Costello v. United States, No. 72

CourtUnited States Supreme Court
Writing for the CourtBLACK
Citation350 U.S. 359,100 L.Ed. 397,76 S.Ct. 406
Decision Date05 March 1956
Docket NumberNo. 72
PartiesFrank COSTELLO, Petitioner, v. UNITED STATES of America

350 U.S. 359
76 S.Ct. 406
100 L.Ed. 397
Frank COSTELLO, Petitioner,

v.

UNITED STATES of America.

No. 72.
Argued Jan. 16, 17, 1956.
Decided March 5, 1956.
Rehearing Denied April, 23, 1956.

See 351 U.S. 904, 76 S.Ct. 692.

Messrs. Osmond K. Fraenkel, Morris Shilensky, New York City, for petitioner.

Mr. Marvin E. Frankel, Washington, D.C., for respondent.

Mr. Justice BLACK delivered the opinion of the Court.

We granted certiorari in this case to consider a single question: "May a defendant be required to stand trial and a conviction be sustained where only hearsay evidence was presented to the grand jury which indicted him?" 350 U.S. 819, 76 S.Ct. 48.

Petitioner, Frank Costello, was indicted for wilfully attempting to evade payment of income taxes due the

Page 360

United States for the years 1947, 1948 and 1949.1 The charge was that petitioner falsely and fraudulently reported less income than he and his wife actually received during the taxable years in question. Petitioner promptly filed a motion for inspection of the minutes of the grand jury and for a dismissal of the indictment. His motion was based on an affidavit stating that he was firmly convinced there could have been no legal or competent evidence before the grand jury which indicted him since he had reported all his income and paid all taxes due. The motion was denied. At the trial which followed the Government offered evidence designed to show increases is Costello's net worth in an attempt to prove that he had received more income during the years in question than he had reported.2 To establish its case the Government called and examined 144 witnesses and introduced 368 exhibits. All of the testimony and documents related to business transactions and expenditures by petitioner and his wife. The prosecution concluded its case by calling three government agents. Their investigations had produced the evidence used against petitioner at the trial. They were allowed to summarize the vast amount of evidence already heard and to introduce computations showing, if correct, that petitioner and his wife had received far greater income than they had reported. We have held such summarizations admissible in a 'net worth' case like this. United States v. Johnson, 319 U.S. 503, 63 S.Ct. 1233, 87 L.Ed. 1546.

Page 361

Counsel for petitioner asked each government witness at the trial whether he had appeared before the grand jury which returned the indictment. This cross-examination developed the fact that the three investigating officers had been the only witnesses before the grand jury. After the Government concluded its case, petitioner again moved to dismiss the indictment on the ground that the only evidence before the grand jury was 'hearsay,' since the three officers had no firsthand knowledge of the transactions upon which their computations were based. Nevertheless the trial court again refused to dismiss the indictment, and petitioner was convicted. The Court of Appeals affirmed,3 holding that the indictment was valid even though the sole evidence before the grand jury was hearsay.4 Petitioner here urges: (1) that an indictment based solely on hearsay evidence violates that part of the Fifth Amendment providinng that 'No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury * * *' and (2) that if the Fifth Amendment does not invalidate an indictment based solely on hearsay we should now lay down such a rule for the guidance of federal courts. See McNabb v. United States, 318 U.S. 332, 340 341, 63 S.Ct. 608, 612—613, 87 L.Ed. 819.

The Fifth Amendment provides that federal prosecutions for capital or otherwise infamous crimes must be

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instituted by presentments or indictments of grand juries. But neither the Fifth Amendment nor any other constitutional provision prescribes the kind of evidence upon which grand juries must act. The grand jury is an English institution, brought to this country by the early colonists and incorporated in the Constitution by the Founders. There is every reason to believe that our constitutional grand jury was intended to operate substantially like its English progenitor. The basic purpose of the English grand jury was to provide a fair method for instituting criminal proceedings against persons believed to have committed crimes. Grand jurors were selected from the body of the people and their work was not hampered by rigid procedural or evidential rules. In fact, grand jurors could act on their own knowledge and were free to make their presentments or indictments on such information as they deemed satisfactory. Despite its broad power to institute criminal proceedings the grand jury grew in popular favor with the years. It acquired an independence in England free from control by the Crown or judges. Its adoption in our Constitution as the sole method for preferring charges in serious criminal cases shows the high place it held as an instrument of justice. And in this country as in England of old the grand jury has convened as a body of laymen, free from technical rules, acting in secret, pledged to indict no one because of...

