United States v. Leviton

Sá8

Reversed Remanded and the cause is

directions inconsistent for further and not

proceedings, presented matters petition

the leave to file the for a motion prohibition moot, being now the leave file is Denied. et al.

UNITED LEVITON STATES Docket

No. Appeals Court of Circuit. Second

Argued 4, 1951. Oct.

Decided Nov.

Frank, Judge, Circuit dissented. Sidney Feldshuh, of City New York Bier,

(Feldshuh & of New York City, on appellant brief), Levitón. Taylor, Telford of New York City (Lan- dis, Taylor Scoll, Zeck, & Kove & William Zeck, A. George Solomon, all of J. City, New York the brief); appellant Blumenfeld. Murray McEniry, W. of New City, York appellant Markowitz. of, Italy private export Atty., of March Robinson, Stanley S. Asst. U. D. 1948— lard was among things, wheat and Saypol, S. City H. U. (Irving York

New prohibited by presidential proclamation Schachner, U. S. Atty., Asst. Bruno however, restriction, did not brief), cited. City, the Atty., on New York both of which were apply foreign agencies relief appellee. for the United merely plac- ship (by authorized to wheat SWAN, Judge, and Before Chief “RLS” on general symbol license FRANK, Judges. Circuit CLARK and (by export declarations) in- and lard cluding special declara- license number on CLARK, Judge. Circuit tions). was a mer- At this time Blumenfeld under appeals from convictions These exporter private relief agen- chandise for a twenty-one counts. indictment framed cy, Manager the Traffic for the defend- charged that one to eleven Counts Shipping Company (the freight Barr for- knowingly make and “wilfully and did ants ship- warding 'handling firm all New York fraudulent made and to be false cause Italy ments to for American Relief Declara- ‘Shippers’ Export statements Italy, private agency), Marko- relief ” 80 (1946 18 U.S.C. violation § tions’ awitz visa clerk in the Customs House 287, 1001. Counts Ed.), now U.S.C. §§ ap- whose function was to examine and it that de- twenty-one charged twelve to " prove export declarations. exported knowingly wilfully and fendants Apparently direct, of Presidential in violation after a unsuc- flour and lard but 2712, pro- cessful, attempt through 54 Stat. one Saxon to in- Proclamation No. Rizzotti, pursuant July 2, terest Traffic mulgated Manager of Amer- Relief, no plan in his C.App. Ed.). There ican to evade the re- (1946 § private over a conspiracy export, After a trial of strictions on Blumenfeld count. following and Blumen- contacted found Levitón Markowitz month counts, twenty-one while scheme was devised. Blumenfeld would guilty all feld purchases twelve to make acquitted Markowitz on counts of the commodities to Levitón, exported. guilty on counts who twenty-one and administered found him regular ten, having shipments been all American Relief gen- count the eleventh one Barr, erally freight forwarder, trial. Both as him acted dismissed as for, preparing necessary received sentences documents Blumenfeld Levitón and shipment, ship- including on each of the transocean imprisonment and fines counts, years pers’ Levitón three declarations. On these declarations eleven' first $1,000 shipments he described concurrently fine on as ac- for the to run Italy, count year day and a con- of American Relief for each, care Blumenfeld Genoa, Soveglianza, On the Societa fine on each. inserted the currently, with $500 suspended Shipping Company, not of the Barr they sen- name received other counts years person probation from whom tences, of two and a Blumenfeld with purchased exporter, day respectively termina- had as after commodities year and previous general Marko- inscribed each with sentences. tion of their special designations license sentences of a described concurrent above. witz received These day ap- of the first nine false declarations were then year on each and a proved by pro- Markowitz as suspended visa clerk for the counts, sentence Customs, steamship Bureau of years on the tenth since count. com- for two bation panies ship challenge export the defendants without an appeal all On this the indictment and the adequacy ship- declaration thus cleared. Some ten evidence, they also sufficiency varying quantities ments of wheat the conduct of the assign several errors in lard were thus effected. On the eleventh however, trial. attempt, another visa clerk in the Customs Bureau received the declaration prosecu- presented The case question way and in this scheme offering no evidence— defendants tion—the uncovered. Counts period one to eleven During the of the in- follows: covered was as 11, 1947, dictment cover the eleven false indictment—October declara- Sons, tions, twenty-one the ten counts twelve to 123F.2d role 770. Markowitz’ shipments completed. presentation which were was too crucial for us say played part making that he on indictment Defendants’ attack proscribed false statements the false state counts one to eleven pointed statute. We have that indict out representations ments and made in ex provision up ments under this “are to be port declarations not made “in a mat acquaint held when defendant jurisdiction ter within the Bureau of the offense of which charged, he stands Customs, Treasury.” This United. States prepare he can his defense.” United ground contention is based on the that the Goldsmith, Cir., States v. exports of the De lodged control was with 920, 921, certiorari denied Goldsmith v. 2, partment by July of Commerce Act of 715, United amended, U.S.C.App. 50 701 § 1022; 84 Achtner, L.Ed. United States v. (1946 Ed.), purpose main that the of 2 49, 51; 144 United v. these declarations was an informational one Corp., Cir., Sherman Auto 2 162 F.2d for the of International benefit the Officeof here, Especially jury after verdict, as Trade But Bureau Census. prejudice. the test becomes one of real narrow the term assumes too a view of Grey States, Cir., v. United 7 172 F. “jurisdiction” (1946 Ed.). in 18 80 U.S.C. § There is no intimation that such occurred Congress was here concerned with such accordingly and we hold the indictment might impede false statements as the “exer also valid as to Markowitz. authority.” Terry cise of federal v. States, Cir., 8 44. The clear We turn next to defendants’ con export shipments specifically ance of tentions as to the insufficiency proof. of presentation shipper’s conditioned on of a part The evidence of Leviton’s in the mak declaration to Collector 15 of Customs. of the false declarations was so clear CFR, Supp. U.S.C.A. § §§ question him; that there can be no as to 30.30, of 30.31. Hence submission such indeed he makes serious challenge on Bureau, declaration whether or not this issue. Blumenfeld’s conviction on accepted prescribed or acted in counts to 21 alleging conscious violation manner, brings jurisdiction it within the presidential of proclamation prohibit of that Bureau. See United States Bow ing export of spe certain commodities to man, S.Ct. supported by areas was cific evidence that Gilliland, United States v. 312 U.S. he knew requirement of the license 93, 61 L.Ed. 598. actually shipments made question. in question also Markowitz raises He was in fact the exporter. actual As validity of of indictment counts to export the fraudulent cov declarations light proof one ten in the as to by ered counts eleven, one to there is ad part in scheme. his As mittedly proof no direct any that he took defendants, two his indictment followed part physical preparation in the of these language alleging of the statute in that he documents even that he ever saw them. to be caused made false made state- profit But he was the one to most direct export ques- in the ly them, ments declarations appropriate circum strictly, proof tion. Viewed established justified stantial evidence the inference as possible aided that he made guilt any to his in the absence of evidence declarations, knowing contrary. the use to the Thus w'e do have the Nonetheless, fraudulent character. there proof Blumenfeld’s meeting with Riz between the is no fatal variance arrange crimes al- zotti to making of the ex proven. acts leged making ports; and the though this was unsuccessful in its jurisdiction purpose statements false a immediate it tended . show Blum department necessarily governmental knowledge in- enfeld’s as to the need of a requires that such cludes statement relief license to shipments. make the presented Moreover, intention that it be acted addition to evidence of an upon. attempt United States Greenbaum part & on Blumenfeld’s to induce J. his silent, proof keep strong also evi was circumstantial there was Saxon to any guilty knowledge. In connecting with similar the absence Blumenfeld dence explanation innocent the indictment. these circumstances not covered schemes present properly to be could the inference was shown draw Thus Blumenfeld approved the ten agreed to that when Markowitz where Levitón meeting at another successfully export declarations the fraud- similarly declara used fraudulent sell shipments char- 'flour ulent scheme knew their dishonest purporting to describe tion well $4,000, acter. and therefore to Brazil for employed methods aware of the fraudulent trial, important (cid:127)Coming to most the. True, shipments. making presented, issue there the most sub- indeed as to declara admission of evidence appeal, stantial ad- one concerns the the indictments covered tions missibility of evidence confession But sharply challenged by the defendants. made agents defendant Levitón to they grew of which out the circumstances the Bureau of Customs he was taken after neatly covered to those too akin custody prior into questioning, but say such evidence the indictment to n arraignment. The evidence consisted design incompetent on the issues was agents and of his statements made to the States, King v. United intent here. and eventually questions his answers 729, denied 324 Cir., certiorari 8 stenographically, although were taken down 1413; 711, 854, 89 L.Ed. 65 S.Ct. U.S. signed by him. The court allowed States, Cir., F.2d 143 Harper 8 v. United stenog- these to read in evidence Cir., States, 2 10 795; Silkworth v. United Levitón, rapher against as but excluded U.S. 711, 271 720, certiorari denied F.2d defendants, them as and 1139; Wig- 664, 2 475, 46 70 L.Ed. S.Ct. coupled explicit re- exclusion 304, Ed. 301, 3d on Evidence more §§ peated jury disregard directions to to Thus, 1940; 3 Vand.L.Rev. as against evidence the others. Before in malee cannot as details ignorance doing preliminary a long this it conducted unexplained and uncontroverted sufficient presence hearing jury, out of the of the was that Blumenfeld indicating evidence with detailed examination and cross-exam- necessity a license of the aware Agents of the ination four Customs in- export commodi Levitón to intended volved, opposing and with an statement him without valid question for in ties from Leviton’s counsel what as to States, 8 Boushea v. See one. say stand, would if he had taken the some- Cir., 173 F.2d what preliminary stage corroborated as to a stenographer at Leviton’s office aby there sufficiency the evidence present.' statement, accepted if Markowitz, was convicted since he fact, proven showing have made a docu- covering ten false the counts probably require of coercion sufficient to by -way approval for he initialed ments quite So court proper- exclusion. ruled Customs, upon his turns Bureau ly presented fact, that this a conflict of re- falsity. signa- But his their knowledge of quiring the'jury submission the issue upon four declarations on these tures appropriate Then, under instructions. in utilized the com- declarations Brazilian discussion, prof- after further he ruled th'e unchallenged. More- panion schemes fered evidence not rendered inadmissible improbable, in highly over, appeared delay arraignment. because of in There- large of declarations number view repeated agents testimony after the in the by the clerks day visa each approved jury, the contrary before no evidence to House, received Markowitz Customs offered, was and the court submitted is- in the normal declarations fourteen these ap- sue of coercion to under This, light his duties. course charge. propriate The verdict therefore varying degree irregularities formal (as agents’ testimony settled detailed on the apparent face nevertheless showed) that there was no coercion in se- a series observed declarations these Levitón, curing confession. No error is as- conversations meetings and

