192 F. 83 (2nd Cir. 1911), 233, Heike v. United States

Docket Nº:233.
Citation:192 F. 83
Party Name:HEIKE et al. v. UNITED STATES.
Case Date:October 10, 1911
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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192 F. 83 (2nd Cir. 1911)

HEIKE et al.



No. 233.

United States Court of Appeals, Second Circuit.

October 10, 1911

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This cause comes here upon writ of error to review the judgments of conviction against plaintiffs in error. They were indicted together with Bendernagel, Walker, Voelker, and Halligan upon an indictment containing six counts. The first four charged that defendants 'did unlawfully and knowingly make and effect and aid in effecting' the entry of certain specified cargoes of raw sugar at less than their true weight. The fifth count charged that the defendants had conspired 'to defraud the United States' of lawful duties upon importations of raw sugar by effecting the liquidation of duties thereon at less than their true weight. The sixth count charged that defendants had conspired on March 1, 1907, "to commit offenses against the United States in and by knowingly making and effecting and aiding in effecting, at less than their true weights, and by means of false and fraudulent written statements as to said weights, entries of certain goods, wares, and merchandise," to wit, certain dutiable raw sugars which theretofore had been imported and thereafter were continuously to be imported into the Port and Collection District of New York. Of the overt acts set forth in the sixth count four only named Heike. They charged his indorsement of four checks from the United States to the American Sugar Refining Company, purporting to represent respectively an excess of deposits for duties on four different cargoes, but actually representing part of the duties then and there lawfully due to the United States upon these four cargoes.

Heike was secretary of the American Sugar Refining Company, which is a New Jersey corporation. He was also secretary and treasurer of the American Sugar Refining Company of New York. Gebracht was superintendent of the Havemeyer & Elder refinery. Bendernagel was cashier of the refinery. Walker was assistant superintendent of the refinery's docks. Voelker and Halligan were checkers on the docks.

In the course of the trial Walker, Voelker, and Halligan pleaded guilty. The jury found Heike guilty on the sixth count only, and Gebracht guilty as charged in the indictment, on all counts. They reported that they could not agree on a verdict as to Bendernagel.

George S. Graham and John B. Stanchfield (Charles H. Tuttle and William M. Parke, of counsel), for plaintiff in error Heike.

G. M. Mackellar, for plaintiff in error Gebracht.

Henry A. Wise, U.S. Atty. (Henry L. Stimson, Winfred T. Denison, and Felix Frankfurter, Asst. U.S. Atty., of counsel), for the United States.

Before LACOMBE, WARD, and NOYES, Circuit Judges.

LACOMBE, Circuit Judge (after stating the facts as above).

Heike filed a special plea in bar, upon which a trial was had and a verdict directed against him by the court. This will be first considered. It will not be necessary to go into the history of the plea nor to enumerate the various motions and exceptions by which it was presented. Suffice it is to say that the point relied upon by him was properly submitted, and the broad question whether upon the facts shown he was entitled to 'immunity' under the acts of Congress must be decided.

The Act of February 11, 1893, c. 83, 27 Stat. 443 (U.S. Comp. St. 1901, p. 3173), provides that no person shall be excused from attending and testifying or from producing books, papers, etc., before the Interstate Commerce Commission, or in obedience to the subpoena of the Commission, or in any cause or proceeding, criminal or otherwise, based upon or growing out of any alleged violation of the interstate commerce acts, 'on the ground or for the reason that the testimony, or evidence, documentary or otherwise, required of him, may tend to criminate him or subject him to a penalty or forfeiture. But no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing, concerning which he may testify, or produce evidence, documentary or otherwise, before said Commission or in obedience to its subpoena,' etc.

The Appropriation Act of February 25, 1903, c. 755, Sec. 1, 32 Stat. 904 (U.S. Comp. St. Supp. 1909, p. 1142), enumerates several statutes, including the Anti-Trust Act of July 2, 1890 (Act July 2, 1890,

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  1. 647, 26 Stat. 209 (U.S. Comp. St. 1901, p. 3200)), and provides that:

'No person shall be prosecuted or be subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he may testify or produce evidence, documentary or otherwise, in any proceeding, suit or prosecution, under said acts.'

