Latham v. United States

• Decision Date: 04 October 1915
• Docket Number: 2634.
• Citation: 226 F. 420
• Parties: LATHAM et al. v. UNITED STATES. [1]
• Court: U.S. Court of Appeals — Fifth Circuit

226 F. 420

LATHAM et al. v. UNITED STATES. ^[1]

No. 2634.

United States Court of Appeals, Fifth Circuit.

October 4, 1915

Wm. H Atwell, of Dallas, Tex., for plaintiffs in error.

James C. Wilson, U.S. Atty., and Wm. E. Allen, Asst. U.S. Atty both of Dallas, Tex., for defendant in error.

Before PARDEE and WALKER, Circuit Judges, and CALL, District Judge.

CALL District Judge.

On January 24, 1914, George B. Latham, Frank Flood, and J. H Terrill were, in the District Court for the Northern District of Texas, indicted in four counts, charged with devising a fraudulent scheme for obtaining money, etc., by means of the post office establishment of the United States, acting under the names of the Terrill Medical Institute and the New Method Treatment Company.

On January 30, 1914, a motion to abate the indictment was made. This motion was denied, and subsequently a motion for continuance was granted Terrill, and Latham and Flood put on trial and convicted. These latter sue out writ of error, and assign as error the action of the court in denying the motion to abate, and is contained in the twenty-second assignment of error, as follows:

'The court erred in overruling defendants' motion to abate, because, from the said motion and by the testimony taken thereunder, it was clearly shown to the court that an unauthorized person was present in the grand jury room during the taking of testimony by that body relating to this indictment.'

This assignment must be disposed of at the threshold of the case. If it is well taken, it disposes of this writ of error, and any decision on the other assignments would be obiter.

The testimony contained in the bill of exceptions shows that one Lantz, who was a clerk in the office of the district attorney, and an adept stenographer, after having subscribed an oath before the clerk of the court to keep secret the proceedings of the grand jury, at the instance of the district attorney, was present in the grand jury room and taking stenographic notes of the testimony of witnesses examined by the grand jury in investigating this case, and upon which testimony the indictment in this case was found. The question of whether the presence of this unauthorized person in the grand jury room during the investigation by them of this case is good ground to abate and quash the indictment found is squarely presented to this court.

The decisions of the courts on this question are not uniform. Different courts have taken different views on this question. From very early times the proceedings before the grand jury, in taking testimony and in deliberating thereon, are required to be held in secret. It is a rule of universal application wherever the system of grand juries are in effect. Wigmore on Evidence, Sec. 2360 et seq.; Greenleaf on Evidence, Sec. 252 et seq. This rule rests upon public policy and in furtherance of justice. It is intended for the protection of the government and the citizen. The rights thus secured cannot be invaded without detriment to each. The cases where this rule may be waived by the courts are well defined, and are based upon sound principle.

Mr. Greenleaf and Mr. Wigmore discuss the reasons for the rule, and in Wigmore will be found an instructive and interesting discussion of the reasons for, and the history of, the rule, as well as the circumstances under which courts may waive its requirements and permit those proceedings to be disclosed. The statutes of the several states recognize it, both by prescribing the oath to be taken, and by providing what persons, other than the grand jurors and the witness being examined, may be present, during such examination.

We may start, then, with this rule firmly imbedded in our jurisprudence. And it must be maintained until the legislative branch of the government sees fit to change it. Judge Bellinger, in the Edgerton Case, says:

'It is beyond question that no person, other than a witness undergoing examination and the attorney for the government, can be present during the sessions of the grand jury.'

And, further, he says:

'There must not only be no improper influence or suggestion in the grand jury room, but, as suggested in Lewis v. Commissioners, 74 N.C. 194, there must be no opportunity therefor. If the presence of an unauthorized person in the grand jury room may be excused, who will set bounds to the abuse to follow such a breach of the safeguards which surround the grand jury. ' United States v. Edgerton (D.C.) 80 F. 375.

In that case the unauthorized person was an expert, but on principle the difference in occupation could scarcely be material. Judge Thomas, in the Rosenthal Case, refers with approval to the Edgerton Case, and, after an exhaustive and learned discussion of the rule, has this to say:

'The inconvenience of resubmitting the matter to the grand jury is temporary; the injustice of denying the defendants investigation pursuant to the law of the land would be perpetual. ' United States v. Rosenthal (C.C.) 121 F. 862.

In this case the person before the grand jury was a lawyer acting under instructions from the Attorney General. No improper conduct charged and no claim of improper evidence produced before the grand jury. It was prior to the act of 1906, empowering the Attorney General and certain persons at his request to appear before the grand jury. His presence and participation in the proceedings before the grand jury was held to invade the rights of the defendant, and the indictments were quashed. In United States v. Virginia-Carolina Chemical Co., (C.C.) 163 F. 66, the Rosenthal Case was followed, and the indictment quashed.

United States v. Heinze (C.C.) 177 F. 770, was another case of an expert before the grand jury, under a special appointment by the Attorney General, to aid the district attorney. The indictment was quashed. Judge Hough in that case says:

'If there be a settled method of conducting the deliberations of grand jurors, established by generations of procedure, based on the experience of many courts in many communities, and evidenced by the decisions of authoritative tribunals, such method must be followed until the Legislature sees fit to overturn the old rule.'

In the cases of United States v. Rubin (D.C.) 218 F. 245, and United States v. Phila. & R. Ry. Co. (D.C.) 221 F. 683, the courts quashed the indictments because of the presence of stenographers in the grand jury room. The case of United States v. Wm. Rockefeller et al. (D.C.) 221 F. 463, was commented upon by Judge Thompson in the Phila. & R. Ry. Co. Case, and the reasoning of Judge Sessions in the Rockefeller Case to some extent criticized. Judge Sessions says: 'It seems to me that, if the testimony given before the grand jury may not, under any circumstances or conditions, be made a matter of record and reference, we are opening the door very wide, and inviting, not only perjured and incompetent testimony, but even gossip and conjecture, before the grand jury. * * * And, if no safeguards are provided, many witnesses may be influenced or persuaded or induced to indulge in statements and accusations which ought not to be permitted or tolerated.'

Judge Thompson pertinently remarks:

'If a record is to be kept of the proceedings before the grand jury upon those grounds, it should be equally open to the defendant and to the government.'

And Judge Hough's language in the Heinze Case, above referred to, is equally pertinent:

'If there be a settled method of conducting the deliberations of grand jurors, established, * * * such methods must be followed until the Legislature sees fit to overturn the old rule.'

In 1906 Congress had this whole matter before it, when the act allowing certain persons to participate in proceedings before grand juries was passed, and the discussions on that act will show that the rule, as established by the decisions in several cases referred to, was recognized. Had Congress so desired, a record of the proceedings before grand juries could and would have been authorized under proper precautions.

It seems to me that the reasoning of Judge Sessions is faulty in many respects. How would the presence of a stenographer, and the fact that he was taking down the testimony of the witnesses, discourage perjury? How would it prevent incompetent testimony, or even gossip and conjecture, or how would it prevent witnesses...