United States v. Central Supply Ass'n

• Decision Date: 22 January 1941
• Docket Number: No. 16750.,16750.
• Parties: UNITED STATES v. CENTRAL SUPPLY ASS'N et al.
• Court: U.S. District Court — Northern District of Ohio

37 F. Supp. 890

UNITED STATES v. CENTRAL SUPPLY ASS'N et al.

No. 16750.

District Court, N. D. Ohio, E. D.

January 22, 1941.

Edward P. Hodges, Kenneth L. Kimble, Alfred Karsted, W. Wallace Kirkpatrick, and Richard K. Decker, Sp. Assts. to Atty. Gen., all of Washington, D. C., David J. Clarke, Sp. Asst. to Atty. Gen., of Chicago, Ill., and Alexander C. Cushing, Sp. Asst. to Atty. Gen., of New York City, Thurman Arnold, Asst. Atty. Gen., and Emerich B. Freed, U. S. Atty., of Cleveland, Ohio, for plaintiff.

Jas. G. Moore, of New York City, and Carl F. Shuler, of Cleveland, Ohio, for defendants Jobbers Credit Ass'n, Inc., Behrer Nason Co., Inc., Arnold M. Behrer, and Glenn B. Van Buren.

Jas. C. Connell, of Cleveland, Ohio, for defendants United Ass'n of Journeymen Plumbers and Steamfitters of the U. S. and Canada, Local Union Nos. 94, 130, 55, 98, 640, 519, 118, and 172, Plumbing & Heating Warehousemen's Auxiliary to the Journeymen Plumbers Union, Local Union No. 55, and William Butler.

Jas. C. Connell, of Cleveland, Ohio, and Flynn, Storms & Greenquist, of Racine, Wis., for defendants Howard Enold and Wilbur Gregory.

Jas. C. Connell, of Cleveland, Ohio, for defendants C. J. Maher, George Masterson, Arthur S. Pettit, Sam Poole, William E. Quirk, D. M. Stribling, and Edwin Turnock.

WILKIN, District Judge.

Twenty-five defendants filed pleas in abatement. Some of such defendants based their pleas upon identical grounds. Others varied the assignment of reasons for their pleas. The basic reasons assigned by the pleas may be divided into four classes:

1. That the term of court at which the grand jury was impanelled had expired before the return of the indictment and that the grand jury was therefore without authority and the indictment a nullity.

2. (a) That the indictment names 115 co-conspirators whom it failed to indict, and is therefore a violation of the Fifth Amendment to the Constitution, in that it thereby discloses that those charged were indicted because of "envy, hatred, or malice", or that the co-conspirators not charged were "unpresented for fear, favor or affection, reward or hope of reward".

(b) Some of the pleas take exception to this condition by saying that because a number of the conspirators are named but not indicted, the indictment fails to state facts sufficient to constitute a crime against the defendants.

3. That unauthorized persons were present during the deliberations and thereby destroyed the secrecy and sanctity of the grand jury, making the indictment void.

This charge is based upon

(a) The allegations that the Special Assistants to the Attorney General did not file their commissions with the clerk of court as required by law and the rules of this court; and

(b) The allegation that more assistants appeared before the grand jury than the law allows.

(4) That the grand jury was improperly influenced by the Special Assistants —

(a) By their excessive number and because they "urged and counselled the jury";

(b) By performing services "other than conducting proceedings".

While the court recognizes that the briefs in support of the various pleas present different arguments and show a marked difference of attitude toward the problem presented by the indictment, still it seems to the court that the reasons for its rulings on the motions to strike can be adequately stated under the four headings above, without making special reference to the separate pleas and briefs.

1. The grand jury which returned the indictment was impanelled for the October term of this court at Cleveland. That term continued until the February term at Cleveland. Before the close of the October term the grand jury was by special order, 28 U.S.C.A. § 421, "authorized to continue to sit during the February, 1940, term of this court" at Cleveland and the February term continued until the beginning of the April term. The fact that the law requires a term of this court at Youngstown in March does not affect the terms of court held at Cleveland. The practice has been — "for a time whereof the memory of man runneth not to the contrary" — to continue one term of court at a given place until the beginning of the next term. There is no "closed season" of court at Cleveland. The business of the court requires a continuation of the term there until the next term begins there. The life of the grand jury did not terminate at the beginning of the March term at Youngstown, and the jury was a duly authorized and existing grand jury at the time it returned the indictment.

2. (a) The indictment returned is not vitiated by the failure to indict other conspirators named therein. One indicted will not be discharged because the grand jury failed to indict another who might have been indicted. The failure of the grand jury to make all the conspirators defendants does not justify the inference that some were indicted for envy, hatred, or malice, or that others were not indicted for fear, favor, or affection. The law is settled that the grand jury "for reasons known only to the grand jurors" may name or not name all the conspirators and may indict or not indict all those named. Circumstances can easily be imagined which would justify the naming of some conspirators as a part of the description of the crime, even though the evidence was not sufficient to warrant an indictment against such conspirators.

(b) It cannot be concluded that the indictment fails to state a cause of action against those indicted merely because some conspirators are named but not indicted. United States v. Vannatta, D.C., 278 F. 559; Katz v. United States, 1 Cir., 273 F. 157, 159, certiorari denied, 257 U.S. 641, 42 S.Ct. 52, 66 L.Ed. 412; Didenti v. United States, 9 Cir., 44 F.2d 537; Fox v. United States, 7 Cir., 45 F.2d 364; People v. Link, 365 Ill. 266, 280, 6 N.E.2d 201, affirming 282 Ill.App. 520.

3. (a) The Special Assistants to the Attorney General did those things which the law requires in order to qualify them for appearance before the grand jury. 5 U.S. C.A. §§ 310, 315. If the opinion in the Huston case, United States v. Huston, D. C., 28 F.2d 451, June 26, 1928, ever had the effect of a rule of court, it was subsequently superseded by the enactment of Sec. 315 (amended 1930), and by the promulgation of the rules of this court subsequent to the decision in the Huston case. Revised Rules of The United States District Court for the Northern District of Ohio, effective February 1, 1929. The Special Assistants received commissions required by Section 315, exhibited them to the clerk, and took the oath required by such section. Such oaths were filed and refer to the commissions, but the commissions were not filed. If there is any reason for filing them (and we must admit that the question raised seems to indicate that there is), then the court should order that the commissions be filed. But the failure to file them under the circumstances does not affect the validity of the indictment.

(b) The court finds nothing in the terminology of Sections 310 and 315 which in itself would warrant a finding that the number of Special Assistants exceeded the law. There is nothing in this section that would require the Attorney General to confine his services for the entire session of a grand jury to the work of one Assistant. Different Assistants might conduct proceedings on different days or for different matters. As counsel for some of the defendants say, "the allowable number of such special representatives of the executive powers should naturally depend upon the difficulty and complexity of the matters under investigation". The number of counsel appearing for defendants would indicate that the number of counsel for plaintiff might well be more than required for the usual case. Whether or not there were more Special Assistants than the case required and whether or not the purpose and effect of such appointments was "other than conducting proceedings", are questions to be discussed under 4. But in...