# Appendix — United States v. Johnson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0212%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1966 - **Citation:** 383 U.S. 169 ## Text INDEX Table of Contents Vol. I Page RA ORR eT RR TIT TE ES 1 DOCKET ENTRIES WITH ORDERS OF SEPEEEETTEE sgstisicusshibvcnsittahiahuesiseaulasiteitapeianinsdlebsbacidehosbentatine 30 TUR s GRIN EM IIN ccccccsvovesecscnincinphastiniwaseienbasajatbasbeciiats 48 MOTIONS TO DISMISS FIRST COUNT. ...............0000 52 MOTIONS TO DISMISS SECOND TO EIGHTH SEEEMEIET ; scdedinhacanip etddnpaiininehiinlanemnddtdenmeameaniaiilemakimiicans 61 MOTIONS FOR DISCOVERY ...0..0.....c.cccccssssscssscecesececesees 74 CHARGE OF THE COURT TO THE JURY ................. 77 EXCEPTIONS TO CHARGER ...........cecccssesssesessssssssesesesees 110 IEA Ls PROCTDINGS ....cccccsocecseroverqonovoverescosesssesvsceseraes 129 UIE III? Selects pceoscbconuioonesesintbitncsovincesidimseliamicei 172 EE PINOT scscerctunnninensstonisonencameninnsonssceidettiicilesasidbadeh 205 ES 8 PEER RCT RS ons Ey 206 Se I III ai asiastnlsciniasoenvnsntaorigeniiicelbatiiianteienlciat 210 Frances Brown Kiernan MEARE BERT GRIN setae 253 Earl Kunkel Page I sca sesensnsnivvvreesveneeovrveneensesenense 265 i cicccesicecensstsenenteuevegnionweninsestervens 276 SE 277 I I I sci recsisesvecessesmnevscertevvtdestoneviossessente 294 RES I 341 NE I TI PE ocescececevceceniscusvorseenseocenccveccrsens 355 OPENING STATEMENT ON BEHALF OF FL 6) SEE 462 EEE SLE eC 466 Vol. IT ss snireetenebantcubavinabanse 499 i custsabunnbusonivecncionnes 516 ee wantuiunnatuecnsuseins 532 id aceneceiendseusanieneenveveoseneevevevencveeers 539 a coniernenbtnnebunes 558 I cseedemneneonovbonvegees 748 i csetulivebsanensons 784 eee hiscreersneccenisescosievnvaceeertvereeussvesesenees 790 I snavspeunebveeensveveenses 806 lh chicredenneneneeneneswenewvenseoeis tess 809 Robert Francis Kennedy ...............ccccsescescssesesessescesesees 837 GOVERNMENT EXHIBIT No. 86-b (Memorandum submitted to Attorney General) ...........ccccccccccseeseeecseeees 895 SPEECH OF MR. JOHNSON IN THE HOUSE OF REPRESENTATIVES (Ex. 91) wu... ccecscsscssesceeees 931 EDLIN’S REQUEST FOR ish eleciameane TO cc FL) ) a ... 938 MOTIONS OF EDLIN FOR A NEW TRIAL AND FOR JUDGMENTS OF ACQUITTAL NOV............ 953 MOTIONS OF JOHNSON FOR JUDGMENTS OF acini inedhinctoeceennibbenononesicimeeenoes 958 Page MOTIONS OF JOHNSON TO STRIKE TESTIMONY 964 JOHNSON’S REQUEST FOR INSTRUCTIONS TO THE JURY .......s.:0e0002 arevimmninaiit 966 MOTION OF JOHNSON FOR JUDGMENT OF ACQUITTAL NOV and MOTION FOR A NEW TRIAL, cecscecesessssssssccececscscesessssnssserecerncncscscnsscsoresssseseneneneessoes 973 AFFIDAVIT OF BRENDA FERMOYLE ............:0000 984 MOTION OF JOHNSON BASED UPON ARGU- MENT OF THE ASSISTANT UNITED STATES ATTORNEY. o.....cccsssssssssssssssessesensesenensenensnsecencnenenenenensenenes 985 — PEARS TS INDEX epee Ne eS Re ee epee Ae eee oe Appellee’s appendix consisting of portions of the record from the United States District Court for the District of Mary- ME ebtwndt pot ote sals ae aden sean eerd ahs tn aaees Transcript of procecdings (excerpts) -___.._..--.-_.-_-_-_- Government witnesses: Testimony of: Jackson D. Rains: Direct______....._.____- Raymond J. Davis: SE ne eee een 5 aa. no ink wad wise me aia hoslin Mary B. Mitchell: Direct.__.-...-..______- T. Lamar Caudle: Direct__.___......_.-____- Louis D. Goldman: Direct__..__._...______- Defense witnesses: Testimony of: Manuel Buarque: Rudolph Carrico: Cross___....___-_-.-_--_- F. DeSales Mudd: William L. Robinson: Direct (resumed) ---.--..-------------- Frank W. Boykin: Cross___---_-_---------- Oral argument on behalf of the Government by Mr. MN Bhi ies a de ee Se eens dao eS Argument by counsel during post-trial proceedings on August 6, 1963 on alleged improper somment by prosecutor in opening summation_----__----.------ I I Be oe S dae arcade baweedenewns acees Order extending time to file petition for writ of certiorari___- Order allowing certiorari__--.---.....---..----._---_-_._- 1) Proceedings in the United States Court of Appeals for the a UNITED STATES DISTRICT COURT FOR THE DISTRICT Oi MARYLAND No. 26067 Criminal UNITED STATES OF AMERICA vs. THOMAS JOHNSON FRANK BOYKIN J. KENNETH EDLIN WILLIAM ROBINSON Baltimore, Maryland April 1, 1963 INDICTMENT The Grand Jury for the District of Maryland charges: (1) That at all times hereinafter mentioned THOMAS F. JOHNSON was a member of the House of Repre- sentatives of the United States of America, representing the First Congressional District of Maryland. (2) That at all times hereinafter mentioned FRANK W. BOYKIN was a member of the House of Representa- tives of the United States of America, representing the First Congressional District of Alabama. (3) That at all times hereinafter mentioned the Depart- ment of Justice was a Department of the United States, created, organized and existing by virtue of Chapter 150 of 16 Stat. 162, entitled ‘‘An Act to establish the Depart- ment of Justice,’’ enacted by the Congress of the United States on June 22, 1870, and charged with the responsi- bility of enforcing the laws of the United States. (4) That at all times hereinafter mentioned the Attor- ney General of the United States was the head of the said Sra tee§ ESET oN LAT BOI TR EA RL ENTLY EN INE IN Ry URE _—— App. 2 Department of Justice, and was assisted in the perform- ance of his duties by the Assistant Attorney General, Criminal Division, Department of Justice. (5) That at all times hereinafter mentioned FIRST COLONY SAVINGS AND LOAN ASSOCIATION, ING.,, was a corporation organized and existing under and by virtue of the laws of the State of Maryland, with its prin- cipal places of business at Prince Frederick and Elkton, Maryland. (6) That at all times hereinafter mentioned FIRST CONTINENTAL SAVINGS AND LOAN ASSOCTA- TION, INC., was a corporation, organized and existing under and by virtue of the laws of the State of Maryland, with its principal places of business located at Prince Frederick and Chevy Chase, Maryland. A | (7) That from April 27, 1961, until on or about Decem- | ber 31, 1961, CHARLES COUNTY LAND COMPANY, | INC., was a corporation organized and existing under and by virtue of the laws of the State of Maryland, with its principal place of business located at La Plata, Maryland. (8) That from on or about May 2, 1961, until on or about December 31, 1961, LEISURE CITY LAND COM- PANY, INC., was a corporation organized and existing under and by virtue of the laws of the State of Virginia, with its principal place of business located at Brooke, Virginia. (9) That at all times hereinafter mentioned TENSAW LAND AND TIMBER COMPANY was a corporation organized and existing under and by virtue of the laws of the State of Alabama, with its principal place of business at Mobile, Alabama. (10) That at all times hereinafter mentioned J. KEN- NETH EDLIN dominated and controlled the business policies and operations of the said FIRST COLONY SAV- INGS AND LOAN ASSOCIATION, INC., and the said FIRST CONTINENTAL SAVINGS AND LOAN ASSO- ; WCEy irr opens aa App. 3 CIATION, INC.; that at all times hereinbefore mentioned in paragraph 7 J. KENNETH EDLIN dominated and con- trolled the business policies and operations of the said CHARLES COUNTY LAND COMPANY, INC.; and that at all times hereinbefore mentioned in paragraph 8 J. KENNETH EDLIN dominated and controlled the busi- ness policies and operations of the said LEISURE CITY LAND COMPANY, INC. (11) That at all times hereinafter mentioned WIL- LIAM L. ROBINSON was counsel, legal advisor, a direc- tor and an officer of the said FIRST COLONY SAVINGS AND LOAN ASSOCIATION, INC., and of the said FIRST CONTINENTAL SAVINGS AND LOAN ASSO- CIATION, INC.; that at all times hereinbefore mentioned in paragraph 7 WILLIAM L. ROBINSON was a director and an officer of the said CHARLES COUNTY LAND COMPANY, INC.; and that at all times hereinbefore men- tioned in paragraph 8 WILLIAM L. ROBINSON was a director and an officer of the said LEISURE CITY LAND COMPANY, INC. (12) That at all times hereinafter mentioned FRANK W. BOYKIN owned a substantial interest in the said TENSAW LAND AND TIMBER COMPANY and domi- nated and controlled the business policies and operations of the said TENSAW LAND AND TIMBER COMPANY. (13) That on November 17, 1959, an indictment was returned in the United States District Court for the Dis- trict of Maryland, being numbered 25038 on the dockets and records of the said Court and styled, ‘‘United States cf America vs. J. Kenneth Edlin, James W. Bridges, First Colony Savings and Loan Association, Inc., a Maryland corporation, Rosabelle Edlin and Jackson D. Rains,”’ which said indictment was pending in said Court at all times hereinafter mentioned. (14) That from on or about April 1, 1960, and con- tinuously thereafter until on or about December 31, 1961, oT RELY BFE TOSS TE, ESOS TLIO TS, pe seer as gr sas tate App. 4 THOMAS F. JOHNSON, FRANK W. BOYKIN, J. KENNETH EDLIN, and WILLIAM L. ROBINSON, herein named as defendants, together with FIRST COL- ONY SAVINGS AND LOAN ASSOCIATION, INC., FIRST CONTINENTAL SAVINGS AND LOAN ASSO- CIATION, INC., CHARLES COUNTY LAND COM- PANY, INC., LEISURE CITY LAND COMPANY, INC., and TENSAW LAND AND TIMBER COMPANY, herein named as co-conspirators but not indicted, and with other persons to the Grand Jurors unknown, did unlawfully, feloniously, wilfully, and knowingly combine, conspire, confederate, and agree together and with each other within the State and District of Maryland and at various other places to the Grand Jurors unknown, to defraud the United States of and concerning its governmental func- tions and rights hereinafter described, to wit: (a) Of and concerning its right to have its business and affairs, and particularly the transaction of the official business of the Department of Justice, conducted honestly and impartially as the same should be conducted, free from corruption, fraud, improner and undue influence, dis- honesty, unlawful impairment and obstruction. (b) Of and concerning its right to have its officers and employees, and particularly personnel of the Department of Justice, free to transact the official business of the United States unhindered, unhampered, unobstructed and unimpaired by the exertion upon them of dishonest, cor- rupt, unlawful, improper and undue pressure and jin- fluence. (c) Of and concerning its right to have the lawful func- tions and duties of the defendants THOMAS F. JOHN- SON and FRANK W. BOYKIN in their official capacities as Members of the House of Representatives of the United States exercised, perfurmed and administered free from corruption, dishonesty and fraud resulting from their Bok Seni ec ener tune SSMS y Pe see a 2 ae App. 5 personal and pecuniary interest in the success of J. KEN- NETH EDLIN, WILLIAM L. ROBINSON, FIRST COL- ONY SAVINGS AND LOAN ASSOCIATION, INC., FIRST CONTINENTAL SAVINGS AND LOAN ASSO- CIATION, INC., CHARLES COUNTY LAND COM- PANY, INC., LEISURE CITY LAND COMPANY, INC., and TENSAW LAND AND TIMBER COMPANY in attempting to persuade the Department of J ustice and officials thereof to cause the postponement of the trial of the charges contained in the indictment hereinbefore de- scribed in paragraph 13, and the eventual dismissal of the said indictment. (d) Of and concerning its right not to be deprived of the faithful, loyal and eccnscientious services of the de- fendants THOMAS F. JOHNSON and FRANK W. BOY- KIN in their official capacities as Members of the House of Representatives and as Members of Congress, unin- fluenced by corruption and by payments of money and other valuable considerations to the said THOMAS F. JOHNSON and FRANK W. BOYKIN by the said other defendants and the said co-conspirators as compensation for service rendered and to be rendered by said THOMAS F. JOHNSON in behalf of the said other defendants and the said co-conspirators in relation to matters pending in the House of Representatives and for services rendered by the said THOMAS F. JOHNSON and FRANK W. BOYKIN before the Department of Justice in relation to proceedings, charges and accusations in which the United States is a party and directly interested. (15) It was a part of said conspiracy that the said THOMAS F. JOHNSON should, at the request of the defendants J. KENNETH EDLIN and WILLIAM L. ROBINSON, render services, for compensation, to said defendants J. KENNETH EDLIN and WILLIAM L. ROBINSON and to co-conspirators FIRST COLONY SAVINGS AND LOAN ASSOCIATION, INC., and FIRST CONTINENTAL SAVINGS AND LOAN ASSO- CIATION, INC., to wit, the making of a speech, defending a = RIE REHEAT OM aap abe A hs ee LN ha sas “7 App. 6 the operations of Maryland’s ‘‘independent’’ savings and loan associations, the financial stability and solvency thereof, and the reliability and integrity of the ‘‘commer- cial insurance’’ on investments made by said ‘‘independ- ent’’ savings and loan associations, on the floor of the House of Representatives. (16) It was a part of said conspiracy that the defend- ants THOMAS F. JOHNSON, J. KENNETH EDLIN and WILLIAM L. ROBINSON would cause to be reprinted 50,000 copies of the aforesaid speech, delivered by the defendant THOMAS F. JOHNSON, for distribution to the public at large, to prospective depositors in the FIRST COLONY SAVINGS AND LOAN ASSOCIATION, INC., and the FIRST CONTINENTAL SAVINGS AND LOAN ASSOCIATION, INC., and to members of the General Assembly of Maryland during its 1961 session. (17) It was a part of said conspiracy that the defend- ants THOMAS F. JOHNSON, FRANK W. BOYKIN, J. KENNETH EDLIN and WILLIAM L. ROBINSON and others would meet from time to time to prepare and discuss the contents of a memorandum to be presented to the Department of Justice and officials thereof to attempt to persuade the Department of Justice and officials thereof to cause the postponement of the trial of the charges contained in the indictment hereinbefore described in paragraph 13, and the eventual dismissal of the said indictment. (18) It was a part of said conspiracy that the said J. KENNETH EDLIN and WILLIAM L. ROBINSON and the said co-conspirators would corruptly give and pay money and other valuable considerations to the said THOMAS F. JOHNSON and FRANK W. BOYKIN to bring the prestige, weight and iniluence of their said offices to bear upon officials of the Department of Justice in order to promote the interests and desires of the said J. KENNETH EDLIN and WILLIAM L. ROBINSON and of the said co-conspirators in relation to the indict- ment hereinbefore described in paragraph 13. “ oe EB) ie it ak a iat ss a : 2 4a ae 3 A e a BS) - Se & 4 : bi ns Nn dS Os Ramat ‘cetaiaii Mile See SSE a OO aE aS RE ia aa ii ea Ber Sars Uaeeiek aaa ih = si Baa : ’ « _ -. / App. 7 (19) It was a part of said conspiracy that the said THOMAS F. JOHNSON and FRANK W. BOYKIN should, at the request of the