*1 court compelled King, Cir., him to take the stand 110 F.2d And the trial against again, a witness himself be we have said that Congress un- is, Amendment, in violation of the Fifth has deniably power pro- to make such however, one that on face 'is such vision its for the medical care and treatment challenge fundamental nature notice prisoners up federal to set such ad- by require a court and examination. This ministrative machinery determining a so, is both as vindicating prisoner’s a matter of an need care and treatment and right absolute and as a matter safe- thereof, the nature right without the guarding judicial It hard- hearing, 'administration. formal it deems -advisable. ly possible any to believe fed- seems King, Estabrook judge compel eral accused to take 609, 610. the stand at his will against trial said, On the basis of what we have himself, against appellant be a witness judgment dismissing appellant’s is petition categorically charge. peti- makes the reversed, remanded cause is tion does not set out the un- circumstances directions to take such proceedings as der which compelled he was take necessary be to examine stand, interrogation or the nature of the appellant claim him, judge which he claims the n by judge take the stand at his trial possible is this omission is against and be a witness himself. course, Of deliberate. fact should Reversed with directions. remanded charge utterly is that the without obviously perjurious, foundation and is
irresponsibility knowingly making might perhaps
such false accusation prosecutional consequences. be without actually But if there such a fla- has been appellant’s grant right violation of charges, necessarily conviction polluted that it cannot stand. Whether question preliminarily ap- shall UNITED DAISART STATES v. SPORTS WEAR, Inc., et al. proached requiring appellant to set out petition, facts an order No. Docket 20978. upon appellees cause, or whether show Appeals Court Circuit issue, immediately shall writ Second Circuit. for .the trial court’s discretion. Aug. 23, 1948.
Appellant’s other two contentions require wholly without merit and are petition a passing observation. While the judge sign alleges that the trial did judgment, transcript certified pellees permitted lodge judgment
court shows that bears judge’s signature. As contention appellant’s transfer confinement illegal
in the U. Medical Center were S. process, and violative of due because he given hearing his need for treatment, pre such care and we have viously determination held
prisoner’s mental and need condition
treatment, pursuant to 18 U.S.C.A. trial, judicial without “no does vio rights.” Douglas lence his constitutional *3 Sportswear,
Affirmed as to Daisart Deeb; part Albert affirmed in J. George reversed Smith. Hart, R. Brooklyn, Walter N. Y. (Louis Brooklyn, Y., Timberg, on N. defendant-appellant for brief), tlie Smith. Siegel, City, Morris New . York for defendant-appellant Deeb. Block, Atty.,
Frederick H. Asst. U. S. City McGohey, York F. X. (John New U. Atty., Schachner, S. Bruno S. Asst. U. Atty., City, New York both of
brief), respondent-appellee. for HAND, SWAN, CLARK, L.
Before Judges. Circuit CLARK, Judge. Circuit appellants, Sportswear, The Smith, Deeb, Inc., George Albert J. charged sep two were offenses two misusing priorities informations for arate under 301 established Second War § Act, 633; U.S.C.A.Appendix, Powers § indicted, were addition under and in conspiring 18 U.S.C.A. to violate § Emergency Price Control Act of U.S.C.A.Appendix, seq. et forty-one counts, was of information first alleged that defendants in substance and it wilfully unlawfully and failed to utilize textiles, appli result of the received ratings, prescribed extension cation of information, The second use. permitted counts, HAND, alleged Judge, number that de in of a like dissenting Chief L. unlawfully wilfully ap- fendants part. plied ratings for While raised preference various have been issues extended appeal, pre- entitled to there one which were not textiles namely, sents a ply Finally, question, indictment serious whether extend.1 gained immunity fin conspiring sell defendant them a result of an official piece testifying before ished excess of the Office of in re- Price Administration maximum established therefor. sponse subpoena issued office. the two informations indictment and appearance agency His was on before that All tvere the de- consolidated trial. April nearly year before the guilty on indict- fendants were found present charges made, pursu- and was informations, however, ment. On the two *4 ant him— subpoenas