In No. 4071 the order of the District Court is also affirmed, with costs of this court. We think it governed by the considerations already discussed in the main case. UNITED STATES v. CHARLES C. BUTTENFIELD.80 (United States District Court, Western District of Pennsylvania. January 31, 1925.) INDICTMENT FOR PERJURY COMMITTED BEFORE A TRIAL EXAMINER OF THE FEDERAL TRADE COMMISSION. COMPILER'S NOTE It appears that the defendant Buttenfield directed and controlled the affairs of the United States Products Co., a corporation engaged in the business of selling an abrasive bearing-fitting compound under the name "Kwik-Ak-Shun" in competition with a similar product sold by the M. T. K. Products Co. under the name "Time Saver"; that he had caused the corporation to file with the Federal Trade Commission an application for complaint against the M. T. K Products Co., charging it with the use of unfair methods of competition in violation of section 5 of the Federal Trade Commission Act; that in support of such application for complaint he filed with the Commission a number of letters, the signatures to which, according to subsequent findings of the Commission, he had forged or induced others to forge; that these purported to be letters from cus tomers of the corporation supporting the claim in said application for complaint that the business of the United States Products Co had been interfered with or injured by the action of the M. T. K Products Co. (This proceeding was subsequently dismissed by the Commission for the reason that the charges in the complaint were not supported by the proof. 6 F. T. C. 515.) It also appears that another proceeding was had before the Commission upon its formal complaint charging Buttenfield and the United States Products Co. with violating section 5 of the Feders. Trade Commission Act by the use of false and misleading repre sentations in the sale of "Kwik-Ak-Shun," and unfair interference with the business of the M. T. K. Products Co. and its produ: "Time Saver" by, among other things, using the forged letters as stated above. At the trial of this proceeding Buttenfield was be lieved to have sworn falsely and to have committed perjury in testifTing before the Commission's trial examiner sitting in the case. (The Commission's complaint, findings as to the facts, and order to ceas and desist in the matter are reported in 7 F. T. C. 301.) The alleged forgery and false swearing were brought to the attention of the Department of Justice for possible criminal prosecution of Buttenfield under section 10 of the Federal Trade Commissi Act and section 125 of the United States Criminal Code. It further appears that prosecution under section 10 of the Federal Tra Commission Act had been barred by running of the statute of limtations before the matter was presented to the grand jury. How Not reported. ever, the statute of limitations had not yet run under the Criminal Code against the charge of false swearing; and in November, 1924, the United States attorney for the western district of Pennsylvania (Pittsburgh) obtained from the grand jury of that district an indictment containing the charge that Buttenfield on July 12, 1923, in violation of section 125 of the United States Criminal Code, had committed perjury in testifying on that day at Pittsburgh, Pa., before the trial examiner of the Federal Trade Commission in the abovementioned proceeding of Federal Trade Commission v. United States Products Co. et al. (7 F. T. C. 301). This indictment was tried January 19 to 23, 1925, when the jury returned a verdict of guilty. On January 31, 1925, the defendant was sentenced to serve eight months in the Alleghany County jail, from which judgment no appeal has apparently been taken. CHARLES SHERWIN ET AL. v. UNITED STATES.81 (United States Supreme Court. Appeals for the Fifth Circuit. May 25, 1925.) Certiorari to the Circuit Court of No. 379. Section 9 of the Federal Trade Commission Act grants immunity from prosecution only where testimony is given or evidence produced before the commission in obedience to a subpoena issued by it, and not where information was furnished upon the demand made by an agent of the commission after the commission had requested such information by letter. 