United States v. Keegan, 112-336.

• Decision Date: 13 May 1947
• Docket Number: No. 112-336.,112-336.
• Citation: 71 F. Supp. 623
• Parties: UNITED STATES v. KEEGAN et al.
• Court: U.S. District Court — Southern District of New York

71 F. Supp. 623

UNITED STATES v. KEEGAN et al.

No. 112-336.

District Court, S. D. New York.

May 13, 1947.

Anthony J. Armore, of West New York, N. J., and Francis D. Murphy, of New York City, for petitioner.

John F. X. McGohey, U. S. Atty., Louis Bender, and Bruno Schachner, Ass't U. S. Attys., all of New York City, for the United States.

BARKSDALE, District Judge Designate.

The question here presented arises on the petition of Wilbur V. Keegan for a certificate of innocence under the provisions of 18 U.S.C.A. §§ 729 and 730, and the objections thereto of the United States, said Code sections being as follows:

"§ 729. Erroneous conviction; authorization of suit against United States

"Any person who, having been convicted of any crime or offense against the United States and having been sentenced to imprisonment and having served all or any part of his sentence, shall hereafter, on appeal or on a new trial or rehearing, be found not guilty of the crime of which he was convicted or shall hereafter receive a pardon on the ground of innocence, if it shall appear that such person did not commit any of the acts with which he was charged or that his conduct in connection with such charge did not constitute a crime or offense against the United States or any State, Territory, or possession of the United States or the District of Columbia, in which the offense or acts are alleged to have been committed, and that he has not, either intentionally, or by willful misconduct, or negligence, contributed to bring about his arrest or conviction, may, subject to the limitations and conditions hereinafter stated, and in accordance with the provisions of the Judicial Code, maintain suit against the United States in the Court of Claims for damages sustained by him as a result of such conviction and imprisonment. May 24, 1938, c. 266, § 1, 52 Stat. 438."

"§ 730. Same; certificate of innocence; admissibility; contents "The only evidence admissible on the issue of innocence of the plaintiff shall be a certificate of the court in which such person was adjudged not guilty or a pardon or certified copy of a pardon, and such certificate of the court, pardon, or certified copy of a pardon shall contain recitals or findings that —

"(a) Claimant did not commit any of the acts with which he was charged; or

"(b) that his conduct in connection with such charge did not constitute a crime or offense against the United States or any State, Territory, or possession of the United States or the District of Columbia, in which the offense or acts are alleged to have been committed; and

"(c) that he has not, either intentionally, or by willful misconduct, or negligence, contributed to bring about his arrest or conviction. May 24, 1938, c. 266, § 2, 52 Stat. 438."

On July 7, 1942, petitioner and divers others were indicted under the provisions of 50 U.S.C.A.Appendix, § 311, Section 11 of the Selective Training & Service Act of 1940, for conspiring "to counsel divers persons to evade, resist and refuse service in the land and naval forces of the United States * * *". It was charged that the petitioner was counsel for, and his codefendants were national officers, department leaders and unit leaders of, the German-American Bund. All these defendants, except three who had pleaded guilty, came on for trial before the undersigned, sitting by assignment in the District Court for the Southern District of New York, on September 17, 1942, which trial resulted in the conviction of defendant and 23 of his codefendants, one defendant being acquitted. Promptly after conviction, the petitioner and his 23 codefendants were sentenced to imprisonment. Thereupon petitioner and his codefendants who had been sentenced, began serving their sentences. Upon appeal to the Circuit Court of Appeals for the Second Circuit, these convictions and sentences were unanimously affirmed. Keegan v. United States, 141 F. 2d 248. The Supreme Court granted certiorari, and on June 11, 1945, the judgment of conviction of all defendants by the District Court was reversed by the Supreme Court and the cause was remanded thereto for further proceedings in conformity with the opinion of the Supreme Court. Keegan v. United States, 325 U.S. 478, 65 S.Ct. 1203, 89 L.Ed. 1745 (four Justices dissenting). The ground of reversal, as stated in the headnote, was: "The evidence in this case was insufficient to sustain conviction of the petitioners, * * *".

Upon receipt of the mandate, the District Court entered an order making the mandate of the Supreme Court the judgment of the District Court, dismissing the indictment, and discharging the defendants from custody. Meanwhile, the petitioner had served a very substantial portion of his sentence of imprisonment.

