Wilkes v. United States

• Decision Date: 29 June 1923
• Docket Number: 3783.
• Citation: 291 F. 988
• Parties: WILKES et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

291 F. 988

WILKES et al. v. UNITED STATES.

No. 3783.

United States Court of Appeals, Sixth Circuit.

June 29, 1923

Charles M. Bryan and Scott P. Fitzhugh, both of Memphis, Tenn (Arthur G. Brode, of Memphis, Tenn., on the brief), for plaintiffs in error.

S. E Murray, U.S. Atty., of Memphis, Tenn. (W. H. Fisher and A. A Hornsby, both of Memphis, Tenn., on the brief), for the United States.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

KNAPPEN Circuit Judge.

This writ is brought to review judgments of conviction of the several plaintiffs in error upon an indictment under section 37 of the Penal Code (Comp. St. Sec. 10201), charging conspiracy to violate the Reed Amendment (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 8739a). The case belongs to the general group which includes the Tuckerman (No. 3791), Wilkes (No. 3810), Berryman (No. 3826, C.C.A.) 291 F. 958, Wallace (No. 3800, C.C.A.) 291 F. 972, and other cases of alleged bribery of Tyree Taylor, as well as the conspiracy case of Robilio and others (No. 3792, C.C.A.) 291 F. 975, all decided this day by this court. In this case also Taylor and his wife testified for the government. Some of the questions raised here are discussed in one or more of the other cases referred to.

In this case also complaint is made of the denial of motion to quash the indictment, upon the four grounds stated in the similar motion in the Robilio Case (No. 3792). In its essential features (apart from statement of overt acts) the indictment is very similar to the one discussed in the last-mentioned case. The discussion in that case makes it unnecessary to do more than refer thereto in sustaining the action of the District Court. The motion in arrest of judgment, based upon the same grounds, calls for no discussion.

Some of the jurors in attendance upon the session had been present in court during the trial of other cases of the general group referred to, and some had sat in some of the other cases. Defendants moved to dismiss the array, and for a new array of jurors, for the reasons just stated, coupled with the proposition that the evidence being similar to the evidence in this case such jurors had passed upon the credit or lack of credit of Taylor and his wife, and had formed or expressed opinions as to the whole series of cases growing out of the indictments in question. Whether or not the practice of moving to dismiss the array was the proper one, it was not error to deny the motion. There was under it no showing of fact that the jurors had either formed or expressed opinions as to the merits of the instant case. There is no presumption of law that they did do so, nor any presumption that a juror who has heard the evidence in one of the cases, or even sat in one or more cases, will be other than impartial in another case merely because it is of the same general type. Each case involved differing conditions and questions of credibility on the part usually of different defendants, and the credibility of both Taylor and his wife was required to be weighed not only upon the facts of the individual case, but as between these witnesses and different defendants. Cf. 16 R.C.L.p. 260. Plaintiffs in error cite no authority in support of their contention, which we think plainly not well made. In fact, however, upon the subsequent examination of the jurors, upon their voir dire, each of those who had been present during the former trials testified, either directly or in effect, that he could try this case fairly and impartially, giving the defendants the presumption of innocence until proven guilty beyond a reasonable doubt. The competency of the individual jurors was addressed to the sound discretion of the trial court. Hopt v. Utah, 120 U.S. 430, 432, 7 Sup.Ct. 614, 30 L.Ed. 708; Texas & Pacific Ry. v. Hill, 237 U.S.at page 214, 35 Sup.Ct. 575, 59 L.Ed. 918; Detroit, M., etc., Ry. Co. v. Kimball (C.C.A. 6) 211 Fed.at page 633, 128 C.C.A. 565; Badders v. Burnham (C.C.A. 8) 228 Fed.at page 472, 143 C.C.A. 52. No abuse of discretion is shown.

