236 F.2d 921 | 2d Cir. | 1956
Lead Opinion
1. The government, in support of the judge’s order, argues thus: Since defendant initially explained that he refused to answer because the answers would impair his business and harm other persons, his subsequent refusal, on Fifth Amendment grounds, was in bad faith and, on that account, should be disregarded. We do not agree. If he was clearly entitled to assert the privilege, his motives for doing so are immaterial. See Taft, J., in Ex parte Irvine, C.C., 74 F. 954, 964-965; cf. United States v. St. Pierre, 2 Cir., 128 F.2d 979, 980.
2. The government also contends that defendant had waived his right to assert the privilege because he had previously testified he had paid the gratuities in question, and in some instances had testified as to the places where the payments were made. But in those answers he had not stated the amounts of the several payments. If answers to the further questions would reveal that he had made a gift to any one person of $600 or more, within any one year, he would have supplied leads to evidence on the basis of which he could be convicted under Sections 145(a) and 147 of the 1939 Internal Revenue Code, 26 U.S.C.A. §§ 145(a), 147, and Sections 6041(a) and 7203 of the 1954 Internal Revenue Code, 26 U.S.C.A. §§ 6041(a), 7203. See Hoffman v. United States, 341 U.S. 479, 486-487, 71 S.Ct. 814, 95 L.Ed. 1118.
On its facts, this case is not governed by Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344. For the same reason United States v. St. Pierre, 2 Cir., 132 F.2d 837, 147 A.L.R. 240, does not apply (even assuming that that decision still has vitality).
As we think the defendant was within his constitutional rights in refusing to answer, he was not guilty of contempt.
Reversed.
. The Supreme Court granted certiorari in that case; 318 U.S. 751, 63 S.Ct. 769, 87 L.Ed. 1126. Later, because the defendant had served his term, the Court dismissed the appeal as moot; 319 U.S. 41, 63 S.Ct. 910, 87 L.Ed. 1199. Subsequently, in Rogers v. United States, 340 U.S. 367, 375, note 19, 71 S.Ct. 438, 443, the Court said: “United States v. St. Pierre, 2 Cir., 1942, 132 F.2d 837, 147 A.L.R. 240, presented a closer question since the ‘detail’ which St. Pierre was required to divulge would identify a person without whose testimony St. Pierre could not have been convicted of a crime. We, of course, do not here pass upon the precise factual question there decided by the Court of Appeals.”
. This opinion should he read together with our opinion in United States v. Gordon, 2 Cir., 236 F.2d 916.
Dissenting Opinion
(dissenting).
Although the Fifth Amendment does indeed “express the high value our democracy puts on the individual’s right of privacy,” United States v. Gordon, 2 Cir., 236 F.2d 916, 920 it must also be remembered that “The result of using this, like any other privilege, is to deprive people of evidence which would be otherwise available; at best a disastrous necessity * * . L. Hand,. J., in United States v. St. Pierre, 2 Cir., 1942, 132 F.2d 837, 840, 147 A.L.R. 240. To avoid abuse of. the privilege, the. Supreme Court has repeatedly said that the privilege can only be claimed where the witness has “reasonable cause to apprehend danger,” Hoffman v. United States, 1951, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118, and not where there is only a “ ‘mere imaginary possibility’ ” of prosecution, as in this case. Mason v. United States, 1917, 244 U.S. 362, 366, 37 S.Ct. 621, 622, 61 L.Ed, 1198. Prior cases allowing the privilege will be searched in vain, for a set of facts which indicate less cause for reasonable apprehension than this record provides.
Prior to June 26, 1956, Courtney had appeared on four occasions before the grand jury impaneled to investigate allegations of racketeering in the garment and trucking industries. Apparently sometime after his first appearance and testimony on April 10, and prior to his second questioning on Ma.y 3, he retained counsel who attended outside the grand jury room and consulted frequently with Courtney during recesses in the questioning, which recesses were freely granted for that- purpose.
Prior to June 26 Courtney had turned over to the grand jury all the books and records of the Courtney Trucking Company of which he was a partner. Following this he was questioned about the disbursement of large sums of cash, unsupported by vouchers, which averaged from $15,000 to $20,000 a year. On June 26 he testified that just the week before he visited about ten packing houses where he had given money to various people. He gave the .names of five of. the houses which he had visited — National Packing, Fast Service, Payco, Gem and Interstate. Asked to give the names of those to whom he had given money, he refused to answer on the ground that it affected his business, and that it would impair his business.. He asked to make a statement and testified thus:
“The Witness: My point is that the lifeblood of my business exists . merely with the fact that when we ' go to a packing house or to a pier ' when we give a special gratuity or we can get our men in and out fast- . er we will—
“The Foreman: We know that.
“The Witness: The reason why I will hot say who receives the money; in the first place, there is no one who receives the money that will admit it, and in the second place, if we do tell the man who receives it the man will losé his job.”
