The question here presented is as to the sufficiency of pleas in abatement and motions-to quash three indictments, by which the defendants are charged with having conspired to violate the National Prohibition Act. Summarized, the grounds for these pleas and motions are: First, that unauthorized persons were present before the grand jury which found the indictments; and, second, that the *256 proceedings of the grand jury were not kept secret. In support of each of these grounds the defendants urge various contentions, which are hereinafter stated and separately considered.
The grand jury which returned these indictments was in session from the 5th of March until the 20th of July, 1931. The greater portion of its time was consumed in considering evidence which resulted in the bringing of the three indictments here in controversy, its term being extended by orders of court to enable it to complete its work. A great mass of testimony was presented.
Taking up the first contention, which relates to Mr. Coldiron, a Special Assistant to the Attorney General and one of the two persons whose presence before the grand jury is alleged to have been improper, his authorization is contained in the following appointment by the Attorney General:
“Department of Justice “Washington, D. C.
“April 30th, 1931.
“Mr. John F. Coldiron,
“Special Assistant to the Attorney General,
“Department of Justice.
“Sir:
“You are hereby appointed a Special Assistant to the Attorney General, under the authority of the Department of Justice, to assist in the investigation and prosecution of the ease of: United States vs. Amazon Industrial Chemical Corporation, Joe J. Darvin, Nate Schaxlon, Jack Stein, Agricultural Chemical Works, Herman W. Lefkowitz, Southern Lacquer Company, Aaron A. Eisenberg, Ben Eisenberg, Ben Friedman, Sam Albrecht; Phellip Balsamo and others.
“In that connection you are hereby specifically authorized and' directed to conduct in the District of Maryland or in any other judicial district where the jurisdiction thereof lies, any kind of legal proceedings, civil or criminal, including grand jury proceedings - and proceedings before committing magistrates, which district attorneys are authorized by law to conduct.
“You will receive no compensation other than the compensation you are now receiving as Special Assistant to the Attorney General, but subject to law and the regulations of the" Department, you will be allowed your actual and necessary traveling expenses and $6.00 per diem in lieu of subsistence when away from your headquarters on official business.
“You should execute the required oath of office and forward the same to the office of the Appointment Clerk, Department of Justice.
“Respectfully,
“William D. Mitchell, Attorney General.”
Defendants claim that this commission is defective in that it fails to refer, either specifically or generally, to alleged violations of any federal statute. We consider that this argument is too great a refinement and not to be supported. It is true that the nature of the investigation, and the statute alleged to have been violated, are not set out in the appointment; and it is further true that it is customary to describe such an appointment with more particularity than was done in the present case. However, failure to do so is not fatal, because a mere matter of form and not of substance. The authority for the Attorney GeneraFs appointment of Mr. Cold-iron is embraced in the Act of June 30th 1906, 34 Stat. 816 (5 USCA § 310), which is as follows: “The Attorney General or any officer of the Department of Justice, or any attorney or counselor specially appointed by the Attorney General under any provision of law, may, when thereunto specifically directed by the Attorney General, conduct any kind of legal proceeding, civil or criminal, including grand jury proceedings and proceedings before committing magistrates, which district attorneys may be by law authorized to conduct, whether or not he or they be residents of the district in which such proceeding is brought.”
Whether there was authority prior to the passage of this act for the presence of any representative of the Department of Justice in the grand jury room, other than the United States attorney for the particular district, is a question which we need not here determine. See 5 USCA §§ 312 and 315. It ■ appears that in order to set at rest any question as to the right of special assistants to appear, the Act of June 30, 1906, was passed; there having been a disagreement in the decisions as to the scope of the earlier statutes. See U. S. v. Rosenthal (C. C.)
Numerous cases have been cited to the court from other districts from which it would appear that those districts have been inclined to insist upon a rather full and specific designation of the offense, and of the statute alleged to have been violated. But this is a procedural matter, largely within the discretion of the courts of the various circuits,
*257
and, at most, the appointment now in controversy is merely a variance from an established practice of which a defendant himself has no right to complain. Even if the wrong statute is named in an indictment, the indictment may he good, provided the facts alleged therein constitute a crime. See Williams v. U. S.,
The second point made against the validitv of Mr. Coldiron’s commission is that, while naming twelve defendants that were subsequently indicted in two of the indictments, it fails to name a number of other defendants embraced m the third indictment; and also that none of the twelve individuals and corporations so named in the commission and indicted in two of the indictments were associated, or indicted with those in the third indictment.
