United States v. Perlstein

sо clear nor neither the instructions were desired, be- we as could be so consistent that, whole, they were not taken aas lieve error.

Judgment affirmed. UNITED et STATES v. PERLSTEIN al. 7794.

No. Appeals, Circuit Third Circuit. Argued Oct. 1941. Reargued Jan. May 4, Writ of Certiorari Denied See 86 L.Ed. —. 20, 1942. Decided Feb. Rehearing Denied March Paul City, M. Salsburg, of N. Atlantic

J., appellants. for Joseph Burns, W. Washington, D. C. (Charles Phillips, Atty., M. U. S. Tren- ton, J., brief), N. appellee. CLARK, BIGGS, JONES, Before and GOODRICH, Judges Circuit KIRK- PATRICK, Judge. District

BIGGS, Judge. Circuit primary question with which arewe appeal concerned in the at bar in is the terpretation of Sections 37 and 135 of U.S.C.A. 88 and §§ and of decision Pettibone United States, 148 U.S. are 419. There questions indeed presented by ap other

peal these but importance. are of lesser The defendants suffered a former convic judgment tion and of sentence same indictment and count same presented as are here for our considera tion. judgment We reversed the for’the reasons stated in 120 F.2d at et seq. and ordered a new trial. That trial has now been had have been again and the defendants They convicted sentenced. appealed for the second time. may the issues law order fully refer necessary to rather it is clear to the and to the indictment first count of of some evidence give an account at the trial. presented (the count of the indiсtment concerned) we October,, day 15th from charges that including continuously up to and indictment, filing the date jurisdiction of the District ‍‌‌‌​‌‌‌‌‌​‌‌‌‌​‌​​‌‌​‌‌‌‌​​​​​‌​​‌​​​‌‌‌​​​‌‌​​‌‍Court within the District of the United appellants and oth- Jersey, the certain New er viz., Mi- R. Short and Herbert persons, Aluise, en- conspired corruptly to chael KIRKPAT- Judge, JONES, Circuit influence, impede intimidate and deavor dissenting. RICK, Judge, District District Court the Unit- Jersey the District New ed States corruptly its due ad- to obstruct “the and to endeavor in viola- therein” ministration of the Criminal Code. tion of Section * * * bage Disposal falsely Plant November charges that The count deny Jury Grand [the] filing of the until the Herbert R. Short and Aluise had Michael Tax Special Investigators of the Alcohol any connection with said still.” Treasury Department Unit of the United States an investi- conducting Short, were goes The count on to that been had whether there gation appellants to determine part Aluise and the conspiracy, jury Laws Revenue violation of the Internal knowing grand well New in District of United States had inquiry under the matters “ * * * any persons guilty of Jersey and if were we have referred to did cor- laws; during 1937 whether violating ruptly influence, obstruct, these impede en- and up unregis- an influence, and Aluise had set Short deavor to the due administration of impede and Disposal Garbage Plant tered in still and City and whether of Atlantic Short sаid District Court of the United States for engaged distillers. Aluise were the said District of Jersey New hinder- during goes allege on to ing said Jury Grand ascertaining investiga- investigation the course of this true and facts presenting a false state of * ** questioned Graham, Edward tors A. facts purpose prevent- John Graham, Henry Speed per- and S. S. other ing Jury said Grand from obtaining evi- causing sons with intention of them to might dence an indictment for the United witnesses States before against returned said defendants Her- commissioners and before the bert R. Short Michael and Aluise for vio- Jury Jersey. Grand of the District New lation of internal revenue laws as afore- charges grand jury The count al- said.” so was inquiring been whether had The count sets out seven overt acts. any violations of the Internal Revenue they intimately Since connected with Laws of the United States and whether questions of law us, before we set them running and Aluise had been an un- Short out They verbatim. are as follows: registered bage City still in Atlantic Gar- 15, 1937, “1. That on or Plant, about October Disposal might in order that it Benjamin the said bills, defendant M. Perlstein if war- return true the circumstances had a conversation with one A. Gra- ranted such action. count also states John City, ham in Jersey. Atlantic New February, January and com- plaints were filed Short before 7, 1939, February “2. That on or about commissioners Dis- United States trict possessed Benjamin the said defendant M. Perlstein Jersey charging of New that Short had a conversation with said A. Gra- John unregistered still and untax- ham. paid Garbage Disposal alcohol Plant. “3. That on or about February paragraph In another count the said defendants Michael Aluise and Short, of the indictment it Harry Paul met and had a conversation part and the Aluise as Henry Speed with said City, S. Atlantic conspiracy, knowing expecting and Jersey. New persons including certain were A. Graham John “4. That on or February 24, 1940, about about to be called as witnesses before the said defendants Short, Herbert R. Mi- commissioners and be- Aluise, Benjamin chael M. Perlstein and grand jury testify regard fore Harry Paul * * * and met had a conversation “, inquiry the matters and did would with said A. Graham in City, Atlantic John corruptly influence, endeavor to in- Jersey. New impede and said timidate rupt witnesses cor- pf promises, inducement, offers and “5. on or February That about means, counsel, by other and would and did Aluise, the said defendants Benja- Michael suggest advise and they testify said min M. Perlstein Harry and Paul met and falsely Grand [the] City, Ju- had a in Atlantic conversation New ry relation to the facts of the matter Jersey. n pnderinquiry * * * and would and did 26, 1940, or about March “6. That on suggest and to said advise they witnesses that Harry defendant Paul had a said * * * identify should not Herbert Hеnry Speed with said versation and S. Michael R. Aluise Short before [the] Graham. A. John Jury persons Grand as the who had their 26, 1940, possession custody about That on or March under their con- “7. * up R. said still set defendants Herbert Short and trol Gar- the said D.C., 272 F. 498 Bergdoll, a conversation States v. met Harry Paul United and United Stilson, D.C., Camden, Jersey.” New F. by the returned The indictment general, it must be that the evi said The evi jury upon April 1940! proves dence adduced alle follows showed that on October dence gations of the the indictment. first count of Department of Jersey officers of the New point emphasize which we wish unreg Beverage found Control Alcohol istered conspiracy, this. which was one to City operation Atlantic still in suppress keep evidence who Plant, Disposal seized it ar Garbage operation familiar with the Joseph Myers, who was on the rested one still disclosing knew to thereupon premises. A state warrant was investigating body agency or whether of A. of out the arrest Gra sworn John Jersey the State of New or of the United ham, Garbage Disposal tenant the of the years was entered into over two Plant, who surrendered on October 1937. any pending before was proceeding in the the who were members Both of Jersey. District Court of New The first Jersey of bar of took active the New two overt аcts forth in the first count set part conspiracy. They in the contended place prior beginning had taken the of attorneys their that those of activities were investigation Special by Investiga the the interests, engaged in guarding clients’ their tors of the Alcohol Tax Unit who com Graham, Perlstein A. representing John menced their The November work on representing Paul The evidence Aluise. original complaint to a United States however, was such to enable as presented, January commissioner filed was that draw conclusion the the the The Grand Jury of the District of New co-conspirators appellants and their en Jersey began in investigations early its the prevent agen enforcement law deavored to part January, of 