United States v. James, Cr. A. No. 15555.

• Decision Date: 30 September 1960
• Docket Number: Cr. A. No. 15555.
• Citation: 187 F. Supp. 439
• Parties: UNITED STATES of America v. Noel Bryant JAMES.
• Court: U.S. District Court — Western District of Louisiana

187 F. Supp. 439

UNITED STATES of America v. Noel Bryant JAMES.

Cr. A. No. 15555.

United States District Court W. D. Louisiana, Monroe Division.

September 30, 1960.

T. Fitzhugh Wilson, U. S. Atty. and Edward V. Boagni, Asst. U. S. Atty., Shreveport, La., for the United States.

George M. Snellings, Jr., McHenry, Snellings, Breard & Sartor, Monroe, La., for defendant.

BEN C. DAWKINS, Jr., Chief Judge.

Attempted prosecution of this defendant almost has reached the point where it fairly could be called persecution, for this is the third indictment returned against him within a period of twelve months, all based upon 18 U.S.C. § 656 and involving substantially the same set of circumstances.

He first was indicted on May 14th, 1959, in Criminal Action No. 15,317. His counsel promptly moved to quash, filing an unanswerable brief in support. After some consideration of the motion and brief, and being convinced that the motion was good, the United States Attorney consented in writing that it be granted. Thus ended Chapter One.

Chapter Two began on February 19th, 1960, when the second indictment was returned, in Criminal Action No. 15,512. Because of its importance as to the issue now before the Court, we quote it in full:

"That on or about December 23, 1957, in the Monroe Division of the Western District of Louisiana, Noel Bryant James, then the President and an officer of the Farmerville Bank, Farmerville, Louisiana, an insured bank, the deposits of which were then insured by the Federal Deposit Insurance Corporation, did, with intent to injure and defraud the said Farmerville Bank, knowingly, unlawfully and fraudulently embezzle and convert to his own use, benefit and advantage, a certain credit of the said Farmerville Bank, to-wit: a promissory note dated at West Monroe, Louisiana, December 16, 1957, executed and signed by Wayne R. Deacon and J. C. Lolly, as co-makers thereof, and payable to the order of N. B. James, the defendant, on or before December 1, 1962, in the sum of $5,000.00, by the following manner and means: that the said defendant, by virtue of his position as President of the said Farmerville Bank, did, on or about December 16, 1957, sell for and on behalf of the said Bank to Wayne R. Deacon and J. C. Lolly certain property, to-wit: furniture and fixtures owned by the said Bank and in payment for said property, the said defendant did receive the aforesaid promissory note which he, the said defendant, sold to the Farmerville Brokerage and Insurance Agency, Inc., the said defendant then knowing full well that the promissory note was the property of the said Bank and constituted a credit thereof. (18 U.S.C. § 656)"

Defendant's counsel again promptly moved to quash, on the ground that 18 U.S.C. § 656¹ classifies as a felony an embezzlement of "moneys, funds or credits" of a value in excess of $100 but also provides, in substance, that if the value does not exceed $100 the offense shall be a misdemeanor; and that inasmuch as the indictment did not allege the value of the note, it was fatally defective because of the impossibility of ascertaining from it whether defendant was charged with a felony or a misdemeanor. Another brief was filed citing authorities² which clearly demonstrated that this motion, too, was good, and ought to be sustained.

Upon request of Government counsel, they were granted thirty days from March 31, 1960, within which to file a reply brief. Instead of doing so, however, they took another tack, on April 21, 1960, by moving for the voluntary dismissal of the second indictment immediately after they had caused the Grand Jury to return a new, and so-called "superseding," indictment, in Criminal Action No. 15,555, now before us. Thus ended Chapter Two and Chapter Three began.

This indictment is virtually identical in language to the second one, except that it adds allegations to the effect that the note was "* * * of a value in excess of $100 * * *" and that it was sold by defendant "* * * for a sum in excess of $100 * * *". It was returned by the same Grand Jury which returned the second one but — and this is the rub — there was no evidence whatever presented before the Grand Jury when it returned the present, third, indictment, some sixty days later. This the Government concedes.

