*2
Testimony
prohibi-
law
7. Criminal
©=>386—
tо the District Court
Error
Unit-
tion official as
conversations
heard
tapping telephone
incompetent,
held
be-
not
ed States, for the Northern Division of the
covering
cause not
all conversations
heard
Washington;
Western District of
Jeremiah
[Comp.
§
Prohibition
St.
Neterer, Judge.
seq.]).
et
10138%
Testimony
prosecu-
official,in
Roy Olmstead and others were convicted
conspiracy
tion
tion Act
to
to violate National Prohibi-
for
conspiracy
violate
National Prohi-
(Comp.
seq.),
relative
§
St. 10138%
Act,
they bring
bition
error. Affirmed.
by tapping telephone
heard
See, also,
wires,
incompetent
F.(2d) 756,
reason
not
held
purport
not
cover all of conversations
did
heаrd on
(2d)
19 F.
witness and
officials.
wires
Carrigan,
J. L. Finch and Paul
both of
©=>393(1),
law
8. Criminal
394—Introduction
Seattle,
plaintiff
Wash., for
in error Olm
by tapping telephone
stead.
defendants’ con-
wires held not in violation of
Finch,
Seattle, Wash.,
J.
for remain
rights
(Const.
Amends.
Na-
stitutional
plaintiffs
tional Prohibition Act
§St.
error.
10138%
Revelle,
Atty.,
Thos. P.
U. S.
and C. T.
prosecution
Na-
McKinney,
Atty.,
Asst.
Seattle,.
both of
(Comp.
§
Prohibition Act
St.
tional'
et
10138% Wash.
of evidence obtained
introduction
by tapping telephone
prohibition
and
ants
wires
officials
RUDKIN,
Before GILBERT,
DIE-
listening to conversations between defend-
Judges.
TRICH, Circuit
rights
violation
defendants’
held
Amends.
under Const.
GILBERT,
Judge. Ninety-one-
Circuit
law
each of
9. Criminal
©=>984—Sentence
defendants were
for conspiracy
indicted
to-
import
liquor,
conspiracy to
counts for
barter,
sell,
prop-
the National
held
violate
and furnish
imposed.
erly
seq.).
§St.
of them
Some
were-
10138%
Sentence
acquitted;
apprehended;
some were
oth-
St.
the National
violate
pleaded guilty. Twenty-one
ers
were convict-
seq.)
properly imposed
§ 101.38%
join
ed, import
whom
the writ of
charging conspiracy
error. The»
each of counts
liamson v. United
crime,
necessary in a
tional Prohibition
ly
an indictment
for bills of
plicable
es,
United States
defendants
With the
v. United States
cause of the
advised the defendants
said
possess intoxicating liquors
ing,
knowingly
maintain
to violate the
hibition
uors,
does not
conspirators
sustained,
facts sufficient to show the
The count
offense
engaged scouts, transfer
nearly $200,000.
delivery
count 1 of the
attorney.
cache
men, telephone
ployment
tered, and
transportation
intoxicating liquors
points, the
liquors in violation
[1,2] It
ers,
*3
barter, sell,
common nuisances; second,
dence of
a conspiracy
port
Sound,
availed themselves of it. The count
transactions that each month
If further
act,
and
count,
violate
operated.
Ct.
intoxicating liquors
the
47 Ct.
that the defendants
rule is
Act,
the
transport
at Seattle of
collectors,
bartering
requisite particularity
specify
common
is contended that the
the
liquor.
on the
of
certainty,
sо demurred
A farm
sell, barter,
had their
numerous
particulars,'
concealment of the
we
landing
accusation.
deliver, and furnish
it. All the details
a-delivery
for a
provisions
purchase
count
(C. A.)
particularity
thus
thereof on
think,
the United
operators,
There
unlawfully
(C. A.)
sets
ground
the section of
possess,
Act,
unlawfully
nuisances
was
substantive offenseare not
three
(52
of
stated:
to a
71L.
forth
fleet of boats
200 eases
remedy
trucks and
the act.
was evidence of a
but that
possess
purchased
of
system,
British
to have been
men,
conspiracy.
intoxicating liquors.
Wong
bookkeepers,
the waters
charges
transport,
Ed.-;
large quantities
is the
dispatchers,
cargoes
exchange
thе National Pro
commission of an
should have been
clearly
States,
violated the
they subsequent- possessed, and
the nature and
“In
office
by application
F.(2d)
counts:
278),
There was
of
in which
Tai v. United
fails
same,
they conspir- been to
Columbia,
keeping,
requisite
conduct and
violation of
amounted
demurrer to
desired,
to maintain
intent,
gist
intoxicating
automobiles
willfully
at which' to
sufficiently
men,
same,
charge
at various ifications of
was
sufficient.