1940. But the last five investigat from the United cies of ing set overt acts in forth the first count fol still, operation persons the the the of point in filing lowed of time the of the com engaged operation that who were in plaints to the United States commissioners profits enterprise. of There was e and the beginning investigation by of th things and if conspiracy to these hide grand jury. Under these circumstanc believed, there is no doubt evidence be but validity es can the appellants played parts their it. that in indictment be sustained? say that Paul It is not too much to toоk part large attempts very Section 18U.S. made keep were disclosing A. Graham upon which the answer C.A. § John Special to the he knew In turns, question out margin.1 set in the the grand jury. vestigators, United States commission Emphasis placed must be certain ers and record viz., shows statute, words used “the ad- due part Perlstein took smaller justice ministration therein”. we If conspiracy, but there was a well defined or construing statute as a were matter of stifling ganization impression devoted evi original we would held this conspirator and the acts of one dence phrase enlargement be one and not against therefore If admissible another. limitation would have concluded valid, Perlstein indictment be held designed punish must the statute many of the the onus acts and bear obstruction federal whether a Paul and See Short. Cor proceeding declarations pus or pending ever became Secundum, 1105; p. Pom a court of United States. Juris States, Cir., courts, however, United 51 F.2d v. have held that erantz ob- proceeding any 135 of tlie Criminal Code or other Section Unit- acting commissioner or follows: ed States officer by corruptly, commissioner, discharge or threats such or “Whoever by any threatening force, corruptly duty, by letter of his or or or or who any by communication, force, threatening shall endeаvor threats or influ- or any intimidate, impede witness, communication, influence, ence, or letter or shall . any impede, obstruct, or States or or endeavor court the United be- to in- any fluence, impede, obstruct, commissioner or the due United States or ad- fore acting therein, commissioner, ministration as such shall or be officer petit juror, $1,000, imprisoned any grand not more or officer in fined than or year, more than or offi- not or both.” may serving examina- who cer injunction force it was in issued while but must the Act cognizable struction respect pre- conspired to members brought in the fed of the union to a McLeod, com- vent and to working of the claims United States eral courts. See pel employees Bit discharge certain C.C., 416 and F. 14,598. intimidating employees of the We officers D.C., 24 Fed.Cas.No. tinger, company. acts held which it It was can find no case in these Spe adminis- called before constituted an obstruction interference with Treasury Mo- Investigators cial whether of tration district court. Department quash like instrumen or some other were over- tions to and demurrers tality a violation allege ruled. The indictment did not investigation is 135. Such an Section of the union whom members question in a court. injunction had been issued had knowl- same, however, for before us remains the edge of it аnd the showed clear- evidence complaint filing ly knowledge. did not such possess investigations States commissioners guilty, After a verdict of in ar- motions grand jury beginning followed the judgment rest of and denied. made Treasury Department investigation a writ of er- Court allowed closely point of time. The evidence ror judgment, remanding and reversed the attempts clearly shows made quash cause with instructions to prevent Graham from discharge indictment and the defendants. identifying photograph Short’s were direct pages Mr. Chief Fuller stated at Justice only ed not of Treas obstruction U.S., page 546 of 13 ury Department investigation but also to S.Ct., “It seems clear that suppression of evidence the Unit person indictment a for cor- ed States commissioners and the ruptly, by force, endeavoring or threats or jury. influence, intimidate, impede or a wit- ness or officer in of the question a court may before us therefore duty, discharge must his be stated appellants as follows. Were the notice, charge knowledge or set out properly or convicted on a charging knowledge notice, facts show or on them conspiracy with to obstruct the ad- part of the accused witness justice ministration of in violation of Sec- or officer such. And reason no was 135 of the Criminal Code when the person strong holding less that a is not conspiracy was entered into at a time when sufficiently charged obstructing or there proceeding pending was no impeding jus- the due administration of District Court Jersey, of New though con- appears tice in court unless it that he a period tinued into a when pro- there were justice being knew or had was notice ceedings pending court, in that and acts * * * administered such court. in furtherance prior committed both to and after “The obstruction of the due adminis- commencement of the proceedings referred justice tration of the Unit- appellants to? The contend that the an- States, corruptly force, by ed or threats or question swer to this must nega- inbe criminal, is indeed made but obstruc- such arguments tive. Their primarily are based tion can arise when upon the decision Supreme Court in administered. Unless that fact exists the States, v. United Pettibone statutory offense cannot be committed » * recapitula- L.Ed. 419. A * tion of the facts ruling of that case literally, language, This if construed pertinent. are therefore support appellants’ be must deemed to Section 5399 Revised Statutes remembered, position. It must be how- amended, and section Stat. ever, case the Pettibone Su- were under consideration in the Pettibone preme passing a violаtion Court case. Sections 135 and 37 of the Crimi- injunctive process of circuit nal 18 U.S.C.A. §§ There could be no court. violation of the respectively the successors the sections injunction before it was issued and contempt In the Pettibone analogy named. a suit was no individual case could commenced in a found unless knew or had rea- guilty United States Circuit he process mining company enjoin Court cause a the sonable to know had members of Court held that there interfering union from with issued. part working company’s The had scienter claims. de- pro- peals stated at for the Fifth Circuit case a In Pettibone fendants. F.2d, necessary to fed- of 116 “It pendency or ceeding pending prove jurisdiction eral this case not an non-pendency issue. The proceeding in the courts at bar was a in the case there States, however, Stansbury no and that argue, there was that since therein, court at witness and that the accused pending in the district proceeding the time of the facts, conspiracy knowledge inception of both intended punish past knowledge beating it and that him either to him there could be no testimony prevent testi- the instant or to him from therefore the cognizable fying un- in the future.” In this not does state a opinion Petti- the time der was both a Section 135. our appеllants’ inception support bone position case does point attempt we will actual for reasons which proceeding. out hereafter. Appeals for the The Circuit punished The substantive offense Eighth Circuit followed substance by Section 135 is the obstruction of in Ful- ruling the Pettibone case the endeavor to obstruct it before or F.2d 210. bright this v. United in a court United States commissioner or had been case the defendant United States. See Bosselman v. participation with and convicted of Samples United v. United 239 F. fugi- conceal a harbor and States, Cir., 121 F.2d process in violation tive from federal States, supra. A crimi Odom v. United Code, 18 U.S. Section 141 the Criminal nal combination between Appeals Court of C.A. 246. Circuit The judgment an unlawful or two more to do knowl- holding that reversed the act, criminal do a lawful act crimi issued for had been edge that a warrant