This contention we also find to he without merit for the reason that the commission, by the inclusion of the words “and others” after naming the twelve defendants, obviously contempiated an extensive investigation, which might embrace persons or corporations not at the moment sufficiently disclosed as to their activities to enable their being specifically named. Defendants argue that the inclusion of the phrase “and others” cannot be taken as a blanket catch-all; that its proper meaning is “others associated with them”; that it was never intended to mean ‘all others77; but that its general terms are limited by the specific names preceding it. In support of this contention, we are referred to such cases as Winder v. Caldwell,
Finally with respect to the sufficiency of Mr. Coldiron’s commission, it has been suggesfed, but not stressed, that the oath which he took, and which is as follows, was not in compliance with the Act of June 30, 1906:
“I, John F. Coldiron, do solemnly swear
that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this Obligation freely, without any mental reservation or purpose of evasion; and that 1 will well and faithfully discharge the duties of the office of Special Assistant to' the Attorney General of the United States on which I am about to enter: So help me God.
“John F. Coldiron
«Subscribed and sworn to before me this
day 0£ p,. -193].
‘‘Nellie" E Bishop
«[Notarial Seal ] Notary Public
of entry upon duty May 4. 193L
«R.esidence Washington! D. C.”
We consider this suggestion entirely trivial. The oath is entirely sufficient as to form and substance. The fact that Mr. Cold-iron took it in Washington, rather than the district of Ma^nd, is immaterial,
Coming now to the next contention, to the effect that the presence in the grand jury r00m of another person, Mr. Koontz, who took down all of the testimony in shorthand, was unauthorized, we find that he acted under the following appointment, also from the Attorney General:
“Department of Justice
“Washington, D. C.
«CEL Aprii 23, 1931 CBS-be
“23-35-163
Edward L Koontz
«c/oUnited States Attorney,
«Baltimore, Maryland.
i<I)ear gir.
„„ , , . , . „ . . . “You are hereby appointed a.Special As. , . , TT ,UA , , sistant to the united States Attorney ior the „ ,T , , , ,r ., P District ox Maryland, under the authority or. « -r ,, J „ the Department ox Justice m the case ot TT ^ i T • -vr i United otates vs. Joseph J. Damn. JNate ~ >T n i n j, . bcharlm, JNorman Paul, southern Daequev ~ 7 TT. . T \ -> ,i ■ Company, Jtiarry A. Isenberg, and others, ra, I ,, J _ • , . , , 7 voivmg an alleged conspiracy to violate the & . , • ,, , .National Prohibition Act. In that connee, ,, . Y tion you are hereby authorized and directed , J - , . ,, ' , . , n __ to eonduct m the District of Maryland, or m °lher d^triot whore the junsdictlon £ lles.’ ^ kmd o£. le^al Prfee(lmgs, civil or criminal, including grand jury proceedings and proceedings before eommitting magistrates, which District Attorneys are authorized by law to conduct.
“Your compensation will be determined by the Attorney General upon the conclusion of your services and will be paid from the *258 appropriation for ‘Pay of Special Assistant Attorneys, United States Courts.’
“Please execute and return the enclosed oath of office.
“Respectfully,
“William D. Mitchell
“ENCL. Attorney General.”
The basis of this appointment is the same statute as that under which we have seen Mr. Coldiron was appointed, namely, the Act of June 30, 1906.
Defendants contend that Koontz’s authority under this commission was limited to the conduct of legal proceedings, and that since he did not conduct any such proceedings, which is admitted, but acted'solely as a stenographer, such action was unauthorized, first, because in contravention of the express language of his appointment; second, because there is no statutory authorization for the presence of stenographers in federal grand jury rooms; and, third, because at common law, stenographers are not, and have never been, legally authorized to be present at such proceedings.
