Shotwell Manufacturing Company v. United States/Dissent Black

Mr. Justice BLACK, with whom THE CHIEF JUSTICE and Mr. Justice DOUGLAS concur, dissenting.

I think these criminal convictions should be reversed and a new trial granted because of serious errors denying the defendants the protection of two constitutional guarantees for a fair trial.

First. The jury verdicts rest in part on confessions obtained from the defendants by governmental promises of immunity from criminal prosecution, in violation of the Fifth Amendment.

Second. If the Government's chief witness on the remand hearing gave truthful testimony, the jury's conviction of the defendants rests in substantial part on false testimony of the Government's chief trial witness.

An understanding of these two questions requires a statement of the circumstances out of which they arise. The Shotwell Manufacturing Company and its principal officers were convicted in Federal District Court of willfully attempting to evade Shotwell's corporate income taxes for the years 1945 and 1946. The most damaging evidence the Government had against the defendants consisted of confessions of the individual defendants that they had failed to report certain amounts of the corporation's 1945 1946 income. The Government also offered data it obtained from the books and records of the corporate defendant after these confessions were made. At the time these confessions were given, the Treasury Department had in effect its widely publicized and proclaimed 'voluntary disclosure policy,' which, according to Secretary of the Treasury Vinson, promised immunity from prosecution to any tax evader, even a 'willful evader,' 'who makes a disclosure before an investigation is under way.' This whole record shows beyond doubt that before any investigation of them had been initiated the defendants learned of the Treasury's promise and disclosed their failure to report income with the full expectation of receiving the benefits of the promise. Moreover, they made their confessions and made the data available only after assurances of a Chief Deputy Collector that 'if the disclosure (was) timely and the facts * *  * related to him were correct, he saw no reason why the immunity policy of the Bureau should not be applied in this particular matter.' After the defendants, solely in reliance on the policy, had voluntarily given government agents enough evidence to show a failure to report a substantial part of Shotwell's 1945-1946 income, the Government nevertheless refused the promised immunity and secured the indictments on which these prosecutions are based. Charging that the court should not permit the Government to reap advantage from broken promises but should compel it to grant the promised immunity, the defendants filed motions to dismiss the indictments. The court refused to dismiss, however, holding that since the Treasury Department's promises of immunity were not authorized by statute, the Government was not legally bound to keep these promises and could therefore break faith with its taxpayers whenever it chose to do so. Having been denied the promised immunity, the defendants then moved to suppress their confessions, the incriminating documentary evidence which they had specially prepared and delivered to Treasury agents, and all data compiled by the Treasury from books and records made available by the defendants during the time the Government was leading them to believe that they would be granted the immunity as promised. The ground for the motion to suppress was that since the confessions had been obtained by promises of immunity their use would violate the Fifth Amendment's prohibition against compelling a person to be a witness against himself. The District Court refused to suppress, but the Court of Appeals reversed the convictions because they were based partly on the confessions and documents. While the Government's application for certiorari was pending before us, the Government filed motions asking us to delay consideration of its application. The Government alleged that, since the convictions, it had obtained evidence indicating that the defendants and a government official had given perjured testimony about the timeliness and complete truthfulness of the disclosures. Later, we were asked to remand the whole case to the district judge for him to give new consideration to the motion to suppress, the grounds for this motion being that the Government had new evidence in the form of affidavits tending to show that the defendants' disclosure of their tax derelictions had neither been 'timely' nor 'in good faith.' The Government claimed to have affidavits showing (1) the disclosures were not 'timely' because they had not been made until after an investigation had been initiated by the Government and (2) the disclosures were not 'in good faith' because the defendants had denied their guilt of criminal tax evasion. This Court granted the motion and remanded the case over a dissent which in part took the position that the alleged new facts bore directly on the guilt or innocence of the defendants and that the defendants were entitled to have this evidence submitted to a jury instead of to a trial judge. On remand the evidence offered by the Government before the trial judge utterly failed to support the Government's charge that the defendants were guilty of perjury in testifying that their disclosures to the Treasury Department were made before any investigation had been initiated. As to the second charge that the defendants did not act in good faith because they denied their guilt, the trial judge found with the Government. It is of great importance, however, that the chief government witness on remand (Huebner) testified that the chief government witness at the trial before the jury (Lubben) had lied to the jury in giving evidence which the record shows was crucial to the jury's finding of guilt. Although the district judge was compelled to find from the record that it was 'entirely probable' that this government witness Lubben had 'exaggerated' in giving testimony before the jury, he nevertheless reaffirmed his refusal to suppress the incriminating evidence and also denied a motion for a new trial because he thought the defendants were guilty anyway and there would therefore be no 'miscarriage of justice' in denying them a new trial before a new jury to hear the new evidence. This time the Court of Appeals affirmed. It is out of this situation that the two issues arise, the rights protected by the Fifth Amendment, and the right to a fair trial before a jury.

