(dissenting in part):
I dissent from that part of the decision which, after .reversing the conviction of the appellant Weinstein on Count VI of the indictment, remands the case to the District Court for a new trial on that count. In my view that count of the indictment should be dismissed.
I
The court’s opinion makes clear that, except for the testimony of the Deegans, Count VI would have had to be dismissed. The first ground of my dissent is that, in my opinion, the testimony of the Deegans was inadmissible.
The court’s opinion says, of the Deegans, “[W]e are shocked at the government’s treatment of them in its effort to get the testimony it wanted.” It recognizes that the long interrogation of Deegan in the-jail by F.B.I. agents when Deegan was under two indictments and was without counsel was a violation of Deegan’s constitutional rights, and that the statements and promises which the F.B.I. got out of Deegan would not have been admissible against him if the government had had to try him. The court’s opinion, after reciting the tactics by which the government got the Deegans’ evidence, says, “What we have already said indicates that we have grave doubts as to the Deegans’ veracity * *
When one -remembers that, in the numerous-cases in which admissions have been obtained, or other evidence has been obtained, by unconstitutional tactics, the courts have regarded the question of veracity as quite irrelevant, and have simply said that if the government gets evidence that way, it can’t use it, even though it is demonstrably true, one might expect that this court, in its statements which I have recited in the preceding paragraph, was leading up to some significant conclusion. But it was only leading up to the non sequitur that the evidence was admissible. The court disposes of the problem by saying:
“Every exclusionary rule, while it may be a barrier to deception in one case, may be a barrier to truth in another. We are reluctant to create a new one.”
The reaction of the prosecutors and police to this decision will be that it doesn’t hurt a bit. They were not bludgeoning Deegan to get evidence against Deegan. They already had plenty of evidence against Deegan. But as to Weinstein, they were away out on a limb. They had indicted him in January, without evidence. The trial was set for September 13 and it was now September 7 and they still did not have any evidence. By coercion and obviously implied inducements they got what they desperately needed, they were allowed to use it; it was, as this court says, the only evidence on which a conviction could have been based, and they got the conviction.
The court may be right in saying that to exclude this evidence would be to create a new rule of exclusion. But the philosophy and reason for the exclusion would not be new at all. If the courts assume -responsibility for saying to the prosecutors and police that if they get evidence by unconstitutional means they can’t use it in court, what possible difference does it make whether they use it against Deegan or against Weinstein ?
II
The court quotes its opinion in Haplan v. United States, 329 F.2d 561, 563, wherein the standard to be applied by the *323court in reviewing the evidence of a conviction in a criminal case is said to be “whether ‘reasonable minds could find that the evidence excludes every hypothesis but that of guilt.’ ” This means, of course, that the court assumes the task of appraising and weighing the evidence, as judges, and with the wisdom and experience of judges. It does not mean that the judges should try to assume the posture of lay jurors exposed to the conflicts and confusions of a long-drawn conspiracy trial of ten defendants, and to determine what mistakes on the part of the jury might be reasonably excusable in those circumstances. The judges are not exposed to those conflicts and confusions. They have the opportunity and the duty, in the course of a deliberate review of the evidence, to determine what part of the evidence has relevance to the charges against this one or that one or more of the ten defendants on trial in a case such as the instant one. Mr. Justice Jackson in his concurring opinion in the case of Krulewitch v. United States, 336 U.S. 440, 454, 69 S.Ct. 716, 723, 93 L.Ed. 790 said:
“A co-defendant in a conspiracy trial occupies an uneasy seat. There generally will be evidence of wrongdoing by somebody. It is difficult for the individual to make his own case stand on its own merits in the minds of jurors who are ready to believe that birds of a feather are flocked together.”
The court, in its opinion, shows no recognition of this important aspect of the instant case, or of the inherent danger of an unjust verdict. The evidence in the case showed that there had been much serious criminality in connection with these faked automobile accidents, and that this criminality had escaped detection for many months. The jury may well have concluded, as the Postal Inspector must have done, that since the other defendants were not very intelligent, there must have been a master mind, a Fagin, behind all this business. Weinstein was highly intelligent and experienced, he handled the personal injury claims of several of the criminals, he must have been the master conspirator. The jury would find it hard to believe what is easy for us to understand, that a lawyer does not, without reason, suppose that one who brings to his office what is represented to be a personal injury case is in fact a criminal who purposely injured himself in order to cheat an insurance company.
