United States v. Herzig
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
| Writing for the Court | WINSLOW |
| Citation | 26 F.2d 487 |
| Parties | UNITED STATES v. HERZIG et al. |
| Decision Date | 01 May 1928 |
26 F.2d 487 (1928)
UNITED STATES
v.
HERZIG et al.
District Court, S. D. New York.
May 1, 1928.
Charles H. Tuttle, U. S. Atty., David W. Peck, Asst. U. S. Atty., both of New York City.
Louis Marshall, Nash Rockwood, and David P. Siegel, all of New York City, for defendants.
George Graham Rice, pro se.
WINSLOW, District Judge.
The defendants have made three separate motions: (1) To inspect the stenographer's minutes of the grand jury which found the indictment; (2) a plea in abatement; and (3) a motion to quash the indictment. The defendants have been indicted under ten separate counts for using the mails in a scheme to defraud, and also under a separate count for conspiracy to commit the substantive offense.
Assuming that the court has the discretionary power to permit the inspection of the grand jury minutes, the moving papers are wholly insufficient to warrant the court exercising such power. Such permission, however, would be contrary to a number of precedents which are controlling upon this court. Even if there were no precedent, I am in full accord with the policy which denies such permission, and the motion to inspect the minutes is denied.
The plea in abatement has no more substantial basis than the motion to inspect the grand jury minutes. I think it is well settled in this circuit that courts will not sit in review of proceedings before the grand jury, to determine whether or not the grand jury acted on competent evidence. Kastel v. U. S. (C. C. A.) 23 F.(2d) 156.
The highly technical argument that the grand jury was not properly impaneled is not persuasive. The order of this court, June 2, 1920, provided for the drawing of the so-called morning grand jury from time to time as specified, and provided that the order might be modified at any time by special order of the court, but that, unless so modified, it was to continue "in force until the further order of the court." There is no contention that any modification has been made, and it continues and stands as a valid order.
Furthermore, it was a de facto grand jury, and, as such, its authority and organization may not now be successfully challenged.
The contention that an unauthorized person appeared before the grand jury is wholly specious, for the reason that the fact is, and the record clearly shows, that such alleged unauthorized person did not appear before the grand jury which presented this indictment.
The plea in abatement is overruled.
The third motion — i. e., to quash the indictment — rests to some extent upon the same arguments advanced as to the plea in abatement, and, in addition thereto, it is contended that the indictment is void for uncertainty, in that it merely alleges...
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United States v. Culver, Cr. No. 26195.
...v. United States, 7 Cir., 14 F.2d 75, 77 (1926), cert. den. 273 U.S. 701, 47 S.Ct. 95, 71 L.Ed. 848; United States v. Herzig, S.D. N.Y., 26 F.2d 487 (1928). Reproduction of available documentary evidence in support of the mailings has been furnished as part of the bills of particulars filed......
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State ex rel. Clagett v. James, No. 12
...cited, make 'the court * * * the tribunal to indict as well as the tribunal to try the case.' See, also, United States v. Herzig, D.C., 26 F.2d 487, where the court said, loc. cit. 488: 'I think it is well settled in this circuit that courts will not sit in review of proceedings before the ......
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United States v. Ben Grunstein & Sons Company, Civ. A. No. 888-51.
...507; U. S. v. Silverthorne, D.C.W.D.N.Y.1920, 265 F. 853; U. S. v. Morse, D.C.S.D.N.Y.1922, 292 F. 273; U. S. v. Herzig, D.C.S.D.N.Y.1928, 26 F.2d 487; U. S. v. Oley, D.C.E.D. N.Y.1937, 21 F.Supp. 281; Shushan v. U. S., 5 Cir., 1941, 117 F.2d 110; U. S. v. Papaioanu, D.C.D.Del.1950, 10 F.R.......
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Hartwell v. United States, No. 9135.
...have aided in carrying out the scheme. Durland v. United States, 161 U.S. 306, 16 S.Ct. 508, 40 L.Ed. 709; United States v. Herzig, D.C., 26 F.2d 487; Hill v. United States, 5 Cir., 73 F.2d 223; Muench v. United States, 8 Cir., 96 F.2d Nor does appellant stand much better on the point which......
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United States v. Culver, Cr. No. 26195.
...v. United States, 7 Cir., 14 F.2d 75, 77 (1926), cert. den. 273 U.S. 701, 47 S.Ct. 95, 71 L.Ed. 848; United States v. Herzig, S.D. N.Y., 26 F.2d 487 (1928). Reproduction of available documentary evidence in support of the mailings has been furnished as part of the bills of particulars filed......
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State ex rel. Clagett v. James, No. 12
...cited, make 'the court * * * the tribunal to indict as well as the tribunal to try the case.' See, also, United States v. Herzig, D.C., 26 F.2d 487, where the court said, loc. cit. 488: 'I think it is well settled in this circuit that courts will not sit in review of proceedings before the ......
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United States v. Ben Grunstein & Sons Company, Civ. A. No. 888-51.
...507; U. S. v. Silverthorne, D.C.W.D.N.Y.1920, 265 F. 853; U. S. v. Morse, D.C.S.D.N.Y.1922, 292 F. 273; U. S. v. Herzig, D.C.S.D.N.Y.1928, 26 F.2d 487; U. S. v. Oley, D.C.E.D. N.Y.1937, 21 F.Supp. 281; Shushan v. U. S., 5 Cir., 1941, 117 F.2d 110; U. S. v. Papaioanu, D.C.D.Del.1950, 10 F.R.......
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Hartwell v. United States, No. 9135.
...have aided in carrying out the scheme. Durland v. United States, 161 U.S. 306, 16 S.Ct. 508, 40 L.Ed. 709; United States v. Herzig, D.C., 26 F.2d 487; Hill v. United States, 5 Cir., 73 F.2d 223; Muench v. United States, 8 Cir., 96 F.2d Nor does appellant stand much better on the point which......