UNITED STATES DISTRICT COURT, MIDDLE DISTRICT OF PENNSYLVANIA
February 6, 1958
UNITED STATES of America
John P. GILBOY, Jr., William J. Green, Jr., Joseph Rochez, Frederick J. Raff, Robert W. Brown, John B. Kemmel, Herbert J. McGlinchey
The opinion of the court was delivered by: MURPHY
Defendants, indicted for conspiracy to defraud the United States, 18 U.S.C.A. § 371, move to dismiss the indictment; Fed.Rules Crim.Proc. Rule 12(b)(2), 18 U.S.C.A.;
Green, Rochez and Raff for a bill of particulars, Rule 7(f); Green, Raff and Brown for a severance, Rule 14; Green to transfer the place of trial, within the district, from Scranton to Harrisburg, cf. Rule 19; Gilboy, Green, Rochez and Raff for discovery and inspection, Rule 16; supplemented by Gilboy and Green with a subpoena duces tecum, Rule 17(c); Raff for a copy of his Grand Jury testimony, Rule 6(c); Rochez (with four supporting affidavits) to take testimony in support of his motion to dismiss. Rochez Bros. Inc., Specialty Steel Products Inc., Consolidated Construction Co. of New Jersey, each petitioned for return of their corporate records. The government moved to quash the subpoenas;
to impound the corporate records.
A Grand Jury duly impaneled
and sworn, inquiring into whether any violations of Federal Criminal laws occurred in the construction, by the Department of the United States Army and the Army Corps of Engineers, of the Tobyhanna Signal Depot, a military installation, in this district,
after many months of investigation, indicted all seven defendants,
charging them with conspiracy to defraud the United States,
described in great detail the modus operandi
and recited thirty-nine overt acts (two or more by each defendant, many of them in this district) to effect the object of a conspiracy.
The Federal Rules of Criminal Procedure designed to eliminate technicalities in criminal pleading and to be construed to secure simplicity in procedure (see Rule 2) provide in Rule 7(c), 'The indictment * * * shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. * * * It need not contain * * * any other matter not necessary to such statement.' See United States v. Debrow, 1953, 346 U.S. 374, at page 376, 74 S. Ct. 113, 98 L. Ed. 92; United States v. Achtner, 2 Cir., 1944, 144 F.2d 49, at page 51; United States v. Amorosa, 3 Cir., 1948, 167 F.2d 596, at page 598; United States v. Martinez, D.C.M.D.Pa.1947, 73 F.Supp. 403, at pages 406-407; Berger v. United States, 1935, 295 U.S. 78, at page 82, 55 S. Ct. 629, 79 L. Ed. 1314. United States v. Debrow, supra, cites with approval from Hagner v. United States, 1932, 285 U.S. 427, at page 431, 52 S. Ct. 417, 419, 76 L. Ed. 861, 'The true test of the sufficiency of an indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, 'and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.' Cochran and Sayre v. United States, 157 U.S. 286, 290, 15 S. Ct. 628, 630, 39 L. Ed. 704; Rosen v. United States, 161 U.S. 29, 34, 16 S. Ct. 434 (435), 480, 40 L. Ed. 606.' And see United States v. Crummer, 10 Cir., 1945, 151 F.2d 958, 962; United States v. Michener, 3 Cir., 1945, 152 F.2d 880, at page 886.
An indictment charging a conspiracy ordinarily is sufficient if it follows the language of the statute and contains sufficient description of the object of the conspiracy and a sufficient statement of an overt act to effect the object of the conspiracy. Madsen v. United States, 10 Cir., 1947, 165 F.2d 507, at page 510, and see United States v. Amorosa, supra, 167 F.2d at page 598;
Jelke v. United States, 7 Cir., 1918, 255 F. 264, at page 275, 276-279; Rudner v. United States, 6 Cir., 1922, 281 F. 516, at page 518; Hill v. United States, 4 Cir., 1930, 42 F.2d 812, at page 814; Caywood v. United States, 9 Cir., 1956, 232 F.2d 220, 224; Potter v. United States, 1894, 155 U.S. 438, at page 444, 15 S. Ct. 144, 39 L. Ed. 214. Every element of the offense being set forth in the earlier part of the indictment, there is no necessity of repeating it. Evans v. United States, 1894, 153 U.S. 584, at page 580, 14 S. Ct. 934, 38 L. Ed. 830.
While it is essential to the validity of an indictment that it shall advise the defendant of the nature and cause of the accusation (VI Amend. U.S. Constitution) and provide an ascertainable standard of guilt (V Amend. U.S. Constitution) and see Screws v. United States, 1945, 325 U.S. 91, at page 95, 65 S. Ct. 1031, 89 L. Ed. 1495, 'It is well settled that in an indictment for conspiring to commit an offense -- in which the conspiracy is the gist of the crime -- it is not necessary to allege with technical precision all the elements essential to the commission of the offense which is the object of the conspiracy, Williamson v. United States, 207 U.S. 425, 447, 28 S. Ct. 163, 52 L. Ed. 278, or to state such object with the detail which would be required in an indictment for committing the substantive offense, * * *. In charging such a conspiracy 'certainty to a common intent, sufficient to identify the offense which the defendants conspired to commit, is all that is necessary.' Williamson v. United States, supra, 207 U.S. 447, 28 S. Ct. 171 * * *.' Wong Tai v. United States, 1927, 273 U.S. 77, at page 81, 47 S. Ct. 300, at page 301, 71 L. Ed. 545; Thornton v. United States, 1926, 271 U.S. 414, at page 423, 46 S. Ct. 585, 70 L. Ed. 1013.
