Linn v. United States

• Citation: 251 F. 476
• Decision Date: 10 April 1918
• Docket Number: 198.
• Parties: LINN v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

251 F. 476

LINN v. UNITED STATES.

No. 198.

United States Court of Appeals, Second Circuit.

April 10, 1918

The plaintiff in error, hereafter referred to as the defendant was indicted for a violation of section 215 of the federal criminal Code (Act March 4, 1909, c. 321, 35 Stat. 1130 (Comp. St. 1916, Sec. 10385)). The indictment charged that the defendant, together with Joseph C. Lynch and Mason G Worth, had unlawfully, willfully, knowingly, and feloniously devised a scheme and artifice to defraud and to obtain money and property by means of false and fraudulent pretenses representations, and promises from certain persons named and unnamed in the indictment, who desired to rent rooms and apartments, and who for that purpose advertised in the daily newspapers in and about the city of New York. The case was brought to trial against defendants Linn and Lynch; the defendant Worth having died after indictment and prior to the trial. The false and fraudulent pretenses and representations which were alleged to have been made were set out at length in the indictment. The defendants were alleged to have carried on their operations under the name of the Reliance Leasing Company, Incorporated. The jury returned a verdict against Linn and Lynch. The former was sentenced to a term of three years' imprisonment and Lynch to two. Each sued out writs of error, but Lynch has withdrawn his and is now serving his sentence.

M. Michael Edelstein, of New York City, for plaintiff in error.

Francis G. Caffey, U.S. Atty., and Frank M. Roosa, Asst. U.S. Atty., both of New York City.

Before ROGERS and HOUGH, Circuit Judges, and LEARNED HAND, District judge.

ROGERS Circuit Judge (after stating the facts as above).

The defendant insists that he did not have a fair trial, and that one of the jurors had knowledge of the facts of the case before he was chosen as a juror. The allegation is that it was discovered after the trial was concluded that the wife of one of the jurors had herself been a client of the Reliance Leasing Company, having registered with it on June 28, 1915, for a period of six months, paying to it the sum of $15.

The trial began on February 21, 1917. The facts were brought to the attention of the trial court upon a motion for a new trial. At that time affidavits of the juror involved, and of his wife, were presented to the court. His affidavit stated that at the time he became a juror he had no knowledge that his wife had had any transaction with any person representing the Reliance Leasing Company, and that he did not know of it until some time after the trial was concluded; that during the trial he had not discussed the case with her, except to say that he was sitting as a juror in a case and regretted that it was taking so much of his time and causing him so much delay in his business; that he might have stated to her he was sitting in a mail fraud case, but that he had no recollection of that; that he was organizing a new company, and that by reason thereof he rarely returned home until about 10 o'clock in the evening; that the organization of the company was of such vital importance to him and his wife that neither of them had any interest in the case; that the first time he discussed the case with his wife was some ten days or two weeks after the trial, when a cartoon appeared in an evening paper which referred to the Reliance Leasing Company. The affidavit of the wife was to the same effect. The motion for a new trial having been denied, this court is not at liberty to review the matter. The law is so well established that the action of the trial court in refusing a new trial cannot be reviewed in this court on writ of error that no citation of the authorities is necessary.

The cases of Mattox v. United States, 146 U.S. 140, 13 Sup.Ct. 50, 36 L.Ed. 917, and McDonald v. Pless, 238 U.S. 264, 35 Sup.Ct. 783, 59 L.Ed. 1300, do not assert a contrary doctrine. What the court held in the first of these cases was that on a motion for a new trial the decision of the District Court excluding certain affidavits of jurors was reversible error. In the latter case on a motion for a new trial one of the jurors was sworn as a witness to testify concerning certain matters transpiring in the jury room, and the question was whether a juror could impeach his own verdict. The two cases referred to simply show that the action of the trial judge in admitting or excluding affidavits presented in connection with a motion for a new trial may be considered on writ of error. But that is a very different matter from reviewing the discretion of the trial judge in granting or refusing a new trial. In the case at bar the affidavits were not excluded.

But there is another and equally conclusive reason why this court cannot consider the objection raised, and that is that it is not included in the assignment of errors, and it is no part of the bill of exceptions.

The defendant also alleges that his constitutional rights were violated by the admission in evidence of papers produced under subpoena from the files of his corporation, the Reliance Leasing Company. He relies upon the Fourth Amendment of the Constitution, which provides as follows:

'The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

He also relies upon the Fifth Amendment, which provides in part as follows:

'Nor shall he be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property without due process of law. * * * '

The papers and records which were admitted in evidence were produced in obedience to a grand jury subpoena duly served upon an employe who was in sole charge of the office of the corporation at the time such service was made. Later the counsel for defendant requested the return of the papers, and they were returned by the United States attorney, and a receipt was signed by the defendant's counsel, which states that the papers belonged to the Reliance Leasing Company. A subpoena duces tecum, before the beginning of the trial, was served upon the defendant, who was the president of the corporation, requiring him to produce the papers in court, and they were so produced. The law is now well established that a corporation is not privileged from the production of its books and papers, even though they tend to incriminate an officer thereof. Johnson v. United States, 228 U.S. 457, 33 Sup.Ct. 572, 57 L.Ed. 919, 47 L.R.A. (N.S.) 263; Grant v. United States, 227 U.S. 74, 33 Sup.Ct. 190, 57 L.Ed. 423; Wheeler v. United States, 226 U.S. 478, 33 Sup.Ct. 158, 57 L.Ed. 309; Wilson v. United States, 221 U.S. 361, 31 Sup.Ct. 538, 55 L.Ed. 771, Ann. Cas. 1912D, 558.

The trial judge advised the counsel for the defendant to examine all the papers that came from the office of the corporation and find whether any of them were the exclusive property of the defendant, and plenty of time was afforded him for the examination. None of the personal papers of defendant were either offered or received in evidence. If papers were originally taken from the office of the corporation without authority of law, they were returned upon demand being made, and if they had not been it would have been the duty of the court upon application made to it to have caused their return. Weeks v. United States, 232 U.S. 383, 34 Sup.Ct. 341, 58 L.Ed. 652, L.R.A. 1915B, 834, Ann. Cas. 1915C, 1177. That question is not now involved, the papers having been voluntarily returned. But counsel urged upon us at the argument that this case should be governed by the principle applied by this court in Flagg v. United States, 233 F. 481, 147 C.C.A. 367 (1916). In that case, as in this, the defendant was indicted for devising a scheme to defraud and using the mails in furtherance thereof; and in that case, as in this, the books and papers at the accused's place of business were seized and taken to the federal building, where they were examined by the federal authorities, who ultimately, upon demand having been made, returned them to his office. We held in that case that a conviction based upon evidence procured from the books and papers so taken without pretense of legal authority could not be sustained, and we placed our decision upon the broad ground that the constitutional rights of the defendant were violated by the unlawful seizure of his books and papers by the officers and agents of the United States, acting without warrant or pretense of legal authority. The wrong done in the seizure of the books was not cured by the idle ceremony of returning them after the authorities of the United States had obtained their desired information.

The similarity of the two cases has been noted. It remains simply to point out the dissimilarity between the two cases, a dissimilarity so great as to make it impossible to apply the principle involved in that case to the facts of this one. The books and papers seized in the Flagg Case were the private books and papers of an individual. The books and papers in this case were the books and papers of a corporation. While a person is privileged from producing his books in a prosecution against himself, a corporation is not privileged from producing its papers and books, even though they incriminate the officer who produces them. The distinction is clearly pointed out in Wilson v. United States, supra.

It is assigned for error that the trial judge erred in denying the request of the defendant to charge that good...