Duplex Printing nal or unlawful means. fugitive an essential element of Deering, Press Co. v. U.S. 41 S. the crime in the indictment to be 16 A.L.R. 196. The Ct. proven evidence. There was conspiracy in the falls case at bar within pending, but scienter was not a charged category in the first was stated. end view proven against the defend- to or justice, obstruction of both state however, gist made the ant. Section of the offense the and federal. We think that the evidenсe harboring of a criminal shows this to have been true in 1937at the knowledge notice of the fact that “after a warrant or inception conspiracy. of It was true process has issued for been beyond peradventure part in the latter of * person, apprehension of such year testimony 1939 if the of A. John the basis of the reversal. This was Graham is to be believed.2 for Assuming States, purpose argument of Odom United of that the In the substan upon by also relied the tive offense could not have 116 F.2d been committed conspirators appellants, and others were con- Odom at the time one injure inception conspiring prospective to jus victed of a respect having operations of his in the still account testified tice witness on prevent and in order to him not then administered in Dis as a witness testifying Jersey, in the future in trict Court of New but from this fact prevent in could not spiracy the existence of con violation Sections ‍‌‌‌​‌‌‌‌‌​‌‌‌‌​‌​​‌‌​‌‌‌‌​​​​​‌​​‌​​​‌‌‌​​​‌‌​​‌‍135 136 of the Criminal to obstruct admin and A. U.S.C. to be Ap- 242. The Circuit Court of in that court in future. istered §§ December, ferring investigations Spe- testified that Graham to the Investigators went Michael see Aluise cial Alcohol Tax he place Treasury Department the Fortune Teller’s “Down Unit of the who engaged looking He testified that Aluise then the Boardwalk”. were into the оperation Garbage occasion, him on this “This still in the Dis- said to posal pretty tough now, stepping present them in.” Plant. Paul was meeting. present also stated that Aluise asked him Both Graham “they” subsequent meeting City pic if had shown Graham his at a Atlantic Temple Knowledge. replied, “yes,” ture. Graham and that near the Graham brought friend, he had told “them” was a one Cannon the meet- Aluise saying working ing. protested, man “around think Perlstein accord- there”. We enough ing Graham, from a careful “There is of us it is clear examination testimony now.” the witness was re- involved it penalties prescribed by was not analogous incur Sec- A somewhat situation if presented 37 of the Criminal even it the case of Williamson Code 425, 446, they guil- found assumed that could not be United ty Wil- crime 52 L.Ed. 278. In the the substantive described directly 135, provided Section of them 5440 was one liamson case R.S. Section appellant designed an act consummate consideration. The does overt under purpose their of that tended was no federal statute and the commission the act prescribed punishment pending proceeding. which affects a procure attempt mere individual an example. imagine Let Two us perjury. commission persons agree or more enter into a written stated, contention, Mr. White Justice pre ment they each other that will wholly proposition give fails to “But vent of a commission conspiracy * provisions effect to the against * crime the laws of the United (U.S.Rev.Stat. *), going jury a federal clearly it criminal for two which renders they Each stating have seen. conspire persons or more to commit conspirators then does act in an overt States, provided conspiracy, furtherance no grand but parties that one or more yet impanelled has been inves effecting do an act towards tigate the crime. Assuming that none of words, object conspiracy. other them could be indicted under Section conceded, although merely it they Criminal Code because have attempt argument, sake that an nothing done to affect the due administra person per- to suborn another to commit tion of in a proceeding, they could jury may punishable not he under not be indicted for a criminal does laws of the Section 37? contends conspiracy by not follow that two could be and that conviction more procure the commission based an indictment setting forth such perjury, embraces unsuccess- an offense should be It sustained. is not attempt, ful punishable is not a crime necessary go so far bar. above stated. of- is the Let us add one more element to the еx defines, which the statute without fense ample which we have given. After reference to whether conspirators have agree entered into their conspired to commit is proceeding ment a actually is instituted be See, also, consummated.” Becher v. Unit- fore grand jury. a federal Then con States, Cir., 45, 2 F.2d ed 5 de- certiorari spirators in furtherance of original their 602, 462, 45 nied 267 S.Ct. U.S. 69 L.Ed. policy endeavor to influence and do in 808. person fluence a who testify is about to can no why persons We see reason jury. before We entertain no conspire together who justice obstruct doubt that an indictment alleging these a proceeding in before a United States charging elements and or in a district Commissioner court which conspiracy provisions with a to violate the they expect or fear will be instituted should of Section should 135 be sustained.3The 3 Congress 10, passed On June 1872 jurisdiction. courts no common have law prevent punish, “An Act Ob- This bill intended to confer them is struction of the jurisdiction Administration regard Justice the same in to this States,” in the Courts of the United 17 offense other courts De- have.” See 378. This became Stat. R.S. Representatives, Section bates in House of 2nd 5404, Sess., in turn was which consolidated Congress, 7, 42nd June 1872. The 5399, 1831, 2, Congressional R.S. Section Act of March p. Globe, 4319. 488, Congressman Stat. to form Section 135 of the In view Peters Code, 1113, said, Criminal conspiracy 35 Stat. 18 U.S. it should be noted that a justice § 241. C.A. to obstruct was and is an indict- In the bill People debate on the in the House able common law. Representatives 7, 1872, on June Tenerowicz, 276, Mr. 282, 266 Mich. 253 N. charge bill, 296, Bishop Peters who was in in Law, W. on Criminal response inquiry by 219, p. to an Ed., 148, member of 9th § “Cheats Com- questioning “very the House precedent up- terrible mon Law.” The condition powers” proposed given appellants to be namely, insist, which the legis- courts of the United States the indictment must that lation, judicial that, proceeding stated “The pending is at the time example just given ceedings actually ana- facts in the became After logous Jersey. at bar. District to those of Court of New in- into in the conspiracy was entered accept For these reasons we cannot proceeding became stant case a federal appellants. contentions of If we did conspirators were aware pending. The apply so we stilted would a wooden and did in- it influence and and endeavored to pro- construction to a statute vital about they knew was fluence a witness who tection of our federal courts. appear proceedings. The in those Section 5440 of the Revised Statutes Short, charges in paragraph its fifth so May amended c. the Act of Aluise, con- Paul. The Perlstein and 8, 4, now Stat. Section 37 Crimi- con- spiracy continuing is repeatedly nal has a con- received spiracy answer and we think it is analogous struction we have which refer the words placed Bailey it. In the case of Supreme the Pettibone case Court in Cir., 437, appeal States, 5 F.2d “ * * * the due such obstruction [to 551, 589, 46 dismissed 269 U.S. only justice] arise can administration of alleged a 70 L.Ed. the indictment being While justice when administered.” 1921, to conspiracy continuing July, from can arise is true that the obstruction smuggle liquor into August, administered, justice when the Revenue United States Act violation pend- say when is to Act) 42 Stat. (Tariff prevent ing, nothing passed the time the which had not been due administration spiracy of obstruct In the case of formed. becomes in a F.2d Nyquist v. United being cog-