This statute was amended by the Act of June 30, 1906, c. 3920, 34 Stat. 798 (U.S. Comp. St. Supp. 1909, p. 1168), by adding the provision that such 'immunity shall extend only to a natural person who, in obedience to a subpoena, gives testimony under oath or produces evidence, documentary or otherwise, under oath.'

On various dates in 1909 and 1910 certain grand jurors of the United States Circuit Court, Southern District of New York, were making inquiry into transactions of the American Sugar Refining Company. One branch of inquiry was in reference to the acquisition and closing up of the Pennsylvania Sugar Refining Company of Philadelphia, arising on the so-called Kissel-Segal loan. The details are sufficiently set forth in Pennsylvania Sugar Refining Company v. American Sugar Refining Company, 166 F. 254, 92 C.C.A. 318. These transactions were contended to be a violation of the anti-trust act. The other inquiry was also concerned with alleged violations of the same act. In the first of these inquiries a subpoena duces tecum was directed to 'Charles R. Heike, secretary of the American Sugar Refining Company,' and served upon him. By it he was summoned to testify and was ordered to bring with him all records of the company, etc., showing minutes of the directors' executive committee relative to the Kissel-Segal loan, and also minutes of the board of directors and all other evidences and writings in his custody concerning the premises. A second subpoena called for certain letters and press copies relating to these transactions. In the other inquiry a subpoena duces tecum was directed to 'Charles R. Heike, secretary of the American Sugar Refining Company, and secretary of the American Sugar Refining Company of New York,' and served upon him. By it he was summoned to testify and ordered to bring with him certain books and papers of both companies. He obeyed these subpoenas, testified before both these grand juries, and produced various records and papers of the two companies. The question now presented is whether the testimony which he gave and the production of the records and papers which he laid before the grand juries secure him immunity from this prosecution, which has nothing to do with the anti-trust act and is concerned only with certain frauds in connection with the weighing of dutiable goods, whereby the government was deprived of duties which it should have received.

The argument as to the precise measure of immunity secured by the statute has been quite extended and a construction of the act contended for which we do not find it necessary now to pass upon when the sum total of all that Heike testified to under these subpoenas is enumerated it seems to us to fall so far short of what the statute plainly contemplates that there is little left to be said.

He testified, of course, that he was the person to whom the subpoenas

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were addressed, secretary of the New York corporation and secretary and treasurer of the New Jersey corporation. The circumstances were well known when the subpoenas were prepared and addressed to him; he held these offices for many years; his official position was matter of record. To interpret the statute as securing immunity to an officer of a company for offenses committed while such officer, merely because he has stated under oath on some prior investigation that he was an officer, seems to us preposterous.

He testified as to the corporate history of the American Sugar Refining Company, of what prior concerns it was composed, and what refineries and other property it acquired, what stock (of its components) it exchanged its own for. But all this was merely a recital of what was disclosed by the books and papers of the corporation, which it had turned over through him to the grand juries themselves. Indeed, in these records and documents was the best competent evidence of its corporate history to be found; Heike's so-called 'testimony' as to these subjects was but the preparation of an index to what they disclosed.

He testified before one of the grand juries that four certain checks of the American Sugar Refining Company which represented the Segal-Kissel loan were signed by him as treasurer; he looked at the checks and testified that he wrote the signatures. This was testimony given under oath in obedience to a subpoena; but he was not prosecuted in this action, nor was it sought to subject him to any penalty for or on account of the transaction, matter, or thing concerning which he so testified. There was no question in this action of the Segal-Kissel transaction. The four overt acts charged under the sixth count related to his signature of four checks; but the government did not seek to use the Segal-Kissel checks to make proof of his signature to the others. It is conceded that his admitted handwriting on the Segal checks could not even be used as standards of comparison to establish the signature to ones referred to in the sixth count (...

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