Ill
I shall now disregard the tactics by which the government obtained the testimony of the Deegans, and analyze that testimony to see what is really in it. The Deegans planned the accident, under the direction of George Barnard. He told all the intended participants that the police, the hospitals, the doctors and the lawyers were “fixed.” The collision occurred as planned. George Barnard told the Deegans to go to Dr. Davis and to Lawyer Weinstein. The morning after the accident they went to Dr. Davis. They told him they had been in an automobile accident, had been struck from the rear, and that their necks and backs were hurt. Dr. Davis examined them, treated them for the injuries which they said they had, did not accuse them of having injured themselves or of lying to him about their pains. Dr. Davis has not been charged with, nor suspected of, being in a plot to help the Deegans cheat an insurance company.
The Deegans went from Dr. Davis to Lawyer Weinstein. They told him the same things they had told Dr. Davis. He made -notes of their statements, and agreed to take their case. He is under indictment for having plotted with them to cheat an insurance company. The mere fact that Weinstein is a lawyer and Davis is a doctor can hardly be enough to make the difference between ordinary professional conduct, on the one hand, and criminality on the other. So we must look farther for evidence of Weinstein’s criminality.
Weinstein handled the Deegans’ cases routinely. There was no pressure for a quick Settlement, as if he suspected that *324investigation might undermine their claim. More than a year was spent in negotiation, the taking of depositions, examination by insurance company doctors, etc. During the more than a year between the accident and the settlement the Deegans, or one of them, was in Weinstein’s office about once a week inquiring about when they would get their money. During the constant contact between the Deegans and Weinstein, not once, according to the testimony of the Deegans, did Weinstein show any recognition whatever that the Deegans’ collision was a planned one. The Deegans were government witnesses, whose testimony had been obtained, as the court's opinion shows, by oppressive and illegal tactics, who, on the witness stand, were still completely at the government’s mercy, since they had not been sentenced on their pleas of guilty on the mail fraud charge and Deegan had not been tried on the intimidation charge. There is no possible reason why the jury, or this reviewing court, should disregard this important testimony of the Deegans. And it puts the government in the almost ludicrous position of charging Weinstein of plotting for more than a year with the Deegans to cheat an insurance company by means of a planned accident, and having the Deegans, as government witnesses, testify that it was their opinion that Weinstein was not aware that he was plotting with them. I suggest that this situation, if it is conceivable at all, is barely so, and that it is at the opposite pole from what a reasonable mind could find, beyond a treasonable doubt, to exist.
What I have discussed in the preceding paragraph is not mentioned in the opinion of the court.
It may be urged that, though proof of guilty knowledge on Weinstein’s part is absolutely essential to the government’s case, and though its own witnesses have strongly contradicted such proof, there must be, in the case, other cogent evidence to contradict the contradiction. But no one really claims that there is other cogent evidence. Looking farther, we find much evidence that Weinstein advanced money to the Deegans and some other persons guilty of the planned accidents, and repaid himself for the advances out of the settlements when they occurred. If we assume the very point which is at the heart of the case, i e., Weinstein’s guilty knowledge, then the advances were in furtherance of the plot, and were relevant. But unless we perform this perfectly boot-strap levitation, the advances prove exactly nothing. The evidence is clear and uncontradicted that in Portland at the time here involved it was customary for reputable lawyers, if they pleased and were able to do so, to advance money to personal injury clients on the security of their expected settlements. We saw that, in the case of Dr. Davis and Lawyer Weinstein, the difference between respectable professional conduct and criminality was the difference between being a doctor and being a lawyer. In regard to advances to clients, the difference becomes even less explicable. It is the difference between Lawyer Weinstein and all the other lawyers in Portland.
The court, ir¡, concluding that reasonable minds might find guilt beyond a reasonable doubt in the instant case, recites numerous instances of Weinstein’s advances to clients. I suggest, with deference, that "these instances are evidence of nothing whatever that is relevant.
