SCHAFFER v. UNITED STATES

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Argument of Harris B. Steinberg

Chief Justice Earl Warren: Number 122, Hyman Karp and Benjamin T. Marco, Petitioners, versus United States.

Mr. Steinberg.

Mr. Harris B. Steinberg: Mr. Chief Justice, may it please the Court.

I represent here two of the petitioners who were tried at the same time as Schaffers.

I yielded part of my time to Mr. Kossman because he was treating questions common to both of us.

I now wish to treat something which is in our brief, petitioners Marco and Karp, and that is the deprivation of a fair trial which we claim and sue because of the summation, the improper summation of the District Attorney.

I must confess it was a queer feeling, as I've said here before and hear myself quoted and to hear questions about why I did thus and so at the trial and casting about the reasons -- the only reasons I could think of it would appear would be either an aptitude or deviousness.

And as Mark Twain said, "If it weren't for the honor of the thing, he would just as soon pass it up to mention."

But I have to rest on the record as it is because I didn't make those motions at the time and Your Honors will draw whatever inferences you feel proper.

But in one respect, I did make a motion.

And I made a motion for mistrial at the time of the summation by the District Attorney, had brought to his honor's attention what it felt was an improper statement prejudicial to my client.

And at the trial, I represented only one client.

Here, I represent two because that man from West Virginia just couldn't go on with the case unless I'm willing to take it.

And since there were no conflict of interest and my other client consented I'm here for both.

What he said was an answer to what I said, and in order to put this in proper focus, I must tell you what I said.

And that brings me in a full circle to what the facts are about.

This case involved one where three people, Mario Stracuzza, Anthony Stracuzza and Dorothy Stracuzza were engaged in stealing packages from trucks in the garment district and selling them on a very large scale.

In fact, the largest of the scale was so amazing, it's like the Purloined Letter.

I mean you put it right out in the open and nobody thinks there's anything wrong with it.

They had an office with a name on it, not a telephone and credit bill heads and invoices and a checking account.

They held themselves out as a discount house or a job as outlet on which there are many in the garment area.

They bought about a half million dollars worth of packages a year from these thieves.

They had numerous customers of which these people are only a few.

They kept books of account, they mailed invoices, they were paid by check, and they sent their things out through the railway express, which is the way our people received them.

They were open for business from morning to night where people came in from a street and from recommendations and bought from them.

And the Stracuzzas, who operated in this way for a lengthy period, were all indicted by the Federal Government in three cases, one, for conspiracy and the one you've heard about in the joinder problem, one for another conspiracy, the phrase had posed it, and another where they were in conspiracy with all of the package thieves, dozens of them, drivers of trucks.

And all three cases, Mario and Anthony, two of them, pleaded guilty but their sentences were held over their heads until they should have completed testimony in this case.

Dorothy Stracuzza, who was the wife of Anthony, was not required to plead.

After this plea and after the Stracuzzas had come to the conclusion that the Government had the goods on them, both men said, "We're going to cooperate with the Government."

And they started to talk with the FBI.

After this soul-cleansing operation began and after they had changed their stripes, so to speak, they were both picked up again for more package thefts and indicted in the state courts.

And the District Attorney and the Federal Government hide themselves across the street to make representations to the judge and the prosecutor of the state court that this man, as my witness, placed off, disposed of this case until after we use him in our case.

Chief Justice Earl Warren: Were those alleged --

Mr. Harris B. Steinberg: He was a necessary material witness.

Chief Justice Earl Warren: Were those alleged offenses after they had pleaded guilty in this case?

Mr. Harris B. Steinberg: After they pleaded guilty, after they started cooperating with the Government in this case.

So I deemed that my duty --

Justice William J. Brennan: Do you mean that they were still stealing these things after they do that?

They were still stealing, Your Honor.

They were still stealing.

These things too give -- good to give up --

Justice William J. Brennan: (Voice Overlap) -- because the overhead was so slow.

[Laughter]

Chief Justice Earl Warren: Let me ask you also, Mr. Steinberg, when you're speaking about the openness of their business, keeping books and having hundreds of people come in there, could anybody have gone in there and bought at the same price that these people pay?

Mr. Harris B. Steinberg: The records -- the record is clear, Your Honor.

They had a book of account in evidence, and they weren't all just bills of lading and checks.

There were other evidence -- there were other documents in evidence.

The record is clear that they had many other customers who came in and bought in the same fashion for the same discounts and were -- sold goods of the same nature.

This was a half million dollars worth a year, Your Honor.

Justice Felix Frankfurter: Just as a matter of curiosity, did it appear how long they carried on this kind of business?

Mr. Harris B. Steinberg: I would say they carried on for a considerable period before these defendants here were involved, and I think that appears in the record.

It was a matter of many months, if Your Honor please.

Now, let me come to something the Chief Justice asked me before.

There is not an iota, there is in fact the Government's own witness, principal witness, Tony Stracuzza said, "I never told any of my customers including these, that the stuff was stolen."

So they relied on circumstantial evidence as Mr. Kossman told you.

Now, what was the circumstantial evidence?

You mentioned, Your Honor, these invoices.

I'd like you to look at the invoices.

They were invoices with the tops taken off so you couldn't tell who was the sender.

There were invoices with the consignee scribbled out illegibly so you couldn't tell but you could see an identifying stock number perhaps, the quantity and the price.

Now, a discount house or a job that operates in exactly that way if he's handling the goods of some highly styled conscious manufacturer who wants to sell his goods for $20 or loose cash in the field, he doesn't like a discount house selling those same goods to someone else for $19 or for $18 or $12.

But sometimes you have broken lots, there are a few sizes.

There are undesired colors and in this Jungle at Seventh Avenue, this is a common, accepted widespread practice.

So when you look at the circumstances which were relied upon in this case to fasten circumstantial evidence of guilty knowledge on this man, what do we find?

You find these invoices.

You find various other things but let me tell you what else you find.

You find that Dorothy Stracuzza, the wife under indictment, who worked in the office with her husband and her brother-in-law from morning until night, was the one who prepared the invoices, shall we say, she's any better or worse off than the one who received them?

Either one.

She kept the books.

No one said that my client kept any books.

She got the checks, she mailed out the invoices, and she tore off the labels and she put the tickets on it.

So if there was any invidious inference to be drawn from these circumstances, I submit to Your Honors that that had been in this inference is at least as worthy against Mrs. Stracuzza as against any of these defendants.

Yet what do we find?

Mrs. Stracuzza was never called as a witness, either at the package thieves' trial or in our trial.

And in fact, shortly after our trial and shortly after our sentence, the District Attorney prepared and signed and submitted to the Court nolle prosequi in all the cases against the lady.

And they are set forth in the record here, if Your Honors please, at pages -- I thought I was going to do this with a flourish but I have to look.

At pages 12 -- at page 12 of the record, and what do they say?

They say that Dorothy Stracuzza has admitted assisting her husband in this business but has denied that she had knowledge of the fact that the merchandize handled by her husband was stolen.

The defendant Anthony Stracuzza in his testimony as a witness for the Government stated that his wife Dorothy never knew the extent of the operations.

As a result of that, that representation by the Government shortly after the completion of this trial, shortly after she had not been called or subjected to cross-examination, on that representation, the cases against her were thrown out.

Now, what are the facts that this record discloses?

At this trial, her husband, Tony, was under cross-examination by myself.

I asked him, "Did your wife know that these things were stolen?"

He said no.

And then I confronted him with his testimony at the prior trial where he had sworn under oath that his wife had known all about it, and he said, "Yes, I did testify to that effect."

I said, "What is the truth now?

Is that or is it this?"

He said, "Well, if you press me, I'll have to say she didn't know it."

Well, we left it at that because the truth wasn't in Tony Stracuzza and I wasn't trying to get the truth from him but I was trying to show what a liar he was.

Because for three days, I cross-examined that man to show he was a liar and I elicited the facts that he was a thief for many, many years, that he had a huge quantity of money and property not accountable for by any endeavor that he had ever reported to the income tax people.

That he was a gambler, a loan shark and whatever you will, and he admitted a lot of these cheerfully and in fact boastfully.

I would say that at the end of his cross-examination, he didn't look as cheerful as he did at the beginning.

I don't say that in vainglory of my powers as a cross-examiner, I say it for this reason.

Because we then expected that they would bring Mario around, the other brother for cross-examination.

And the reason Mario was important, was first, because he had testified at the -- at the State's trial and second, the Government had represented to the State District Attorney and the state court judge across the street"Please hold up Mario's sentence because he is a necessary material witness at this trial"

But they never produced him.

Why?

Because they didn't want him cross-examined, because he was the man who went out and bought this stuff from the thieves.

Tony said, "I didn't buy from the thieves, it was Mario."

Mario went out everyday with a pocket full of cash, $1000 to $1500 everyday and came back with packages and dumped them on the desk and Dorothy took the packages apart, stripped the labels off, put tickets on, did all the busy, homely, friendly little things that people do with packaging.

Justice Felix Frankfurter: [Laughs]

Mr. Harris B. Steinberg: But they didn't bring Mario out for cross-examination.

And I say that it was our defense and it was our contention from the opening consistently through the trial right through the summation that there was a hope for a deal, I'll put it as euphemistically as I can, I'll say that the Stracuzzas hoped to be benefited by their change of heart, by their cooperation with the Government.

And the hope was (a), that Tony wouldn't go to jail, (b) that Mario wouldn't go to jail and (c), that Dorothy wouldn't go to jail.

And their hopes were realized to the fullest extent.

Not only were they indicted here in three cases, not only they pleaded guilty in three cases except for Dorothy, but they got suspended sentences and across the street in a state court where the people are cooperative.

And they use that cooperative, in the same sense in which they used it in the Knapp against Schweitzer case in a very friendly sense.

They -- the -- they gave him a suspended sentence too.

So here, you have the three Stracuzzas with their half million dollar yearly business in stolen goods and sold stupendously large scale that would stagger the imagination going off free, scot free because Tony gave his testimony and withstood the cross-examination for three days in a little braggy but he was still there, and they thought it would be the better part avow not to put Mario on and they were gentlemanly enough not to subject Dorothy to him.

In addition, what else did that accomplish?

When Dorothy and Mario were arrested, Dorothy had $900 -- $1900 in cash on her person and Mario had $900 in cash on his person.

And from the previous testimony, it was quite clear that that was a sort of money and the type of money they were using everyday to go out and buy stolen stuff with.

And the Government seized it as evidence and impounded it.

But after they began to cooperate, it was given back to them.

I wanted to cross-examine about that too but I couldn't because he didn't call Mario, they didn't call Dorothy.

Justice John M. Harlan: Was they available to you to call as witnesses?

Mr. Harris B. Steinberg: I ask Your Honor with all seriousness.

Here's a woman under indictment, could I call her?

She is the wife of the man who has pleaded guilty testifying for the Government.

Could I in all practical common sense call her as a witness?

Couldn't she have pleaded the privilege?

She was still under indictment.

Justice John M. Harlan: What I was just asking is the question as to whether she was available?

Mr. Harris B. Steinberg: She was physically in the jurisdiction.

I yelled bloody murder and I say it's the Government's duty to call her.

I said the Government should call her and I have the right to cross-examine her, but they got acute with me.

They said, "No, you have a right to call her."

And I -- I resented that -- that suggestion.

I thought it wasn't fair.

So with this background of facts, we come now to my summation.

And I said in my summation, and it's printed here in the record, for Your Honors to see --

Chief Justice Earl Warren: Before you get to that, what happened to your -- these petitioners?

Mr. Harris B. Steinberg: My petitioners?

Chief Justice Earl Warren: Yes.

What was the setting?

Mr. Harris B. Steinberg: One of them went for four years and $10,000 of a committed fine because 21 years ago, he had been in a bankruptcy swindle and the other one who had a completely clean record went for two years and a $10,000 committed fine and the two Schaffers got a $10,000 committed fine and two years.

Justice William J. Brennan: What's committed fine?

Mr. Harris B. Steinberg: That means that you stay in the clink until you pay it.

You can't get out with a (Inaudible) at a dollar a day.

Chief Justice Earl Warren: Even though you've -- you've served the two years?

Mr. Harris B. Steinberg: Yes, Your Honor.

Justice Charles E. Whittaker: Not unless you can make business, you're in a financial inability to act.

Mr. Harris B. Steinberg: I don't think (Inaudible) release, Your Honor, the way it does in an ordinary fine but if it does, I'm happy to know that.

[Laughter]

At any rate, that's the background of the summation.

The summation went on and it was a cry to the jury, "Where are Dorothy and Mario?

Why aren't they here?"

Now, the Government tenders me a short impingement.

They say that was shoddy trial tactics and that it justified the answer they made to me.

If it does, Your Honors will tell me that.

I don't think it does.

I think that was a proper summation based on the record, based on my duty as a counsel for a man charged of crime and based on this evidence as to the type of people I was cross-examining and it's a type of thing I expected to get from the people who had the right to expect them to bring if they wanted an objective search for the truth in these circumstances.

Justice Potter Stewart: Where in the record does -- what you said and what the prosecuting attorney said up here?

Mr. Harris B. Steinberg: I go with my papers are mixed up.

I know it's right here.

