United States v. Silverthorne

• Decision Date: 31 March 1920
• Docket Number: 2031.
• Citation: 265 F. 853
• Parties: UNITED STATES v. SILVERTHORNE et al.
• Court: U.S. District Court — Western District of New York

265 F. 853

UNITED STATES v. SILVERTHORNE et al.

No. 2031.

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

March 31, 1920

Stephen T. Lockwood, U.S. Atty., of Buffalo, N.Y. (John W. Ryan, of Buffalo, N.Y., of counsel), for the United States.

Henry W. Killeen, James O. Moore, and Ernest W. McIntyre, all of Buffalo, N.Y., for defendants.

HAZEL District Judge.

This is a motion to quash the indictment (No. 2031) on the ground that the evidence before the grand jury, upon which it was based, was insufficient and incompetent, or, in the alternative, for an inspection of the minutes of the grand jury, and, if inspection and examination are allowed, that the various questions raised by this motion be reserved to the hearing on the plea in abatement, filed herein, to which no replication has as yet been served by the government.

It is well understood that inquiries into crimes by a grand jury are inquisitorial in their nature, and by ex parte investigations the grand jury is required to find an indictment whenever the evidence before them, taken together is sufficient, if unexplained and uncontradicted, to warrant conviction by the trial jury. Such investigations must be based upon proper evidence, competent and sufficient evidence, and the weight of the authorities bearing upon the right of review by the court of the action of the grand jury is to the effect that it should be had only in a clear case where, for instance, a mistake has been made, or such irregularity in procedure charged, as would be prejudicial to the legal rights of the accused. The rule announced by Judge Wallace in U.S. v. Farrington (D.C.) 5 Fed. 343, is quite generally followed by the federal courts. He said in that case that in extreme cases only, when the court can see that the finding of the grand jury is based upon 'utterly insufficient evidence, or such palpably incompetent evidence as to indicate that the indictment resulted from prejudice, or was * * * in willful disregard of the rights of the accused,' should the indictment be quashed. What transpired before the grand jury may be shown, no matter by whom, whenever it becomes essential to protect the individual rights of the accused, who has the constitutional right to insist that the indictment against him be based upon sufficient and competent legal proof.

Inspection of the grand jury minutes to sustain the claim of insufficient and incompetent evidence before the grand jury is rare in the federal courts, and motions to quash indictments are usually based upon affidavits alleging facts as a basis for granting the same. The right of inspection, however, by the court, to satisfy his own conscience, was recently recognized in U.S. v. Perlman (D.C.) 247 F. 161. Nevertheless, it must be conceded that the decisions as to the power of the court to review the proceedings of a grand jury for the purpose of determining the character of the evidence before it, as to whether the evidence, in whole or in part, was illegal and to the prejudice of the defendant, are not altogether harmonious. In U.S. v. Rubin (D.C.) 218 F. 246, for example, the indictment was quashed by Judge Thomas on the ground that it appeared that the main witnesses had no personal knowledge of the facts to which they testified; they merely giving such information as they obtained by investigations. There are other adjudications giving strong reasons for holding that proceedings before the grand jury should not be reviewed, or its minutes inspected, for the purpose of ascertaining whether the indictment was based upon competent and legal evidence. U.S. v. Cobban (C.C.) 127 F. 713; U.S. v. Violon, 173 F. 501; McKinney v. U.S., 199 F. 25, 117 C.C.A. 403; U.S. v. Rubin (D.C.) 214 F. 507; U.S. v. Rintelen (D.C.) 235 F. 787. In Radford v. U.S., 129 F. 49, 63 C.C.A. 491, it was held to be a matter of discretion as to whether an indictment should be quashed on the ground that it was based on incompetent evidence of the essential facts before the grand jury. And see Holt v. U.S., 218 U.S. 245, 31 Sup.Ct. 2, 54 L.Ed. 1021, 20 Ann.Cas. 1138.

If the affidavits before me indicated that the grand jury considered merely hearsay or incompetent evidence tantamount to insufficiency of proof of material matters, or showing an invasion of constitutional rights, I would feel that it was incumbent upon me, in view of the circumstances, to quash the indictment, and, if in doubt, to permit inspection of the grand jury minutes by the defendants. But, on carefully considering the facts set forth in the various affidavits read on this application, I am of opinion that no illegal evidence on important matters is shown to have been taken before the grand jury, and that the evidence was adequate to support the indictment. How stands the case as shown by the moving papers, which have not been disputed by the government (except as to the reply affidavit of the grand juror Fuller)? Is incompetent or illegal evidence disclosed, or an encroachment of the constitutional rights of the accused?

It is axiomatic that an indictment imports verity, and, until impeachment, the presumption is that it was based upon lawful proof. The indictment alleges that the defendant conspired to defraud the United States out of a large sum of money by fraudulent representations that quantities of lumber consisting of grain door boards, had been delivered to the Lehigh Valley Railroad Company under sales contract, when in fact no such quantities of lumber were delivered. The common design, which is the essence of the conspiracy, may be shown by the doing of different acts by various actors, from which a mutual understanding may be inferred. Some of the participants may take a subordinate or insignificant part, while others take a more prominent part, to effectuate the unlawful purpose. ...