United States v. Michael, 9473.

• Citation: 180 F.2d 55
• Decision Date: 29 December 1949
• Docket Number: No. 9473.,9473.
• Parties: UNITED STATES v. MICHAEL et al.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

180 F.2d 55 (1949)

UNITED STATES v. MICHAEL et al.

No. 9473.

United States Court of Appeals Third Circuit.

Reargued November 21, 1949.

Decided December 29, 1949.

Rehearing Denied March 13, 1950.

Writ of Certiorari Denied June 5, 1950.

Robert T. McCracken, Philadelphia, Pa. (George G. Chandler, Philadelphia, Pa., J Julius Levy, Scranton, Pa., on the brief), for appellant.

M. H. Goldschein, Washington, D. C., for appellee.

Before MARIS, McLAUGHLIN and KALODNER, Circuit Judges.

Writ of Certiorari Denied June 5, 1950. See 70 S.Ct. 1023.

MARIS, Circuit Judge.

George L. Fenner, Sr. and Harry S. Knight were convicted in the District Court for the Middle District of Pennsylvania under an indictment in which they were charged jointly with Robert Michael, Homer N. Davis and Donald M. Johnson of violating Section 29, subdivision a, of the Bankruptcy Act, 11 U.S. C.A. § 52, sub. a, and of conspiring to commit the substantive offenses charged. Michael pleaded guilty and Davis and Johnson were acquitted. Knight alone appealed. Concluding that the evidence did not support the charges made in the indictment we reversed his conviction and directed his acquittal. 3 Cir., 169 F.2d 1001. On certiorari, the Supreme Court disagreed with our view of the evidence, reversed our judgment and remanded the case to us for further proceedings. 336 U.S. 505, 69 S.Ct. 704. We thereupon set the case down for reargument of certain other questions which the appellant had raised and which neither this court nor the Supreme Court had decided. These questions have now been fully reargued and we accordingly proceed to their consideration.

The first is the appellant's contention that the district court erred in dismissing his plea in abatement which was based upon the fact, as he alleges, that the indictment was not found within a period of three years after the commission of the offense. Section 29, subdivision d, of the Bankruptcy Act, as amended, and in force when this indictment was acted on, provided: "d. A person shall not be prosecuted for any offense arising under this act unless the indictment is found or the information is filed in court within three years after the commission of the offense: * * *." 52 Stat. 856.

The factual basis of this contention will be stated briefly. The offense was alleged to have been committed on or about April 24, 1942. On April 20, 1945 the grand jury brought the indictment in question into an open session of the district court. It was endorsed "A True Bill" by the foreman. The indictment was handed by the grand jury to the judge of the district court who, without publicly stating its contents or the names of the accused, sealed it in an envelope and handed it to the clerk with an order directing that it be impounded. The clerk made a notation on the criminal docket of the order for impoundment without indicating the names of the defendants or the nature of the offenses charged and kept the indictment in his safe thus impounded until June 13, 1945. On that date the sealed indictment was delivered by the clerk to the judge of the district court in open court who thereupon opened it and delivered it to the clerk with instructions to file it, as of April 20, 1945. The clerk thereupon publicly announced the indictment, regularly filed it in his office and made the appropriate entries on his criminal docket.

The appellant argues that in view of its impoundment the indictment was not "found" within the meaning of the statute of limitations prior to April 24, 1945, the last day of the statutory period of three years. We do not agree. The finding of an indictment is the function of the grand jury. When an indictment has been submitted to the grand jury by the government attorney it becomes the duty of that body to find it to be a true bill of indictment and so return it to the district court, if at least twelve of the grand jurors concur in regarding the evidence presented by the government as making out a prima facie case of the offense charged. If the requisite number of grand jurors decline to find the indictment to be a true bill it is to be returned as ignored. When the grand jury has found an indictment to be a true bill and has completed its action thereon by returning the indictment, duly endorsed as a true bill by its foreman, to the district court in open session, its function has been fulfilled. The indictment has been "found" within the meaning of the statute of limitations regardless of what the district court may thereafter do or fail to do with respect thereto. See Criminal Procedure Rule 6 (f), 18 U.S.C.A.

Here the grand jury completed its finding and return of the indictment on April 20, 1945, four days before the expiration of the period fixed by the statute of limitations. The indictment was therefore not barred by the statute. The appellant contends, however, that the impounding of the indictment for 54 days during which time the period fixed by the statute of limitations expired was unlawful and substantially prejudicial to him. We see no basis for this contention. Criminal Procedure Rule 6(e) authorizes indictments to be kept secret during the time required to take the defendant into custody.¹ If such secrecy may lawfully be imposed in that situation we see nothing unlawful in the court imposing secrecy in other circumstances which in the exercise of a sound discretion it finds call for such action. Nor do we find that the appellant was in fact prejudiced by the delay of 54 days in making public the indictment against him. His allegations in this regard are wholly general and there is no suggestion of any instance in which the delay impaired or destroyed any item of proof needed for his defense. We conclude that the district court did not abuse its discretion in impounding the indictment and that it,...