United States v. Clark

• Decision Date: 26 December 1931
• Docket Number: No. 5448.,5448.
• Citation: 1 F. Supp. 747
• Parties: UNITED STATES v. CLARK.
• Court: U.S. District Court — District of Minnesota

1 F. Supp. 747

UNITED STATES v. CLARK.^*

No. 5448.

District Court, D. Minnesota, Fourth Division.

December 26, 1931.

Fred Horowitz, Sp. Asst. to Atty. Gen., and L. L. Drill, U. S. Atty., and Robert V. Rensch, Asst. U. S. Atty., both of St. Paul, Minn., for the United States.

Ueland & Ueland and Sigurd Ueland, all of Minneapolis, Minn., for respondent.

SANBORN and NORDBYE, District Judges.

The facts, as we find them from the admissions of the parties and the evidence, are as follows:

Mrs. Clark at all the times here material was a resident of Minneapolis, Minn., and the wife of D. D. Clark. On August 24, 1931, Mrs. Clark received a summons to report as a juror on September 1, 1931, at the Federal Building at Minneapolis, Minn. The jurors who were summoned to report on that day were all called in connection with the trial of the case of United States v. Foshay et al. At the time Mrs. Clark received her summons, she desired to be excused from service during the week of September 1st. She did not then know for what case she was called. Shortly thereafter, she telephoned her sister, Mrs. Brown, at the Federal Building in St. Paul, and made inquiry as to how she (Mrs. Clark) could be excused or her term of service as a juror postponed. Mrs. Brown called upon Miss Mullane, the chief deputy clerk of this court at St. Paul, and then called Mrs. Clark advising her that if she wished to be excused, she must see the judge when she reported on September 1st. Her sister further informed her that the trial for which she was summoned was the Foshay trial, and that she would probably not be accepted, since she had been employed by the Foshay Company, which was one of the companies with which the defendants had been connected.

Mrs. Clark, on the morning of September 1, 1931, called at the office of her husband and a Mr. Wille, with whom Mr. Clark was associated, and then, in company with Mr. Clark, reported at the courtroom in the Federal Building in Minneapolis where the case was to be tried. The other members of the panel were assembled in that room. Judge Molyneaux presided and examined the jurors as to their qualifications as jurors. Mrs. Clark, while the jury was being drawn and before she was called for examination, made the statement to several other women on the panel that she wished to serve on the jury, that she had a special reason for wanting to be on the jury, and that she was afraid that her former employment by the Foshay Company would disqualify her. That she had worked for the Foshay Company as a stenographer or typist for about two weeks in the summer of 1929, but she did not know or come in contact with any of the defendants personally.

Her husband, for a number of years prior to September 1, 1925, was president and in charge of the Citizens' State Bank of St. Paul. Prior to Mrs. Clark's marriage to him in 1922, she had also worked in the bank as a clerk and stenographer and had had the title of assistant cashier. One of the defendants had been a depositor and borrower of the bank while Mrs. Clark was working there, and he was well acquainted with Mr. Clark. Mr. Clark also knew Foshay and had done business with him and with his company.

Mrs. Clark was called to the jury box, sworn to make true answers touching her qualifications to serve as a juror, and questioned by Judge Molyneaux. The portion of her examination which is here material is as follows:

"Q. What is your husband's business? A. In the real estate business.

"Q. In what way is he in the real estate business, is he with some firm, or is he by himself? A. He is by himself.

"Q. Does he deal in city property? A. Yes, sir.

"Q. Is he selling property on commission, — making a commission? A. Yes, sir. * * *

"Q. How long has he been in the real estate business? A. For about five years.

"Q. Was he in some business before that? A. Well, we were out of the city for two years, when he was not doing anything. Before that, he was in the real estate and insurance business.

"Q. Have you yourself even been in any business of any kind? A. I have been a stenographer before my marriage, yes.

"Q. In what kind of business did you work? A. Well, I did some banking, and some real estate and insurance, and I was with an automobile concern, with a Nash agency. * * *

"Q. Do you know any of the lawyers in this case? A. No, I do not.

"Q. Or any of the defendants? A. No, I do not. * * *

"Q. Well, do you feel that you are now, — that your mind is now open and free, and that you are not biased either one way or the other? A. Yes, I do feel that way. * * *

"Q. And you think, in the trial of this lawsuit, you could follow the evidence, or would try to follow the evidence, and base your judgment on that and the law as given to you by the Court? A. Yes, I do."