When the object of the conspiracy is the accomplishment of an unlawful act, the means by which the unlawful act is to be accomplished need not be set forth, Pettibone v. United States, 1893, 148 U.S. 197, at page 203, 13 S. Ct. 542, 37 L. Ed. 419; Rose v. United States, 9 Cir., 1945, 149 F.2d 755, at page 758, nor are particularity of time, place, circumstances, causes, etc., in stating the manner and means of effecting the object of a conspiracy essential to an indictment. Glasser v. United States, 1942, 315 U.S. 60, at page 66, 62 S. Ct. 457, 86 L. Ed. 680. It is not necessary to set forth matters of evidence. Bannon and Mulkey v. United States, 1895, 156 U.S. 464, at page 469, 15 S. Ct. 467, 39 L. Ed. 494. As to pleading an overt act, Dealy v. United States, 1894, 152 U.S. 539, at page 543, 14 S. Ct. 680, 38 L. Ed. 545; Goldberg v. United States, 5 Cir., 1924, 297 F. 98, at page 101, the indictment is sufficient if one overt act is well pleaded. Onderdonk v. United States, 5 Cir., 1926, 16 F.2d 116; De Lacey v. United States, 9 Cir., 1918, 249 F. 625, 628, L.R.A.1918E, 1011. It need not state how the overt act tended to further the conspiracy. United States v. Westbrook, supra, 114 F.Supp. at page 199; Marron v. United States, 9 Cir., 1925, 8 F.2d 251, 258. Nor is it necessary to allege which of the various ways the government might be defrauded was in the minds of the conspirators, nor that they all were. Crawford v. United States, 1909, 212 U.S. 183, at pages 191-192, 29 S. Ct. 260, 53 L. Ed. 465.
18 U.S.C.A. § 371 provides, 'If two or more persons conspire * * * to defraud the United States * * * in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined * * * or imprisoned * * * or both. * * *'
'A conspiracy is a partnership in crime.' Pinkerton v. United States, 1946, 328 U.S. 640, at page 644, 66 S. Ct. 1180, at page 1182, 90 L. Ed. 1489. 'An agreement to commit a crime or to engage in criminal activities attended by one or more overt acts.' Duke v. United States, 1956, 5 Cir., 233 F.2d 897, at page 900. And see United States v. Perlstein, 3 Cir., 1942, 126 F.2d 789, at page 794. '* * * a combination of two or more persons, by concerted action, to accomplish a criminal or unlawful purpose, or some purpose not in itself criminal or unlawful, by criminal or unlawful means * * *.' Pettibone v. United States, supra, 148 U.S. at page 203, 13 S. Ct. at page 545; Duplex Printing Press Co. v. Deering, 1921, 254 U.S. 443, at page 465, 41 S. Ct. 172, 65 L. Ed. 349, 16 A.L.R. 196; Marino v. United States, 9 Cir., 1937, 91 F.2d 691, at page 693, 113 A.L.R. 975.
A conspiracy is constituted by an agreement, i.e., the result thereof, not the agreement itself. It need not be explicit or in writing. It may be implicit. 'Not the form or manner in which the understanding is made, but the fact of its existence and the further one of making it effective by overt conduct are the crucial matters.' Direct Sales Co. v. United States, 1943, 319 U.S. 703, at page 714, 63 S. Ct. 1265, at page 1270, 87 L. Ed. 1674, and see Wright v. United States, 5 Cir., 1901, 108 F. 805, at pages 808, 810; United States v. Armour & Co., 10 Cir., 1943, 137 F.2d 269, at page 270; United States v. Anderson, 7 Cir., 1939, 101 F.2d 325, at page 330. It is not essential that the precise person, time and place or precise methods be agreed upon. Williamson v. United States, supra, 207 U.S. at page 449, 28 S. Ct. at page 171; Rose v. United States, supra, 149 F.2d at page 758.
Evidence to prove it need not be direct; it may be and usually is circumstantial. American Tobacco Co. v. United States, 1946, 328 U.S. 781, at page 809, 66 S. Ct. 1125, 90 L. Ed. 1575.
It is not necessary that all defendants come into it at one time or that they should all know each other, the complete and exact scope of the conspiracy or all of its ramifications, Marino v. United States, supra, 91 F.2d at page 696; Blumenthal v. United States, 9 Cir., 1946, 158 F.2d 883, at page 888; Duke v. United States, supra, 233 F.2d at pages 900-901; United States v. Weinberg, D.C.M.D.Pa.1955, 129 F.Supp. 514, at page 524, affirmed 3 Cir., 1955, 226 F.2d 161; United States v. Cohen, 3 Cir., 1952, 197 F.2d 26, at pages 28, 29; United States v. Perlstein, supra, 126 F.2d 789; United States v. Harrison, 3 Cir., 1941, 121 F.2d 930, at page 933; Lefco v. United States, 3 Cir., 1934, 74 F.2d 66, at page 68; Poliafico v. United States, 6 Cir., 1956, 237 F.2d 97, at pages 103, 106; that all contribute alike either to the making of the scheme or its fulfillment. It is enough if at some time during the continuance of the conspiracy there is a common design and purpose applicable to all. Wellman v. United States, 6 Cir., 1955, 227 F.2d 757, at page 768. When men enter into an agreement for an unlawful end they become ad hoc agents for one another. What one does pursuant to their common objective all do. Van Riper v. United States, 2 Cir., 1926, 13 F.2d 961; United States v. Harding, 1936, 65 App.D.C. 161, 81 F.2d 563, 567; United States v. U.S. Gypsum Co., 1948, 333 U.S. 364, at page 393, 68 S. Ct. 525, 92 L. Ed. 746; cf. Delli Paoli v. United States, 1957, 352 U.S. 232, at page 237, 77 S. Ct. 294, 1 L. Ed. 2d 278; Delaney v. United States, 1924, 263 U.S. 586, 44 S. Ct. 206, 68 L. Ed. 462. 'The fact that certain types of fraudulent practices occurred during one period and other types at different periods is without significance.' Nye & Nissen v. United States, 1949, 336 U.S. 613, at page 617, 69 S. Ct. 766, at page 769, 93 L. Ed. 919. It may be that the success of one venture depends upon the success of the whole. United States v. Cohen, supra, 197 F.2d at page 28, and see Blumenthal v. United States, 1947, 332 U.S. 539, at page 556, 68 S. Ct. 248, 92 L. Ed. 154.
