Gambino v. United States

• Decision Date: 08 December 1939
• Docket Number: No. 7112-7114,No. 7124.,7112-7114,7124.
• Citation: 108 F.2d 140
• Parties: GAMBINO v. UNITED STATES, and three other cases.
• Court: U.S. Court of Appeals — Third Circuit

108 F.2d 140 (1939)

GAMBINO v. UNITED STATES, and three other cases.

Nos. 7112-7114, No. 7124.

Circuit Court of Appeals, Third Circuit.

December 8, 1939.

Michael Serody and B. D. Oliensis, both of Philadelphia, Pa., for appellants in Nos. 7112-7114.

Patrick J. Friel, of Philadelphia, Pa., for appellant in No. 7124.

J. Cullen Ganey, U. S. Atty., James P. McCormick, Asst. U. S. Atty., and Blair M. Ilderton, Atty., Alcohol Tax Unit, all of Philadelphia, Pa., for appellee.

Before MARIS, CLARK, and JONES, Circuit Judges.

MARIS, Circuit Judge.

The appellants and a number of others were indicted for conspiracy to violate the alcohol tax laws. After the arrest of the defendants and the termination of the conspiracy, one of the defendants, F. J. McMahon, while in the custody of government officers, signed a statement in which he confessed his own guilt and implicated a number of the defendants. Later McMahon pleaded guilty, while the appellants and certain other defendants who had pleaded not guilty went to trial. At the trial the Assistant United States Attorney proposed to have McMahon's statement read in evidence. The following colloquy, ruling and instruction to the jury then ensued:

"Mr. Serody: May it please the Court, I would like to object to the introduction of that statement at this time, in so far as it is evidence solely against Mr. McMahon and can have no purpose in this trial, and for that reason I ask an exception to the introduction of anything contained in that statement.

"Mr. McCormick: The trial has not been completed. There are still defendants on trial. The statement is a necessary link in the production of the evidence showing the whole transaction. As long as there is one defendant here, I take it it is my duty to go on and prove a full conspiracy against that one defendant.

Mr. Serody: May it please the Court, it is impossible to conceive how a statement made by a defendant who has pleaded guilty can be used against other defendants, when that statement can't be evidence against anybody but the person who has entered the plea.

"Mr. McCormick: I haven't said that it would be. I said it was given just to prove a full conspiracy.

"Mr. Serody: Then it has no place in the case. A statement made by a defendant after the conspiracy is ended can not be used as proof of the conspiracy. It can only be used as proof of the participation of that defendant himself.

"Mr. McCormick: The statement may be corroborative of other evidence produced by other witnesses.

"The Court: Mr. Serody, I have known instances where persons have pleaded guilty to a conspiracy, and at the conclusion of the trial they have been acquitted because the evidence did not show a conspiracy. The entering of a plea of guilty from a conspiracy does not prove the conspiracy. For instance, now, suppose this case progressed and at the conclusion of the case the Government had not established a conspiracy. I would direct that Mr. McMahon's plea of guilty be withdrawn and he be permitted to enter a plea of not guilty and discharge him.

"Mr. Serody: But that doesn't change —

"The Court: Yes, but there has been a good bit of logic in your point. I see fully your point. If it was any other case except conspiracy, I would sustain your objection.

"Mr. Serody: That is a fundamental principle of law. The only case in which such a question can be raised is in a conspiracy case. If this was a trial for a substantive offense, there wouldn't be any necessity to even make an objection, but because a statement which is made by a defendant after the conspiracy is ended can only be used against the defendant, it can't have any evidentiary value unless the defendant is on trial.

"The Court: I will tell you what I will do. I will direct that this statement be read and in the place of names being mentioned, I am going to ask that Mr. Leeson read "A defendant", so that no names will be mentioned. It is very important to have this testimony to establish whether or not a conspiracy existed. Now, if I eliminate the names so that no defendant is mentioned, I am not hurting anybody.

"Mr. Serody: Well, I won't concede that, if Your Honor please.

"The Court: Yes, but you are going off on an entirely different ground. I am listening to your objection on the ground of actual equity and actual fairness, but I can't go with you when you say that you want the testimony — the statement excluded altogether.

"Mr. Serody: My objection, if Your Honor please, is based not on the equities but on the rule of evidence that applies. And under the rule of evidence I am certain that that statement is not admissible, and I, therefore, can't see anything — "The Court: Not admissible against whom?

"Mr. Serody: Against anybody except McMahon, and if he has pleaded guilty it is not admissible.

"The Court: The guilty plea does not establish guilt. Conspiracy is a matter of law and facts. The fact situation Mr. McMahon has pleaded to. The law situation will have to be passed upon by the Court after all the facts are in. I want to know what the facts are in this case to decide whether Mr. McMahon or anybody else is guilty of conspiracy, and I will ask that the witness on the stand not mention any other defendant by name. Just `A defendant' if such be the case.

"Mr. Serody: Your Honor will grant an exception to all the defendants?

"The Court: Yes. See, members of the jury, all we want to get at is this —

"Mr. McCormick: All the defendants.

"The Court: We do want anything said by Mr. McMahon, and it can't be said by any defendant after the completion of the conspiracy to injure any other person on trial, because as I told you the other day, only what one of the defendants said while the conspiracy is in progress is admissible against himself and all others involved. After the completion of the alleged conspiracy, any statement made by one of the defendants is admissible only as to him. Now, it is necessary for us to know what those facts that he has put forth in his statement are to decide whether or not a conspiracy actually existed, of which even he himself can be guilty. But anything that he said in that statement made after the completion of the alleged conspiracy has no evidential weight against any other person involved. Now, we will eliminate all those other persons. But we are asking you to listen to what this statement is as made by him Mr. McMahon, indicating his own guilt, and indicating to you whether from all of the facts that you will have before you when the case is concluded, a conspiracy is proven, because you are going to pass upon that. So nobody is being hurt.

"Mr. Serody: May I have an exception —

"The Court: I am giving an exception —

"Mr. Serody: — to the remarks made to the jury?

"The Court: — to the remarks, yes. No, an exception there first to the ruling and then to the statement given to the jury in explanation of admission of the testimony, and the limitations to be placed on its admission."

It will be seen that over objections of the appellants' counsel, who clearly stated the applicable rule of law, the trial judge admitted McMahon's statement in evidence against the defendants who remained on trial in spite of the fact that it was wholly incompetent under a rule of evidence which has been so well settled for so long a time as to become hornbook law. In so doing the trial judge committed a clearly prejudicial error.

To permit the government witness to read what McMahon had said in his confession was to allow hearsay evidence. Professor Wigmore states that this rule "prohibits the use of a person's assertion, as equivalent to testimony to the fact asserted, unless the assertor is brought to testify in court on the stand, where he may be probed and cross-examined as to the grounds of his assertion and his qualifications to make it." Wigmore on Evidence, § 1364. The fact that the hearsay statement is under oath, is not sufficient to remove the objection for there continues to be a deprivation of the defendant's right to cross-examine. Wigmore on Evidence, § 1364 (II).

To this hearsay rule there are of course exceptions as firmly fixed in the law of evidence as the rule itself and there are situations to which the rule is inapplicable. So the rule is satisfied in the case of an admission against interest, for it is obvious that the party making the admission would not cross-examine himself. All he need do is to take the stand on his own behalf and explain the admission, if he thinks it advisable. The hearsay rule is likewise satisfied when a vicarious...