United States v. Smyth

• Decision Date: 20 February 1952
• Docket Number: No. 33092-33095.,33092-33095.
• Citation: 104 F. Supp. 283
• Court: U.S. District Court — Northern District of California
• Parties: UNITED STATES v. SMYTH et al. UNITED STATES v. DOYLE et al.

104 F. Supp. 283

UNITED STATES v. SMYTH et al.

UNITED STATES v. DOYLE et al.

Nos. 33092-33095.

United States District Court N. D. California, S. D.

February 20, 1952.

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Chauncey Tramutolo, U. S. Atty., Robert B. McMillan, Asst. U. S. Atty., Macklin Fleming, Asst. U. S. Atty., all of San Francisco, Cal., Irvin Goldstein, Special Asst. to the U. S. Atty. Gen., for plaintiff.

Harold C. Faulkner (of Melvin, Faulkner, Sheehan & Wiseman), and Joseph L. Alioto, all of San Francisco, Cal., for defendants.

JAMES ALGER FEE, Chief Judge of the District of Oregon, sitting by special assignment.

There have been presented to the court by defendants in these cases multitudinous questions regarding the law and practice relative to grand juries. The prevalent confusion¹ and doubt in the lay mind and even in the minds of lawyers impels the court, in disposing of these motions, to write an authoritative exposition. Only thus can confidence in representative government be restored.

There has been biting criticism of our fundamental structures of freedom in the last three decades. Much of this has been from high-minded persons, perhaps without great practical experience, who were actuated by a desire for relief of shackles of archaic custom or economic convention, but, on the other hand, much has been motivated by a desire to destroy our essential institutions. At times, this criticism has even affected responsible judicial opinion. The result has been confusion.

It is the purpose of this opinion to give a clear an decisive statement of the powers and duties of the grand jury which will return to the touchstone of fundamentals² and give a definite guide for the future.

The institution of the grand jury is a development which comes to us out of the mists of early English history. It has undergone changes, but has been remarkably stable because the institution has been molded into an instrument of democratic government, extraordinarily efficient for reflecting not the desires or whims of any official or of any class or party, but the deep feeling of the people. As such, with its essential elements of plenary power to investigate and secrecy of its deliberations, it was preserved by the Constitution of the United States³ not only to protect the defendant⁴ but to permit public spirited citizens, chosen by democratic procedures, to attack corrupt conditions.⁵ A criticism of the action of the grand jury is a criticism of democracy itself.

The inception of the "grand inquest"⁶ is shrouded in the early reaches of English history. It was a device whereby originally, when first authoritatively noticed c. 1166,⁷ the Norman kings of England required answers from representatives of local units of government⁸ concerning royal property and franchises⁹ and also enforced communal responsibility for the acts of criminals.¹⁰ By gradations, the grand juries gave voice to the fama publica of the locale¹¹ as to crimes, and were later recognized in the character of witnesses.¹² Through hundreds of years, these characteristics remain inherent. In an early stage of evolution, the body made presentment or presented indictments at the behest of private individuals¹³ or the Prosecutor for the King.¹⁴ Vestiges of all these factors still subsist.

The institution was thus evolved as an instrument for efficient prosecution of crime, and as such it has remained until this day. The principle of secrecy was developed to protect the King's Counsel and to permit the Prosecutors to have influence with the grand jury,¹⁵ and in modern times it is still useful for the same purpose. By degrees the secrecy of proceedings permitted two outstanding extensions in that grand jurors at times refused to indict notwithstanding pressure from the Crown and the judges.¹⁶ This prerogative stood the people well in hand during the tyranny of the Stuarts,¹⁷ and, as it was eulogized by Coke and Blackstone, the institution was encysted with all its characteristics in the Fifth Amendment.¹⁸ But the grand jurors, by use of secrecy of their proceedings, stubbornly retained the power of instituting an investigation of their own knowledge or taking a rumor or suspicion and expanding it through witnesses.¹⁹ As we shall see, this comprehensive power also remains at this hour.²⁰ The Constitution of the United States preserved the grand jury with all its powers and inherent character.²¹ Notwithstanding the criticisms of Bentham and the ultramodern pseudo Benthamites, the grand jury is an essential element in the structure of the federal government now. No other instrument can cope with organized crime which cuts across state lines,²² conspiracies to overthrow the government of the United States, or alleged deviations from rectitude by those who have been entrusted by the government with public trust.²³ Even the most virulent critics are unanimously in accord that the grand juries must be preserved in the federal system for these purposes.²⁴

The grand jury breathes the spirit of a community into the enforcement of law.²⁵ Its effect as an institution for investigation of all, no matter how highly placed, creates the elan of democracy.²⁶ Here the people speak through their chosen representatives.²⁷ This feature has been largely disregarded by the critics. But it is the essence of the rule of the people.²⁸ The grand jurors may commit serious errors. But the voters are not deprived of suffrage because of occasional mischances.

