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upon an order was made granting the motion and vacating and setting aside the subpoenas.

The first subpoenas issued out of this court are dated September 22, 1922, and require the witnesses to attend October 9, 1922. Other subpoenas were later issued, requiring other witnesses to appear and to produce documents at later dates. The present motions were all filed promptly after said subpoenas were served. It is not disputed that the subject-matter respecting which said witnesses will be required to testify and such documents will be used is the same conspiracy as that described in the pending New York indictment, nor that these witnesses and documents are substantially the same as were involved in the July grand jury investigation. No disclaimer is made that evidence elicited by the present investigation is not desired for use and will not be used in aiding in the prosecution of the New York indictment. The same special assistant who had charge of the New York investigation, resulting in the presentation of that indictment, and of the July grand jury investigation, appears here and is in charge of the present investigation. The only new feature distinguishing the present situation from that before the court when the subpoenas were vacated and set aside in New York is that government counsel say it is now their purpose to ask the grand jury to return a new indictment in this district. The purpose is still announced to proceed promptly to try the defendants first on the New York indictment, and to try defendants on any new indictment obtained in this court only in the event the New York prosecution shall fail for want of jurisdiction. It seems that the jurisdiction of the New York court is invoked, because overt acts in furtherance of the conspiracy are alleged to have taken place in that district, but not that the conspiracy was entered into therein.

This court accepts in good faith the assertion of government counsel that it is their purpose to ask an indictment as a result of this grand jury investigation. It finds, however, upon all the facts, that it is the dominating purpose of this investigation to examine witnesses in advance of

Opinion of the Court.

trial and to obtain documents and evidence for use in the trial of the New York indictment. The correctness of this finding is supported by the asserted reason for seeking a a new indictment, the absence of any disclaimer of the other objects and purposes attributed to the government, the repeatedly expressed purpose of the government to try defendants first on the New York indictment, the fact that both parties are and have been diligently preparing for that trial, that many of the documents brought here by the government counsel for use in this investigation are in the custody of the New York court, and the [224] declared purpose not to try anybody on a new indictment, except in a remote future contingency.

Upon the law, government counsel contend that this court is without power to inquire into the purposes or to control the course of a grand jury investigation; that a grand jury is an independent body; that the assertion of any power to inquire as to the object of a grand jury investigation, or to restrain or direct it, is inconsistent with that independence and with the secrecy of its proceedings; that a grand jury may, of its own motion, without leave or consent of the court, begin an investigation; and that the power of the district attorney or a special assistant appointed pursuant to Act June 30, 1906 (34 Stat. 816 [Comp. St. § 534]), to suggest matters to a grand jury for investigation is coterminous with the power and independence of the grand jury itself, and is equally exempt from supervision by the court. In support of this contention are cited Hale v. Henkel, 201 U. S. 43, 26 Sup. Ct. 370, 50 L. Ed. 652; In re Kittle (C. C.) 180 Fed. 946; In re Bornn Hat Co. (C. C.) 184 Fed. 506, affirmed Bornn Hat Co. v. U. S., 223 U. S. 713, 32 Sup. Ct. 521, 56 L. Ed. 626; Wilson v. U. S., 221 U. S. 361, 31 Sup. Ct. 538, 55 L. Ed. 771, Ann. Cas. 1912D, 558; Blair v. U. S., 250 U. S. 273, 39 Sup. Ct. 468, 63 L. Ed. 979; U. S. v. Thompson, 251 U. S. 407, 40 Sup. Ct. 289, 64 L. Ed. 333.

[3] All of these authorities and many others have been carefully studied. Undoubtedly they hold that a grand jury is an independent body, and that it has the right to

Opinion of the Court.

inquire without the necessity for a previous charge against any one; that its investigation and proceedings are and should be kept secret, except when the interests of justice require that disclosure shall be made. Undoubtedly they also hold that the right and power of a district attorney or of a special assistant to suggest matters for consideration by a grand jury are coterminous with and stand upon the same independent footing as that of the grand jury itself; that the discharge upon hearing by a United States commissioner, or a refusal by one grand jury to indict, or the pendency of another indictment in the same or a different jurisdiction for the same offense, are not sufficient of themselves to warrant a court in interfering with a grand jury investigation. It may be and is conceded that, unless something more appears which discloses a plain abuse of the court's process, a court will not interfere. The question, however, is one of power in the court. In the case cited, particularly the Kittle and Thompson Cases, expressions may be found which, if not read with discrimination, might mislead one into the view that the power of the court to prevent abuse of its process in connection with a grand jury investigation does not exist. This is not, however, my understanding of these cases nor of the law.

