United States v. Bolles
| Decision Date | 10 November 1913 |
| Citation | 209 F. 682 |
| Parties | UNITED STATES v. BOLLES et al. |
| Court | U.S. District Court — Western District of Missouri |
Edward J. White, J. G. L. Harvey, and H. S. Hadley, all of Kansas City, Mo., for petitioners.
S. R Rush, Sp. Asst. Atty. Gen., and Francis M. Wilson, U.S Atty., of Platte City, Mo., opposed.
R. J Bolles, A. D. Hart, John Matthews, George A. Paddock, R. J Martin, and Joseph H. Borders have filed a petition reciting the following facts:
1. The purchase in 1908 by Richard J. Bolles from the state of Florida of 500,000 acres of land known as Everglade lands, in Palm Beach and Dade counties in that state, the state of Florida agreeing that it would drain said land in accordance with the condition of the grant of said land to said state by the United States.
2. That during the year 1909 said Bolles, with John Matthews, A. D. Hart, and H. R. Ray, organized, under the laws of Colorado, the Florida Fruit Lands Company, which purchased from Bolles 180,000 acres of said land.
3. That during the year 1909 the Florida Fruit Lands Company entered into a contract with R. J. Martin and Joseph H. Borders for the sale of 180,000 acres of land, and that thereafter the sale of said land was conducted by Martin and Borders, as agents of the Florida Fruit Lands Company, and that certain literature was used in furtherance of the sale thereof; the representations contained therein being based upon written and oral representations to the officers of said company and Martin and Borders, by the state officials of the state of Florida, the official reports of the said state, and the reports and publications of the United States Department of Agriculture.
4. That upon said representations said lands were sold to about 12,000 purchasers, as tenants in common, and that pursuant to the terms of their contract of purchase, after the purchase price had been fully paid, said lands were conveyed by the Florida Fruit Lands Company to Joseph H. Borders, Claude E. Sawyer, and Fred L. Hoag, as trustees for said purchasers, in order that the lands might be divided among them.
5. That prior to the beginning of the sale of said land the contract for the sale and the plan of dividing the same were submitted to and received the approval of the Assistant Attorney General of the Post Office Department of the United States. That the deed was delivered by the Florida Fruit Lands Company to said trustees on March 15, 1911, and the lands were divided among the purchasers on that day.
6. The petitioners state that they are advised that the grand jury now in session is investigating the question of whether in the sale of said lands there has been any violation of any of the laws of the United States in the Western division in the Western district of Missouri.
7. The petitioners allege that in making the sale and distribution of said lands they have not violated any of the laws of the United States, and request that certain instructions be given to the grand jury, 'to summon certain witnesses and examine certain documents before finally deciding whether indictments shall be returned.'
8. The following persons are designated as the witnesses referred to: F. C. Elliott, present chief engineer of the trustees of the internal improvement fund of the state of Florida; Albert W. Gilchrist, former Governor of Florida; Gov. Trammel, present Governor of Florida and Attorney General of the state at the time said lands were sold; W. H. Ellis, former Attorney General of the state, now attorney for the trustees of said internal improvement fund; William O'Brien, attorney for the Florida Fruit Lands Company; and George L. Davis, who represented said company in certain civil litigations.
The books, papers, and documents desired are Senate Document 87; report of William R. Harr, Assistant Attorney General; application for the purchase of the land; deed of the Florida Fruit Lands Company to the trustees; Act of Congress of September 28, 1850, c. 84, 9 Stat. 519; Act of the Legislature of Florida accepting grant, passed in 1855; Acts of Florida of 1881, chapter 3326; General Statutes of Florida 1906, sections 620-628; decision of the Supreme Court of Florida in the case of Trustees of the Internal Improvement Fund v. Root, 63 Fla. 686, 58 So. 371; deed from the state of Florida to Richard J. Bolles; transcript of evidence of Joseph H. Rodes in the civil suit recently tried in the circuit court of Jackson county, Mo.
Petitioners further request that they be permitted to appear and testify under oath before the grand jury; they waiving all rights, privileges, and immunities.
