DocketNumber： 19-1617
Judges： Clark, Medina, Galston
Filed Date： 4/9/1956
Status： Precedential
Modified Date： 11/4/2024
On February 21,1956 Theodore Trock, the defendant, appeared as a witness before the grand jury for the Eastern District of New York, and was asked certain questions which he refused to answer on the ground that the answers might tend to incriminate and degrade him. He was brought before the court, and after failing to state any reason why the answers might expose him to criminal prosecution was directed to answer eleven questions which had been put to him.
On February 23, 1956 he again appeared before the grand jury but refused to answer the questions which he had been directed to answer. Then he was brought before the court and the questions were put to him by the court in the presence of the grand jury. He refused to answer; and failed, so it is charged by the Government, to show any reason why the answers might tend to expose him to criminal prosecution. Thereupon he was summarily committed to the custody of the United States Marshal to be held in close confinement for a period of four months. He was informed that he might purge himself of the contempt by complying with the court’s order.
The court minutes disclose that Miss McCann, an assistant United States Attorney, explained to Judge Byers that there was an indictment outstanding against a man by the name of Thomas Tanner, then a fugitive, and that a co-defendant, Isadore Hillman, had _ been convicted and was serving a sentence. The indictment had to do with the theft of certain goods in interstate commerce. Miss McCann explained that there were three other persons who had not yet been indicted, but against whom the Government might subsequently file indictments should investigation provide them with enough evidence. Shé added: “We have reason to believe that the witness, Mr. Trock, may have some knowledge of operations, or have some knowledge of the whereabouts of Thomas Tanner.”
It appeared that Trock had been asked whether he knew one Harry Baus. At first he refused to answer. Subsequently he admitted, said Miss McCann, that he had seen Harry Baus in 1950. A third time, when asked whether he knew Baus, he refused to answer on the ground that it might tend to incriminate or degrade him.
The witness also refused to answer whether he knew Isadore Hillman. Likewise he refused to answer whether he knew a William Cooper. A succession
The court requested the witness to stand before him, and the court asked him to explain why answering the questions whether he knew Baus, Hillman and Cooper would tend to incriminate him. Trock responded: “Well I honestly feel that making a statement there might incriminate me. That is just the way I feel.” The following colloquy resulted :
“The Court: What is there incriminating about knowing a person by the name of Baus ?
“Mr. Trock: Well evidently these people are wanted for something and I don’t feel like being incriminated with them.
“The Court: What is there that would tend to expose you to a criminal prosecution if you answer the question ‘Yes, I do know him’ or ‘No, I don’t know him’ ?
“Mr. Trock: Well, I honestly feel that way.
“The Court: You have said twice that you feel that way. Now, is that feeling based on a reason?
“Mr. Trock: Well, the reason I feel I am just better off not answering that question.”
The court then asked how answering the question whether he operated a business in New York City could incriminate him, and the court’s interrogation of the witness in respect to all the other questions resulted in the failure of the defendant to explain why answers to those questions would tend to incriminate him. He was thereupon ordered to answer all of these questions. He was not ordered to answer questions about Thomas Tanner and James Fausto.
The defendant contends that the entire setting of the examination must be considered by the court, and that where it can be observed that the refusal to answer is not capricious, and where there is some basis for apprehension on the part of the witness, the court may not substitute its judgment for that of the witness. Defendant argues that the court in interpreting the refusal to answer need not base it upon a positive showing of incrimination.
Nevertheless, in appraisal of these eleven questions, when viewed independently each one is certainly free of any criminal suggestion. It does not require the opinion of a psychologist to establish that one laboring under a guilt complex when appearing before a grand jury might decline to answer any and all questions propounded to him; but such an attitude in and of itself would not protect such a witness from the necessity of complying with a court order to answer questions which were free from criminal implication, and not part of a link or setting connoting criminal implication.
We approach then a study of cases which bear on the legal principle involved.
Chief Justice Marshall in United States v. Burr (In re Willie), 25 Fed. Cas. No. 14,692(e), pp. 38, 39, said:
“The principle which entitles the United States to the testimony of every citizen, and the principle by which every witness is privileged not to accuse himself, can neither of them be entirely disregarded. They are believed both to be preserved to a reasonable extent, and according to> the true intention of the rule and of the exception to that rule, by observing that course which it is conceived courts have generally observed. It*842 is this: When a question is propounded, it belongs to the court to consider and to decide whether any direct answer to it can implicate the witness. If this be decided in the negative, then he may answer it without violating the privilege which is secured to him by law. If a direct answer to it may incriminate himself, then he must be the sole judge what his answer would be.”
The foregoing passage is quoted in Mason v. United States, 244 U.S. 362, 365, 37 S.Ct. 621, 622, 61 L.Ed. 1198. In that case Justice McReynolds added:
“The constitutional protection against self-incrimination ‘is confined to real danger, and does not extend to remote possibilities out of the ordinary course of law.’ Heike v. United States, 227 U.S. 131, 144, 33 S.Ct. 226, 57 L.Ed. 450, 455; Brown v. Walker, 161 U.S. 591, 599, 16 S.Ct. 644, 40 L.Ed. 819, 822.”
