- Bookmark
- Share
- CaseIQ
United States v. Olson
Case Summary: United States v. James B. E. Olson, 134 F. Supp. 481 (E.D.N.Y. 1955)
Factual and Procedural Background
This opinion addresses a defendant's motion in Criminal No. 43114. The surviving aspects of the motion were: (1) suppression of statements made by defendant on August 23, 1951 before Messrs. Shapiro and Schachner (counsel to the "King Committee") and an investigator; (2) suppression of testimony given by the defendant before the Grand Jury that returned the indictment; and (3) suppression of books, records and documents of the defendant covered by a Grand Jury subpoena the obedience to which had been unsuccessfully challenged before Judge Inch on February 11, 1952.
The matters had been argued twice and were the subject of an interim memorandum dated February 21, 1955. A stipulation dated March 7, 1955 was filed to eliminate factual controversy so decision could proceed on legal questions; an order approving that stipulation was signed October 6, 1955. Counsel for the parties are identified in the opinion.
Legal Issues Presented
- Whether statements made by defendant on August 23, 1951 to investigators associated with the King Committee should be suppressed.
- Whether the defendant's testimony before the Grand Jury that later indicted him should be suppressed.
- Whether books, records and documents of the defendant in the custody of accountants and produced pursuant to a Grand Jury subpoena should be suppressed.
Arguments of the Parties
Defendant's Arguments
- The defendant contended he was under compulsion and that his appearance before the investigators on August 23, 1951 was secured by misrepresentation, and therefore the statements should be suppressed.
- The defendant sought suppression of his testimony before the Grand Jury which later returned the indictment.
- The defendant argued that documents in the custody of accountants had been entrusted to those accountants by the King Committee, implying that those accountants should look to the Committee rather than the Grand Jury for authority to produce the documents; thus the defendant sought suppression of those subpoenaed materials.
Government's Arguments
- As to testimony given before subsequent hearings of the King Committee, the Government stated it did not contend that such testimony could be used against Mr. Olson, asserting the statute prohibits such use and affirming it would make no effort to use that testimony.
- The Government further stated that testimony given on subsequent dates before the King Committee "could not and should not and was not presented to the Grand Jury; none of it was."
- With respect to the subpoenaed documents, the Government effectively relied on the prior judicial ruling (Judge Inch's order directing obedience) and the judicial process for resolution rather than permitting the defendant to relitigate that ruling in this motion.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| United States v. Brennan, 94 U.S.App.D.C. 184, 214 F.2d 268, at page 271, certiorari denied 348 U.S. 830, 75 S.Ct. 53 | That statements made to investigators (not before a Congressional Committee with members present) are not protected by the statutory privilege accorded to witnesses before a Congressional Committee and that a witness could not have been treated for contempt of the Committee for refusing to answer those investigators. | The court followed Brennan to hold the August 23, 1951 statements did not fall within the protection of 18 U.S.C. § 3486 and denied suppression of those statements. |
| O'Connell v. U.S., 2 Cir., 40 F.2d 201 | The distinction between the Grand Jury's right to question a witness (who may later become a defendant) and the witness's right to refuse to answer on constitutional grounds. | The court cited O'Connell for the proposition that a witness-subpoenaed appearance before a Grand Jury, with appropriate warnings and invocation of privileges, does not require suppression of testimony merely because the witness later becomes a defendant. |
| U.S. v. Weisman, 2 Cir., 111 F.2d 260 | Addresses waiver issues and turned on the lack of waiver attributable to the defendant in that case regarding Grand Jury appearance. | The court noted Weisman is not contrary to the present decision because Weisman turned on lack of waiver; the court found no similar deficiency here. |
| U.S. v. Lawn, D.C., 115 F.Supp. 674 | Involved testimony before a Grand Jury by defendants after the filing of an information, and apparent failure to adequately warn them. | The court referenced Lawn but distinguished it from the present facts because in this case the indictment was filed months after defendant's Grand Jury appearance and adequate warnings were given. |
Court's Reasoning and Analysis
The court analyzed each branch of the motion in light of the stipulated record and existing authorities.