Section 287 of the Judicial Code (Comp. St. Sec. 1264) provides that on the trial of any noncapital felony, the defendant 'shall be entitled to ten * * * peremptory challenges * * * and in all cases where there are several defendants or several plaintiffs, the parties on each side shall be deemed a single party for the purposes of all challenges under this section. ' The several defendants were represented by different counsel. Complaint is made that the court refused to apportion the challenges between the defendants. In this there was no error. Stilson v. United States, 250 U.S. 583, 585, 586, 40 Sup.Ct. 28, 63 L.Ed. 1154; Schaefer v. United States, 251 U.S. 466, 469, 40 Sup.Ct. 259, 64 L.Ed. 360.

Nor was there any error in permitting the district attorney to challenge peremptorily a juror who had once been passed by both parties, after which defendant had exercised peremptory challenges. It is the general, if not the universal, rule that either party has a right to exercise a peremptory challenge after the complexion of the jury has changed, and up to the time the jury is finally accepted and sworn. The passing of a juror previous to such time is not final acceptance of the juror. The fact that thereby defendants, who had exhausted their peremptory challenges, were obliged to accept a juror who had sat in a previous case, but who was not subject to challenge for cause, does not alter the situation.

During the direct examination of a witness for the government, the district attorney confronted the witness with statements made by him before the grand jury. It thereupon appearing that the testimony of the witness was taken by a stenographer, defendants not only objected to using anything that happened before the grand jury, but moved that the defendants be discharged because the stenographer had no right to be present. The motion was overruled, as was also a motion in arrest of judgment for the same reason. It appeared in connection with the hearing of the motion in open court, through the unchallenged statement of the district attorney, that the stenographer in question 'was sworn as a special assistant United States attorney for the purpose of taking down the testimony. ' It is the unchallenged statement of defendants by brief that the stenographer was not a member of the regular staff of the United States district attorney, and is not shown to have been a practicing lawyer, although his appointment as assistant district attorney would possibly suggest that he had been admitted to the bar. There is nothing to indicate that the stenographer took any part in the conduct of proceedings before the grand jury, nor that he was present during any of the deliberations of that body.

Upon the question whether a stenographer may lawfully attend before a grand jury for the mere purpose of taking the testimony of witnesses, the authorities are not only few in number but conflicting. There is no doubt that in view of the secrecy properly surrounding the deliberations of a grand jury the presence of a wholly unauthorized person is unlawful; and the presence of such unauthorized person has in several cases been held sufficient to set aside the indictment. The real question would seem to be whether a stenographer duly sworn as an assistant United States district attorney, who attends only for the purpose stated and does not take part in the conduct of proceedings before the grand jury, and is not present during their deliberations, is an unauthorized person within the rule stated. Defendants seem to regard the question as dependent upon the federal statute of June 30, 1906 (34 Stat.c. 3935 (Comp. St. Sec. 534)), which authorizes an attorney or counselor specially appointed and directed by the attorney general to 'conduct any kind of legal proceeding,' civil or criminal, including grand jury proceedings, etc., and cites decisions of District Courts that a stenographer for a United States district attorney, duly appointed and sworn for the purpose only of taking testimony, is not within the statute, which, as applied to this case, relates only to attorneys appointed to conduct the proceedings before the grand jury. United States v. Rubin (D.C.) 218 F. 245; United States v. Railway Co. (D.C.) 221 F. 683. We find no decisions of the Supreme Court and but two decisions of Circuit Courts of Appeals upon this specific question.

In Latham v. United States, 226 F. 420, 141 C.C.A. 250 L.R.A. 1916D, 1118, the Circuit Court of Appeals for the Fifth Circuit held that the presence of a clerk from the district attorney's office, who was an expert stenographer and who at the district attorney's instance took stenographic notes of the testimony of witnesses examined by the grand jury, on which the indictment was found, although he took an oath before the clerk of the court to keep the proceedings secret, was a substantial violation of defendant's right and ground for quashing the indictment, although no prejudice therefrom was alleged or shown. On the other hand, in Wilson v. United States, 229 F. 344, 143 C.C.A. 464, the Circuit Court of Appeals for the Second Circuit held that the presence in the grand jury room of a stenographer, who merely recorded the...