Felder v. United States

• Decision Date: 07 December 1925
• Docket Number: No. 48.,48.
• Parties: FELDER v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

9 F.2d 872 (1925)

FELDER v. UNITED STATES.^*

No. 48.

Circuit Court of Appeals, Second Circuit.

December 7, 1925.

Frank P. Walsh, Robert S. Johnstone, and Emanuel Harris, all of New York City (Thomas W. Hardwick, of Atlanta, Ga., and James Hamilton Lewis, of Chicago, Ill., of counsel), for plaintiff in error.

Emory R. Buckner, U. S. Atty., of New York City (Hiram C. Todd and Clifford H. Byrnes, Sp. Asst. Attys. Gen., of counsel), for the United States.

Before ROGERS, HOUGH, and HAND, Circuit Judges.

HOUGH, Circuit Judge (after stating the facts as above).

Although seriously argued, the objections made against the form of indictment and technique of trial require no more than reference to well-established legal principles.

The indictment plainly averred that the persons whose corruption was to be effected according to the scheme proposed were officers of the United States or persons acting for the United States. The first category is of persons acting under appointments "embracing the ideas of tenure, duration, emolument, and duties" (United States v. Hartwell, 6 Wall. 385, 18 L. Ed. 830), and would evidently cover the Attorney General and United States attorney. Whether it would also cover the assistants to the attorney need not be decided, for whether they are or are not like the appraisers referred to in Auffmordt v. Hedden, 137 U. S. 310, 11 S. Ct. 103, 34 L. Ed. 674, they are assuredly persons "acting for and on behalf" of the government, and therefore within the purview of section 39 (Comp. St. § 10203).

It is also sought to bring this case in line with, e. g., In re Yee Gee (D. C.) 83 F. 145, holding that the predecessor of this statute (R. S. § 5451) did not apply where a bribe was offered to one who was not actually exercising an official function or duty, but might be called on so to act. We are not concerned to ascertain the correctness of the case cited; let that be assumed, but it remains true that in September, 1922, some of the "glass casket" men had been arrested and held to bail, the Department of Justice had then acted, and every official in the department was in a sense acting also. We wholly reject the argument that, after the proceeding had begun by the initial arrests, a bribe offered to any officer or agent of the department to stay or abort the prosecution would not be within the statute.

Further is the indictment assailed because, as is argued, no United States attorney (and therefore no assistant) can dismiss a criminal proceeding; for such dismissal is a judicial act, and no conspiracy could therefore be formed to do something that such officers were inherently incapable of doing. This objection is thought to rest on United States v. Corrie, Fed. Cas. No. 14,869. As to that case we prefer as authority a decision in this circuit (United States v. Watson, 7 Blatchf. 60, Fed. Cas. No. 16,652), holding the United States attorney has the right (unless collusion be shown) to nolle any indictment.

It is not, however, necessary to pursue the subject through other and more modern instances, for the essence of the charge in this indictment is that a conspiracy was formed to prevent by corrupt means the find-of any indictment against the "glass casket" men; and any lawyer knows, and we take cognizance of the fact, that the power of the lawfully constituted officials of the Department of Justice to procure either a presentment or an ignoramus from grand juries is, to say the least, very great indeed. To corruptly prevent or influence grand jury action, by controlling the men upon whom of necessity grand juries must almost always depend for guidance and information, is to poison the very wells of justice, and in our opinion clearly within the prohibitory scope of section 39.

The final attack upon the indictment is thus put: No overt act pleaded "could tend to effect the object of the conspiracy," and this is elaborated to mean that "the only act which could possibly have been in furtherance of the alleged conspiracy was an approach by one of the conspirators to one of the officers named in the indictment for the purpose of bribing him." We notice this, because it seems to us an apparently serious attack upon the fundamentals of the law of conspiracy. If it were true, a conspiracy to perform a criminal act could scarcely be charged, unless an overt act were charged that was the substantive offense. That such is not the law needs nowadays no citations in support.

In this case it is enough to note that several of the overt acts recited consist in handing over to this plaintiff in error the money collected by or from the men threatened with indictment, in order to effect their object; i. e., corrupt prevention of formal indictment. Such an act plainly "manifests the intention of the doer to commit the offense," and it is not necessary to allege how that action would tend to effect the conspiracy's object. Rumely v. United States (C. C. A.) 293 F. 532, at page 550.

The assignments of error resting on rulings as to evidence and conduct of the prosecution we have carefully examined, but find it necessary to mention particularly one only. The prosecutor in the cross-examination of some witnesses called their attention to what they had previously said before the grand jury, using for that purpose the minutes of that body. Doubtless the use of that particular record is to be limited by a carefully exercised judicial discretion in the trial judge; but where the record was contemporaneously made, so that it could have been used to refresh the recollection of the witness, such use is proper. We have so ruled in Bosselman v. United States, 239 F. 82, 152 C. C. A. 132, relying on Putnam v. United States, 162 U. S. 687, 16 S. Ct. 923, 40 L. Ed. 1118. The bald fact that the memory refreshing words are found in the records of a grand jury is not a valid objection. United States v. Smith (C. C.) 47 F. 501. We cannot find that this rule was infringed in the trial of this cause.

What seems to us the principal contention on this review is thus assigned for error, viz.: There was "no legal and competent evidence to sustain the charge in the indictment against" Felder. Wherefore a verdict should have been directed in his favor. This is amplified to mean that Felder might admit that Means and the "glass casket crowd" did conspire to do just what the indictment charges, and yet assert (as is asserted) that he was but an attorney, employed like any counsel for the defense of Rosenblatt et al. It is urged that, however open to criticism are Mr. Felder's personal manners or professional ethics, he had no interest in those accused of the "glass casket" fraud, except to "get them off," if he could, and be paid for it as well as possible.

As part of this argument it is most strenuously urged that the present indictment is the result of hatred by convicted clients of Felder, who have vented their spite by trying to tar him with their own pitch; for he was not only attorney for the "casket crowd," but for Means and Jarnecke in the case above mentioned. We have fully recognized the seriousness of the accusation made and the result reached below for this plaintiff in error, a man of mature age, a lawyer of widely extended practice and well known at the bars of courts in several states. For him it is a contest for professional existence; but for the community at large and for the legal profession in particular the matter is scarcely less serious.

It is of little moment that this record yields no proof, and not even suspicion, that any attempt at bribery was actually made; but, if men trading on their connection with one of the great departments of the government, or members of the bar who are always officers of the court, can profitably promise to do a tithe of the things here shown to have been promised, the bald fact that such promises can gain credence, even among the baser sort, is a cancerous product of our times. It is therefore with a...