Forman v. United States/Concurrence Harlan

Mr. Justice HARLAN, concurring.

I feel it necessary to add a few words to make clear the basis on which I join in the Court's judgment.

1. As I read the record I believe the case is fairly to be viewed as having been submitted to the jury only on the subsidiary-conspiracy theory. For although there are passages in the trial court's charge which can be said to have proceeded on a continuing-conspiracy theory, these passages, taking the charge as a whole, are, in my view, too ambiguous to justify our saying that the jury must have understood that it could also consider the case on that basis.

2. I do not think that because of its omission to object to the trial court's failure to give a continuing-conspiracy charge, the Government was precluded, under Rule 30 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., from raising that point on appeal. That Rule provides:

'No party may assign as error any portion of the charge or     omission therefrom unless he objects thereto before the jury      retires to consider its verdict, stating distinctly the      matter to which he objects and the grounds of his objection.'

In my view the Rule has no application here. Accepting, as I do, petitioner's claim that the charge did not include a continuing-conspiracy theory, it erred in the Government's favor. I cannot believe that Rule 30 requires the party favored by an erroneous charge to point out to the court what the correct charge would be if its decision were to be reversed on appeal. Furthermore, since our opinion in the Grunewald case, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931, was not yet available to the parties or the court, the charge undoubtedly appeared correct to both sides. The Government was no more culpable for not challenging it than petitioner was for requesting it. Nor does the Government's request for a new trial in the Court of Appeals constitute a cross-appeal. It did not, and could not, seek a result more favorable to itself than that reached by the trial court; rather, it simply opposed the relief for which petitioner contended.

3. I think the record sustains petitioner's contention that he did not, either in the trial court or in the Court of Appeals, request a new trial with respect to the portion of the charge dealing with the statute of limitations. He is subject to retrial solely because he appealed his conviction and because, in the circumstances disclosed by this record, such relief was just and appropriate under 28 U.S.C. § 2106, 28 U.S.C.A. § 2106. The Ball, Green, and Bryan cases, cited in the Court's opinion, 80 S.Ct. 486, establish that the right of an appellate court to order a new trial does not turn on the relief requested by the defendant, and the Sapir case does not suggest such a distinction.

4. Since the Court of Appeals held only that the case might have been tried on a continuing-conspiracy theory, I express no opinion on the permissible duration of a conspiracy to violate § 145(b) or on the sufficiency of the evidence adduced to prove its continuation. Those questions should be resolved in further proceedings.