United States v. Central Supply Ass'n

• Decision Date: 22 August 1940
• Docket Number: No. 16750.,16750.
• Citation: 34 F. Supp. 241
• Parties: UNITED STATES v. CENTRAL SUPPLY ASS'N et al.
• Court: U.S. District Court — Northern District of Ohio

34 F. Supp. 241

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

No. 16750.

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

August 22, 1940.

Edward P. Hodges and Kenneth L. Kimble, Sp. Assts. to Atty. Gen., Smith R. Brittingham, Jr., Sp. Atty., of Washington, D. C., Thurman Arnold, Asst. Atty. Gen., and Emerich B. Freed, U. S. Atty., of Cleveland, Ohio.

Sullivan & Cromwell, of New York City, and Jones, Day, Cockley & Reavis, of Cleveland, Ohio (Patrick J. Mulligan, Luther Day, and Thomas O. Nevison, all of Cleveland, Ohio, of counsel), for American Radiator & Standard Sanitary Co. and others.

McKeehan, Merrick, Arter & Stewart, and Fred J. Perkins, all of Cleveland, Ohio, and Lucius P. Chase, of Kohler, Wis. (Ashley M. Van Duzer, of Cleveland, Ohio, of counsel), for Kohler Co., Herbert V. Kohler, and O. A. Kroos.

William F. Marsteller, of Akron, Ohio, and I. R. Morris, of Cleveland, Ohio, for John A. Ogren.

Collen & Kessler, of Chicago, Ill., William S. Collen, of Chicago, Ill., and Benesch, Marsteller, Friedlander & Morris, of Cleveland, Ohio, for Manufacturers Clearing House, Inc.

In this case there are 102 defendants and about 30 law firms representing them, but the above counsel represented the parties filing the motions.

WILKIN, District Judge.

This case came on for hearing upon the motions for an order releasing witnesses from oath of secrecy and for an order disclosing names of witnesses.¹ Witnesses examined before the grand jury which returned the indictment were required to take the following oath: "You do solemnly swear that in the testimony you are about to give you will speak the truth, the whole truth and nothing but the truth, and that further you will not divulge anything that transpires in this grand jury room until called upon by a court having competent jurisdiction thereof, so help you God!"

The motions seek (1) a release of all witnesses from the obligation to keep secret what occurred in the grand jury room; and (2) disclosure of the names of all witnesses. The defendants maintain that such orders are necessary to enable them to prepare their defense and that a denial of such orders would deprive them of their constitutional guaranties set forth in the Fifth and Sixth Amendments to the Constitution of the United States. Counsel for the United States say such orders are unwarranted in law. The motions were submitted upon briefs.

As to the first object of the motions (1) there is a dearth of reported cases. The scarcity of precedents indicates the unusual nature of the request. Whether the infrequency of such requests is due to the fact that in many jurisdictions they are unnecessary, or that they are unwarranted by law, opposing counsel do not agree.

It seems to this court that the problems presented can best be considered in the light of the history and purpose of the grand jury. The function of the grand jury grew out of the responsibility of each community for the preservation of the peace. II Select Essays in Anglo-American Legal History, 444. When the English justiciars on circuit visited a community, they called for the presentation in court of such persons as were suspected of the crimes that had been committed. The accusation rested not on the assertion of a single prosecutor, nor on the indictment of any formal organization, but on the fama publica of the neighborhood. In the course of time, however, it was found unsatisfactory to leave the accusations to the general voice of the neighborhood. The responsibility had to be placed more definitely upon designated individuals. The following paragraph is enlightening; it is from Forsyth's History of Trial by Jury, the earliest work on the subject (p. 194): "It was a consequence of the peculiar system of society in England in early times, that system which rendered every man a surety for the conduct of his neighbor, and therefore responsible to a certain extent for the offenses committed by him, that each community had a direct interest in discovering and bringing to justice malefactors. Besides, who were so likely to know the character of a man as his neighbors? Who so likely to be guided aright in their suspicions as to the author of a crime committed amongst themselves? * * * Still, however, the inconvenience must have been felt of trusting to public rumors to indicate the criminal. It might be too vague and indefinite to warrant the apprehension of any one—and different persons might entertain and express different suspicions. Or again parties might be fearful or unwilling to make themselves conspicuous as accusers, especially after the introduction of trial by battle, which compelled them to support their charge by single combat. Accordingly we find that this led to legislative interference. The Constitutions of Clarendon (A.D. 1164) provided that where a party was suspected, whom no one dared openly to accuse, the sheriff, on the requisition of the bishop, should swear twelve lawful men of the neighborhood or vill, in the presence of the bishop, and these were `to declare the truth thereof according to their conscience'".

