United States v. Howard, 29438 Summary Calendar.

• Decision Date: 15 October 1970
• Docket Number: No. 29438 Summary Calendar.,29438 Summary Calendar.
• Citation: 433 F.2d 1
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jackson Edward HOWARD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

433 F.2d 1 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Jackson Edward HOWARD, Defendant-Appellant.

No. 29438 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

October 15, 1970.

Millard C. Farmer, Jr., Newnan, Ga., for defendant-appellant.

William J. Schloth, U. S. Atty., Charles B. Pekor, Jr., Asst. U. S. Atty., Macon, Ga., for plaintiff-appellee.

Before WISDOM, COLEMAN, and SIMPSON, Circuit Judges.

WISDOM, Circuit Judge:

There is no merit to any of the contentions the defendant raises on this appeal.

On February 3, 1970, a four-count indictment was returned charging Franklin Jackson Young and Jackson Edward Howard with: (1) having a still in their possession and control; (2) carrying on the business of distillers without having given bond; (3) carrying on the business of distillers with intent to defraud the United States; and (4) possession of nontaxpaid liquor. Young, who had served time for other liquor violations, pleaded guilty.

I.

The defendant contends that the district court erred in not sustaining his motion to dismiss the indictment on the ground that no minutes of the grand jury testimony were kept. In the trial court the defendant asserted that the indictment was invalid because an unauthorized person was present during the grand jury deliberations and because the grand jury relied solely on hearsay evidence. On appeal, he argues that he has the right to use the minutes to impeach government witnesses who appeared before the grand jury.

There is a line of cases holding that grand jury minutes need not be kept. See, e. g., United States v. Harper, 5 Cir., 432 F.2d 100 September 17, 1970; Baker v. United States, 5 Cir. 1969, 412 F.2d 1069; Loux v. United States, 9 Cir. 1968, 389 F.2d 911; Welch v. United States, 10 Cir. 1966, 371 F.2d 287. The rationale of these cases is as follows: (1) Dennis v. United States, 1966, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973, required disclosure of grand jury testimony because of the inequity of the government having "exclusive access to a storehouse of relevant fact." (2) The purpose of the Dennis holding is to equalize the parties in their ability to impeach witnesses on cross-examination. (3) When there is no transcript of grand jury testimony, the government receives no aid in cross-examination. (4) Therefore the absence of transcripts makes the defendant's ability to impeach the same as the government's.

This line of decisions answers the defendant's argument to the extent that it is based on equal access to impeaching testimony. But no recent cases deal with the absence of grand jury minutes to determine if the grand jury meetings themselves infringed the defendant's rights, for instance through the presence of an unauthorized person. Arguably the defendant might have a right to see some official records, if not a complete transcript, in order to determine whether any substantive rights were infringed in the grand jury actions.

This case does not require us to decide that question. There is no substantive right against indictment based solely on hearsay evidence. Costello v. United States, 1956, 350 U.S. 359, 76 S. Ct. 406, 100 L.Ed. 397. And breaching the secrecy of the grand jury to show denial of rights in its deliberations requires a showing of need, just as when impeachment is the purpose. See United States v. Bitter, 7 Cir. 1967, 374 F.2d 744; United States v. Wolfson, D.Del. 1968, 294 F.Supp. 267. The defendant's assertions regarding the presence of an unauthorized person were mere speculations, unsubstantiated in any way. They would not require the production of testimony even if it were available.

II.

The defendant contends that the district court erred in answering a note from the jury without consulting the defendant or his attorney. When the jurors were being polled on their verdict, one of them, Mr. Marshall, stated,

The fact that I said guilty on the first three counts was because I said that the Defendant was guilty on the 4th Count. Well, I sent a message, I believe, that if he was guilty on the 4th Count and you said this constituted him being guilty on the other counts which is the only reason that I said he was guilty on 1, 2, and 3 on the principle of aiding and abetting.

The message to the judge and the answer were not available. The foreman said that he had sent a note asking whether the defendant could be guilty on counts one through three on the principle of aiding and abetting; this corresponded with the judge's recollection of the matter.

Responding to this question out of the presence of defendant and...