My -- my summation is on pages 1, 2 where -- one to eight and following that immediately is the -- 8 to 10 the Government's summation.

Justice Potter Stewart: Thank you.

Mr. Harris B. Steinberg: Now, I'm not here to plead for myself.

I'd say to Your Honors read it.

If you think that my summation was improper in someway, then I say to you there are cases which say that the standard of advocacy of a defense lawyer may enlarge the scope of the standard of advocacy of the Government.

And if I did something improper, forget that part of my point, but I don't think you're going to find that.

What did he say in answer?

Three things, although I say three things for the purpose of handling it easily and for the purpose of relating with the cases, he said one thing because the whole thing is in a short compass and I jumped up and I said I want a mistrial.

Now, the first thing he said, what Mr. Steinberg says, "Where is Dorothy Stracuzza?"

And he says, "I'm telling you that Dorothy Stracuzza is still a defendant in this case.

The case is still pending against her.

The indictment is still open against her."

Now, I say to Your Honors in the context of what was in preparation, in the context of that statement in the nolle prosequi that was filed shortly thereafter, in a context of accepting that nolle prosequi the denial by -- by Tony of his wife's guilt knowing that Tony had said something just to the contrary under oath and not pointing that in nolle prosequi, in the context of her own denial of guilt but with all the admitted circumstances and far more than we used to fasten guilt on these defendants.

I say that was as phony as a $3 bill.

I say that was a misrepresentation.

I say that does not accord with the high purpose and principles of a prosecutor and I say that that was improper and deprived my clients of a fair trial.

What else did he say?

He said this to the other defendant Mario, "It is the Government's representation to you,"

That he could have proffered nothing in a way of additional evidence that was not presented to you through to his brother because if you will recall from the testimony of Agent Miller, both Stracuzzas were interviewed on each and every occasions by him, the story, the testimony, if you will, given to the FBI was a joint story and therefore, the testimony of Mario Stracuzza, if he will call to testify, would be in a sense a repetition of all the details that you heard from the witness Anthony Stracuzza.

I submit to Your Honors that's for me.

That wasn't because he wanted to save the time of the Court.

That wasn't because he wanted to say repetitions.

I submit to Your Honors that it's clearly apparent that in view of the search and cross-examination, Mario had undergone at the first trial.

In view of these items of his money in his pocket, in view of the benefits he was getting across the street on this very Court, I say they wanted to protect him.

And that's why that's a misrepresentation although it's proposed to be a representation.

And the third thing is and this as I said, tired cliché of advocacy, this quotation of what it says over the Department of Justice, "The Government wins when justice is done of citizens and the Court".

That's true.

But I don't like to see that used in this captious phony sense and which is used here.

And when I say captious and phony, I could cite to you cases in our brief where the same quotes and the same tired reference that same chiselled thing is made in other occasions.

What I'm getting at is this.

This is not advocacy that heat of passion or something said that they're sorry for a moment later.

If I can understand that, I say that all the time.

I say it at home and I say it in Court.

This is shoddy tactics.

Justice Hugo L. Black: Which part of that now you're talking about?

Mr. Harris B. Steinberg: On pages 9 and 10.

Justice Potter Stewart: (Voice Overlap) --

Mr. Harris B. Steinberg: Now, in making these comments --

Justice Hugo L. Black: What -- what is shoddy there?

Mr. Harris B. Steinberg: What shoddy is this, Your Honor?

I'm sorry, sir.

I beg your pardon?

Justice Hugo L. Black: What is shoddy there?

Mr. Harris B. Steinberg: I'll tell you what's shoddy about it.

He follows with this.

If you believe that the Government had in some way or other, prevented you from getting the full truth of this entire case, that in some way here concealed the true facts pertaining to any of these defendants, you have only one duty.

You have to march right into that jury room and acquit every one of these defendants.

That's what's shoddy about it, Mr. Justice Black.

The cases, I've cited them in my brief, say that when you take away from a jury the real issue of the guilt or innocence of a defendant and you give them the phony issue of trying this handsome, clean-cut, cultured fine young man for impropriety, no jury is going to want to convict him of impropriety.

Now, when you say to -- when you say to him, "Here's this clean-cut, handsome young boy with a good law school, speaks well," is obviously the kind of board or jurors would be proud to have who he suddenly stands up, they're doing his duty against some people under indictment that if you believe I did anything wrong, I quit.

Now, the Court of Appeals in New York citing the Berger case of this Court says that's bad, it's reversible, dump to it because it's tendering a false issue.

Now, I don't know whether Your Honors would have given me certiorari in this point.

I don't know whether Your Honors are primarily interested in the points Mr. Kossman talked about, but it was in my heart to bring you this point because the time has come, so many years after the Berger case to get the word around in the federal courts that this is not the way to try a case because the same cliché, the same exact phrases come up in case after case.

Young fellows are learning how to try cases and they think this is the way to try the case unless you tell them differently.

From the cases I've cited in my brief, you will find repeated references to Berger.

Berger had a good effect on the New York Court of Appeals in the last five years has had five cases touching on summations, propriety or propriety summations reversed in every case and citing Berger, but it's losing its steam.

And I say to Your Honors you will do a service to the dying out of advocacy if you tell us how to try a case and put teeth into what you tell us, and say, "This is not the way to do it."

Thank you.

Chief Justice Earl Warren: Mr. Davis.

Argument of John F. Davis

Mr. John F. Davis: Mr. Chief Justice, if the Court please.

The issue on this part of the case is considerably narrower than my brother would have in detail.

Issue was not whether the Stracuzzas -- whether the district judge should have given the Stracuzzas sentence, whether the Government should have known across the case against Dorothy Stracuzza.

The question here, although I'd be glad to discuss those points before I get through because they're in the background of this thing, but the specific question here is whether or not the United States Attorney misconducted himself before the jury so that the jury could have missed the trial.

There's very little that I can say on that.

What's the -- what the United States Attorney has set -- said is set forth at pages 9 to 10.

Everything that's objected to is set forth on pages 9 to 10 of the record.

This is an answer to an assertion that was made in the trial that the Government had entered into a deal with Anthony Stracuzza under which he would get these other people convicted and he and his family would be dealt with lightly.

There is not a thread of evidence of indication that the Government was buying urgent testimony.

Anthony Stracuzza --

Justice Felix Frankfurter: Suppose he sought to infer this, Mr. Davis?

Mr. John F. Davis: Well, whether it was buying testimony or not, I do not know.

There's no question that -- I think there's no question that Anthony Stracuzza by pleading guilty and turning states evidence expected to receive a lighter sentence as a result although the --

Justice William J. Brennan: He wasn't disappointed, was he?

Mr. John F. Davis: He wasn't disappointed.

The judge suspended his sentence and his brother's sentence and his wife as -- and his wife with no part.

And this is what he expected and this is what he got.

Justice Felix Frankfurter: Can you tell me what the present practice in the Southern District is?

Does the District Attorney's office make recommendations either as to the length for the sentence or suggest suspension for the mitigating circumstances?

Mr. John F. Davis: I -- I don't know about the --

Justice Felix Frankfurter: The judge is there and the district is there.

Mr. John F. Davis: I don't know what happened in this particular case.

I -- it doesn't appear in the record.

Rebuttal of Harris B. Steinberg

Mr. Harris B. Steinberg: Page 5, footnote.

Rebuttal of John F. Davis

Mr. John F. Davis: In your -- in your brief?

Rebuttal of Harris B. Steinberg

Mr. Harris B. Steinberg: In my brief, page 5, footnote.

Rebuttal of John F. Davis

Mr. John F. Davis: The -- in some cases the United States Attorneys make recommendations with respect to sentences in the Southern District and in some they don't.

Justice Felix Frankfurter: I know some judges wouldn't have it.

Mr. John F. Davis: I am certain that the United States Attorney in this case -- well, I'm not certain but I would assume he brought to the attention of the Court that this -- that Anthony Stracuzza testified in this case for the Government.

Now, whether or not Anthony Stracuzza should have -- should have been punished for all of his misdeeds, whether the judge should have given them a sentence or whether it should suspend the -- the sentence, I don't know.

I mean that's the question -- it's -- he is not here for the trial.

The only question is whether the United States Attorney, when he is accused of -- of -- in effect accused of making a deal for 30 pieces of silver of buying -- buying testimony, whether he is entitled to reply as he did in the words which appear in this record.

The Court of Appeals felt that he was.

I feel that he was.

I feel that none of the cases which counsel cited come anywhere near this when they talk about misconduct.

I don't -- I don't -- I do not only think that this wasn't misconduct which should have read -- lead to a mistrial, I don't think this was misconduct at all.

I think this was a perfectly proper and appropriate thing for the United States Attorney to tell the jury when he was presenting this case to them.

Chief Justice Earl Warren: Mr. Davis, what --what do you have to say to the footnote at the bottom of page 5, so the sentence in Court asked the prosecutor whether this was an isolated offense referring to Stracuzza and the prosecutor replied in the affirmative but the -- the Court, "Are there any other larcenies that these men are connected with?"

Mr. John F. Davis: No, Your Honor.

Chief Justice Earl Warren: This is an isolated larceny, Mr. Cantor (ph), as far as the Government knows.

Mr. John F. Davis: I think this is wrong.

I don't know how it took place.

This is the trial --

Justice Felix Frankfurter: Well -- but this -- try to say something more than that.

Mr. John F. Davis: I am.

[Laughs]

Justice Felix Frankfurter: All right.

Mr. John F. Davis: This -- this -- let me explain what this is, Your Honor, if I may.

Before this case came to trial, there was a separate trial and this comes from the other trial.

This was a trial against the Stracuzzas and against the truck drivers for stealing goods from interstate commerce.

In other words, it was a stage before this one.

That was the actual thefts.

And in that case, the Stracuzzas --

Justice Potter Stewart: It's a conspiracy trial, wasn't it?

Mr. John F. Davis: What?

Justice Potter Stewart: Wasn't it a conspiracy trial?

Mr. John F. Davis: No, it wasn't conspiracy.

It was theft.

It was theft from interstate carriers from the Pennsylvania rail -- from whoever was --

Justice Potter Stewart: (Voice Overlap) --

Mr. John F. Davis: -- I think railway (Voice Overlap) to start from right is in and trucks and things.

Justice Felix Frankfurter: Against the Stracuzzas?

Mr. John F. Davis: Against the Stracuzzas and the truck drivers.

Justice Felix Frankfurter: Yes.

Mr. John F. Davis: This is the -- this is the stage of the -- of the larceny which occurs before the Stracuzzas get rid of it.

It's the stage where they obtained the -- obtained the property.

And this was tried in December before this case was reached, before the -- and actually before the Stracuzzas had pled -- pled to this case.

And in that case, they pleaded guilty as they did in this one and they testified with respect to the -- to the thefts.

Justice William J. Brennan: That was a federal prosecution (Voice Overlap) --

Mr. John F. Davis: That was a federal prosecution --

Justice William J. Brennan: Yes.

Mr. John F. Davis: -- for stealing from interstate commerce.

Justice Felix Frankfurter: But wasn't it not -- I -- I beg your pardon, go on, and I'll ask you later.

Mr. John F. Davis: Now, I -- all I know about what went on is -- is what I see here.

I have the transcript of -- of the previous case.

I cannot imagine how Mr. Cantor (ph) could have told the Court in that case.

And when these people did get suspended sentences, I don't know how he could have told them that they weren't involved in -- maybe it -- he thought this was the same transaction that these people were engaged in, that this was the same -- you know, that they've stolen and resold and maybe --

Justice William J. Brennan: indictment is one of those now before us, was it pending at the time of this incident?

Mr. John F. Davis: The indictments were pending, yes.

Justice Felix Frankfurter: Well, then to assume --

Justice William J. Brennan: And Mr. Cantor (ph) and the United States Attorney's office?

Mr. John F. Davis: That's right.

These indictments were pending at that time although they hadn't -- they hadn't pledge with them at that time.

Justice Felix Frankfurter: Well, then, presumably is it to presume or is it known the Stracuzzas was offense on a large scale?

Mr. John F. Davis: Well, they must be -- I -- I assume, yes, that he knew that this was stolen by the Stracuzzas.

It is known --

Justice Felix Frankfurter: But it isn't like me -- $500,000 or half a million was a staggering amount.

Mr. John F. Davis: Well, this -- that is one thing to gather a great many transactions.

The Stracuzzas were in business with themselves only two and a half months rather than a year basis that's involved.

Justice Potter Stewart: There was a predecessor business though.

Mr. John F. Davis: They were working for Berk and Eisenberg for a while and then --

Justice Potter Stewart: Who were in the same business.

Mr. John F. Davis: -- and then Anthony -- yes, they were employees at that time.

Justice Potter Stewart: Getting experience?

Mr. John F. Davis: That's right.

They were learning.

And then they went into business with Mr. Berk only.

Then they were in this business by themselves which is the one that's involved in this case.

Chief Justice Earl Warren: Well, I understood -- understood from Mr. Steinberg, if they were doing this business at the rate of a thousand or $1500 everyday --

Mr. John F. Davis: I think that's what --

Chief Justice Earl Warren: -- which they would have in cash and they would pay it up for these stolen goods.

How could it possibly be answered that this was an isolated case and this was all that was against them?How could it -- how could they answer such a thing?