1) August 23, 1951 Statements: The court reviewed the colloquy between the investigators (Shapiro and Schachner) and Olson. The investigators informed Olson he was appearing voluntarily, not under subpoena, and advised him of the constitutional privilege against self-incrimination and to identify any topic he believed fell under that privilege. Olson responded, "I have no objection." The court noted Olson's governmental experience and that on August 23 he was still a government employee. The court concluded the meeting was not a hearing before the Congressional Committee (no members present) but an investigators' inquiry. Relying on United States v. Brennan, the court held those statements were not within the protection afforded a witness before a Congressional Committee under 18 U.S.C. § 3486 and denied suppression of the August 23 statements.
2) Grand Jury Testimony: The court observed Olson appeared before the Grand Jury under subpoena, was warned of his right to refuse to answer on constitutional grounds, and repeatedly asserted that privilege. The court found due process was accorded. It cited O'Connell for the clear statement of the coexistence of the Grand Jury's right to question and the witness's right to refuse, and distinguished earlier authorities (Weisman and Lawn) based on waiver and timing (the indictment here was filed on February 3, 1953, months after Olson's Grand Jury appearance). On those grounds the court denied suppression of Olson's Grand Jury testimony.
3) Subpoena Duces Tecum and Documents: The court observed that obedience to the Grand Jury subpoena to accountants custodians had been ordered by Judge Inch on or about February 11, 1952. The court treated the present application as an attempt to overturn Judge Inch's prior ruling and declined to entertain such a maneuver, noting that if the court were deciding as an original matter it would reach the same result as Judge Inch. The court also addressed the argument that the accountants had custody at the behest of the King Committee and thus should look to that body for authority to obey the Grand Jury subpoena, stating that if that were true the Committee (not the defendant) would raise the objection. The court noted there had been no attempt to create dissension between the legislative and judicial branches. Accordingly, suppression of the subpoenaed materials was denied.
Holding and Implications
DENIED in all aspects.
The court denied the defendant's motion to suppress (1) the August 23, 1951 statements to investigators; (2) the testimony given before the Grand Jury; and (3) the books, records and documents covered by the Grand Jury subpoena. The direct effect is that the challenged statements, Grand Jury testimony, and subpoenaed materials were not suppressed and remained available for prosecution purposes as reflected in the opinion.
The opinion follows and applies existing case law (as noted above) and does not announce or claim to establish a new legal principle beyond the application of those authorities to the specific factual record presented.
Leonard P. Moore, U.S. Atty., for the Eastern Dist. of New York, Brooklyn, N.Y., Herman Merinoff, Asst. U.S. Atty., New York City, and Paul Windels, Jr., Asst. U.S. Atty., Brooklyn, N.Y., for United States.
William W. Kleinman, Brooklyn, N.Y., for defendant.
BYERS, District Judge.
This is a defendant's motion, the surviving aspects of which are:
1. To suppress the use of statements made by the defendant on August 23, 1951 before Messrs. Shapiro, assistant counsel, and Schachner, special counsel, respectively, to the so-called King Committee; and James W. Dowling, special investigator thereof. 2. To suppress testimony given by the defendant before the Grand Jury which found the indictment against him.
3. To suppress all books, records, documents, etc., owned by and belonging to the defendant which were covered by a subpoena issued by the said Grand Jury, obedience to which was unsuccessfully challenged before Judge Inch on February 11, 1952.
These matters have been twice argued, and were the subject of an interim memorandum by the undersigned dated February 21, 1955.
Pursuant thereto a stipulation dated March 7, 1955 was filed in the Clerk's Office, of which I was not apprised until September 26, 1955. An order approving the stipulation was signed October 6, 1955.
The object thereby sought to be accomplished was to eliminate controversy concerning any factual aspects of the matters involved, so that decision could proceed as upon questions of law.
It is believed that such purpose has been achieved.
The first contention is to be disposed of in light of the record as referred to in the said stipulation, namely the colloquy between the defendant and Messrs. Shapiro and Schachner. The former told the defendant that the so-called King Committee 'is looking into the general administration of the Income Tax Laws * * * You are not here under subpoena and you are appearing voluntarily * * * witnesses have, of course, under the United States Constitution, a privilege not to answer any questions, the answers to which might tend to show or might be used to prove that they have in some way committed a crime against the United States * * * if there is any topic which you think might fall under that privilege, you tell us about that and we won't ask you any questions about it.
