Young v. United States

• Decision Date: 08 April 1954
• Docket Number: No. 11825.,11825.
• Citation: 214 F.2d 232,94 US App. DC 62
• Parties: YOUNG v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

94 US App. DC 62, 214 F.2d 232 (1954)

YOUNG v. UNITED STATES.

No. 11825.

United States Court of Appeals District of Columbia Circuit.

Argued January 8, 1954.

Decided April 8, 1954.

Petition for Rehearing Denied June 4, 1954.

Mr. Miller W. Marshall, Washington, D. C., for appellant.

Mr. J. Frank Cunningham, Atty., Dept. of Justice, with whom Messrs. Leo A. Rover, U. S. Atty., and William A. Paisley, Sp. Asst. to Atty. Gen., were on the brief, for appellee. Messrs. Lewis A. Carroll, Asst. U. S. Atty., and William J. Peck, Asst. U. S. Atty. at the time the record was filed, also entered appearances for appellee.

Before WILBUR K. MILLER, FAHY and WASHINGTON, Circuit Judges.

FAHY, Circuit Judge.

This appeal is from a judgment of conviction of perjury charged to have been committed before a grand jury of the United States in the District of Columbia.¹ The indictment is in five counts. The third and fourth were abandoned during the trial because of insufficient evidence to sustain them. The case was submitted to the jury on the remaining three counts. About five hours after the jury retired it announced agreement upon a verdict of guilty on the first count, which was received by the court. Thereupon the two remaining counts were dismissed by consent of the Government. Thus the conviction was on count one alone.

The grand jury before which the perjury is charged to have been committed was investigating matters relating to the Reconstruction Finance Corporation, hereinafter referred to as the RFC. The purpose of the investigation was to determine whether Federal criminal statutes had been violated in connection with the RFC's operations. Hearings of a subcommittee of the Senate Committee on Banking and Currency had occasioned a report of the subcommittee criticizing the activities of representatives of applicants seeking to obtain loans from the RFC.

Defendant Herschel Young, who maintained offices in Washington, was subpoenaed to appear before the grand jury and to produce his records relating to representation of such applicants. Count one of the indictment charges that on or about September 20, 1951, he gave to the grand jury under oath false testimony that he never represented anyone before the RFC whereas in fact, as he well knew and believed, this was not true in that he did represent persons and corporations before the RFC in connection with applications, loans and other transactions.

In support of its charge the Government undertook to prove, among other things, that defendant had represented the Peerless Tool and Engineering Company of Chicago in connection with an application for a loan. The president of the Company, Otto B. Lawrenz, was called by the Government as a witness. In its examination of him the Government was permitted to read in open court considerable testimony he had given before the grand jury. It is urged by the accused that this was prejudicial error. We agree and now state in some detail the circumstances which lead to this conclusion.

Lawrenz testified on the trial that Peerless had made application to the RFC for a loan, prior to which, in October, 1948, he had met defendant in Chicago in reference to a renegotiation matter; but he did not think he had discussed with him or in his presence the loan application. He also saw defendant in Washington, in November, he thought, when again they talked mainly about the renegotiation matter though the meeting also turned into a talk about an application for an RFC loan. Lawrenz's recollection was that a Mr. Harper, an engineer in defendant's office who was also present, mentioned that if Lawrenz would make the application "there may be some help on it". Defendant was present but did not say very much of anything. The only understanding reached was with respect to sending blueprints to Peerless for prospective work to be done by the Company "and also that we Peerless would send the application through Washington and send him defendant, I think, a copy of it, something to that extent." The witness did not remember whether or not a copy was subsequently sent to defendant. In March of 1949 Lawrenz received a notification to come to a Mr. Dodd's office at the RFC. He came to Washington accompanied by Miss McEvilly, Assistant Secretary and Treasurer of the Company. They thought it would be a good idea if defendant went with them to the RFC. They had been told by a Mr. Balmer, who had originally introduced defendant to the witness in Chicago, that defendant probably would be of some help. They called defendant and joined by him and Harper went to Dodd's office. Dodd asked defendant what his connection was and he replied that he was "our Peerless' Washington representative, taking care of some of our Washington business." The conference lasted about an hour. At Dodd's suggestion they had a conference after lunch with Colonel Snyder, who had also been present at the conference with Dodd. Lawrenz further testified that he had not seen defendant since then until the first day of the trial, but had a letter from him asking what Peerless was going to do about the loan. The letter was admitted in evidence.² In the meantime it had been decided that because of all the requirements and obligations Peerless did not think the loan worthwhile. There was also put in evidence a letter of March 31, 1949 from Lawrenz to defendant which set forth "additional information requested in connection with the RFC loan". Lawrenz testified that he dictated the letter and thought defendant requested it.