to two served by ac- certain eliminated either counts were capacity, one the in individual and other tion of the court or verdict corporation. as officer of the defendant guilty, corporation Smith that By required produce he to these thirty-five guilty were counts found purchase invoices, records, records, sales each, guilty while Deeb was found journals, books, ledgers, cash disbursements aggregating five each. Fines counts of ledgers, pay- accounts receivable accounts $710,000 thereupon imposed on the were ledgers, able other records and docu- and all corporation Smith, and in and addition individually of either the ments himself Smith a total of three sentenced corporation pertaining purchase, the years’ imprisonment. Deeb fined sale, fabrication, fin- manufacture, and/or $20,000 imprison- total of sentenced to materials, piece goods, ishing and fabrics year day. for ment and a 1, 1945, January from of the ex- to the time Viewing aspect evidence in the its He at the examina- appeared amination. support jury’s most the favorable ver the oath as tion with counsel took wit- dict, States, Phelps Cir., 8 United 160 F. explained Next the OPA official ness. 858, 868, rehearing 2d denied Peters v. him that he could not be make States, Cir., 161 United 8 F.2d we that he incriminating statements established,; treat following the facts guarantees. The had certain constitutional secretary Sportswear, Smith was of Daisart questioning then followed. for was a Dur Deeb salesman it. questions preliminary After a of a few ing years the the defendants germane before nature and applied certain priority and extended rat educed, however, present issue had ings Board, orig of the War Production “privilege asserted a claim of inally granted Disintegrating the Metals say.” response anything In to fur- Company, purpose obtaining for the cer questions explained failure ther he tain The defendants materials. certified required produce any records goods to be used they subpoenas had been on the ground ammunition powder bags manufacture of destroyed misplaced. Dur- either lost Army and, by top for using priorities, he the course the examination stated acquired a half yards some two and million Actually, corporation piece goods. however, that the con- defendant only 49,000 yards for pur Disintegrating used the certified tractor for Metals Com- required pose, a canvas which material of pany, under contract turn was white duck color. The grayish bulk of bags directly ammunition manufacture for acquired, including fabrics of all United Government. Since States descriptions sorts materials, was divert company purchase was unable to colors/ handkerchief, dress, negligee, ed civilian it, said, asked him to do so he had so and manufacturers at and raincoat in ex priority provided him blanket with a rating ceilings. cess of purpose. Accordingly, for that testi- recipient original explained obtain terms are These Unit fied supplier Bradford, from who then commodities
ed States
729,
rating
(uses)
to secure the
extends
certiorari denied 331 U.S.
subsuppliers.
preference rating
A
needed commodities
we shall
examining
In
of ma-
contention
fied,
stock
a constant
maintained
charges contained
initially
ammuni-
consider
terial
manufacture the
and would
As
from the
two informations.
we
bags
tion
were received
as orders
seen,
alleged
defendants
He
first
Company.
also
Disintegrating
Metals
ob-
unlawfully
had
failed to
textiles
a con-
utilize
brought
corporation was
out that
well,
preference ratings
tained
under
many
tractor
concerns as
other
purposes certified,
alleged
while
companies. He further
the second
naming in all five
wilfully
unlawfully
ap-
had
concerns
revealed
names
three
plied
preference ratings
extended
purchased fabrics —A.
from which
Co.,
proof
charges the
Co.,
&
and textiles.
In
of these
L. Lazarus
Steinam &
prosecution
necessarily
show the
figured
These
Southeastern Cottons.
dealings
information,
Disintegrating
Metals
some
counts
each
fifteen
pur- Company,
trial,
preference
making
the use
a blanket
and at the
as sellers
commodities,
rating obtain the
whom the
il-
desired
chases from
defendants
legally
specific preference ratings.
from which the materials
extended
purchased,
disposal
had been
name
Other
disclosures included the
surplus stock,
*5
corporate
and the
which the
checks
to which
bank
it
purchases,
last,
had
paying
Except
such
were
for
been sold.
drawn
fabrics,
gave
Smith
information
to all of
materials and
these
of
selling
establishing
price
matters on his
examination.
for
OPA
His
method of
immunity
claim of
would
be clear
such
therefore
sales.
