*1
2518(3)(a)-(d).
U.S.C.
judge,
§§
denying
and in
issuing or
appellant’s constitu-
did not violate
years.
This
kept
ten
for
be
shall
event
however,
right,
there was
because
tional
Although
have
should
court
the district
independent
con-
adequate
information
lan-
the literal
paid
to
attention
closer
justify
find-
tained in the affidavit
requirement,
statutory
the
guage of the
ing
probable
United
cause. See
of
constitute
sufficient
variance
799,
(3d
Sterling,
v.
States
apparent purpose
The
error.
reversible
probable
1969).
judge could find
A
Cir.
by
sealing requirement,
shown
of the
information
of the
on the basis
cause
provided
leg-
2518(8)
by
(b)
its
and
rest of
the
§
informants,
the af-
the
justifies
history,
this conclusion.
islative
for
standards
meet
the
fidavit does
designed
en
The section was
Aguilar
probable
forth
cause set
applications are
that the orders and
sure
Texas, 378
84 S.Ct.
U.S.
Moreover,
the
confidentially.1
treated
(1964),
Spinelli v.
L.Ed.2d 723
sen
in the last
on
limitations
disclosure
States,
the
the
indicate
of
section
tence
(1969).
a storing
the documents violate stat
ute, specifically cus since it states
tody directs.2 shall be wherever court 2518(8) (b)
Thus, is read when § America, UNITED STATES light legislative purpose, it is of its Plaintiff-Appellee, apparent procedures that the followed were not erroneous. While case Kathleen L. Newt W. GOODWIN appropriate, and would have been more Defendants-Appellants. Nail, future, recommend it for we judge for No. 72-1882. agent rather than the Appeals, Court United States sealing documents, sealed would his Circuit. Fifth confidentiality have added Dec. 1972. the documents. Rehearing Rehearing En Banc Appellant alleges that his Denied Jan. 1973. right infringed fourth amendment by the failure of to turn Government inspection tapes, over him for certain the contents of which to es were used probable wiretap
tablish cause provision report congressional discussing re- 1. 2. identical The commit In explained custody lating tee of the records that drafted the statute report congressional solely requirement interceptions, function agency’s protecting confidentiality enforcement terms “Most law noted: Comm, supe- safekeeping will facilities for sensitive information. See [sic] Senate agency Judiciary, Report nor- on on the court’s and Omnibus rior mally custody. retain be ordered to Streets Act of should Crime Control Safe Cong. 1967, S.Rep.No.1097, Cong., .” Id. 1968 U.S.Code 90th 2d . . (1968), reprinted in Ad.News 2193. Sess. 105 1968 U.S. & Cong. pp. 2112, Code & Ad.News *4 corporate creditors lants to the hearing the bankrupt and to the court matter. jointly
Appellants six distinct raise appeal, the first points of error in little trouble five of which we rejecting. to.be meri- we find The sixth Nail, appellant and we re- torious as to Appellant Good- her verse conviction. Metairie, III, Summers, A. William however, conviction, all win’s La., for Newt W. Goodwin. appellants' things affirmed. Because Orleans, La., primarily events points concern Stamps, of error J. New Robert during of their course occurred L. Nail. Kathleen for trial, case facts of this discuss the Gallinghouse, Atty., U. J. S. Gerald point only they each raised. relate to Cazalas, Livingston, Mary Robert J. La., Orleans, Attys., New Asst. U. S. I. States. Appellants their first assert as *5 GOLDBERG, COLEMAN, and Before judge to refused the trial that error Judges. GODBOLD, Circuit dire jury question voir at that ask a the requested pursuant appellants to had 24(a), “[W]ould Fed.R.Crim.P.: Rule Judge: GOLDBERG, Circuit upon predicated the jury . . the . Appellants, L. Kathleen Nail and [appellants] did not if indictment and Goodwin, bring appeal Newt W. hold this fact . . . take the stand against [appellants] judgment of entered from a conviction judge The trial ?” guilty jury after a found them on all request he reasoned the when refused