I think the Court of Appeals was wrong in affirming the refusal to suppress but was right the first time when it held that the use of these confessions induced by the Government's promise of immunity 'was a violation of each defendant's privilege against being compelled in any criminal case to be a witness against himself, as guaranteed by the Fifth Amendment to the constitution of the United States.'

'The constitutional test for admission of an accused's confession in federal courts for a long time has been whether it was made 'freely, voluntarily and without compulsion or inducement of any sort." Confessions of guilt 'are inadmissible if made under any threat, promise, or encouragement of any hope or favor.' This Court's leading discussion of the admissibility of confessions, admissions, and incriminating statements both at common law and under the Fifth Amendment is contained in Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897). That opinion written by Mr. Justice White traces the development of the prohibitions against the use of involuntary confessions both in England and in this country. It concludes that in United States courts,

'the issue is controlled by that portion of the fifth     amendment to the constitution of the United States commanding      that no person 'shall be compelled in any criminal case to be      a witness against himself." 168 U.S., at 542, 18 S.Ct., at      187.

To explain what confessions are admissible under the Fifth Amendment because not 'compelled,' the Court quoted and adopted this passage from 3 Russell on Crimes 478 (6th ed.):

"But a confession, in order to be admissible, must be free     and voluntary; that is, must not be extracted by any sort of      threats or violence, nor obtained by any direct or implied      promises, however slight *  *  * . A confession can never be      received in evidence where the prisoner has been influenced      by any threat or promise; for the law cannot measure the      force of the influence used, or decide upon its effect upon      the mind of the prisoner, and therefore excludes the      declaration if any degree of influence has been exerted." 168     U.S., at 542-543, 18 S.Ct., at 187. See, to the same effect,     Wilson v. United States, 162 U.S. 613, 622, 16 S.Ct. 895,     899, 40 L.Ed. 1090 (1896).

Thus it was clearly pointed out that a 'compelled' confession within the Fifth Amendment's meaning is one induced either by fear of injury or hope of reward. In order to emphasize this conclusion, the Court in Bram, time after time, repeated for itself or quoted with approval prior statements that confessions to be 'free and voluntary' must not have been induced or influenced by 'hope or fear,' 'compulsion * *  * physical or moral,' 'threat or inducement,' or by 'any inducement.' A careful reading of the Bram opinion can leave no doubt that a proper interpretation of the Fifth Amendment, according to that case, would prohibit the Government's use of a confessioninduced by a hope of immunity such as that solemnly held out by the Government here just as much as it would bar use of a confession obtained by violence or threats of violence. And no one of these statements, which the Court professes today to accept, leaves this Court with the slightest freedom to invent exceptions to the Fifth Amendment rule that confessions so induced are inadmissible. Not only has the Bram case been repeatedly cited with approval by this Court but also its declaration that confessions are equally involuntary whether obtained by hope or fear is in harmony with the rule that has obtained in a majority of the state courts for more than a century. Indeed, it is a commonplace, known perhaps to any lawyer who has ever tried half a dozen criminal cases, that before offering a confession against a defendant a proper predicate must be laid, that is, proof that the confession was not the result of any threat or promise of reward.

