Glasser v. United States Kretske v. Same Roth v. Same 8212 32, s. 30

CourtUnited States Supreme Court
Writing for the CourtMURPHY
Citation86 L.Ed. 680,315 U.S. 60,62 S.Ct. 457
Docket NumberNos. 30,s. 30
Decision Date19 January 1942

315 U.S. 60
62 S.Ct. 457
86 L.Ed. 680



Nos. 30—32.
Argued and Submitted Nov. 13, 14, 1941.
Decided Jan. 19, 1942.
Rehearing Denied Feb. 9, 1942.

See 315 U.S. 827, 62 S.Ct. 629, 86 L.Ed. —-.

[Syllabus from pages 60-62 intentionally omitted]

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Messrs. Homer Cummings, of Washington, D.C., Ralph M. Snyder, of Chicago, Ill., and William D. Donnelly, of Washington, D.C., for petitioner Glasser.

Mr. Edward M. Keating, of Chicago, Ill., for petitioner Kretske.

Mr. Alfred E. Roth, of Chicago, Ill., pro se.

Mr. Edwin D. Dickinson, of Washington, D.C., for respondent.

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Mr. John Elliott Byrne, of Chicago, Ill., for petitioner Glasser as amicus curiae.

Mr. Justice MURPHY delivered the opinion of the Court.

Petitioners, together with Anthony Horton and Louis Kaplan, were found guilty upon an indictment charging them with a conspiracy to defraud the United States under Section 37 of the Criminal Code, R.S. § 5440, 18 U.S.C. § 88, 18 U.S.C.A. § 88.1 Judgment was entered on the verdict and Glasser, Kretske, and Kaplan were sentenced to imprisonment for a term of 14 months. Roth was ordered to pay a fine or $500 and Horton was placed on probation. On appeal the convictions of Glasser, Kretske and Roth were affirmed.2 We brought the case here because of the important constitutional issues involved. 313 U.S. 551, 61 S.Ct. 835, 85 L.Ed. 1515.

Glasser was the assistant United States attorney in charge of liquor cases in the Northern District of Illinois from about March 1935 to April 1939. Kretske was an assistant United States attorney in the same district from October 1934 until April 1937. He assisted Glasser in the prosecution of liquor cases. After his resignation be entered private practice in Chicago. Roth was an attorney in private practice. Kaplan was an automobile dealer reputed to be engaged in the illicit alcohol traffic around Chicago. Horton was a professional bondsman.

The indictment was originally in two counts but only the second survives here as the Government elected to

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proceed on that count alone at the close of its case. That count, after alleging that during certain periods Glasser and Kretske were assistant United States attorneys for the Northern District of Illinois, employed to prosecute all delinquents for crimes and offenses cognizable under the authority of the United States, and more particularly violations of the federal internal revenue laws relating to liquor, charged in substance that the defendants conspired to 'defraud the United States of and concerning its governmental function to be honestly, faithfully and dutifully represented in the courts of the United States' in such matters 'free from corruption, improper influence, dishonesty, or fraud.' The means by which the conspiracy was to be accomplished was alleged to be by the defendants' soliciting certain persons charged, or about to be charged, with violating the laws of the United States, to promise or cause to be promised certain sums to be paid or pledged to the defendants to be used to corrupt and influence the defendants Glasser and Kretske, and the defendant Glasser alone in the performance of their and his official duties.

All the defendants filed a motion to quash the indictment on the ground (a) that the grand jury was illegally constituted because women were excluded therefrom and (b) that the indictment was not properly returned in open court. Glasser, Kretske and Roth also filed demurrers to the indictment. The motion to quash and the demurrers were overruled and petitioners here renew their objections.

On July 1, 1939 two acts of the State of Illinois providing for women jurors became effective.3 Section 275 of the Judicial Code, 28 U.S.C. § 411, 28 U.S.C.A. § 411, provides in substance that jurors in a federal court are to have the qualifications of jurors in the highest court of the State. Petitioners

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contend that the grand jury, composed entirely of men, and summoned on August 25, 1939, was illegally constituted because at the time it was drawn Illinois law required state jury lists to contain the names of women. However, in 17 of the 18 counties comprising the Northern District of Illinois the county boards could wait until September, 1939, to include women on their jury lists.4 Of course, for women to serve as federal jurors in Illinois it is not necessary that their names appear on a county list, but we are of opinion that, in view of the short time elapsing between the effective date of the Illinois acts and the summoning of the grand jury, it was not error to omit the names of women from federal jury lists where it was not shown that women's names had yet appeared on the state jury lists.