853 evening. issue; with them at on the about 6:30 signed on this branch of the had de- to Levitón then admitted he down question comes other branch the stroyed copies export decla- ar- the file delay making the one of unreasonable step rations next occurred principle of McNabb themselves. The raignment under the m.; p. government suggests about 9:20 States, S.Ct. U.S. v. United procuring that the was taken up interim L.Ed. 819. stenographer, eating, etc. At that time Agents of the Customs testimony questioned answers, Levitón was made ac- substantially they were showed that recorded, stenographically which laid bare vary each other and did cord with question- details of the scheme. The telling. From on the second substance completed shortly midnight, before appeared: March following On this the at which time he Federal taken p. m., Levitón had 1:45 after at about finally House of Arraignment Detention. days, for some been under surveillance place p. day took at 7 m. next Agents office entered his Customs four Judge Goddard. Since element of co- of them asked 505 Fifth Avenue and one ercion, prolonged exploita- questioning, or office Agents’ come the Customs him to shown, tion Haley of confidence is see He export files. talk some office about Ohio, State of so, when glad do he would be said Carignan, United States agreed for his files the officer asked modifying and affirm- collecting spent some time get them and ing Carignan v. United stay half an During their of about them. 954, 957, 958, the sole contention is questions; ex- numerous hour asked that the intervening hours between arrest inquired surprise, as the pressing no to and detailed seven confession—-some and a (these shipments they were interested in the latter half —tainted as make in- to it ; this) agents knowledge as to had no admissible. them. expecting that he was admitted tell he should He also asked what rule, explained The McNabb as was told that he government officers Upshaw States, 410, v. United 335 U.S. the truth. Then he accom- tell should 413, 170, 172, 100, 69 provides S.Ct. 93 L.Ed. the Office agents taxicab panied the to “that a is confession inadmissible made if Agent 201 at Supervising Customs during illegal detention due failure to 2:30 Arriving there about Street. Varick promptly prisoner to carry a before a com to p. he entered conference room m. mitting magistrate, whether or not the ‘con During his questioning officer. await the torture, fession is result of physical or agent who was with he informed wait ” psychological.’ apprehend We this to be Agents Customs knew that the that “he him governing still the principle, notwithstand him,” that he come see going to were ing some stress on voluntariness dollar,” dishonest tried “to make a confession in the later case of United States Shipping Barr he alone of the and that Carignan, supra. question is there implicated. Company staff fore whether or not the detention in this questioning p. illegal up m. the of- case At about 3:30 to the moment in, apparently begin the in- began, the confession ficer came for subsequent il appeared legality that he had been cannot terrogation; make invalid already persons competent and business of- questioning other confession. United States v. Mitchell, investigation 65, the customs 322 896, of- U.S. 64 ficials in S.Ct. 88 L.Ed. making. Levitón an- 1140. As we then have -had were occasion recently ficers out, point questions directing to initial mere swered his factor of delay is ship- illegal not of itself decisive files relevant on this him to the issue. United office, Walker, Cir., marked 2 Company Barr States v. 564, 176 566, ments at F.2d 567, gave denied 891, Blumenfeld.” in- certiorari 338 “Arthur U.S. 70 S.Ct. 239, 94 L.Ed. important information as to 547. See also vestigators the Haines v. involved, Cir., States, 546, United 9 exporter and the F.2d name of certior ari denied 342 172; the files. He returned U.S. obtain agent left to S.Ct. Pat 85á Cir., suppose much such F.2d that some official States, 5 terson v. United States, 178 could found in concourse of the vast 687; Symons v. United 985, metropolitan New time of York certiorari denied F.2d actually 1388; day night if needed. In Garner 1006, 94 L.Ed. 70 S.Ct. very arraignment actually place took case U.S.App.D.C. States, 84 United Friday evening on Good and before a 337 U.S. 499, certiorari denied 1748; judge, a commissioner. Alderman U.S.App. D.C.Cir., 83 States,

