*1 country and dismiss has sold any complaint, records far. As to such, here, if there be it has not sold appear this rec- does not
their status enough certainty dispose of ord appeal. whether find out I cannot prop- “common-law Telefunken had, Germany, or, erty” if it in them coun- lost sale in that
whether it was try. not know what is Ger- We do law; question been nor
man argued oc- same conduct whether the
curring country would in another “publication” in the United
constitute a bring into the “work” public if it did not forfeit demesne here right country by the law of the where my place. Since view took prevail, I consider need not express questions, opin- I
ion on them. America, STATES
UNITED Appellee, COSTELLO, Appellant.
Frank 83, Docket 23149.
No. Appeals Court Circuit. Second
Argued Oct. 5, 1955. April
Decided
gether the costs —$4,111.38. appeal Costello On points, consider raises six which we shall *3 challenges First, the suffi- seriatim. ciency he prove he that the evidence more taxable and his had received wife years question in income the three joint he tax re- than included their Second, years. for asserts turns those his refuse offer in that it error to was against him evidence of tax assessments years 1941-1945, which showed for the higher him than income received a net gross computed as his years; and which for income those to show that therefore relevant up on Janu- laid a cash reserve John, Hays, Hays, Arthur Garfield St. Third, ary 1, was error Schulman, Leary Joseph Abramsor. & expenditures as include wife’s to part his Delaney, City, appellant. York New for Fourth, that the court of his own. Fraenkel, Joseph Leary K. pieces Osmond De- the admission various erred laney, Shilensky, City, Morris New Yоrk prosecution. offered charge ju- of counse.'. Fifth, judge’s that the Sixth, ry in- was insufficient. MacMahon, Lloyd F. U. Chief Asst. S. dictment should have been dismissed be- Lumbard, Atty., Atty., J. Edward U. S. competent evidence was before cause City, appellee. for New York Powell grand jury inquest. at the Whitney Jr., Pierpoint, Seymour, North Sand, Attys., Leonard 13. Asst. U. S. New question most The first is the City, of counsel. York important. up prosecution built its The CLARK, Judge, and L. Chief Before upon case has come to be known as what Judges. FRANK, Circuit HAND method,” which the the “net-worth Su recently very accepted preme Court has Judge. HAND, Circuit L. permissible, applied it must be Costello, greatest defendant, appeals from with the caution.1 This method upon judgment presupposes verdict of entered first guilty tiding proрerty taxpayer jury, proves him three fi what had at beginning year question under 145 in an indictment § of the four cour.ts Code, Title (b) Internal Revenue what he had at the end of it. To the re attempts e., by subtracting of wilful i. mainder obtained the first U.S.Code: large part in- defeat from the second it adds whatever sums “to evade: years year prove 1948 and for the can that he come tax” it question. owing by gross putative him and his That is the in “due understating joint year; remainder, wife,” their net in- for the and the come acquitted deducting gross (The jury him on the amount of after in come tas.. -1946—, reported, hypothesis which was come reported first un count— understating separate However, income income. this McGohey enough, imposed tax.) for it does follow a sen- is not expended years upon taxpayer of the all that the of five each neces tence income, sarily (to or indeed and 1949 taxable three counts Conceding something concurrently), kind. and a fine of of be served establishing difficulty by impreg- cumulatively, each count to- the
1. Holland
U.S.
income,
Concededly
proof
the of cash
how
on hand.
the “net
nable
much
likely
beginning
“proof of a
worth” at
Court is satisfied with
each
source,
reason- would be
from which
could
falsified
to the extent
omitted;
ably
increases
sum
net worth
with it
find that
“likely
sprang”. True,
computations
fall
source”
for later
disregard
source,
years. However,
true
not be the
we will
pos- possibility
necessary
being;
pro-
to exclude
for the
addition
time
figure
sibility
assumption
did not
what
ceed on the
that the
gifts,
Next,
or loans.
inheritances
“net worth” was
come
accurate.
pre- prosecution proved
too
does not exact
Here
the Court
that either Costello
*4
cision, for,
large purchases
“where
leads are
relevant
his wife made
in each
forthcoming,
years,” varying
re- of the
the Government
four “indictment
negate every possible
nearly
quired
$60,000
$90,-
source
in 1948 to over
income,
peculiar-
000 in
of nontaxable
ly
matter
1949. Then
“net
knowledge
beginning
1947,
within the
of the defend- worth” at the
and sub-
Nevertheless,
prose-
beginning
ant.”
in the end the
tracted it from that
at
“prove every
1946,
quantity
must
element of the
which resulted
cution
in a minus
beyond
though ($8500).
