United States v. Fujimoto

• Decision Date: 05 February 1952
• Docket Number: Cr. No. 10495.
• Parties: UNITED STATES v. FUJIMOTO et al.
• Court: U.S. District Court — District of Hawaii

102 F. Supp. 890

UNITED STATES v. FUJIMOTO et al.

Cr. No. 10495.

United States District Court D. Hawaii.

February 5, 1952.

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Howard K. Hoddick, Acting U. S. Atty., Honolulu, T. H., Rex A. McKittrick, Sp. Asst. to Atty. Gen., for plaintiff.

Harriet Bouslog (of Bouslog & Symonds), Myer C. Symonds (of Bouslog & Symonds), Honolulu, T. H., for defendants.

McLAUGHLIN, District Judge.

The indictment here challenged was returned on August 29, 1951, charging the seven defendants with conspiring to violate the Smith Act, 18 U.S.C. § 2385. This litigation is not yet at issue, for the defendants' request for 90 days' time within which to prepare and file various preliminary motions was granted without opposition by Judge Metzger. When on November 30, 1951, defendants filed nine motions, which when stacked measured some two and a quarter inches, the Government asked for 60 days to reply. Though the defendants were agreeable to having even more time given to the prosecution, the Court granted the request to the extent of but 45 days, with leave to apply for more time upon a showing of necessity.

During December Counsel were notified by the Court that as the Government's response was due January 15th, January 21st was tentatively set as the date for hearing the motion attacking the validity of the Grand Jury, with the hearings of the other motions to follow at intervals soon thereafter, if need be.

On January 9th, the Government moved for more time, stating also that it was considering asking the same Grand Jury due to come into session January 28th to amend the indictment by returning a new indictment, conforming to the December 11, 1951, ruling of Judge Mathes in the Schneiderman case, D.C., 102 F.Supp. 87, to the effect that a similar Los Angeles indictment was defective in view of the Supreme Court's opinion in the Dennis case, Dennis v. U. S., 1951, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137. The request for two additional weeks was not opposed and thus it was granted and the tentative date for the motion relating to the Grand Jury was advanced to February 4th. With the Grand Jury scheduled to reconvene Monday morning, defendants filed on Friday morning, January 25th, an added or tenth motion attacking the individual Grand Jurors for cause and asking for a hearing prior to the time the Grand Jury returned to session.

At a conference the same day upon this subject, Government Counsel advised Defendants' attorneys that it had been decided not to ask the Grand Jury for a new indictment. It was thereupon stipulated that, reserving the right to object, this new motion could be heard after the motion challenging the array scheduled for hearing February 5th. A day was added by accident and then by agreement.

Late January 28th the Government filed three affidavits and memoranda in opposition to each of the Defendants' original nine motions.

I have had the Defendants' nine motions, several lengthy affidavits and legal memoranda, under study since they were filed in November. The tenth motion also received due attention upon its filing and, too, due attention has been given to the material filed by the prosecution. Having done this judicial homework, I am prepared to rule at this time upon each of the pending motions.

It is, of course, elementary that the presentation of legal arguments, oral or written, rests within the discretion of the Court, for such is submitted as an aid to the Court upon indistinct points of law. Here the law is clear, and I am fully conversant with it and hence need not trouble Counsel. Too, hearing to receive evidence upon motions are not matters of right. And as to motions of the nature of those now before the Court, they are dependent upon first making out a prima facie case. Certainly where assuming all that the movant says factually to be true, a case for relief is not made out, no useful purpose will be served in conducting a hearing or hearings which would be of no avail.

Accordingly, as in U. S. v. Foster, D.C., 80 F.Supp. 479, U. S. v. Flynn, D.C.S.D. N.Y., 103 F.Supp. 925, and U. S. v. Frankfeld, U.S.D.C.Md. 1951, 100 F.Supp. 934, all Smith Act cases wherein kindred if not practically identical motions were tendered for reasons which will appear, I do not regard hearings upon these motions necessary to their disposition. A tentative hearing schedule previously set is, therefore, cancelled.

Rulings upon the ten separate motions follow:

I

Motion To Dismiss Indictment Because Grand Jury Not Validly Selected.

This motion, to quote the Government's summary of it "charges that in preparing the list the Jury Commissioners intentionally and systematically discriminated against (a) manual laborers and other persons from the lower economic classes, (b) certain geographical areas, and (c) against races and nationalities.

