*1 STATES. UNITED LUTWAK al. et 9, 1953. February 1952. Decided 8-9, December Argued No. Anthony Bradley Eben argued the cause for petition- *2 ers. With him on the brief were F. Richard Watt and Joseph L. Nellis.
Marvin E. Frankel argued the cause for the United States. With him on the brief were Acting Solicitor Stern, General Assistant Attorney General Murray, Bea- trice Rosenberg and F. J. Bishop.
Mr. Justice Minton delivered the opinion of the Court.
The petitioners, Marcel Max Lutwak, Munio Knoll,
and Regina Treitler,
together with Leopold Knoll and
Grace Klemtner, were indicted on six
in
counts
Northern District of Illinois, Eastern Division. The
first count charged conspiracy to commit substantive
offenses set forth in the remaining five counts and con-
spiracy “to defraud the United
of
and concerning
governmental
its
function and right of administering”
the immigration laws and the Immigration and Natural-
ization Service, by obtaining the illegal entry into this
country
three aliens
spouses
of honorably discharged
veterans. Grace Klemtner was dismissed from the in-
dictment before the trial because her constitutional rights
had been violated before
grand
jury. At the con-
clusion of all the evidence, the District Court dismissed
the substantive
counts
all of the defendants be-
cause venue had not been shown in the Northern District
of Illinois. The jury acquitted Leopold Knoll and con-
victed the three petitioners on the conspiracy count.
The Court of Appeals affirmed,
We are concerned here only with the conviction of petitioners of the alleged conspiracy. Petitioner Regina Treitler is the sister of Munio Knoll and Leopold Knoll, Munio nephew. Lutwak petitioner Maria 1932 to in Poland in married been Knoll Maria Munio evidence is some There Knoll. validity existence but in divorced were At record. from determinable are divorce this the sum- in conspiracy, inception time refugees Leopold Maria Munio, ofmer Treit- Regina while France, Paris, living Poland, from Petitioner Illinois. Chicago, lived Lutwak ler into brothers her get desired Treitler
States. veterans discharged honorably spouses Alien under country enter permitted II were War World *3 which Act Brides War so-called of provisions part: pertinent in provides clauses several of the any notwithstandiiig
. . excluding February 5, Act of of the section of not- and aliens, mentally defective physically any of requirements documentary withstanding Executive regulations, or laws immigration there- issued proclamations Presidential orders, or of United children or alien spouses alien under, an honorable having in, serving citizens States forces armed from certificate discharge shall, War World Second during the States laws immigration under admissible otherwise if within made for admission application if ad- Act, be date effective years three 59 Stat. . . . .” to the United mitted §C. 8 U. S. charged the indictment first count
The discharged honorably three conspired petitioners marriage cere- through go to Paris journey veterans The brothers Maria. Leopold Munio, monies and Maria would then accompany their new spouses to the United States and secure entry into this country by representing spouses themselves alien of World IIWar veterans. It was further a part of plan marriages were to be in form only, solely for the purpose of enabling Munio, Leopold and Maria to enter United States. The parties to the marriages were not to live together as husband and wife, and thereafter would take whatever legal steps were necessary sever the legal ties. It was finally alleged that the petitioners conspired to conceal these order prevent dis- closure of the conspiracy to the immigration authorities. conspiracy commit substantive offenses con- sisted part plan by which each of the aliens was to make a false statement to the immigration au- thorities by representing in his application for admission that he was married to his purported spouse, and to con- ceal from the immigration authorities that he had gone through a marriage ceremony solely for the purpose of gaining entry into this country with the understanding that he his purported spouse would not together live as man and wife, but would sever the formal bonds the ostensible marriage when the marriage had served its fraudulent purpose.