offense
a reasonаble doubt
This it deducted from the sum
certainty.”
purchases;
not to a mathematical
“The of the
and the difference be-
settled standards of
criminal law are tween what remained
and the amount re-
just
applicable
to net worth cases
as to
turned
income
Costello it
prosecutions
fraudulently
for other crimes. Once the asserted to have been
con-
case,
objections
has established
Government
its
the cealed. He raises a number of
quiet
peril.
computation
defendant
remains
his
at
to this
in
addition
* * *
practical disadvantages
The
omission
a concealed cash reserve.
taxpayer
pres-
are
lessened
One of these
“likely source,
the failure to show a
sures
the Government to check and
from which the
could
negate
Finally,
relevant
reasonably
leads.”
it should
find that the net worth in-
that,
in
sprang.”
be remembered
all criminal
difficulty
creases
There was no
prosecutions,
makes out
pointing
the case at bar
such a
go
jury,
a sufficient case to
if the
By his
source.
own admission Costello
been
have
ain
gambler, though
no
was a
he had
action;
civil
difference between occupation. He had substantial interests
two is that in
the end the evidence
“juke
machines”
in “slot
boxes” in
satisfy
jury beyond any
must
reason-
companies; and
were not
Louisiana
doubt.2
able
gambled
only ventures, for
“horses,
fights”;
prosecution’s proof started with a
cards and
and there
beginning
supposed
worth”
of evidence that
“net
away
1946,
up
keeping
year
of four items
bookmakers
from a
race
aggregate
years;
$250,-
which,
liabilities,
tract
two
which
less
itself
among
power-
3,
have
is no
him to
been a man of
which there
item showed
000
Cir.,
594,
States,
239,
592,
F.2d
2
140
United
252 U.S.
154 A.L.R.
2. Pierce v.
542;
272;
Andolschek, Cir.,
251, 252,
United
v.
2
64 L.Ed.
States
40 S.Ct.
505;
States,
Cir.,
States
United
8
192
United
v.
Matthews
Cohen, Cir.,
82, 86;
495;
States,
490, 494,
2
145
United
v.
F.2d
United
Stout v.
F.
801;
Picarelli,
Hays
Cir.,
997;
Cir.,
v.
F.
States
2
F.2d
8
States,
227
148
Cir.,
106, 108,
Greenstein,
Cir.,
v.
affirmed
United States
2
153
8
231 F.
550;
442;
Spagnuolo,
F.2d
v.
61 L.Ed.
United States
2
Cir.,
Cir.,
768, 770;
States,
168
2
240
F.2d
United
v.
United
F.
States
Looker v.
Cir.,
932;
Cir.,
Sherman,
619, 621;
2
F.2d
9
171
Felder v. United
Weissman,
875;
Rowe,
v.
States
United States v.
United
F.
F.2d
747, 750, 751;
McKee, Cir.,
Crono
F.2d
2d
United
F.2d
United
Valenti, 2
134 F.
States v.
United
Throughout
figures.
round
we will use
Feinberg,
2d
States v.
Gambling
permissible
four
is a
ful
inference that
influence.
undisclosed
years”
separate
possi-
occupation
“indictment
she
no
with indeterminatе
brought
might
beyond
her
was credited
bilities
have
income
what
well
single
more
than
—the
highest
charged in
with which he
Thus,
to whether
is narrowed
issue
years.”
If
four
“indictment
reserve
had an
Costello
accumulated cash
no
no
were
accumulated
reserve
beginning
at the
out
gifts
gambling
loans,
inheritances,
might
purchases
were
have
come
payments
$30,000 we have
such
as the
made,
not de-
shown to
been
“likely
mentioned,
source” of the
aggregate
clared. Since
during
year.
during the “indictment
omitted
gifts
loans,
possibility
To
exclude
years,”
computed
de-
when
might
contributed,
and inheritances
scribed,
more than
came to
likely
prosec.ution
searched all
records
perhaps
start
have been fair to
gifts and found
for inheri tanсes and for
hypo-
assumption
with an
Similarly,
it found no credits on
none.