v. United If, however, approach we States v. D.C. objective issue standpoint from the reversed Cir., 141 F.2d Keegan, 2 commonly princi asserted for McNabb Keegan v. United grounds analysis ple, the becomes it clear. rule 1203, 89 L.Ed. 1745. 478, 65 confessions; self not assure uncoerced does Crim.Proc., 18 Rather, 5(a), Fed.Rules Rule (such other rules applied) were here “un one of U.S.C.A., touchstone makes the care primary take of that. isNor its func delay.” necessary procedural advantage tion confer a on a particular specially of “un- defendant situated. definition found no have We Rather it enough compel police is to helpful observance necessary” in the cases truth, principle always we the In to which us here. the matter for close obedience, namely, prompt owed arraign such words use of traditional think “convenient,” “unreasonable,” ment of an accused. See United States v. “undue,” Carignan, supra, page striking proof that each U.S. at 72 S. etc., is “prompt,” at page speaking Ct. needs of “the reason rule must the McNabb involving case rule, e., i semanticism abolish unlawful resort to without be decided detention,” exists, which it If that detention facts out obscures evidence, cases, however valuable, does seem its is Language, in some arises. unusable; fruit, not, if it formula does then the a stiff the rule into warp “necessary” (if available, evidence also uncoerced) if the delay make consequences custody no matter how bitter the into taken declarant com- the accused. On that of an available basis rule ad regular officehours (cid:127) mitting delay a of some arraign him. Such when a commis who could missioner would, is presum- readily sioner not available rule makes sense. of the formalization It is natural law procedure most apply. But like enforcement to ably, easy to efficiency seek a hours; in commissioner in office rules, gain his “simple” legal it would not be the lost and hence offset natural rational than is more of decision require or reasonable to an changing circumstances. officer seek to to adaptability perhaps implied judge out a state in the exception small Furthermore explains, too, hours of the morning. hours” of office regular “the to restriction that, the rule showing un- unlike the shows how of non- commissioner available an confession, to a from coercion as is thus stated burden of principle realistic the showing delay unreasonableness stand- in ar court’s and the the accused’s both uncertainly laignment defendant, rests as a bur operates so For it point. here den contrary trial. increased the definite at for truth search advance finding judge. the trial ar- midnight States or a week-end It means v. Walker Patterson powers and v. United all sorts officers gives the rest supra. both (cf. Okla. possess otherwise they do not delay ar- ; they then 337) L.Rev. So, explanation too, an is for afforded if days holi- three a much as raignment might otherwise seem at least what a sur- Sunday. See United day succeeds inconsistency in the In face cases. Unit- cited cases the other Walker and Mitchell, States supra, ed States it was held judge any arraignment before supra. Since delayed arraignment might be to re- federal, magistrate, state committing confession,. a volunteered while in ceive formerly States, supra, Upshaw U.S.C. v. United it was permissible, § is F.R.Cr.P., improper thirty delay too for 5(a), Rule held hours now § inquiry further for such uncertainties without a evidence in an endeavor to secure on to state investigation,” and went too, is and Here, touchstone case. better rule, e., “i. to abolish It the reason for the procedure. police responsible and decent detention,” quoted which pur unlawful we delay permissible to use is not delay 'earlier. v. United confession; See also Garner poses inducing Mitchell, supra. both in States v. it is and United when reasonable can be shown accused voluntary of the act duced us case before The facts in the guilt. burden of freeing himself in delay, analogous. Here are directly States, supra, 9 v. United So Haines during the part place though a of it took directly in page magis committing daylight hours when and between 9 point. was arrested Haines available, freely was like trates were more the office immediately taken to and 10 a. m. very At the moment wise reasonable one. Angeles. in Los Secret Service him, approached when officers first and described guilt his There he admitted and guilt a sense Levitón showed both investi under counterfeiting activities he continued co-operate which desire to evening that not until gation. But it was period confession throughout the until his embodying facts signed the confession— ready Quite clearly complete. was he was into admitted earlier —which related later to make the full confession obtained held him. The court evidence very at the moment his arrest if court competent. confession written sophisticated agents been more had “deliberately was not 5(a) that Rule said But approach it. pressed 'had then and voluntary con fatally taint fashioned to delay naturally reasonably be ensued it was re the sole reason fession for willingly di the search cause of which * * * arraignment. prior an ceived procure doc rected and aimed of Rule requirement plain simple full- dangerous him uments as taken person be 5 is that the arrested been silent blown oral statement. Had he unnecessary magistrate ‘without before the unco-operative, might the result well question must face is delay’ so the we different; but we cannot hold have been appellant arraigning delay, whether the concluding that the de the court error necessary day was reasonably until the next lay own occasioned readiness the officialshere involved give order voluntary assistance to in confess and verify opportunity check reasonable un vestigating authorities was given them, available facts he 5(a), der Rule F.R.Cr.P.1 rea justice whether to determine order charge criminal filing fully called This does settle the son effect To the same is by him.” against question raised several related conten Carignan, of United case of recent tentions defendants Blumenfeld and page 44, page S.Ct. at at supra, 342 U.S. argues Markowitz. Defendant Blumenfeld Court, holding in admis that, if the confession a 101, where even as whole were voluntary admissible, confession a crime portions a certain sible should have original ar charged in that charge than been stricken as to the other irrelevent hardly said, police could “The prejudicial raignment, against Levitón and to him. charge murder objection, to make a on expected note that no be But we thus call analysis precedents discussions, g., Comment, made in See c. 1. Tho affording complete 769; text, while Yalo L.J. Memorandum on De Persons, a those who believe certain tention of Arrested comfort A State arraign by questioning period ment the Committee the Bill of up hours, Rights perhaps to 24 as in American Bar Association ment — 48; Waite, England Regu in the interest on H.R. Police —desirable justice, by Evidence, does allow Rules of lation administration Mich. due questioning Warner, 689-691; will L.Rev. time moderate Uni Act, accused, ing a and ar whereas definite form Arrest 28 Va.L.Rev. 339- Dession, bitrary limitation would tend to The New time Federal highly unforced, Procedure, but effec Rules of Criminal such off Yale L. shut tracking tive, down crime. 711-713. J. assistance trial, properly ad inal is portions to be such confession attention asserted to the Gottfried, 2 reading mitted. United States v. during prejudicial, was made And, although 165 Gottfried copy. certiorari denied stenographic in his claims brief Blumenfeld’s counsel personal views requested have of those 1139. Whatever our a blanket exclusion portions instruction efficacy which were as an of the confession of such may be, superfluous well be charge and dam the rule is too settled to to the Levitón another, himself, colloquy just here, virtually re aging we overturned read instances, prior quiring separate sub the admission the evidence trials all objection prejudicial more an that “answers stituted. him,” objec an bidding upon would not be prejudice claim Defendants all and re-en tion which was both sustained be from three occurrences the trial by he judge forced when instructed jury. among fore First these was should, “as far as that the confession t)hejudge during cross-exam statement humanly possible, completely is erased be Borelli, government wit ination one your you consider the from minds when Relief for ness an officer of American against” and Blumenfeld.2 case Markowitz Italy. of the defendants Counsel one objections And the other the substance of organiza elicited information that this admissibility general seems be to the shipped clothing to a tion had and a radio already the confession which we have nobility. trial of the Italian member addition, was, There no re discussed. pur judge saying, broke in “What is the quest the trials made de for severance of examination,” pose and continued of this spite the that both counsel had read fact permit “to that would not counsel thus subsequently confession stern and were bring Italy] Relief for under [American ly that, severance, the warned short of say a cloud.” He then went on to only thing court’s instructions would be doing felt the Voice of America such they to, could look to insulate them perhaps important an function “radios selves from effect of Leviton’s statem over, objects proper are to be sent so that then, attack,