Once a conspiracy is clearly established, slight evidence may be sufficient to connect a defendant with it. United States v. Cohen, supra, 197 F.2d at page 29. Once proved the conspiracy must be deemed to continue until the contrary is established. United States v. Perlstein, supra, 126 F.2d at page 798; Hyde v. United States, 1912, 225 U.S. 347, 367, 370, 32 S. Ct. 793, 56 L. Ed. 1114. As to withdrawal, see Pinkerton v. United States, supra, 328 U.S. at page 646, 66 S. Ct. at page 1183, 90 L. Ed. 1489; United States v. Kissel, 1910, 218 U.S. 601, at page 606, 31 S. Ct. 124, 54 L. Ed. 1168; Marino v. United States, supra, 91 F.2d at page 696; United States v. Cohen, supra, 197 F.2d at page 29.
Those having no knowledge of the conspiracy are not conspirators. United States v. Falcone, 1940, 311 U.S. 205, 210, 61 S. Ct. 204, 85 L. Ed. 128; cf. Direct Sales Co. v. United States, supra. 319 U.S. at pages 711, 713, 63 S. Ct. at pages 1269, 1270. An intention to become a party must be predicated upon some affirmative action. United States v. Harrison, supra, 121 F.2d at page 933. If one has knowledge of the conspiracy and with that knowledge intentionally does some act or thing in furtherance thereof he may be held liable. Duke v. United States, supra, 233 F.2d at page 901; cf. Interstate Circuit Inc., v. United States, 1939, 306 U.S. 208, at page 220, 59 S. Ct. 467, 83 L. Ed. 610; Martin v. United States, 10 Cir., 1938, 100 F.2d 490, at page 495, and cf. Canella v. United States, 9 Cir., 1946, 157 F.2d 470. If so, he adopts as his own the past and future acts of all his conspirators. United States v. Anderson, supra, 101 F.2d at pages 332, 333.
The purpose of § 371 is to protect the government from impositions through conspiracy to cheat and defraud in respect of its rights and privileges, operations and functions, as well as in respect of its property. It prohibits a conspiracy "to defraud the United States in any manner or for any purpose". United States v. Keitel, 1908, 211 U.S. 370, at page 393, 29 S. Ct. 123, at page 130, 53 L. Ed. 230; Heald v. United States, 10 Cir., 1949, 175 F.2d 878, at page 880; United States v. Weinberg, supra, 129 F.Supp. at pages 523, 524; Id., 226 F.2d at page 167, and cases cited. 'The indictment charges that the United States was defrauded by depriving it of its lawful governmental functions by dishonest means; it is settled that this is a 'defrauding' within the meaning of the * * * Criminal Code. Hammerschmidt v. United States, 265 U.S. 182 (at pages 185, 188), 44 S. Ct. 511, 68 L. Ed. 968.' Glasser v. United States, supra, 315 U.S. at page 66, 62 S. Ct. at page 463. See Nye & Nissen v. United States, supra, 336 U.S. at page 617, 69 S. Ct. at page 768; Crawford v. United States, supra, 212 U.S. at pages 191, 192, 29 S. Ct. at pages 262, 263; United States v. Gilliland, 1941, 312 U.S. 86, at page 92, 61 S. Ct. 518, 85 L. Ed. 598.
As to the distinction between a charge of conspiracy and the object thereof, see United States v. Anthony, D.C.M.D.Pa.1956, 145 F.Supp. 323, at page 329, and cases cited. Neither a multiplicity of objects mor of means convert a single conspiracy into more than one offense. 'The conspiracy is the crime, and that is one however diverse its objects.' Frohwerk v. United States, supra, 249 U.S. at page 210, 39 S. Ct. at page 252, 63 L. Ed. 561. A single agreement to commit an offense does not become several conspiracies because it continues over a period of time. Braverman v. United States, 1942, 317 U.S. 49, at page 52, 63 S. Ct. 99, 87 L. Ed. 23.
One overt act by one of the conspirators to effect the object of the conspiracy is sufficient. Marino v. United States, supra, 91 F.2d at pages 694-695; Braverman v. United States, supra, 317 U.S. at page 53, 63 S. Ct. at page 101. It then becomes the act of all. Marron v. United States, supra, 8 F.2d at page 257.
If the purpose is unlawful it may not be carried out even by means that otherwise would be legal. Duplex Printing Press Co. v. Deering, supra, 254 U.S. at page 465, 41 S. Ct. at page 176. It therefore need not itself be a crime; still less the very crime that is the object of the conspiracy. United States v. Holte, 1915, 236 U.S. 140, at page 144, 35 S. Ct. 271, 59 L. Ed. 504; United States v. Rabinowich, 1915, 238 U.S. 78, at page 86, 35 S. Ct. 682, 59 L. Ed. 1211. It may be a wholly innocent act. American Tobacco Co. v. United States, supra, 328 U.S. at page 809, 66 S. Ct. at page 1138, 90 L. Ed. 1575. An innocent act by a third party if caused by the previous act or conduct on the part of one of the conspirators would be enough. United States v. Johnson, 3 Cir., 1947, 165 F.2d 42, at page 45; Hyde v. United States, 1912, 225 U.S. 347, 32 S. Ct. 793, 56 L. Ed. 1114. A particular defendant need not commit an overt act within the district. Bannon and Mulkey v. United States, 1895, 156 U.S. 464, at page 468, 15 S. Ct. 467, 39 L. Ed. 494. An overt act of one conspirator may be the act of all without any new agreements specifically directed to that act. Pinkerton v. United States, supra, 328 U.S. at pages 646-647, 66 S. Ct. at pages 1183-1184. It must however be done in furtherance of the conspiracy. Rose v. United States, supra, 149 F.2d at page 758; cf. Canella v. United States, supra, 157 F.2d 470, at page 476. The object need not be attained. Williamson v. United States, supra, 207 U.S. at page 447, 28 S. Ct. at page 170, 52 L. Ed. 278.
