United States v. Haulman

• Decision Date: 25 June 1968
• Docket Number: No. 43196.,43196.
• Citation: 288 F. Supp. 775
• Parties: UNITED STATES of America, Plaintiff, v. Harry L. HAULMAN and Harry W. Bevan, Defendants.
• Court: U.S. District Court — Western District of Michigan

288 F. Supp. 775

UNITED STATES of America, Plaintiff, v. Harry L. HAULMAN and Harry W. Bevan, Defendants.

No. 43196.

United States District Court E. D. Michigan, S. D.

June 25, 1968.

Kenneth G. McIntyre, Asst. U. S. Atty., for plaintiff.

James F. Finn and Victor G. Hanson, Detroit, Mich., for defendants.

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS INDICTMENT

KEITH, District Judge.

The defendants, Harry L. Haulman and Harry W. Bevan, by their attorneys, James F. Finn and Victor G. Hanson, moved on March 15, 1968, to dismiss the indictment in the above captioned case because they claim generally that the defendants have been denied their constitutional rights to a speedy trial; that the Government has failed to comply with Rule 48(b) of the Federal Rules of Criminal Procedure, and that they have not been afforded due process under the Fifth Amendment.

On January 21, 1964, the Federal Grand Jury for the Eastern District of Michigan designated Mr. Thomas Lindsey, a long-time employee of the Federal Deposit Insurance Corporation and a Banking Expert, as its investigatory agent for the purposes of examining the records of the Warren (Michigan) Bank to determine whether there were any irregularities traceable to organized criminal influences at said bank. On that same day Mr. Lindsey served the Grand Jury's Subpoena upon the then President of the Warren Bank, Harry L. Haulman, requesting that certain bank records be made available to Mr. Lindsey for his inspection. Mr. Lindsey asked Mr. Haulman to go before the Grand Jury on September 16, 1964, and Mr. Haulman appeared as requested.

Mr. Lindsey completed his on the scene examination of examining Warren Bank's records by August of 1964. He continued to examine Xerox copies of the bank's records at the United States Attorneys' Office until December, 1964. On November 20, 1964, December 16, 1964 and January 13, 1965, defendant Haulman appeared before the Grand Jury at which time he was questioned about certain irregularities apparently traceable to him which were discovered by Mr. Lindsey during the course of his examination. Mr. Bevan and other witnesses also appeared before the Grand Jury on November 20, 1964, and December 16, 1964.

Mr. Lindsey was assigned to non-related F.D.I.C. cases between January and September, 1965. In September, 1965, he returned to Detroit and by early November, 1965, he completed his analysis of the bank records and made his report to William Merrill, then Assistant United States Attorney in charge of the case. On November 8, 1965, Merrill, based upon the analysis of the Grand Jury Testimony and Mr. Lindsey's findings, recommended to United States Attorney, Lawrence Gubow, that defendants, Haulman and Bevan be prosecuted for federal banking violations.

During the course of the investigation of the Warren Bank by Mr. Lindsey, three persons died who the defendants in this cause claim would have been called as witnesses on their behalf. In April, 1965, James V. Bellanca and William Collins died. Mr. Bellanca was the General Counsel of the Warren Bank from January, 1962 to April, 1965, and a director, and the largest shareholder of said bank for that period. Mr. Collins was the President of Contract Life Underwriters, Inc., and it is alleged that he would have testified about the $25,000 loan to that Company which is involved in Count Two and Three of the indictment. Also, William Romano, who died in April, 1966, was the founder and organizer of the Warren Bank, and served as Director and Chairman of the Board from 1956 to 1960, and he again served as a Director from 1962 to April 1966. Also during 1966, he again served as Chairman of the Board of the Bank.

On May 4, 1966, the Grand Jury returned an eight count indictment naming defendant Haulman in all eight counts and defendant Bevan in three counts.

On the same day, defendant Haulman was arraigned before the then District Court Judge Wade H. McCree, Jr., at which time he pleaded not guilty and was released on a $1,000 personal bond. Defendant Bevan was arraigned before Judge McCree on May 5, 1966, at which time he too entered a plea of not guilty. He was also released on a $1,000 personal bond. The case was assigned to United States District Judge Fred W. Kaess. On May 9, 1966, Judge Kaess set the case for trial on August 9, 1966, without either defendant having moved for a speedy trial.

