Gros v. United States
136 F.2d 878
9th Cir.
1943
Check Treatment

*1 878 1099; persisted year

would have Ry. for one and that Ed. v. Oregon Ervin & Nav. Co., Company C.C., 625; Seating at end of Steel time 27 F. American competition Cir., Scott, would have 896; into with Co. v. Bullard, entered 2 F. ship company, presented Trusts, 1107; Bogert, defendant Trus Trusts and computation tees, per share. p. 2502. $779.25 Apparently upon there confusion is opinion The of this has writer part parties of one of the effect inclined that the evidence toward the view opinion judg- was the intent of our amply supports finding Court’s the District ment be remanded reversed cause damages, majority as to believes for a new Such was not inten- trial. our that the' liberal allowance was too and. ambig- tion. Accordingly, to remove any determining con the soundness uity, is paragraph opinion the last keep clusion it is mind that this well hereby The court deleted. modifies ais suit in where the evidence is equity judgment reducing by of the District Court preserved reviewing examination. our plaintiffs’ damages to the between difference testimony expert, various wit $1,350 each have received and nesses was upon based historical facts by respectively, share of stock held them appearing ship in the annals -of the com together with costs in the District Court pany and in the industrial and financial May per interest at the rate of 5 cent from corporations. records of other Various modified, 1936. Thus capitalization, theories of party pay affirmed. Each shall one-half the facts, resulted in variant conclusions. The costs in this court. opinion range expert wide covered petitions rehearing running $3,200 valuations are denied. from $224.90 per share. witnesses Plaintiffs’ em judgment computing Draft fixing the phasis capitalization past pro damages may total be submitted. jected earnings. Defendant’s dwelt more apd largely capitalization upon earnings allegedly comparative carriers. It now directs our the- attention to absence of con tractual relation between the Steel Com pany ship company; possibility and the relationship of termination and the of all probable ship earnings company, dissolved, were the relationship com petitive prevailing contract at carrier rates. UNITED GROS v. STATES. think rightly the court considered the No. 10165. enlightening offered testimony par each Appeals, Circuit Court of Ninth Circuit. ty, but conviction the majority .of given too much credence 1943. rosy prognoses plaintiffs too little deterring elements cited defendant. analysis After mature and careful of all evidence, therefore, the court finds justify finding that it does not of value of $1,350 the shares in excess of each or in allowance damages in excess of the difference between that value and the plaintiffs amount have received. We think properly the District al lowed interest at rate per of five cent 1, 1936, May inasmuch as defendant been guilty declared of a breach .has plaintiffs trust and deprived have been property time of such Cervenka, breach. Golden v. 278 Ill. 273; 116 N.E. Dazey, Duncan v. 318 Ill. 149 N.E. Southern Pac. R. v.

Bogert, 250 63. L.

