Pereles v. Weil

• Decision Date: 15 November 1907
• Citation: 157 F. 419
• Parties: PERELES et al. v. WEIL, U. S. Marshal.
• Court: U.S. District Court — Eastern District of Wisconsin

157 F. 419

PERELES et al. v. WEIL, U. S. Marshal.

United States District Court, E.D. Wisconsin.

November 15, 1907

Charles Quarles, Hugh Ryan, W. J. Turner, and Jas. G. Flanders, for petitioners.

E. J Henning, Asst. U.S. Atty.

SANBORN District Judge.

This is a habeas corpus proceeding brought by the defendants, James M. Pereles, Thomas J. Pereles, Guy

D Goff, Charles F. Hunter, and Henry M. Benjamin. Petitioners were held to bail by Francis Bloodgood, Commissioner of the United States, in a proceeding commenced before him upon complaint of the Assistant District Attorney of this district, charging a conspiracy to defraud the United States and praying for the apprehension of the defendants. Petitioners were arrested under a commissioners warrant, and a hearing was had before the commissioner under section 1014, Rev. St. U.S. (U.S. Comp. St. 1901, p. 716). At such hearing or examination the government offered an indictment found by a grand jury at Denver, Colo., charging defendants with conspiracy, and also gave proof of the identity of the petitioning defendants. The commissioner thereupon held that more than three years had elapsed from the time of the formation of the conspiracy, as alleged in the indictment, and that while there was proof of overt acts within three years from finding the indictment, there was nothing to show any conscious participation of the defendants in the conspiracy at the time of the commission of such overt acts. Evidence was then introduced by the government, upon which the commissioner found a conscious participation of the defendants in the conspiracy at the time of the commission of overt acts by some of the defendants within three years from the finding of the indictment, and concluded that the prosecution was not barred. The commissioner also found from the evidence before him that the conspiracy was formed at Milwaukee, Wis., and not at Glenwood Springs, Colo., as charged in the indictment; but he further held that the commission of overt acts in Colorado enabled the government to prosecute the defendants either in Colorado or Wisconsin. He therefore held the petitioners, residents of Milwaukee, to bail. Petitioners declined to give bail and were taken into custody by the marshal, whereupon they brought their petition for habeas corpus and certiorari. Both writs were issued, and under the latter proceeding all testimony and exhibits before the commissioner were returned into court. No motion for an order for the removal of the defendants to Colorado for trial has as yet been made by the United States. The commissioner discharged the defendants, Johnson, Wehr, Canright, and Carter on the ground that they were not shown to have participated in the renewed conspiracy within three years before the finding of the indictment.

Upon the hearing of the habeas corpus proceeding, the petitioning defendants raised the question of venue and of the jurisdiction of the District Court for the District of Colorado, on the ground that the alleged offense was found by the commissioner to have been committed and was actually committed in Milwaukee, Wis., and not in Colorado, and that the commission of overt acts in Colorado would not give the Colorado court any jurisdiction to try the defendants in that district. They also questioned the sufficiency of the indictment, and urged that neither the indictment nor the testimony before commissioner shows any conscious participation of the petitioning defendants within three years next before the finding of the indictment.

In an examination by commissioner under section 1014, Rev. St., the indictment is presumptive evidence of probable cause as against the defendants. Hyde v. Shine, 199 U.S. 62, 25 Sup.Ct. 760, 50 L.Ed. 90;

