the record shows with accuracy to what extent he may plead a former acquittal or conviction."
On this point, the defendants contend that 'count one generally charges conspiracy to violate several different laws and several different regulations without any specificity in this respect.' However, it must be remembered that the offenses charged here are statutory, and, as such, the indictment 'may ordinarily be laid in the language of the statute, unless the statute omits an essential element of the offense or includes it only by implication, in which case the indictment or information should allege it directly and with certainty.' Federal Practice and Procedure, Barron, Vol. 48 Sec. 1914: Reynolds v. U.S., 5 Cir., 1955, 225 F.2d 123, certiorari denied 350 U.S. 914, 915, 76 S. Ct. 197, 100 L. Ed. 801, rehearing denied 350 U.S. 929, 76 S. Ct. 301, 100 L. Ed. 812; United States v. Debrow, 5 Cir., 1953, 203 F.2d 699, reversed on other grounds 346 U.S. 374, 74 S. Ct. 113, 98 L. Ed. 92.
Defendants contend that pleading mere legal conclusions does not meet the test required in criminal pleadings but rather these conclusions must be supported by essential allegations of fact.
An examination of the indictment reveals that the offenses charged are, essentially, in the language of the statutes upon which the charges are based. In addition to this, however, Count One contains eight separate paragraphs that reveal the means by which the conspiracy was to be carried on, plus 11 overt acts. The remaining Counts Two and Three, besides stating certain violations of statutes, detail what the defendants did that constituted violations of these statutes.
This Court finds the indictment to be neither vague nor indefinite.
Point 4. The Defendants, Bernard S. Bachman, Stanley J. Bachman and Jerome H. Bachman, have been Deprived of their Constitutional Rights.
The main contention advanced by the defendants with respect to this point is that it is illegal for a Grand Jury to indict a person who was required to appear before the Grand Jury and give testimony. More specifically, they allege that the corporate defendant is actually a closed corporation and, for all purposes, is really a family partnership, so that when one of the 'partners' appeared in response to the subpoena directed to the corporate defendant, he was, in effect, being required to produce evidence against himself. In support of this position, the defendants cite many cases wherein the courts held that books of the corporations were actually books of the particular persons and not of a separate legal entity, and, as such, would be admissible in evidence against the particular officer.
However, certain points raised by the Government in its opposition to the defendants' motion must be considered. The subpoena directing the production of the corporate documents was addressed to the defendant, Stanbern Aeronautics Corporation, and not to any of the individual officers of said corporation. Therefore, compliance with the subpoena could have been effected if any duly authorized representative of the corporation had produced the documents which the subpoena designated. The subpoena was definitely directed to corporate documents and, as such, to documents that were maintained in a representative rather than a personal capacity. As the Supreme Court held in the case of Rogers v. U.S., 340 U.S. 367, 371-372, 71 S. Ct. 438, 441, 95 L. Ed. 344:
'As a preliminary matter, we note that petitioner had no privilege with respect to the books of the Party, whether it be a corporation or an unincorporated association. Books and records kept 'in a representative rather than in a personal capacity cannot be the subject of the personal privilege against self-incrimination, even though production of the papers might tend to incriminate (their keeper) personally."
Bernard S. Bachman voluntarily chose to respond to the subpoena and bring the requested documents. Therefore, it was necessary that he identify himself and the records as being those which the corporation had been ordered to produce. It is also apparent from the affidavit of William A. Carey that the only questions asked of this witness before the Grand Jury were for the purposes of identification of himself as an officer of Stanbern Aeronautics Corporation and to produce the documents referred to in the subpoena. This is proper. United States v. Field, 2 Cir., 193 F.2d 109.
As the Government has pointed out, books and records maintained in a representative capacity cannot be the subject of the personal privilege against self-incrimination, even though production of such books might tend to incriminate the keeper personally. Rogers v. U.S., supra. Also, the privilege against self-incrimination cannot be exercised so as to protect corporations, or their officers, against the production of corporate records pursuant to lawful judicial order. Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 66 S. Ct. 494, 90 L. Ed. 614.
The defendants also contend that 'in the light of the developments of this case as appear of record can it be seriously urged that on March 31, 1958, the defendant, Bernard Sidney Bachman, was not a putative defendant. In the face of the return of the indictment on the following Wednesday morning as indicated in this cause, it would appear clearly that the probabilities were that the indictment was already drawn and in the hands of the prosecutor.' Counsel for the defendants refers to 'probabilities,' thus acknowledging that it would be just as consistent to reach a contrary conclusion.
The motion of the defendants to dismiss and for other relief is hereby denied.
Counsel will present appropriate order.
© 1992-2004 VersusLaw Inc.