United States v. West Coast News Company, Crim. No. 6615.

• Citation: 216 F. Supp. 911
• Decision Date: 19 April 1963
• Docket Number: Crim. No. 6615.
• Parties: UNITED STATES of America, Plaintiff, v. WEST COAST NEWS COMPANY, Inc., a California corporation, Sanford E. Aday and Wallace De Ortega Maxey, Defendants.
• Court: U.S. District Court — Western District of Michigan

216 F. Supp. 911

UNITED STATES of America, Plaintiff, v. WEST COAST NEWS COMPANY, Inc., a California corporation, Sanford E. Aday and Wallace De Ortega Maxey, Defendants.

Crim. No. 6615.

United States District Court W. D. Michigan, S. D.

April 19, 1963.

COPYRIGHT MATERIAL OMITTED

George E. Hill, Dist. Atty., Robert G. Quinn, Jr., Asst. Dist. Atty., Grand Rapids, Mich., Marshall Tamor Golding, Crim. Div., Dept. of Justice, Washington, D. C., for plaintiff.

Stanley Fleishman, Hollywood, Cal., Richard F. VanderVeen and George R. Cook, Grand Rapids, Mich., for defendants.

FOX, District Judge.

This case, in which the United States, by a Grand Jury Indictment, charged the defendants in nineteen counts with violating Title 18 U.S.C. §§ 1461 and 1462, using the mails and a common carrier for delivery of obscene books, is challenged by defendants through six motions.¹

The indictment was found in the district of alleged distribution and delivery of the books, Title 18 U.S.C. § 3237(a).

The United States filed a motion to strike defendants' motion to dismiss the indictment because of the alleged invalidity of the Grand Jury, March 12, 1963. The Government's motion is based on the issue of timeliness of challenges to the array and the indictment. Agnew v. United States, 165 U.S. 36, 17 S.Ct. 235, 41 L.Ed. 624.

Briefs were filed on all motions, excepting the Government's motion to strike.

Arguments on all motions were presented to the court through most of March 13, 1963. Testimony in support of defendants' position challenging the Grand Jury was presented through the balance of the 13th, and on the 14th and 15th of March. Testimony was taken subject to the court's reservation concerning the effect of the Agnew case, supra, and in order to accommodate defendants' attorney, Mr. Fleishman, who had traveled in from California to present defendants' position.

1. MOTION TO TRANSFER.

Senior Judge Raymond W. Starr, then chief judge, filed an opinion and denied the first motion to transfer the case to the Southern District of California, on February 13, 1962, D.C., 30 F.R.D. 13.

2. MOTION TO DISMISS THE INDICTMENT BECAUSE OF THE ALLEGED INVALIDITY OF THE GRAND JURY.

3. MOTION TO DISMISS INDICTMENT.

At a proceeding before Judge Raymond W. Starr, at Grand Rapids, Michigan, on August 15, 1960, George R. Cook, an attorney from Grand Rapids, and Stanley Fleishman, an attorney from Hollywood, California, appeared on behalf of the defendants.

Richard F. VanderVeen and George R. Cook filed formal appearance for the defendants on August 18, 1960.

At the August 15, 1960 proceeding, the court directed that if the Government or the defendants intended to file any further motions in this action, they should be filed and served on or before September 30, 1960.

The Grand Jury which returned an indictment in this case was impaneled on September 16, 1959, and the indictment was returned May 24, 1960.

During pendency of proceedings before the Grand Jury. Mr. Stanley Fleishman, one of the attorneys for the defendants, requested that he be allowed to appear before the Grand Jury to argue defendants' innocence and the constitutionally protected nature of the books in question. The District Attorney permitted Mr. Fleishman to send a letter to the Grand Jury, then in session, stating why, in his opinion, no indictment should be returned in this case.

Mr. Fleishman sent Grand Jury Exhibit No. 39, a letter dated April 19, 1960, addressed to the foreman of the Grand Jury and to the Grand Jury, together with a copy of a letter from the firm of Brock, Fleishman and Rykoff, dated December 18, 1958, signed by Mr. Fleishman. This latter letter was an opinion of Mr. Fleishman to Saber Books and Fabian Books, 2919 Belmont Avenue, Fresno, California, in which he advised that certain named books were constitutionally protected expressions, and as such, freely distributable.

Mr. Fleishman quoted extensively from Chief Judge Yankwich's opinion in a Southern District of California case, which involved an obscenity question. This, Mr. Fleishman told the Grand Jury, was a reasonably fair statement of the law on the question of obscenity.

Thus, the defendants were well aware, over a month before return of the indictment, of the exact nature and extent of the charges which the Grand Jury was considering.

At that time the same factual information upon which defendants predicated the challenge to the array was "open and available" to them, as well as it was on March 27, 1962.

