Edwards v. United States, 2432.

• Decision Date: 07 December 1942
• Docket Number: No. 2432.,2432.
• Parties: EDWARDS v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

131 F.2d 198 (1942)

EDWARDS v. UNITED STATES.

No. 2432.

Circuit Court of Appeals, Tenth Circuit.

October 26, 1942.

Writ of Certiorari Denied December 7, 1942.

J. Forrest McCutcheon, of Dallas, Tex., for appellant.

Charles E. Dierker, U. S. Atty., of Oklahoma City, Okl. (John Brett, Asst. U. S. Atty., of Oklahoma City, Okl., and John F. Davis, Sol., and Milton P. Kroll, Atty., for Securities and Exchange Commission, both of Philadelphia, Pa., on the brief), for appellee.

Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.

Writ of Certiorari Denied December 7, 1942. See ___ U.S. ___, 63 S.Ct. 262, 87 L.Ed. ___.

BRATTON, Circuit Judge.

Appellant was indicted on eleven counts. The first five each charged a distinct violation of the Securities Act, as amended, 48 Stat. 74, 48 Stat. 881, 15 U.S.C.A. § 77a et seq.; the sixth, seventh, eighth, ninth and tenth each charged a separate use of the mails in furtherance of a scheme to defraud; and the eleventh charged a conspiracy to violate the provisions of the Securities Act and the mail fraud statute. A plea in bar was interposed on the ground that in response to a subpoena duces tecum appellant appeared before an officer of the Securities and Exchange Commission with the books and records specified in such process, and in disregard of his claim of immunity against self-incrimination and under compulsion testified under oath respecting his identity and relationship to the several trusts and organizations which are the subject matter of the prosecution. The prayer was that the commission be required to submit to him a transcript of his testimony and that in the circumstances the prosecution be barred. Submission of the transcript was not required; the plea in bar was denied; a plea of nolo contendere was interposed; appellant was found guilty and sentenced; we affirmed, 113 F.2d 286; and the Supreme Court reversed, 312 U.S. 473, 61 S.Ct. 669, 85 L.Ed. 957. After the remand, the transcript was furnished; a supplemental plea in bar was interposed; evidence was heard and both pleas denied; a plea of not guilty was entered; counts four and eleven were dismissed during the trial; a verdict of guilty was returned on all other counts; sentence was imposed; and the case is here again.

Taking up the contention that the court erred in the last denial of the original plea in bar, section 22(c) of the Securities Act, supra, provides in substance that no person shall be excused from testifying or producing books or records before the commission on the ground that the testimony or evidence may tend to incriminate him, but that no individual shall be prosecuted or penalized for or on account of any transaction, matter, or thing concerning which he is compelled to give or produce evidence after having claimed his privilege against self-incrimination. According to the transcript of the proceedings before the trial examiner of the commission, the examiner administered or propounded the oath to appellant in the conventional form but appellant failed to make answer or response "I do," "I will," or otherwise. Oral testimony was adduced as to the authenticity and correctness of the transcript and as to whether appellant was sworn, that is to say whether he said "I do" or "I will" or made similar response. The testimony was in conflict. The court resolved the issue against appellant, finding that he was not sworn, that the oath was administered but before he could make answer or had an opportunity to do so his attorney intervened and...