United States v. Remington

• Decision Date: 24 November 1953
• Docket Number: Docket 22790.,No. 60,60
• Citation: 208 F.2d 567
• Parties: UNITED STATES v. REMINGTON.
• Court: U.S. Court of Appeals — Second Circuit

208 F.2d 567 (1953)

UNITED STATES v. REMINGTON.

No. 60, Docket 22790.

United States Court of Appeals, Second Circuit.

Argued October 15, 1953.

Decided November 24, 1953.

Writ of Certiorari Denied February 8, 1954.

Joseph L. Rauh, Jr., Washington, D. C., Richard G. Green, New York City, and Daniel H. Pollitt, Washington, D. C., for William Walter Remington, appellant.

J. Edward Lumbard, U. S. Atty., Washington, D. C. (James B. Kilsheimer, III, Asst. U. S. Atty., New York City, of counsel), for United States, appellee.

Before L. HAND, SWAN and AUGUSTUS N. HAND, Circuit Judges.

Writ of Certiorari Denied February 8, 1954. See 74 S.Ct. 476.

AUGUSTUS N. HAND, Circuit Judge.

In May 1950, William Remington was called before a federal grand jury for the Southern District of New York which was investigating possible violations of the espionage laws. While testifying before the grand jury, Remington denied that he at any time had ever been a member of the Communist Party. The grand jury returned an indictment for perjury against Remington on the basis of this denial. In the trial following, a verdict of guilty was rendered by the jury but on appeal we reversed the conviction and remanded the case for a new trial because of error committed in the charge to the jury. 2 Cir., 191 F.2d 246, certiorari denied, 343 U.S. 907, 72 S.Ct. 580, 96 L.Ed. 1325. On appeal in that case Remington had also charged that there had been improprieties in the grand jury proceedings which should have forced the indictment to be quashed. We did not pass on the sufficiency of those charges of misconduct on that appeal but ordered the testimony before the grand jury of Remington and his wife be made available to Remington at the new trial.

The government, instead of continuing under the original indictment by going forward with a new trial, obtained a new or second indictment from the grand jury. This indictment, dated October 25, 1951, charged Remington with giving perjured testimony in his defense to the original indictment in the first trial. Specifically five counts were involved: (1) denial of attendance at Communist Party meetings; (2) denial of delivery to Miss Bentley of information to which she was not entitled; (3) denial that he had ever paid Communist Party dues; (4) denial that he had ever solicited members for the Communist Party; (5) denial that he had any knowledge of the existence of the Young Communist League at Dartmouth College where he had been a student from 1934 to 1939. Remington was convicted on counts two and five, acquitted on count four, and the jury was unable to agree on counts one and three.

On appeal from this judgment of conviction the defendant Remington does not allege that any error was committed in the second trial under the new indictment and it is clear from the record that Judge Leibell conducted the trial with great care. However, the defendant has presented us with a rather new and novel argument in his demand for reversal of his conviction and dismissal of the indictment. It is charged that misconduct in the first grand jury proceedings by the government and the foreman of the jury and, further, an alleged concealment by the government during the course of the first trial of evidence of this misconduct, should force the first indictment to be quashed and that trial be declared a nullity. Moreover, if the first indictment and trial was the result of illegal conduct on the part of the government, it is argued that under the theory advanced in Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307, any fruits procured by this illegal conduct should be denied the government. Since Remington would never have been put on the stand in defense of the first perjury indictment but for the procurement of that indictment by illegal conduct of the government, it is said that the government should not be permitted to bring a new indictment as a result of perjured statements made by Remington in his defense, and thus gain a benefit from its illegal conduct. In short Remington in effect urges that perjurious statements made at a trial under an illegally procured indictment cannot be subsequently prosecuted.

This argument of course assumes that there is sufficient evidence of misconduct in the grand jury proceedings to support a motion to quash that indictment. While we need not decide this question in view of our disposition of the appeal, it should be noted in passing that it is far from clear that the minutes of the first grand jury proceeding support a charge of "undue influence" sufficient to make the first indictment illegal. 2 Cir., 191 F.2d 246, 252.

