Thеse appeals are from a judgment of conviction for conspiracy to violate § 4047(e) of 26 U.S.C.A. Int.Rev.Code. The accused were inspectors of the “Alcohol Tax Unit,” and were indicted along with eighteen other inspectors or investigators. Four pleaded guilty; as to three the indictmеnt was severed; nine, including the four appellants were found guilty; six were acquitted. Five of the nine found guilty did not appeal. The four who did, and whose appeals are now before us, all complain that the evidence was not so convincing that it should have satisfied the jury of their guilt beyond a reasonable doubt. This objection we may dispose of in limine, for, as we said in United States v. Feinberg, 2 Cir.,
Upon Andolschek’s appeal the only point we need consider is his immunity under § 3119 of 26 U.S.C.A. Int.Rev.Code, which he claimed by a рlea in bar, filed and overruled before trial. This plea alleged that he had been subpoenaed to appear before the grand jury; that in obedience to this subpoena he did appear; and that he “testified freely with reference to the subject matter of inquiry by said Grand Jury as shown by the indictment herein.” By its reply the prosecution admitted all the allegations of the plea, except that it took the position that Andolschek had “waived” his privilege by testifying without claiming it. Ward, Nagle and Herskowitz raise several points in common. First, they complain of the exclusion of certain official reports made by them to their superiors which narrated their conduct as inspectors in dealing with “permittees.” The contents of these reports is not in the record, but both sides assumed at the trial, and have assumed upon this appeal, that they would bear upon how the accusеd had in general performed their duties, although it does not definitely appear whether they contained anything about those specific transactions as to which the prosecution’s witnesses testified. The judge excluded them, not because they were irrelevant, but because he thought their disclosure forbidden under Article 80 of Regulations 12 of the Treasury Department, which we quote in the margin. * Second, Ward, Nagle and Herskowitz complain that separate verdicts as to different defendants were received at different times : that convicting Andolschek and one other, being receivеd at eleven P. M.; that convicting Ward, Nagle and two others and acquitting two, being received at one A. M.; and that convicting Herskowitz and two others and acquitting four, being received at two-fifteen A. M. Third, they complain of the general conduct of the trial: i. e., that the judge constantly hectored counsel, unduly intervened in the examination of witnesses', favored the prosecution while the testimony was going in and in his charge, improperly cut short cross examination, and held the jury to unreasonable hours. Herskowitz separately complains that he was not shown to have been party to the conspiracy laid in the indictment, which was to bribe inspectors and investigators in the “Permissive Section” of the “Alcohol Tax Unit,” to which he was not assigned. All the accused also complain that the indictment was duplicitous; but, as that point is frivolous, we shall not discuss it.
Coming first to Andolschek, we think that when he appeared before the grand jury under subpoena and testified, he secured the immunity granted by § 3119 of 26 U.S.C.A. Int.Rev.Code. The judge assumed that a witness who, when subpoenaed, does not claim his privilege against self-crimination, surrenders
it,
and cannot thereafter invoke an immunity granted him by statute. That ruling was in accord with the law as we then understood it; but since the trial the Supreme Court has decided (United States v. Monia,
Coming next to the alleged errors common to Ward, Nagle and Herskowitz, the first is the exclusion of the reports of their dealings with “permittees”. These reports were presumably competent, since they were made in the course of official duties ; and, although we cannot know whether they threw light upon the specific transactions proved at the trial, as we have already said, the point was disposed of on the assumption that their contents might be relevant. If they related to transactions with those “permittees” who were alleged to have bribed the accused,’ they certainly were relevant; and we think that they would not have been too remote, though they showed only that the accused had in other instances been faithful and assiduous in the discharge of their duties. The propriety of the exclusion must rest therefore upon the ground on which the judge put it: i. e., that the regulation forbade the disclosure. It is true that in Boske v. Comingore,
While we are not prepared to hold that the general conduct of the trial, taken alone, would have required us to reverse the judgment, nevertheless, we cannot pass over the complaints as to the bearing of
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the judge. We are of course well aware that, broken from its context, an infelicitous passage between court and counsel often takes on an importance, which it did not in fact have in a trial which, like this one, occupied over twenty court days. Moreover, so far as we can see, the judge did not directly exhibit any bias against the accused either during the trial or in his charge; or indeed indirectly, except as the jury might have inferred it from the harsh asperity and discourtesy with which he at times addressed counsel. It is difficult to know how far this kind of thing influences a jury; or indeed whether it may not actually predispose them to the acсused; but whether or not the outbursts of petulant irritation, which repeatedly marred the serenity of the court-room in the case at bar, prejudiced the accused, they were an indignity to counsel which we should not pass in silence, and in which we should have supported them, had they shown less forbeаrance than in fact they did. In United States v. Minuse, 2 Cir.,
Thе complaint that the verdict as to different defendants was taken at separate times, rests upon one of those farfetched possibilities which in the past were treated more seriously than they are today. What we said in United States v. Cotter, 2 Cir.,
Upon the new trial the question may once more arise which Herskowitz raises now: i. e. whether he can be convicted of the same conspiracy in which Ward, Nagle and the other inspectors were parties. The argument, as we understand it, is that, since most, if not all оf the other accused were employed in the “Permissive Section” while Herskowitz was employed in the “Enforcement Section,” he could not have been a party to their conspiracy. The inspectors in the “Permissive Section” examined only the books and dealings of “permittees”; thоse in the “Enforcement Section” confined their examinations to the customers of “permittees.” Prima facie, these groups had nothing to do with each other, and if one group took bribes from “permittees,” and the other from customers, quite independently and without mutual connivance, there was no conspiracy common to all. It is true that at times courts have spoken as though, if A. makes a criminal agreement with B, he becomes a party to any conspiracy into which B. may enter, or may have entered, with third persons. That is of course an error: the scope of the аgreement actually made always measures the conspiracy, and the fact that B. engages in a conspiracy with others is as irrelevant as that he engages in any other crime. It is true that a party to a conspiracy need not know the identity, or even the number, of his confederatеs; when he embarks upon a criminal venture of indefinite outline, he takes his chances as to its content and membership, so be it that they fall within the common purposes as he understands them. Nevertheless, he must be aware of those purposes, must accept them and their implications, if he is tо be charged with what others may do in execution of them.
Upon the new trial if it shall appear that IPerskowitz in fact supposed that there was only a limited plan or scheme, and that it did not include inspectors of the “Permissive Section,” he will not be proved to have been a party to thе conspiracy laid in the indictment, and there will therefore be a variance. Yet it need not be a fatal variance; the situation will then be that one conspiracy has been proved, confined to inspectors in the “Permissive Section,” and a separate conspiracy hаs been proved to which only Herskowitz and the “permittees” or customers who dealt with him were parties. That was the situation dealt with in Berger v. United States,
The conviction of all the accused will be reversed.
The cause will be remanded for a new trial of Ward, Nagle and Herskowitz, and for dismissal of the indictment against Andolschek.
Notes
“Whenever a subpoena shall have been served upon them, they will, unless otherwise expressly directed, appear in Court and answer thereto and respectfully decline to produce the records or give testimony called for on the ground of being prohibited therefrom, from the regulations of the Treasury Department. Officers disobeying these instructions will be dismissed from the service and may incur criminal liability.”