except
circumstance,
for
now to be
vitally
All this Smith asserts
im-
to
stated,
waiving immunity
of
as to a
his
portant
very
which
evidence
went
testimony.
of his
of
on
his convic-
heart
the matters
which
already
He had
generally
tion rests
claims immuni-
to all
for which he
testified
ty
Emergency
except
202(g)
under
elements
stated
Price
§
above —
purchasers
U.S.C.A.Appendix,
surplus
names
which
Control
Act of
he never
922(g).
provides
person
that no
he
This
did disclose—when
volunteered
§
complying
any
following, supplementing
shall be
from
with
excused
not
too re-
sponsively
just
requirements
testify
the act
he
under
answer
had
made to
“be-
a specific question:
privilege against
Disintegrating
cause of
self-incrim-
“Metals
ination,”
Company
immunity
being
foreign
provisions
but the
a
concern and
be-
February
Testimony
material,
they
Compulsory
Act of
unable to furnish this
11, 1893,
me
apply
purchase
asked
49 U.S.C.A.
shall
“with
materials for them.
respect
any
They were
that I
specifically
individual
cannot
that with-
who
aware
do
proper priorities.
out
privilege.”
priorities
Compulsory
claims such
Those
provides
person
forthcoming
Testimony Act
no
blanket sum.
No
stipulated
testifying
I
shall be excused from
amount
before
and was further
told
any
Interstate Commerce Commission
on the
a constant stock
or-
maintain
they
privilege
may
ground
Sports-
this
ders
I
then continues:
call. mean Daisart
person
prosecuted
any
they
“But
shall
or sub- wear
no
orders
call for.
any
jected
penalty
or
Their
me
forfeiture
orders came to
for or
sometimes dated
any transaction,
specified
and never
on account
set size
form.
n
They
testify,
day
which
thing, concerning
day.
from
I
then
evidence,
purchasing
went
produce
documentary or
about
material
other-
for their
commission,
wise, before said
or in
I
surplus,
obedi- work. When and if
had
I
subpoena,
subpoena
notify
ence
or the
they
to its
them and ask
them
had
them,
pro-
immediately
or in
such
either
case or
on
anything
hand as
am
ceeding,” except
perjury
overstocked,
committed in
which time
told me
position
that,
testifying.
Smith’s
had
and to
it.”
since
Then
compelled
malee the
voluntary
disclosures
the examiner said:
is a
“This
above,
granted
inmmunity
he must be
detailed
im- statement. You
claim
do
prosecution
munity
provided by
respect
statement?”
with
to that
stat-
was,
ute.
answer
“No.” There followed cer-
answers,
explanatory
forth in the which conviction
Thus
volun-
tain
set
was had.
dealings
Dais-
statement
margin,2 which
the use
teered
disclosed
reiterated
ratings
Company
the Metals
Disintegrating
to ob
preference
art of the blanket
use
disposal
preference rating,
blanket
tain
the material
well
material and the
disposal
surplus
con-
stock. His
sale.
viction
dealing
on
this
counts
this account thus to
cer
While
much of the disclosed information musí
testimony previ
overlapped
tain extent
therefore
But
he has not
stand.
since
clearer,
ously given,
more
once
was at
immunity
respect
waived
earlier
connected,
statement
more succinct
Co.,
Laza-
disclosure
&
L.
that A. Steinam
opera
Smith’s
method of
and the Daisart
Co.,
rus &
Cottons were
and Southeastern
than
disclosed.
previously
tion
been
corporation,
sellers to
he cannot be
immunity
It well
settled
extends
prosecuted
based on trans-
counts
testimony and,
indeed,
companies. Specifically,
actions with those
applied
we have
of waiver of
the doctrine
then,
following counts
his conviction on the
where the
under circumstances
reversed,
each
must be
information
intent of
was less clear than
witness
14, 16,
namely,
1-4,
Counts
DeLorenzo, Cir.,
here. United States v.
24, 30.
