United States v. Robert E. Rath

Mar 24, 1969
18545_1
Reporters:
Before:
Weick

ORDER.

Appellant contends primarily in this appeal that the presence of an unauthorized person in the grand jury room rendered the indictment returned by it invalid and that ‍​‌​​​​‌‌‌​‌‌​​​​​​​​‌​‌‌‌‌‌‌‌​‌​‌​‌​​‌‌‌‌​‌‌​‌‌‌‌‌‌​​​‌‌‌‌​‌​​‌‌​​‌‌​‌‌‌‌‌​‌‌​​​​​‌​‌​​‌​​​‌​‌​‌‍receipt in evidence of a summary statement prepared by an expert constituted prejudicial error. A technical violation of Rule 6(d), Federal Rules of Criminal Procedure, occurred when an attorney who was a stranger to this action unintentionally interrupted the grand jury proceedings by entering the courtroom in which they were being conducted. ‍​‌​​​​‌‌‌​‌‌​​​​​​​​‌​‌‌‌‌‌‌‌​‌​‌​‌​​‌‌‌‌​‌‌​‌‌‌‌‌‌​​​‌‌‌‌​‌​​‌‌​​‌‌​‌‌‌‌‌​‌‌​​​​​‌​‌​​‌​​​‌​‌​‌‍The record establishes that the proceedings were halted at the moment of his entrance, and were not resumed during the fifteen to twenty second period of his presence. We hold that the interruption did not invalidate the proceedings or the indictment.

*758 The eight-count indictment charged violations of 26 U.S.C. § 7201. The Government offered extended ‍​‌​​​​‌‌‌​‌‌​​​​​​​​‌​‌‌‌‌‌‌‌​‌​‌​‌​​‌‌‌‌​‌‌​‌‌‌‌‌‌​​​‌‌‌‌​‌​​‌‌​​‌‌​‌‌‌‌‌​‌‌​​​​​‌​‌​​‌​​​‌​‌​‌‍testimony and several hundred exhibits in support of the charges of violations of the Internal Revenue Code, and the summary exhibit was offered by an expert whose qualifications were not (and are not) challenged, and who was available for cross-examination. The exhibit was based upon evidence previously received and the trial judge ‍​‌​​​​‌‌‌​‌‌​​​​​​​​‌​‌‌‌‌‌‌‌​‌​‌​‌​​‌‌‌‌​‌‌​‌‌‌‌‌‌​​​‌‌‌‌​‌​​‌‌​​‌‌​‌‌‌‌‌​‌‌​​​​​‌​‌​​‌​​​‌​‌​‌‍properly instructed the jury concerning it. Under such circumstances the exhibit was properly received in evidence (Epstein v. United States, 246 F.2d 563 (6th Cir. 1957), cert. denied, 355 U.S. 868, 78 S.Ct. 116, 2 L.Ed.2d 74; Barber v. United States, 271 F.2d 265 (6th Cir. 1959)), and the record discloses no impropriety in its use. The remaining contentions ‍​‌​​​​‌‌‌​‌‌​​​​​​​​‌​‌‌‌‌‌‌‌​‌​‌​‌​​‌‌‌‌​‌‌​‌‌‌‌‌‌​​​‌‌‌‌​‌​​‌‌​​‌‌​‌‌‌‌‌​‌‌​​​​​‌​‌​​‌​​​‌​‌​‌‍of the appellant are determined to be without merit, and accordingly,

It is ordered that the judgment of the District Court be and it hereby is affirmed.