*1 16á pay- proceeds from unencumbered tors are After secured or
because unsecured. applied pay property property only be to the ment of taxes upkeep could and debts, among ment of the remainder shall unsecured be distributed deficiency credi although secured creditors as and unsecured tor, may appear. from the their to recover interests was not entitled this States, being creditor, proceeds of the sole debtor rentals or unencumbered deficiency be property estab would remainder. until this entitled er lished. think this is We conclusion The debtor has received substan possession roneous. retained The debtor tial net income from Prowers property including of all Prow property. paid He has no rentals for County. ac fixing ers the rental of possession same. use His cording is a to the terms of the statute dependent upon payment is rea of a precedent condition retention sonable rental determined in accordance possession property by the debtor. statutory provisions. The order with Bankruptcy, Remington Vol. Sec. subject fixing is rentals modification constitutionality 4081. It is doubtful if the upon application the credi the debtor or portion upheld of this of the Act could be tors if unfair or unreasonable to is requirement. Building without this Home either. Paradise & Co. Land Livestock. Blaisdell, 290 U.S. Loan Association v. Cir., Berkeley, v. Federal Land Bank of 413; 445, 54 S.Ct. 78 L.Ed. 950; F.2d Federal Land Bank Wright v. of Mountain Vinton Branch Hansen, Cir., 82. Sрringfield F.2d Roanoke, Trust Bank of 300 U.S. The order of the District Court va- is 736; Paradise 81 L.Ed. and the proceeding cated remanded Land Land & Livestock Federal Co. v. rental directions to determine reasonable Berkeley, Cir., Bank County property re- for the Prowers 952. court, quire payment the same into proceedings and for further not inconsis- au When an order entered expressed tent views with the herein. possession thorizing debtor retain changes property, and use his status tenant that of an to that of a from owner super property direct and trustee of under Wright Vinton the court.
vision of Mountain Bank of Roa
Branch of Trust
noke, supra; Land Beecher v. Federal During
Bank,
984.
possession
stay period, he
retain
“pro
STATES.
any part of
property
all or
his
UNITED
et
al. v.
HEALEY
pays a reasonable rental semi
he
vided
No.
part
property
annually
Appeals
Court
U.S.C.A,
possession.” 11
which he retains
Circuit.
Ninth
(2).
& Live
s,
Paradise
203 sub.
Land
6, 1950.
Dec.
Land Bank of Berke
v. Federal
stock Co.
Cir.,
net s, (2). 11 U.S.C.A. sub. property.” possession retains debtor If the it, part pay must
property property, is encumbered whether rental or whether the credi- unemcumbered *2 McTeman,
Margolis Angeles, & Cal., appellants. for Tolin, Atty., A.
Ernest S. Norman U. Neukom, Champlin, E. W. Herschel Asst. U. S. for Attys., Angeles, all of Los Cal., appellee. DENMAN, Judge,
Before Chief POPE, Judges. STEPHENS Circuit DENMAN, Judge. Chief These appeals are five judgments from contempt of criminal in which four were one, sentences or more and Averbuck, wаs fined $10.00 questions put to them in sessions grand jury. Each claimed the to refuse to answer on the ground that the answers would tend to incriminate. thirty persons
Each is one of selec- tively sought chosen and to be served around seven o’clock in the morning on October, 1948, appearance day 25th grand jury day, on before de- opinion scribed in our in Kasinowitz States, Cir., 632. Includ- thirty persons same appel- ed are the States, Cir., lants in Alexander v. United litigants F.2d 480. All these had attorneys, same thus had proved in the facts It is cases. stipulated that the records in the Alexan- cases, supra, part der and Kasinowitz are a record before the District Court in appeals the cases which the instant were taken. presentment states the inquiry course of “an asked employees
concerning certain Unit- Government, who had false ed agency to an of the Govern- statements jurisdiction ment, in matter within agency and connection of that with the on tried presentments were Before Gov- investigation loyalty Department ernment, of old Section violation June press published Code, Title 18 Title 18.U.S. Revised Justice June *3 at evidence admitted in release was of the other criminal laws C.A. and § Kas- and trial in which the Alexander in- pursuance In United of States. cases, this court pending then in inowitz it Grand 'qidry, necessary became for said of twenty and which involved convictions inquire offi- Jury to and ascertain the into group contempt persons of the same of Healey; identity Dorothy cial of one here, are appellants that includes five identity persons charge person of the or in part Department’s described as of the and records of An- books the Los of * * * against "Prosecution record or geles Party showing of The Communists United States. pertaining to the of said or- Department of continues: ganization.” (Emphasis supplied.) Justice against “Prosecution action in the courts