*5
unreported
thetical
reserve covered
or
wife
the returns of either Costello
his
How-
for at least the
income
payment
on
of interest
loans.
for the
rely
ever,
prosecution
not
on such
did
followed for each
The sam€ method was
assumption;
establish
an
it undertook to
years”;
and it ful-
of the “indictment
on
had no reserve whatever
that Costello
in Holland
filled
tests laid down
January 1, 1946.
a state-
It started with
any
Spates, supra. Upon
it
issue
on
of his “net worth”
October
ment
nearly always
party
true
hav-
that
day
of
made
a sworn statement
ing
not,
can-
the affirmative does
and
the Tax Bureau.
him to an official of
against every
not,
possible
shut the door
dаy he
that he had a cash
On
said
that
deny
exception;
idle
and it would be
to
$25,000
$30,000
of between
and
reserve
possible exceptions
no
that there were
on
currency.
kept
His bank
he
which
occasion;
present
but we
see
cannot
receivables,
deposits,
and
investments
man, having
how it can be doubted that a
this,
$45,600, from
to
when added
gifts
loans,
no resources
or inheri-
$6,000.
loans
was deducted
of
tances,
could
what Costello Thus,
on
he started with a “net worth”
years, unless
was
four
it
did
substantially
day
$40,000. As
of
that
wife’s,
or unless
of
his
out
his
said,
January 1, 1946,
little
a
we have
on
had
accumulated from
he
a cash reserve
figure
eight years
later,
had
this
over
years.
income,
past
As to
wife’s
his
gain
making
$200,-
$240,000,
a
of
become
finding
justified
a
that
pur-
this the
addеd
000. To
it,
money
except
had not come out of
making $512,000;
of
chases
was
with about
1946 whan she
credited
deducting $6,400
and,
non-tax-
after
gross
sepa-
$16,000
income, which she
receipts
$302,500
in-
and
able
rately
In
had
returned.
1937 Costello
declared,
asserted
it
come
income;
she had no
in 1939
sworn that
$203,000.
In
it
addition
difference
that,
went
into her
whatever
“indict-
proved,
it
for the four
as
had
gave her;
acc.ount,
he
in 1943
bank
years,”
record of
there
ment
that
bought
lawyer
in 1941
told
that
she
his
gifts
any loans,
and inheritances.
money,
a motor car
his
well as
possibility that
to
In order
meet
living expenses.”
applying
In
“all
might
of this
laid aside out
Costello
in 1940
insu ranee
she stated that she
reserve,
it
that
a
cash
substantial
supported
her husband. Further-
judgments
remain
allowеd three
he had
many
more,
traced
mortgage
unpaid,
outstand-
left a
cheques
him into
her bank
house;
ing
that he had allowed
his
on
payments
in 1943 two
account
un-
life
to remain
insurance
loan on
paid
paid
tax
estimated income
were
paid
Costello’s
than
1946 when he
less
until
it, and
he had borrowed
all
it was
out
her account. From
half of
rolling up
same liabilities that
in interest
and the
in 1946
a friend
penalties.
Finally,
proved and
again
In
limi-
it
deference
in 1947.
amount
imposed
any
paid
upon
tations
February 21,
over
use
the “net
on
obliged
upon
method,
say
worth”
penalty
we feel
interest
justify
unpaid
the evidence
not
since
did
a verdict
remained
had
taxes
assumption
based
Jan-
owned that
that on
must be
and earlier.
It
uary 1,1946,
makеs it
not
facts
been a reserve
of these
combination
$30,000;
of more than
unlikely
left
reserve
indeed of more
there was
$40,000.
January
than
On
the other hand we also
should
taking
that,
assume,
proper
whole,
hold
the evidence as a
were it
hesitate so
quixotic
it would be
an accused
make
assume
inference
day
that on that
Neverthe-
to answer.
Costello had had a
from his failure
re-
$73,000.
less,
position,
serve of
whose
over
a man in
Costello’s
follows that
affairs,
greatly up
enough
see,
while there was
we can
varied
evidence to
support
down,
interest
verdict on the
have allowed
second count
up,
there was
end a
to run
in the
to do so
confident
on the third
come;
kept
and fourth
on hand
turn would
and have
counts.
reserve, prepared for
a substantial
cash
In
just
view of what we have
said
im-
demand
run
bad luck that would
reserve,
hardly necessary
large payments.
mediate
His
calls
to discuss whether
before or after
ordinary;
and,
situation was
far
October
$66,-
that Costello received
said,
always
past
as we have
he had
000 which he returned as received in
*6
large
kept
such reserves
in
amounts.