290 Fed. 517; 297 id. 704, affirmed. Certiorari to a judgment of the Circuit Court of Appeals affirming a conviction and sentence in a criminal case in the District Court in which the petitioner's plea of immunity was denied. Mr. S. R. Sayers, with whom Mr. W. P. McLean was on the brief, for petitioners. The Solicitor General and Mr. Merrill E. Otis, Special Assistant to the Attorney General, for the United States. Mr. Justice BRANDEIS delivered the opinion of the court: Sherwin and Schwarz were indicted in the Federal Court for Northern Texas, under section 215 of the Criminal Code, for [370] using the mails in consummation of a scheme to defraud; and also, under section 37, for a conspiracy to commit the offense. They filed in bar a plea of immunity under section 9 of the Federal Trade Commission Act, September 26, 1914 (ch. 311, 38 Stat. 717, 723). Their claim was that the indictment rested upon information which the commission had compelled them to give. There was a replication; issue was joined; a trial was had upon the plea; and under instructions of the court the jury found against the defendants upon their plea of immunity. They were found guilty upon the various counts This case is reported in 268 U. S. 369. For decisions below see p. 1046 and U. S. v. Lee et al., p. 1006. of the indictment and sentenced. (United States v. Lee, 290 Fed 517.) The judgment was affirmed by the United States Circuit Court of Appeals. (297 Fed. 704.) This court granted a writ of certiorari (265 U. S. 578.) Whether the giving of the information under circumstances to be stated created an immunity is the sole question fr decision The Federal Trade Commission Act in section 5 empowers and directs the commission to prevent the use of unfair methods of competition and provides for proceedings to that end. In section 6 t provides that the commission shall have power to investigate the practices of corporations engaged in interstate commerce; and may require of them special reports in writing, under oath or otherwise, concerning their practices. In section 9 it provides that the commission or its agents shall "have access to, for the purpose of exami nation, and the right to copy any documentary evidence of any corporation being investigated or proceeded against "; and "to require by subpoena the attendance and testimony of witnesses and the r duction of all such documentary evidence relating to any matter under investigation. Any member of the commission may s.ga subpoenas, and members and examiners of the commission may administer oaths and affirmations, examine witnesses, and receive evidence." Methods of enforcing obedience to such orders are provided by section 9. Refusal "to attend [371] and testify, or to answer any lawful inquiry, or to produce documentary evidence . . . in obeence to the subpoena or lawful requirement of the commission" is punishable criminally under section 10. It is further provided by section 9 No person shall be excused from attending and testifying or from producirg documentary evidence before the commission or in obedience to the subgi za of the commission on the ground or for the reason that the testimony or ev dence, documentary or otherwise, required of him may tend to criminate La or subject him to a penalty or forfeiture. But no natural person shall be pre cuted or subjected to any penalty or forfeiture for or on account of y transaction, matter, or thing concerning which he may testify, or prod.e evidence, documentary or otherwise, before the commission in obediene- : a subpoena issued by it: Provided, That no natural person so testifying shal be exempt from prosecution and punishment for perjury committed in testifying. Sherwin and Schwarz were the promoters of alleged gas and el properties conducted under the names of General Lee Interests Nos 1 and 2, and General Lee Development Interests. The commissa addressed to the concern letters requesting, under sections 5, 6, 9, and 10 of the act, detailed information in writing concerning its organization and business. No reply was made thereto. Later an agent of the commission, referred to as a special examiner, called person at the office of the concern and demanded the information This was at first refused, on the ground that the concern, being a common-law trust, was not subject to the jurisdiction of the com mission. The agent insisted that the act required Sherwin ard Schwarz to give the information and answers sought; pointed t that refusal to comply with the commission's request would subje↑ them to the criminal penalties provided in the act; and, in so do z, omitted to call to [372] their attention the provision granting munity from subsequent prosecution under certain circumstalas Conferences were then had with their legal adviser. Thereupon, they gave the agent access to books and papers; furnished him copies of some documents; and answered freely the inquiries made by him. It does not appear that the commission, or any member thereof, ever issued any order in the matter. There was no hearing of any kind, unless the informal conversations of the agent with Sherwin and Schwarz could be called such. No subpoena from any source was ever served upon Sherwin or Schwarz or any other person connected with their business. No one made any answer under oath either orally