Mr. John F. Davis: I can't imagine why Mr. Cantor (ph) said that.

Chief Justice Earl Warren: Well, I don't think if that was in the --

Mr. John F. Davis: But that --

Chief Justice Earl Warren: -- in their brief that you would investigate it to find out what the situation was.

Mr. John F. Davis: Well, the truth -- truth is that we do not have that case before us.

That is -- that -- that is not the -- there is no issue in this case about whether or not Mr. Stracuzza should be sentenced or should go to jail.

That's -- that's not the issue.

Justice Felix Frankfurter: But is it -- is it an irrelevant item in the fabric, isn't it?

What other items in the -- in the talk about who could have called who and for what purposes?

Is it irrelevant to -- to a judgment on government summation?

Mr. John F. Davis: I -- I think --

Justice Felix Frankfurter: The fact that we haven't got that case here.

Mr. John F. Davis: I -- I think that --

Justice Felix Frankfurter: I mean --

-- with what we have is that -- that a United States Attorney made any statement here.

Mr. John F. Davis: We don't know why.

Justice Felix Frankfurter: I understand that in treating a states witness is lenient in favor but -- but if this recital sounds like the Arabian Nights almost, it's true and is relevant to a judgment on the representation he made to the jury.

Mr. John F. Davis: I -- may -- maybe I've been reminiscing.

Maybe we should get the transcript in this case.

I do not know whether in this case -- and he's referring to the Stracuzzas or who he's referring to the truck drivers or who he's referring to.

Here he's talking about -- and I think you have to look at the particular transcript of the case to know what he was talking about.

And --

Justice Hugo L. Black: It's not in our record, is it?

Mr. John F. Davis: No.

This isn't our case at all.

Justice Hugo L. Black: Yes.

Mr. John F. Davis: This is another case.

Justice Hugo L. Black: Is this the same attorney, prosecuting attorney that --

Mr. John F. Davis: No.

This is different prosecuting attorney.

Justice Hugo L. Black: A different one.

Mr. John F. Davis: Different prosecuting attorney, different in thought.

Justice Hugo L. Black: Does this man have -- have anything to do with the speech made by the evidence?

Mr. John F. Davis: No.

Mr. Cantor (ph) (Voice Overlap)

Justice Hugo L. Black: Who made the speech of the complaints made about here?

Mr. John F. Davis: Pardon?

Justice Hugo L. Black: Who made the speech of the complaints made about here?

Mr. John F. Davis: Oh, you mean who was the United States Attorney in -- in this case?

Rebuttal of Harris B. Steinberg

Mr. Harris B. Steinberg: Mr. Moran.

Rebuttal of John F. Davis

Mr. John F. Davis: Mr. Moran.

Justice Hugo L. Black: Moran.

Justice Felix Frankfurter: Well, I know but they're in the same office and unless things are very different, assistants talk to one another, this isn't a -- they're not isolated from one another.

Mr. John F. Davis: Well, I -- that -- that's right and I --

Justice Felix Frankfurter: Just like -- I forget which one of Dickens' novels said -- says this is my wicked partner if you --

Mr. John F. Davis: Well --

Justice Felix Frankfurter: -- if you will (Inaudible) in this case.

Mr. John F. Davis: Of -- of course, this -- I -- I'm sorry I didn't try and get the transcript in this --

Mr. Davis, I wasn't asking you to try to excuse us.

Mr. John F. Davis: [Laughs]

Justice Hugo L. Black: I just want to find out about it.

Mr. John F. Davis: Yes, sir.

Justice Hugo L. Black: But I did think since this is the record in another case, we should have it.

Mr. John F. Davis: I think we should have get the transcript of this case --

Justice Hugo L. Black: If you have part of it --

Mr. John F. Davis: -- and submit it to the Court so that --

Justice Hugo L. Black: -- you should have it all.

Mr. John F. Davis: -- so we can have the entire transcript of the -- of what went on here and I want to --

Justice Tom C. Clark: Which you're drawn (Inaudible) ramifications and expect them to (Inaudible) that involve all the matter of justice.

Mr. John F. Davis: It involved the first part of the case.

There was no -- I don't know what went on in that case with respect to the disposition of the goods whether if anyone knew that it was an interstate disposition or maybe a local disposition.

Justice Tom C. Clark: He knew of the extent of the operation.

Mr. John F. Davis: He knew that a thousand dollars a day goods was being stolen.

He didn't know -- we don't know that he knew anything about what happened to the goods.

Maybe it was disposed of locally.

Maybe there was no federal crime in connection with this -- his fault.

I don't know what --

Justice Tom C. Clark: He knew that the petitioner (Inaudible) to the defendants there.

Mr. John F. Davis: He knew that our petitioner here, this is not our petitioner here.

We -- he didn't know anything about our petitioners here, let's say.

He knew about the Stracuzzas but they knew nothing so far as I know and I haven't gone on and I haven't seen the transcript.

There's no reason to believe that he had any information about the Schaffers and Mr. Marco and Mr. Karp.

I mean this was the first part of it and it wasn't part of the case to show the disposition because there, it wasn't an interstate shipment of stolen goods.

There, the question was a stealing, a larceny of goods from an interstate carrier.

Justice Tom C. Clark: But he knew that petitioner was buying all these stuff.

Mr. John F. Davis: Oh, yes.

They would -- they'd pleaded guilty because of -- not only buying and he was in -- he was engaged in -- in stealing it in -- in effect.

Justice Hugo L. Black: May I ask you, I don't -- I'm still a little lost with this thing.

What's the relationship in time of the statement by this man (Inaudible) in the trial of this case?

Mr. John F. Davis: Well, this -- the case was tried in 1958, May -- I think it started in May of 1958.

And this is statement --

Justice Hugo L. Black: (Voice Overlap) October.

Mr. John F. Davis: Pardon?

Justice Hugo L. Black: The appendix says filed October 8 this year.

I don't know what that meant, page 1.

This other one seems to have been made in (Inaudible) 1956.

Mr. John F. Davis: Tried the case -- the case was tried the previous December.

Whenever the -- whenever the -- the indictments were filed, this particular case was now -- let me -- the case which is before the Court was tried in May --

Justice William J. Brennan: Well, it --

Mr. John F. Davis: -- May of 1958.

Justice William J. Brennan: Well, it started April 22 of 1958.

Mr. John F. Davis: April 22, 1958.

Justice Hugo L. Black: And this was --

Mr. John F. Davis: And this case had previously been tried in --

Justice Hugo L. Black: Two years before.

Mr. John F. Davis: No, in December of 1957.

Justice Hugo L. Black: Well, this says September 19th, 1956.

Mr. John F. Davis: Well --

Justice Hugo L. Black: I don't quite understand.

Mr. John F. Davis: Well, I think you're right.

Justice Hugo L. Black: Yes.

Mr. John F. Davis: I -- I -- in the transcript which I've read, it said previous December.

Justice Hugo L. Black: Was it the same -- was it for the same theft?

So is this some different theft?

Mr. John F. Davis: Well, these are the same goods, presumably.

I don't --

Justice Felix Frankfurter: The same --

Mr. John F. Davis: -- know that they're identified but we must assume they're the same thing.

Justice Felix Frankfurter: The same transaction.

Mr. John F. Davis: This -- as far as I know, and I haven't read the transcript and this is what one can gather from the -- from the transcript of the case I have read.

That -- what happened was that there were two separate indictments.

They indicted the Stracuzzas and the truck drivers for stealing these goods from interstate carriers.

They were being shipped by manufacturers to various consignees and the Stracuzzas and the truck drivers stole these goods from interstate carriers, which is a -- which is a separate crime than -- than one we have here.

That was tried first.

And in the records which I have read, it is referred to as having been tried in December.

That's -- that's the way it was described.

Justice Felix Frankfurter: Was -- was there the indictments in which the Stracuzzas were tried and our indictment handed down the same time by the grand jury?

Mr. John F. Davis: They -- well, I'm not sure but our indictments were handed down before this trial.

Justice William J. Brennan: In October of 1954.

Mr. John F. Davis: They were -- they were handed down long before the trial --

Justice Felix Frankfurter: These --

Mr. John F. Davis: -- so that they were on record.

Justice William J. Brennan: Yes.

Justice Felix Frankfurter: -- these thieves had 53 transactions, is that right?

Mr. John F. Davis: That's right.

And that the -- the indictment in our case was found and was pending at the time of this previous trial.

Mr. Cantor (ph) can't explain this on the ground that there weren't indictments pending at the time he made this statement.

They were indictments pending.

Justice Potter Stewart: They were -- excuse me, Mr. Davis.

They were -- how many offenses -- how many indictments did that -- to -- to how many indictments did the Stracuzzas plead guilty?

Three?

Mr. John F. Davis: No, there were four in all.

Justice Potter Stewart: Three federal and one state, is that it?

Mr. John F. Davis: Pardon me?

Justice Potter Stewart: Three federal indictments and one in the --

Mr. John F. Davis: No.

No.

They were four federal indictments.

Justice Potter Stewart: Indictments.

Mr. John F. Davis: One of them I've -- one of them I don't know what it is.

But there is this one for theft from the -- that I'm speaking of this as being tried in December.

Justice Potter Stewart: Yes.

Mr. John F. Davis: This one -- this footnote applies.

Justice Potter Stewart: Yes.

Mr. John F. Davis: There -- the two indictments which are in the record in this case.

Justice Potter Stewart: Yes.

Mr. John F. Davis: And at the time -- that -- of sentencing, of the -- suspension of sentence, it appears that there was a third indictment against the Stracuzzas along that they pled guilty to at the same time it's consecutively numbered with these two that are before us.

It is not in the record and I don't know --

Justice Potter Stewart: Is -- are the -- are the sentencing proceedings in the record here as the Stracuzzas getting a suspended sentence in this case, were they in this record?

Mr. John F. Davis: In that -- they're not in this printed record.

No, they're in the transcripts.

Justice Potter Stewart: I -- I'd be interested in -- in getting a -- in seeing the transcript not only of the proceedings which are (Inaudible) circuits in this footnote page 5 of the -- of the brief but also in the -- in the other sentencing proceeding --

Mr. John F. Davis: Yes.

As well --

Justice Potter Stewart: -- to see what representations were made.

Mr. John F. Davis: They -- those -- those are present in the files of the Court and it would be very easy to give you the references --

Justice Hugo L. Black: Mr. Davis --

Mr. John F. Davis: -- to the transcript.

Justice Hugo L. Black: -- this footnote says that they tried to offer this in evidence so it's probably in the record.

Mr. John F. Davis: If it was refused, I don't know.

Justice Hugo L. Black: They say they tried to get this in evidence to show what the Government -- the promises they had made.

Are -- have they assigned that as they were in here?

Mr. John F. Davis: No.

No, I -- I don't think that this is part of the transcript, Mr. Justice Black.

I've --

Justice Hugo L. Black: What he says is defense counsel vigorously protested the prosecutor's refusal to call them, tried unsuccessfully, that was used in evidence, the complete statement which were made by the Government to the sentencing judge at the time Mr. Stracuzza was given a suspended sentence.

Mr. John F. Davis: In the previous case.

Justice Hugo L. Black: So that's probably here in the record.

Mr. John F. Davis: Do you think it's in the transcripts?

Unknown Speaker: Yes.

It's here.

It's (Voice Overlap) --

Justice Hugo L. Black: Probably here in the record.

Justice Potter Stewart: It's proffered by the defendant.

Mr. John F. Davis: It was proffered.

But I don't know whether it was sent down with the transcripts or not.

The counsel says that it was sent down.

I don't know -- I didn't know whether --

Justice Felix Frankfurter: Well, isn't on proposed stenographic minutes of the trial here?

Mr. John F. Davis: Yes.

Yes they are.

Justice Felix Frankfurter: And they would be in there although it was --

Mr. John F. Davis: Well, the author would be --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. John F. Davis: -- the author would in there but whether or not the actual --

Justice Felix Frankfurter: Or -- or what took place at the other trial.

Mr. John F. Davis: Yes.

No, I don't know.

As I say, I don't know.

The counsel says it is here.

It was offered and rejected and whether they sent it down as they -- whether they made an offer of proof or some way to get into the record, I don't know.

I -- I don't know at this stage.

Justice Felix Frankfurter: Are you sitting down?

Mr. John F. Davis: Not quite.

I wanted to say one more thing.

Justice Felix Frankfurter: Are you going off to another question?

Mr. John F. Davis: This is the only question --

Justice Felix Frankfurter: All right.

Mr. John F. Davis: -- there is in this part.

All I wanted to say was that as far as the Government not calling Mario and not calling Dorothy Stracuzza, the Government wasn't -- what the Government found to prove this case, the Federal Bureau of Investigation's agents and the -- the witnesses for the railroads.

It felt it proved its case that way.

There was no reason for it to be called.

These particular individuals and who -- who would testify the same thing that Anthony Stracuzza had testified to, they -- they preferred -- once having made that case in that way to confirm it with more reliable witnesses.

I think that was a matter of trial judgment.

Justice Felix Frankfurter: I understand that the gravamen of the -- that were placed or the argument is not that the Government was wrong not to call but rather that the United States Attorney put to the jury pitted his integrity and rectitude as against the guilt or innocence of the defendants.