1937 from
Bayou
Kastel’s share in the
Considering the admonition with which Novelty Company;
event there
hedged
Supreme Court
the
about the
enough
was evidence
to find that he did
method,”
“net worth
we cannot therefore
receive it
Bayou
before October 18. The
agree
evidence,
whole,
that the
taken as a
comрany
partnership
was a
one,
between
justifies
the inference
that he had no Kastel, and another man who
on
died
January 1,
on
reserve
June
and Costello had a half
share,
interest
in Kastel’s
which turned
jury
hand,
On
out
$132,000.
to be
Although
setting
upon its
a limit
warranted
Costello’s return does not show whether
size;
likely
possible
quite
and it is
he received
half
his
before or after Octo-
exactly
they
do,
did
when
what
ber
all of Kastel’s share was in Kas-
they
acquit
to
on the first
voted
count.
hands
tel’s
June
because that was
unreported
net
Costello’s
income
the balance of his
day
account on that
only $1,541,
if we allow no cash re
deducting
sum;
after
and Costello
serve;
and,
$36,730;
1947 was
testified that
him
Kastel
remitted
to
jury
$30,000
if
assumed
reserve of
“weekly,
monthly.”
sоmetimes
This es-
figure
gave
(the
1937),
he
it would still
tablished, prima facie,
that Costello had
be true that he would have understated
received before October 18 the share that
joint
income for 1947. On the other
he entered
his income tax return.
hand,
since his understatement
joint
$35,245,
point
income for 1948 was
judge’s
The second
raised
aggregate
put
understatement
refusal
to allow Costello to
in evi-
and 1948 was
therefore
it dence
Tax
assessments
Bureau of
January 1,
would have taken a reserve on
in his net
deficiencies
income tax as
deprive
years
that size to
reported
the verdict
for the
1941-1945. These
support
on
prosecution’s
the third count of all
to meet
he offered
evi-
Nothing suggests
record.
reason
had
denсe that he
no concealed cash re-
why
January
on
January 1,
They
he
showed,
should have
serve
nearly
$40,000
argues,
income,”
doubled the maximum of
that his “net
as
enough
years
larger by
“corrected,”
which had been
earlier,
$292,000
six
been
had
especially when
heavy
reported,
we remember
what he had
than
which was
in show
had received
unreported
income
that Costello
more
according
unreported
than,
1941-1945,
net income more than
years,
five
proving
computation,
had
had succeeded
prosecution’s
gross
unreported
gross
the that he had
unreported
income
during
eight years
this,
eight years,
he income
before
From
1938-1945.
indeed,
January 1,
could,
might
argues,
That
have found
had,
might
one link in a
had,
a have bеen
chain
reason-
he had
or at least
ing
might
January
prove
that he
have had
reserve on
cash
concealed
1946,
January
cash reserve in his hands on
have been
which would
link,
during
purchases
“indict-
but it would be
meet the
nothing,
accompanied
Judge McGohey
pro-
years.”
unless
heard
it
ment
relevancy
argument
longed
as to what had been done
evidence
as to the
finally
assessments,
income
received. So far as
excluded
Cos-
spent
thought that,
tello or his wife
unaccom-
them because
goods,
they
by any explanation,
panied
consumable
or
otherwise dis-
were
posed
it,
likely
part
they
than
could not be
of a cash
to mislead
were more
reserve;
sug-
enlighten
presumption
jury.
and therе was no
did not
Costello
they
spent
gest
supplement
had not so
It is horn-
it.
that he meant
that, although
showing
party may
book law
much of
offer
how
assessments
rationally
alleged
issue,
relevant to the
net income had
inevitably
spent
purchases,
that does not
make it admis-
for consumable
been
remained, might
may, just
Judge McGohey
sible.
much
have re-
how
mained,
thought
instance,
in this
cash reserve on
tend rather
as a concealed
enlighten
jury.6
mislead than
January
He stood
their
admissibility
When the
read.
showed the amount
during
eight
of his
assume, arguendo,
shall
We
years,
by proving
it did so
in detail the
competent evi
assessments
that the
purposes
money,
for which he
had re
that Costello
this trial
dence on
*7
supplied, just
and thus
the element that
charged
they
ceived the
missing
was
from the assessments.
It
failing
report.
do not
We
to
him wilh
certainly
judge’s
was
within the
discre-
“judgments”
they
agree
were
indeed
tion to decide whether to admit them un-
they
prosecution; for
estopped the
supplied;
til this omission was
and we
recognized prac
has been
net.4
were
ruling.
are in entire accord with his
levy on tax assess
to
for centuries
tice
always
point
taxpayer
is
it was
The third
er
but
ments
challenge
validity
their
ror to allow the
to include Mrs.
to
allowed
been
having
another,
purchases
way
or to recover his Costello’s
been made
in one
Nevertheless,
money.
already
out Costello's
We
the collector.
findings
supports
the evidence that
such an
rested
stated
the ass assments
inference;
statutory
under its
and we think
made
that it was suffi
Bureau
Taa
again
standing
assume,
cient,
authority,
will
uncontradicted as it did.
such, they
compe
question
were
arguendo,
In this connection
arises
that as
against
ground
prosecu
an added
whether it was
for this
as admissions
tent
although
trial,
that she was not
conclusion
called as
in a criminal
tion
they
defence,
being
If
from doubt.
a wife now
point
not free
witness
is
competent
competent,
were relevant
witness in her
husband’s
were
Helvering,
Mining
137 F.2d
6.