The grand jury is an arm or agency of the court by which it is appointed. The grand jurors are officers of the court. The United States Attorney,²⁹ his assistants, the United States Marshal and his deputies and bailiffs, appointed by him to guard their deliberations, and, modernly, the reporters who record their proceedings are likewise officers of the court. Thus there can be no support for the position that the grand jury is an independent planet divorced from the court.³⁰

Upon this basis, it is urged with much insistence that the grand jury who returned the indictments in this case acted contrary to instructions in considering these cases. The proceedings shown in the record are not, in the opinion of the court, compatible with such a conclusion. The grand jury were in session for months considering this matter, so it must be assumed there was tacit acquiescence at least. While the court may exercise an influence over the proceedings, there is neither a method whereby an indictment by a grand jury can be peremptorily required, nor, on the other hand, is there any method of preventing the presentment of an indictment³¹ except by summary discharge.

There are various methods by which the court may exercise control.³² An independent judiciary has power to exercise this authority without negation by higher courts or outside agencies. The judge may discharge a grand jury at any time, for any reason or for no reason,³³ and whether they have finished the matters in hand or not.³⁴ He may give instructions³⁵ which do not constitute precedents and which cannot be controlled or corrected by appellate courts.³⁶ These may be political manifestoes. They may be entirely erroneous. These may include cautions and admonitions to fit local conditions and guard against dangers which the judge believes exist at the moment.³⁷ The court may also refuse process to the grand jury if it believe that the inquiry is improper for any reason.³⁸ The court may refuse to authorize expenses to the grand jury and thus prevent the employment of investigators or independent counsel.³⁹ Finally, it may discipline the attorneys, the attendants or the grand jurors themselves⁴⁰ for breach of the secrecy surrounding the body. These powers protect the independence of the trial judges so that they are not hampered in the control of the courts over which they preside.

But, to balance that independence of the judge, the grand jury developed a stubborn tenacity of its own. Ever since they wrote "Ignoramus" upon the bill of indictment presented by the Crown against the Earl of Shaftesbury,⁴¹ it has been held an inviolable tradition that they need follow the orders or instructions of the judge⁴² neither as to what they consider nor as to whom they indict or fail to indict.⁴³ The grand jury is similar to the trial jury, who may convict notwithstanding positive instructions to acquit and who may pardon notwithstanding a direction to find guilty. Unquestionably, the grand jury are under no necessity to follow the orders of the prosecutor.⁴⁴ They can present an indictment whether he will or no.⁴⁵ Indeed, they may make a presentment contrary to the direct orders of a judge,⁴⁶ the prosecutor for the King⁴⁷ or the Chief Executive.⁴⁸

This power of the grand jury springs from inherent qualities. The jurors are instruments of the people of the community. They reflect the sentiment of the particular locale — the fama publica.⁴⁹ In their character as representatives, they may call for witnesses and documents which may verify or negative the suspicions⁵⁰ or rumors of crime which affect the neighborhood.⁵¹ In his character as witness, each may speak of those things which he himself has observed.⁵² In England the private person who claimed a crime had been committed could lay an indictment before the grand jury.⁵³ Although private prosecutions as such have been abandoned in this country,⁵⁴ the grand jurors retain enough of this tradition that they may initiate prosecutions based on information received from persons who have no connection officially with them.⁵⁵

Under the Federal Constitution, a grand jury may either present or indict.⁵⁶ The word "presentment" technically characterizes the process whereby a grand jury initiates an independent investigation and asks that a charge be drawn to cover the facts should they constitute a crime.⁵⁷ The authority to initiate independent investigations⁵⁸ cannot be taken away without erasing the word "presentment" from the...