Brown v. United States, 15665.

• Citation: 245 F.2d 549
• Decision Date: 28 June 1957
• Docket Number: No. 15665.,15665.
• Parties: G. Elmer BROWN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

245 F.2d 549 (1957)

G. Elmer BROWN, Appellant, v. UNITED STATES of America, Appellee.

No. 15665.

United States Court of Appeals Eighth Circuit.

June 28, 1957.

Thomas C. Quinlan, Omaha, Neb. (Raymond M. Crossman, Omaha, Neb., on the brief), for appellant.

William C. Spire, U. S. Atty., Omaha, Neb. (J. Frank Cunningham, Attorney, Criminal Division, Department of Justice, Washington, D. C., on the brief), for appellee.

Before GARDNER, Chief Judge, WOODROUGH, Circuit Judge, and DONOVAN, District Judge.

DONOVAN, District Judge.

Appellant was convicted of perjury. He was charged with false swearing by indictment in seven counts, in violation of Title 18, United States Code, § 1621. A plea of not guilty was made to each count. At trial, counts four and five were dismissed by the court. The remaining counts were submitted to the jury. The jury acquitted him on count six and rendered a verdict of guilty on counts one, two, three and seven. Timely motions for a new trial and in arrest of judgment were made and denied by the court. This appeal is from the sentence imposed. We shall refer to the appellant as defendant and the appellee as the government.

Defendant, during the times involved herein, was employed by the government as a Supervisor of Accounts and Collections in the Department of Internal Revenue at Chicago, Illinois. On April 12, 1950, the Commissioner of Internal Revenue, hereafter referred to as the Commissioner, authorized an investigation of the Collector of Internal Revenue at St. Louis, Missouri, hereafter referred to as the Collector. To that end Frank W. Lohn, then Special Agent for Missouri was placed in charge, and Thomas E. Scanlon, then Supervisor of Accounts and Collections for a New England district, Harold B. Holt, a Special Agent from New Orleans, and the defendant, were assigned to work with him. Each had different specific assignments. Defendant was responsible for furnishing personnel to aid Scanlon. They will be referred to jointly as the investigators.

On May 3, 1950, a meeting of the investigators presided over by Lohn was held in St. Louis. Defendant was present. Also present were two additional employees of the government, namely, Rudolph H. Hartmann, then senior Special Agent of the Intelligence Division, and Ernest M. Flinn, then a Special Agent, both of St. Louis, Missouri. At this meeting a conversation was had concerning the investigation (which had been recommended by Honorable George H. Moore, Chief Judge, United States District Court for the Eastern District of Missouri, and ordered by the Commissioner), into alleged official corruption in the office of the Collector. Defendant, an important official in the Internal Revenue Service, had been directed by the Commissioner to assign subordinate employees from his office in numbers to be agreed upon to the work in hand. Defendant expressed his wish to use his men, of whom there were twelve, in an investigation at Springfield, Illinois, and hence he objected to the use of the twelve for the St. Louis project. A heated discussion ensued. It was settled by defendant furnishing three of his men instead of the twelve, and three other men were assigned to him in exchange. Thereafter the investigation of the Collector was carried on by Lohn, Holt and Scanlon under the direction of Lohn, as ordered by the Commissioner. At this meeting, the government witnesses testify, defendant expressed disbelief in the alleged misconduct of the Collector and said he did not believe the charges were true and suggested that they spot check the source of the complaints.

From time to time the investigators met and discussed ways, means and recommendations to carry on and conclude the investigation undertaken by them. The investigation was concluded, and a report dated July 12, 1950, referred to as the Holt-Scanlon Report, was submitted. It recommended certain operational changes in the Collector's Office and advised that there was no evidence that would support charges of misconduct by the Collector. The foregoing was followed by a second investigation, dated February 19, 1951, and termed the Lohn-Hartmann Report.

More than 260 employees of the government were interviewed, and the testimony adduced by the government in this case through the Internal Revenue officers who carried on the investigation was to the effect that the investigation was honest, sincere and intelligent. They agree that defendant had had nothing to do with it except that he had assigned three of his men to assist in it and that he in nowise influenced anyone in the performance of it. Later on, however, other investigations were had in connection with these same matters, and it was charged in the indictment herein that on the 29th day of November, 1954, when defendant testified before the Nebraska grand jury (which was conducting an investigation to determine whether the defendant and others had in conspiracy or otherwise obstructed, or attempted to obstruct, any of said investigations), he testified falsely with respect to certain material matters.