The statute defining conspiracy reads as follows:
“If two or persons more conspire either to com- mit any offense against the United States, or to defraud the United in any States manner for any or purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than $10,000, or imprisoned not more than two years, or both.” 18 U. S. (1946 C. ed.) 88,§ now ' 18 U. C.S. (Supp. V) § 371. 608 alleged it was which statute sections pertinent in provide to violate conspired
petitioners part: States the United enters hereafter who
“Any alien by designated than as other place or any time in- or examination eludes or officials immigration entry to or officials, obtains immigration by spection misleading or willfully false by a the United ma- of a concealment willful or representation and, misdemeanor of a guilty be fact, shall terial imprisonment by punished be conviction, shall upon more not a fine byor year than not more imprison- fine and such both by or $1,000, than 180a. §C.S.U. 1551, 8 45 Stat. ment.” any false oath under makes knowingly “Whoever other or affidavit, application, any statement regu- or laws immigration required document conviction upon shall, thereunder, prescribed lations impris- or $10,000, than more fined thereof, 43 both.” years, five than more for not oned now (c), ed.) § (1946 C.S. 153, 165, U. Stat. 1546. § (Supp.V) 18U.S.C. Government, to favorable the evidence
From following that believed reasonably could jury petitioners place, took transactions War a Lutwak, World about. bring them conspired aunt his Knoll, Maria marry selected veteran, was II through he went where Paris went marriage. He traveled They Maria. ceremony with Sep- York on New port entering the States, immigration to the They represented tember upon Lutwak, and was the wife Maria authorities never They admitted. Maria representation months a few within wife, and as man together lived together living Maria commenced Munio *5 country as man wife, holding themselves out as such. Lutwak, in the meantime, represented himself to friends as an unmarried man. Lutwak and Maria were di- vorced on March 31, 1950.
Lutwak and Mrs. Treitler also found two women— Bessie Benjamin Osborne and Grace Klemtner —who were honorably discharged veterans of World II,War and who were willing to marry and Leopold Munio so the brothers could come to the United States. Bessie Osborne was introduced to Treitler Lutwak, and went to Paris accompanied by Treitler. There she went through a pretended marriage ceremony with Munio Knoll, and on their arrival at New City, York Munio was admitted on November 13, 1947, on the representation that he was married Bessie Osborne. The marriage was never consummated and was never intended to be. The parties separated after entering the United States, and they never together lived as husband and wife any time. Bessie Osborne’s suit for divorce from Munio was pending at the time of the trial.
Still later, Grace Klemtner, who was also a World War II veteran and an acquaintance Regina Treitler, went to Paris and went through pretended marriage ceremony with Leopold. They then traveled to the United States, where Leopold was admitted on December 5, 1947, upon the representation that he was the husband Grace Klemtner. They immediately separated after their en- try into this country, they never together lived husband and wife at any time until about the time Grace Klemtner appeared before grand jury which returned the indictment. This was approximately April 1, 1950, more than years two after the marriage ceremony in Paris. Bessie Osborne and Grace Klemtner received a substan- tial fee participating in these marriage ceremonies.
There is an abundance of evidence in this record of a conspiracy to contract spurious, phony marriages for the
610 and authorities immigration the deceiving of
purposes States, United the upon a fraud perpetrating thereby the against offenses other commit conspiracy aof States. (1) contentions: principal three present Petitioners marriages the because unlawful was conspiracy Their erred court trial the (2) marriages; valid were involved tes- marriages to these of wives ostensible the permitting trial (3) the husbands; their so-called tify various of testimony admitting erred court after and said done petitioners, different of declarations evidence limiting the ended, without had conspiracy the the act performed who defendant particular the statement. made
I. Maria, Munio that undisputed it was trial, At the marriage ceremonies formal through gone Leopold respec- Klemtner, and Grace Osborne Lutwak, Bess in- of regardless that, contended Petitioners tively. ceremonies, of time at the tentions of sufficient performed that ceremonies fact until at least marriages, validity establish law. French under invalidity proved Government conflict rule American general on the relied They every- is valid where celebrated valid marriage laws or otherwise polygamous, incestuous, it is unless where Loughran, Loughran See by statute. void declared Laws, §§ Restatement, Conflict 223; S.U. any evidence presented side Neither 132-134. in the absence ruled trial court law,
French to be presumed law would French evidence, the of such instructed later court The law. as American the same only for to a agree subjects “if the jury that world to the outside it as such representing the sake an end to put will understanding they and with it as soon as it has served its purpose to deceive, they really never agreed to be married at all.” petition- ers claim that the trial court erred in that the presuming French relating law validity to the is the marriages same as American law, and they further contend that even under American law these marriages are valid.