With all three of these contentions we are in disagreement. As to the first one, since, admittedly, it was never intended that Mr. Koontz should be more than a stenographer, it would have been better to have so appointed him, because the accomplishment) by indirection of what may be directly done in a matter of this kind, is not to be looked upon with favor. Nevertheless, such practice is not fatal under the circumstances. In fact, the precise procedure here adopted by the Attorney General was followed in previous instances and approved by the Circuit Courts of Appeals of other circuits, and, presumably, it was in reliance upon such decisions that the procedure in the present ease was pursued. We see no reason to go contrary to those decisions. See Hale v. U. S.,
In view of the aforegoing, it is scarcely necessary to discuss in detail the two remaining arguments made against Mi*. Koontz’s appearance as a stenographer before the grand jury, namely: (1) That there is no statutory authorization for the presence of stenographers in federal grand jury rooms; and (2) that at common law stenographers are not, and never have been, legally authorized to be present at such proceedings.
To the objection that there is no federal statutory authority for the presence of stenographers before grand juries, it follows from what has just been said that this is a question of statutory construction. In some
*259
districts it is held that their right to be present is embraced in the Act of June 30, 1906. Hale v. U. S., supra; U. S. v. Haskell, supra. In other districts it is held that this act has no relation to stenographers. Wilson v. U. S., supra; Wilkes v. U. S., supra; U. S. v. Rockefeller (D. C.) 221F. 462. By inference, at least, these latter decisions support the view which we believe to be the correct one, that the right existed at common law. This, we think, necessarily follows from the very nature and object of a grand jury proceeding, when viewed in the light of modem conditions and the exigencies of any particular set of circumstances. The rule is properly expressed, albeit in a dictum, in U. S. v. Heinze (C. C.)
Defendants assert that the procedure hero in controversy, and of which we approve, may validly he adopted only where one or more of the following circumstances exist: (1) Where it has been the long-established practice; (2) where the stenographer is a regular member of the district attorney’s staff; or (3) where a state statute gives persuasive force to the desirability of making the federal practice conform thereto. The practice in the Second, Sixth and Eighth Circuits is cited as an anomaly because meeting' these exceptional requirements. See U. S. v. Simmons (C. C.)
The first two objections are squarely met by the Wilkes and Hale Cases, supra, decided in the Sixth and Eighth Circuits, respectively, where it was for the first time determined that stenographers who were totally disconnected with the district attorney’s office had a right to he present in the grand jury room. That Mr. Koontz’s authority was unauthorized because he was “a chance man,” and not a regular member of the district attorney’s staff, scarcely needs to ho mentioned. There is no contention that his oath was not adequate. It was identical with Mr. Cold-iron’s, and was taken in Maryland, although not filed with the court papers. He was as a matter of fact a member of the local bar, and concededly eminently qualified, from long experience as official stenographer to the Supremo Bench of Baltimore, to carry out his allotted task before the grand jury. As to the third objection, it is true that the Baltimore City Charter contains carefully drawn provisions setting forth in particularity the conditions under which stenographers may be attached to city grand juries. But as was said in U. S. v. Simmons, supra (page 67 of 46 F.): “While a statute o£ the state does not control the practice of the courts of the United States in criminal eases, the existence of such a provision in the laws of the state clearly indicates that the presence of a stenographer before a grand jury is not inconsistent with a due administration of! justice in criminal cases.”
Shorthand writing is a relatively modern invention. The work of grand juries in recent times exceeds, both in character and complexity, anything ever contemplated by the legal procedure of two or three generations ago. Therefore, what was considered adequate in the past is no index of present needs. The grand jury is an entirely independent body. It is to be assumed that its independence can only he adequately asserted by keeping step with modern progress. It is just as idle to say that a grand jury may not need a stenographer, as it is to say that a trial court itself may not need one. To deny such assistance to the one is as unreasonable as to deny it to the other. The fact that stenographers have never before been used in grand jury proceedings in this district is of no force, because wo are not now concerned with what has been' done, hut rather with *260 what may legally he done. The very faet that the proceedings here involved were perhaps the most extensive and embraced a larger volume of testimony than ever heretofore considered by any grand jury in this district, is in itself sufficient ground to establish the reasonableness of invoking this modern form of assistance in the jury’s deliberations. Thus the .contention that the act of perpetuating the testimony in full was calculated to impress the grand jury with the idea that an indictment was expected to follow is specious. It is an unwarranted reflection upon the in- ■ tegrity of the grand jury. They were still free agents, free to weigh and to declare the weight of the testimony by their findings.