The petition closes with the following paragraph:
'Said petitioners in submitting this request urge upon the consideration of this honorable court that they are entitled, as citizens of the United States who have never heretofore been charged or convicted of any violation of its laws or the laws of any state, to the full and complete investigation by the present grand jury of the charges presented against them, and that they have as much right as citizens of the United States to enjoy immunity from indictment, if not guilty, as they have the right to enjoy immunity from conviction, if not guilty; that the chief law officer of the United States, the Attorney General, has once fully heard and investigated the matter now being investigated by this grand jury and decided that there was no basis or warrant for indictment or investigation; and that petitioners are entitled to the benefit of said decision, at least to the extent of being permitted to present their side of this controversy for the consideration of this grand jury.'
To this petition the special assistant to the Attorney General and the United States attorney have filed a response, wherein they declare their intention to submit to the grand jury every document, act of Congress, act of Legislature of Florida referred to in the petition with the exception of the following:
(1) Report of William R. Harr, Assistant Attorney General.
(2) Transcript of evidence of Joseph H. Rodes in a certain civil suit tried in the circuit court of Jackson county, Mo.
In regard to the persons named in the petition, the response states that F. C. Elliott has been subpoenaed to appear before the grand jury, and that his testimony will be submitted; J. C. Wright was subpoenaed, and on his request was permitted to return home subject to call on telegram; William O'Brien has been subpoenaed and will appear and testify; Albert W. Gilchrist, Gov. Trammel, W. H. Ellis, and George L. Davis have been subpoenaed. The response also states that it is not the purpose of the prosecuting officers to admit the petitioners to testify.
The issue is narrowed to the following points:
(1) The introduction of the report of the Assistant Attorney General, Harr.
(2) The introduction of the transcript of the evidence of Joseph H. Rodes.
(3) The admission of petitioners and certain witnesses on their behalf.
To warrant the return of an indictment it should be based on competent legal evidence, such as is legitimate and proper before a petit jury. 20 Cyc. 1346; U.S. v. Kilpatrick (D.C.) 16 F. 765; U.S. v. Reed, Fed. Cas. No. 16,134.
The report of the Assistant Attorney General would not be competent legal evidence in a trial upon an indictment charging use of the mails in execution of a scheme to defraud, nor upon a charge of the use of the mails in carrying out a lottery scheme. Harrison v. United States (C.C.A. 200 F. 673. It would not therefore be proper to submit it to the grand jury.
With regard to the transcript of evidence of Rodes, it is claimed in the argument that it will contradict, or tend to contradict, any evidence he may give before the grand jury tending to sustain the charge against petitioners.
It is presumed that every witness will tell the truth. Every trial jury is so instructed. The law cannot be administered on any other theory. The contradiction of a witness by statements differing from those made by him on the stand is a form of impeachment. Impeachment involves the trial of a collateral matter; that is, the credibility of the particular witness. The machinery of the grand jury is not adapted to that character of inquiry. In this case it would require the investigation of the issues involved in the civil suit, competency and admissibility of the alleged contradictory statements, which are questions for the court, and the effect of such contradictory statements, which is a question for a trial jury.
The basis of the claim of petitioners for the order prayed for is shown in the paragraph above quoted. They allege:
'That they have as much right, as citizens, to enjoy immunity from indictment, if not guilty, as they have a right to enjoy immunity from conviction, if not guilty.'
As a necessary conclusion, they allege that they have the right 'to present their side of this controversy for the consideration of this grand jury. ' The effect of this contention, if sustained, is to make the function of the grand jury identical with that of a trial jury. It was urged in argument that the claims above stated follow from a more liberal modern view of the powers and duties of a grand jury. The place that the grand jury occupies in the administration of the criminal law of this country, and the extent of the field of its inquiries, are readily ascertained and defined. The statement made by Blackstone, who died in 1780, of the procedure before a grand jury, may be taken as a correct view of the procedure as it existed in his time, and as it came to us. In Book 4, at page 302 of his Commentaries, he says:
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