425, 447,
Miller v.
National
violated.
of
said
and im-
the
Belvin
charg- ous
that it
and an
check-
allege
Puget
Wil-
First,
sales-
char-
daily
suf-
were
Na-
sell
ap-
the low
liq
em- bills be
evi- the
the numerous
to
of
.
pleas
ernment,
dence. United States Gouled
F.
ed such demands
fendants
spired
shown to be a
toxicating
where
refusal
act he committed
fendants was
showing
record
ficient information of the
bills of
might prepare
States, supra.
able to
er
urged
cretion.
liquors
liquors,
defendant
templated
indictment under
lawfully,
toxicating
forth
of
items of evidence,
ticulars. The
requisite
fendants
aey.”
ficient
[3]
particulars
discretion.
We
struck out the
the
details,
It is
when,
demand of the defendants for
accusation,
Error
it was
it was
that the denial of
trial,
here to indicate that
the
of further information. Here the de-
are convinced that there was no abuse
States,
particulars
unduly
plead
National Prohibition Act claimed to
Johnson v. United
United States v.
furnished,
when and
each demanded bill of
assigned
places
in addition to those mentioned in the
place
possess
conspired
identify
what
liquors he
defendants
violated and the kind of alcoholic
all of like
entered
interrogatories
liquors,” etc.,
for the same offense. Bartell v.
the
imported
stating
possibly
alleged in
taken
assigned
the record in bar
was in abuse of the court’s dis
for trial
party
demands
when,
transportation
prejudiced
227
limit and embarrass the
There was no failure in the
And
to
charges.
approximate
intoxicating liquors
in order that
583;
pleas
pursuant
the
as error that
places
unlawfully,
which,
U. S.
setting
the offense which
by surprise
addition
nature. To have
and so
we find
particulars
charge
ordered
from,
conspired
what
and after
conspired
Wong
shut material evi-
required
commit,
substance
object
the demands for oth
Pierce
nature and cause
427, 431,
The court ruled that
abatement.
and that
conspiracy.
out the
calling
thereto,
out
on,
act
“divers other in
court’s
any way by
time
to further
nothing
of
Tai
which,
where it was
the court be
to
with numer-
to what
he would be
is all that is
judgment
the accused
(D. C.)
an answer to
(D.
furnish suf-
would have
intoxicating
particulars,
bills of
import
when
provisions
33
a
what
C.)
he con-
import,
further
conspir-
and
In the
grant-
in the
course
S.
three
what
many
gov-
spec
port
con
par
de-
un
Ct.
by greatly
ing with
was
tended
form аs
terpreted, and
foreman indorsed thereon.”
returned into court with the name of said
peared before a United State
versation was
jury;
mony no evidence of
hearsay;
evidence
from” to
therefor
charge
issued
books,
that some
cated
was
ing the
officers
Whitney
a
alleged
unless
and the evidence
plea
and “within an hour
presented
be made
fendant’s
duced before
district
whatever
ed
evidence
new
two
said residence
For
virtue
In the
liquor; that said
thereby
of
illegal,
alleged
without a
city
be included
by the
said
but found
the indictment were returned
set forth
papers,
grand jury
indictment;
that the
abatement, no
attorney at the instance of
a
befоre the indictment
“purported to read
presented,
them, tapped
had
thus
called the foreman of the
grand jury
the
was
second
prove
residence; that
that it was
influenced
before said
of said
plea
prohibition officials;
also,
officials,
coerced to vote for the
as a third
evidence
procured
said warrant a
commissioner
grand
Seattle
so held the indictment
obtained
expounded
introduced
irrelevant,
of the defendant Olmstead it
except
the defendants
in that it directed that search
showing
heretofore
ground
grand
and carried
prohibition agents
and found no
offense;
the indictment.
called and said
together
agents
jury,
memoranda,
any
room and told
the indictment
during
grand
wires of divers
received
longhand
(Whitney)
a
and without
grand jury
seareh warrant
that,
well as
of
character was
before said
was
incompetent and
and others search-
thus made use
to search said de-
that the foreman tial
referred to in
abatement was
large
which
away
passages
probable
after said
same;
“except
seareh warrant
period
explained, in-
was returned not be
commissioner A.)
