United States v. Flegenheimer

• Decision Date: 22 October 1935
• Citation: 14 F. Supp. 584
• Parties: UNITED STATES v. FLEGENHEIMER.
• Court: U.S. District Court — District of New Jersey

14 F. Supp. 584

UNITED STATES v. FLEGENHEIMER.

District Court, D. New Jersey.

October 22, 1935.

F. W. H. Adams, U. S. Atty., for the Southern District of New York, and J. Howard Carter, Asst. U. S. Atty., and Sp. Asst. to the Atty. Gen., both of New York City, John Burke, Sp. Asst. to the Atty. Gen., and William F. Smith, Asst. U. S. Atty., for the District of New Jersey, of Trenton, N. J.

J. Richard Davis, of New York City, John E. Toolan, of Perth Amboy, N. J., and George S. Silzer and Harry H. Weinberger, both of Newark, N. J., for defendant.

CLARK, District Judge.

The filing of the affidavit of bias and prejudice in the case at bar sets, in this court's humble opinion, a new low-water mark in the administration of criminal justice in the United States. The affidavit charges that we have a "bias and prejudice in favor of the United States of America." Our bias and prejudice in favor of the country we are proud to serve goes to the extent of wishing we could play some small part in correcting the conditions which permit such an attempt to disqualify us from the performance of our duty.

Those conditions are being adverted to with increasing frequency by our wise men. The last two Chief Justices, the last two Attorney Generals, the last two presidents of the American Bar Association have on numerous occasions given the public the impression that they considered the current enforcement of the criminal law a real American Tragedy. Only three days ago the present distinguished Attorney General was quoted by ships' news (New York Herald Tribune, October 18, 1935) reporters as follows: "I am convinced more than ever that one of the greatest deterrents to crime prevention in this country has been the abuse of the bail system. Under our bail system men can prolong their escape from justice indefinitely."

We respectfully call the present proceedings to his attention.

During their pendency, crime conferences have been held in both the demanding (New York) and asylum (New Jersey) states. At the former, the Governor had a good deal to say about the abuses which he thought had grown up in the practice of the criminal law. The principal purpose of the latter was, by curious coincidence, the improvement of the procedure for making crime a matter of national, and not local, concern.

We might digress here for a minute to comment on the form of the solution suggested to the New Jersey conference. We have observed a recent tendency to discover hitherto unexpected merits in the fundamental charter. So there has been much talk about the compact clause of the Constitution (article 1, § 10, cl. 3). We have rather wondered if the talkers have taken the trouble to either read or consider this provision. It appears in the form of a prohibition against, not a grant to, the states. It was obviously intended to prevent alliances among the individual states which might affect the political supremacy of the United States. The United States Supreme Court has so declared and has not found the prescribed "consent of Congress" necessary to other agreements between the states. Virginia v. Tennessee, 148 U. S. 503, 518, 13 S. Ct. 728, 37 L. Ed. 537.

In other words, the Constitution can have just nothing at all to do with a compact of extradition. To say that it has, is, in our view, no service to the obvious need for uniformity. A state Legislature can express its recognition of such a need much more simply by the passage of the uniform law of extradition. Although the Uniform Law Commissions submitted such a law on July 12, 1926, only fourteen states have so far acted favorably thereon (cf. Uniform Criminal Extradition Act, Uniform Laws Annotated, 1935 Pocket Part). Perhaps the abuses herein described may expedite the movement.

We do not wish to extend this digression unduly. However, we have been amazed at the indifference with which our leading political scientists treat the experience of the other great federations. The subject under discussion, the Australian Commonwealth, the Dominion of Canada, the Union of South Africa, and the late German Republic have unanimously held to be for the nation and not for the states (cf. Australian Constitution, chapter 1, part 5, clause 28, "influx of criminals"; British North America Act, section 91, chapter 27; "the criminal law," South Africa Act of 1909, chapter 16; Constitution of the German Republic, article 7, clauses 2 and 3, "criminal law, penal administration and official cooperation between administrative authorities."

