United States v. Root, 20360.

• Decision Date: 25 October 1966
• Docket Number: No. 20360.,20360.
• Parties: UNITED STATES of America, Appellant-Cross Appellee, v. Gladys Towles ROOT and George A. Forde, Appellees-Cross Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

366 F.2d 377 (1966)

UNITED STATES of America, Appellant-Cross Appellee, v. Gladys Towles ROOT and George A. Forde, Appellees-Cross Appellants.

No. 20360.

United States Court of Appeals Ninth Circuit.

August 26, 1966.

Rehearing Denied October 25, 1966.

Manuel L. Real, U. S. Atty., John K. Van de Kamp, Asst. U. S. Atty., Chief, Crim. Div., J. Brin Schulman, Asst. U. S. Atty., Asst. Chief, Crim. Div., Donald A. Fareed, Asst. U. S. Atty., Chief Trial Attorney, Los Angeles, Cal., for appellant.

Joseph A. Ball, Joseph D. Mullender, Jr., Ball, Hunt & Hart, Long Beach, Cal., for appellee George A. Forde.

Morris Lavine, Los Angeles, Cal., for appellee Gladys Towles Root.

Before JERTBERG and DUNIWAY, Circuit Judges, and GOODWIN, District Judge.

GOODWIN, District Judge:

A trial, sometimes referred to as a "search for the truth", was held in United ed States District Court for the Southern District of California, Central Division, resulting in conviction of Joseph Clyde Amsler and John William Irwin for violation of several laws of the United States, one of which was 18 U.S.C. § 1201, which section forbids the interstate transportation of a kidnap victim. This trial started on February 10 and terminated on March 7 of 1964.

The appellees, Root and Forde, were attorneys for Irwin and Amsler and represented them at the trial.

The defendants, Amsler and Irwin, testified in their defense, and it is their testimony and the source of their story that has created the necessity for this decision.

Name familiarity was of some consequence in the trial of defendants Amsler and Irwin.

Frank Sinatra, Jr. was the name of the victim the defendants were accused of kidnapping and transporting interstate, and it was the contention of the defendants Amsler and Irwin that the victim was in fact no victim at all but a willing participant in a scheme that would increase the familiarity of the name by the publicity resulting from the pseudo kidnapping.

It is to be noted that no issue has been raised concerning the name and the distinction between the words "famous" and "notorious".

If the source of the defendants Amsler's and Irwin's story is the basis of the charges made by the Government against the appellees Root and Forde, what claimed conduct on their part was in violation of the laws of the United States?

The function of an indictment by a federal grand jury is to correlate claimed wrongful conduct of the accused with the prohibitions set forth by Congress in its enactment of the criminal laws of the United States.

To test the sufficiency of an indictment by the grand jury returned against appellees Root and Forde and the validity of the order of the District Court dismissing the indictment on motion of the appellees, from which order the United States appeals, the indictment will be dissected and each essential part discussed to determine if it meets the following requirements:

(1) Does it contain the essential elements of the statute?

(2) Is the language clear or is it ambiguous, not readily understood, contradictory or confusing?

(3) Does it adequately advise the appellees of the nature of the crime with which they are charged so they may defend against it?

COUNT ONE

18 U.S.C. § 371

1. That on or about December 14, 1963, within the Southern District of California, Barry W. Keenan, Joseph Clyde Amsler and John William Irwin were arraigned before United States Commissioners on a complaint filed that date which charged Barry W. Keenan and Joseph Clyde Amsler, aided and abetted by John William Irwin, with the interstate transportation of a kidnap victim, Frank Sinatra, Jr., in violation of 18 U.S.C. §§ 2, 1201.

2. That on or about January 2, 1964, a Grand Jury of the United States of America, sworn in as the September 1963 Grand Jury in the United States District Court for the Southern District of California, returned a six-count indictment (33087-CD) charging Barry W. Keenan, Joseph Clyde Amsler and John William Irwin in each count as follows:

a. COUNT ONE: charged conspiracy: to transport kidnap victim, Frank Sinatra, Jr., in interstate commerce in violation of 18 U.S.C. § 1201; to transmit interstate ransom communications in violation of 18 U.S.C. § 875(a); and to possess ransom money from an interstate kidnapping in violation of 18 U.S.C. § 1202; all in violation of 18 U.S.C. § 371.

b. COUNT TWO: charged the interstate transportation of kidnap victim, Frank Sinatra, Jr., and aiding and abetting said violation in violation of 18 U.S.C. §§ 2, 1201 c. COUNTS THREE through FIVE, inclusive: charged separate transmissions in interstate commerce of ransom communications, and aiding and abetting said violation, in violation of 18 U.S.C. §§ 2, 875(a).

d. COUNT SIX: charged the possession of ransom money from the interstate kidnapping of Frank Sinatra, Jr., in violation of 18 U.S.C. § 1202.

