United States v. Rintelen

• Decision Date: 14 September 1916
• Citation: 235 F. 787
• Parties: UNITED STATES v. RINTELEN et al.
• Court: U.S. District Court — Southern District of New York

235 F. 787

UNITED STATES v. RINTELEN et al.

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

September 14, 1916

John Lord O'Brien and Isaac R. Oeland, both of New York City for the United States.

Pugh &amp Pugh, of Columbus, Ohio, for F. S. Monnett.

AUGUSTUS N. HAND, District Judge.

This is a motion to strike out the pleas in abatement of F. S Monnett and Jacob C. Taylor to an indictment charging these persons and others with conspiring to foment strikes in munition factories for the purpose of restraining the export of munitions to foreign countries. To this indictment a plea in abatement has been interposed upon six separate grounds:

(1) The district attorney and his assistant: (a) Expressed to the grand jury their opinions on the questions of law and fact involved; (b) asked that an indictment be found; (c) handed the grand jury a list of the defendants; (d) the grand jury found an indictment without a discussion of the evidence and without changing the names on the list.

(2) While a witness was testifying there was a stenographer in the grand jury room.

(3) The government caused the office of Martin and Fowler, two of the defendants, to be opened without their consent, and caused Catherine Foley to carry away her stenographic notes of their letters, and caused her to read these notes to the grand jury as part of the evidence on which the indictment was found.

(4) The government subpoenaed the National Metropolitan Bank of Washington to produce the checks and deposit slips of the defendant Martin, and offered them in evidence before the grand jury.

(5) The stenographic notes and checks and deposit slips were not returned to Martin and Fowler.

(6) The grand jurors were actuated by a strong temper and prejudice against the defendants as the result of false statements and vicious newspaper publications.

The defendants have long since entered pleas of not guilty, and thereafter moved to quash the indictment upon grounds embraced in 2, 3, and 4 of this plea. This motion was denied in an opinion filed by Judge Wolverton in which I concur, and which I should, in any event, follow, according to the custom in this district. Pleas in abatement were first used in cases of a misnomer, thereafter to attack the regularity of drawing and convening grand jurors, and still later to determine whether an indictment had been found on incompetent evidence. United States v. Swift, 186 F. 1002. It has been held, however, that in order to invalidate an indictment it is not sufficient to show that incompetent evidence was presented to the grand jury, but it must be shown that competent evidence which might justify an indictment was not presented. Nor is this in any sense technical. It must be remembered that indictments are in no sense trials, but ex parte investigations, resulting in a complaint indicating only that the grand jury has found that there is sufficient ground to justify charges and a trial of the accused. It is most important that these accusations should be based upon proper evidence, but equally important that a violation of technical rules of evidence should not result in nullifying the findings of grand juries, based upon competent and sufficient proof. It is to prevent delay as well as to protect the grand jurors from a criticism which is likely to impede their efficiency, and to prevent persons charged with crime from knowing the testimony which the government expects to produce against them, that the sessions of the grand jury have been held secret and inviolate, and that motions to inspect the minutes have been denied in the federal courts.

Moreover pleas in abatement are dilatory pleas which must, under the decisions, be interposed promptly, usually at the time of arraignment. The defendant Monnett, in his motion to quash the indictment, annexed extracts from the testimony of the congressional committee hereafter alluded to. If, therefore, he did not know, he probably might have long ago ascertained the grounds urged in paragraph 1 of this indictment, which is the only ground of importance upon which he attacks it. I think it is reasonably urged, therefore, that this plea in abatement comes too late. Agnew v. United States, 165 U.S. 36, 17 Sup.Ct. 235, 41 L.Ed. 624; United States v. American Tobacco Co., 177 F. 774. The court has, however, already allowed this plea to be interposed, and as both parties desire a ruling upon the merits on the first and sixth subdivisions, I shall proceed to give it.