indictment counts charging a seven-count unequivocally (1) jurors had that the having them with violated 18 agreed any he instructions to follow by knowingly and fraudu- U.S.C. § might give them, appellants (2) if had lently transferring concealing prop- and the submis- stand not taken before the erty bankrupt corporation of a with in- case, the instruct the he would sion of bankruptcy the tent defeat laws. ju- fact, (3) ignore and jury that Goodwin, Nail and who are sister ig- expected to could therefore be rors brother, were one time of Mr. at officers testify, if that appellant’s failure nore Shop, Inc., corporation. Mod a Louisiana Appellants developed. sub- circumstance alleged in It was the indictment and testify, and the sequently declined to by jury found adjudication that from time of jury accord- judge instructed trial Shop, Inc., of Mr. a Mod as ingly.1 bankrupt until the date the indict- necessarily 24(a) vests ment, only part Rule the cor- of the assets of re- judge discretion poration by appel- with wide trial made were available provides “Now, specifically in this case of the defendants 1. the law failure persons standing witness stand in take the that trial Federal presump charges violations, no behalf creates on in their own Courts criminal per you they be, request, against not them and must their own but at tion slight weigh in otherwise, competent even witnesses at mit this fact time, degree against law, In defendants. trial. The the same said est subject you traditionally provides fact, mustn’t allow that the failure on your part into discussions of the to make such even enter defendants jury, request your man a a deliberations a shall create person ner, presumption whatsoever.” so jury Therefore, failed charged standing that trial. is no There you expressly the instructions court. instructed that to follow are Roberts, garding manner which the voir v. States d.2 dire conducte See United 930. is to be Gassaway, 5 Cir. 456 F. States v. Appellants 2d have cited us no cas III. supporting suggestion es re their argument Appellants’ is third fusing question to ask the instant they prejudiced by the erroneous discretion, abused we find that Spe- certain evidence. introduction requested 24(a) failure a Rule to ask cifically, they complain that Donald L. question does not amount an abuse Hughes, agent quali- FBI an who general ques if discretion the court’s accounting, expert fied at trial as an tions, coupled charge with its to the province was allowed to invade the jury, party protection a afford jury giving opinion testimony. by sought. Gassaway, su United States urge They er- further this asserted
pra;
Jackson,
States
Cir.
compounded
ror
when
tabular
1971,
899
“summary”
dence and the
of other wit-
indeed admitted
was
One
agree
itself
evidence,3
with
nesses. Since the chart
was thus
into
but we
g.,
admissible, see,
government
met the
e.
United
States
that
this evidence
using
supra,
Kane,
was no error in
applied
United
there
in this
tests
Circuit.
77,
help
only
1971,
jurors
Kane,
as a visual aid to
450 F.2d
5 Cir.
States v.
summary
understand other
before
85-86,
charts
evidence
them.
that
makes clear
ordinarily
the trial
are
admissible
following
discretion
court’s
when
IV.
are
conditions exist:
the charts
based
Appellants’
point is
fourth
an
upon competent
before
evidence
prejudicial
com
error
assertion
primary
jury;
evidence utilized
admitted, as
trial court
mitted
when
construct
the charts is available
“system
intent,”
proof
evidence
comparison
in order
other side for
occurring
the transac
of events
summary may
correctness
after
in the
This
named
indictments.
tions
tested;
person
prepared the
who
argument
rule is
The clear
must fail.
is
charts
available for cross examina
although
introduced
a
evidence
tion;
jury
properly
and the
instruct
only to the
criminal
trial should relate
concerning
ed
their
consideration
prior
specific
charged,
or subse
offense
charts.