pending in future 606, 45 S. certiorari denied nizable under Section several Ct. conspiracy to violate charged with jury was In the case at bar the Act, Theft Motor Vehicle National Dyer justified drawing the conclusion from Act, 18 U.S.C.A. Stat. Short, Aluise, Perlstein the evidence that despite fact that the to obstruct admin and Paul intended place had taken overt acts formed and any proceeding, fed istration of denounc- passage of the statute state, pending or which should eral or then In аll these offense. ing the substantive operation relating pending, become were sustained. convictions cases the City Garbage the Atlantic the still at note that the Court interesting Plant, and, It is furtherance of that Disposal recently as Decem- Appeal as pro when did held inception of South Carolina or not to der to simply I to be in force sustained, of Edw. seems typical view thought stated its it also of. For cas South Carolina have been nothing might than more statute did defense such a es express People Cited pertinent the common law. proven Tenero see v. Taylor’s and People Saunders, De Witt supra; court in State v. wicz, v. 25 1010, 1 ease, 2 East P.C. Shooter, Rich., 119; Robinson’s 8 S. v. Mich. State an there was In this case Sydenham Keilaway, 72; Leach 37. Cro.Jac. v. C. conspiracy to obstruct 7; Regina Best, for a indictment 7, v. Salkeld 79 E.R. conspiracy being justice, raise Macdaniel, one to 174, Rex v. 91 E.R. by imperson- property spurious Compare to a title 44, 124. Cla 168 E.R. Leach marriage The ating the owner. with 59, a ridge Hoare, 14 Ves.Jun. E.R. v. place impersonation the own- while took pro- property was alive of the er to obstruct law indictments At common sought ceeding to despite which the justice sustainable and are were of his judicial proceeding administration was the no the faсt In property death. Southern inception his after pending at the time Ky. Commonwealth, Express Witt, Co. v. conspiracy. v. De See State 839, ob- 480, to an indictment 180 S.W. 282, In this 27 Am.Dec. 2 Hill objec- justice over destroy sustained conspired struct to case the charged conspira- a indictment tion. cy devi to defraud the the intent a will with knowing corporate records judicial proceed to remove legatees. The sees a be called endeavoring would that such records ing ob to to convene. was about of the estate was administration struct cited case while In the the dead man. testimony precisely given he caused false to be taken a view ber has alleged adultery expressed. tc in a divorce suit. we have similar to that which Stringer, indictment then set forth overt Sharpe, Rex v. seven acts Rex See v. 48. The and as in case bar each Cr.App.Rep. 1 All.E.R. at an at- of them charged was done furtherance of the indictment the cited conspiracy. person make tempt persuade The defendant demurred on a ground concerning an automo- the indictment its face untrue statement on appellant charged conspiracy contended no crime that a bile accident. procure testimony no offense indictment disclosed false in an action that time of begun incep- at the the law because was not the time known to pro- conspiracy were no conspiracy criminal. not acci- ceedings pending upheld the The Court of General Sessions prose- a dent; indictment, stifle stating that a Nott Justice public N.Y.S., obstruct the course cution or to 163 of 250 “It is that the evident there were justice supported when was a indictment cannot be a con- the time of proceedings pending spiracy public injurious to do an act conspiracy. perver- charges morals but for the act sion and obstruction of Parcq, Justice) du (now Lord Mr. Justice due administration of the law.” conviction, p. sustaining stated “ * * * say, He went on to disputed is an offense is not that there “It People Chase, [N.Y.], v. Barb. pub- obstruct the course of 495, it was held a conviction of justice. That offense is laid down lic spiracy perversion or obstruction legislature under Criminal Proced- would be sustained where left, Act, 1851, there- 29. All ure procured to with- a witness defendant judge, with fore, argument pre- draw and conceal herself in order itself, fully acquainted which this has court vent as witness before called conspir- be offense of is that there can no grand jury, prior presentation public acy prevent course of grand jury. the case to the procеedings unless or have words, other commenced. a crime has People “In Spiro, the case of Misc. person not been committed who con- 129 N.Y.S. an indictment for a spires help others to him to conceal similar the same subdivision place, persuades has taken other demurrer, the statute was sustained on statements, to make untrue unless where the was entered into proceedings already begun. That between mortgagors certain agreed who hopeless propo- seems to this to hinder and mortgagee obstruct the sition, and so absurd that it does not form obtaining judgment foreclosure, if and part country.” law of this when such an might action of foreclosure to, statute referred Section 29 of the Crim- brought. Act, 1851, pre- inal Procedure while v ifc ifc cisely like Section 135 the Criminal decisions, therefore, “Under the above Code the United States very bears a opinion I am the that the fact that the substantial resemblance to it.4 begun action had not been at the time of alleged conspiracy the formation of the People McCue, 139 Misc. does not make the indictment bad de- N.Y.S. defendant was murrer.” by an indictment with “to com- * * * injurious mit pub- an act The statute under which the brought perversion lic was morals section 580 of the Penal and the ob- of New analogous structiоn Law York. It also is of of the due admin- ” * * * 135 and to Section is set out below.5 istration of the laws in that struct, prevent, pervert, or 29 of the defeat the Section Criminal Procedure * * * public justice; Act 1851 is as follows: course of it shall any person to lawful the court sentence the “Whenever shall be con- " ” ** any imprisoned. victed of of offenses follow- offender to be the Ohitty’s English Ed., pp. misdemeanor; Statutes, ing, as an 6th indictable that any ; Halsbury’s Eng punishable say, is to cheat or fraud 263 4 Statutes of land, pp. 529, law; any conspiracy at common to cheat money defraud, goods, conspire: “If or or to extort or two or more * * * falsely any crime, of or or to accuse ob- appellants upon appellants also that conviction of the the contend may simpler in count far completed before the be sustained on crime was the grounds. Assuming because the ception any proceedings that of federal prior in could not an offense alleged in the have constituted overt acts the first two inception proceedings before place commence of before the dictment took the proceedings United the United States commissioners and before the ment of the jury. grand jury, grand federal the first count the States commissioners and charges wаs “com in law the indictment fact and It is true the incep- the the first overt existence after of of plete” commission with the ordinarily proceedings. it must is those While that word tion of always act in the sense proved the conspiracy, alleged the con but used in ato of prior the date overt an end. Other crime was committed spiracy had not come and indictment, period limi- oc the proved to have of the tation, within acts are pro jurisdiction of the within the curred after the commencement Evidence, Nib- court, jury Underhill’s Criminal ceedings just referred to. any 107, 108, 86, vari- Ed., pp. it conclusion lack’s 4th the entitled to draw proof is im- conspirators that pleading ance between intention of in- existence fails to continue material unless the conspiracy should correctly of fully prosecution Short of form a defendant danger all until charged, fre is with which he passed. It has been the criminal act and Aluise quently proof taking consideration once a into stated un against him. In the to continue introduced is bar the substance proved must be deemed it bymet Marino test contrary established. of til proof Cir., allegations F.2d of the count and States, v. United appellants support offered them. Coates v. 113 A.L.R. defense, making were not their misled 59 F.2d put. danger they nor were apрel see how the We do not jeopardy. appellants twice in their sustain the contention that lants can injury because were com- suffered no felony. offense, any, misprision if pelled proof their meet offered as to Misprision nothing more than a word prior beginning fed- conduct eral does a misdemeanor which used to describe proceedings. States had If specific 2 Bou possess See name. not not the time the commence- Rawle’s, Dictionary, Third Law vier’s Rev., agreement conspiracy, or ment of the states (8th Ed.) 2225. Bouvier also would have been entitled to defendants elicit this information misprision conceal is the felony particu- bills of giving any degree felony ment of without have been error to have lars and would it felon, citing Section of maintenance 5390 of sought. information thus So refused the the United Revised Statutes of viewed, allegations count R.S.Section- States. examination An proof adequate to sustain sufficient and the the Criminal Section judgment. 251 makes 35 Stat. 18 U.S.C.A. § Upon prior appeal clear that the first of the indictment contended that the trial court had erred charge bar does or at refusing grant quash motion misprision

