Duke v. United States, 4165.

• Decision Date: 14 June 1937
• Docket Number: No. 4165.,4165.
• Citation: 90 F.2d 840
• Parties: DUKE v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

90 F.2d 840 (1937)

DUKE v.UNITED STATES.

No. 4165.

Circuit Court of Appeals, Fourth Circuit.

June 14, 1937.

Jacob L. Morewitz, of Newport News, Va. (Morewitz & Morewitz, of Newport News, Va., on the brief), for appellant.

Sterling Hutcheson, U. S. Atty., of Norfolk, Va. (H. H. Holt, Jr., Asst. U. S. Atty., of Norfolk, Va., on the brief), for appellee.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

PER CURIAM.

This was a prosecution for violation of section 137 of the Criminal Code,18 U.S. C.A. § 243, which provides:

"Whoever shall attempt to influence the action or decision of any grand or petit juror of any court of the United States upon any issue or matter pending before such juror, or before the jury of which he is a member, or pertaining to his duties, by writing or sending to him any letter or any communication, in print or writing, in relation to such issue or matter, shall be fined not more than $1,000, or imprisoned not more than six months, or both."

The evidence in the record shows, without contradiction, that, after the grand jury in the United States District Court at Alexandria, Va., had been sworn and charged and was retiring from the courtroom, the defendant, thinking that a certain charge would be preferred against him, handed the foreman a letter relating thereto.The letter petitioned the grand jury to permit defendant to make a statement if the charge were made against him and stated that, in case this permission were denied him, he wished the grand jury to consider the statement of facts which followed in the letter and also to consider it in connection with any vote as to whether he was to be given the permission to appear before them which he asked.There followed this request a statement of facts showing, if true, that defendant was not guilty of the charge in question, a request that the jury disregard hearsay evidence of Department of Justice operatives, an assertion that defendant was a member of the bar, and a reference to high officials of the state as to his reputation.The United States Attorney for the district filed an information against defendant charging a violation of the statute above quoted, and a trial was had upon which defendant took the stand and admitted the delivery of the letter, but attempted to justify his action on the ground that it was done openly and without corrupt intent.The court charged the jury that the act of the defendant in delivering the letter to the grand jury, for the purpose of being considered by it, amounted to an attempt to influence the action of the grand jury within the meaning of the statute.

The question in the case, which in our opinion was the important one, viz., the right to proceed in the case by information in view of the amendment of December 16, 1930, 46 Stat. 1029(18 U.S.C.A. § 541), to section 335 of the Criminal Code, has been certified by us to the Supreme Court and has been answered contrary to the contention of defendant.Duke v. United States, 57 S.Ct. 835, 81 L.Ed. ___.

Other contentions of defendant may be briefly disposed of.There is no right on the part of one whose conduct is being investigated by a grand jury to petition the grand jury or to appear before it, which is guaranteed by the Constitution or otherwise; and it is important that the processes of criminal...