Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; Patrick T. Stone, Judge.
Before SPARKS, TREANOR and KERNER, Circuit Judges.
This is an appeal from a judgment rendered on a verdict of guilty upon an indictment charging the above named defendants, together with Anthony Horton and Louis Kaplan, with a conspiracy to defraud the United States under Section 37 of the Criminal Code, R.S. Sec. 5440, 18 U.S.C.A. § 88. All of the defendants were found guilty. Glasser, Kretske and Kaplan were each sentenced to imprisonment for a term of 14 months, Horton was placed on probation, and Roth was ordered to pay a fine of $500. Only Glasser, Kretske and Roth separately appealed.
The defendants demurred to the indictment and entered a motion to quash on the grounds: (1) That the grand jury was illegally constituted because women were excluded therefrom; (2) that the indictment was not properly returned in open court; and (3) that it was defective. The demurrers and the motion to quash were overruled.
On oral argument the principal point stressed was that the evidence failed to sustain the verdict of the jury, although other points were raised in the briefs.All of these will be discussed in due course.
The Motion to Quash. It is claimed that the District Court erred in overruling the motion to quash the indictment, because the grand jury that found and presented the indictment was not lawfully constituted, in that the commissioner appointed to select the grand jury selected no women to serve on the grand jury.
The indictment was filed on September 29, 1939. On May 12, 1939, the Legislature of the State of Illinois enacted an Act*fn1 making women eligible for jury. The constitutionality of that Act was sustained on August 8, 1939, in People v. Traeger, 372 Ill. 11, 22 N.E.2d 679. The Northern District of Illinois is composed of 18 counties of the State of Illinois. Under the Act in question the county boards of 17 of these counties were privileged to wait until September 1, 1939, before including women on the jury lists. The members of the September 1939 grand jury were summoned for duty on August 25, 1939. It follows that there was no irregularity in not including women on the jury list. Moreover in the affidavits filed in support of the motion to quash, it was not alleged that the appellants have been prejudiced in any way or that anyone of the grand jurors was incompetent or in any way disqualified. Under such circumstances irregularities in the selection of jurymen are to be disregarded. Wolfson v. United States, 5 Cir., 101 F. 430; Moffatt v. United States, 8 Cir., 232 F. 522; and Petition of Salen, 231 Wis. 489, 286 N.W. 5. The reason for this rule is that the grand jurors do not try the case but merely charge the accused. The manner of their selection is of no consequence to him, he being entitled to claim only fair and impartial grand jurors who possess the necessary qualifications, whereas it is of great consequence that the administration of justice shall not be delayed by mere technical objections. People v. Lieber, 357 Ill. 423, 436, 192 N.E. 331.
Was the Indictment Properly Presented? The point is made that to constitute a valid indictment, it must appear that the indictment was presented in open court and the fact entered of record.
It is true that a defendant cannot rightfully be put upon trial for a criminal offense prosecuted by an indictment unless the record shows that the indictment was returned into open court by a grand jury. It need not, however, appear by any set form of phraseology that the grand jury appeared in open court and returned the indictment. All that is necessary is that by apt words it must be made to appear from the record that the grand jury appeared in open court and returned into court the indictment to which the defendant is required to plead. The record now before us shows that it contains a placita in regular form showing the convening of the court and recites the presence of the Judges of the Court of the Northern District of Illinois, Eastern Division, the United States Marshal and the Clerk of the Court; that on September 29, 1939, at a regular term of the District Court of the United States for the Eastern Division of the Northern District of Illinois, the grand jury returned four indictments in open court. On the face of the indictment in this case in the handwriting of the Clerk of the Court is the statement, "Filed in open court this 29th day of September, A.D. 1939, Hoyt King, Clerk," and preceding this statement is a notation "A true bill," "George A. Hancock, Foreman." We are of the opinion that the record in this case is sufficient, and the contention cannot be sustained.