ents.3 Their on this in people messages.” those can hear those struction as “ritualistic admonition” can jurors expressed agreement his One general force. For the rule well is applauding, with these sentiments that, an to the ef settled when instruction summarily upbraided thereupon by the one defendant is fect that a confession exposing emotions. court for so Short against as evidence not to be considered ly the court called attention thereafter given a multi-defendant crim juror’s is act another to the for such of counsel ac- joint had, earefully instructing trial it is If to be diffi- them that ' ordinarily protection testimony only see how cult to to receive this defendants confession the defendant Levitón.” go objection one can much further. Thus an- To the admission objected particularly binding upon Blumenfeld, to as now un- swer should not necessarily implicating objection judge replied: Blumenfeld does “That highly thought and im- an intertwined I contain sustained. I covered that jury portant Levitón that he admission said I will instruct the when I enough stupid my position Now, to feel he could to make more “was to that. easy dollars.” both- a few as to counsel for Blumenfeld make clear beyond making Markowitz, and ing rul- this objections replied to the cited The court jury the the absence of in- your grant motion to the “I will thus: emphasis jury structing with all the alleged ruling Confes- that the of extent my they are that to confine command against defendant received sion confession as their consideration this And I will instruct alone. Levitón against the defendant Levitón this n jury so received. You it is to be that are three defend- trial ants, in which there your upon placed own advice as nothing further. do That I can application you make for care whether any say even to the defendant Blu- what I your might that remove relief you your place upon I menfeld: that of double from semblance defendant you own as to whether choose advice jeopardy, I control cannot because in this trial under cir- to continue beyond jury thinking or the minds cumstances.”

857 reported somt upon that the indictment covered necessary; they might tion as feel Field, $9,500 wire; that re- worth of barhed request, permitted, them to counsel’s it who had re- a Customs Bureau visa clerk later when serve their motions. Some time ex- and last fraudulent ceived the eleventh moved mistrial it denied the for a port and who was compara- declaration in this case motion. The actual incident was government, important witness for the tively satisfactorily short and was ter- by Levitón to had been offered a bribe judge trial $200 minated the action of the suppress in fact (Levitón evidence juror’s disavowing in thus completely purchased clothing gift as a jury worth carefully instructing and in action $44 Field); that the defendants colloquy himself disregard between copy of part larger “ring.” of much A and counsel. courtroom decorum While newspaper containing article was temporarily suffered, we do not think there think, jury room. We do not prejudice found was real to defendants’ cases. however, report, questions that such a erroneous as occur- brought on the was, impossible. The distantly germane. it made a fair trial very rence were very explicit Co., judge gave instructions that McKahan R. See v. Baltimore & O. Moreover, the contents of the article were to be disre- 223 Pa. 72 A. 251. rebuke point garded and went on to out how the against as such was who counsel directed occurrence, forth in the indictment differed offenses set against stimulated the and not Trial from those the article. the defendants as described individuals. It would may unfortunate, probably by newspaper prove be but judges desirable that and, accepts temporarily is not unless the court new even human course trial; hypothesis cautioning judicial long of a difficult we not standard do effective, necessarily instructions are criminal trials think reversal should follow as large metropolitan centers well slight departure a matter law prove impossible. Keegan, United States judicial immobility, promptly corrected and Cir., page 2 141 permanent consequence, supra, F.2d at 258. Cita- doubtful very contempt reporting media for tions of the generally in an otherwise well conducted by publication Supreme are rare proceeding. has stated their activities in re- Court The second occurrence arose dur porting deprive trials do criminal ing the summation of the United At trial accused of fair unless there is a torney, jury when he informed the present danger” “clear and that such will custody the reason for the release from parte 2 Craig, Ex 282 F. result. See Rizzotti, originally implicated in the scheme affirmed 263 U.S. S.Ct. by Levitón, only recently was that it had 293; State, L.Ed. Baltimore Radio Show v. been determined refuse Md., denied, certiorari A.2d go grand testify Frankfurter, J., Maryland opinion by explanation him. Some was called Show, Baltimore Radio strong light attack de Note, Yale L. fense counsel in summation Rizzotti showing was not the 534. Such here. culprit emphasis upon as the real the J. government’s him; prosecute failure to affirmed. Convictions only error was in the direct reference to refusal, Leviton’s than some rather more FRANK, Judge (dissenting). Circuit generalized reference to lack of evidence. objection No was made at Under my the time. ground dissent is first provocation, the circumstances of lack flagrant what deem violation of so- I objection, bearing limited “MeNabb rule.” That rule renders called incident, we find no reversible error. in a federal trial confession inadmissible requirement, in

The if obtained violation of third incident involved a 5(a), in Criminal Rule that newspaper Times, article in now set forth the New York * * * an making arrest falsely December “An officer 1949. account Mitchell, United States, 1. 322 U.S. 64 S.Ct. v. States v. McNabb 1140; Upshaw 819; United 88 L.Ed. 63 S.Ct. 87 L.Ed. United permitted un- he I person shall take the without desired ? A. wouldn’t have arrested necessary delay building. the nearest available to leave the before him nearby any commissioner or before other “Q. Why? A. Because we wanted persons empowered officer to commit talk him find out about the and charged against the laws of offenses phases of the case. purpose of the the United States.” The “Q. charge agent You were the procure for an arrested McNabb is to rule Yes sir. investigation entire ? A. protections by person following offered question, “Q. So on the occasion that pro- arraignment 5(b) governing Rule if Mr. leave the build- Levitón wanted to inform “The shall cedure: Commissioner you permit ing not to would instruct them him, complaint against the defendant of him until we were to leave? A. Not right counsel and of his of his to retain through, is correct. that examination. right preliminary have a that inform the defendant He shall also “Q. From he was there until the moment required make he is not a statement him, you in- through were with the be him that statement made you permit terrogation, would not Mr. shall against him. The commissioner used building? Levitón leave A. Not time allow the defendant reasonable himself.” opportunity counsel shall to consult significant Since occurred be- nothing provided to bail as admit the defendant agents tween the time the entered Leviton’s Supreme Court in these rules.” As office and the time his arrival at the day, just the other said building, plainly would not have been he the McNabb Carignan, 72 S.Ct. 1:45 In his freedom after P. M. allowed detention with- on the idea that rule rests short, arrest from he was under “opportunity arraignment gives prompt out evening up All afternoon and moment. * ** improper pressure confession, kept he un- time of his the state- the benefit of the accused had charge guard. agent The his case der commissioner.” ment frankly quite deten- testified that Leviton’s why Levitón was de- Now see how and solely agents’ tion for the convenience weeks prived that benefit: After several interrogating him: shadowing, agents customs entered four “Q. During the course after- Thursday, March 1:45 P.M. on his officeat noon, holding your Mr. Levitón you announced that he was agents The 25. you assign agent until could office head- questioning at Customs wanted for Is that the idea ? That question him. A. bring along him to quarters, and directed correct. agents customs export files. The “Q. purpose your The entire detain- They did not for his arrest. no warrant time Levitón he entered anything he said Mr. him that warn him; building purpose was for the in- they not advise him the did used Yes, counsel; right? A. terrogating made no at- Is right to him. of his magistrate or tempt arraign him before a sir.” that, agents admitted once in- judge. afternoon, point in one around At building, leave: Levitón could not side the :30, remark, made ac- or 3 Levitón 3:00 Linden, fact, guard, thought “he “Q. cording Mr. to his Isn’t it a Mr. ap- dollar but make a fast dishonest building could not have left if could inadmissible under fession was subsequent Carignan, rule in a trial McNabb United States v. the accused had re- murder because of the commissioner’s the benefit ceived case, Carignan accused was In the arraignment for as- on his statement imprisoned duly arraigned sault, his detention was therefore During questioning charge assault. Black, J., legal. entirely Frank- But see arraignment police con- after concurring. Douglas, J., J., furter, entirely different crime- to an fessed Court held that the con- murder.