doWe not believe that the validity of marriages the is material. No one is being prosecuted for an offense against the marital relation. We consider the marriage ceremonies a only as part the conspiracy defraud to the and to commit offenses the United States. In the circumstances of this the case, were only step ceremonies in the fraudulent scheme and actions taken by parties to the conspiracy. By direct- ing the War Brides Act that spouses” “alien of citizen war veterans should be admitted into country, this Con- gress intended to possible make it for veterans who had married aliens to join have their families them in this country without the long delay involved in qualifying under the proper immigration quota. Congress did not intend provide to aliens with an easy means of circum- venting quota system by marriages fake in which neither parties of the ever to intended enter into the marital relationship; petitioners that so believed evi- denced their care in concealing from immigration that authorities the ostensible husbands and wives were separate to immediately after their entry into this coun- try and were never to together live as husband and wife. The common understanding of a marriage, which Con- gress must have had in mind when it provision made for “alien spouses” in the War Brides Act, is that the two parties have to undertaken a life together establish assume certain duties obligations. Such was not the here, case or so the jury might reasonably have found. Thus, when one of the aliens that stated he was married, explain omitted to the true nature of his marital
Cn rH CD carry to, intended was did, relationship, his statement not which of facts a state implications true. fact material, marriages is of the validity
Because marriages,1 limited-purpose involving so-called the cases contention support to petitioners cited inapplicable. are valid, are case instant in the marriages in which annulment for are suits those cases ofAll parties one of to relief grant to requested was court admission own his basis on the marriage to a annulment Where a sham. been influenced following factors more denied, one use parties permit A(1) reluctance the court: sub painless quick aas procedure annulment en might because particularly divorce, stitute (2) inconsiderately; hastily and marry courage people use permitted not be should a belief own secret *8 out carrying the means the courts innocent injury to to prevent desire (3) a schemes; and These marriage. children particularly parties, third circumstances in the application no factors where cases are the Similarly inapplicable case. instant wife to render in order into entered a pending in a husband her testify against incompetent proved itwas cases of those in none trial, because into to enter not intend marriage did more Much faith.2 good in relationship marital Rubenstein, v. States of United case is the closely related where held that the court 918-919, in which F. 2d 151 v. 831; Hanson A. 2d Schibi, 69 Conn. g., 136 Schibi v. 1 E. cases other These E. 154, 191 673. Hanson, 287 Mass. N. R. note, 14 A. L. in a discussed are collected by petitioners cited (1950). 2d 624 v. 135; State 340, 155 S. W. State, 127 Tenn. g., 2 E. Norman Frey, 526, N. W. 76 Minn.
two persons entered into a marriage solely for the purpose of facilitating the woman’s into entry this country, and no intention either party enter into the mar- riage as it relationship is commonly understood, for the purposes of that case they were never married at In all. the instant case, inas the Rubenstein case, there was no good faith —no intention to marry and consummate the marriages even day. With the legal consequences of such ceremonies under other circumstances, either in the United France, we are not concerned.
II. Much of the evidence of the conspiracy comes from lips the so-called wives of these spurious mar- riages. The question next with which we are confronted is whether these so-called wives are competent to testify against their purported husbands in this prose- criminal cution and thus incriminate the so-called husbands.
Civil marriage ceremonies were entered into by the
parties in Paris as above indicated. Must
these osten
sible marriages be recognized as creating spouses in order
the marital relationship may be claimed to prevent
g
the wives from testifyin
the husbands? At
common law the wife could testify neither for nor against
her husband in a criminal case, but since Funk v. States,
A
the Funk case of the
review
cases
this Court
revealed the inconsistencies of the rule which made a
*9
wife incompetent
to testify on
of her husband,
behalf
and this Court resolved the question in favor of com-
petency. The Funk case left the rules of evidence as
to the competency of witnesses to be
by
formulated
the
federal courts or Congress in accordance with reason and
experience.
v. United States,
There which Procedure, of Criminal Rules Federal of the follows: as reads 26. Evidence.
