United States v. Morse

• Decision Date: 27 September 1922
• Citation: 292 F. 273
• Parties: UNITED STATES v. MORSE et al.
• Court: U.S. District Court — Southern District of New York

292 F. 273

UNITED STATES v. MORSE et al.

United States District Court, S.D. New York.

September 27, 1922

The motions to quash the indictment and pleas in abatement have been filed by the defendants William A. Barber, Stuart G Gibboney, and Martin J. Gillen, and a motion to quash the indictment has been filed by the defendant Milton C. Quimby upon the following grounds which were presented by some or all of said defendants:

(a) Unauthorized presence and participation in the proceedings of the grand jury room of Fletcher Dobyns, special counsel to the Attorney General, not lawfully authorized to act.

(b) Unauthorized presence in the grand jury room of C. George Behre, a stenographer employed by the United States to report the proceedings before grand juries in the Southern district of New York.

(c) Lack of evidence before the grand jury on which to base an indictment.

(d) Refusal of Dobyns to allow defendants Barber and Gibboney to waive immunity and testify before the grand jury, and incorrect statement to the grand jury, when said defendants had sent a written request to the grand jury for leave to testify, that the defendant Charles W. Morse in grand jury proceedings in Washington had applied for leave to go before them, and the request had been denied, and that the grand jury here were entitled to use this as a precedent, whereas in fact said defendant Morse had made the application to the United States attorney in Washington, and not to the grand jury.

(e) Improper drawing and constitution of the grand jury.

The government moves that the pleas in abatement be stricken out and the motions to quash be denied.

Bouvier, Caffey & Beale, of New York City (H. Snowden Marshall, Francis G. Caffey, and Benjamin A. Matthews, all of New York City, of counsel), for defendants Barber and Gibboney.

Root, Clark, Buckner & Howland, of New York City (Emory R. Buckner and Harold Harper, both of New York City, of counsel), for defendant Gillen.

Kaufmann & Kaufmann, of New York City, for defendant Quimby.

AUGUSTUS N. HAND, District Judge (after stating the facts as above).

The right of Fletcher Dobyns to appear before the grand jury depends on (1) whether the designation as counsel which he received from the Attorney General was sufficiently specific; (2) whether, if sufficiently specific, his appointment was rendered invalid because he was acting as special counsel of the United States Shipping Board Emergency Fleet Corporation, or of the United States Shipping Board, and was paid from the funds of the former, as the pleas allege. Fletcher Dobyns' designation was made by the Attorney General under the Act of June 30, 1906 (Comp. St. Sec. 534), which provides as follows:

'The Attorney General, or any officer of the Department of Justice, 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 and proceedings before committing magistrates, which district attorneys now are or hereafter may be authorized to conduct, whether or not he or they be residents of the district in which such proceeding is brought.'

Under the authority of this statute, the Attorney General appointed Mr. Dobyns, in a letter dated April 1, 1922, which is set up verbatim in the pleas in abatement, gave the appointee wide powers, and closed the letter with the words:

'You are to serve without compensation other than received by you as special counsel United States Shipping Board.'

He also gave an appointment by a letter dated November 21, 1921, which is set up in Mr. Dobyns' affidavit of May 18, 1922, in opposition to the motions to quash, containing even wider authority. The letter of April 1, 1922, specifically mentioned investigation and prosecution under sections 37, 215, and 216 of the Criminal Code (Comp. St. Secs. 10201, 10385, 10386), the last two of which were not referred to in the first letter, and each gave authority to conduct in the Southern district of New York and other judicial districts, civil or criminal, including grand jury proceedings which district attorneys might be authorized to conduct.

This last letter particularly refers to the Southern district of New York, and says that in connection with the investigation and prosecution of alleged violations of sections 37, 215, and 216 of the Criminal Code and of other provisions of law by certain persons named and others engaged in the sale of the stock of certain named corporations Fletcher Dobyns is authorized and directed to conduct any kind of legal proceedings, civil or criminal, which district attorneys are now authorized to conduct. It is not shown in the plea in abatement that the investigation was not of interrelated companies and of persons having to do directly or indirectly with the sale of their stock. The letter of appointment would naturally relate to causes of action, criminal or civil, in which the United States was interested growing out of the relation. I see no reason for assuming, because on the face of the letter no interrelation is set forth, that it is not sufficiently specific. Indeed, it probably is as specific as was possible, if adequate power to deal with the situation without impairment of usefulness or unnecessary reduplication of labor were to be given. Nor does the fact that proceedings may be taken in more than one district render the authority broader than the act of 1906 justifies, for no such limitation seems necessarily involved in the language of the act, and to impose it would cause unnecessary inconvenience in enforcing the law.

The decision of Judge Morton in the case of United States v. Cohen (D.C.) 273 F. 620, is not in the least in conflict with these views. He held that an authorization to special counsel to conduct grand jury proceedings in a certain class of cases did not cover the right to file informations. The difficulty there was, not that the authorization was too broad, but that it was too narrow, to cover the case. It should be added that each of the defendants, except Milton C. Quimby, who has filed a plea in abatement or moved to quash because of the supposed irregularity of Mr. Dobyns' appointment, is specifically named in the letter of April 1, 1922, among those included in the governmental investigation. For this reason alone the letter of appointment was adequately specific as to them. Moreover, in the case of Quimby it was of course the grand jury that found the indictment, and if a special counsel properly before them to investigate alleged infractions of law by others whom he was appointed to prosecute brought out evidence which affected some one else in connection with the inquiry, I cannot regard his lack of specific authority to investigate Quimby, even if it had existed, as sufficient to invalidate the indictment as to him.

The second objection to Mr. Dobyns' appointment is that he was special counsel to the United States Shipping Board Emergency Fleet Corporation, and was receiving compensation as such when directed to serve as Special Assistant Attorney General without further compensation before the grand jury which found this indictment. This is said to have violated three different statutes:

(1) R.S. Sec. 3678 (Comp. St. Sec. 6764), which provides that all sums appropriated for the various branches of expenditure in the public service shall be applied solely to the objects for which they are made, and no other.

(2) R.S. Sec. 3679 (Comp. St. Sec. 6778), which provides that no department or officer of the government shall accept voluntary service for the government or employ personal services in excess of that authorized by law.

(3) Act March 3, 1917, 39 Stat. 1106 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 3231a), which provides that no government official or employee shall receive any salary in connection with his services as such an official or employee from any source other than the government of the United States.

Mr Dobyns' salary, according to the statement in his affidavit, which I suppose will not be questioned, is paid by checks on the treasury of...