*2
abort her.
did,
This Aviron
and Cohen
performed
operation.
On the next
day Parker, Merrick, Maloney
Avi-
ron went to Cohen’s
posed,
officeand
Ma-
City, for
Morten,
York
New
loney
F.
Robert
as an
agent,
F.B.I.
Parker and
Maloney.
appellant Robert William
Merrick
They
police
as New York
officers.
extracting
succeeded in
ap-
from Cohen
Brooklyn, Y.,
Kelly,
for
N.
D.
John
$10,000
which
among
divided
Murphy.
pellant Robert
five and two others who were not indict-
City,
Lowenberg,
Henry
York
A.
New
Maloney
possession
ed.
aof
set of
appellant Paul Merrick.
F.B.I. “credentials” which he
showed
Wickersham, Jr., Brook-
W.
Cornelius
Cohen as
of
authority
his
Y.,
appellee.
lyn, N.
prosecute him for the abortion.
hadHe
HAND,
Before
HINCKS
procured
man,
these
Silin,
from a
named
Judges.
WATERMAN, Circuit
given
and had
keeping
them for safe
mistress,
his
Parkhurst,
put
named
who
Judge.
HAND, Circuit
deposit
them her
box,
safe
from which
she took them and delivered them to
Ma-
appeal
defend
This
an
loney shortly
day
before the
when
Maloney,
Murphy
Ma-
ants,
Merrick
loney used them to blackmail Cohen.
of
conviction
the District
unlikely
District
the Eastern
of New
was
accept
Court
Park-
J., presiding),
testimony
(Bruchhausen,
en
er’s
unless
York
was corroborated.
jury upon
accomplice
verdict of a
He had
an
been an
hoped
tered
lenity
inculpating
in five counts.
first
indictment
his associates.
conspiracy
per Moreover,
for a
was
five
his own
count
criminal record falsely
pretend
Maloney
extremely
bad.
He had
sons
been convicted
agent
larceny,
extortion,
the Federal
Bureau of In-
and of “unlawful
largely
living
«ntry,”
referred to
refusal in
had made
a context that
blackmailing
only
could
100 homosexuals
at least
understood
ar-
guing that,
refused,
physicians.
*3
on
he had
The errors
not
his
rely
answer
appellants particularly
arose
would have been in the affirma-
the
Parkhurst,
tive.
uniformly
Such
Silin
refusals have
of
examination
the
held
permissible
that
not to be
prove
a
to
basis
in-
In order
and Mascali.
ferring
kept
what would have been
“credentials”
the an-
had
the
Parkhurst
swer,
logically they
very
Maloney
deposit box,
was
she
are
safe
in her
persuasive.
any-
put
How to deal with
“ever
them is
whether she had
asked
matter,
easy
decide;
another
not
thing
of
the
to
but
that
into
box
clear,
it
only
is
presumed
Upon
that
Maloney.”
the
a
Robert William
answer has not
oath,
the sanction of an
question
judge at the
the
vious
but—what is
important
even more
attorneys
defense
for the
the
of one of
—that
might
cannot cross-examine.
If
to
refuse
had advised her that she
they
get
once
jury,
do
ground
before the
any
that
questions
the
answer
arises,
said,
strong
we
as
prob-
and,
her,
a
they
so
incriminate
ability
that
will be taken as evi-
prompted,
to
When
refused
answer.
she
dentiary.
witness, Mascali,
was
she
the
was called
arrangements” were
“any
whether
asked
prosecution replies that,
The
is
if it
your
respect to
“made whatsoever with
put
question,
forbidden to
may
the
the
too,
having
abortion,”
after
and she
witness,
well
if
assume that
the
privilege, refused
of her
advised
called,
testify
accused,
for the
would
Silin,
witness,
Finally, the
answer.
to
that this
too
inference
would be unfair.
similarly
his
prompted, also claimed
We must confess that the situation is one
privilege, when
had
asked whether
either
results in
alternative
Maloney.
procured the “credentials” for
prejudice
other;
to one side or the
impossible,
see,
far as we can
to
it
so
privi
witness claims
When
general
lay
any
down
rule that will cover
natural,
lege,
an almost inevita
indeed
all instances.
