*1 532
Brotherhood would have had right apart such a (11). It jurisdiction § follows that we have to con- appeal sider the on its merits. And in the exercise of that jurisdiction, judgment we reverse the of the District Court leave to denying the Brotherhood to intervene.
Reversed. UNITED v. STATES BAYER et al. Argued April 2,1947. 9, 1947. No. June —Decided *2 Bernays Wiener for the argued Frederick cause Acting him United States. With on the brief were Solici- Washington, tor General Robert S. Erdahl Beatrice Rosenberg. H. argued Bayer ah,
Charles Tuttle the cause for et respondents. B. Joseph With him on the brief were Keenan, I. Maurice Wormser and Archibald Palmer.
Roger argued Radovich, respondent. Robb the cause for himWith on the brief was Samuel T. Ansell. opinion delivered the of the
Mr. Justice Jackson Court.
This is a sordid three-sided case. The Government charged all of the defendants defraud conspiring with by it of the faithful depriving Army services of an officer. Radovich, 1096. The defendant 18 U. S. C. 35 Stat. § question, receipt money the officer in admits of from the other defendants and admits but questioned actions him conspiracy, claiming denies the the others induced accept a bribe. Bayer payment The defendants admit money they but claim were victims of extortion jury guilty found all but recommended Radovich. The degree clemency for all three defendants.” highest “the of for the Circuit reversed.1 The Court Second granted petition We the Government’s certiorari.2 Bayer, United States v. 156F. 2d 964. 2329 S. 706. U. principal facts are admitted it is contested None inferences which are issue of guilt. decisive of the purpose would the defendants testified. It serve no justifies finding to review in It the evidence detail. follows: Bayer yarn brothers were manufacturers of good
thread and bore names their circle. Samuel them, Martin, three sons in the service. with One nephew Melvin Usdan, Bayers, of both was involved this case. Martin’s health had been robust. These Corps two Air boys day enlisted on the which Samuel had learned was the last on which a volunteer could branch in They select the to serve. were which *3 immediately assigned almost as file clerks at Mitchel In Field, Long 1943, club, Island. at a January night Bayer picked up Elias acquaintance the of two officers stationed They obtaining there. were interested in uni- forms at them Bayers eventually wholesale. aided paid and others to obtain and though for them, uniforms they claim have to understood that the officers were to pay for them. The acquaintance extended to other offi- cers, and April there was considerable entertainment. In replacement 1943 of men in positions by clerical Women’s Army Corps personnel was impending and one Col. Jacob- son requested transfer of these boys two with effect, the as Samuel it, understood of assuring them year’s assign- ment at Mitchel Field. Jacobson was given a dinner at presented and Waldorf with four new automobile tires.
This placed transfer boys the two under command of July Radovich. By there were rumors that the officers were receiving gifts Bayers from the and Radovich told boys Samuel that would have to be transferred. Samuel kept wanted them at Mitchel Field. Radovich made a transfer from his unit to medical detachment at the field, same which at first was and disapproved, then After exchange personnel. accomplished it an he $1,900 Radovich some made, paid transfer was Samuel $2,000. or transferred, to a unit boys again were August 1943 duty. Both engineers for overseas
of airborne besought this and their greatly concerned about were prevent the officers to it. Radovich had among friends Air joined group high He had an Commando with gone. personnel. But he several talked priority on times Captain Pepper, about trans- personnel, with ferring boys these from the overseas service to Air Trans- port Command for service continental United only pro- This States. could not be done. Then Radovich to posed higher priority requisition use his unit’s to it, drop surplus, thereupon for them to boys Transport have them transferred to the Air Command be Pepper agreed might domestic service. done. Pepper get Radovich told it his while” to it was “worth Pepper’s doing done he would see that it was worth while.
On November Radovich requisitioned boys unit, report transfer of the to his November at requested they Almost once also transferred he out of his unit and to Air This was Transport Command. shortly. Bayer effected Elias one of name unknown *4 to the $5,000 record then delivered to who Radovich, sent Pepper Pepper $500. testified that he destroyed the check.
