Smith, Freedman and Seitz, Circuit Judges. Freedman, Circuit Judge (concurring).
The defendant-appellant was convicted by a jury of willfully attempting to evade payment of his personal income taxes for the years 1954-1957 inclusive in violation of Section 7201 of the Internal Revenue Code of 1954. He was sentenced and now appeals his conviction. Although he was jointly indicted along with his brother for certain other alleged violations, for reasons not now important those counts were dismissed before trial.
The first issue presented is whether the trial judge abused his discretion in refusing to grant defendant's motion to dismiss the indictments on the ground of asserted grand jury bias for which the "Federal Prosecutors" were allegedly responsible.
The defendant's motion to dismiss the indictments was filed seasonably but initially without any supporting affidavits or other supporting material.
As to the present issue the motion recites:
"2. The Indictments must be dismissed because they were procured by threatening a witness before this Grand Jury, Miss Florence Williams associated in business with Defendants, with loss of United States Citizenship, with five years imprisonment, with a $10,000.00 fine and by describing this witness in front of the Grand Jury as a 'thief' and a 'racketeer', all of which conduct by the then U.S. Attorney Daniel Jenkins and his Assistant William Morgan then before this Grand Jury on March 8, 9, and 10, 1961, was calculated to, and did, move this Grand Jury by passion and prejudice to the extreme that the Grand Jury was 'hissing' in the presence of the witness all contrary to the Defendants' Constitutional Right to Due Process of Law and all contrary to the Defendants' right to a fair and unprejudiced investigation before the tribunal created by the Constitution of the United States and all contrary to our Jurisprudence as it has been guaranteed to us by, and ever since, the Magna Charta."
At the hearing on the motion the court expressed concern that defendant's counsel had not supported the grounds of his motion with an affidavit or other probative material. The court asked defendant's counsel if he was prepared to introduce affirmative testimony and he responded by saying that he would like to subpoena all the grand jurors. The court entered an order (January 31, 1962) which provided for the filing of affidavits with defendant's due first. Thereupon defendant filed a motion seeking the following: permission to take the affidavits of each grand juror; permission to read the transcript of all the grand jury proceedings connected with the case; and an extension of time to file affidavits. After further procedural skirmishing, the court entered an order on February 27, 1962 denying defendant's motion at least insofar as it sought to take affidavits from each grand juror and to see the grand jury records for March 8, 9, and 10, 1961. The order recites that such request "is premature and cannot be considered until there has been compliance with the court's direction as to the filing of affidavits to support the grounds given in the motion to dismiss the indictments".
Thereafter defendant filed the affidavit of Florence Williams which in material part is a duplication of the second ground of defendant's motion which is quoted above. The defendant also filed the transcript of a hearing held March 10, 1961 in which the government sought conviction on a contempt citation against Florence Williams because she invoked the Fifth Amendment in response to questioning by the grand jury. The court there found that the witness was not in contempt. The court at this time was not called upon to consider the effect on defendant of the prosecutors' conduct before the grand jury.
The government filed by way of reply an affidavit of William Morgan, an Assistant United States Attorney who presented the case to the grand jury. He stated that he attended the grand jury proceedings when Miss Williams was present and that the court reporter's transcript "is the complete transcript of the said Florence Williams' testimony before the grand jury in connection with the above captioned cases".
On April 27, 1962, the defendant renewed his motion to take the affidavits of the grand jurors and to inspect the grand jury records. A further hearing was held by the court and still later additional affidavits concerning an issue not raised on appeal were permitted to be filed on defendant's behalf.
Thereafter the court filed an opinion in which both defendant's motion to dismiss the indictment and his renewed motions were denied. The court stated in pertinent part:
"The testimony before the Grand Jury on March 9, 1961, was read by the court reporter and counsel for defendants furnished with a copy. The same counsel also represented Miss Williams at the March 10, 1961 hearing. The Court, at this hearing stated: 'She has no right to shield others through selfincrimination privilege, by asserting it. What she has a right to do, however, is to protect herself, and if she feels that it will tend to incriminate her of a Federal crime, she has a right -- and this Court will protect her in asserting that right -- not to testify.' She was allowed to return to the Grand Jury proceedings, did invoke the privilege and refused to testify. Whether the alleged remarks were or were not made to her is immaterial. She claimed her privilege and did not testify against the defendants. Certainly the defendants can find no basis for complaint in this situation. It was to their advantage that this witness furnished no information to the Grand Jury. The Grand Jury records covering this witness, for March 8, 9 and 10, 1961, have been examined by the Court in camera and I find nothing to justify any other conclusion."
Defendant quarrels with the trial judge's statement that it was "immaterial" whether or not the prosecutor's remarks were made. However, the opinion follows with the explanation that "she did not testify against the defendants". Thus, we can agree that the remarks were "immaterial" in the sense that they did not elicit testimony from Miss Williams unfavorable to defendant. But the fact that the trial judge properly employed the term "immaterial" in the context of his discussion does not end the matter. Defendant says the prosecutors' remarks, while directed toward Miss Williams, actually created a bias in the grand jury against him as an associate of hers. Defendant therefore argues that under the law he was entitled to have the indictment dismissed.