Mr. John F. Davis: That's the accusation.

Justice Felix Frankfurter: That's the gravamen.

Mr. John F. Davis: That -- that's what stated.

Yes.

Justice Felix Frankfurter: Yes.

Well, now, so that it doesn't -- merely to say that the Government should or shouldn't have called taking (Voice Overlap) --

Mr. John F. Davis: That's right.

And the question is did the Government Attorney err in that respect?

It --

Justice Felix Frankfurter: That item?

I don't think so.

I think even if they did incur, you don't say it doesn't answer if (Inaudible).

It doesn't answer the suggestion that you can't send the 12 jury men and women into the jury room and say, "Well, we either must acquit or if we don't, we must find that U.S. Attorney would give him misconduct."

Mr. John F. Davis: That's right.

That's what I mean.

When I say, if he did that it was error.

If he made the -- if the made the issue of the jury his own integrity, if he changed it so that there was only one way to find them not guilty and that was to find him guilty.

If that's the effect of what he did, then --

Justice Felix Frankfurter: It isn't the case.

Mr. John F. Davis: That was error.

Justice Felix Frankfurter: It isn't because they have to decide whether he was justified --

Mr. John F. Davis: No -- that's right.

Justice Felix Frankfurter: -- in not calling Mario and the lady.

Mr. John F. Davis: That's right.

It's a question of whether he was -- putting -- having the jury to determine the guilt of these people on the basis of his own guilt or innocence which marshalled the issue before the jury and which would be an improper basis.

Justice Felix Frankfurter: Let me ask you.

I don't mean to say to -- to control of my thinking but I'm -- is it true that -- that in the New York Court of Appeals has found that inadmissible argument by the District Attorney to put such an issue to the jury?

Has a New York case look that way, I've been looking (Voice Overlap) --

Mr. John F. Davis: I don't know about the New York cases.

Federal cases have held that it's improper to make that the issue before the jury.

Justice Felix Frankfurter: Well, now, how is it made except by making such an argument?

Is there any other way of making it?

Mr. John F. Davis: Well --

Justice Felix Frankfurter: If -- if --

Mr. John F. Davis: I -- I --

Justice Felix Frankfurter: -- if that is an -- if you say the federal courts -- federal decisions say you can't do that --

Mr. John F. Davis: But --

Justice Felix Frankfurter: -- how -- how is -- or is there a departure from that standard?

Mr. John F. Davis: When there is -- when there is an accusation, as there was in this case, that testimony had been bought --

Justice Felix Frankfurter: Had been bought.

Mr. John F. Davis: Had been bought that the Government had made a deal that the -- that information was being withheld from the jury.

This is in effect a denial, I mean, it's -- I think, it is proper for the United States Attorney to -- he -- he can't ignore it.

He -- he denies it and tells the jury -- if he doesn't base his case on this but he -- he has to tell the jury that they -- they can't convict on -- on a perjured testimony.

If they believe there's been perjured testimony, if they believe that -- why they -- they should get an upright?

Justice Felix Frankfurter: Was the -- did Mr. Steinberg say that the Government rested on perjured testimony?

Mr. John F. Davis: Not in so many words but all --

Justice Felix Frankfurter: What are the exact words put on?

Mr. John F. Davis: He set a deal now -- well, he -- his last -- his last statement is on his -- on his summation of 30 pieces of silver, I think, and which is the reference to --

Unknown Speaker: (Inaudible)

Mr. John F. Davis: To do anything he could.

So, he'd get his 30 pieces of silver, anything he could, so he could get 30 pieces of silver.

Justice Felix Frankfurter: Well, it is more than -- I'm a little rusty on it, but to -- even if you give a State's witness to plea freedom in this kind of transaction, it's a little generous, isn't it, on part of the Government?

Would the Court -- it's a little generous to be urging the Court to suspend a sentence.

Mr. John F. Davis: Well, I'm -- I'm surprised myself that the -- if the Court imposed no sentence at all on Mr. Stracuzza, he -- he did -- the -- the only service in the other case and in this case, he -- he testified, he barely sold on all of his transactions and -- and apparently, the trial judge felt that this was -- this was some compensation.

Justice Felix Frankfurter: I don't feel a little decency if -- if the record would show on the practice in the Southern District whether, no district judge pays any attention and he forbids a U.S.Attorney to make recommendations.

I have known judges to do it in particular cases.I have known some judges who refuse to allow the Government to make any suggestion at anytime in any case where the Government is an active participant.

Mr. John F. Davis: Well, if --

Justice Felix Frankfurter: I am troubled, I must say.

Mr. John F. Davis: In this particular case, I may say that I don't think Judge Murphy needed any instructions from the U.S. Attorney as to what Mr. Stracuzza has done in this case because it was perfectly apparent throughout and so --

Justice Felix Frankfurter: No, but there was this earlier suspension, wasn't it?

Mr. John F. Davis: That is right.

Justice Felix Frankfurter: An accumulation.

Mr. John F. Davis: But unless there is some indication that -- as far as these defendants, as far as these petitioners are concerned, unless there's some indication that the -- that there was -- they were improperly convicted, there was something wrong, something not that -- that the Stracuzzas got too good a deal, not that they shouldn't have gotten an -- and this the evidence that the Stracuzzas gave and that Anthony Stracuzza gave is -- is wrong as perjurious.

There's no reason why these particular defendants could gain through this --

Justice Felix Frankfurter: That -- that assumes, I think, Mr. Davis, that if going through this record, one finds that the case against him was conclusive after you overlooked impropriety.

I don't think that's the rule, is it?

Mr. John F. Davis: No.But --

Justice Felix Frankfurter: And it wouldn't be.

Mr. John F. Davis: -- there must be some indication that there was --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. John F. Davis: -- improper evidence that was introduced.

Now, when you have a --

Justice Felix Frankfurter: But there's no proper evidence for -- but if saying, you, in order not to convict these people would have to find out that I'm a crook, I mean the U.S. Attorney, that I would regard as the height of impropriety no matter how good the -- the defendants are because --

Mr. John F. Davis: Oh, yes.

Justice Felix Frankfurter: -- they must be tried and convicted according to (Inaudible) and that is in the (Inaudible)

Mr. John F. Davis: That is right.

That -- that issue should not be put to the jury and if that's what this Court feels must put to the jury, why, it was -- it was erroneous.

Chief Justice Earl Warren: Why did they -- why did they dismiss Mrs. Stracuzza here?

Mr. John F. Davis: Well, we have here the -- the nolle prossed which was -- which was filed and the statement is made that they felt they couldn't prove that she knew that the goods were stolen.

That's what the United States Attorney says in the nolle prossed.

Chief Justice Earl Warren: Well, I understood counsel to say that her husband, when he testified in this case that she didn't know anything about it and admitted that he had testified in another proceeding that she had known all about it.

Mr. John F. Davis: That's right.In -- in the December trial, that's when it took place --

Chief Justice Earl Warren: Yes

Mr. John F. Davis: He had --

Chief Justice Earl Warren: Yes.

Mr. John F. Davis: (Voice Overlap) --

Chief Justice Earl Warren: Now, you said of course, if the Government produced perjurious testimony that would be another situation, isn't that perjurious?

Mr. John F. Davis: Well, I don't think the Government thought Anthony Stracuzza's statement that his wife didn't know about this.

This was a husband talking about his wife's guilt.

This was something of his own.

We didn't -- the -- the United States Attorney wasn't interested in proving that Dorothy Stracuzza didn't know about it.

This isn't something that we -- we --

Chief Justice Earl Warren: No, but it might -- it might go along ways to show what motive prompted him to testify as he was testifying in this case if he went so far as to testify to the opposite of what he testified to in another case shortly before it.

And consequently, counsel would be entitled to comment on that very, very strongly, I would think.

Mr. John F. Davis: Oh, I think that they -- I think they can attack and the judge instructed the jury that when the man lied about any one thing that it could be held against him for anything else and I think the judge was quite right on that.

And that if the jury was -- felt that Anthony Stracuzza perjured himself in his statements about his wife's knowledge of this thing, that was a proper thing for the jury to consider.

But I do not think -- I do not think, Your Honor, that this kept into the question of whether the United States Attorney was buying perjured testimony.

The United States Attorney didn't want -- didn't have any desire to have that testimony.

I will attempt to get the copy of the transcript in the prior sentencing if not the entire case.

And I will check the transcript in the record here to see what we have, one with respect to this matter and also with respect to the proceedings at the time that the sentences were suspended for the --

Justice Potter Stewart: All are set --

Mr. John F. Davis: (Voice Overlap) --

Justice Potter Stewart: -- all are set as the proceedings of Mr. Stracuzza.

I'd be curios to see.

Justice Hugo L. Black: Mr. --

Rebuttal of Harris B. Steinberg

Mr. Harris B. Steinberg: If I can -- I just -- one moment --

Justice Hugo L. Black: I -- I may say --

Chief Justice Earl Warren: Just one moment, Mr. --

Justice Hugo L. Black: -- Mr. Davis that I have this stenographic report here that you refer us to.

It does refer to his offering here saying the judge read part of it.

It was read to the jury, part of the fact that the man was given a lighter sentence on the ground that he cooperated with the Government.

Rebuttal of John F. Davis

Mr. John F. Davis: This is at the time of sentencing.

Justice Hugo L. Black: This was at the time I assume was the trial because he opened to his objection, they're not putting in half of the State.

The judge led him to remain there.

Mr. John F. Davis: Oh, I see.

Justice Hugo L. Black: That's at page 670 to 678 of the stenographic report.

Chief Justice Earl Warren: Mr. Steinberg.

Rebuttal of Harris B. Steinberg

Mr. Harris B. Steinberg: Just one moment, if Your Honor please.

Mr. Justice Frankfurter asked about whether this was only a New York doctrine or a federal doctrine.

Let me just tell you about two cases.

(Inaudible) was Second Circuit decided very recently by three different judges and sat on this case, Judge Waterman, Judge Lumbard, Judge Moore.

They reversed the conviction where they said there was overwhelming evidence of guilt.

And they reversed because the counsel for the defendant, in his summation, said that the bail of the informer, that is the government witness, the bail had been lowered and as soon as he agreed to cooperate that was done and therefore, he had every motive for lying.

That was the defense summation.

And in answer to that, the District Attorney said, "They'll ask you to draw the deduction that I made a deal, I never make deals"

And that was the word.

Now, that's weak and in our case, it was reversed.

Justice Felix Frankfurter: (Inaudible)

Mr. Harris B. Steinberg: (Inaudible) it's cited in our brief, Your Honor.

Justice Felix Frankfurter: Oh, it is.

All right.

Mr. Harris B. Steinberg: The other is Lovello in New York Court of Appeals, 1 N.Y.2d.

Here's what the D.A. said there, "There, the defense summation, counsel criticized the prosecutor for failing to have and produce one witness."

So, why didn't he produce that witness so I can cross-examine?

The D.A. said this, "If that conversation didn't take place, stop right there.

Don't waste another 10 seconds on this case.

Come back and say the defendant is not guilty.

If that conversation didn't take place, I'm an aid on a federal perjury."

That's all it was.

Court of Appeals cited Berger and said this is tendering his own integrity as an issue.

It's a phony issue.

The issue was is he guilty or innocent.

Thank you.

Justice Hugo L. Black: May I ask you this, Mr. Steinberg.

Mr. Harris B. Steinberg: Yes, sir.

Justice Hugo L. Black: I -- I realized as much in what you're saying, but I see here the last sentence you stated was, after accusing them that they're making a deal, that they sold in set the 30 pieces of silver, is it your position that if you do accuse the District Attorney of being crooked, that it -- it entitles him to new trial if he denies it?

Mr. Harris B. Steinberg: Your Honor, if you will read my summation --

-- there was not one -- no --

Justice Hugo L. Black: I -- I just read both.

Mr. Harris B. Steinberg: No.

There is not one word in my summation saying the District Attorney was a crook.

I said Stracuzza was a liar, perjuring himself to win his statement with the D.A.

Justice Hugo L. Black: I was asking you was this.

Is it your position that if you do accuse the District Attorney of being crooked and it can be inferred that he's accused of taking money and making deal that if he denies making the deal, that the case should be reversed?

Mr. Harris B. Steinberg: There are two rules on that, Your Honor.

Now, let me say -- let me --

Justice Hugo L. Black: Yes.

Mr. Harris B. Steinberg: -- just say this.

There are two rules.

There's one line of cases that says what I said before to Mr. Justice Stewart.

And he said that if you set a low standard of advocacy, you're hung by your own petard or hoist by your own petard.

You're -- you're stuck with it.

And if they come back at you in the same (Inaudible) brain, you're stuck with it.

There's another line of cases that says maybe you can be a shyster but the Government doesn't employ shysters.

But (Voice Overlap) --

Justice Hugo L. Black: But is it your position that if you do accuse the District Attorney of a crooked deal, that he can't deny it?

Mr. Harris B. Steinberg: I say, depends on which line of cases he follows.

Justice Hugo L. Black: I'm not talking -- I'm just talking, is that the argument you're making?

Mr. Harris B. Steinberg: That's not the argument I make here.

I don't have to make that argument.

