United States v. Mirabal Carrion

• Decision Date: 09 April 1956
• Docket Number: Cr. No. 7251.
• Parties: UNITED STATES of America v. Ramon MIRABAL CARRION et al.
• Court: U.S. District Court — District of Puerto Rico

140 F. Supp. 226

UNITED STATES of America v. Ramon MIRABAL CARRION et al.

Cr. No. 7251.

United States District Court D. Puerto Rico, San Juan Division.

April 9, 1956.

Ruben Rodriguez Antongiorgi, U. S. Atty., San Juan, P. R., for plaintiff.

Marcos A. Ramirez, Santurce, P. R., Ramon H. Vargas, Arturo Ortiz Toro, Manuel Cruz Horta, San Juan, P. R., R. V. Perez Marchand, Rio Piedras, P. R., Santos P. Amadeo, Romany & Romany, Carlos J. Faure, Tomas I. Nido, San Juan, P. R., J. M. Ramos Barroso, Bayamon, P. R., for defendants.

RUIZ-NAZARIO, District Judge.

The defendants herein have been indicted for conspiracy to advocate the overthrow of the Government of the United States of America by force and violence. Sections 371 and 2385 of Title 18 U.S.C. They have filed various motions which for the purpose of discussion herein may be grouped as:

A. Motions to Dismiss the Indictment on Various Grounds

B. Motions Attacking as Unlawful the Selection and Composition of the Jury List of this Court from which the Grand Jury which Returned the Indictment was Selected

C. Motions for Inspection of Grand Jury Minutes

D. Motions for Bill of Particulars

A.

Motions To Dismiss The Indictment

Ground I

In two of the motions to dismiss the indictment the defendants move this Court to dismiss such parts of the indictment in which acts committed prior to October 28, 1951 are alleged. It is claimed that the Statute of Limitations, Section 3282, 18 U.S.C., bars the prosecution for chargeable acts committed prior to said date. This contention is wholly without merit and must be denied. The indictment in this case, returned on October 27, 1954, charges a conspiracy, continuous in nature, alleged to have commenced on or about March 10, 1946 and continuing up to October 27, 1954, the date of the filing of the indictment. It is well-settled law that in a conspiracy charge the period of limitation is computed from the date of the last overt act. Fiswick v. United States, 1946, 329 U.S. 211, 67 S.Ct. 224, 91 L.Ed. 196; Brown v. Elliot, 1912, 225 U.S. 392, 32 S.Ct. 812, 56 L.Ed. 1136. In the instant indictment six overt acts are alleged, all of which fall within the statutory period. See also United States v. Flynn, D.C., 103 F.Supp. 925, 927, affirmed 2 Cir., 216 F.2d 354, certiorari denied 348 U.S. 909, 75 S.Ct. 295, 99 L.Ed. 713.

The motions to dismiss on this ground are therefore denied.

Grounds II and III

Section 3 of the original Smith Act, Section 11 of 18 U.S.C. (1946 Ed.), which punished conspiracies to violate said Act was repealed by the Act of June 25, 1948, c. 645, § 21, 62 Stat. 862, which became effective September 1, 1948. Based on that fact, the defendants allege that the indictment herein should be dismissed on two grounds: First, because the same is founded on a statute no longer in existence; Second, because by repealing said Section 3 "Congress manifested its intention that mere conspiracies to violate the Smith Act, without more, should not be constitutive of a crime."

In this respect the Statutory authority for the indictment is given — as in violation of "U.S.C., Title 18, Section 11 (1946 Ed.), being Section 3 of the said Smith Act while said section of said Act remained effective, and thereafter in violation of U.S.C., Title 18, Section 371 (1948 Ed.)." I can find no error in the citation of former Section 3 of the Smith Act since it is referred to in conjunction with Section 371, 18 U.S.C. (General Conspiracy Statute). But even on the assumption that there be an improper mention of a repealed statute, the well-accepted rule of law is that an indictment charging an offense under some statute in force will not be dismissed for the reason that there may have been an erroneous citation of another statute. Hammer v. United States, 271 U.S. 620, 46 S.Ct. 603, 70 L.Ed. 1118; Williams v. United States, 168 U.S. 382, 18 S.Ct. 92, 42 L.Ed. 509; United States v. Nixon, 235 U.S. 231, 35 S.Ct. 49, 59 L.Ed. 207; see also Rule 7(c) of the Fed.Rules of Criminal Procedure, 18 U.S.C.

In the present indictment the conspiracy statute makes a crime the acts alleged to have been committed prior to September 1, 1948. United States v. Mesarosh, D.C.1952, 13 F.R.D. 180-187.