The correct rule is well stated in U. S. v. Rockefeller, supra, pages 466, 467, a decision (not appealed) of the District Court for the Southern District of New York, in which the following is said:
"It seems to me that, if the testimony given before the grand jury may not, under any circumstances or conditions, be made a matter of record and reference, we are opening the doors very wide, and inviting not only perjured and incompetent testimony, but even gossip and conjecture, before the grand jury. The proceedings there are not in strict accord with the proceedings in the trial of a case, and, if no safeguards are provided, many witnesses may be influenced or persuaded or induced to indulge in statements and accusations which ought not to be permitted or tolerated. * * *
"I would not think the question a particularly difficult or doubtful one, were it not for a very recent decision by an able and cautious District Judge of this circuit, presiding in another district. United States v. Rubin (D. C.)
We are referred to various reports in recent years of the Attorney General, showing that he has sought the passage of bills in Congress, providing for the presence of stenographers before grand juries. These measures have not been passed. But whether this proposed legislation was considered necessary, or merely desirable in the interest of uniformity, we need not attempt to determine.. Such legislation would successfully remove such divergence of opinion and practice as may exist on this point, but this lack of harmony does not persuade us to depart from the recognition of an inherent right,, which has always existed in this district, although not heretofore exercised.
We now come to the second major contention made by defendants, which is that the proceedings of the grand jury were not kept secret. In support of this contention they rely upon the following facts respecting the method of transcription of stenographer Koontz’s shorthand notes, taken in the grand jury room. After taking shorthand notes of all the testimony at each of the various sessions of the grand jury which he attended, Koontz carried the notes personally to his own office, where he conducts the business of court stenographer. This office he occupied jointly with one other stenographer. Pending transcription of his notes, which accumulated from day to day, he kept them, some in his own desk under lock and key, and others in a safe deposit box which he rented for that purpose. Erom time to time he took out various portions of his notes and translated them into a machine now in common use, known as the Ediphone, employing wax cylinders onto' which the dictator talks through a tube, what he saysi being recorded on the wax cylinders by means of a needle; in other words, the well-known phonograph principle. The cylinders from this machine on which thel testimony had been thus recorded were filed on racks in Koontz’s office and taken, from time to time, by persons in his employment, to another office on a different floor in the same building, conducted by a group of public stenographers, where the cylinders were put on a second device known as the transcribing machine, and from that repeated to one of these public stenographers, who transcribed them into the typewritten pages. After each such transcription the cylinder records were shaved down, that is to say, the impression was destroyed so that no further transcription could be made, and the cylinders were thereby put in condition for use over again. The transcribed typewritten pages, when ■completed, weré returned by messenger to Mr. Koontz’s office, who directed any necessary corrections therein, which were made by the same stenographer who had transcribed them originally. The finished pages were then placed in a cabinet in the transcriber’s office until delivered to the United States attorney’s office. Neither this transcriber, nor any of the persons whom Koontz used to assist *261 him in transmitting the cylinders and the typewritten pages to and from his own office, were employees of the government, or had been required to take any oath respecting their duties so performed. An original and four carbon copies were made of some two hundred typewritten pages of the testimony; two copies were destroyed by Koontz personally, and the original and two other copies were delivered to the district attorney’s office. Thereafter the original and only two copies were made, all of which were delivered to the district attorney’s office. The transcript of the testimony was delivered periodically, a few hundred pages at a time. No appreciable amount of the transcription was. made until after the grand jury had concluded its session.