The grand jury of the instant case was drawn in Nebraska on December 14, 1953, and the oath administered to the members thereof on January 18, 1954. It was this grand jury that was sitting as such in Omaha in November, 1954, when defendant was then employed as an administrative assistant in the Regional Commissioner's office in Philadelphia. On November 23, 1954, defendant's superior ordered him to go to Omaha on a special undisclosed assignment, where he was to report to the local revenue office. Upon reporting there he was taken by Special Agent Murphy and Assistant Attorney General Luce to the office of the United States Attorney and then and there interrogated for almost two hours before said grand jury on events occurring some four years previous. The inquisitor directed some 365 questions at defendant in that period of time, and from the responses thereto seven answers in the negative were chosen by the grand jury as the basis for the indictment herein.

The questions put to defendant while on the witness stand before the grand jury and his answers as set forth in the counts of the indictment on which he was convicted (and quoted in the government's brief) are as follows:

"Count 1. Q. All right, sir, but, did you at any time that day or evening¹, or at any time, state in words or substance, that these charges that were made by Moore were preposterous or absurd? A. No, sir.

"Count 2. Q. As I have indicated to you, we are trying to find out whether this thing was blocked, and if so, who did it, so I will ask you this general question: Did you, Mr. Brown, do anything, or say anything, on or prior to May 3rd, 1950, the date being the date when you were in St. Louis on this occasion, intended or calculated to block or thwart, impede or obstruct or prevent this investigation? A. No, sir.

"Count 3. Q. Did you do anything or say anything on the 3rd, or prior thereto, to try to influence these men to whitewash Finnegan or to do an inadequate, superficial investigation? A. No, sir.

"Count 7. Q. I previously asked you whether you tried to minimize the charges against Finnegan, or tried to influence them not to do a proper investigation. A. No, sir.

"Q. You say that never happened; is that right? A. I never tried to minimize the investigation; no, sir.

"Q. Or to minimize the charges? A. No, sir.

"Q. Or to influence them not to make a proper investigation. A. No, sir."

The foregoing will suffice as a statement of the instant case. The grounds relied on by defendant for reversal are (1) the grand jury returning the indictment was illegally selected; (2) the grand jury was without jurisdiction for the reason that nothing of substance relating to the subject matter of the inquiry occurred in the district of Nebraska; (3) insufficiency of the evidence.

The record makes it clear that the counts in question have to do with answers given by defendant while under oath before a grand jury called, sworn and sitting in the district of Nebraska and that the offenses charged in these counts have to do with matters which occurred in the Eastern District of Missouri. If the grand jury of Nebraska was without authority to inquire into offenses committed in Missouri, then the answers of defendant, even if false, would not amount to perjury.

The court properly found the indictment sufficient in form in that it charged an oath taken by defendant before a tribunal, to wit, the Nebraska grand jury, which it was asserted was inquiring into matters within its competency and that false statements were wilfully made by defendant concerning matters which it was alleged were material to the inquiry.

After entry of defendant's plea of not guilty the Government, on the trial of this case, proved that defendant had appeared before the Nebraska grand jury on the date alleged and had given the testimony set forth in the indictment. The prosecutor then suggested that the jury be excused and that the judge hear the government's witness, Wyllys Newcomb, to show the Nebraska grand jury's jurisdiction of the subject matter that was being presented to it when Brown was a witness before it and the materiality of the questions and answers set forth.

In accordance with that suggestion the jury was temporarily dismissed and Mr. Newcomb was sworn before the judge. His examination covers some fifty typewritten pages. He testified in the absence of the jury that he was a citizen of New York, engaged there in the practice of law and that pursuant to a direction of the Attorney General, he had acted as the government attorney in the conduct of the grand jury proceedings in Omaha, Nebraska, concerning the investigation of the Collector, beginning on or about November 16, 1954. He also related a great number of suspicions which he and the Department of Justice entertained against many persons in connection with the Collector matters, on account of which he had resorted to...