Brief for the United State in Opposition — Glasser v. United States

FILE COPY =. {°

oe

: ees eke © Peau eae comer

: r Las

ee hares

CLS Rw

Eenrs > dot -e ig

“Now. haccanhaall

*

8 Fey wer

S i

_ Obtoser "Taxa, 1940

a — oF Y

‘Didees D. saa alba ‘

Uyrtep Staves OF AMERICA’.

‘Nokron I. KRerske, PerrrioNeR:

Unrrep States op AMERICA

" Aurep.E, Ror, PETITIONER ?

Darren Siam Lr acsatan ae

dé r

" ~

Yee Sri :

ow Paritions For werre oF. Goaiigades : TO THR NITED

STATES CIRCUIT COURT OF APPEALS FOR: THE Aba ts

ca alt 2

‘BRIN on THE WoT prAnss Ox oPposTtON

=

on il

INDEX

Opinion helow. - .....-..--- DOGG ek a Uae OeuWelon eee dete

CO finds mre Ot earn er sawas Wonk Camnekc a

Questions presented..-......_._ - Sigs ec aan psi ae eere winetnaase

Tee ery? PETIT T EEE ep reasueweees <ebaeee

CITATIONS

Cases:

Agnew v. United States, 165 U. S. 36_...--.-.-----------

Alford v. Uniicd States, 282 U. 8. 687_....-.-------.----

Berger v..United States, 205 U. S. 78... .-.--------------

Blitz v. United States, 153 U. 8. 308... -....----------- 2

Breese v. United Shufrs, 226 U. 8. 1.......-.-----.--..--

Brookman vy. United States, 8 F. (2d) 803---- --- ee teeny.

Brown v. United States, 32 F. (2d) 953__..---------- Sate

Cendagarda v. United States, 64 F. (2d) 18Z_.......---.--

Coes w. Cie Gieies, 858 U. & 867... ....-.. 4-2-2...

Delaney v. United States, 263 U.S. 586_.......----------

District of Columbia v. Clawans, 300 U. 8. 617.----------

Goldstein v. United Siates, 63 F. (2d) 609_.--_.----------

Hall v. United States, 48 F. (2d) 66------.--------------

Hargrove v. United States, 25 F. (2d) 258-_.--------------

Harrod vy. United States, 29 F. (2d) 454__.------ ee ade

EE OE

Johnston vy. United States, 154 Fed. 445... ------.- -

Kettenbach v. United States. 202 Fed. 377____ __-_-_- -----

Ledbeiter v. United States, 108 Fed. 52._- __--.---_------

Marvel v. Zerbst, 83 F. (2d) 974._-._..--------------- ane

Miller v. United States, 24 F. (2d) 353, certiorari denied,

ok eee nf eee Desay

Moffatt vy. United States, 232 Fed. 522. setae Pies

Morrison v. United States, 71 F. (2d) 258, certiorari denied,

293 U.S. 589____. - ‘aie Seti Dee ee

People v. Traeger, 372 mM. i. owas :

Philadelphia and Trenton Railroad Co. v. Stimpson, 14

Rea v. Missouri, 17 Wall. 532

Renigar v. United States, 172 Fed. 616_- “

Stockslager v. United States, 116 Fed. 590. ain en aa

(1)

302277—-41——_-1

Cases—Continued.

United States v. Breen, 96 F. (2d) 782.....-...----.--.----

United States v. Gale, 109 U. 8. 65....-_..----.---------

United States AL ee oe eae

United States v. Kay, 101 F. (2d) 279, certiorari denied,

United States v. McClure, 4 F. Supp. 668_..-....--------

United States v. Parker, 103 F. (2d) 857, certiorari denied,

Williams v. United States, 20 F. (2d) 269___._._._--.------

re es Te ee ee Steel a oboe ssilncdeub eueate

Statutes:

Inthe Supreme Gourt of the Bnited States

OcToBER TERM, 1940

Nos. 796-798

DANIEL D. GLASSER, PETITIONER

v.

UNITED STATES OF AMERICA

Norton I. KRETSKE, PETITIONER

v.

UNITED STATES OF AMERICA

ALFRED E. ROTH, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITIONS FOR WRITS OF CERTIORARI TO THE UNITED

STATES CIRCUIT COURT OF APPEALS FOR THE SEVENTH

CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the Circuit Court of Appeals (R.

14117-1139) is reported in 116 F. (2d) 690.

(1)

2

JURISDICTION

The judgment of the Circuit Court of Appeals

was entered December 13, 1940 (R. 1139-1140), and

petitions for rehearing (R. 1141-1208) were denied

January 23, 1941 (R. 1239). The petitions for

writs of certiorari were filed February 28, 1941.

The jurisdiction of this Court is invoked under

Section 240 (a) of the Judicial Code, as amended

by the Act of February 13, 1925. See also Rule

XI of the Rules of Practice and Procedure in

Criminal Cases promulgated by this Court May 7,

1934.

QUESTIONS PRESENTED

1. Whether the record fails to disclose that the

indictment was returned in open court by the grand

jury.

2. Whether the trial court erred in overruling

petitioners’ motion to quash the indictment on the

ground that the grand jury was illegally con-

stituted because of the exclusion of women there-

from.

3. Whether the trial court abused its discretion

in denying petitioners’ motion for a new trial

based on the alleged improper method of selecting

prospective petit Jur_rs. |

4. Whether petitioner Glasser was deprived of

his right to the effective assistance of counsel.

5. Whether the second count of the indictment

sufficiently charged a conspiracy to defraud the

United States.

3

6. Whether Government Exhibits 81A and 113

were prope. iy admitted in evidence.

7. Whether the conduct of the trial judge was

such as to deprive petitioners of their right to a

fair and impartial trial.

8. Whether the prosecutor was guilty of preju-

dicial misconduct.

9. Whether there was sufficient evidence to war-

rant the submission of the question of the guilt of

petitioners Glasser and Roth to the jury.

STATEMENT

On September 29, 1939, an indictment in two

counts was returned against the petitioners and

two others ' in the District Court for the Northern

District of Illinois. The first count is not here in-

volved since it was dismissed at the close of the

Government's case upon its election to proceed on

the second count (R. 100). The second count (R.

22-37), after alleging that during certain periods

the defendants Glasser and Kretske were assist-

ant United States attorneys for the Northern Dis-

trict of Illinois, employed to prosecute in that

district all delinquents for crimes and offenses cog-

nizable under the authority of the United States,

particularly violations of the federal internal rev-

enue laws relating to liquor, charged in substance

that the defendants conspired to defraud the

* The two codefendants, Anthony Horton and Louis Kap-

lan, were convicted (R. 101, 1045) but did not appeal.

4

United States of its right to be honestly, faithfully,

and dutifully represented in such matters in the

courts of the United States by an assistant United

States attorney free from corruption, improper in-

fluence, dishonesty, or fraud. The count alleged

broadly that the conspiracy was to be accomplished

by the soliciting of moneys from certain persons

charged with violating or about to be charged with

violating the federal liquor laws, which moneys

were to be used to influence and corrupt the de-

fendants Glasser and Kretske in the performance

of their officia! duties.

Petitioners were convicted (R. 101, 1045) and

were sentenced as follows: Glasser and Kretske to

imprisonment for a period of 14 months and Roth

to pay a fine of $500 (R. 104). On appeal to the

Circuit Court of Appeals for the Seventh Circuit

the petitioners’ convictions were unanimously af-

firmed (R. 1117-1140).