Tinsley v. Treat, 205 U.S. 20, 27 Sup.Ct. 430, 51 L.Ed. 689. In this proceeding it is necessary to be determined whether an offense against the United States has been committed, and whether there is probable cause to believe the defendants guilty. In re Richter (D.C.) 100 F. 295; Horner v. U.S., 143 U.S. 207, 12 Sup.Ct. 407, 36 L.Ed. 126; Greene v. Henkel, 183 U.S. 249, 22 Sup.Ct. 218, 46 L.Ed. 177. Under the sixth amendment to the Constitution there is also a question whether the petitioning defendants shall be removed for trial to the district in which the indictment was found, and whether the District Court of that district has jurisdiction of the offense charged in the indictment. The sixth amendment to the Constitution provides that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury within the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law. It is also the rule in habeas corpus proceedings that in determining the question of probable cause the court will not review the finding of the commissioner where the evidence is conflicting. The question is, whether the evidence as a whole supports the finding? The court may review the evidence to ascertain what it really shows, and if it finds that all the evidence taken together does not support the commissioner's finding of probable cause, his ruling may be disregarded, and the defendants discharged. Ex parte Rickelt (C.C.) 61 F. 203; In re Byron (C.C.) 18 F. 722; Horner v. U.S., 143 U.S. 570, 12 Sup.Ct. 522, 36 L.Ed. 266; Terlinden v. Ames, 184 U.S. 270, 22 Sup.Ct. 484, 46 L.Ed. 534; Ornelas v. Ruiz, 161 U.S. 509, 16 Sup.Ct. 689, 40 L.Ed. 789; Grin v. Shine, 187 U.S. 181, 23 Sup.Ct. 98, 47 L.Ed. 130; In re Wadge (C.C.) 16 F. 332; U.S. v. Peckham (D.C.) 143 F. 625; Hyde v. Shine, 199 U.S. 62, 25 Sup.Ct. 760, 50 L.Ed. 90; U.S. v. Lantry (C.C.) 30 F. 233. If the indictment is not sufficient on its face to show that an offense against the United States has been committed, the defendants should be discharged. U.S. v. Conners (D.C.) 111 F. 734; Greene v. Henkel 183 U.S. 249, 22 Sup.Ct. 218, 46 L.Ed. 177; U.S. v. Lantry (C.C.) 30 F. 232; In re Byron (C.C.) 18 F. 722; In re Greene (C.C.) 52 F. 104; In re Doig (C.C.) 4 Fed. 193; In re Buell, 3 Dill. 116, Fed. Cas. No. 2,102; In re Corning (D.C.) 51 F. 205; In re Terrell (C.C.) 51 F. 213; In re Wolf (D.C.) 27 F. 606; In re Huntington (D.C.) 68 F. 881. If the indictment is good in substance, lacking only some technical averment of time or place or circumstances required to render it free from technical defects, the order for removal will be issued if the evidence supplies such defects, and shows probable cause to believe defendants guilty. Greene v. Henkel, 183 U.S. 249, 22 Sup.Ct. 218, 46 L.Ed. 177; Tinsley v. Treat, 205 U.S. 20, 31, 27 Sup.Ct. 430, 51 L.Ed. 689.

The first question to be considered is the substantial sufficiency of the indictment, for if it states no offense the petitioners should be discharged. The indictment charges the conspiracy or agreement, the means to be employed, and the overt acts. In effect it states: Defendants unlawfully, corruptly, wickedly, and maliciously conspired, combined, confederated, and agreed together. They so conspired to obtain from the United States, for the Wisconsin Fuel & Mining Company, afterwards incorporated by some of the defendants, and not made a defendant, 962 acres of coal lands in excess of the quantity the corporation could lawfully obtain under the coal land act. The means by which the land was to be obtained were by certain of the defendants making entries as individuals, paid (paying) the government price, thereby securing patents vesting title in the entrymen, and making conveyance of such title to the corporation, the moneys necessary to make such payment being in fact furnished by the corporation. Overt acts, consisting of signing applications or declaratory statements, signing deeds running to the corporation, procuring patents, and making payments for the entries to the receiver of the land office. It is not charged that the obtaining of the land was fraudulently, knowingly, or intentionally done, nor that the entries were simulated, fictitious, or mala fide. There is no averment of deceit practiced, nor facts suppressed, nor land officers misled, nor of the contemplated commission of intentional fraud. All that appears is the making of entries which vest title in the entrymen, and then combining or consolidating the several titles in the corporation. It is not charged that the titles were fraudulent, void, or even voidable; the patents were to vest the title.

In this connection it may also be stated that the evidence taken by the commissioner clearly shows that the petitioners were innocent of any intention to commit any fraud or do any wrong. There is no indication of concealment. In December 1902, shortly after the scheme of acquiring coal lands was launched, they published and distributed a prospectus in which it was stated that it was the purpose of the directors to avail themselves out of the proceeds of the first sales of the treasury stock for the purpose of completing the payments to the government for the entered lands. This circular, in the absence of any charge of fraud, concealment, or wrongful intent in the indictment, and of any evidence of scienter, or suspicion of any consciousness of wrongdoing in the evidence, must certainly acquit defendants of any intentional fraud. The commissioner found that no wrongful intent was shown, but held that this question was one for the trial court in Colorado. If, therefore, petitioners are to be held for trial, it is because the acts done by them operate as a fraud, so that a corrupt intent is part of and implied from the very acts themselves. The acts forbidden, as will be seen later, not being themselves criminal, and there being no charge of evil intent, or that the acts were knowingly,...