Later, in oral arguments before the court on August 15, 1960, Mr. Fleishman said:

"I am sure, that all things considered, we would get a fair trial here, except for the fact we are so far from home, we are so far from everything that makes a fair trial possible, in the sense that the constitution talks about having a trial in your home, where you have your friends, where you have the witnesses, where you have the parties, to defend it.

"Your Honor, it takes three days, three days for me to argue this motion. I traveled all day yesterday; I am here today; and I won't get home until Tuesday, to make a motion for change of venue at great expense and great personal inconvenience.

"There is no need for that, your Honor. It is harsh; it is oppressive. The government has served its function. The grand jury has returned an indictment. We are not asking this court to quash that indictment. All we say, your Honor, is let us have the trial in a place where we have a fair opportunity to defend ourselves." (Tr. 33-34) (Emphasis supplied.)

Defendants' first motion in this case was to transfer the action to the Southern District of California. Had the transfer been granted, surely the challenge of an allegedly unlawfully convened Grand Jury and other claimed Grand Jury irregularities would never have been made.

On February 13, 1962, Judge Starr filed his opinion denying defendants' motion to transfer the action to California.

The defendants were arraigned on March 2, 1962.² At that time, the following conversation took place:

"Mr. Quinn: (Assistant District Attorney) If the court please, the government at this time would also ask the court to entertain an oral motion requesting that a time limit be established by the court for the filing of all pretrial motions in this case * * *

"The Court: In order that this case may move along toward trial, the court orders and directs that any and all motions which each or any or all of the defendants desire to file in this criminal action shall be filed in this court within thirty days from this date. Is that plain?

"Mr. Cook: (Attorney for defendants) Very plain, your Honor."

The motion was directed to all pretrial motions and not to all pre-arraignment motions. Motions to the competency of the Grand Jury or to the sufficiency of the indictment or information, are pre-arraignment motions. Federal Rules of Criminal Procedure, Rule 12(b) (3).

Defendants delayed filing the motion to dismiss the indictment on their challenge to the array until March 27, 1962, one year, ten months and three days after the return of the indictment against them, and one year, eleven months and eight days after defendants' counsel, Mr. Fleishman's specially privileged letter to the Grand Jury.

In the case of Agnew v. United States, 165 U.S. 36, 44, 17 S.Ct. 235, 238, 41 L.Ed. 624, 627, Chief Justice Fuller delivered the opinion of the United States Supreme Court, and said:

"Dr. Wharton lays it down (Whart.Cr.Pl. & Pr. §§ 344, 350) that `material irregularities in selecting and impaneling the grand jury, which do not relate to the competency of individual jurors, may usually be objected to by challenge to the array, or by motion to quash,' or by plea and abatement; that the question of the mode in which such objections are to be taken largely depends upon local statutes, but that certain rules may be regarded generally applicable. One of these rules is that the defendant must take the first opportunity in his power to make the objections. Where he is notified that his case is to be brought before the grand jury, he should proceed at once to take exception to its competency, for if he lies by until a bill is found, the exception may be too late; but where he has had no opportunity of objecting before bill found, then he may take advantage of the objection by motion to quash or by plea and abatement, the latter in all cases of contested fact being the proper remedy.

"United States v. Gale, 109 U.S. 65 3 S.Ct. 1 (27 L.Ed. 857). Another general rule is that for such irregularities as do not prejudice the defendant, he has no cause of complaint, and can take no exception. U. S. v. Richardson 1st Cir., 28 Fed.Rep. 61 65; United States v. Reed, 2 Blatchford, 435, 456 Fed.Cas.No.16,134); United States v. Tallman, 10 Blatchford, 21, 51 Fed.Cas.No.16,429; State v. Mellor, 13 R.I. 666; Cox v. People, 80 N.Y. 500; People v. Petrea, 92 N.Y. 128.

"The original venire was issued November 18, the second venire issued December 2, 1895. The court opened December 3, 1895, and the indictment was returned December 12, yet defendant did not file his plea in abatement until December 17."³

"The plea does not allege want of knowledge of threatened prosecution on the part of the defendant, nor want of opportunity to present his objection earlier, nor assign any ground why exception was not taken or objection made before; and, moreover, the plea is fatally defective in that, although it is stated that the drawing `tended to his injury and prejudice,' no grounds whatever are assigned for such a conclusion, nor does the record exhibit any such." (Emphasis supplied.)

Defendants' motion in this case is without either plea or evidence that they had no opportunity to object before the bill was found, and certainly they cannot plead lack of knowledge of threatened prosecution.

In Cook v. United States, 4 F.2d 517 (CCA, 5th 1925), Circuit Judge Walker said at Page 518:

"For ought that was made to

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