Before GOODRICH, McLAUGHLIN and O'CONNELL, Circuit Judges.
This is a war frauds case.The defendant was indicted and convicted on six counts for conspiracy and substantive offenses.*fn1 Upon appeal he makes several points.
1. The Trial Court's instruction concerning codefendant. Defendant was originally indicted with one, John F. McLaughlin. Immediately before trial McLaughlin pleaded nolo contendere. After the Trial Judge had charged the jury, the defendant's counsel asked him to give an instruction "* * * that the fact that McLaughlin pled guilty is not to be considered by the jury as any evidence whatsoever in determining whether or not Mr. Toner is guilty." The Trial Judge said: "The fact that Mr. McLaughlin pled guilty is not evidence against Toner, but the jury can take into consideration that one two co-conspirators did plead guilty and make such use of it as they see fit. That is where the American common sense comes in. I won't define any further what they can do and cannot do with that kind of evidence."
The Government makes the point that the defendant's request was not timely. That point is irrelevant here. A request to charge on this particular issue was made to the Judge and he complied with the request. The present question is whether the instruction he gave was right.
We think it was error and the type of error which was calculated to mislead the jury, and in fact must have misled them if they paid attention to what the Judge told them. It is argued that we must consider the charge as a whole. Of course we have. It was carefully prepared and covered the ground thoroughly. But this particular instruction came after the general charge had been given and in response to a particular request. The first part of the statement is right. But after the entirely correct charge had been given, the remainder of the instruction was inconsistent with what was first said and gave the jury leave to consider McLaughlin's guilty plea in any way it pleased, subject only to the limits of "American common sense".
From the common sense point of view a plea of guilty by an alleged fellow conspirator is highly relevant upon the question of the guilt of another alleged conspirator. If A's admission that he conspired with B is believed, it is pretty hard to avoid the conclusion that B must have conspired with A. This is one of the cases, therefore, where evidence logically probative is to be excluded because of some countervailing policy. There are many such instances in the law. See 4 Wigmore, Evidence § 1171 et seq. (3d ed. 1940).
The foundation of the countervailing policy is the right of every defendant to stand or fall with the proof of the charge made against him, not against somebody else. Acquittal of an alleged fellow conspirator is not evidence for a man being tried for conspiracy.*fn2 So, likewise, conviction of an alleged fellow conspirator after a trial is not admissible as against one now being charged.*fn3 The defendant had a right to have his guilt or innocence determined by the evidence presented against him, not by what has happened with regard to a criminal prosecution against someone else.*fn4 We think that the charge given upon this point was contrary to that rule and inadvertently, of course, deprived the defendant of a very substantial protection to which he was entitled.
This proposition is sufficient to require a reversal. But since other points are raised by the defense and since at least some of them will almost inevitably arise upon retrial we discuss them briefly here.
2. Admission of extra-judicial statements as evidence. The defendant complains of admission in evidence of two statements made by the witness (and original co-defendant) McLaughlin to agents of the F.B.I. The subject was opened by defense counsel, after he had requested and obtained production of the statements, in his cross-examination of McLaughlin. McLaughlin had testified on direct examination that he turned over to the defendant some of the pay envelopes which were made out in false names. In his cross-examination at the trial McLaughlin testified that he had made a false statement to the F.B.I. on December 2, when he said he had turned over to the defendant all of the pay envelopes made out in false names. He testified further (still on cross-examination) that on December 11 he returned to the F.B.I. and made another statement to the effect that he had turned over to the defendant only some of those pay envelopes and kept the rest. McLaughlin admitted expressly that he had perjured himself in making the statement of December 2. The United States Attorney then submitted both statements in evidence. The Trial Judge admitted them over objection. He charged the jury that they were not to be used as evidence against Toner and limited their use "* * * to see whether or not he [McLaughlin] did contradict himself or whether or not he can be believed as a witness in this case, * * * it is only to impeach or support the truthfulness of the witness on the stand."
We think the documents were improperly admitted even though their use was limited by the twice repeated caution the Judge gave the jury. McLaughlin had already admitted several times that he had lied in his statement of December 2. The statement of December 11 could only serve to show that he said the same thing then as he said at the trial, i.e., that he turned over some (instead of all) of the pay envelopes to Toner. A prior consistent statement by a witness adds nothing to the probative value of his testimony at the trial. 2 Wigmore, Evidence § 1125 (3d ed. 1940). If McLaughlin told the truth at the trial he may very well have told it December 11. If he lied at the trial his statement of December 11 only shows that he lied consistently.
Moreover, as to the conduct of the defendant both statements were hearsay. They contained complete narratives of what McLaughlin said to an investigator was Toner's conduct in connection with false payroll numbers. The only substantial difference between them concerned the single question whether McLaughlin had turned over all or only some of the envelopes to the defendant. Under these circumstances the submission of both statements to the jury could only have the effect of supporting twice over in writing the oral testimony at the trial concerning Toner's alleged payroll padding activities. They should not have been admitted.*fn5 We need not decide whether their admission under the limitation placed on their use by the court would alone be sufficient to establish reversible error for we have already pointed out our reasons why there must be a new trial.
3. Privilege against self-incrimination and the right to cross-examination. This point is the most interesting legal one presented by the appeal. The prosecution called a witness named McCarthy who had been engaged in the same enterprise with which McLaughlin and the defendant were associated. McCarthy came in by subpoena. He responded to questions asked by the prosecutor. When the defendant's counsel took the witness for cross-examination he answered some of the questions asked him but others he refused to answer on the ground that to answer would tend to incriminate him. The Trial Judge sustained the witness in this refusal.
Defendant says this deprived him of his constitutional right to cross-examine. He says that McLarthy, having given his testimony for the prosecution, should have been compelled to have his credibility tested by searching cross-examination, and this cross-examination could not proceed when the witness put ...