See also
v. United
Gordon
quent
may
incidents
be introduced
es
858;
States,
1971,
5
438 F.2d
Cir.
reg
possessed a
that a defendant
tablish
States,
Baines v. United
426
Cir.
knowledge
or
there
uisite
or intent
833;
States,
F.2d
McDaniel
v. United
opera
pattern,
is a
scheme of
consistent
denied,
Cir.
cert.
tions,
similarity of
or
method.
It
15 L.Ed.2d
Alston,
States
affirmatively appears
these
each
Harrison, 5
United States v.
48. See also
requirements
satisfied,
here
so the
course,
Of
A I so. think us, cooperate I you if will with Q Now, your is it still right. everything all will be think you money took that out Mr. Summers: cash? coopera- objection to no have By Referee: tion, if remember she can’t but amount, exactly you take it out in cash ? did Did she what exact going it, to—She’s we’re with The Witness: it, can’t used she she’s testified personal Do these I have tell all exactly exactly who what — things myself? about to; paid she she testified she By the Referee: give it But the Goodwin. didn’t personal. talking— It’s not We’re [Attorney Mr. Summers Mr. The Witness: Shop, Goodwin and Mr. Mod Inc.]: might still it. I perjury. going I’m He’s mentioned Summers: Mr. object to instruct —to and instruct -just a minute— But is— grounds her answer it on the *9 is, I think since Mr. don’t might it incriminate her. injected per- has the note of Friend By the Referee: relevancy gets jury it if off she’s— danger. just right to It has to a an inalienable be real She has She might say answer, it can’t incriminate her. to and on those refuse grounds— danger The must real. be 902 ther,” participants clearly
By the Referee:
the other
privilege.
mentioned the
Nail
Mrs.
questions
rel-
I
have been
think the
easily
having
thought
could
evant.
attorney
privi-
her brother’s
mention the
Mr. Summers:
coupled
ambiguous
lege,
with her own
they’re
long
As
relevant.
as
attempts
testifying,
to avoid
suffi-
was
By the Referee:
rights
cient
raise whatever
she was
They’re
the issues.
I’m
relevant to
entitled to claim.
your objection
going to overrule
question
The
a con
whether
to answer.”
order her
privilege
stitutional
been
has
asserted
argues
Appellant
from
Nail
aside
depend
should not
on the claimant’s hav
statutory immunity,
her claim
dis-
precise
legal phrase
used
arcane
infra,
colloquy
cussed
above
reveals
ology.
laywoman,
We deal here
awith
attempted
she
her Fifth
assert
eloquent lawyer
not a skilled and
versed
privilege
Amendment
to decline to testi-
in the subtle nuances of constitutional
fy,
overborne,
that her
and that
will was
Furthermore,
it
axiomatic that
law.
is
any
obtained,
use of the evidence thus
rights
a
waiver
constitutional
not
is
derivatively,
even
was unconstitutional.
lightly
implied,
to be
and it seems clear
government
The
admits
her claim
attempt
that even
most
feeble
good if
would be
she
forced to
testi-
privilege
claim Fifth
a
Amendment
must
fy over an assertion of her Fifth
recognized:
right
Amendment
refuse to answer
agreed by
is
“It
all that a claim of
argues
but
that no coercion here oc-
privilege
require any spe-
does not
curred.
Plainly
cial
combination words.
a
dialogue
view
set
out
witness need not have the skill of a
revealing
laywoman
above
a
who was
lawyer
protection
invoke
attempting to assert some articulated
Self-Incrimination
If
an
Clause.
right
answering
ques
to resist
certain
objection
question
is
a
made
tions,
interrupted, whip
but who was
language
[questioner] may
that a
rea-
sawed,
finally
ordered
the bank
sonably
expected
to understand as
ruptcy
questions
referee to answer the
privilege,
attempt
an
to invoke
it
fully
before she could
set out her rea
respected
must be
.
wanting
sons
to answer. Al
though it is uncontradicted that attor
“.
.
.