The Government facts and these other evidence draws, as did jury, of conspiracy. inference The Bayers say they were victims of extortion and there is evi- dence that Radovich used the transfer to his own unit, one extremely of dangerous mission for boys which these neither nor training aptitude, to force money out of the Bayers. Radovich denies the conspiracy and pleads cer- tain court-martial proceedings as bar. tempted Radovich Bayers whether the
The issue as to with is one coerced them threats with a bribe or Radovich was ways. Radovich and inferences both with evidence thus: explained skillful flier his conduct gallant expect job hot and didn’t very on “I overseas going might I baby, figured back, had the wife and the to come persons were Bayers just as well take care of them.” prospect of frightened at the means, thoroughly some of ready to use areas, boys for these combat service they were boys’ safety. their means to foster the Whether conspirators or voluntary victims of extortion jury say, any and the inade- reversal does rest quacy proof. grounds of reversal the Court of Appeals for our questions raise consideration four law. Bayers assigned
1. The as error the trial judge’s charge to conspiracy. The Court of unanimously said, question “There is no but that anwas accurate, brief, albeit statement of the law.” But ma- jority thought that “the statement was cryptic so as to be difficult to understand, if not actually to be misleading to a jury laymen,” while one Judge thought it “a welcome relief judicial from much verbosity.”3 We are not certain whether a reversal as to the would have been rested on this criticism of the charge alone. We do not consider objection to the charge to amount to reversible error. judge Once the has made an accurate and charge, correct the extent of amplification its largely must rest in his discretion. The trial judge, in light of the whole trial jury and with him, may before feel that repeat same words would make them no clear, more in- and to dulge in variations of might statement well confuse. How far any charge on technical questions of law really un- derstood by lay those of background would be difficult to
3
the been out about four it hours, returned for parts instructions asked to have of the summations of read. counsel The court declined It parts. to read was at point that for reopen counsel to asked put and to a long slip case evidence call from distance telephone company It records. was the memorandum of on call November 24, from one we assume to be Radovich, spelled on the ticket “Ravish,” Arlington, to Virginia, Bayer’s number in New York. The ticket Bayer’s secretary tended corroborate Samuel who tes- receiving Bayers’ tified such call and who was the subject chief witness on extortion. It also tended to contradict Government witness. matter had be- importance come of because of Attorney’s the District that argument Bayers’ story. witness her falsified already, respondents’ court had at after request, jury instructed, had been told them that a Bayers’ check records showed Washington collect-call from day, request but counsel Radovich the court had also stated that did not record show who made the call. will proffered We assume that the evidence was relevant, Bayers’ corroborative of the contentions, and had the offer timely and been properly verified, its exclusion would have prejudicial been error. *6 disputed. The District
But the item of evidence was in- Attorney not and did not admit the slip seen the terpretation Bayer’s upon it. Counsel for put counsel objected. objec- Radovich To have it over his admitted tion to him. trial might prejudicial well have been already, admitted, and as Radovich’s court had as he an charged, given Bayers irregu- counsel the benefit of conveyance lar of information jury to the about the call proved. Moreover, which had been de- regularly slip. offered no witness to authenticate the As fendants pointed counsel, proposal the trial court out his to merely jury to hand to “an unverified memorandum telephone company.” trial during Even such an offer, with no in testimony against foundation ob- jection, would have been inadequate. To have admitted it with no to identify witness or support it would have cut by off all cross-examination both the Government and Radovich, and cross-examination would not have been un- concerning slip reasonable in which the wished Arlington equivalent to be taken as Washington to identify “Ravish” to Radovich. if evidence, put after four hours of by deliberation jury, likely would importance. of distorted surely It would have preju- been dicial to the Government, for the Attorney District would then have had no chance to on it, comment summation having been closed. It also would prejudicial have been to defendant, the other Radovich, who, with no chance to or cross-examine to comment, would be confronted with new item of against evidence him. The court to seems have a dilemma, faced grant either to mistrial and start the whole again case over or deny Bayers’ request. Certainly defendant who seeks thus to destroy a trial bring must his demand within of proof rules and do something to excuse its untimeliness.
Not only proffer was the of the evidence technically deficient, but no excuse for the untimeliness of the offer appeared. true, surprised It is no doubt, that counsel argument Attorney at the made the District which would have been less effective had this evidence been in. But Miss an Solomon, employee hence, of defendants and, an interested witness, carry was left the burden of proving extortion without the corroboration of the testi- mony employer-defendants. of her This was defendants’ apparent but it should have been right, every bolster *7 credibility important. to her would be It is well known telephone companies keep that the they such records and easily seem to have been obtained when asked for. We do not consider it reversible error to refuse to let this un- sworn, slip put unverified into evidence four hours after the had jury. judg- case been submitted to the The ment of reversal as to the Bayers was, opinion, our erroneous. questions.