"Defendants further allege over-representation from the Honolulu Chamber of Commerce and from the largest firms located in Honolulu and under-representation from the most highly unionized industries, notably sugar and pineapple. Defendants charge that such areas as Aiea, Kaneohe, Kailua and Lanikai, inhabited largely by the more affluent citizens, were excessively represented while such areas as the 5th representative district received inadequate representation. It is further alleged that by `taking into account' the race and nationality of the prospective Grand Jurors the Jury Commissioners chose a disproportionately large number of Caucasians."

Annexed to this motion is an affidavit, as amended, by the defendant John E. Reinecke presenting a statistical analysis of all of the jury lists of this Court for the past 13 years. This is not the first time that this Court's procedures for jury selection have been attacked but it is by far the biggest and loudest siege that has ever been laid against this judicial appendage. Prior attacks against other juries have been repelled, one with the finality of an opinion by the Circuit Court of Appeals for the Ninth Circuit, Wong Yim v. U. S., 1941, 118 F.2d 667, certiorari denied, 313 U.S. 589, 61 S.Ct. 1112, 85 L.Ed. 1544.

And as to this particular Grand Jury not only have the judges of this Court kept an eye upon the methods and the work of the Jury Commissioners but Judge Metzger in September 1951 passed favorably upon the validity of this very Grand Jury in the Llanos case¹ (Cr. No. 10,426). To be sure, the motion in the Llanos case was not as broad as the challenge here. There the challenge basically charged discrimination against Filipinos and women. But it may be noted that this Grand jury was drawn under Judge Metzger's direct supervision. And as a Judge's obligations are of such a compelling nature that if the jury selected did not conform to the requirement of the law the Court would have ordered it stricken upon its own motion; for all defendants, real and potential, and the public, are entitled to a lawfully constituted Grand Jury. The charge that this and grand juries for the past 13 years have been invalid for the reasons assigned in the motion is an aspersion upon the integrity and of the attention to duty of the past and present judges of this Court. Most assuredly, a chief judge as sensitive in matters of this nature as is Judge Metzger, witness International Longshoremen's Warehousemen's Union v. Ackerman, D. C., 82 F.Supp. 65; Id., 9 Cir., 187 F.2d 860, certiorari denied 342 U.S. 859, 72 S.Ct. 85, vigilant as he has been to my personal knowledge in keeping an eye upon and instructing the Jury Commissioners, would have corrected errors as gross and as flagrant as those asserted here, if they existed, appeared to exist, or even been intimated in his division of this Court to which this Grand Jury reported.

Further, the presumption of regularity which surrounds the work of the Jury Commissioners has long been recognized as a rebuttable yet very substantial presumption. It does not easily fall apart when attacked by a shotgun loaded with statistics. To prevail upon a motion like this, there must be clear and convincing proof of intentional or systematic exclusion of a group or class. Frazier v. U. S., 1948, 335 U.S. 497, 69 S.Ct. 201, 93 L.Ed. 187; Fay v. New York, 1947, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043; Thiel v. Southern Pac. Co., 1946, 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181; Akins v. Texas, 1945, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692.

The prototype of this motion met its fate when it collided with this solid rule of law in U. S. v. Foster, D.C. 1948, 80 F.Supp. 479, and again Id., D.C. 1949, 83 F.Supp. 197, as to the trial jury panel, and again when the trial court was affirmed by the Second Circuit speaking through Justice Learned Hand, 1950, 183 F.2d 201 at page 216. Judge Hand's words concerning a similar challenge to the trial jury panel are pertinent here, especially, 183 F. 2d at page 224. The authorities cited show, too, that the jury system is not a mechanical process and hence the Jury Commissioners are entitled to ask relevant questions as a basis for exercising their judgment and discretion. The racial question complained of, one of fifteen questions, is in order, so as to assure a fair legal cross-section on the Grand jury panel.

Also, absent intent or design, even complete and total exclusion of specific groups, classes, races and areas from the Grand Jury list does not invalidate the Grand Jury, for such proportional representation of such groups is not required. See, in addition to the authorities above cited, Cassell v. Texas, 1950, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839; Lewis v. U. S., 1929, 279 U.S. 63, 49 S.Ct. 257, 73 L.Ed. 615; U. S. v. Gottfried, 2 Cir., 1948, 165 F.2d 360; and a very recent case cited by the Government in its memoranda, having a character like this case, U. S. v. Flynn, where similar motions were decided by Judge Conger, D.C.S.D.N.Y., 103 F.Supp. 925.

Assuming, arguendo, the correctness of Mr....