Reward
Co.
Golden
v. Buxton
4. Bennet
Company,
Mining
413, 416;
Commissioner
97 F.
A.L.R.
Mellon,
England
Farr,
New
Trust Co. v.
Revenue
Internal
Thayer:
“Evidence at
pp. 516,
Law”,
517; Wig
the Common
Murray
Land
v. Hoboken
dem.
Den ex
more,
§
Company,
Improvement
How.
L.Ed.
wife was
expеnses
In
on a
favor.7
where the
case
mausoleum.
travel
The
proved by
railway
testimony
transaction were
not herself concerned
of the
crime,
being prosecuted
places
fares to
that was
and from
that Costello
permissible
visited;
objection
to infer had
we held that it
was
is friv-
Judge McGohey
call her olous.
failure to
from the husband’s
heard extended
argument
car,
favor-
and,
would not be
that her evidence
about the motor
al-
though
;8
here,
proof
when, as
she was a
able
did
not amount
dem-
might
onstration,
party
apparent
every
be-
the transaction
subject
prosecu-
pointed
pur-
reasonable
lieve herself to be
tion,
inference
to its
weaker,
chase for Mrs.
pay-
much
the infеrence becomes
Costello. As to the
altogether disappear.
mausoleum,
testimony
ment on
if
it does
indeed
not
might
Festa,
signed
contract,
who
wish to
In
situation she
was
up
personal privilege
that he
sup-
self-
called
claim a
incrimination,
some one whom he
posed
be Costello
even
she
not
and said payment
necessary.
criminally
involved. On the whole
His
fact
interlocutor
agreed and
appears
soon
thereafter
to us therefore that
he received
$3,000 in
bills
$100
should
drawn in
case at
with which
inference
payment.
bar;
necessary
The
to decide
mausoleum
and it
Costello,
suggestion
point,
was evidence
that some
said;
one
it,
paid
else
it,
as we have
and the
without
question
does
nоt
though
deserve
Finally,
serious
was not raised at the trial.
answer.
al-
it is true that
point
The fourth
about
of unreport-
more
judge
evidence that
admitted some
gross
ed
income than the total —
Costello,
adequately connected with
alleged
—which it had
par-
in the bill of
and did not confine
ticulars, that was a variance that could
amounts of
the same
prejudiced
not have
Indeed,
the defence.
alleged
it had
in a bill
income that
suggested
that was not
at the trial. We
particulars.
evidence whose
admis
long
passed
since
the time when
complained of
sion is
consisted
five
a trial has to be conducted with the
prosecution’s
appearing in the
items
formality
duello;
52(a)
code
§
computation
years”;
for the “indictment
of the Rules of
Procedure,
Criminal
aggregate
their
$20,000
is about
U.S.C.,
“disregard” any
directs us to
of which was entered as
“variance” that “does not affect sub-
year
*8
in
For
that
rights”.9
stantial
prosecution computed
an
net
$32,500,
already
point
income of
and as has
The fifth
is
appeared,
$73,000
charge
judge’s
inadequate.
even a cash reserve of
In Hol
January
1946,
1,
on
would
121,
been land United States
U.S.
[348
by January 1,
Thus,
Supreme
exhausted
S.Ct.
Court said
132]
prosecutions “charges
make
it would
no difference as to the in “net worth”
especially clear,
fourth count even
these items of should
including,
be
in
income had been omitted.
instructions,
We do not addition to the formal
they
summary
mean
this that
were not
ade
the nature of the net worth
quately proved;
necessary method,
assumptions
but it is not
on which it
$9,000
rests,
to discuss them. The
entered
and
in
the inferences available both
years
the earlier
and
for
margin
the accused.” In the
expenses,
put
portions
for travel
for a
we have
Cadillac
those
Judge
McGohey’scharge
motor,
payment
and
the initial
that cover this
371,
Berger
7. Funk v.
U.S.