Defendants rely heavily upon Kotteakos v. United States, 1946, 328 U.S. 750, 66 S. Ct. 1239, 90 L. Ed. 1557, and see United States v. Johnson, D.C.M.D.Pa.1946, 65 F.Supp. 42; United States v. Johnson, D.C.M.D.Pa.1946, 65 F.Supp. 46, and see Canella v. United States, supra, 157 F.2d at page 470, but see United States v. Johnson, supra, 165 F.2d 42, at page 45, as to a continuing general conspiracy, and see and cf. Id. at page 47. In Kotteakos and in each of the district court opinions in United States v. Johnson, supra, there was a concession by the government not here present. As to Kotteakos, see Blumenthal v. United States, supra, 332 U.S. at pages 547, 556, 557, 558, 559, 68 S. Ct. at pages 251, 256, 257; Nye & Nissen v. United States, supra, 336 U.S. 616-617, 69 S. Ct. 768; Direct Sales Co. v. United States, supra, 319 U.S. 703, 63 S. Ct. 1265, 87 L. Ed. 1674; Poliafico v. United States, supra, 237 F.2d at page 105; Lefco v. United States, supra, 74 F.2d at page 68; United States v. Cohen, 2 Cir., 1944, 145 F.2d 82, at page 89; United States v. O'Connell, 2 Cir., 1948, 165 F.2d 697, at page 699; United States v. Griffin, 3 Cir., 1949, 176 F.2d 727, 732, and cf. Berger v. United States, supra, 295 U.S. at page 82, 55 S. Ct. at page 630, 79 L. Ed. 1314. And see United States v. Patten, supra, 226 U.S. at page 544, 33 S. Ct. at page 145, 57 L. Ed. 333, '* * * the character and effect of a conspiracy is not to be judged by dismembering it and viewing its separate parts, but only by looking at it as a whole.' Duke v. United States, supra, 233 F.2d at page 899, suggests that '* * * where, as here, it is claimed that there was more than one conspiracy charged, the claim cannot be tested by a reading of the indictment, its testing must await the conclusion of the evidence.' We cannot speculate on whether the government can sustain the burden of proving the allegations. Id., and see Frohwerk v. United States, supra, 249 U.S. at page 209, 39 S. Ct. 251.
For the purpose of disposing of a motion to dismiss we are limited to the face of the indictment. United States v. Mertine, D.C.D.N.J., 64 F.Supp. 792, 794; United States v. Westbrook, supra, 114 F.Supp. at page 199, and cf. United States v. Lattimore, 1954, 94 U.S.App.D.C. 268, 215 F.2d 847. We must assume all well plead allegations to be true, United States v. Frankfort Distilleries, Inc., 1945, 324 U.S. 293, at page 296, 65 S. Ct. 661, 89 L. Ed. 951; United States v. Jones, 5 Cir., 1953, 207 F.2d 785, 787, and view the indictment as a whole. Dunbar v. United States, 1895, 156 U.S. 185, 190, 15 S. Ct. 325, 39 L. Ed. 390; United States v. Crummer, supra, 151 F.2d at page 962; United States v. Armour & Co., supra, 137 F.2d at page 270; McCoy v. United States, 9 Cir., 1948, 169 F.2d 776, at page 780. Applying those tests in the light of applicable law, we find that the indictment sufficiently charges all seven defendants with a violation of § 371, describes the nature of the defrauding, the means by which it was accomplished, and alleges a series of overt acts by the defendants to effect the object thereof. See and cf. May v. United States, 1949, 84 U.S.App.D.C. 233, 175 F.2d 994, at pages 998, 999, 1002, 1004, certiorari denied 338 U.S. 830, 70 S. Ct. 58, 94 L. Ed. 505.
Three defendants direct ninety-seven inquiries and sub-divisions seeking particulars: Raff, 9 as to Pars. 30 to 32, 34 to 37 incl., overt acts, 31 and 34; Green, 49; Rochez, 28, to Par. 23(a), (b), (c), (d), (e), (f), (g); Rochez, 11, to Pars. 24 to 26, 29 to 36 incl.
In effect they ask complete discovery of the government's entire case, its supporting proof, evidentiary matter -- who, when, what, where, manner and extent, circumstances. Rule 7(f) provides: 'The court for cause may direct the filing of a bill of particulars * * *' The granting of such a bill is a matter for the court's discretion. Wong Tai v. United States, supra, 273 U.S. at page 82, 47 S. Ct. at page 302, 71 L. Ed. 545; United States v. Kafes, 3 Cir., 1954, 214 F.2d 887, at page 890. "The purpose * * * is to enable the accused to avoid surprise, and to * * * prepare for trial." United States v. Neff, 3 Cir., 1954, 212 F.2d 297, at page 310,
and see United States v. Kelly, D.C.Mo.1950, 10 F.R.D. 191
The present indictment not only meets the test of Hagner v. United States, supra, 285 U.S. 427, 52 S. Ct. 417, 76 L. Ed. 861, and that of Costello v. United States, 1956, 350 U.S. 359, at page 363, 76 S. Ct. 406, 100 L. Ed. 397, and see Lawn v. United States (Giglio v. United States), 78 S. Ct. 311, 318, 'An indictment returned by a legally constituted and unbiased grand jury * * *, if valid on its face, is enough to call for trial of the charge on the merits. The V Amendment requires nothing more'; but is unusually complete and specific,
containing an extensive and intensive account of the modus operandi, and spells out thirty-nine overt acts. Defendants are in our judgment sufficiently informed as to the nature of the charge to prepare their defense and to avoid surprise at the trial, as that term is properly understood (see United States v. Greater Kansas City Retail Coal Merchants Ass'n, D.C.W.D.Mo.1949, 85 F.Supp. 503, at page 513; Nye & Nissen v. United States, 9 Cir., 168 F.2d 846, at page 851), and to later plead double jeopardy.
