Edwards v. United States

• Decision Date: 03 March 1941
• Docket Number: No. 377,377
• Citation: 85 L.Ed. 957,61 S.Ct. 669,312 U.S. 473
• Parties: EDWARDS v. UNITED STATES
• Court: U.S. Supreme Court

312 U.S. 473

61 S.Ct. 669

85 L.Ed. 957

EDWARDS

v UNITED STATES.

No. 377.

Argued Feb. 12, 1941.

Decided March 3, 1941.

Mr. J. Forrest McCutcheon, of Dallas, Tex., for petitioner.

Mr. Richard H. Demuth, of Washington, D.C., for respondent.

Mr. Justice REED delivered the opinion of the Court.

This case is here upon affirmance by the Circuit Court of Appeals of a sentence imposed after a plea of nolo contendere.¹ We granted certiorari, 311 U.S. 632, 61 S.Ct. 51, 85 L.Ed. —-, because there were involved certain important questions of criminal procedure, especially with respect to a plea in bar filed by petitioner. That plea claimed immunity from prosecution because of prior incriminating testimony given under compulsion by the petitioner at an investigation conducted by the Securities and Exchange Commission.

The indictment against petitioner, in eleven counts, arose out of an alleged fraudulent scheme for selling in- terests, created by him as a part of the device, in various oil and gas leases in Oklahoma and Texas. The first three counts charged violations of the fraud provisions of the Securities Act, 15 U.S.C. § 77q(a), 15 U.S.C.A. § 77q(a); the fourth and fifth, violations of the registration provisions of that Act, 15 U.S.C. § 77e, 15 U.S.C.A. § 77e; counts six to ten, violations of the mail fraud statute, 18 U.S.C. § 338, 18 U.S.C.A. § 338; and the eleventh count, a conspiracy to commit the offenses previously set forth.

On December 16, 1938, petitioner filed a demurrer, attacking the legal sufficiency of the indictment on a number of grounds. At the same time he filed a 'Plea in Bar and Application for Production of Transcript of Evidence.' The substance of this plea was the following: That on April 14, 1938, and two successive dates, pursuant to subpoenas duces tecum, petitioner had appeared before an officer of the Securities and Exchange Commission with the books and records called for, and 'after having claimed his immunity against self incrimination, as provided by law and the Constitution of the United States, under compulsion, testified under oath, pursuant to various questions propounded and asked him by said officer of said Commission, said testimony concerning said defendant's identity and relationship to various trusts and organizations which are the subject matter of this prosecution and concerning divers and sundry other matters pertaining to the matters which are the subject of this prosecution, and particularly to the personal entries, books and records of said defendant, which are a part of the subject matter of this prosecution.' The pleading goes on to state, upon information and belief, that the evidence adduced by the Commission in the course of its investigation was transmitted to the Attorney General for criminal prosecution; that petitioner was compelled to give information and testimony 'which it is believed the Government will use against him in the prosecution herein'; and that petitioner was accordingly immune from prosecution under Section 22(c) of the Securities Act.² Petitioner further set forth that at the time of the Commission hearings he had demanded a copy of the transcript of his testimony, offering to pay the cost thereof, but that the request had been refused; that on December 1, 1938, he had made a similar request, which also had been refused, as evidenced by an attached letter from the assistant general counsel of the Commission.³ Petitioner renewed his demand and tender of payment, asserting that it was necessary for him to have the transcript in the presentation to the court of his plea in bar, and that it was necessary for the court to have it before passing on the plea. The pleading concludes by pray- ing the court to order that the transcript be furnished petitioner and that he be heard on the merits of this plea in bar.

On February 28, 1939, the Government filed a pleading called a 'Motion to Strike Plea in Bar and Objection to Production of Transcript of Evidence.' This attacked the sufficiency of the plea in bar on its face in three different respects, and also alleged in the nature of an answer that petitioner 'was never sworn at any time during the proceedings or hearings complained of and at no time produced any books or records, and did not at any time testify under oath, and was never compelled to testify or give any information against himself of anyone else under oath or otherwise and that each of said hearings complained of was recessed shortly after the defendant interposed his plea of immunity.' In support of this last allegation the Government attached an affidavit of an attorney of the Securities and Exchange Commission who had been present on all three occasions when the petitioner claimed to have given incriminating testimony under compulsion.

