United States v. Johnson
| Decision Date | 06 August 1957 |
| Docket Number | Docket 24676.,No. 398,398 |
| Citation | 247 F.2d 5 |
| Parties | UNITED STATES of America, Appellee, v. Lawrence JOHNSON, Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
William W. Kleinman, Brooklyn, N. Y., for appellant (William W. Kleinman, Brooklyn, N. Y., Daniel H. Greenberg, Seymour J. Shapiro, New York City, of counsel).
Paul W. Williams, U. S. Atty., New York City, for appellee (Robert W. Bjork, Arthur B. Kramer, Asst. U. S. Attys., New York City, of counsel).
Before CLARK, Chief Judge, and CHASE and HINCKS, Circuit Judges.
Writ of Certiorari Denied November 12, 1957. See 78 S.Ct. 116.
In 1955, and before, the appellant was the sole stockholder, a director and the president, of Brakes, Inc., a New York corporation, a part of whose business was done under contracts with the government. In November 1955, a federal grand jury in the Southern District of New York was investigating charges that Brakes, Inc., had submitted to the government false statements relating to the performance of those contracts and a subpoena duces tecum calling for the production of designated books and records concerning one of the contracts was, on November 18, 1955, served on the person who told the marshal that she was the secretary-treasurer of the corporation. Though she was mistaken, no point is made as to any defect in the service of that subpoena and some, though not all, of the books and records called for were produced in response to it.
On May 2, 1957, while another grand jury was continuing the investigation, a second subpoena duces tecum was served; this time on the appellant as the president of the corporation. It called for the production of books and records relating to the same contract, some of which had been specifically mentioned in the first subpoena, and some not, and for those relating to twelve other contracts with the government. There was a partial compliance with the second subpoena on May 10, 1957, but only after the appellant had appeared before the grand jury and been directed by its foreman to search for the subpoenaed records and produce them. There was a further partial compliance on May 14, 1957 after another direction by the foreman; and still another on May 27, 1957, after the appellant had been adjudged in contempt and when he was attempting to purge himself from that.
After all this, compliance with the subpoenas was still incomplete because of the failure to produce called for books and records consisting of sales invoices; purchase orders, journals and invoices; certificates of compliance; records of shipments under each contract; correspondence; both account receivable and account payable ledger cards; and cash disbursements journal for the period from January 1950 to December 1951.
The appellant did not appear at the hearings before the court which resulted in his adjudication for contempt but in his appearances before the grand jury he was examined and on several occasions refused to answer questions on the ground that his answers might be incriminating. The judge held that all such refusals were justified and, as he was not directed to answer any such questions, he was not held in contempt for refusing to testify, the contempt consisting solely in his failure to produce what was specified in the subpoenas.
As to that, the position taken by the appellant before the grand jury and the district court, and now here, is that he did his best to comply with the subpoenas but was prevented from so doing because the things which were called for and not produced were neither under his control nor in existence when the subpoenas were served.
At the time of the service of the subpoenas, Brakes, Inc., had been voluntarily dissolved, that having been formally done on April 1955. Its business had been taken over by a corporation called Brakes Center Inc. Previously some of its books and records had been kept at the place of business it...
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