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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Brief for the United State in Opposition
- **Published:** January 1, 1942
- **Citation:** 315 U.S. 60

## Text

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386401_0493%3A09. Public record. Not legal advice.