United States v. Thompson

• Decision Date: 19 July 1944
• Docket Number: No. 388.,388.
• Citation: 144 F.2d 604
• Parties: UNITED STATES ex rel. McCANN v. THOMPSON, Warden.
• Court: U.S. Court of Appeals — Second Circuit

144 F.2d 604 (1944)

UNITED STATES ex rel. McCANN v. THOMPSON, Warden.

No. 388.

Circuit Court of Appeals, Second Circuit.

July 19, 1944.

John F. X. Finn, of New York City, and Hallam M. Richardson, of Brooklyn, N. Y., for appellant.

Richard J. Burke, of New York City (James B. M. McNally, U. S. Atty., and John J. Donovan, Jr., Asst. U. S. Atty., both of New York City, of counsel), for appellee.

Before L. HAND, SWAN, and CLARK, Circuit Judges.

L. HAND, Circuit Judge.

The relator appeals from an order dismissing a writ of habeas corpus, issued to release him from custody under a judgment of conviction for the fraudulent use of the mails. The indictment was returned on February 18, 1941, the relator was arraigned on April 2nd, and in July of that year was tried before judge Otis — upon his own consent without a jury. He was found guilty on all counts, sentenced to prison for six years, and fined $600; he has appealed, and that appeal is still pending. This court discharged him upon habeas corpus on March 12, 1942 on the theory that, not being represented by counsel, his consent to waive a jury was invalid. United States ex rel. Gene McCann v. Adams, 2 Cir., 126 F.2d 774. That order was reversed on December 21, 1942, Adams, Warden v. United States ex rel. McCann, 317 U.S. 269, opinion amended 317 U.S. 605, 63 S.Ct. 236, 87 L.Ed. 268, 143 A.L.R. 435, and on March 3, 1943 he was again placed in custody. On April 12, 1943, he procured a writ of habeas corpus out of the district court, which was dismissed on April 22nd, and the order of dismissal later affirmed by this court. On November 8, 1943, the Supreme Court also reversed this order of affirmance, and remanded the writ to the district court for further hearing, United States ex rel. McCann v. Adams, Warden, 320 U.S. 220, 64 S.Ct. 14. That hearing came on before Judge Hulbert, who on January 26, 1944, dismissed the writ, 3 F.R.D. 396, and the relator has appealed from that order; that appeal also is pending. The relator then applied for this writ on February 25, 1944, and the hearing upon that also came on before Judge Hulbert, who dismissed the writ on March 29, 1944, 56 F.Supp. 661. It is the appeal from this order that is now before us.

The petition, although it is in thirty-eight articles, is addressed for the most part to supposed infirmities of the indictment, owing to the disqualification of the grand jurors, and to the fact that the only twelve jurors, who were at once not disqualified and who voted a true bill, were not present during the taking of all the testimony on January 22, 24, 27 and 28, 1941. On the last day the indictment was voted; it was returned on February 18th. On the 22nd, the secretary of the jury, one Templeton, made an entry in the record that the foreman, Greene, and one of the jurors, Simmonds, disqualified themselves from taking any part, apparently because they deemed themselves biased because of former dealings with the relator. The petition alleged (Article 13), that seven more of the jurors were disqualified for bias because they "were either owners, partners or important executives, or members of defendants" in certain civil litigation between the relator and the Better Business Bureau — the transactions there involved being the same as those laid in the indictment. On the 22nd all twenty-three were present, of whom, if we deduct the two, admittedly disqualified and the seven, alleged to have been disqualified, fourteen were qualified. On the 24th, two of these fourteen were absent, and on the 27th two others of these fourteen were absent (Articles 5 and 6). Thus, although there were twelve qualified jurors on both days, they were not the same twelve. On the 28th, two of the fourteen were absent (Articles 7 and 8); of whom one was one of the two absent on the 24th, and the other had not been absent before. It follows from these allegations that twelve qualified jurors did not all hear the whole evidence. One juror was absent when the indictment was presented to the court (Article 9). On March 5, 1941 — and therefore before his arraignment — the relator filed a plea in abatement to, and motion to quash, the indictment for the disqualification of grand jurors, and this motion was denied. Although the petition at bar merely alleges that the disqualifications of jurors were not "disclosed or known to the trial court at the time the indictment was handed up," and does not therefore allege that they were not known to the relator himself, we shall nevertheless assume that some at least of the disqualifications of the seven allegedly disqualified jurors were not known to him at the time of the plea and motion on March 5, 1941. These facts constitute the relator's chief reliance here.

However, the petition alleged certain other grounds, and these we shall dispose of at the outset. First, that the grand jury refused to allow the relator to appear before it as a witness. To this privilege he was not entitled; the practice was utterly unknown at common law, and, although grand juries have in recent times occasionally invited persons, whose conduct they are examining, to appear, they are never obliged to do so, and it is in our opinion a custom more honored in the breach than in the observance. United States v. Bolles, D.C.Mo., 209 F. 682; Duke v. United States, 4 Cir., 90 F.2d 840, 841, 112 A.L.R. 317. Besides, even if the refusal had been an error, it would not be reviewable on habeas corpus. We may group together the other objections and summarize them as follows: (1.) that the jurors refused to consider a "presentment" submitted to them by the relator; (2.) that they would not avail themselves of records in the state courts and of the Securities and Exchange Commission; (3.) that the prosecution was instigated by the animus of personal enemies of the relator; (4.) that the United States attorney and his assistants were hostile to him because of past relations with his enemies; (5.) that the assistant who tried the case was not admitted to the bar. The mere statement of these grievances exposes their want of substance, even if they were reviewable on habeas corpus, as they would not be, if they had any merit. They are frivolous, and we shall not discuss them. The only two questions deserving considerations are: first, whether the disqualifications of the jurors and their absences on some of the days when evidence was taken, vitiated the indictment; and second, whether the relator was properly advised of his constitutional right to be tried to a jury, when he consented to be tried to a judge. The second of these was the subject of an extended hearing upon the first writ before Judge Hulbert, and will be reviewed when that appeal comes before us. We could not decide it upon this record anyway; we should have to remand the case to the district court for a hearing which would necessarily repeat the evidence already taken; and the record on that appeal would be as difficult to prepare as the record on the pending appeal. While it is quite true that an order dismissing one writ of habeas corpus does not formally estop the relator from suing out another on the same grounds, that does not mean that he may again and again call upon the court to repeat its rulings. Even this great writ can be abused, and when the question has once been decided upon full consideration, there must be an end, else the court becomes the puppet of any pertinacious convict. Salinger, Jr. v. Loisel, United States Marshal, 265 U.S. 224, 44 S.Ct. 519, 68 L.Ed. 989; United States ex rel. Bergdoll v. Drum, 2 Cir., 107 F.2d 897, 129 A.L.R. 1165. We refuse therefore to take up the second question upon this appeal. The same considerations in fact apply equally to the supposed disqualification of the grand jurors and to their absences. It is not true that Judge Hulbert did not consider these questions upon the earlier writ; his opinion shows that he did. Nevertheless, since it is within our power to consider them (as it was within his to reconsider them), it seems best to us to...