Olmstead v. United States

Decision Date09 May 1927
Docket NumberNo. 5016.,5016.
CourtU.S. Court of Appeals — Ninth Circuit

J. L. Finch and Paul Carrigan, both of Seattle, Wash., for plaintiff in error Olmstead.

J. L. Finch, of Seattle, Wash., for remaining plaintiffs in error.

Thos. P. Revelle, U. S. Atty., and C. T. McKinney, Asst. U. S. Atty., both of Seattle, Wash.

Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.

GILBERT, Circuit Judge.

Ninety-one defendants were indicted for conspiracy to violate the National Prohibition Act (Comp. St. § 10138¼ et seq.). Some of them were not apprehended; some were acquitted; others pleaded guilty. Twenty-one were convicted, 9 of whom join in the writ of error. The conspiracy was charged in two counts: First, a conspiracy to possess, transport, and import intoxicating liquors and to maintain common nuisances; second, a conspiracy to barter, sell, deliver, and furnish intoxicating liquors in violation of the act. There was evidence of the purchase of large quantities of intoxicating liquors in British Columbia, the transportation thereof on the waters of Puget Sound, the landing of the cargoes at various points, the concealment of the same, the employment of a delivery system, in which were engaged scouts, transfer men, office men, salesmen, telephone operators, dispatchers, checkers, and collectors, three bookkeepers, and an attorney. A farm was purchased at which to cache the liquor. A fleet of boats was chartered, and numerous trucks and automobiles were operated. There was evidence of a daily delivery at Seattle of 200 cases of liquor, and of transactions that each month amounted to nearly $200,000.

It is contended that the demurrer to count 1 of the indictment should have been sustained, on the ground that it fails to allege facts sufficient to show the commission of an offense against the United States, in that it does not specify the section of the National Prohibition Act charged to have been violated. The count so demurred to charges conspiracy to violate the provisions of the National Prohibition Act, and sets forth the purpose of the conspirators to be unlawfully and willfully to possess intoxicating liquors in violation of said act, to sell, barter, and exchange said liquors, to transport and possess the same, and knowingly and unlawfully to conduct and maintain common nuisances by keeping, selling, and bartering such intoxicating liquors. The count, we think, was clearly sufficient. With the requisite particularity it sufficiently advised the defendants of the nature and cause of the accusation. Wong Tai v. United States, 47 S. Ct. 300, 71 L. Ed. ___; Miller v. United States (C. C. A.) 300 F. 529; Belvin v. United States (C. C. A.) 12 F.(2d) 548.

If further particularity was desired, the defendants had their remedy by application for bills of particulars, and they subsequently availed themselves of it. The count charges, not that the defendants violated the National Prohibition Act, but that they conspired to violate it. All the details requisite for an indictment for a substantive offense are not necessary in a count for conspiracy. In Williamson v. United States, 207 U. S. 425, 447, 28 S. Ct. 163, 171 (52 L. Ed. 278), the applicable rule is thus stated: "In a charge of conspiracy the conspiracy is the gist of the crime, and certainty, to a common intent, sufficient to identify the offense which the defendants conspired to commit, is all that is requisite in stating the object of the conspiracy."

Error is assigned to the court's ruling on the demand of the defendants for bills of particulars. The demands required an answer to numerous interrogatories calling for many items of evidence, in addition to further specifications of the charges. The court ruled that bills be furnished, setting out the provisions of the National Prohibition Act claimed to have been violated and the kind of alcoholic liquors the defendants conspired to import unlawfully, in addition to those mentioned in the indictment under the charge "divers other intoxicating liquors," etc., and that they set forth the place or places from which, and the place or places to which, the conspiracy contemplated the transportation of intoxicating liquors, and the approximate time when each defendant entered in the conspiracy. It is urged that the denial of the demands for other particulars was in abuse of the court's discretion.