859 counsel; was him; he agent against he another had no parently couldn’t.” Soon he that warned, perfunctorily, gen- however room, Levitón asked came into him— used shipments he had what he said would be question eral about flour ship- convenience handled, all this for the sole particular no mentioning not, him—and agent interrogating told customs men in countries. Levitón ments or once, (as but when you, at mind one “Arthur Blu- up look marked some files they got ready “assign testified) an Company. them Shipping Barr menfeld” in the 6:30, him.” agent question agent the files returned with declara- certain and asked Levitón where nevertheless, say, My colleagues were; replied that he had de- Levitón tions a “neces Levitón was arraigning delay 9:20, interroga- stroyed them. Around that, therefore, one,” the McNabb sary earnest, midnight began tion rely They on cases violated. rule was not signed typewritten con- defendant had “necessary” delays if holding “I been which ended thus: have fession arraigning unavailability caused I have smoked sitting here nine hours. night, on are made at when arrests officer whether and I don’t know cigarettes, 100 holiday, the rule Sunday, since or over a was taken coming going.” I am Levitón magistrates to force not intended was -Detention then the Federal House of United States v. clock. around the work evening at 7:00 arraigned the next 564, de Walker, Cir., F.2d certiorari 2 176 p.m. crimes which had con- for the 94 70 S.Ct. nied 338 U.S. previous night. fessed There the defendant a case. was such Day Sunday Labor before 7j/¿ on' confession came after was arrested So Leviton’s held that there custody. (if it in a small town. We Even his admission hours Tuesday on arraignment delay his such) that he de- before be considered as can had one, and that prima a reasonable came after was stroyed certain declarations facie proving had the burden defendant of unauthorized At hours 4i^> .detention. arraign” him on “possible to it was approximately 1:45 and that time between any know, This, Monday. far I Sunday so afternoon, might have 5:30 that any upper court has longest time is the arraigned before one dozen been arraignment, arrest and vicinity. between judges in the sanctioned magistrates or my predict (despite hesitate I Prompt arraignment great meant deal to and do the Walker colleague’s insinuation Levitón; been no warrant ever issued already gelded McNabb arrest; magistrate had ever de- case we any other court court or any “probable Rule) that this was cause” that there clared call unreasonable him; unhesitatingly altogether denied holding delay, upon showing the statement the com- week-end “benefit of deliberately Saturday made on Supreme Court con- arrest missioner” prompt arraignm prevent holiday to important. Because failure to or a siders charges not informed of the ent.3 he was arraign, unavailability length ar- because table of reasonable Time of detentions held

3. raigning officer: Confession Case Time Arrest arraignment S., Cir., Sunday, Aug. 2 Sometime 176 31 Walker U. Tuesday, Sept. den. 338 U. cert. F.2d 239. S. 70 S.Ct. July July Monday, Keegan, Cir., Saturday, U. S. on oth- 141 F.2d rev’d Keegan grounds v. U. er S., 325 U.S. 1203. U.S.App. S., 10:30 P. M. M. v. U. 9 :00 P. Garner D.C., 361, 2:30 A. M. P. M. 10:30 945, 69 cert. den. S.Ct. Symons S., A. 8:00 M. 1:00 A. M. v. U. 615, cert. den. 339 U. S.

860 purpose any hour than con- “visit” was for other

Courts and commentators investigation. to facilitate own Since scientiously meaning of “nec- restricted the arrested without a warrant —I essary “Rea- was delay” single to situation: a again judicial note that officer had delay) probably de- (of the will sonableness passed “probable required carry the on cause” for his de- pend to the time commissioner, inescapable on seems and not tention—the conclusion suspect to the he, Upshaw, being that keep from the like held away him time to desired history get good com- that the could a case agents entire The commissioner. interpre- justify him to before arrest legislation leads to such an mittal 4 clearly magistrate. police, a But after tation.” arrest, make for their lack of up cannot whatever allowing police idea probable cause at the time arrest. That they may deem delay arraignment before is what is for—to make that McNabb sure interrogation, “necessary” fights with they can’t. It should be even more “me- aims “It aim of the McNabb rule: the basic chanically” applied in cases of arrests with- implications evil of secret avoid all the out warrants than in those with warrants. persons of crime.” interrogation of accused My 344, S., 332, colleagues excuse the failure to v. U. McNabb here, 614, arraign theory. They still Upshaw another 87 L.Ed. 819. In S.Ct. rely holding on cases that which confessions v. U.S. spontaneously” up- are 170, 172, Supreme made “promptly 93 L.Ed. where the admissible, on arrest are even ground when made Court vitiated a confession on prior to arraignment. exception deten- . that it had been obtained McNabb common-sense police for the is a concession in which the admitted tion .was willing the case purpose investigation, defendant who wants the Court sole “spill” police finally all as soon as the “In this case we left in no doubt said: up -him; circumstances, catch petitioner in such why brought was not as to police need not shut his mouth promptly * committing magistrate, or stuff ** their own thought ears with cotton until because the officer there he can be brought magistrate. cases,, In case’ for the court to before a such was ‘not sufficient * * pe- improper there is no “opportunity pres- him *. He hold admitted by police”, sure illegally detained least to induce titioner for at confession. purpose Carignan, U. S. thirty very hours for secur- S.Ct. 102. United challenged Mitchell, these confessions.” The ing situation, Upshaw essential is the leading re- case every defendant’s, point. on this spect, duplicated is here. The Customs There the police-station pretense given 11- confession was at the men make no that Leviton’s propriety 4. A on the Detention Ar- cial Memorandum determination tbe of his in a rested Persons Statement confinement.” “We have found no in- Rights any the Bill of Committee on ever dication there was law (1943) England R. (in A. B. on H. or A. United States author- izing 5a) recog- person pur- words Rule “The new to be detained Ibid, inevitably pose delay facilitating investigation.” caused nize journey Dession, the commissioner’s office New Federal Procedure, the fact Commissioner Rules of Criminal 55 Yale. sleep previous (1946): “But, obviously, there.” “Our L.J. does question duty novelty has shown the discussion in our whether of ar- any plan length raignment unnecessary delay’ law of bases the ‘without interroga- permits arresting on the need for of detention officer such purpose except bring time insur- be needed tion of- ' appearance prisoner mag- fender before the nearest available duly charge istrate, whether, addition, per- authenticated answer . * * * specific mits a of a overnight crime. Detention certain amount of time for inter- magistrate rogation investigation. till the reaches his deci- any possibly Court, beginning much as in- sions seems as office ought undergo, clearly suggest case, citizen without McNabb nocent former lawyer interpretation.” having judi- to his access when, probably, a 5:30, commitment, the latest moment minutes a before after feiv conveniently charge magistrate could have been him on a policemen jailed two had up, leaving secured, might shut larceny. His con- have housebreaking and . exactly /detailed; speculate puzzled customs men to complete and fession dollar,” made his dishonest policemen loot. how he “had to the directed the even vainly through the files and to search Appellate followed suit where courts have miss- them vital which he signed with- for dictated and had directed confessions were police ing declarations. arrival at in an hour or so after States, headquarters, Patterson v. up an My colleagues astonish- come an oral Cir., 183 F.2d or where govern- suggested argument, details) in all its (complete confession more ment, “if the had been agents merely immediately arrest