We note again that Miss Williams' affidavit is, for our purposes, a duplicate of the second ground of defendant's motion to dismiss the indictment. Both refer solely to the remarks of the prosecutors. In passing on the propriety of the trial judge's denial of defendant's motions, we shall take it as established in the present state of the record that the prosecutors made the remarks attributed to them in Miss Williams' affidavit. We do so particularly because no affidavit was filed by the government which denied defendant's charges with respect to the language used by the prosecutors before the grand jury.
We can commence our analysis by recognizing that the words we here take to have been uttered exceeded the bounds of proper conduct by prosecutors and that their use is to be condemned. The question remains, however, as to whether that conduct vitiated the defendant's indictment. We note that defendant does not before the grand jury was insufficient to support the indictment. Thus, we are not confronted with a situation where the votes of the grand jurors were necessarily based on their bias resulting from the prosecutors' remarks addressed to Miss Williams. Moreover, Miss Williams was protected by the court in her refusal to testify. The threats did not produce any evidence from her. Indeed, the trial court instructed the grand jury on the importance of her right to rely on the privilege against self-incrimination. Finally, although defendant's brief recites that the prosecutors told the grand jury falsehoods about the defendant, there is no possible basis for this statement in the record.
Under these circumstances can it be said that the trial judge abused his discretion in refusing to grant defendant's motion to dismiss the indictment? We think not.
On this issue the case comes down to the point that the prosecutors improperly made threats or used abusive language toward a witness connected with defendant in his business and thereby influenced the grand jurors with such a bias toward the defendant that he was not afforded his constitutional right to be indicted by an "unbiased" grand jury.
Without considering the full sweep of the term "unbiased" we turn to an evaluation of the evidence on this question. The grand jurors knew of Miss Williams' business connection with defendant. They also knew that she successfully invoked the Fifth Amendment before them. They had evidence which it is not denied was sufficient to support an indictment. In these premises the threats could hardly have had independent material significance in the jurors' minds when they considered whether they wanted to indict defendant. Their "hissing" does not nullify their action in view of what they had properly before them. See United States v. Garsson, 291 F. 646 (D.C.N.Y. 1923). We find the following language of the United States Supreme Court in Beck v. Washington, 369 U.S. 541, 555, 82 S. Ct. 955, 963, 8 L. Ed. 2d 98 (1962) particularly appropriate:
"Petitioner [defendant] also contends that a witness before the grand jury was improperly interrogated in a manner which prejudiced his case before that body. It appears that an employee of petitioner's union was called before the grand jury to testify in reference to activities within his employment. During his first appearance he made statements which he subsequently changed on a voluntary reappearance before the grand jury some two days before the indictment was returned. On the second appearance the prosecutor attacked the witness' changed story as incredible and warned him that he was under oath, that he might be prosecuted for perjury, and that there was no occasion for him to go to jail for petitioner. The record indicates that the prosecutor became incensed over the witness' new story; and though some of his threats were out of bounds, it appears that they had no effect upon the witness whatsoever for he stuck to his story. We can find no irregularity of constitutional proportions, and we therefore reject this contention."
By the language of defendant's motion to dismiss and Miss Williams' supporting affidavit the defendant sought to prove only that certain remarks were made. Accepting for purposes of deciding this case that they were made, we have found that they did not invalidate the indictment. In our view, therefore, there was no prejudice arising from the trial judge's refusal to permit the defendant to read all the grand jury transcript or to permit the taking of affidavits of the grand jurors. By the same token, there is no need to give weight to or pass upon the legal propriety of the action of the trial judge in reading and evaluating the grand jury transcript in camera.
Defendant relies strongly on United States v. Wells, 163 F. 313 (D.C. Idaho, 1908). A reading of the facts of that extraordinary case shows that the prosecutor there had in substance almost coerced the grand jury into returning an indictment. On its facts it does not bear even a remote resemblance to the facts here. Insofar as it recognizes that there can be situations where the propriety of the action of a prosecutor may be so extreme as to require a court to vitiate an indictment on that ground, we have no occasion here to quarrel with the case. Compare United States v. Rintelen, 235 F. 787, 794-795 (D.C.N.Y. 1916). Other important cases relied upon by defendant involved issues of "fair trial" before a petit jury, e. g., Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600, (1966); Estes v. State of Texas, 381 U.S. 532, 85 S. Ct. 1628, 14 L. Ed. 2d 543 (1965). They are not of help in the context of this case.
We conclude that the conduct of the prosecutors before the grand jury did not under the present facts create a defect of constitutional or legal proportions. It follows that the grand jury proceedings were valid and that there was no error in denying defendant's motion to dismiss the indictment. The same is true of the denial of his motion to permit ...