NORCROSS v. UNITED STATES (two cases); WESTERN FUEL CO. v. UNITED STATES, 209 F. 13

ROSS, Circuit Judge. These cases were argued and submitted together. All of them depend upon the same facts, concerning which there is no substantial dispute; indeed, most of the facts are expressly agreed to. Norcross was at the times mentioned in the record, and still is, secretary of the Western Fuel Company, a corporation, and as such was and is in possession of all of the records, books, and papers of that company which were not destroyed by the great fire in San Francisco of April 18, 1906.

The record shows that at the November, 1912, term of the court below, two indictments were presented and filed against certain named individuals charging them with having entered into a certain conspiracy with divers other persons whose names were unknown to the grand jurors, “under the guise and name” of the said Western Fuel Company, to defraud the United States out of a large part of the import duties on coal imported and brought into this country by the fuel company directly and through other persons, firms, and corporations, by making and causing to be made false weights and false and fraudulent returns of weights of such importations, and in various other ways specifically set out in the indictments, the first of which charged the conspiracy to have been formed on the 1st day of January, 1904, the second charged it to have been formed on the 1st day of April, 1906, and a third and last indictment against the same defendants charged, in a somewhat altered form, the same conspiracy, alleging it to have been formed on the 1st day of April, 1906.

It appears from the record that the trial of the defendants on one' of the indictments was first set for August 26, 1913, which time of trial was subsequently several times postponed, and that on the 14th day of August, 1913, the government’s attorney procured to be issued out of the trial court a subpoena duces tecum in the words and figures following: “The President of the United States of America, to D. C.

Norcross, as Secretary of the Western Fuel Company, a Corporation, Greeting: “We command you, that all business and excuses being laid aside, you appear before the grand jury of the United States of America, -within and for the Northern district of California, at a district court to be held in the United States courthouse, in the Post Office Building, in the city and county of San Francisco, on the 14th day of August, 1913, at 2 o’clock in the afternoon, and that you produce before the said grand jury at the time and place aforesaid the following: “All books, papers, records and vouchers of the Western Fuel Company, a corporation, in your possession or under your control, showing the amount and weight of coal in the bunker of the Western Fuel Company situate on Folsom Street Dock’in the city and county of San Francisco on the 1st day of January, 1904, including the amount of coal in the off-shore bunker and the amount of coal in the in-shore bunker, and also showing the amount and weight of coal on the 1st day of January, 1904, in the coalyard of said Western Fuel Company connected with said bunker by a tramway and situate on East street, in said city and county of San Francisco; and also showing the amount and weight of all coal in all other bunkers and places containing, or which contained coal of the Western Fuel Company on the 1st day of January, 1904, in the state of California. “Also all books, papers, records and vouchers of said Western Fuel Company, in your possession or under your control, showing the total amount and weight of coal delivered from said bunker, including the off-shore bunker and the in-shore bunker and delivered from, said yard, between the 1st day of January, 1904, and the date hereof. “Also all books, papers, records and vouchers of said Western Fuel Company, in your possession or under your control, showing the amount and weight of coal on this date in said bunker of said Western Fuel Company, including said off-shore and said in-shore bunker, and in said yard. “Also all books, papers, records and vouchers of the Western Fuel Company, a corporation, in your possession or under your control showing the amount and weight of coal in the bunker of the Western Fuel Company, situate on said Folsom Street Dock, on the 1st day of May, 1906, including the amount of coal in the off-shore bunker and the amount of coal in the in-shore bunker; and also showing the amount and weight of coal on the 1st day of May, 1906, in said coalyard of said Western Fuel Company, and also showing the amount and weight of all coal in all other bunkers and places 'in the state of California containing or which contained coal of the Western Fuel Company on the 1st day of May, 1906. “Also all books, papers, records and vouchers of said Western Fuel Company, in your possession or under your control, showing the total amount and weight of coal delivered from said bunker, including the off-shore bunker and the in-shore bunker, and delivered from said yard, between the 1st day of May, 1906, and the date hereof; also showing aU coal delivered from any and all other bunkers and places containing, or which contained coal of the Western Fuel Company between the 1st day of January, 1904, and the date hereof, and also between the 1st day of May, 1906, and the date hereof. “Also all books, papers, records and documents of said Western Fuel Company, a corporation, in your possession or under your control showing the weight of each load of coal taken from said in-shore and said off-shore bunker and out of said yard, and out of all, other bunkers and places containing, or which contained coal of said Western Fuel Company, between the 1st day of January, 1904, and the date hereof; - also showing the name of the person or persons to whom each of- said loads of coal was sold or delivered, the date or dates upon which each of said loads of coal was so sold or delivered, and the amount charged to the person or persons to whom each of said loads of coal was so sold or delivered, and the amount paid for each of said loads of coal so sold or delivered. “Also all weekly, monthly, and yearly financial and other reports made to the directors of the Western Fuel Company, showing the financial condition' of the affairs of said company; also the minute books of said company containing 'the minutes of the meetings of the Directors and the minutes of the meetings of the stockholders of said company between the 1st day of January, 1904, and the date hereof. “Also all stock ledgers, stock journals and stock certificate books showing the names of the various holders of shares of the capital stock of said Western Fuel Company on the 1st day of January, 1904, and at all times between January 1, 1904, and the date hereof. “Also all ledgers, cashbooks and papers showing the expenses incurred and paid out by said Western Fuel Company between the 1st day of January, 1904, and the date hereof, and to whom said payment» were made. “Witness the Honorable Win.

