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WOLVERTON, District Judge. The defendant at this time petitions the court to vacate the order heretofore made adjudging him guilty of contempt and directing his imprisonment until he complied with the mandate of the subpoena requiring him to bring the books, papers, files, etc., specified therein, upon two grounds, namely: First, that since entering the order the grand jury has been regularly discharged; and, second, that prior to such discharge of the grand jury the defendant was indicted jointly with his copartners, E. Dorgan and Francis Devine, and others, charged with the crime of violating the statutes of the United States relating to conspiracy to defraud the government. The order referred to, omitting the preliminary statement, is as follows:
"On consideration whereof, the court now finds the defendant to be in contempt. And it is ordered that said defendant shall appear before the said grand jury of this court on Saturday, April 28, 1906, at 11 o'clock in the forenoon of said day, then and there to testify as a witness, and that he shall then and there produce all the records, books, and papers specified in said subpoena. And it is further ordered that if said defendant shall fail so to appear before the grand jury, or shall fail to produce said records, books, and papers, that he be imprisoned in the county jail of Multnomah county, Oregon, until he shall be willing to obey the command of said subpoena and of this order."
It seems clear that, the grand jury having been discharged, the term of imprisonment as limited by the order under consideration has expired. If this is not so, then the order provides for a perpetual imprisonment, because there is no grand jury before whom the defendant can appear—a condition that is unwarrantable, and that the law will not tolerate. To be more exact, I should perhaps say that a condition has been brought about under which it has become impossible for the defendant now to comply with the order, and the law will not require of any person an impossible thing. Under the authorities, therefore, further imprisonment by virtue of that order cannot be insisted upon or enforced. Ex parte Maulsby, 13 Md. 625, Append. ; In the Matter of Frederick Hall, 10 Mich. 210; Ex parte Rowe, y Cal. 176.
The defendant, however, is himself responsible for the condition -not that the grand jury has adjourned, but that he is unable to comply with the order—because he had abundant time and opportunity to appear and bring with him the documents called for by the subpæna before the grand jury adjourned, and it must be conceded that in the meantime he continued in contempt; and it must be further conceded that the mere fact that the grand jury was discharged does not purge him of his contempt. He continued recalcitrant notwithstanding the order, refusing compliance, and persisted in disobeying the mandate of the subpæna which he was directed to observe. Such conduct could in no sense be construed as purging him of his contempt, and he remains yet in contempt of the original order requiring him to produce the documents under the subpæna. “And for this I have no doubt he is still liable for fine and imprisonment—either one or both. As was said in Ex parte Rowe, supra:
"The prisoner may still be liable to fine and imprisonment for disobeying the original order, but he cannot be further restrained of his liberty under the present warrant."
But it is insisted that the fact that Collins has been jointly indicted with his copartners and others for a conspiracy to defraud the government is tantamount to a showing that the documents called for are self-incriminating, and, being such, that the original order was erroneously made and entered, and that this purges him of his contempt, or, rather, that it shows he never was in contempt, because the matter he was called upon to produce was in reality privileged under the Constitution. I am unable to agree with counsel. It does not follow, because the defendant has been indicted with the other members of his firm and charged with the crime of conspiracy to defraud the government, that the books, papers, etc., called for by the subpæna have any connection with such indictment, or the crime charged, and much less that they would afford incriminating evidence against him. The only circumstance indicating that the documents sought have any such connection whatever is that the requirement of their production and the finding of the indictment are not remotely disassociated in point of time. This is all there is to show to the court that the one is the concomitant of the other, forming but the development of a single transaction. Other than this, there is nothing tangible in the record to indicate any vital relation of the one with the other. Indeed, the indictment was found without the aid of the papers called for; and, if anything is to be inferred from that circumstance, it is that such papers were designed for use other than to inquire into the conduct of the members of the firm as it pertains to the charge preferred. Collins had an opportunity of producing the books before the grand jury, and there developing the fact, if it be a fact, that the books and papers might tend to incriminate him, without the least jeopardy to himself; and, if such a condition had appeared, the court would have been bound, under the Constitution and the law of the land, to protect him, and would, if the matter had been called to its attention, without hesitation have intermitted further inquiry concerning such documents. As I said when the matter was up before, quoting from an eminent jurist:
“To entitle a party called as a witness to the privilege of silence, the court must see, from the circumstances of the case and the nature of the evidence which the witness is called to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer,” although, “if the fact of the witness being in danger be once made to appear, great latitude should be allowed to him in judging for himself of the effect of any particular question."
The same principle applies to the production of papers. When it is once made to appear that they will tend to incriminate the witness, he is as much protected from the harm that would befall him by reason of a disclosure of their contents as from divulging incriminating matter by word of mouth. The result is the same in either event.
I said, furthermore, at that time, which proposition is a deduction from the authorities, that:
“Until he [the witness] is called upon to disclose the incriminating matter, involving himself in a transgression of law for which he might be subject to prosecution, he is not in a position to claim the exemption.”
The defendant is in no better position now than he was then. He has not made it appear, nor do the subsequent developments indicate such a thing, except possibly by the remotest inference, that the books, papers, etc., of the firm of Dorgan & Devine will incriminate him, and certainly their production under the subpoena, even if they contain incriminating matter, would not jeopardize him in his constitutional right in any particular. As was said in the late case of Hale v. Henkel, 201 U. S. 43, 26 Sup. Ct. 370, 50 L. Ed. 652, decided by the Supreme Court of the United States:
“We think it quite clear that the search and seizure clause of the fourth amendment was not intended to interfere with the power of courts to compel, through a subpoena duces tecum, the production, upon a trial in court, of documentary evidence."