presentment alleged The that further communists, in the United States was questions “each said answer [refused * * * follows: by proper appellants] was and material alleged “Sixteen communists have been Jury’s inquiry." the Grand (Emphasis in charges California civil convicted supplied.) Hence are to that the we assume contempt for refusing testify before a appellants refused an- Jury. Federal Grand Fifteen are out on swer requiring are those in bail, courts, pending appeal higher and person or persons the witnesses of the paid one fined was and charge of $2500 the books and records of the subpoena, obstructing thereby Angeles County and justice. appear He will be summoned to identity the official Jury Grand again. before the Conviction Dorothy Healey. If of the has by been to which answers were refused can be of affirmed Appeals 9th Circuit Court Franc San pur- deemed not relevant declared isco, ap F.2d 480. pose presentment, we assume peals the other 5 to the Circuit are not Court basis conviction. pending.” (Emphasis are supplied.) through The United Statеs its Assistant Attorney General Goldschein assured each reasonably add Such statements would that investigation witness did not in- apprehension appellants that volve- the that he witness and not un- danger prosecution under they were in investigation. purpose der of this was “membership” “affiliation” either “just put your ease,” mind at as stated Act, 18 U.S.C.A. clauses § 'by Attorney the Assistant General wit- conspiracy 2385, or it. As seen violate ness Newman.1 This is such conduct as is cases, and Kasinowitz the Alexander supra, discussed the Alexander evidence, appre- are whose records page F.2d at Court already by the New hension was excited Appeals for the Tenth Rogers Circuit against persons indictments eleven States, v. United 562. being conspiracy tried for then violate Act, however, appellants’ and the eleven indict- individual appears, It “membership” there in the Com- put these assur-. ments at ease not minds munist United States' Attorney General. Assistant anees you nor eral been for the assurancеs Further such employee (Emphasis sup- years.” Attorney past follows: are as three States plied.) investigating “Now, this investigating are not the Com- false “We statements statement false investigating employees We are not are now federal setup. government, We not investi- we are not investi- are employed with ref- official purposes, gating their of their convictions to certain erence materially.” gating associations, their activities that would in- so you all, you since not a fed- at volve presi- assembly to seek a give the defendants time society, group, and America “a pardon. the dential advocate who teach and Govern- destruction overthrow Smith v. United by force and ment of the States page at page violence.” Supreme Court questions, granting statutes United discusses' need for Underlying other giving because, though immunity compulsory the States unau- to make contends that testimony by statute, states attorneys for the of thorized lan- following full appellаnts offered im- must be “absolute” in the *4 munity guage “Through : Hitch- they testified, to ac- Counselman their refusal cock, 195, cept subsequent 547, the offer 35 L.Ed. makes re- U.S. testify im- fusal to the for which it that crimes was established absolute munity were prosecution convicted. Of their offer immu- from federal criminal nity, their brief must offers another assurance for offenses disclosed the evidence by appellants the person testify to relieve compelled minds the now be a to af- It before us. is 'that “it is ter privilege incоnceivable claim of against self-incrim- immunity by that once has been offered ination.” (Emphasis supplied.) government attempt the it that would It is obvious that to indicted be against turn any such evidence witness pardon right to seek a not is the “immu- good breach faith in which the as- nity” appellee’s brief describes as surance given.” “any attempt preventing to turn such evi- However, against any” their same brief calls our at- dence of them. As the Su- Cases, to the Whiskey preme tention states, accеpt U.S. Court to seek a pardon implies 25 L.Ed. where the United an of guilt. admission Attorney States, for Northern District of Burdick at Ohio a page offered witness immunity such page 59 L.Ed. from criminal charges against Supreme Court, for offenses im- contrasting the United States munity legislative revenue law if he would presiden- with a act waive his privilege against pardon, tial brings incrimination states: “This us to give testimony against legislative himself. This differences between immunity accepted offer the witness and, pardon. and a relying Thеy substantial. it, testified, only agreement to have imputation latter carnes an guilt; ac- prosecuted broken being ceptance the of- for it. The former confession of fenses. imputation has no such or confession. It is tantamount to the silence of the witness. Contrary gov- to the assurances of It is