United States v. Hinz

• Decision Date: 21 May 1888
• Citation: 35 F. 272
• Court: U.S. District Court — Northern District of California
• Parties: UNITED STATES v. HINZ et al.

35 F. 272

UNITED STATES v. HINZ et al.

United States Circuit Court, N.D. California.

May 21, 1888

(Syllabus by the Court.)

Hinz accused as an accomplice in crime, upon a promise of immunity if he would testify truly before the grand and trial juries and thereby aid in the indictment and conviction of his co-conspirators, testified fully before the grand jury, and upon his testimony a joint indictment was found against his associates in crime and himself. After a trial jury had been impaneled to try three of the parties, to whom a separate trial had been granted, Hinz informed the prosecuting attorney of his determination to so change his testimony as to wholly exonerate the parties on trial, and thereby render it impossible to convict them upon testimony then available and, upon being threatened with a prosecution for perjury, if his testimony should be so changed, he refused to testify at all, and the prosecuting attorney was then constrained to make, and did make, an arrangement with another accomplice to testify upon similar terms, who, having testified, was discharged and a nol. pros. as to him entered. Hinz was thereupon arrested, and held to answer to the indictment. After the other testimony of the prosecution and of the defense was all in, Hinz offered, and was anxious, to testify in rebuttal, but his offer was declined. Held, that Hinz, by refusing to testify before the trial jury, as he had agreed to do, notwithstanding his testifying before the grand jury had forfeited all right to immunity or clemency, and subjected himself to trial and conviction; and the court refused to continue the cause in order to allow him an opportunity to apply to the president for a pardon before conviction.

Whether an accomplice already indicted shall, upon promise of immunity, be admitted as a witness for the government or not, is determined by the judges in their discretion, as may best serve the purposes of justice.

If the accomplice offering himself as a witness with the expectation of immunity appears to have been the principal offender, he should be rejected.

If an accomplice, having made a private confession, upon a promise of pardon by the attorney general, should afterwards refuse to testify, or in bad faith testify falsely, he may be convicted upon the evidence of that confession.

The court will advise a jury not to convict of felony upon the testimony of an accomplice alone, without corroboration.¹

If two or more accomplices are produced as witnesses, they are not deemed to corroborate each other; but the same rule applies, and the same corroboration is required, as if there were but one.¹

Although the prosecuting attorney has no authority to contract that a person convicted of crime shall not be prosecuted, if, when examined as a witness against his accomplices, he declares, fully and fairly, his and their guilt, yet when he does so under promise of immunity, and his evidence is accepted by the court, he is equitably entitled to immunity, and a recommendation for pardon; and should the prosecuting attorney not enter a nolle prosequi but insist upon a trial, the court will continue the case in order to allow time for the accused to apply to the president for a pardon.

H. C. Dibble, for motion.

J. T. Carey, U.S. Atty., contra.

Before SAWYER, Circuit Judge, and HOFFMAN and SABIN, District Judges.

SAWYER J.