drawn
for intoxica-
that
intoxicating
would have
indictment,
grand jury incompetent
others act-
number of
abatement 264;
that testi-
proved
in return-
Whitney,
him
here
foreman
that
had
an hour have
persons
of tele-
of
nature ment to
X»
it
impli- unlawfully procured
grand
there-
there-
intro-
cause
to be
them
that, affirmatively appear
sev-
was
ap-
F.(2a)
v. of,
UNITED STATES
or
forth
turn of
mitted
must
—properly,
the sole demand
no
law,
that
facts
certainty,
United
lieves.
grand
those
tions that the court
ference must
ing
vestigation
must
lief is
the
fendant
plea
United
petent
fense
true
States v. Standard
Hillman v. United State
sufficiency
jury,
court.
C.)
(D. C.)
[5]
exclusion
personal knowledge of the
testimony
F.
rights
a
We find no error in the
nor
a
“as
the rule.
been to
be
states
the decisions
stated
McKinney
of most
insufficient,
plea
dilatory plea
jury,
abated, on
25;
evidence
State
While
court below
the
F.
pleaded
265 F.
an indictment
pleas
abatement,
F.
evidence
forth
accuracy,
of
proved or tended to
in abatement to
indictment,
verily
Anderson v. United States
or unless all of the
we think —that a
therein are
the effect
indictment.”
grand
the evidence before the
it is
here
(C. A.)
The defendants
of the inferior federal courts
859. And it is
therein
facts,
offered
Ann.
with
hearsay
United
justify
the contents
United States
v. United States
of a
account of the admission
relevancy
accused,
believes.” It
Oil Co.
of
the rule
the commission of
ruled that
fall
jury.
makes
will
facts,
strict
in violation of
Cas.
and not
that
defendant
was
charge
and enter
State
true
the
short of
testimony,
not favored in
information
141 F.
Supreme
States v.
1138;
(D. C.)
completeness,
exactness and with
so as
an indictment can
(C.
an
plea
ruling
affidavit
pleader.
and
indictment, upon
presented
inquire
objection
uniformly
indictment,
v. Silverthorne
many jurisdic
could have had
plea
conclusions
verification of
that
him.
prove this
evidence sub-
v. Morse
has been
sufficiency
evidence
he
that no com
225;
his
Chadwick
*4
upon
who,
154 F.
charges set
A.)
compliance
of
Court and
Bopp (D.
verily
subject
of abate-
every
unless
Ct.
plea
that
substan
into
Holt
United
192 F.
to the
(C. C.
an
grand
728;
trial
held
law,
held
was
(D.
be-
be
his
be-
of
in-
in
of
it
it
therein,
whether
would
versation;
Mrs.
volume as bound contained
book and
ney
that no
tween
state who was
the
tening
Whitney,
passed on to another
sheеts
wires, took
Mrs.
notes and memoranda
ments
manner,
warrant
from his
inating
follows: That a
notes;
not of
cause,” and
alleged
alleged
one,
conversations
ever
C.)
Olmstead’s contention
C.)
memoranda of
said
original
An
allegation presents
Whitney
he was
sometimes
Whitney;
prepared
ask
any
in while
fact,
grand jury
that
conversations over
matters.
other witnesses
impeach
attempt
he overheard
assignment
volume;
evidence was
plea,
“without
residence,
who lost
adduced
him,
of the
read the conversation
the sheets she had
other
was therefore
then
notes thereof
at
memoranda
*5
alleged
speaking
specifying
another,
the end of
by
рrohibition
that
he
was made to
close the book and
compare
agents
Mrs.
defendants, and,
before
that the district
certain
books and
a showing
proceeded
which contained incrim-
witness would
the
trial
search
the
obtained
is that in his
to use a
were
were
true
Whitney;
destroyed
listened
error
responsibility
worked in the
question
have been
complete
were delivered to
the date
court,
the
incompetent.
tapped
alleged telephone
conversation be
agent,
warrant.
permitted
typewritten by
longhand,
day’s
evidence what-
challenges
show
bound
to extend
written;
papers
give
former state
plea
when
Whitney,
would meet
that Whit
Morse
the
sometimes
answer
submitted
telephone
open
work the
plea
recorded
probable
attorney
made as
the con
law,
that the
give
a search
volume
certain
alleged
same;
so,
taken
hour,
.But
that
it
lost
use
(D.
lis
his the reason
his Evidence
facts therein stated were fresh within
that
by
as then
ory.
