United States v. Siebrecht

• Decision Date: 21 November 1930
• Citation: 44 F.2d 824
• Parties: UNITED STATES v. SIEBRECHT et al.
• Court: U.S. District Court — Eastern District of New York

44 F.2d 824 (1930)

UNITED STATES v. SIEBRECHT et al.

District Court, E. D. New York.

November 21, 1930.

Howard W. Ameli, U. S. Atty., of Brooklyn, N. Y. (Henry G. Singer, Asst. U. S. Atty., of Brooklyn, N. Y., of counsel), for the United States.

Meier Steinbrink, of Brooklyn, N. Y., for defendants Wagner, Allen, and Graff.

William J. Wilson, of Brooklyn, N. Y., for defendants Pallante, Illing, Nast, Klovrza, Plump, and Link.

Robert S. Johnstone, of New York City, for defendant Siebrecht.

GALSTON, District Judge.

The defendants Wagner, Allen, Graff, Pallante, Illing, Nast, Klovrza, Plump, and Link move for an order permitting them to inspect the grand jury minutes upon which this indictment is based, or, in the alternative, that the court itself inspect the minutes, and for an order dismissing the indictment, as founded on illegal, incompetent, and insufficient evidence.

The defendant Siebrecht pleads in abatement and in bar that the evidence presented to the grand jury was illegal and insufficient and in violation of the legal and constitutional rights of the defendant.

On the argument of the various motions, but one affidavit was presented on behalf of the defendants, that of Harold M. Kennedy, verified November 19, 1930. In this affidavit Mr. Kennedy recites on his own knowledge that a previous indictment filed against these defendants had been quashed by this court on a demurrer by the defendants which was sustained by the court; that the original indictment was found by the June, 1930, grand jury of this court, and that the present indictment was presented by the November, 1930, grand jury, a totally different body. The affidavit contains the following: "Deponent states that no new evidence of any fact was presented to the new (November) Grand Jury and no competent evidence of any kind was presented to the November Grand Jury. The minutes of the witnesses' testimony before the June Grand Jury was merely read to the November Grand Jury."

When counsel at the argument referred to this affidavit, the court inquired whether there was anything in the affidavit which showed how Mr. Kennedy obtained his knowledge. A reading of the affidavit fails to show how that information was obtained. The court takes judicial notice that Mr. Kennedy could not have been present at any session of the grand jury, except possibly as a witness, and it does not appear that he was a witness. Permission, therefore, was given to the defendants to file supplemental affidavits, and at the same time permission was given to the Assistant United States Attorney to file any affidavit that he might see fit to file in opposition. Thereafter the affidavits of Edward F. Wagner and Albert H. Allen were submitted. Both are defendants, and they say that they did not testify before the November grand jury, and they know of their own knowledge that the defendant Graff did not testify before the November grand jury, although all three apparently did testify before the June grand jury.

As opposed to the Kennedy affidavit, there is the affidavit of the Assistant United States Attorney, who sets forth that the defendants Albert H. Allen, Frank Pallante, Edward F. Wagner, Arthur R. Illing, Albert F. Graff, William H. Nast, Louis J. Klovrza, Herman F. Plump, and Frank X. Ongaro testified before the June grand jury and waived immunity. That in...