noncommittal. It is the unobstrusive here, Supreme attorneys ernment’s act of the given protection law against a 595-596, Court, U.S. at pages sinister use of his testimony, not like a Cases, per- of а Whiskey held pardon, requiring him to confess guilt his agreement not accepting such an son to avoid order a conviction of (Em- it.” “clear it is that cannot prosecute phasis supplied.) in- plead such facts bar of law him, against nor avail himself dictment elementary claiming It that in is trial, merely his for it is an testify against not himself mercy of equitable title to the the execu- guilt. may He admits well be witness tive, to the conditions subject before stat- entirely innocent crime for which ed, only come befоre can the court prosecution. may His he fears situation put application to off the trial way be like that law school discussed prisoner time give apply order to of the man has case made threats purpose. for that the executive Rex v. and, the life of a against murdered man Cowp. Rudd, 331.” along murder, pulls after happening remanded to the body The cases district the knife from deceased’s is court, postpone clutching Clearly which was trials to it. it is seen no admis-
sion guilt testify to refuse the books and of the Los records There such threats. Party?” is no merit the contention that because We have held in Alexander v. appellee’s appellants immunity offer of 480, 485, contempt thereafter committed criminal where in such a secret testify. organization may criminal later be charged, are within the distinguishing regarding A factor privilege against self incrimination. questions, the which were re- answers to appellee contention, offers ex- new fused, required is that the cept Appelman, holding as to criminal organization an contact with questions. refusals to answer such It which well be to be shown organization because the criminal purpose overthrowing gov- criminal ultimately may shown to “books be organization ernment force. Such an necessarily and records” its con- secret necessarily probably a secret one duct, answered, must keep would of its criminal records *5 may since answering prosecution the be particularly of “the member- activities discovering aided in whether there are organization” ship said stated in the and, exist, they such books and records presentment. The to answer compel then find out who has them and require questions the the well could production. their to “in the secrets” witness organization the answers de- criminal devastating There an obvious would be no prive he had him of his defense that membership charge trial on effect a with it. connection whatsoever organization a secret criminal in such admission, “Yes, I know the accused’s asking for Typical questions are the They are held and con- has its books. procedures of organizational structure and Nothing would cealed Smith.” John County Communist Par- Angeles the Los be left his defense that had never us who you tell is the ty, such as “Can person in the had connection with southern of the Los division head of trial, organization. prior And what Party?” or Angeles County Communist Investiga- the Federal Bureau of a lead to many you divisions there tell us hоw “Can investigate to rela- tion details Angeles the Los Angeles Los or are tionship dealings between the witness County Party?” you or “Can Communist (cid:127)and Smith! or whether or not us tell would have a list Appellee social director cites authorities considered Angeles County of the Los Com- and Kasinowitz cases. members in the Alexander Party?” asking Bryan, and those Among are States v. them ¡where holding offic- described per identity 70 U.S. S.Ct. 339 County Communist having possession Los of the books of an es son Party. questions legislative asked in one before com These association was a you andj deliberately “Do obey know who —” forms: mittee two them, designated position) produce office or or (holds committee’s order per- of—” (the the name you tell us in willful default under R.S. held “Can was § designated posi- 102,2 White, or 322 holding the v. U.S. office son develop designed to Doro- where tion), and with a Healey’s grand jury An- a so re person connection Los such before thy obey Also These such an order. cited is fused geles Fleischman, the identical ones range from United States supra (Do 349, where a member of the Kasinowitz in the involved Healey? Dorothy (which of an business board association executive you know —her compel power secretary its to such as “Did had the occupation?) Dorothy Healey produce records) its effort Mrs. see you ever 2. 2 192. § U.S.C.A. Healey and compliance subpoena regard With to Mrs. with a
bring about
government was
to the records which
Congressional
issued
Committee
seeking
at
production
held in
show
cause
existed
their
and was
May 26,
government
willful
session of
default under R.S. §
party
evidence,
offered
a former
holding
Appellee
cases
also cites
member,
existing
sum
of conditions
where
records of an association
mer
over
and a
before.