Petitioner moved to strike this affidavit of the Commission attorney on the ground that it deprived him of his right to cross-examination and that it was 'wholly incompetent to establish the facts attempting to be established.'

The District Court overruled petitioner's demurrer to the indictment, his plea in bar and application for the transcript, and also his motion to strike the affidavit of the Commission attorney. An affidavit later filed by the Government in the Circuit Court of Appeals shows that at this hearing on petitioner's plea in bar 'counsel for the government of the United States stated to the Court that they had the transcripts of the record in the proceedings * * * and if the government's affidavit was not sufficient, the government would offer them in evidence if the Court desired to examine them; that upon being so advised, His Honor, Judge Vaught, stated that he did not care to see the transcripts, that he did not need them to pass upon the said plea in bar, and that he was going to overrule the defendant's plea in bar.' The Government's motion to strike the plea in bar was overruled, also. Subsequently petitioner withdrew his original plea of not guilty,⁴ and entered a plea of nolo contendere. The District Court sentenced him to three years on each count, the terms to run concurrently. On appeal petitioner assigned as error the action of the District Court in overruling his demurrer and plea.

When the case was argued before the Circuit Court of Appeals the Government submitted, over petitioner's objection, a copy of what it said was a transcript of petitioner's testimony before the Securities and Exchange Commission, supported by an affidavit of the assistant United States attorney in charge of this prosecution. The transcript was offered to buttress the Government's contention that petitioner had in fact given no testimony of an incriminating nature, but the Circuit Court of Appeals did not rest its affirmance even in part upon the contents of the transcript.

The court affirmed because the plea in bar did not allege that the claim of immunity was made in a 'hearing' of the Commission as distinguished from an 'investigation' and because no evidence was produced by petitioner in support of his plea. As to the demurrer to the indictment, the Circuit Court of Appeals found no error in omitting from the conspiracy count allegations that the classes of securities involved in the alleged frauds were not in the excepted categories of securities in section three of the Securities Act, 15 U.S.C.A. § 77c. This was the sole ground of petitioner's attack on the conspiracy count. In the belief that a sentence on this count, to run concurrently with equal sentences on the other counts, made it unnecessary to examine the other counts,⁵ the court did not examine the sufficiency of the other counts.

Petitioner urges as grounds for our reversal of the judgment below the errors in overruling his plea in bar and demurrer, in affirming a sentence of three years on the conspiracy count of the indictment without examination of the other counts, and in receiving the transcript of testimony before the Commission and accompanying affidavit as evidence.

Plea in Bar. The Government challenges the sufficiency of the plea in bar to show petitioner's claim to the benefit of the amnesty of Section 22(c). It suggests that the excerpt set out in the third paragraph of this opinion shows only that testimony was given concerning 'defendant's identity and relationship' to the organizations whose securities the indictment charges defendant fraudulently sold; that 'other matters' testified to are not specified nor the 'nature' of the testimony concerning them or his personal records. But the allegations of the plea are not to be weighed separately. Petitioner's identity and his relationship to the trusts alleged to have been created by him as a part of the fraudulent scheme are of primary importance in the proof of his criminality. This is quite different from the testimony in Heike v. United States,⁶ a prosecution for fraud on the revenue in weighing imported sugar. There former testimony in a Sherman Act proceeding related to official connection with a company involved and also a table showing the amount of sugar handled by the company, and a claim for amnesty was denied because the evidence 'neither led nor could have led to a discovery of his crime.' Certainly had petitioner given evidence of his creation of the organizations which the indictment says were part of his artifice it might easily have led to discovery of his trickery. It seems, too, that at least some of the other matters were specified, to wit: the personal entries, books and records of petitioner. Likewise the nature of his alleged testimony concerning his records is sufficiently related to the indictment by saying they are a part of the subject matter of this prosecution. The plea is good on its face.

It is next urged that the plea was properly overruled because of petitioner's failure to prove its allegations.⁷ Such result is assumed to follow on the theory that as the burden was on petitioner to prove his plea, the failure of the...