United States v. Swift

• Decision Date: 22 March 1911
• Docket Number: 4,509.
• Citation: 186 F. 1002
• Parties: UNITED STATES v. SWIFT et al.
• Court: U.S. District Court — Northern District of Illinois

186 F. 1002

UNITED STATES v. SWIFT et al.

No. 4,509.

United States District Court, N.D. Illinois.

March 22, 1911

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Geo. W. Wickersham, Atty. Gen., Edwin W. Sims, U.S. Atty., and Wm. S. Kenyon, James H. Wilkerson, Pierce Butler, James M. Sheean, Oliver E. Pagan, Elwood G. Godman, and Barton Corneau, for the United States.

John S. Miller, Moritz Rosenthal, Levy Mayer, George T. Buckingham, M. W. Borders, Albert Veeder, Ralph Crews, Alfred R. Urion, and Henry Veeder, for defendants.

CARPENTER District Judge (after stating the facts as above).

The broad question before the court for decision is the same, whether raised by the motions to quash or by the pleas in abatement; and inasmuch as the government's motion to strike the pleas in abatement from the files involves certain technical questions of criminal procedure, I shall dispose first of the motions to quash.

Stripped of all unessentials, the case is this: In 1904 all of the defendants gave information and evidence (whether under compulsion or not is immaterial, so far as the present investigation is concerned) to the Commissioner of Corporations, an officer in the Department of Commerce and Labor. What that information and evidence was we are not now informed, but may assume that it related to interstate commerce in the fresh meat industry. In 1905 a federal grand jury in this district indicted the defendants (except Tilden, Fowler, and Heyman), under the Sherman act (Act July 2, 1890, c. 647, 26 Stat. 209 (U.S. Comp. St. 1901, p. 3200)), for combining and conspiring together in restraint of trade and commerce in fresh meat among the several states. Special pleas in bar were interposed, averring that the information and evidence given by the defendants to Commissioner Garfield had been turned over to the Department of Justice, and by it presented to the grand jury, which returned a true bill based thereon, and that the defendants, by reason of having given the information and evidence, were immune from prosecution concerning the transactions, matters, and things about which they had testified or furnished evidence.

Issue was joined on those pleas, and on March 21, 1905, a jury, by direction of the District Judge, rendered a verdict of not guilty. Subsequently judgment was entered on that verdict.

In September, 1910, a federal grand jury returned an indictment against all of the defendants, charging them, in violation of the Sherman act, with combining and confederating together in restraint of trade in fresh meat between the several states, etc., for the 'past ten years,' and 'continuously and at all times during the three years next preceding the finding and presentation of this indictment.'

By motions to quash this indictment, and by pleas in abatement (identical as to pertinent facts), the defendants make the issue that by having given information and evidence to the Commissioner of Corporations in 1904 they became immune from prosecution in 1905, as was determined by a judgment of record in this court, and that the 'immunity statute in question forbids, not only their indictment for or on account of the transactions, matters, and things for which they are immune, but also the use of the immune transactions in aid of a prosecution for a continuation of the immune offense,' and that 'the inclusion of such immune transactions in the (present) indictment is a violation of their rights under the fifth amendment to the federal Constitution and the immunity statute.'

The motions state and the pleas aver that no evidence was presented to the grand jury which returned the present indictment, except of the transactions, matters, and things concerning which the defendants gave information to the Commissioner of Corporations in 1904, and concerning which they have been adjudged to be immune from prosecution.

In short, the question now presented is: Assuming that the defendants informed the Commissioner in 1904 that they were conspiring or combining together in violation of the Sherman act, was the immunity granted to them by the statute, and by the judgment of this court, so perfect that they may continue indefinitely in their unlawful undertaking?

The pertinent immunity act is that of February 11, 1893 (27 Stat. 443 (U.S. Comp. St. 1901, p. 3173)), which provides:

'That no person shall be excused from attending and testifying or from producing books, papers, tariffs, contracts, agreements and documents * * * on the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him, may tend to criminate him or subject him to a penalty or forfeiture. But no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he may testify, or produce evidence, documentary or otherwise,' etc.