. But the fact
a wit-
ney
representing
Summers
Mrs.
expresses
vague
ness
his
intention
examination,
Nail at the
we nonetheless
long
terms is immaterial so
as the
think his statements have some rele
ap-
sufficiently
claim
definite to
analysis.
vance to our
The Fifth
prise
[questioner]
of his inten-
privilege
Amendment
decline
testi
everyone agrees,
tion. As
no ritualis-
fy
personal
is said to be
to the witness
necessary
tic formula
order to
only by
See,
and assertable
the witness.
privilege.”
invoke the
g.,
Ginsburg,
e. United States v.
7 Cir.
1938,
882,
Quinn
denied,
States, 1955,
cert.
305 U.S.
v. United
349 U.S.
81,
155, 162-164,
673-674,
396. But in
L.Ed.
determining whether
has
been assert
972-973. See
Smith v.
L.Ed.
ed,
States, 1949,
entire
context
which the United
spoke
claimant
Additionally,
must be considered. S.Ct.
903
timony may
given by
precise
of this
as
be
him in the
facts
On the
hearing upon objections
his
dis-
case,
Nail’s answers
find that Mrs.
we
”
charge
“compelled”
.
.
.
her
from
within the
meaning
Amendment
the Fifth
25(a)
amend.)
(1970
11 U.S.C.
[em-
§
testimony,
any
use of
that therefore
phasis
appel-
time
But at the
added].
improper
derivatively,
in the
was
even
testified,
immunity
lants
statute
Although
proceeding.
our
later criminal
holding
much narrower:
government
prevent the
does
(10)
bankrupt
“The
.
.
shall
.
retrying
Nail, no
ob
Mrs.
evidence
from
creditors,
meeting
first
his
indirectly from the
directly or
tained
compelled
hearing
objections,
any,
upon
if
at the
against
testimony may
be used
discharge
other
to his
and at such
any
prosecution.
her in
See
criminal
order,
as -the court shall
submit
times
Blue, 1966,
v.
384
United States
concerning the con-
to an examination
16
L.Ed.2d 510.
ducting
business,
his
the cause of
dealings
bankruptcy,
his
his
his
with
Finding
appellant Nail’s
persons,
creditors
amount, kind,
and other
conviction rested on
in
evidence obtained
his
and whereabouts
right
violation of her Fifth Amendment
and,
addition,
property,
all matters
in
against self-incrimination, her convic
may
affect
administration
which
Appellant
tion
be
must
reversed.
Good
or the
of his estate
and settlement
win, however, having never
his
asserted
discharge;
tes-
granting
but no
of his
privilege,
Fifth Amendment
has no
timony
by
given
be
him shall
standing
complain
derogation
offered
against
any crimi-
him in
in evidence
rights,
Bryson
see,
g.,
of Mrs. Nail’s
e.
testimony
except
proceeding
such
nal
States, 1969,
U.S.App.D.C.
v. United
136
given
may
by
hear-
in the
him
as
be
113,
cerned
see no constitutional
in the
compelled
Congress having
by
. shall be
crim
chosen
the old ver-
25(a)(10)
grant
inal case
a witness
him
only
to be
sion of section
privilege
very
immunity
self”. The
waived if it
be
a
limited
to witnesses
Monia,
not
is
asserted. United States v.
who fail
to assert
their Fifth Amend-
1943,
424,
409,
rights
formally
317
63 S.Ct.
87 L. ment
U.S.
and who have not
Furthermore,
undisputed
granted
promised any
Ed. 376.
it is
been
sort of
immunity granted by
immunity.
that because the
25(a) (10)
the old
version
section
plain language
The
of the statute was
immunity,
complete
protect
not a
those
complied
appli-
with. We find that
by
ed
it remained free to claim their
appellants’
cation of the statute to
case
McCarthy
privilege.
Fifth Amendment
was not unconstitutional
and that
there-
Arndstein, 1924,
34,
266 U.S.
45 S.Ct.
statutory immunity
fore this
claim must
16,
person
not