Chief Justice Earl Warren: We'll recess now.

Print this transcript Transcript: 

Argument of Jacob Kossman

Chief Justice Earl Warren: Number 111, Max Schaffer and Norman Schaffer, Petitioner versus United States.

Mr. Kossman.

Mr. 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.

Justice Felix Frankfurter: I am -- I am sorry, I tried to call you but I couldn't.

Mr. Jacob Kossman: I am sorry.

Justice Felix Frankfurter: Would you -- would you state that the case is -- are you -- did you state what the case about?

Mr. Jacob Kossman: I stated what the first point was.

I'll restate it.

Justice Felix Frankfurter: Would you mind doing it again?

Mr. 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 --

Justice Felix Frankfurter: You mean three substantive counts against three unrelated defendants?

Mr. 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.

Justice 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?

Mr. 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.

Justice John M. Harlan: 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?

Mr. Jacob Kossman: I could not be here on that point.

We have another point involved.

Justice John M. Harlan: I understand that and (Inaudible).

Mr. 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?

Justice John M. Harlan: You don't quarrel with the original joinder of the substantive offenses of the conspiracy now?

Mr. Jacob Kossman: I -- I can't quarrel in the sense that --

Justice John M. Harlan: In other words, you couldn't (Inaudible) and made a motion on the face of the indictment that this was an improper joinder.

Mr. Jacob Kossman: That is correct -- that --

Justice John M. Harlan: At what point is the -- is the -- that the substantive offenses at least become joinable?

Mr. 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.

Justice William O. Douglas: I take it there a denial of the motion for separate trials after the conspiracy count.

Mr. 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 --

Chief Justice Earl Warren: Where are you --

Justice Felix Frankfurter: Where are you reading from?

I don't follow you.

Chief Justice Earl Warren: I don't either.

Mr. Jacob Kossman: I am reading from page 11 (a) in the record.

Justice Felix Frankfurter: Oh, 11 (a), you said -- (Voice overlap)

Mr. Jacob Kossman: Oh, I beg your pardon.

Justice Felix Frankfurter: All right.

Mr. Jacob Kossman: I beg your pardon.

I beg your pardon.

Chief Justice Earl Warren: Well that's the middle of the page.

Justice Felix Frankfurter: All right.

Chief Justice Earl Warren: Yes.

Mr. 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) --

Justice William O. Douglas: Now the aggregate value, that's your other point.

Mr. Jacob Kossman: That's the other point, yes.

Justice William O. Douglas: That the groups involved or something.

Mr. Jacob Kossman: I beg your pardon?

Justice William O. Douglas: That's after the group of it -- aggregate part of the --

Mr. Jacob Kossman: That's the group, the aggregating of whether $5,000 can be --

Justice William O. Douglas: Yes.

Mr. 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.

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.

Justice Felix Frankfurter: I noticed that in the docket entries on page 2 (a) --

Mr. Jacob Kossman: Yes.

Justice Felix Frankfurter: -- the defendants renew motion for judgment of acquittal and for a new trial.

Mr. Jacob Kossman: That's correct.

Justice Felix Frankfurter: Decision reserved.

Mr. 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.

Unknown Speaker: Mr. Steinberg?

Mr. Jacob Kossman: Yes sir and the --

Justice 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?

Mr. Jacob Kossman: The -- the Court of Appeals dealt with the problem on the merits and the question as to who --

Justice Felix Frankfurter: On what merit was that the --

Mr. Jacob Kossman: On the merits of --

Justice Felix Frankfurter: That severance should have been granted?

Mr. 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.

Justice 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?

Mr. Jacob Kossman: Yes.

That is correct.

Justice 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?

Mr. Jacob Kossman: Well --

Justice 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?

Mr. 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 --

Justice Felix Frankfurter: Well, that's in the case, they called, the Court of Appeals dealt with them then.

Mr. Jacob Kossman: Then, of course the Court of --

Justice 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?

Mr. 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.

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.

Justice Felix Frankfurter: What you mean is that you can't pair it out whether there was prejudice.

Mr. Jacob Kossman: Even if there --

Justice 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.

Mr. Jacob Kossman: Well --

Justice Felix Frankfurter: It's in the hearing in the situation.

It's all --

Mr. 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.

Justice Felix Frankfurter: But, why not?

Mr. Jacob Kossman: Why not?

Because they don't get --

Justice Felix Frankfurter: What this has got to do with our system of Government, why not?

Mr. 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.

Justice 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 --

Mr. Jacob Kossman: Yes.

Justice Felix Frankfurter: -- you assumed even then it wouldn't be right.

Mr. Jacob Kossman: No, well, you can't --

Justice Felix Frankfurter: That's an abstract proposition you're offering, is it?

Mr. Jacob Kossman: But -- I -- I think it's concrete in the sense that --

Justice Felix Frankfurter: Why is it Concrete?

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

Mr. 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.

Justice 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?

Mr. Jacob Kossman: That is correct.

That's what the Court of Appeal said.

Justice 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.

Mr. Jacob Kossman: That is correct.

Justice Hugo L. Black: Is that your position?

Mr. 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 --

Justice Felix Frankfurter: These three defendants was -- were West Virginia, Massachusetts and where?

Mr. Jacob Kossman: And Lebanon, Pennsylvania.

Justice Felix Frankfurter: Where was this trial?

Mr. 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.

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.

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 --

Unknown Speaker: Is that Judge Sobeloff's opinion?

Mr. 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.

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 --

Justice John M. Harlan: It is only if the transactions charged against each defendant that were aggregated, is that right?

Mr. Jacob Kossman: That's correct, each count.

Justice John M. Harlan: No transactions involving counts against other defendants be utilized against any other.

Mr. 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.

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 --

Justice Potter Stewart: What we're looking at now are two or more violations?

Can you put what you're referring to?

Mr. 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.

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 --

Justice John M. Harlan: What do you think of the value section means?

Mr. 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?

Justice Charles E. Whittaker: Does the Court of Appeals (Inaudible)?

Mr. 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.

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.

Chief Justice Earl Warren: Where are you?

Where are you reading?

Mr. Jacob Kossman: I am now in page 40 on the record.

Chief Justice Earl Warren: 40, 40 (a)?

Mr. Jacob Kossman: 40 without the (a).

Chief Justice Earl Warren: Oh yes.

Mr. Jacob Kossman: This is the Government's permission.

Chief Justice Earl Warren: Yes.

Mr. 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.

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.

Justice 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?

Mr. Jacob Kossman: Page 110.

Justice Potter Stewart: 110.

Mr. Jacob Kossman: Page 110.

Justice Potter Stewart: Yes I am there.

Mr. 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.

Justice Felix Frankfurter: Before your sit down --

Mr. Jacob Kossman: Yes.

Justice Felix Frankfurter: -- may I ask you whether the motion -- the original motion of severance, was that in writing?

Mr. Jacob Kossman: No because it was during the trial.

Justice Felix Frankfurter: But not --

Mr. 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.

Justice Potter Stewart: Under Rule 14.

Justice Felix Frankfurter: Now did he --

Justice Potter Stewart: It's not under Rule 8.

Justice Felix Frankfurter: It isn't in the record, is it?

Mr. Jacob Kossman: It is in the record.

Justice Felix Frankfurter: It is?

I'd like to --

Mr. Jacob Kossman: What -- what is in the --

Justice Felix Frankfurter: You mean it was in this (Inaudible) record?

Mr. Jacob Kossman: What is in the record -- what is --

Justice Felix Frankfurter: I didn't mean the fact that it was made but the -- the document.

Is the document printed?

Mr. Jacob Kossman: No.

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.

Justice Felix Frankfurter: Could -- could you have filed with the clerk the copy of the motion -- the original motion of severance?

Mr. Jacob Kossman: That's correct.

Justice Felix Frankfurter: Could -- could you file that?

Mr. Jacob Kossman: It has been filed.

Justice Felix Frankfurter: Pardon me?

Mr. Jacob Kossman: It has been filed.

Justice Felix Frankfurter: It has -- it's here, is it?

Mr. Jacob Kossman: It is here.

Justice Felix Frankfurter: All right, then.

Mr. Jacob Kossman: Now on page 103 -- of course that was before the case started.

Justice Felix Frankfurter: I understand that.

Mr. Jacob Kossman: That on page 103, affidavit in our position, motion for severance.

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

Justice Felix Frankfurter: That is your -- your -- you didn't file one or --

Mr. Jacob Kossman: No.

Justice Felix Frankfurter: -- your client didn't say, didn't say they drive together.

Mr. Jacob Kossman: I beg your pardon.

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

Justice Felix Frankfurter: Well I know but --

Mr. Jacob Kossman: That's good enough.

Their affirmance of --

Justice 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.

Chief Justice Earl Warren: We'll recess now.

Print this transcript Transcript: 

Argument of John F. Davis

Chief Justice Earl Warren: Mr. Davis.

Mr. John F. Davis: Mr. Chief Justice, if the Court please.

In the petitioner's reply brief, it is stated at page 9 and 10 that the Government has grossly misstated the procedural settings in which the question of improper joinder arises.

This is enlarged upon on the following page.

I assume that an accusation for that kind is not likely made and rather, the point is, itself, in part and I think it has to be responded to, if only to give the Court the citations in the records which we rely upon in making the statement which we made.

The Court will have to look at the record to know whether the Government has grossly misstated the procedural setting, so -- and I don't think that it is good use of time to do so during the argument.

If I may, I will give the page references in the printed records, which sustain the position, which we've taken.

Page 11 (a), page 19 (a), page 21 (a).

Justice William J. Brennan: That says, whether the motion was --

Mr. John F. Davis: Whether them -- that's right.

I -- I think it is not important to argue the point on its merits because I can see that the Court has the power to do justice and see that the fair trial has given whether a motion is made or not, but when the statement like this is made in -- in the counsel's brief, I assume that it's -- it should be replied to.

There was, by the way, a motion for new trial made after the verdict.

They renewed their -- at that time, they renewed their motion for judgment and made a motion for new trial, but there was no motion before the verdict.

Now, in a case such as this, the theories of law in the pleadings and precedents, I think, I'm pretty useless unless they are applied to the facts of the particular case.

I think it is futile to argue about improper joinder without reference to the nature of the transactions, which are here involved.

But basically, the question is whether or not, these petitioners received a fair trial when they were tried together in spite of the fact that the conspiracy count was found not to be sufficiently supported to go to the jury.

I think the best starting point in this case is to look at the indictments which are reprinted at page 5 (a), which is repeated to 5 (a) to 7 (a) of the -- of the record.

The indictments are simple indictment in four counts, the first three of these counts charge the substantive effect of transporting and causing to the be transported in -- in interstate commerce, goods -- stolen goods to a value in excess of $5,000.

And those charged in the first count are the three Stracuzzas, Anthony, Mario and Dorothy together with the petitioner -- one of the petitioner -- two of the petitioners here, Max and Norman Schaffer, who maintained a clothing store in Lebanon, Pennsylvania.

The second count is identical with the first, except that the owner of the store who received the goods was Benjamin Marco and the third count, again is identical with the first two, except that the Hyman Karp is the store owner who had received the stolen goods.

The fourth count was the conspiracy count which tied all of them together as a -- as a general conspiracy and as to which the Court found that there was not sufficient evidence to go the jury.

On page 8 (a) is a second indictment, which also charges conspiracy, this time a conspiracy to steal goods from interstate commerce and -- but there is only a conspiracy charge here and this indictment was dismissed at the same time that the count on conspiracy in the first indictment was dismissed and it really raises no different questions.

Now, the evidence in this case shows that the Stracuzzas were engaged in buying stolen property from truck drivers in New York City and they were selling this property from a establishment they maintained in New York City to the owners of clothing stores, operated by the two Schaffers in Lebanon, Pennsylvania, by Mr. Karp in Fall River, Massachusetts and by Mr. Marco in Bluefield, West Virginia.

The evidence showed that these purchases must have known that the merchandise they received was stolen.

They contracted to buy it at a predetermined percentage of its wholesale price either 55% or 60% or 65% as the case may be.

The Stracuzzas reshipped to these buyers in interstate commerce, in lots, each one of which was less than $5,000 in value.

However, during the period of two and a half months, which is covered by this indictment, each purchaser purchased more than $5,000 dollars worth of -- of property.

And this is specifically stipulated by each one of the defendants at the trial, example form of the stipulation appearing on page 21 (a) of the record, where it is specifically stated that the aggregate value of the property shipped to the Schaffers was in excess of $5,000.

Actually, the record shows that the Schaffers received something like $19,000 of property, that Mr. Karp received $17,000, and that Mr. Marco received about $23,000 worth of property.

I think that the order of the presentation of proof is significant in this case, in order to determine whether or not a severance should've been ordered.

The nature of the proof was this.

First, Anthony Stracuzza, who had pleaded guilty, testified for the Government and he described the overall nature of the entire transaction showing that the goods were stolen and received by him and his brother and was sold to these individual store owners, with no attempt being made to -- to hide the -- the source of the -- of the goods.

His testimony and cross-examination, covered about a week of time.

Since he was an accomplice, he was more than an accomplice, he was really the heart of the whole transaction and was far from a trustworthy person, the Government felt that it was necessary to substantiate his testimony.

