United States v. Huston, 5343.

• Decision Date: 26 June 1928
• Docket Number: No. 5343.,5343.
• Citation: 28 F.2d 451
• Parties: UNITED STATES v. HUSTON et al.
• Court: U.S. District Court — Northern District of Ohio

28 F.2d 451 (1928)

UNITED STATES v. HUSTON et al.

No. 5343.

District Court, N. D. Ohio, W. D.

June 26, 1928.

Sylvester R. Rush, Sp. Asst. Atty. Gen., and Harry G. Levey, Asst. U. S. Atty., of Toledo, Ohio, for the United States.

Tracy, Chapman & Welles and Brown, Hahn & Sanger, all of Toledo, Ohio, for defendants.

KILLITS, District Judge.

The court is considering pleas in abatement in behalf of the several defendants to this case, who attack the regularity of proceedings in the grand jury because of the alleged unauthorized appearance, in connection with the return of the indictment herein, before that body, of Sylvester R. Rush, Special Assistant to the Attorney General. Mr. Rush, as Special Assistant to the Attorney General, signed the indictment in common with Assistant District Attorney Levy of this district. The bill is in seventeen counts, under section 338, tit. 18, USCA (section 215, Criminal Code), for use of the mails in promoting fraudulent enterprises in connection with certain corporate operations, including those of the Chicago, Southern Minnesota, and Kansas City Joint-Stock Land Banks. There is involved, by the appearance of Mr. Rush in the proceedings, construction of sections 310 and 315, tit. 5, USCA, and a consideration of the place of the grand jury in Federal criminal administration. The pleas raise a substantial issue, and one not a mere defect of form cured by section 556, tit. 18, USCA (R. S. 1025), as one not tending to the prejudice of the defendants. United States v. Heinze (C. C.) 177 F. 770.

In a charge to the grand jury some years ago, in this court, we said, "You are organized under the common law, with all the characteristics and functions which pertain to such an organization." In its inception, the grand jury was an independent branch of the court, whose inquiries were conducted within its own membership, and in the absence of any person not regularly drawn to participate therein as a member thereof. Its origin is not obscure, and the occasion therefor, a matter of historic knowledge, was to provide from the body of the people an instrumentality by which the liberties of citizens were safeguarded against the arbitrariness of government. For convenience, however, and to secure an observance of the formalities of procedure, an innovation was soon established upon the original functioning of grand jury inquisitions whereby a representative of the crown, filling the office of prosecutor, was permitted "to be present during the sitting of the grand jury, to conduct evidence on the part of the crown." 1 Chitty, Criminal Law, p. 317. It should be noted that all the attorney for the crown was permitted to do was to "conduct evidence." It is still not permissible, in the federal practice, for the prosecutor to otherwise participate in the jury's proceedings. In this connection it might be said that we are not disagreeing with the conclusions of Judge Hand, in United States v. Rintelen (D. C.) 235 F. 787. Judge Hand, examining the facts, found that the conduct of the district attorney was within the limitations of Justice Field's charge on this subject in 2 Sawy. 667, Fed. Cas. No. 18255, and as approved in United States v. Cobban (C. C.) 127 F. 713. The district attorney's power to "conduct the evidence" is not limited to mere interrogations, but involved is the right, if called upon, to advise how the facts elicited meet the applicable law, provided that he does so judicially. This is a privilege which we have frequently presented in instructions to our own grand juries. Its exercise demands restraint and tact; to go further, to press for a bill or to exhibit partisanship against the subject of inquiry will gravely affect the stability of the result. At the time of the adoption of the Constitution, in 1787, with a Fifth Amendment forbidding the holding of any person to answer to an infamous crime unless on presentment or indictment of a grand jury, it was this common-law organization which was meant, in the functioning of which none but members participated, except for the assistance of the prosecutor in the taking of evidence, but not to be present during either the deliberations of the body upon the case or the balloting of the members to decide whether or not a bill of indictment should be returned.