said other defendants and the said co-conspirators, render services, for compensa- tion, to said other defendants and the said co-conspirators in relation to said indictment, to wit, by interceding with and exerting their official influence upon the officials of the Department of Justice and bringing the prestige, weight and influence of their said official position to bear upon them and upon the Department of Justice in order to obtain decisions and actions upon said indictment which would be desirable, beneficial and advantageous to said other defendants and the said co-conspirators. (20) It was a part of said conspiracy that the defend- ants THOMAS F. JOHNSON, FRANK W. BOYKIN and WILLIAM L. ROBINSON would call upon, confer with, write letters to, and make telephone calls to the Attorney General of the United States and the Assistant Attorney General, Criminal Division, Department of Justice, at their offices in the Department of Justice to attempt to persuade the Department of Justice and officials thereof to cause the postponement of the trial of the charges contained in the indictment hereinbefore described in paragraph 13, and the eventual dismissal of the said in- dictment, and as compensation therefor the defendants THOMAS F. JOHNSON and FRANK W. BOYKIN would receive money, promises and other valuable con- siderations from the said other defendants and the said co-conspirators. (21) It was part of said conspiracy that the defendants THOMAS F. JOHNSON and FRANK W. BOYKIN would request Charles H. Z. Meyer, Supervisor, United States Probation and Parole Service, Chicago, Illinois, to come to the District of Columbia for the stated purpose of assisting the said THOMAS F. JOHNSON and FRANK W. BOYKIN in a Congressional investigation involving savings and loan associations, and particularly the back- ground of the defendant J. KENNETH EDLIN and his ie ie App. 8 relation thereto, and that the defendants THOMAS F. JOHNSON and FRANK W. BOYKIN would take Meyer to the Department of Justice to attempt to persuade the Department of Justice and officials thereof to cause the postponement of the trial of the charges contained in the indictment hereinbefore described in paragraph 13, and the eventual dismissal of the said indictment. (22) It was a part of said conspiracy that the defend- ants J. KENNETH EDLIN and WILLIAM L. ROBIN- SON would form a corporation known as Charles County Land Company, Inc., to take title to a tract of land in Charies County, Maryland, in which TENSAW LAND AND 'TIMBER COMPANY held a substantial proprietary interest, and from which the defendants THOMAS F. JOHNSON and FRANK W. BOYKIN would receive com- pensation for their actions and services on behalf of the defendants J. KENNETH EDLIN and WILLIAM L. ROBINSON and the aforesaid co-conspirators, as more particularly described herein. (23) It was part of said conspiracy that the defendants J. KENNETH EPDLIN and WILLIAM L. ROBINSON would form a corporation known as Leisure City Land Company, Inc., to take title to a tract of land in Stafford County, Virgina, in which TENSAW LAND AND TIM- BER COMPANY held a substantial proprietary interest, and from which the defendants THOMAS F. JOHNSON and FRANK W. BOYKIN would receive compensation for their actions and services on behalf of the defendants J. KENNETH EDLIN and WILLIAM L. ROBINSON and the aforesaid co-conspirators, as more particularly described herein. (24) It was a part of said conspiracy that the defend- ants J. KENNETH EDLIN and WILLIAM L. ROBIN- SON would pay the defendant FRANK W. BOYKIN and TENSAW LAND AND TIMBER COMPANY the sum of Two Hundred Fifty Thousand Dollars ($250,000.00), and would offer and promise to the defendant FRANK W. BOYKIN and TENSAW LAND AND TIMBER COM- bs pits poe pe App. 9 PANY commissions and other valuable considerations as an inducement for the defendant FRANK W. BOYKIN to use his influence as a member of the House of Repre- sentatives in attempting to secure the postponement of the trial of the charges contained in the indictment herein- before described in paragraph 13, and the eventual dis- missal of the said indictment. (25) It was a part of said conspiracy that the said de- fendants and co-conspirators would conceal the aforesaid receipt of money, promises and other valuable considera- tions by the defendants THOMAS F. JOHNSON and FRANK W. BOYKIN and would do such other and further acts as they might deem necessary and expedient to prevent the disclosure of the said receipt of money, promises and other valuable considerations by the said THOMAS F. JOHNSON and FRANK W. BOYKIN. OVERT ACTS In pursuance of and in order to effect the objects of said conspiracy, the defendants and co-conspirators did do and perform numerous overt acts, including the following, to wit: (1) During the period from on or about April 1, 1960, to on or about June 30, 1960, the defendants J. KEN- NETH EDLIN, WILLIAM L. ROBINSON and THOMAS F. JOHNSON met in the Congressional office of defendant THOMAS F. JOHNSON, the Woodner Hotel, and the Congressional Hotel, in the District of Columbia, and dis- cussed the contents of a proposed speech to be given by the defendant THOMAS F. JOHNSON on the floor of the House of Representatives. (2) Between on.or about April 1, 1960, and on or about June 30, 1960, in the District of Maryland and in the Dis- trict of Columbia, the defendant WILLIAM L. ROBIN- SON and others prepared drafts of a proposed speech to be given by the defendant THOMAS F. JOHNSON. SEEDERS! SALLE TRAP Tt AYA AR BTML A IS ITT App. 10 (3) On or about June 20, 1960, the defendant WIL- LIAM L. ROBINSON delivered a check drawn on his ac- count at the Industrial National Bank of Miami, Florida, in the amount of $500, to the defendant THOMAS F. JOHNSON, payable to the defendant THOMAS F. JOHNSON. (4) On or about June 30, 1960, in the District of Colum- bia, the defendant THOMAS F. JOHNSON delivered a speech on the floor of the House of Representatives. (5) On or about July 5, 1960, in the District of Mary- land, FIRST CONTINENTAL SAVINGS AND LOAN ASSOCIATION, INC., drew a check for $168.91, payable to the defendant THOMAS F. JOHNSON. (6) On or about July 6, 1960, in the District of Colum- bia, the defendant THOMAS F. JOHNSON caused and directed the reprinting of 10,000 copies of the speech de- livered on the floor of the House of Representatives on June 30, 1960, by the defendant THOMAS F. JOHNSON. (7) On or about August 12, 1960, in the District of Columbia, the defendant THOMAS F. JOHNSON caused and directed the reprinting of 40,000 copies of the speech delivered on the floor of the House of Representatives on June 30, 1960, by the defendant THOMAS F. JOHNSON. (8) On or about September 9, 1960, at Berlin, Mary- land, the defendant THOMAS F. JOHNSON deposited to his account in the Exchange and Savings Bank a check for $1,000.00, dated August 30, 1960, and drawn on the account of the defendant WILLIAM L. ROBINSON at the Industrial National Bank, Miami, Florida. (9) On or about November 4, 1960, the defendant WIL- LIAM L. ROBINSON issued and delivered a check drawn on his account at the Industrial National Bank of Miami, Florida, in the amount of $300, to the defendant THOMAS F. JOHNSON, payable to Russell O. Hickman, Treasurer for Tom Johnson for Congress Committee. (10) On or about November 4, 1960, in the Dis- RIE SN BE EG GENYES ERE TOL IIT NE TLL OE — App. 11 trict of Maryland, the defendant J. KENNETH EDLIN caused the FIRST CONTINENTAL SAVINGS AND LOAN ASSOCIATION, INC., to draw a check in the amount of $300, payable to the defendant WILLIAM L. | ROBINSON, as reimbursement for the check described in Overt Act 9. (11) On or about January 13, 1961, at Berlin, Mary- land, the defendant THOMAS F. JOHNSON deposited to his account in the Exchange and Savings Bank a check for $800.00, dated January 7, 1961, and drawn on the ac- count of the defendant WILLIAM L. ROBINSON at the Industrial National Bank, Miami, Florida. (12) On or about February 10, 1961, at Berlin, Mary- land, the defendant THOMAS F. JOHNSON deposited to his account in the Exchange and Savings Bank a check for $800.00, dated February 2, 1961, and drawn on the account of the defendant WILLIAM L. ROBINSON at the Industrial National Bank, Miami, Florida. (13) On or about March 2, 1961, at Miami, Florida, the defendant J. KENNETH EDLIN reserved accommoda- tions at the Eden Roc Hotel, for the defendant THOMAS KF, JOHNSON. (14) During the period from on or about March 3, 1961, to on or about March 7, 1961, the defendants THOMAS F. JOHNSON, J. KENNETH EDLIN and WILLIAM L. ROBINSON met at Miami, Florida. (15) On or about March 8, 1961, at Berlin, Maryland, the defendant THOMAS F. JOHNSON deposited to his account in the Exchange and Savings Bank a check for $800, dated March 6, 1961, and drawn on the account of the defendant WILLIAM L. ROBINSON at the Indus- trial National Bank, Miami, Florida. (16) On or about March 24, 1961, the defendants THOMAS F. JOHNSON, FRANK W. BOYKIN, J. KEN- NETH EDLIN, WILLIAM L. ROBINSON and others met in the District of Columbia. App. 12 (17) On or about March 25, 1961, in the District of Columbia, the defendants THOMAS F. JOHNSON, FRANK W. BOYKIN, and WILLIAM L. ROBINSON called upon the Attorney General of the United States. (18) On or about March 25, 1961, immediately after the defendants THOMAS F. JOHNSON, FRANK W. BOY- KIN, and WILLIAM L. ROBINSON had called upon the Attorney General of the United States, the defendants THOMAS F. JOHNSON, FRANK W. BOYKIN, J. KEN- NETH EDLIN, WILLIAM L. ROBINSON and others met in the District of Columbia. (19) On or about March 28, 1961, in the District of Columbia, the defendant THOMAS F. JOHNSON caused to be delivered to the Attorney General of tne United States a memorandum together with a covering letter addressed to the Attorney General of the United States. (20) On or about April 3, 1961, at Berlin, Mar “land, the defendant THOMAS F. JOHNSON deposited to his account in the Exchange and Savings Bank a check for $800.00, dated March 31, 1961, and drawn on the account of the defendant WILLIAM L. ROBINSON at the Indus- trial National Bank, Miami, Florida. (21) On or about April 17, 1961, in the District of Columbia, the defendant THOMAS F. JOHNSON ealled upon the Attorney General of the United States and the Assistant Attorney General, Criminal Division, Depart- ment of Justice. (22) On or about April 26, 1961, in the District of Columbia, the defendant J. KENNETH EDLIN delivered to the defendant FRANK W. BOYKIN two cashier’s checks, dated April 26, 1961, each for $125,000.00, payable to TENSAW LAND AND TIMBER COMPANY and issued by the National Bank of Bethesda-Chevy Chase, Bethesda, Maryland. (23) On or about April 27, 1961, in the District of Mary- land, the defendants J. KENNETH EDLIN, WILLIAM NRE ENT EY dere PO PES RAE ————————————————— _ App. 13 L. ROBINSON, THOMAS F. JOHNSON and FRANK W. BOYKIN caused and directed the incorporation of CHARLES COUNTY LAND COMPANY, INC. (24) On or about April 29, 1961, the defendants J. KENNETH EDLIN, WILLIAM lL. ROBINSON, THOMAS F. JOHNSON and FRANK W. BOYKIN caused the sale of a certain tract of land in Stafford County, Virginia, from TENSAW LAND AND TIMBER COMPANY to LEISURE CITY LAND COMPANY, INC., for $3,000,000. (25) On or about May 2, 1961, the defendants J. KEN- NETH EDLIN, WILLIAM L. ROBINSON, THOMAS F. JOHNSON and FRANK W. BOYKIN caused and directed the incorporation of LEISURE CITY LAND COMPANY, INC. (26) On or about May 3, 1961, in the District of Colum- bia, the defendants THOMAS F. JOHNSON and FRANK W. BOYKIN called upon the Assistant Attorney General, Criminal Division, Department of Justice. (27) On or about May 4, 1961, the defendant FRANK W. BOYKIN deposited in the United States mail a letter addressed to the Assistant Attorney General, Criminal Division, Department of Justice. (28) On or about May 8, 1961, at Berlin, Maryland, the defendant THOMAS F. JOHNSON deposited to his ac- count in the Exchange and Savings Bank a check for $3,500.00, dated May 2, 1961, and drawn by FIRST CON- TINENTAL SAVINGS AND LOAN ASSOCIATION, INC. (29) On or about May 9, 1961, in the District of Colum- bia, the defendant THOMAS F. JOHNSON deposited in the United States mail a letter addressed to the Assistant Attorney General, Criminal Division, Department of Justice. (30) On or about May 13, 1961, in the District of Colum- bia, the defendant FRANK W. BOYKIN forwarded to Pan. RR a scgeoms or sss epee, ee Sr NREES PRON ee, a ee App. 14 the defendant J. KENNETH EDLIN a letter from the Assistant Attorney General, Criminal Division, Depart- . ment of Justice. (31) On or about May 15, 1961, in the District of Colum- bia, the defendant FRANK W. BOYKIN forwarded to the defendant J. KENNETH EDLIN a letter from the Attor-. ney General of the United States. (32) On or about May 15, 1961, in the District of Mary- land, FIRST SONTINENTAL SAVINGS AND LOAN ASSOCIATION, INC., entered into a lease with the de- fendant THOMAS F’. JOHNSON and his wife, providing for the rental by FIRST CONTINENTAL SAVINGS AND LOAN ASSOCIATION, INC., of a building owned by the defendant THOMAS F. JOHNSON and his wife in Snow Hill, Maryland, at a monthly rental of $200. (33) On or about May 22, 1961, in the District of Colum- bia, the defendants THOMAS F. JOHNSON and FRANK W. BOYKIN called upon the Assistant Attorney General, Criminal Division, Department of Justice. (34) On or about May 22, 1961, in the District of Colum- bia, the defendant THOMAS F. JOHNSON made a tele- phone call to the Assistant Attorney General, Criminal Division, Department of Justice. (35) On or about May 23, 1961, in the District of Colum- bia, the defendant FRANK W. BOYKIN made a tele- phone call to the Assistant Attorney General, Criminal Division, Department of Justice. (36) On or about June 5, 1961, at Berlin, Maryland, the defendant THOMAS F. JOHNSON deposited to his ac- count in the Exchange and Savings Bank a check for $2,500.00, dated May 25, 1961, and drawn by FIRST CON- ca SAVINGS AND LOAN ASSOCIATION, INC. (37) On or about June 7, 1961, in the District of Colum- bia, the defendant FRANK W. BOYKIN made a tele- App. 15 phone call to the Assistant Attorney General, Criminal Division, Department of Jastice. (38) On or about June 9, 1961, at Berlin, Maryland, the defendant THOMAS F. JOHNSON deposited to his ac- count in the Exchange and Savings Bank a check for $4,000.00, dated June 7, 1961, and drawn by FIRST CON- TINENTAL SAVINGS AND LOAN. ASSOCIATION, INC. (39) On or about June 12, 1961, in the District of Columbia, the defendants THOMAS F. JOHNSON and FRANK W. BOYKIN called upon the Assistant Attorney General, Criminal Division, Department of Justice. (40) On or about June 13, 1961, the defendants THOMAS F. JOHNSON and FRANK W. BOYKIN tele- phoned Charles H. Z. Meyer, Supervisor, United States Probation and Parole Service, Chicago, Illinois. (41) On