“Rule the com- and admissibility of evidence The . . “. governed, be of witnesses shall privileges and petency other- rules or these Congress act of an when except law common of the principles by provide, wise of courts interpreted may be they experience.” reason light in the state- Stone’s Justice of Mr. paraphrase was a rule This Wolfle, ment be tois of witnesses competency rule, this
Under they law as common of the principles by the governed reason light the courts interpreted may neces- not are principles governing experience. Congress law. at common existed they sarily as Court authorized specifically has acted, and has rules but procedure, criminal rules of prescribe to Therefore, here. problem answer specifically do not further go we shall say whether us to to it is open spouse disqualifying rule this common-law abrogate spouse. other against the cases in criminal testifying from per- relation the marital faith good When itas court, the trial to appear it is made tinent no into with was entered relationship here, that husband together as to live intention cere- using purpose for the only wife but are spouses the ostensible defraud, in a scheme mony again, Here each other. testify competent invalidity validity with not concerned we are only are concerned We marriages. these so-called of evidence principle aof common-law application the com- interpreting In this case. the circumstances determine whether are to instance, we mon law in this *10 “in. the light of reason and experience” should we in- terpret the common law so as to make these osten- sible wives competent to testify against their ostensible husbands. The reason for the rule common law disqualifying the wife is protect the sanctity and tranquility the marital relationship. It is hollow mockery for petitioners in arguing for the policy rule to invoke the reason for the rule and to say us “the husband and wife grown closer together as an emotional, social, and cultural unit” and to speak of “the close emotional ties between husband and wife” and of “the special protection society affords the mar- riage relationship.” In a sham, phony, empty ceremony such as went through in this case, the reason for the rule disqualifying spouse from giving testimony disappears, and with it the rule.
“It has been said so often as to have become axio- matic the common law is not immutable but flexible, and by its own principles adapts itself to varying conditions.” Funk v. States, supra, at 383.
The light of reason and experience do not compel us to so interpret the common law as to disqualify these ostensible spouses from testifying this case. We there- fore hold that in the circumstances this case, the com- mon-law rule prohibiting antispousal testimony has no application. These ostensible wives were competent testify.
III. Most of the evidence this case consisted of testimony declarations of the defendants. peti- tioners contend that because some of these acts and declarations took place after the conspiracy ended, they were erroneously admitted without being properly limited to the defendant who did the act made the statement *11 con- the when decide therefore, must, We to.
testified when ended it contend petitioners The ended. spiracy to admitted Knoll, was Leopold parties, of the last the there, and Then 1947. 5, December on the United con- the and complete, was any if fraud the say, they Gov- complete. was statutes the to violate spiracy anwas conspiracy the part a that contends ernment fraud to conceal conspirators the among agreement indictment. the in alleged was it so means, and any by single aof indictment in the no statement is there But December after committed was that of concealment act overt Such any. evidence 5, no substantial revealed that acts proved forth set as were evi is no there Therefore, fraud. the not conceal did conspiracy of the part aas establish to record the in dence by conspiracy the conceal to agreed conspirators the that its prevent to expedient necessary was doing what in Knoll Munio statement was a There disclosure. indicated that Haberman witness to record conspiracy. conceal up to cover purpose Munio’s included conspiracy not evidence is This an nature of is in It conceal. agreement further of cov purpose for the conspirator by afterthought state it, and understood so court The trial ering up. Haberman, testified Knoll, as of Munio ment Knoll Munio applicable Court by the limited only. States, 336 U. S. in Krulewitch Court This every in contention Government’s 440, rejected thereof part as a agreement an implicit there conspiracy conceal collaborate conspirators for conspiracy. could Government rule contended
“The plausi- this rule For under far-reaching results. conspiracy be made generally could arguments ble offered statements out-of-court most cases evidence tended to shield co-conspirators. We are not persuaded to adopt implicit Government’s conspiracy theory which in all criminal conspiracy cases would create a automatically further breach of the general rule against admission hearsay Id., at 444. evidence.”
While the concealment was alleged in this indictment as part conspiracy, was not proved. thinkWe on this record that the conspiracy ended December
It does not necessarily follow that acts and declarations made after the conspiracy ended are not admissible. In this case, the essential fact of the conspiracy was the ex- *12 of istence phony marriage ceremonies entered into for the sole purpose of deceiving immigration the authorities and perpetrating a fraud upon the United States. Acts which took place after the conspiracy ended which were relevant to show the spuriousness of the marriages and the intent of the parties in going through the marriage ceremonies were competent as the fact that —such the parties con- tinued to live apart after they came to the United States; that money paid the so-called wives as a consideration for their part in the so-called marriages; and that suits were started to terminate whatever legal relationship there might have been upon the record.
Declarations
stand on a different footing. Declara-
tions of one conspirator may be used against
the other
conspirator not present on the theory that the declarant
is
agent
the
of the other, and the admissions of one are
against
admissible
both under a standard exception to
the hearsay rule applicable to the statements of a party.
Clune United States, 159 U.
v.
590,
S.