Lawrenz further testified that Peerless paid defendant $500 in two checks, one for $300 and one for $200, but that he did not know exactly the purpose of the payments though he thought they were mainly for work defendant had done on renegotiation. Government counsel asked him if his memory would be refreshed about that. The witness replied that he tried to refresh himself that day and had not been able to, "outside that I know he did quite a bit of work on renegotiation and never been paid for it". Being then asked what matters other than renegotiation defendant handled for him Lawrenz said defendant sent some blueprints for work that Peerless might be interested in doing. Pressed to tell the jury for what purposes defendant was in the employ of Peerless, Lawrenz replied,

"It was no definite arrangement made for any employment for Mr. Young, only casual items that came up, such as renegotiation, which was started — that was the original start of the work — and trying to probably get us orders or work to figure on, and also this item at RFC."

Asked if any of the $500 compensation was for work defendant did at the RFC the witness replied "I do not know." In response to a question of the court he said:

"I think we were asked to send him some expense money, if I remember right. What that was on I do not know, Judge."

Over objection of defense counsel the court then permitted the Government to attempt to refresh the witness' recollection by showing him a part of his grand jury testimony. On objection to impeaching the witness in this manner, the court said,

"This is not an attempt to impeach a witness, this is an attempt to refresh the witness\' recollection, when the witness said he couldn\'t remember."

Having read — not aloud, but silently — the portion of his prior testimony designated by Government counsel the witness was asked if it refreshed his recollection as to the purpose for which defendant was paid. He replied that it refreshed his recollection that he did not know but thought the payments were for renegotiation and an expense account. The Government was then permitted over objection to ask the witness if he had not told the grand jury the payments were to cover both the RFC loan problem and the matter of getting Government contracts. The witness said he did, but "I think I also mention in there — * * * renegotiation." He again stated that he did not know what the payments were for, except in connection with renegotiation work, and said he did not know how much work was done on the RFC loan application. On defense counsel's objection that the following question was leading,

"Did you retain Mr. Young for the two purposes — that is, to get business for you here in Washington and to help you with your loan application?"

the court ruled that since it was obvious the witness was reluctant, if not entirely hostile and antagonistic, Government counsel would be permitted on direct examination to ask the type of question proper only to cross-examination. Whereupon Government counsel was permitted to read aloud, in the presence of the jury, from the minutes of the grand jury proceedings, pausing intermittently as indicated to ask the witness if he were not so questioned and if he did not so answer, as follows:³

Q Question: "And at the same meeting you discussed with Herschel Young his possible assistance to you and your company in connection with the RFC loan problem that you had, did you not?"

Answer: "That is right."

Question: "So he was retained, was he not, for two purposes, is that correct?"

Answer: "Yes, sir, that is correct."

Question: "Referring again to these two checks, what was the purpose of the two checks?"

Answer: "As far as I know, it was expense on account."

Question: "What does that mean?"

Answer: "We sometimes give the men who work for us a check for expenses on account and we account for them later on. But of course Mr. Young hasn\'t accounted for anything."

Question: "By `on account\' you mean he was to account to you for services performed for you?"

Answer: "Yes, or moneys he had spent."

Do you remember giving that testimony?

A Yes, with one exception. I thought I had renegotiation in there.

Q I haven\'t completed. I just want to know if you remember that testimony.

A That\'s correct.

Q Did he ever render you an expense account?

A No, sir.

Q Were you asked these further questions, and did you give these further answers:

Question: "All moneys

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