tempt felony. ground indictment based length indictment had We have with the been found dealt This questions expiration the term. these to have substance and to deserve careful because we considered them after the appeal overruled the first the trial study, assignment but we think as a matter of law error and sustained ‍‌‌‌​‌‌‌‌‌​‌‌‌‌​‌​​‌‌​‌‌‌‌​​​​​‌​​‌​​​‌‌‌​​​‌‌​​‌‍injurious knowledge having ac- “Whoever, To act “6. commit public morals, health, public of murder or tual commission of felony cognizable commerce, perversion courts trade or or for or other justice, does the due conceals obstruction may laws, make be disclose and administration not as soon as judges guilty of the misde- to some one “Each of them is of a known the same military au- in civil or meanor.” or other McKinney’s thority States, shall be Consolidated Laws of N. imprisoned 54, 580(6). $500, or Y. Annotated. fined not more than Art. § years, more than three or both.” 146 of the Section Criminal Code as follows: * * * conspire agree together See grant the and to motion. court’s refusal * * * influence, im- intimidate motion was renewed and 276. The F.2d pede trial, denied in the the District the second Court of the of outset appellants, United for New the the the District conviction of of and after a Jersey, thereof, Jury and judgment of and the Grand in arrest and motions * corruptly behalf upon influence, made their new trial viz., impede ground, jus- and substantially the same due administration of upon the indict jurisdiction therein, jury’s 18 U.S.C. tice in violation of that the of Code],” prior return an end 135 of the Criminal come to § [Sec. alleged constitutes ground by and in means manner This same the and true bill. the er- of assignments of the the one indictment.1 the basis of ap- the We think that ror now before us. in- According allegations the are regard pellants’ contentions dictment, investigation begun on very co- adopt the and we merit without by Special Investigators November gent reasoning the District with a of the Federal Alcohol Tax Unit Perlstein, point. See discovering view to violations laws F.Supp. the District United identity carefully the re- Jersey by ascertaining We considered New argu- assignments possessors maining of error owners of a certain appellants’ unregistered counsel quantity ment of still and a of finished points We to them. conclude that untaxed alcohol had been seized no require City, Jersey, by raised without merit and in Atlantic New en- State opinion. in this discussion forcement officers on October The investigation filing resulted in the Accordingly, judgment complaint before a United States Com- below is affirmed. 17, 1940, January missioner on and a sec- complaint ond before another Commission- JONES, Judge Circuit (dissenting). er February inquest on and an I think that the decision in Pettibone v. Jury the Grand for the District New U.S. Jersey for the December Term 1939 as 419, plainly question rules the “on extended order of court entered here fundamentally involved. January, in- day 11th 1940.” appears escape logical to be There no appel- dictment further apply conclusion that refusal defendants, lants and ful- the two other facts of this case the rule conspiracy, fillment of the corruptly in- approbation case works Pettibone of a fluenced, impeded intimidated and three obtained indict- federal conviction named witnesses who knew were about utterly charge the ment which failed to to be called before the Commissioners and with an defendants Jury the Grand in connection with so, If laws the United States. that, investigation thereby, they ob- obviously disposition then which this structed the due administration of appeal makes court now of the instant far District Court of the United States transcends in its effect generally the im- Jersey. the District of New portance the case parties im- clearly appears It therefore in- mediately concerned. charged the dictment defendants indictment, “on about day was returned on the 15th October, April 16, (contrary 1937” 1 that Sec. 37 appellants 88) two other “from Criminal in- defendants U.S.C.A. impede October, 1937, day the 15th timidate witnesses and on about to ob- continuously up thereafter in- struct due ira administration of cluding filing” the in- date a court States or before violation * * * * * * “did knowingly (in dictment United States Commissioner present indictment now embraces on trial so far a former as Originally, time, there was a sec one count. are concerned. At acquittal ond count which trial court directed the (appellants persons) appellant and two other with a the second count operate unregistered and the returned a verdict of not guilty appellant of federal still in violation statutes. the other on the dropped up- out second count of the case same count. assignments notwith- overrules the Code) the affirms of Sec. Criminal the judgment. so, majority were proceedings To do the neces- standing no such sarily years pendency pro- after hold that the of a than two for more instituted the formation of the conspiracy. ceeding alleged in a court of the United States or prerequi- before is not a Commissioner specified seven overt then The indictment conspiring to in- site an indictment for alleged acts, which was the justice timidate witnesses obstruct 15, 1937, and been on October committed “therein” in violation of Sec. of the well February the second on —both Criminal Code. seems to That conclusion proceedings prior the institution ruling directly me to be teeth of the Grand Commissioners before the Supreme Court in the Pettibone the commencement Jury, or even before case. Investigat- Special investigation the ors of the Thus, ac- Unit. Tax Alcohol report The the Pettibone case shows indictment, cording to the injunction had issued out of pre- statute’s virtue of the spiracy, by equity in- United States court in an suit the commission scription with dispute; volving a labor that certain (Sec. 37 of an overt act respondents injunc- against whom the the tion was directed violated its punish- indictable Code), became restraints; before years two than offense more able there thereupon they and that were indicted in a was now conspiring (contrary to R.S. § Commissioner court or States Code) the Criminal Sec. could appellants respect whereof the in either have justice proceeding (the injunction in a or ob- intimidated suit) in a court of the United indict- alleged in justice as structed now Sec. violation of R.S. § ment. Criminal Code. The indictment allege de- case that the proofs Pettibone failed at trial con- government’s exis- knew or had notice of the fendants allegations of indict- formed with the i.e., justice injunction, conspir- tence of the formation ment as to the court being administered the commission acy on October Supreme re- United States. day, as well on the same аct of an overt guilt remanded judgment Feb- versed the act on of a similar as the commission ruary with direc- District Court commencement and the dis- quash tions Commissioners proceedings before the doing, the so the defendants. In the District Jury for Grand and the U.S., page 148 419, at page 206 of held their Court at Jersey January of New per- S.Ct., that “a gov- appeal, counsel for