U.S.
been dismissed.
cause “there was no lawful evidence” to
each of the witnesses
asked
tello's counsel
starting point
based on that
would be in
determination
involves
10. “This method
begin-
error.
net worth at
the defendant’s
ning
you
exist,
“If
find sucb errors to
it
if
period
in order to fore-
ai d end of
you
effect,
is for
expendi-
to determine what
possibility that
1he
close
tures were
any,
figure
such error has on the
made,
ultimate
in-
the net worth
computed
prior
additional taxable
derived,
accumu-
creases were
prosecution years.”
funds.
ated
Again:
you
“In order for
find
theory
underlying
is that
if the
“The
during any
sums received
of thе taxable
the defendant
changes
together
expenditures,
years
constituted income to
reported
worth,
in-
exceeded
him,
necessary
it is
the Govern-
may
period,
inference
come
ment to have
the exact source of
total income
that the defendant’s
drawn
the income.
reported.
properly
was not
alleged
“None
excess investments
that I have said
an
note
“You will
expenditures
the Costellos
mean
I don’t
be drawn.
inference
during any year shall
be considered
de-
you
you
suggest
thereby
should draw
termining the taxable income of the de-
should
ierenee
any year
Frank
fendant
Costello in
unless
you
alone to draw
It is for
draw it.
you find that there was an
of ex-
excess
you
evidence rа-
think the
inferences
penditures
investments,
and that
supports.
tionally
money
constituted
which the defendant
think,
obvious,
that under
I
“It
during
received as taxable income
theory,
the defendant
worth of
the net
spent.”
which
January
January 1, 1946,
Again:
“One of the theories of the
January 1, 1949,
1, 1948,
January
here,
course,
pur-
defense
is that the
years,
must be
are
*9
by
chases made Mrs.
Costello were
her
accuracy.”
reasonable
fixed
actually
name and were
made with her
has under-
Again: “The Government
money
money supplied
rather than with
starting point as of Octo-
fix the
to
taken
defendant,
you
the
but it is for
to de-
13, 1937,
the
of
its calculations
and
ber
money
actually spent
cide whose
was
based
income are
defendant's
upon
expenditurеs
and investments
opening
assumption
the
that
the
or
Mrs. Costello
in her name.
all the resources of
accounts
wort!
person
“The fact
that a
time,
that
at
and his wife
defendant
the
money
amount
considerable
of
does not
you
determine whether
it
but
prove that he owed an
tax
on that
defendant and
the
of
the resources
all
amount,
nor does the fact that the
and in
in
as of October
his wife
deposited
prove
bank
was
that such
years,
fact
the
of
each
tax,”
money was liable for income
opening net worth
in the
included
been
*
* *
years.
Dunn v. United
U.S.
those
of
for each
you
S.Ct.
76 L.Ed.
does not
the evidence
find that
“If
Dotterweich,
starting point
with rea-
fixed
the
establish
accuracy,
L.Ed.
the calculations
then all
sonable
ciding
support
support
ground
order he
of this
it
In
whether
it.
dismiss-
innocence, ing
asserting
filed
indictment
an affidavit
that all the evidence
“firmly
inquest
hearsay.
convinced that adduced
and
he was
at
legal
competent evi-
there could be no
It is indeed well
settled
Jury,” because
dence before the Grand
incompetent
admission of
always reported his full income.
had
inquest
ground
at the
is not a
for dis
Judge
On return of the order
Weinfeld missing
indictment;13
times
at
but
motion,
do not under-
denied
and we
the courts have assumed that it is other
asserts
stand
the defence
wise, if
incompetent.
all the evidence is
doing
wrong;
rate
so
In
Nanfito
v. United
right.
12(b)
(3)
plainly
Eule
376, 378,
Brady
pro-
Procedure
the Eules
Criminal
States, Cir.,
405, 407,
59 A.L.
vides
“motion
that such a
shall be
R.
that was made the basis of the
plea
entered,”
before the
“the decision,
Judge Phillips
declared in
may permit
court
it
be made within
the second of these cases that
“the settled law” in the
it was
thereafter”;
and sub-
reasonable time
Eighth Circuit;
12(b) provides that,
division 4 of Eule
but we have
ap
found no other federal
although it “shall be detei'mined before
pellate decisions which can be said to
hearing
trial”,
upon may
it
“be de-
actually
upon
point.
turned
If
ferred for determination at the trial of
“incompetent”
evidence,
is to cover all
general
Perhaps,
light
issue.”
rationally persuasive may
however
be,
it
this,
permissible
dispose
it would be
that would be excluded at a trial with
denials
the motions made at great
agree. Lеgal
deference we cannot
prosecution’s
close of
case and of
presuppose
rules
the occasions to
saying
ease, by
whole
should
they apply,
shall be decided under
be
reviewed because Costello had fail-
ordinary postulates
reasoning;
toed
ask
Weinfeld to defer their
exclusory
and the
exception,
rules are an
gen-
determination until “the trial
they apply
to evidence that is rele
that, especial-
eral issue.”
