Johnson v. United States, No. 273

CourtUnited States Supreme Court
Writing for the CourtDOUGLAS
Citation318 U.S. 189,87 L.Ed. 704,63 S.Ct. 549
Docket NumberNo. 273
Decision Date15 February 1943
PartiesJOHNSON v. UNITED STATES

318 U.S. 189
63 S.Ct. 549
87 L.Ed. 704
JOHNSON

v.

UNITED STATES.

No. 273.
Argued Jan. 15, 1943.
Decided Feb. 15, 1943.
Rehearing Denied Mar. 15, 1943.

See 318 U.S. 801, 63 S.Ct. 826, 87 L.Ed. —-.

Page 190

Mr. William A. Gray, of Philadelphia, Pa., for petitioner.

Mr. Charles Fahy, Sol. Gen., of Washington, D.C., for respondent.

Mr. Justice DOUGLAS delivered the opinion of the Court.

Petitioner was convicted of wilfully attempting to defeat and evade his federal income taxes for the years 1936 and 1937. He was acquitted for 1935. Petitioner was a political leader in Atlantic City and Atlantic County, New Jersey. The prosecution's theory was that he had received large sums of money from those conducting the numbers game for protection against police interference and had not reported those sums in his income tax returns for 1935, 1936, and 1937. The defense was that his failure to return all the income he had received resulted from the mistaken but sincere belief that he was bound to return only the net balance remaining after deducting amounts expended for political purposes. The evidence was that one Weloff and one Towhey acting alternately delivered to petitioner on behalf of the numbers syndicate $1,200 a week from July 1935 to November 1937. About November 1, 1937, Weloff and Towhey were displaced by one Jack Southern to whom the syndicate delivered $1,200 a week. Neither the prosecution nor

Page 191

the defense would sponsor Southern's testimony. At the request of the prosecution the court called Southern as a witness. He testified that during November and December, 1937, he delivered the $1,200 a week to an inspector of police named Ferretti who was dead at the time of the trial. He denied that he ever made any weekly payments to petitioner. No evidence was adduced that petitioner received any sums from the syndicate during November or December, 1937. Petitioner took the stand and on direct examination admitted that he had received the weekly payments from Weloff and Towhey up to November, 1937. For 1937 these admitted payments totalled $50,400. Petitioner accounted for this sum by stating that he had reported $30,189.99 in his 1937 return as 'Other commissions' and that he had paid out the balance, roughly $21,000, as political contributions for that year. On cross-examination he denied that he had received payments from Southern during November and December, 1937.1 He was then asked 'Did you receive and money from numbers in 1938?' Counsel for the defense objected to the question on the ground that it was not relevant to the issue and would tend to prove a different offense than the one charged in the indictment. The court overruled the objection. Petitioner then answered the question in the affirmative. He was then asked, 'Who gave it to you?' Counsel for the defense objected. The court had the jury withdraw. The prosecutor asked that petitioner 'also be excused from the court room during the argument, and that when he resumes the stand he should do so without having any opportunity to hear what the argument is about'. The court said 'that is a fair request' and ordered petitioner to retire, which he

Page 192

did. No objection was made to that action. Counsel for the prosecution argued that the questions asked in cross-examination were proper to establish a continuous practice of receiving the numbers income throughout 1937. Counsel for the defense insisted that the cross-examination should be limited to the subjects opened up by the examination in chief. The court expressed the view that the cross-examination was permissible since it bore directly upon credibility. Counsel for the defense then pressed the point that even if it otherwise might be proper cross-examination, nevertheless it was 'improper cross-examination for the reason that it is directed to a future prosecution.' He asserted that he made the claim of privilege on behalf of the accused 'in view of the avowed threat of the government to prosecute him for the very years concerning which he is now asked to testify.' The court replied that it was for the accused, not his counsel, to make the claim and added, 'You may advise him of his rights, of course, but it is for him to determine whether or not he wishes to take advantage of them'. After further argument, the court stated:

'It seems to me that the testimony is perfectly relevant and material as cross examination directed to credibility.