not made
by referring
when he read
writing
ollection,
which
while under
he could
transaction was at
abe valid
at the
it had
Pacific
dum
facts as are within his own
recollection,
the witness whether he had
recollection, yet
specting it,
[7]
assist
strument,
essary
£>aid
“Though
any
presented
the witness' within
own
Nor
(C. A.)
by
the
Chase’s
The
his
he
Wigmore (2d Ed.) par. 759,
Grunberg
been
written
witness
81,
made,
Coast S. S. Co. v. Bancroft-Whitney
time оf the
made
recollection.” In
may
a witness to refresh his
testify
is
was the
court: “The court itself has asked
judge
memory
the
witness
by himself,
invisible; tangible, the one is the other prosecution for to violate ; sealed, unsеaled; ible the one is and the other National Prohibition Act §St. but these are distinctions without a difference. seq.), testimony by defendant, who pleaded guilty person using telegraph telephone and was as witness for called government profits relative division of broadcasting to the world. His conver- during members of obtained public completely sation is sealed from the bookkeeper, versation held admissible employ- instrumentalities the nature performing of one in method statement services fur- concerning or feder- will federal officer therance permit, no operation of defendants. message agent right to take his al has a wires, be used order <@=>256Denying 4. Witnesses — defendants of memoranda used deplorable witnesses to a situation would be him. Such recollection, separation portions, refresh intolerable, say the least. Must erroneous, opportunity held not in view of people who use the ev- millions of inspection (National Prohibition Act ery day purposes have mes- for lawful their [Comp. 10138(4 seq.]). St. § interrupted way? prosecution sages intercepted in this National Prohibition Act §St. personal, private, and confidential their Must right pos- denial to defendants of family, friends, busi- communications overnight inspection session of volume con- scrutiny pass through any ness associates taining memoranda of conversations overheard by government agents, they part on the in whose selection tapping telephone witnesses separation wires, portions and for of book choice, perform- and for the faithful have no used to witnesses, refresh recollection of held security? ance of whose duties erroneous, where was no there denial of very Agents, whose names and official sta- inspect opportunity complete volume. many kept concealed tions are instances <@=>650Denying application 5. Criminal law — If ills such' as them. these must be experimental test ability of 'witness’ signally borne, failed in forefathers bur identify voices over not abuse оrdain and establish a desire to discretion liberty blessings §St. themselves secure .et 101381/4 *9 posterity. to violate the and their National Prohibition § St. judgment should be reversed. seq.), wherein witness testi- tapping fied to conversations heard on tele- phone wires, application permis- refusal of experimental sion make test of witness’ abil- al., * UNITED STATES. GREEN ity identify voices heard over held erroneous, within discretion Appeals, Court of Ninth Circuit. Circuit of lower court. May 9, <@=>326,330(1) Refusal, 6. Witnesses on cross- — No. 5006. impeach rebutting testimony, examination <@=>1072 require' words, forbidding to write certain law writ I. Criminal —Rule proper filed, error, assignment unless of errors practice (Circuit St. § Court rule rule of 101381/t ID. requiring that no rule writ Circuit Court § St. Nаtional assignment allowed, refusal, unless of shall be cross-examination to im- of error *Rehearing July denied recorded phone room eral day’s typewritten volumes were submitted to the months, and made work, they conversations, the said by dictaphone and prohibition officers, were passed brought grand jury; bound in which, over into the at the end subsequently to volumes; notes others, and that the of each indictment could to be jury fluence foreman court was not Whitney, there whatever, upon exerted matters alleged required to undue not be sustained alleged coercion influence, or jurors, allegation go behind pleas foreman any in- re-
Notes
tified that tions at she the conversations. made not be he had time thereof, and the independent The court ruled that he to read notes witness tes- recollection home be conversa- fice the book. be pers belonging papers suppressed and documents suppressed as to Finch, as to him; taken from taken from him; that whether was that the Olmstead’s safe, pa STATES OLMSTEAD UNITED
[19]
[843] E\(2a) merely condoned, any but is papers Finch’s office dence is no means taken from 103, Ill. People, 138 might ignored.” used must be In Gindrat v. 4e Olmstead “Courts, in the ad assignment upon the No of er- 27 E. it is said: termined trial. N. not law, are ac any subsequent is as to use ministration of the criminal ror made regard oversensitive papers. those It was further ruled that customed to and will tap- comes, suppress evidence petition to evidence obtained which sources from compe is ping evidence that wires denied. themselves all avail some subversive of pertinent It the latter and not contended tent and is legal right.” In Adams rights under Fourth the defendant’s constitutional York, Fifth Amendments to Constitution were New papers protection held that fact that of those amend- violated. posses however, illegally taken from the ments, may never extended to have been of are whom party the exclusion listen- sion persons objection their admis at to the conversation of a valid fered cоmpe considers the sibility; under circumstances. The prevent not the method tency amendments the invasion of the evidence and officesand the seizure of incrimi- homes and was obtained. which defend nating imposed evidence found therein. Whatever The sentence