or about June 13, 1961, in Chicago, Illinois, the defendant J. KENNETH EDLIN telephoned Charles H. Z. Meyer, Supervisor, United States Probation and Parole Service, Chicago, Illinois. (42) On or about June 13, 1961, the defendants J. KEN- NETH EDLIN and WILLIAM L. ROBINSON met Charles H. Z. Meyer in the Palmer House Hotel, Chicago, Illinois. (43) On or about June 15, 1961, in the District of Columbia, the defendants J. KENNETH EDLIN, WIL- LIAM L. ROBINSON, FRANK W. BOYKIN, and THOMAS F. JOHNSON met with Charles H. Z. Meyer. (44) On or about June 15, 1961, in the District of Columbia, the defendants J. KENNETH EDLIN, WIL- LIAM L. ROBINSON, FRANK W. BOYKIN and THOMAS F. JOHNSON took Charles H. Z. Meyer to call upon the Assistant Attorney General, Criminal Division, Department of Justice, and other officials of the Depart- ment of Justice. App. 16 (45) On or about June 19, 1961, in the District of Columbia, the defendant FRANK W. BOYKIN made a telephone call to the Assistant Attorney General, Criminal Division, Department of Justice. (46) On or about June 23, 1961, in the District of Columbia, the defendant FRANK W. BOYKIN made a telephone call to the Assistant Attorney General, Criminal Division, Department of Justice. (47) On or about June 27, 1961, in the District of Columbia, the defendants THOMAS F. JOHNSON and FRANK W. BOYKIN called upon the Assistant Attorney General, Criminal Division, Department of Justice. (48) On or about June 28, 1961, at Berlin, Maryland, the defendant THOMAS F. JOHNSON deposited to his account in the Exchange and Savings Bank a check for $3,250.00, dated June 28, 1961, and drawn by FIRST CON- TINENTAL SAVINGS AND LOAN ASSOCIATION, INC. (49) On or about August 1, 1961, in the District of Columbia, the defendant THOMAS F. JOHNSON made a telephone call to the Assistant Attorney General, Criminal Division, Department of Justice. (50) On or about August 7, 1961, at Berlin, Maryland, the defendant THOMAS F. JOHNSON deposited to his account in the Exchange and Savings Bank a check for $2,000.00, dated August 4, 1961, and drawn on the account of the defendant WILLIAM L. ROBINSON at the Indus- trial National Bank, Miami, Florida. (51) On or about August 24, 1961, in the District of Columbia, the defendant FRANK W. BOYKIN made a telephone call to the Assistant Attorney General, Criminal Division, Department of Justice. (52) On or about August 24, 1961, in the District of Columbia, the defendant THOMAS F. JOHNSON called upon the Assistant Attorney General, Criminal Division, Department of Justice. ORO IE PEELE DIN LET OME ANG SoHE TA MN ANOLE EIN TIE TERS: SOR sa a eT App. 17 (53) On or about August 31, 1961, in the District of Columbia, the defendant FRANK W. BOYKIN made a telephone call to the Assistant Attorney General, Criminal Division, Department of Justice. (54) On or about September 7, 1961, in the District of Columbia, the defendant THOMAS F. JOHNSON ealled upon the Attorney General of the United States. (55) On or about September 8, 1961, in the District of Columbia, the defendant FRANK W. BOYKIN made a telephone call to the Assistant Attorney General, Criminal Division, Department of Justice. (56) On or about September 9, 1961, in the District of Columbia, the defendant FRANK W. BOYKIN made a telephone call to the Assistant Attorney General, Criminal Division, Department of Justice. (57) On or about September 14, 1961, in the District of Columbia, the defendants THOMAS F. JOHNSON and FRANK W. BOYKIN called upon the Assistant Attorney General, Criminal Division, Department of Justice. (58) On or about September 15, 1961, in the District of Columbia, the defendant THOMAS F. JOHNSON made a telephone call to the Assistant Attorney General, Crimi- nal Division, Department of Justice. (59) On or about September 19, 1961, at Berlin, Mary- land, the defendant THOMAS F. JOHNSON deposited to his account in the Exchange and Savings Bank a check for $1,500.00, dated September 12, 1961, and drawn on ‘the account of the defendant WILLIAM L. ROBINSON at the Industrial National Bank, Miami, Florida. (60) On or about September 20, 1961, in the District of Columbia, the defendant FRANK W. BOYKIN made a telephone call to the Assistant Attorney General, Crimi- nal Division, Department of Justice. (61) On or about September 21, 1961, in the District of Columbia, the defendants THOMAS F. JOHNSON and ss. Rice en res OPEL ONS ARIE RID Be, ns IPP te App. 18 FRANK W. BOYKIN called upon the Assistant Attorney General, Criminal Division, Department of Justice. (62) On or about October 10, 1961, in the District of Columbia, the defendant THOMAS F. JOHNSON made a telephone call to the Assistant Attorney General, Crimi- nal Division, Department of Justice. (63) On or about October 12, 1961, in the District of Columbia, the defendant FRANK W. BOYKIN made a telephone call to the Assistant Attorney General, Criminal Division, Department of Justice. (64) On or about October 13, 1961, in the District of Columbia, the defendant WILLIAM L. ROBINSON called upon the Assistant Attorney General, Criminal Division, Department of Justice. (65) On or about October 16, 1961, in the District of Celumbia, the defendants THOMAS F. JOHNSON and FRANK W. BOYKIN ealled upon the Assistant Attorney General, Criminal Division, Department of Justice. (66) On or about October 18, 1961, in the District of Columbia, the defendant FRANK W. BOYKIN made a telephone call to the Assistant Attorney General, Criminal Division, Department of Justice. (67) On or about October 19, 1961, in the District of Columbia, the defendant FRANK W. BOYKIN deposited in the United States mail a letter to the Attorney General of the United States. (68) On or about October 20, 1961, in the District of Columbia, the defendant WILLIAM L. ROBINSON called upon the Assistant Attorney General, Criminal Division, Department of Justice. (69) On or about October 20, 1961, in the District of Columbia, the defendant FRANK W. BOYKIN made a telephone call to the Assistant Attorney General, Criminal Divisior, Department of Justice. (70) On or about October 23, 1961, in the District of REGAIN ASA OES CRIT SNL EE OER ae el ON A RR RINT LOR SPER NN OED _— App. 19 Columbia, the defendant THOMAS F. JOHNSON made a telephone call to the Assistant Attorney General, Criminal Division, Department of Justice. (71) On or about October 23, 1961, in the District of Columbia, the defendants J. KENNETH EDLIN and WILLIAM L. ROBINSON delivered to the defendant THOMAS F. JOHNSON travelers’ checks in the total sum of $3,000, issued by FIRST CONTINENTAL SAVINGS AND LOAN ASSOCIATION, INC. (72) On or about October 25, 1961, in the District of Columbia, the defendant FRANK W. BOYKIN made a telephone call to the Assistant Attorney General, Criminal Division, Department of Justice. (73) On or about October 30, 1961, in the District of Columbia, the defendant FRANK W. BOYKIN made a telephone call to the Assistant Attorney General, Criminal Division, Department of Justice. (74) On or about November 6, 1961, in the District of Columbia, the defendant FRANK W. BOYKIN deposited in the United States mail a letter to the Attorney General of the United States. (75) On or about November 21, 1961, in the District of Columbia, the defendant FRANK W. BOYKIN made a telephone call to the Assistant Attorney General, Criminal Division, Department of Justice. United States Code, Title 18, Section 371. SECOND COUNT And the Grand Jury for the District of Maryland further charges: That on or about April 3, 1961, in the District of Mary- land, THOMAS F. JOHNSON, herein named a defendant, being duly elected a Member of Congress, and after his election and qualification as such and during his continu- ance in office, acting jointly and in concert with FRANK App. 20 W. BOYKIN, J. KENNETH EDLIN and WILLIAM L. ROBINSON, also named as defendants herein, the said FRANK W. BOYKIN, J. KENNETH EDLIN and WIL- LIAM L. ROBINSON aiding, abetting, counselling, com- manding, inducing and procuring the defendant THOMAS F. JOHNSON so to act, unlawfully, wilfully, knowingly and corruptly did receive, directly and indirectly, from the said J. KENNETH EDLIN and WILLIAM L. ROBINSON, compensation in the sum of Eight Hundred Dollars ($800.00), to wit, the proceeds of a bank check bearing date March 31, 1961, being in the sum of $800.00, payable to the order of Johnson and Johnson, and bearing the name of the defendant WILLIAM L. ROBINSON as maker, which said check was drawn on the Industrial Na- tional Bank of Miami, Florida, and was deposited in, credited to, and final payment in the sum of $300.00 made thereon to the account of the said THOMAS F. JOHNSON at the Exchange and Savings Bank, Berlin, Maryland, on or about April 3, 1961, the date and place of the receipt of said check by the defendant THOMAS F. JOHNSON being to the Grand Jurors unknown, for services rendered and to be rendered by him, the said THOMAS F. JOHN- SON, before the Department of Justice of the United States in relation to a proceeding, charge and accusation in which the United States was a party and directly in- terested, to wit: an indictment returned on November 17, 1959, in the United States District Court for the District of Maryland, being numbered 25038 on the dockets and records of said Court and styled, ‘‘ United States of Amer- ica vs. J. Kenneth Edlin, James W. Bridges, First Colony Savings and Loan Association, Inc., a Maryland corpora- tion, Rosabelle Edlin, and Jackson D. Rains,’’ and which, as the said defendants then and there well knew, was pending in said Court on April 3, 1961, the said services consisting of interceding and conferring with officials of the said Department of Justice, bringing the prestige weight and influence of the said defendant THOMAS F. JOHNSON’S official position to bear upon them, present- ing assertions, arguments and allegations, and otherwise 3 s — was commendable, the new definition of ‘defrauding’ was still too broad.’’ The definition in Hammerschmidt of which counsel complains read as follows: ‘‘To conspire to defraud the United States means primarily to cheat the Government out of property or money, but it also means to interfere with or obstruct one of its lawful govern- mental functions by deceit, craft or trickery, or at least by means that are dishonest. It is not necessary that the Government shall be subjected to property or pecuniary loss by the fraud, but only that its legitimate official action and purpose shall be defeated by misrepresentation, chicane or the overreaching of those charged with carry- ing out the governmental intention.’’ 265 U.S. at 188. This language has been construed in Manton, May, Bowles, and other cases to permit the prosecution of counts gen- erally similar to the First Count in the indictment under consideration. Counsel cites an article, 68 Yale L. J. 405, criticizing the use of counts charging a conspiracy to de- fraud the United States by dishonest means, and suggest- ing that Congress should repeal or amend the statute. Nevertheless, this Court should follow the law as laid down by the Supreme Court and other federal courts. App. 59 The argument that the alleged objects of the conspiracy are so vague, broad and indefinite that they give defend- ants no adequate notice of the offense charged, miscon- strues the nature and objects of the conspiracy. The First Count charges, in paragraph 14, a conspiracy to defraud the United States of and concerning its governmental func- tions and rights hereinafter described. Subparagraphs (a), (b), (ec) and (d), which immediately follow, state the rights referred to.1° They are not, as Johnson’s brief assumes, purposes of the conspiracy. The purposes, parts or objects of the conspiracy are set out in paragraphs 15 to 25 of the First Count, together with the means to be used to accomplish the purposes. Thereafter 75 overt acts are alleged, as having been done and performed in pur- suance of and in order to effect the objects of the con- 10 See summary of. those paragraphs under “The Indictment” supra. spiracy. The government has conceded what appears to me required by the allegations of the First Count, that it will not attempt to prove any purposes and objects of the conspiracy except those set out in paragraphs 15 to 25. So construed, as I think it must be, the First Count gives defendants adequate notice of the offense charged, more than sufficient to meet the requirements of the Fifth and Sixth Amendment and of Rule 7(c), F. R. Crim. P., 18 U.S.C.A. It is true that the First Count does not allege a con- spiracy ‘‘to cheat the Government out of property or money’’, and that it does not in haec verba allege inter- ference with or obstruction of lawful governmental func- tions ‘‘by deceit, craft or trickery, or at least by means that are dishonest’’. But it does not follow that the charge fails to meet the test laid down in Hammerschmidt. Paragraphs 15 to 25 contain allegations of the means used to defraud the United States of its rights enumerated in subparagraphs (a), (b), (ec) and (d) of paragraph 14. This Court believes that the means charged are dishonest means. See discussion of the Hammerschmidt rule in Bowles, 183 F. Supp. at 245-247, and the discussion under II. B., below. Finally, counsel contends that a charge of a conspiracy to defraud may not be made when the indictment as a whole shows that violations of specific statutes are in- volved. He contends that such a prosecution must be brought for the violation of the specific statutes or for a conspiracy to violate those statutes under the first alterna- tive of sec. 371. No authority is cited to support this proposition, which is at odds with the prevailing practice, and would unreasonably restrict the preparation of an indictment for conspiracy where repeated violation of several statutes by several persons are incidents of a single broad conspiracy to defraud the United States of its governmental functions and rights. If the government fails to prove the conspiracy charged, defendants will not be without remedy. e App. 60 All motions to dismiss the First Count are hereby denied, without prejudice to the rights of defendants to raise similar points by motions at the conclusion of the govern- ment’s case or at the close of all the evidence. II. Motions to Dismiss the Second to Eighth Covzis App. 61 A. VENUE Johnson and Boykin have moved to dismiss Counts 2 through 8 of the indictment for lack of venue, on the ground that those Counts fail to allege that any violation of 18 U.S.C.A. 281 occurred within the District of Mary- land. Robinson has adopted these motions. A prosecution under sec 2811! may be brought only in the District where the Congressman or other officer rendered the services or agreed to render the services, or where he received the compensation or agreed to receive the compensation. In none of the substantive cout.ts is it charged that Johnson rendered any services or agreed to render any services in the District of Maryland, nor is it alleged that Johnson agreed in Maryland to receive any compensation. Accordingly, the jurisdiction of this Court with respect to those counts must rest on a sufficient allegation that Johnson received compensation within the District of Maryland. Each substantive count (Second through Eighth) charges that in the District of Maryland, Johnson, a duly elected Member of Congress, acting jointly and in concert with, and aided and abetted by the other defendants, un- lawfully, wilfully, knowingly and corruptly did receive, directly and indirectly, compensation in a specified amount, to wit, the proceeds of a bank check payable to the order of Johnson and Johnson, which was deposited 41 Set out in note 3 supra. 