C. Tan Fleet, Judge of said District Court for the Northern District of California, this 14th day of August, in the year of our Lord one thousand nine hundred and thirteen. “[Seal.] W. B. Maling, Clerk, “By Lyle S. Morris, Deputy Clerk.” It will be observed that the subpoena did not contain the usual ad testificandum clause.

The record shows that pursuant to the subpoena Norcross appeared before the grand jury at the time specified therein, and then and there read the following paper: “I have been instructed by counsel that I am not obliged under this subpoena to testify before the grand jury or to produce the books and papers of the Western Fuel Company, accordingly, and without any disrespect to the grand jury, I must decline to testify further or to produce the books and papers until the court has passed upon the matter.” Such refusal having been duly reported to the court by the grand jury, Norcross was cited to show cause why he should not be adjudged guilty of contempt of court, and in response to that citation appeared with counsel, and, the matter having been duly heard upon evidence, the court entered an order directing him, as secretary of the corporation mentioned, to produce before the said grand jury at a designated time and place the books, papers, records, vouchers, and documents described and referred to in the subpoena and so in his possession and under his control, and, the said Norcross having failed and refused to comply with the said last-mentioned order,- the matter was again brought before the court, and, having been heard upon a practical agreement in respect to the facts, the court adjudged him guilty and sentenced him to imprisonment until he should conform to the requirements of the subpoena, from which judgment the present appeal comes; and upon stipulation of the respective parties the writs of error are made to depend upon the disposition of the appeal.

The record shows, among other things, that at the last hearing mentioned it was agreed between counsel that at the time Norcross was by the subpoena required to appear there were no proceedings pending before the grand jury against any of the defendants to the indictments looking to their further indictment, nor was there any statement made by the government’s attorney to the grand jury to the effect that: “Tbe government desired the grand jury-to take up or consider an investigation having in view the presentation of further indictments as against these defendants or any other individuals connected with the Western Fuel Company.” Upon careful consideration, we are of the opinion that the case is ruled by the decisions of the Supreme Court in the cases of Wilson v.

United States, 221 U. S. 361, 31 Sup. Ct. 538, 55 L. Ed. 771, Ann. Cas. 1912D, 558; Warren B. Wheeler v. United States (No. 658); Stillman Shaw v. United States (No. 659); Warren B. Wheeler v. Guy Murchie, U. S. Marshal, etc. (No. 660); Stillman Shaw v. Guy Murchie, U. S. Marshal, etc. (No. 661) 226 U. S. 478, 33 Sup. Ct. 158, 57 L. Ed. 309, decided January 6, 1913; and Walter.B. Grant and E. E. Burlingame v. United States (No. 831) 227 U. S. 74, 33 Sup. Ct. 190, 57 L. Ed. 423, decided January 20, 1913—upon the authority of which cases the judgment is affirmed.