[4] In Krippendorf v. Hyde, 110 U. S. 276, 4 Sup. Ct. 27, 28 L. Ed. 145, it was said that courts of law have inherent power over their own process to prevent abuse, oppression, and injustice. This is fundamental law. Authorities to that effect might be multiplied without limit. It is the basis of the holdings that the secrecy of grand jury proceedings may be disregarded whenever the ends of justice require it, and of the conceded, although carefully guarded and seldom exer- [225] cised, rule that an indictment will be quashed if returned by a grand jury upon evidence wholly incompetent. See McKinney v. U. S. (8 C. C. A.) 199 Fed. 25, 27, 28, 117 C. C. A. 403; Chadwick v. U. S. (6 C. C. A.) 141 Fed. 225, 235, 72 C. C. A. 343; U. S. v. Perlman (D. C.) 247 Fed. 158; U. S. v. Silverthorne (D. C.) 265 Fed. 853.

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[5] The process of the court comprehends proceedings before grand juries and the means whereby witnesses may be required to attend and testify. A grand jury has no existence aside from the court which calls it into existence and upon which it is attending. A grand jury does not become, after it is summoned, impaneled, and sworn, an independent planet, as it were, in the judical system, but still remains an appendage of the court on which it is attending. No grand jury shall be summoned to attend any District Court unless the judge thereof, in his own discretion or upon a notification by the district attorney that such jury will be needed, orders a venire to issue therefor. Judicial Code, § 284 (Comp. St. § 1261). The District Court may discharge a grand jury whenever in its judgment it deems a continuance of the sessions of such a jury unnecessary. Judicial Code, § 285 (Comp. St. § 1262). All indictments or presentments of a grand jury become effective only when presented in court and a record is made of such action. A grand jury is not, therefore, and cannot become, an independent, self-functioning, uncontrollable agency. It is and remains a grand jury attending on the court, and does not, after it is organized, become an independent body, functioning at its uncontrolled will, or the will of the district attorney or special assistant.

[6] The process by which witnesses are compelled to attend a grand jury investigation is the court's process and not the process of the grand jury, nor of the district attorney. If a witness fails to attend, the power, as well as the duty, to compel his attendance, is vested in the court. If, after appearing, he refuses to testify, the power, as well as the duty, to compel him to give testimony is vested in the court, and not in the grand jury. It can therefore never become an immaterial matter to the court what may be done with its process or with its grand jury. A court would not be justified, even if it were so inclined, to create or call into existence a grand jury, and then go off and leave it. A supervisory duty, not only exists, but is imposed upon the

Opinion of the Court.

court, to see that its grand jury and its process are not abused or used for purposes of oppression and injustice.

The government's contenton to the contrary is most strongly supported by certain expressions found in Hale v. Henkel, supra, and United States v. Thompson, supra. In Hale v. Henkel, however, Mr. Justice Brown, 201 U. S. at page 65, 26 Sup. Ct. 370, 50 L. Ed. 652, after stating in the broadest language the independence and inquisitorial power of a grand jury, its right to investigate and inquire of its own motion, or at the instance of a proper official, with or without a charge previously lodged with it against any person or any subject-matter further says:

"Doubtless abuses of this power may be imagined, as if the object of the inquiry were merely to pry into the details of domestic or business life. But [226] were such abuses called to the attention of the court, it would doubtless be alert to repress them."

The Thompson Case was the simple one of a second investigation resulting in an indictment of an alleged offense which had been previously presented to and rejected by a former grand jury. The District Judge quashed the indictment because this second investigation had been made and the indictment presented without first obtaining consent of the court to present the matter anew to the second grand jury. Obviously, the District Court has no such power. And it was in combating a claim of such power that Mr. Chief Justice White used the language relied on. The broad scope of the two general propositions formulated by him in his opinion is, however, carefully limited by the last paragraph but one of the opinion. In substance that paragraph says that a judge may not call into existence a discretion to prohibit the performance by a grand jury or a district attorney of duties authorized by law, lest, if their performance be permitted, there may be abuse. This is not the same thing as holding that an abuse in the performance of those duties is beyond the control of the court. On the contrary, this paragraph recognizes the existence in the District Court of a sound discretion to be used for the purpose of regulating reasonably the performance by the grand