7 in, credited to and final payment made thereon to the account of the said Thomas F. Johnson at the Exchange and Savings Bank, Berlin, Maryland, the date and place of the receipt of the check by the defendant Thomas F. Johnson being to the Grand Jurors unknown. In the Third, Fcuzih, Fifth and Sixth Counts, the checks are alleged to have been drawn on the National Bank of Bethesda-Chevy Chase, Bethesda, Maryland; in the Sec- ond, Seventh and Highth Counts, the checks are alleged to have been drawn on the Industrial National Bank of Miami, Florida. App. 62 Defendants have taken th» position that compensation is received in the District in which a check is delivered and only in that District; that the place where a check is cashed or deposited for collection and the place where it is ultimately paid are immaterial; and that since it is alleged that the place where Johnson received the check is unknown to the Grand Jurors, the indictment fails to ‘ allege venue in this District. The government contends that compensation was re- ceived in each instance at the place where the proceeds of the checks were made available to Johnson; that each substantive count aileges that Johnson received compensa- tion in the State of Maryland in a specified amount, to wit, the proceeds of a specified check which was deposited in, credited to and final payment made thereon to Johnson’s account at a specified bank in Berlin, Maryland; and, : therefore, that the receipt of compensation in the State 2 of Maryland has been sufficiently alleged. As an alterna- tive contention, the government argues that when payment is made by check, the receipt of compensation in violation of sec. 281 is a continuing offense which does not end until the proceeds of the check have been made fully avail- able to the offender; thus, there may be venue in more than one District if the check is deposited in one District and paid in another. The meaning of the words ‘‘receives * * * compensa- tion’’, as they are used in this section, was discussed by : : a q a — the Supreme Court in Burton v. United States, 196 U.S. 283. Burton was a Congressman, who was charged in certain counts of an indictment with illegally receiving compensation in the form of checks drawn on a bank in St. Louis, Missouri. The indictment, which was brought in the Eastern District of Missouri, charged both that Burton received the checks and that the checks were paid in that District. The evidence showed that the checks had in fact been received in the District of Columbia and deposited there in the Riggs Bank, which had given immediate credit to Burton and had then sent the checks to Missouri for collection. The trial judge left to the jury the decision where compensation had been received. The Supreme Court held that under the undisputed facts and the appli- cable banking law the Riggs Bank was not acting as Bur- ton’s agent in collecting those checks, but that title to the checks passed in the District ef Columbia to the Riggs Bank, which in contemplation of law had purchased the checks; and that venue with respect to those counts could not be laid in Missouri, where the checks were ultimately paid. The Court also held that it was not a case where an offense was commenced in one district and completed in another, rejecting the contention of the government that the offense had begun when the checks were mailed from Missouri to the District of Columbia. App. 63 Since in Burton the checks were physically delivered to the Congressman in the District of Columbia and im- mediate credit thereon given to him by the Riggs Bank in that District, defendants argue that Burton is no authority for the proposition that venue lies where the checks were deposited and credit given rather than where they were physically delivered. However, the entire discussion of venue in the opinion of the Supreme Court was devoted to the law and facts with respect to the deposit of the checks, the credit given and the payment of the checks. Mr. Justice Harlan dissented only because he felt that Burton haa received at St. Louis compensation for his services, since the checks were paid there to his representative, the collecting bank. The government rightly argues that if the Bi place of physical delivery of the checks were the only place where venue might be laid, the entire discussion in Burton would have been beside the point. In this con- tention the government is supporied by the following dic- tum of Judge Learned Hand in United States v. Lotsch, 2 Cir., 102 F.2d 35, 36: ‘‘Next, it is argued that the crime was committed when Lotsch took the cheques—that is in Manhattan—and not when he cashed them in Brooklyn. That was indeed held in Commonwealth v. Donovan, 170 Mass. 228, 49 N.E. 104; but State v. Walls, 54 Ind. 561, is to the contrary, and so is United States v. Green. D.C., 137 F. 618. Burton v. United States, 196 U.S. 283, 25 S. Ct. 243, 49 L. Ed. 482, favors the Indiana rule, at least by implication, because, if the receipt of the cheque be the offence, that would have been a short answer to the prose- eution, for Burton concededly got the cheque in Wash- ington.’’ App. 64 | fe 8 The controlling words in sec. 281, ‘‘receives * * * com- pensation’’, are different from the controlling words in the various sections of Chapter 11 of Title 18, sec. 201 et seq., as they have read from time to time, which refer variously to the receipt of ‘‘money’’, ‘‘checks”’ or ‘‘things of value’’, or use other expressions. The case of United States v. Green, N.D.N.Y., 136 Fed. 618, cited by Judge Hand, construed a bribery statute which made it an offense to tender ‘‘any contract, under- taking, obligation, gratuity, or security for the payment of money, or the delivery or conveyance of anything of value.’’ The Court held that a check was not a ‘‘thing of value’’. Congress then amended the statute there in- volved by adding the word ‘‘check’’ before the word ‘‘con- tract’’. See Reviser’s note to 18 U.S.C.A. 201. Defend- ants argue that since no similar amendment was made to ; what is now sec. 281, it must be assumed that Congress ; felt the term compensation included checks, even though % they were not ‘‘things of value’’, and, therefore, that no | amendment to sec. 281 was necessary. This argument if ignores the probability that if Congress gave any consid- ay SIRS RE Ree Sa ae RTE aii De tk . Batisxce ss 3 App. 65 eration to sec. 281 at that time, it was satisfied with the construction given to that section by the Supreme Court in Burton.’ The question presented by the motions presently under consideration is whether venue lies (a) where the checks . were physically delivered to Johnson; (b) where the pro- ceeds of the checks were credited to his account, either at the time of deposit or after they had been collected; ‘c) where the check was paid by the drawee bank; or (¢) in two or more of those places. Questions of venue are more than matters of procedure; they raise issues of public policy in the light of which legislation must be construed. Travis v. United States, 364 U.S. 631, 634. When venue is based solely on the receipt of compensation, there are some arguments in favor of construing the statute to mean that compensation is re- ceived at the place where a check is delivered. But this Court must be guided by the opinion in Burton, which, as Judge Learned Hand said in Lotsch, implies that the crime is committed where the check is converted into money by the Congressman, not where it is physically delivered to him. The application of Burton to the ease at bar is made difficult by the circumstances that the Maryland banking law is different from the banking law in effect in the Dis- trict of Columbia at the time of Burton, as found by the majority opinion therein. Maryland has enacted the Bank Collection Code, Art. i1, sees. 118-134, Anno. Code of Md., 1957 ed., See. 119 thereof reads: ‘‘Except as otherwise provided by agreement and except as to subsequent holders of a negotiable instru- 12 The point is not clarified by the 1962 amendments, which apparently ignoring the decision in Green, use the single expression “anything of value” in the new :~ibery statute, sec. 201, although various other ex- pressions are used in succeeding sections of ch. 11, including new secs. 203-209. The word “compensation” has been carried over from sec. 281 to | sec. 203 so far as Members of Congress and certain other officials are concerned. See sec. 2 of Pub. L. 87-849, Oct. 23, 1962, 78 Stat. 1126; 18 U.S.C.A., 1962 Pocket Part, secs. 201, 207 et seq., 281. tise ” “ App. 66 ment payable to bearer or endorsed specially or in blank, where an item is deposited or received for col- lection, the bank of deposit shall be agent of the de- positor for its collection and each subsequent collecting bank shall be subagent of the depositor but shall be authorized to follow the instructions of its immediate forwarding bank and any credit given by any such agent or subagent bank therefor shall be revocable until such time as the proceeds are received in actual money or an unconditional credit given on the books of another bank, which such agent has re- quested or accepted. Where any such bank allows any revocable credit for an item to be withdrawn, such agency relation shall nevertheless continue except the bank shall have all the rights of an owner thereof against prior and subsequent parties to the extent of the amount withdrawn.’’ Since the indictment alleges that Johnson received in the District of Maryland ‘‘compensation, to wit, the pro- ceeds of’’ the specified checks, which are alleged to have been ‘‘deposited in, credited to and final payment made thereon to the account of ‘‘Thomas F. Johnson’’ at a specified bank in Berlin, Maryland, it appears that John- son is charged with having received compensation in Maryland, with the Burton opinion. What the evidence may show is another matter.'* If 18 The government states the evidence will show that each check specified in Counts 2 through 8 was endorsed by Johnson in blank, that immediately u,on the deposit of each such check Johnson was given credit on his account upon which he could draw, and that the credit was never revoked. This statement cannot change the effect of the indictment, but it is not inconsistent therewith. If the evidence shows that the checks were endorsed in blank, the following provision of sec. 121 will have to be considered: “Where a deposited item is * * * endorsed by the de- positor in blank * * * the fact that such item is so * * * endorsed shall not change the relation of agent of the bank of deposit to the depositor, but the subsequent holders shall have the right to rely on the pre- sumption that the bank of deposit is the owner of the item.” This provision is criticized as anomalous by the draftsmen of the Uniform Commercial Code, Comments, Art. 4, secs. 4-201, but it is the statutory law of Maryland and other States. This Court does not construe that provision, however, as changing the relationship between the depositor — 7 eT ahd bank, in the absence of a specific agreement. See rt. 11, sec. . —— App. 67 the facts show that the Berlin bank was acting as John- son’s agent in collecting checks, and that the circumstances were such that under the applicable law the checks should be considered as having been converted into money when and where they were paid by the dravee banks, venue would lie in the District of Maryland with respect to the four counts dealing with checks drawn on the Bethesda, Maryland, bank (Counts, 3, 4, 5 and 6) and not with re- spect to the three counts dealing with the checks drawn on the Miami, Florida, bank (Counts, 2, 7 and 8) unless the offense can be considered as having been begun in one District and completed in another, within the meaning of 18 U.S.C.A. 3237.4 The government argues that it may be so considered, citing Benson v. Henkel, 198 U.S. 1. In that case the evi- dence showed that the defendant mailed cash from San Francisco, California, to an official of the Department of the Interior at Washington, D. C., and the defendant, who was indicted for bribery in the District of Columbia, challenged venue. The Court treated the case as covered by see. 731, which provided, like present sec. 3237, that when an offense is begun in one District and completed in another it shall be deemed to have been committed in either, and may be tried in either, as though it had been wholly committed therein. In the instant case, the govern- ment argues, the receipt of compensation may be regarded as having been begun when Johnson deposited the checks (or even where they were physically delivered to him), but was not completed until the checks were finally cashed, so that venue may properly be laid either in the District 14“$ 3237. Offenses begun in one district and completed in another “Except as otherwise expressly provided by enactment of Con- gress, any offense against the United States Hoven in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such of- fense was begun, continued, or comple “Any offense involving the use of the mails, or transportation in interstate or foreign commerce, is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may inquired of and prosecuted in any district from, through, or into which such commercé or mail matter moves.” App. 68 where the checks were deposited or in the District where they were cashed. It is true that in Burton the Court said: ‘“‘This is not a case of the commencement of a crime in one district and its completion in another, so that under the statute the court in either district has jurisdiction. Rev. Stat. sec. 731; 1 Comp. Stat. p. 5°5. There was no beginning of the offense in Missouri. The payment of the money was in Washington, and there was no com- mencement of that offense when the officer of the Rialto Company sent the checks from St. Louis to defendant. The latter did not thereby begin an offense in Missouri.”’ 