United States v. Doto, 2 Cir., 205 F.2d 416, led Judge Clark to review leading authorities bearing on the question involved, including Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118; Blau v. United States, 340 U.S. 159, 71 S.Ct. 223, 95 L.Ed. 170; Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344; and Mason v. United States, supra. In Hoffman v. United States, the question presented involved business dealings of a person publicly charged with being known as an underworld character and a racketeer with a twenty year police record, including a prison sentence on a narcotics charge. The questions he refused to answer pertained to the nature of his present occupation and his contacts and connections with, and knowledge of the whereabouts of a fugitive witness sought by the same grand jury, and for whom a bench warrant had been requested.
Judge Clark, referring to the opinion of Mr. Justice Clark, quoted the following passage from the Hoffman case [341 U.S. 479, 71 S.Ct. 818]:
“The privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime. (Patrica) Blau v. United States, 1950, 340 U.S. 159, 71 S.Ct. 223 [95 L.Ed. 170]. But this protection must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer. Mason v. United States, 1917, 244 U.S. 362, 365, 37 S.Ct. 621, 622, 61 L.Ed. 1198, and cases cited. The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself —his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified, Rogers v. United States, 1951, 340 U.S. 367, 71 S.Ct. 438 [95 L.Ed. 344], and to require him to answer if ‘it clearly appears to the court that he is mistaken.’ Temple v. Commonwealth, 1881, 75 Va. 892, 899. However, if the witness, upon interposing his claim, were required to prove the hazard in the sense in which a claim is usually required to be established in court, he would be compelled to surrender the very protection which the privilege is designed to guarantee. To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.”
Applying then the test suggested in Hoffman v. United States, supra, to the facts of this case, it is not possible to find the presence of such a chain as is indicated in the Supreme Court opinion. There is no showing that the questions asked will “link” the witness with any criminal activity. See al
It is for the court to determine whether silence is justified. In the instant case the appellant is not a notorious criminal or racketeer, nor apparently is anyone else whose name was mentioned in the hearings before the district court.
For other authorities see Elwell v. United States, 7 Cir., 275 F. 775. In that case the court followed the rule in Mason v. United States, supra, in affirming an order of the district court directing the witness to answer the question put to him before the grand jury whether he knew the name of a man who wrote an article which appeared in the Chicago Evening American on a given date.
United States v. Herron, D.C., 28 F.2d 122, held that a witness has no arbitrary right to decide the question of privilege.
O’Connell v. United States, 2 Cir., 40 F.2d 201, 204. In this case the witness refused to answer whether he was in business and whether he knew certain individuals. The grand jury was investigating a lottery which, as Judge Swan observed, almost always involved some use of the mails. He said:
“The questions asked were apparently relevant, or at least were a proper introduction to further inquiries, which might elicit information that would lead to prosecution of crime. The appellant was not privileged to refuse to answer unless his answer would have a direct tendency to incriminate him; a remote or speculative possibility of danger is not enough.” Mason v. United States, 244 U.S. 362, 37 S.Ct. 621, 61 L.Ed. 1198; United States v. Sullivan, 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037.
As to some twenty-five questions, excluding some which related to bets through the Albany Pool, Judge Swan said:
“ * * * there are still plenty left of a type which he could not refuse to answer- * * ’ His persistence in prematurely claiming the privilege and refusing to answer well justify a finding of contumacy.” 40 F.2d at page 204.
In United States v. Flegenheimer, 2 Cir., 82 F.2d 751, the indictment alleged that the name Harmon was used as an alias by Flegenheimer, who was on trial. A witness, Di Larmi, when sworn at the trial, made a statement that he would decline to answer any question concerning a bank account in the names of “ ‘Joseph Harmon and Roeco De Larmi.’ ” No question concerning the bank account was propounded, but the witness was asked whether he knew Joseph Harmon. He declined to answer, claiming privilege of self-incrimination. The court held that whether the witness answered “Yes” or “No” could not possibly incriminate him, and that under the doctrine of Mason v. United States, supra; United States v. Weinberg, 2 Cir., 65 F.2d 394, and Abrams v. United States, 2 Cir., 64 F.2d 22, it was established law that to justify silence under the claim of the Constitutional privilege, it must appear that the answer which might be given would have a direct tendency to incriminate.
It has not yet been said by the Supreme Court that questions innocuous in themselves in a “setting” or chain, such as is revealed in the record before us, would justify the witness in refusing to comply with the court order.
Should the witness decide to comply with the court order, in such event, if a second run of questions were propounded based on such answers as the witness might give to the foregoing innocuous questions, and were such second run questions to present a “hot pursuit,” the time would then have arrived for a valid claim of immunity. But as the matter now stands, to quote Judge Swan, “his persistence in claiming privilege is premature.”
The order of commitment is affirmed. This eliminates the appeal from the denial of the motion for bail.