[9] imprisonment for tapping two be said of the wires included ant Olmstead indictment, privacy years as an unethical intrusion each of the counts consecutively. contend persons suspected crime, It is who terms to run charged in effect but an act within letter of the counts comes two which violate the provisions. of constitutional impris Act, for disputed is not obtained National Prohibition years. Thе conten through vision one who windows or is limited sees onment
should be reversed. indictment should be case took the able number tance, the defendant Finch There was established, of the ranch jury, or because of unlawful threats made cealment of the concerned. The same against blank. the indictment. RUDKIN, We find no writs of (19 case and will be of the crimes in which the prohibition agents, competent the foreman of deed thereto with the little doubt F.[2d] which was used are error in error Circuit stocks questions 850) testimony It is charged, It general public that at least negotiated is true in plaintiffs quashed this were was Judge (dissenting): accordingly considered which the judgment if such and the of minor shown, also, aas before sued and whether the ious, the grantee’s large because in error are by and that he jury by threats a consider- writing of some character. out in the following are little purchase together. affirmed. measure of con impor- grand name there are having they could refer for that it will exist to use a memorandum of a remember; they tion thereof. roneous. It is one ing means the beyond when it was notes quite independently event, said: song, condemning “But that is “Clearly, former some mental recollection of an witnesses or a (cid:127) for when so in their hands the memory memory ease is power face, correctly recorded, from their we True, they werе not the case here think, had no operation, or a apart of the witness so to restore is stimulated to recall the thing set motion it functions is facts which unable to quite of the actuating cause. practice Judge event, quickened; may newspaper item, these from the record. independent to' awaken a slumber- copied had a immaterial what recollection, but however , rulings is sufficientthat testify they general but data to which quite reports, presented. presently could not were recollec- Dietrich without myster- another recol- fresh or a er- a v. UNITED STATES
[843] 19 F.(3a) to n history years during previous pertained, then entire lection of events the data republic. they I think it is also matter of had to resort to those notes dates of the bnt growing persons, quantities and the that there is a and names purchased. pressure, tendency upon ignore consti- liquor Under to encroach kinds true, reply leading questions, rights. For there excuse. and in tutional this is no they lawyer: they great had an As said constitutional instances answered that some they country independent recollection; obviously people “When the of this come but rulers, they misapprehen- under a measure of to decide their answered acts they things for, if needed to refer their rec- will all into consideration. take these sion, only present recollеction, presents political aspect of the to arouse a the But that ords reading nothing mak- case, records and the do here. which we fully misap- only prevent therefrom would have I say, of notes serv- would order to purpose. prehension, precisely It would not have been nec- that I think it is essary for them to hold in hands the time of war and civil commotion that we copied guards upon notes and refer while to them should double the the Constitu- giving testimony.” peaceable quiet times, legal tion. our case, present witness, overborne; rights danger witness after little day day, names, dates, after testified to power but when the lashes itself into wave of events, unerring rage, goes surging numerous and with such up so violence and accuracy, apparent it, that-it becomes once at barriers which were made to confine book, and not the witnesses, strength of an un- then we need the whole speaking. opportunity A better to color broken to save Constitution us destruc- testimony parte could well be Milligan, (18 fabricate devised tion.” Ex 4 Wall. said, perhaps, 281). man. It the wit of should be below, in deference to the court case But, tendency may this whatever inbe was tried before the decision in the indicated, quarters, Jewett I direction have in other Case was announced. fortunately Supreme Court has its face my But dissent based muсh broad- consistently That it. thin]!; grounds. er I do persistently declared that the amendments in thus obtained federal officers or question liberally must be construed in favor any event, is admissible in however the liberty, and his the citizen proved. Of I course, stealthy encroachments will not he tolerated. agree majority will not courts guaranties Nor are the in these contained ordinarily inquire into the manner which papers. amendments limited-to houses gains information, his there are pro Their chief aim and not the exceptions rule, as well established property, protection tection but the the rule itself. For I illustration need liberty privacies individual and in the many Supreme refer to the decisions of the Boyd life. v. United Court, of this and of court, the courts oth- 29 L. Weeks v. United