The continuing vitality of the Fifth Amendment's protection as defined in Bram was specifically recognized in Smith v. United States, 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. 192 (1954), which involved circumstances startlingly like those in this case. Smith was prosecuted for attempted tax evasion. He contended that a confession of his should not have been admitted into evidence because he gave it on an understanding with a government agent that he would be granted immunity. Smith's accountant testified that the agent had promised this immunity and that the data showing guilt would not have been given had these governmental promises not been made. The trial judge submitted this issue to the jury with the instruction that it should reject the confession if 'trickery, fraud or deceit' had been 'practiced on petitioner or his accountant.' This Court held that on those facts the issue was properly submitted to the jury and that 'the jury, in arriving at its general verdict (of guilt), could have found from the conflicting evidence that no fraudulent inducement had been offered petitioner or his accountant.' 348 U.S., at 151, 75 S.Ct., at 196. In the present case, the undisputed evidence given both by the Government's tax agent himself and by defendants' accountant was that the agent had assured the defendants that the Government's general policy of immunity would be applicable to them. The Circuit Court found as a fact that this promise was made by the government agent. On remand, the District Court found it 'entirely probable' that the promise had been made. The Court of Appeals in its second opinion did not disturb its earlier findings, and indeed no one, not even the Government or this Court, appears to challenge these findings. Thus, the facts proved in this case would, had they been present in the Smith case, have resulted in the exclusion of Smith's incriminating statement as 'trickery, fraud or deceit.'

Although the Court purports to accept the Bram holding that the Fifth Amendment of itself forbids the use of a defendant's confession 'obtained by any direct or implied promises, however slight,' its opinion most decidedly rejects this interpretation of the Amendment. The rejection lies mainly in the Court's attempt to prove what I deem to be the unprovable, namely, that although these confessions 'might not been made in the absence of the Treasury's offer' of immunity, they nevertheless were not induced or influenced by that offer. In order to reach its astonishing conclusion, the Court uses various alternative formulas, each of which in turn lops off a significant part of the protections the Fifth Amendment has always been thought to afford.

The Court says that because the Secretary of the Treasury addressed his promise of immunity 'to the public generally and not to particular individuals' the Fifth Amendment leaves the Government wholly free to use all confessions induced by this general device. Certainly this excuse for denying the protection of the Fifth Amendment cannot be inferred either from the language of the Amendment or from anyithing said in the Bram case. It is impossible for me to understand why a confession obtained by promises addressed to the public generally is any more 'voluntary' than one obtained by promises addressed to identified tax payers known or suspected to be delinquent. Indeed, a general promise of immunity announced by a member of the President's Cabinet is likely to be far more authoritative and compelling than is an isolated promise by a subordinate official. Surely the Government cannot escape the command of the Fifth Amendment not to use government-induced confessions simply by multiplying the number of people who are promised immunity. Moreover, even if specific statements to individuals are required, the confessions in this case would still be barred by the Fifth Amendment. This is because, as has been pointed out, a Chief Deputy Collector for the Government assured the defendants' accountant that he saw no reason why their disclosures should not entitle them to immunity under the general policy.

The Court also seems to state that the Fifth Amendment does not bar the admission of confessions induced by promises of immunity unless given while under suspicion of crime in response to a specific promise by a particular officer like a policeman. There is no support for this in the Bram case. The Court in that case, in stating that a confession induced by a promise, however slight, was involuntary and therefore inadmissible under the Fifth Amendment, in no way intimated that the fact of involuntariness depends upon the presence of a policeman or upon any circumstance other than that a promise has been made which induced a confession. It seems to me that a taxpayer, uneasy about possible criminal prosecution and worried about its destructive effect on his family, reputation, and business, would be susceptible to an official promise of immunity just as any other person fearful of prosecution for some other offense. And if independent coercive circumstances-like the presence of policeman, with or without club-are necessary to bar the use of a confession, as the Court indicates, then the Court is denying that a promise by itself, no matter how authoritative, can ever result in a compelled confession prohibited by the Fifth Amendment.

The Court concludes that 'the voluntary disclosure policy left (petitioners) wholly free to disclose or not as they pleased. In choosing to act as they did, petitioners, far from being the victims of that policy, were volunteers for its benefits.' Labeling petitioners as 'volunteers' proves nothing. Of course they were 'volunteers.' It was to get 'volunteers' that the Government established the policy. Petitioners learned that their Government had promised immunity for disclosures and they volunteered to make them because of that promise. But petitioners' confessions are no more 'voluntary'-in the sense of not being induced by a promise-than those of suspects who choose to accept the benefits of a policeman's promise of immunity rather than to run the risk of being convicted on independently secured evidence. The Court's interpretation of the Fifth Amendment as permitting the use of confessions obtained by promises because those who relied on the promises were 'volunteers' effectively scuttles the protection of that Amendment.