In the case at bar the
ble,
to what
as
would
inference arises
prosecution knew that Parkhurst and
if he
not re
his answer
had
answer,
Mascali would refuse
it
prosecution
when
the
knows
fused.
If
that the
seems to us
interest of
ac-
the
question
puts
that he will claim
it
the
prevail
that
cused should
over
of the
charged
privilege, it
with notice of
prosecution,
that
upon
probable
of his refusal
effect
stand,
questions
touch-
it can
jury’s
the case at bar
mind. In
charge.
ed vital elements of
On the
hardly
of
that
answers
doubted
hand,
we
that in such situa-
witnesses,
given,
the three
if
of
tions,
stage
any
accused at
of the
Park
to corroborate
have served
would
argue
trial
that
failure
call
Maloney’s posses
story, either as to
should^
er’s
such a witness indicated that he would
“credentials,” or as to the
sion
charge,
prosecution
abortion.
plan for an
to disclose
should be free
the fact
it
that
on its summation conceded
prosecution
suppose
had
reason
that the witness
that,
Parkhurst
Mas
in the
Although,
would refuse.
as we have
known,
“anticipated,”
cali,
that
it had
or
said,
appear
prosecu-
does not
refuse to answer.
would
witnesses
refuse,
tion knew that Silin would
in sub-
indeed, appear
not,
that
it knew
does
issue
the same
arose when on its
stance
refuse, although
also
would
Silin
that
summation
used his refusal as corrob-
Maloney
that
had told
testified
Parker
oratory
Parker.
Maloney
Silin
was from
that
that it
question
up
come
has
several
procured the “credentials.”
times
We
had
enough
first,
put
say
this circuit.
far
so
we
as
need
know,
Cases,
in United States v. Five
notice that Silin
prosecution etc., Cir.,
refuse;
in its summation it
but
where
integra,
say
prepared
it would F.2d
472. As res
“not
were
party
are
ground
admonitions
doubtful
such
for reversal if
not be
likely
not as
interest
connected
who called witness
help them, imposing,
challenged
knew,
rea
as-
accused
or
as to
transaction
they do,
beyond
know,
putting the
a task
sonable
before
cause
powers:
gym-
claim their
i. e. bit
“mental
that he would
on the stand
nastics,” Wigmore
it,,
an answer
2272 calls
privilege.”
avoided
We
practical purposes
ex
which it is
absurd
allowed
accused had
because the
pro
expect
long
However,
go
them.
the situa-
on so
amination
*4
right
any
raise
tion
to
is in substance the same as when
test that he had lost
Hiss,
judge
jury
v.
tells the
the
not to
question.
United States
consider
the
In
repeated
confession,
832,
admission,
Cir.,
822,
we
or
of one defend-
185 F.2d
2
deciding
guilt
another,
ant
statement,
that the error
in
the
tried
held
but
this
enough
justi
time; and,
to
at the same
since it is settled
substantial
not been
had
enough if there
that
fy
not
this rubric will cure that error
“It is
a reversal.
through
(Delli
lapses
Paoli v. United
352
than minor
U.S.
more
are no
long
Cioffi, 232,
294,
278),
v.
77
1
do-
States
S.Ct.
L.Ed.2d
we
In United
trial.”
476-477,
why
473,
United
not see
it
Cir.,
cure the error
F.2d
not
242
2
Cir.,
Romero,
here.
249
We rest our decision therefore
v.
States
F.2d
Gernie,
upon
v.
the fact that the
ritual
374-375,
accredited
States
United
followed;
surely,
664, 669-670,
not
the witness was
is-
Cir.,
if it
252 F.2d
had,
might
seriously,
ever to
have
be taken
could
any privilege he
there
lost
had
hardly
of-
more
of the
be
occasion when it was
convicted
had been
because
necessary,
especially
question
as to the
he was
refusals
to which
fence as
also Parkhurst and Silin
appears
whose corroboration
in
decisions
our
ed. As
upon
only possible
cautionary
of Parker
the
touched
admonition
relied
jurisdiction
subject
they
source of
not
the
must
over
judge
that
to the
the
the
the matter:
use of the F.B.I. “creden-
what
evidence
the refusal as
use
unnecessary any
tials.” The error makes
also Wein
See
would have been.
answer
points
Cir.,
discussion of the
F.2d
raised.