So we must note that 279 U.S. 49 S.Ct. 73 L. here ed repeat specifically he does believe that Yet we do not or indeed Ed. 1002. case, Austin-Bagley supra, mention the from which principle Daisart of the purchased corporate had may projected material. He offi does refer to be so that upon testify certain compelled matters which were may based some as to cer be corporation’s of counts phases of of the activi- informations anything pursuant “Question: that assume And that that “Question: you us, subject Smith, acquired priority, tell Mr. is to ver thereafter ma- Daisart terials, ification? You that after state time used in some which were Disintegrating Company, bags although Metals of ammunition Met- manufacture als, disposed government, by
it had a contract of it some was position you Daisart, in was not to furnish Answer: Yes. is correct? necessary disposals by the materials for Daisart “Question: And those Right. good part manufacture this item? Answer: Daisart formed a of the sales And that of that because fabrics made Daisart? Answer: situation, required They Daisart obtain did.” priorities so that Daisart could obtain the materials and that it did so? An- : swer In a amount. blanket spiracy they piece in obtaining had sold finished ties, the same time without at incriminating prices. excess of such maximum This immunity for grant of indictment; gravamen essential compelled disclose. matter he is de parts only accessory other referred point made further is tails such issue false invoices effect, up Smith, in but summed what sellers, the lack and invoices from fictitious Cou corporation contained. books invoices, proper accepting checks in an pled with this is the contention sellers, the failure drawn to fictitious compelled give tes oral dividual keep required by As we records OPA. timony explanatory his records. that is seen, he volun Smith in statement Silverman, 29. Fleming v. F.R.D. D.C.Ill. declared teered OPA examiner to the re recognize if had been We surplus mate told quired reports pursuant to OPA’s to submit hand, rial further that such he had on requirements, then record-keeping the sale of disposals good formed if not claim could supplement This fabrics Daisart. States, Shapiro produce v. United them. that Daisart had ed earlier statements pro think, though, We purpose re bought for the sole textiles distinguished duction records must surplusages, selling, but had sold what the rec oral surplus, it was that “since was sold it contain, pro ords price plus freight billed me haul Fleming language duced. Some v. Sil 3 It age and allowed to me.” less discount Heend, verman, supra, as well as Porter quoted just will be seen that the matter sup D.C.Ill, tend to 6 F.R.D. explicitly, included matter not yet, position; the Government’s port statement; immunity, the volunteered case, expressly the former found any, solely by of it. must attach reason that the defendant disclosed incrim contention that this was There facts, and the latter involved inating price; in fact there was testi overceiling discovery serving of in process of contrary, mony prosecution to the terrogatories defendant. prosecutor in summation and that, reasoning the latter case is court’s rely on Government’s brief here *7 Government could have since the ceiling the a statement of sale within records, the it could re the submission prices. interroga quire to answer defendant immunity How far can be claimed in detailing information contained tories statement, in flow from however false cases, not Both the records. were civil fact, maintaining that one is ob- showing dealing imposition of criminal with the present interesting serving an the law penalties. Here the matter disclosed was Wigmore question. suggests that Thus question incriminating, there was no by hypothesis, privilege, would have “the records, forcing production of the since only truly if the witness had been violated destroyed. In con
they were lost either crime, but denies it confessed his if he very that would incrim sequence the falsely himself, he has confessed exonerates lips forced from inate had to ” 8 ‘against Wigmore on fact himself.’ no himself, rather than obtained defendant 1940, Evidence, Here, how- 3d Ed. the records books. different, ever, question is our somewhat partially waiving namely, a witness how far stated, principles we On the have reasonably be immunity considered can Smith did not obtain immuni think that we doing. The whole tenor gone in so charged in ty to the crime the indict as statement volunteered is that charged indictment the defend ment. The sales, perfectly just as making valid conspiracy to sell textiles at ants with explained; the fact that previously of the prices in excess established maxi repeat OPA part formula not here as con- he does mum discounts, question freight plus cash or next less Reiterated Sports- answer, viz., words, otherwise, Daisart In other received Sportswear Inc., sold Inc.? Answer: Correct.” at cost wear