While the Court uses language which purports to give the same full scope that Bram did to 'jealously guarded constitutional principles' of the Fifth Amendment, it is with regret that I am compelled to say that I think the Court promises more than it performs. The Court treats the cases of Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961), and Bram v. United States, supra, as if both were rested on the Fifth Amendment. Rogers, however, related to a confession used in a state court, the admissibility of which depended on the Due Process Clause of the Fourteenth Amendment. While some of us believe that the Due Process Clause made the Fifth Amendment applicable to the States, Rogers was obviously written on the premise that the Due Process Clause forbids the use of confessions only if the circumstances under which they are used are so offensive or unreasonable as to 'shock the conscience' or offend 'civilized standards of decency.' Bram, on the other hand, rested exclusively on an interpretation of the Fifth Amendment's specific language forbidding the Government to compel a defendant to be a witness against himself. This distinction is important because the more precise words of the Fifth Amendment as construed in Bram are a far more certain safeguard against the use of compelled confessions than the tractable and pliable protections which the Court may or may not afford under the due process 'shock the conscience' test. The Fifth Amendment, as construed in Bram and as recognized in Smith v. United States, supra, forbids the use of confessions obtained by governmental promises of immunity on the theory that such promises alone render confessions involuntary without requiring the presence of any other coercive circumstances. Moreover, if the admissibility of the confession is to be measured by standards of decency it is difficult to reconcile with those standards a holding that the Constitution forbids the Government to use a confession induced by the promise of a police officer or other subordinate agent but that it is wholly permissible to use a confession induced by the Secretary of the Treasury, one of the highest-ranking men in the Government. I cannot deny that such a standard for governmental conduct shocks my conscience. This is particularly true when I consider the nature of the assurances solemnly given to delinquent taxpayers by Secretary of the Treasury Fred M. Vinson, who later became Chief Justice of the United States. He said that the

'man who makes a disclosure before an investigation is under     way protects himself and his family from the stigma of a      felony conviction. And there is nothing complicated about     going to a collector or other revenue officer and simply      saying, 'There is something wrong with my return and I want      to straighten it out."

This simple description of all the taxpayer had to do save himself and his family from the stigma of a prosecution is no longer recognizable in the ex post facto quagmire of complicated restrictions and conditions created by the Court today.

Another theory of the Court, which also departs from the Bram case, seems to be that there was a constructive withdrawal of the promised immunity because of the Court's findings that the defendants failed to comply with the promise's condition of complete truthfulness. With this legal fiction as a premise, the Court moves inexorably to the conclusion that the confessions were not induced by any promise to the defendants. Nothing that I can find in the record after a careful reading furnishes a basis for the most attenuated inference that these defendants would have come forward and disclosed any tax derelictions had the Government not announced its voluntary disclosure policy and made it clear that these particular defendants could expect its benefits. The Court is here departing from the proper test as laid down in Bram for determining whether a disclosure is induced by a governmental promise. It was there said that a person is 'involuntarily impelled to make a statement when but for the improper influences he would have remained silent.' 168 U.S., at 549, 18 S.Ct., at 189. But for the immunity promised to the defendants in this case, it is inconceivable that they would have volunteered evidence upon which they could be tried and perhaps convicted of tax evasion. Moreover, every promise held out by the Government is intended to be conditined on full and truthful disclosure. The majority's rule would require that any confession obtained by a governmental promise be admitted if it contains something less than the whole truth.

What the Court is in fact holding here is that the defendants should be denied their right to have their confessions excluded because while the confessions were in part truthful they were not truthful as a whole. This Court has held under the Due Process Clause of the Fourteenth Amendment that a confession's truth or falsity is not relevant to the question of its admissibility. I do not believe the Court should adopt a new Fifth Amendment shrinking device under which a defendant's lack of 'good faith' and failure to be 100% truthful in his induced confession works a forfeiture of his Fifth Amendment rights. Probably few confessions in criminal cases are ever wholly truthful. Even a cursory examination of such cases in this and other countries would show that defendants who confess nearly always lay all the blame possible on someone else or in some way seek to justify their conduct in whole or in part. Certainly this Court could not, consistently with its prior cases, hold admissible a confession obtained by a promise or threat from a person who confessed that he had assaulted another but falsely and fraudulently claimed that he had done so in self-defense. Nor could it admit the confession of a person suspected of receiving stolen goods who, after beatings, admitted possession of the goods but falsely claimed he did not know they were stolen. Yet, by the majority's view here, such compelled confessions will be admissible because, being partly false, they are 'fraudulent,' not made in 'good faith.' This is the first time, to my knowledge, that a defendant's constitutional right not to be compelled to be a witness against himself has even been conditioned on his failure to come into court with 'clean hands.' I cannot agree to this new doctrine that a compelled confession can be admitted because partly untruthful. Such a step backwards is particularly dangerous because of the ease with which this case can be extended to admit confessions obtained not by physical violence or threats of violence but by more 'civilized' techniques of compulsion, which we have characterized as inherently coercive -techniques of physical exhaustion, phychological pressure, trickery, promises of leniency, and the like which sometimes subtly but always certainly undermine an accused's freedom to confess or not, as he chooses.

