United States v. Olmstead, 7 F.2d 756 (W.D. Wash. 1925)

*757 *758 Thos. P. Revelle, U. S. Atty., and C. T. McKinney, Asst. U. S. Atty., both of Seattle, Wash.

J. L. Finch, of Seattle, Wash., for Olmstead and twenty-six others.

Edward H. Chavelle, of Seattle, Wash., for five defendants.

Joseph H. Griffin, of Seattle, Wash., for one defendant.

NETERER, District Judge (after stating the facts as above).

It is urged by the United States Attorney that the pleas in abatement are insufficient, in that the pleader states "that the matters and things herein (therein) contained are true as he verily believes"; that none of the grounds for setting aside the indictment as provided by the laws of the state (section 2099, Comp. Stat. Wash.) are present. The defendants contend that their rights have been invaded by the reception of incompetent evidence and by coercion of the foreman of the grand jury by a prohibition agent, and that it is the duty of the court to review the testimony and determine its sufficiency before requiring the defendants to plead, that a trial would take from 30 to 60 days, large expenses be necessitated which may now be eliminated by the court in this preliminary examination, and that, if there is no procedure or law authorizing such examination, the court should make law or procedure which would reach the situation.

It is conceded that the motion to strike properly raises the issue of the sufficiency of the pleas, and at any rate leaves the matter in the discretion of the court. A motion to strike a plea in abatement for insufficiency is recognized by Judge Hand in U. S. v. Morse (D. C.) 292 F. 273.

In the absence of federal law or deficiency with relation to civil and criminal procedure the statute of the state is followed. Section 722, Rev. Stats. (Comp. St. § 1542). See, also, U. S. v. Eagan (C. C.) 30 F. 608; U. S. v. Wells (D. C.) 163 F. 313; U. S. v. Mitchell (C. C.) 136 F. 896; U. S. v. Clune (D. C.) 62 F. 798; Crowley v. U. S., 194 U.S. 461, 24 S. Ct. 731, 48 L. Ed. 1075. Under the Washington statute an indictment may be set aside because it is not indorsed "a true bill"; that the names of the witnesses are not indorsed upon the indictment; when not marked "filed"; and when any person other than the grand jurors was present when the vote was taken upon the indictment or when any person was present before the grand jury during the investigation of the charge except as permitted by law. Section 2099, supra.

The grand jury is of ancient origin; it goes back many centuries. It is said the institution existed among the Saxons. By the Constitution of Clarendon, the grand jury was recognized, if not established. It originated when there raged a conflict between the rights of the subject and the power of the crown. Its object was to secure to the subject the right of appeal to his peers under the immunity of secrecy before he could be brought to trial. It was at first a body which, not only arrested, but which tried, public offenders. It was at the time of the settlement of this country an informing and accusing tribunal only. Ex parte Bain, 121 U.S. 1, 7 S. Ct. 781, 30 L. Ed. 849. It is a distinct, independent body, and must act free from influence, fear, favor, affection, reward, or hope thereof proceeding from, or without, the court. The Constitution of the United States, as well as the constitutions of all the states, show it is adopted as a means of protection to the citizen as well as a necessary aid to public justice. The grand jurors being sworn officers of the court, the presumption is that the indictment was found only upon proper evidence (Noll v. Dailey, 72 W. Va. 520, 79 S.E. 668, 47 L. R. A. [N. S.] 1207), and before the court would, under any circumstances, enter upon an investigation, it must appear by strong, positive proof that the inhibitions of the law have been violated and the presumption overcome.

