Appeal from the District Court of the United States for the Eastern District of Pennsylvania; George A. Welsh, Judge.
Before MARIS, CLARK, and JONES, Circuit Judges.
The appellants and a number of others were indicted for conspiracy to violate the alcohol tax laws. After the arrest of the defendants and the termination of the conspiracy, one of the defendants, F. J. McMahon, while in the custody of government officers, signed a statement in which he confessed his own guilt and implicated a number of the defendants. Later McMahon pleaded guilty, while the appellants and certain other defendants who had pleaded not guilty went to trial. At the trial the Assistant United States Attorney proposed to have McMahon's statement read in evidence. The following colloquy, ruling and instruction to the jury then ensued:
"Mr. Serody: May it please the Court, I would like to object to the introduction of that statement at this time, in so far it is evidence solely against Mr. McMahon and can have no purpose in this trial, and for that reason I ask an exception to the introduction of anything contained in that statement.
"Mr. McCormick: The trial has not been completed. There are still defendants on trial. The statement is a necessary link in the production of the evidence showing the whole transaction. As long as there is one defendant here, I take it it is my duty to go on and prove a full conspiracy against that one defendant.
Mr. Serody: May it please the Court, it is impossible to conceive how a statement made by a defendant who has pleaded guilty can be used against other defendants, when that statement can't be evidence against anybody but the person who has entered the plea.
"Mr. McCormick: I haven't said that it would be. I said it was given just to prove a full conspiracy.
"Mr. Serody: Then it has no place in the case. A statement made by a defendant after the conspiracy is ended can not be used as proof of the conspiracy. It can only be used as proof of the participation of that defendant himself.
"Mr. McCormick: The statement may be corroborative of other evidence produced by other witnesses.
"The Court: Mr. Serody, I have known instances where persons have pleaded guilty to a conspiracy, and at the conclusion of the trial they have been acquitted because the evidence did not show a conspiracy. The entering of a plea of guilty from a conspiracy does not prove the conspiracy. For instance, now, suppose this case progressed and at the conclusion of the case the Government had not established a conspiracy. I would direct that Mr. McMahon's plea of guilty be withdrawn and he be permitted to enter a plea of not guilty and discharge him.
"Mr. Serody: But that doesn't change -
"The Court: Yes, but there has been a good bit of logic in your point. I see fully your point. If it was any other case except conspiracy, I would sustain your objection.
"Mr. Serody: That is a fundamental principle of law. The only case in which such a question can be raised is in a conspiracy case. If this was a trial for a substantive offense, there wouldn't be any necessity to even make an objection, but because a statement which is made by a defendant after the conspiracy is ended can only be used ...