At page 215 Forsyth states: "We see that when the justices in eyre paid their periodical visits to the counties, they caused to be summoned before them twelve knights, or other good and lawful men, for each hundred, and charged them upon their oaths to inquire respecting crimes and offenses committed within their respective hundreds or wappentakes, so that they might be ready to present to the court the suspected persons at a future day fixed by the justices. It has been shewn that these jurors were the representatives of and substitutes for the fama patriae, or public rumor, by which in old times when a man was assailed he was said to be male creditus, and was thereupon arrested and put upon his trial."

For such jury service the officer was directed to select men who were "believed to be best informed of the truth of the matter, and how it happened". And soon, by statute, it was required that the accusation should be supported by at least twelve jurors. And, at page 207, Forsyth records: "Here it seems that the jury were acting rather as accusers than as triers, at all events we see that they did not give their verdict upon evidence taken in court, but upon the private knowledge or belief which each had beforehand of the commission of the offense in question". See also, Forsyth, pp. 108 and 242, as to action by juries upon facts within their own knowledge.

From these quotations, which are supported by our general knowledge of the early history of our institutions, we see that the grand jurors originally acted as witnesses as well as jurors. I Sel.Essays Anglo-Am.L.H., 129; I Green: Hist.Eng. People, p. 167. It has long been, and still is, permissible to base indictments solely on the knowledge or information of grand jurors.

We also know that from earliest times the veil of secrecy was cast over the deliberations of the grand jury and they were not called upon to disclose what occurred during their deliberations except in a judicial inquiry directed by the court. Forsyth says, (p. 218): "It was formerly deemed felony, if not high treason, for any of the grand jury to divulge the names of the persons whom they were about to present." This veil was extended to cover all that happened in the jury room, in order that there might be a full and free disclosure. Otherwise, as Forsyth says, "parties might be fearful or unwilling to make themselves conspicuous as accusers". As early as 1600 the jurors were charged upon oath "the King's counsel, your fellows', and your own, you shall keep secret." And that oath has come down to our own time without much change. Since they acted in dual capacity, the secrecy covered their counsel both as jurors and as witnesses.

In historic perspective, the purpose of the grand jury was to bring to trial those who were suspected of violating the law, although its function of investigating or inquiring as to crime has since grown in importance. It seems, however, that persons accused have had little to say about the proceedings of the grand jury. At an early time in English history (Assize of Clarendon), in furtherance of the king's effort to wrest control of the courts from the church, he provided that suspects should be held by his justiciars to answer for crimes upon the "presentment" of a jury composed of men of the hundred and township. The bishops and barons a hundred years later adopted the provision as a shield. In Magna Charta it became a protection to free men against oppression by the king. It was carried into our own Constitution by the provision of the Fifth Amendment that "no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury", etc. The security to accused persons consists in the popular character of the grand jury, in the fact that they meet, receive, and sift the evidence independently, secretly, and in their own way, and are therefore not likely to be swayed or influenced by passions or improper motives. The guaranty is simply that one shall not be put upon trial unless a jury of his peers have found probable cause.

That is the only constitutional guaranty regarding the grand jury. After the presentment or indictment, other guaranties come into play. The accused has then a right to an open trial, to confront the witnesses, to have the assistance of counsel, and trial by jury. These provisions, however, do not affect the deliberations of the grand jury. United States v. Amazon Industrial Chemical Corp., D.C., 55 F.2d 254, 261. The arguments which counsel advance in support of the motions might just as well be advanced in support of a claim that the accused has the right to attend before the grand jury, be represented by counsel, and cross examine witnesses. But it is clear that the accused has no right to appear before the grand jury, either personally or by counsel. And although the...