From 1787 to the present time, therefore, a federal grand jury has been a body organized and functioning as by the common law at the date of the adoption of the amendment; and it seems reasonably clear that no power abides in the Congress to affect or modify the integrity and independence of the body as established. There is no reason in our judgment to abate the jealous consideration for the rights and liberties of the individual which directed the institution of a grand jury at the beginning, and which later impelled the adoption of the amendment. It is yet entirely consonant with the spirit of our institutions that every reasonable precaution be taken to secure the individual, whose acts are under the scrutiny of a select body of his fellow citizens, from influences to which the grand jury may be subjected, even unconsciously or unintentionally, by the government through its chosen prosecuting representative. It is not to underrate the intelligence or independence of a twentieth century grand jury to suggest that some impression not conducive to a thoroughly dispassionate consideration of a charge might result from the presence, as a conductor of the evidence, of one who is seen to be the special representative of the Attorney General, however decorous, prudent, and fair that personage may attempt to be. This subject was well considered by Judge McCall in United States v. Virginia-Carolina Chemical Co. (C. C.) 163 F. 66, 75, whose observations thereon are worthy of note in the instant case. The general proposition that the Fifth Amendment makes necessary a finding following usage and mode of procedure established in 1787 is, for the purposes of this decision, sufficiently considered in United States v. Welles (D. C.) 163 F. 313, and Renigar v. United States (C. C. A.) 172 F. 646, 26 L. R. A. (N. S.) 683, 19 Ann. Cas. 1117, with the citations made in these cases. Grand jurors are accustomed to the presence of a local prosecutor to assist in the development of facts, and are not slow to act with a proper independence against him; but, when it is seen that the government is moved to bring into the proceedings a special representative of the executive branch, the pending charge may receive, in the minds of the jury, a particular emphasis which tends to sway judgment unconsciously.

From the beginning, evidence might be conducted in the grand jury by the Attorney General, with operative functions in every district in the country, by a district attorney of the appropriate district, and by deputies of these officers, who, by statute, severally function as locum tenens. In United States v. Rosenthal (C. C.) 121 F. 862, it was held that these officers only, including their regular deputies only, were so qualified, and that no such authority abided in the personage then known as a special assistant to the Attorney General. While the authority of this case was subsequently disputed, it was generally regarded as conclusive; and there can be little question, going to the proceedings in Congress to which we may refer (U. S. v. Toledo Newspaper Co. D. C. 220 F. 458, 477, and cases cited), that this decision was the genesis of the Act of June 30, 1906, now appearing as section 310, tit. 5, USCA, which reads as follows:

"The Attorney General or any officer of the Department of Justice, or any attorney or counselor specially appointed by the Attorney General under any provision of law, may, when thereunto specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrates, which district attorneys may be by law authorized to conduct, whether or not he or they be residents of the district in which such proceeding is brought."

This statute is not quite clear as to one feature not specially important here — i. e., whether an officer, per se, of the Department of Justice, needs special direction respecting appearance in a district — but it is quite certain that such a functionary as Mr. Rush is within its provisions. We think that the qualification or limitation, "when thereunto specifically directed by the Attorney General," applies only to "any attorney or counselor specially appointed," etc. These are not strictly officers of the Department such as are Assistant Attorneys General and the Solicitor. United States v. Rosenthal, and United States v. Heinze, supra. We are inclined to agree with Judge Hand, in United States v. Morse (D. C.) 292 F. 273, 276, that a special assistant to the Attorney General may be "specifically directed," in satisfaction of the statute, to more than one district in the same designation, provided that such authorization is specific as to the cause of criminal action which may have ramifications in more than one district involving the same associated parties.

Section 315, tit. 5, USCA, is also involved in the instant controversy. It reads:

"Every attorney or counselor who is specially retained, under the authority of the Department of Justice, to assist in the trial of any case in which the government is interested, shall receive a commission from the head of such department, as a special assistant to the Attorney General, or to some one of the district attorneys, as the nature of the appointment may require; and shall take the oath required by law to be taken by the district attorneys, and shall be subject to all the liabilities imposed upon them by law. Foreign counsel employed by the Attorney General in special cases shall not be required to take the oath required by this section."

In the...