United States v. Hoffa

Decision Date23 May 1962
Docket NumberCrim. No. 1282.
Citation205 F. Supp. 710
PartiesUNITED STATES of America, Plaintiff, v. James R. HOFFA and Robert E. McCarthy, Jr., Defendants.
CourtU.S. District Court — Southern District of Florida



James T. Dowd, Special Atty., Dept. of Justice, Washington, D. C., Edward F. Boardman, U. S. Dist. Atty., Tampa, Fla., for plaintiff.

Charles E. Davis, Fishback, Williams, Davis & Dominick, Orlando, Fla., Jacob Kossman, Philadelphia, Pa., Daniel B. Maher, Washington, D. C., James E. Haggerty, Detroit, Mich., for Hoffa.

O. B. Cline, Jr., Miami, Fla., for McCarthy.

LIEB, District Judge.

On December 7, 1960, James R. Hoffa, Robert E. McCarthy, Jr., and one, Henry Lower, now deceased, were indicted by the Grand Jury sitting in the Orlando Division of this Court for alleged violation of the Federal mail and wire fraud statutes, Title 18 U.S.C.A. §§ 1341-1343. Said indictment contained twelve counts. Counts numbered 1, 2, 3, 5, 8, 9, 10 and 11 charged all of the defendants with use of the mails at various times in 1956 and 1957 in furtherance of a scheme to defraud labor associations chartered by the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and members of such associations, and to obtain money and property from those associations, their members, and other persons who would be induced to purchase parcels of land from Sun Valley, Inc., a Florida corporation, by means of false and fraudulent pretenses, representations and promises in violation of Section 1341, Title 18 U.S.C.A.

Counts numbered 4, 6, 7 and 12 of the indictment charged all defendants with use of telephone and telegraph in furtherance of the same scheme in violation of Section 1343, Title 18 U.S.C.A.

On July 12, 1961, the Court granted the motions to dismiss the indictment filed on behalf of the defendants, James R. Hoffa, Robert E. McCarthy, Jr., and Henry Lower, and dismissed said indictment on the ground that the grand jury which returned the indictment was illegally and improperly selected and constituted in violation of 28 U.S.C.A. § 1861, as amended by the Civil Rights Act of 1957, 71 Stat. 638; United States v. Hoffa, D.C., 196 F.Supp. 25.

Said order of dismissal, however, expressly provided that the Government was entitled to seek a new indictment, if it so desired, and present the matter to a properly constituted grand jury by virtue of Title 18 U.S.C.A. §§ 3288, 3289. In compliance with an order of this Court issued subsequent to said decision, the clerk of the Orlando Division and the newly appointed jury commissioner completely refilled the jury box. A new panel of grand jurors was called; and on October 11, 1961, said grand jury returned a new indictment against the defendants, James R. Hoffa and Robert E. McCarthy, Jr., omitting Henry Lower, who was then deceased.

The present indictment consists of sixteen counts, the first twelve counts of which are substantially identical with the twelve counts of the previously dismissed indictment. Counts 13, 14 and 15 charge additional acts of mailing in furtherance of the execution of the alleged scheme to defraud set forth in count 1 of the indictment, and count 16 charges the defendants, James R. Hoffa and Robert E. McCarthy, Jr., with conspiracy to violate the mail and wire fraud statute of the United States in violation of Section 371, Title 18 U.S. C.A.

The defendants, having entered their plea of not guilty, were given leave by the arraigning Court to file pre-trial motions if they so desired. Pursuant to said leave, the defendants in time each filed the following motions: motion to dismiss the indictment, motion to transfer under Rule 21(a) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., motion to transfer under Rule 21(b) of the Federal Rules of Criminal Procedure, and a motion for bill of particulars. Defendant McCarthy also filed a motion for severance under Rule 14 of the Federal Rules of Criminal Procedure.

The Government filed its motion to set an early trial date and also filed various documents and affidavits in traverse of the said motions of the defendants, and prayed that the several motions of the defendants be denied without a hearing on the grounds that the factual allegations in said motions are insufficient as a matter of law and that, even if the Court should hold them to be sufficient to warrant a hearing, they are completely controverted and refuted by the affidavits filed by the Government.