The extensive summary of the Government's

evidence contained in the opinion in the Circuit

Court of Appeals (R. 1122-1129) renders it unnec-

essary to do more than briefly outline, with appro-

priate record references for the convenience of the

Court, the modus operandi of the conspiracy and

the parts played therein by the defendants. While

the petitioner Kretske concedes that there was suf-

ficient evidence to have made out a case for the

jury against him (Pet. 3), the evidence respecting

the part played by Kretske in the conspiracy is

5

necessarily included in the following summary,

since he was a pivotal figure.

Petitioner Glasser was the Assistant United

States Attorney in charge of Jiquor cases (R. 914,

917) in the office of the United States Attorney

for the Northern District of Illinois from shortly

after March 1935 (R. 911) until April 1939 (R.

912). Petitioner Kretske was also an Assistant

United States Attorney in that office from October

1934 (R. 802) until April 1937 (R. 801) and

assisted Glasser in the prosecution of liquor cases

(R. 190, 801). After his resignation from office,

Kretske practiced law in Chicago (R. 753, 803).

Petitioner Roth was an attorney in private prac-

tice (R. 833) to whom Kretske referred various

persons who were charged with violations of the

liquor laws and whose cases were involved in the

instant conspiracy (R. 835, 861, 872, 875, 878y-

The defendant Horton was a bondsman who con-

ducted his business in the Federal Building in Chi-

cago where the office of the United States Attorney

is located (R. 750, 765). The defendant Kaplan

was engaged generally in the illicit aleohol business

in and around Chicago and was a large-scale op-

erator of illicit stills in that vicinity. (R. 452, 453,

460, 463, 467, 473, 530; Ex. 113, R. 532; Ex. 81, R.

033).

Kaplan frequently informed his associates that

he had protection through the ‘‘ Federal Building’’

and that he paid out money for this purpose (R.

6

452, 454). One of Kaplan’s men, by following

Kaplan and by questioning him, ascertained that

Kaplan was periodically contacting Kretske and

Glasser (R. 455, 457, 462). Upon the seizure of

two stills operated by Kaplan and his associates

(R. 458, 538), Kaplan collected money from his

partners for the purpose of ‘‘fixing”’ the cases, tell-

ing them not to worry about anything (R. 457-460,

465) ; that after the Alcohol Tax Unit investigators

had done their work, the cases were out of their

hands (R. 460, 466). These alcohol violations were

brought to Glasser’s attention by means of the in-

vestigator’s reports (R. 529-530; Ex. 81, R. 529;

Ex. 113, R. 532) and by many conferences and dis-

cussions (R. 444-452, 529-530, 522). Glasser was

satisfied with the available evidence against Kap-

lan (R. 530). In one of these cases ‘‘no bills’’ were

returned by the grand jury as to the three most

important of the accused, including Kaplan (R.

530), the case having been presented to and with-

drawn from three prior grand juries by Glasser

(R. 528-531), and in the other case ‘‘no bills’’ were

returned as to all thé accused (R. 528). Available

evidence was not used by Glasser upon these pres-

entations (R. 530-533, 536-537, 590, 602). One

of the accused paid $100 to Kretske for a ‘‘no

bill”? immediately prior to such action by the

grand jury (R. 542). The members of the grand

jury followed Glasser’s advice as to who should and

who should not be indicted (R. 589). The presen-

7

tation of one of these cases was, in the opinion of

the grand jurors, so unsatisfactory that they re-

quested its re-presentation (R. 589-591, 604-606).

A third still operated by the same group was

seized November 17, 1937 (R. 468-469, 541), and

money was shortly thereafter paid by one of the

group to Kretske to ‘‘fix’’ the case on Kretske’s

assurance that its disposition would be the same as

in the two previous cases (R. 470, 542). A year

later, November 1, 1938, an indictment was re-

turned and Kretske was shortly thereafter paid

money by two others of the group on the under-

standing that they would not go to jail (R. 543-

345) and that Kretske would furnish a lawyer and

take care of Glasser (R. 543). Petitioner Roth

acted as the attorney and the case was continued

(R. 546-547). Kretske shortly thereafter, and at

about the time when Glasser resigned from office,

said that he could do nothing in the case as ‘‘they

had taken the alcohol cases away from his friend’’

(R. 547). The indicted defendants were subse-

quently convicted by Glasser’s successor in office

(R. 473, 547). Glasser sought and secured a writ-

ten statement from an attorney who withdrew from

the case to the effect that this attorney had not

done so because of any belief that the case had been

“fixed’’ (R. 618; Ex. 128, R. 619).

The many other cases involved in the conspiracy

present a comparable picture.

Kretske and Horton solicited money for the fix-

ing of many cases and in most instances re-

302277 —41——-2

8

ceived it (R. 225-231, 241, 244, 262. 297-300, 305-

307, 370, 413, 420, 469-472, 499, 542-550, 652). In

one case where the money was not forthcoming

when solicited the person solicited was shertly

thereafter indicted (R. 300). In another case, be-

cause of exceptional circumstances, Kretske, after

discussing the case with Glasser, refused to accept

the money (R. “3055.

Upon the receipt of payments prosecutive action

would generally cease (R. 194-196, 226, 232, 258,

261, 267, 268, 270, 271, 276, 346, 522, 663), the

matter would be stricken from the docket (R. 236,

350), or the accused would be discharged (R. 289,

297, 370, 414). Money paid for similar purposes,

through persons not indicted, accomplished sim-

ilar results (R. 307-310). In many of these

eases Kretske arranged for Roth to act as the at-

torney for the defendants (R. 228, 230, 273, 302,

345, 546, 835, 861, 872, 874, 875, 878). Persons pay-

ing for these favors were invariably advised not to

worry, that everything would be taken care of (R.

230, 3697073, 460-461, 458, 463, 465, 620, 621), and

Glasser\ r\Was known during the negotiation of these

transactions to be the person whos conduct was

to i, jnfluenced (R. 230, 297, 301, 304, 306, 543, 547,

631, 668, 670).

There was evidence from which the jury could

find that the disposition of these cases was the

direct result of some act or failure to act on the

part of Glasser (R. 194-195, 220, 232, 250-251,

%)

289, 297, 309, 310, 365, 371, 413-414, 464-465, 528-

529, 530-533, 589-591, 602, 633, 663, 668, 706-711).

The record discloses many instances of Glasser’s

failure to utilize available information and evi-

dence in securing indictments and in otherwise

prosecuting cases (Ex. 74, R. 406-408; Ex. 120, R.

585-587, 528-533, 602, 609, 589-590, 451-152, 536-

537; Ex. 160, R. 706-711, 250, 441-443, 218-224, 883,

199, 204, 209, 386).

In one case the evidence disclosed that the pros-

ecution by Glasser was the result of constant prod-

ding by an Alcohol Tax Unit investigator and that

Glasser was doing what he could to hinder a sue-

cessful prosecution (R. 300-304, 706-711).

There is direct evidence of Glasser’s extra-

official association and cooperation with Kaplan

and with other large scale violators who, upon

payment of money to Kretske, Horton or to one

Miller, were successful in avoiding prosecution

(R. 302, 304, 457, 462, 563, 709-711).

In one instance information concerning a liquor

violation in which one Nick Abosketes was involved

was disclosed confidentially in Glasser’s office

(R. 649). Shortly thereafter one Brantman, who

had known Kretske many years (R. 650), solicited,

on Kretske’s behaif, $3,000 from Abosketes to

stop Abosketes’ indictment_(R. 664-673, Ex. 134,

R. 666). This money was later turned over to

Kretske by Brantman (R. 652). Abosketes was

later informed by Brantman that ‘‘everything was

10

under control’? (R. 670) and he was never in-

dicted (R. 663, 666).

