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BLACK, J., dissenting.
When the Government takes over a case like the one before us, the resulting confusion of issues is manifestly prejudicial to the defendant. Here for instance it can hardly be said that Rutkin was tried for tax evasion. Most of the 900 printed pages of oral testimony in the two weeks' trial are devoted to proof of things other than an attempt to evade the tax. Four pages deal with Rutkin's allegedly false 1943 tax return; three pages deal with the amount of tax Rutkin would have owed if he had received $250,000 more income than he actually reported; six pages contain testimony of Rutkin tending to show willful evasion of the tax laws so as to bring the case within Spies v. United States, 317 U. S. 492. A mere reference to the contents of the remaining 887 pages shows what a great threat there was that Rutkin would be convicted because he was a "bad man" ("scoundrel” to use the trial court's title) regardless of whether he was guilty or innocent of the tax evasion charged.
Most of the evidence dealt with the following aspects of Rutkin's past life and associations: Back in prohibition days Rutkin had joined one Reinfeld and others in a bootlegging scheme called the “High seas venture.” The organization made millions. About 1940, some time after prohibition ended, Reinfeld, apparently acting for the group, sold the business establishment for about $7,500,000 net. Reinfeld's accounting methods and management of the proceeds were not satisfactory to his associates. They claimed that Reinfeld held back more than his share of the millions. Reinfeld claimed that some of his former associates, including Rutkin, were "overdrawn” and entitled to nothing out of the $7,500,000. This quarrel went on for several years during which time Reinfeld was required to pay hundreds of thousands of dollars to former partners as a result of their claims that he had swindled them. Rutkin was one of them. Rutkin's $250,000 was paid to him by lawyers whose reputa
BLACK, J., dissenting.
tions seem to have been above reproach. It was paid openly. And it was some eight years later when Rutkin sued Reinfeld for more millions that Reinfeld, apparently for the first time, charged that Rutkin had extorted the $250,000 under threats of death. Yet he has been convicted here of federal tax evasion on the theory that he was guilty of the crime of "extortion." 6
From the beginning to the end the evidence in this case was devoted to showing the lawless life Rutkin, Reinfeld and their associates led from the 1920's to 1950, ranging from bootlegging to bribery to gambling. The charge of the court largely emphasized and reemphasized the iniquity of the criminal conduct shown by the testimony. Early in his charge the trial court told the jury:
"You are not deciding which is the bigger scoundrel, Reinfeld or Rutkin; they have both blandly admitted on the stand that they prostituted justice in this country; that they paid public servants to close their eyes to law violation, and that is a canker which eats away at the body public. But you are not passing upon respective degrees of scoundrelism between any two people. The bland way in which we were told that the Reinfelds and the Rutkins and the Zwillmans and all of the others prostituted justice should give us cause for pause, but we are not
passing on that question now.” In concluding his charge the trial court told the jury:
"The Government of the United States doesn't ask you to sacrifice anybody to prove its might. It asks you to do justice. That's all that Rutkin has a right to ask you to do, and that's what the government of the United States asks you to do. It asks you to
6 The majority leave me in doubt as to whether the "extortion" was a state or federal crime. See n. 5, supra.
BLACK, J., dissenting.
remember its rights too, remembering that unpunished crime, undetected crime, are threats to the majesty and dignity of our government; and that unpunished crime undermines our government. We all of us must do that which is our duty and do it
without fear or favor." My study of this record leads me to believe that the fantastic story of supposed extortion told here would probably never have been accepted by a jury if presented in a trial uncolored by the manifold other inflammatory matters which took up 887 of the 900 pages in this "tax evasion" case.
If we are going to depart from the Wilcox holding, I think this is a poor case in which to do so. I would reverse this judgment.
UNITED STATES v. HOOD ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF MISSISSIPPI.
No. 426. Argued March 4, 1952.-Decided March 31, 1952.
Appellees were indicted for violating 18 U. S. C. $ 215, which makes
it a misdemeanor for anyone to solicit or receive contributions in consideration of the promise of support or use of influence in obtaining for any person “any appointive office or place under the United States.” The trial court dismissed certain counts of the indictment which alleged the solicitation of contributions in return for promises to use influence to obtain offices which were not in existence at the time of the solicitation or the return of the indictment but which the President had been authorized to create under the Defense Production Act of 1950. Held: These counts should not have been dismissed. Pp. 149–152.
(a) Section 215 is broad enough to cover the sale of influence in connection with an office which had been authorized by law and which, at the time of the sale, might reasonably be expected to be established. Pp. 150–151.
(b) The doctrine that criminal statutes are to be strictly construed does not mean that they must be construed by some artificial and conventional rule; nor should there be read out of such statutes what as a matter of ordinary English speech is in them. P. 151.
(c) The construction here given 18 U. S. C. $ 215 does not offend the requirement of definiteness. Pp. 151-152. Reversed.
In a prosecution of the appellees for violation of 18 U. S. C. $ 215 and conspiracy, the District Court dismissed some counts of the indictment. The Government appealed directly to this Court under the Criminal Appeals Act, 18 U. S. C. $ 3731. Reversed and remanded,
Philip Elman argued the cause for the United States. Solicitor General Perlman, Assistant Attorney General
McInerney and Beatrice Rosenberg filed a brief for the United States.
Ben F. Cameron argued the cause for appellees. With him on a brief were W. S. Henley, Robert W. Thompson, Jr. and Albert Sidney Johnston for Brashier et al., appellees.
Opinion of the Court by Mr. JUSTICE FRANKFURTER, announced by THE CHIEF JUSTICE.
The defendants were charged in the District Court for the Southern District of Mississippi with a conspiracy to violate 18 U. S. C. (Supp. IV) $ 215 and numerous substantive violations of the same section. The law provides:
“Whoever solicits or receives, either as a political contribution, or for personal emolument, any money or thing of value, in consideration of the promise of support or use of influence in obtaining for any person any appointive office or place under the United States, shall be fined not more than $1,000 or im
prisoned not more than one year, or both.' The indictment charged a conspiracy to solicit contributions to the Mississippi Democratic Committee and to the defendants personally in return for promises to use influence to obtain for the contributors appointments in the Post Office Department and in the Office of Price Stabilization. Other counts of the indictment charged substantive violations. Material here are counts 31, 32, and 33 charging the solicitation by two of the defendants of three $300 political contributions from named individuals in return for the promise of support and influence on behalf of the contributors to secure for them appointments as Chairmen of the County Ration Boards of Pike, Amite
1 The statute was revised and amended in 1951 in respects not material here. 65 Stat. 320.