My analysis of the Deegans’ testimony, up to this .point, seems to me to have left the government’s task of proving Wein-stein’s guilty knowledge of the planned accident a substantial distance below zero. So we are still on the lookout for cogent evidence. At this point I am reminded of the statement in the court’s opinion that “ * * * we have grave doubts as to the Deegans’ veracity * * I share those doubts, but I shall assume that their testimony is true, for the purposes of the discussion. They testified that Weinstein demonstrated to -them how to pretend that they could not bend more than a certain distance in various directions, when they were being examined by doctors. Our question is whether this testimony, if believed, would *325tend to show that Weinstein knew that the collision in which they took part was a planned accident. Would the fact that a lawyer would coach his clients who had been in a rear end collision and who had told him that they suffered invisible injuries to their necks and backs tend to show beyond a reasonable doubt, or to any degree whatever, that that lawyer knew that their collision was a planned collision? Does the fact that the injury which his client claims to have was received in a genuine accident rather than in a planned accident have any logical relation to what an unscrupulous lawyer would do in the way of illegally coaching his client? Would the fact that a lawyer had embezzled money from another client be admissible to show that, he plotted with this client to participate in a planned automobile accident?
Mr. Deegan testified that, within a day or two after the collision, Weinstein saw Deegan’s automobile, which was little damaged in the rear end, and told him to take the automobile out and bash it into a tree, which Deegan did. I shall here depart from my assumption that the Deegans’ testimony was true. Uncontra-dicted documentary evidence showed that ten days after the accident Weinstein ordered, from a commercial photographer who hurried to the scenes of accidents to take pictures to sell, a photograph of the Deegan car. It would have been unbelievably irrational for Weinstein to have done this if Deegan’s testimony were true. But taking it as true, what I have said above about coaching the Deegans for their medical examination would be applicable. It would be a case of exaggerating damage, and the fact that the collision had been planned or unplanned would have had no relevance.
Deegan testified that in 1960, which was two years after the accident, he told Weinstein that his, Deegan’s wife had indicated that she might "talk,” and he asked" Weinstein for advice and Wein-stein told him to get her out of town and at Deegan’s request loaned Deegan money for that purpose. Assuming the truth of this testimony, Weinstein must have known by that time that the Deegans were in serious trouble. It is not surprising that he would have known, since the investigation, involving a score or more of people, had been going on for some time. The Deegans had not been subpoenaed and were not under any legal duty either to confess their crime or to keep themselves available for questioning, and for Weinstein to tell Deegan that was neither criminal nor otherwise wrongful. But our question is whether his doing so is evidence that he was a participant with them in the crime which was under investigation. I suggest that, of itself, it is not evidence at all of anything but what appears on its face, that is, of advice to a client for the client’s benefit, unless the lawyer’s participation in the crime is proved by other evidence.
We look at Weinstein’s career and his character. He had started with nothing, had, solely by his own efforts, attained membership in the legal profession. His practice had become large and prosperous. It was the kind of practice in which, often in the earlier years, some lawyers do unscrupulous things in order to pay their bills and support their families. In spite of the zeal with which the government sought for evidence against Weinstein, it was unable to discover a whisper to discredit his character. Persons of unquestioned integrity and distinction were readily found who testified for him, and many others were similarly ready but were not heard because their testimony would have been cumulative. Then, we are asked by the government to believe, this man all at once became a contemptible scoundrel, soiling the robes of his honorable profession and the distinguished status which he had. achieved in it by becoming a common criminal, and putting in jeopardy every good thing which he had attained in his entire career. And all of this for what purpose? The only possible motive would have been avarice, a desire to have three more law-suits in his office. But he already had 106 law-suits in his office, and was having to refer some of them to other lawyers because he had too *326many. And was he supposed to have lost, in addition to all moral principle and sense of decency, also his common sense and judgment? What mature man of Weinstein’s intelligence and experience would have thought for a moment that this criminal conduct could have failed to be discovered or could have led to any financially profitable result? Each of 27 persons took part in the planning or execution of one or more of the harebrained exploits. In small groups they made their plans, usually over their drinks in taverns. It was inevitable that there would be, as there was, talk, investigation, and exposure.
I think the court’s treatment of the problem just discussed is not adequate. The court says, “And cupidity plays strange tricks upon probity, calculation and intelligence.” I think that when it is necessary to conjure up strange tricks, as in this matter of a catastrophic change of character, or to believe the almost unbelievable — that the plotters were not aware that they were plotting— the prosecution should have for counterweight to point to some solid evidence of guilt. In my opinion, it has presented no such evidence.