We are convinced that there was no abuse of discretion. There was no failure in the bills of particulars as ordered to furnish sufficient information of the nature and cause of the accusation, in order that the accused might prepare for trial and after judgment be able to plead the record in bar of a further prosecution for the same offense. Bartell v. United States, 227 U. S. 427, 431, 33 S. Ct. 383, 57 L. Ed. 583; Wong Tai v. United States, supra. And we find nothing in the record here to indicate that any of the defendants was taken by surprise in the course of the trial, or prejudiced in any way by the refusal of further information. Here the defendants each demanded a bill of particulars, showing when and by what act he would be shown to be a party to the conspiracy, what act he committed pursuant thereto, what intoxicating liquors he conspired to import, where it was imported from, and to what port and when, what intoxicating liquors he conspired to possess unlawfully, where it was possessed, and when, and so on, with numerous details, all of like nature. To have granted such demands for particulars would have been to unduly limit and embarrass the government, and possibly to shut out material evidence. United States v. Gouled (D. C.) 253 F. 239; United States v. Pierce (D. C.) 245 F. 888; Johnson v. United States (C. C. A.) 5 F.(2d) 471.

It is assigned as error that the court below struck out the pleas in abatement. In the pleas it was alleged in substance that three prohibition officials, together with others acting with them, tapped wires of divers persons in the city of Seattle during a period of several months, and made longhand notes of telephone conversations, which, at the end of each day's work, they passed over to others, to be recorded by dictaphone and subsequently to be typewritten and bound in volumes; that the volumes were brought into the grand jury room by the said prohibition officers, but were not submitted to the grand jury; and that the officers "purported to read passages therefrom" to the grand jury, and explained, interpreted, and expounded the same; that the evidence was irrelevant, incompetent and hearsay; that it was received by the grand jury; and that except and without that testimony no evidence of any character was introduced before the grand jury which proved or tended to prove the defendants guilty of any charge set forth in the indictment.

For a second ground of abatement it was alleged that the indictment was drawn by the district attorney at the instance of Whitney, one of said prohibition officials; that an hour or two before the indictment was returned Whitney called the foreman of the grand jury from the grand jury room and told him that, unless the indictment were returned in the form as presented, he (Whitney) would have a new grand jury called and said foreman would be included in the indictment as implicated in the same offense; that the foreman was thereby coerced to vote for the indictment, and "within an hour or two after said conversation was so held the indictment here was returned into court with the name of said foreman indorsed thereon."

In the plea of the defendant Olmstead it was alleged as a third ground of abatement that some of said prohibition agents had appeared before a United States commissioner and without a showing of probable cause therefor had procured a search warrant to be issued by the commissioner to search said defendant's residence; that the search warrant was illegal, also, in that it directed that search be made for evidence as well as for intoxicating liquor; that said agents and others searched said residence and found no intoxicating liquor, but found and carried away with them by virtue of said warrant a large number of books, papers, and memoranda, which they presented before said grand jury, and thereby greatly influenced the grand jury in returning the indictment; and that, "except for the evidence thus obtained and thus made use of, and the evidence heretofore referred to in the plea in abatement, no evidence of any nature whatever was introduced before said grand jury which proved or tended to prove this defendant guilty of any charge or charges set forth in said indictment."

The court below ruled that objection to the indictment could not be sustained on the ground of the alleged coercion of the foreman by Whitney, there being no allegation that the foreman exerted undue influence, or any influence whatever, upon the jurors, and that as to the other matters alleged in the pleas the court was not required to go behind the return of the indictment, and enter upon an investigation of the relevancy and sufficiency of the testimony to justify the indictment, upon the sole demand of a defendant who, to his plea in abatement, makes affidavit that the facts stated therein are true as he verily believes.

We find no error in the ruling of the trial court. While it is the rule in many jurisdictions that the court will not inquire into the sufficiency of the evidence before the grand jury, the decisions of the Supreme Court and those of most of the inferior federal courts have been to the effect that an indictment cannot be abated, on account of the admission of incompetent or hearsay testimony, unless it affirmatively appear in the plea that no competent evidence of the commission of the offense charged therein was presented to the grand jury, or unless all of the evidence was unlawfully procured in violation of substantial rights of the accused, so as to subject it to exclusion if...

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