United States v. Greene

• Decision Date: 17 February 1902
• Citation: 113 F. 683
• Parties: UNITED STATES v. GREENE et al.
• Court: U.S. District Court — Southern District of Georgia

113 F. 683

UNITED STATES v. GREENE et al.

United States District Court, S.D. Georgia, Eastern Division.

February 17, 1902

[Copyrighted Material Omitted]

The parties arraigned before the court are under indictment with Michael A. Connolly and Oberlin M. Carter for the offense of an alleged conspiracy to defraud the United States of America of large sums of money appropriated by congress for certain river and harbor improvements within the Southern district of Georgia. It will suffice at present to state in general terms that it is alleged that Oberlin M. Carter was a captain in the engineer corps of the United States army; that he was in charge of the improvements; that it was contemplated by the alleged conspirators that competition in bidding for contracts for this government work would be cut off, and that the alleged co-conspirators, or some person or corporation acting for them, would be the only bidders for such work that this was done secretly for the benefit of the parties indicted; that the contracts would be let at high and exorbitant cost; that Carter should, with fraudulent intent so draft the specifications for constructing jetty works and training walls as to provide that, in his option, he might require large quantities of material known as the 'log and brush mattress' to be paid for by the square yard at a cost comparatively very great, but which also enabled him to permit the contractor to place in the works the same number of square yards of another specified design of brush mattress, of much less value, at a much cheaper cost to the contractors, but at the same cost to the United States; that the specifications were so devised and drafted that all persons not parties to the said scheme to defraud would be kept in ignorance of this option on the part of the engineer until the bids were in; that other bidders were compelled to put in bids based on the design of mattress of the most expensive and costly construction, while the alleged conspirators would be advised beforehand that if they, or some one of them, were successful bidders, Carter would require to be put in the works mattresses of the cheapest design; that these alleged conspirators were thus entitled to be successful bidders for all of this work at the lowest cost to the contractor and the very highest cost to the United States; that, if there were other successful bidders, Carter the engineer officer, would require from them the utmost exactitude in the performance of the most expensive contract, but, while passing on the work of the alleged co-conspirators, he would deal most liberally with them; that he would so order and inspect the contracts of his co-conspirators as to insure to them the maximum profit at the least cost for work and material of inferior value to the government. It is further alleged that this fraudulent scheme was furthered by rejecting on technical grounds other bids, and by enabling the co-conspirators to meet unanticipated competition by second bids on guaranties known to be forgeries; by the fraudulent approval by Carter for payment to the alleged co-conspirators of accounts thus fraudulently made, and as disbursing officer by fraudulently paying to them, or to some person or corporation for them, the amount alleged to be due on such contracts so fraudulently entered into and performed. This being done, it is alleged that the conspirators would divide between them and appropriate to their own use said moneys as so fraudulently obtained. It is further charged charged in the indictment that as the result of this alleged conspiracy, and by m means of a number of overt acts, to wit, the presentation for payment of such fraudulent accounts set out therein, the alleged conspirators have defrauded the government in the amount of $700,000.

On arraignment the following defendants, Benjamin D. Greene John F. Gaynor, William T. Gaynor, and Edward H. Gaynor, presented and filed a plea in abatement. This document consists of nine grounds, constituting one plea or nine pleas, accordingly as they may be construed. The first ground is that the indictment was found by a body of men purporting to be a grand jury, but which had no legal existence, for the reason that the names of persons placed in the jury box from which the said alleged grand jury was taken were not placed therein by H. H. King, the clerk of this court and the jury commissioner, not put in at all alternately as required by law, but that, the said H. H. King, clerk as aforesaid, being accessible, and in no wise disabled or disqualified, the said names were placed in said box by the said jury commissioner and a deputy clerk by the handfuls or bunches, contrary to the statute laws of the United States of America, which required that the clerk should be one of the persons to place the names in the jury box, and that they should be placed therein alternately by the said clerk and the said commissioner; and which tended to the injury and prejudice of these defendants, and of each of them, in that they are entitled by the law of the land to have any charge against them considered by a grand jury selected the restrictions prescribed by law, and in accordance with the provisions thereof, and in which selection no an authorized persons shall have or take any part; and this they are ready to verify. A second ground or plea is that the indictment should be quashed because the jury box of the divisions was not kept, as required by law, continuously in the custody of the clerk of the court, but that during the month of November, 1899, it was delivered by him, or some one connected with his office, and without authority of law, into the hands of strangers in no wise connected with this court, and was carried away from the city of Savannah, where was the office of said clerk, and transported beyond the limits of this division, which gave abundant opportunity to outsiders, who were not under any binding oath or obligation to this court, to violate the sanctity of said jury box. A third ground or plea is that the grand jury was not publicly drawn in the Eastern division, as required by the laws of the United States, and that, not being drawn publicly, these defendants could have no opportunity to challenge said jurors for any cause, or even to know that there was to be a grand jury. A fourth ground or plea is that the indictment should be quashed for that the names of the persons who were drawn as the grand jurors who found the indictment were drawn in the city of Macon, beyond the limits of this division, in a court house other than that of the Eastern division; that no publication of said drawing of the names drawn was made; that no venire facias was issued by the clerk of this court, nor any filed in the clerk's office of the said Eastern division, until after the persons whose names were drawn had been summoned, instructions having been given by those in authority that the marshal and his deputies serving said summons should keep secret the names of such persons so drawn, and should enjoin on each person so summoned the necessity of keeping secret the fact that he had been summoned to serve as a grand juror at said term; so that the choice and selection of such alleged grand jurors were not made public until the court met on December 1, 1899. A fifth ground or plea is that the alleged indictment should be quashed for that there were not, as required by law, 300 names of qualified jurors in the box, and in fact there were less than 200 names of qualified jurors therein on November 22, 1899. A sixth ground or plea is that the indictment should be quashed for that the judge, by an order on November 22, 1899, disqualified as grand jurors all persons whose names might be in the jury box who at that time resided in the counties of Chatham and Glynn, and prescribed in such order that the said grand jury be returned from the counties of the Eastern Division other than Chatham and Glynn and thus eliminated from the prospective grand jurors those who were most familiar with public harbor improvements, the necessity therefor, and the cost thereof, and who, from such knowledge, would be in a better position to impartially consider the matters urged against the defendants. A seventh ground of plea or plea is that the indictment should be quashed for the reason that the judge of this court by his order directed that the grand jury be returned from the counties of said Eastern division other than the counties of Chatham and Glynn, and that the grand jury be drawn from the jury box of the Eastern division, before a jury box had been constituted which did not include jurors from Chatham and Glynn. An eighth ground of plea or plea is that the indictment should be quashed because the judge of this court directed that the grand jury should be returned from the jury box of the Eastern division under the restriction aforesaid, because it appeared to said court that such return of jurors would be most favorable to an impartial trial, and prevent the incurring of unnecessary expense; it being illegal for said judge then and there to pass any such order restricting the drawing of a grand jury to any particular part of said division for any reason, and tended to the injury and prejudice of these defendants. A ninth ground of plea or plea is that the indictment should be quashed for the reason that the judge of this court having, upon the said 22d day of November, 1899, outside the limits of this division, to wit, in the city of Macon, Ga., passed the order before described, did in the city of Macon on said day proceed to draw said grand jury from a box which did not contain the names of grand jurors returned from the counties of said Eastern division other than the counties of Chatham and Glynn, but which only...