To my way of thinking, it is the Court itself, instead of the defendants, which turns 'an important constitutional principle upside down.' It does this by permitting the Government to prove its case with confessions obtained by solemn promises of immunity on the theory that the confessions were not given in 'good faith' and were therefore fraudulent. This conclusion is based on a finding that, while the defendants confessed a failure to report income, they falsely stated at the same time that their receipts were offset by business expenditures. In short, the Court believes that the defendants are guilty of the tax evasion charged and therefore have forfeited their Fifth Amendment rights. I cannot agree that the Court is right in making the admissibility of the confessions turn on the guilt or innocence of the defendants. The denial of the benefits of the Fifth Amendment on the Court's belief that the defendants are guilty is a high price to pay for a conviction and a new, dangerous inroad on the protections of that Amendment. But if this is to be the standard, then I can see no escape from the conclusion that the admissibility of the confessions should ultimately be determined by a jury-not by the judges of this or any other court. Moreover, if it be assumed that the Court is correct in concluding that these defendants have been guilty of fraud or perjury in their confessions, then under normal ideas of due process the proper procedure would be to indict them on these charges and let them be tried. But this Court should not use its judgment of the defendants' guilt of any crimes as an excuse for depriving them of the constitutional guarantees of the Bill of Rights.

Whatever the Court's reasons for affirming this judgment, it is plain that Smith v. United States, supra, has been undermined, the Bram case has been practically repudiated, and, worse still, the Fifth Amendment's prohibition against involuntary confessions has become far less of a constitutional protection than it ever was before. There is no basis in the Amendment itself for reducing its scope as the Court does today, and no precedent, weak or strong, old or new, can be found to support it. It is this Court's own investion. This Court alone therefore, this 14th day of January 1963, is entitled to whatever credit is due for enfeebling our Bill of Rights in this way. It earns that credit by ignoring the wise and solemn warning given in Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 535, 29 L.Ed. 746 (1886):

'It may be that it is the obnoxious thing in its mildest and     least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way,      namely, by silent approaches and slight deviations from legal      modes of procedure. This can only be obviated by adhering to     the rule that constitutional provisions for the security of      person and property should be liberally construed. A close     and literal construction deprives them of half their      efficacy, and leads to gradual depreciation of the right, as      if it consisted more in sound than in substance. It is the     duty of courts to be watchful for the constitutional rights      of the citizen, and against any stealthy encroachments      thereon.'

To construe the Fifth Amendment's prohibition against the use of compelled testimony as not protecting these confessions induced by promises of immunity is certainly no liberal construction of that part of our Bill of Rights. I cannot agree to this holding because I still believe that constitutional provisions designed to protect individual liberty from oppressive procedural tactics by government should be liberally construed in order to prevent their erosion and obliteration by insidious Legislative, Executive, and Judicial encroachments. The Court's holding today will probably give great aid and comfort to many earnest people who sincerely believe that this provision of the Fifth Amendment against the use of government-induced confessions is an unworthy barnacle on the law, a sixteenth century strait jacket, which should be removed as an outworn technicality of a bygone age. Even if this is a sound view, which I do not believe, it should not be put into effect by judicial decisions like this gradually narrowing the protective scope of that Amendment but only by the constitutionally ordained amending process so that the people of this Nation can determine for themselves whether they wish to abandon this part of their heritage of freedom.

Since the record now contains new testimony offered by the Government on remand which thoroughly discredits the Government's main trial witness upon whose testimony the jury's verdict of guilty in large part rested, the defendants are being denied their constitutional right to a fair jury trial by the failure to grant them a new trial before a new jury which can hear this new evidence in determining their guilt or innocence.

