United States v. Thomas

• Decision Date: 07 April 1943
• Docket Number: No. 21532.,21532.
• Citation: 49 F. Supp. 547
• Parties: UNITED STATES v. THOMAS.
• Court: U.S. District Court — Western District of Kentucky

49 F. Supp. 547

UNITED STATES v. THOMAS.

No. 21532.

District Court, W. D. Kentucky, at Louisville.

April 7, 1943.

Eli H. Brown, III, U. S. Atty., of Louisville, Ky., for United States of America.

Brent C. Overstreet, of Louisville, Ky., for defendant.

MILLER, District Judge.

The defendant, Alpha Louise Thomas, was indicted for perjury in violation of Section 398, Title 18 U.S.C.A. The matter is before the court on (1) her motion to strike certain allegations from the indictment; (2) a demurrer to the indictment, and (3) a plea in abatement.

At a hearing on said pleas the following facts were testified to by the defendant: The defendant was arrested by the city police about 9 p. m. on December 24, 1942 while in a parking lot on Fifth Street in Louisville, Kentucky, in company with two soldiers. The policemen would not tell her at the time of the charge against her, but took her to police headquarters where she was charged with vagrancy and disorderly conduct. A police captain told her that unless she co-operated with the police she would be locked up every time she appeared on the street. After making bond for appearance in the city police court she went to the office of the Federal Bureau of Investigation where she was questioned at length from about 12 o'clock midnight until approximately 4:30 a. m. by Federal agents about her relations with one John H. Weber who was being investigated for violation of the Mann Act, 18 U.S.C.A. § 397 et seq. At that time she made a written statement involving Weber. Thereafter over a period of six weeks she was called to the office of the F. B. I. and interviewed by Federal agents some five or six times. As a result of these interviews she signed an additional written statement on January 18, 1943, and a third written statement on February 4, 1943 giving more details as to times, dates and places where the transportation and immoral relations took place. She claims to have signed these statements because of fear of future arrests. She was not required to appear in the city police court to answer the charges of vagrancy and disorderly conduct placed against her on December 24th. A warrant for the arrest of John H. Weber was sworn out before the United States Commissioner charging Weber with transportation of the defendant in interstate commerce for immoral purposes, and the defendant was subpoenaed to testify at the hearing on February 9, 1943. This hearing was continued until February 15, 1943 because of the inability of the marshal to serve the subpoena, and it was again continued to February 18, 1943 because of the absence of the Assistant U. S. Attorney in the trial of a case at Owensboro, Kentucky. The defendant appeared for the hearing on February 15, 1943, at which time she told F. B. I. agent Faulkner that her previous written statements were not true. At that time she was arrested and put under bond to appear at the hearing on February 18th. When she appeared on February 18th she again told F. B. I. Agent Faulkner and the Assistant District Attorney that her statements were not true. The Assistant District Attorney thereupon moved for the discharge of Weber, which motion was sustained by the U. S. Commissioner. The defendant was then subpoenaed to appear before the Grand Jury which convened in Louisville, Kentucky, on March 2, 1943. She stated that she was questioned by the grand jurors, testified voluntarily and told the truth; that although she was frightened when she was before the Grand Jury neither any member of the Grand Jury nor any Federal officer threatened her in any way excepting the statement of one Federal officer who told her that she would get time if she didn't stick to her first story. In appearing before the Grand Jury she was not advised by the District Attorney or by any one of her constitutional privilege against self-incrimination or that what she said would be used against her. She did not consult an attorney. In her testimony before the Grand Jury she testified to facts in absolute contradiction to the facts previously given by her to the F. B. I. agents in the three written statements above referred to. On a later day the Grand Jury returned the present indictment against her for perjury.

The motion to strike and the demurrer do not appear to be seriously pressed. The indictment sets out part of the defendant's testimony before the Grand Jury consisting of eighteen questions and answers directed to the defendant's practice of prostitution, and to her visits to Ohio and Florida with special reference to Weber's participation in those activities. It charges that these answers were untrue and known to be so by the defendant at the time. The motion to strike and the demurrer raise the same point, namely, that the questions and answers are immaterial and incompetent and would serve no purpose except to prejudice the minds of the jury against the defendant in an undue manner. The questions propounded to the defendant dealt directly with the charge which it was considering against Weber, and accordingly were material and competent in that investigation. If they were answered untruthfully by the defendant, the questions and answers constitute the very essence of the present indictment. The motion to strike and the demurrer are without merit and are overruled.

The plea in abatement alleges substantially the facts produced at the hearing above referred to and charges that by reason of such facts the defendant was compelled to testify against her will, which she would not have done if she had been advised of her constitutional rights against self-incrimination, or that such testimony could be used as the basis of an indictment against her. She claims that the failure on the part of the Government to so advise her violated the rights guaranteed to her by the Fifth Amendment to the United States Constitution, and testimony so given can not legally be the basis for the present indictment.

The defendant relies upon the case of Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110. This case held that an examination of a witness before a Grand Jury was a criminal case within the meaning of the Fifth Amendment to the Constitution of the United States, which provides that "No person * * * shall be compelled in any Criminal Case to be a witness against himself, * * *," and that such a witness is entitled to decline to testify about facts which could be used for the purpose of securing an indictment against such a witness. Counsel contends that under the ruling of the Supreme Court in United States v. Holte, 236 U.S. 140, 35 S.Ct. 271, 59 L. Ed. 504, L.R.A.1915D, 281, a woman can be guilty of violation of the Mann Act, or guilty of conspiring to violate the Mann Act, even though she be the victim, and that therefore the answers to the questions propounded to her before the Grand Jury would lead to self-incrimination and would not have to be answered. He relies upon the decisions in United States v. Edgerton, D.C.Mont.1897, 80 F. 374 and United States v. Bell, C.C.W.D.Tenn.1897, 81 F. 830 as establishing the rule that unless a witness who is ignorant of his constitutional...