Denial of particulars such as were requested was approved in Wong Tai v. United States, supra, 273 U.S. at page 82, 47 S. Ct. at page 302; Nye & Nissen v. United States, supra, 168 F.2d at page 851, and see Burton v. United States, 202 U.S. 344, at page 372, 26 S. Ct. 688, 50 L. Ed. 1057; Fredrick v. United States, 9 Cir., 1947, 163 F.2d 536, at page 545; Kansas City Star Co. v. United States, 8 Cir., 1957, 240 F.2d 643, 649-650; United States v. Wilson, D.C.Mo.1947, 72 F.Supp. 812, affirmed Klein v. United States, 8 Cir., 1949, 176 F.2d 184; United States v. Greater Kansas City Retail Coal Merchants Ass'n, supra, 85 F.Supp. at pages 508, 509, 512; United States v. Brandt, D.C., 139 F.Supp. 367, at page 369; United States v. Shindler, D.C.S.D.N.Y.1952, 13 F.R. D. 292; Kempe v. United States, 8 Cir., 1945, 151 F.2d 680, 685; United States v. Doyle, 7 Cir., 1953, 234 F.2d 788. As to earlier cases, e.g., see Singer v. United States, 3 Cir., 1932, 58 F.2d 74; see and cf. United States v. Caserta, 3 Cir., 1952, 199 F.,2d 905, at page 910; United States v. Monjar, 3 Cir., 1944, 147 F.2d 916, at page 921; United States v. Kelly, Supra, 10 F.R.D. at page 193.
As to the Statute of Limitations, see Grunewald v. United States, 1957, 353 U.S. 391, at page 396, 77 S. Ct. 963, at page 970, 1 L. Ed. 2d 931, footnote 9, 'On September 1, 1954, the statute of limitations was amended to provide for a five-year time limitation period, 68 Stat. 1145, 18 U.S.C. (Supp. III) § 3282 * * *. The amending statute was by its terms made applicable to offenses not barred on its effective date, that is, September 1, 1954 * * *.' And see Id., 353 U.S. at pages 396, 397, 77 S. Ct. at page 970, '* * * where substantiation of a conspiracy charge requires proof of an overt act, it must be shown both that the conspiracy still subsisted within the * * * (period) prior to the return of the indictment, and that at least one overt act in furtherance of the conspiratorial agreement was performed within that period.' And see United States v. Kissel, 1910, 218 U.S. 601, at page 607, 31 S. Ct. 124, 54 L. Ed. 1168. The date of the offense charged in the present indictment was from on or about January 1, 1951, up to and including the date of the indictment, December 14, 1956. An overt act as of August 19, 1955, is pleaded. United States v. Kurzenknabe, D.C.N.J.1955, 136 F.Supp. 17, at page 23; Moyer v. Brownell, D.C.E.D.Pa.1956, 137 F.Supp. 594, at page 607; United States v. Waggener, D.C.D.Colo.1956, 138 F.Supp. 107, 108.
As to jurisdiction and venue, see 18 U.S.C.A. § 3237; Brown v. Elliott, 1912, 225 U.S. 392, 32 S. Ct. 812, 56 L. Ed. 1136; Hyde v. United States, supra, 225 U.S. 347, 32 S. Ct. 793, 56 L. Ed. 1114. Venue may be laid in any district in which any act in furtherance of the conspiracy is committed by any of the conspirators. United States v. Cohen, supra, 197 F.2d at page 28; Krogmann v. United States, 6 Cir., 1955, 225 F.2d 220, at page 227; United States v. Brandt, D.C.N.D.Ohio 1955, 139 F.Supp. 367, 369; United States ex rel. Kranz v. Humphrey, 3 Cir., 1949, 174 F.2d 741, at page 742. As to cases where a member of Congress is a defendant, see Burton v. United States, 1905, 196 U.S. 283, 25 S. Ct. 243, 49 L. Ed. 482; Burton v. United States, 1906, 202 U.S. 344, 26 S. Ct. 688, 50 L. Ed. 1057; Williamson v. United States, 1908, 207 U.S. 425, 28 S. Ct. 163, 52 L. Ed. 278; United States v. Quinn, D.C.E.D.N.Y.1953, 111 F.Supp. 870; Id., D.C., 116 F.Supp. 802; May v. United States, supra, 175 F.2d 994.
Defendant Gilboy's unsupported allegations as to publicity surrounding the Grand Jury inquiry are without merit in fact or law. See and cf. United States v. Nunan, 2 Cir., 1956, 236 F.2d 576, at page 593.
Duplicity in criminal pleading is the joinder of two or more separate and distinct offenses in the same count, not the charging of a single offense involving multiple objects. United States v. Crummer, supra, 151 F.2d at page 963; Frankfort Distilleries, Inc. v. United States, 10 Cir., 1944, 144 F.2d 824, at page 832. The indictment is not duplicitous. Frohwerk v. United States, supra, 249 U.S. at page 210, 39 S. Ct. at page 252, 63 L. Ed. 561; Joplin Mercantile Co. v. United States, 1915, 236 U.S. 531, at page 548, 35 S. Ct. 291, 59 L. Ed. 705.
As to severance, see Fed.Rules Crim.Proc., Rule 14; Stilson v. United States, 1919, 250 U.S. 583, at page 585, 40 S. Ct. 28, 63 L. Ed. 1114; Dauer v. United States, 10 Cir., 1951, 189 F.2d 343, 344; United States v. Cohen, 2 Cir., 1941, 124 F.2d 164-166; United States v. Cohen, 2 Cir., 1944, 145 F.2d 82, at page 95. In a conspiracy case a severance should not be granted except for strong and cogent reasons. United States v. Brandt, supra, 139 F.Supp. at page 369; a strong showing of prejudice, United States v. Bowman, D.C.D.C.1956, 137 F.Supp. 385, 386, and see Metcalf v. United States, 6 Cir., 1952, 195 F.2d 213, at page 217; Poliafico v. United States, supra, 237 F.2d at page 112; Duke v. United States, supra, 233 F.2d at page 900; Hall v. United States, 1948, 83 U.S.App.D.C. 166, 168 F.2d 161, 163, 4 A.L.R.2d 1193. We find no meritorious reason for granting such motion in this case.
