United States v. Amazon Industrial Chemical Corporation
| Citation | 55 F.2d 254 |
| Decision Date | 23 December 1931 |
| Docket Number | No. 15026-15028.,15026-15028. |
| Parties | UNITED STATES v. AMAZON INDUSTRIAL CHEMICAL CORPORATION et al. |
| Court | U.S. District Court — District of Maryland |
Simon E. Sobeloff, U. S. Atty., of Baltimore, Md., and Leslie E. Salter, Sp. Asst. to Atty. Gen., for the United States.
Tydings, Levy & Archer, of Baltimore, Md., for American Solvents & Chemical Corporation of Delaware, American Solvents & Chemical Corporation of Maryland, American Solvents & Chemical Sales Corporation of Delaware, William Ulrich, Arthur P. Jell, American Oil & Supply Co., and John J. Butler.
Schimmel & Hettleman, of Baltimore, Md., for Aaron Eisenberg, Ben N. Eisenberg, and Southern Lacquer Co., Inc.
Paul M. Higinbotham, of Baltimore, Md., for Roessler & Hasslacher Chemical Co., Inc.
Cadwalader, Wickersham & Taft, of New York City, for Syrup Products Co., Inc.
Harry O. Levin and R. Palmer Ingram, both of Baltimore, Md., for Baltimore Paint & Color Works.
Squire, Sanders & Dempsey, of Cleveland, Ohio, for Glidden Co.
Tydings, Levy & Archer, of Baltimore, Md., for United States Industrial Alcohol Co. and United States Industrial Chem. Co.
Harry O. Levin and Jesse Fine, both of Baltimore, Md., for Louis B. Sless.
George R. Sommer, of Newark, N. J., for David B. Kaplus.
R. Palmer Ingram and Harry O. Levin, both of Baltimore, Md., for Samuel Albrecht.
George R. Sommer, of Newark, N. J., and R. Palmer Ingram, of Baltimore, Md., for Herman W. Lefkowitz, Kerney Vice, Mid West Chemical Co., Morris Kaplus, and Agricultural Chemical Works.
The question here presented is as to the sufficiency of pleas in abatement and motions to quash three indictments, by which the defendants are charged with having conspired to violate the National Prohibition Act. Summarized, the grounds for these pleas and motions are: First, that unauthorized persons were present before the grand jury which found the indictments; and, second, that the proceedings of the grand jury were not kept secret. In support of each of these grounds the defendants urge various contentions, which are hereinafter stated and separately considered.
The grand jury which returned these indictments was in session from the 5th of March until the 20th of July, 1931. The greater portion of its time was consumed in considering evidence which resulted in the bringing of the three indictments here in controversy, its term being extended by orders of court to enable it to complete its work. A great mass of testimony was presented.
Taking up the first contention, which relates to Mr. Coldiron, a Special Assistant to the Attorney General and one of the two persons whose presence before the grand jury is alleged to have been improper, his authorization is contained in the following appointment by the Attorney General:
Defendants claim that this commission is defective in that it fails to refer, either specifically or generally, to alleged violations of any federal statute. We consider that this argument is too great a refinement and not to be supported. It is true that the nature of the investigation, and the statute alleged to have been violated, are not set out in the appointment; and it is further true that it is customary to describe such an appointment with more particularity than was done in the present case. However, failure to do so is not fatal, because a mere matter of form and not of substance. The authority for the Attorney General's appointment of Mr. Coldiron is embraced in the Act of June 30th 1906, 34 Stat. 816 (5 USCA § 310), which is as follows: "The Attorney General or any officer of the Department of Justice, or any attorney or counselor specially appointed by the Attorney General under any provision of law, may, when thereunto specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrates, which district attorneys may be by law authorized to conduct, whether or not he or they be residents of the district in which such proceeding is brought."
Whether there was authority prior to the passage of this act for the presence of any representative of the Department of Justice in the grand jury room, other than the United States attorney for the particular district, is a question which we need not here determine. See 5 USCA §§ 312 and 315. It appears that in order to set at rest any question as to the right of special assistants to appear, the Act of June 30, 1906, was passed; there having been a disagreement in the decisions as to the scope of the earlier statutes. See U. S. v. Rosenthal (C. C.) 121 F. 862; U. S. v. Cobban (C. C.) 127 F. 713; U. S. v. Twining (D. C.) 132 F. 129.
Numerous cases have been cited to the court from other districts from which it would appear that those districts have been inclined to insist upon a rather full and specific designation of the offense, and of the statute alleged to have been violated. But this is a procedural matter, largely within the discretion of the courts of the various circuits, and, at most, the appointment now in controversy is merely a variance from an established practice of which a defendant himself has no right to complain. Even if the wrong statute is named in an indictment, the indictment may be good, provided the facts alleged therein constitute a crime. See Williams v. U. S., 168 U. S. 382, 18 S. Ct. 92, 42 L. Ed. 509. A fortiori, must the form of the present appointment be adequate.
The second point made against the validity of Mr. Coldiron's commission is that, while naming twelve defendants that were subsequently indicted in two of the indictments, it fails to name a number of other defendants embraced in the third indictment; and also that none of the twelve individuals and corporations so named in the commission and indicted in two of the indictments were associated, or indicted with those in the third indictment.
This contention we also find to be without merit for the reason that the commission, by the inclusion of the words "and others" after naming the twelve defendants, obviously contemplated an extensive investigation, which might embrace persons or corporations not at the moment sufficiently disclosed as to their activities to enable their being specifically named. Defendants argue that the inclusion of the phrase "and others" cannot be taken as a blanket catch-all; that its proper meaning is "others associated with them"; that it was never intended to mean "all others"; but that its general terms are limited by the specific names preceding it. In support of this contention, we are referred to such cases as Winder v. Caldwell, 14 How. 434, 14 L. Ed. 487. But in those cases statutes obviously requiring precise and narrow construction were involved — an entirely different question from that involved in the exercise of an undoubtedly very broad power on the part of the Attorney General to clothe his subordinates with authority to make any appropriate investigation or prosecution, having to do with any alleged offense under any laws of the United States. For decisions giving similar appointments a broad and sensible interpretation, see U. S. v. Martins (D. C.) 288 F. 991; U. S. v. Morse (D. C.) 292 F. 273; see also Horwitz v. U. S. (C. C. A.) 5 F.(2d) 129.
Finally with respect to the sufficiency of Mr. Coldiron's commission, it has been suggested, but not stressed, that the oath which he took, and which is as follows, was not in compliance with the Act of June 30, 1906:
We consider this suggestion entirely trivial. The oath is entirely sufficient as to form and substance. The fact that Mr. Coldiron took it in Washington, rather than the district of Maryland, is immaterial.
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