'In view of the witness' testimony, unless it runs afoul of his right not to be required to incriminate himself, it seems to me that that is a right which he may waive or claim, and that that is a personal right that he may be advised by counsel when a question is asked, and that he will have to determine himself whether he is going to claim it or not.'

Petitioner resumed the stand. The question 'Who gave it to you?' was repeated. Counsel for petitioner then advised him of his constitutional privilege, which he thereupon claimed. The court ruled, 'You may decline to answer.'

Page 193

The prosecutor in his address to the jury commented at some length on petitioner's assertion of his constitutional privilege:

'I asked him, 'Did you get the money in 1938?' and he said, 'Yes'. Well, of course, then a lot of little things happened. They didn't like that because naturally you say, 'Well, I don't understand that, Mr. Johnson.' I wish you could have asked him questions then. You say, 'Mr. Johnson, you say that suddenly November 1st, 1937 you stopped getting the $1200 from numbers; then in 1938 you started to get it again? How come?' You don't get it, you don't get it because it isn't the truth. That is what cross examination is for.

'So then we went beyond that. We said, 'Who did you get it from?' He said, 'I claim my privilege against self-incrimination. I violated the income tax law in 1938; I don't want to tell you about that. I am having enough trouble with 1935, six and seven.' If he could have claimed his privilege on the stand here with respect to 1935, six and seven he would have done it. He would claim anything that is necessary to get him out of any predicament he is in. Well, now, ladies and gentlemen, if he got that numbers money in 1938 who did he get it from? He must have got it from Jack Southern. Maybe he got it from Inspector Ferretti, but he admits he got it. Well, then, if he got it he got it during the last two months of 1937. They didn't say anything about that to you because they were trapped. No need of them talking about it. It is for me to point that out to you.

'Now, ladies and gentlemen, can you believe that man told you the truth about anything on the witness stand when he admits that he got numbers money in 1938 but won't tell you who he got it from on the ground it would incriminate him? If you can believe that that man is innocent of this charge when he stands right up in front of you and says he cannot answer a question about 1938, that he just got through

Page 194

answering for 1937 on the ground it would incriminate him, well, then, I just don't get it.'

An objection was made to these statements and overruled and an exception was noted. The next morning before the court charged the jury various other objections were submitted. During the colloquy the court stated that there 'were a number of matters referred to last evening * * * I ruled on some of them, all of which rulings I indicated I would reconsider. Now, have you mentioned to me now all the points you desire to refer to?' Counsel for petitioner replied, 'We withdraw whatever was said last night * * * I think the only fair thing to do is to forget everything that happened last night and start this morning'. The objection previously made to the prosecutor's comment on the accused's failure to testify was not renewed. Nor was any request made to the court to charge the jury to disregard petitioner's refusal to testify. Though the prosecutor's comment on the accused's failure to testify was again adverted to, it was in a different connection. Counsel for petitioner contended that the prosecutor's statement that the claim of privilege amounted to an admission of income tax violation in 1938 was 'an entire misconception of * * * the claim of privilege' inasmuch as the basis of the claim 'is that the testimony * * * would have a tendency to incriminate him', and 'not that it would prove him guilty'. The court indicated that this objection was well taken and should be called to the attention of the jury. The court added, 'He is not being charged with any 1938 tax.' The prosecutor then said, 'It is a question of his good faith and his credibility, and the answers he has already given on similar questions. That is the purpose for which the questions were permitted.' The court thereupon stated, 'I think I probably should indicate to the jury that that is the full extent of it.' Counsel for petitioner remained silent, making no objection. No error was asserted in the

Page 195

motion for a new trial or in the assignments of error on the ground that the prosecutor's comment or the court's charge on the inference from the claim of privilege was improper.