Assuming without deciding that the first indictment is bad because of misconduct in the grand jury proceedings, we can find no authority to support the defendant's argument that perjury committed in a trial under a bad indictment cannot be prosecuted. Indeed, the opinion of the Supreme Court in United States v. Williams, 341 U.S. 58, 71 S.Ct. 595, 95 L.Ed. 741, would seem to indicate otherwise. There Williams was indicted and convicted for perjury committed in a former criminal trial for conspiracy under the Civil Rights Acts. A conviction in the former trial was reversed and the indictment quashed on the ground that the indictment did not state an offense under the laws of the United States. United States v. Williams, 5 Cir., 179 F.2d 644, affirmed 341 U.S. 70, 71 S.Ct. 581, 95 L.Ed. 758. To the argument that the court in the first trial did not have jurisdiction and thus was not a "competent tribunal" within the meaning of the perjury statute, 18 U.S.C. § 1621, the Court stated: "Where a federal court has power, as here, to proceed to a determination on the merits, that is jurisdiction of the proceedings. The District Court has such jurisdiction. Though the trial court or an appellate court may conclude that the statute is wholly unconstitutional, or that the facts stated in the indictment do not constitute a crime or are not proven, it has proceeded with jurisdiction and false testimony before it under oath is perjury." 341 U.S. 58, 68-69, 71 S.Ct. 601. Likewise, in the prosecution under the indictment here, the court had jurisdiction over the crime and the defendant, the defendant was under oath to speak the truth, and could not, in our eyes, lie with impunity.

True, the instant case is distinguishable since here the previous indictment and trial is attacked because of government misconduct. The defendant seeks to make use of this distinguishing feature by introducing the doctrines outlined in Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L. Ed. 307, and Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319, that "* * * knowledge gained by the Government's own wrong cannot be used by it * * *." 251 U.S. 385, 392, 40 S.Ct. 183. In the Nardone case judgment of conviction was reversed on the ground that the government could not use evidence of guilt procured through leads developed from knowledge gained by illegal wire-tapping. Such evidence was fruit of the forbidden tree. Likewise in the Silverthorne case, Mr. Justice Holmes reversed a judgment of contempt for refusal to obey a subpoena where the government sought to secure evidence, the whereabouts and knowledge of which they had secured through an admittedly illegal search and seizure. The rationale behind these decisions is that to rigidly enforce due process protections we must deny any or all benefits to the government in its prosecution which can be proven to have resulted from the illegal conduct. In reversing the conviction in the Nardone case the Court said: "Once illegal wire-tapping is established * * * the trial judge must give opportunity * * * to the accused to prove that a substantial portion of the case against him was a fruit of the poisonous tree. This leaves ample opportunity to the Government to convince the trial court that its proof had an independent origin." 308 U.S. 338, 341, 60 S.Ct. 268. We do not see how this theory can be applied in the present case. Here we have a separate crime of perjury committed after the illegal conduct by the government as opposed to the above cases where we had only a rule of evidence developed to prevent the government from making use of its illegally procured knowledge. It seems to us an unwarranted extension of that doctrine to apply it here to a new wrong committed by the defendant. Moreover, to call the perjury a fruit of the government's conduct here, is to assume that a defendant will perjure himself in his defense. It is difficult to see any causal relation otherwise between the government's wrong and the defendant's act of perjury during the trial. If this assumption is a premise of the defendant's argument, we cannot accept it for it involves a disregard of the defendant's oath and an assumption that perjury, although a crime, is an inevitable occurrence in judicial proceedings.

It is argued that Remington would never have been in court but for the illegally procured indictment and that to preserve his rights and to rigidly supervise the federal enforcement of our laws, we must deny the government the right to prosecute here. See McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819. However, supervisory rules concerning speedy arraignment and wire-tapping deal with the admission of evidence directly relating to a government wrong in investigating a past crime. They do not permit the defendant to commit a new and independent crime. We do not preserve justice by allowing further criminal activity to take place. Moreover, as a penalty placed upon the prosecution designed to prevent misconduct in the future, a reversal here would serve no purpose. It cannot be conceived that the government would deliberately procure a false indictment in the hope of later obtaining perjurious statements at the trial. Such statements could more easily be procured in a new grand jury...