United States v. Wells

• Decision Date: 12 March 1908
• Docket Number: 448.
• Citation: United States v. Wells, 163 F. 313 (9th Cir. 1908)
• Parties: UNITED STATES v. WELLS et al.
• Court: U.S. Court of Appeals — Ninth Circuit

163 F. 313

UNITED STATES v. WELLS et al.

No. 448.

United States District Court, D. Idaho, Central Division.

March 12, 1908

Syllabus by the Court

In the absence of congressional legislation, the laws of the state wherein a court of the United States is held control the practice before federal grand juries; but failure of a state statute to point out a method for attacking the validity of an indictment cannot deprive a defendant of that right.

Matters not disclosed by the record are properly presented by plea in abatement; but, if the rule were otherwise, the filing of counter affidavits disputing matters set up in affidavits accompanying a plea in abatement is a waiver of the objection that the issue was raised by plea, rather than by motion to quash.

Offenses under section 5440, Rev. St. (U.S. Comp. St. 1901, p. 3676) are infamous, and can only be tried upon indictment returned by a grand jury.

While the fifth amendment of the Constitution enables the people through the grand jury system, to initiate criminal prosecutions, it was primarily adopted and still stands as a safeguard against arbitrary or oppressive action.

The district attorney has no right to participate in nor be present during the deliberations of a grand jury, nor to express opinions on questions of fact, or as to the weight and sufficiency of the evidence.

The district attorney, at the conclusion of the evidence, without invitation from the grand jury, or request for information or advice, made an extended address, in which he commented upon and reviewed the evidence and explained and applied the law thereto for the purpose of securing an indictment. The remarks amounted to an expression of opinion that the defendants were guilty and that the grand jury should return an indictment against them. At the conclusion of the address without deliberation other than that had during its delivery, and without discussion among themselves, the grand jury proceeded to ballot on the persons under investigation, a list of whom the district attorney furnished during the course of his remarks. Held, that while the mere presence of a prosecutor during the taking of a vote or during the deliberations, through inadvertence and without intending to influence any action which may be taken, is not necessarily fatal to a bill returned under such circumstances, yet where the prosecutor not only expresses his opinion, but urges the finding of an indictment, and it is clearly shown that the grand jury must necessarily have been influenced, whether consciously or unconsciously, and particularly where it is manifest that at least one defendant was indicted without substantial evidence, prejudice will be presumed, and an indictment so returned will be quashed.

The fact that it sufficiently appears from testimony adduced in open court on the trial of one of the defendants, upon the indictment so returned, that there was probably sufficient proof before the grand jury to justify the finding of a true bill as to some of the defendants who were indicted, does not deprive them of the right to a fair and unprejudiced investigation before the tribunal created by the Constitution, free from outside interference and undue influence. To hold, because the evidence was sufficient as to certain defendants that the indictment ought not to be quashed as to them, would be to substitute the judgment of the court for that of the grand jury.

M. C. Burch and S. R. Rush, Sp. Asst. Attys. Gen., and N. M. Ruick, U.S. atty.

Hawley, Puckett & Hawley and Frank Martin, for defendants.

WHITSON District Judge.

There are several cases against a part of the defendants, indicted under section 5440, Rev. St. (U.S. Comp. St. 1901, p. 3676) but we are only now concerned with No. 448, the indictment having been returned by the grand jury on April 12, 1907. The defendants John I. Wells and Patrick Downs filed motions to quash, which were overruled in September for reasons then assigned. They also presented two pleas in abatement. The first related to the statute of limitations. It was agreed by counsel in open court that this question was properly raised by demurrer theretofore interposed. Plea No. 1 was thereupon overruled. The second plea in abatement charges misconduct of the district attorney, whereby the defendants were denied a fair and impartial investigation of the charge against them. The averments of this plea may be summarized as follows:

