Nye Nissen v. United States/Dissent Murphy
Mr. Justice MURPHY, dissenting.

The petitioners were indicted for seven offenses. The first was a conspiracy to defraud the Government between 1938 and 1945. The remaining counts charged six specific instances of that fraud. Serious attack has been made in this Court on the petitioners' convictions under the six substantive counts. The Court upholds those convictions. I finds sufficient evidence to establish the fact that petitioners aided or abetted the perpetration of the substantive offenses; and since 18 U.S.C. § 2, 18 U.S.C.A. § 2, makes an aider or abettor a principal, the petitioners are guilty of the substantive offenses.

The trial lasted nearly three months. The judge's charge to the jury began with an analysis of the conspiracy count, and offered several definitions of the term 'conspiracy.' Some were traditional. But one was this: 'If a person, understanding the unlawful character of a transaction, encourages, advises, or in any manner, with a purpose to forward the enterprise or scheme, assists in the prosecution, he becomes a conspirator.' Later in the analysis of the conspiracy count, a definition of 'abetting' was given. It was immediately followed by this statement: 'In this connection' the acts and declarations of a conspirator are admissible against other conspirators.

The judge then passed to the substantive offenses. And he charged: 'One who aids, abets, counsels, commands, induces aids, abets, counsels, commands, induces as responsible for that act as if he committed it directly.'  The jurors were not told what the terms 'counsel' or 'induce' signified. Abetting, in the context of the substantive crimes, was not defined. Most important, the jurors were not told how to use a belief that conspiracy existed as evidence in itself of the substantive crimes. There was no attempt to sketch differences between abetting, counseling, inducing, and conspiring.

Yet the convictions are upheld in this Court on the theory that the jury found aiding or abetting. In this Court, then, aiding or abetting fraud becomes the substantive offense. Finding sufficient evidence to support the verdict on this theory of the substantive counts, the Court holds that failure to instruct of the relationship between conspiracy and aiding or abetting is unimportant.

I cannot agree. Conviction of the guiltless bystander is, of course, the great danger when conspiracy counts and substantive counts are tried together. A letter is written, a call is made, and the foundation is laid. The jury is subject to the temptation of generalizing; its confusion makes that temptation harder to resist. Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489, as interpreted today, attempted to place limitations on this process. A conspiracy's mere joiner is not guilty of the substantive offense unless the substance was part of the conspiracy and in furtherance of it. The trial judge must so warn the jury.

The policy which required cautions in the Pinkerton case requires the same cautions here. This voluminous record, and the judge's instructions in particular, are replete with possibilities of confusion for the juror. The Court states that the crime of aiding or abetting the commission of a substantive offense is 'well engrained in the law.' And so it is. 18 U.S.C. § 2, 18 U.S.C.A. § 2; United States v. Peoni, 2 Cir., 100 F.2d 401.

Attorneys may have an accurate idea what action constitutes aiding, abetting, counseling, inducing, or procuring. Counseling, in this context, means advising, or recommending. Although 'conspiracy' means a variety of things, see Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, concurring opinion, we real ze that the concept of at least implicit agreement may mark it somewhat apart from counseling, for example, or inducing. See Thomas v. United States, 10 Cir., 57 F.2d 1039, 1042; United States v. Mack, 2 Cir., 112 F.2d 290, 292.

Precise use of words is part of the lawyer's craft. But we expect too much of a juror when we ask him to make intelligent distinctions after a three-month trial and after instructions such as those I have quoted above-in an area of law which is difficult enough for the seasoned attorney. See United States v. Sall, 3 Cir., 116 F.2d 745, overruled in Pinkerton v. United States, supra.

In this case an intelligent verdict on the substantive counts seems scarcely possible. The jury may have used the proof of conspiracy as proof in itself of the other offenses-the substantive crimes of aiding or abetting fraud on the Government. As the Court interprets Pinkerton, it is beyond question that such use would be improper, without a warning that the substantive crime must be committed in furtherance of the conspiracy and as a part of it. We do not know, we cannot know, what evidence was determinative of guilt in the jury room.

An appellate court has no business deciding for itself that there is sufficient evidence to convict, when the triers of fact may have considered improper evidence their basis for the finding of guilt. The presence of proper evidence has no relevance whatever. At the very least, the judge should instruct the jury that there is a difference between the real participation contemplated in aiding or abetting, and the more remote plotting embraced by simple 'conspiracy,' United States v. Peoni, supra, 100 F.2d at page 402, although one may be both conspirator and abettor.

Guilt by association is a danger in any conspiracy prosecution. Its consequences are more serious when a substantive crime is also charged. But when the magic words 'counseling' or 'inducing' are injected to 'define' the substantive crimes, the danger and its consequences reach a new high. It is hard to assess the effect of a trial judge's charge upon a jury's unsophisticated belief in defendants' bad conduct. But it is our duty to do what we can by way of warning. Clarity is indispensable.

The guilt or innocence of Moncharsh and Nye & Nissen is relatively unimportant. The effect of today's decision on future trials, however, will be serious indeed. The Court gives further comfort to the dragnet theory of criminal justice. The judgment should be reversed. 

Notes