United States v. Heike

• Decision Date: 14 February 1910
• Citation: 175 F. 852
• Parties: UNITED STATES v. HEIKE et al.
• Court: U.S. District Court — Southern District of New York

175 F. 852

UNITED STATES v. HEIKE et al.

United States Circuit Court, S.D. New York.

February 14, 1910

[Copyrighted Material Omitted]

The following is the substance of the plea in bar and of the government's replication thereto:

(1) That on June 17 and 21, 1909, there was a proceeding pending before the grand inquest of the United States for the Southern District of New York, brought under the Sherman anti-trust act.

(2) That on June 16, 1909, defendant was subpoenaed to appear before such inquest and testify concerning an alleged violation of such act by the American Sugar Refining Company and others, and to bring with him all records, etc., showing the minutes of the meetings of the executive committee of the board of directors of such company.

(3) That on June 18th defendant was commanded by subpoena to appear before such inquest to testify concerning an alleged violation of the Sherman anti-trust act by the American Sugar Refining Company on behalf of the United States, and to produce copies of all letters from the refining company, H O. Havemeyer, and the defendant to one Kissel during the years 1903 and 1909, inclusive, and by defendant to the firm of Parsons, Clossom & McIllvaine and John E. Parsons concerning a loan made by Kissel to one Segal on December 30 1903, and all deeds, evidences, and writings which defendant had in its custody concerning such premises.

(4) That defendant appeared before such inquest June 17 and 21, 1909, was duly sworn, examined, and gave testimony under oath, and produced and testified concerning documentary evidence, to wit, the letters, records, agreements, and memoranda called for by the subpoena, including checks of the American Sugar Refining Company of New York, signed by defendant as treasurer of the company.

(5) That under oath defendant testified that he was secretary and treasurer of the American Sugar Refining Company; was in charge of the records, books, and minutes of the company; that he testified concerning the incorporation, organization, and management of the company; its sugar importing business in the collection district of New York; its properties, refineries, etc.; and that all of such testimony related to the period included in the various dates mentioned in this indictment.

(6) That in that proceeding defendant testified and under oath produced evidence concerning the transactions, matters, and things set forth in the indictment herein, and for and on account of which this proceeding and prosecution is brought.

(7) That on December 1, 1909, there was a proceeding before the grand inquest in such district pursuant to the Sherman anti-trust act.

(8) That on November 29, 1909, defendant was subpoenaed to appear before such grand inquest and testify concerning alleged violations of the statutes of the United States by the American Sugar Refining Company of New York and to bring the books and records of such company.

(9) That in obedience to such subpoena defendant appeared and produced the documentary evidence required, and was examined and testified concerning the incorporation and organization of the American Sugar Refining Company; its properties and business conducted within the collection district of New York and defendant's position with the company; the actual production of refined sugar by each of the refineries owned by the company; the expense accounts, expense books, salary lists, etc.; raw sugar meltings of all refineries owned by the company from 1893 to 1907, inclusive; letters and tests relating to tests on importations; monthly and annual refinery expenses--expenses, etc., from 1904 to 1908, inclusive; statements of figures entering into the profit and loss accounts of the company; and certain resolutions authorizing expenditures on the company's behalf, and private letter books of the defendant relating to the period included within the dates mentioned in the indictment.

(10) That in such proceeding before the grand inquest, defendant testified orally under oath, and produced documents concerning transactions set forth in the indictment herein against defendant.

(11) That on January 5, 1910, there was a proceeding pending before the grand inquest for the Southern district of New York, brought under the Sherman anti-trust act, and that on that date defendant was requested by an Assistant United States District Attorney for the Southern district of New York to appear and attend forthwith before such inquest and testify concerning an alleged violation of such act; that defendant in obedience to such request appeared and was sworn and examined on oath concerning the output of the American Sugar Refining Company; its ownership of all sugar beet companies; the capacity and production of its refineries, and the contents of certain letters relating to the affairs and management of the companies-- all of which testimony related to the period including the various dates mentioned in the indictment.

(12) That in such proceeding before the grand inquest defendant testified orally and under oath produced documentary evidence concerning the transactions, matters, and things set forth in the indictment herein, and for and on account of which this proceeding and prosecution was brought against defendant.

(13) That defendant is ready to verify and prove the foregoing facts as the court shall direct and award, and therefore pleads the same in bar of any prosecution, trial, or punishment under such indictment, and says that to prosecute or punish him under said indictment, or for any alleged offense charged therein, or in any of the acts thereof, would be to deny the protection and immunity of the statutes of the United States in such case made and provided.

Wherefore, defendant prays that he may be discharged from further prosecution or punishment under said indictment.

To this plea was attached copies of the various subpoenaes served on defendant.

To this plea the government filed the following replication:

Denying that defendant orally or under oath produced documentary evidence concerning matters and things set forth in the indictment as in the plea alleged, and denying that defendant obtained immunity from prosecution by reason of his testimony before the grand inquest, and alleged:

(1) That the prosecution herein exclusively relates to customs' frauds, and that defendant had never been called before the grand jury which returned this indictment against him, nor before any grand jury considering any violations of the customs law, nor had he testified or produced documents before any such grand jury on that subject.

(2) That the proceedings in which defendant testified and produced documents were independent from that in which he was indicted, and were both proceedings arising under the Sherman anti-trust law. That none of the testimony given by defendant or the documentary evidence disclosed any facts which would form any part of an agreement punishable under the customs' laws.

(3) That defendant appeared in proceedings in no possible way connected with the proceedings herein, but that so independent were these proceedings that none of the law officers engaged in the present prosecution knew of the appearance of defendant before any of the grand juries until after the fact of such appearance was chronicled in the public press, and the evidence which defendant gave and the documents which he produced in such proceedings were entirely unknown to any of the law officers engaged in this prosecution until the plea herein was filed; that the transactions, matters, and things as to which defendant testified orally, and as to which he produced documentary evidence in the proceedings referred to in the plea, were not in fact known to any of the officers prosecuting in behalf of the United States in this case until after the plea filed herein, nor was any of the testimony which he gave, or the documentary evidence which he produced, made use of in any proceeding against him, or otherwise.

(4) In fact, as to none of the transactions, matters, and things set forth in the indictment herein, and for and on behalf of which this proceeding is brought against the defendant, did he testify or produce documents in the proceedings referred to in the plea, nor could the testimony which he gave, or the documents which he produced in such proceedings, form any part of the transactions, matters, or things which are the subject of this indictment.

(5) That heretofore in a proceeding which was begun in 1909 defendant was called as a witness in a proceeding brought by the United States against the American Sugar Refining Company of New York, involving the very frauds herein in question, and testified at length as to the transactions, matters, and things which are the subject of this indictment, and this without any claim that any such testimony would in any wise incriminate him, and without any claim of privilege with respect thereto.

The indictment charged four substantive offenses under section 5445, Rev. St. (U.S. Comp. St. 1901, p. 3678), and section 9 of the Customs Administrative act (Act June 10, 1890, c. 407, 26 Stat. 135 (U.S. Comp. St. 1901, p. 1895)), and conspiracy to defraud the Government and conspiracies to commit offenses under section 5440. The defendant filed a special plea in bar claiming immunity from prosecution of this indictment on the ground that he had heretofore been called before grand juries charged with investigating alleged violations of the Sherman anti-trust law (Act July 2, 1890, c. 647, 26 Stat. 209 (U.S Comp. St. 1901, p. 3200)), and in such proceedings had produced testimony and given evidence respecting transactions, matters, and things for which he is now being...