Before taking up the first subdivision, I shall refer to the sixth, which avers that the--

'grand jurors in finding the said indictment against the defendant were actuated by a strong temper and prejudice against the defendant, as the result of false statements and vicious newspaper publications.'

These allegations contain no statement of ultimate facts. An intelligent grand juror can hardly be found who has not decided opinions derived from his general knowledge as to any case of public notoriety. He may have even passionate feelings on the subject, which in general affect and actuate him. The question is not what his feelings were, but whether he voted for an indictment honestly and upon competent evidence. That an indictment can be quashed because the grand jurors had personal prejudices, even ill-founded ones, would leave every indictment in an important case, irrespective of the evidence on which it was found, open to attack. In this case the plea does not allege that any grand juror would not have voted in the same way as he did, irrespective of his feelings or of the articles in the newspapers. I know of no case in which such a plea has been sustained or argument made, and am of the opinion that it cannot stand. United States v. American Tobacco Co., 177 F. 774; United States v. Mitchell (C.C.) 136 F. 896.

Coming to the first clause of the plea, it is based upon the accompanying excerpts from the evidence taken before the subcommittee of the House of Representatives engaged in an investigation of the office of the district attorney for this District in the course of impeachment proceedings sought to be instituted by Congressman Buchanan, one of the defendants in this action. This evidence included testimony of grand jurors subpoenaed by the congressional subcommittee who were required to testify before that committee as to proceedings before the grand jury. Whether this testimony was absolutely privileged and the extraction of it was an invasion of the privileges, not only of the grand jurors called, but of other grand jurors, whose privileges these witnesses could not waive, is not, I think, material here, for the testimony was taken, is now before the court, and I cannot regard it as unavailable to the defendant Monnett, if his plea is to be considered on the merits. This testimony I will summarize. When reduced to narrative form the substance was as follows: The foreman, Dale:

After all the testimony was in, and it was a cause that had taken quite some time, the district attorney presented to us the law in the case on which he asked our consideration and made a partial resume of some of the testimony as bearing upon the law, absolutely in a judicial capacity. He simply resumed the testimony that had taken place and its possible bearing, laying no stress and no weight; questions were asked him for certain things we applied in certain conditions, and he advised 'yes' or 'no,' as the case might have been. That was immediately before we found the indictment. There was no other case that we sat on that he made a resume on.

Grand Juror Joel B. Barber:

I considered the law and followed it as the district attorney gave it to me. I did not get the impression that he desired a true bill, but that he was making a very earnest effort, and a very thorough effort, to get at the bottom of anything that broke the law. I gathered that the evidence was such that I should vote for an indictment on the law that he read me directly from the book. He commented upon the law only to make it clear. It was very clear, a very short paragraph relating to this particular section. I would not say that he commented upon it to make it clear. If I did, I was only saying that in reading this paragraph, he did not then put the book down and say nothing. Very likely he made some comments. Either Mr. Marshall or his assistant answered a question relative to just what constituted conspiracy. We wanted to be very clear on it. We voted for these men all in a bunch. They were presented by the assistant district attorney.

Grand Juror Frederick W. Stevens:

I think the district attorney must have read off the names. We did not indict anybody. He did not read at that time. I do not remember particularly the district attorney making a statement at the conclusion of the evidence which was submitted to me, except that here was the evidence, and asked for our vote on it. I should have said that Mr. Sarfarty (the assistant district attorney), after we got through with the evidence, made a statement, telling us briefly what the evidence was, and what was the law. I should say, because I think it always is done, the district attorney says, 'Here is the evidence and we want an indictment on these people. ' When these names were handed to us we never added a name to the number, nor subtracted a name from the number. We took it just as the district attorney handed it to us. We did not take him into account, we took the evidence. Mr. Marshall I should think addressed the grand jury many times. He did not discuss the weight of the evidence that I recollect.

Grand Juror Arthur Wade:

Mr. Marshall read the law to us, Mr. Sarfarty reviewed the evidence. He read the law in regard to the Sherman Act, and Mr. Sarfarty read the evidence.

We...