half
produced
produced by
cus-
or ordered
their
It is
Healey
to the effect that Mrs.
then
todian,
give testimony an-
he must further
organizational
was
secretary and member
cillary
organization or or-
thereto as to the
ship
controlling
director and that
had
she
ganizations
Such cases are
cover.
position
in the Communist
executive
Corpora-
Bagley
United States v. Austin
Party;
she
then
control
was
tion,
Cir.,
229, 234;
Lumber
31 F.2d
day to day
party
member
activities
States, Cir.,
Ass’n
Products
v. United
ship
officers;
and its
that she
had her
then
553;
54-6,
United States
Illinois Al-
office
An
W. Sixth Street
in Los
Unit,
cohol
149 and
geles;
that the then
An
head
Los
States v. Greater New
Live
Nemmy
geles Communist
was
Poultry Ass’n, D.C.N.Y., 34
F.2d 967.
Sparks whose title
“Chairman of the
was
testimony referred
as “an-
such cases
Committee”;
County Central
and that
cillary”
records is that of their cus-
charge
Mrs.
then
Healey
was next
“ancillary”
The word
not held
todian.
“Organizational Secretary.”
per-
cover
testimony
further
testified that
records,
The informer
charge
sons not in
Ángeles
in the sum-
proof
lead to
existence and
*6
divisions,
mer of
was divided into
existing
if
who is their custodian.
into
divisions into sections
the sections
and
Appellants
contend
cases are dis-
clubs,
belongs,
to which each member
tinguishable
in thаt the
in control
made
a written statement was
of the records were not
of-
holding their
member
delivered to the head of the
fices in
pur-
an association whose whole
he belonged.
club to which
pose
criminal,
e.,
i.
to overthrow the
government by
do
agree.
force. We
On
testimony
this
con-
informer’s
it is
If
produce
officer must
the records ceivable that
in the summer of
Mrs.
though incriminating,
it is no excuse that Healey
of the
party
was an officer
he holds them in a criminal venture.
might have bеen the custodian
or in
of
existing.
control of the records then
How-
see no
in these
We
relevance
cited
ever, that, despite
prosecu-
the New
except
Healey. Appellee
cases
as to Mrs.
policy
tions and the
the Attor-
declared
of
any
appellant
does not contend that
other
ney
General,
May
she retained until
person,
officer,
is a
much
a member or
less
position
an official
which she
Party
of
Angeles
the Communist
of Los
waived her
cоnstitutional
to refuse
possession
any
who has in his
or control
give incriminating
testimony concerning
position
or
its records
is in
to cause
possession
records in
control,
her
or
is as
Indeed,
their production.
none.save Mrs.
Supreme
recently
Court has
said “not
possessed
Healey
asked
any
if he
rec
lightly to be inferred” nor determined
Appelman, Averbuck,
ords.
We hold as
“upon vague and uncertain
evidence.”