593. See United
States v. Gooding,
618 declarations the Therefore, ended. has conspiracy
a
if made
co-conspirator
the
not bind
do
conspirator
of a
teaching
the
is
That
ended.
has
conspiracy
after
v. United
Fiswick
States,
supra,
v. United
Krulewitch
declarations
only
dealt
cases
Those
States, supra.
They
had ended.
conspiracy
after
conspirator
which
or others
conspirator
of a
application
no
True,
there
conspiracy.
prove
relevant
were
fre-
309,
States, supra,
United
Logan v.
dictum
admissibility
limit
would
which
repeated,
quently
them.
performing
person
to the
declarations
both acts
fact
rule overlooks
statement
This
hearsay.
are
they
is that
declarations
objection
in-
are
which
to acts
applicable
is not
reason
This
acts, being
rele-
expression.
a means
to be
tended
even
admissible,
conspiracy,
prove
vant
conspiracy
after
occurred
might
they
though
917-
Rubenstein,
2d
F.
United
ended.
312-
States, 178 U.
S.
v. United
Fitzpatrick
918; see
837, 839.
States,
F. 2d
v. Ferris
313;
conspirator
aof
or admissions
declarations
Relevant
not in
co-conspirator,
absence
made
in admissible
may conspiracy,
furtherance
*13
prove
the declarant
against
as
conspiracy
for
trial
be
must
court
therein.
participation
declarant’s
instruc-
its
the admission
time
at the
careful
as
is limited
the evidence
it clear
make
tions
trial
Therefore, when
only.
declarant
against
relevant
a
conspirators
all of
against
admits
court
conspiracy
after
conspirators
one
declaration
violates
declarant, it
to the
limiting
ended, without
has
declaration
Such
in Krulewitch.
down
laid
the rule
declarant.
but
to all
as
inadmissible
it is
conspiracy,
case
a criminal
trial
In the
case,
inwas
there
as
be,
shall
there
inevitable
against
as
is admissible
as to declarations
evidence
all of the alleged conspirators;
there are also other decla-
rations
only
admissible
the declarant and those
present who by their silence or other conduct
assent
the truth of the declaration. These declarations must
carefully
and clearly limited
court at the time
of their admission and the jury instructed as to such
declarations and the limitations put upon them. Even
in
then,
most instances
a conspiracy
trial of several
persons together,
the application of
places
the rule
a
heavy burden upon
jurors
to keep in mind
ad-
mission of certain declarations and to whom they have
been restricted
some instances for what specific
purpose. While these difficulties have
pointed
been
out
g.,
e. Krulewitch
cases,
several
States,
v. United
supra,
at 453 (concurring opinion); Blumenthal v. United
States, S.U.
539, 559-560; Nash v.
States,
United
In our search of this record, we have only found instance where a declaration made after the conspiracy ended admitted all alleged con- spirators, even though not present when the declaration was made.3 Was the admission of this one item of hear- say evidence sufficient to reverse this case?
We think not. In view the fact that this record fairly shrieks the guilt of the parties, we cannot con- ceive how this one admission could have influ- possibly enced this jury to reach an improper verdict. A defend- ant is entitled to a fair trial but not perfect one. This
3 R. 208-209. Bessie Osborne testified: “I asked when action would be taken for divorce, and [Munio me asked if I Knoll] would wait two years because he wanted to become citizen, an American and it *14 would long, take that agreed and I to wait.” hearsay This statement attributed to Munio was admitted all the defendants.
