United States v. Greene

• Decision Date: 04 April 1900
• Citation: 100 F. 941
• Parties: UNITED STATES v. GREENE et al.
• Court: U.S. District Court — Southern District of New York

100 F. 941

UNITED STATES v. GREENE et al.

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

April 4, 1900

Henry L. Burnett and Marion Erwin, U.S. Dist. Attys., and Ernest E Baldwin, Asst. U.S. Atty.

Abram J. Rose and L. Laflin Kellogg, for defendants.

BROWN District Judge.

The above four defendants with Michael A. Connally and Oberlin N Carter were indicted by the grand jury in the Eastern division of the Southern district of Georgia on December 8 1899, for conspiring to defraud the United States upon two contracts, one for improving the harbor at Savannah, and the other for work in Cumberland Sound. Upon an affidavit to this effect by one of the assistants of the United States attorney referring to a certified copy of the indictment, a warrant was issued by a United States commissioner for this district under section 1014 of the United States Revised Statutes, for the apprehension of the four defendants above named. The defendant Greene resides at Stamford, Conn., John F. and W. T. Gaynor in Onondaga county, N.Y., and E. H. Gaynor at Boston, Mass. The defendants on notice appeared before the commissioner and demanded an examination, and proceedings thereon were from time to time had before the commissioner, who upon finding probable cause that the offenses charged had been committed, ordered the commitment of the defendants for trial. An order is now asked for their removal to the Eastern district of Georgia for trial.

The stenographer's notes of the proceedings returned by the commissioner consist of about 1,100 pages, showing, however, no other evidence of the commission of the offense than a certified copy of the indictment. Some evidence was given as to the identity of the defendants as the persons charged, and this was not seriously contested. Aside from this and the arguments of counsel, the whole record consists of little except rulings upon the evidence on behalf of the defendants sought to be introduced, and numerous exhibits, all of which, so far as they pertained to the merits, or tended to show the innocence of the accused, and the want of probable cause, were rejected, mostly upon the ground that the question of guilt or innocence should only be heard and determined upon a trial under the indictment.

Upon this record the defendants object to any order of removal, on the ground, first, that the indictment is bad upon its face; second, that it was not properly proved, since neither was the original indictment produced, nor was the copy, though certified by the deputy clerk, duly authenticated as an exemplified copy; third, that by reason of its vagueness, its lack of specification of facts and circumstances and its inconsistencies and contradictions in different parts, it is insufficient evidence of probable cause of guilt; fourth, that evidence was improperly rejected tending to show that the grand jury was illegally drawn and constituted, and the indictment, therefore, void; and fifth, that the defendants were virtually denied a hearing by the rejection of all evidence tending to show their innocence.

1. As respects procedure, the present case is identical with that of In re Dana (D.C.) 68 F. 886, in which this court, upon careful consideration, pointed out the course necessary to be pursued in cases of this character under section 1014 of the United States Revised Statutes, and under the law of this state thereby virtually adopted. The views there expressed seem to have been approved by Lacombe, J., in Price's Case (C.C.) 83 F. 830; Id. (D.C.) 84 F. 636, affirmed in 32 C.C.A. 162, 89 F. 84, 87, where the course indicated in the Dana Case was followed by the examination of several witnesses to show probable cause, as well as the production of an exemplified copy of the indictment. It was also approved in the case of In re Wood (D.C.) 95 F. 288; and so far as I am aware, it has not been disapproved in any subsequent reported case.

In view of these decisions, which were repeatedly called to the commissioner's attention, I find it difficult to understand the disregard of them in the rejection of the great mass of competent evidence and exhibits offered in the defendant's behalf. In that decision it was pointed out that the proceeding for commitment and removal under section 1014, is an original proceeding, to be conducted according to the laws of the state in similar proceedings before committing magistrates; that the object of the proceeding is to enable the commissioner to ascertain for himself whether from the proof of facts and circumstances produced before him, there is probable cause to believe the defendants guilty of the offense charged; that the mode of proceeding in such cases is precisely the same, whether there is an indictment or no indictment (see also, Price v. McCarty, 32 C.C.A. 162, 89 F. 84, per Wallace, C. J.); and that an indictment when offered by the prosecution is at best but evidence, in no way conclusive, and in truth is but secondary evidence (which to a certain extent is admissible on such examinations); and that although the copy of an indictment may be treated as an affidavit, it is nevertheless to be judged by the same rules as other affidavits, and given weight only according to the nature and character of its averments, and the facts and circumstances which it sets forth, if any, in a manner sufficient to warrant the conclusion of probable cause to believe the accused guilty.

