United States v. Pardue
| Decision Date | 31 December 1923 |
| Citation | 294 F. 543 |
| Parties | UNITED STATES v. PARDUE et al. |
| Court | U.S. District Court — Southern District of Texas |
H. M Holden, U.S. Dist. Atty., and George E. B. Peddy, Sp. Asst U.S. Atty., both of Houston, Tex.
Rasbury Adams & Harrell and Jed. C. Adams, all of Dallas, Tex., for defendant Chaffe.
The above-named defendants are charged with the devising of a scheme or artifice to defraud, and the subsequent use of the mails in consummation thereof, in violation of section 215 of the Penal Code (Comp. St. Sec. 10385), and also with a conspiracy to commit an offense against the United States, in violation of section 37 of the Penal Code (Comp. St. Sec 10201). The indictment contains 16 counts, and charges the defendants, including J. A. Chaffe, with the offenses above set out, growing out of the activities of the defendants as officers and agents of the Old Dominion Oil Company, a Texas corporation, of which Oscar L. Pardue was president and J. A. Chaffe was secretary and treasurer.
The defendant J. A. Chaffe asserts in bar of the indictment a special plea setting up his immunity from prosecution arising out of the following facts:
On the 19th day of June, 1922, the Federal Trade Commission of the United States was holding a session in the city of Houston, Tex., at which they were investigating the affairs of the Old Dominion Oil Company. On said date the defendant J. A. Chaffe appeared in response to a subpoena in a cause styled 'Federal Trade Commission v. Old Dominion Oil Company et al., Docket No. 861,' duly and legally issued by said Commission. At said hearing Chaffe was introduced as a witness by the government, and his testimony appears in about 61 pages of the official report of the hearing, being pages 144 to 204, inclusive, beginning as follows:
The matters about which Mr. Chaffe testified in the hearing before the Federal Trade Commission were later made the basis for the indictments in this cause.
The provisions of the Immunity Act invoked by Chaffe are section 7936, Barnes' Federal Code 1919 (Comp. St. Sec. 8836i), United States Statutes:
And section 7937 (Comp. St. Sec. 8836j), reading in part as follows:
'Any person who shall neglect or refuse to attend and testify, or to answer any lawful inquiry, or to produce documentary evidence, if in his power to do so, in obedience to the subpoena or lawful requirement of the Commission, shall be guilty of an offense and upon conviction thereof by a court of competent jurisdiction shall be punished by a fine of not less than $1,000 nor more than $5,000, or by imprisonment for not more than one year, or by both such fine and imprisonment.'
The defendant Chaffe contends that since, in the very language of the statute, he appeared and testified before the commission in obedience to a subpoena issued by it, he is exempt from prosecution, and not subject to any penalty on account of the matters so testified about.
The government, by demurrer, questions the sufficiency of the plea on account of its failure to allege that the testimony given by Chaffe before the Trade Commission was given under compulsion, and in exchange for a promise of immunity after he had claimed his constitutional privilege, and it had, under the terms of the statute, been denied to him. They say in their brief:
'Congress must have intended to grant immunity only to those persons who could have and would have asserted their privilege under the Constitution, and who asserted their privilege before testifying in any investigation conducted before the Federal Trade Commission.'
And they assert that, not only is their position supported by the reasons which underlie such grants of amnesty, but by the authority of the District Court for the Southern District of New York in United States v. Skinner, 218 F. 870, United States v. Elton, 222 F. 428, and United States v. Heike, 175 F. 852, and of the District Court for the Northern District of Texas, in United States v. Lee, 290 F. 517.
The defendants, on the other hand, assert that the construction insisted upon by the government is harsh, unreasonable, directly in the face of the plain terms of the statute, and in derogation of a constitutional right. They assert that, the testimony having been given under compulsory process, immunity at once springs to the witness, unless he himself voluntarily waives it. They declare that the opinions cited by counsel are opinions of District Judges only, and that opposed to them are the opinions of Judge Humphreys, in United States v. Armour (D.C.) 142 F. 809, Judge Carpenter, in United States v. Swift (D.C.) 186 F. 1002, an excellently reasoned case of the Supreme Court of New York, in People of New York v. Sharp, 107 N.Y. 428, 14 N.E. 319, 1 Am.St.Rep. 851, and of Wisconsin, in State v. Murphy, 128 Wis. 201, 107 N.W. 470.
Examining the matter first from the standpoint of authority, I think it entirely clear that the weight of authority on the precise point is in favor of the defendant Chaffe's contention; that the real question under immunity statutes is whether the defendant testified voluntarily or under compulsion, and not whether at the time of testifying he claimed and was denied his immunity, for in addition to the cases cited by the defendant, all of which hold as he contends, it appears that of all the cases cited by the government in support of its position only one, that of United States v. Skinner, supports its views.
In the Elton Case (D.C.) 222 F. 428, while Judge Hunt does on page 436 declare that he concurs in the opinion of Judge Grubb in the Skinner Case, he in fact sustains the defendant's plea for immunity, although Elton had not claimed immunity, had not refused to testify, had not in any manner at the hearing asserted the involuntariness of his testimony, or put the government at that time to the option discussed in the Skinner Case. That the Elton Case holds, as the defendant Chaffe contends here, is stated by Judge Hunt in the closing portion of the opinion (page 436):
'There is, therefore, but this question left: Were the facts and circumstances set forth in the plea in bar as surrounding and connected with the giving of the testimony such that the defendant can now claim that he testified unwillingly and compulsorily, and is therefore fairly entitled to immunity,'
-- it appearing, as set out in the same case (page 431), that Elton testified in obedience to a subpoena, after having been duly sworn as a witness, and without any exaction by the commission, or any giving to him of any express waiver of immunity to sign, or taking any express declaration of the voluntariness of his testimony.
Neither is the Lee Case any authority for the government's position, for there the facts...
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