United States v. Goldman

• Decision Date: 25 September 1928
• Docket Number: No. 3588.,3588.
• Citation: 28 F.2d 424
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES v. GOLDMAN et al.

28 F.2d 424 (1928)

UNITED STATES v. GOLDMAN et al.

No. 3588.

District Court, D. Connecticut.

September 25, 1928.

John Buckley, U. S. Atty. and John A. Danaher, Asst. U. S. Atty., both of Hartford, Conn.

Samuel Falk, of New York City, for defendant Goldman.

Walter J. Walsh, of New Haven, Conn., for defendants Florio and Monroe.

Thomas J. Spellacy, of Hartford, Conn., for defendants Pike and Stevens.

J. Moss Ives and Thomas A. Keating, both of Danbury, Conn., for defendant the Solvents Recovery Co.

Benjamin Slade, of New Haven, Conn., for defendant Morse.

Abraham S. Weissman, of New Haven, Conn., for defendants Comen and Connecticut Alcohol Distributors Co., Inc.

THOMAS, District Judge.

The indictment charges ten individuals and two corporations with conspiracy to violate the National Prohibition Act (27 USCA). After the enumeration of the names, they are then described as "the defendants herein." Then follows the names of 12 additional individuals, who, as is alleged in the indictment, "by reason of the fact that they testified before the said Grand Jury concerning the matters herein charged, are not herein indicted."

One of the defendants has not been apprehended. The rest appeared and have filed various pleadings attacking the validity of the indictment for the reasons set forth. The nine individuals and the two corporations have filed pleas in abatement, the legal sufficiency of which the government attacks by demurrers; five individuals and the two corporations also filed motions to quash, and, in addition to their pleas in abatement and motions to quash, two individual defendants have filed pleas in bar. To these pleadings, other than the pleas in abatement, the government has either answered, generally denying defendants' allegations, or has filed motions to strike from the files; but, as the various questions raised will be later discussed separately, it is not necessary now to set forth what is in the motions, pleas, answers, or demurrers, as the end sought by the defendants is the dismissal of the indictment for the reasons alleged in their pleadings.

The motions to quash and pleas in abatement are, in each instance, predicated upon two principal allegations: (1) That there was present in the grand jury room an unauthorized person who acted as a stenographer; and (2) that the indictment is based (a) wholly upon incompetent evidence, and (b) insufficient and hearsay evidence, and additionally, as to Morse, Stevens, and the Solvents Recovery Company, that "the grand jury * * * had not before it any evidence whatever that was competent or admissible as proof of any material matters embraced in the alleged charges. * * *"

The language of the pleas in abatement is identical with that of the motions to quash. Both procedures have been adopted by counsel, in order to avoid a possible denial of their claims upon purely technical grounds. It may, perhaps, be admitted that in the present instance the question of procedure is unimportant. Nevertheless it may be well to point out that ordinarily motions to quash indictments are based upon matters suggested by the record, whereas pleas in abatement are founded upon allegations of fact dehors the record. In May v. United States, 236 F. 495, where the Circuit Court of Appeals for the Eighth Circuit had under consideration a question somewhat similar to the one at bar, it was held by Judge Carland that plea in abatement is the proper remedy.

Concerning the alleged unauthorized person in the grand jury room the pleas in abatement in each instance allege that:

"There was present in the grand jury room with the grand jury that found the true bill or indictment, * * * and while said grand jury was examining witnesses and conducting its official grand jury proceedings, one Charles T. Roberts, Esq., who acted as a shorthand writer or stenographer, and who took down, in the presence of the said grand jury, the evidence and the testimony adduced in said grand jury room. The said Charles F. Roberts, Esq., though an attorney and counselor at law, did not, while in said grand jury room, with said grand jury, assist the district attorney in the discharge of his duties within the meaning of the Act of June 30, 1906, but was a mere reporter or stenographer, and as such was an improper person to be present with the grand jury in the grand jury room while it examined witnesses and conducted said grand jury proceedings, and said Charles F. Roberts could not be authorized under the laws of the United States to be present with the grand jury while it was sitting as such, and act as a stenographer or reporter of the testimony given by witnesses there examined."

