221 F.2d 760 | 2d Cir. | 1955
Lead Opinion
The facts are fully stated in Judge Weinfeld’s excellent opinion, 128 F.Supp. 617, the reasoning and conclusions of which we adopt.
It is well to add a few words about defendant’s contention concerning the doctrine of Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819, which held that the Fifth Amendment privilege against self-incrimination relates solely to testimony that might lead to defendant’s prosecution for a crime. Defendant asks us to modify this doctrine in the light of new circumstances which have since arisen.
Affirmed.
. Cf. Taylor, Grand Inquest (1955) 217-221, 296-300; Griswold, The Fifth Amendment Today (1955) 80-81.
. See Perkins v. Endicott Johnson Corp., 2 Cir., 128 F.2d 208, 217-218;
“Legal doctrines, as first enunciated, often prove to be inadequate under the impact of ensuing experience in their practical application. And when a lower court perceives a pronounced new doctrinal trend in Supreme Court decisions, it is its duty, cautiously to be sure, to follow not to resist it.”
See also Picard v. United Aircraft Corp., 2 Cir., 128 F.2d 632, 636; Judge Parker’s opinion in Barnette v. West Virginia State Board of Education, D.C., 47 F.Supp. 251, 252-253.
Concurrence Opinion
(concurring).
I concur, but regretfully. For the steady and now precipitate erosion of the Fifth Amendment seems to me to have gone far beyond anything within the conception of those justices of the Supreme Court who by the narrowest of margins first gave support to the trend in the 1890s. And serious commentators have found this new statute peculiarly disturbing in policy and in law. Griswold, The Fifth Amendment Today 80-81 (1955); Taylor, Grand Inquest 217-221, 296-300 (1955); Barth, Government by Investigation 130-134 (1955). It undermines and so far forth nullifies one of the basic differences between our justice and that of systems we contemn, namely the principle that the individual shall not be forced to condemn himself. Practically, as we know, no formal immunity can protect a minority deviator from society’s dooms when he departs from its norms. And realistically viewed there is much in the defendant’s contention that at the end of the road is a charge of perjury supported by the oath of a renegade or paid informer. Convictions so obtained and punishment thus decreed cannot satisfy either the needs or the ideology of a democratic country committed to respect and toleration for dis- . , . . ... , _ sident minorities. But I can see no es-j, n . , . . cape from the Supreme Court decisions so carefully analyzed by Judge Weinfeld which, while they stand, are binding on US’
Concurrence Opinion
(concuring)
If this matter were one of first impression I could easily reach the conclusion that the immunity statute in question is in effect a circuitous attempt to circumvent the Constitution by a short-cut legislative statute amending the Fifth Amendment. However, it would appear that the authorities support the contention that Congress has the power to compel testimony by the enactment of an immunity statute which provides an immunity co-extensive with privilege against self-incrimination. Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819; Smith v. United States, 337 U.S. 137, 69 S.Ct. 1000, 93 L.Ed. 1264. Secondly, that being so, consistently it can be argued that the statute is not invalid for failure expressly to grant immunity from state prosecution. United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210; Feldman v. United States, 322 U.S. 487, 64 S.Ct. 1082, 88 L.Ed. 1408. See also Jack v. Kansas, 199 U.S. 372, 26 S.Ct. 73, 50 L.Ed. 234.
The good faith of the Attorney General when he acts under 18 U.S.C.A. Section 3486(c) should be assumed.