In attempting to bribe the United States District

Attorney for the Northern District of Indiana so

as to prevent the return of a certain indictment

(R. 680-682), Roth stated, ‘‘Well, that is the way

we handle cases in Chicago sometimes’’ (R. 682).

There was evidence that Kretske and Roth at-

tempted to prevent the investigation leading to the

indictment in the instant case (R. 685).

ARGUMENT

I

Petitioners contend (Glasser, pp. 15-19;

Kretske, pp. 13, 20; Roth, pp. 26-28) that the

record fails to disclose that the indictment was

returned in open court by the grand jury and

that, hence, the District Court erred in over-

ruling their motion to quash made on that ground

(R. 42, 141-149, 151). We submit that the Cir-

cuit Court of Appeals correctly held this con-

tent‘on to be without merit (R. 1118-1119).

The placita (R.1) discloses the convening of the

District Court for the Northern District of Tlli-

nois, Eastern Division ‘‘on the first Monday of

September [1939] (it being the twenty-ninth day

of September the indictment was filed),’’ and re-

cites the presence of the various judges of the

court, including District Judge Stone, who sat as

a member of the court by designation and who

tried the instant case, the marshal, and the clerk.

11

On the face of the indictment in the clerk’s own

handwriting (see R. 1119) appears the statement

“Filed in open court this 29th day of Sept.,

A. D. 1939, Hoyt King, Clerk,’’ preceded by the

notation ‘‘A true bill, George A. Hancock, Fore-

man”’ (R. 38). These records, which, of course,

import verity, sufficiently disclose, in our opin-

ion, that the indictment was returned by the

grand jury in open court.

It will be noted that in contrast with the

clerk’s entry ‘‘filed’’ in Renigar v. United States,

172 Fed. 646, 647 (C. C. A. 4th), cited by peti-

tioners, the entry of the clerk in the instant case

was ‘Filed in open court.’ Obviously, if the

indictment had not been returned in the usual

manner but had merely been handed by the fore-

man of the grand jury to the clerk, the clerk’s

entry would simply have been that the indict-

ment was ‘‘filed,’’ as in the Renigar case. There

is no proof in the present record that the in-

dictment was not returned in open court.’

* While it was stated in Ledbetter v. United States, 108

Fed. 52 (C. C. A. 5th), that an entry by the clerk on the

indictment “filed in open court™ was not sufficient to identify

the indictment as properly returned to the court by the grand

jury, the issue was complicated by the fact that the indict-

ment was captioned “Circuit Court” rather than the district

court; and it was essential that the indictment have been

returned in the district court. Moreover, the Circuit Court

of Appeals held that the formal defect was immaterial since

the bill of exceptions showed that the indictment had in fact

been returned in the District Court and the “oversights and

12

In addition, immediately after the above nota-

tion that the indictment had been filed in open

court there appears the following (R. 38-39):

on the 29th day of September A. D. 1939,

being one of the days of the regular Septem-

ber term of said Court, in the record of pro-

ceedings thereof, in said entitled cause,’

before the Honorable James H. Wilkerson

District Judge appears the following entry,

to wit:

UNITED STATES District Court,

Northern District of Illinois.

(Date) Sept. 29, 39.

Cine: iO. csncnnaien

ee Oe Te a iit dere ceenttiecneniian

Df. Ex. 1

117,39.

Brief Statement of Motion

The Grand Jury return 4 Indictments

in open Court. Added 10/30 39

Name of moving Counsel

be Representing

Order discharging Grand Jury of Sept.

Term 1939.

Name of opposing Counsel (if any)

JHW |

Hand this memorandum to the Clerk.

omissions” could have been corrected by the trial court at

the time this proof was made (p. 55).

In the Renigar case, supra, the opinion indicates that the

grand jury did not in fact return the indictment in open

court.

* The title and number of the present case appears at the

top of R. 38.

13

It is evident that this notation explicitly identifies

the indictment in the instant case as one of the four

_ indictments returned by the grand jury in open

court. Also, the initials ‘‘JHW’”’, being the initials

of District Judge Wilkerson, and the notation ‘“‘ Df.

Ex. 1, 11/7/39"’, together with various references to

a motion, lend support to the view that Judge Wil-

kerson ordered that the record be made to show

specifically that the indictment was returned in

open court by the grand jury, so that that informa-

tion would be available in connection with the hear-

ing of defendants’ motion to quash which was set

for November 7, 1939 (R. 140; Glasser’s petition,

p. 17).*. If this entry showing the return of the

indictment in open court by the grand jury was

made without order of the court, as petitioner

Glasser asserts (Pet. 17), that could have been

easily established. There is :othing in the record

to indicate that any such attempt was made.

At all events, it is certainly clear from the record

that the indictment was returned by the grand jury

and there is at most an imperfect disclosure that it

was returned in open court, without any actual

showing that it was not so returned. There is,

* Petitioners made no effort to prove and do not contend

that the indictment was not in fact returned in open court.

Accordingly. we see no reason why the notation quoted above

may not properly be regarded as a clarification of,the record,

nune pro tunc. While the Court, in the Ledbetter case re-

ferred to an “order entered nuvne pro func.” we see no reason

Why a formal order should be necessary, where the facts are

not in dispute.

14

moreover, no assertion in the motion to quash, the

supporting affidavit or the petitions for writs of

certiorari that petitioners were prejudiced by the

alleged defect. The defect was, at most, formal

and, in the absence of any showing of prejudice,

objections of this character are not favored. Cf.

Breese v. United States, 226 U.S. 1,11; U.S. C.,

Title 18, Sec. 556.°

Il

All of the petitioners contend, although peti-

tioner Glasser does not at this time argue the

point (Glasser, p. 8; Kretske, pp. 13, 20; Roth,

pp. 31-34), that the District Court erred in deny-

ing their motion t6 quash the indictment on the

ground that the grand jury was illegally consti-

tuted because of the deliberate exclusion of

women’s names from the Jury box from which the

grand jurors were drawn. (R. 42, 141-151.)

Petitioners’ argument, the substance of which

is apparently embodied in Roth’s petition, is that

under the laws of the State of Illinois, effective

prior to the summoning of the grand jury in the

instant case,’ it was required that the names of

* This section provides, in part, that—

“No indictment found and presented by a grand jury in

any district or other court of the United States 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 the defendant, * * *.

° The grand jury was summoned on haat 25, 1939 (R.

144-145, 148, 1118). On May 12, 1939, there were approved

15

women be placed on jury lists throughout the

State, and that the jury commissioner and the

court clerk, by virtue of U.S. C., Title 28, Sec.

411,’ should have heeded this requirement when

making up the grand jury list.

two amendatory acts of the legislature of Illinois. One,

Section 1 of Chapter 78 of the Illinois Revised Statutes,

1939, applies to counties not having jury commissioners (see

Illinois Revised Statutes, Chapter 78, Section 2), and pro-

vides that “The county board of each county ghall, at or

before the time of its meeting, in September, in each year,

or at any time thereafter, when necessary for the purpose of

this Act, make a list of sufficient number, not less than one-

tenth of the legal voters of each sex of each town or precinct

of the county, giving the place of residence of each name

on the list, to be known as the jury list.” The other, Section

25 of Chapter 78 of the Illinois Revised Statutes, 1939, ap-

plies to counties having jury cominissioners (see Illinois Re-

vised Statutes, 1939, Ch. 78, Sec. 24) and provides, in part,

that “The said commissioners upon entering upon the duties

of their office, and every four years thereafter, shall piepare

a list of all electors of each sex between the ages of 21 and

65 years, possessing the necessary legal qualifications for

jury duty, to be known as the jury list.”