Counsel for defendants claim that, under the circumstances of this case, the presence of a stenographer, acting as such, within the grand jury room during the time evidence was being adduced from witnesses was unlawful, and that such illegality invalidates the indictment, and some of the cases cited in support of this contention are United States v. Rosenthal (C. C.) 121 F. 862; United States v. Virginia-Carolina Chemical Co. (C. C.) 163 F. 66, 70; United States v. Philadelphia & R. Ry. Co. (D. C.) 221 F. 683; United States v. Heinze (C. C.) 177 F. 770; Latham v. United States (C. C. A.) 226 F. 420, L. R. A. 1916D, 1118; United States v. Farrington (D. C.) 5 F. 343; United States v. Kilpatrick (D. C.) 16 F. 765; United States v. Edgerton (D. C.) 80 F. 374.

It is also urged by defendants that, under the authority of United States v. Philadelphia & R. Ry. Co., 221 F. 683, the appointment of Mr. Roberts by the Attorney General in accordance with the provisions of the Act of June 30, 1906 (5 USCA § 310), under the guise of an assistant to the district attorney to be present in the grand jury room, but in fact for the purpose of taking down testimony stenographically, cannot be allowed, and they assert, as is held by Judge Thompson in that case, that it is perfectly apparent that there is expressed in the act no such intention on the part of Congress. The act reads as follows:

"Conduct of Any Legal Proceedings Which District Attorneys are Authorized to Conduct. The Attorney General or any officer of the Department of Justice, or any attorney or counselor specially appointed by the Attorney General under any provision of law, may, when thereunto specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrates, which district attorneys now are or hereafter may be by law authorized to conduct, whether or not he or they be residents of the district in which such proceeding is brought."

A great deal of discussion contained in the defendants' briefs centers around the question of whether, under this act, an attorney, appointed by the Attorney General of the United States to conduct civil or criminal proceedings, is one who must take charge of the same to the exclusion of the local United States district attorney, whose duties are defined by section 771 of the Revised Statutes (28 USCA § 485). It is argued that such an appointment does not make him an assistant, or a special assistant, to the local United States attorney, but that he supersedes the latter. As Mr. Roberts concededly did not supersede the local United States district attorney in the matter of conducting the proceedings before the grand jury, which proceedings resulted in this indictment, the contention is made that he could only have been a special assistant to the United States district attorney for Connecticut, appointed under sections 363 and 366 of the Revised Statutes. Section 363 provides:

"The Attorney General shall, whenever in his opinion the public interest requires it, employ and retain, in the name of the United States, such attorneys and counselors at law as he may think necessary to assist the district attorneys in the discharge of their duties, and shall stipulate with such assistant attorneys and counsel the amount of compensation, and shall have supervision of their conduct and proceedings." 5 USCA § 312.

Section 366 provides:

"Every attorney or counselor who is specially retained, under the authority of the Department of Justice, to assist in the trial of any case in which the government is interested, shall receive a commission from the head of such department, as a special assistant to the Attorney General, or to some one of the district attorneys, as the nature of the appointment may require, and shall take the oath required by law to be taken by the district attorneys, and shall be subject to all the liabilities imposed upon them by law." 5 USCA § 315.

From these provisions it is clear that special assistants, appointed under the authority of these provisions, are limited in their functions to assisting the local United States district attorney in the trial of cases. Under these sections, Judge McCall, in United States v. Virginia-Carolina Chemical Co. (C. C.) 163 F. 66, held that they must be construed together, and that the Attorney General was not authorized to appoint special assistants to a district attorney, with authority to appear before and participate in the proceedings of a grand jury, and the presence of two such attorneys, specially appointed for a particular case before the grand jury, rendered the indictment invalid. It was also held that the proceeding before the grand jury was not the trial of the case, and that, therefore, the presence of such an assistant before the grand jury was unauthorized. The reasoning which resulted in this conclusion is sound. If Mr. Roberts was only a special assistant to the local United States attorney, and acted in no other capacity, the conclusion would follow, upon the authority of the case above cited, that his presence in the grand jury room would invalidate any indictment thereafter found.

In opposition to the authorities relied upon by defendants, counsel...