seems to
us
rationally,
vant
but that courts will not
ly
jealously
in a
circum-
accept, not
prove
because it does not
this,
ought
dispose
scribed as
we
not to
issue,
thought unjust
op
but it is
to the
going
point
very
of a
heart
posite party
him,
to use it
ground.
uрon
formal and harsh
privilege
sup
because
is within some
Costello had done all he could
raise
press the truth. We
first
should
be
point; and, since he was without that
agree that,
appeared
if it
that no evi
help
not uncommon
that the names of wit-
rationally
dence
been offered that
inquest
called at
nesses
must be en-
facts,
established the
ought
indictment
upon
indictment,12
dorsed
he was
quashed;
to be
because then
showing
stripped of all means of
that the grand jury would
substance ab
begin-
proceeding had no lawful
whole
dicated. But that is in no sense true of
ning,
adopted
unless
course he
was hearsay,
as is shown both
the numer
open.
accept
We cannot
left
it that such
exceptions,
ous
based
the inaсces
slip
procedure
a trivial omission or
sibility
evidence,
better
consequence;
should have such a decisive
again
again
that have
decisions
held
may
escape
hold that
we
de-
dependable
that it
a reliance
*10
States,
App.D.C.
12. Goodman v.
25,
United
63
Cir.,
28;
8
199 F.
Anderson v. United
137, 70 F.2d 741.
Cir.,
States,
20, 29;
8
273 F.
Murdick v.
States,
Cir.,
States,
965, 967;
United
8
15
245,
F.2d
Holt
United
v.
218 U.S.
248,
2,
1021;
States,
McGregor
Cir.,
v.
Olmstead
9
31 S.Ct.
54
United
L.Ed.
19 F.
845,
States,
842,
Cir.,
187, 193;
1472;
v. United
4
2d
53
134 F.
A.L.R.
Kastel v.
States,
Cir.,
States,
Cir.,
156,
v.
Chadwick
United
6
158;
2
141
United
23 F.2d
225, 235; McKinney
Vaught,
Cir.,
F.
v. United
Cox v.
10
fendant to-day conglom hearsay governing mayor, is a and so before taken inconsistencies, developed as eration of cross-examination.” benefit lost the conflicting changed Refine system theories. in a result our “As 1 adversary qualifications investigative within the ex ments character irrationality. ceptions add to its hearsay rejecting and the rule rule 398, 402; Dowling F.2d Buffalo, v. 6 Jones, & P. Rochester v. 14. Schlemmer 537, 539; 407, 1, 8, 9, Ry. Co., 27 S.Ct. U.S. Rosenberg, 681; v. F.2d Diaz 51 L.Ed. Scott, 250, Calmar S. Co. 442, 450, S. 56 L.Ed. 32 S.Ct. U.S. Boyle, 244 U.S. Rowland 1022; Spiller 61 L.Ed. S.Ct. Law of Evidence 15. Baron Gilbert’s Fe, Topeka tchison, Santa & v. A Paine, 5 Mod. 16. Rex v. 64 L.Ed. *11 Morgan; Evidence, McNeill, Cir., Model Code of 17. 6 F.2d 25 v. Clark pp. 220, Fortner, 221. A.L.I. Ins. Co. v. 249: Continental
679 Judgment multiplying exceptions by on the count rе- The courts second versed; judgment hear relevant on third and reveal their conviction that say value, probative fourth counts affirmed. evidence has real by capable of is valuation as well of fact.”18 as other triers FRANK, Judge (concurring). Circuit acknowledged Consider also what another Judge 1. HAND finds that the sole Wig- subject says, of Dean master grand jury evidence before the was hear- suppose “But is more. a say. Accordingly, we do not have a case grand jury’s limitation of the investigation sources where, hearsay, in addition to there was shape of a rule unimpeachable evidence char- they may only such kinds of evi receive that, acter. HAND holds never- dence would be on a receivable trial theless, ques- the indictment be cannot petit jury. before Such a is rule a tioned. This leaves me in some doubt. plain justice, reprehensible obstruction of * ** entirely agree hearsay I that the rule policy. grand jury’s In the is undesirable. I think it would be well proceedings, if the rule is to be enforced that, if the rule were at revised all, petit juries, at is the fact trial, question admissibility of its grand must be allowed to be shown the then, would be left to the discretion of the jurors present. If, others judge. although But, trial courts community willing accept is so del many make desirable modifications procedure, eterious a rule criminal exclusionary rules, evidence I think way its enforcement in the feasible hearsay that the rule so well establish- by showing permitted must be highly ed and so cherished the Bar facts.”19 judiciary generally, very