196 U.S. 283, at 304. The first sentence of that passage must be read in connection with the point argued, shown by the balance of the quotation. Even if the first sentence should be construed more broadly, as intended to cover also the conversion of the checks into money, the con- clusion stated therein would not apply here, because the facts and the applicable law are different. In Burton the Supreme Court held that title to the checks, which had been delivered to the Congressman in the District of Columbia, had passed to the Riggs Bank in that District, since the bank had in legal effect purchased the checks from the Congressman. Under the present Maryland law, applicable in the instant case, if the Berlin bank were acting as agent of Johnson in converting the checks to cash, the offense of receiving may well be considered as having been begun when the checks were deposited in the Berlin bank and not completed until they were paid by the drawee banks or until the credit to Johnson’s account was made unconditional. It is unfortunate that questions of venue should turn upon the banking law of the place where the checks were deposited, but that appears to be the teaching of Burton. The government might have avoided the problem in this case by prosecuting the charges made in the Second to Eighth Counts in the District of Columbia, where the services are alleged to have been rendered. But the gov- ernment had the right to seek an indictment either in the =~ App. 69 District where the services were rendered or in the Dis- trict where compensation was received. At the present time it is only necessary to rule that under the applicable law the seven substantive counts (Second through Eighth) sufficiently allege that Johnson received compensation in the District of Maryland, and that the motion to dismiss those counts for lack of venue must be denied. CLAIMED F'arLurRE TO CHARGE AN OFrFrENSE AGAINST Tue Unirep States Defendants have moved to dismiss the substantive counts (Second to Eighth) on the ground that those counts fail to state an offense against the United States com- mitted by defendant Johnson, and therefore fail to state an offense committed by the other defendants as aiders and abettors.’®> They contend: (1) that the services were rendered by Johnson as an attorney in connection with a prosecution against Edlin and others, then pending before this District Court; (2) that sec. 281 does not prohibit a Member of Congress from receiving compensation for representing a client in court, even though the United States is a party or is interested in the case, and there- fore should not be construed to prohibit him from con- ferring with officials of the Department of Justice in connection with the court proceeding; and (3) that no offense under sec. 281 was committed unless the compensa- tion was received for services rendered for the purpose of obtaining favorable decisions and actions in relation to a proceeding, charge, accusation or other matter pending before a department; that the Department of Justice had no power to decide or act upon a request to postpone or dismiss the Edlin indictment, since this power rested with the Court, and therefore that there was no proceeding, 185A charge against an alleged aider and abettor must fall if no sufficient charge is made against the principal. Meredith v. United States, 4 Cir., 238 F.2d 535, 542." See also United States v. Tornabene, 3 Cir., 222 F.2d 875; Edwards v. United States, 5 Cir., 286 F.2d 681; Karrell v. United States, 9 Cir., 181 F.2d 981. a. App. 70 charge, accusation or other matter pending before the Department. These points will be considered in order: (1) The indictment nowhere alleges that Johnson is a lawyer, but charges him fer his actions as a Member of Congress and not as an attorney acting for a client. The Court may take judicial notice of the fact that Johnson is a member of the bar, but may also take notice of the fact that he did not enter his appearance for any of the defend- ants in the indictment against Edlin et al, which was pending in this Court. It does not appear from the indict- ment in the instant case or from any of the motions filed herein that Johnson told the officials of the Department of Justice that he was appearing before them or acting as an attorney representing any of the defendants named in the indictment against Edlin et al. (2) See. 281 does not prohibit a Member of Congress from receiving compensation for appearing in a court proceeding even though the United States is a party or otherwise interested. Congressional Globe, pt. 1, 38th Cong., Ist sess. (1863-64), pp. 63, 555-56, 561. See also 42 Cong. Ree. (1908), pp. 1895-1898; Burton v. United States, 202 U.S. 344, 365; United States v. Waldin, E.D. Pa., 122 F. Supp. 903; United States v. Adams, D.N.D., 115 F. Supp. 731; United States v. Quinn, E.D.N.Y., 111 F. Supp. 870. It is not necessary te decide on the pending motions to what extent a Member of Congress who has entered his appearance publicly for a defendant in a criminal case pending in a federal court may act outside the court room to persuade officials or employees of the Department of Justice to take or refrain from taking any specific action in that case. Cf. Chudoff v. McGranery, 3 Cir., 179 F.2d 869. It is difficult, perhaps impossible, to draw a line if the Congressman is openly appearing as an attorney for the accused. But that is not the sitration presented by this indictment and by these motions. — App. 71 The main purpose c¢ sec. 281 is ‘‘to secure the integrity of executive action against undue influence upon the part of members of that branch of the Government whose favor may have much to do with the appointment to, or reten- tion in, publie position of those whose official action it is sought to control or direct. The evils attending such a situation are apparent and are increased when those seek- ing to influence executive officers are spurred to action by hopes of pecuniary reward.’’ Burton v. United States, 202 U.S. at 368. See also United States v. Quinn, 8.D.N.Y., 141 F. Supp. 622, 624. The evils are further increased if the Member of Congress fails to disclose the fact that he is appearing as an attorney for compensation and not as a disinterested public official. None of the cases cited by either the government or defendants is directly in point, but they have been helpful in clarifying the issue. Although the statute must be strictly construed, it should be construed to accomplish its purpose, as defined by the Supreme Court, and to prevent the mischief at which it was aimed. All ‘‘court related activities’ are not excluded from its operation. Under the facts charged in the indictment and appearing from the motions, see dis- cussion under (1) above, the pendency in court of the in- dictment against Edlin et al. at the time Johnson is alleged to have rendered services for compensation before the Department of Justice does not of itself preclude a prose- eution under see. 281. (3) Defendants’ third point assumes that there was no violation of sec. 281 unless the proceeding, charge, accusa- tion or other matter was pending before the Department. They argue that since the indictment against Edlin et al. was pending before this Court, there was nothing pending before the Department of Justice on which it could act. However, the word ‘‘pending’’ does not appear in sec. 281. The words ‘‘before any department, agency’’, etc. refer to where the services have been rendered or are to be rendered, not where the proceeding or other matter is Se. OO RO Rare Ree PPro ctr er te App. 72 pending. This conclusion is supported by the way the offense was stated in the second Burton opinion, where the Supreme Court, construing a predecessor statute which used similar language, said: ‘‘But we cannot doubt the authority of Congress by legislation to make it an offense against the United States for a Senator, after his election and during his continuance in office, to agree to receive or to receive compensation for services to be rendered or rendered to any person, before a Department of the Gov- ernment, in relation to a proceeding, matter or thing in which the United States is a party or directly or in- directly interested.’’ 202 U.S. at 365. See also Waldin, 122 F. Supp. at 905, and the Report of the Judiciary Com- mittee of the House in connection with the 1962 statute above referred to, which makes it clear that the new statute, like the old, is intended to embrace all matters that come betore a Federal department or agency.'® Defendants argue that the Department was without power to postpone or dismiss the court proceeding. Never- the less, the Department had power to request a postpone- ment and to move to dismiss the indictment. Rule 48(a), F. R. Crim. P., 18 U.S.C.A. That was the determination and action by the Department sought by Johnson, accord- ing to the indictment. The fact that Court approval would be necessary to accomplish a final dismissal of the indict- ment is not fatal to the charge made in the Second to Eighth Counts. Felder v. United States, 2 Cir., 9 F.2d 872, 874. C. Payer as Amer AND ABETTOR Edlin and Robinson have moved to dismiss the substan- tive couuts as against them on the ground that one who pays money to a Member of Congress is not an aider and abettor of the crime of receiving compensation pro- 16 H.R. Rep. No. 748, 87th Cong., 1st Sess., July 20, 1961, p. 20. — scribed by sec. 281.'7 So stated, the proposition presents a serious legal question, which has been answered differ- ently by different judges. See May v. United States, D.C. Cir., 175 F.2d 994, 1002 et seq., with dissenting opinion by Judge Stephens, 175 F.2d at 1011, 1018, et seq., and United States v. Bowles, D.Me., 183 F. Supp. 237. See also Gebardi v. United States, 287 U.S. 112; Nigro v. United States, 8 Cir. 117 F.2d 624; and Lott v. United States, 9 Cir., 205 Fed. 28. It is not necessary, however, to an- swer that question at this time. Each of the seven sub- stantive counts charges Edlin and Robinson, as well as Boykin, with ‘‘aiding, abetting, counselling, commanding, inducing and procuring’’ the commission of the offense. A bill of particulars, furnished at defendants’ request, states that Boykin, Edlin and Robinson ‘‘aided, abetted, coun- selled, commanded, induced and procured’”’ Johnson in the rendering of the services alleged as well as in the receipt of the compensation alleged. The manner in which the sev- eral defendants are claimed to have aided and abetted the planning and performance of the services is specified in detail in the bill of particulars. If the evidence shows that Edlin and Robinson did nothing to aid and abet the alleged offenses except to make the payments charged in the several counts, they may raise the point on motion for judgment of acquittal. But the allegations contained in the substantive counts of the indictment are sufficient. United States v. Quinn, E.D.N.Y., 111 F. Supp. 870. App. 73 All motions to dismiss the Second to Eighth Counts are hereby denied, without prejudice to the rights of defend- ants to raise similar points by motions at the conclusion of the government’s case or at the close of all the evidence. ‘t They argue that where a statute defines as criminal an act which necessarily requires the participation of two persons, and the statute specifically makes only one of those persons criminally liable, this is evidence of a legislative intention to leave the conduct of the other unpunished. ‘ ml App. 74 III. Motions for Discovery A. z Granp Jury TESTIMONY Boykin and Johnson have each moved, pursuant to Rule 6(e), F. R. Crim. P., for an order directing produc- 4 tion of a transcript of their respective testimony given ; before the grand jury which returned the indictment in 4 this case. Both of them voluntarily accepted an oppor- : tunity to testify before the grand jury; neither was 4 summoned. Boykin has supported his motion by his own affidavit : and by a letter from George W. Calver, M.D., the attend- : ing physician to the Congress of the United States, which : has been admitted in evidence in support of his motion without objection from the government. From the affi- davit and certificate, it appears: that Boykin testified before the grand jury on October 12, 1962; that he had been a patient at the U. S. Naval Hospital at Bethesda, Maryland, from September 29 until October 10; that his appearance before the grand jury was against the advice both of the medical officers at the Hospital and of Dr. Calver, who hau told Boykin that he should take at least a week to recover from his cardiac difficulties and to get his strength back; that Boykin had a difficult time making the trip to Baltimore; that he was weak, particularly while testifying before the grand jury, and that he was under physical and emotional strain. Boykin also states that he : has not been able to remember with clarity or to inform his attorne.’s about the testimony which he gave at the grand jury hearing; that his home in Mobile, Alabama, and his office in Washington, D. C., were burglarized on or about March 4, 1962, and, foliowing the burglaries, a number of Jocuments referred to in the First Count were missing. a Johnson has supported his motion by an affidavit that he was interrogated by the United States Attorney for several hours on September 25, 1962, and produced certain records which had been requested; that he recalls clearly some of his testimony, but by reason of the length of the testimony, the intensity at times with which it was con- ducted, and the fact that he was tired, physically and mentally, from his work in the House of Representatives and his vigorous campaign for reelection, he does not recall a considerable part of his testimony; that he seeks an opportunity to inspect and copy the transcript of his testimony before the grand jury in order that he may prepare adequately in advance of the trial his defense to the accusations contained in the indictment. App. 75 In response to a request from the Court, the govern- ment has stated that it has not yet decided whether it will use the testimony of Bovkin as part of its case in chief against him, and will not decide until a week or so before the trial. The government made the same statement with respect to the possible use of Johnson’s testimony. The long established policy of the federal courts, firmly entrenched in this Circuit and this District, is to preserve the secrecy of grand jury proceedings. Disclosure of grand jury testimony should rarely be granted and then only under ‘‘compelling cireumstances’’, upon a showing of ‘‘particularized need’’. Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399; United States v. Proctor ¢ Gamble Co., 356 U.S. 677, 681; United States v. Socony Vacuum Oil Co., 310 U.S. 150, 234; United States v. Ka- haner, S.D.N.Y., 203 F. Supp. 78, 86; United States v. Wortman, E.D. M1., 26 F.R.D. 183, 206. The facts alleged in support of Johnson’s motion are similar to those in Kahaner, where Judge Weinfiela said: ‘‘Undoubtedly most persons who appear before grand juries as prospective defendants are under some emo- tional tension. However, it would indeed be unusual for any person, whether calm or under stress, to recall the precise details of his questioning. If this were an ade- , quate basis upon which to require disclosure of testimony, the grand jury minutes should be made available as a matter of course to any witness who is later indicted. Perhaps this should be the rule. While there are those, including this Court, who believe that in an enlightened system of criminal justice defendants who have made voluntary statements to prosecution and investigation officials should, as a matter of simple fairness, receive copies of their statements, such view has not yet found general favor and admittedly there does not appear any doctrinal trend in that direction. To grant this motion on the sole ground advanced would not only breach the historic policy against disclosure of grand jury matters, but would initiate a precedent which appears foreclosed by the rationale of the recently decided Murray case.’’'* 203 F. Supp. at 87. There is no showing that Johnson was not in full possession of his faculties when he gave his testimony; nor is any reason suggested why his pres- ent version of the facts should differ from the original. Johnson has shown no ‘‘compelling cireumstances’’ or ‘*narticularized need’’ for the disclosure of his testimony at this time.’® His motion is hereby denied, without prejudice to his right to renew the motion if and when the government decides to offer his grand jury testimony as part of the case in chief. This Court intimates no option as to what its ruling would then be. Boykin’s motion presents a different situation. His poor physical condition at the time he testified is sup- ported not only by his own affidavit but by the certificate of the attending physician to the Congress. Under all the circumstances, the Court feels that Boykin has shown a ‘‘narticularized need’’ to examine his testimony at this time, so that he may know the incidents which he may be called upon to admit, deny or explain, and to prepare his defense. His motion is hereby granted. App. 76 ‘4 3 § b Ee RS ue ~ . os ms ME VR mre haan SNE UE Peer ON Dae ont Ta a ae ca eal Dee ees Sani ae ATLA II _— App. 127 (Mr. Genn) Trusting it would not bear on this defend- ant for objecting to it, I do believe that it is not necessary under the circumstances and I would object. (Mr. Doub) I do not object. (The Court) Mr. Williams? (Mr. Williams) I do not object. (The Court) Mr. Robinson? (Mr. Robinson) No, sir. (The Court) The Court will send it in. (Mr. Williams) I would call Your Honor’s attention to it. The only disturbing factor to me is that you did in your charge properly I think, summarize the indictment and they already have a copy of the indictment so it is in effect emphasizing allegations of the indictment, I think to an excess for them to have it. (The Court) Would you like me to withdraw those four pages in which I attempted to summarize the indictment? I think that is not unreasonable. Bring the jury in. (Mr. Tydings) I am afraid if you take out a part of the charge, you would confuse the jury. (The Court) The only thing I would take out would be the summary of the indictment. (Mr. Tydings) Then bring back the jury and explain to them what you are doing. (The Court) I will do that. Bring them in. (Mr. Doub) Your Honor added the word ‘*compensa- tion’’ at the end of one sentence. Do you have that? (The Court) I have it. ay App. 128 I think there are two parts. If counsel will come up here, I think we can straighten it out. (The Jury returns.) (The Court) Mr. Menzies, in your first place, there was not entire agreement or understanding as to what you asked for. You said ‘‘the legal instructions.’’ Did you mean the entire charge, or just part of it? (The Foreman) The more the better. We would like to take it all if we can but if not, we will take whatever you decide. (The Court) There is a difference of opinion among the lawyers as to whether it should be done or not. It has not been customary in this Court to do it. I think the Court has a right to do it. I loathe doing it over the objection of some of the defendants, particularly as to the summary of the counts of the indictment. You have the entire indictment and my summary would not control, of course, the lan- guage of the indictment. It controls what is charged and not the summary that the Court made. I suggest you start without it and if you find you need it, you need instructions on any particular count, you can come back and ask for them. If you want the whole thing, you can have it. One of the things that worried some of the counsel was you might read a part, one page or two pages and consider that by itself without considering it in the light of the entire charge and as I told you the charge must be read as a whole, or some portions of it control and modify others. So, if you have specific instructions you want on a particular point, I would probably read you not only that one page but perhaps a part of other pages which throw light on it. If you will start that way, on the other hand if you find that you have a great many questions that you want, counsel and the Court will recon- sider the matter. App. 129 Does anyone have any objection to the jurors’ taking the extra copies of the indictment—the original always goes in? (Mr. Genn) No. (The Court) All right. The jury may take these extra copies with them. TRIAL PROCEEDINGS (Vol. 1 [41]) (Mr. Genn) Your Honor, I am constrained certainly for the record at first to indicate an objection to any reference to a criminal record or facts which would suggest a criminal record in the opening statement. I should like not to interrupt. [44] (Mr. Genn) I have made the objection for the record, Your Honor, as to this particular point on the indictment. I think what may be a more significant point concerns itself with anything outside the indictment. (The Court) Now, tell me what you have. (Mr. Genn) I do not know what the government intends to bring in. I suspect they may bring in other [45] overt acts or offenses. (The Court) Let us see. Certainly, as it may be directly related to the indictment and not prevented. This is the first time anyone has suggested to me that the Government might, because it was not until this morning when you mentioned it that I knew that Meyer, the man mentioned in 42, 43 and 44, was a probation officer and had anything to do with any previous conviction of Edlin. I did not know myself until this morning that Edlin had ever been convicted of anything except his conviction on plea of nolo contendere in case No. 25— (Mr. Marion) It was not that number. It was as a result of that and a superseding indictment. (The Court) In whatever indictment that came in this ease. You mean there are two? SRE ROL LPOG TT ORY ERAN TINS LAPD IS SRT IES. AY FN a (Mr. Tydings) The word ‘‘intentional’’ was left out and there was a re-indictment two or three weeks before he pleaded nolo contendere. But one word they could not agree on a stipulation— App. 130 (The Court) So tar as I am concerned, up until this morning that was the only conviction or only evidence as far as I knew, that and this were the only two charges, the only ones which had ever been filed against Edlin. I knew of no other. Now, it has since developed that this Meyer [46] was a probation officer and in connection with some previous difficulties of Edlin. Can you tell me what the facts are? (Mr. Donb) Just so you understand the problem at the outset, th osition of Mr. Johnson that he has a constitu- tional righ: in this case to develop any matters which were the subject of discussion at those meetings in the Justice Department and one of those matters relates to this proba- tion officer. How he happened to be there. (The Court) I want to get the facts now. (Mr. Doub) Yes. But, on the other hand, I concede that Mr. Edlin has a constitutional right not to have it mentioned. (The Court) Weill, you cannot both have a constitutional right not to have it mentioned if he engages in a conspiracy whereby the man brings it down. I am not saying that he did but that is the charge. If it is not sustained. (Mr. Genn) This was a conspiracy. (Mir. Doub) They said that the Judge should have severed that defendant out. (The Court) What defendant? How can you sever a defendant out of this conspiracy in the nature of things. It seems to come in anyhow. It does no good. If the Govern- ment makes the same charge, you cannot lose what the con- spiracy was and what was done pursuant to [47] the conspiracy by severing anybody out. You can on substantive counts, you can sever them out but you cannot sever them out and you cannot sever between Johnson and Edlin, you -_-_ ee pea. pee: Cn App. 131 cannot sever them out of several counts under these circum- stances. * - * * +. Me [52] (Mr. Tydings) Before the Jury, Mr. Genn, the Government does not wish to prejudice the defendants in any way. We take the same position the Court does and if you wish to prepare some sort of statement along this line for me, I will include something in my opening statement to that effect. . (Mr. Genn) No, I feel it should not be mentioned and—l feel it should not be mentioned and I feel my legal position— (The Court) You cannot avoid the present indictment. I have ruled. You cannot avoid the pending ind‘ctment [53] with which the whole conspiracy is bound. Now, if you want a statement made about that, what I am considering is what was the 1941 indictment and if you will give me your authorities and Mr. Doub will give me his authorities, I will be glad to read them. I do not want Edlin to be unduly prejudiced. (Mr. Genn) I have made the objection for the record. (Vol. 2 [56]) (The Court) I am ready to rule but I will rule publicly except on one point and the one point that I wish to rule on the record but privately is Mr. Genn’s motion in which Mr. Genn has moved that the Court instruct the United States Attorney in his opening statement not to refer either to the indictment against Edlin et al, in the United States District Court for the District of Maryland— which is referred to repeatedly in the indictment and is the basis for most of the alleged conspiracy. Now, I overrule that motion. He has further asked the Court to instruct the U. S. Attorney not to refer to any other previous indictment against Edlin or any previous conviction of Edlin in his opening statement and indicates that, he proposes to object hake ‘ 7 AS OEP ala PYLE IRL RETRO LIE GEILE EY he ert 4 Gy oa PPL RE CE: es App. 132 to the introduction of any evidence with respect thereto if offered. The Court accepts without question the general principles stated by the Supreme Court in Michaelson 355 U. S.—what- ever it is—and the Court has endeavored to [57] be guided by Michaelson in its rulings for a long time. This case is exceptional in that the reference which Mr. Tydings pro- poses to make is to the matters set out in overt acts 41 to 44 which deal—as I understand it—with the acts of Defendants Johnson, Boykin and Edlin, in collaboration and alleged to have been in furtherance of the conspiracy in bringing a parole officer of the United States District Court for the Northern District of Illinois to Washington in order to say to the Department of Justice that the defendant Edlin had been a good parolee when he was on parole following his sentence in 1941 or 1942 in the Northern District of Illinois; that the point that is being made by the Government, as I understand it, is that these alleged overt acts were in furtherance of the conspiracy as an attempt to persuade the Department of Justice that Edlin was the sort of man who should be given the consideration which they were requesting. The Government contends that this is an important element of the conspiracy and that these overt acts are important overt acts. I have carefully considered Michael- son. I have been cited no case which applies Michaelson in a “conspiracy case to prevent the government from proving essential elements of the conspiracy or overt acts in further- ance of the conspiracy. The Court would not be disposed to even, in a [58] con- spiracy case, allow the Government to drag in uncompli- mentary evidence of bad character which had little or no relevance or materiality to the issue. However, I think, from everything I have heard in the arguments so far that is not the purpose of the Government and I do not think that would be the effect of the evidence, App. 133 just to drag in something that has no materiality. This seems to me to be material. However, the indictment does not state for what Edlin was convicted in 1941 and I will repeat here what I said off the record to Mr. Tydings and Mr. Edlin that I will instruct Mr. Tydings not to state what Edlin had been convicted of unless counsel for Edlin requests that the nature of the crime be disclosed. I further instruct Mr. Tydings, or whomever is making the opening statement for the Government, to make any reference which may be made to the overt acts 41, 42 and 43, brief and that the Government make no effort to argue bad or to suggest bad character on Edlin’s part in its opening statement. I expect the Government to be controlled by the spirit of the Michaelson decision. (Mr. Tydings) We had not intended to do so. (The Court) Recognizing that the permission to bring in the testimony of the parole officer, or the [59] testimony in connection with him which will necessarily show a prior conviction is an exceptional circumstance which should not be used to wipe out the good effect of the Michaelson rule. [66] OPENING STATEMENT OF THE GOVERNMENT (Mr. Tydings) If Your Honor please, Ladies and Gentle- men of the Jury: My name is Joe Tydings and I have the honor and the companion responsibility of being your United States Attorney for the District of Maryland. During the next several weeks, the responsibility will be mine, together with my assistants, to present the facts of evidence which support the indictment, under which the defendants are charged in these proceedings. Seated on my right and assisting me in the trial of the case, the Assistant U.S. Attorney J. Hardin Marion and on: his left, Special a App. 134 Assistant U.S. Attorney Arnold Weiner. On Mr, Weiner’s left also assisting me, Special Assistant United States At- torney Arthur Burnett. Seated at the next trial table are the counsel for the defendants in this indictment. Mr. George Cochran Doub is counsel for the defendant Congressman Johnson. Mr. Edward Bennett Williams is counsel for the defend- ant Congressman Boykin; Mr. Harold Ungar is associate counsel for the defendant Boykin. Seated on Mr. Ungar’s left is Mr. William Robinson, a defendant and serving as counsel