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WHEELER v. UNITED STATES SHAW V. UNITED STATES WHEELER V. MURCHIE

decided: January 6, 1913.

WHEELER
v.
UNITED STATES

SHAW
v.
UNITED STATES

WHEELER
v.
MURCHIE, UNITED STATES MARSHAL

SHAW
v.
SAME



ERROR TO AND APPEALS FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF MASSACHUSETTS.

Author: Day

[ 226 U.S. Page 482]

 MR. JUSTICE DAY delivered the opinion of the court.

These cases arise from the following facts: On April 12, 1912, the Federal grand jury in Boston was investigating whether Warren B. Wheeler and Stillman Shaw, plaintiffs in error in Nos. 658 and 659 and appellants in Nos. 660 and 661, had, by means of a certain corporation known as Wheeler & Shaw, Incorporated, or otherwise, violated ยง 215 of the act of Congress of March 4, 1909, 35 Stat. 1088, 1130, c. 321, making it a crime to use the mails of the United States for a scheme to defraud, which crime is punishable by fine or imprisonment or both. On the same day a subpoena duces tecum, without ad testificandum clause, was issued, summoning the corporation to appear

[ 226 U.S. Page 483]

     before the grand jury and produce all the cash books, ledgers, journals and other books of account of the company, and all copies of letters and telegrams of Wheeler & Shaw, Incorporated, whether signed or purporting to be signed by the corporation or by its president or treasurer in its behalf, for and covering the period from October 1, 1909, to January 1, 1911; all the aforesaid books and copies of letters and telegrams to be produced before the grand jurors under the penalties of law. The subpoena was served on Wheeler as treasurer, and on Shaw as president, of the corporation. They appeared before the grand jury, without any of the books or correspondence, as required in the subpoena, however; asked to be sworn for the purpose of explaining why they had not brought them, and left with the grand jurors papers containing the following statement of their reasons for the non-production of the books, etc. (the records are the same, mutatis mutandis, in the Wheeler case and the Shaw case):

"To the Grand Jurors of the District Court of the United States for the District of Massachusetts.

" Gentlemen: There was served upon me at 12:50 P.M. to-day, April 12, 1912, a subpoena addressed to Wheeler & Shaw, Inc., a corporation doing business at Boston, in said District, and calling upon that corporation to produce before you, presumably through me, 'all cash books, ledgers, journals, and other books of account of said Wheeler & Shaw, Inc., for and covering the period between October 1, 1909, and January 1, 1911, all copies of letters and telegrams of Wheeler & Shaw, Inc., signed or purporting to be signed by said Wheeler & Shaw, Inc., or by its president or its treasurer in behalf of said Wheeler & Shaw, Inc., during the months of October, November and December, 1909, and the entire year of 1910; and the aforesaid books, copies of letters, and telegrams to be produced

[ 226 U.S. Page 484]

     before the Grand Jurors of said District Court in the matter of an alleged violation of the laws of the United States by Warren B. Wheeler and Stillman Shaw.'

"I desire to avail myself of what I understand to be my right to state to you under oath my reasons for not producing any books, ledgers, or other papers of documents in response to said summons. My reasons are:

"First: That I have not in my possession or custody any cash books, ledgers, journals, or any of the other books or things described in said subpoena which belong to Wheeler & Shaw, Inc., or are in my possession as an officer or agent of Wheeler & Shaw, Inc. The only cash books, ledgers, journals, and other books, papers, and things to which the aforesaid description in said subpoena could apply are the personal property of myself and Stillman Shaw, and are in our personal possession, and are not in the possession of either of us as officer or agents of any corporation.

"Second: Even were the fact not as stated above, I am advised that the language of said subpoena quoted above is so broad, sweeping, and lacking in particularity as to constitute a violation of the rights of any party to whom a subpoena is addressed to be exempt from unreasonable searches and seizures under the Fourth Amendment to the United States Constitution.

"Third: Whether addressed to said corporation or to me personally, I am advised that said subpoena violates the rights secured to me by the Fifth Amendment to the Constitution of the United States not ...


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