And it proceeded to do so with evidence from FBI agents who had kept his place under surveillance and who had also checked the receipt of the goods in the various stores.

And was also substantiated by evidence from the transporting agencies who testified as to the property being stolen from them, however, the evidence as introduced, showed little or no relationships between the individual petitioners who are here and on that basis, the judge -- the trial judge determined at the end of the Government's case, that the Government had not made out an overall conspiracy.

And he took that account away from -- from the -- from the jury and submitted the remainder of the case to the jury.

At that time, there was a discussion as to whether or not, it was possible for the jury to distinguish the evidence between the individual dependents and the judge was very clear in his statements that he saw no difficulty in it and that he would cover up with instructions.

Now, our first problem is the application of the rule, as to joinder, to this set of facts.

Now, the rule -- our present rule is 8 (b) of the Rules of Criminal Procedure, set forth at page 3 of the Government's brief and we are concerned with joinder of defendants.

Now, this rule permits the joinder of defendants charged to have participated in the same act or transaction, or in the same series of acts or transactions.

The rule was adopted, as this Court well knows pursuant to the advice by this Court -- pursuant to the advice of an advisory committee, who in then note state that the purpose of this rule was to adopt the more lenient position on joinder of defendants, which had been followed by the Fifth and the Second Circuit as distinguished from a limited rule as the joinder of defendants, which had received recognition in some other circuits.

And it was in that light as a -- as a purposeful adopting of a more lenient rule that the -- the rule was submitted to this Court and adopted.

At the same time, of course, Rule 14 was adopted and Rule 14 is the rule which protects the defendants from any possible prejudice from the relaxation with respect to the rule of joinder.

Rule 14 provides that if the defendant or the Government is prejudiced by a joinder of offences, then the trial court shall take appropriate action, either through severance or otherwise, to protect the -- to protect the parties.

Now, the question is an application of this general rule to this factual situation.

Is this is a series of transactions which can properly be joined in a single indictment?

And basically, I think the way it should be approached -- I think it falls within the language of the rule and I think that the approach that should be taken to it is -- can -- is this the kind of a case -- is this the kind of a trial where the individual defendants can be given a fair trial, when they are tried together or is the nature of case such, that it must be separate and have separate trials?

There are really four cases in this Court that -- that deal specifically with this type of problem and they go to one land to the other and the fact of the matter is that, they can be distinguished on -- on their facts, whether or not, as the Court would look at them, it is possible for -- or not whether it's possible, but whether there is prejudice to the -- to the defendants, whether it appears that prejudice would occur, if they were tried together.

The Kotteakos case, which is one of the most recent cases, is a case where it was felt that they should not have been tried together, because in that case, there were 32 persons which would -- who were charged with conspiracy, involved eight separate groups of transactions and the Court felt that in that -- in that setting, it was impossible for a jury to separate the -- separate the matter out.

I have -- I think that if the Court will look at this record and -- and notice that the kind of testimony that was introduced, the nature of the proof, that it will become apparent that there isn't any fuzz in this, as to -- as to which defendant the proof applies to.

The -- the proof is -- the proof that Stracuzza gave in the first place, dealt with the first pile of that transaction upon -- in the -- in the beginning, that is the nature where the goods came from, it obviously applies to all of the defendants.

And then he dealt with his dealings with each one in turn.

Justice Felix Frankfurter: Have we had any case like this, in which it is conceded, as I understand, that the joinder was proper, valid, not -- not even contested, like some of the defendants, except by one defendant.

Is that right?

Mr. John F. Davis: Well --

Justice Felix Frankfurter: There's -- there's only by one?

Mr. John F. Davis: And not on the basis of -- of this joinder, yes.

Justice Felix Frankfurter: Not on the basis of this.

Where the -- where the joinder was not contested or where no question is now raised that that was improper to begin with, but where the basis of joinder namely, immunity, all defendants were involved in conspiracy where the basis of joinder fails at the end of the Government's case.

Have we had any case like that?

Mr. John F. Davis: Well, I think basically Mr. Justice Frankfurter that both the Berger case and Kotteakos case or that case.

In both of those cases, it went to the jury on a conspiracy.

There was no question, they couldn't have been severed because there was an issue of -- of conspiracy and it went to the jury.

Justice Felix Frankfurter: Yes.

But in the Kotteakos, we had the whole -- we had several conspiracy united at a single trial.

Mr. John F. Davis: But it was charged as a single conspiracy.

Justice Felix Frankfurter: Yes, but -- but --

Mr. John F. Davis: So that they were tied together, as in this case, with a charge of a general conspiracy.

Justice Felix Frankfurter: As I understand, as I recall, I haven't reread it directly to this problem.

In Kotteakos, as to (Inaudible) the difficulty was the multiplicity of a non-coextensive conspiracies among different defendants, is that right?

Mr. John F. Davis: That is right.

If there's a series of eight conspiracies, instead of one conspiracy in effect, but it went to the -- but in answer to -- to Your Honor's first question, it -- it couldn't have been severed, before it went to the -- before the case was tried because there was, as in this case, a generally conspiracy charge.

The same is true of the -- of the Berger case that went to the jury as a single conspiracy, but the Court, in reviewing it, said that the evidence wouldn't support a charge of the single conspiracy, that the most that it would prove would be two conspiracies in the Berger case.

In --

Justice Felix Frankfurter: They're all --

Mr. John F. Davis: -- other case (Voice Overlap) --

Justice Felix Frankfurter: Weren't there also some questions of the basis on which it was left to the jury finally, where there's a confusion whether it has one or several?

Mr. John F. Davis: That's right.

Justice Felix Frankfurter: So that you -- from my -- from my reading or for my thinking on this subject, there were questions in those cases that are independent of a problem of propriety of joinder?

Mr. John F. Davis: That's right.

There were questions of -- of proper instruction.

There's no question about proper instruction here.

Now, in the McElroy case, they were all substantive counts that were charged.

There was no question of tying together with a conspiracy.

They were just a series of substantive counts, two attempt to murder and -- and two acts of arson.

And they were tied together in time and place, but not all the defendants were involved in each of the counts.

And in that case, the Court said that the -- there was an improper joinder, because they felt that there was not enough relationship between the series of acts which was involved.

But here, the -- it makes -- it makes good sense, both from the point of the defendant and the point of view of the Government, but this kind of a trial to be carried on at one time.

To -- to try the case first against the Stracuzzas and -- and the Schaffers, maybe getting a convection and maybe not, then to try the case against the Stracuzzas and -- and Karp and then against the Stracuzzas and -- and Marco would -- would certainly harass the Stracuzzas, if nobody else and yet they were involved in each one of these -- in these transactions.

Justice John M. Harlan: Did you -- you sustain the joinder, as I understand it, independently as the joining of the conspiracy count.

Mr. John F. Davis: That is right.

I think that this is -- these participants in a series of acts of transactions and therefore, it's -- it's an appropriate joinder.

Justice John M. Harlan: (Voice Overlap) material --

Mr. John F. Davis: That is right.

And we make this the second -- the second point that whether this be sold or not, that at the time the Government commenced the trial, there was a proper joinder, because of the conspiracy count.

And when that was thrown out, then the remedy was to force severance if the judge felt that at that time, there was prejudice.

And that time, it was incumbent upon the defendants to -- to show why they were prejudiced and if they did -- couldn't was -- there, it was entirely proper to continue the case and that's --

Justice Felix Frankfurter: How long had the trial been on when the conspiracy charge is taking from the jury?

Mr. John F. Davis: The entire trial --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. John F. Davis: -- Your Honor.

The entire trial -- the -- that the entire Government's evidence was in and the defendants put in no evidence.

Justice Felix Frankfurter: Yes.

I want to know how -- how many days of trial there as they --

Mr. John F. Davis: That they were little over two weeks.

I can't remember whether it was seven --

Justice Felix Frankfurter: And the --

Mr. John F. Davis: -- six days week to five days.

Justice Felix Frankfurter: (Voice Overlap) the jury?

Mr. John F. Davis: That is right.

Justice Felix Frankfurter: That how many more days of trial were there?

Mr. John F. Davis: There were no more days of trial.

Justice Felix Frankfurter: They -- they ended them?

Mr. John F. Davis: The -- the Government rested and the defendant put in no evidence.

Justice Felix Frankfurter: Oh, was -- was the -- was there ever a suggestion at any -- at any time in the course of the trial that the conspiracy charge was included in the indictment and was true horn to get in the joinder?

Mr. John F. Davis: I think that -- I don't think that accusation is -- is made.

It's -- it's been denied here today.

Justice Felix Frankfurter: He denies it at the end.

Mr. John F. Davis: Yes.

The counsel said that he wasn't accusing the Government of bad faith in sort of case, but he was saying it opened the way up to bad faith.

And in reply to that, I would say that Rule 14 would protect against -- which allows the -- the trial court to prevent prejudice, would protect against bad faith.

Sorry, Mr. Justice Whittaker, you --

Justice Charles E. Whittaker: Well, you didn't answer the question.

I was curious to know whether or not, the defendants did offer in the evidence, they seem other than that.

Mr. John F. Davis: No.

They offered no evidence at all.

They -- they were attempting to get the judgment -- to get the whole case taken away from the jury, before it went to the jury.

Justice Charles E. Whittaker: The whole trial, except for the submission, included with the Government's case.

Mr. John F. Davis: That is right entirely.

Well, this makes no difference, but I would say that they introduced the stipulations as to value after the Government's case was tried and a stipulation as to how some other testimony would be -- would appear, if it were presented, but except for those stipulations, there was no evidence.

Justice Felix Frankfurter: Where does the phrase -- I noticed that the phrase in the present -- in the present -- in our Rule 8 (b) or a series of acts or transactions, connected together was used by Chief Justice Fuller in McElroy.

You know the argument of that?

It goes with a -- with a prior case?

Is the McElroy case that --

Mr. John F. Davis: There's the Pointer case.

The Pointer case was --

Justice Felix Frankfurter: The Pointer case was against the same defendant.

Mr. John F. Davis: Yes, but at that time, they -- they used the same joinder.

Both McElroy and Pointer rely on the same -- on the same provision of law as to whether it's proper joinder.

Justice Felix Frankfurter: Here's -- I understand it, but where does it come from?

There is no rule in its decision.

Mr. John F. Davis: No.

No, there isn't.

Justice Felix Frankfurter: It's just common law at all, of course, the --

Mr. John F. Davis: That is right.

Justice Felix Frankfurter: Now I want to know what they argument with the -- if as Chief Justice Fuller in McElroy, the thing that or the -- Mr. Justice Harlan did in Pointer.

Mr. John F. Davis: I think Mr. Justice Harlan uses this in Pointer.

I think Pointer is the first one and -- and that -- that in -- in McElroy, he accepts the theories --

Justice Felix Frankfurter: All right.

Mr. John F. Davis: -- of -- of Judge Harlan in Pointer.

And -- but distinguishes the case.

With respect to the prejudice to the defendants in the -- in the evidence that -- which was in the case, I read the entire transcript not only the record here and the only item that I find there and it's referred to in -- in the briefs, where there could be confusion as to which defendant, particular evidence was introduced with respect to, was when a Federal Bureau of Investigation's agent testified that Mr. Karp had told him that he had seen the Schaffers, who are also petitioners, Karp is one of the defendant, that he had seen them at one of these places of business.

Now technically, I think this evidence cannot be introduced against the Schaffers because this is hearsay evidence and made out of that presence and I think it is not proper evidence against the Schaffers.

It came in under instructions, specific instructions, that it was to be used against Karp only.

It came in without any objection from the Schaffers and what is more, it is entirely unprejudicial to the Schaffers because they claimed, time and time again, that they were at this -- these places of business and that they did buy goods there.

And for someone to say that they were seen at a place where they insist that they were, can hardly do them damage.

Justice Felix Frankfurter: Did -- I don't suppose the judge or did the judge know when he denied this motion that he had before him all the evidence there would be in the case?

In other words that the --

Mr. John F. Davis: No, he didn't know, because he -- he discussed the problems of value when he said, “Now, I'm going to withhold judgment on your motion for dismissal --

Justice Felix Frankfurter: Until I hear the rest.

Mr. John F. Davis: -- until I hear the rest and I warn you.”

He said.

So he must -- I warn you if go ahead that you may hurt yourselves rather than help yourselves by going ahead with more evidence.

He was thinking then of the question of value.

The aggregation of values that cross-examination might help on that problem.

So he said, “If you want to go -- I -- I warn you, you -- you may hurt yourselves, but I'm not going to make a judgment on your motion at the present time.”

And then they rested.

They didn't go ahead with any addition.

Justice Charles E. Whittaker: Now, when you say emotion, so we'd clear about that, are you referring to the proceedings on page 11 to 19 of the record?

Mr. John F. Davis: 11 to 21 (a).

Justice Charles E. Whittaker: 21 (a).

Mr. John F. Davis: The motion is formalized on page 21 (a), at the bottom of the page.

Justice Felix Frankfurter: Is there any -- is there any basis for saying that the defendants might've been influenced not putting in a case, but resting on the Government's case because of -- that the joinder up to that time that had made it difficult to dissever the unrelated testimony of, at least, one witness.

