United States v. Davis

• Decision Date: 12 April 1933
• Citation: 3 F. Supp. 97
• Parties: UNITED STATES v. DAVIS et al.
• Court: U.S. District Court — Southern District of New York

3 F. Supp. 97

UNITED STATES v. DAVIS et al.

District Court, S. D. New York.

April 12, 1933.

George J. Mintzer, of New York City, for the motion.

George Z. Medalie, U. S. Atty., of New York City (Louis Mead Treadwell, Asst. U. S. Atty., of New York City, of counsel), for the United States.

WOOLSEY, District Judge.

This motion is in all respects denied.

I. The motion here involved, which was argued on March 3d last, is made under somewhat unusual circumstances, and involves two points of more than passing interest. For that reason I reserved decision on it, and have given it my most careful consideration since the argument.

II. The procedural background of this motion is as follows:

On September 8, 1932, the federal grand jury brought in two indictments against James J. Davis, Raymond Walsh, Theodore G. Miller, and Bernard C. McGuire.

The first indictment — criminal docket No. 89 — 705 — was brought under title 18 U. S. Code, § 88 (18 USC § 88), Criminal Code, § 37, for a conspiracy to violate the provisions of title 18 U. S. Code, § 387 (18 USCA § 387), Criminal Code, § 237, which forbids the importation of any paper, certificate, or instrument purporting to be or representing a ticket, chance, share, or interest in a lottery, or the shipment within the United States of such papers, certificates, or instruments by an express company or other carrier for transportation in interstate or foreign commerce, or the receipt of such papers, certificates, or instruments from such carrier after interstate transportation.

The second indictment — criminal docket No. 89 — 606 — contained eight substantive counts alleging breach of the lottery statute above referred to through the receipt within this district of papers, certificates, or instruments purporting to be tickets, chances, shares, or interests in a lottery after they had been transported in interstate commerce from the state of Pennsylvania to the state of New York, and also a ninth count for a conspiracy to receive such tickets in breach of said lottery statute.

The first indictment involved the tickets of the 1930 lottery for the Mooseheart charity ball scheme of the Loyal Order of Moose and the second indictment involved the lottery tickets for the same scheme for 1931.

Before the defendants went to trial, the defendant Davis moved to have each indictment severed as to him so that he might go to trial alone. This was granted.

On motion of the government, the two indictments were consolidated, and on September 19, 1932, the trial of the defendant Davis alone on the consolidated indictments thus severed as to him began before Judge Coleman.

On October 3, 1932, Judge Coleman declared a mistrial for reasons not here in any way relevant.

The present situation is that the consolidated indictments are shortly to be tried against all the defendants named therein, with the exception of the defendant McGuire, who on February 27, 1933, pleaded guilty to all the counts in both indictments and was sentenced.

III. During the trial of the defendant Davis, the defendant Miller was, by a subpœna duces tecum served on him as secretary of the propagation department of the Loyal Order of Moose, called on to produce certain books, papers, and records of that department on the theory that they were the property of the Loyal Order of Moose, a corporation, and that he, as secretary of the propagation department thereof, was a corporate officer, and as such had custody of the books of his department.

The defendant Miller was first called to the stand in the Davis trial on September 21, 1932, as a government witness. When directed to produce the books, records, and papers called for by the subpœna, he refused to do so, claiming that they were his personal property and that they would tend to incriminate him. Judge Coleman at that time sustained Miller's position and allowed him to leave the witness stand.

After the trial had proceeded further and the testimony had been more fully developed, Miller was recalled by the government and again asked to produce the books, papers, and records in respect of which he had pleaded his privilege.

Miller again invoked his privilege, but, in view of the evidence developed since he was first called, Judge Coleman overruled his objection and forced him to produce the books, records, and papers which had been subpœnaed, and they were, accordingly, marked in evidence at the Davis trial, and Miller was compelled to give testimony thereat in regard to them, and also in regard to a contract entered into between himself and the defendant McGuire as to which he had also invoked his constitutional privilege.

IV. The first point to be decided is whether Judge Coleman's ruling made in the Davis case as to the defendant Miller and the books, papers, and records produced by him constitutes the law of the case which must be followed in the contemplated joint trial of the defendants Davis, Walsh, and Miller, of which this motion is a preliminary.

The government contends that this question is res adjudicata as between the defendant Miller and the United States because Miller's claim of privilege is personal and has been ruled in favor of the United States. I do not think this is the proper description of the juridical effect of what Judge Coleman did, for the doctrine of res adjudicata applies only after the entry of the judgment, Reed v. Proprietors of Locks & Canals at Merrimac River, 8 How. 274, 290, 291, 12 L. Ed. 1077; Smith v. McCool, 16 Wall. 560, 561, 21 L. Ed. 324; King v. Chase, 15 N. H. 14, 41 Am. Dec. 675; Lorillard v. Clyde, 99 N. Y. 196, 200, 1 N. E. 614; Springer v. Bien et al., 128 N. Y. 98, 102, 27 N. E. 1076; and there was not any judgment as a result of the Davis trial.

It seems to me that the true doctrine to apply here is what is called the doctrine of the law of the case. This doctrine applies only within the four corners of a particular litigation, and, consequently, falls into an entirely different category from the doctrine of res adjudicata under which the parties or their privies in a case are foreclosed by a judgment in another and wholly separate cause.

The doctrine of the law of the case is based on orderly procedure and convenience. It has high sanction and may fairly be described as the rule which requires a judge in a pending litigation to follow the interlocutory decision of a co-ordinate judge in that litigation on the same, or substantially the same, facts. Cf. Commercial Union of America v. Anglo-South American Bank, 10 F. (2d) 937, 938 (C. C. A. 2); Western Union Telegraph Company v. City of Toledo, 121 F. 734, 736 (C. C. A. 6); Stoll v. Loving, 120 F. 805, 806 (C. C. A. 6).

It is, of course, an old saying that circumstances alter cases. For that well-known reason the doctrine of the law of the case has to be confined to the application of a legal principle to the same, or substantially the same, state of facts. If the facts are substantially changed by an appropriate judicial procedure, as, for example, by a new trial, or, in the present instance, by the evidence adduced before me on the present motion, the doctrine of the law of the case is not to be enforced, cf. Patterson v. Stroecker, 245 F. 732, 734, 735 (C. C. A. 9); Crotty v. Chicago Great Western Railway (C. C. A.) 169 F. 593, 596, 597; Balch v. Haas, 73 F. 974, 978 (C. C. A. 8); for, if it were enforced on such a substantially new pattern of facts, absurd results might often follow.

V. The present motion is based on an order granted to Miller by Judge Coleman ordering that the United States attorney...