Nilva v. United States, 15224.

• Citation: 227 F.2d 74
• Decision Date: 21 December 1955
• Docket Number: No. 15224.,15224.
• Parties: Allen I. NILVA, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

227 F.2d 74 (1955)

Allen I. NILVA, Appellant, v. UNITED STATES of America, Appellee.

No. 15224.

United States Court of Appeals Eighth Circuit.

November 10, 1955.

Rehearing Denied December 21, 1955.

John W. Graff, St. Paul, Minn. (Hoffman, Donahue & Graff, St. Paul, Minn. on the brief), for appellant.

Oliver Dibble, Sp. Asst. to Atty. Gen. (Warren Olney III, Asst. Atty. Gen., and William R. Mills, Asst. U. S. Atty., Bismarck, N. D., on the brief), for appellee.

Before SANBORN, COLLET and VAN OOSTERHOUT, Circuit Judges.

Rehearing Denied December 21, 1955. See 228 F.2d 134.

COLLET, Circuit Judge.

Allen I. Nilva was convicted of criminal contempt and appeals.

In October, 1952, Elmo T. Christianson, Herman Paster and Nilva were indicted by a Federal Grand Jury for conspiracy to violate the Johnson Act, 15 U.S.C.A. § 1172, prohibiting the interstate transportation of gambling devices. That case will be referred to as the Christianson case. It was charged that the defendants and other coconspirators conspired to transport gambling devices into North Dakota where they were to be operated under the protection of Christianson, who was elected Attorney General of North Dakota in November, 1950, and assumed that office on January 2, 1951. The three defendants were tried in March, 1953. Nilva was acquitted. The jury failed to agree on the guilt or innocence of Christianson and Paster. The date for the retrial of the latter was first set for March 22, 1954, and later reset for March 29, 1954. It was the Government's theory, which it sought to establish at the first trial and was preparing to prove at the second, that one of the important incidents of the conspiracy was an executed plan to stock-pile a large number of gambling devices of the slot machine variety at St. Paul, Minnesota, in November and December of 1950 and the early part of 1951, to be moved into North Dakota where they were to be operated after Christianson became Attorney General. The Mayflower Distributing Company was a Minnesota corporation wholly owned and controlled by the Defendant Paster. Its principal place of business was at St. Paul. Through it slot machines were bought and sold. Paster and others not involved in the North Dakota case had been indicted, tried and convicted in the United States District Court of Minnesota for violation of the Johnson Act involving the transportation of slot machines into the State of Minnesota. Some of the records of the Mayflower Company had been used as evidence in that case. In the latter part of February, 1954, when preparations for the second trial of Christianson and Paster were being made, the Minnesota case was pending on appeal. See Nilva v. United States, 8 Cir., 212 F.2d 115. That part of the records of the Mayflower Company which was used in the Minnesota case was on file in the Court of Appeals.

In preparing for the second trial of the Christianson case, in the latter part of February, 1954, the Government obtained a subpoena duces tecum directed to the Mayflower Company for the production, among other things, of its records pertaining to the stock-piling of slot machines during the latter part of 1950 and the early part of 1951, and the sale and distribution of those machines. Another such subpoena was issued March 22, 1954. The return date of the subpoenas was March 29, 1954, the day the second trial of the Christianson case was set at Bismarck, North Dakota. March 29, 1954, the Mayflower records were not produced. Instead, Paster filed a motion to quash the subpoenas. The motion was denied and forthwith subpoenas were issued. Whereupon, Paster's counsel stated that the records called for in the subpoenas would be produced. The trial commenced the next day, March 30th, 1954. On the second day of the trial inquiry was made by Government counsel concerning the production of the records and assurance was given by Paster's counsel that they would be produced the next day — April 1, 1954. On April 1, 1954, Nilva appeared in response to the subpoenas. He was vice-president of the Mayflower Company, regularly employed by that company as its attorney and in a business capacity. He was Paster's brother-in-law and, as noted heretofore, a former defendant in the case. Nilva produced some of the records of the Mayflower Company at that time. While the records he produced showed the purchase of some new slot machines, there were no records produced of the purchase and stock piling of used machines. Nilva was sworn as a witness and examined concerning the existence of other records showing purchases of slot machines. He swore that he had made a diligent search of the Mayflower records and that the records he produced were all of the records of purchases except the records which were on file in the United States Court of Appeals in the Minnesota case. The following is an illustrative portion of his testimony:

"Q. Well, did the Mayflower Distributing Company purchase used slot machines during the month of January, 1951? A. Well, now, I can\'t state whether they did or not. That is a matter that is now involved in the Appellate Court of the Eighth Circuit. You don\'t want me to answer that. That\'s a matter that is on appeal now and I don\'t think it\'s proper for me to answer that.

