MR. JUSTICE BLACK delivered the opinion of the Court.
A federal district court indictment charged in three counts that petitioner and a woman defendant had (1) induced and persuaded another woman to go on October 20, 1941, from New York City to Miami, Florida, for the purpose of prostitution, in violation of 18 U.S.C. § 399 (now § 2422); (2) transported or caused her to be transported from New York to Miami for that purpose, in violation of 18 U.S.C. § 398 (now § 2421); and (3) conspired to commit those offenses in violation of 18 U.S.C. § 88 (now § 371). Tried alone, the petitioner was convicted on all three counts of the indictment. The Court of Appeals affirmed. 167 F.2d 943. And see disposition of prior appeal, 145 F.2d 76. We granted certiorari limiting our review to consideration of alleged error in admission of certain hearsay testimony against petitioner over his timely and repeated objections.
The challenged testimony was elicited by the Government from its complaining witness, the person whom petitioner and the woman defendant allegedly induced to go from New York to Florida for the purpose of prostitution. The testimony narrated the following purported conversation between the complaining witness and petitioner's alleged co-conspirator, the woman defendant.
It is beyond doubt that the central aim of the alleged conspiracy — transportation of the complaining witness to Florida for prostitution — had either never existed or had long since ended in success or failure when and if the alleged co-conspirator made the statement attributed to her. Cf. Lew Moy v. United States, 237 F. 50. The statement plainly implied that petitioner was guilty of the crime for which he was on trial. It was made in petitioner's absence and the Government made no effort whatever to show that it was made with his authority. The testimony thus stands as an unsworn, out-of-court declaration of petitioner's guilt. This hearsay declaration, attributed to a co-conspirator, was not made pursuant to and in furtherance of objectives of the conspiracy charged in the indictment, because if made, it was after those objectives either had failed or had been achieved. Under these circumstances, the hearsay declaration attributed to the alleged co-conspirator was not admissible
Although the Government recognizes that the chief objective of the conspiracy — transportation for prostitution purposes — had ended in success or failure before the reported conversation took place, it nevertheless argues for admissibility of the hearsay declaration as one in furtherance of a continuing subsidiary objective of the conspiracy. Its argument runs this way. Conspirators about to commit crimes always expressly or implicitly agree to collaborate with each other to conceal facts in order to prevent detection, conviction and punishment. Thus the argument is that even after the central criminal objectives of a conspiracy have succeeded or failed, an implicit subsidiary phase of the conspiracy always survives, the phase which has concealment as its sole objective. The Court of Appeals adopted this view. It viewed the alleged hearsay declaration as one in furtherance of this continuing subsidiary phase of the conspiracy, as part of "the implied agreement to conceal." 167 F.2d 943, 948. It consequently held the declaration properly admitted.
We cannot accept the Government's contention. There are many logical and practical reasons that could be advanced against a special evidentiary rule that permits out-of-court statements of one conspirator to be used against another. But however cogent these reasons, it is firmly established that where made in furtherance of the objectives of a going conspiracy, such statements are admissible as exceptions to the hearsay rule. This prerequisite to admissibility, that hearsay statements by some conspirators to be admissible against others must be made in furtherance of the conspiracy charged, has been
It is contended that the statement attributed to the alleged co-conspirator was merely cumulative evidence, that without the statement the case against petitioner was so strong that we should hold the error harmless under 28 U.S.C. (1946 ed.) § 391. In Kotteakos v. United States, 328 U.S. 750, we said that error should not be held harmless
MR. JUSTICE JACKSON, concurring in the judgment and opinion of the Court.
This case illustrates a present drift in the federal law of conspiracy which warrants some further comment because it is characteristic of the long evolution of that elastic, sprawling and pervasive offense. Its history exemplifies the "tendency of a principle to expand itself to the limit of its logic."
The modern crime of conspiracy is so vague that it almost defies definition.
