Metzler v. United States

• Decision Date: 27 March 1933
• Docket Number: No. 6829.,6829.
• Parties: METZLER et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

64 F.2d 203 (1933)

METZLER et al. v. UNITED STATES.^*

No. 6829.

Circuit Court of Appeals, Ninth Circuit.

March 27, 1933.

COPYRIGHT MATERIAL OMITTED

R. B. McMillan, of San Francisco, Cal., and E. S. Mitchell, of Eureka, Cal., for appellant Metzler.

Blaine McGowan, of Eureka, Cal., for appellant Lennon.

Geo. J. Hatfield, U. S. Atty., of San Francisco, Cal., Albert E. Sheets, Asst. U. S. Atty., of Sacramento, Cal., and Chellis M. Carpenter, Asst. U. S. Atty., of San Francisco, Cal., for the United States.

Before WILBUR, SAWTELLE, and MACK, Circuit Judges.

WILBUR, Circuit Judge.

S. E. Metzler and J. J. Lennon, together with ten other named defendants, were indicted on December 30, 1930, for conspiracy to commit unlawful acts of manufacturing, transporting, possessing, and selling alcohol, whisky, wine, and beer in Humboldt county, Cal. At the times mentioned in the indictment S. E. Metzler was the district attorney of Humboldt county and J. J. Lennon was county detective, having been appointed by Metzler shortly after he assumed the office of district attorney. Two defendants, Roy Wherry and L. B. Updike, pleaded guilty at the time of trial and eight others were acquitted. Defendants Metzler and Lennon, having been found guilty by the jury, bring this appeal.

We quote from the government's brief the circumstances tending to show guilt which are substantiated by the evidence:

"In the summer and fall of 1926 there was a campaign and election for county attorney.

"Appellant Metzler, with the aid of some of the defendants, some of whom were known bootleggers, was elected to that office.

"There is evidence which shows that in 1926 the district attorney-elect, prior to taking office, decided to eliminate the prohibition squad, and after taking office hired, with others, as county detectives, those defendants who were known bootleggers and who, after accepting said employment, continued in more or less degree to ply their trade. Appellant Lennon was one of them.

"There is evidence that appellant Metzler and some of his political associates who were named as defendants in this case, including appellant Lennon, were trying to obtain money, and did obtain money, from persons who were in the liquor business and from others who contemplated entering the business in exchange for protection against honest prosecution; that part of the understanding was that if the general public began to complain so often as to make inaction on the part of the district attorney noticeable, the bootlegger would be required to submit to a friendly form of prosecution, pay the fine or, if it was a jail sentence, to be permitted to substitute another person in lieu of the bootlegger to serve the same.

"That the county attorney elected as head of the enforcement department of the county government and appellant Lennon as his chief aid were not vigilant in any part of said county in the prosecution of liquor violations.

"That violations of the state prohibitory laws by certain persons well known to the police and the sheriff's office to be consistent liquor sellers with records were open, notorious and continuous for months.

"That large quantities of liquor which had been seized were converted to the use of appellants and their associates and consequently not destroyed as required by law.

"That appellant Lennon as chief aid to the county attorney-elect and other associates of both were actually engaged in the distribution of intoxicating liquor and in sales at prices above the market.

"That when prosecution was instituted persons other than the real offenders were brought into court.

"That liquors purchased from persons connected with the scheme were sold by those paying protection, with full knowledge of the district attorney and his county detectives so long as they made their payments for protection.

"That failure to pay for protection was a signal for raids and prosecutions."

From this chain of circumstances the government contends that the inference that there was a tacit agreement between appellants and others to violate and aid and assist others in violation of the National Prohibition Act is inescapable.

One of the main contentions of appellants is that even though the evidence shows the commission of unlawful acts by individual defendants, there is no showing that there was a common motive necessary to prove a conspiracy. A conspiracy may be shown by circumstantial evidence from which common design is the logical inference. Coates v. U. S. (C. C. A.) 59 F.(2d) 173; Burkhardt v. U. S. (C. C. A.) 13 F.(2d) 841.

The court denied appellants' pleas in abatement and motions to quash the indictment.

