Arnstein v. United States

• Decision Date: 05 February 1924
• Docket Number: 4025.
• Citation: 296 F. 946
• Parties: ARNSTEIN et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

296 F. 946

ARNSTEIN et al. v. UNITED STATES.

No. 4025.

United States Court of Appeals, District of Columbia.

February 5, 1924

Submitted January 7, 1924.

Appeal from the Supreme Court of the District of Columbia.

T Morris Wampler and H. S. Barger, both of Washington, D.C for appellants.

Peyton Gordon and William E. Leahy, both of Washington, D.C., for the United States.

Before SMYTH, Chief Justice, and ROBB and VAN ORSDEL, Associate justices.

SMYTH Chief Justice.

The appellants were indicted under section 37 of the Penal Code(Comp. St. Sec. 10201) for a conspiracy to bring into the District of Columbia stolen stock, in violation of section 836a of the District Code, as added by ActDec. 21, 1911(37 Stat. 45).They were convicted, and they bring their case here, alleging error, which they say prevented them from having a fair trial.

Two of the appellants moved to discharge their bail because the indictment against them was not returned within nine months from the time they were admitted to bail, as required by section 939 of the District Code.The motion was overruled, and the appellants assign the action of the court in that regard as error.This section was construed by the Supreme Court of the United States in United States v. Cadarr,197 U.S. 475, 480, 25 Sup.Ct. 487, 49 L.Ed. 842, 3 Ann.Cas. 1057.If the motion had been made before the indictment was returned, it would have been good; but, since this was not done, it was of no value unless the statute is one of limitations, and the Supreme Court, in the Cadarr Case, has ruled that it is not.The effect of statute upon the accused, said the court, is not that he shall be discharged from prosecution for the offense, but that his bail shall be discharged.The purpose of the statute is to control the prosecution by requiring action by the grand jury, not to finally bar all prosecution for the offense charged.After a person is discharged under the statute, the government is free to renew the prosecution.This is the meaning of the Cadarr Case as we understand it.The court did not say, nor does the Code section, that an indictment returned after nine months have elapsed shall be invalid; consequently there is no basis for contending that a prosecution on such an indictment is erroneous.

Appellants urge that the indictment is double, in that an overt act is alleged on each of three dates in one count.This is not a vice which requires the court to strike down the indictment.Stanley v. United States,195 F. 896, 902, 115 C.C.A. 584.Nor is the contention that the conspiracy is merged in the completed offense well taken.The liability for conspiracy is not removed by its success, 'that is, by the accomplishment of the substantive offense at which the conspiracy aims,' says the Supreme Court of the United States in Heike v. United States,227 U.S. 131, 144, 33 Sup.Ct. 226, 229(57 L.Ed. 450, Ann. Cas. 1914C, 128).See, also, Stanley v. United States, supra.If it be a fact that there was some illegal evidence before the grand jury, as claimed by appellants, that would not require a quashing of the indictment.United States v. Perlman (D.C.)247 F. 158.The appellants do not claim that where the indictment has no competent evidence to support it.

Section 340 of the Penal Code of the United States (Comp. St. Sec. 10514) provides that the offense denounced by section 37 thereof shall be cognizable in the Circuit and District Courts of the United States.The Supreme Court of the District of Columbia is a District Court of the United States, within the meaning of section 340.Benson v. Henkel,198 U.S. 1, 13, 25 Sup.Ct. 596, 49 L.Ed. 919;United States v. Morse,218 U.S. 493, 504, 31 Sup.Ct. 37, 54 L.Ed. 1123, 21 Ann.Cas. 782.Hence jurisdiction of the case was vested by law in the Supreme Court of the District of Columbia.

Appellants assert that the indictment is insufficient, in that it fails to state an offense against the United States, for the reason that a conspiracy to violate a section of the Code of the District of Columbia is neither a conspiracy to commit an offense against the United States nor to defraud the United States.The assertion is without legal force.We have decided that a crime against the United States is committed by any person who violates either section 818 or section 858 of the District Code.Fletcher v. United States,42 App.D.C. 53.See, also, Thomas v. United States,156 F. 897, 84 C.C.A. 477, 17 L.R.A. (N.S.) 720.Since it is a crime against the United States to violate those sections, we see no reason for saying that it is not a crime against the United States to violate other sections of the same Code.

It appears from a ruling of the court that a motion for a bill of particulars was made by defendants, and overruled.Such a motion is addressed to the sound legal discretion of the court(Rosen v. United States,161 U.S. 29, 35, 16 Sup.Ct. 434, 480, 40 L.Ed. 606;Breese v. United States,106 F. 680, 682, 45 C.C.A. 535), and there is no evidence of an abuse of that discretion; therefore we cannot say there was error in overruling it.

One Gluck was a defendant with the appellants.He testified on behalf of the government.On cross-examination by counsel for the other defendants, for the purpose of discrediting his testimony, he was asked if he had not been beaten by New York police officers to induce him to testify against the other defendants; if he had not been promised immunity by one Myers from prosecution on certain charges pending against him in New York state; if he had not been promised by Mr. Dooling, assistant district attorney of New York. that, if he would testify in this case for the government, he(Dooling) would recommend that he be granted immunity, and that his recommendations would carry weight with the trial justice; and if he had not been coached by one Myers.None of this testimony was admitted at first, but after some discussion, and to quote the record, 'the court admitted the above testimony upon defendants' assurance they would show Dooling and Myers assisted the district attorney's office here in the preparation of this case. ' Thereupon counsel interrogated the witness with respect to the matters just mentioned, and other things.The witness answered all of his questions in the negative.At the conclusion of his examination the court pointedly inquired of the witness if he had been promised immunity by anybody connected with the court or any other person, or that his punishment would be lessened if he gave testimony in favor of the government, to each of which questions he answered, 'No.'If there was any error in excluding the testimony in the first instance, it was entirely cured by what transpired afterwards, and appellants have no cause for complaint on that score.

A witness was called for the sole purpose of establishing the fact that he had introduced Gluck to Cohn, one of the defendants, in order to prove the illegal combination which existed between Gluck and Cohn in the conspiracy.On cross-examination counsel attempted to show that Gluck told one Stall that he had stolen securities with him which he wanted to dispose of.This was not proper cross-examination.It had no tendency to contradict or explain what was brought out in chief, and therefore was properly excluded.

Mr. Dooling was served with a subpoena duces tecum, issued on behalf of defendants, requiring him to produce written statements made to him by Gluck and signed by the latter.He appeared and stated that he had the statements with him, but claimed they were privileged because they were made to him in his official capacity as assistant district attorney of the county of New York, state of New York, in the course of an investigation conducted by him in connection with a matter then pending, and at the time he testified undetermined, in the criminal courts of New York county involving some of the defendants here.Thereupon the defendants stated that the purpose of asking for the written statements was to impeach Gluck.The court sustained the position taken by Mr. Dooling, and the statements were not produced.

The ruling of the court was right, for two reasons: The statements were not admissible for the purpose of impeaching Gluck, because the proper foundation therefor had not been laid.While Gluck admitted that he made a statement to Dooling which the latter afterwards read to him, and that he said to Dooling that part of it was untrue, the defendants did not ask him what the statement contained, nor did they offer to show in what particular it conflicted with anything which he had testified to in chief.It...