These amendatory acts became effective July 1, 1939

(Article 1V, Section 12, Illinois Constitution). On August

8, 1939, the Supreme Court of Illinois upheld the constitu-

tionality of Section 25 of Chapter 78. People v. Traeger,

372 ill. 11.

* This section provides—

“Jurors to serve in the courts of the United States, in each

State respectively, shall have the same qualifications

* * * and be entitled to the same exemptions, ss jurors

of the highest court of law in such State may have and be

entitled to at the time when such jurors for service in the

courts of the United States are summoned.”

302277413

16

In disposing of the petitioners’ contention, the

Circuit Court of Appeals stated (R. 1118) that

‘“‘The Northern District of Illinois [in which the

indictment was returned] is composed of 18 coun-

ties of the State of Illinois. Under the Act in

question the county boards of 17 of these counties

were privileged to wait until September 1, 1939 be-

for including women on the jury lists.’’ *

It is contended, however, that the Circuit Court

of Appeals erroneously construed Section 1 of

Chapter 78 of the Illinois Revised Statutes because

the language of that section compels the conclusion

that the county boards were required to act before

September to make effective the then existing law.

In so contending emphasis is placed on the words

‘‘when necessary for the purpose of this Act.’’ It

is obvious, however, that this language was utilized

in order to permit the county boards not only to

make up the jury lists at or before the time of their

September meeting, but also to allow them to make

up such lists ‘‘at any time thereafter’’ when neces-

*It was conceded by the Government in its brief in the Cir-

cuit Court of Appeals that “it was the law in Cook County

that Jury Commissioners should place women on jury lists on

and after July 1, 1939" (p. 18), but it is evident from the de-

fendants’ affidavit in support of their motion to quash that

11 of the grand jurors were drawn from counties in the

Northern District of Illinois other than Cook County (R.

144-145; see U.S. C.. Supp. V. Title 28, See. 152). Of

course the court clerk and jury commissioner were entitled

to draw the grand jury from the entire District. Marvel

v. Zerbst, 83 F. (2d) 974 (C. C. A. 10th).

17

sary for the purpose of the Act (Footnote 6, supra,

p. 14.)

It is also argued that the Federal court clerk and

jury commissioner were not controlled by the State

law fixing the meeting time of the county board as

of September. The clerk and the jury commis-

sioner were, however, commanded by U.S. C., Title

28, Sec. 411 (Footnote 7, supra, p. 15) to place upon

jury lists only those who were at the time they

were summoned eligible for jury service in the

highest court of law in the State for which jurors

were selected. Section 1 of Chapter 78, although

effective on July lst, prior to the summoning of

the grand jury in the instant case, does not purport

to make women immediately eligible for such serv-

ice, but only when their names were placed on the

jury list by the county boards, and the boards were

privileged to defer their action until their Septem-

ber meeting. In order for thé petitioners to pre-

vail it was, under U. S. C., Title 28, See. 411, at

least necessary for them to have shown that in the

17 counties in the Northern District of Illinois

utilizing county boards in the preparation of jury

lists, those boards had, prior to the summoning of

the grand jury in the instant case, placed women

on their jury lists. The record contains no such

showing.

In any event, as the Circuit Court of Appeals

stated (R. 1118), there was no allegation in the mo-

tion to quash or supporting affidavit that petition-

ers were in any wise prejudiced by the selection

18

of grand jurors or that any one of them was in-

competent or disqualified. As this Court said in

United States v. Gale, 109 U. S. 65, 70, ‘‘It is not

complained that the [grand] jury actually empan-

elled was not a good one; but that other persons

equally good. had a right to be placed on it.’’ The

rule is well settled that a defendant has no cause

of complaint because of alleged irregularity in

drawing a grand jury which did not prejudice

him. Agnew v. United States, 165 U.S. 36, 44.

The burden is upon him to show by the averment

of specific facts that he was prejudiced. Brook-

man v. United States, 8 F. (2d) 803, 806 (C. C. A.

8th). The burden was not met in the instant case,

and the motion to quash was properly overruled.”

Ill

The petitioners also contend that reversible error

resulted from the overruling of their motion for

a new trial made on the ground that all the names

of women which were placed in the box from which

the petit jurors were selected were presented to

* See also United States v. Parker, 103 F. (2d) 857, 859

(C. C. A. 3d), certiorari denied, 307 U. S. 642; Walker v.

United States, 93 F. (2d) 383, 391 (C. C. A. 8th), certiorari

denied, 303 U. S. 644; Morrison v. United States, 71 F. (2d)

398, 359 (C. C. A. 5th), certiorari denied, 293 U. S. 589; of-

fatt v. United States, 232 Fed. 522, 528 (C.C. A. 8th) ; Stock-

slager v. United States, 116 Fed. 590, 596 (C. C. A. 9th).

1° There was here, of course, no systematic and prejudicial

exclusion of persons of the defendant’s class, eligible for

jury service, as in several of the cases cited by petitioner

Kretske (Pet. 13).

19

the clerk of the District Court by the Illinois

League of Women Voters; that all the women

whose names were presented by the League had at-

tended jury classes maintained for the purpose of

instructing prospective jurors; that the lectures

given to such classes represented the views of the

prosecution; that the names of women otherwise

qualified and eligible for jury service were delib-

erately excluded from the jury box; that they were

thereby deprived of trial by a fair and impartial

jury anu denied due process of law; and that

knowledge of the exclusion as jurors of women

other than those recommended by the Llinois

League of Women Voters was first acquired after

verdict (Glasser, pp. 12, 13, 15; Kretske, p. 14;

Roth, pp. 12-14)." Petitioner Glasser also urges

that the court clerk and jury commissioner un-

lawfully delegated to the Illinois League of Women

Voters their statutory duty under U. S. C., Title

28, See. 412,"* since the names of all the women

"It does not appear that petitioner Kretske sought a new

trial on this ground. The only affidavits appearing in the

record which raised the question are those of petitioners

Glasser and Roth (R. 1049-1057).

? This statute provides—

“All such jurors, grand and petit, including those sum-

moned during the session of the court, shall be publicly

drawn from a box containing, at the time of each drawing,

the names of not less than three hundred persons, possessing

the qualifications prescribed in the section last preceding,

which names shall have been placed therein by the clerk of

such court, or a duly qualified deputy clerk, and a commis-

sioner, to be appointed by the judge thereof, or by the judge

20

placed in the jury box were those presented to them

by this League. We submit that these contentions

are without merit.

Preliminarily it should be pointed out that the

record merely contains a notation by the trial court,

in denying the defendants’ motion for a new trial,

apparently orally made, granting petitioners

Glasser and Roth leave to file certain affidavits (R.

103). It is upon tke allegations in two of these

affidavits that petitioners’ present contentions are

predicated (R. 1049-1057). However, petitioners

have failed by their bill of exceptions to disclose

what transpired at the hearing on their motion for

a new trial. There is, therefore, nothing to show

the factual situation presented to the trial court

or the grounds upon which that court may have

predicated its decision. For aught that is known,

women other than those recommended by the Illi-

nois League of Women Voters may have been

placed in the jury box. Indeed, the very Bar

Journal article upon which petitioner Glasser re-

senior in commission in districts having more than one judge,

which commissioner shall be a citizen of good standing, re-

siding in the district in which such court is held, and a well-

known member of the principal political party in the district

in which the court is held opposing that to which the clerk,

or a duly qualified deputy clerk then acting, may belong, the

clerk, or 2 duly qualified deputy clerk, and said commissioner

each to place one name in said box alternately, without ref-

erence to party affiliations until the whole number required

shall be placed therein.”

21

lied in the trial court shows that at least one non-

member of the League was summoned! (R. 1052).:

Moreover, so far as we know, the motion may have

been denied because the facts disclosed that the de-

fendants’ objection was not made at the first

opportunity.