It appears from the record that one Ben A. Purrington was appointed assistant United States attorney mainly for the purpose of attending the sessions of the grand jury and reporting the testimony of the witnesses in the proceedings culminating in this indictment. The appellants contend that the presence of Purrington in the grand jury room was unauthorized and invalidated the indictment. There seems to be some conflict in the authorities, but the clear weight of authority is to the effect that the presence of an assistant United States attorney in the grand jury room, even though appointed for the sole purpose of reporting the testimony given there, does not invalidate the indictment. Hale v. U. S. (C. C. A. 8) 25 F.(2d) 430; Wilkes v. U. S. (C. C. A. 6) 291 F. 988; Wilson v. U. S. (C. C. A. 2) 229 F. 344; May v. U. S. (C. C. A. 8) 236 F. 495; U. S. v. Amazon Industrial Chemical Corp. (D. C.) 55 F.(2d) 254. The pleas in abatement and motion to quash the indictment interposed by the appellants were properly overruled.

Purrington, while testifying at the trial, was permitted, over appellants' objection, to read in evidence from his shorthand notes taken at the grand jury proceedings the confessions made by defendants Kline and Carroll. Appellants claim that this ruling was erroneous because it permitted a violation of the secrecy of the grand jury proceedings. After the indictment has been found and made public and the defendants apprehended, the policy of the law does not require the same secrecy as before. Atwell v. U. S. (C. C. A. 4), 162 F. 97, 100, 17 L. R. A. (N. S.) 1049, 15 Ann. Cas. 253; U. S. v. Amazon Industrial Chem. Corp., supra. Where the ends of justice can be furthered thereby and when the reasons for secrecy no longer exist, the policy of the law requires that the veil of secrecy be raised.

Counsel for appellants requested that they be permitted to inspect a transcript of the whole of the testimony given before the grand jury, which transcript was then in the hands of the United States attorney. The denial of this request is also assigned as error. The shorthand notes, from which some of the testimony so taken was read by the witness, were offered in evidence, and for convenience a transcript of the specific notes read was made and substituted with the consent of the court and counsel for the shorthand notes. The transcript of the whole of the grand jury proceeding in the hands of the prosecuting attorney was a confidential matter to which the defendants had no right. The trial court, when requested so to do, instructed the jury that the testimony thus read by the witness was limited to the defendants Kline and Carroll and should be disregarded as far as the other defendants were concerned. The appellants were not prejudiced thereby.

There is evidence to the effect that Metzler stated he had received a $100 bribe to "let Stone down easy" on a bootlegging charge and that he told the sheriff that he "could get some, too," thus inviting him to join the conspiracy. As tending to show that Stone was "let down easy," a certified copy of the docket entries in the Humboldt county justice's court in the case of People v. Stone, No. 7032, and the register of actions of the superior court for said county in the case of People v. Stone, No. 12596, were offered by the government. This evidence was objected to as immaterial upon the ground that there is nothing to connect up any of the other defendants therewith and that, if any conspiracy existed at all in this connection, it was a conspiracy between Stone and Metzler. There is also evidence that the defendants Metzler and Lennon shared in the bribes given to avoid or ameliorate prosecutions for liquor violations. It is not necessary that everything that is claimed to have been done in furtherance of the general scheme of the conspiracy should be done by all of the co-conspirators in order to be admissible in evidence. The ruling of the court was correct. For the same reason evidence of an ineffective prosecution by appellant Metzler of L. B. Updike for a violation of the liquor laws, and the dismissal thereof on his motion therefor, was admissible. The indictment and search warrant in that case were admissible for the purpose of showing the fact of such prosecution and termination thereof.

The testimony given by the witness French is to the effect that in the summer months of 1925 or 1926 French was employed by appellant Lennon to operate a still with and for him on Lennon's property known as Flannigan ranch and that between 800 and 1,000 gallons of liquor were distilled, which were taken away from time to time from that ranch, mostly at night, by Lennon. This evidence was objected to on the ground that the matters testified to took place before January 3, 1927, the date from and after which the conspiracy is charged in the indictment. The court should allow a wide latitude in the proof of a conspiracy charge. Williamson v. United States, 207 U. S. 425, 28 S. Ct. 163, 52 L. Ed. 278. The tendency of this evidence was to show a large and illegal business in which French and Lennon and probably other conspirators were engaged. The evidence showed that Lennon continued to use the Flannigan ranch in connection with his bootlegging activities after he was appointed county...