Mrs. Clark was the only woman upon the jury and the twelfth juror to be accepted. The jury was then sworn and placed in the custody of the United States marshal, and throughout the trial, which lasted approximately eight weeks, was in the charge of two officers, one a man and the other a woman. During the first week of the trial, Mrs. Clark made the remark to several of the jurors, on one occasion, that she regarded Mr. Foshay as a victim of circumstances; that he had gone to New York in the fall of 1929 to borrow $18,000,000, but that, because of the stock market crash, had come back without a dollar. When asked by one of the jurors where she had procured that information, which concededly was not based upon any evidence in the case, she said that it was from a newspaper which she had read before the trial and had forgotten about. At a later period, she expressed to other jurors dissatisfaction with the government because of the way the soldiers were treated after the war. During the deliberations of the jury, after the case was finally submitted, she announced that, since Mr. Horowitz had been unable to convince her of the guilt of the defendants, the other jurors could hardly expect to do so. She virtually closed her ears to the arguments of other jurors, and made a statement with respect to the government witness Cobel, the effect of which was to charge him with having given perjured testimony in a case in the South in an attempt to convict an innocent man. This statement was obviously based upon information given to her after the trial commenced by her husband, who was permitted to visit her about once a week during the trial and converse with her supposedly in the hearing of the woman bailiff. This information conveyed by him to his wife he had received from a Miss Todd, who was connected with the firm of Wille & Clark, and who had expressed her opinion about Cobel to Mr. Clark upon seeing Cobel's picture in the newspaper during the so-called Foshay trial. Miss Todd had recognized him from this picture as being the accountant who had testified in a fraud case in Kansas City in which she at one time had been interested. Mrs. Clark, during the deliberations of the jury, expressed a wish that she might consult with her husband and secure his advice. She also made statements to the effect that she could not vote to send seven men to the penitentiary. The jury were out for approximately one week, and stood eleven for conviction, and one (Mrs. Clark) for acquittal.

How Mrs. Clark voted in the Foshay Case is, of course, of no consequence so far as we are concerned in this proceeding.

We are limited by the information filed by the government to the question whether Mrs. Clark was guilty of contempt of court because of the answers which she gave to the questions touching her qualifications to serve as a juror. If her answers were so false or deceptive as to obstruct the court in the performance of its duty, that was contempt, whether it amounted to perjury as defined by the statute, or not.

Perjury may be punished as contempt when it obstructs the court. Ex parte Hudgings, 249 U. S. 378, 39 S. Ct. 337, 63 L. Ed. 656, 11 A. L. R. 333. There the court said (page 383 of 249 U. S., 39 S. Ct. 337, 339): "An obstruction to the performance of judicial duty resulting from an act done in the presence of the court is, then, the characteristic upon which the power to punish for contempt must rest. This being true, it follows that the presence of that element must clearly be shown in every case where the power to punish for contempt is exerted — a principle which, applied to the subject in hand, exacts that in order to punish perjury in the presence of the court as a contempt there must be added to the essential elements of perjury under the general law the further element of obstruction to the court in the performance of its duty." From this statement, it would appear that untrue answers to questions asked on the voir dire might be of such a character as to obstruct justice and constitute a contempt of court, although the person giving the answers might not be guilty of perjury in the strictest sense. We think that the essential question is whether the conduct of Mrs. Clark, as charged in the information, constituted an obstruction to the court in the performance of its duty.

We may not base a finding of contempt upon any acts of Mrs. Clark after she was accepted as a juror, since the information contains no such charges. For such bearing as such acts may have upon the question of the state of mind of Mrs. Clark at the time she was examined, they may be considered.

Mrs. Clark is presumed to be innocent of the charges made against her, and she may only be found guilty if the evidence establishes her guilt of the specific charges, or some of them, beyond a reasonable doubt. Some of the evidence is purely circumstantial, and therefore, in order to justify a finding of guilt on such evidence, the facts and circumstances proven must be not only consistent with such a conclusion, but inconsistent with any reasonable theory of innocence.

In a jury trial, if justice is to be even approximated, the jurors must be...