3. On January 6, 1964, Barry W. Keenan, Joseph Clyde Amsler and John William Irwin were arraigned on said indictment in the United States District Court for the Southern District of California.

4. Between January 6, 1964 and February 10, 1964, pretrial motions were made, heard and ruled upon, and Barry W. Keenan, Joseph Clyde Amsler and John William Irwin pleaded not guilty to each and every count in the indictment, all in the United States District Court for the Southern District of California.

5. On February 10, 1964, jury trial on the above-said indictment commenced, and on March 7, 1964, the said jury trial concluded; all in the United States District Court for the Southern District of California.

6. Beginning on or about December 15, 1963 and continuing to at least March 7, 1964, defendant GLADYS TOWELS ROOT, an attorney at law, represented John William Irwin in the above proceedings.

7. Beginning on or about December 15, 1963 and continuing to at least March 7, 1964, defendant GEORGE A. FORDE, an attorney at law, represented Joseph Clyde Amsler in the above proceedings.

8. Beginning on or about December 14, 1963 and continuing to on or about March 7, 1964, defendant GLADYS TOWLES ROOT, defendant GEORGE A. FORDE and unindicted co-conspirators Barry W. Keenan, Joseph Clyde Amsler and John William Irwin agreed, confederated and conspired together to defraud the United States and to commit offenses against the United States, to-wit:

a. To corruptly endeavor to influence, intimidate, and impede witnesses in the discharge of their duties as witnesses in the United States District Court for the Southern District of California in Case 33087-CD, in violation of 18 U.S.C. § 1503;

b. To suborn perjury in the United States District Court for the Southern District of California in Case 33087-CD, in violation of 18 U.S.C. § 1622;

c. To commit perjury in the United States District Court for the Southern District of California in Case 33087-CD, in violation of 18 U.S.C. § 1621;

d. To corruptly influence, obstruct and impede and endeavor to influence, obstruct and impede the due administration of justice in the United States District Court for the Southern District of California in Case 33087-CD, in violation of 18 U.S.C. § 1503.

The primary object of said conspiracy was to obtain an acquittal by improper and unlawful means for the unindicted co-conspirators, Barry W. Keenan, Joseph Clyde Amsler and John William Irwin, in Case 33087-CD.

It was part of said conspiracy that unindicted co-conspirators, Joseph Clyde Amsler and John William Irwin, would take the witness stand and testify in their own behalf.

It was part of said conspiracy that unindicted co-conspirators, Joseph Clyde Amsler and John William Irwin, would be instructed to testify falsely and would testify falsely in the following material subjects:

a. That Frank Sinatra, Jr. knew beforehand that he was to be kidnapped;

b. That the kidnapping of Frank Sinatra, Jr. was planned by people "higher up" than Barry W. Keenan;

c. That the kidnapping of Frank Sinatra, Jr. was a publicity stunt and a hoax;

d. That there was a person named "Wes" or "West" who was involved in planning the kidnapping of Frank Sinatra, Jr. e. That they were to be caught by law enforcement personnel; and

f. That once they were caught they would conduct themselves as if they had really kidnapped Frank Sinatra, Jr. and not reveal that it was a hoax and publicity stunt.

It was further part of said conspiracy that they would convey and publish the false information that the charged crimes were arranged as a publicity stunt and hoax by and on behalf of Frank Sinatra, Jr.

The defendants and the unindicted co-conspirators are said to have committed numerous overt acts in furtherance of said conspiracy and to effect the objects thereof, in the Central Division of the Southern District of California. Some eighteen overt acts of appellees are alleged.

Title 18 U.S.C. § 371 is commonly known as the conspiracy statute. It reads in part:

"If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both."

In expressing themselves, the grand jury, with some help from the United States Attorney, charged the appellees with a violation of the quoted portion of 18 U.S.C. § 371, but did not reach the language of the statute until No. 8. All of the descriptive material that precedes the language of the statute may be subject to a motion to strike at the instance of the appellees but surplusage is not fatal. Ford v. United States, 273 U.S. 593, 602, 47 S.Ct. 531, 71 L.Ed. 793 (1927). Words that are employed in an indictment that are descriptive of that which is legally essential to the charge in the indictment cannot be stricken out as surplusage. Butler v. United States, 10 Cir., 20 F.2d 570. Obviously all matters set forth in...