By a singular inversion, however, the best reason for the admission of the defendants' proposed evidence, namely, its tendency to show innocence of the charge and the lack of probable cause, was in this instance made the reason for excluding it. A certified copy of the indictment having been received by the commissioner against the defendants' objection, it was thereupon contended by the prosecution and virtually ruled by the commissioner, that the evidence was closed as respects the question of guilt, and that no evidence disproving it could be allowed, since that would be 'trying the issue' here instead of in Georgia. Thus although the right to show want of probable cause was admitted in form, it was in substance denied; since whatever would disprove the alleged offense, was for that very reason excluded.

Precisely opposite was the ruling of this court in the Dana Case, where it was shown, as I have said, that by section 1014 (the sole authority in the federal courts for commitment or removal in such cases) the proceeding before commissioners must be in conformity with the existing state procedure. Mr. Justice Curtis in U.S. v. Rundlett, 2 Curt. 41, Fed. Cas. No. 16,208, says:

'My opinion is that it was the intention of congress by these words to assimilate all proceedings for holding accused persons to answer before a court of the United States, to proceedings had for similar purposes by the laws of the state where the proceedings should take place; * * * the prisoner is not only to be arrested and imprisoned, but bailed agreeable to the usual mode of process in the state.'

See, also, U.S. v. Horton, 2 Dill. 94, Fed. Cas. No. 15,393. Mr. Justice Miller and other eminent judges have confirmed this interpretation. See In re Dana (D.C.) 68 F. 893, 899, and cases ante.

In states, therefore, where the accused has no right to examine witnesses in his own behalf before a committing magistrate, he cannot do so in proceedings under section 1014; but in other states, as in New York, where this right does exist and is in daily practice, it cannot be lawfully denied him.

In New York, the right of the accused to produce witnesses in his own behalf before committing magistrates was confirmed by express statute more than 70 years ago, and more than 40 years before the enactment of section 1014 of the United States Revised Statutes; and such is the uniform course of procedure. The New York Revised Statutes (1829) declare (volume 2, p. *708):

'Sec. 17. After the examination of the prisoner is completed, his witnesses, if he have any, shall be sworn and examined, and he may have the assistance of counsel in such examination.'

This practice is ancient. Dalt. Just. (1742) c. 165; 1 Chit.Cr.Law, 79.

The existence of an indictment in another jurisdiction, has no bearing upon the application of this statute to proceedings for commitment, or to the course of the examination when an examination is demanded pursuant to the statute, nor upon the commissioner's duty to take whatever competent evidence is offered by the defendant tending to show the want of probable cause; and for that purpose and to that extent, the proceeding is of necessity, like the proceedings before the state magistrates, a partial preliminary hearing on the merits.

It is urged that under section 1014, the similitude to state proceedings may be preserved by treating a federal indictment from another district as a state indictment, found in one county, is treated in another county wherein the defendant is arrested. That analogy, however, could only be followed by the indorsement of a bench warrant from the federal district where the indictment was had, by the judge of the district where the accused might be found. But that practice, if ever in use, has been long since abandoned. Besides the authorities opposed to it cited in the Dana Case (D.C.) 68 F 893, 894, it was again disapproved by Lacombe, J., in the late Case of Price (C.C.) 83 F. 830, as oppressive and unauthorized. Section 1014, moreover, plainly contemplates the examination of witnesses, and provides for a return of the 'recognizances for their appearance to testify in the case. ' In proceeding under that section, therefore, the commissioner must receive all evidence touching probable cause of guilt, that a state committing magistrate would be bound to take, without...