United States v. Rubin

• Decision Date: 27 October 1914
• Docket Number: 247.
• Citation: 218 F. 245
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES v. RUBIN et al.

218 F. 245

UNITED STATES v. RUBIN et al.

No. 247.

United States District Court, D. Connecticut.

October 27, 1914

Frederick A. Scott, U.S. Dist. Atty., of Hartford, Conn.

Benjamin Slade, of New Haven, Conn., Edward Seery, of Waterbury Conn., and Alfred Frankenthaler and Max Monfried, both of New York City, for all defendants except Rubin and Glickman.

William Kennedy, of Naugatuck, Conn., for Rubin.

THOMAS District Judge.

The grand jury found an indictment against the defendant Philip Rubin and nine others, charging them with a conspiracy to conceal the assets of a bankrupt, which offense is claimed to be covered by section 37 of the Penal Code (Act March 4 1909, c. 321, 35 Stat. 1096 (U.S. Comp. St. 1913, Sec 10201)) and section 29b (1) of the Bankruptcy Act approved July 1, 1898 (30 Stat. 554, c. 541 (U.S. Comp. St. 1913, Sec 9613)). Motions in behalf of all defendants, represented by various attorneys (excepting defendant Louis Glickman), were made for an order of court to inspect the minutes of the grand jury, which motion this court denied. 214 F. 507.

In support of the above motions the moving defendants filed affidavits which alleged certain facts as a basis for the granting of said motions. Pursuant to the suggestion of the court made in denying the above motions, the district attorney has filed an answer to the allegations contained in those motions, thus raising an issue of fact. After the denial of the motions and within the time allowed by law the same defendants filed a plea in abatement, a motion to quash, and a motion to dismiss the indictment, and in support of said plea and motions rely upon the facts set out in the moving papers and additional facts set out in the motion to quash. Evidence was offered to prove the facts thus alleged.

From the pleadings, the evidence and statements of counsel it appears that an agent from the Department of Justice was assigned to investigate the transactions which preceded the filing of the petition in bankruptcy and upon which the indictment is founded. This agent investigated the various transactions which led up to the bankruptcy proceedings, and this work took him into various cities in New York and Connecticut, where he examined various memoranda and persons other than the accused. When the grand jury was in session this agent appeared before it and testified generally with reference to the alleged facts which he learned as aforesaid in the course of his investigation, much of which was hearsay testimony. His examination disclosed the fact that he had no personal knowledge of many of the facts pertaining to the subject-matter under investigation, yet he testified before the grand jury, giving it such information as he had received as the result of his investigations. Upon this feature of the case the defendants move to quash the indictment, on the ground that it was obtained, in part at least, as the result of incompetent testimony given before the grand jury.

Upon this proposition the federal decisions are not entirely uniform. One line of decisions seems to hold that the court has no power to review the proceedings before the grand jury for the purpose of ascertaining whether competent evidence was presented to it, and that if it had such power it would result in a rehearing of the whole proceedings before it, and that it would be difficult to find an indictment in any case under such conditions. These decisions further hold that it is immaterial that hearsay or incompetent evidence was presented, unless it be shown that the indictment was founded upon that testimony to the exclusion of testimony which was relevant and competent, and in order to ascertain that fact all grand jurors would have to be summoned before the court to determine which of the two kinds of testimony influenced them to find a true bill against a defendant, which on its face is impractical.

There is another line of federal decisions which hold that it is not necessary to show that the grand jury was influenced by hearsay and incompetent testimony to find an indictment; that the policy of the law is to protect the individual against any invasion of his rights, and that when the law says there shall be no invasion of those rights, who shall say, or assume to say, where the line shall be drawn, and where the end must be as to who shall be in the grand jury room at its session, when considering the testimony touching a proposed indictment, or what kind of testimony shall be considered by the grand jury.

Mr. Justice Field, in a charge to the grand jury of the Circuit Court of the United States for the District of California at a term of court held at San Francisco on the 26th of August, 1872, said in part:

'The government has appointed the district attorney to represent its interest in the prosecution of parties charged with the commission of public offenses against the laws of the United States. He will, therefore, appear before you, and present the accusations which the government may desire to have considered by you. He will point out to you the laws which the government deems to have been violated, and will subpoena for your examination such witnesses as he may consider important, and also such other witnesses as you may direct.

'In your investigations you will receive only legal evidence, to the exclusion of mere reports, suspicions, and hearsay evidence. Subject to this qualification, you will receive all the evidence presented which may throw light upon the matter under consideration, whether it tend to establish the innocence or the guilt of the accused.'

This general proposition of law relating to the kind and character of evidence proper for consideration by the grand jury has been generally followed in the better considered cases in the federal courts. Under this rule hearsay evidence is improper, and an indictment founded upon it is invalid. In denying the defendants' motion for an inspection of the grand jury minutes, this court took occasion to say (214 F. 507, on page 508):

'The complete protection of the rights of citizens must necessarily commence and does commence at the inception of any criminal proceeding. * * * These reasons are sufficient to sustain the doctrine that the grand jury is forbidden to make an accusation against a person without legal evidence to support it.'

In Jacob Sharp's Case, 107 N.Y. 476, 14 N.E. 348, 1 Am.St.Rep. 851, the court, through Judge Peckham (later of the Supreme Court of the United States), said:

'That law must protect all who come within its sphere, whether the person who invokes its protection seems to be sorely pressed by the weight of the inculpatory evidence in the case or not. It cannot alter, for the purpose

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