John Marshall Harlan II

“ Plainly the offer of immunity contained in the voluntary disclosure policy presupposed, at the very least, that a delinquent taxpayer would make a full 'clean breast of things.' 355 U.S., at 235, note 2, 78 S.Ct., at 248. Nothing less satisfies the basic reason for the policy-'taking a sensible step to produce the revenue called for by law with the minimum cost of investigation' [6] (emphasis added) and its most recent official expression at the time this disclosure was made. [7] And the record indeed shows that petitioners could not have understood otherwise. ”

“ The cornerstone of petitioners' argument is a statement made by the District Court in the course of its suppression opinion: '* * * that Lubben may have exaggerated the amounts of the payments that he and his confederates made to Shotwell is entirely probable.' This statement is sought to be portrayed as a euphemism for a finding that Lubben's trial testimony was perjurious. ”

“ It is of course a constitutional principle of long standing that the prosecution 'must establish guilt by evidence independently and freely secured and may not by coercion prove its charge against an accused out of his own mouth.' Rogers v. Richmond, 365 U.S. 534, 541, 81 S.Ct. 735, 739, 5 L.Ed.2d 760. We have no hesitation in saying that this principle also reaches evidence of guilt induced from a person under a governmental promise of immunity, and where that is the case such evidence must be excluded under the Self-Incrimination Clause of the Fifth Amendment. ”

“ Beyond this, had petitioners been able to convince the Treasury that Shotwell's failure to report the black-market receipts had been due to an honest, though mistaken, belief that such income could be offset by black-market expenditures, it might well have borne importantly on their liability for civil fraud penalties. Int.Rev.Code, 1939, § 293 (b) . [5] In short, in making their suppression contention petitioners cannot escape the consequences of the finding that their disclosure was fraudulent. ”

“ The individual petitioners, Cain and Sullivan, were officers of Shotwell, a candy manufacturer. The charge was that the company's tax returns for these years had not reported substantial income, received from one Lubben, on sales of candy above OPA (Office of Price Administration) ceiling prices-so-called black-market sales. ”

“ On appeal the convictions were reversed and a new trial ordered by a divided Court of Appeals on the ground that the District Court should have ordered suppressed certain evidence, used at the trial, which petitioners had furnished the Government in reliance on the Treasury's then 'voluntary disclosure policy.' 225 F.2d 394. In substance that policy amounted to a representation by the Treasury that delinquent taxpayers could escape possible criminal prosecution by disclosing their derelictions to the taxing authorities before any investigation of them had commenced. ”

“ We think the District Court was fully justified in finding that Huebner's testimony 'at the supplemental hearing is reasonably consistent and compatible with the testimony given by the government witnesses at the trial regarding these (black-market) payments,' and that it 'tends to corroborate Lubben's testimony.' [16] Such findings, made as they were in connection with what in effect was a motion for a new trial on newly discovered evidence, must 'remain undisturbed except for most extraordinary circumstances.' United States v. ”

“ The evidence held subject to suppression consisted of tabulations purporting to show the amount of unreported black-market income received by Shotwell from Lubben during the two tax years in question, and offsetting black-market payments by Shotwell for the purchase of raw materials which almost matched the black-market receipts. ”

“ Were that so a new trial might well be in order, as the Government acknowledges, for Lubben was undoubtedly a crucial government witness. But the record both demonstrates the hollowness of that contention and affords no other basis for disturbing the conclusions of the two lower courts that these petitioners are not entitled to a new trial. ”

“ Shortly after it was given, the court proceeded to charge:
'Any statement or act of any of the defendants not in the presence of another defendant is not binding upon the absent defendants, even though one or more of the defendants were mentioned in the converstaion, nor are such matters competent evidence against any other defendant not present. ”

“ And the District Court plainly found that the course and nature of the disclosure had been deliberately misrepresented by petitioners in significant respects at the earlier suppression hearing. [20] On the other side of the coin the District Court. after full and painstaking consideration, found that the facts, except in one particular, were as anticipatorily represented in the Government's remand papers, and that Huebner, Graflund and Lima (note 19) had testified honestly. [21] It is certainly not for us to reassess their credibility. ”

“ State v. Weleck, 34 N.J.Super. 267, 112 A.2d 23. Yet, so far as this trial is concerned, a vigorous cross-examination of him, to the tune of some 300 pages of the printed record, evidently failed to shake his credibility in the estimation of the jury.↑ At the oral argument petitioners' counsel of course disclaimed any intention of implicating the then Solicitor General, and we presume the members of his staff, in these accusations of wrongdoing.↑ The witnesses were Graflund, Shotwell's comptroller, Huebner, and Lima, a former revenue agent. ”

“ We cannot so hold.
Petitioners next argue that the remand proceedings were the product of fraud and other gross improprieties on the part of the Government and that they should therefore be held for naught The contention has three aspects: (1) that the Government did not disclose to this Court that the testimony of three witnesses proffered in support of its motion to remand was contrary in some respects to that which they had given, or failed to give, on previous occasions ”

“ Consequently, it is perfectly understandable that when a witness like Huebner attempts to recount the some sixteen instances when he received substantial sums of money on behalf of Shotwell as over-ceiling payments on↑ In addition, petitioners' 'Supplement To Motion For New Trial' alleged nine further grounds for a new trial, only one of which (the overruling of their challenge to the indicting grand jury array) is pressed here. ”