United States v. Perlstein

• Decision Date: 24 July 1941
• Docket Number: No. 126-C.,126-C.
• Citation: 39 F. Supp. 965
• Parties: UNITED STATES v. PERLSTEIN et al.
• Court: U.S. District Court — District of New Jersey

39 F. Supp. 965

UNITED STATES v. PERLSTEIN et al.

No. 126-C.

District Court, D. New Jersey.

July 24, 1941.

COPYRIGHT MATERIAL OMITTED

Charles M. Phillips, U. S. Atty., of Newark, N. J., and Joseph W. Burns, Sp. Asst. U. S. Atty., of Washington, D. C., for the Government.

Paul M. Salsburg, of Atlantic City, N. J., for defendant Perlstein.

Defendant Paul, pro se.

MARIS, Circuit Judge.

After conviction and an appeal to the Circuit Court of Appeals which resulted in an order for a new trial (3 Cir., 120 F.2d 276), the defendants were convicted a second time upon an indictment which charged that from October 15, 1937, to April 16, 1940, they conspired to influence, intimidate and impede witnesses and to obstruct the due administration of justice in the District Court for the District of New Jersey and the grand jury thereof in violation of Section 135 of the Criminal Code, 18 U.S.C.A. § 241. They have now moved in arrest of judgment and for a new trial. Two grounds are urged in support of the motion in arrest of judgment. The first is that the term of service of the grand jury which found the indictment had expired before it acted and that the grand jury was, therefore, without power to act. The grand jury which returned the indictment was impaneled for the stated term of the district court which commenced at Camden on the first Tuesday in December, 1939. On January 11, 1940, an order was entered by a district judge authorizing that grand jury to continue its sessions to complete its unfinished business. The defendants were indicted on April 16, 1940.

Under Section 96 of the Judicial Code, as amended, 28 U.S.C.A. § 176, stated terms of the District Court for the District of New Jersey are held at Camden on the first Tuesday in December, at Trenton on the third Tuesday in January, at Newark on the first Tuesday in April, at Trenton on the second Tuesday in September and at Newark on the first Tuesday in November. Under the statute, therefore, the term at Camden began on December 5, 1939, at Trenton on January 16, 1940 and at Newark on April 2, 1940. Consequently before the finding of the indictment by the Camden grand jury stated terms at Trenton and Newark had intervened. The defendants contend that the term of the district court at Camden came to an end on January 16, 1940 when the Trenton term began and that the order extending the existence of the grand jury was ineffective after April 2, 1940, when the Newark term commenced.

From the time of the enactment of the Judiciary Act of 1789 until the present time Congress has treated the time of commencement of the terms of the district and former circuit courts as a proper subject for statutory regulation.¹ The time for the expiration of the terms of court has not been so treated. This is doubtless because of the fact that in the early days the business of the federal courts was light and it was more convenient to permit the judge to adjourn the term of court sine die as soon as the business pending at the place of sitting had been completed. It is clear that such an adjournment sine die brought the term at that place to an end.² As the business of the courts increased it became necessary, in order promptly to dispatch that business for the courts to remain in session for increasingly longer periods of time. "Term time" continuously increased and "vacation" correspondingly decreased, until, at least in this district, it came to pass that the court remained in session throughout the year. When this court was authorized by statute to sit at Newark and Camden as well as at Trenton the business of the district required the court to remain in session throughout the year at each of these places. As a result the practice of the court has been not to adjourn sine die the stated terms of court at each of the three places designated by the statute but to permit them to continue until the commencement of the next term at the same place.

The question raised in this case is whether that practice is warranted by the law. It is settled that the beginning of a new term at the same place in the judicial district brings about the automatic ending of the prior term at that place.³