The crime comes down to us wrapped in vague but unpleasant connotations. It sounds historical undertones of treachery, secret plotting and violence on a scale that menaces social stability and the security of the state itself. "Privy conspiracy" ranks with sedition and rebellion in the Litany's prayer for deliverance. Conspiratorial movements do indeed lie back of the political assassination, the coup d'etat, the putsch, the revolution, and seizures of power in modern times, as they have in all history.
But the conspiracy concept also is superimposed upon many concerted crimes having no political motivation. It is not intended to question that the basic conspiracy principle has some place in modern criminal law, because to unite, back of a criminal purpose, the strength, opportunities and resources of many is obviously more dangerous and more difficult to police than the efforts of a
Conspiracy in federal law aggravates the degree of crime over that of unconcerted offending. The act of confederating to commit a misdemeanor, followed by even an innocent overt act in its execution, is a felony and is such even if the misdemeanor is never consummated.
Attribution of criminality to a confederation which contemplates no act that would be criminal if carried out by any one of the conspirators is a practice peculiar to Anglo-American law. "There can be little doubt that this wide definition of the crime of conspiracy originates in the criminal equity administered in the Star Chamber."
Doctrines of conspiracy are not only invoked for criminal prosecution, but also in civil proceedings for damages or for injunction, and in administrative proceedings to apply regulatory statutes. They have been resorted to by military commissions and on at least one notable occasion when civil courts were open at the time and place to punish the offense.
The interchangeable use of conspiracy doctrine in civil as well as penal proceedings opens it to the danger, absent in the case of many crimes, that a court having in mind
Of course, it is for prosecutors rather than courts to determine when to use a scatter-gun to bring down the defendant, but there are procedural advantages from using it which add to the danger of unguarded extension of the concept.
An accused, under the Sixth Amendment, has the right to trial "by an impartial jury of the State and district wherein the crime shall have been committed." The leverage of a conspiracy charge lifts this limitation from the prosecution and reduces its protection to a phantom, for the crime is considered so vagrant as to have been committed in any district where any one of the conspirators did any one of the acts, however innocent, intended to accomplish its object.
When the trial starts, the accused feels the full impact of the conspiracy strategy. Strictly, the prosecution should first establish prima facie the conspiracy and identify the conspirators, after which evidence of acts and declarations of each in the course of its execution are admissible against all. But the order of proof of so sprawling a charge is difficult for a judge to control. As a practical matter, the accused often is confronted with a hodgepodge of acts and statements by others which he may never have authorized or intended or even known about, but which help to persuade the jury of existence of the conspiracy itself. In other words, a conspiracy often is proved by evidence that is admissible only upon assumption that conspiracy existed. The naive assumption that prejudicial effects can be overcome by instructions to the jury, cf. Blumenthal v. United States, 332 U.S. 539, 559, all practicing lawyers know to be unmitigated fiction. See Skidmore v. Baltimore & Ohio R. Co., 167 F.2d 54.
The trial of a conspiracy charge doubtless imposes a heavy burden on the prosecution, but it is an especially difficult situation for the defendant. The hazard from loose application of rules of evidence is aggravated where
A co-defendant in a conspiracy trial occupies an uneasy seat. There generally will be evidence of wrongdoing by somebody. It is difficult for the individual to make his own case stand on its own merits in the minds of jurors who are ready to believe that birds of a feather are flocked together. If he is silent, he is taken to admit it and if, as often happens, co-defendants can be prodded into accusing or contradicting each other, they convict each other. There are many practical difficulties in defending against a charge of conspiracy which I will not enumerate.
