Hillman v. United States

Citation192 F. 264
Decision Date04 December 1911
Docket Number2,003.
PartiesHILLMAN v. UNITED STATES. [1]
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Frederick R. Burch and Oliver Hulback, for plaintiff in error.

Elmer E. Todd, U.S. Atty., and W. G. McLaren, Asst. U.S. Atty.

Before GILBERT and ROSS, Circuit Judges, and WOLVERTON, District judge.

GILBERT Circuit Judge.

The plaintiff in error was indicted in October, 1910, for the offense of using the United States mails to defraud. Upon a trial before a jury he was convicted of the offense charged. On the writ of error from this court, he seeks a reversal of the judgment, relying mainly on errors assigned to the ruling of the trial court in overruling his plea in abatement to the indictment and his motion to quash the indictment. Some two weeks after he was indicted, he filed his plea in abatement alleging, in substance, that on September 20, 1910, subpoenas had been issued for a number of witnesses to appear before the grand jury for the purpose of testifying as to facts and transactions relative to investigations of the business methods of the defendant with a view to returning a true bill of indictment against him; that at that time he was engaged in the real estate business in the city of Seattle, at certain named offices, which offices were also the offices of the Boston Harbor, Steamship & Land Company, the Hillman Investment Company, and the C. D. Hillman Snohomish County Railroad & Land Company, all corporations organized under the laws of Washington, and that the defendant was president of each thereof, and in possession of and control of all books documents, and papers belonging to said corporations 'that each and every of said books, documents, and papers were the private individual books, documents, papers, and accounts of defendant and of said corporations, of which defendant was the sole and lawful custodian. ' The plea alleges that on September 21, 1910, two deputy United States marshals and one post office inspector appeared at the said offices of the defendant in his absence therefrom for the purpose of serving a subpoena duces tecum upon Edward D Manning, an employe and bookkeeper of the defendant, commanding him to be and appear before the federal grand jury then in session in the city of Tacoma at 10 o'clock the next morning; and the plea set forth the subpoena, by the terms of which Manning was required to appear before the grand jury and testify, and produce with him the books of the three corporations so named and one other corporation, to wit, the Birmingham Land Company, to wit, 'all books of account showing amounts received from the sale of land in Boston Harbor, Pacific City, Birmingham, and Saratoga, all books and contracts showing the number of sales agents employed since September 1, 1907, to sell land, all books of account showing the expenditures for advertising, printing, purchase of land and commission to agents. ' The plea alleges that, after service of the subpoena, the deputy marshals and post office inspector in insolent and arrogant manner demanded of Manning the delivery of the books to them; that Manning refused to comply, whereupon the officers procured boxes in which they placed the books, documents, and papers, and procured a dray and carried away the same to the city of Tacoma, where the grand jury was sitting, 'which said books, documents, and papers consist of both the sole and separate books, documents, and papers of the defendant and the above corporations, respectively. ' The plea then alleges that one of the defendant's attorneys applied to the judge of the court below at his chambers for an order commanding said officers to return said books, documents, and papers to the defendant, and that on the following day, and after full argument of the matter on behalf of the defendant and by the district attorney, the judge overruled the motion and permitted said books, documents, and papers to go to the grand jury, and on September 22d and succeeding days said Manning appeared before the grand jury and was sworn and examined as a witness, and testified as to entries, accounts, computations, and all other matters contained in said books and papers; 'that both said private and corporation books, documents, and papers contained evidence tending to incriminate defendant; that thereafter, on the 3d day of October, A.D. 1910, and after the examination of said books, documents, and papers as above, the aforementioned grand jury returned a true bill of indictment against the above defendant, * * * which said indictment charged defendant with an infamous crime, to wit, using the United States mails to defraud.'

The decisions in Wilson v. United States, 221 U.S. 361, 31 Sup.Ct. 538, 55 L.Ed. 771, and Dreier v. United States, 221 U.S. 394, 31 Sup.Ct. 550, 55 L.Ed. 784, conclusively settle the doctrine that whether a subpoena duces tecum be directed to the corporation itself, or to the custodian of the corporation's books, the unreasonable search and seizure provisions of the fourth amendment are not thereby violated, and that the constitutional privilege against testifying against himself cannot be availed of for his personal benefit by an officer of the corporation having the documents in his possession; that, while such an officer is protected against compulsory production of his private books and papers, the privilege does not extend to the books of the corporation in his possession; and that an officer of a corporation cannot withhold its books to protect the corporation, or, if he be implicated in the corporation's violation of law, to protect himself from disclosures. It will be observed that in the plea there is no distinct averment that any of the books or papers so taken upon the subpoena duces tecum were the private books or papers of the plaintiff in error. The subpoena called for no books or papers, except those of the corporations named therein. The plea alleges that 'each and every' of the books and papers so taken were the private, individual books of the plaintiff in error, and also of the corporations. It is not explained how the books could be at one and the same time his books, and also the books of the corporations. The allegation can only be construed as meaning to say that, while the books were the books of the corporations, they were the private books of the plaintiff in error in the sense that he was the president and manager of the corporations, all the stock of which was owned by himself and his wife. There is nothing in the plea to countervail the allegation there plainly made that the books were in fact the books of the several corporations named in the subpoena. It is well settled that pleas in abatement are not favored in law, that they are to be strictly construed, and that the courts will not supply omissions therefrom. In United States v. Standard Oil Co. (D.C.) 154 F. 728, the court said:

'Any inference indulged in by the court must be against the pleader. It is his duty to set forth in his plea, in clear, definite, and positive language, the facts relied upon. All the authorities agree that great strictness and accuracy are required in pleas in abatement, and no latitude in practice is extended to them.'

See, also, United States v. Greene (D.C.) 113 F. 683; United States v. Jones (D.C.) 69 F. 973; United States v. American Tobacco Co. (D.C.) 177 F. 774.

But, if it is conceded that the plea in the present case is to be construed as alleging that the private books and papers of the plaintiff in error were in fact used in evidence against him before the grand jury, the plea is still fatally defective, in that it goes no further than to show that evidence may have been introduced and considered by the grand jury which would be competent in itself, but which it is claimed became incompetent by reason of the circumstances under which it was obtained. The plea does not allege that there was no evidence before grand jury upon which the indictment was found other than the evidence contained in those books and papers. On the contrary, it does allege that a number of witnesses were subpoenaed before the grand jury to testify as to facts and transactions relative to the investigation into the business methods of the plaintiff in error, with a view to returning a true indictment against him, and the indictment shows by the indorsements thereon the names of 37 witnesses who were examined before the grand jury.

The court below held the plea defective in two particulars: First, in not alleging that there was no evidence before the grand jury sufficient to warrant the indictment, aside from the books and documents; and, second, in not alleging that the books had anything to do with proving the charge which resulted in the indictment, for the reason that, for aught that appeared from the plea to the contrary, the incriminating evidence found in the books or documents may have related to an entirely different crime from that for which the plaintiff in error was indicted. The court said:

'All that appears from the plea is that these books or documents were taken, and that they contained evidence tending to incriminate the defendant. Tending to incriminate the defendant of what charge? The same charge as he is indicted upon? The plea does not say so. This plea may be entirely true, and yet these books or documents may have related entirely to a charge of some other character (such as the violation of the national banking laws), and may have contained no reference whatever to a use of the mails to defraud.'

In Holt v. United States, 218 U.S. 245, 31 Sup.Ct. 2, 54 L.Ed. 1021, the court sustained the ruling of the court below in refusing to entertain a proffered plea in abatement and motion to quash, and said:

'All that the affidavit
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