Only one defendant requested a transfer of trial. See Rule 19. There are no divisions in this district, 28 U.S.C.A. § 118(b). Taking into consideration the physical facilities, i.e., the court room, library, availability of records, and the convenience of all parties concerned, such a request must be denied.
Since the scope of our examination is restricted to the indictment itself, we do not stop to compare the indictment to No. 12879 in which defendants Raff and Gilboy are charged with violation of 18 U.S.C.A. §§ 201, 202 (Bribery) and 371. See Thompson v. United States, 9 Cir., 1913, 202 F. 401, at page 404, 47 L.R.A.,N.S., 206; Haas v. Henkel, 1910, 216 U.S. 462, at page 474, 30 S. Ct. 249, 54 L. Ed. 569 (two indictments for the same offense). As to possible variance or conflict, see Pearlman v. United States, 9 Cir., 1927, 20 F.2d 113, 114. As to variety of statements, see Dealy v. United States, supra, 152 U.S. at page 542, 14 S. Ct. at page 681, 38 L. Ed. 545; United States v. Maryland State Licensed Beverage Ass'n Inc., 4 Cir., 1957, 240 F.2d 420, 421. 'While a prosecution for one conspiracy is no bar to a prosecution for participation in another, a single conspiracy cannot be split up for the purpose of prosecution.' United States v. Cohen, supra, 197 F.2d at page 29, 'It is only an identity of offenses which is fatal.' Pinkerton v. United States, supra, 328 U.S. at page 644, 66 S. Ct. at page 1182, 90 L. Ed. 1489, and see United States v. Wills, 3 Cir., 1929, 36 F.2d 855.
Five days after the hearings in 'In the Matter of John Doe' started,
the Grand Jury on April 9, 1956, requested and received permission to make an 'on the spot inspection of the Depot'.
They were instructed that they could ask questions of anyone consistent with their obligation as to the secrecy of their proceedings, suggesting the wisdom of calling any possible witnesses to appear before them in the Grand Jury room. The United States Marshal provided transportation and, a discreet distance away, saw that they were not molested. Before they began their investigation the Grand Jurors by use of a scale model or topographical map were given directions by an officer at the Depot as to building layouts and location. Rochez' counsel suggests the name of a newspaper reporter who would, he avers, state that he and others heard or overheard those directions, and requests a hearing to prove that 'fact'.
The government objects, citing United States v. Smyth, D.C.Cal.1952, 104 F.Supp. 283, and see United States v. Perlstein, 3 Cir., 1941, 120 F.2d 276, at page 279; United States v. Holmes, 3 Cir., 1948, 168 F.2d 888, at page 890; United States v. Johnson, 319 U.S. 503, at page 513, 63 S. Ct. 1233, 87 L. Ed. 1546; Costello v. United States, supra, 350 U.S. at page 363, 76 S. Ct. at page 408. There is no transcript of what actually occurred
A hearsay assertion inviting inquiry does not overcome the strong presumption of regularity attending Grand Jury proceedings. United States v. Nunan, supra, 236 F.2d at page 594.
The fact, if true, has no bearing upon the guilt or innocence of the accused.
Receiving directions for starting their tour of investigation in no way differed from inquiring at a railroad ticket office as to how to get to the point where an investigation was to take place, or receiving instructions in open court as to the manner of conducting their investigation
Defendant Rochez presents a newspaper report that daily copies of Grand Jury testimony were furnished by the United States Attorney to the Federal Bureau of Investigation; that the Intelligence Division of the Internal Revenue Service was watching developments and would seek permission to review such testimony. If true, that would not support a motion to dismiss an indictment. See and cf. United States v. American Tobacco Co., D.C.W.D.Ky.1910, 177 F. 774, at page 777, and see Proceedings, Institute Federal Rules of Criminal Procedure, New York University School of Law, p. 180; United States v. Smyth, supra, 104 F.Supp. at page 304; In re Grand Jury proceedings, D.C.E.D.Pa.1933, 4 F.Supp. 283, 284, 285; United States v. United States District Court for Southern Dist. of W. Va., 4 Cir., 1956, 238 F.2d 713; In re April 1956 Term Grand Jury, 7 Cir., 1956, 239 F.2d 263, at page 272.
'* * * the giving of testimony and * * * attendance upon court or grand jury in order to testify are public duties which every person * * * is bound to perform upon being properly summoned * * *. The duty, * * * is subject to mitigation in exceptional circumstances; there is a constitutional exemption from being compelled in any criminal case to be a witness against oneself, * * * (see Brown v. Walker, 161 U.S. 591, 16 S. Ct. 644, 40 L. Ed. 819); some confidential matters are shielded from considerations of policy, and perhaps in other cases for special reasons a witness may be excused from telling all that he knows. But, aside from exceptions and qualifications -- and none such is asserted in the present case -- the witness is bound not only to attend but to tell what he knows in answer to questions framed for the purpose of bringing out the truth of the matter under inquiry.' Blair v. United States, supra, 250 U.S. at pages 281, 282, 39 S. Ct. at page 471; United States v. Neff, supra, 212 F.2d at page 302. A grand jury that begins an investigation '* * * opens up all the ramifications of the particular field of inquiry * * *' United States v. Neff, Id. at page 301; United States v. Johnson, supra, 319 U.S. at page 512, 63 S. Ct. at page 1237. A witness '* * * is not entitled to set limits to the investigation that the grand jury may conduct * * * examination of witnesses * * * need not be preceded by a formal charge against a particular individual. Hale v. Henkel, 201 U.S. 43, 65, 26 S. Ct. 370, 50 L. Ed. 652 * * * a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime. * * * the identity of the offender, and the precise nature of the offense, if there be one, normally are developed at the conclusion of the grand jury's labors, not at the beginning. Hendricks v. United States, 223 U.S. 178, 184, 32 S. Ct. 313, 56 L. Ed. 394.' Blair v. United States, 250 U.S. at page 282, 39 S. Ct. at page 471; United States v. Neff, 212 F.2d at pages 301, 302; Cobbledick v. United States, 1940, 309 U.S. 323, at page 327, 60 S. Ct. 540, 84 L. Ed. 783; Frisbie v. United States, 1895, 157 U.S. 160, 163, 15 S. Ct. 586, 39 L. Ed. 657; Hale v. Henkel, 201 U.S. 63, 65, 26 S. Ct. 374, 375, and see Post v. United States, 1896, 161 U.S. 583, 587, 16 S. Ct. 611, 40 L. Ed. 816. It was not for the prosecuting attorney to say what the scope of the investigation was. See Rogers v. United States, 10 Cir., 1950, 179 F.2d 559, at page 563; Id., 340 U.S. 367, at page 380, 71 S. Ct. 438, 95 L. Ed. 344; Hooley v. United States, 1 Cir., 1954, 209 F.2d 234, 235.