or in writing. There was no claim by Sherwin or Schwarz of immunity, or that the giving of information might tend to incriminate them. The subsequent prosecution which resulted in the indictment was instituted by a post-office inspector. It does not appear that the Federal Trade Commission had any part in the prosecution or communicated any of the information gained to any Government officials who did have; or that any fact was elicited by the commission which connected Sherwin and Schwarz with the crime of which they were convicted. The question is not, as in Councilman v. Hitchcock (142 U. S. 547); Brown v. Walker (161 U. S. 591); and Hale v. Henkel (201 U. S. 43), whether the immunity provided by the act is sufficiently broad to deprive the witness of his constitutional privilege against self-incrimination. It may be that, for this and other reasons, Sherwin and Schwarz could not have been compelled to furnish the information which they gave. (See Federal Trade Commission v. American Tobacco Co., 264 U. S. 298.) The question is not, as in Glickstein v. United States (222 U. S. 139), and Cameron v. United States (231 U. S. 710), whether an admitted immunity extends to the particular attempted use of the testimony. Nor is it necessary to [373] consider the question involved in Heike v. United States (227 U. S. 131), whether the information given was beyond the protection of the immunity provision because not of an incriminating nature and but remotely, if in any way, connected with the transactions forming the basis of the later prosecution. The immediate question here is whether, under this particular immunity provision, the mere furnishing of information of whatever character creates an immunity which bars the prosecution. Compare Tucker v. United States (151 U. S. 164, 167-169). The question is said to be one of statutory construction. But upon the facts stated, it is clear that there was no basis for the plea of immunity. The act grants immunity only when the person testifies or produces evidence "before the commission in obedience to a subpœna issued by it." Sherwin and Schwarz did nothing in obedience to a subpoena. None was issued. Whether the judgment below was right for other reasons also, we need not consider. The case is wholly unlike United States v. Pardue (294 Fed. 543). Affirmed. PANDOLFO v. BIDDLE, WARDEN OF PENITENTIARY (United States Circuit Court of Appeals, Eighth Circuit. September 17, 1925.) No. 7014. CRIMINAL LAW, KEY No. 42-IMMUNITY NOT GRANTED BY FEDERAL TRADE COMMISSION ACT TO ONE APPEARING AND TESTIFYING VOLUNTARILY. Federal Trade Commission Act, section 9 (Comp. Stat. sec. 88361), grants immunity only to one testifying or producing evidence “before the commisia in obedience to a subpoena issued by it," and so not to one appearing and testfying, not in obedience to subpoena, but voluntarily. Appeal from the District Court of the United States for the Ditrict of Kansas; John C. Pollock, judge. Habeas corpus proceeding by Samuel C. Pandolfo against W. F Biddle, warden of [143] the United States penitentiary at Leavenworth, Kans. Discharge denied, and petitioner appeals. Affirmed. L. S. Harvey, of Kansas City, Kans. (W. E. Stickel, of Kansas City, Kans., on the brief), for appellant. Alton H. Skinner, assistant United States attorney, of Topeka Kans. (Al. F. Williams, United States attorney, of Topeka, Kans., or the brief), for appellee. Before STONE and VAN VALKENBURGH, Circuit Judges, and PHILLIPS, District Judge. PHILLIPS, District Judge: This is an appeal by Samuel C. Pandolfo from an order denying his discharge in a habeas corpus proceeding. In February, 1919, the Federal Trade Commission commenced ar investigation of the Pan Motor Co. (hereinafter called the Companyi Pandolfo was president of the company. On March 6, 1919, the om mission wired the company, requesting copies of its monthly tris balances and financial statements, from September 30, 1918, to date. and certain other information supplemental thereto. On the same date the company answered this request by wire, signed "Pan M tor Co., Pandolfo," stating: Will take much pleasure in submitting to you copy of J. G. White Engineering Corporation report, also many other reports from examiner, committees, and investigators, together with certified public accountant's audit and other information. On March 10, 1919, the commission addressed a letter to the company, in which it inclosed a questionnaire and requested that the same be answered and returned. This questionnaire was returned Mard 22, 1919. Thereafter, between March 29, 1919, and April 10, 1919, an exchange of telegrams took place between the commission and the company and its officers. These telegrams show that the commission 8 The case is reported in 8 F. (2d) 142, |