The question now raised, namely, whether a term of court at one place in a judicial district may continue after the beginning of a later term at another place in the district, in other words whether the beginning of a new term at one place necessarily brings to an end a prior term at another place, appears not to have been decided in this circuit. It has, however, arisen in a number of the other circuits and has claimed the attention of the Supreme Court. The conclusion has uniformly been reached that unless sooner adjourned sine die a stated term of court regularly opened at a time and place fixed by statute continues until the time fixed by law for the convening of the next term at the same place even though a term has commenced in the meantime at another place in the district. Harlan v. McGourin, 218 U.S. 442, 31 S.Ct. 44, 54 L.Ed. 1101, 21 Ann.Cas. 849, affirming Ex parte Harlan, C.C.Fla., 180 F. 119; East Tennessee Iron & Coal Co. v. Wiggin, 6 Cir., 68 F. 446; State of Florida v. Charlotte Harbor Phosphate Co., 5 Cir., 70 F. 883; Denver Live Stock Commission Co. v. Lee, 8 Cir., 18 F.2d 11; Continental Petroleum Co. v. United States, 10 Cir., 87 F.2d 91; United States v. Rasmussen, 10 Cir., 95 F.2d 842. Compare United States v. Louisville & N. R. Co., D.C.Ky., 177 F. 780.

Nothing in the language of Section 96 of the Judicial Code which regulates the times and places of holding terms of the district court in the judicial district of New Jersey requires a different conclusion. That section, as originally enacted in 1911, 36 Stat. 1119, provided for the holding of regular terms of court at Trenton only, with the right to hold court at Newark in civil causes under certain conditions. In 1913 Congress deemed it expedient to provide for the holding of regular terms of court at Newark⁴ and in 1926 at Camden.⁵ During the same period the number of district judges was increased from two to four and is now five. The judicial business at each of the three places fixed for holding court is ordinarily sufficient to occupy the time of at least one district judge throughout the year. It is, therefore, clearly in the public interest as well as entirely feasible from the court's standpoint for the district court to continue in session at each place throughout the year. Indeed Civil Procedure Rule 77(a), 28 U.S.C.A. following section 723c,⁶ and Sections 9⁷ and 10⁸ of the Judicial Code, 28 U.S.C.A. §§ 13, 14, would seem to contemplate that this should be the practice.

The effect of the special terms held pursuant to rule of this court remains for consideration. Section 11 of the Judicial Code, 28 U.S.C.A. § 15,⁹ provides for the holding of special terms of court at such time as may be ordered by the district judges. Special terms of this court are provided for by our rule 6 which provides: "The regular and special terms of Court are: At Newark, 3d Tuesday in January; 1st Tuesday in April; 2d Tuesday in September and 1st Tuesday in November. At Trenton, 3d Tuesday in January and 2d Tuesday in September. At Camden, 2d Tuesday in May and 1st Tuesday in December." Thus at Newark in addition to the regular April and November terms special terms are required to be begun on the third Tuesday in January and second Tuesday in September (the dates of the commencement of the regular Trenton terms)¹⁰ while at Camden a special term is to be opened on the second Tuesday in May in addition to the regular December term. As we have seen, a term of court automatically expires when a new term is opened at the same place.¹¹ We think that this is true whether the new term is a regular stated statutory term or a special term held pursuant to standing rule of court. Certainly the only purpose of a special term under Section 11 of the Judicial Code is to transact business which could have been transacted at the regular term had it not previously expired. The opening of a special term of court therefore necessarily negatives the idea that the court is still in session in regular term and consequently must be taken as having the effect of ending the preceding regular term at the place of session if it has not already been adjourned sine die.

We conclude that a regular stated term of this court held at any one of the three places designated by the statute, continues until terminated either (a) by an order of adjournment sine die entered by a district judge, (b) by the commencement of a special term at that place convened pursuant to rule 6, or (c) by the commencement of the next regular stated term at that place.

We accordingly hold that since prior to April 16, 1940, an order had not been entered adjourning the December, 1939, term at Camden sine die and the special May, 1940, term had not then commenced, the December, 1939 term at Camden had not come to an end on April 16, 1940, and that the indictment against the defendants returned by the grand jury on that date was valid.

In support of the view that a term of court at one place is automatically ended by the beginning of a regular term at another place in the district the defendants cite the decisions of the Circuit Court of Appeals in United States v. Parker, 3 Cir., 103 F.2d 857, and in a prior appeal by these defendants, United States v. Perlstein and Paul, supra. We must, therefore, examine these cases to ascertain whether they are authority for the proposition advanced by the defendants.

In the Parker case the defendants entered a plea in abatement based upon the ground that the term of the grand jury had expired before the indictment was found. The grand jury was drawn for the April 1936 term at Newark; on August 7, 1936, the vote on the indictment was taken; on August 17, 1936, the trial judge entered an order directing the grand jury to remain in service during the...