also. At the far end of the trial table is Mr. Nathan Brown and Mr. Edward L. Genn, counsel for the defendant Kenneth Edlin. * * . * * * [70] Now, ladies and gentlemen of the jury, despite its rather formidable appearance and length, the indictment in this case—the charge of the grand jurors for the District of Maryland—is clear and, as concise as possible under the factual circumstances as they existed. Section 371 of Title 18 makes it a srime in the United States to conspire to defraud the United States of America. The first count of this indictment charges Congressman Johnson, Congressman Boykin, Mr. Edlin and Mr. Robin- son with conspiring to defraud the United States of the fair and impartial services of its two Congressmen, Con- gressman Johnson and Congressman Boykin. Th2 first count of the indictment is brought under that Section. The Second through the Eighth counts of the indictment are brought under 281 of Title 18 which makes it a crime for any member of Congress to appear before any Federal Department or Agency for any compensation [71] or agree- ment to receive compensation whatsoever. [86] Ladies and gentlemen of the Jury, the facts adduced in evidence in this case we feel will show beyond any doubt _ App. 135 influence peddling by Congressman Johnson of Maryland and Congressman Boykin of Alabama. As the testimony unfolds and the exhibits are offered into evidence, you will be able to perceive that from April 1, 1960 until December 31, 1961, first Congressman Johnson and then Congressman Boykin in effect went on the payroll of the defendant J. Kenneth Edlin and his organization, and that these two Congressmen put the full power and prestige of their office as Members of the Congress of the United States at the disposal of the defendant Edlin and the defendant Robin- son, Mr. Edlin’s chief lieutenant, confidant, and personal attorney. During the spring of 1960, Ladies and Gentlemen of the Jury, shortly after the indictment referred to was returned against the First Colony Savings and Loan Association, Mr. Edlin felt that the First Colony Savings and Loan Association needed respectability. Mr. Edlin also needed a promotional sales gimmick, something to support the so- licitors of the First Continental Savings and Loan Asso- ciation, who were [87] seeking to secure deposits and were meeting an argument that commercial insurance was not as good as Federal insurance. The 2fendant Edlin found the answer to both require- ments. [he answer was a speech to be given on the floor of the House of Representatives of the United States. During the latter part of April, during the month of May and continuing into the early parts of the month of June, 1960, drafts of such a speech were prepared by the defend- ant William L. Robinson and were edited and corrected by Mr. Edlin’s personal public relations man, Mr. Martin Heflin, of Washington, D. C., and these edited drafts were delivered to Congressman Johnson’s office. However, there was one problem, Ladies and Gentlemen of the Jury, there was no valid excuse for the delivery of such a speech. However, Mr. Martin Heflin, the public relations man of Mr. Edlin, directing Mr. Edlin’s personal GPR RSE SEIS App. 136 Institute of Independent Savings and Loan Associations, discovered the excuse. On May 27, 1960, in the inside pages of the financial see- tion of the Evening Star of Washington, D. C. there was an article reporting a speech in which a Washington, D. (, savings and loan executive warned the public and Maryland depositors in particular against depositing money in cer. tain phoney savings and loan associations advertising high dividend rates and commercial insurance. [88] This was the excuse needed for the delivery of the speech, and on June 30, 1960, Congressman Johnson de- livered a speech at Mr. Edlin’s request containing material which Mr. Edlin wished to be contained in the speech. Fifty thousand copies of that speech were ordered printed by Congressman Johnson’s office, and they were delivered to the First Continental Savings and Loan Association out at Bethesda, Maryland, Mr. Edlin’s association, and they were there kept and used as part of the solicitation cam- paign to seek new deposits for the First Continental Sav- ings and Loan Association. They were used to mail to prospective depositors not only in Maryland but in other states. Now, the Government will show and the evidence will prove that in the months following the June 30th speech, ~ there still remained one primary obstacle to the defendant Edlin’s future financial success and the success of his many and varied business enterprises, and that was the pending mail fraud indictment against both Mr. Edlin and the First Colony Savings and Loan Association. During this same period of time, Ladies and Gentlemen of the Jury, the defendant Congressman Frank W. Boykin, Senior Member of the Alabama Delegation to the Congress of the United States, was having trouble of a different nature. A few years prior, in the early and middle 1950’s, [89] his family company, the Tensaw Land and Timber Be £6 PERN stag ieee x fe. App. 137° Company of Alabama, had purchased two large tracts of timber, one located in Charles County, Maryland, near Waldorf, and one located in Stafford County, Virginia. both had been timber, both tracts of land, and later sold for many times their original cost. However, the purchasers of the Virginia tract had gone bankrupt, and Congressman Boykin was forced to buy the land back at a foreclosure sale in 1958, and the purchasers of the Maryland tract as of the late fall of 1960 and early spring of 1961, were in default on their mortgage, and unless new financing were found for them this tract, too, would have to be foreclosed and bought back at such a sale. It was at this time that Congressman Boykin entered the conspiracy. However, the consideration which Congressman Boykin exacted from the defendant Edlin for his participa- tion was not small. The Government will show that the consideration was this: That Mr. Edlin, using the deposits of the funds available from his two Maryland controlled sav- ings and loan associations, the First Colony and the First Continental, would provide the necessary financing to bail out or refinance the defaulted purchasers of Congressman Boykin’s Maryland tract of land, or if absolutely necessary Mr. Edlin was to set up two companies and using the funds from his two savings and loan associations actually pur- chase both tracts [90] in their entirety from Congressman Boykin’s company, the Tensaw Land and Timber Company. In return Congressman Boykin was to use his full prestige as the senior member of his delegation to Congress to exert pressure on the high officials of the Department of Justice to dismiss the case against J. Kenneth Edlin. Beginning with the 25th day of March, 1961, and running through November of that same year, a period of a little over seven months, Ladies and Gentlemen of the Jury, Congressman Boykin and Congressman Johnson personally contacted the Department of Justice together or singly an average of once every three days in an effort to have this case dismissed, and later in the fall of 1960, when it ap- peared doubtful that the case would be dismissed, they —xy App. 138 continued to exercise their influence to have the case de- layed sufficiently so as to enable the defendant Edlin to complete certain land transactions in which both Congress- man Johnson and Congressman Boykin had a personal interest. During the months of May, June, August and September of 1961, scarcely a day went by without one or the other of these two Congressmen making one type of contact or another with the Department of Justice. They made these contacts, Ladies and Gentlemen, as Congressmen of the United States, ostensibly acting in the public interest and for the welfare [91] of all of the citizens of our United States, all the while carefully concealing from the Depart- ment of Justice the true facts that each had a substantial personal financial stake in the dismissal] of this case. The Government will show that during this same period of seven months Congressman Boykin received checks pay- able to Tensaw Land and Timber Company totaling over $250,000. The Government will show that during this same period of time the defendant Congressman Johnson re- ceived checks and cash totaling over $20,000. The evidence will prove that these two Congressmen exerted a veritable drum beat of pressure on the Department of Justice and its officials, even going so far, Ladies and Gentlemen of the Jury, as to use the power and prestige of their office to cause the defendant Edlin’s former Federal parole officer in Chicago to fly to Washington, D. C., under the pretense of assisting the two Congressmen in their official duties, and when the parole officer arrived the two Congressmen whisked him over to the Department of Justice to show that Edlin had had a good parole record while under this parole officer’s supervision some time before. Evidence will be introduced in addition showing that an additional inducement to the efforts of both Congressmen Johnson and Boykin to have this case dismissed, that as an additional inducement Mr. Edlin promised the two Con- gressmen [92] that they would share materially in his profits on a tremendous, pending land deal. Of course, the success a App. 189 of the tremendous pending land deal was made contingent upon the dismissal of the indictment involving Mr. Edlin. In this case, Ladies and Gentlemen, as in every con- spiracy case, the parties involved did not meet in an exposed area, subject to the scrutiny of their fellow citizens, nor did they execute any signed, formal contract. Quite the contrary, the defendants herein took elaborate steps to con- ceal the nature and the object of their conspiracy and the source and the method and the purpose of the payments. During their contacts with the Department of Justice the two Congressmen, Boykin and Johnson, carefully concealed their personal financial stakes, and at the same time gave a number, a variety of purported reasons, to the officials of the Department of Justice for their interest in the Edlin case, so as to lend credence to their guise of intervention in the public interest. The evidence will show a very sophisticated manner in which the payments of cash and the checks were made to both Congressmen. When Congressman Johnson became a part of the Edlin organization, in the early spring of 1960, he was paid not by the defendant Edlin, not directly by the First Colony or the First Continental Savings and Loan Association, no, indeed. The defendant William L. Robinson [93] would draw a check upon his personal Miami, Florida, bank account and mail that check to the Defendant Congress- man Johnson, and each time the defendant Robinson issued his personal check from Miami to the defendant Congress- man Johnson, the defendant Edlin would instruct the boukkeeper at the First Continental Savings and Loan or the First Colony Savings and Loan Association to issue a check to Mr. Robinson to cover the check he had mailed to Congressman Johnson. Many times at the time Mr. Robinson mailed his check to Congressman Johnson, he didn’t have anywhere near suffi- cient funds to cover the issuance of the check to Congress- man Johnson, but, of course, the reimbursement from the First Colony or First Continental Savings and Loan Asso- ciation always arrived to cover the check. CIOL ESOP OLE OIE SALONS ag App. 140 (The Court) Mr. Tydings, you have been fifty minutes, I don’t want to rush you, but if you are going to be much more than an hour, I think it would be well to take a break at some time, a very short break. We will take a five minute recess. (Whereupon, a short recess was taken.) (Mr. Tydings) May it please the Court, Ladies and Gentlemen of the Jury: Just before you had recessed I had discussed a little bit about the Government’s evidence relat- ing to the matter of Congressman Johnson’s compensation, [94] and the fact that Mr. Robinson would mail a check from Miami, Florida, up to Congressman Johnson in Mary- land, and then Mr. Robinson would be reimbursed from one or the other of Mr. Edlin’s savings and loan associations, the First Continental or First Colony, and the notation or instructions given to the bookkeeper would invariably be ‘*legal fees’’ or ‘‘legal.’’ The evidence will show, Ladies and Gentlemen of the Jury, that from time to time Congressman Johnson was actually given shall legal chores, such as receiving a letter of a legal nature from William R. Robinson or sitting in on a conference with J. Kenneth Edlin, or retaining or hiring a lawyer from time to time for doing some legal work for one of Mr. Edlin’s savings and loan associations. We will show _all of this was done to lend color to the receipt of a sub- stantial number of checks under the color or guise of legal fees. The Government will prove that although over $20,000 worth of checks were issued payable to the law firm of Johnson and Johnson, that not one cent from these checks was deposited in the law firm bank account, nor was it ever listed as received in the books of account of the law firm. Indeed, the active member of the law firm of Johnson and Johnson had never even heard of the checks, Ladies and Gentlemen of the Jury. They were all deposited in Con- gressman Johnson’s personal account in another bank in another town. vi ie: 4c ia heck res poke na App. 141 On the night of the 23rd of October, 1961, on the [95] eve of a trip around the world which Congressman Johnson was to take, he met with the defendant Mr. Edlin in the lounge of the Woodner Hotel in Washington, D. C., and at that time $3,000 in traveler’s checks of the Republic Bank of Dallas, Texas, was given by Mr. Edlin to Congressman Johnson. Evidence will be introduced to show that these traveler’s checks were purchased by the First Continental Savings and Loan Association acting under the instructions of Mr. Edlin, but that later that same evening William L. Robinson reimbursed the savings and loan association from his personal account in Miami, and that the same night or the next day Mr. Edlin directed that one of the land companies reimburse Mr. Robinson for the $3,000. Now, during the course of the trial, as the Government produces its case, as we have witnesses testify before you, it is naturally impossible for any single witness to cover the entire case or any piece of evidence to uncover the entire case. Naturally each witness will testify about the area with which he has knowledge and each piece of evidence which we offer will have relation to a certain part of the ease. For that reason, I would like to give you a short rapid chronology of events to assist you in tying in where each witness’s testimony appears in our complete case, and for that purpose it is necessary to go back te the year 1958, because in that year 1958 the defendant Edlin was operating his [96] personal financial company in Miami, Florida, known as the First Continental Mortgage Company. In February of 1958 Mr. Edlin caused to be incorporated two savings and loan associations in Maryland. 