Appeal from the District Court of the United States for the District of New Jersey; Herbert F. Goodrich, Judge.
Before MARIS, CLARK, and JONES, Circuit Judges.
In an indictment containing two counts Benjamin M. Perlstein and Harry Paul were charged jointly with Herbert R. Short and Michael Aluise in the District Court for the District of New Jersey with conspiracy to violate certain laws of the United States. The first count charged that from October 15, 1937, to April 16, 1940, all four defendants conspired to influence, intimidate and impede witnesses and to obstruct the due administration of justice in the District Court for the District of New Jersey and the grand jury thereof in violation of Section 135 of the Criminal Code, 18 U.S.C.A. § 241. The second count charged that from April 1, 1937, to April 16, 1940, all four defendants conspired to have in their possession an unregistered still, to carry on the business of a distiller without having given bond and to make and ferment mash fit for distillation in a distillery not duly authorized, in violation of the internal revenue laws, 26 U.S.C.A. Int. Rev. Code, §§ 2810, 2814 and 2819. At the close of the government's case the court directed a verdict on the second count of the indictment in favor of the defendant Paul. The jury found Short and Aluise guilty on both counts, Perlstein and Paul guilty on the first count and Perlstein not guilty on the second count. These appeals are by Perlstein and Paul.
The defendants allege that the court erred in refusing to grant a continuance. The indictment was filed April 16, 1940.Paul retained counsel May 6, 1940, and Perlstein consulted his counsel at an earlier date. Counsel received notice of trial June 3, 1940. They appeared in court on June 4th and were informed that the case would be tried in Camden on June 10th. Their application that the case be tried at a later date was denied. On June 10th they renewed their application for a continuance, assigning two grounds. The first was that they had not been given sufficient time to confer with each other and to prepare for trial. The answer to this contention is that the defendants knew of the charge for almost two months before trial and their counsel for at least a month before trial. This clearly was sufficient time under ordinary circumstances to prepare for trial. The fact that the defendants' counsel were almost continuously engaged in the trial and preparation of other cases during this period was a fact to be considered by the court in the exercise of its discretion but obviously was not necessarily a deciding factor. Otherwise the trial of criminal cases would have to be indefinitely postponed to suit the convenience of attorneys when the demand for their services exceeds the time at their disposal.Expedition in disposing of criminal cases is of the utmost importance, not only to the government but also to the accused. Postponements are not to be favored unless they are necessary to afford the accused a reasonable opportunity for the preparation of his defense. We think the present case presents no such circumstances of undue haste as would make the refusal of a continuance an abuse of discretion and that decisions such as Cooke v. United States, 267 U.S. 517, 45 S. Ct. 390, 69 L. Ed. 767; Franklin v. South Carolina, 218 U.S. 161, 30 S. Ct. 640, 54 L. Ed. 980; Rogers v. Peck, 199 U.S. 425, 26 S. Ct. 87, 50 L. Ed. 256; Hooker v. Los Angeles, 188 U.S. 314, 23 S. Ct. 395, 47 L. Ed. 487, 63 L.R.A. 471; Louisville & Nashville R. Co. v. Schmidt, 177 U.S. 230, 20 S. Ct. 620, 44 L. Ed. 747, and Roller v. Holly, 176 U.S. 398, 20 S. Ct. 410, 44 L. Ed. 520, cited by the defendants, are inapplicable.
The second ground relied upon for the continuance is that two witnesses, whose testimony is alleged to be of the greatest importance to Paul's defense, had left the jurisdiction May 27, 1940, were in California and would not return to New Jersey until September 29, 1940. Although the testimony of the absent witnesses is alleged to be vital to Paul's defense he made no request for the issuance of a subpoena to run to California, as authorized by Sec. 876, Rev. Stats., 28 U.S.C.A. § 654. It is significant that neither Paul nor his co-defendants mentioned these witnesses in their testimony, nor was any effort made upon cross-examination to elicit any information about them. Under the circumstances described we do not find that the court abused its discretion in refusing the continuance. Isaacs v. United States, 159 U.S. 487, 16 S. Ct. 51, 40 L. Ed. 229.