Defendants contend that the aforegoing method adopted in the transcribing of the testimony taken before the grand jury, while admittedly in conformity with modem court practice, is, nevertheless, not permissible with respect to evidence produced before a grand jury, because of the greater secrecy which must surround all proceedings of that body, inherent in the very nature of its work. In short, defendants contend that the absence of what they assert to he requisite secrecy is a violation of their constitutional rights. However, defendants make no elaim that by reason of the method of transcribing the testimony that was adopted, there have in fact been caused thereby any irregularities or improper practices working to their detriment. There is merely a bald assertion that such is likely to, and may have occurred in the present instance by reason of this alleged laxness in surrounding the transcription of the testimony with greater safeguards. They claim that, since it was a matter of common knowledge in Baltimore, announced through the public press, while this grand jury was in session, that it was investigating the activities of more than two hundred people, no one can say that there was not at least some one in this number unscrupulous and with a vital interest in ascertaining what was going on from day to day in the grand jury room, who would not have availed himself of improper methods to obtain information respecting these proceedings and who, having obtained such information, would not arrange to be called before tbe same grand jury to clear himself at the expense of an innocent defendant. It is not, however, asserted that there is any proof that any such thing did happen, hut merely that the possibility that it might have happened requires the strictest rule of seereey.
In order to ascertain whether there is any weight in this argument of the defendants, it is, of course, necessary at the outset to determine the reasons for and the extent to which secrecy must surround all matters connected with grand jury 'proceedings. The reasons which lie behind the requirement of seereey may he summarized as follows: (1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before the. grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect the innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt. It is obvious that the basis of all but the last of these reasons for seereey is protection of the grand jury itself, as the direct independent representative of the public as a whole, rather than of those brought before the grand jury. Of course, these latter are intended directly to share in the benefits from this rule of seereey, but it is to be noted that none of the reasons for it are founded upon an inherent right in the individual who is being investigated to the same constitutional safeguards that are unquestionably his when he is brought to trial for a given crime. In other words, presentment or indictment for an offense are not to be confused with trial.
Defendants argue that the mere presence of an unauthorized person in the grand jury room is sufficient per se to quash an indictment, because (1) the opportunity for prejudice is presented, and (2) the difficulty of proving causation between such opportunity and actual prejudice that may have resulted; and they assert that these same reasons apply with equal force whether the opportunity arises from the presence of an unauthorized person in the grand jury room, or from the fact that the testimony may have been made available to outsiders. In short, they maintain that any distinction in the placing 'of the burden of proof in these two situations is without foundation.
It will be conceded that the presence of an unauthorized person before the grand jury, even though he may not have partiei
*262
pated
in
any of its proceedings, is ground per se for abating the indictment without proof of actual prejudice. Certainly, this is established by the great weight of authority. See Latham v. U. S. (C. C. A.)
That the defendants, under conditions such as existed in the present ease, cannot claim their rights have been violated in the absence of proof of some actual injury or tampering with the deliberations of the body which has indicted them, is supported by numerous analogies.. For example, it has been held that the fact that during the investiga^tion of a matter by a federal grand jury, in which an indictment was returned, the assistant district attorney, who was present in the grand jury room, made stenographic notes of the testimony taken, and afterwards, while the investigation was still in progress, read the same to the district attorney and also to a special agent, an attorney for the government, who was in consultation with him, and who later appeared as a witness before the grand jury, was not a violation of any legal rights of the accused, and did not constitute grounds for the abatement of the prosecution. U. S. v. American Tobacco Co. (D. C.)
177
F.
774.
So also, in irregularities in the selection of grand jurors where there is no proof of their actual disqualification for prejudice towards defendant in any way, by the manner of their selection, the indictment will not be quashed. Moffatt v. U. S. (C. C. A.)
But we need not rest the distinction here made merely upon analogy to sueh instances as above, because section 1025, Rev. St. (18 USCA § 556) declares that no indictment found and presented by any federal grand jury shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection, in matter of form only, which shall not tend to the prejudice of defendant, and this statute has repeatedly been construed to embrace irregularities in the entire procedure, as well as those with respeet to the' mere form of an indictment. U. S. v. Molloy (C. C.)
