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Rogers v. United States. Wertheimer

: January 5, 1950.



Before BRATTON, HUXMAN and MURRAH, Circuit Judges.

HUXMAN, Circuit Judge.

All the appellants were called as witnesses before a grand jury regularly convened by the United States District Court for the District of Colorado. Certain questions were propounded to them which they refused to answer on the ground that their answers might tend to incriminate them. All claimed their privilege under the Fifth Amendment to the Constitution in refusing to answer such questions. Formal presentments were lodged against some in the District Court, and others were presented to the District Court informally by the grand jury. At the hearings before the court, they were directed to answer the questions but again refused to do so on the same ground. They were thereupon in further proceedings before the court, adjudged guilty of contempt and sentenced to serve various terms of imprisonment. These appeals challenge the correctness of each of these judgments.

The proceedings before the trial court were in some manner irregular and leave must to be desired. In the case of some of the appellants, the records fail to reveal that formal presentments were filed. In the case of Nancy Wertheimer, H. M. Goldschein, Special United States Attorney in charge of the grand jury investigation, stated that the grand jury was "not interested in who they believe in or what their political philosophy is, they are interested in whether or not these particular witnesses hold an office in the Communist Party and whether or not they have in their possession any books or records which show a matter of interest to this grand jury, a matter under inquiry for a violation of a federal statute - not a theory, a belief, or a politicalism." During the proceedings against Irvin Blau, the court stated: "Now I don't know what matter the grand jury is investigating and concerning which this witness was called, but he can't set himself up and say a question would tend to incriminate himself just because he believes that himself." It would seem that it would be difficult for the court to determine whether the witness should be required to answer in the absence of any knowledge as to the general subject of the investigation before the grand jury. However, the presentments filed against the defendants Bary and Kleinbord state that the grand jury "undertook an inquiry concerning various employees of the United States Government who had allegedly made false statements in connection with their loyalty investigation, in violation of Section 80, [now 18 U.S.C.A., § 1001], and other criminal laws of the United States." With one exception, all of the questions which the witnesses refused to answer related to their membership in, connection with, or knowledge of activities of the Communist Party of Denver and Colorado. There is much in the record warranting the conclusion that the purpose of the investigation by Goldschein, the Government's Special Representative before the grand jury, was to unearth the activities of the Communist Party of Colorado, rather than to unearth violations of 18 U.S.C. § 80, as stated in the presentments. However, for the purpose of passing on the right of the witnesses in refusing to answer the questions upon which the judgments in contempt are based, the subject of investigation as stated in the presentment will be accepted as the object of the grand jury's investigation.

As pointed out in the authorities, the constitutional right of a witness not to incriminate himself by his own testimony comes into conflict with the right of the Government to adduce the testimony of every citizen in criminal prosecutions. It might be well at the outset to re-examine the pronouncements of the Supreme Court with regard to this question. The leading case is the early historical case of Burr v. United States, 25 Fed.Cas. page 38, No. 14,692e. There, the court said: "When two principles come in conflict with each other, the court must give them both a reasonable construction, so as to preserve them both to a reasonable extent. The principle which entitles the United States to the testimony of every citizen, and the principle by which every witness is privileged not to accuse himself, can neither of them be entirely disregarded."

And, further in the opinion, the court said: "It would seem, then, that the court ought never to compel a witness to give an answer which discloses a fact that would form a necessary and essential part of a crime which is punishable by the laws."

The court then lays down the rule to be that: "If such answer may disclose a fact which forms a necessary and essential link in the chain of testimony, which would be sufficient to convict him of any crime, he is not bound to answer it so as to furnish matter for that conviction."

And, "In such a case the witness must himself judge what his answer will be; and if he say on oath that he cannot answer without accusig himself, he cannot be compelled to answer."

Counselman v. Hitchcock, 142 U.S. 547, 12 S. Ct. 195, 35 L. Ed. 1110, adheres to the rule in the Burr case. The court again stated that: "Many links frequently compose that chain of testimony which is necessary to convict any individual of a crime. It appears to the court to be the true sense of the rule that no witness is compellable to furnish any one of them against himself." And the court quoted with approval the pronouncement in the Burr case that: "If the question be of such a description that an answer to it may or may not criminate the witness, according to the purport of that answer, it must rest with himself, who alone can tell what it would be, to answer the question or not."

Brown v. Walker, 161 U.S. 591, 16 S. Ct. 644, 40 L. Ed. 819, is in line with the preceding pronouncements by the Supreme Court. It, however, points to the danger of extending the principle announced in the Counselman case, and points out that the privilege must not be put forward for a sentimental reason, or for a purely fanciful protection of the witness against an imaginary danger, or for the real purpose of securing immunity to some third person.

The question was again before the Supreme Court in Ballmann v. Fagin, 200 U.S. 186, 26 S. Ct. 212, 50 L. Ed. 433, in which the rules announced in these preceding cases is adhered to.

The contention is made that Mason v. United States, 244 U.S. 362, 37 S. Ct. 621, 622, 61 L. Ed. 1198, is a departure from the strict rule laid down in the Burr and Counselman cases. However, a careful reading of the Mason case does not support such a conclusion. Thus, the court states: "When a question is propounded, it belongs to the court to consider and to decide whether any direct answer to it can implicate the witness. If this be decided in the negative, then he may answer it without violating the privilege which is secured to him by law. If a direct answer to it may criminate himself, then he must be the sole judge what his answer would be." Again it is pointed out that a refusal to answer, based upon a mere possibility of danger, would be to convert a salutary protection into a means of abuse.

From an analysis of these cases, we conclude the rule to be that the witness is not the sole judge as to whether his answer will tend to incriminate him; that when the question arises, it is for the court to determine from all the facts whether the question is of such a nature as might reasonably be expected to incriminate the witness, depending upon the answer thereto. If there is reason to believe that the answer might tend to incriminate the witness, he cannot be compelled to answer; neither can he be required to state why the answer might tend to incriminate him, because that would in itself to some extent constitute giving testimony against himself. Furthermore, a witness may not be required to give an answer which furnishes a link in a chain which would enable ...

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