In any event the petitioners’ complaint was first

raised on motion for a new trial. The disposition

of such a motion is, of course, committed to the

sound discretion of the trial court and its action

may not be reversed unless there has been an abuse

of discretion. Petitione:s make no showing that

such discretion was abused in the present case.

With respect to those whose names are placed

in the jury box from which are selected grand and

petit jurors, the statute governing the drawing of

jurors places only two specific limitations upon the

court clerk and the jury commissioner. They may

put in the box only the names of qualified persons

and must place therein the names of at least three

hundred such persons. While, of course, no or-

ganization or group may be allowed to dictate to

them what names should be placed in the box and

they may not systematically exclude any qualified

class, the purpose of the statute is, as was stated in

United States v. McClure, 4 F. Supp. 668, 671

(E. D. Pa.), ‘‘to provide for the highest type of

jurymen in the federal courts and to insure their

selection without any risk of bias, prejudice, local

feeling, or unfitness of any kind.”’ There is thus

22

reposed in the court clerk and the jury commis-

sioner much discretion in the fulfilling of the duties

and responsibilities imposed upon them by the law,

and the decisions indicate that so long as they do

not abrogate their functions they are permitted, to

promote the purposes of the statute, to exercise a

reasonable degree of selectivity in the determina-

tion of those whose names are placed in the box for

jury service end that they may predicate their ac-

tion upon advice and information obtained from

appropriate sources. Walker v. United States, 93

F. (2d) 383, 390-391 (C. C. A. 8th), certiorari

denied, 303 U. S. 644; Wilson v. United States, 104

F. (2d) 81, 82, (C. C. A. 5th), certiorari denied,

308 U.S. 574; United States v. McClure, supra.

In the affidavits filed by petitioners Glasser and

Roth in the trial court there is nothing to show that

the Illinois League of Women Voters were at-

tempting to dictate that only the names of those

selected by that League should go into the jury |

box. These affidavits stated only that the women’s —

names placed in the jury box were taken from a

list prepared, and presented to the clerk by the

League. There was no allegation in these affidavits

that any of these women did not possess the neces-

sary qualifications, and the only objection which

petitioners raise to their qualifications is the asser-

tion in Glasser’s affidavit that in the classes of the

League which they had attended the lecturers had

presenced ‘‘the views of the prosecution” (R.

23

1050), an assertion which finds no support in the

Bar Journal article upon which his attack was

predicated (R. 1052-1057) and an assertion, more-

over, which cannot be adequately appraised in view

of the absence from the record of what transpired

at the hearing on the motion for a new trial. It

is, moreover, of significance that neither below nor

here is it asserted that any women who cttended the

jury classes of the Illinois League of Women Vot-

ers served on the jury which tried and convicted

the petitioners. Under the circumstances we sub-

mit that there has been no showing that the trial

court abused its discretion in denying the motion

for a new trial.

IV

Petitioners Glasse. (pp. 8-12) and Roth (pp. 30-

31) contend that the former was deprived by the

trial court of his right to the effective assistance of

counsel * because Glasser’s attorney, Stewart, was

assigned by the trial court to represent Kretske

when it developed that the latter’s counsel was en-

gaged in a State court trial. However, the conten-

tion is meritless."

8 It is difficult to perceive how Roth is in any position to

urge this point since he was represented throughout the trial

by his own attorney (R. 96, 186), and chus could hardly have

been affected by any alleged lack of the effective representa-

tion of Glasser.

** For the circumstances which resulted in the appointment

of Stewart to represent Kretske, see R. 41, 95-97, 173-185.

24

Outside of Glasser’s mere general statement that

Stewart’s joint representation of him and Kretske

resulted in the failure to cross-examine and to

make objections that would have been advantage-

ous to Glasser but probably detrimental to Kretske,

Glasser gives only one example, in a trial consum-

ing over a month (R. 179, 1045) where any alleged

injury occurred to him (pet. 10). It is apparent,

however, from the example given that the witness

Brantman, who had testified that he had paid

$3,000 to Kretske, also stated that he did not know

petitioner. There was obviously no necessity of

cross-examinationto elicit a fact which the wit-

ness had already stated in the direct examination.”

_ A mere thumbing of the record discloses that

Stewart vigorously defended Glasser’s interests at

the trial by objections to Government testimony,

cross-examination of Government witnesses, and

direct examination of Glasser and his witnesses.”

Indeed, Stewart, whom Glasser describes as an

‘‘eminent member of the local bar’’ (Pet. 9), ap-

pears to have taken the leading defense role (see

e. g. R. 750). -

** The reason for not cross-examining Brantman on Kret-

ske’s behalf is amply indicated in the colloquy occurring at

the time the sentences were imposed. (See R. 1061-1062.)

1 See, e. g., R. 200, 209, 214, 219, 246, 250, 252, 276, 293,

303, 339, 347-348, 390, 398-399, 441, 444, 446, 534, 565, 585,

616, 716, 722, 724, 737, 743, 744, 745, 783, 784, 796, 885, 886,

890, 911, 1060, 1065.

25

Also, Glasser does not refer to the fact that he

had another attorney, Callaghan, who filed on his

yz- behalf certaixatrial motions and pleadings (R. 54,

61, 65, 142), and who was present throughout the

trial. This attorney objected on several occasions

to Government testimony (R. 194-195, 399, 545,

624, 679-680, 703), and examined various witnesses

on behalf of Glasser (R. 823-829, 831, 910, 1028).

-

Petitioners Glasser (pp. 50-51) and Roth (p.

30) contend that the indictment charged a con-

spiracy to commit a substantive offense which

involved concerted action, i. e., to violate U. 8. C.,

Title 18, See. 91," relating to the bribery of

Government officers, and therefore was fatally

defective.

At the outset, it should be noted that there is

not here involved the first count of the indict-

ment which charged a conspiracy to violate the

bribery statute. At the end of the Governraent’s

case the Government elected to proceed on count

two and count one was dismissed (R. 100). It

follows therefore that the only count here in-

volved is count two.

That count did not charge a conspiracy to com-

mit the crime defined by the bribery statute” but

17 See appendix to Glasser petition, p. 53.

38 When the prosecutor said in his argument on the defend-

ants’ demurrer that “This indictment follows very closely the

26

was laid under that portion of the conspiracy

statute which penalizes conspiracies ‘‘to defraud

the United States in any manner or for any

purpose.’’ U.S. C., Title 18, Sec. 88. It charged

that the defendants conspired to ‘‘defraud the

United States of and concerning its govern-

mental function to be honestly, faithfully and

dutifully represented in the courts of the United

States by * * * an Assistant United States

Attorney to prosecute certain delinquents for

crimes and offenses cognizable under the author-

ity of the United States as the same should be

presented and determined according to law and

justice, free from corruption, improper influence,

dishonesty or fraud * * *.”’ (R. 28.) The

allegations with respect to the solicitation of

money to be paid to Glasser and Kretske in order

to influence them in their official acts as Assistant

United States Attorneys (R. 29 et seq.) were

obviously but the detailing of means whereby

the conspiracy was to be accomplished. The

count consequently is no different from that which

was before Justice Sutherland, Justice Stone, and

Circuit Judge Clark in United States v. Manton,

107 F. (2d) 834 (C. C. A. 2d), certiorari denied,

309 U. S. 664, in which Mr. Justice Sutherland,

in writing the opinion, said (p. 839):

language in Section 91,” (R. 154) it would appear from his

other observations that he was referring to the first count

of the indictment. (See R. 158.)

