7 F.2d 756 (W.D.Wash. 1925), 9165, United States v. Olmstead

Docket Nº:9165.
Citation:7 F.2d 756
Case Date:April 23, 1925
Court:United States District Courts, 9th Circuit, Western District of Washington

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7 F.2d 756 (W.D.Wash. 1925)




No. 9165.

United States District Court, W.D. Washington, Northern Division.

April 23, 1925

An indictment charging conspiracy to violate the National Prohibition Act (Comp. St. Ann. Supp. 1923, Sec. 10138 1/4 et seq.) has been returned against 89 defendants. To the indictment 33 defendants interposed pleas in abatement. In the interest of brevity it may be said that all are substantially alike, and will be considered together. The Olmstead plea, in substance, says that one Lyle, one Whitney, and one Corwin, prohibition agents, 'conspiring together and with other persons to this defendant unknown to interfere with the telephone wires of various and divers persons, some 40 in number, in the city of Seattle,' caused 'taps,' connecting circuits, and other contrivances, to be connected with the telephone wires, and listened to conversations passing over the wires, which continued from July, 1924, to January 1, 1925, and various persons other than Lyle, Whitney, and Corwin, listened at all hours of the day and night to conversations and communications passing over said wires; that longhand notes of the substance of such conversations as they remembered and interpreted them were made; that these parties worked in shifts, and the notes taken were read into a dictaphone and transcribed by typewriting machines; that such records were bound in book form and found their way into the hands of Lyle, Whitney, and Corwin. A

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specimen sheet of such bound volumes is set out as follows:


'Cable 12 Pr 851 Room 1025 Henry Bldg., El. 6785. Beacon 2171-- Rainier Ave. McArthur of St. Paul. Wm. 310422-- Hudson Cab-- Flynn, Everett. Main 9411-- Harry & Art-- Dad talking. Al Dickie. Bill Boeing House-- 5cs. to be returned. Jim, Baldy has load for Chadwick. 1005-1/2 Howell. At 2:20-- Ed Sadick called and asked if Ed Brown had been there yet. Dave talking. Baldy reported No. 224513 Ford. Have this No. looked up. Ell. 6787 Another line 1025 Henry. The Florence, Madison St. Mack is McLain, John-- Clyde is Clyde Thompson-- Johnny is driver. Brown is driver-- Baldy is driver-- Jim is warehouse man-- Mickie and Mack are same-- Over phone Clyde answers either to Mickie or Mack. Delivery to 25th & Cherry at 2:30. Smith-- 15 cs. at 2 p.m.'

It is further set out: 'That in these bound volumes the name of this defendant appears many times, but whether his name was actually used by others as recorded in these volumes, or was willfully and falsely interpolated therein by some one in the course of producing the volumes as herein set forth, * * * this defendant has no means of knowing and cannot affirm. That the grand jury impaneled for the November term of this court met in adjourned session on the 12th day of January, 1925, to consider specially of the matters contained in the indictment herein, and continued in session for several days. That during such period the said Whitney and the said Corwin appeared alternately before such grand jury for several days, and on each occasion they brought with them these bound volumes, * * * that these volumes were not submitted to the grand jury for their inspection, * * * but that the said Whitney and the said Corwin * * * purported to read therefrom to such grand jury such passages as they chose to read, and at the same time they 'explained,' interpreted, and expounded the same. * * * That the grand jury received this incompetent, irrelevant, hearsay, and secondary testimony. That, except and without this illegal, incompetent, irrelevant, hearsay, and secondary evidence, and the tainted and outlawed evidence set forth in paragraph 3 hereof, no testimony or evidence of any character whatever was introduced before said grand jury, which proved or tended to prove this particular defendant guilty of any charge or charges set forth in the indictment.'

In paragraph 2 it is alleged: 'That the grand jury did not vote upon the name of the defendant before the indictment herein was presented,' but was 'governed solely by the said Whitney as to the names to be incorporated therein. That an hour or two before such indictment was returned the said Whitney called the foreman of the grand jury, Charles P. Burnett, from the grand jury room, and talked to him in private. That said Whitney told the said Burnett that 'he had the goods on him,' meaning Burnett. That Whitney told Burnett that the latter had been ordering intoxicating liquor by telephone from the 'Olmstead gang,' meaning from some of the defendants herein, and that he (Whitney) had the record thereof, and that he (Whitney) wanted the indictment returned, and wanted it returned in the form as presented and without any changes, and that, unless the indictment was so returned, he (Whitney) would have a new grand jury called, and that his name (Burnett's) would be added at the bottom of the list, and that he (Burnett) would be '91' therein. * * * That in truth and in fact said Burnett had ordered intoxicating liquor by telephone within the past year, and felt conscious of the truth of the charge made by said Whitney, and believed the latter did have a record thereof and knowledge thereof, and was coerced thereby by the said Whitney to vote for the said indictment. * * * '

In paragraph 3 it is alleged, in substance: That search warrant was obtained from the United States commissioner without a showing of probable cause, illegal search was made, and books, papers, documents and memoranda were taken. No return to the search warrant was ever made. That the defendant is deprived thereby of whatever remedy offered by the law, and that the material taken from the residence of the defendant Olmstead contained, if unexplained, incriminating matter, and from such material such agents obtained leads and clues to other evidence which, 'colored by their own suspicions and interpretations, and unexplained by this defendant, was and is...

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