question undecided deep is still particular inroads on that rule Court, Supreme cir legislature.1 should be left to the except for an we are uncommitted cuit grand jury returning Here we have a J., ruling Wallace, in a old decision an indictment on the basis of no evi judge, confined as district which, objection dence over the of de cases, can see when the court “extreme fendant, properly could be at a finding grand jury is of a based that the course, trial. Of the trial such evi utterly evidence, insufficient admissible, proper dence would be evidence, incompetent palpably or such judgment, basis verdict and if the the indictment re to indicate that object. But, defendant did not then until prejudice, or was found in sulted from inadmissibility by he waives its failure rights disregard of the of the acc wilful object, incompetent; and, hold that it immaterial used”.20 We course, position he is object in no only hearsay was adduced at the presented grand jury. to a Con allegations support inquest in of sequently, very I have misgivings serious follows indictment and it that al concurring in a conclusion that a second the conviction on the count grand jury may solely indict on the basis reversed, the third and will support evidence that would not a ver will be However, counts affirmed. after fourth dict trial.2 because of 987; pp. Johnson, cit. Slifka v. 18. Loe. 224. 161 F. 2d 470. 2364(a). Wigmore, § 19. See, g., Kilpatrick, e. United States v. Farrington, D.C., v. States 20. United D.C., 765, 772; F. United States v. 348; Comрare: United F. States Rubin, D.C., (quoting 218 F. Mr. Violon, C.C., 501; F. Field); Bollos, Justice United States v. Morse, D.C., 292 F. D.C., Brady 209 F. Garsson, D.C., United States v. 291 F. 405, 407-408, F.2d 59 A.L.R. Nanfito v. United Palmer, Hoffman v. *12 680 wisdom, Judge I my HAND’S esteem CLYMER, L. De- ESTATE OF Robert hope concur, reluctantly with ceased, Steely Doyles- Edward O. our decision Supreme will review Court Company, Executors, town Trust Peti- question. consider the tioners, v. cited held in cases often have 2. We COMMISSIONER OF INTERNAL among Judge some them HAND — REVENUE, Respondent. joined indeed written I No. 11486. Judge puts HAND opinions that, as — Appeals United States Court of a suffi it, out makes “the Third Circuit. jury, evi go if the case cient Argued 21, March 1955. civil in a have been wculd dence 4,May Decided 1955. also held — United We action”. 362, Cir., Valenti, 2 134 F.2d
States v. apply the jury need not
364 —that chain “to each criterion
reasonafcle-doubt “op test proof,” and that ease, whole
erates on the of which each
separate evidence bits of proven”. courts Other be so
need not expres оtherwise, used or have held degrees emphasis, varying
sions, with very re And with ours.3
at varis.nee Court,
cently Supreme “net 1he this, us that admonished like
worth” case every prove prosecution “must still beyond a reason the offense
element of to a mathematical
able doubt States,
certainty.” Holland v. United 138, 127, 121, S.Ct. 75
Although, then, I concur opinion, I think desirable
HAND’S applica Supreme consider Court ruling here. of that
tion 1016; States, 1014, Cir., g., 8 See, United v. 191 F.2d Candler v. Nanfito e. 379; Egan States, 426; 376, Cir., 424, Cir., v. United 5 146 F.2d F.2d United 20 967; 958, 384, App.D.C. 788, States, Cir., F. e, 287 52 8 227 Isbell v. United F. Stat Cir., Morley, 792; F. 99 7 v. or that a trial court must direct a States United 685; 683, Dried Frui States v. United defendant unless the evi verdict 2d t D.C.N.D.Cal., California, every hypothesis dence excludes Association Gutheil, guilt, States, v. 98 Utah State Isbell 4 F.R.D. 944; People 943, supra; Maghinang, v. Kovace P.2d United States 98 v. D.C. 809; Cal.App.2d F.Supp. 760, 761-762; vich, 65 P.2d 111 Paul v. Del. Newman, 563; A. 127 Conn. 79 F.2d United State See, Maryland also, Virginia numerous ex States v. & 2d United Association, D.C.D.C., pressions court must direct a that a trial Producers’ Milk F.Supp. the defendant if substan 681. Cf. United verdict Feinberg, with the consistent 140 F.2d A. tial guilt, Valenti, innocence United States v. D.R. defendant’s ell v. United Parn Matsinger, States v.