Mr. John F. Davis: Well, I think that's -- that's a hard question to answer.

It's a question of judgment.

The issue and really the only issue which they were trying out, and this I say from reading the record, there's no single place you can -- you can find it.

The only issue they were trying out with guilty knowledge of these individual store buyers.

There was no question that they bought large quantities of material and they bought them from the Stracuzzas.

There's no question that the Stracuzzas stole this stuff.

Justice Felix Frankfurter: When you say that, what's the basis for saying that?

Mr. John F. Davis: Which, that this is the only issue?

Justice Felix Frankfurter: That's the only issue they've contested.

Mr. John F. Davis: Well --

Justice Felix Frankfurter: Did this --

Mr. John F. Davis: Just --

Justice Felix Frankfurter: You mean on the basis of the occurrence of cross-examination?

Mr. John F. Davis: On all -- well, on the nature of their cross exam -- the nature of the briefs, the stipulation that they received stolen goods from the Stracuzzas, the question that -- well, there's no contradiction that the Stracuzzas stolen the -- stole the goods, I -- that's the only issue really that there was left in the case.

As I say, this is a question of judgment and people can quiver with it.

They can talk about whether there's sufficient evidence and things like that, but basically, that's what the trial was about as I read the transcript, whether or not, these people had any guilty knowledge that the materials they were receiving were stolen.

Justice Felix Frankfurter: Did the judge disclose his mind, why he thought there'd be no prejudice?

Mr. John F. Davis: He said that the evidence was all introduced in a -- in an orderly way that it was easily attributable to the individual defendants and that there was -- and may I say this, that we are fortunate in this case in having the charge of the court to the jury here, set out in full from pages 58 to about 60 or so of the -- of the brief.

And I -- I think that as a method for this Court to determine the -- the general nature of what this evidence was, how well it could be divided, that this charge of the judge to the jury, which is one of the charges that outlines the evidence, gives a very -- a very fair idea of what the nature of the evidence was.

Justice Felix Frankfurter: When you say, in this case, we're fortunate in having a charge that a sufficient justification for me to say that I think it would help in all criminal cases that come here, if the Government sought that you always had the full text of the charge in the record.

Mr. John F. Davis: Well, it's -- it's particularly convenient to have it printed too, because --

Justice Felix Frankfurter: That's what I'm talking about.

Mr. John F. Davis: -- when single -- yes.

Justice Felix Frankfurter: I mean in our record, not in the stenographic meaning.

Chief Justice Earl Warren: Mr. Davis, is there -- is there any significance to the judge holding up his ruling on that motion and then admonishing the defendants?

Now, I warn you to put any evidence in, you might be doing it to your detriment, because I will use that against you.

Is there any -- is there -- is that a fair proceeding?

Mr. John F. Davis: Yes, I think so.

Let me -- let me explain the context in which this was done.

This was really on the second point that I am coming to, with the question of aggregating the shipments, so as to make up a total of $5,000, before you get federal jurisdiction.

And the judge had been worried because the only Court of Appeals case which was not in this circuit, but in another circuit, had indicated that you couldn't add them together unless there were a -- unless there were some agreement that all of this stuff should be shipped.

That's the -- that's the Fourth Circuit.

It's -- it's a dictum in the case, but the Fourth Circuit had said this.

And Judge Murphy was disturbed about the question of whether the Government's case was -- fell within that and how he should -- how he should decide this as a matter of law.

Now, what he was really saying to the defendants was I don't know to how I'm going to decide this question of law, but if you go ahead with evidence and if it -- if it turns out that we've -- that there are shipments, if the shipments in one lot are over $5,000, by then, you will have done yourself some harm.

Now, this isn't done before the jury -- this is to the -- to the --

Chief Justice Earl Warren: You know, I understand that.

Mr. John F. Davis: -- to the lawyers.

Chief Justice Earl Warren: Yes.

Mr. John F. Davis: And he's just saying you -- you know how to try your own case, but if you -- if you make it -- if you make this case, well then, this problem will -- will disappear.

And that's all he's doing.

He's not --

Justice Felix Frankfurter: And to make --

Mr. John F. Davis: He's not scaring them or anything.

He is -- he is wanting them really.

Justice Felix Frankfurter: If you make this case, what -- what's that.

I don't follow that Mr. Davis.

Mr. John F. Davis: Well, suppose that they put Mr. Schaffer on the stand to prove his innocence and in cross-examination --

Justice Felix Frankfurter: (Voice Overlap)

Justice Felix Frankfurter: -- it proves that there were --

Justice Felix Frankfurter: And he -- he -- and he proves the $5,000.

Mr. John F. Davis: Yes.

Why, they -- then the court no longer has his legal problem before it.

Then that's -- that's what Judge Murphy was saying to them, I think.

Justice Felix Frankfurter: But does the -- does the proof of $5,000 as to one of the three defendants, take care of the indictment against them.

You're coming to that.

Mr. John F. Davis: Now, I am coming to that and I don't think it does.

But I don't think we have to come -- I don't think we have to reach that point.

Justice Felix Frankfurter: Well, I didn't mean to anticipate.

Chief Justice Earl Warren: Mr. Davis, one other thing I -- I noticed this morning, when -- when counsel was reading, I think, it was on page 13 (a).

He says, “As Your Honor knows, there are over 200 exhibits involving over 1000 sheets of paper here.”

Do you -- what significance do you give to that on the complexity of the -- of the case, when they're all being tried together.

Mr. John F. Davis: Well, the -- most of these are checks as -- as stated by the -- by the judge in response with checks on these individual defendants --

Chief Justice Earl Warren: He says 200 exhibits and 1000 sheets.

Mr. John F. Davis: Well, of the others -- many of the other exhibits were the shipping papers though -- to get the term that's used in -- in the record, but it's the manifest of the shipping papers that went with the goods.

What happened was that they'd get a bale of goods that were stolen from a truck and it would have a bill of lading, in effect.

I'm not using the right terms but --

Justice Felix Frankfurter: Invoices.

Mr. John F. Davis: Invoice of some kind, which would show the manufacture and the person to whom it was to go and the price and the description of the things.

And the Stracuzzas would cut of the portion of it, which showed the people who it was going to.

But they would leave the rest of this invoice in the bale, when they send it on to these clothing merchants, so that the clothing merchants -- this people didn't trust each other very fair, so if the clothing merchants would know what the wholesale value was and could pay the 50%, 60%, 65% of the -- of the price.

Well, there were hundreds, hundreds of these invoices introduced in -- in the evidence, primarily to show that the recipients must've realized that this, if nothing else, shows that the goods were stolen goods.

And those take up the large number of the exhibits.

I don't think that any of the exhibits really raise any problem about crossing a line between the guilty knowledge of one independent and the other.

I think they're all -- all free.

Justice Felix Frankfurter: How many witnesses were there in the -- for the Government, in number?

Mr. John F. Davis: Oh, I would think that they were probably 15 -- maybe 20.

But it --

Justice Felix Frankfurter: If -- if the defendants had -- how many trial counsels were there for the defense?

Mr. John F. Davis: There were three separate trial counsels.

Each -- each -- rather there's the two Schaffers -- we've treated the two Schaffers as one here and I think, it's easy -- these two Schaffers had one and Mr. Karp and Mr. Marco each had -- had one.

Justice Felix Frankfurter: And it -- as the record -- would the record show that the stenographic minute that each of the 15 witnesses or whatever they were, are separately cross-examined at length by the different defendants, or is there a good deal of taking over by someone loyal for the defense.

Mr. John F. Davis: Well, the principal witness, Anthony Stracuzza, was extensively cross-examined by each of them and -- but they wouldn't -- each of them cross-examined -- an FBI agent would've checked Mr. Karp's store and will check the receipt of -- of these goods at Mr. Karp's place of business.

And as to him, the cross-examination would be entirely by Mr. Karp's lawyer and most of the evidence was like that after Stracuzza -- after the Stracuzzas (Voice Overlap) --

Justice Felix Frankfurter: How many pages are there in this two weeks trial, do you know?

Mr. John F. Davis: The typewritten pages, 1600 pages.

Justice Felix Frankfurter: 1600.

Mr. John F. Davis: Quite a long trial, because the cross-examination took a -- took a long time.

Justice Felix Frankfurter: How many days as chief of the Government's reliance on the stand?

Mr. John F. Davis: I -- I beg your pardon?

Justice Felix Frankfurter: How many -- of the 1600 pages, how many are taking up by the -- by the Government's witness, by the (Inaudible)?

Mr. John F. Davis: By Stracuzza --

Justice Felix Frankfurter: Yes.

Mr. John F. Davis: -- himself?

Well, he --

Justice Felix Frankfurter: Half of -- half of the minutes?

Mr. John F. Davis: No, probably not half.

He was on for a week --

Justice Felix Frankfurter: He was on for a week --

Mr. John F. Davis: -- eight days, I think, with the cross-exam. He was on about three days on direct examination and about three days on cross-examination.

Justice Felix Frankfurter: So he is of half the trial worthy.

Mr. John F. Davis: He was pretty nearly half of the trial.

Well, he was the -- he proved the case.

I mean the rest of the material was just because he is a thief and -- and he had to be -- it had to be confirmed.

You couldn't go to the jury on his testimony alone.

Chief Justice Earl Warren: I was wondering, Mr. Davis, there were three Stracuzzas, who were charged in this conspiracy and was it one -- one or more of them who had pleaded guilty?

Mr. John F. Davis: Two of them that pleaded guilty.

Chief Justice Earl Warren: Two of them pleaded guilty.

I wonder why they -- why they didn't try the third one with these people, when they tried them on the conspiracy charge?

Mr. John F. Davis: Mr. Chief Justice, I would like, if I may, to leave that to the second argument.

Chief Justice Earl Warren: Well, --

Mr. John F. Davis: It -- it's --

Chief Justice Earl Warren: All right.

Mr. John F. Davis: It's really that part of the heart of the -- of the second argument and I do want to get to the aggregating --

Chief Justice Earl Warren: All right.

Go right to it.

Mr. John F. Davis: -- and it is -- it is a matter that we will have to go into.

Chief Justice Earl Warren: Go right in.

Mr. John F. Davis: The second issue which Mr. Kossman has argued as the three issues in the case is whether or not, it was proper to aggregate the shipments to each one of these defendants in order to reach the jurisdictional amount of $5,000.

And I think --

Justice Felix Frankfurter: Would you mind quickly summarizing exactly what the figures are with reference to the shipments?

Mr. John F. Davis: Yes.

Each one of the individual shipments to each one of these defendants was less than $500.

There's no proof in the record of any single shipment of over $5,000.

There is a stipulation as to each defendant that although the individual shipments are less than $5,000, the aggregate value of the merchandise shipped to him was in excess of $5,000.

Justice Felix Frankfurter: State that again individually.

Mr. John F. Davis: Let me refer you specifically to page 11 of our brief.

And this quotes from the stipulation with the Schaffers, but it is same with the others with changes in language, which are not material.

“It is hereby stipulated that the aggregate value of the merchandise consisting of ladies wear and apparel, which was transported from the Southern District of New York to Lebanon, Pennsylvania to the defendants, Max Schaffer and Norman Schaffer, during the period from or on or about May 15, up to and including July 27, was in excess of $5,000.

Each shipment was a value of less than $5,000.”

Justice Felix Frankfurter: But this -- this is -- these may have been innocent shipments.

I mean shipments as to --

Mr. John F. Davis: No, these are shipments from --

Justice Felix Frankfurter: Are they necessarily tainted?

Mr. John F. Davis: They are shipments from -- from the Stracuzzas to -- to -- and all Stracuzzas said all them -- all of their stuff were stolen.

I mean that the stolen goods, yes.

I -- I hadn't considered that in the --

Justice Felix Frankfurter: But (Inaudible), but that doesn't --

Mr. John F. Davis: Yes, there's no issue really that that's referring to anything but stolen -- but the stolen goods.

Justice Felix Frankfurter: And the question of knowledge is, of course, a different story.

Mr. John F. Davis: The question of knowledge -- the question of the sufficiency of the evidence, which isn't -- isn't before the Court of (Voice Overlap).

Justice Felix Frankfurter: That is the sum total of shipment that went to each one these defendants as $45,000?

Mr. John F. Davis: That's right.

Justice Felix Frankfurter: You're not aggregating shipment of the three as against anyone?

Mr. John F. Davis: That is right.

Now, I think under the statute, an argument could be made that all of these shipments to all of the defendants could be aggregated.

I don't have to argue that here.

We don't reach that on the facts of this case, all we are doing is aggregating the amount of shipments made to in individual defendant.

I think it's important to see the language of the statute, it appears at pages 2 and 3 of the -- of the Government's brief.

And the important part is the definition of value and on the value what is stated, that value means the market value referred to in a single indictment.

And that you see -- I am sorry, I've misread that.

And money referred to in a single indictment shall constitute the value thereof.

The entire -- it -- it was purposely put in there as the legislative history shows, so that if individual shipments to a -- to a defendant were less than the jurisdictional amount, that the entire amount which could be properly joined together in a single indictment could be added together and could be considered to reach the jurisdictional amount.

And the question which we have is really only whether one, whether that's what Congress meant when it said it, because there's really no problem of -- of constitutional law.