Is the Indictment Defective? The indictment charged a conspiracy to defraud the United States under Section 37 of the Criminal Code, 18 U.S.C.A. Section 88, which provides that: "If two or more persons conspire * * * to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than $10,000, or imprisoned not more than two years, or both." Now, the appellants make the point that the indictment is defective, because (a) it is duplicitous, (b) it is repugnant and inconsistent, and (c) it is vague and indefinite.
The indictment in substance charged that the defendants and divers other persons to the grand jurors unknown, conspired to defraud the United States of and concerning its governmental function to be honestly, faithfully and dutifully represented in the Courts of the United States by an Assistant United States Attorney, to prosecute certain delinquents for crimes and offenses cognizable under the authority of the United States as the same should be presented and determined according to law and justice, free from corruption, improper influence, dishonesty or fraud, and more particularly its right to a conscientious, faithful and honest representation of its interest in certain suits and causes brought and pending in the United States in the Northern District of Illinois by promising, offering, causing and procuring to be promised and offered, money and other things of value to an officer of the United States, and to persons acting for and on behalf of the United States in an official function under and by authority of a department and office of the Government of the United States, with intent to influence his decision and action on certain questions and causes which were at times pending, and which were by law brought before such officer in his official capacity, and with the intent to influence to commit and in committing, and to collude in committing certain frauds on the United States, and to induce such officer to do and to omit from doing certain acts in violation of his lawful duty.
The indictment further alleged that Glasser was an Assistant United States Attorney for the Northern District of Illinois, employed to prosecute all delinquents for crimes and offenses cognizable under the authority of the United States, and as such he did act for and on behalf of the United States in certain official functions under and by authority of the Department of Justice of the United States, and as such officer he had certain decisions to make and actions to take on certain questions, causes and proceedings brought before him in the performance of his duties as such Assistant United States Attorney; that it was part of the conspiracy that the defendants would solicit certain persons named in the indictment, charged with violating or about to be charged with violating the laws of the United States, to promise or cause to promise money to be paid or pledged to the defendants to be used to influence and corrupt Glasser in his official capacity in his decisions on certain questions, causes and proceedings, with the intent that the defendants would accept and use said money to corruptly, wrongfully and improperly influence Glasser in his decisions and thus allow a fraud to be committed on the United States in violation of his lawful duties as an Assistant United States Attorney.
The indictment further alleged that Glasser would meet and hold conversations with the other defendants and inform them what they should do to carry out the conspiracy and would instruct them as to what steps or action each of them would take in the matters in which he was representing the United States Government and thus Glasser conspired with the other defendants to defraud the United States of and concerning its governmental function to be honestly, faithfully and dutifully represented in the courts of the United States by an Assistant United States Attorney.
The Government furnished the appellants with a bill of particulars in which many overt acts were specified, in each of which one or more of the alleged conspirators is alleged to have participated.
It is claimed that the indictment is duplicitous because, it is said, it charges two offenses. With this contention we cannot agree for the reason that in our opinion the indictment charges merely a conspiracy to defraud the United States Government, entered into between an Assistant United States Attorney, the defendants Kretske, Roth, Horton, Kaplan and other persons to the grand jurors unknown. Nor is the indictment repugnant and inconsistent on the ground that it alleges that the defendants conspired with each other and with other persons to the grand jurors unknown. United States v. Heitler, D.C., 274 F. 401; United States v. Manton, 2 Cir., 107 F.2d 834, 839.
Appellants also complain that the indictment is defective because it alleges a case where concerted action is necessary, and that in such a case, conspiracy will not lie, and they cite a line of cases*fn2 where that principle has been upheld. These cases are not in point for the reason stated in United States v. Manton, supra. In that case it was charged that the defendants had conspired to defraud the United States of and concerning its right to have the lawful functions of the judicial power of the United States exercised and administered free from corruption, improper influence, dishonesty and fraud. In disposing, adversely to the defendants, of a like contention as is here made, the court said (page 839 of 107 F.2d): "The indictment does not charge as a substantive offense the giving or receiving of bribes; nor does it charge a conspiracy to give or accept bribes." So also in our case the indictment charges a conspiracy to defraud the United States of and concerning its governmental function to be honestly and faithfully represented in the courts of the United States by an Assistant United States Attorney, to prosecute delinquents for crimes, free from corruption, dishonesty and improper influence. See also Miller v. United States, 2 Cir., 24 F.2d 353; Cendagarda v. United States, 8 Cir., 64 F.2d 182; and Chadwick v. United States, 6 Cir., 141 F.225.
