(1942)
Petitioners Daniel D. Glasser, Norton I. Kretske, and Samuel H. Roth, together with Louis Kaplan and Anthony Horton, were found guilty upon an indictment charging them with a conspiracy to defraud the United States under § 37 of the Criminal Code.1 Glasser had served as assistant United States attorney in charge of liquor cases from March 1935 until April 1939.2 Kretske assisted him from October 1934 until April 1937 before entering private practice.3 Roth was a private attorney. Kaplan was an automobile dealer reputedly engaged in the illicit alcohol traffic. Horton was a professional bondsman.4
The second count alleged that the defendants conspired to defraud the United States of its governmental function to be honestly represented in court free from corruption.5 This was to be accomplished by soliciting payments to influence Glasser and Kretske in their official duties.6 Before trial all defendants moved to quash the indictment on the grounds that the grand jury was illegally constituted because women were excluded and that the indictment had not been properly returned in open court.7 Glasser, Kretske, and Roth also demurred.8 The motions and demurrers were overruled.9
Trial began on February 5, 1940. After Kretske's counsel sought a continuance that was denied, McDonnell was appointed Kretske's attorney.10 On February 6, after Kretske expressed dissatisfaction, the court appointed William Scott Stewart, who had already entered an appearance for Glasser, to represent Kretske as well.11 Glasser objected on the record, stating that he wanted his own lawyer representing him.12 He noted inconsistencies in the defense because statements about payments to take care of Glasser would not be binding on him and could create an impression that the defendants were together.13 After further discussion Stewart was appointed for Kretske and represented both defendants throughout the month-long trial.14
The government called witnesses including accountant Brantman, who testified he gave Kretske $3000 on behalf of Abosketes, Abosketes himself, Frank and Anthony Hodorowicz, Edward Dewes, and others who described payments to Kretske to fix liquor-violation cases, references to "Red" or the red-head, and Roth's representation of defendants in those matters.15 The jury, composed of six men and six women, returned a guilty verdict on March 8, 1940. Glasser and Kretske received sentences of fourteen months' imprisonment and Roth was fined $500.16
The Seventh Circuit affirmed the convictions of Glasser, Kretske, and Roth.17 Glasser and Roth filed affidavits alleging that women on the petit jury panel had been drawn exclusively from the membership of the Illinois League of Women Voters.18 The record is barren of any actual tender of proof on the motion for new trial.19 The Supreme Court granted certiorari.20
Whether the grand jury was illegally constituted because women were excluded from it?21
Under Section 275 of the Judicial Code, jurors in federal court must have the qualifications of jurors in the highest court of the state.22 When Illinois Acts providing for women jurors became effective on July 1, 1939, federal jury lists need not include women where state lists had not yet incorporated them due to the short interval before summoning.23
No. The ESTABLISHED FACTS establish that the grand jury was summoned on August 25, 1939, shortly after the Illinois Acts took effect.24 In seventeen of the eighteen counties in the Northern District of Illinois the county boards could wait until September 1939 to include women on their jury lists.25 The omission of women from the federal grand jury did not constitute error.26
The grand jury was not illegally constituted, and the motion to quash on this ground was properly overruled.27
Whether the indictment was properly returned in open court?28
No. The ESTABLISHED FACTS show that the record contains a regular placitum reciting the convening of court.31 The indictment bears the notation of a true bill by the foreman and the clerk's endorsement of filing in open court on September 29, 1939.32 The motion-slip discharging the grand jury notes the return of four indictments.33 This provides adequate proof that the indictment was properly returned.34
The indictment was properly returned in open court, and the motion to quash on this ground was properly overruled.35
Whether the indictment sufficiently charged a conspiracy to defraud the United States?36
An indictment charging conspiracy to defraud the United States of its governmental function to be honestly, faithfully and dutifully represented in the courts of the United States free from corruption, improper influence, dishonesty, or fraud is sufficient if it alleges the conspiracy with certainty to a common intent.37 The particularity of time, place, circumstances, causes, etc., in stating the manner and means of effecting the object of a conspiracy is not essential to an indictment.38
No. The ESTABLISHED FACTS establish that the second count alleged the defendants conspired to defraud the United States of its function to be honestly represented in court by soliciting payments to influence Glasser and Kretske.39 The indictment was definite enough to inform the defendants of the charges.40 A bill of particulars was furnished upon request.41
The indictment sufficiently charged the conspiracy, and the demurrers were properly overruled.42
Whether Glasser was denied the effective assistance of counsel under the Sixth Amendment when his retained attorney was appointed to represent a co-defendant with potentially conflicting interests?43