brief on this sufficiently charged ob- with son is structing speaking relation ernment impeding administra- the due was estab- proofs affirm that “It trial appears unless it in a court endeavor tion of conspiracy to lished that the notice that due knew or had that he and obstruct influence witnesses court.” such being began Octo- was administered administration of U.S., at further, of 148 still And 1937, immediately after ber S.Ct, page 546 L.Ed. was raided.” obstruction Court said that “such short, justice is ad- can arise when having conspired guilty of com- found exists the ministered. Unless fact specific mit a offense committed, statutory * * cannot be when, allegations at a under time supplied.) (Emphasis indictment, as well as proofs trial, no such offense was com- Pettibone crime dealt with mittable. precisely character same charged against defectiveness indictment and already But, as we have proofs the instant case. at trial in the infirmity the particulars actually pend- seen, there was a were raised in the indicated at the ing in a court of the United States below the defendants’ motions Pet- judgment. Both quash and in arrest of time of the none, case, here The ac- tibone while there motions were overruled. of these years for more than two in such re- nor was of the learned trial court conspiracy allegedly been gard assigned here for error on after However, appeal. now into an indictable offense this court matured

801 fortiori, sustained, act. A case was was because an overt but that commission of proof rule in should be there was could the Pettibone case which requisite find the The rule there applicable here. scienter. less, applied respected, re- none the distinction and No between Pettibone quirements of the decision under Pettibone logically the instant case is admissible on it settled which must be taken as “in the Pettibone the basis asserted that pendency knowledge or notice passing upon was case Court proceeding in a court- of the United States process injunctive violation necessary or before a Commissioner district court”. That case was not a violation of Sec. 135 of the injunc- concerned with “a violation of the and, by token, requisite Code same process” tive What Petti- court. averment of an indictment alleged dealt bone case with was to violate Sec. 135. spiracy to due administration obstruct the justice proof in a The need court of the for averment and allegata probata required to scienter in order an indictment to sustain support charge. can it be of conviction for Nor the substantive offense materiality recognized decision that under Sec. 135 gene the Pettibone has been the'justice case, rally2 hardly disputed. in that whose will obstruc- Mani be alleged aimed, festly, tion was was without knowledge or notice being pendency administered in than in a civil rather of a proceeding in a court of the States, proceeding. thing criminal United there no can be intent (Sec. Code) 135 the Criminal the due administration of criminal, presently makes relevant re- specific “therein”. Yet “the intent vio gard, is the intimidation witnesses or justify late statute must exist a con * * the obstruction of in a court of the viction That said in States, regardless United of whether U.S., Pettibone case at page of 148 207 law, S.Ct., there administered 13 37 L.Ed. where, criminal, equity, remembered, either civil or in ad- it will be ques miralty, present bankruptcy. or in As no valid related to a why How, then, reason is advanced “the Pettibone violate Sec. 135. can scienter appеllants’ support posi- proven case does not thing when the tion,” where, I knowledge think it whereof one need continues rule no here, very Secs. 37 tice does not and 135 the Criminal exist? Such is this Code are case. Under obtaining, involved. And so it has been the circumstances recognized allege elsewhere. the failure of the indictment to knowledge defendants’ or notice of States, Cir., Odom v. In United 5 requisite proceeding readily understand F.2d had set fact, able. the omission thereof in this Stansbury, beaten who had been a wit “advisedly” made even more expected ness a federal court and tes than was in the Pettibone case where tify thereafter in the same cause. The actually there was a proceeding pending. Appeals, pointing after out at any event, allege failure scienter page 998 of 116 F.2d that “The two sec in the Pettibone case was fatal the in tions of criminal statutes here in dictment in that case. It can be no less expounded volved Pettibone v. here fatal where no proceeding there was States, United conspire. about 419,” said “It is necessary However, jurisdiction that, prove federal it" is argued^ assuming conviction for in the courts the substantive offense un- States, Stansbury 135 could not of the United der Sec. sustained on the therein, case, a witness that the accused facts facts, still, knowledge legal alchemy, some both when Sec. 135 enough, applied True conspir- conviction the Odom is in combination with Walker v. United States, Cir., 569; D.C.S.D.Cal., United F. 795; v. 604; Kee, D.C.S.C., F.2d Kloss United v. F. Genna v. Unit Cir., 464; D.C.W.D.Mo., Bittinger, 77 F.2d States v. United Zoline, No.14,598; ed 293 F. 24 Fed.Cas. Federal States C.C.N.D.Ala., McLeod, (1921) Criminal Law and F. Procedure 416, 418; Armstrong,