«79 failing register German Government and to agent in of the Act as of an violation VIII, 15, 1917, 30, 403, Title c. § June 226, Stat. and for ten U.S.C.A. § years, running concurrently the first with sentence, ap- charging on a second count wife, pellant with with his conspiring Gros, marriage, Frances before and after another, to unlawfully to disclose affecting the German Reich information National Defense in violation the I, 1917, 15, Title Act c. § Appellant 34. 50 U.S.C.A. Stat. by waived and the case tried his was judge. the district Appellant, born in the United States nine years was taken to Austria when age remained there and in Ger- many returned the until when he to testimony ap- States. The concerns pellant’s July, conduct from confession, procuring his hereafter con- Lavine, Cal., Angeles, Morris of Los conflicting evidence con- sidered. There appellant. for cerning charged commission of the his' Calverley, Atty., Howard V. Asst. U.S. and, con- crimes absence of Cal., appellee. Angeles, Los trial, acquittal at the an fession introduced possible. both was on counts DENMAN, MATHEWS, Before single-spaced typed is a STEPHENS, Judges. confession Circuit ^ eleven-page document of over four thou- appellant DENMAN, testimony sand words. to how was Judge. Circuit procured from him is it appeal This is from an sen- in the footnote.1 It was not contradicted tencing appellant penitentiary to matter. material years on count of an indictment five charging one Agents Bureau of In- appellant agent Federal to an judged European is, testimony it tion was but form Gros’ narrative “ * * * organizations government questioned po- that secret that he was days; very lice are doubtful he afraid B. I. he did not was F. for seven that they might totally thoroughly wife] that [his her if [his read it confes torture they sign anything signing; he didn’t wanted him sion] that he was over before to; say they so; had been that he doesn’t that would tired do that he too to him when he was arrested he torture but for seven in the field office F. anything I.; suffering nerv didn’t know about F. B. I. he is B. that they Germany granted ousness; might hut an took that that before he left they attempt her; [meaning Security torture that the S. S. officer Service, sign organization him a document which indicated that an started willing go was Himmler] and Heinrich he into Eeich Feuhrer Gestapo same him and him some that worked the came to see told that way; they happened people did him that not threaten with times accidents bodily harm; they happen him; him that treated all an could that accident * * * right, gave meals; him his that he made that it looks he cor like put cell; in a detention that there were document but does not rections he always coll; men them; F. B. I. in front of that and made he read it recall they that talked the matter on it but does not recall whole corrections including history; reading thoroughly; that that with life’s it over he does they conversation, day time of took notes recall what not right they signed; treated him all out and then wrote the statement he signed signed office, he read it at I. fed him and it and before he B. F. it; opportunities they ques it and made certain rest but corrections long things quite tioned him and he wasn’t there some that were quite good condition; right; know did not not he didn’t he on; really going type organiza- know I. didn’t have the F. Or he B. jection to the testified admission of his confession vestigation, January urged ground.2 for on that was not Dr. Gros It arrest had warrant to Act, appellant’s days be of error in brief. Eleven Service violation of Selective which, here, They hearing Supreme Court took fore the waived service. *3 he McNabb him reversed decisions in v. confined their and him into States, 1943, 1, 318 field office United March U.S. a in their a week in cell for L.Ed.-, 332, 608, Ander and He 87 Angeles, California. building in Los States, 1, 1943, son, taken March not be- et v. United and was al. not been before had —. during L.Ed. that 318 U.S. 87 magistrate S.Ct. committing a fore arresting officers required period, as of the sponte sua hearing At court this by 18 U.S.C.A. 595. appellant’s con- noticed the admission of January signed on The confession was imprisonment his fession obtained 26th, several investi- questioning after of In- Bureau by the Federal officers many over five daily gators for hours they should days six vestigation, after to the taken days. Sometimes he magis- committing have taken before a interrogations. Bureau’s office for sug- court’s Appellant adopted the trate. investigators several time Much upon the McNabb gestion and relied there inter- his door stood before cell Supreme Court. Anderson decisions counsel was or rogated him. friend No error, though contended It is that was so im- he permitted to visit while rights the vitals of a defendant’s going to prisoned. case, be considered may not a criminal in only his confinement The freedom raised at not appellate where by an court restaurant for trips in to a cell was in his States, 163 United Wiborg In the trial. Bureau office meals to the 632, 658, 16 S.Ct. No, bodily in- 3 harm was questioning. for has held Supreme 41 L.Ed. confinement, and cell other than the flicted claim of error contrary. There to the pressure questioning the continued court presented trial not to the rudeness of manner. without time the first for consideration came on appeal. Supreme Court held: “No Appellant’s imprison belief that his request that the or was made motion in the Gestapo ment cell seemed like the defendants, instructed to find for or which methods of many, he had heard Ger in exception to a either of them. Where an based is a warrantable in request duly a is of such motion or denial saved, stronger ference. No need be facts open is to the court to consider it evidentiary to show the Anglo lack of value is to sustain the whether there verdict, though evidence jurisprudence American of a con weight pass upon its not to pressed so from a cell-confined fession man And, question sufficiency. although this or period days. a five plain raised, properly a error yet was not if trial, At the time of the the Circuit so absolutely in matter was committed Appeals Court of the Sixth Circuit