The second contention to the effect that there can be no conspiracy to violate the Smith Act because Section 3, above cited, of the original Act was repealed, has been decided against defendant's contention in a number of cases decided since the repeal of said original Section 3 and in which conspiracy to violate present Section 2385 of Title 18 U.S.C. has been upheld. United States v. Dennis, 2 Cir., 1950, 183 F.2d 201, affirmed Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137; Frankfeld v. United States, 4 Cir., 1952, 198 F. 2d 679, certiorari denied 344 U.S. 922, 73 S.Ct. 389, 97 L.Ed. 710; United States v. Fujimoto, D.C.Haw., 102 F.Supp. 890; United States v. Flynn, 103 F.Supp. 925, supra; United States v. Mesarosh, supra.¹

The motions to dismiss on these grounds are therefore denied.

Ground IV

Other ground advanced by the defendants to dismiss the indictment is the alleged lack of jurisdiction of this Court upon the basis that the Smith Act, 18 U.S.C. § 2385, ceased to apply in this District upon the establishment of the Commonwealth of Puerto Rico by virtue of Public Laws 600 and 447, 48 U.S.C.A. § 731b et seq.

This contention must be decided against the defendants on the authority of Carrion v. Gonzales, D.C., 125 F.Supp. 819, decided by Acting Judge Snyder, and Arbona v. Kenton, D.C., 126 F.Supp. 366, decided by Judge Weinfield of the Southern District of New York, in which this precise question was raised in this same case. On this point I fully adhere to the views expressed in those opinions.

The motions to dismiss on this ground are therefore denied.

B. Motions To Dismiss The Indictment On The Ground That The Grand Jury Which Returned The Same Was Unlawfully Selected And Composed

The attack on the legality of the jury panel of this Court and consequently on the composition and selection of the Grand Jury which returned this indictment is made by defendant Garcia Rodriguez originally in his motion of July 7, 1955. Other motions of similar import have been filed on behalf of other defendants. On September 8, 1955 defendant Garcia Rodriguez filed a supplemental motion enlarging and substantiating his original motion attacking the jury panel. To this supplemental motion said defendant has attached four exhibits marked A, B, C, and D. A hearing was held at which documentary and testimonial evidence was offered. Defendant's contentions may be summarized as follows:

It is claimed that both the jury list and the Grand Jury which indicted these defendants were unlawfully composed and selected, thus depriving the defendants of their constitutional rights to be tried by a fair and impartial jury because:

(a) The requirements contained in Section 867 of Title 48 U.S.C.A. to the effect that jurors who serve in this Court have a sufficient knowledge of the English language operates as a bar to a selection of a jury representative of this community, since it is alleged that the majority of Puerto Ricans do not have sufficient knowledge of said language.

(b) In addition to the attack on the jury list in connection with the requirement as to the English language, the defendants also impugn the representative character of the jury of this District by stating in their motion that "defendant has reason to believe, and hereby affirmatively alleges, that the jury list, panel, or array from which the Grand Jury which acted in this case was selected, did not fairly represent the entire community as is required by law and good conscience * * *"

Further on, the defendants allege that "as a result of the situation described in the preceding paragraphs and/or because of a deliberate practice and custom to that effect, defendant likewise honestly believes and hereby alleges, that a substantial majority chosen for the grand and petit jury service in this Court and who are included in the jury list, panel or array, including that which was used in this case, are persons of a financial, social and educational level which is not representative of the community as a whole, and in fact, is exclusive of a substantial portion of the group which actually qualifies for jury service under the statute."

This Court granted to the defendants an opportunity to make a prima facie showing in support of the above allegations, and the above-mentioned exhibits A to D attached to the motion of September 8, 1955 purport to be in compliance with the request of the Court. That was also the purpose of the hearing held on October 14, 19, 20, 1955.

At the outset and before this Court considers the evidence submitted by the defendants in support of their contention, it might be well to state the rules of law which govern jury challenges. It is well settled that before a jury panel can be quashed on the ground that a cohesive group has been excluded, there must be a clear showing of an intentional and systematic exclusion of said group. Frazier v. United States, 335 U.S. 497, 69 S.Ct. 201, 93 L.Ed. 187; Fay v. People of State of New York, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043; Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S. Ct. 984, 90 L.Ed. 1181; United States v. Dennis, supra; Sub Nom. United States v. Foster, D.C., 80 F.Supp. 479, affirmed United States v. Dennis, 2 Cir., 183 F.2d 201; Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137. The Supreme Court has made it abundantly clear in a number of cases involving mostly exclusion of racial and economic groups that disproportion in the ultimate composition of an indicting grand jury furnishes no basis whatsoever for an inference of exclusion. Fay v. People of State of New York, supra; Frazier v. United States, supra. Moreover, it is essential if a defendant is to succeed in a jury challenge,...