802- problem before this court mane to the emerges an otherwise statute,- acy there dis-' offense, namely, further the failure illustrates undeclared federal federal the relevant regard criminate between justice without spiracy to obstruct in a (conspiracy crime to obstruct proceeding in a any court other court) and unrelated crime in Commis- States or a United jus- jurisdictions conspiring it is to obstruct be ? Certain can that sioner. How statute, in con- applied when tice. the conspiracy 135, operate not junction with Sec. does There is statute statutes no federal or averment necessity for withdraw the proof simply which denounce the obstruction requisite to of the elements course, justice. And, a federal Ge- Cf. offense. of the substantive statute does not criminal not an make is 112, 123,53 U.S. 287 bardi v. United against As is offense States. is It 206, 35, 84 A.L.R. 77 L.Ed. S.Ct. recognized, law well no common are 37 terms Sec. not a crime under against offenses ed Unit- United States. federal stat- conspire commit which Eaton, 677, 687, 12 States v. an offense not denounce does ute 764, S.Ct. 36 L.Ed. 591. In no event could v. In United States. legislative history ma- to which the 181, 521, 507, 29 S.Ct. U.S. Biggs, 211 jority footnote, reference in a make 305, Court re- Supreme pertinent, even if deemed to ex- invite unlaw- “it jected contention beyond tension congressional of the intent to con- statute [conspiracy] ful under plain and, the tainly, words of the statute cer- spire that done [sub- embrace, facilely, not so as to thus * * prohibit not statute did stantive] common law crimes within federal offenses. States, Cir., 91 Fulbright v. United necessary A corollary of this court’s “If the 212, said the court F.2d ruling in the instant case is that an indict is not by Congress, it prohibited act is conspiracy ment and conviction for a And, it.” conspire to do unlawful intimidate witnesses or to obstruct States, Cir., 209 F. Fain v. United 531, may in a court or before a commissioner criminal “It neither it was said that though proceed be sustained even such a conspire do that do or nor unlawful to ing in material is never instituted.' prohibit does not not which the law freely Government counsel conceded both possible under Consequently, it is by brief and bar such is indeed the at unlawfully 37) (Sec. federal statute government’s contention. This concession which, un- offense conspire to an commit necessary is but the rule concomitant could not proven, averred der the facts guilt conspiracy which would confirm requirements of be committed to obstruct the due administration of defining the substantive offense. justice in a court of the United States before not to be question here involved relevant is instituted there by confusing the federal crime solved Yet, conspiracy punishable in. made justice in court of to obstruct by Sec. ‍‌‌‌​‌‌‌‌‌​‌‌‌‌​‌​​‌‌​‌‌‌‌​​​​​‌​​‌​​​‌‌‌​​​‌‌​​‌‍37 of the Criminal Code occurs per- the crime of parties when the in minds thereto meet justice without re- obstructing verting or agreement il attainment of the jus- place where particular gard for the legal object concert of action. The administered, which is an tice is offense does not acts lie in recurrent jurisdictions either in some performed by subsequently one or more Such local statute. common law in furtherance of the Sharpe Rex v. and Rex the cases conspiracy. object Proof of Cr.App.Rep. 1 All.E.R. Stringer, 26 necessary overt act because County General Ses- York the New specific requirement thereof as statute’s McCue, People 139 Misc. case of sions prerequisite an indictment con majority 250 N.Y.S. conspiracy. Hyde viction for the v. Unit in extenso. Those quote from cite 347, 359, ed U.S. bearing the mean- have no can 1114, Ann.Cas.1914A, cases 614. The L.Ed. They of a federаl statute. and effect ing marks of the locus passing overt act comparable for an basis Britton, not even furnish penitentiae. do United States v. say, do by analogy. To argument L.Ed. 698. U.S. immediately consequent the first And, that “The view majority, end [of passes act, obstruction was the of overt at bar] criminally understanding to ger- words or federal” is not justice, both state and crucial culpable by the illegal prescribed' combination limitation words conduct. The case, conspiracy, the statute. concert McLeod being the page F. Britton further said 417 of 119 said in the U.S., case, that “But for influence supra, page restraining -at 205 of 108 ‘therein,’ S.Ct., rule of the words is “a word ‘due adminis- justice’ might perhaps tration held pleading criminal practices gen- include subversive under section 5440 [now justice, eral 37, conspiracy regardless of Code], administration of Sec. Criminal the any particular their effect it case.” sufficiently charged, must and that majority While the of this by aided averments acts court cannot be the cite apparently accept by expressed the view done or more of one the case, they say object supra, the con- McLeod go in then on to furtherance the that “If we spiracy.” construing were this statute as a original impression matter of we alleges In the the instаnt case indictment phrase would have held adminis- [“due conspiracy that into “on the entered tration of be one therein”] day the of October 1937” about 15th enlargement limitation day (specif- that further on the same * * For what reason? The word ically 1937) act 15, October overt prescribes qualification “therein” a object in committed furtherance may ignored. not be Moreover, the stat- conspiracy the or more of the de- penal and, ute therefore, is not to be en- necessarily this, it follows fendants. From larged by any supposed intendment. Cf. as defendants were indictable Todd 278, 282, v. United 1937, 15, conspiracy on October alleged 889, 39 L.Ed. 982. thereafter; any ever at time conspiracy is and that the one If a pending proceeding in court of charged by It is offense the indictment. the United States or before a United States apparent, therefore, if indictment necessary Commissioner were not to a valid, held case be intimidating witnesses of ob- indicted, tried, convicted could have been structing the due administration of served the con- a sentence for therein, then the further ruling in the Todd pro- spiracy prior the institution of case, supra, wanting justifica- would be or in ceedings before the Commissioners tion. case, Supreme Court re- January United States Court order, versed thе District Court’s over- Obviously circumstances 1940. in such ruling indictment, a demurrer be- wholly im- the ultimate conspiracy cause indictment and conviction. material to intimidate in a proceeding witnesses be- produces at rule which order to arrive fore a United States Commissioner when at necessary just indicated it is situation (1895) time then relevant statute plain words of statute disregard (R.S. 5406) embraced no more than a § meaning attached to and the heretofore conspiracy to intimidate any witnesses “in Supreme Court. them court of the United States” without men- (Sec. thing 135) at which the statute tion of United States Commissioners. As Supreme is intimidation witnesses a consequence, directed is any United or be- page U.S., “in court States held “* commissioner” or any fore of 15 prelimi- S.Ct. aAs nary of “the administration the obstruction due examination before a commissioner ** (Emphasis therein any cannot be a case pending considered Necessarily, supplied.) Wherein? “in court of United it follows that fatally defective, of the United court States or this indictment before United charges Such no offense the laws of commissioner”. has interpretation (Emphasis been the considered supplied.) States/’ “therein”, statute, Patently, word if as used in had nott respect plainly necessary its intended been considered reference. indict- McLeod, United States v. See C.C.N.D. ment under R.S. 5406 for § Ala., 416, witnesses, page 419, 119 F. would where intimidate have been n wholly said “This immaterial Todd where does not proceeding, any, create obstructing justice offense of if obtained. R.S. general or in the abstract.” 5406 was thereafter That amended Act of § recognition a clear of the effect of c. the March 35 Stat. § continuous, has been held to it will be to embrace so as U.S.C.A. § any found “in to have been a to intimidate com- commission of an committable examination amended, and, so, continuing the outset capable became and, missioner” so The his- successive same achievements of the Code. Criminal Sec. Code, purpose, such in restraint as combinations tory Sec. 135 of the concerned, Kissel, trade. See United States v. with which we are here history U.S. 1168. identical, L.Ed. regard, with the such It is also can be found believed that no case of Sec. So where entered R.S. into Court held with pertinent object legally to when its equally offensive un- in the Todd until of Sec. committable has been held to continue predecessor R.S. § the offense could be committed there- complaints filing of ultimate thereby. rendered criminal January and before the Commissioners of February institution the for government argue and the Counsel of 1940 the the same conspiracy Jury investigation about a Grand a statute entered violate prior hardly supply the into time can becomes an its enactment by contemplated passage statute conspiracy the indictable after the of statute, conspiracy could have the the the citing whereof this connection Bryant such 1937. If States, cases 5 been formed October many case, Wells, be as 257 there would F. United States v. were the then conspiracies developed 833, separate D.C.W.D.Wash., out the 262 836. Nei- F. for con- agreement supports ther one combination or of those cases the rule for proceed- appellee Specifically, were related which the certed action contends. case, In this question intentionally passed ings thereafter instituted. was the upon Bryant page mean crimes that would three case. See charges spiracy, although charge indictment conspiracy the of 257 F. The pro- only subsequently instituted If a consideration in one. case was ac- prior- criminality the complishment ceeding matures into of an offense committable then, under the ly conspiracy, ma- formed at the time of the formation of the con- conspiracy spiracy, jority’s reasoning, the under Sec. 6 of the Criminal Code. the when first 6, when, a crime regardless in this case became U.S.C.A. if § ever, first Com- complaint particular (Selective was filed before the the Serv- 1940, 17, a second January 1917, appendix on missioner ice Act of 50 U.S.C.A. § complaint was passed. crime when the second In Wells seq.) 201 et was case allege filed before other Commissioner on count in the indictment did a one conspiracy February and another crime when to violate the Selective Service Jury proceeding the Grand was instituted Act of 1917 entered into before the enact- But, same is no about the time. There reason as the ment the statute. begun plain 836), should ex- it why (262 page itself makes F. was succeeding pro- allegation haust function a further that same count ceedings supporting so far as 6 of an offense within Sec. charging justice is concerned. Further- obstructing Code which saved Criminal least, unusual, more, say fact, for it is case the court ex- the Wells F., be made to pressly approved commission of crime to de- subsequent. pend a condition whose logical” defend- “reasonable impossible from the inde- can alone result ant’s contention it is existence “that (federal officers) pendent action others conspire prior a law violate its manifestly with the are unconneсted who passage, doing that the of an overt act power conspiracy within their passage but have it not carry after of the law would not to start prior determine whether with it entered into proceeding. passage efficient act.” Williamson v. United conspiracy become crimi- Nor does 163, 52 instituted, L.Ed. on nal, proceeding is after a argument furnishes no continuing basis thing. it ground conspiring indictment lie that an will continuous in conspiracies are Most an uncommittable commit ordinarily endure for a sense the United States. In William- against of their the achievement of time for period conspiracy son where a But, end. intended question validity. in viola- perjury indictment’s conspiring with to suborn question the Such is not the case. The (now Sec. tion of R.S. § 232). insufficiency of for failure to Sub- the indictment U.S.C.A. § allege an offense to commit an offense perjury thus itself ornation of against a con- And was not before against the United States. appeal us likewise a on the and was never spiracy perjury is former to suborn filing to commit it raised until of the motion because quash the indictment at outset of the an offense the United States. question conspiring to suborn second trial. 37. The crime of therefore open fact commit until is unaffected the cur- suborning per- rent offense of decision. substantive рerjury must shown that quash The motion to none the less consequence sub- committed as sufficiently timely. question requirement goes ornation. That insufficiency par- proof necessary degree to con- ticular now under consideration was raised vict for the substantive offense. The of- below, fully argued in the court none the less committable one at fense is passed up- counsel and was considered and time the is formed judge the learned trial on its merits. esse an effort whom question even been could raised testify can be made to induce them to in this court for the first time. Rosen falsely. no case does crime of con- U.S. spiracy depend upon degree of success 606; Sonnenberg v. United object. achieved in the its furtherance of States, Cir., Zoline, 264 F. 328. See instance, involved, For under Sec. here Federal Criminal Law and Procedure conspiring for intimidate conviction (1921) Moreover, motion witnesses in a court of the United States judgment arrest of after verdict might although well be sustained the con- question brought squarely second trial spirators could not be convicted the upon the record. offense substantive if never intimi- I regret that dissent has this extended actually nor dated endeavored do so. But, such length. ques- the fundamental Failure to establish the substantive offense importance is involved of such vital part because of lack effort to the due administration of federal crimi- entirely is an different matter justify nal as to full treatment inability prove than the substantive respect differing our views with thereto. offense because no law, If majority now hold be the pending whereof witnesses necessary then all that will be to convict might justice might intimidated be to intimidate witnesses and obstructed. be Sec. appeal When this here on case was from locally couple Code will be 276), (120 a former conviction F.2d the unpopular happened defendants who appellants cited the rule the Pettibone talking together. The act seen overt neces- support case of their contention cer- sary mature the time for indictment and evidence tain received trial was inad- punishment may, known, well complained missible. the evidence As thing. very inconsequential incidental only competent was not but both relevant liberty to individual concealed The threat drawn, and material to the indictment as approved by this proposition now rejected. the contention was passing, and, particu- not to be minimized may be noted that the rule in the Pettibone passions larly, popular when times not a rule of evidence but a rule may easily be more aroused. It invites necessary the elements to establish should possibility sort of courts ever the substantive denounced Sec. prevent. be alert to 135 of Criminal Code given, For the reasons I should reverse provision. However, to violate that cer- remand the judgment tain statements were made in this court’s quash District Court with directions opinion former relative to bearing discharge defendants. ques- the rule in the Pettibone case on admissibility tion of the of the evidence joins in Judge then under consideration which KIRKPATRICK this dis- counsel for appellee now contend determined sent. Rehearing. Petition On