made after sophisticated approach, and had in their day. repeated stenographing later in the it,” Levitón, pressed immediately Cir., 188 F.2d Haines v. United arrest, a full his made con- would have 546. say, showed, my colleagues a He fession. beginning, and a guilt” touches Leviton’s. “sense of None of these cases throughout peri- “cooperate opinion desire Although there in the Haines is talk Accordingly, my colleagues argue, po- opportunity for the od.” about reasonable a exactly if, persons we the case must treat lice to check stories of arrested fact, at or almost them, fact, he had confessed the de- actual arraigning before immediately after of his arrest. Mitchell the time case and in fendants both that conclude, e., Therefore, my colleagues the ac- completely implicated themselves —i. had elapsed his between arrest police time time that beyond tual extrication — disregarded, must be checking They had and his confession their stories. began him bring that time to failure sufficient to cinch amply made confessions judge is Levitón, contrast, or irrele- guilt. before a commissioner verdict of a dropped “making vant. meager one remark about dollar,” which, un- dishonest a remark mind, my argument this is itself To confession, possibly like a could not alone much so. It rests “sophisticated” too—far an in- Leviton’s is not secure a conviction. fact, wholly fictitious on a non-existent begun a confession which would stance of e., “fact,” pretense make-believe or i. interrupted arraignment. been have several hours occurred that a confession Indeed, remark, said after one actually occurred. could before it If significance lat- nothing until three hours fictionally a confession back date way destroying dec- when he certain er admitted pre-dating hours nunc (by or for several colleagues point My can larations. it) actual merely because later pro-tmvcing police delay arraign- permitting cases voluntary, confession, it to be since was may track down clues and ment so an initial disclosure of “desire deemed a defendant, or consciously which the leads then the McNabb doctrine cooperate,” unconsciously, may revealed, gutted, since never could would be themselves, which, applies only do not amount For that doctrine violated. specific proves, government de of confession crime.5

