Sinclair v. United States, 748

• Citation: 63 A.L.R. 1258,73 L.Ed. 938,279 U.S. 749,49 S.Ct. 471
• Decision Date: 03 June 1929
• Docket Number: No. 748,748
• Parties: SINCLAIR et al. v. UNITED STATES
• Court: United States Supreme Court

279 U.S. 749

49 S.Ct. 471

73 L.Ed. 938

SINCLAIR et al.

v UNITED STATES.

No. 748.

Argued and Submitted April 22, 23, 1929.

Decided June 3, 1929.

[Syllabus from pages 749-751 intentionally omitted] Messrs. George P. Hoover and Charles A. Douglas, both of Washington, D. C., and Martin W. Littleton, of New York City, for Sinclair and others.

Messrs. Daniel Thew Wright and Philip Ershler, both of Washington, D. C., for Day.

Mr. Owen J. Roberts, of Philadelphia, Pa., for the United States.

Mr. Justice McREYNOLDS delivered the opinion of the Court.

November 22, 1927, the United States, by their attorney, presented to the Supreme Court, District of Columbia, a written petition for an order requiring appellants Harry F. Sinclair, William J. Burns, W. Sherman Burns, and Henry Mason Day to show cause why they should not be punished for contempt of that court.

This petition alleged:

That on October 17, 1927, United States v. Harry F. Sinclair and Albert B. Fall, wherein the defendants were charged with conspiracy to defraud, came on for trial. Twelve persons selected as jurors were sworn at 12:20 p. m., October 18th, and thereafter the United States proceeded to present evidence. The jury was respited from day to day, until November 2d, when it was discharged and a mistrial entered because of charges of improper conduct by a juror, and proof showing that 'there were a large number of operatives of the William J. Burns International Detective Agency of New York, then engaged in the District of Columbia, since October 18th, 1927, in a close, intimate, objectionable, and improper surveillance and investigation of the jurors aforesaid and the relatives, neighbors, and friends of said jurors.'

That immediately after the jury was sworn Sinclair directed Day to engage the William J. Burns International Detective Agency, to receive reports therefrom and supervise the activities of its operatives for the following objects: 'To spy upon said jurors and each of them, to bribe, intimidate and influence said jurors and each of them, and to do anything calculated to interfere with and impede said jurors and each of them in the unbiased discharge of their duties in the trial of said cause, and to influence, pervert, impede, and prevent said jurors in the discharge of their duties as jurors, and to impede, pervert, and prevent the due administration of justice in said court in the trial of said criminal prosecution, either by corruptly influencing said jurors to decide the issues of said prosecution in favor of the defendants therein, or to disagree as to said issues, by unlawfully spying upon the said jurors and each of them for the purpose of concocting false charges against one or more of the said jurors, in case such a course should seem advantageous to said defendants in said cause, with a view of bringing about a mistrial of the cause aforesaid; or otherwise accomplish such purpose.'

That Day employed the agency through W. Sherman Burns, an officer then in New York. On the following day fifteen named operatives were assembled in Washington and assigned to spy upon, investigate, and shadow jurors. They continued so to do until November 2d.

That William J. Burns, then actively engaged in conducting the affairs of the detective agency, visited Washington October 12th, and 13th and arranged for the intended operations. November 3d he returned and, in pursuance of the general plan, procured a false affidavit concerning the conduct of Juror Glasscock which was presented to the trial judge.

That operatives and employees of the detective agency investigated incumbrances on the home of one juror also the affairs of his neighbors; made an investigation of the brother and father of another juror; and one of them (McMullin) falsely reported that Juror Glasscock was seen in conference with an attorney for the United States.

That the operatives reported daily to their superior officer, who disclosed the result to Day and Sinclair, the original reports being sent to W. Sherman Burns, New York City.