Being advised that under these circumstances he was entitled to maintain his suit in the Court of Claims for damages as provided in Section 729, he filed his petition in the District Court for a certificate of innocence as provided in Section 730. Honorable John C. Knox, Senior District Judge of the Southern District of New York, being of the opinion that this petition should be considered by the judge before whom the trial was had, the petition has been referred to the undersigned. The Government objects to the granting of such certificate upon the grounds:

(1) That the record of trial shows that, even though he has been found not guilty of conspiracy in consequence of the mandate of the Supreme Court, the record of trial shows that he was nevertheless guilty of the substantive offense of counseling evasion of the military service;

(II) That petitioner was guilty of wilful misconduct which contributed to bring about his arrest and conviction; and

(III) That petitioner was guilty of conspiracy to induce others to make false statements and to furnish false information under the Alien Registration Act, 8 U.S.C. A. §§ 137, 155, 156a, 451-460, 18 U.S.C.A. §§ 9-13, as charged in a separate indictment from that upon which he was tried, and as to which indictment a nolle prosequi was entered after the decision of the Supreme Court reversing his conviction under the other indictment.

Oral argument has been heard, and briefs have been filed.

Legislative History of the Act.

It has always been recognized that the safe-guarding of society by the prosecution of crimes against it, is a sovereign attribute inherent in all governments, one of the jura majestatis, and for mistakes in exercising this sovereign right, there can be no liability against the government without its consent. It has been said that it would be injurious to the public interest if a government hesitated to prosecute a suspected guilty person for fear of striking an innocent one. Nevertheless, it cannot be gainsaid that, where a sovereign government has punished a person for a crime of which the person was entirely innocent, in fairness and justice the injured person should be compensated. He cannot be made whole. The wrong cannot be wholly righted, but in such instances, at the very least, the injured person can be compensated by the sovereign. Of course, it is distasteful to the public generally, and lawyers and judges particularly, to think that an entirely innocent person is ever punished for a crime. There are, however, certain glaring instances of this tragedy. There is the case of Lesurques, in France, just before the Revolution — a victim of mistaken identity — which is chronicled in nearly every book on circumstantial evidence. Then there is the English case of Adolf Beck, who was convicted and imprisoned for seven years for the crime of another man. Beck had no legal redress available, but his case was so shocking that he was granted a gratuity of 5,000 pounds by Parliament. In America, there is the case of Andrew Toth, who, after having been convicted of murder in Pennsylvania, and serving 20 years, was found to have been absolutely innocent. He had no redress at law, and the Legislature declining to provide compensation, Andrew Carnegie gave him a pension of $40 a month. This case was the subject of an editorial in the Virginia Law Register in September, 1911 — 17 Va.Law Reg. 406 — which is in part as follows:

"Had this man been imprisoned at the instance of a private person for twenty-four hours in jail and such imprisonment been shown to be false and malicious he would have recovered ample damages. But in his present situation he is without redress and the strong arm of the law which has taken out of his life twenty years, caused him to endure shame, suffering and humiliation, is withdrawn from him and he goes forth an outcast and a beggar, only saved from actual want by private charity. Is this a condition of affairs which should exist in a civilized country, boasting of men's equality before the law? In a late number of the Register we spoke of the propriety of a law allowing a man tried for an offence against the Commonwealth and acquitted, an allowance for costs. We believe such a law should be passed, despite the fact that there is no precedent in history for it.

"But in a case like Toth's it seems to us there can be no question that the State should compensate the man and that a general act should be passed permitting a man who has suffered at the hands of the law for a crime of which he was innocent, compensation to be fixed by a court of justice upon good cause shown."

The recent case of Bertram Campbell in New York, is another tragic instance of miscarriage of justice. Campbell v. State, 186 Misc. 586, 62 N.Y.S.2d 638.

The principle that private property cannot be taken for public use, without just compensation, is not only inherent in the Constitution, but is a principle of great antiquity. It is thoroughly illogical that in a legal system an innocent person may be deprived of his liberty, which is much dearer to him than property, by his sovereign, without compensation, although he cannot be so deprived of his property. However, there seems to...