This extraordinary situation arises out of the following circumstances:

Shotwell Manufacturing Company was in the candy business. During the O.P.A. days it sold candy at over-the -ceiling prices to companies wholly or in part operated by one Lubben. Shotwell did not report as income the amount by which the price it received exceeded the O.P.A. ceiling. The defendants claimed in their confessions and at their trial that they had to make these over-ceiling charges for candy to compensate for over-ceiling prices they paid for corn used in making corn syrup and other by-products necessary to the operation of their candy factory. The defendants' defense, therefore, was that all the overages paid to Shotwell by Lubben and his companies were paid out by Shotwell for raw corn and that, since the unreported income was virtually offset by unreported expenses, they were not guilty of the tax violations charged. The trial judge agreed with this view of the law and charged the jury that defendants were not guilty if the unreported income from candy was offset by unreported expenditures for corn. The crucial questions for the jury to determine, therefore, were how much money was paid by Lubben for candy and how much was paid by Shotwell for corn. The Government relied chiefly on the testimony and records of Lubben himself to show how much he had paid Shotwell. Thus, Lubben's truthfulness was a vital issue for the jury to consider. The prosecutor in addressing the jury vouched for the reliability of Lubben as an 'honest, honorable American citizen,' the trial judge in passing sentence stated that he believed Lubben was telling the truth and that the 12 jurors had believed Lubben, and most importantly, it is clear that Lubben's testimony before the jury was significant and weighty evidence tending to peg the overpayments to Shotwell at a high level-well above the amount defendants claimed they received-and thus buttress a jury finding that more over-ceiling money was paid in for candy than went out for corn.

When this case was brought here the first time by the Government to secure reversal of the Court of Appeals holding that the Fifth Amendment rights of the defendants had been violated, the case was remanded because the Government presented 'new evidence' in the form of affidavits which tended to show that the individual defendants had given perjurious testimony at the suppression hearing. The District Court was instructed to hold new hearings and to make new findings of fact on the timeliness of the defendants' disclosure of unreported income and on the 'good faith' of the defendants in so disclosing. At these hearings on remand, the Government's star witness was one Huebner, a former Shotwell officer, who was supposed to have received most of the payments made to Shotwell by Lubben. Huebner testified that he thought Lubben had 'lied on the stand' at the trial before the jury. Specifically, he stated that when Lubben recounted an instance in which he had paid one Shotwell officer $49,000, 'it was a mistake on Lubben's part,' that the officer had never received $49,000. Again, Huebner testified that no overages had been paid on some chocolate-covered nuts on which Lubben had claimed to have paid 'in the neighborhood of $40,000.' Huebner also testified, and there is other evidence in the record tending to show, that one Tobias said he had helped Lubben doctor his books which were used against the defendants at the trial. In his written opinion, at the conclusion of the hearing, the judge admitted:

' * *  * that Lubben may have exaggerated the amounts of the      payments that he and his confederates made to Shotwell is      entirely probable.'

Although the judge made this finding, as the record compelled him to find, he nevertheless refused to grant the defendants a new trial before a new jury because he believed the other evidence proved the defendants guilty and that there had therefore been no 'miscarriage of justice.'

The effect of this action by the judge was to deny the defendants the right to have their guilt or innocence determined by a jury from all the evidence, including this new evidence discovered by the Government itself which so seriously impeaches the credibility of the main witness upon whose testimony the jury's verdicts of guilty rested. Those verdicts have now been shown to be tainted, somewhat like the verdict in Mesarosh v. United States, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1 (1956). While that case was pending here on certiorari, the Government called our attention to the fact that one of the seven witnesses who had testified against the defendants had lied in other proceedings subsequent to the defendants' convictions. The Government insisted, however, that the witness' testimony had been truthful in its case and on that basis objected to the granting of a new trial but recommended a remand to the trial judge to determine whether the witness had in fact been truthful. We rejected that recommendation and held that the new evidence which undermined the credibility of the witness and which was produced by the Government itself required a new trial because the defendants' trial had become fatally tainted by these new disclosures. In the present case, after the defendants had been convicted, the Government came forward with evidence tending to show not merely that one among many witnesses but that its major witness had lied, not in other proceedings but on the central and determinative issue in this very case. Moreover, unlike Mesarosh, we have here an acknowledgment by the district judge that the testimony Lubben gave to the jury was probably exaggerated. In another case involving a charge by the defendants that it had discovered that the Government's witnesses were completely untrustworthy and should be accorded no credence, this Court remanded on these mere allegations in order to assure 'findings upon untainted evidence,' and said.

