In re National Window Glass Workers

• Decision Date: 09 November 1922
• Docket Number: 817.
• Parties: In re NATIONAL WINDOW GLASS WORKERS et al.
• Court: U.S. District Court — Northern District of Ohio

287 F. 219

In re NATIONAL WINDOW GLASS WORKERS et al.

No. 817.

United States District Court, N.D. Ohio, Eastern Division.

November 9, 1922

Calfee Fogg & White, of Cleveland, Ohio, for National Window Glass workers.

Squire Sanders & Dempsey, of Cleveland, Ohio, for National Association of Window Glass Mfrs.

WESTENHAVER District Judge.

The parties named in the caption hereof filed in this court October 9, 1922, an application to quash, vacate, and set aside certain subpoenas and subpoenas duces tecum duly served, requiring them to appear and give testimony and also produce documents in a grand jury investigation about to be undertaken by a grand jury attending upon this court. Similar applications were filed herein October 9, 1922, by John R Johnston, Jr., vice president of the Johnston Brokerage Company, and October 12, by American Window Glass Company William L. Monro, R. M. Speer, Thomas Moore, and George H. Mayer, and October 12, by J. W. Rutter, W. C. Hoffman, Harry G. Tussey, Frank Mason, and E. R. Pierson, and October 13, by Andrew R. Dole. All these applications are supported by affidavits and seek relief on the same ground. No opposing affidavits have been filed.

The grounds upon which relief is sought are the following: (1) That the grand jury investigation in which these several witnesses are to testify, and with respect to which the documents are to be produced, is being carried on as to a supposed offense already investigated by a grand jury in the United States District Court for the Southern District of New York, and as to which an indictment against the American Window Glass Company and some 90 other defendants has already been presented and is now pending and awaiting trial, and that the present investigation, being directed to the same alleged offense, is an abuse of the process of this court, in that the dominating, if not the only, object is to examine witnesses in advance of trial, and to procure evidence for use in the trial of defendants on said indictment now pending in the Southern district of New York. (2) That said subpoenas and subpoenas duces tecum are insufficient and invalid, in that they do not correctly and sufficiently described the cause or nature of the proceedings with respect to which said witnesses are required to appear and testify, and with respect to which said documents are required to be produced, nor the name or names of any persons against whom the present grand jury investigation is directed. Certain other grounds are urged in the moving papers of some of the applicants directed to the form and sufficiency of the subpoenas duces tecum, but upon hearing before me the above grounds were the only ones urged and relied on; hence in this memorandum all other objections will be ignored.

The second ground of relief will be first disposed of. Neither the subpoenas nor the subpoenas duces tecum give any information as to the matter or proceeding, nor the names of persons supposed to have committed offenses, as to which the present investigation is about to be instituted. These subpoenas merely require the witnesses to appear and testify on behalf of the United States. Some of them describe the matter as to which witnesses are to testify, or with respect to which documents are to be produced, as being on behalf of the plaintiff in the case of United States v. Grand Jury. Section 877, R.S. (section 1488, U.S. Comp. St. 1916), provides that witnesses who are required to attend any term of a District Court on the part of the United States 'shall be subpoenaed to attend to testify generally on their behalf, and not to depart the court without leave thereof, or of the district attorney; and under such process they shall appear before the grand or petit jury, or both, as they may be required by the court or district attorney. ' Judged by this language, the subpoenas would appear to be sufficient in form. Apparently a witness subpoenaed in a criminal case to testify on behalf of the United States, either before a grand or petit jury, need only be summoned to testify generally on behalf of the United States. After he appears, he may be required to appear and give testimony before either jury. Such, also, seems to be the uniform trend of decision. It has been repeatedly held that no specific charge against any person, nor any description of any alleged offense, is necessary in compelling a witness to testify before a grand jury, and that a witness may not refuse so to testify without such charge or statement having first been presented to the grand jury or communicated to him. See Hale v. Henkel, 201 U.S. 43, 26 Sup.Ct. 370, 50 L.Ed. 652; Wilson v. U.S., 221 U.S. 361, 375, 31 Sup.Ct. 538, 55 L.Ed. 771, Ann. Cas. 1912D, 558; Hendricks v. U.S., 223 U.S. 178, 184, 32 Sup.Ct. 313, 56 L.Ed. 394; Blair v. U.S., 250 U.S. 273, 39 Sup.Ct. 468, 63 L.Ed. 979.