"Q. Well, do the records of the Mayflower Distributing Company, Inc., show the purchase of secondhand slot machines during the month of January, 1951? A. Now, Mr. Dibble, the records with reference to that matter have all been subpoenaed and are in evidence in the Appellate Court.

"Q. Can you answer the question? A. Well, I just answered it to the best of my ability. Any records with reference to those purchases — they are substantial, sufficiently substantial, I can assure you and they are in the Appellate Court."

Being convinced that the foregoing, and other testimony to the same effect, was not true and that there were additional records called for by the subpoena, not on file in the Court of Appeals, and which showed purchases of used slot machines during the period under inquiry, Government counsel requested an order impounding the records, that Federal Bureau of Investigation agents assigned to the case be permitted to examine the records and that those which might be found and which had been called for by the subpoenas be brought into court. The order was granted. The next day, four F.B.I. agents commenced the examination of the records at St. Paul. Many records were found which had been called for by the subpoenas and which were not on file in the Court of Appeals in the Minnesota case. Among them were records showing the purchase by the Mayflower Company, of 198 slot machines, 16 in November, 1950, 94 in December, 1950, 81 in January, 1951, and 7 in February, 1951, whereas the records produced by Nilva showed the purchase of only 78 slot machines between September 20, 1950, and December 29, 1950. As to sales, the records produced by Nilva showed the sale of 64 slot machines between November 16, 1950, and December 28, 1950, and none after January 2, 1951, the effective date of the Johnson Act, whereas the records impounded disclosed the sale of 17 slot machines in November, 1950, 278 in December, 1950, 526 during January, 1951, and one in February, 1951. More than 40 of those shown by the impounded records to have been sold subsequent to January 2, 1951, and not shown in the records produced by Nilva, were sold in North Dakota.

The trial of the Christianson case proceeded, it being necessary, however, for the court to recess for a day to enable the agents of the F.B.I. to complete their examination of the impounded records. As the evidence developed, it appeared to the trial judge that Nilva had testified falsely and had failed to obey the subpoenas. On April 15, Nilva and the other attorneys in the Christianson case were called into the court's chambers and Nilva was instructed not to leave the jurisdiction of the court of North Dakota without permission. Since the Christianson case had not been concluded, the court impressed upon all present the necessity that the public and particularly the jury know nothing about any impending contempt proceeding against Nilva in order that the jury not be influenced thereby. At that time, on April 15, 1954, the court was informed in Nilva's presence that Nilva had consulted an attorney in St. Paul about the impending contempt proceedings.

In the course of the trial of the Christianson case, Agent Peterson of the F.B.I. prepared and testified from a memorandum he made from the impounded records which showed the slot machines purchased by the Mayflower Company during the period inquired of Nilva about on April 1, 1954. The testimony of Agent Peterson indicated the falsity of Nilva's testimony. Bearing upon the willfulness of Nilva's testimony and his knowledge of Mayflower's records, a former employee of Mayflower's, named James Christensen, testified in the Christianson case that shortly before the first trial of that case, when Nilva was a defendant, at Nilva's direction he, Christensen, a bookkeeper, deleted and falsified Mayflower's records in order to prevent those records showing two sales and deliveries of slot machines to North Dakota after January 2, 1951.

The jury returned a verdict of guilty in the Christianson case April 22, 1954. Thereafter, on April 23, 1954, the trial court issued an order under Rule 42(b) of the Federal Rules of Criminal Procedure¹ directing that Nilva appear on April 27, 1954, to show cause why he should not be held in criminal contempt for obstructing the administration...