defendants, to vital we feel ourselves at in McNabb v. rendered its decisions United liberty (Emphasis to correct supplied.) it.” States, 123 F.2d and Anderson v. States, United 124 It it immaterial holding F.2d that is that is.obvious confessions, procured case, justice in this court of the court as charge whether sua against recognizes sponte admissible first calls of coercion attention procurement. Appellant plain “absolutely made no error vital to ob- defend- any opportunity attorney what; an or seven contact certain after that mentally anybody; know contact that didn’t he was that he he so worn going you they happen; signed anything what was that if would have that you picked up by police him; glanc- when are that he knows from secret ing only anything through know when don’t you about it and that the document police partially true; know secret is a true but he doubtful not all that you organization Europe, living minutes, is, a few read that two * * expect you anything happen minutes; could if could three sign anything they wanted; only objection 2 don’t that that made was corpus he had a few that corrections delicti was not shown. otherwise agree 3 Eide, Cir., would not him make other have United States 88 F. desired; Cir., White, corrections he that he 2d States v. request given opportu- made a an to be 77 F.2d 757. nity not corrections but he further laza). Congress then obedience appellant’s counsel ants” and has not ex- plicitly it, ap- first calls the forbidden the use of so urges or that counsel evidence procured. permit vital error. But to such evidence to pellate court’s attention be made the in the basis of a conviction it irrelevant therefore consider policy, federal stultify courts would Anderson cases in the NcNabb and Congress which has enacted into law. were ob objection that the confessions sji made at the trial. coercion was tained petitioners’ holding “In admis- Court, Supreme McNabb In the case improperly sions were received evidence coercion violated appellants urged them, against having and that been de That Court Fifth Amendment. *4 on this evidence their cannot convictions coercion on the consideration clined stand, we ourselves limited our and, apparently confine ground constitutional this as the court ultimate review principle the function of sponte, it under of considered sua the applied by and standards supervision the admin formulated of that “Judicial trial courts in the criminal cases. in the federal of justice federal of istration criminal are with We not concerned enforce- law establishing and implies duty the of courts practices except ment insofar as courts proce of standards maintaining civilized themselves instruments en- become of law are not standards and evidence. Such dure only forcement. hold decent that a of those merely by observance satisfied agencies regard duty the courts as securing safeguards of historic minimal justice liberty custodians FOR- and as summarized are of by reason which of trial upon BIDS that men should be convicted which we below law’ and process of ‘due the evidence secured under circumstances by force.” 318 trial really reach (Emphasis supplied.) revealed here.” 613, 87 L.Ed.-. 63 S.Ct. States, 318 U.S. McNabb United Supreme principle, Applying this L.Ed.-. 63 S.Ct. convictions of states holds case, case, Here, as in the McNabb Gros produced, as this confessions on committing magistrate. wrongly not taken before a im- questioning of by continued of confinement for Instead men, McNabb’s prisoned hours, illegal imprisonment fourteen Gros’ “The circumstances in which the state- In- a cell. for over five against admitted in peti- evidence ments question- hours’ five stead of the McNabb plain were tioners secured reveal a dis- days and here snread over five ing, it was regard duty enjoined by of Congress signed document 4,000-word produced the upon federal law officers. Freeman and hasty reading. a after Raymond arrested were in the McNabb that, We hold however the may night record middle of at their home. Instead facts, make known to us the “a decent re- brought being of before United States duty gard agencies for the of courts officer, as judicial or Commissioner as justice liberty custodians forbids requires, in law order to determine the suf- men permit] should con- be ficiency justification [us for their deten- upon victed secured evidence under the cir- tion, put they were in a barren cell and cumstances revealed here.” kept there for fourteen hours. For two days they subjected unremitting were is reversed and a new questioning by officers. Ben- numerous trial ordered. jamin’s confession secured de- Reversed and remanded. unlawfully taining him questioning continuously for five or six hours. The STEPHENS, Judge (concur- Circuit this McNabbs to submit to all without ring). the aid of friends or the benefit counsel. my point In concurrence I wish to out leaves The record no room doubt that signed by appellant the document petitioners questioning took only not the evidence received in the case place in the while ban of which comes under the McNabb v. arresting officers and before order States, United 318 U.S. commitment was Plainly, made. a con- L.Ed.-. resting viction through evidence secured flagrant kept guard disregard procedure who officers appellant during restraint Congress engaged which commanded has cannot be conversation, running making allozued to stand zmthout these officers courts accomplices themselves testified to the admissions made dis- wilful n type- In fact those conversations. con- termed written-signed document very form of is but a narrative fession con- apparent It is admissions. con- source very are the versations objection- must be fession and therefore This is not itself. confession able by ac- made admissions with confused be legal arrest time of persons at the cused made confessions or with admissions coercion. the absence thereafter in McNabb decisions to the In reference Anderson States, supra, and v. United mentioned States, F.2d it should I think opinion, main cases sub- these- in each the trial court pro- coercion question of

mitted the confession curement of *5 issue. relative to all of the evidence UNITED STATES.

AUERBACH SAME. JOHNSON 9330, 9331.

Nos. Appeals, Circuit. Sixth

Circuit Court 24, 1943.