Defendant now has moved to quash this indictment on the ground that it is violative of his rights under the Fifth Amendment³ in that there was no evidence presented before the Grand Jury (which previously had returned the second bill alleging no value as to the note) to justify its allegations now that the note was of a value in excess of $100 and that it was sold by defendant for more than $100.

In support of his position, and in the absence of any Federal decisions squarely in point, defendant relies heavily, and we believe soundly, upon State v. Ivey, 100 N.C. 539, 5 S.E. 407, 408, decided by the Supreme Court of North Carolina in 1888. In quashing a new indictment, the Court said:

"If, as in this case, the indictment be found to be defective, a fresh bill may be sent at the same term before the same grand jury that found the insufficient indictment, and they may act upon it. State v. Harris, 91 N.C. 656. But they cannot do so basing their action entirely upon what witnesses testified to when they had the first bill under consideration, without a re-examination of the witnesses, or the examination of other witnesses, or hearing other proper evidence before them. This is so because the fresh or second bill is as to them a new and independent one, different in some of its features from the first indictment; it charges the offense in a different way to a greater or less extent; it may charge a different offense altogether. The witnesses might testify differently from what they at first did, in view of the new bill; they might modify what they at first said; they might testify as to additional facts; they may have testified falsely at first; they might testify truly upon re-examination. As to the second bill, there was no evidence before the grand jury at all in contemplation of law. They must act upon evidence taken in respect to the bill of indictment before them. This is essential in the intelligent and fair discharge of their important duty, to give the evidence just application, point, and force, and to identify the witnesses with and render them responsible for what they testify to in the course of the prosecution. They, in this case, did not testify as to the new bill."

Defendant also relies upon Brady v. United States, 8 Cir., 24 F.2d 405, 407, which stated:

"It is the settled law of this circuit, we think, that an indictment will be quashed, where there was either no evidence whatever, or no competent evidence of the offense charged, presented to the grand jury * * * We think the same rule should be applied where a grand jury returns an indictment without any evidence whatever before it of a separate, distinct, and essential element of the offense, such as the use of the mails under section 215, and the overt act or acts under section 37. * * *

"`* * * The doctrine that a grand jury may indict without evidence, if tolerated, would establish a precedent subversive of the liberty of the citizen, and his safety and security, and the good name and fame of any innocent person might at any time be blasted.'"

He also cites as persuasive United States v. Farrington, 2 Cir., 5 F. 343, 345, where the Court ruled:

"It is the duty of the court, in the control of its proceedings, to see to it that no person shall be subjected to the expense, vexation, and contumely of a trial for a criminal offence unless the charge has been investigated and a reasonable foundation shown for an indictment or information.

* * * * * *

"It is not the province of the court to sit in review of the investigations of a grand jury as upon the review of a trial when error is alleged; but in extreme cases, when the court can see that the finding of a grand jury is based upon such utterly insufficient evidence, or such palpably incompetent evidence, as to indicate that the indictment resulted from prejudice, or was found in wilful disregard of the rights of the accused, the court should interfere and quash the indictment."

And he also would have us follow the language of Chief Judge Learned Hand, in United States v. Costello, 2 Cir., 221 F.2d 668, 677, reading:

"We should be the first to agree that, if it appeared that no evidence had been offered that rationally established the facts, the indictment ought to be quashed; because then the grand jury would have in substance abdicated."

For its part, the Government contends that this is merely a "superseding" indictment based upon evidence which was produced before the Grand Jury prior to its returning the indictment of February 19th, 1960. To quote exactly from its brief:

"* * * The Government frankly admits and concedes that not a single witness was called before the Grand Jury when the third, or superseding, Indictment was returned, the position of the Government in that particular regard simply being that inasmuch as the Grand Jury had heard the Government's evidence when the second Indictment was returned on February 19, 1960, recalling the same witnesses for the giving of repetitious testimony on April 21, 1960, the date on which the superseding Indictment was returned, would have been a vain and useless thing."

The Government further argues that defendant's position would be valid if the second and third indictments had been returned by different Grand Juries, but that this is not so when they were returned by the same Grand Jury. It also urges that it is inconceivable that the witnesses who appeared before the inquisitorial body prior to the second indictment did not testify as to the value of the note; and that, since it was in the sum of $5,000 it is bound to have a value of more than $100.

In support of its position, the Government relies upon State v. Richard...