The defendants rely primarily upon the case of U. S. v. Philadelphia, etc., R. Co.,
As was said in State v. Brewster, supra, page 351 of
Laxity in the matter of transcribing or dealing in any other way with testimony taken before grand juries is, of course, to be avoided. All reasonable safeguards should bo adopted to prevent any unauthorized disclosures. It may bo conceded tha,t a more personal control of the entire process of transcribing the testimony in the present case would have been the better and safer practice. But as has already been emphasized, defendants claim that, regardless of proof of prejudice or injury, the mere possibility of such disclosures impairs their constitutional rights, results from a confusion of the substantive rights to and during the trial with those in connection with presentment or indictment. The grand jury system dates back at least as early as the reign of Edward III; that is, to the Fourteenth Century. During the early centuries it was regarded as a security to the individual of his rights and preventing persecution in the name of the king. Thus, the Magna Charta forbade that felonies should be prosecuted in any other manner than by indictment or presentment, and a provision securing the right to an indictment by tho grand jury in the ease of felonies is part of the Federal Constitution (Amendment 5) and also of the Constitution of most of tho states. The history of tho origin and powers of the grand jury are well expressed by Mr. Justice Miller, quoting the language of Justice Field, in Ex parte Bain,
“The importance of the part played by the grand jury in England cannot be better illustrated than by tho language of Justice Field, in a charge to a grand jury, reported in [Charge to Grand Jury],
“ “The institution of the grand jury,’ he says, ‘is of very ancient origin in the history of England, — it goes back many centuries. For a long period its powers were not clearly defined; and it would seem, from the accounts of commentators on the laws of that country, that it was at first a body which not only accused, but which also tried, public offender’s. However this may have been in its origin, it was at the time of the settlement of this country an informing and accusing tribunal only, without whose previous action no person charged with a felony could, except in certain special cases, bo put upon his trial. And in the struggles which at times arose in England between the powers of the king and the rights of the subject, it often stood as a barrier against persecution in his name; until, at length, it came to be regarded as an institution by which the subject was rendered secure against oppression from unfounded prosecutions of the crown. In this country, from the popular character of our institutions, there has seldom been any contest between the government and the citizen which required the existence of the gyand jury as a protection against oppressive action of the government. Yet the institution was adopted in this country, and is continued from considerations similar to those which give to it *264 its chief value in England, and is designed as a means, not only of bringing to trial persons accused of public offenses upon just grounds, but also as a means of protecting tbe citizen against unfounded accusation, whether it comes from government, or be prompted by partisan passion or private enmity. No person shall be required, according to tbe fundamental law of tbe country, except in the eases mentioned, to answer for any of the higher crimes unless this body, consisting of not less than sixteen nor more than twenty-three good and lawful men, selected from the body of the district, shall declare, upon careful deliberation, under the solemnity of an oath, that there is good reason for his accusation and trial.’ ”
In Ex parte Bain, there was a clear violation of rights because the indictment was changed by the prosecuting officer, and thereafter it was no longer the indictment of the grand jury which presented it. Obviously, any such change is a violation of substantive rights; but there is nothing in the doctrine of this or similar decisions of the Supreme Court which in any way indicates that those indicted may have the indictments quashed upon a mere showing that certain formalities, whether customary or not, have been dispensed with, unless actual prejudice is shown to have resulted therefrom. As already pointed out, it is significant in this connection to note that witnesses before federal grand juries are not sworn to secrecy. Also, there was just as great a possibility of departure from the rule of complete secrecy with respect to the testimony when lodged in the hands of the United States attorney’s office, as there was with respect to the testimony when handled by the stenographer, Mr. Koontz. Yet we find no complaint with respect to the former. The United States attorney’s office is even more public than was Mr. Koontz’s office and the offices of those associated with him in the transcribing of the testimony, and there is nothing to indicate that any greater safeguards were adopted against access to the testimony in one place than in the other. Of course, laxity in the one place would not be an answer to laxity in the other. But the practice adopted in the United States attorney’s office is equally not shown to have resulted in any violation of the rights of the -accused. Indeed, it would appear to be the common practice in all jurisdictions where testimony before grand juries is transcribed.
For the aforegoing .reasons, defendants’ pleas in abatement and their motions to quash the indictments -are overruled.