8G8 or no new for which (which course news he was But the evi- was of convicted. pro- appears ample. True, not now dence examiner) lead to should Smith was the which, seems figure transactions, as it master illegal cure him an in these dollars, time to us, clear did intend totaling thousands of the court as meting stated ac- claim. out sentences to the connection, But Deeb had close cused. too here, as in It be noted should by way making sales, actual taking DeLorenzo, supra, ac States v. United proceeds, giving on the Dais- instructions bring about testimony tual used materials, art appearing letterhead as to as here limit the conviction itself. The court salesman, vouching Smith’s for the ficti- entirely transcript ed the use of the tiously persons through whom Smith named against corporation whose officer case operated, on, ap- to allow him so it not as to was and excluded pear principal, not as a real as a true, Smith, Deeb. It is but also as to mere broker. complain, prose individuals both refer to it in his summation cutor did Finally, objection there was to cer against them, answer and stated prepared by tain agent charts an F.B.I. quoted knowledge of showed Smith’s above case, based on the in the evidence and the prices. ceiling But was a actual this agent’s testimony respect thereto. slip objection at the which no improper defendants contend that carefully specifically The court time. a witness to summarize evidence in to be such But United States a fashion. v. John determining way considered son, 503, 1233, U.S. L. guilt or innocence Smith and Deeb. propriety is authority for the Ed. testimony. such assigned The other errors disposed briefly. We think the con Hence we affirm all convictions of Deeb in of the two informations solidation Sportswear, and Daisart reverse the purposes proper. dictment for trial was conviction 1-4, 7, of Smith Counts complies 8(a), with Rule consolidation 11, 14, and 30 each in- Procedure, Federal of Criminal U. formation, Rules and affirm balance as 687; following the offenses S.C.A. section jury. found This will reduce the certainly based con on “transactions total amount of the fines levied Smith, together.” identity nected There was but will not prison affect his sentence. charges, defendants under preference ratings
unlawful extension of
HAND,
L.
Judge
Circuit
(dissenting in
selling
obtained at
part).
overceiling prices
single
were all
of a
agree
*8
my
with
except
brothers
States, Cir.,
2
scheme. DeLuca v. United
the conviction
the indict
741,
States,
299
and Castellini United
F.
v.
ment,
I
ought
which
think
also to be re
only
Cir.,
by
6
64
cases
F.2d
cited
language
versed. The
of the act1 is that
defendants,
them;
will not assist
prosecuted
one shall
“on account of
overruled,
(which
former was
the latter
* * *
any transaction
concerning which
hardly
point here)
disapproved,
* * *
testify
may
he
in obedience to
Kelley, Cir.,
2
105 F.2d
in United States v.
* * * subpoena.” There can be no de
United
See
States
Antonelli
also
v.
questioned
bate that Smith was
and testi
Cir.,
Co.,
2
certi
Fireworks
“concerning”
prices
fied
at which the
49;
329
denied
orari
U.S.
sold; and,
company
as the indictment was
Gottfried, 2
F.2d
United States
conspiring
higher
sell at
prices
than
Gottfried
denied
United
certiorari
allowed,
regulations
testimony
his
in
States,
U.S.
precisely him from exists; indeed, price very immunity. sales privilege ment that the charge. him, compel if he was be to in kernal result would Evidence, 2282(c). 2 Wigmore volume of sales of fabrics was the dollar’ you Sports- fact But state the and materials made “Question: do and fabrics no knowl- of materials wear Inc.? Answer: that sales Sportswear edge by Daisart Inc.? Without records I cannot that. tell. Correct. Answer: you “Question: tell me Dai- Are there such records Can how “Question: Sportswear arrived at its sell- Answer: There are available? my sart respect knowledge. price to the items surplus, you names it was Can tell the sold? Answer: Since plus price persons purchased me sold at billed to it was who *9 haulage piece freight al- and less discount materials fabrics Sportswear Daisart Inc.? Off to me. Answer: lowed words, other Daisart hand know. Not without consult- “Question: In I don’t plus Sportswear freight sold at cost records. discounts, otherwise, You don’t “Question: remember cash less Sportswear names? Answer: off I Inc.? Not hand. could received some, rather Correct. not an- Answer: name year For what swer.”