MR. JUSTICE WHITTAKER delivered the opinion of the Court.
On July 23, 1953, a 10-count indictment was returned in the United States District Court for the Southern District of New York charging petitioners and others with evading, and conspiring to evade, assessment and payment of a large amount of federal income taxes for the year 1946 in violation of the internal revenue laws (§§ 145 (b) and 3793 (b) of the Internal Revenue Code of 1939)
Petitioners ask this Court to reverse their convictions upon four main grounds. First, they contend, Lawn only
Understanding of petitioners' first and second contentions, and to a lesser extent their third contention, requires a review of the underlying facts upon which they are based. Revenue agents began an investigation in 1948 of petitioners' income tax liabilities, and on September 14, 1950, three criminal informations were filed charging them with violation of the federal income tax laws. Those informations were not brought to trial because the Government had not completed its investigation and later concluded that "much more serious crimes [were] involved." In early July 1952, petitioners and Roth were served with subpoenas duces tecum commanding them to appear and testify before a grand jury on July 14, 1952, and to produce certain partnership and corporate records of the Giglio and Livorsi enterprises.
Pursuant to order of the court the Government produced for inspection by petitioners, before the trial, the corporate records delivered by Giglio to the 1952 grand jury in compliance with its subpoena, the documents which had been abandoned by petitioners and examined by the Government, and the documents relating to petitioners' businesses obtained from the New Jersey receiver. At the beginning of the trial petitioners renewed the above-mentioned motions which were again denied. In the course of the trial the Government furnished petitioners a transcript of their testimony before the 1952 grand jury.
As stated, petitioners first contend that they were deprived of due process by the refusal of the court to conduct the requested full-dress hearing to enable them to attempt to determine whether materials obtained from them in the 1952 grand jury proceeding, or evidence derived therefrom, was considered by the 1953 grand jury. We believe there is no merit in this contention. The District Court's order dismissing the 1952 indictments because of the use of such evidence before that grand jury, though final, could not in any way determine that any direct or derivative use of such evidence was made by the 1953 grand jury that returned the present indictment. The affidavits submitted in support of and in opposition to the motion for the requested hearing disclosed, as found by the trial court and the Court of Appeals, with which findings we agree, that petitioners had no reason, beyond suspicion, to believe that the 1953 grand jury considered
Moreover, this Court has several times ruled that an indictment returned by a legally constituted nonbiased grand jury, like an information drawn by a prosecutor, if valid on its face, is enough to call for a trial of the charge on the merits and satisfies the requirements of the Fifth Amendment. In Holt v. United States, 218 U.S. 245, this Court was required to decide whether an indictment should be quashed because procured in part by incompetent evidence of an admission by the accused, aside from which "there was very little evidence against the accused." Id., at 247. This Court refused to hold that such an indictment should be quashed, stating: "The abuses of criminal practice would be enhanced if indictments could be upset on such a ground." Id., at 248. In Costello v. United States, 350 U.S. 359, this Court squarely faced and decided the question, saying:
This Court was urged in that case to "establish a rule permitting defendants to challenge indictments on the ground that they are not supported by adequate or competent evidence," id., at 364, but the Court declined to do so, saying:
It should be unnecessary to say that we are not here dealing with the use of incompetent or illegal evidence in a trial on the merits, nor with the right to decline to give incriminating testimony in legal proceedings or to suppress the direct or derivative use at the trial of evidence illegally obtained. We deal here only with the question whether petitioners, in the circumstances of this case, were entitled to a preliminary hearing to enable them to satisfy their unsupported suspicions that the 1953 grand jury that returned this indictment made direct or derivative use of the materials which they produced before the 1952 grand jury. We hold that they were not.
