Durbin v. United States

• Decision Date: 04 November 1954
• Docket Number: No. 11866.,11866.
• Citation: 221 F.2d 520
• Parties: Andrew T. DURBIN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

221 F.2d 520 (1954)

Andrew T. DURBIN, Appellant, v. UNITED STATES of America, Appellee.

No. 11866.

United States Court of Appeals District of Columbia Circuit.

Argued October 6, 1954.

Decided November 4, 1954.

Mr. Rex K. Nelson, Washington, D. C., with whom Messrs. Eugene X. Murphy and James K. Hughes, Washington, D. C., were on the brief for appellant.

Mr. John D. Lane, Asst. U. S. Atty., Washington, D. C., with whom Messrs. Leo A. Rover, U. S. Atty., and William Hitz and Lewis A. Carroll, Asst. U. S. Attys., Washington, D. C., were on the brief for appellee. Mr. William J. Peck, Asst. U. S. Atty., Washington, D. C., at the time the appeal was docketed, also entered an appearance for appellee.

Before EDGERTON, WILBUR K. MILLER, and BAZELON, Circuit Judges.

BAZELON, Circuit Judge.

Appellant was convicted by the District Court, sitting without a jury, upon an indictment under § 1073 of Title 18 U.S.C. That section provides in pertinent part:

"Whoever moves or travels in interstate or foreign commerce with intent * * * (2) to avoid giving testimony in any criminal proceedings in such place in which the commission of an offense punishable by imprisonment in a penitentiary is charged, shall be fined * * * or imprisoned * * *, or both. (June 25, 1948, ch. 645, § 1, 62 Stat. 755)"

The indictment alleges that appellant "traveled in interstate commerce * * * with intent to avoid giving testimony before the grand jury in the United States District Court for the District of Columbia in a criminal proceeding entitled `In re Complaint Made by E. L. Wilkinson, For Possible Vio. 18 U.S.C. 371, 202, 872' relating to extortion and bribery in which proceeding the commission of an offense punishable by imprisonment in a penitentiary was charged."¹ The record does not disclose whether the grand jury proceeding referred to was instituted upon a formal written complaint, and, if it was, whether such complaint made sworn charges.

The primary question posed on this appeal is whether that complaint, which is merely described in the present indictment as "Complaint * * * For Possible Violations of laws," may be construed as having "charged" such violations within the meaning of § 1073. We think no such construction is permitted by the language of this criminal statute which must be strictly construed.² Moreover, this view is fortified by the Supreme Court's definition of a criminal charge in United States v. Patterson. There, although not in connection with the statute we construe here, the Court said:

"A criminal charge, strictly speaking, exists only when a formal written complaint has been made against the accused, and a prosecution initiated. It is true the popular understanding of the term is `accusation,\' and it is freely used with reference to all accusations, whether oral, in the newspapers, or otherwise; but, in legal phraseology it is properly limited to such accusations as have taken shape in a prosecution. In the eyes of the law, a person is charged with crime only when he is called upon in a legal proceeding to answer to such a charge. Mere investigation by prosecuting officers, or even the inquiry and consideration by examining magistrates of the propriety of initiating a prosecution, do not, of themselves, create a criminal charge. * * *"³

The only case cited by the Government to support its contrary view is clearly distinguishable. In that case, Hemans v. United States, the proceeding in question was instituted upon a warrant, which was issued by a judge acting as a one-man grand jury, and which "charged the commission of a felony by the twenty-eight individuals named in it."⁴

Although our determination that the indictment is fatally defective is dispositive of this appeal, another matter disclosed by the record requires notice. This matter, which involves certain conduct of the United States Attorney's office, took place before the incumbency of the present United States Attorney.

On December 10, 1951, appellant received a subpoena to appear the following morning before the grand jury to testify concerning the matter of the Wilkinson complaint referred to above. At the direction of the Assistant United States Attorney, to whom appellant reported as requested in the subpoena, appellant appeared at the United States Attorney's office on December 10, 11, 12 and 17. Appellant was never taken before the grand jury, which recessed on December 18. Instead, appellant was taken each time to the office of the United States Attorney...