The record here adequately disposes of petitioners' contention that there is no showing that the indictment was returned in open court by the grand jury. It contains a placita in regular form which recities the convening of a regular term of the District Court for the Eastern Division of the Northern District of Illinois, 'on the first Monday of September (1939) (it being the twenty-ninth day of September the indictment was filed)', and discloses the presence of the judges of that court, the marshal and the clerk. The indictment bears the notation: 'A true bill, George A. Hancock, Foreman' and the endorsement: 'Filed in open court this 29th day of Sept.,

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A.D. 1939, Hoyt King, Clerk.' Immediately following the indictment in the record is the motion-slip discharging the September grand jury, dated September 29, 1939, initialled by Judge Wilkerson and containing: 'The Grand Jury return 4 Indictments in open Court. Added 10/30/39'. The presence of this notation in the record is meaningless unless the indictment in this case is one of the four mentioned. The addition was obviously made to clarify the indorsement of the clerk so as to show clearly the return by the grand jury and thus avert the technical argument here advanced. While a formal nunc pro tunc order would have been the more correct procedure, especially since a new term of court had begun, we do not think that this informal clarification of the record amounts to such error as requires reversal. Cf. Breese v. United States, 226 U.S. 1, 33 S.Ct. 1, 57 L.Ed. 97.

The demurrers to the indictment were properly overruled. The indictment is sufficiently definite to inform petitioners of the charges against them. It shows 'certainty, to a common intent'. Williamson v. United States, 207 U.S. 425, 447, 28 S.Ct. 163, 170, 171, 52 L.Ed. 278. The particularity of time, place, circumstances, causes, etc., in stating the manner and means of effecting the object or a conspiracy for which petitioners contend is not essential to an indictment. Crawford v. United States, 212 U.S. 183, 29 S.Ct. 260, 53 L.Ed. 465, 15 Ann.Cas. 392; Dealy v. United States, 152 U.S. 539, 14 S.Ct. 680, 38 L.Ed. 545. Such specificity of detail falls rather within the scope of a bill of particulars, which petitioners requested and received.

The indictment charges that the United States was defrauded by depriving it of its lawful governmental functions by dishonest means; it is settled that this is a 'defrauding' within the meaning of Section 37 of the Criminal Code. Hammerschmidt v. United States, 265 U.S. 182, 44 S.Ct. 511, 68 L.Ed. 968.

It is unnecessary to explore the merits of the argument that the indictment is defective on the ground that it

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charges a conspiracy to commit a substantive offense requiring concerted action namely, bribery, because, 'The indictment does not charge as a substantive offense the giving or receiving of bribes; nor does it charge a conspiracy to give or accept bribes. It charges 'a conspiracy to * * * defraud the United States, the scheme of resorting to bribery being averred only to be a way of consummating the conspiracy and which, like the use of a gun to effect a conspiracy to murder, is purely ancillary to the substantive offense.' United States v. Manton, 2 Cir., 107 F.2d 834, 839.

Petitioners Glasser and Roth claim that the evidence was insufficient to support the verdict. Kretske makes no such argument but merely contends that the government's testimony was largely that of accomplices 'to emphasize the inescapable conclusion that the evidence against petitioner (Kretske) was of a borderline character.' Since we are of opinion that a new trial must be ordered as to Glasser, we do not at this time feel that it is proper to comment on the sufficiency of the evidence against Glasser.

Admittedly the case against Glasser is not a strong one. The Government frankly concedes that the case with respect to Glasser 'depends in large part * * * upon a development and collocation of circumstances tending to sustain the inferences necessary to support the verdict'. This is significant in relation to Glasser's contention that he was deprived of the assistance of counsel contrary to the Sixth Amendment. In all cases the constitutional safeguards are to be jealously preserved for the benefit of the accused, but especially is this true where the scales of justice may be delicately poised between guilt and innocence. Then error, which under some circumstances would not be ground for reversal, cannot be brushed aside as immaterial since there is a real chance that it might have provided the slight impetus which swung the scales toward guilt.

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On November 1, 1939 George Callaghan entered the appearance of himself and Glasser as attorneys for Glasser. On January 29, 1940 William Scott Stewart entered his appearance as associate counsel for Glasser. 'Harrington & McDonnell' had entered an appearance for Kretske. On February 5, 1940, the day set for trial, Harrington asked for a continuance. The motion was overruled and McDonnell was appointed Kretske's attorney. On February 6 McDonnell informed the court that Kretske did not...

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