At the conclusion of the testimony taken before the grand jury, while deliberating and before a vote had been taken, and prior to any discussion among themselves, or at all, concerning the sufficiency of the evidence produced to warrant the finding of an indictment, the district attorney went before that body, without request, and without being informed that any advice from him was desired, and proceeded then and there in argument to deduce his conclusions from the proofs, and to give his opinion thereon, and to urge the finding of an indictment; that the argument was at least an hour in length; that he said there need be no hesitation in finding the indictment, as the jury would soon be adjourned, scattered and gone; that no one would blame them, but the responsibility would rest upon him and other parties, who would be accountable; that he continued his argument until about time for adjournment, whereupon he stated that he wished the indictment voted at once; that he further stated, then and at numerous other times during the sessions of the grand jury, that in asking for an indictment against these defendants and others he was acting under specific instructions from the Department of Justice at Washington; that there was plenty of evidence upon which to find the indictment, and that he had other evidence which he had not adduced, but would do so at the trial, which would be quite sufficient to justify their action; that there was never any discussion by the grand jury as to the advisabilily of voting the indictment, but all deliberation was cut off and prevented, and, although jurors requested permission to make statements, they were not permitted to do so, the discussion being limited to that of the district attorney; that when the grand jury convened the following morning the district attorney immediately entered the grand jury room without invitation, whereupon he was requested by a member to leave the room, the grand juror at the time stating that they had some matters which they desired to discuss in his absence; that he positively refused to absent himself, saying that he would not leave, and that no further consideration could be had until the indictment was signed; that he thereupon directed the foreman to sign the indictment, without permitting further consideration or discussion, and without it being read, the members not being permitted to know the contents or the parties indicted; that the indictment was actually signed and returned without the knowledge of any member, except possibly the foreman, as to the contents or the persons indicted; that a number of papers, contracts, and agreements were withheld from the grand jury, which was compelled to take the contents from the district attorney's statements; that at no time after the evidence was taken were the deliberations of the grand jury permitted to go on freely or under its own direction or control, nor was it permitted to deliberate or consider the evidence as desired, but was urged and directed to proceed without discussion or deliberation; that the members of the grand jury permitted themselves to be thus influenced by the appeals and arguments of a zealous advocate, instead of relying upon a clam and fair deliberation on the evidence.

The third pleas in abatement were interposed by the defendants Martin and Pritchard only. These defendants separately complain that in obedience to subpoenas duly issued and served they appeared before the grand jury and gave evidence material to their own connection with transactions under investigation, without being informed or having knowledge of that fact, by which they were greatly prejudiced in being thus compelled to testify against themselves. Exceptions to the second and third pleas were overruled, and a hearing ordered upon them. Accordingly witnesses were called to ascertain the truth or falsity of the matters therein charged.

First, then, considering plea No. 2, it is to be observed that the grand jury was composed of 23 persons. Jurors Latham and Sloan made affidavits for the defendants. These affidavits are attached to the plea of the defendant Martin. Eastman, Clopton, King, Trout, Nicholson, Newman, Brannon, Gess, Grigsby, McGlinchey, Hartman, Adelmann, Bayles, Windell, Wilson, and Hashbarger made affidavits for the prosecution. Latham, Sloan, and Cunningham were called as witnesses to sustain the allegations of plea No. 2, and orally gave their testimony in court.

The prosecution then by agreement submitted affidavits of the jurors above referred to as having been made on behalf of the prosecution, such affidavits to stand as their examination in chief, subject to cross-examination, and all of such jurors were thereupon called and cross-examined, with the exception of Windell, and, in addition to those who made affidavits Ashbe and Halstead were examined, making a total of 21 jurors who testified. Nothing short of an extended and critical examination of the testimony will reveal exactly what occurred before the grand jury. That the district attorney did make an address was testified to by every witness who was called, with the exception of Juror Gess, who had no distinct remembrance. Indeed, it is not denied. As to the time consumed the jurors vary in their estimates, as will appear by reference to the margin. ^[1] That this...