The V Amendment declares 'No person * * * shall be compelled in any criminal case to be a witness against himself * * *.' See discussion in Twining v. State of New Jersey, 1908, 211 U.S. 78, at pages 91-113, 29 S. Ct. 14, 53 L. Ed. 97. An investigation by a grand jury is a criminal case. Counselman v. Hitchcock, 1892, 142 U.S. 547, at pages 562, 563, 12 S. Ct. 195, 35 L. Ed. 1110.
The government is not obliged to refrain from asking questions, the answers to which may be incriminating. United States v. Neff, supra, 212 F.2d at page 312. 'The amendment speaks of compulsion. It does not preclude a witness from testifying voluntarily in matters which may incriminate him. If, * * * he desires the protection of the privilege, he must claim it or he will not be considered to have been 'compelled' within the meaning of the Amendment.' United States v. Monia, 1943, 317 U.S. 424, at page 427, 63 S. Ct. 409, 410, 87 L. Ed. 376, and see 317 U.S. at pages 432, 433, 63 S. Ct. at page 413; United States ex rel. Vajtauer v. Commissioner of Immigration, 1927, 273 U.S. 103, 113, 47 S. Ct. 302, 71 L. Ed. 560. 'The privilege 'is deemed waived unless invoked.' United States v. Murdock, 1931, 284 U.S. 141, 148, 52 S. Ct. 63, 64, 76 L. Ed. 210.' Rogers v. United States, 1951, 340 U.S. 367, at page 371, 71 S. Ct. 438, 440, 95 L. Ed. 344; Brown v. Walker, 1896, 161 U.S. 591, at page 597, 16 S. Ct. 644, 40 L. Ed. 819.
As to the distinction between the privilege of any witness not to give incriminating answers and the right of the accused not to take the stand in a criminal prosecution against him, see United States v. Housing Foundation of America, Inc., 3 Cir., 1949, 176 F.2d 665, 666. In a trial a person charged with the commission of an offense 'shall, at his own request, but not otherwise, be a competent witness. And his failure to make such request shall not create any presumption against him.' 18 U.S.C.A. § 3481. United States v. Scully, 2 Cir., 1955, 225 F.2d 113, 115, 116, certiorari denied 350 U.S. 897, 76 S. Ct. 156, 100 L. Ed. 788, holds that the principle which underlies the rule that a defendant in a criminal trial may refrain even from being sworn as a witness has no application to proceedings before a Grand Jury. And see United States v. Benjamin, 2 Cir., 1941, 120 F.2d 521, 522; Wigmore on Evidence, 3d Ed., § 2268; Mulloney v. United States, supra, 79 F.2d at page 576; Stanley v. United States, 6 Cir., 1957, 245 F.2d 427, at page 434; Marcello v. United States, 5 Cir., 1952, 196 F.2d 437, at page 441; cf. United States v. Miller, D.C.E.D.Pa.1948, 80 F.Supp. 979, at page 981; United States v. Lawn, D.C.S.D.N.Y.1953, 115 F.Supp. 674, 677; United States v. Edgerton, D.C.D.Mont.1897, 80 F. 374, 375.
The mere possibility that the witness may later be indicted furnishes no basis for requiring that he be advised of his rights under the V Amendment when summoned to give testimony before a Grand Jury. United States V. Scully, supra, 225 F.2d at page 116;
United States v. Parker, 7 Cir., 1957, 244 F.2d 943. He was subject to call as a witness and only had the right of any witness to decline to give answers when interrogated, which might tend to incriminate him. United States v. Benjamin, supra, 120 F.2d at page 522; see Wigmore Id. § 2268. The privilege is '* * * an option of refusal, not a prohibition of inquiry.'
While the government may not practice deception, fraud or duress upon an accused to obtain evidence, it is not required to advise him of his rights as to self-incrimination. Wilson v. United States, 1896, 162 U.S. 613, 624, 16 S. Ct. 895, 40 L. Ed. 1090; Powers v. United States, 1912, 223 U.S. 303, at pages 313, 314, 32 S. Ct. 281, 56 L. Ed. 448; Thompson v. United States, 7 Cir., 1926, 10 F.2d 781, at page 784; Knoell v. United States, 3 Cir., 1917, 239 F. 16, at page 21; Mattes v. United States, 3 Cir., 1935, 79 F.2d 127, 128; Nicola v. United States, 1934, 3 Cir., 72 F.2d 780; Pulford v. United States, 6 Cir., 1946, 155 F.2d 944, at page 947. The question is not and should not be subject to any fixed rule. Wigmore, Id. § 2269. The relevant inquiry must always be whether the testimony was freely given, all things considered. United States v. Block, 2 Cir., 1937, 88 F.2d 618, at pages 620, 621; United States v. Neff, 212 F.2d at page 312; United States v. Miller, supra, 80 F.Supp. at page 982; Cf. United States v. Johnson, D.C.M.D.Pa.1947, 76 F.Supp. 538, at pages 540, 541. In the present case there is nothing to indicate the testimony was not freely given. Rochez in fact signed a waiver.