620 (a) of Rule application for case a proper
is that holdWe Procedure.4 of Criminal Rules Federal harmless. error was judg- record, the in this error reversible no Finding is ment
Affirmed. Black Jackson, whom Justice Mr. Justice Mr. dissenting. join, Frankfurter Justice Mr. ob- that behavior where a case has a court Whenever with only be criminal proved be can sordid viously is pro- apt is gap bridge the effort difficulty, great this effect about are concerned We law. bad duce respects. in three decision has been crime any not convinced are
1. We in the evidence that all assumption on even proved, formally were marriages These admissible. record they contention is no there France, and contracted is ad- It reason. any there illegal or forbidden if the necessary procedure judicial that some mitted Whether obligations. their be relieved wish parties en- which with reservations by reason abemay be annulled they could marriages into tered no the fact in view law, French question nice toit expect should We other. deceived of them as such party, a third whether question an even nicer be ignore simply could process, in a criminal the state does the Government consequences, its ceremony here. valid are that either marriages start
We incep- invalid be proved to been least imma- aside as question brushes The Court tion. an very existence to the goes think but we terial, irregularity or variance defect, error, Any Error. “(a) Harmless disregarded.” rights shall substantial not affect does which
621 offense. If the parties are validly married, though even the marriage is a sordid one, we should suppose would end the case. On the other if hand, the ceremonies were for some reason utterly void held for naught, if they as never had happened, the Govern- ment could well claim that entry into the United States persons married was fraud. But between these two extremes is the more likely marriages that are not case— but void perhaps voidable. In one of these cases, the parties (on the trial) expressed stay desire to mar- ried, and they were acquitted; no one contends that their marriage is void. if Certainly marriages these were merely voidable not been adjudged void at the time of the entry into this country, it was not a fraud represent them as subsisting. We should think that parties to them might have been prosecuted with as much if reason they had represented themselves to be single. Marriages of convenience are not uncommon and it cannot be that we would hold ait fraud for one who has contracted a marriage not forbidden law to represent himself as wedded, even if there grounds for annulment or divorce proceedings that end were contemplated.
The effect of any reservations of the contract- ing the marriages would seem to be governed law of France. It does not seem justifiable to assume what we all know is not true —that French law and our law are the same. Such a view ignores some of the most ele- mentary facts of legal history reception French —the Roman law, the consequences of the Revolution, and the Napoleonic codifications. If the Government contends that these marriages were ineffectual from the beginning, it would seem to require proof of particular rules of French law domestic relations.
2. “The federal courts have held that spouse can- not testify against the other unless the defendant spouse States, v. . . privilege. Griffin
waives condones Court cited. cases S. U. relation says, because, it rule here from departure effect what not decide needWe genuine. was ship testimony independent if privilege on would only relationship matrimonial *16 that established relation formal the think would we then, Even nominal. on the court, trial the unless respected would ship issue. a collateral try to wanted privilege, question conclude only could court trial case, the this However, in testimony very the from a sham was the that position Court’s question. inis admissibility whose bemay received testimony privileged be that seems allowable, not this thinkWe privilege. its own destroy his by himself lift cannot that reason same bootstraps. own was any, if crime, that the Court agree
3. We into entry obtained the alien when complete this think 5. We December on United in Krulewitch holding of the necessary result the Gov- rejection requires This States, S. 336 U. an includes conspiracy every that contention ernment’s This the facts. conceal conspiracy secondary implied of constructive doctrine long-discredited revival statute operation postpone would conspiracy of subse- manner all make indefinitely and limitations admissible conspirator each by statements acts quent accepts Court But, while all. against in evidence subsequent ruling on Krulewitch, its think we view of that effect nullifies largely and declarations therein. out pointed dangers exemplifies decision no that maintain not need we purposes, present For the con- after occurring conspirator of a act admission against is admissible object its accomplished has spiracy that times question do And we co-conspirator. such evidence is against admissible the actor or speaker alone. But one of the additional leverages obtained prosecution through proceeding as for in- conspiracy stead of as for the substantive offense is that may get into evidence against one defendant acts or omissions which color the against case all.
This case is a vivid illustration of process in action. The statement of facts punc- Government’s brief is tuated eight separate footnotes explain testimony recited in the text was limited to one or an- other defendant. We doubt that any member this Court, despite our experience in sifting testimony, can carry mind what was admitted whom, and we are confident the jury could not. We will not prolong opinion with an analysis of this testimony. Some of it was very damaging. For example, testimony was admitted, limited to Munio Knoll; on one occasion *17 he returned to his apartment and had difficulty getting in. When he gained admittance, petitioner Lutwak was going out through the window, leaving Knoll’s wife to explain the phenomenon if she could. This testimony was not admitted against Lutwak, and the jury was ade- quately warned not use against him. But does any- body believe that the jury could forget that picture Lutwak being caught.taking hasty leave of his co-con- spirator’s wife and making a somewhat irregular exit? The salutary rule that evidence of acts which occurred long after the conspiracy terminated is admissible only against particular defendants should be in spirit observed as well as in letter. Here much of such evidence was of probative such remote value, and the instruction limiting its use was so predictably ineffectual, that its admission violated a right substantial of those defendants whom it could not be used.
For these reasons we are impelled to dissent.