Courtney then left the grand jury room and consulted with his attorney and upon returning he persisted in his refusal to answer the .questions “for ,the reasons I gave.” He did further testify that he had paid “approximately, $35, $40 in the buildings” although he refused to say how much or whom he had paid at any particular place. The witness stated to the grand jury that he had told his attorney that he was going to refuse to answer and the reasons therefor, and the attorney agreed that he re
If this record indicates anything, it is that Courtney neither feared prosecution under this minor tax code provision nor had “reasonable cause to apprehend danger” of such a prosecution. He certainly was unaware of the provision at the time of the refusal, and the privilege was ultimately invoked only as an afterthought. As the Supreme Court said in a situation similar in this respect: “Petitioner’s claim of the privilege against self-incrimination was pure afterthought. Although the claim was made at the time of her second refusal to answer in the presence of the court, it came only after she had voluntarily testified to her status as an officer of the Communist Party * *. To uphold a claim of privilege in this case would open the way to distortion of facts by permitting a witness to select any stopping place in the testimony.” Rogers v. United States, 1951, 340 U.S. 367, 371, 71 S.Ct. 438, 441, 95 L.Ed. 344. Here Courtney’s election to stop at the point of giving the details as to the recipients of the money deprived the grand jury of the necessary means of testing the truth of his testimony. Was Courtney attempting to-shield those who had shaken him down, or did he really distribute the money as-he claimed? Such a claim of the privilege should induce us to question its good faith, not because a bad motive can make a clearly valid claim invalid, but because such a motive casts doubt on the incriminatory nature of the' question. Ex parte Irvine, C.C.S.D. Ohio 1896, 74 F. 954, 964-965. When the privilege is claimed, the judge seldom if ever has very much evidence before him in support of the claim, for ordinarily only the witness knows, enough of the facts and he of course should not be compelled to reveal them. The decisions, however, indicate that we are to examine the background and record for such support, see Hoffman v. United States, 1951, 341 U.S. 479, 486, 71 S.Ct. 814, 95 L.Ed. 1118, and where this is meager as here, the motive for the privilege is one of the few indicia of the reasonableness of the claim. In this case, it seems highly unlikely that the witness “had reasonable cause to apprehend danger” of prosecution for an offense which never occurred to him, and appeared for the first time on the argument on appeal. Everything points to the conclusion that the witness seized upon the privilege as an insubstantial excuse for silence after realizing the untenability of his real reasons, and that he did not honestly fear incrimination.
Moreover, the setting of this case as-revealed in the record, involves nothing which would even remotely indicate the possibility of a prosecution for violation of this minor tax code provision. Here,, the Grand Jury and the United States Attorney were not even remotely con
In weighing the validity of a claim of the Fifth Amendment’s protection, we ought to be guided by realities and those things which may reasonably happen, and not by the purely theoretical and fantastical. We are not to let the witness himself be the judge of whether answers would tend to incriminate him. Prosecution of Courtney because of his paying money to anyone was highly unlikely as a practical and common sense matter and never even occurred to Courtney himself during the weeks of his giving testimony. Courtney’s only concern was how to avoid having to face embarrassment and possible business losses, perhaps even retaliation and violence. But these are not considerations which can excuse a witness from answering questions. This case would seem to go beyond any decided cases, for in every other case the record has contained evidence which would tie the witness to some crime which could reasonably be expected to be the subject of prosecution. If our courts are going to say to witnesses that they may be excused from testifying if a lawyer can find some statute which they might possibly have violated, then grand jury investigations will be severely and unnecessarily hindered. Every time a witness finds it expedient to keep silent, he need only claim the Amendment and if on appeal he can find a crime which includes some activity which may conceivably be revealed in some part by his answer to the question, he will succeed. We must indeed rely to some extent on the witness’ claim alone, since forcing him to divulge the full grounds may defeat a valid claim of the privilege. But if a claim is made as a mere afterthought, when another very understandable but legally untenable reason is given first, we must ask for more than the witness’ say-so and the admission of some apparently innocuous act. Compare Mason v. United States, 244 U.S. 362, 37 S.Ct. 621, 61 L.Ed. 1198. The record before us contains nothing more. If prosecution is not a “remote possibility” in this case, it is hard to see where it would be.
Wisely construed the Fifth Amendment serves a necessary and beneficent purpose in protecting a free people from undue encroachment of a powerful government. But in recent years, as Judge Frank points out in United States v. Gordon, supra, many have questioned
I would affirm.
. He referred to prosecutor’s statements, and the scope of inquiry of the Grand Jury. Appellant’s Appendix 39-40.
. The Coffey case test actually seems to require that “the trial court be shown” and this certainly was not done. (Emphasis added.)
. Cf. Heike v. United States, 1913, 227 U.S. 131, 142-143, 33 S.Ct. 226, 57 L. Ed. 450.