United States v. Sam Courtney , 236 F.2d 921 ( 1956 )

FRANK, Circuit Judge.

1. The government, in support of the judge’s order, argues thus: Since defendant initially explained that he refused to answer because the answers would impair his business and harm other persons, his subsequent refusal, on Fifth Amendment grounds, was in bad faith and, on that account, should be disregarded. We do not agree. If he was clearly entitled to assert the privilege, his motives for doing so are immaterial. See Taft, J., in Ex parte Irvine, C.C., 74 F. 954, 964-965; cf. United States v. St. Pierre, 2 Cir., 128 F.2d 979, 980.

2. The government also contends that defendant had waived his right to assert the privilege because he had previously testified he had paid the gratuities in question, and in some instances had testified as to the places where the payments were made. But in those answers he had not stated the amounts of the several payments. If answers to the further questions would reveal that he had made a gift to any one person of $600 or more, within any one year, he would have supplied leads to evidence on the basis of which he could be convicted under Sections 145(a) and 147 of the 1939 Internal Revenue Code, 26 U.S.C.A. §§ 145(a), 147, and Sections 6041(a) and 7203 of the 1954 Internal Revenue Code, 26 U.S.C.A. §§ 6041(a), 7203. See Hoffman v. United States, 341 U.S. 479, 486-487, 71 S.Ct. 814, 95 L.Ed. 1118.

On its facts, this case is not governed by Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344. For the same reason United States v. St. Pierre, 2 Cir., 132 F.2d 837, 147 A.L.R. 240, does not apply (even assuming that that decision still has vitality).² Moreover, since the decision in Rogers v. United States, supra, the Supreme Court has, in general, more generously interpreted the Fifth Amendment privilege. See, e.g., Emspak v. United States, 349 U.S. 190, 75 S.Ct. 687, 99 L.Ed. 997, and Trock v. United States, 351 U.S. 976, 76 S.Ct. 1048, reversing United States v. Trock, 2 Cir., 232 F.2d 839, on the authority of Hoffman v. United States, supra.

As we think the defendant was within his constitutional rights in refusing to answer, he was not guilty of contempt.³

Reversed.

2 . The Supreme Court granted certiorari in that case; 318 U.S. 751, 63 S.Ct. 769, 87 L.Ed. 1126. Later, because the defendant had served his term, the Court dismissed the appeal as moot; 319 U.S. 41, 63 S.Ct. 910, 87 L.Ed. 1199. Subsequently, in Rogers v. United States, 340 U.S. 367, 375, note 19, 71 S.Ct. 438, 443, the Court said: “United States v. St. Pierre, 2 Cir., 1942, 132 F.2d 837, 147 A.L.R. 240, presented a closer question since the ‘detail’ which St. Pierre was required to divulge would identify a person without whose testimony St. Pierre could not have been convicted of a crime. We, of course, do not here pass upon the precise factual question there decided by the Court of Appeals.”

3 . This opinion should he read together with our opinion in United States v. Gordon, 2 Cir., 236 F.2d 916.