United States v. Gouled

• Decision Date: 16 September 1918
• Parties: UNITED STATES v. GOULED et al. SAME v. GOULED.
• Court: U.S. District Court — Southern District of New York

253 F. 242

UNITED STATES v. GOULED et al.

SAME v. GOULED.

United States District Court, S.D. New York.

September 16, 1918

Francis G. Caffey, U.S. Atty., and Joseph A. Burdeau, Asst. U.S Atty., both of New York City.

Martin W. Littleton, of New York City, for defendant Gouled.

Max Steuer, of New York City, for defendant Podell.

HUTCHESON District Judge.

This is a motion that the court examine the stenographer's minutes of the evidence taken before the grand jury which returned the indictments in this cause, and that said indictments be quashed, on the ground that, as claimed by affidavit on information and belief supporting the motion certain private papers belonging to the defendant had been unlawfully seized and detained by the United States district attorney, and had formed the main, if not the sole, basis of the action of the grand jury. Of the truth of this charge the court is asked to satisfy itself by an examination of the minutes, and, upon becoming so satisfied, to quash the indictments. On the part of the United States it is urged that the motion should be denied, because not timely, and with this view of the matter I concur.

Action upon a motion to quash rests in the sound discretion of the court, and this case is clearly one in which that discretion should be exercised against the motion. The record in this case shows that the papers, the use of which is made the basis of this motion, were seized as the result of two separate seizures. Both of these seizures were made under search warrants lawfully and properly issued and executed. See the opinion of Judge Manton in United States of America v. Felix Gouled et al., 253 F. 770. On July 22 after the papers had been seized, the defendant admitted that he knew the government was in possession of his books and papers, and further stated:

'If there is anything the government wishes to know, my papers are all here. After my search in my business two days later, I came to see Dr. De Mund with my papers (Dr. De Mund being special agent). My package of papers to show Dr. De Mund, to show him all the details; my books and all my papers are open to the government.'

The grand jury returned indictments on July 30, and on July 31 defendant, being represented by counsel, pleaded to the indictments, entering the plea of not guilty, and reserving 10 days to withdraw his plea should he be so advised. The time for such action expired on August 10, 1918, but neither at that time, nor at any later time, was it sought by him to withdraw his plea. On the contrary, on September 3, 1918, a motion for bill of particulars was filed, and neither in this motion, nor in any argument upon it, was it suggested that there was any fault to be found with the indictment, or the proceedings out of which it grew, or that the constitutional rights of the defendant had been invaded, though at that time the facts now alleged were all within the personal knowledge of the defendant. It is further a pertinent fact that at the time of the argument on the motion for bill of particulars, this case was in open court set for trial for the 17th of September, and, though the motion for bill of particulars was shortly thereafter overruled, no suggestion was made at that time, nor until this the 16th day of September, the day before the trial, that any other relief in the matter of the indictment was sought or asked than that included in the request for bill of particulars, which request accepted the basic indictment and merely asked an elaboration of the particulars of its charges. Under these circumstances, that the right of the defendant, if it existed, to move to quash the indictment, has been waived, and that the motion should be held too late, needs citation of but few authorities. Matters v. United States, 244 F. 736, 157 C.C.A. 184; United States v. Perlman (D.C.) 247 F. 158, and cases cited.

While these...