27

It is further urged that the indictment

charges, and that the government sought to

prove, a conspiracy to accept and secure

bribes, and that this is not an indictable

conspiracy. We do not stop to inquire

whether in the present case the conclusion

would follow from the premises, since it is

clear that the premises are not true. * * *

The indictment doesnot chargs, as a sub-

stantive offense the giving or receiving of

bribes; nor does it charge a conspiracy to

give or accept bribes. It charges a con-

spiracy to obstruct justice and defraud the

United States, the scheme of resorting to

: bribery being averred only to be a way of

consummating the conspiracy and which,

like the use of a gun to effect a conspiracy

to murder, is pureiy ancillary to the sub-

stantive offense. The long argument upon

the point consequently fails for lack of

foundation to give it support.”

The Cireuit Court of Appeals consequently prop-

erly held the Manton case to be dispositive (R.

1121-1122).

- While all of the petitioners assert that the in-

dictment was fatally defective because it was too

vague and indefinite, only Roth argues the point

(Glasser, p. 50, Kretske, p. 18, Roth, pp. 28-30).

It will be noted that there is no contention that the

® See also Miller v. United States, 24 F. (2d) 353, 358-359

(C.C. A. 2d), certiorari denied, 276 U. S. 638 ; Cendagarda v.

United States, 64 F. (2d) 182, 184 (C. C. A. 10th).

28

second count of the indictment, the one here in-

volved, did not charge the necessary elements of a

conspiracy to defraud under U. S. C., Title 18, Sec.

88, and it is apparent from an examination of the

count that the petitioners could not have been in

doubt as to the nature of the conspiracy charged or

as to the manner in which it was to be effected.

The only complaint is that the count did not suf-

ficiently particularize such details as ‘‘persons,

times, places, and circumstances.’’ These, how-

ever, were details which it was the function of a

bill of particulars to supply, and the District Court

directed the Government to furnish such particu-

lars (R. 76, 160). It did so in a bill which specified

in great detail the names and histories of the cases

with which the conspiracy was concerned ; the time,

places, amount, and circumstances of each payment

of money and the names of the defendants solicit-

ing each payment; the character of the official mis-

conduct, ete. (R. 77-89). There is no claim of any

prejudice or surprise following the furnishing of

this bill of particulars.

If there was any defect in the count it was a for-

mal one which did not prejudice the petitioners and

was remedied by the bill of particulars. Under

U.S. C., Title 18, See. 556 *” there is consequently

no basis for a reversal.

20 See footnote 5, supra, p. 14.

29

VI

All of the petitioners contend that Government’s

Exhibits 81A and 113 (R. 445-452; 529; 532-533)

were improperly admitted in evidence (Glasser, p.

31, Kretske, pp. 44-49, Roth, p. 24). However, the

trial judge twice informed the jury that these two

exhibits were received in evidence only against

Glasser and not against any of the other defendants

(R. 533-534, 539). It therefore follows that

neither Roth nor Kretske is in a position to urge

the point.”

21 These exhibits are not printed in the record and the

petitioners have net had them transmitted to this Court.

22 While the trial court stated that “At some further stage

of the proceedings I may advise you with reference to its

competency as to the other defendants * * *,” (R. 534)

it should be pointed out that there is nothing in the record

to indicate that it was ever admitted against any other

defendant than Glasser. Moreover, since the petitioners have

not incorporated in their bill of exceptions the trial judge’s

charge to the jury, it must be assumed that the jury was

properly instructed that Phe exhibits should be considered

only against Glasser. Cf. Hall v. United States, 48 F. (2d)

66, 68 (C. C. A. 9th); Brown v. United States, 32 F. (2d)

953, 954 (App. D. C.); Harrod vy. United States, 29 F. (2d)

454, 455 (App. D.C.) ; Williams v. United States, 20 F. (2d)

269, 270 (App. D. C.); Johnston v. United States, 154 Fed.

445, 449 (C. C. A. 9th).

** Petitioner Kretske asserts that the trial court permitted

these Exhibits to be read to the jury as evidence against the

defendant Kaplan and held that it was for the jury to deter-

mine if they were evidence against anyone else (Pet. 18, 44).

The record clearly shows that they were admitted only as

against Glasser (R. 534, 539). Kaplan did not appeal his

conviction (R. 1117).

30

As against Glasser, the exhibits were unquestion-

ably competent evidence.

While Exhibits 81A and 113 are not printed in

the record and the petitioners have not had them

forwarded to this court, it would appear that they

are the reports of Alcohol Tax Unit investigators

relative to the seizure of stills on Western Avenue,

Chicago, and in Spring Grove, Illinois, and detailed

information which the agents had uncovered with

respect to the parts played by the prospective de-

fendants, their personal history, ete. (R. 445-451,

532-533, 1080-1081, 1131-1132; Kretske’s petition,

pp. 44-47). These reports were turned over to the

United States Attorney’s office by the Alcohol Tax

Unit (R. 451-452, 532) and involved two of the

cases in which, it was the Government’s position,

the official decisions and actions of Glasser. were

influenced pursuant to the conspiracy charged in

the indictment. (See, e. g., bill of particulars, R.

82, and opinion below, R. 1125-1126; 1131-1132.)

In these two cases, although the reports implicated

certain individuals, a ‘‘No bill’? was returned

against them (R. 1125-1126). These reports were

of course not offered for the purpose of proving

the commission of the liquor violations therein de-

scribed, but to show what Glasser had before him

when he acted in these cases. As the Circuit Court

of Appeals said ‘‘The information contained in the

reports together with Glasser’s conduct in these

cases threw light upon the question whether the

31

United States was being deprived of the honest and

conscientious services of an assistant United

States Attorney’’ (R. 1132). Also, in the light of

these reports the jury was better able to appraise

any attempted explanation by Glasser of his con-

duct of the cases and of the failure of the grand

jury to indict certain of those named in the reports.

The reports were consequently clearly competent.

Cook v. United States, 138 U. S. 157, is not in

point. In that case the jury was permitted, under

an instruction of the trial court, to consider a

report of a murder made by the Attorney General

of a state to the Governor as substantive evidence

upon the question of whether the defendants had

committed the murder.

VII

Petitioners contend that the trial Judge failed

to maintain an attitude of impartiality, and assert

that he undertook the function of a prosecutor by

examining petitioners and their witnesses in a hos-

tile manner, restricted petitioners’ right of cross-

examination, and made remarks prejudicial to

them. They also assert that the judge undertook

the role of a witness by making certain statements

relative to criminal cases in Wisconsin against one

Nick Abosketes (Glasser, pp. 24-31; Kretske, pp.

20-38; Roth, pp. 14-23).

In the first place, it is well settled that federal

judges have the right, in the interest of eliciting

32

the truth, to interrogate both parties and witnesses

in a criminal case, and the extent of their partici-

pation in such interrogation is a matter within

their sound discretion. United States v. Kay, 101

F. (2d) 270, 272 (C. C. A. 2d), certiorari denied,

306 U. S. 660. Similarly, the scope and extent of

cross-examination is within the discretion of the

trial judge (Dist. of Columbia v. Clawans, 300 U.S.

617, 632; Alford v. United States, 282 U. S, 687, -

694; Blitz v. United States, 153 U. S. 208, 312),

and not subject to review in the absence of abuse.

Cf. Rea v. Missouri, 17 Wall. 532, 542.

Petitioners have selected from the voluminous

record many piecemeal excerpts, showing state-

ments made and questions asked by the trial court.

Obviously, divorced from its context, it may not

be possible to discern the propriety of each inci-

dent. And it should be noted that in the majority

of the many instances cited by petitiners as ex-

amples of alleged improper statements and inter-

rogations by the court, no objection was taken.