A few weeks later after the case was set, defense counsel Hanson requested a six months adjournment for the purpose of filing appropriate motions. His request was granted. On May 23, 1967, a Motion to Dismiss and other Discovery Motions were filed by defense counsel Finn, who on the same day replaced Mr. Joseph Sullivan as Counsel. In the meantime, Assistant United States Attorney Merrill had resigned to run for Congress.

Mr. Joel Shere of the United States Attorneys Office was assigned the task of briefing the issue raised by defense Counsels May 23, 1967 motions. After the briefs were filed and the issues argued, Judge Kaess on July 23, 1967, entered an Order dismissing Counts I, II, III, VII and VIII of the May 4, 1966 indictment. The basis of this decision apparently was that the counts failed to allege a crime against the United States. This ruling had the effect of a complete dismissal of charges against defendant Bevan since the remaining counts (4, 5, and 6) alleged criminal acts against only defendant Haulman.

After Judge Kaess' July 3, 1967 ruling, defendant Haulman, for the first time demanded a speedy trial. The trial on the remaining three counts was set for August 8, 1967.

Assistant United States Attorney Shere was in July, 1967 the Assistant in charge of all Civil Rights cases and Intelligence in this district. Because of the wide spread civil disorder in Detroit beginning on July 23, 1967, and continuing thereafter, he was not able to devote any more than a minimal amount of time in final preparation for the August 8, 1967 trial. In addition, he had given notice that he was resigning effective September 1, 1967. As a result, the case was assigned to Assistant United States Attorney Kenneth G. McIntyre on approximately August 3, 1967. On August 7, 1967, the Government moved to dismiss the three remaining counts, and the Court granted said Motion. In connection with this Motion for Dismissal, the Assistant United States Attorney stated:

"At this time, after having reviewed my files and the files of the investigative agencies involved in this case, and having talked it over with the United States Attorney here, Mr. Gubow, the Government feels that, based on the presentable evidence, the evidence now at our disposal, that the remaining three counts in this indictment cannot be proved beyond a reasonable doubt. The Government is presently considering the possibility of re-presenting the information developed during our initial investigation to the present Grand Jury for its consideration. This decision has not been finalized as yet, but in any event, based upon my review of the investigative reports and of the present evidence at our disposal, I move that the remaining three counts in this indictment be dismissed."

On November 7, 1967, the defendant, Harry L. Haulman, filed a Petition requesting the Court to enjoin the United States Attorney from re-presenting the above matter to the Grand Jury, stating his grounds that Rule 48(b) of the Federal Rules of Criminal Procedure should operate as a bar to a subsequent indictment because of the unnecessary delay involved from the time the Government first considered Harry L. Haulman to be a defendant, to the date of May 4, 1966 indictment.

The Court refused to take jurisdiction, stating that said petition was premature. The Court indicated, however, that it might rule differently if jurisdiction were established. In proceedings held before the Honorable Fred W. Kaess on November 27, 1967, the Court stated as follows:

The Court: "There is one thing that disturbs me about the investigation of this situation. There being others here present I do not want to mention names, but this has been going on for years. * * *"

The Court: "* * * I do not think that it takes that long to investigate a small institution of this kind. If it could not be done in three months, it could have been done in six months. * * *"

The Court: "The reason I say that is because it has some serious aspects beyond just what we are talking about here. There were three or four occasions that existed where counsel came in to all the Judges in chambers and asked that somewhere, sometime this investigation cease. This was over a year ago. It might even be two years ago, that somewhere a reasonable time be set for an investigation. Now it is still going on after all this time, 1964 to 1967 is three years, I guess, or maybe it will be four years pretty soon, since they began it. Now, how long is it to continue?"

The Court: "Don't you think that even the most difficult case does not take four years? * * * I will tell you frankly; because I think the Government has had ample time in which to check this thing out. Bank examiners go through a place and do an excellent job within three or four weeks, and at the most three or four months, but not three or four years."

The Court: "Well, as much as I lean, tend toward Mr. Finn's expression, I do not think the Court should interfere with an investigation where we do not know what the purpose of it is, or what kind of a charge might come out; and I certainly appreciate your position, but I think we are in a premature situation."

The Court: "Yes. And may I say that I am totally in sympathy with you because I think this has gone way beyond, in my mind. * * *"

The Court: "I trust you on this point. It is one of the reasons that I am going against Mr. Finn. My inclination is to go along with him, I will tell you frankly; because I think the Government has had ample time in which to check this thing out. Bank

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