United States v. Brasley

• Decision Date: 01 January 1920
• Docket Number: 148.
• Citation: 268 F. 59
• Parties: UNITED STATES v. BRASLEY et al.
• Court: U.S. District Court — Western District of Pennsylvania

268 F. 59

UNITED STATES v. BRASLEY et al.

No. 148.

United States District Court, W.D. Pennsylvania.

May Term, 1920

A. P Burgwin, Asst. U.S. Atty., of Pittsburgh, Pa.

Ben Paul Brasley, of Pittsburgh, Pa., for defendants.

ORR District Judge.

A petition has been filed by Simon Brasley, Leon Krieger, and Bessie B. Cohen for an order upon the United States attorney requiring him to return certain sales slips, papers, and records which the petitioners aver belong to them, and which they charge were unlawfully taken from them, and used against them, in violation of their rights as guaranteed by the Fourth and Fifth Amendments to the Constitution of the United States. The facts material to the issue raised by the said petition and an answer thereto, filed by a former United States attorney, are as follows:

Said United States attorney, on the 3d day of May, 1920, presented to this court his petition for subpoenas duces tecum entitled:

'In the Matter of the Grand Jury Investigation of Alleged Violations of the Act of August 10, 1917, as Amended by the Act of October 22, 1919, and Section 37 of the Criminal Code of the United States, on the Part of the Brasley-Krieger Shoe Company, Simon Brasley, Leon Krieger, and Bessie B. Cohen, Owners and Officers Thereof.'

Said petition contained the averments that his attention had been called by various persons, including officers and agents of the government of the United States, to alleged violations of the said acts of Congress by the persons named as aforesaid, that he believed that the said persons were guilty, that the grand jury was now sitting in this district, and that he believed it to be his duty to bring such matters before the grand jury for investigation, and that in the conduct of such investigation certain documentary evidence should be produced. There is an averment in the petition that the Brasley-Krieger Shoe Company conducted a chain of retail stores as follows: Fifth Avenue, Pittsburgh; Frankstown Avenue, Pittsburgh; Homestead, and Braddock-- all within this district. The petition contained the prayer for leave to issue subpoenas duces tecum directed to the Brasley-Krieger Shoe Company, its officers, agents, and employes hereinafter named, requiring them to produce the documentary evidence as follows, to wit:

'To the Brasley-Krieger Shoe Company, Simon Brasley, Leon Krieger, and Bessie B. Cohen, Pittsburgh, Pa., to appear before the grand jury and with you bring: All books showing all sales of shoes made by the Brasley-Krieger Shoe Company since October 22, 1919, together with the price received in consideration thereof; also all contracts for hire of clerks and employes that have been in the employ of the company since October 22, 1919; also all books showing the wage or salary accounts of such clerks, together with all pay rolls and all canceled checks in payment of wages and salaries; and also all books or records of account showing commissions paid to clerks in addition to or in connection with their regular pay, wages or salary; also all books and records of accounting for the portion of the sale price of shoes over and above the regular fixed and marked price of such shoes; also all sales tickets showing sales made since October 22, 1919.'

On the same day the court ordered and directed that subpoenas duces tecum issue as prayed for, and on the same day the subpoenas were issued. There was no time stated in the subpoenas at which the witnesses should appear, but they were required to appear 'forthwith.' The United States attorney did not cause the subpoenas to be served as soon as they were issued, but directed them to be served on the 5th day of May, 1920. In addition to the subpoenas duces tecum, other subpoenas were issued, summoning clerks of the Brasley-Krieger Shoe Company to appear and testify before the grand jury. All of these subpoenas were served on the morning of the 5th of May, 1920, by special agents or officers of the Department of Justice. It appears that four of said officers or special agents, named Van Vleck, Rice, Morgan, and Murdock, went to the Fifth avenue store. Mr. Rice and Mr. Van Vleck went into the store first, leaving Mr. Morgan and Mr. Murdock outside. Mr. Morgan had the subpoenas for the clerks. It was arranged that he should remain outside until Mr. Rice had served the subpoenas duces tecum. Mr. Rice served the subpoenas duces tecum upon Mrs. Bessie B. Cohen, by giving her a copy of the subpoena, which she read. Thereupon Mr. Van Vleck left the store and notified Mr. Morgan that service had been made upon Mrs. Cohen, whereupon Mr. Morgan entered the store and served subpoenas upon certain of the employes. Mr. Morgan and Mr. Rice remained in the store until the books and papers were done up in packages and ready to be taken before the grand jury, and they accompanied the clerks and the books to the Federal Building, where the grand jury was in session; the said two agents carrying the packages containing the books from the store to the Federal Building. Mrs. Cohen asked Mr. Rice if it would not be possible for him to wait a while and permit part of her clerks to go to luncheon. According to his testimony, he said:

'I would be very glad to do it, and as I remember I waited in her store 40 minutes, in order to enable part of her clerks to go to lunch.' The records desired were kept in the office, which was located on a balcony in the store. Mrs. Cohen proceeded up to the office to get the records, and, as Mr. Rice testified, after she had been there about two minutes, Mr. Morgan said: 'We had better go up.' Mr. Morgan went up to the office, and so did Mr. Rice. Mr. Rice, in direct examination was asked the question: 'Q. Did you not taken possession of any of the books or papers? ' To which he answered: 'Not while I was in the store. ' He was asked the further question:

'Q. Did Mr. Morgan take possession of any books or papers? A. Mr. Morgan did not take possession of any papers, but he assisted Mrs. Cohen in wrapping up some papers in my presence. Q. While she was engaged in wrapping, Mr. Morgan went to her assistance? A. They both started to put the records together. The paper didn't seem to be large enough.'

Looking at Mr. Rice's testimony further, we find the following:

'Q. Those composed all the records of the cashier's desk? A. Not all of them, because we left some records she said she wanted to use that day. Q. What did she say about those records? A. She said they were records in regard to the sales of the day, or other day. Q. What did you say to that? A. I consented to that; I said we would be glad to leave those records, and call for them later, if required.'

The same witness testified that he carried one of the packages out of courtesy to one of the women clerks, who had it in her hand as she was about to leave the store. On cross-examination, he testified as follows:

'Q. Mr. Morgan was with you at the time? A. Mr. Morgan was within a few feet. Q. He had also been introduced as a representative of the Department of Justice? A. Yes, sir. Q. Why did you intrust valuable papers, as you though, to two lady clerks that were leaving the store? A. What did I do? Q. To two lady clerks. A. There was nothing unusual about that; I couldn't get away from the papers; no reason why I shouldn't have that much confidence in those two ladies. Q. Did you have them under your control? A. Yes, sir; practically.'

Again the same witness testified:

'Q. You knew the importance of the papers? A. Yes. Q. Still you were not interested enough to see where they were carried to? A. I knew they were not going to get away. Q. If you didn't see, they might have disappeared without your knowing anything about them? A. No; Morgan and I stood there, and we knew generally what was going on.'

On redirect examination, the same witness was asked:

'Q. Did you make any request for the books relating to the wholesale business? A. I made a request for whatever books she had in regard to the retail sales, purchase and sales slips, everything was described; the necessary books were described in the subpoena served on Mrs. Cohen.'

It must be found as a fact in the case that the orders which the four agents of the Department of Justice had received, as testified to by Mr. Morgan, were that if neither Mrs. Cohen, Simon Brasley, or Leon Krieger had been in the store, then Mr. Morgan would not have gone in, and Mr. Rice would have come out, and all would have proceeded back to the office. From that a fair inference must be drawn that, if the evidence desired could not be secured on that occasion, they would carry out the same plan at a later date. The witness Morgan testified: 'Q. Did you go up into the balcony? A. Not until after Mrs. Cohen went up. Q. How long after that did she and Mr. Rice go on the balcony? A. They stayed downstairs quite a while; she got some books or records in this little alcove; after they went up, I remarked to Mr. Rice that one of us should go up, and we both went up; whether he preceded me or not I don't know.'

He was further asked:

'Q. Did you take possession of any of these books or papers yourself? A. Not at that time. Q. What time did you take possession of them? A. Coming out of the store. * * * Q. Who carried these two packages downstairs? A. Mr. Rice went downstairs before either Mrs. Cohen or myself, and I don't know which one of us carried it down. Miss Harper was there, and the cashier was there, and Mrs. Cohen was there. Q. You didn't carry any of them? A. They were carried down to the main floor, and one package was set on the radiator, or something, a shelf, in that little alcove. We waited there 15 or 20 minutes, waiting for some men, of the men that Mr. Rice had sanctioned going out to lunch.'

The...