These cases are authority also for the proposition that a witness to whom immunity is extended, as in violations of the Sherman Anti-Trust Law, will not be excused from testifying because his evidence may incriminate him, and that no such privilege of immunity exists in favor of a corporation of which he is an officer or an employee. This ground of relief, therefore, is, in my opinion, not well taken.

The first ground, however, is the one mainly urged and relied on. A brief statement of facts is necessary to an understanding of the questions arising thereon. On March 17, 1922, a grand jury attending on the United States District Court for the Southern District of New York returned an indictment charging some 90 defendants, including American Window Glass Company, National Window Glass Workers. Window Glass Cutters' and Flatteners' Association of America, and others, with a conspiracy to fix prices and curtail production as to certain glass products in violation of the Sherman Anti-Trust Act. This conspiracy, while alleged to have originated more than three years prior to the return of this indictment, is alleged to be a continuing conspiracy and still in existence. A demurrer to this indictment was, some time in June, overruled. The defendants thereupon immediately moved for a bill of particulars, and on August 1 this motion was granted, requiring the bill of particulars to be served on August 20.

This bill, owing to an extension of time being granted, was not served until September 16, and, when filed, the defendants objected thereto as insufficient and not in compliance with the order of the court, and moved for a supplemental bill. In the meantime the government had evidenced its intention to proceed promptly to place defendants on trial under this indictment, and the case was put on the calendar September 11, 1922, to fix a date for trial; but, because the bill of particulars had not been served, the government's motion to fix the time went over until October 9, and again at the government's request until October 16, and again on account of illness or other engagements of government's counsel until October 23. Whether or not a date for trial has since been fixed, or a sufficient bill of particulars has been served, is not disclosed by the papers submitted to me. On this hearing it is represented that some two to three months' time will be consumed in the trial. Obviously, in this situation, counsel both for the government and for the defendants either were or ought to have been industriously engaged in preparation for trial.

In July, after defendants' demurrer was overruled and their motion for a bill of particulars was filed, the government began another investigation before a grand jury attending on the United States District Court for the Southern District of New York. Subpoenas were issued requiring the attendance of substantially the same witnesses, and subpoenas duces tecum requiring the production of substantially the same documents, as are involved in the present hearing. Defendants moved to quash the same, on the ground that the government was not instituting this grand jury investigation in good faith, but merely for the purpose of examining witnesses in advance of and in preparation for trial, and to obtain evidence to be used on the trial, and in complying with the order for a bill of particulars. Government counsel promptly admitted this to be true, and thereupon an order was made granting the motion and vacating and setting aside the subpoenas.

The first subpoenas issued out of this court are dated September 22, 1922, and require the witnesses to attend October 9 1922. Other subpoenas were later issued, requiring other witnesses to appear and to produce documents at later dates. The present motions were all filed promptly after said subpoenas were served. It is not disputed that the subject-matter respecting which said witnesses will be required to testify and such documents will be used is the same conspiracy as that described in the pending New York indictment, nor that these witnesses and documents are substantially the same as were involved in the July grand jury investigation. No disclaimer is made that evidence elicited by the present investigation is not desired for use and will not be used in aiding in the prosecution of the New York indictment. The same special assistant who had charge of the New York investigation, resulting in the presentation of that indictment, and of the July grand jury investigation, appears here and is in charge of the present investigation. The only new feature distinguishing the present situation from that before the court when the subpoenas were vacated and set aside in New York is that government counsel say it is now their purpose to ask the grand jury to return a new indictment in this district. The purpose is still announced to proceed promptly to try the defendants first on the New...