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1873 practice notes
  • United States v. Nelson, No. G78-115 CR5.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • February 15, 1980
    ...an opportunity to present to the grand jury any exculpatory evidence. In this regard, Mr. Justice Black, in Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956), wrote, at page 363, 76 S.Ct. at page "If indictments were to be held open to challenge on the grounds that......
  • U.S. v. Gomez-Vega, Criminal No. 04-420 (CCC).
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • October 16, 2007
    ...and unbiased grand jury, ... if valid on its face, is enough to call for trial of the charge on the merits". Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 409, 100 L.Ed. 397 (1956). See Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958). The Supreme Court ......
  • United States v. Bonnell, Civ. No. 4-78-190
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • December 27, 1979
    ...United States, 359 F.2d 50, 56 (8th Cir.), cert. denied, 385 U.S. 867, 87 S.Ct. 131, 17 L.Ed.2d 94 (1966). See Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956) (indictment based on hearsay evidence); United States v. Blue, 384 U.S. 251, 86 S.Ct. 1416, 16 L.Ed.2d 5......
  • U.S. v. Lopez-Lopez, No. 00-2016.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • February 19, 2002
    ...nor any other constitutional provision prescribes the kind of evidence upon which grand juries must act." Costello v. United States, 350 U.S. 359, 362, 76 S.Ct. 406, 100 L.Ed. 397 (1956). "Courts ... generally have found that the prosecutor satisfactorily explains the offense to be charged ......
  • Request a trial to view additional results
1875 cases
  • United States v. Nelson, No. G78-115 CR5.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • February 15, 1980
    ...an opportunity to present to the grand jury any exculpatory evidence. In this regard, Mr. Justice Black, in Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956), wrote, at page 363, 76 S.Ct. at page "If indictments were to be held open to challenge on the grounds that......
  • U.S. v. Gomez-Vega, Criminal No. 04-420 (CCC).
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • October 16, 2007
    ...and unbiased grand jury, ... if valid on its face, is enough to call for trial of the charge on the merits". Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 409, 100 L.Ed. 397 (1956). See Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958). The Supreme Court ......
  • United States v. Bonnell, Civ. No. 4-78-190
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • December 27, 1979
    ...United States, 359 F.2d 50, 56 (8th Cir.), cert. denied, 385 U.S. 867, 87 S.Ct. 131, 17 L.Ed.2d 94 (1966). See Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956) (indictment based on hearsay evidence); United States v. Blue, 384 U.S. 251, 86 S.Ct. 1416, 16 L.Ed.2d 5......
  • U.S. v. Lopez-Lopez, No. 00-2016.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • February 19, 2002
    ...nor any other constitutional provision prescribes the kind of evidence upon which grand juries must act." Costello v. United States, 350 U.S. 359, 362, 76 S.Ct. 406, 100 L.Ed. 397 (1956). "Courts ... generally have found that the prosecutor satisfactorily explains the offense to be charged ......
  • Request a trial to view additional results
2 books & journal articles
  • The Warren Court - After Three Terms
    • United States
    • Political Research Quarterly Nbr. 9-4, December 1956
    • December 1, 1956
    ...States, 350 U.S. 148 (1956), which technically was a civil action; United States v. Ryan, 350 U.S. 299(1956); Costello v. United States, 350 U.S. 359 (1956); Greenwood v. United 350 U.S. 366 (1956); Remmer v. United States, 350 U.S. 377 (1956); and Cammerv. United States, 350 U.S. 399 (1956......
  • The Ordinary Lawyer Corpus: The Federalist Papers Approach.
    • United States
    • Harvard Journal of Law & Public Policy Vol. 45 Nbr. 2, July 2022
    • July 1, 2022
    ...[https://perma.cc/7GPP4ECS]. (95.) Id. (96.) Lee & Mouritsen, Judging Ordinary Meaning, supra note 6, at 848. (97.) 350 U.S. 359 (98.) Id. at 805.

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