We suggest that the field for unformity widens with civilization. So we find the leading French writer on Federalism, Professor Louis Le Fur in "Etat Federal et Confederation d'Etats":

"S'il est en effet tres avantageux que des provinces different entre elles par les moeurs et les usages puissent avoir chacune, sur les points ou elles different les uns les autres, leur legislation particuliere, et eviter ainsi l'application d'une legislation uniforme qui pourrait ne s'adapter parfaitement aux besoins d'aucune d'elles, il n'est pas moins certain en revanche que le manque d'uniformite legislative, quand il est pousse trop loin peut entrainer a sa suite les inconvenients les plus graves. * * *

"L'experience a fait connaitre quelles etaient les matieres ou une legislation uniforme etait necessaire ou favorable au bon fonetionnement de la constitution et au developpement de la prosperite publique, et les constitutions federatives modroit de reglementer toutes ces matieres par des lois federales, applicables par consequent a l'ensemble de la nation." (Pages 341, 342)

And much more recently (1935), in somewhat different language, a committee of the American Bar Association gave expression to the same thought:

"* * * If the completion of this movement for uniformity should be unduly delayed, then in order to prevent the multiplication of variant state laws of such a conflicting nature as to hamper the healthy development of aviation the suggested federal constitutional amendment should be adopted. The need for a broader uniformity of practice than now exists, either through state acceptance of uniformity or through federal assumption of full control, seems sufficiently acute to justify the remedy of constitutional change if a uniform law is not generally adopted." Reports of the American Bar Association, Vol. 60, pp. 423, 424.

The line between stagnation by uniformity and inequity by diversity is not static. By the same token one standard does not require one administration. The Australian Constitution, modeled very precisely after ours, was adopted in 1899. In 1926 this problem of diversity brought about a re-examination by a national commission which held extensive hearings (2,000 pages). One of the commissioners had this to say: "Next our attention is arrested by observing that there are several of the major sides of national life now partly or wholly vested in the States as to which the interests of all Australia are uniform and indissolubly interconnected, and the control and regulation of which should certainly be the function of the national Parliament only. Apart from the profound question of the effect of a uniform system in moulding a consistent national outlook referred to hereinafter, there is the enormous practical advantage that where legislation imposes a charge upon industry, this charge will be uniform throughout the continent. We refer particularly to the body of laws regulating the relation of employer and employee." Report of the Royal Commission on the Constitution of Australia, p. 243.

We are reluctant to express our personal view of the part played by counsel in what we consider a manifest perversion of justice. We have, of course, no concern with the gentleman from New York. We understand that his connection with the present defendant is the subject of proceedings pending in that state. One of the three officers of our court appearing in the case has already been a defendant in removal proceedings before us. United States v. Harry H. Weinberger et al., 4 F. Supp. 892. In them he made the same plea of persecution by this same United States Attorney. Our own Court of Appeals (U. S. ex rel. Harry H. Weinberger et al. v. Schneider, 66 F.(2d) 563) considered it quite without merit for it sustained our order of removal. If the present United States Attorney for the Southern District of New York is in the habit of persecuting people the remedy is by his impeachment.

The other two New Jersey counsel hold or have held high positions in our commonwealth; one as prosecutor and state Senator and the other as prosecutor, state Senator, judge, and Governor. We are sure that they are quite incapable of any consciously unethical practices. We dissent so strongly, however, from their conception of an attorney's duty that we are resorting to the machinery of the American Bar Association for an adjudication. We quite concede the right of all of us to be heard through counsel and to make such defense as the law permits. We do not conceive that such right includes the right to select not only the forum for such hearing, but also the actual judge who shall preside. Yet that is exactly what is attempted in this case.

The defendant Flegenheimer is under indictment in New York for conspiracy to evade the income tax laws. This indictment is found in 1933. For two years a bench warrant from the United States District Court for the Southern District of New York for his apprehension is outstanding. In all that time and after diligent search, neither the Department of Justice nor the police force of New York City are able to find him to serve the warrant. Last spring he appears with two attorneys of Albany county and surrenders to a United States Commissioner there and is held on $75,000 bail for removal to the Southern District of New York. While those proceedings are pending he is indicted and tried in the Northern District for the substantive offense of income tax...