'The untainted administration of justice is certainly one of     the most cherished aspects of our institutions. Its     observance is one of our proudest boasts. This Court is     charged with supervisory functions in relation to proceedings      in the federal courts. See McNabb v. United States, 318 U.S.     332, 63 S.Ct. 608, 87 L.Ed. 819. Therefore, fastidious regard     for the honor of the administration of justice requires the Court to make certain that the doing      of justice be made so manifest that only irrational or      perverse claims of its disregard can be asserted.' Communist      Party of United States v. Subversive Activities Control      Board, 351 U.S. 115, 124, 76 S.Ct. 663, 668, 100 L.Ed. 1003     (1956). Compare Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935).

I fear that the Court does not manifest that same 'fastidious regard for the honor of the administration of justice' when it holds today that the defendants are not entitled to a new trial even though there are strong, compelling reasons to believe that the jury in this case did not base its guilty 'findings upon untainted evidence.'

It is true that in refusing to order a new trial when this point was argued to it, the Court of Appeals stated that it could not say that the district judge's observation that Lubben had exaggerated amounted to a charge of perjury. And this Court likewise puts emphasis on the conclusion that there was no actual finding of perjury. But whether Lubben originally testified before the jury as a willful and deliberate perjurer or whether he somehow just inadvertently 'exaggerated' the amounts he claimed to have paid these defendants, the effect on the jury was the same. No human being, not even the trial judge, is capable of saying that this jury would have convicted these defendants had Lubben sworn the whole truth when the jury listened to him. Moreover, in Mesarosh the Solicitor General conceded only that he believed that a witness against defendants had given testimony in other proceedings that was 'untrue.' There was no evidence that the witness had committed perjury, and the Solicitor General specifically refused to concede that he had. This Court nevertheless held that the witness' testimony was tainted because it was untruthful, and it set the convictions aside so that the defendants could get a new trial. The Court here is therefore wrong in stating that the Mesarosh 'conviction may be regarded or is conceded to have rested on perjured testimony.' The Court, as I see it, is simply refusing to follow Mesarosh without saying why.

In refusing to remand this case for a new trial, the Court of Appeals relied on its conclusion that there was enough other innocent evidence in the record to support the conviction and on its observation that credibility of Lubben was a question for the jury. As stated earlier, the district judge also had denied a new trial because he was satisfied that the other evidence showed that the defendants were guilty. But again, we have held that 'it does not remove the taint for a reviewing court to find that there is ample innocent testimony to support the * *  * findings.' Further, in Mesarosh we said, 'The district judge is not the proper agency to determine that there was sufficient evidence at the trial, other than that given by Mazzei, to sustain a conviction of any of the petitioners. Only the jury can determine what it would do on a different body of evidence, and the jury can no longer act in this case.' For this reason a new trial was ordered. A new trial is necessary in this case at which a jury will be privileged to hear all the relevant testimony and will be free to determine from an honest record whether these defendants are guilty. It advances nothing to say, as the Court of Appeals said, that credibility is for the jury. In this case, the new evidence offered by the government witness conclusively demonstrates that even the jury could not properly weigh credibility at the time of the trial because these damaging sworn accusations against Lubben did not exist at that time.

Proper respect for the fairness and integrity of our judicial system demands that these defendants not be allowed to stand convicted upon a record containing evidence, the truthfulness of which has now been so thoroughly discredited. Neither the District Court, the Court of Appeals, nor this Court should usurp the constitutional function of the jury to determine the guilt or innocence of these defendants on untainted evidence. There is only one way the defendants can be given the constitutional rights that have been denied them in this case, and that is to reverse the case and remand for a new jury trial.

Moreover, by granting a new trial the Court would not only assure defendants the fair trial to which they are entitled but would also make it unnecessary for the Court to reach the important, grave, and difficult Fifth Amendment questions discussed in Part I of this opinion. The general rule of this Court is to avoid reaching such constitutional issues when a case can be fairly disposed of on alternative grounds. Although I have sometimes thought the rule has been carried to 'a wholly unjustifiable extreme,' this case, it seems to me, offers to the strong adherents of that rule an ideal occasion for its application in the interests of justice, which would require that a new trial be granted.