We come now to petitioner Lawn's contention that receipt in evidence at the trial of a photostatic copy of a
It is important to note that at this stage of the trial there was thus clear evidence before the jury, corroborated by Exhibits 58-A and 7, all admitted without objection, showing that Lawn had received the $15,000 check from Tavern, but an issue existed whether it was an innocent loan from Giglio or an incriminatory payment by Tavern in the guise of a legal fee. The prosecution then offered in evidence Exhibits 61-A and 61-B, being the $15,000 check and corresponding stub. Petitioners' able and experienced counsel (now deceased) then asked, and was granted, permission to examine the witness Roth preparatory to a possible objection to those exhibits. He then questioned the witness at some length about the handwriting on the check and stub,
Lawn argues that the denial, before the trial, of petitioners' motion to suppress, and the unequivocal affidavit of the United States Attorney in charge of the case stating that materials obtained from petitioners pursuant to subpoena in the 1952 grand jury proceeding would not be used in the future course of the case, preserved his objections to these exhibits and made it unnecessary again to object to them at the trial. It is quite true generally that the overruling of a pretrial motion to suppress the use at the trial of particular evidence preserves the point and renders it unnecessary again to object when such evidence is offered at the trial. Cogen v. United States, 278 U.S. 221, 223; Gouled v. United States, 255 U.S. 298, 312, 313; Waldron v. United States, 95 U. S. App. D. C. 66, 69-70, 219 F.2d 37, 41; and compare Keen v. Overseas Tankship Corp., 194 F.2d 515. But the rule is one of practice and is not without exceptions, nor is it to be applied as a hard-and-fast formula to every case regardless of its special circumstances. Cogen v. United States, supra, at 223, 224; Gouled v. United States, supra, at 312, 313. It will be remembered that the court in passing on the motion to suppress said, respecting
The Government argues that, had its attention been called to the fact that these particular photostatic copies had been exhibits before the 1952 grand jury by an objection to them, it could and would have produced other copies obtained from other sources before the 1952 grand jury proceeding was commenced. In that connection it has filed here what is said to be a transcript of a hearing accorded to Lawn at his request on May 12, 1952, which it says contains photostatic copies of the check and check stub in question voluntarily produced by Lawn. Lawn has moved to strike that transcript and the portions of the Government's brief relating thereto. That motion must be sustained as we must look only to the certified record in deciding questions presented. McClellan v. Carland, 217 U.S. 268.
We believe that the facts from the certified record, above discussed, show that petitioners' counsel, after using the check and check stub to make his point before the jury that the check was an innocent loan from Giglio and not an incriminatory payment by Tavern in the guise of a legal fee, wisely (as, we believe, every impartial and experienced trial lawyer would agree) said that he had
Petitioners argue that they were denied an opportunity to examine and cross-examine witnesses at the trial to determine whether evidence derived from leads and clues furnished by materials obtained from them in the 1952 grand jury proceedings was used by the prosecution at the trial, and that this deprived them of due process in violation of the Fifth Amendment. It cannot be doubted that petitioners had that right in the circumstances of this case, Nardone v. United States, 308 U.S. 338, 341, 342, and the Government does not otherwise contend. Moreover, as earlier stated, the District Court, in ruling the pretrial motion to suppress, expressly left this subject open to inquiry at the trial. United States v. Giglio, 16 F. R. D., at 271. The contention is wholly factual, and a thorough study of the record discloses that petitioners were accorded that right. The court did not sustain objections to petitioners' examination or cross-examination of witnesses attempting to show derivative use at the trial of any evidence produced by petitioners before the 1952 grand jury, but only sustained objections to questions attacking the procedural validity of the indictment.
Petitioners point to three instances where they say the trial court denied them the right to examine witnesses about the source of evidence offered by the Government at the trial. First, they say that in cross-examining the Government's witness Roth they sought to question him concerning an affidavit he had made in support of the motion to dismiss the 1953 indictment, but the court sustained an objection to the question. It is clear that the ruling was made upon the ground, as petitioners' counsel stated at the time, that the purpose of the interrogation was to "go into the question of what evidence was used to obtain this indictment," rather than to show the use by the Government of tainted evidence at the trial. Second, they point to the fact that during the cross-examination
Petitioners Lawn and Livorsi argue that the evidence is insufficient to sustain their convictions. In support of Count 10, the conspiracy count, the record contains evidence tending to show that Lawn, formerly Chief of the Criminal Division of the United States Attorney's Office for the District of New Jersey, was employed by Giglio and Livorsi because "he had a terrific entry with some of the highest government offices," "was a part of the organization" and was "there to prevent any trouble." He was frequently in Giglio's private office, which adjoined his own. Lawn was present in Giglio's office when it was decided that Eatsum would purchase corn at blackmarket prices and have it refined into syrup to be sold for over-ceiling prices, and Lubben began the handling of those matters. But Lawn later told him that he "had terrific connections" with a syrup company and with a prominent political figure in the midwest and that he could procure the corn and syrup more advantageously, and Lawn then took over the handling of those matters. Lubben was called into Giglio's office in September 1945, where Giglio, Roth and Lawn were present, and Giglio stated "that the profits from [Tavern's] candy business and primarily [Eatsum's] corn syrup business were becoming terrific, and that he wasn't interested in paying a lot of income tax and something had to be done, and done quick"; that "it had been decided to form a number
Lawn also contests the sufficiency of the evidence to support the verdicts against him on Counts 7 and 9, but since the sentences upon those counts run concurrently with the sentence on Count 10, which we have found sustained by the evidence, it is unnecessary for us to consider those contentions. Sinclair v. United States, 279 U.S. 263, 299; Hirabayashi v. United States, 320 U.S. 81; Pinkerton v. United States, 328 U.S. 640.
