United States v. Martins

• Decision Date: 02 May 1923
• Docket Number: 3889.
• Citation: 288 F. 991
• Parties: UNITED STATES v. MARTINS et al.
• Court: U.S. District Court — District of Massachusetts

288 F. 991

UNITED STATES v. MARTINS et al.

No. 3889.

United States District Court, D. Massachusetts.

May 2, 1923

The United States Attorney.

T. F O'Brien and Solomon Rosenberg, both of New Bedford Mass., for defendants in error.

MORTON District Judge.

Although the name of one of the 41 aliens may have been known to the grand jury and notwithstanding charged as unknown, the whole indictment is not on that account bad. The point is precisely covered by Feener v. United States, 249 F. 425, 161 C.C.A. 399.

As to Mr. Curtis' authority to conduct proceedings before the grand jury: I have no doubt that the permitted presence in the grand jury room of an unauthorized person is sufficient ground for quashing an indictment. To hold otherwise would open the door to a practice which might lead to oppression and unfairness. The question, then, is whether Mr. Curtis was authorized by law to be present when the grand jury was considering evidence against the defendants. This depends upon the correct interpretation of certain statutes. Rev. St Sec. 363 (Comp. St. Sec. 538), provides that:

'The Attorney General shall * * * employ and retain, in the name of the United States, such attorneys and counselors at law as he may think necessary to assist the district attorneys in the discharge of their duties.'

The act of 1906 (34 Stat.at Large, 816; Comp. St. Sec. 534) provides that: 'The Attorney General 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.'

The Attorney General, under date of April 22, 1921, appointed Mr. Curtis--

'a special assistant to the United States attorney for the district of Massachusetts in the following cases (naming them) and in such other cases and matters as may be assigned to you. You are hereby authorized and directed to conduct grand jury proceedings in the district of Massachusetts in connection with these cases and matters, including such as may be assigned to you hereafter. ' (Letter of appointment.)

Mr. Curtis was assigned by the United States attorney for this district to take charge of the case against these defendants before the grand jury.

Broadly speaking, the intention of the statutes appears to have been to authorize the Attorney General to...