United
baum v.
Cir.,
Amadio,
v.
States
United
will be
and the
reversed
in
that
true
613-614. It is
cause remanded.
Gernie, supra,
v.
States
United
Judge
HINCKS,
(dissenting).
such cir
page
said: “Under
Circuit
669 we
at
no
wheth
makes
difference
cumstances
Judge
opinion
As I read
the
HAND’S
government
believe
to
has reason
er
judgments
reversal of the
is based
below
testify.”
refuse to
will
that the
expressly
solely “upon the fact that
authority United
as
this we cited
For
followed,”
the accredited ritual
not
supra,
Romero;
States
e.,
cautionary
i.
ritual of “a
admoni-
Cioffi, supra,
on
rested
whicK
they
States
judge
tion
to the
that
privilege had ended.
that
fact
must not use the
[to
refusal
[witnesses’]
language just
think
not
doWe
answer] as
of what
answer
of the
outside
be read
quoted should
would have been.”
e. that
setting
used:
i.
in which it
my
I
brothers that
de-
lost his
the witness
cautionary
fendants were entitled to the
given.
had been
admonition
it;
admonition if
wished
and that
given
in the
it had
cured
such admonition
would have
nowas
There
predi-
bar, and,
did
defect on
the accused
reversal is
case
Judge
My
one,
appears
dissent
restricted
cated.
is
not ask
holding
requested
not,
that whether
or
that their failure
me
Waterman
by the
or
Rule or whether wanted
Criminal
rather within
falls
do so
not,
error to
it was reversible
omit the
U.S.C.A.
52(b)
within
than
O’Connor,
seems
admonition.
to me
that-
clear
to caution
judicial
sion for
defendant or
instruction
rely upon
answers
in connection
with the formulation
what
or
consider
might
been choice.
three witnesses
jurors
have stimulated the
well
is
present problem
Even
closer to
would
otherwise
conjectures which
elects
that which arises when a defendant
my
This
to them.
relying
not have occurred
testify
defense
own
Judge
recognize: as
seem
brothers
assurance,
statutory
U.S.C.A.
out,
points
“it
doubtful
Hand
take the
that his failure to
likely to
are
as
such admonitions
any presumption
“shall not create
stand
against
the interest
is often
cases it
him.” In such
”*
* *
agree.
If
help
I
them
helped
whether he will be
or
doubtful
given
re-
had been
admonition
quest,
judicial
that his
hurt
appeal
com-
possibly
quite
failure to take
stand
plaint
either
guilt.
Yet
taken as evidence of
prosecutor
inwas
cahoots with the
an unre-
solid
quested admonition,
for the view
*5
bring
unjust
an
conviction
about
not cause
blundering
who
fellow
or
inadvertently
a
that he was
reversal,
for
United
better omitted.
compounded prejudice
Becher, supra;
v. Unit-
v.
Pereira
good
Unit-
Becher v.
intentions. Cf.
States, Cir.,
830,
ed
affirmed
States, Cir.,
ed
at the risk of to the defense. give Even if the failure to unre- quested error, admonition were I could my brothers it was falling Cr.Proc., one within Fed.Rules *6 52(b). surely,
Rule For if the defend- thought ants had an admonition would helpful, they re- have quested stage it at some trial.
Their eloquent failure to make such evidence that themselves
thought the absence of was harmless. the minutes
the trial show that each three wit- giving testimony nesses were material under oath in of the Govern- ment’s until trial counsel the de- right, Merrick, wholly
fendant Wigmore Evidence, inter- rupted prosecutor’s examination request the to instruct the witness (or her) rights.
of his constitutional prod,
Under this which all defendants seemingly acquiesced,
claimed in turn. Thus opportunity loss of hear the an- oath swers under and to cross-examine brought about a success-
thereon error, of the defense.
ful tactic one, classify I would there was as harm- 52(a) under Rule foreclosed
less lack of under advanced several which, my error all of claims
opinion, are without merit. I would af- convictions.
firm the