1, the First Continental Savings and Loan Association, which was not activated for two years, and the other, the First Colony Savings and Loan Association, which although it had an office in Prince Frederick, Calvert County, Maryland, was run from Mr. Edlin’s Miami office in the Huntington Build- ing, Miami, Florida. App. 142 Now, those are the first significant events in our story, The next significant event, Ladies and Gentlemen of the Jury, was the November 17, 1959 indictment by the Grand Jury for the District of Maryland returned in this Court against the First Colony Savings and Loan Association, J. Kenneth Edlin, Rosabelle Edlin, James Bridges and Jackson D. Rains. Four months after this indictment, April 1, 1960 three years ago today, if you will, the conspiracy got underway, when Martin Heflin, Washington public relations man, at Mr. Edlin’s direction, took off from the Washington National Airport for Miami, Florida. It was during those months of April, May and June, the work was done on the preparation of the speech, which I have already outlined to you, Ladies and Gentlemen of the Jury. [97] It was during these months at a luncheon at the Congressional Hotel in Washington, D. C., that Mr. Martin Heflin and Mr. J. Kenneth Edlin gave Congressman John- son the resume of the material which Mr. Edlin wished Congressman Johnson to cover in his speech to be given at some later date on the floor of the House of Representatives. This period of time is significant also for another reason, Ladies and Gentlemen of the Jury. After the indictment of First Colony Savings and Loan Association, Mr. Edlin made the decision not to press this association’s business . activities further, but rather to activate his other dormant charter; that is, the First Continental Savings and Loan Association, and in that same spring, that is, May 1, 1960, the First Continental Savings and Loan Association had its formal opening in Bethesda, Maryland, and most of the Edlin organization or entourage was brought from Miami, Florida, up to Maryland to actually work in the Bethesda office. It was on the 20th day of June that same year, 1960, that the first check was issued by W. L. Robinson to Thomas F. Johnson, a check for $500, issued and reimbursed in the same manner which I have already described to you, and ten App. 148 days later on the 30th of June, Congressman Johnson de- livered his savings and loan speech. Two months later, on August 30th, a second check [98] was issued by W. L. Robinson to Mr. Johnson, this time in the amount of $1,000. On November 4th of that same year William L. Robinson issued another check to Congressman Johnson. This time it was a check for $300 made payable to Russell L. Hickman, Campaign Dinner Treasurer. This is an interesting piece of evidence here, Ladies and Gentlemen. On the same day that William L. Robinson issued that check and mailed it up to Congressman J ohnson, he was reimbursed by First Continental Savings and Loan Association check in the same amount, and that check was charged in the Association’s books of account as ‘legal fees.’’ On January 7, 1961, February 2, 1961, March 6, 1961 and April 5, 1961, William L. Robinson issued checks on each date in the amount of $800, each payable to Johnson and Johnson, and was reimbursed each time in the same manner. Now, it was early in February, Ladies and Gentlemen of the Jury, early in February of 1961, that Congressman Johnson and Congressman Boykin and the defendants Edlin and Robinson first sat down together and began to earnestly plan an approach to the Attorney General of the United States and other high officials of the Department of J ustice, in order to secure a dismissal of the case aforementioned, and at [99] that time, at that meeting, a decision was reached that perhaps it would be wise to prepare a synopsis of the case, challenging each count of the indictment which had been returned in 1959, and to have that synopsis for pre- sentation to the Attorney General or other officials of the Department of Justice, and accordingly, early in March of 1961, William L. Robinson and others began working on this synopsis in Miami, Florida, and on March 3, Congressman Johnson flew to Miami to confer with Mr. Edlin and Mr. ew ane iy vate tit na gaT acy. Pe ee ee ie Ay eR weletel ‘* Saf PONY, F472 GR A IS FG SE es App. 144 Robinson about the contents and the length of the memo- randum. On the 22nd day of March the memorandum and synopsis was completed, and on that same day Congressman Boykin, who was a personal acquaintance of the Attorney General, called him for an appointment on a personal matter. On Saturday, March 25th, Congressman Johnson and Congressman Boykin made their first visit to the Depart- ment of Justice, on this occasion visiting the Attorney General of the United States for the purpose of securing the ultimate dismissal of the mail fraud indictment against Mr. Edlin. Three days later on March 28th Congressman Johnson had the synopsis sent over to the Attorney General by hand messenger, and he had a covering letter and a memorandum which was signed Thomas F’. Johnson, Member of Congress. On April 12th Congressman Johnson and Congressman Boykin again went to the Department of Justice, and this [100] time they were referred by the Attorney General to the Assistant Attorney General of the United States in Charge of Criminal Matters, Mr. Herbert J. Miller. From this date until November of 1961, Congressman Johnson and Congressman Boykin made over sixty com- pleted contacts with the Department of Justice; that is, actually talking to them or actually mailing something to them, and a great, great many more uncompleted; that is, telephone calls which were not returned. During the month of May 1961, Ladies and Gentlemen of the Jury, $10,000 in checks were issued to Congressman Johnson from tbe First Continental Savings and Loan Asso- ciation and the First Colony Savings and Loan Association. They were issued on two separate dates. On each date the amount of $5,000 was issued, one check being from the First Colony and one from the First Continental. [101] The First Continental Savings and Loan Associa- tion checks were cashed during the month of May. However, App. 145 some time after the month of May, some time before the books were completed, around the first week in June, the First Colony checks were returned. They were not cashed. The endorsement was removed and in the early part of May a “heck was issued by the First Continental Savings and Loan Association in the amount of the two checks of the First Colony, the Association under indictment which had been returned and the endorsement on which checks was removed. One other interesting development, in the Month of May, 1961, Ladies and Gentlemen of the Jury, during that month Mr. Johnson executed a lease with the First Continental Savings and Loan Association providing that the First Continental Savings and Loan Association would use his law office in Snow Hill, Maryland for a branch office of their savings and loan association at a monthly rental of $200.00 a month. Congressman Johnson actually received $800.00 as a result of that lease even though no office was ever opened in Snow Hill. No account was ever received nor any loan ever made. On June 31, 1961, the First Continental Savings and Loan Association issued a check for $3,250 to Johnson and Johnson. [102] On August 1, William L. Robinson issued a check for $2,000 to Johnson and Johnson and was reimbursed in the usual manner. On September 12, William L. Reovinson issued a check for $1,500 to Johnson and Johnson and was reimbursed in the usual manner and finally, on October 23, as I have already | recited to you, the Travelers check passed hands. | One other significant date, Ladies and Gentlemen of the | Jury, on October 24, Congressman Johnson left for his trip around the world. On November 17, Mr. Edlin was formally arraigned before the United States District Court of the District of Maryland and that weekend after his formal arraignment, when it was apparent that the trial was im- minent, Mr. Edlin and his right-hand man, the defendant “panama Se RAN FP ERROR TRO Seeks ey iad a Robinson, winged their way to Mobile, Alabama, where they registered at a hotel in Mobile and the following Monday, Congressman Boykin calls the Assistant Attorney Genera] Herbert Miller. Iam sorry, Ladies and Gentlemen of the Jury, if the open- ing statement of the government was too long. However, you will be happy to know that I cut it in half from what it originally was at the request of my associates. (Vol. 3 [146]) (The Court) Mr. Doub made some state- ment that an agreement to receive was necessary. It isn’t so. The statute says receives or agrees. (Mr. Doub) I thought I covered both. (The Court) I thought the whole pitch of the argument at that point was that there had to be an agreement for receiv- ‘ng payment. However, there is no use—I don’t want to emphasize any particular aspect, although I do think it is the only mistake of law that I noticed. App. 146 (Mr. Tydings) There was one other mistake of law, Your Honor. In the last minutes of his opening statement he in- ferred that the law insofar as the second to the eighth count was that the Government would have to prove that he re- ceived the entire check as compensation for appearing before the Department of Justice; whereas the law is that ’ we only have to show that any part of that money was con- sideration. [147] (The Court) I think that was clear enough not to make any point of it. * * * OU * & [151] Thereupon,— JACKSON D. RAINS was called as a witness on behalf of the Government, being first duly sworn, was examined by counsel and testified as follows: as App. 147 (The Clerk) State your name for the record. (The Witness) Jackson D, Rains. [152] (The Clerk) How do you spell your name, sir? (The Witness) R-a-i-n-s. (The Clerk) Take the stand, please. Jackson D. Rains. DIRECT EXAMINATION By Mr Weiner: Q. Please give your address for the Jury. . a RE MM es a tL Ll EL 7 First Colony Savings and Loan Association in Maryland were indicted. [770] (Mr. Genn) May we approach the bench, please? (The following took place at the bench, out of the presence of the Jury:) App. 214 (Mr. Genn) Your Honor, so that there will be no waiver, he is speaking about a conversation with Mr. Edlin, and I believe any conversations this witness has had with Mr. Edlin should not be admissible. I think the Government is going to be opening up the door before we have a chance— (The Court) The question is how far do you contend your privilege goes? What is the privilege going to be? Do you contend that Mr. Edlin engaged Mr. Caudle to act as his attorney in connection with various matters? (Mr. Genn) Yes. (The Court) Attorney as such? (Mr. Genn) Yes. * * * * * [772] (The Court) The basis of the privilege is an at- torney may not testify to what his clients told him, and he may not testify as to advice which he gave his clients. (Mr. Genn) Or those people who participated in the decision making process are just as much a part of that privilege as are the direct parties themselves, should it be a secretary, the agents, the employees, who are participating in the decision making process of attorney-client. They are as much a part of this. * . * * a + [782] «. And what did you do then, return home to Waynesboro? PNR ES — ores . 2S EE Sie App. 237 Robinson undertook to go to Florida to prepare such a memorandum? A. Yes. Q. That was because Mr. Robinson’s office is in Miami? A. That is correct, his law office and his home, too. Q. Now, you fixed that in point of time, if I recall your testimony, Mr. Caudle, as on March 18 of 1961. [894] Q. Did you see the contract of sale between Tensaw and the purchaser or a deed of trust running back from the purchaser to Tensaw as part of your— A. Mr. Robinson and I went down to the Court House there in Stafford, Virginia to make—in fact, there was another tract of 150 acres which was just west of the 5,000 acre tract that Mr. Edlin was interested in and Mr. Boykin introduced us to the people who owned it. So, after that tract—Mr. Edlin told us it was really a routine thing. To go down to the court house and see if there was [895] any line against it. He knew there was not but check and see. (Mr. Genn) If the Court please, for the record, I would like to maintain the objection to any conversation between Mr. Caudle and Mr. Edlin out of the hearing of any other individuals. (The Court) Just tell what you and Mr. Edlin did and not what conversations you may have had about the pur- chase. You are talking now about the purchase of this 150 acres, is that what you are objecting to? Because that is what he is talking about now. [899] By Mr. Williams: Q. Now, Mr. Caudle, it was only a matter of three weeks after these transactions about which I have been asking you were consummated that you left Mr. Edlin’s employ? A. That is about right. I left on or about the 19th of May, 1961 as best I can recall. (The Court) The answer was not responsive exactly. — App. 238 You made the statement and he made a counter statement. I want to see if I understand it and whether the witness meant that. You left in May. Had the transactions been consummated before you left? Is that the understanding of what you said? (Mr. Tydings) If he knows. (The Witness) I just do not know, Your Honor. I can- not recall. I just do not. I do not know. It has been almost two years ago. [900] By Mr. Williams: Q. But you do know, I take it, Mr. Caudle, that there were negotiations between Mr. Edlin and Mr. Boykin re- garding the parcels of land at Waldorf and in Stafford, Virginia? A. Yes, sir. Q. And in so far as you can observe these were arm’s- length negotiations, were they not? A. Yes, sir. Q. In fact, they haggled about prices and terms con- stantly, did they not? A. Yes, sir. Q. There were times? A. There was argument on both sides. Q. And there were times when the negotiations appeared to break down, did they not, Mr. Caudle? A. I just do not know. You see, I was coming up to the place and going back to my home and the continuity of these things would be broken when I left. And when I come back the con- tinuity would continue from what I could be told by Mr. Robinson or Mr. Edlin took place or by Congressman Boykin. (). I am only asking you, Mr. Caudle, about those con- ferences and those negotiations and those discussions to which you were a party. [901] A. I was in a lot of them. Q. Yes. A. Yes. GER SRS MONA oer ~ Ww [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386411_0212%3A01. Public record. Not legal advice.