(See, e. g., R. 196, 232, 243, 273-274, 297, 307-310,

346, 348-349, 602, 615, 625, 627-628, 644-646, 816-

817, 850-851, 941, 943, 990-991, 1000-1902. )

** United States v. Gross, 103 F. (2d) 11,18 (C.C. A. 7th); .

United States v. Breen, 96 F. (2d) 782, 784 (C. C. A. 2d):

Hargrove v. United States, 25 F. (2d) 258, 259 (C. C. A.

Sth): Aettenbach v. United States, 202 Fed. 377, 385

(C. C. A. 9th); certiorari denied 229 U. S, 613.

33

There is clearly no merit to the principa! com-

plaints. The court’s statements that two indict-

ments were returned in Wisconsin against Abos-

ketes ** and that he pleaded guilty and was sen-

tenced on one of them were not improper. Not only

was no objection taken to the remarks but, on the

contrary, there was acquiescence in them, Glasser’s

counsel stating that ‘‘We will accept your Honor’s

credibility’? (R. 1030). Further, Abosketes, who

was a Government witness, had previously testified

that he had been convicted on a liquor law indict-

ment in Wisconsin before the same judge «~ho pre-

sided in the instant case (R. 663, 671-672).

Nor did the trial court improperly interrupt the

direct examination of defense witness Judye Igoe,

formerly United States Attorney and Glasser’s

superior. The record shows that Glasser had been

endeavoring to establish that Exhibit 160, an Alco-

hol Tax Unit report, was the identical report

which he had discussed with Judge Igoe and that

the latter, after reviewing it, approved Glasser’s

decision to prosecute a number of the defendants

named therein for substantive offenses under the

internal revenue laws and not for conspiracy, as

** The Government’s testimcny had shown that Abosketes

Was connected with the eperation of an illicit still in the

Northern District of Illinois, that this had been reported to

Glasser by the Alcohol Tax Unit, and that after the payment

by Abosketes of $3,000 to one Brantman, who turned it over

to Kretske, nothing further happened so far as Abosketes

was concerned (R. 647-649, 650-662, 664-673). ~~

Sd

34

recommended in the report. The agent who had

prepared the report, however, had previously testi-

fied that he attended the conference. between

Glasser and Judge Igoe regarding the case in ques-

tion and that the report was not submitted to the

United States Attorney’s office until after such

conference. (See R. 707.) Because of this testi-

mony the court indicated that it was his impression

that Judge Igoe had not examined Exhibit 160

when he discussed the case with Glasser and in

order to verify this impression he interrupted the

former’s direct examination to ask the agent, who

was in the courtroom, whether the report was com-

pleted at the time of the conference. The agent

replied in the negative. (R. 901-903.) Obviously,

the court was merely trying to refresh Judge Igoe’s

recollection. Moreover, Judge Igoe subsequently

testified that he saw the report later on and was not

in favor of handling the case as a conspiracy case

(R. 903).

With respect to the court’s ruling that the cross-

examination of former United States Attorney

William J. Campbell must be limited to the scope

of his direct examination,” it need only be said that

such is the established rule of practice in the fed-

eral eourts. Walls v. Russel, 100 U. S. 621, 625;

Houghton v. Jones, 1 Wall: 702, 706; Philadelphia

*6 This consisted merely of a denial that on the day the

indictment was returned he informed Glasser that he

“wanted to tell the grand jury that there was ncthing in your

official conduct that would require investigation” (R. 1041).

35

and Trenton Railroad Co. v. Stimpson, 14 Pet. 448,

460. Moreover, no objection was made to the

ruling; Glasser’s counsel merely stated that if he

was so limited there would be no cross-examination

(R. 1042). 7

Glasser also complains (Pet. 30-31) that the trial

judge refused to permit him to introduce in evi-

dence a report of the April, 1937, grand jury, while

on the other hand he allowed the Government to in-

troduce two Alcohol Tax Unit reports, Exhibits

81A and 113. However, it is plain that the grand

jury report (R. 789-795) was merely a criticism of

the investigation by the Alcohol Tax Unit of liquor

law violations in general, from which nobody could

ascertain what particular case or cases the grand

jury had in mind; while the twe Exhibits per-

tained to particular cases where Glasser’s official

actions were allegedly influenced pursuant to the

conspiracy charged in the indictment (see supra,

pp. 30-31). Clearly, the trial court was correct in

holding that the grand jury report was not com-

petent evidence (R. 795).”

** Kretske’s petition contains two lengthy quotations from

the recerd of examination of Glasser by the court, which ex-

amination, he claims, was improper (Pet. 34-38). But aside

from the fact that Glasser did not object in either instance

and the interrogation did not in anywise relate to Kretske,

it was not improper. The questions concerning Glasser’s

education were put to test the veracity of certain statements

made in Exhibit 209, a personnel record of Glasser, typed

by his stenographer from information supplied by Glasser

36

Thé Circuit Court of Appeals, with reference to

petitioners’ criticism of the trial court, said that

‘*We have examined every criticism made, consid-

ered them in connection with the entire record and

are satisfied that the complaints are of minor im-

portance. They did not affect the substantial

rights of the appellants, nor prevent the jury from

exercising an impartial judgment on the merits.”’

(R. 1138.) There is consequently no basis for a

claim of reversible error. U.S. C., Title 28, See.

391." See also Goldstein v. United States, 63 F.

(2d) 609-613 (C. C. A. 8th).

Vill

Petitioners further contend that the prosecuting

attorney overstepped the bounds of proper conduct,

with the result that they were deprived of their

right to a fair and impartial trial. It does not ap-

pear, however, that any of their principal grounds

of complaint, which are apparently those discussed

and prepared about aemonth before his resignation from the

United States Attorney's office (R. 990-991). Those dealing

with the libel case against a Chrysler sedan (R. 1000-1002)

were pertinent because that was one of the cases involved in

the conspiracy. (See R. 1123.)

** This statute provides:* * * * On the hearing of any

appeal, certiorari, or motion for a new trial, in any case, civil

or criminal, the court shall give judgment after an examina-

tion of the entire record before the court, without regard to

technical erro.s, defects, or exceptions which do not affect

the substantial rights of the parties.”

37

in Glasser’s petition, pp. 19-24, establish mis-

conduct.”

During Glasser’s cross-examination, which in-

quired into a number of cases handled by him while

he was an assistant United States attorney, Gov-

ernment counsel offered in open court to permit

him to examine the files of certain cases which the

prosecutor had in his possession in the court room.

Glasser stated that he would like to take advan-

tage of the offer the following day (Saturday),

whereupon the court stated that he might have ac-

cess to the files over the week-end adjournment

(R. 979-980). On Monday Glasser informed the

court that he had gone to the United States Attor-

ney’s office on Saturday morning and had been re-

fused access to the files. The prosecuior replied

that the refysal was occasioned by the fact that

Glasser was not accompanied by his attorney (R.

982-983). The court stated that ‘‘They simply told

you to get your lawyer, and you didn’t get your

lawyer, so the responsibility is not upon them. Show

*® Kretske cites a number of other instances of alleged im-

proper conduct on the part of the prosecutor. As pointed

out in‘Qoint VII, supra, the propriety of each incident can

hardly be determined by reading the selected excerpts which

he has taken from the record, without considering their re-

lation to the record as a whole. Some of the incidents were

not objected to (R. 289, 6386), while in others the objection

went merely to the form of the question or was because the

ground thereof liad already been covered (R. 229, 244, 882).

In those instances where objections were overrulec, we fail

to perceive any error in the trial court's uctioh. }

38

him [Glasser] the reports now,’’ and apparently

that was done (R.983). It seems evident that these

facts do not show any unfair refusal to let Glasser

inspect pertinent documents.”

