New-York tribune., 1903-03-18
DISMISS SILK CASE.
RosenthaI and Cohn Not Held tor
alleged Customs Frauds.
TECHNICAL ERROR IN COMPLAINT

Judge Thomas, "a the Criminal Branch Of the
United States Circuit Court, yesterday ordered
the dismissal of the indictments recently found
against Abraham s. Rosenthal and Martin L..
Cohn. Of the silk importing firm of A. s. Roseh-
thai & Co., and Charles c. Browne. a former
examiner of silks in the Customs House Rosen-
thai and his partner were indicted for alleged
frauds in the importation of japanese Silks IN
which it was asserted the government had oeen
cheated out Of duties to the amount OF hun
dreds of thousands of dollars
The dismissal of the indictments is on the
purely technical ground that The appearance Oh
W. Wickharn Smith before the Federal Grand
Jury was without authority of law. MI smith
was appointed special deputy attorney gen
eral to investigate the alleged silk frauds IN
demurrer to the indictments, ex-Judge Often
hoeffer contended that only the United States
District Attorney or one Of his assistants had
the right to present evidence before the Federal
Grand Jury and that the appearance OF an as
sistant Of the Attorney General of the United
States was preiudicial to the accused In MS
opinion Judge Thomas says
The Attorney General. the Solicitor General
any officer of the Department of Justice ls
authorized by sections 35S and 1857. or other pro
visions Of the Revised Statutes. TO conouct' or
to aid IN the conduct OF. proceedings before
grand jury. nor has a special assistant TO the
Attorney General such power.
A special assistant to the Attorney General
is not officer of the Department Of Justice
within the meaning OF such sections.
A special assistant to the Attorney General
appointed to investigate and report concerning
alleged fraudulent importatiOns of japanese
silks into the Port of New York and to prepare
and conduct such civil and criminal proceed,
ings as may result therefron, is not authorised
by law to conduct to aid in the conduct of.
proceedings before a grand jury, and indfct-
ments based upon such proceedings con-
Quoted should be quashed upon motion.
Judge Thomas brushes asfdre contention that
there improperly in the offer Of the Mer-
chants Association to pay for Mr.. Smiths
services. Mr.. Smith. the judge says performed
his duty with fidelity and probity an employe
Of the government, and whatever arrangement
there was as to his pay made between the
Attorney General and the Merchants Associa-
tion. Judge Thomas says Mr.. Smith was not re-
sponsible for the arrangement and was not under
obligations to the Merchants Association. mas
much as he was retained by the government
After stating that it was fortunate that the
present inattention TO the statutory demarca-
tion of duties could be corrected at this early
stage of the proceedings Judge Thomas finished
by saying:
The indictments are not faulty, save for the
single reason that they are based upon proceed
ings in great part conducted without authority
by the special assistant to the Attorney General
and that sole ground the motions to quash
are granted
EX-Judge DfttenhOefer said last evening tnat
the opinion sustaining his demurrer was par
ticularIy gratifying. coming on his birthday, and
added:
We will make motion for the final discharge
Of the defendants. After that we will simply
wait We are certain the government has no
case against US. We do not think the decision
can be appealed from by the government. We
certainly had no right of appeal We are GER
tain, too, that will BE successful IN our tlnai
defence if the defendants are reindicted. Cen
eral Burnett the District Attorney, has a!ready
passed upon these cases, and It is doubtful II ne
will himself take them up and reind1ct the three
defendants.
General Burnett United States District At
torney, at his home, No. East Twelfth-st last
evening said that he would confer with Mr..
smith and the Attorney General relative to ap-
peaIing the case to the United States Crcult
Court of Appeals. IN the event OF motloh 10
ouash the indictment against the deIenddhts'
such an appeal however, would not act as q
stay of proceedings pending decision genera
Burnett said however. 1t would be simple
thing to bring a new indictment against the de-
PENDANTS and that he could and would appoint
Mr smith an assistant to his ofice, rather tnan
n that Of the Attorney General thus obeylnS
the construction of the statutes.
" Wickham Smith not at his once al No
90 WiIIam-st last evening. nor at his nome IN
lNn