Against this inadequately sketched background, I think the decision of this case in the court below introduced
I suppose no person planning a crime would accept as a collaborator one on whom he thought he could not rely for help if he were caught, but I doubt that this fact warrants an inference of conspiracy for that purpose. Of course, if an understanding for continuous aid had been proven, it would be embraced in the conspiracy
It is difficult to see any logical limit to the "implied conspiracy," either as to duration or means, nor does it appear that one could overcome the implication by express and credible evidence that no such understanding existed, nor any way in which an accused against whom the presumption is once raised can terminate the imputed agency of his associates to incriminate him. Conspirators, long after the contemplated offense is complete, after perhaps they have fallen out and become enemies, may still incriminate each other by deliberately harmful, but unsworn declarations, or unintentionally by casual conversations out of court. On the theory that the law will impute to the confederates a continuing conspiracy to defeat justice, one conceivably could be bound by another's unauthorized and unknown commission of perjury, bribery of a juror or witness, or even putting an incorrigible witness with damaging information out of the way.
Moreover, the assumption of an indefinitely continuing offense would result in an indeterminate extension of the statute of limitations. If the law implies an agreement to cooperate in defeating prosecution, it must imply that it continues as long as prosecution is a possibility, and prosecution is a possibility as long as the conspiracy to defeat it is implied to continue.
I do not see the slightest warrant for judicially introducing a doctrine of implied crimes or constructive conspiracies. It either adds a new crime or extends an old one. True, the modern law of conspiracy was largely evolved by the judges. But it is well and wisely settled that there can be no judge-made offenses against the
There is, of course, strong temptation to relax rigid standards when it seems the only way to sustain convictions of evildoers. But statutes authorize prosecution for substantive crimes for most evil-doing without the dangers to the liberty of the individual and the integrity of the judicial process that are inherent in conspiracy charges. We should disapprove the doctrine of implied or constructive crime in its entirety and in every manifestation. And I think there should be no straining to uphold any conspiracy conviction where prosecution for the substantive offense is adequate and the purpose served by adding the conspiracy charge seems chiefly to get procedural advantages to ease the way to conviction.
Although a reversal after four trials is, of course, regrettable, I cannot overlook the error as a harmless one. But I should concur in reversal even if less sure that prejudice resulted, for it is better that the crime go unwhipped of justice than that this theory of implied continuance of conspiracy find lodgment in our law, either by affirmance or by tolerance. Few instruments of injustice
MR. JUSTICE FRANKFURTER and MR. JUSTICE MURPHY join in this opinion.
MR. JUSTICE BURTON, dissenting.
While I agree with the opinion of the Court that the hearsay testimony in question was not properly admissible, I regard its admission, under the circumstances of this case, as an absolutely harmless error.
In speaking of harmless errors that may result from the admission of evidence, this Court has said:
The issue before us involves no constitutional question or specific command of Congress. The trial was a long one concerning personal conduct involving simple issues of fact. The record of it covers more than 800 pages. The jury must have been thoroughly familiar with the issues and with the degree of dependability, if any, to be placed upon the oral testimony of the petitioner and of the two witnesses involved in the conversation that is before us as reported by one of them. The evidence supporting the jury's verdict was cumulative, repetitive and corroborated to such a point that I cannot believe that the verdict or the rights of the parties could have been appreciably affected by such weight as the jury may have attached to this reported snatch of conversation between two people of such negligible dependability as was demonstrated here. After this extended fourth trial, to set aside this jury's verdict merely because of this particular bit of hearsay testimony seems to me to be an unrealistic procedure that tends to make a travesty of the jury system which is neither necessary nor deserved. I would affirm the judgment below.
"We note the prevalent use of conspiracy indictments for converting a joint misdemeanor into a felony; and we express our conviction that both for this purpose and for the purpose — or at least with the effect — of bringing in much improper evidence, the conspiracy statute is being much abused.
"Although in a particular case there may be no preconcert of plan, excepting that necessarily inherent in mere joint action, it is difficult to exclude that situation from the established definitions of conspiracy; yet the theory which permits us to call the aborted plan a greater offense than the completed crime supposes a serious and substantially continued group scheme for cooperative law breaking. We observe so many conspiracy prosecutions which do not have this substantial base that we fear the creation of a general impression, very harmful to law enforcement, that this method of prosecution is used arbitrarily and harshly. Further the rules of evidence in conspiracy cases make them most difficult to try without prejudice to an innocent defendant." Annual Report of the Attorney General for 1925, pp. 5-6.
