Yaselli v. Goff

Decision Date05 April 1926
Docket NumberNo. 248.,248.
Citation12 F.2d 396
PartiesYASELLI v. GOFF et al.
CourtU.S. Court of Appeals — Second Circuit

Ewing, Alley & Voorhees and S. Lawrence Miller, all of New York City (S. Lawrence Miller, of New York City, of counsel), for plaintiff in error.

Lee, Aron & Wise, of New York City (J. Harlin O'Connell and Harold G. Aron, both of New York City, of counsel), for defendants in error.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

ROGERS, Circuit Judge.

This writ of error is brought to review a judgment dismissing a complaint in an action for malicious prosecution.

The action was commenced against the defendant in the Supreme Court for the county of New York on April 21, 1922. The case was removed to the United States District Court for the Southern District of New York.

The plaintiff was Assistant United States Attorney for the Southern District of New York from October, 1914, to May, 1920, and from the date last named to 1921 was a Special Assistant United States Attorney for the same district. The defendant in 1921 was Commissioner of the United States Shipping Board, and prior thereto, and for some time thereafter, was chief counsel of the United States Shipping Board and Emergency Fleet Corporation at Washington, and on December 2, 1920, he was appointed a Special Assistant to the Attorney General of the United States and entered upon the performance of his duties as such.

In his complaint the plaintiff alleges that during all the times mentioned therein he was also president of the Italian Star Line, Inc., a corporation organized for the purpose of carrying on a general steamship business. The complaint states that on February 28, 1921, the defendant Goff, with certain other defendants, not now before this court, complained of the plaintiff before the grand jury in the United States District Court for the Southern District of New York, and falsely, maliciously, and without any reasonable or probable cause whatever charged plaintiff with having unlawfully, willfully, knowingly, corruptly, and feloniously combined, conspired, confederated, and agreed together with other parties named, together with the Italian Star Line, Inc., and divers other persons, to defraud the United States of America in connection with the purchase of the steamship Liberty Land, by the Italian Star Line, Inc., from the United States Shipping Board, which said charge so made by said defendants was wholly false and untrue, as they, the said defendants, then and there well knew.

It also states: Upon information and belief, that the defendants Goff and another, although attorneys and counselors at law, duly admitted to practice for upwards of 20 years, and although well versed in the law, and well acquainted with the rules of evidence and procedure in both civil and criminal cases, maliciously, willfully, and corruptly caused to be introduced and used before the aforesaid grand jury a great mass of false, misleading, incompetent, irrelevant, immaterial, and hearsay testimony and evidence respecting and regarding the aforesaid alleged charge then pending before the said grand jury, and thus unjustly, unfairly, and improperly influenced and poisoned the minds of the said grand jury against plaintiff and others. That defendant Goff and others named falsely and maliciously, and without any reasonable or probable cause, procured the said grand jury to find and present to the court an indictment against plaintiff and others for said alleged conspiracy to defraud the United States of America as above mentioned. That the defendant Goff and others named falsely and maliciously, and without any reasonable or probable cause, caused plaintiff to be taken in custody and brought before a judge of said court, and to be then and there compelled to give bond to appear for trial therein. That defendant Goff and others named falsely and maliciously, and without any reasonable or probable cause, procured plaintiff to be arraigned before said court and compelled him to plead to said indictment. That on the 6th day of December, 1921, said plaintiff appeared in the court and was duly tried upon said indictment. That after the prosecution had offered all its evidence, and rested its case, the court directed the jury to return a verdict of not guilty against plaintiff and all the other defendants, whereupon the jury rendered a verdict of not guilty against plaintiff and all other defendants, and thereupon defendant was duly acquitted and discharged. That the said indictment, charge, and prosecution, and each of them, was thereby wholly ended, determined, and terminated in favor of plaintiff. And damages in the sum of $300,000, together with the costs and disbursements of the action, are asked.

In his answer the defendant sets up that at all the times mentioned in the complaint he was acting as a special assistant to the Attorney General of the United States, and that all his proceedings were conducted by him in the due performance of his duties as such special assistant, and that he was appointed to assist in the investigation and prosecution of an alleged violation of the laws of the United States by the plaintiff.