Count 9 charged Livorsi and others with attempting to evade payment of income taxes of American Brands Corporation for the calendar year 1946 by converting and diverting its assets. Livorsi argues that there is no evidence to support his conviction on that count. We must disagree. The evidence disclosed that Livorsi owned half
Livorsi's contention that there was not sufficient evidence to support the verdict against him on Count 10, the conspiracy count, when viewed in the light of all the foregoing facts, and those found by the Court of Appeals, which we find are supported by the record, is entirely without merit.
Livorsi also contends that the evidence was not sufficient to support the verdict against him on Count 8, but since the sentence on that count runs concurrently with the sentence on Count 6, which we have affirmed, it is unnecessary to consider his contentions concerning Count 8. Sinclair v. United States, supra; Hirabayashi v. United States, supra; and Pinkerton v. United States, supra.
MR. JUSTICE HARLAN, whom MR. JUSTICE FRANKFURTER and MR. JUSTICE BRENNAN join, concurring in part and dissenting in part.
I agree with all of the Court's opinion except Part II relating to Government exhibits 61-A and 61-B, which are the copies of the canceled check and stub evidencing the $15,000 payment to Lawn. This leads me to concur in the affirmance of the convictions of Giglio and Livorsi, but as to Lawn I think a different result is required.
The Court appears to recognize that these exhibits were excludable as "tainted" evidence, since they were government-made copies of documents which, as held in a prior decision, United States v. Lawn, 115 F.Supp. 674, had been obtained from Lawn in violation of his constitutional rights. Nevertheless the Court sustains their admissibility on the ground that Lawn's counsel "consciously and intentionally" waived at trial any objection to them. This view I cannot share, for it seems to me the Court's action falls short of what we should do in holding the Government to the strictest measure of accountability on its repeated representations to court and defense counsel that it was not using any "tainted" evidence at the trial.
Further, it is by no means as apparent to me as it is to the Court that counsel wanted these exhibits in the case for the purpose of corroborating Lawn's explanation of the $15,000 payment as being an innocent personal loan from Giglio rather than, as claimed by the Government, an incriminatory payment from the partnership.
In short, I think the Court has viewed this episode in an unreal light. At least there is much room for doubt as to what counsel actually intended. Where, as here, we are dealing with exhibits whose use the Government can justify at all only on a plea of good-faith inadvertence, I think the petitioner is entitled to the benefit of that doubt, particularly in view of the Government's repeated unequivocal representations that it would not use any of the "tainted" evidence at the trial. The Court's contrary view I deem inconsistent with the high standards which past decisions have insisted be maintained in the conduct of federal criminal trials. See McNabb v. United States, 318 U.S. 332, 340-341. "The dignity of the United States Government will not permit the conviction of any person on tainted testimony." Mesarosh v. United States, 352 U.S. 1, 9.
Although, as the Court properly holds, we cannot pass upon the accuracy of this additional evidence in determining the issues before us, I think the Government's proffer may properly be taken into account in deciding the nature of the judgment we should enter. See 28 U. S. C. § 2106; cf. United States v. Shotwell Manufacturing Co., 355 U.S. 233. The petitioner, by making his specific objection to admission of the disputed exhibits for the first time on appeal, gave the Government no occasion to introduce the "innocent" copies at the trial and thereby avoid error. He should not now be permitted to preclude the Government from showing that the error complained of was harmless.