The right to discovery in a criminal case before 1946 was doubtful, see Notes Advisory Committee, Rule 16; United States v. Rosenfeld, 2 Cir., 1932, 57 F.2d 74, and, if allowed, was within a restricted area, Carpenter v. Winn, 1911, 221 U.S. 533, 31 S. Ct. 683, 55 L. Ed. 842. A defendant was allowed to examine documents taken from him. United States v. B. Goedde & Co., D.C.E.D.Ill.1941, 40 F.Supp. 523, 534. Under the new civil rules the scope is much broader. The intended scope of Rules 16 and 17(c) was discussed at the Institute Proceedings, supra, at pages 166-168. And see Bowman Dairy Co. v. United States, 1951, 341 U.S. 214, 71 S. Ct. 675, 678, 95 L. Ed. 879. 'It was intended by the rules to give some measure of discovery. Rule 16 was adopted for that purpose. It gave discovery as to documents and other materials otherwise beyond the reach of the defendants which, as in the instant case, might be numerous and difficult to identify. The rule was to apply not only to documents and other materials belonging to the defendant, but also to those belonging to others which had been obtained by seizure or process. This was a departure from what had theretofore been allowed in criminal cases.' Id., 341 U.S. 218-219, 71 S. Ct. 678. 'Rule 16 deals with documents and other materials that are in the possession of the Government and provides how they may be made available to the defendant for his information. In the interest of orderly procedure in the handling of books, papers, documents and objects in the custody of the Government accumulated in the course of an investigation and subpoenaed for use before the grand jury and on the trial, it was provided by Rule 16 that the court could order such materials made available to the defendant for inspection and copying or photographing. In that way, the control and possession of the Government is not disturbed. Rule 16 provides the only way the defendant can reach such materials so as to inform himself.' Id., 341 U.S. 219, 71 S. Ct. 678. (Italics supplied.)
'But if such materials or any part of them are not put in evidence by the Government, the defendant may subpoena them under Rule 17(c) and use them himself.' Id., 341 U.S. 219, 71 S. Ct. 678.
'There may be documents and other materials in the possession of the Government not subject to Rule 16. No good reason appears * * * why they may not be reached by subpoena under Rule 17(c) as long as they are evidentiary. * * * The court may control the use of Rule 17(c) to that end by its power to rule on motions to quash or modify.' Id., 341 U.S. 219, 220, 71 S. Ct. 678.
'It was not intended by Rule 16 to give a limited right of discovery, and then by Rule 17 to give a right of discovery in the broadest terms. Rule 17 provided for the usual subpoena ad testificandum and duces tecum, which may be issued by the clerk, with the provision that the court may direct the materials designated in the subpoena duces tecum to be produced at a specified time and place for inspection by the defendant. Rule 17(c) was not intended to provide an additional means of discovery. Its chief innovation was to expedite the trial by providing a time and place before trial for the inspection of the subpoenaed materials. * * * However, the plain words of the Rule are not to be ignored. They must be given their ordinary meaning to carry out the purpose of establishing a more liberal policy for the production, inspection and use of materials at the trial.' Id., 341 U.S. 220, 71 S. Ct. 679. 'There was no intention to exclude from the reach of process of the defendant any material that had been used before the grand jury or could be used at the trial. In short, any document or other materials, admissible as evidence, obtained by the Government by solicitation or voluntarily from third persons is subject to subpoena.' Id., 341 U.S. 221, 71 S. Ct. 679.
Defendant Gilboy makes 53 requests with sub-divisions for inspection; defendant Green 67; defendant Rochez 21; defendant Raff 25. Each of the four defendants seek a transcript of their Grand Jury testimony. This request is denied. See United States v. Rose, D.C.M.D.Pa.1953, 113 F.Supp. 775, at page 781. United States v. Rose, 3 Cir., 215 F.2d 617, took a different position in a perjury case. We think, however, the doctrine of United States v. Holmes, 3 Cir., 1948, 168 F.2d 888, at page 890, governs in other cases. See the teaching of Costello v. United States, supra, 350 U.S. 359, 76 S. Ct. 406, 100 L. Ed. 397.
In the argument on the motions we suggested and counsel agreed to get together on the problem of inspection, including the subpoenas duces tecum, the motion to quash and impound, all within the framework of Bowman Dairy Co. v. United States, supra, 341 U.S. 214, 71 S. Ct. 675, and see United States v. O'Connor, 2 Cir., 1956, 237 F.2d 466, at page 476. If this approach does not work satisfactorily a definitive order will follow.
Rochez Bros. Inc., Specialty Steel Products Inc., and Consolidated Construction Co. of New Jersey Inc., seek the return of certain books, documents and records in the possession of the government as a result of a subpoena duces tecum or a request and voluntary surrender, during the course of the Grand Jury investigation. The government has advised that all of said materials are necessary for complying with defendants' request for inspection, the government's preparation for and use at the trial, which will be shortly forthcoming. The reasoning of a distinguished jurist in an analogous situation is most pertinent. See United States v. Maryland & Virginia Milk Producers Ass'n, D.C.D.C.1957, 151 F.Supp. 438, Holtzoff, J. If the papers were returned they would be immediately subject to subpoena. The court is unable to perceive that any benefit or advantage would inure by requiring this circumlocution. See United States v. Johnson, 76 F.Supp. at page 542; Bowman Dairy Co. v. United States, supra, 341 U.S. at page 219, 71 S. Ct. at page 678; United States v. B. Goedde & Co., supra, 40 F.Supp. at page 534. The motion for return will be denied.
Orders in compliance herewith will follow.