The provisions of the appropriation act of February 25, 1903 (32 Stat. 854, 903, 904, c. 755), urged by defendants' counsel to be involved, have no bearing upon the question, because they claim to have received immunity by virtue of testimony given in an investigation carried on by the Commissioner of Corporations, and the immunity provision of the act of February 25, 1903, applies only to causes arising under (1) the act to regulate commerce (Act Feb. 4, 1887, c. 104, 24 Stat. 379 (U.S. Comp. St. 1901, p. 3154)); (2) the Sherman act; and (3) the customs act (Act June 10, 1890, c. 407, 26 Stat. 131 (U.S. Comp. St. 1901, p. 1886)).

The act making the provisions of the statute of February 11, 1893, applicable to investigations conducted by the Bureau of Corporations is the act of February 14, 1903 (32 Stat. 825 (U.S. Comp. St. Supp. 1909, p. 87)), establishing the Department of Commerce and Labor, section 6 of which provides that the provisions of the act of February 11, 1893, shall apply to witnesses subpoenaed by the Commissioner of Corporations.

It seems necessary at the outset to consider the scope of the constitutional protection and the character and scope of the protection necessary to be afforded in immunity acts, in order to supplant the constitutional privilege. The fifth amendment to the Constitution provides:

'Nor shall any person be compelled in any criminal case to be a witness against himself.'

The first statute of immunity offered as the equivalent of the constitutional shield was the act of February 25, 1868 (15 Stat. 37, c. 13). This statute later was re-enacted into section 860 of the Revised Statutes (U.S. Comp. St. 1901, p. 661), in the following language:

'No pleading of a party, nor any discovery or evidence obtained from a party or witness by means of a judicial proceeding in this or any foreign country shall be given in evidence or in any manner used against him or his property or estate, in any court of the United States in any criminal proceeding, or for the enforcement of any penalty or forfeiture: Provided, that this section shall not exempt any party or witness from prosecution and punishment for perjury committed in discovering or testifying, as aforesaid.'

Section 860 was before the Supreme Court of the United States in Counselman v. Hitchcock, 142 U.S. 547, 12 Sup.Ct. 195, 35 L.Ed. 1110, and was held to afford an insufficient compensation for the privilege granted by the fifth amendment. The court said:

'We are clearly of the opinion that no statute, which leaves the party or witness subject to prosecution after he answers the incriminating questions put to him, can have the effect of supplanting the privilege conferred by the Constitution of the United States. Section 860 of the Revised Statutes does not supply a complete protection from all the perils against which the constitutional prohibition was designed to guard, and is not a full substitute for that prohibition. In view of the constitutional provision, a statutory enactment to be valid must afford absolute immunity against future prosecutions for the offense to which the question relates.'

To meet the requirements of the rule thus laid down by the Supreme Court, the act of February 11, 1893, was passed, providing that:

'No person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he may testify or produce evidence, documentary or otherwise,' etc.

In this form the matter was presented in Brown v. Walker, 161 U.S. 591, 16 Sup.Ct. 644, 40 L.Ed. 819, where a majority of the court held, after quoting extensively from the opinion in Counselman v. Hitchcock: 'The clause of the Constitution in question is obviously susceptible of two interpretations. If it be construed literally as authorizing the witness to refuse to disclose any fact which might tend to incriminate, disgrace, or expose him to unfavorable comments, then as he must necessarily, to a large extent, determine upon his own conscience and responsibility whether his answer to the proposed question will have that tendency, * * * the practical result will be that no one could be compelled to testify to a material fact in a criminal case unless he chose to do so, or unless it was entirely clear that the privilege was not set up in good faith. If, upon the other hand, the object of the provision be to secure the witness against a criminal prosecution which might be aided, directly or indirectly, by hid disclosure, then if no such prosecution be possible-- in other words, if his testimony operated as a complete pardon for the offense to which it relates-- a statute absolutely securing to him such immunity from prosecution would satisfy the demands of the clause in question. * * *

'Stringent as the...