*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 5 F.2d 45. 435; 1, 358, 347 U.S. 98 L.Ed. 74 S.Ct. and Kahn the admonition effect of Wigmore F.2d 782. As to goes Professor this doubtful, was for I hold that says: even further and “Nor is decide for themselves defendants go proper to far to instruct so help- whether the be admonition would jury (even when no comment has been and, so, it. if ful to make * * disregard made) to ”. inference to more Such a rule seems me consonant futile, merely comment, says, Such “is procedure under with of trial rules tends toward confusion and disre- administration, in- criminal federal spect reasonableness,” for the law’s Anglo-Saxon juris- generally deed prudence, under Wigmore Evidence, page 416, quoting parties wide leave to a opinion in in Becher footnote 7 incompe- strategy. When choice trial States, supra. v. United In Bruno v. tent it is not offered 287, 294, page at U.S. guardian, judge, paternalistic a like 200, 257, 198, page 60 S.Ct. 84 L.Ed. defend- decide whether it is better for a 294): suggestion (p. said it was “To the object object. ant And or not to that it benefits defendant who fails to ensuing judgment upset will attention take stand to have the object party the adverse decides not to jury fact, directed suf- judge of his own motion fails say that, may fices to however difficult it Cr.Proc., Rule Cf. Fed.Rules exclude. enlightened self-interest, be to exercise Rosenberg, Cir., United States be allowed to make his 596, 583, certiorari denied Congress an own choice when Act of au- U.S. 73 S.Ct. 97 L.Ed. 687. Un- thorizes him to choose.” der the defendant is allowed to Rule Believing authority whether decide himself he shall or that reason and holding represented shall not be counsel. And unite choice was one defendants, it is the defendant under to for the I turn to a view of capital decide, except cases, scene courtroom as reconstructed right he will waive his constitutional to the trial minutes to see which choice the by jury. this, These elections trial and doubt- defendants made. As to there may complete many others have momentous by any less absence of cautionary impact Yet on the the law does outcome. defendant for admonition judge require to make deci- on successive occasion when the claimed; con- absence FIRST NATIONAL BANK throughout FLEM- OF tinued trial thereafter ING, Colorado, Banking a National charge; requests and in corporation, Appellant, exception was no the omission of charge. itme admonition in To PETZOLDT; Paul K. First National Bank seems clear that chose the defendants Lander, Wyoming corporation; right waive their to the admonition. Company, Lawrence Warehouse a cor- plausible thought to believe that poration, Appellees. with admonition would hurt them No. 5867. and an absence help appeal. them circum- Under the Appeals United States Court of stances, I think it would Tenth Circuit. sumptuous for the to think trial Dec. that he than knew better lay, where their right it was and that interests for him not to admonish the

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