The first five counts named only petitioner Giglio and Louis J. Roth as defendants. Since Giglio does not here contest the adequacy of the evidence to sustain those or any of the other counts against him, and since Roth pleaded guilty to all counts of the indictment and was a principal witness for the prosecution at the trial, those counts are not here summarized.
The remaining counts in essence charged as follows:
Count 6 charged that Livorsi and Roth, on or about September 15, 1947, willfully attempted to evade assessment of income taxes of Livorsi for the calendar year 1946 by filing a fraudulent return.
Count 7 charged that Giglio, Lawn and Roth, from about September 1, 1947, to the date of filing of the indictment, willfully attempted to evade payment of Giglio's income taxes for the calendar year 1946 by concealing his assets.
Count 8 charged that Livorsi, from about September 1, 1947, to the date of filing of the indictment, willfully attempted to evade payment of his income taxes for the calendar year 1946 by concealing his assets.
Count 9 charged that Giglio, Livorsi, Lawn and Roth, from about January 1, 1946, to the date of filing of the indictment, willfully attempted to evade payment of income taxes of American Brands Corporation for the calendar year 1946 by converting and diverting its assets.
Count 10 charged that Giglio, Livorsi, Lawn, Roth and American Brands Corporation, from about July 1, 1945, to the date of filing of the indictment, willfully conspired to commit the substantive offenses charged in Counts 1 through 9 of the indictment.
Count 10 of the indictment was dismissed by the court as to American Brands Corporation after the jury failed to report as to it.
In opposition to the motions the Government filed affidavits made by all of the revenue agents who had conducted investigations leading to the indictment and by all the United States Attorneys who had been responsible for the prosecution of the case. In essence, they recited that after the District Court dismissed the 1952 indictment a conference was called, by an assistant United States Attorney, of all revenue agents who had conducted the investigations; that they were there told that it would be necessary to obtain a new indictment which was not to be based in any way, however remote, upon testimony or personal or partnership documents obtained from petitioners in the 1952 grand jury proceedings, and any doubts about the use of any evidence were to be resolved in favor of exclusion; that none of the testimony or personal or partnership records, produced by petitioners before the 1952 grand jury, was in any way used in obtaining the present indictment; and that long before 1952 the Government had in its possession copies and microfilm enlargements of bank checks, bank statements and books and records pertaining to petitioners' transactions, which had been secured from banks, third persons, a New Jersey receiver, government agencies, and abandoned books and records relating to petitioners' businesses. The affidavit of the Assistant United States Attorney in charge of the case unequivocally recited that none of the materials obtained from petitioners in the 1952 grand jury proceeding would be used in the future course of the case.
A. To the best of my recollection, those are Mr. Cerone's.
"Q. How do you spell Cerone? A. C-e-r-o-n-e.
"Q. He was one of your employees, Mr. Roth? A. No, he was a bookkeeper employed by Tavern Fruit Juice.
"Q. Would the same be true with regard to the check, the face of the check, payee of the check? A. The payee of the check and the amount?
"Q. The handwriting is what I am asking about. A. The handwriting, that looks like William Giglio's handwriting.
"Q. The maker of the check [for] the $15,000? A. Yes, the signature.
"Q. They look like his handwriting, do they? A. Yes, sir.
"Q. And this 61-B for identification, you have told me that that looked like the printing or the writing of Mr. Cerone, did you not?
A. Yes, sir."
Counsel: "I really don't see how I can get adjudicated the question of the illegality of the indictment before you without calling all these people who made affidavits before Judge Palmieri. Now, that obviously would be, well, very disruptive of your trial. I would never think of doing it if . . . it didn't seem to me that was all I had. . . . Have I made it plain?
"The Court: I think you have, but I want to be sure. Now, the whole purpose of this is to go to the procedural validity of the indictment."
Counsel: "That is it, yes, sir. That is it, that is just it exactly.
"The Court: And it is a question, really, of what happened before the grand jury."
Counsel: "That's it, really, just that.
"The Court: Rather than its effect upon what you might call the substantive issues of the case or the guilt or innocence of these defendants, let us say."
Counsel: "My answer is an unequivocal yes, and I don't have to look at a record to answer it."