In October, 1885, the district judge called the attention of the grand jury then impaneled to the supposed conspiracy charged in this indictment, and directed that body to investigate the matter. After a full investigation upon the evidence then at the command of the government, the grand jury were unable to find an indictment, and the bill was ignored. Afterwards, a fortuitous concurrence of circumstances brought the defendant, Hinz, into communication with Mr. Scott, a deputy-collector, who introduced him to Mr. McPike, the assistant United States attorney. In the conference had, the assistant United States attorney promised Hinz that, if he would disclose all the facts in regard to the conspiracy, and testify to the whole truth fairly before the grand and petit juries, he should not be prosecuted. This proposition having been accepted by Hinz, he was taken before the grand jury at that time in session, by the United States attorney, where he testified fully in regard to the matter, the result of which was the finding of the present bill, charging William A. Boyd, F. D. Ciprico, E. W. McLean, W. W. Whaley, and the party now before the court, A. Hinz, himself, with the conspiracy in question. Hinz, and deputy-collector Scott, were the only witnesses examined before the grand jury. It was very clear from the evidence developed on the trial of Ciprico, McLean, and Whaley that Scott could not have testified as to many of the principal and essential facts, and that the indictment could not have been properly found upon any evidence then in possession of the government without the testimony of Hinz. All the parties charged, except Hinz, were arrested, and all arrested were discharged on bail except Boyd, who, being unable to procure bail, was committed to prison, where he remained until the trial of Ciprico and McLean. All the parties arrested having pleaded not guilty, on motion of Ciprico, McLean, and Whaley, with the consent of the United States assistant attorney, who tried the case, a separate trial was granted to them, leaving Boyd to be tried alone. The United States attorney determined to try Ciprico, Whaley, and McLean first, doubtless believing that he could make a stronger case against them than against Boyd, for Mrs. Boyd was a vitally important witness against her husband; and in this case, had Boyd been on trial at the same time, her testimony would have been inadmissible. A conviction of Ciprico, also, might open the way to the more certain conviction of Boyd. The fact that Mrs. Boyd would be an incompetent witness in case of a joint trial, may also account for the readiness of the attorney of the United States to consent to a separate trial. However this may have been, a separate trial was granted, and it was determined to try Ciprico, Whaley, and McLean first, and the trial was set for Tuesday, March 27th. On the morning of that day, a jury was impaneled by Asst. Atty. Weller, Mr. McPike, who was to try the case, being engaged in the trial of another case in the district court; and, after the jury was impaneled, the trial was adjourned over till Thursday, March 29th. What then occurred to affect the action of the prosecuting attorney we will state in his own language, taken from his letter to the attorney general, read on behalf of Hinz on this motion, suggesting a pardon, which we have no doubt is literally and strictly true, as it corresponds exactly with the account given to the court at the time, for the purpose of explaining his sudden change in the course of the proceedings. He says:

'On the day that the jury was impaneled, I met Mr. Hinz; told him that I had no time to go over his testimony again with him; and asked that he furnish me with a written statement of what he proposed to testify to before the trial jury, which he did. Upon examination, I found that the government could not depend upon Mr. Hinz as a witness against Ciprico and McLean, they having procured separate trials from defendant Boyd. This written statement of Mr. Hinz being so much at variance with his testimony before the grand jury, my suspicions were immediately arouse, and I saw at once, that if I were to depend upon him, Ciprico and McLean would be acquitted beyond all question; that defendant Boyd, from this circumstance, would gather hope, and in all probability, the case against him would also fail, and the government suffer the humiliation of not being able to prove the existence of the conspiracy, or punish the guilty parties. I firmly believed at the time that Mr. Hinz had been induced by corrupt means to change his testimony, and thereby defeat the government, for his was the only testimony upon which I could depend to give a history of the conspiracy-- the rest of the evidence being only in corroboration. Accordingly, on the evening before the trial began, I visited the jail where defendant Boyd was, and induced him to turn state's evidence, promising him exemption from punishment, if he would do so. He came into the court-room the next morning, and was the first witness on the stand. I then introduced what corroborative testimony I had at hand, and rested the case.'

Mr. Pike, further on in his statement, says:

'It must be admitted that his conduct in offering to change his testimony can receive no extenuation,' and 'it is true that by his acts he compelled me to have recourse to Boyd, but this fact did not add to his guilt as a conspirator.'

And in connection with these remarks he submits some considerations for the exercise of clemency, notwithstanding these facts.

In his affidavit in opposition to the present motion, after stating the testimony given by Hinz before the grand jury, and the testimony which he proposed to give at the trial, Mr. McPike, among other things, says:

'Affiant had three conversations with said Hinz relative to what his testimony would be upon the trial of said cause,-- one in affiant's private office in the presence of H. H. Scott; one in affiant's room, in the office of the United States attorney's office; and one in the court-room. The last two named were after the jury had been impaneled for the trial of said cause. In each of these interviews affiant used all honorable efforts possible to induce said Hinz to state the facts as he had detailed them before the grand jury, but which said Hinz declined to do, and steadfastly persisted in changing his

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