The appellants also contend that the indictment does not advise them of the nature of the charge against them with reasonable particularity as to the persons, time, place and circumstances. Each of the appellants raises this point in his brief, but no one of them argues the point. To us it seems that the indictment sufficiently apprised the appellants of the charge against them.
We come now to the main question in the case: Whether there was sufficient evidence to support the verdict. It is argued by Glasser that there is no evidence whatever that he conspired with anyone for any purpose or that he solicited or received any bribes or that he was influenced in his official decisions. Kretske argues that the testimony tending to connect him with the offense charged, was entirely that of accomplices and therefore does not rest upon a substantial evidential basis. And Roth argues that the case rests on conjecture, suspicion and inference, and that the evidence as to him is wholly consistent with his innocence.
In order to consider the error here assigned, it is imperative that we analyze appellee's evidence in the light of the charge made in the indictment. This we have done.
The trial was long, consuming about 26 days, and the record is voluminous, consisting of the testimony of 106 witnesses and a large number of exhibits. Undoubtedly it would be interesting to detail the evidence at length, but that would unduly lengthen this opinion. We think it will suffice if we but enumerate the more important facts and appellants' connection or association with the suits and matters involved in the conspiracy.
From the record it appears that from March 13, 1935 to June 23, 1939, Glasser was an Assistant United States Attorney and that Kretske was an Assistant United States Attorney from October 1, 1934, to April 15, 1937, both assigned to the handling of Alcohol Tax Law violations.Horton was a professional bondsman and provided sureties for persons required to give bond involving violation of laws brought against such persons by the United States. He met and spoke frequently with Glasser and Kretske in the United States Court House.
One of the matters involved in the conspiracy related to a Chrysler Sedan. It was a libel action in which it was charged that the automobile, seized upon the premises of one Leo Vitale at Peru, Illinois, had been used in connection with a liquor tax violation. The cause came up for hearing before a District Judge on December 23, 1938. Appellee was represented by Glasser, and Roth represented Rose Vitale, wife of Leo Vitale. Roth informed the trial court that the automobile belonged to Mrs. Vitale and had not been used in the manufacture of alcohol. Thereupon an investigator of the Alcohol Tax Unit, who had caused the seizure, informed Glasser that Roth was not informing the court of the true facts nor advising the court that Vitale had heretofore been convicted and sentenced to the penitentiary in the Southern District of Illinois for liquor tax violations, and requested that he be permitted to so advise the trial court. Glasser directed the investigator to leave the court room. The trial court ordered that the automobile be returned to Rose Vitale.
Shortly after December 23, 1938 this investigator informed Glasser that he had a number of witnesses to whom Vitale had said that he (Vitale) had "got out of this for $900" and the investigator suggested that Glasser inquire of Vitale as to who received the $900. Glasser said he would, but he never did.
Elmer Swanson and Patsy Del Rocco, in the latter part of 1936, were engaged in the illicit manufacture of alcohol at 116 W. 119th Street, Chicago, Illinois. The still was seized by the Government. Within a short time after the seizure Swanson met the defendant Horton, who informed Swanson that Swanson and Del Rocco were going to be indicted, but that he (Horton) could take care of it for $500 which would be taken down town and given to the boss. He mentioned "Red" as the boss. It is undisputed that Glasser has red hair and is known as "Red." The $500 was paid to Horton in currency. Nothing more was heard concerning the seizure of the still after the payment of the $500 nor were Swanson or Del Rocco indicted.
It further appears that on December 31, 1937, Swanson and the Hodorowicz Brothers operated another still at 6949 Stony Island Avenue, Chicago, Illinois, which also was seized by the Government. Swanson was arrested and arranged for a bail bond through Horton. Roth was retained as an attorney to defend, having ...