The court in its charge stated that petitioner's refusal to answer the question on the ground that it would tend to incriminate him 'may only be considered by you in testing his credibility as to the answers which he did give and his good faith in the matter' and that petitioner was not being tried for anything he did in 1938. To this charge no objection was made.

The Circuit Court of Appeals affirmed the judgment of conviction, one judge dissenting. 3 Cir., 129 F.2d 954. The court held that the exclusion of petitioner from the court room during the colloquy did not result in prejudice; that the cross-examination covering 1938 income was proper; and that the allowance of comment on the claim of privilege was justified. The case is here on a petition for a writ of certiorari.

The...

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407 practice notes
  • Troupe v. Chicago, D. & G. Bay Transit Co., No. 255
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 1, 1956
    ...States v. Atkinson, 1936, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555, and quoted with approval in Johnson v. United States, 1943, 318 U.S. 189, 200, 63 S.Ct. 549, 87 L.Ed. 704, vividly calls to mind the type of situation in which we would be favorably disposed to review alleged erro......
  • Oses v. Com. of Mass., Civ. A. No. 89-0487-WD.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • October 7, 1991
    ...for error no more promotes the ends of justice than to acquiesce in low standards of criminal prosecution." Johnson v. United States, 318 U.S. 189, 202, 63 S.Ct. 549, 555, 87 L.Ed. 704 (1943) (Frankfurter, J., United States v. Young, 470 U.S. at 16, 105 S.Ct. at 1046-47. Those institutional......
  • McNeill v. Bagley, Case No. 1:02 CV 1645
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • August 26, 2019
    ...quest for error no more promotes the ends of justice than to acquiesce in low standards of criminal prosecution.Johnson v. United States, 318 U.S. 189, 202 (1943) (Frankfurter, J., concurring). a. Rushinsky instructionPage 70 McNeill alleges that his due process rights were violated when th......
  • United States v. Spector, No. 21940 and 21883.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • December 14, 1951
    ...failure of a defendant to take the witness stand. 18 U.S.C. § 3481. But, as Mr. Justice Douglas said in Johnson v. United States, 1943, 318 U.S. 189, 195, 63 S.Ct. 549, 552, 87 L.Ed. 704: "The case of an accused who voluntarily takes the stand and the case of an accused who refrains from te......
  • Request a trial to view additional results
408 cases
  • Troupe v. Chicago, D. & G. Bay Transit Co., No. 255
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 1, 1956
    ...States v. Atkinson, 1936, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555, and quoted with approval in Johnson v. United States, 1943, 318 U.S. 189, 200, 63 S.Ct. 549, 87 L.Ed. 704, vividly calls to mind the type of situation in which we would be favorably disposed to review alleged erro......
  • Oses v. Com. of Mass., Civ. A. No. 89-0487-WD.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • October 7, 1991
    ...for error no more promotes the ends of justice than to acquiesce in low standards of criminal prosecution." Johnson v. United States, 318 U.S. 189, 202, 63 S.Ct. 549, 555, 87 L.Ed. 704 (1943) (Frankfurter, J., United States v. Young, 470 U.S. at 16, 105 S.Ct. at 1046-47. Those institutional......
  • McNeill v. Bagley, Case No. 1:02 CV 1645
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • August 26, 2019
    ...quest for error no more promotes the ends of justice than to acquiesce in low standards of criminal prosecution.Johnson v. United States, 318 U.S. 189, 202 (1943) (Frankfurter, J., concurring). a. Rushinsky instructionPage 70 McNeill alleges that his due process rights were violated when th......
  • United States v. Spector, No. 21940 and 21883.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • December 14, 1951
    ...failure of a defendant to take the witness stand. 18 U.S.C. § 3481. But, as Mr. Justice Douglas said in Johnson v. United States, 1943, 318 U.S. 189, 195, 63 S.Ct. 549, 552, 87 L.Ed. 704: "The case of an accused who voluntarily takes the stand and the case of an accused who refrains from te......
  • Request a trial to view additional results

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