United States v. Carper

• Decision Date: 24 November 1953
• Docket Number: Cr. No. 836-52.
• Citation: 116 F. Supp. 817
• Parties: UNITED STATES v. CARPER et al.
• Court: U.S. District Court — District of Columbia

116 F. Supp. 817

UNITED STATES v. CARPER et al.

Cr. No. 836-52.

United States District Court District of Columbia. Criminal Division.

November 24, 1953.

Leo A. Rover, U. S. Atty. for the Dist. of Columbia, Frederick G. Smithson, Asst. U. S. Atty., William B. Bryant, Asst. U. S. Atty., Washington, D. C., for plaintiff.

Myron G. Ehrlich, Joseph Sitnick, Washington, D. C., for defendant.

TAMM, District Judge.

The defendants Hialmar H. Carper and William L. Taylor have been charged in a multiple count indictment with conspiring to violate the Federal narcotic laws and with accepting bribes while being members of the Metropolitan Police Department of the District of Columbia. The case is presently before the Court upon the defendants' motion to dismiss the indictment. This motion is predicated upon the charges that unauthorized persons were present in the grand jury room while the grand jury was in session, while the grand jury was deliberating, and while the grand jury was voting.

The Government in its pleading opposing the pending motion admits that three United States deputy marshals were in the grand jury room while that body was hearing testimony against the defendants. The Government states that these deputy marshals were present while prisoners in their custody were testifying before the grand jury. In justification of the marshals' presence, the Government argues the necessity of deputy marshals' being present to guard the prisoner-witnesses and the failure of the defendants to show they were prejudiced by such presence. The opposition denies that anyone other than members of the grand jury was present when the grand jury was deliberating or voting. Included in the Government's pleadings are the sworn affidavits of three deputy marshals who admit their presence in the grand jury room while prisoners in their custody were testifying, but deny being present while the grand jury was deliberating or voting.

The Court has held a hearing on the motion to dismiss which included both testimony and argument. It is established that the United States deputy marshals were in the grand jury room on a substantial number of occasions while witnesses who were prisoners in their custody were testifying before the grand jury hearing evidence against these defendants. There is no evidence that these marshals or anyone else was present when the grand jury was deliberating or voting.

Challenges to the validity of indictments upon the ground that unauthorized persons were in the grand jury room are not new.¹ The long line of recorded cases upon this subject reaches back through the centuries to the beginnings of the grand jury system. A large number of cases within the United States disclose a variety of judicial interpretations and rulings, and widespread differences of opinion upon substantially the same factual situations.²

Two considerations have occupied the attention of most courts: (1) was the presence authorized, and (2) was the defendant prejudiced by such presence. Upon the first point there is strong conflict, many of the cases turning on a statute, with some decisions resting upon a strict reading of the statute, and others holding the presence authorized on the grounds of necessary implication. Upon the second point, was the defendant prejudiced, there is also a split of authority. A number of courts have refused to dismiss the indictment unless prejudice to the defendant is shown; others hold that mere unauthorized presence without more invalidates the indictment.

The parent Federal statute relating to the validity of a Federal indictment was R.S. § 1025 (1872):

"No indictment found and presented by a grand jury in any district or circuit or other court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant."

No material change was made in this statute until May 18, 1933³ when it was amended as follows:

"No indictment found and presented by a grand jury in any district or other court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant, or by reason of the attendance before the grand jury during the taking of testimony of one or more clerks or stenographers employed in a clerical capacity to assist the district attorney or other counsel for the Government who shall, in that connection, be deemed to be persons acting for and on behalf of the United States in an official capacity and function."

The 1933 amendment was in force when the Federal Rules of Criminal Procedure, 18 U.S.C.A., became effective on March 21, 1946. It is these Rules which must control in the present case.

Rule 6 of these Criminal Rules governs the conduct of grand jury proceedings. Rule 6, Subdivision (d) provides:

"Who May be Present. Attorneys for the government, the witness under examination, interpreters when needed and, for the purpose of taking the evidence, a stenographer may be present while the grand jury is in session, but no person other than the jurors may be present while the grand jury is deliberating or voting."

It will be readily noted that no provision is made for the presence of a deputy marshal in the grand jury room at any time. Was this an oversight on the part of the drafters of the Rules, or was this matter considered and rejected?

On February 15, 1946, The Institute on Federal Rules of Criminal Procedure convened at the Association of the Bar of the City of New York. The minutes of the proceedings show the following discussion of Rule 6(d) by the Honorable George Z. Medalie, then Associate Judge of the New York State Court of Appeals and a member of the Supreme Court Advisory Committee:⁴

"When I first heard of Federal criminal procedure, I found that it was the practice to try to get rid of indictments by proving that someone was in the grand jury who had no right to be there, and usually it was some deputy marshal or somebody else, some unauthorized person, and then the great to-do was how to get a person authorized. One of the ways to get a stenographer authorized in those days was to have him sworn in as Assistant United States Attorney, when he really was nothing of the kind.

"Now, cases have come up on motions to quash because of unauthorized persons in the grand jury room, so we drew up a little list as to who is authorized. That is provided for. We say `attorneys for the government' — the phrase `attorney for the government' is defined and limited in Rule 57; `the witness under examination' — no one has ever moved to dismiss on account of his presence; `interpreters when needed.' Now, here is a little touch which we picked up because of the wide geographic distribution of the membership of our committee. We didn't say `an interpreter.' We said `interpreters.'

* * * * * *

"You have the same thing right here in New York; for example, a person who speaks only Turkish, a person who speaks only Greek and Turkish, a person who speaks Greek and English. That is provided for. I don't know that it will ever come up. If it does we have provided for it.

"Then the stenographer is definitely provided for. I think it is the law today, after many years of fumbling, that the stenographer is a duly authorized person to be present in the grand jury room.

"Now, none of these persons — and this is old law, we say nothing new — may be present when the grand jury is deliberating. The district attorney, under almost all systems, is barred from the grand jury during its deliberations. A motion to dismiss may be made on the ground that an unauthorized person was present." (Emphasis added.)

The conclusion seems unmistakable. The Committee considered even possibilities that might not come up; it noticed the...