These are interstate -- these are interstate shipments.

Congress didn't have to put any limitation on value at all.

It could've said anything of value, shipped -- that was stolen and shipped in interstate commerce could constitute a federal crime.

It didn't choose to do so.

It felt that this would be bringing the Federal Government too much into the -- into the field of -- that the State should handle.

And so it did say that the value should be $5,000.

The legislative history shows that what they meant was that if there should be a series, the language is used in the reports, a series of transactions.

Now, I don't think that that means what the Fourth Circuit said, that it must be a group of transactions which were agreed to in the beginning.

A series seems to me that the -- some transactions which are, in some way, connected together in time, place, proximity, something to make them related to each other.

And I think that's what the Court of Appeals was stating when they -- when they --

Justice John M. Harlan: Whether the Andrews case, one, where they were trying to aggregate shipments involving different counts, involving different dependents and using them all against one defendant?

Mr. John F. Davis: The -- in the Andrews case, involved different defendants.

And one of the defendants was not connected with the others, had received in aggregate, less than $5,000 worth, and the Court, threw that out, as I think they probably should under the statute.

It's a question again on whether you aggregate shipments to other people.

But the Court threw it out and then they went on, and this is dictum to be sure, because they didn't have to say it, but they did say that they felt that it had to be one scheme on one plan, in order to -- in order to be aggregated under the statute.

And that's what gave judge -- I think that's wrong.

I think that the Congress meant a -- by a series of transactions, something much looser than a conspiracy or -- or under one contract.

I think they meant transactions which between the same people and which have -- have some relationship to each other and that's --

Justice Felix Frankfurter: 100 -- 100 shipments of $50 worth, spread over a year, in your view, would -- would satisfy the statute.

Mr. John F. Davis: I -- I think that is so.

From the same -- in the -- in the steady course of business between these people --

Justice Felix Frankfurter: We might --

Mr. John F. Davis: -- whether under just one contract, or just under individual sales.

Justice Felix Frankfurter: We might have a problem, if you haven't go here, namely, the problems of statute of limitations as (Voice Overlap) --

Mr. John F. Davis: You might have -- you might have that and -- and that would be -- that would be bothersome, if it was spread over five years or something like that.

You don't have that here.

Justice Potter Stewart: Over how long a period are the shipments?

Mr. John F. Davis: Two and a half months, Your Honor.

Justice Potter Stewart: Two and a half years?

Mr. John F. Davis: Two and a half months.

Justice Potter Stewart: Oh, months.

Mr. John F. Davis: Two and a half months.

Justice Potter Stewart: With respect to each of the three defendants?

Mr. John F. Davis: That's right.

Well, some of them were shattered, the over all period is two and a half months.

It's set forth in the indictment that it's from May until about July 1st, the middle of May, until about July 1st.

It's the longest period.

One of them is -- is less than that.

Justice Potter Stewart: One other question, so long as --

Mr. John F. Davis: Yes.

Justice Potter Stewart: -- I've already interrupted you and this takes us back to quite along your argument.

Mr. John F. Davis: Sure.

Justice Potter Stewart: As a matter of the fact, was it -- was it shown at the trial that any of these three defendants, counting the Schaffers as one, knew each other or had any dealings with each other?

Mr. John F. Davis: The -- the most that there is evidence of is that -- is the evidence I referred to that the Federal Bureau of Investigation's agent said that Karp told him that he had met the Schaffers at one of these places of business, which would be admissible, as I say, only against Karp in -- in any event.

Justice Felix Frankfurter: That wasn't part of your case.

That was not part of your case.

Mr. John F. Davis: No.

That's not part of our case.

(Voice Overlap) --

Justice Potter Stewart: What is certainly part of your conspiracy case in the trial court?

Mr. John F. Davis: If -- well, I'm sure that that is --

Justice Potter Stewart: Did it -- at least, they knew each other.

Mr. John F. Davis: I think that -- that will --

Justice Potter Stewart: (Voice Overlap) --

Mr. John F. Davis: I think that -- that was -- it was prepared and the -- the U.S attorney must've felt that he had something more to present.

Why?

What happen to it?

I -- I have no -- no way of knowing.

He had no other evidence as to introduce as to knowledge of the -- of the -- of one of the group or the other.

Justice Tom C. Clark: (Inaudible)

Mr. John F. Davis: That is in response to the motion to sever and I assume that he must‘ve thought he was going to prove this is in some way, unless he -- the statement was made.

Well I assume, he must have known that he was --

Justice Tom C. Clark: (Voice Overlap) --

Mr. John F. Davis: Yes.

And the only evidence was that the Karp -- Karp admit the Schaffers.

There was no evidence that Marco admitted any of the others.

Well, just looking at the statute then, it seems to me that the statute clearly permits the aggregation in the situation like that and that it isn't necessary that there be a -- a plan or agreement and that there really isn't any difference between what the -- how the judge charge the jury.

The judge refused the charge to be sure that was asked by the defendants that there had to be a common plan.

He said that that wasn't necessary, but I don't need the Court of Appeals as -- as disagreeing with that.

I don't think that the Court of Appeals felt that there had to be a contract that a conspiracy or anything like that.

I think that there was, all the way through, the idea was that here with a series of sales from one source to the -- to this -- to the -- to the clothing store and that that was sufficient to meet the jurisdictional amount covered by the statute.

Justice William J. Brennan: I need to say Mr. Davis, there's no question that as at to each of the shipments made through the Schaffers, there was evidence from which guilty knowledge that the Schaffers have here, stolen goods.

Mr. John F. Davis: Well, I say that, but that's -- that's a conclusion.

I mean, the -- the jury found them guilty of -- of receiving over $5,000 worth.

It's all -- it's all one part.

Justice William J. Brennan: I -- I haven't studied the charge.

Mr. John F. Davis: It's all one ball of wax and I don't know how any of it could -- could be cut out.

I mean it would --

Justice William J. Brennan: Well, I haven't read the charge.

Mr. John F. Davis: Yes.

Justice William J. Brennan: It was the charge that -- as to the Schaffers or had to be a finding by the jury that the Schaffers had guilty knowledge that this was stolen goods as to each of the transaction (Voice Overlap) --

Mr. John F. Davis: No, there was no such -- and there was no such charge to -- to the jury.

If the jury -- the charge to the jury was that there was evidence from which the jury could find that the -- well, the Court reviews the evidence by the jury -- by the Schaffers, how the evidence ties in with knowledge, but it was left to the jury to find whether or not they knew.

Justice William J. Brennan: Well, that's -- but -- but it was left to find -- they would have to find you, did they not, if you aggregate that as to each of these --

Mr. John F. Davis: There would have --

Justice William J. Brennan: -- was guilty knowledge.

Mr. John F. Davis: They -- they would have to find that all of it was stolen and they had knowledge of it, or at least, yes, or at least $5,000.

Justice William J. Brennan: That's what I mean, at least $5,000.

Mr. John F. Davis: But -- but as you read the -- as you read the record, there's no -- all of these -- all of the materials that -- that the Stracuzzas were selling were stolen.

They had no other source to find.

Justice William J. Brennan: Well, I wouldn't necessarily follow with it that the Schaffers would know that each shipment that they bought --

Mr. John F. Davis: Well --

Justice William J. Brennan: -- unless it was evidence as to the fact.

Mr. John F. Davis: Well, the evidence -- the evidence is abundant that the method of dealing, showing it was all handled in the same way with the -- with the invoices sent and the discount's the same.

I mean -- that if it's no -- there's no basis to distinguish between Schaffer and another.

Justice Tom C. Clark: Judge Murphy's charge sets up the four elements, does it not?

Mr. John F. Davis: Yes, it does.

Justice Tom C. Clark: They have to be stolen -- they have to know, if they were stolen and have to deal with $5,000 dollars as to be in commerce?

Mr. John F. Davis: That's right and this is, of course, left to the jury to find.

I mean he was --

Justice Tom C. Clark: But he told him, they'd have to find (Voice Overlap).

Mr. John F. Davis: That is -- that's -- that is right.

Chief Justice Earl Warren: Mr. Kossman.

Argument of Jacob Kossman

Mr. Jacob Kossman: This -- this was no open and shut case.

The charge of the Court on page 55 (a) states -- 55 (a), the front part of the book, “You will recall that Stracuzza testified that he did not tell any of defendants that the goods were stolen, although he testified that all the goods he sold were in fact stolen?”

The Government claims that the circumstantial evidence from which you properly draw the inference against each defendant, is the sum total of a number of different facts and circumstances.

And referring to the transcript, which is not printed, is 578, the question was asked of Stracuzza, “Did you tell any of your customers that the goods were stolen?”

The answer was, no.

And Stracuzza had eight or nine other customers which are in the record.

That's point number one.

Chief Justice Earl Warren: He is a Government -- a Government's witness?

Mr. Jacob Kossman: That's right.

He was the main Government witness.

He was the supplier and he said, I didn't tell anybody that the goods were stolen.

Justice William J. Brennan: But Mr. .Kossman, the very next paragraph of Judge Murphy's --

Mr. Jacob Kossman: I beg your pardon?

Justice William J. Brennan: The very next paragraph of Judge Murphy's charge, suggests that that finding could be made based on all the circumstances including the manufacturers invoices and so forth?

Mr. Jacob Kossman: It's -- that is correct, when the judge states, for example, as against all the invoices.

It says that the manufacture invoices which Stracuzza says were -- were an obvious indication that the goods were stolen, but there are many not to argue the case on the merits and we didn't because of the jury's verdict, but since it's been introduced, but there are many -- many discount houses all over the country, where they have original manufacture's invoices and they show it to people.

But this was a circumstantial evidence case.

Now, the Court of Appeal --

Justice Tom C. Clark: (Voice Overlap) Mr. Stracuzza says he inserted the invoices in the shipment.

Mr. Jacob Kossman: I beg your pardon?

Justice Tom C. Clark: I -- I gather that what you just read and what Mr. Stracuzza said were that the invoice were included in the shipment.

And the judge goes on to say that these were an obvious indication that the goods were stolen because the man was just liberated and torn all of (Inaudible) prices we'll have a portion to be different from the invoice.

Mr. Jacob Kossman: Well, the word, “it” I think refers to the -- the Government.

In other words, it wasn't exactly the Court expressing his own opinion, as such, for example, as against all the defendant, it --

Justice Tom C. Clark: The Government --

Mr. Jacob Kossman: -- says.

I mean --

Justice Tom C. Clark: (Voice Overlap) --

Mr. Jacob Kossman: Now, secondly on page 114 of the Court of Appeals-based opinion --

Justice Tom C. Clark: What page was it?

Mr. Jacob Kossman: Page 114.

The first -- the first paragraph -- page 114, “Each defendant live in a different part of the east, except to the two Schaffers, who operated the store together.

And there is nothing in the record to indicate that anyone of them knew that Stracuzzas dealings with the others.”

Now, this -- there was that loose testimony they asked the -- in a statement one of the other defendants.

“Did you know the Schaffer?”

And he said, “I was introduced to him years ago.”

That's all there was to then.

Mere -- I was introduced.

That's -- that's all that was to that.

Now, the next point which, I think, is most important is this and that comes to 19 (a).

The Court said, “What I am going to do puts you in the most unique position.

I am going to assume you raising for a motion to dismiss so on and so forth.

And you know from reading the cases, that you put your case in at your peril, because it might develop to your disadvantage.”

Well, it's not correct for the Government to represent to this Court that that referred to the fact that if a man had taken the stand, they might have asked him a question on cross-examination, was the shipment more that $5,000, because they knew, no shipment was $5,000.

They were added up, so that the -- that problem didn't come into play at all when the judge said that.

The -- the defendant -- they had the record of the shipments.

So that came in context and you'll have to read, I am sorry, I didn't print by new -- it didn't -- it wouldn't develop this way.

Between 1429 -- between 1430 and 1434 of the transcript, you'll see that the defendants, one that there were -- had subpoenaed Stracuzza's wife and there was a question whether they -- she should or could not testify.

They had witnesses, the -- the wives of these individuals and they thought, trusting from memory, that the case might take another week in order to put their defense on.

Now, they decided not to.

I can't represent to Your Honor the reason why they cited because I can only talk from the record, but certainly when the Court says that you put -- they -- the Government can't represent that that expression had to deal with the -- that there was the transportation because that was out of the picture.

No one could say on cross-examination that any shipment was more than $5,000, because if they could, the Government won't approve that on direct examination.

They had the record of it.

So to leave that impression --

Justice John M. Harlan: Where do you make any point of this independently then?

Mr. Jacob Kossman: Well, we -- we make that point in this -- in the sense that at leading -- leading that in the year for the Court to say that, does affect the disposition of a -- of a joint trial, but I cannot say, I cannot positively represent that as a result of what that took -- what he said, that they did not put on their defense.

But it seems to me that in expression like that, most logically, would.

At any rate, I only -- I never mentioned this on direct examination.

I only mentioned it now, in order to remove the impression that the Government wanted -- that the reason we didn't put on was on account of the $5,000 that might've come out in cross-examination.

Now, all we've always asked is for a separate trial and that a charge that there be an aggregation of $5,000.

That's what we ask in the lower court, that's what ask in the Court of Appeals and that what we ask here.