'That, at all times hereinbefore mentioned, each of the persons above named as respondents to this petition well knew all the premises aforesaid, and well knew that said criminal prosecution was being conducted in said court as aforesaid, that said prosecution was not finished, that said jurors were sworn jurors trying the issues in said cause in said court as aforesaid; that they the said respondents were not, as in fact they were not, called upon or authorized by said court, or by anybody in authority, to spy upon said jurors or any of them, or to bribe, molest, intimidate, or influence said jurors or any of them, or to do anything calculated to interfere with or impede said jurors or any of them in the unbiased discharge of their said duties, or to influence, pervert, prevent, or in any manner, or to any extent, impede, the due administration of justice in said court in the trial of said criminal prosecution, either by corruptly influencing said jurors to decide the issues of said prosecution in favor of the defendants therein, or to disagree as to said issues, by unlawfully spying upon said jurors or any of them for the purpose of concocting false charges against one or more of said jurors, in case such a course should seem advantageous to said defendants in said cause, with a view of bringing about a mistrial of the cause aforesaid.'

The rule issued. Appellants presented separate answers under oath.

The challenged the sufficiency of the petition to charge anything done in the presence of the court or near thereto which obstructed or impeded due administration of justice, or tended so to do. They denied any purpose to establish 'contact' between an operative and a juror, or that there was such contact; also any purpose to exert improper influence. They asserted the legal right under the circumstances to shadow jurors without contact; admitted employment of detectives who diligently followed the jurors while without the courtroom and made daily reports in respect of them.

The answer of William J. Burns stated that since August 1921, he had not actively directed the affairs of the detective agency, and was not aware until October 31, 1927, when advised by a newspaper correspondent, that it had been employed to shadow the jury. He admitted presence in Washington October 12 and 13, 1927, but denied that his visit had any connection with employment by Sinclair or his representatives. He also denied improper connection with the false affidavit concerning juror Glasscock by William J. McMullin, alias Long, also any association, directly or indirectly, with that operative until after the mistrial. And further: 'This respondent says that had his advice been sought upon the subject he would unhesitatingly have advised that such employment was a lawful and proper practice frequently followed by the Bureau of Investigation of the Department of Justice of the United States on behalf of the Government, as well as by private litigants, both plaintiffs and defendants, in instances where juries are not kept together during the trial of a cause.'

The answer of W. Sherman Burns admitted that he was secretary and treasurer of the detective agency and with his brother directed its operation; that on October 18th he accepted employment from Day to watch individual members of the jury and to report whether any person sought or established contact with them; but he averred that all operatives obeyed their strict instruction to do nothing calculated to interfere with or intimidate any juror. He denied that he procured the making of any false affidavit or was guilty of improper conduct. And further: 'If by the statement in said petition that 'they, the said respondents, were not, as in fact they were not, called upon or authorized by said court or by anybody in authority' to spy upon the said jurors or any of them, it is meant to charge or to imply that the right to exercise surveillance of a jury empanelled in any cause is a right reserved exclusively to, and one that can be exercised only by, the government of the United States or its prosecuting officers, this respondent is advised by counsel that there is no warrant in law therefor, and this respondent is further advised by counsel that the Agency and its officers and operatives were strictly within the letter and spirit of the law in accepting the employment hereinbefore described and defined, and in doing the work thereunder, and that no contempt of this honorable court was committed thereby.'

The answer of Harry F. Sinclair admitted that he authorized the employment through Day of operatives of the detective agency for the purpose of shadowing the members of the jury without establishing contact, and that some fifteen operatives were assembled in Washington on October 19th Who for a number of days thereafter kept the jurors under surveillance and made daily reports. He averred that he had cause to believe he had been under surveillance by representatives of the United States and feared efforts would be made unlawfully to influence the jury. Also that in the circumstances he rightly put the jury under observation. And further: 'Having in mind the matters and things herein set forth, and believing that in cases involving great public interest the government from time to time had kept jurors under surveillance during the time of such trials, and, entertaining such belief that the government of the United States had exercised such right and privilege, he believed that he, as a citizen of the United States, had the same right and privilege.'

The answer of Henry Mason Day admitted that by direction of Sinclair he engaged the services of the detective agency, supervised their activities, received their reports, and forwarded the same to Sinclair as deemed expedient. He alleged that he had reason to believe an attempt would be made unlawfully to influence the jury, and that he had the right to...