United States v. Heinze

• Decision Date: 22 January 1910
• Citation: 177 F. 770
• Parties: UNITED STATES v. HEINZE.
• Court: U.S. District Court — Southern District of New York

177 F. 770

UNITED STATES v. HEINZE.

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

January 22, 1910

John B Stanchfield, for the motion.

Henry A. Wise, U.S. Atty., opposed.

HOUGH District Judge.

This motion is based on numerous grounds, of which one only is to be considered in this memorandum; as to the rest, no opinion is expressed.

It appears from the affidavits filed and from admissions in open court that the United States attorney for this district desired, for the proper preparation and presentation of evidence in this prosecution, including proceedings before the grand jury, the assistance of an expert accountant. Owing to the nature of the case, such assistance was concededly both proper and necessary. The Attorney General was therefore requested to select Mr. John P. Fernsler for this purpose and to employ him specifically therefor. Accordingly, on March 13, 1909, Mr. Fernsler was designated in the following language, contained in a letter signed by the Attorney General:

'You are hereby appointed a special assistant to the United States Attorney for the Southern District of New York to assist in the investigation and prosecution of the case of the United States v. Heinze. Under the provisions of the act of Congress approved June 30, 1906 (34 Stat. 816), you are authorized and directed to conduct grand jury proceedings in connection with the case mentioned above.'

In pursuance of this designation, Mr. Fernsler, when this indictment was under consideration in the grand jury room attended before that body, and took part in the proceedings to the extent of asking some technical questions of other expert accountants who were upon the witness stand, and throughout suggested, if he did not direct, the method of examining expert witnesses thought to be allied with defendant. No suggestion of personal misconduct or indecorous behavior is made against Mr. Fernsler, nor is it shown or suggested that any injury has been done to defendant by Mr. Fernsler's presence, unless it be the suspicion that it is to Mr. Fernsler's skill in reading and interpreting books of account that this indictment is largely due; this, however, can certainly not be regarded as a legal injury to defendant, if the method be otherwise lawful.

If there be a settled method of conducting the deliberations of grand jurors, established by generations of procedure, based on the experience of many courts in many communities, and evidenced by the decisions of authoritative tribunals, such method must be followed until the Legislature sees fit to overturn the old rule.

It has never to my knowledge been denied or doubted that the rule of the common law is that a grand jury, while deliberating upon an indictment or presentment, shall listen to witnesses who give testimony, and to no one else except the authorized law officers of the crown or the commonwealth. The English practice of permitting the presence of the prosecutor in the grand jury room is an apparent, but not a real, exception, for it is still true that the majority of prosecutions in England are private; the expense thereof being borne by the complainant, and the crown taking no part therein unless and until authority therefor be granted by the proper departmental officer. So, too, the instances of bailiffs, clerks, and stenographers are not exceptions to this rule. These useful persons are necessary or convenient in the same way as is a piece of furniture, but if it were made to appear that such persons, having obtained audience of the grand jurors, under the excuse of their occupation, sought to influence the result of their deliberations or to participate therein, the rule would be infringed.

So far as this court is concerned, little time need be spent in collating authorities to show what the rule is. It has been done too recently by Thomas, J., in United States v Rosenthal (C.C.) 121 F. 862. This decision has been considered in United States v. Cobban (C.C.) 127 F. 713, and the last-cited case was followed in United States v. Twining (D.C.) 132 F. 129. The Cobban and Twining Cases did not approve of the Rosenthal decision in its entirety, though it is only in the earlier of the two decisions that the matter is reasoned. In United States v. Virginia-Carolina Chemical Co. (C.C.) 163 F. 66, the point is...