United States v. Whitted
| Decision Date | 23 March 1971 |
| Docket Number | Cr. No. 01599. |
| Citation | 325 F. Supp. 520 |
| Parties | UNITED STATES of America, Plaintiff, v. Richard D. WHITTED, Jr., Defendant. |
| Court | U.S. District Court — District of Nebraska |
Richard A. Dier, U. S. Atty., and William Shaphorst, Asst. U. S. Atty., Omaha, Neb., for plaintiff.
Richard J. Bruckner, Omaha, Neb., for defendant.
This matter comes before the Court on the motion of defendant for a judgment of acquittal notwithstanding the Verdict or for a new trial. Filing #70. Oral arguments have been heard and the matter has been thoroughly briefed by the respective counsel.
On June 9, 1970, a three count indictment was returned against the defendant which charged that the defendant, Richard D. Whitted, Jr., perjured himself on three occasions in testimony before a Grand Jury. The Grand Jury which returned the indictment was the same body which had heard the testimony of the defendant in which the alleged perjured statements were given. Several pre-trial motions were filed by counsel for the defendant challenging on various grounds the validity of the Indictment returned against defendant. Said motions were overruled and a subsequent trial was held.
On September 29, 1970, the jury returned a verdict of guilty on all three counts against the defendant, Richard Whitted, the Sheriff of Sarpy County, Nebraska.
The motion now under consideration asserts that the Court erred in holding the questions asked the defendant were material to the Grand Jury investigation, a necessary element for a perjury conviction, and in not quashing the indictment. I am of the opinion that a substantial issue is present regarding the materiality of the questions asked the defendant before the Grand Jury, but do not reach said issue because the indictment returned against the defendant must be dismissed and the jury verdict set aside.
During the course of the jury trial defendant's entire testimony before the Grand Jury was read to the trial jury. I have carefully studied this testimony, that of other witnesses who testified before the Grand Jury, and the entire proceedings which led up to the returning by that tribunal of the indictment against the defendant, and have concluded that it is impossible to determine whether the indictment against the defendant was returned on the basis of evidence or by the possible prejudice and bias of jurors or both, and accordingly must therefore dismiss the indictment.
On March 4, 1970, the defendant testified before the Grand Jury which was conducting an investigation of whether there had been committed in the District of Nebraska violations of the United States gambling laws. No indictment was returned. On April 15, 1970, a Commissioner's complaint charging defendant in two counts violation of 18 U.S.C. § 1621 was filed. On May 25, 1970, the United States Attorney dismissed the complaint and later presented evidence to the said Grand Jury before which the alleged perjury had occurred. On June 9, 1970, a three count indictment was returned against the defendant. At the defendant's trial Lewis A. Bray, the Grand Jury foreman, testified that the Grand Jury had been informed of the United States Attorney's complaint, and had read the publicity concerning it. Defendant asserts that the aforementioned procedure usurped the function of the Grand Jury and created bias against the defendant, and for these reasons the June 9, 1970 indictment against the defendant should be quashed. I would not hold that the aforesaid procedure in and of itself would necessarily constitute sufficient grounds to quash the indictment, but I do hold that when the aforesaid procedure is combined with the prejudicial conduct hereinafter discussed, I am required to quash the indictment on the ground said indictment was not returned by an unprejudiced Grand Jury. See United States v. Wells, 163 F. 313 9th Cir. 1908; United States v. DiGrazia, 213 F.Supp. 232 E.D.Ill.1963.
In his examination in front of the Grand Jury the defendant was interrogated as follows:
In the examination of Mr. Meilahn, a former deputy of the defendant's, the following colloquy took place:
The innuendo and implication of the above testimony could only create bias and prejudice toward the defendant and said questions were not addressed to discover violations of federal crimes. Other questions asked of the defendant also had the natural effect of damaging the defendant's character in the eyes of the Grand Jury and thus prejudice said tribunal toward him.
He was asked in detail about the criminal record of one of his former deputies, Robert Daniels. The conduct attributed to Mr. Daniels included a wide range of criminal activity. The defendant was questioned regarding his hiring of this defendant and the defendant found it necessary to defend in front of the Grand Jury his appointment of Mr. Daniels.
In Brown v. United States, 245 F.2d 549 8th Cir. 1957 the Court had before it an appeal of a conviction of a perjury prosecution. In commenting on the Grand Jury indictments the Court stated:
"We do not, however, subscribe to the proposition that the Constitution of the United States or the laws enacted thereunder authorize an inquisition into the life and conduct of a defendant with reference to matters that are not relevant or material."
I have concluded that several of the...
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Robert Hawthorne, Inc. v. Director of Int. Rev.
...(1974). 29 For example, a court may review grand jury abuses such as: Prejudicial remarks and questioning: see United States v. Whitted, 325 F.Supp. 520 (D.Neb.1971); United States v. DiGrazia, 213 F.Supp. 232 (N.D.Ill.1963); but see United States v. Bruzgo, 373 F.2d 383 (3d Cir. 1967). Pro......
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