BIGGS, Judge. Circuit peti filed ground appellants have' rehearing tion for properly constituted court was not Judge Goodrich appeal hear their by because .special presided in assignment Jersey New at the District Court of trial ruled appellants and in that trial questions involved upon some of the were con appeal bar. The sen their first trial and were victed at judgment They appealed. tenced. remanded was reversed and the cause Jersey for a the District of New See, 3 120 F.2d new trial. Thereafter, Judge nothing Goodrich trial At the second do the case below. convicted appellants were de novo the They appealed again. This again. appеal at bar. Judge opinion Good We are provi disqualified under the rich was not sions Section the Judicial sitting U.S.C.A. § hearing court on the and decision of appeal, ruling no or action of Judge the first trial Goodrich in Bennett, Jr., Atty. Gen. of New any way involved J. John (Wendell Brown Edward P. York present appeal Rex to this court. See J. Gen., of Attys. counsel), Asst. ‍‌‌‌​‌‌‌‌‌​‌‌‌‌​‌​​‌‌​‌‌‌‌​​​​​‌​​‌​​​‌‌‌​​​‌‌​​‌‍Co., Grogan, Jr., ford Brunswick-Balke-Collender appellant. for S.Ct. U.S. Delaney 586, 44 v. United U.S. Hatt, 2d, Y., Albany, N. for George J. 206, 68 L.Ed. decision appellee. court, Triangle & Cable of Co., Inc., Conduit HAND, SWAN, N. Before AUGUSTUS Products v. National Electric FRANK, Judges. Circuit Corporation, 3 F.2d 1008. petition rehearing will be de- SWAN, Judge. Circuit nied. appeal presents question wheth- This York is entitled to col- er the State New taxpayer from the estate of lect taxes who proceeding in bank- initiated a ruptcy prior to the enactment the taxes were assessed. appellee November On petition bankruptcy court a filed CO., TEN EYCK Inc. In re chapter arrangement, 11 XI U.S.C.A. § No. order was entered con seq., et and an property, tinuing possession its Appeals, Second Circuit. Circuit Albany. city Eyck Hotel Ten March legislature Subsequently the New York chapter of the Laws of enacted which amended March effective imposed Tax Law and 186-a section 7, 1937,upon tax, May sales retroactive submeterers, such as'owners or utility hotels, apartment houses and operators

Case Details

Case Name: United States v. Perlstein

Court Name: Court of Appeals for the Third Circuit

Date Published: Feb 20, 1942

Citation: 126 F.2d 789

Docket Number: 7794

Court Abbreviation: 3rd Cir.