Motions to Quash the Indictment
The grand jury which returned the indictment was empanelled for the term of the District Court which commenced at Camden on the first Tuesday in December, 1939. The term ended on January 16, 1940, when a new term of the court began at Trenton. Sec. 96 Judicial Code, as amended, 28 U.S.C.A. § 176. By an order dated January 11, 1940, a District Judge continued the grand jury in office after the expiration of the term to enable it to complete all unfinished business. This action was taken pursuant to the authority of Sec. 284 of the Judicial Code, as amended, 28 U.S.C.A. § 421, the material part of which is set out in a footnote.*fn1 The grand jury found the indictment against the defendants on April 16, 1940. These facts appear in the record. The date when the grand jury began its investigation as to these defendants does not appear in the record. Before the trial began the defendants, with leave of court, withdrew their pleas of not guilty and each orally moved to quash the indictment on the ground that the grand jury was without power to find it.They alleged that the indictment was defective because it did not show that the grand jury's investigation was begun before the extension and they offered to prove that it was in fact begun after the extension of the grand jury's term of service in direct violation of the Act of Congress. The government contended that the defendants' objections could not be raised by motions to quash, and that, even if they could be, the motions should have been verified. The court denied the motions to quash and the requests for leave to offer testimony to substantiate the allegations of the motions. The denial of these motions is assigned as error.
The practice in criminal cases in the District Court for the District of New Jersey is determined by the law of New Jersey as it existed at the time of the passage of the Judiciary Act in 1789, unless later changed or modified by acts of Congress or by the decisions of the federal courts. United States v. Reid, 53 U.S. 361, 12 How. 361, 13 L. Ed. 1023; United States v. Murdock, 284 U.S. 141, 52 S. Ct. 63, 76 L. Ed. 210, 82 A.L.R. 1376. At common law in New Jersey indictments which were defective for errors extrinsic to the record might be attacked by motion to quash. State v. Nicholls, 5 N.J.L. 621; State v. Rickey, 9 N.J.L. 293. The same procedure has been followed in many federal courts.*fn2 Accordingly it cannot be said that motions to quash were improper to raise the question of the grand jury having exceeded its powers in this case.
There is, however, another objection to the motions to quash which were made in the present case. The court was called upon by the motions to determine factual matters not before it in the record and to enter into a trial of facts which had no bearing upon the guilt or innocence of the accused. Something more than a bare allegation by the accused is required to justify a court in permitting itself to be thus diverted from the merits of the accusation. The existence of valid grounds for quashing the indictment must be clearly shown. Accordingly it is held at common law in New Jersey as well as in the federal courts that a motion to quash must be verified, either by facts of record, by admissions of the government, or by affidavits as to the alleged irregularities. State v. Simon, 113 N.J.L. 521, 174 A. 867; United States v. Coolidge, Fed. Cas. No. 14,858; Colbeck v. United States, 7 Cir., 10 F.2d 401; Kastel v. United States, 2 Cir., 23 F.2d 156; United States v. Reilly, D.C., 30 F.2d 866. The defendants in the present case wholly failed to comply with this requisite. They made their motions to the trial judge orally and suggested that they could call the district attorney to testify as to the date when the investigation was begun by the grand jury. There was absolutely no basis laid in support of the allegation that the investigation was begun after the extension of the grand jury's term. The offer to crossexamine the district attorney indicated merely that the defendants desired to engage upon a fishing expedition. There were presented to the court in support of the motions neither record facts, admissions by the government nor affidavits by persons acquainted with the facts. Because of this lack of verification the motions to quash were properly denied.
Before trial the defendants filed a motion to compel the government to elect upon which count it would proceed, alleging that the counts were improperly joined in the indictment. This motion was refused. After the government's opening to the jury the defendants renewed their motion, which was again refused. At the close of the government's case the same issue was indirectly raised by motions to dismiss and to direct verdicts for all four defendants. The trial judge granted the motion to direct a verdict on the second count as to the defendant Paul and refused the other motions. The refusal of the trial judge to compel the government to elect the count upon which it would proceed is assigned as error.
The government relies upon Sec. 1024 Rev. Stats., 18 U.S.C.A. § 557, for the right to join the offenses in one indictment. That section provides: "When there are several charges against any person for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses, which may be properly joined, instead of having several indictments the whole may be joined in one indictment in separate counts; and if two or more indictments are found in such cases, the court may order them to be consolidated."
The government claims that the acts or transactions alleged in the two counts were connected together and that they were of the same class of crimes or offenses and might be properly joined. It is clear that the counts did charge two offenses "of the same class," for in each instance what was charged was not the substantive offense but the conspiracy to commit it. The gist of any conspiracy charge is not the objective of the conspiracy but the unlawful agreement or combination.Each of the conspiracies charged in the present indictment was made an offense by the same federal statute (Section 37 of the Criminal Code [18 U.S.C.A. § 88]) and is subject to the same punishment. However, even though the offenses charged are of the same class, the right to join them in one indictment is further restricted by the statute, which provides that the right exists only if they "may properly be joined". The ...