and Newman
they
Greenfield
had a
apprehension that
reasоnable
the answers
1000, 1007,
pellee’s Angeles her conviction and Los Committee here that contention Party; 2, records show- books and justified. paid dues members of the Commu- ing the six be noted that all It will nist Los Party Angeles and the Los Healey’s present concern Mrs. Angeles Par- Committee оf the Communist records, that she having testified she ty ; 3, questionaire mimeographed sheets all; records (a) has control of filled out the Communist members of them; (c) charge (b) never was Party Angeles Angeles Los Los and the (d) possession in her never had them Committee of the Communist anyone under were not produce membership “I any unable am all questions, direction. The six her Los records present tense, are: Angeles Angeles or of Committee you who “Now, Healey, do know Mrs. Party, of the Communist or Los An- thе books and records has subpoena asked for in records duces Party? geles County Communist tecum, possession, because I do not have custody control or to any access has the record you us who “Can tell records. paid by the showing the dues Par- the Los “As fact, matter do not I know of ty? existence records questioned me or you any rec- “Now, Healey, you us Mrs. can tell subpoena ords described in the duces tecum anyone give that in- name of can us referred, to which I rеcords just you? formation I asked showing whatsoever the names of mem- available, is information is “But that bers of the Communist of Los An- *7 not? geles Angeles of the Los Committee Party.” the (Emphasis sup- or social director membership “Does the plied.) list the member- each division a ship of that division? Here, effect, an is answer' to questions. the “I do not know of ex- the membership director and not "Do the istence of such records.” Such testi- the books and the financial director have mony layman of a dоes not seem crimin- (cid:127) Angeles Com- of the Los records contemptuous ally conduct. Party?” (Emphasis supplied.) munist the nothing is record 'before us There to the ordered her return The court Mrs. which will warrant inference that again them. She grand jury Healey perjury in such giving committed privilege further testified but her claimed testimony as her condi- of the existence of not contrary, that she did know obvi- tions in 1949. On is showing the member- quite likely criminally of the records con- that ous records, 1947, Her testi- they if existed in had ship victing ques- destroyed3 Yet someone. by been mony is Attorney seen, For, and a of the General within this announeement as grand jury prior of the that the Communist Unit- session half sought May alter the form of indictments ed States came 1949 government unconstitutional means. for violation of the New statement Also was the the Com- Act Attorney seeking in the Ex- one as over- 27, 1948, by force; government of October aminer admitted throw
171
corporate documents,
v.
their destruc- of
United States
concerning
tions were asked
Cir., 31 F.
and,
Corporation,
contents.
destroyed,
Austin-Bagley
tion
their
Healey
229,
Austin-Bagley
2d
It
is
certiorari
denied
cannot
Mrs.
be said that
863,
Corporation
States,
unavail-
U.S.
responsible
shown to be
their
ex-
Yet we do
ability
by not
L.Ed. 1002.
justice
or is
S.Ct.
impeding
Aus
principle
not
plaining
happened
what
to them.
believe
projected
tin-Bagley
supra, may be
stated
situation is
corporate
so
com
that a
officer
U.S.
Bryan,
United States v.
pelled
phases
testify
and all
as to
duty
of an
respecting
corporation’s activities,
without at
“Ordinarily, one
officer of
association.
an
grant
same time
immu
obtaining
charged
contempt of
for failure
with
court
nity for
matter
com
comply
order makes a
court
compelled to disclose.”
plete
proving that he is unable
defense
Beyond
testifying
records in
imprison
comply.
A
will not
court
possession
his
under the control
produce documents
witness for failure to
officer,
language
he can in the
of Wilson
not have unless he is re
he does
361, 385,
v. United
U.S.
S.
sponsible
unavailability,
cf.
Jur
538, 546,
Ct.
55 L.Ed.
“decline to utter
MacCracken,
ney
supra
[294
upon
single
the witness stand a
self-in
impeding
802],
or is
79 L.Ed.
criminating word.”
justice by
happened
explaining
not
what
them,
Goldstein,
judgment
ap-
States v.
of conviction of each
pellant
150.”
reversed.
Furthermore,
Healey
even if Mrs.
POPE,
Judge
Circuit
(concurring).
had not answered the six
my opinion
required
same result is
appellee
to sustain
relies
Mrs.
apart
wholly
from what is said about the
Healey’s conviction, appellee cites no case
assurances
witnesses
extending the doctrine of
of im
absence
prosecutor,
press
and about the
releases of
munity
holding
officers or
rec
Department.
opinion
The court’s
sug-
ords of such an association to
gests that
the assurances were false.
I
them,
questions concerning
as to
holding
think that if we
assume
were true and
possession
the records
some oth
Department’s
it was the
present
in-
er person.
is not a case
It
where Mrs.
tention
proceed
nоt to
against
wit-
accepted
Healey had
the office of custodian
nesses,
investigate
or to
them, their right
records,
Second Circuit
*8
to refuse to answer
less,
would be no
Bagley
case
v. Austin
States
their privilege
dependent
Rather,
ities in California investigation ‘top dergo to bottom’