May a defendant require the court to go behind the return of a true bill and sit as a court of error and enter upon an investigation of the testimony produced and determine its relevancy and sufficiency, review the cause as heard by the grand jury upon the sole demand of a defendant, upon statements which he verily believes to be true? May the secrecy of investigation essential to the nature of the institution, which *759 has from time immemorial been associated with the grand jury system, and considered an efficient means of its successful operation, be set aside, and all proceedings made public, if a party charged so elects? If a review is had, and a grand juror is called as a witness, must he tell who testified before the grand jury (Ex parte Schmidt, 71 Cal. 212, 12 P. 55), and disclose the testimony of the witnesses before the grand jury? State v. Broughton, 29 N. C. 96, 45 Am. Dec. 507. If an investigation is made as to the sufficiency of the evidence, then all the evidence must be produced (McKinney v. U. S., 199 F. 25, 28, 117 C. C. A. 403), and shall the court sit as a sieve through which the testimony of the government must pass, in preparation for trial by the defendants to the charge in the indictment? If in one case, it must be done in all cases on request of a defendant. May the court, irrespective of statute, adopt a procedure and assume a reviewing function, and pass upon the materiality and sufficiency of the evidence, and become an indicting, as well as a trying tribunal? I know of no rule of procedure or provision of law under which the court would be warranted to establish such a precedent. There is no federal statute and no warrant under state statute authorizing it, and the state statute, in the absence of federal statute, must control. Justice Brewer, with whom sat Judge Thayer, so held (U. S. v. Eagan, supra), as also Justice Field, with whom sat Circuit Judge Sawyer and District Judge Hoffman, in U. S. v. Benson (C. C.) 31 F. 896. Circuit Judge Curtis, in White v. Whitman, 29 Fed. Cas. 1029, No. 17561, in a civil proceeding, held that absence of an affidavit verifying the facts alleged in a plea of abatement, is fatal to the plea.

Judge Deady, in U. S. v. Brown, 24 Fed. Cas. 1273, No. 14671, said: "As I understand it, the Code does not allow any inquiry by the court as to the sufficiency or competency of the testimony upon which a grand jury has acted in finding an indictment, for the purpose of setting it aside. So at common law, a motion to quash an indictment was only allowed for such insufficiency in the body or caption of it, as would make a judgment upon it against the defendant erroneous; and even then it was in the discretion of the court either to allow the motion or oblige the defendant to plead or demur."

Judge Hand, in U. S. v. Morse (D. C.) 292 F. 273 at page 277, said: "Never to my knowledge has an indictment been held bad in this district because of insufficiency of evidence before the grand jury. If the latter body has been improperly constituted, or if fraud or misconduct is shown, a cause may arise for examining the proceedings; but in my opinion nothing less is sufficient" (citing cases).

Judge Dooling, in U. S. v. Bopp (D. C.) 232 F. 177 at page 178, speaking of a plea predicated on "belief alone," said: "* * * Such an averment is, in my opinion, not sufficient so to overcome the presumption of regularity which the law attaches to the return of an indictment as to compel or even to warrant the court in investigating the proceedings before the grand jury which resulted in such return."

Judge Beatty, in U. S. v. Cobban (C. C.) 127 F. 713 at page 720, said: "* * * to quash [indictment] because the evidence was inadequate; or because the rules of evidence had been violated, the court would become the tribunal for indicting as well as trying."

See also, State v. Chance, 29 N. M. 34, 221 P. 183, 31 A. L. R. 1466; Hillman v. U. S., 192 F. 264, 112 C. C. A. 522; Holt v. U. S., 218 U.S. 245, 31 S. Ct. 2, 54 L. Ed. 1021, 20 Ann. Cas. 1138.

I know of no case in this circuit where an indictment has been set aside because of insufficiency of the evidence before the grand jury. Pleas in abatement are most strongly construed against the pleader, and every existing fact must be negatived and every inference denied. I think it is well established that the rule of the Fourth and Fifth Amendments is a personal privilege, and may not be here urged, except with the possible exception of defendants Olmstead and Finch (U. S. v. Phil. & R. R. Co. [D. C.] 225 F. 301), and since, as I view it, the "wire tapping" and search warrant bear a different status and upon the record may not be here invoked by these parties, and are not sufficient as to these defendants, in the proceedings before the grand jury. Grand jury proceedings are not final, and the proof need only establish a reasonable ground to believe that the defendant is guilty. The record is not clear, nor the inference impelling under the plea, that there was not some competent evidence before the grand jury.

No objection can be made to the indictment because of the alleged conduct of Whitney and the foreman of the grand jury. The foreman did not control the jury. *760 There is no allegation or intimation that the foreman sought to impress upon the jurors any undue influence, nor any influence whatever. A vote of twelve of the grand jurors was sufficient to indict, sixteen were a quorum, more were present. It was the foreman's duty to sign the indictment upon the vote of twelve finding the indictment, whether he voted in favor of it or otherwise. If Whitney was guilty of conduct as charged, he is liable to another proceeding, and, if the matter is presented before the court upon a positive declaration and statement of fact under oath, cognizance will be taken of the matter. No person, be he government agent or otherwise, has any right or license to attempt to persuade, coerce, or in any manner influence the action of a grand juror other than as a sworn witness giving testimony before the entire body.

The motion to strike is granted.