Fifteen years later Judge Learned Hand observed: ". . . so many prosecutors seek to sweep within the drag-net of conspiracy all those who have been associated in any degree whatever with the main offenders. That there are opportunities of great oppression in such a doctrine is very plain, and it is only by circumscribing the scope of such all comprehensive indictments that they can be avoided." United States v. Falcone, 109 F.2d 579, 581.
An English author — Wright, The Law of Criminal Conspiracies and Agreements, p. 11 — gives up with the remark: "but no intelligible definition of `conspiracy' has yet been established."
Carson offers the following resume of American cases: "It would appear that a conspiracy must be a combination of two or more persons by some concerted action to accomplish some criminal object; or some object not criminal by criminal means; or, some object not criminal by means which are not criminal, but where mischief to the public is involved; or, where neither the object nor the means are criminal, or even unlawful, but where injury and oppression to individuals are the result." The Law of Criminal Conspiracies and Agreements, as Found in The American Cases, p. 123.
8 U.S.C. § 47, Conspiracy to interfere with civil rights; (1) Preventing officer from performing duties; (2) Obstructing justice, intimidating party, witness, or juror; (3) Depriving persons of rights or privileges. 10 U.S.C. § 1566, Conspiracy by persons in military service to defraud the U.S. 12 U.S.C. § 1138d (f), Conspiracy involving Farm Credit Banks, Administration, etc. 15 U.S.C.: §§ 1-3, Conspiracy in restraint of trade; § 8, Conspiracy in restraint of import trade. 18 U.S.C. as revised by the Act of June 25, 1948, 62 Stat. 928 et seq., effective September 1, 1948: § 2384, Seditious conspiracy; §§ 2385, 2387, Conspiracy to impair loyalty of armed forces or advocate overthrow of U.S. Government by force; § 241, Conspiracy to injure person in exercise of civil rights; § 372, Conspiracy to prevent officer from performing duties; § 286, Conspiracy to defraud the Government by obtaining payment of a false claim; § 371, Conspiracy to defraud the United States; §§ 1501-1506, Conspiracy to obstruct justice; §§ 752, 1792, Conspiracy to cause riots at federal penal institutions; § 1201, Conspiracy to transport kidnapped person in interstate commerce; § 2314, Conspiracy to transport stolen property and counterfeiting instruments in interstate commerce; § 1951, Conspiracy to violate Anti-Racketeering Act; § 2192, Conspiracy to incite mutiny on shipboard; § 2271, Conspiracy to cast away vessel. 22 U.S.C. § 234, Conspiracy to injure property of foreign government. 31 U.S.C. § 231, Conspiracy to obtain payment of false claims. 34 U.S.C. § 749a, Conspiracy to bid collusively on construction of naval aircraft. 38 U.S.C. § 715, Conspiracy to falsify pension claims. 50 U.S.C. § 34, Conspiracy to disclose national defense information or commit espionage. 50 U.S.C. App. § 311, Conspiracy to violate Selective Service Act.
On conspiracy principles German courts, on May 30, 1924, adjudged the Nazi Party to be a criminal organization. It also held in 1928 that the Leadership Corps of the Communist Party was a criminal organization and in 1930 entered judgment of criminality against the Union of Red Front Fighters of the Communist Party. See note 15.
"SEC. 269. . . . On the hearing of any appeal, certiorari, writ of error, or motion for a new trial, in any case, civil or criminal, the court shall give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties." 40 Stat. 1181, 28 U.S.C. § 391.
Rule 52 (a) of the Federal Rules of Criminal Procedure, as continuously in effect during and since the time of the trial of the instant case and as still in effect, provides:
"RULE 52. HARMLESS ERROR AND PLAIN ERROR.
"(a) HARMLESS ERROR. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded. . . ."