any sort when admits, arraigned confession was If Levitón been even fendant arraignment: spontaneous Time table admissible confessions obtained Period between of Confession Extent Case Arrest and Confession Complete Mitchell, confession after at oral Pew minutes arrival U. S. police 65, 64 S.Ct. 896. station complete S., Cir., Immediately Oral confession Haines U. arrival building all details F.2d 546. federal Signed complete S., (government’s written con- v. U. Patterson 30 minutes ver- sion) fession arrest hrs. after —2 (defendant’s version) Despite colleagues’ one dismissal voluntary, e., “cooperative”; my son. i. my col always fictionally (as penalty merely assume McNabb as sanction could of that more adroit leagues here) assume police delaying arraign misconduct in arrest, could ficers, immediately upon his ment, policy more compelling much lies into “cooperativeness” converted his e., prevention, behind in the most it —i dangerous notion. confession. This is a confes way possible, effective coerced of accused’s “sense belief in an Is an officer’s by degree.” sions elicited the dreaded “third exception to Mc- guilt” of to create requirement procedural “For this checks mistaken, is a this If I am not Nabb? practices reprehensible resort those police states technique used frequently which, though known degree’ as the ‘third play upon officials extort confessions: indefensible, rejected universally still by pro guilt-proneness an individual’s way v. United find their into use.” McNabb humiliating interroga longed grilling and 608, 614, States, 332, 344, 318 U.S. 63 S.Ct. de an effective proved to be It has tion. in United States v. restated or false— confessions —true eliciting vice in Mitchell, 66-67, 322 U.S. neurotic and types of anxious from certain Carignan 88 L.Ed. 114 v. United guilt-ridden their persons will confess who Recognizing the dif L.W. 4015. (It is pressure.6 such fantasies under “torture, ficulty physical proving or of judge here was trial adding that the worth il psychological” “relation between and the com of Leviton’s altogether convinced not legal incommunicado detention and ‘third- judge ruled The plete “cooperativeness”: degree’ practices”, v. Mitch United States when illegal seizure occurred that an ell, 65, 68, 896, 897, 88 L. 322 U.S. 64 S.Ct. brief Levitón a from men took customs case, the Court chose to minimize no re Ed. apparently offered although he of by ruling with a nod the use out of coerced confessions and reacted sistance automatically obtained head.) any such statements period in circumstances during the and especially vital is McNabb rule police given who when those officers are de- indiscreet just of such protection apply Levitón, practices normally basic rea- such coercion.8 for another fendants as «* * Jq * Dession, coming Ravitz, Redlich, Narcoan- 7' Cases 6. and sort, Psychiatry, alysis Truth, we courts in matters of this Am.J. stato and solely determining on the basis with are concerned No. Feb. conclude drug-induced experiments con- result with whether confession is the of physical psychological, torture, individuals or and neurotic that certain fessions depression, feelings guilt, offspring strong reasoned choice. with easily, anxiety and that and an in- most How difficult often elusive confess easily quiry implies, ob- our decisions make can be as confessions such drugs. important And for the rela- with the use manifest. tained without * * * “Open “the feel- incommunicado threats” and tion between and veiled ‘third-degree’ practices, ing development facilitate the doom” detention of inevitable depression (citations). duty in’ see But under the reactive formulating particularly any person, rules of evidence for those fed- but depres- prosecutions, self-punitive eral we are not confined to tendencies question people confess to the constitutional ascertain- will moods. Such sive pun- leading when a confession comes of a free true fantasies false and force, ishment; it is choice and when extorted fantastic self-accusa- false subtly applied.” depression part into however United States are a tions which Mitchell, 65, 68, stimu- their are thrown explain, 896, 897, on 88 L.Ed. authors fears. lated this fessions many public theory, trial con- supra, Dession, at 710. “The court regimes, and re- in totalitarian apparently come the conclusion examples elic- false confessions count only way eliminate that the gree third de- persons near the break- weak ited from * * * was to abuses insist ing point use of “hard without be no incommunicado deten- there merely playing methods” day two, tion even even personalities. guilt-ridden though detained well treat- those Committee, case.” A. B. A. ed in excerpt possible.” from the confess defendants The cases testimony poli- confession was direct prophylactic outside the on arrest are person that Blumenfeld knew about sanctioned An arrested cy, this account: easily have illegal scheme. could need to It promptly confesses has who Now, jury. But the trick tu'rned police methods. strong-armed fear physical implicating admissions one defendant to- nothing more conducive inadmissible, another, theoretically badgering so- brutality psychological reasons, against person im- obvious policeman a situation than “lawless” called hearsay— confessing, plicated. Such accusations are defendant, which the without and, circumstances, probably ill-moti- having about his something vague mutters hearsay. peculiarly untrustworthy or vated and dishonest, drops a clue otherwise been However, defendants are policemen are where several undisciplined two. Then “torture, jointly, received physical or tried such confessions are likely employ to most necessary prove This when to the declarant’s him down. psychological” break —to guilt, given Mc- “ritualistic admonition” susceptible needs kind of defendant jury disregard to the to the contents inso- protection the most. Nabb far they implicate as the other defendants. my confession, opin- Since Leviton’s Lonardo, Cir., United States v. F.2d McNabb, I ion, under was inadmissible Gottfried, Cir., States v. and Blumen- that his conviction think both certiorari denied 333 U.S. be 1-12) should (at least on counts feld’s 1139. I 92 L.Ed. But think was, my colleagues con- aside. There set that such a does what rule not excuse was (Blumenfeld) he cede, proof that no “direct here: The about done statements Blumen- preparation any part physical took nothing confession at added feld he that ever or even of these documents against all the case Levitón which was to al- prosecution was But the saw them.” proved amply not his remainder following to lowed to read portion The relating confession.9 Blu- to implicat- confession, portion of Leviton’s menfeld not have been read should to ing Blumenfeld: Blumenfeld’s counsel jury. asked for such reading; aware of exclusion since he “Q. Blumenfeld had Was only using through the license time to skim document and you that were fact Yes, contents, A. Italy? not familiar with its he Relief for was could the American first, get specific them point not sir, he tried to to answers incriminat- because got me, Apparently judge to because Blumenfeld. how he mis- and that is objection manager for Barr understood the nature of the the traffic I was he knew admissibility portions; Relief to the such the American at we handled stupid enough to feel I rate he made it clear he would not Italy, and I dollars, matter, agreeing which I exclude the Blumenfeld easy see make a few could objective easily judges “Still, supra, can is obvious fact at improp- penalize.” proper discover the line between easily passed. questioning be er Compare Leviton’s answer Q. to Nothing offi- of the the conscience but earlier and later with answers. prisoner protects from milder cers anything wrong “Q. 38: Was theire degree third forms of the drastic these, only A. declarations? long in their uncontrolled cus- is as he thing wrong somebody I used systematic prison tody, from removed (sic) permission, else’s license regulations and isolated the out- you I knew shouldn’t it.” do * * * danger period, world. side you 116: Didn’t “Q. know that' ordinarily degree is when the ad- third original declarations then would be on begins ministered, with arrest ends you might the customs house and file bring prisoner police be- when explain to called those declara- * * * magistrate. Coercion it- fore being missing? that, A. I tions did know prove always because the hard to self just destroyed them, sir. But I like secret; place questioning but takes your sticking head in the sand. You length of confinement excessive you something wrong. done know So I did it.” such.portions against only incompetent not confederates jury that to instruct the himself; incom- against binding Blumenfeld. declarant mere object petent way fur- than a much more basic counsel Blumenfeld’s did reading a McNabb hearsay. The circumstances portions ther to such akin, confessions, he in the Su- obviously because confession are somewhat preme thinking, be- those of a co- objection, made Court’s to general considered his Consequently, reading, confession extent fore the sufficient. erced “bad” or generally I he have waived make evidence think cannot be held to that, that, judge previ- “tainted.” I think the trial objection.10 I think if Nor do confession, correctly, had he here had ruled such evidence reading ous to the ought have come in at all. We request or forever after never a severance when, For, ac- not then to extend the “ritualistic admoni- peace. at the time hold his have tion” rule where the con- cording my colleagues, should cover situations severance, a fair been admitted. fession should never have had not asked for penalize defendant through To do be to the confession so would chance read co- prejudicial judge’s re- the trial error as see it was so whether objected to had defendant. Anderson v. quire retrial. He earlier Thus as confession the the entire introduction of all violation, (only of co-defend- because L.Ed. the convictions a McNabb erroneously jointly ants where the in ad- tried were reversed judge the ruled trial put implicating some the others confession) he was confessions of mitting the choose, although had been introduced perplexing position having of to obtained Although con- knowledge violation of the McNabb rule. of the confession’s without given the admonition” had been tents, continuance and severance. “ritualistic between introduction, at the time the of their Court anyway which allows rule “It is a hard “There is believe found no reason to all in at a case to be declarations used * * * that confessions which came be- along with declarant is tried the where jury organic proof fore as tissue the of Hand, J., in United States v. others.” L. sig- given can distributive' be severed Lonardo, Cir., 884. It is a they major holding nificance had declarations would allow harder rule pe- the share in conviction of some against the introduced which cannot be at as to the others. titioners and none all against con- be declarant introduced the Since it was error admit confes- effect, what would is, That federates. sions, escape we from the conclusion see no over- happen if conviction were Leviton’s petitioners that the convictions all the upheld. Blumenfeld’s Leviton’s turned and must be set aside.” incompetent McNabb'— under confession is for counsel both clear Blumenfeld counsel): (Blumenfeld’s For Kove “Mr. beyond Markowitz, making this rul- your please, record, I if Honor am the jury in the absence the and in- accurately familiar the con- not tents structing jury emphasis all at alleged questions and an- my they command that are to confine very very, oppor- brief had a swers. I of this confession consideration through pages. tunity just run against defendant Levitón in this They know numerous. I don’t at are there are three defend- trial which they preju- what time to extent this ants, nothing I can do further. That Blumenfeld, defendant dicial say I what even to defendant record is concerned at in so far as the place you upon your Blumenfeld: that I object point, I should like you as to whether own advice choose to any questions and admission continue in this under stances. circum- involving the Blumen- defendant answers course,' grounds, feld score, you Honor, “Mr. Kove: On answers would statement those I would have to wait and hear what binding upon him. be in. comes know.” I.don’t objection That is sus- “The Court: (Emphasis added.) thought I covered that when tained. I case, sure, I as to will instruct In Anderson to be I said my position judge Now, to make more omitted trial to recaution that. object humane- of our a dis- should already recognized This court has ness. type case Anderson tinction between ordinary situation one) and an (like this trial, pros- (b) day On second is ad- confession the declarant’s where “press after ecutor conference” held a See missible, least himself. at newspaper reporters of court. told the He Gottfried, supra, 165 F.2d United States v. advised (so matters which he later “In pointed out: where page we court) they promised In the not to print. States, the confession Anderson v. United Times, ap- morning’s there next New York obtained, and unlawfully been itself peared story, typical journalistic told with declarant; incompetent against the “export who vigor, about racketeers” in a mis- resulted its admission that reason $500,000 “poured into Euro- of commodities other accused.” trial of the pean markets.” African black South newspaper story were admis significance if the confession 2. Even remand sible, professed reverse It to recount the tes- I think we should was this: deprived Levitón, timony defend over the of a witness that because events phone, him to with- trial.12 had offered bribe ants a fair $200 fraudulent decla- draw customs files a irrelevantly judge (a) the trial When attempted ration. article detailed Relief American spoke in defense of bribe, completion place its meeting Italy, he later indulged a bit of what gift of shirts and the substitution a $44 did “flag-waving,” he feared was originally-offered This most for the $200. one of the way rebuke counsel for wholly story bribe is damaging of the $200 rebuke, think, I was un- defendants. The by Accordingly, unsupported the evidence. question The that elicited it was deserved. prosecutor the written letters to the in of the de- patently asked the interests story, course we jurors retelling this likely, then, highly that It fendants. is equivalent. For would reverse. He did ap- when the uncalled-for comment evoked that the Times outrightly it is conceded plause jurors, jurors were from two those prose- reporter this tale from the learned sympathy with what expressing enthusiastic cutor, copies of the news- and four disapproval they judge’s considered jury-room paper article found defendants. day the trial. on third may judge’s well Since the indiscretion by against My colleagues have induced a verdict the defend- that “trial news- admit ants, do, think, say it paper” will not I to that we unfortunate. But dismiss is ignore metropolitan will judge incident because the unavoidable curse of it as an only course, judges subways). human. living (like, suppose, was Of all crowded I 'human, rely therefore make admoni- and mistakes. But on the old “ritualistic They judge may purge futility as the mistake of in this case tion” to record. easily have harmed the defendants serious- exorcism notorious. As I sort of observed,

