nothing about this until the following July is pre —

Hugo L. Black:

Is that after the investigation started?

George B. Christensen:

Oh, when the — when the —

Hugo L. Black:

When did the investigation of the Government started?

George B. Christensen:

The investigation of the Government never started except as a consequence of this disclosure.

They made no independence —

Hugo L. Black:

When did it start?

George B. Christensen:

It started about — Lima came out on August 1st, but the case had been started in the Chicago office and was delayed —

Hugo L. Black:

When did it start in the Chicago office?

George B. Christensen:

We say it started when we talked to Sauber which was —

Hugo L. Black:

When did the Government say it started at that time, the time of the trial?

Was that — what I’m get — was there are dispute?

Was there an issue before the jury?

Hugo L. Black:

I’m not sure.

George B. Christensen:

No.

Hugo L. Black:

Was there an issue before the jury —

George B. Christensen:

No.

Hugo L. Black:

— this question?

George B. Christensen:

No, there was not.

Hugo L. Black:

Did they report before or after?

George B. Christensen:

No, there was not.

There was not an issue —

Hugo L. Black:

(Voice Overlap)

George B. Christensen:

— before the jury.

There was an issue on the suppression of this evidence obtained by promises of immunity.

This came out on the suppression hearing, on the voluntary disclosure.

Hugo L. Black:

When was the first issue raised with reference to whether the Government received the report before or after it started its investigation?

When did that first become material in the case?

George B. Christensen:

Well, it became material of 1952 when they filed a motion to dismiss and the motion to suppress.

The Government’s theory —

Hugo L. Black:

You mean, since the original trial —

George B. Christensen:

Its —

Hugo L. Black:

During your original indictment?

George B. Christensen:

The original indictment.

Hugo L. Black:

And the Government took the position what, with reference to the report?

George B. Christensen:

Well, it’s so confusing —

Hugo L. Black:

(Voice Overlap)

George B. Christensen:

— that this will take me off on a little different attack.

Hugo L. Black:

Well, (Voice Overlap) —

George B. Christensen:

At that time — at that time, the Government said, it doesn’t make any difference what you did anytime in 1948, the time — your last date of the disclosure was in December 1947.

William J. Brennan, Jr.:

That was on the first suppression hearing, wasn’t it?

George B. Christensen:

Well, it was right through.

It was until after the Court of Appeals decided the case in 1955.

William J. Brennan, Jr.:

Was that the position taken at the trial?

George B. Christensen:

Yes.

William J. Brennan, Jr.:

Was there a testimony on the Government —

George B. Christensen:

The Government —

William J. Brennan, Jr.:

They have at —

George B. Christensen:

There was testimony —

William J. Brennan, Jr.:

So, (Inaudible) on the way (Voice Overlap) —

George B. Christensen:

— you would see a testimony as to what — as to how files tax returns are sent to Washington and what constitutes the initiation of an investigation.

The Government took the unsound position that the timeliness date fell in December of 1947 and that anything my people did after that was not untimely.

They have long since abandoned that position.

William J. Brennan, Jr.:

But that was the position at the trial itself?

George B. Christensen:

Yes sir.

Byron R. White:

Was that an issue before the jury?

George B. Christensen:

No sir.

Byron R. White:

Was not an issue in the trial?

George B. Christensen:

No.

What?

Now, I have got to sit down if it please —

Arthur J. Goldberg:

(Inaudible)

Am I mistaken if the (Inaudible) —

George B. Christensen:

You are not mistaken.

That was the main allegation Mr. Justice Goldberg that was made here.

They tipped their theory upside down and when they came in with these remand proceedings.

Now, they said the timeliness date was June 20 or 21, 1948 and we’re going to show you nothing happened prior to that date.

And that went — that what went back to Judge Norbye and they couldn’t demonstrate it and Judge Nor —

Hugo L. Black:

In other words, you are saying, as I understand it, which — and it’s been a point at which I have been uncertain about what both (Inaudible), you’re saying that when the motion was made here, timeliness was material and that —

George B. Christensen:

Yes —

Hugo L. Black:

— the Government was insisting that it did not have a report made to it by them of the shortage, of the deficiency, on the (Inaudible), the Government had already started this investigation and therefore, it did not come within the terms of the promised immunity of Secretary (Voice Overlap) —

George B. Christensen:

Precisely.

Now, before I sit down and I’ve only scratch the surface of the constitutional doctrine that obtains here.

George B. Christensen:

I’ve only haven’t touch upon the argument that you don’t let confessional material in because it’s false.

According to Dean Wigmore, that’s why you keep it out material obtained by a promise of immunity.

And there is in this case and we think of tremendous importance to the entire country and not peculiar to the facts of this, a question of jury selection procedures.

This record establishes indisputably that the court commissioners elected not a one of the grand jurors, not a one of the petit jurors in this case.

We have challenged the Department time after time show any evidence in this record that Mr. Crux picked out a juror.

Show any evidence that volunteers were lawful at this time.

The jury question is one that cuts under everything here and we think there’s a tremendous importance to the Court.

Earl Warren:

Did you make time of the objection to that?

George B. Christensen:

They say we did not.

We say we did.

We didn’t find out about these facts until the case was pending in this Court that after this Court had set aside the judgments and you will — Mr. Justice Harlan will recall, in your opinion you used the phrase, “Justice is not a one way street”.

With the case reopened to go back to a pretrial suppression of evidence hearing, we said reopen this to let us move to dismiss this indictment on the ground of a new legal grand jury and the verdict on the ground of an illegal petit jury and they say, “We aren’t timely.”

Then we say justice is not a one way street.

In the unusual twist and turn, this case is taken as quickly as we found out that contrary to the presumption that public officials are doing their duty, that crux just wasn’t doing anything except exercise in ceremonial functions, we proved this matter.

And there was a hearing.

It’s in the briefs.

I haven’t the time.

I’m beyond my time as you can see.

But we think the issue is of vital importance to the entire jury system.

Thank you.