3. Radovich’s case raises additional his of receipt first concerns the evidence of confession 17,1945. jury, March 15 and absence of the the Court testimony admitting heard before it and thereafter most of repeated jury. proof it was before the Rado- against vich rested on largely the confession. in Burma, Radovich,
After service of distinction then years age, report 24 of was ordered to to Mitchel Field. placed Upon August 9,1944, arrival on he under arrest psychopathic and ward in the station confined hospital. Here, time, for some he was denied callers, communication, comforts and facilities which it is needless were not Charges promptly to detail. court-martial served on him as said to be the 70th required Article War, magistrate of nor was he taken before a for arraign- any charges preferred by ment civil authorities. Military charges finally May were served on 30, 1945. under Meanwhile, restraint, such he made a first confes- September 5 or 6, more, sion on 1944. Without we will assume confession be inadmissible under the rule States, in McNabb v. and United 332,
laid down
318 U. S.
States,
Anderson United
v.
But this con-
A made to second confession 1945 was Investigation Bureau on March and it has held received, however, the Court equally to be the fruit earlier one”4 and “patently of the Lumber v. United inadmissible, citing Silverthorne Co. States, States, v. United S. Nardone 308 U. 385; 251 U. S. at still
At time of this confession Radovich only restric- Field, Mitchel but under “administrative tions,” limits depart meant could not which he Flynn base without leave. testified that Radovich had a B. agents. number of conversations with F. I. He in the original volunteered some statement facts incorporate whole meeting the' of March was to story Flynn in one statement. warned him his statement might against Radovich requested be used him. original statement read it before the second. making *8 is “supplementary” March statement labeled a state- “basically” ment the same the earlier one but and is went District refused Attorney into more detail. The in produce first which was offered statement, the not him, and the court sustained examined evidence, having the statement and found no material conflict between them.
Of let of course, after an accused has once the cat out inducement, the what bag by confessing, matter no the he is prac- never thereafter psychological free of the tical disadvantages get never having confessed. He can cat the in bag. back the good. The secret is out for a such sense, later always may upon confession be looked as fruit of the first. But this Court has so gone never
4
4. Lastly, we must consider whether the court-martial proceedings against instituted Radovich bar prose- cution on ground jeopardy. double Radovich was tried and, 29, 1945, June by convicted court-martial of violating 95th and 96th War, Articles of 10 U. S. C. 1567, §§ Stat. 806-807. The offense charged found was that of conduct unbecoming an officer and gentleman, and of conduct prejudice to the of good order and military discipline and of a nature to bring discredit upon military service. As to each offense, speci- fications set receipt forth payments the same of money for effecting the same transfers that are involved this indictment. plea Radovich’s in bar was overruled the trial upon court ground that the con- spiracy charged in the indictment was not the same offense *9 as that under the Articles of War. The Court of disapproved this ground but left the issue jeop- of double ardy to be decided after retrial because of doubt meanwhile raised about the status of the military judgment. speci- identity of the the Appeals thought
The Court
and the offense
proceedings
in the court-martial
fications
that
and the likelihood
indictment,
in the
charged
carefully between
distinguish
did not
military court
end,
arrangement
money
and
passing
v.
under
in bar to be sustained
required
plea
Grafton
States,
a soldier
United
But
we think the District Court
here
offenses.
did not accuse of identical
charges
that the two
recently
but
conspiring
The
is for
and we have
indictment
v. United
reviewed the nature of that offense. Pinkerton
States,
agreement
Its essence is
543 charged plea conviction had on each. The bar was properly overruled.
This conclusion makes it unnecessary to decide whether disapproval of the judgment court-martial for errors in trial and without ordering retrial creates status for military judgment such that no event would it available to bar this prosecution.
The judgment of the Appeals Circuit Court of re- versed and that of the District Court is affirmed. affirm the would decision
Mr. Frankfurter Justice Appeals the Circuit Court of for the substantially reasons Judge set forth below Clark in reversing conviction Bayers, which, under a of conspiracy, carries with it a reversal to Radovich. 964, F. 2d 967-68. Rutledge is of view the judgment
Mr. Justice Court of be affirmed Circuit should insofar respondent as it Radovich, relates for the reasons opinion. stated in that court’s F. 2d 968-70. ARMY v. GOSPEL LOS ANGELES al. et Argued February 6, 7,1947. 9, 1947. No. June —Decided