'Mr. Olson: I have no objection.'
The defendant was not an untutored person in such matters, for it was stated by his counsel in argument that he had formerly (1946) been a deputy Collector of Internal Revenue, and an interim Collector. Having left the Government service for about two years, he returned in 1948 to become Supervisor of the Alcohol Tax Unit, and so continued until about August 31, 1951 when his resignation became effective. On August 23, 1951 he was yet in the Government service.
That which took place on August 23, 1951 was not a hearing before the Congressional Committee, no member of which was present, but consisted of inquiries made by investigators in pursuit of their authorized calling. As pointed out in United States v. Brennan, 94 U.S.App.D.C. 184, 214 F.2d 268, at page 271, certiorari denied 348 U.S. 830, 75 S.Ct. 53, the witness Olson could not have been dealt with as in contempt of the Committee, had he refused to answer the questions propounded by the investigators.
The argument is advanced by defendant that he was under compulsion, and that his appearance before the investigators was secured by misrepresentation.
The record does not support that contention.
This defendant was a Government employee and no impropriety can be perceived in the request, urgent perhaps in terms, that he lend his aid to the investigators acting for a Congressional Committee, in the performance of a task undertaken in the public interest.
The Brennan case is authority for the proposition that the statements made on August 23, 1951 by the defendant do not fall within the protection accorded to a witness before a Congressional Committee, by Tit.18 U.S.C. § 3486, and will be followed.
This defendant did appear and testify on several later occasions before the King Committee.
As to that testimony, the position of the Government was clearly stated upon the argument:
'The Government does not contend that Mr. Olson's testimony given before the King Congressional Committee can be used against him. The statute says we cannot, and we will make no effort to use his testimony.'
Again,
'* * * the Government's position on that (testimony) is that the testimony given on those subsequent dates could not and should not and was not presented to the Grand Jury; none of it was.'
So much of the motion as is addressed to the statements made by defendant to the investigators on August 23, 1951 is denied.
The second contention is that Olson's testimony before the Additional Grand Jury which found the indictment should be suppressed.
This argument is somewhat nebulous standing by itself. He was a witness before the Grand Jury under subpoena, and it is not understood that he asserts that he could not be legally subjected to that process. Having obeyed the subpoena, he was warned of his right to refuse to answer questions on constitutional grounds, and repeatedly availed himself thereof; thus due process was accorded to him.
The difference between the co-existing rights of the Grand Jury to ask questions of a witness who later may be a defendant, and his to refuse to answer, is clearly stated in O'Connell v. U.S., 2 Cir., 40 F.2d 201, and there is no occasion for confusing them. U.S. v. Weisman, 2 Cir., 111 F.2d 260 is not to the contrary, for the decision turned on the lack of waiver to be attributed to that defendant in his appearance before the Grand Jury.
U.S. v. Lawn, D.C., 115 F.Supp. 674, involves testimony given before a Grand Jury by certain defendants after the filing of an information against them. Apparently also there was a failure adequately to warn them.
Here the indictment was not filed until February 3, 1953, which was some months after this defendant's appearance before the Grand Jury which was to indict him as it later turned out.
The motion to suppress Olson's testimony before the Grand Jury given at a time when he was merely a witness, and had exercised his constitutional privilege of refusing to answer certain questions, is denied.
The remaining contention has to do with the subpoena duces tecum issued by the Grand Jury to the accountants who had in their custody certain books, papers, records, etc., of the defendant.
Obedience to that subpoena was ordered by Judge Inch on or about February 11, 1952 and I cannot avoid the opinion that the defendant seeks by this motion an order which would in effect set aside the ruling so made. It must be obvious that this maneuver if successful would accomplish a reversal of Judge Inch's ruling, and is therefore not to be entertained.
If the matter were open to me as an original proposition, I should make the same ruling as did our Chief Judge.
The argument is made that by reason of antecedent events, the accountants were entrusted with the documents by the King Committee, and hence must look to that body for authority to obey the Grand Jury subpoena. If that were deemed to be true for argument's sake, it would be the King Committee that would raise the objection, not the defendant.
There has been no such attempt to create dissension between the legislative and judicial departments of the Government.
In sum, the defendant's motion in all aspects is denied. Settle order.
Alert