ly, correct by directing we should a new it is like the have elsewhere boy story should humane the little trial.13 We be as well as Mark Twain who And corner to human. since defendants are lan- was stand told jail judge not, elephant.14 the trial guishing a white think of Justice Jack- jurors charge Baltimore & in his to consider the con- 13. v. Ohio See McKahan binding against 251, Co., 1, fessions declarants 223 Pa. 72 A. where a R. only. negli Haupt, Cir., judgment a railroad for But see U. S. v. 7 improper 661, gence the court reversed was reversed because an 136 F.2d where primarily judge, to the effect convictions based remark confed- guard put limiting ought despite to have erates’ confessions in- the railroad judge applause tracks, from a structions the trial both at near the elicited juror. charge. single the time admission and noted, however, only Fireworks States v. Antonelli should be 14. United It (dissent- applause-evoking Co., 2 incident would seem ing opinion)i to affect the conviction of Markowitz. Krule confessions never intro- son, concurring opinion defendants 440, 453, Florida, Shepherd duced at the trial. v. witch v. United that, said 71 S.Ct. 95 L.Ed. 740.16 93 L.Ed. - prejudicial assumption that “The naive cases, I cannot here of see relevance instructions can overcome effects be refer, my colleagues applying to which * * * lawyers practicing all present “clear danger” test con- unmitigated See Skid fiction. be know to tempts by newspapers articles relative Co., Cir., R. & Ohio Baltimore more v. all pending (incidentally, trials non- Carborano, People v. 54.” Cf. jury trials). employed That test has been 871; People 42-43, N.E.2d N.Y. newspaper when was itself threat 445-446, 8 N.E. Robinson, N.Y. pub punishment ened criminal for the 2d certainly lication. It not be should car over like ried to a case this one where con objec- particularly technique I think the prej victed may defendants well been for two here rea- ineffective tionable and newspaper udiced In article. such a result of was direct (1) story sons. case, present danger” the “clear and test government aby confidential disclosures would bar reversals all but most officer, not-in-the-record prosecutor, flagrantly deceptive scurrilous news matters, merely the accidental Courts, paper reversing attacks. con reporter.15 (2) The of a confused garbling trial-by-newspaper, victions for have al opinion or edi- article statement of ways printed recognized that matter professed of court- torial, account but a prejudicial enough require new trial confuse and calculated room evidence evidencing depraved without an attitude cases, juror-readers. In such mislead publisher support as to a contempt that, practical pur- for all recognize courts Ogden, citation. United D.C.E.D. deprived con- of their poses, defendants are Pa., 105 F. 374.17 witnesses, confront rights stitutional case, newspaper In the instant them, and to cross-examine contradict reporter, contempt, if cited for object incom- irrelevant or evidence as urge story doubtless as a defense that the the elements a fair all petent short —in prosecutor, came from the “officer Supreme year, two Court Last

trial. Jus- very fact, however, court.” That un- opinion concurring tices advocated gravity of derscores the the error here. upon the reversal of conviction had court re- an officer ground (c) by I nothing think that said defend- press information about prosecutor’s leased to the local ants’ counsel could justify McAuley: (re- gentlemen imagine preju- These 15. “Mr. “It bard to a more porters) press me to summarize asked dicial influence than release they did, testimony, charged asked me I officer court with de- go custody stating they restau- came to to the how Levitón fendants’ had instance, just confessed, first the St. rant and here such state- Bar, ment, to, unseen, no and I told them under James unsworn uncross-exam- enjoined uncontradicted, conveyed by whatever —and I circumstances ined and seriously very press jury.” Shepherd mention them to the —was why according Florida, 50, 52, the reason be made of up have went the witness 95 L.Ed. 740. pressed restaurant. I Compare Keegan, United States v. I think this man will them three times. 248, 258, my cited col me bear out.” leagues, we in which refused to reverse of free- Even most ardent advocates newspaper conviction because press report and com- dom of the headline, Sponge “Bund Leaders Toss in trials, on for curbs ment stress need ease, at Draft Trial.” In that there press attor- releases trial any juror evidence had neys Note, side. on either See 59 Yale article, read the the headline was 545; Robbins, Hauptmann L.J. obviously conclusion, an editorial Light English Criminal Trial particular a comment on or an evidence Procedure, B. Journal A A. purported given account of evidence (1935). the trial. supported statement —not anything in the record —that Levitón jury. testify grand

refused objection- perceptibly

The statement was

able that not have to called it did Moreover, prosecu-

judge’s attention. remark,

tor, told the after this before and (in- evidence

jury of matters

cluding the circumstances some of in the news-

alleged mentioned bribe $200

paper). (c), (b) (a) item

On account of alone, probably have voted

standing I would with- me Together leave

for reversal. a new trial. justice demands

out doubt that YEOMAN- STATES v.

UNITED HENDERSON, Inc.

No. 10445. Appeals Court

United States n SeventhCircuit. 17, 1952.

Jan. Scheib, Devitt, Eugene R. T. G. D. John

O’Connor, Coffman, Amos all .and J. 111., appellant. Chicago, Kemer, Jr., Atty., S. Irwin Otto U. N. Downing, Robert Assts. U. Cohen and S. J. 111., appellee. Atty., Chicago, MAJOR, Judge, Chief Before DUF- LINDLEY, Judges. Circuit FY DUFFY, Judge. Circuit appeal judgment anis entered each finding verdicts willfully guilty and knowing- defendants

Case Details

Case Name: United States v. Leviton

Court Name: Court of Appeals for the Second Circuit

Date Published: Nov 30, 1951

Citation: 193 F.2d 848

Docket Number: 41, Docket 22076

Court Abbreviation: 2d Cir.