The plaintiff thereupon filed a reply, which alleged on information and belief that prior to Goff's appointment he had conspired to prosecute the plaintiff maliciously and without cause, and as a step in furtherance of said plan confederated and agreed that defendant Goff would obtain an appointment as an assistant to the Attorney General for purposes of such prosecution, and that said defendants together would obtain the appointment of a receiver for the Italian Star Line, Inc., of which plaintiff was president, and thereby obtain inspection of papers and documents upon which to base such prosecution; that defendant Goff, in execution of said plan between himself and Conrad, who acted as his assistant and in conjunction with him in all of said matters caused it to be represented to the Department of Justice that the United States Shipping Board had evidence that the plaintiff and others had conspired to defraud the United States, which representation was false, and on the basis of such statement of alleged facts caused a request to be made to the Department of Justice for the appointment of defendant Goff as a Special Assistant Attorney General to prosecute the plaintiff and others, and that said request was made in bad faith, for the purpose of carrying out said conspiracy to prosecute plaintiff, and was not part of the duty of defendants to the United States Fleet Corporation, or to the United States Shipping Board; that, acting pursuant to said conspiracy, defendants Goff and Conrad caused a receiver to be appointed for said Italian Star Line, Inc., without cause, and upon false representations, and caused an assistant of said Goff and Conrad to be appointed receiver, and caused said receiver to seize and withhold, without right or color of right, personal papers, records, and files of the plaintiff, and known by said defendants and by the receiver to belong to him personally, and not to the corporation, and to permit defendants to inspect all of said papers, records, and files of the plaintiff for the purpose of said contemplated criminal prosecution, and that, although none of said papers, records, or files or other information disclosed any evidence of the commission of any crime by the plaintiff, defendants nevertheless continued said conspiracy and persisted in said purpose to have the plaintiff criminally prosecuted; that defendants Goff and Conrad bore malice to the plaintiff because of plaintiff's opposition to their efforts for the appointment of a receiver for Italian Star Line, Inc., and because of plaintiff's complaints concerning said Goff's and Conrad's actions in said matter, made to their superiors, and because of charges made by plaintiff that their conduct of the matter was not in good faith and was improper and unjust, and defendants Goff and Conrad each separately thereupon threatened to have the plaintiff put in jail, and all subsequent acts of the defendants described in the complaint were inspired by and were the result of such malice and ill will toward the plaintiff, and in execution of such threats and conspiracy, and were not done in discharge of, or as part of, any duty owed to the United States as an assistant to the Attorney General or otherwise, and that the obtaining of said appointment as assistant to the Attorney General by defendant Goff was a step taken pursuant to said conspiracy to accomplish the ends thereof, and for the purpose of using such appointment as a shield and cloak to protect the said defendant Goff in such course of action.

After the service of the reply, counsel entered into a stipulation for the purposes of the motion to dismiss, by the terms of which it was stipulated and agreed that the defendant Goff was duly appointed a Special Assistant to the Attorney General on the 2d day of December, 1920, pursuant to a letter of appointment reading as follows:

"Hon. Guy Goff, United States Shipping Board, Washington, D. C. — Dear Sir: You are hereby appointed a special assistant to the Attorney General, to assist in the investigation and prosecution of an alleged violation of the laws of the United States, by E. Paul Yaselli, Max Uhlin, James D. Butler, et al., and are hereby authorized to conduct grand jury and petit jury proceedings in the Southern District of New York, and the District of Columbia, and any other district in which the venue may properly be laid. You are to serve without compensation, other than that received by you as counsel for the United States Shipping Board. Please execute and return the enclosed oath of office.

"Respectfully "Signed A. Mitchell Palmer "Attorney General."

The stipulation further recited that defendant Goff thereafter accepted his appointment, took the oath of office, and appeared before the grand jury and presented evidence to it...

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    ... ... See Docket No. 9, ¶¶ 49, 55, 56, 58, and 61 ...         In Yaselli v. Goff, 12 F.2d 396 (2d Cir. 1926), aff'd, 275 U.S. 503, 48 S.Ct. 155, 72 L.Ed. 395 (1927), the Second Circuit Court ... Page 1102 ... of ... ...
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