The courts have the same authority to compel a production before the grand jury of such evidence. Indeed, in that very case the production was required before that body and the proceeding was upheld. The defendant could readily have purged his contempt by producing the documents required of him before the grand jury. He need not have disclosed their contents, and could have, when questioned, after taking the oath as a witness, developed the fact, if such it were, that such documents would tend to his incrimination; and from that moment he would have had the right to insist upon his constitutional guaranty. But it was not enough for him merely to assert, out of court, that the documents contained incriminating matter to his detriment. This defense was urged on the previous hearing, and found insufficient, and he is in no better condition or position now than he was then.
There is no thought, that I am aware of, of pursuing an inquisition against the defendant or his firm. If there was, it would be promptly checked; the purpose being to obtain legal evidence only in a proceeding recognized by law. The time has gone by when the defendant can relieve himself from further liability to punishment by producing the books, papers, files, etc., under the subpoena, before the grand jury, that body having been discharged; and, not having yet shown that such documents contain matter tending to his incrimination, he has in no way purged his contempt.
Being yet in contempt, he should be punished, and the order of the court will be that he be further imprisoned in the county jail of Multnomah county for the period of four months.
UNITED STATES V. AMERICAN TOBACCO CO.
(Circuit Court, s. D. New York. May 31, 1906.) GRAND JURY-INVESTIGATION OF CORPORATIONS-RIGHT TO REQUIRE PRODUC
TION OF BOOKS.
A corporation may be required to produce its books and papers before a grand jury engaged in investigating its acts within reasonable limits, and a subpæna which requires the production of its minute books for three years and letter copy books covering a period of three or four months is not too broad and sweeping.
On Motion to Vacate Subpoena.
LACOMBE, Circuit Judge. In Hale v. Henkel, 201 U. S. 43, 26 Sup. Ct. 370, 50 L. Ed. 652, the Supreme Court expressly held that in the matter of the production of books and papers there is a clear distinction between an individual and a corporation, and that the latter has no right to refuse to submit its books and papers for an examination at the suit of the state. “There is,” says the court, "a reserved right in the Legislature to investigate its contracts, and find out whether it has exceeded its powers." It is difficult to see how this declaration can be complied with if subpæna such as the one now under consideration shall be held to be too broad and sweeping. The two clauses complained of are those which call for the “minute books of the McAndrews & Forbes Company from the time of its incorporation to the present day," a period of about three years, and "the copy letter books of the said company from April 1, 1904, to August 15, 1904,” a period of about three months and a half. This is very different from the requirements of the subpæna under consideration in Hale v. Henkel, which was so “universal in its operation" as practically to put a stop to the business of the company. The amount of documentary evidence now called for is quite restricted. The subpæna is not, it is true, confined to the documents relating to definitely specified transactions; presumably it could not be made thus specific because it is not now known whether or not such transactions took place. Undoubtedly the material it calls for is to be produced in order to enable the grand jury to undertake a fishing excursion, but that is what the opinion cited holds that it may do, and neither in quantity nor in character are the items called for by the subpæna unreasonable.
The motion to vacate the subpæna is denied.
UNITED STATES v. AMERICAN TOBACCO CO. et al.
(Circuit Court, s. D. New York. June 16, 1906.) GBAND JURY-INVESTIGATION OF CORPORATION-CONTEMPT OF OFFICER FOR DIsOBEDIENCE OF SUBPENA.
The secretary of a corporation cannot be punished for contempt for failure to obey a subpæna duces tecum addressed to him, and requiring him to produce certain books of the corporation before a grand jury, where such books have never been in his possession nor subject to his control, and it is shown that he cannot obtain them except surreptitiously or by a breach of the peace. The proper procedure in such case is to issue and serve a subpæna on the corporation itself.
[Ed. Note.-For cases in point, see vol. 50, Cent. Dig. Witnesses, $$ 25, 40.] Motion to punish William E. Ransom for contempt for failure to obey a subpæna duces tecum. The motion is made on presentment of the grand jury.
H. W. Taft, Special U. S. Atty.
Nicoll, Anable & Lindsay and Junius Parker, for the American Tobacco Co.
LACOMBE, Circuit Judge. The question which seemed most prominent when the presentment was handed in, viz., that the books not produced were private and personal, has been eliminated. It is not disputed that they do contain copies of letters written by the president of the MacAndrews & Forbes Co., and concerned with the business of that corporation. Counsel for the government also state that they are not concerned with the covers of the book, nor with any copies of letters contained in it which relate to the purely personal business of any individual, whether he is the president or not, and call attention to the fact that the subpoena itself calls for letters addressed to specific persons or companies therein enumerated, and referring to business of the corporation, so that subpæna can be obeyed without any risk of exposing private correspondence in no ways concerned with such business.
The only question is as to the liability of Ransom, who is the secretary and treasurer of said corporation. He has produced everything called for except the letters contained in two books, which have, at all times since he became secretary, been in the exclusive custody of the president, and kept in the latter's desk. He states—and there seems no reason to doubt the accuracy of the statement—that he could not obtain such books without a breach of the peace, or an attempt surreptitiously to obtain them. Under these circumstances, it is difficult to see how he can be personally punished for failure to produce them. As secretary he has custody generally of all books and papers by virtue of his office and under the by-law which is quoted, but it is within the power of the corporation to place some part of them in the special custody of some other officer, and this it seems to have done. It is thought that this court cannot punish the secretary personally for failing to produce a paper which his employer has intrusted to some other officer. Of course, the corporation can be compelled to produce them, and if called upon to do so it can claim no immunity should it obey the call. Had it been served with a subpæna such as this, it might be held in contempt if it did not send the documents to the grand jury room. But it is doubtful whether the corporation has been served. The subpæna is directed to Ransom, describing him as secretary and treasurer, but it was not addressed to the corporation nor to himself as secretary, and, indeed, no application is now made to punish the corporation for dis