The Sixth Amendment guarantees an accused the assistance of counsel for his defense.44 This assistance must be untrammeled and unimpaired by a court order requiring one lawyer to simultaneously represent conflicting interests.45 Courts must indulge every reasonable presumption against waiver of this fundamental right.46 The trial judge bears the duty to determine whether any waiver is intelligent and competent and appears clearly on the record.47
Yes. The ESTABLISHED FACTS show that on February 5, 1940, after Kretske's counsel sought a continuance that was denied, McDonnell was appointed Kretske's attorney.48 On February 6, after Kretske expressed dissatisfaction, the court appointed Stewart, who had already entered an appearance for Glasser, to represent Kretske as well.49 Glasser objected on the record, stating that he wanted his own lawyer representing him. He noted inconsistencies in the defense because statements about payments to take care of Glasser would not be binding on him and could create an impression that the defendants were together. Despite the objection, Stewart was appointed and represented both defendants throughout the month-long trial.50
Stewart failed to cross-examine Brantman thoroughly after Abosketes testified linking Glasser and did not object to hearsay statements by Kretske implicating Glasser.51 The evidence against Glasser was not strong and depended on a development and collocation of circumstances.52
The court denied Glasser his right to the effective assistance of counsel guaranteed by the Sixth Amendment, requiring that his conviction be reversed and a new trial ordered.53
Related opinions on this issue
Joined by The Chief Justice
Justice Frankfurter, joined by the Chief Justice, dissented from the reversal of Glasser's conviction.54 He argued that Glasser, an experienced attorney, acquiesced in the appointment of Stewart by remaining silent after his initial objection and throughout the trial, motions, and appeal filings.55 Frankfurter viewed the claim as a lawyer's afterthought raised twenty weeks after the appointment.56
He contended that the record shows voluntary assumption of the arrangement after consultation at the defense table.57 No actual prejudice was shown because the evidence regarding Brantman was already established on direct examination and the other evidence was admissible.58
Whether the evidence was sufficient to support the convictions of Kretske and Roth?59
A jury verdict must be sustained if there is substantial evidence, taking the view most favorable to the government, to support it.60 Participation in a criminal conspiracy need not be proved by direct evidence because a common purpose and plan may be inferred from a development and collocation of circumstances.61
Yes. The ESTABLISHED FACTS establish that witnesses including Frank Hodorowicz, Edward Dewes, and others described payments to Kretske to fix liquor-violation cases with references to Red or the red-head.62 Roth represented defendants in those matters without receiving fees from the clients in several instances.63 Roth made statements to Campbell offering money in another case and explaining how cases were handled in Chicago.64
This provided substantial evidence from which the jury could infer the existence of the conspiracy and the participation of Kretske and Roth.65
The evidence was sufficient to support the convictions of Kretske and Roth.66
Whether the admission of the investigator reports and hearsay statements was erroneous as to Kretske and Roth?67
No. The ESTABLISHED FACTS establish that the reports of investigators on stills operated by Kaplan were admitted only against Glasser with a limiting instruction to the jury.70 The testimony of Campbell regarding Roth's statements tended to connect Roth with the conspiracy by explaining his state of mind.71 No reversible error occurred as to Kretske and Roth.72
The admission of the evidence and reports was not erroneous as to Kretske and Roth.73
Whether the trial judge's conduct, including questioning of witnesses, denied petitioners an impartial trial?74
The judge conducting a jury trial in federal court is the governor of the trial for the purpose of assuring its proper conduct.75 The judge must strive for an atmosphere of perfect impartiality.76 Interrogation of witnesses is within the power to elicit the truth.77 The extent of cross-examination rests in the sound discretion of the trial court.78
No. The ESTABLISHED FACTS establish that the trial judge interrogated several witnesses mainly to elicit the truth.79 Any misapprehension about an arraignment was clarified on cross-examination.80 The substantial rights of the petitioners were not affected by the few incidents in a long trial.81 The petitioners were not denied an impartial trial.82
The trial judge's conduct did not deny petitioners an impartial trial.83
Whether the selection of the petit jury panel exclusively from members of the Illinois League of Women Voters denied petitioners an impartial trial?84
The jury must be a body truly representative of the community.85 The deliberate selection of jurors from the membership of a particular private organization does not conform to the traditional requirements of jury trial.86 The moving party must introduce or offer distinct evidence in support of a motion alleging improper constitution rather than relying on formal affidavits alone.87
No. The ESTABLISHED FACTS establish that Glasser and Roth filed affidavits alleging that women on the petit jury panel were drawn exclusively from the membership of the Illinois League of Women Voters.88 The record is barren of any actual tender of proof on the motion for new trial. Kretske filed no affidavit.89 The failure to prove the contention is fatal and the trial court's denial of the motion was not an abuse of discretion.90
The selection of the petit jury panel did not deny petitioners an impartial trial.91