Exhibit 96, a transcript of testimony before the

grand jury in the case of United States v. Lows

Kaplan et al., presented to the grand jury by

Glasser as Assistant United States attorney, was

received in evidence by the trial court (R. 529) and

tne part therzof containing testimony of one Cole

was read to the jury by the prosecutor (R. 574).

Glasser asserts that this portion of the transcript

contained certain immaterial testimony by Cole but

not his testimony going to the merits of the case

presented to the grand jury. He says that the lat-

ter testimony was deliberately suppressed by the

prosecutor and must have resulted in causing the

petit jury to conclude that Glasser made no effort

to obtain incriminating evidence from Cole. Since

Exhibit 96 is not included in the record and has

not been forwarded to this Court by the petitioners,

it is impossible, of course, to appraise the nature

*° Glasser intimates (Pet. 21) that the Government was

responsible for the loss of two exhibits, Nos. 205 and 206,

vital to his cause, which were not transmitted to the Circuit

Court of Appeals. However, the Government's additional

answer (R. 1100-1101) to the petition in that ceurt to require

the United States Attorney to produce certain allegedly

missing exhibits (R. 1094-1095) states that Nos. 205 and 206

were defense exhibits which were not then in the United

States Attorney's possession and never had been. Hence the

fact that they were missing hardly supports a contention

that it was the fault of the Government.

39

of Cole’s testimony before the grand jury. But

there is much in the record to indicate that Cole

did not testify concerning the merits of the case

under investigatign (R. 531, 590, 606, 925). Cer-

tainly the record references cited by Glasser (Pet.

22) do not establish the contrary. In any event,

there is nothing to sustain Glasser’s assertion that

the prosecutor deliberately suppressed part of

Cole’s testimony.

The objection that the propounding of many

leading questions established unfairness on the

part of the prosecutor is not well founded. Rec-

ord references of a number of instances are cited

on page 23 of Glasser’s petition. In some of them

no objection was made on the ground that the

witness was being led (R. 289, 296, 301, 636),

in one of them an objection was sustained (R.

245), and in the others it is clear that the ques-

tioning did not overstep the bounds of propriety.

Viewed as a whole, the record convinces that

the petitioners’ substantial rights were not af-

fected by any of the incidents to which they al-

lude. The court below said (R. 1137) that none

of petitioners’ complaints warranted a reversal

of their convictions.”

The record clearly does not support the as-

sertion that Exhibit 92, to the admission of which

petitioners’ objection was susiained (R. 712),

was nevertheless surreptitiously submitted to the

“ Plainly there was no such type of misconduct on the part

of the prosecutor in the instant case as was involved in

Berger vy. United Statex, 295 U.S. 78.

4)

jury by the Government. The assertion rests only

upon a recitation in the bill of exceptions that,

at the close of petitioners’ case, some 35 exhibits,

both Government and defense, were received in

evidence. These exhibits are listed by number

and No. 92 is included (R. 1034). However, the

certificate of the Clerk of the trial court as to the

exhibits transmitted to the Cireuit Court of Ap-

peals does not include or mention Exhibit 92

(R. 1080). We submit that the latter correctly

concluded that ‘‘From the record thus appearing

we are unable to say that [Exhibit 92 was] sent

tothe jury.”” (R.1132.) Moreover, Glasser’s peti-

tion (p. 24) states that the exhibit was a pre-trial

statement of a Government witness, one Raubunas,

calculated to corroborate his testimony at the trial.

Raubunas testified at length on two occasions (R.

452-527, 713-715), and there is nothing to indi-

cate that the exhibit contained anything beyond

what he testified to. In that event, petitioners

would hardly have been prejudiced even if the

exhibit had reached the jury.

IX

Only two of the petitioners, Glasser and Roth,

question the sufficiency of the evidence to have war-

ranted the submission of the question of their guilt

to the jury. Glasser’s principal contentions are

that there is no evidence that he ever received or

solicited a bribe, that the prosecution was based en-

tirely on testimony secured and prepared by ageuts

41

of the Alcohol Tax Unit, with which Unit he had

been at odds, that outside of their testimony the

Government’s evidence consisted mainly of the

testimony of confessed and convicted bootieggers,

and that the Government’s evidence as to his know]l-

edge and participation in the conspiracy was in-

adequate (Pet. 4-5; 31-50).

Petitioner Roth, after disagreeing with certain

inferences from the evidence made by the Circuit

Court of Appeals (Pet. 5-10), contents himself in

his argument with the general assertion that the

evidence is utterly insufficient and requires a re-

versal (Pet. 26).

It need only be said that the second count of the

indictment upon which petitioners were convicted

is not a count for bribery but for a conspiracy to

defraud the United States by corruptly influenc-

ing the official action of Assistant United States

attorneys through the solicitation of payments of

moneys from those whose cases would come before

buch officials. There was consequently no neces-

sity to prove that any bribe was ever received by

Glasser although there was ample evidence to con-

firm the District Court’s statement, in sentencing

Glasser, that he was satisfied that Glasser accepted

money in return for corrupt action (R. 1065).

With respect to the alleged animosity of the Al-

cohol Tax Unit investigators and the criminal

character of many of the Government’s wit-

nesses, these considerations merely involve ques-

tions of weight and credibility of evidence which,

42

it is elementary, do not fall within the province

of an appellate court. United States v. Manton,

supra, p. 839. Moreover, it may be pointed

out in this connection, that the trial judge permit-

ted the defendants to explore these subjects at

great length, so that the jury was fully apprised in

reaching their verdict of the interest and character

of the witnesses in question. (See R. 932-934, 943-

948.)

As to the stiffficiency of the evidence to show

knowledge of and participation in the conspiracy,

the absence of direct evidence is, of course, not con-

trolling. As was said by Mr. Justice Sutherland

in the Manton case (. 839):

It is not nevessary that the participation of

the accused should be shown by direct evi-

dence. The connection may be inferred from

such facts and circumstances in evidence as

legitimately tend to sustain that inference.

Indeed, often if not generally, direct proof

of a crimmal! conspiracy is not available

and it will be disclosed only by a develop-

ment and collocation of circuinstances.

In the instant case the Circuit Court of Appeals,

after a careful and extensive review of the evidence,

followed by a collating of the ‘‘noteworthy and ex-

pressive circumstances”’ from which the jury could

infer guilty participation of the petitioners in the

conspiracy (R. 1129), cencluded its discussion of

the question by saying that ‘‘We have considered

this record and are compelled to the conelusion that

43

the verdict is ew. Toure evidence”’ *

(R. 1130).

The conclusion of the Circuit Court of Appeals

that there was substantial evidence of petitioners’

guilt followed the like conclusion of the District

Court and the verdict of the jury. In the light of

this unanimity we submit that the petitioners have

not made any such showing as would require this

Court to reexainine the evidence. Cf. Delaney v.

United States, 263 U. S. 586, 590.

CONCLUSION

Petitioners had a fair trial, their contentions

were carefully considered and correctly decided by

the Cireuit Court of Appeals, and there is involved

no conflict of decisions. We therefore respectfully

submit that the petitions for writs of certiorari

should be denied.

FRANCIS BIDDLE,

Solicitor General.

WENDELL BERGE,

J Assistant Attorney General.

Grorce F. KNEIP,

FReD E. STRINE,

Harpy K. Mactay,

W. Marvin SMITH,

Attorneys.

Marcu 1941.

*? Since petitioners have not included the trial court’s

charge to the jury in the record, it must be assumed that

that court fully and correctly instructed the jury on the law

of conspiracy. See cases cited in footnote 22, supra, p, 29.

U § GOVERNMENT PRINTING OFFICE. 1941