The Court, having considered the pending motions, was of the opinion that, although certain factual allegations contained in the motions of the defendants were somewhat vague; yet in order to insure a fair consideration of the matters raised therein, a hearing should be held to give the defendants an opportunity to establish the factual matters asserted in their motions. Accordingly, the Court granted a hearing on all pending motions. At the hearing the parties were given full opportunity to present their respective evidence, oral and documentary, on the issues presented by the motions. At the conclusion of said hearing, the Court granted leave to the defendants to file some supplemental documentary evidence, which was not available at the time of the hearing, and also requested the parties to submit legal briefs in support of their respective positions with regard to the factual matters revealed by the evidence received. The requested submissions are now on file and the matter is ripe for consideration.

The defendants' attack on the indictment is three-pronged.

First, the defendants challenge the legal sufficiency of the entire indictment and contend that the indictment fails to charge an offense against the United States; that the indictment is duplicitous; that the indictment violates Rule 7(c) of the Federal Rules of Criminal Procedure; that all counts are barred by the statute of limitations; that the indictment presently under consideration does not constitute a reindictment within the meaning of Sections 3288 and 3289 of Title 18 U.S.C.A.; and, furthermore, that the indictment should be dismissed because the bank described in the scheme was guilty of violation of the national banking statutes and applicable state banking laws; wherefore, defendants should not be held to answer to the charges made against them by this indictment.

Second, the defendants contend that the indictment should be dismissed because it was founded on evidence illegally obtained by wire tapping and illegal mail watch; that an alleged interception of communications between attorneys for the defendants, subsequent to the return of the indictment, violated the confidential relationship recognized by law between attorney and client; that the indictment is vitiated because of the widespread adverse publicity which so biased and prejudiced the grand jury that the defendants were prevented from having their case considered by an impartial and unbiased grand jury; that the attorney for the Government, in the presentation of the evidence, was guilty of improper conduct whereby the grand jury became biased and prejudiced; that the Court, in impaneling the grand jury, failed to properly instruct the grand jury and failed to take the necessary safeguards to insure the selection of a fair and impartial grand jury; that the indictment should be dismissed because the grand jury returning the present indictment was again improperly selected and constituted due to the fact that it did not represent a fair cross-section of the community in that in its selection there was a systematic exclusion of negroes, women, all wage earners and people of lower economic status.

Third, the defendants contend that counts 2 to 15 should be dismissed because the offenses charged in each of said counts are, in fact, identical; and these counts of the indictment are nothing more than an illegal attempt to fragmentize one single crime into separate crimes by charging each mailing as a separate crime, thereby exposing the defendants to double jeopardy in violation of the Federal Constitution; that counts 13, 14, 15 and 16, the counts which were not in the original indictment, should be dismissed because:

1. There was an unnecessary delay to the prejudice of the defendants in presenting to the grand jury the matters embodied in said counts after the death of the alleged co-conspirator, Henry Lower; therefore, under Rule 48(b) of the Federal Rules of Criminal Procedure, they are entitled to a dismissal of said counts;
2. Adding said additional counts to the dismissed indictment is improper and is not authorized by Sections 3288 and 3289, Title 18 U.S.C.A.; and
3. Count 16 of the indictment should be dismissed or stricken because it places the defendants in double jeopardy, violates Rule 7(c) of the Federal Rules of Criminal Procedure and improperly charges conspiracy where the preceding counts charge a scheme — therefore the indictment is faulty by reason of misjoinder of offenses.

The defendants, in attacking the legal sufficiency of the indictment, contend that the entire indictment is legally defective in that:

1. The transactions described therein, and referred to by the Government as a scheme, do not describe a requisite fraudulent scheme but, on the contrary, the facts alleged therein show nothing more than totally innocent transactions or, at most, inequitable conduct on the part of the defendants rather than criminal conduct;
2. The indictment fails to allege, with regard to the alleged misrepresentations, that the defendants knew the falsity of the said misrepresentations; and
3. The facts alleged in the indictment failed to show that the requisite mailings described therein were, in fact, made in furtherance of the execution of the alleged scheme.

The defendants misconstrue the function of the motion to dismiss; and their argument is, in fact, an argument on the merits...

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    ...actions are fraudulent if made with the intent to deceive. United States v. Buckner, 108 F.2d 921 (2d Cir. 1940); United States v. Hoffa, 205 F.Supp. 710 (S.D.Fla.1972). Whether such fraudulent representations constitute "active fraud" or "constructive fraud" depends on the further showing ......
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