Time: Tue Nov 26 20:44:10 1996
Date: Tue, 26 Nov 1996 20:19:43 -0800
To: libertylaw@www.ultimate.org
From: Paul Andrew Mitchell [address in tool bar]
Subject: LLAW: U.S. v. Troescher

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<snip>
>Here is the Case referenced in the Troescher Decision...I love how these
>idiots claim a Right secured by the 5th Amendment is a Privilege!!!!!!!  They
>are going to declare and rename the Bill of Rights to the Bill of
>Privileges!!!  What is wrong with this picture??!!
>
>John Edward

John Edward,

I must disagree with you only 
to this extent:  the Privileges
and Immunities Clause is not to
be confused with privileges which
are granted by statute and not
otherwise available.  I believe
the Fifth Amendment "Privilege"
falls under the Privileges and
Immunities Clause (4:2:1). 

/s/ Paul Mitchell

>
>
>
>
>
>>FOR PUBLICATION
>>UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
>>UNITED STATES OF AMERICA,
>>Petitioner-Appellee,
>>v.
>>LOREN C. TROESCHER,
>>Respondent-Appellant.
>>No. 95-55609
>>D.C. No. CV 93-5736 SVW
>>
>>OPINION
>>Appeal from the United States District Court for the Central
>>District of California
>>Stephen V. Wilson, District Judge, Presiding
>>Argued and Submitted August 7, 1996 -- Pasadena, California
>>Filed November 7, 1996
>>
>>Before: Stephen Reinhardt, Cynthia Holcomb Hall, and Edward
>>Leavy, Circuit Judges.
>>
>>Opinion by Judge Reinhardt
>>
>>OPINION
>>
>>REINHARDT, Circuit Judge:
>>I.
>>
>>The general standard for a valid assertion of the Fifth
>>Amendment privilege against self-incrimination is well established. In
>>order properly to assert the privilege,"respondents must show that their
>>testimony would `support a conviction under a federal criminal statute'
>>or `furnish a link in the chain of evidence needed to prosecute the
>>claimant for a federal crime.' " United States v. Rendahl, 746 F.2d 553,
>>555 (9th Cir. 1984) (quoting Hoffman v. United States, 341 U.S. 479, 486
>>(1951). Indeed, it is enough if the responses would "merely `provide a
>>lead or clue' to evidence having a tendency to incriminate." United
>>States v. Neff, 615 F.2d 1235, 1239 (9th Cir.)(quoting Hashagen v.
>>United States, 283 F.2d 345, 348 (9th Cir. 1960)), cert. denied, 447
>>U.S. 925 (1980). The privilege is validly invoked "only where there are
>>`substantial hazards of self-incrimination' that are`real and
>>appreciable,' not merely `imaginary and unsubstantial.' " Rendahl, 746
>>F.2d at 555 (quoting Neff, 615 F.2d at 1239). Finally, "the existence of
>>such a hazard is generally determined from `examination of the
>>questions, their setting, and the peculiarities of the case.' " Id.
>>(quoting Neff, 615 F.2d at 1240).
>>
>HERE IS THE REFERENCED CASE...more to follow as I locate them:
>
>Case Name: HOFFMAN V. UNITED STATES, 341 U.S. 479 
>
>
>NO. 513.  ARGUED APRIL 25, 1951.  - DECIDED MAY 28, 1951.  - 185 F.2D
>617, REVERSED. 
>
>
>1.  CLAIMING THAT ANSWERS MIGHT TEND TO INCRIMINATE HIM OF A FEDERAL
>OFFENSE, PETITIONER REFUSED TO ANSWER CERTAIN QUESTIONS ASKED HIM BY A
>SPECIAL FEDERAL GRAND JURY MAKING A COMPREHENSIVE INVESTIGATION OF
>VIOLATIONS OF NUMEROUS FEDERAL CRIMINAL STATUTES AND CONSPIRACIES TO
>VIOLATE THEM.  HE HAD BEEN PUBLICLY CHARGED WITH BEING KNOWN AS AN
>UNDERWORLD CHARACTER AND A RACKETEER WITH A 20-YEAR POLICE RECORD,
>INCLUDING A PRISON SENTENCE ON A NARCOTICS CHARGE.  THE QUESTIONS HE
>REFUSED TO ANSWER PERTAINED TO THE NATURE OF HIS PRESENT OCCUPATION AND
>HIS CONTACTS AND CONNECTIONS WITH, AND KNOWLEDGE OF THE WHEREABOUTS OF,
>A FUGITIVE WITNESS SOUGHT BY THE SAME GRAND JURY AND FOR WHOM A BENCH
>WARRANT HAD BEEN REQUESTED.  THE JUDGE WHO HAD IMPANELED THE GRAND JURY
>AND WAS FAMILIAR WITH THESE CIRCUMSTANCES FOUND NO REAL AND SUBSTANTIAL
>DANGER OF INCRIMINATION TO PETITIONER AND ORDERED HIM TO ANSWER. 
>PETITIONER STATED THAT HE WOULD NOT OBEY THE ORDER, AND HE WAS
>CONVICTED OF CRIMINAL CONTEMPT.  HELD: THE CONVICTION IS REVERSED.  PP.
>480-490. 
>
>(A)  THE PRIVILEGE AGAINST SELF-INCRIMINATION GUARANTEED BY THE FIFTH
>AMENDMENT EXTENDS NOT ONLY TO ANSWERS THAT WOULD IN THEMSELVES SUPPORT
>A CONVICTION UNDER A FEDERAL CRIMINAL STATUTE BUT ALSO TO THOSE WHICH
>WOULD FURNISH A LINK IN THE CHAIN OF EVIDENCE NEEDED TO PROSECUTE THE
>CLAIMANT FOR A FEDERAL CRIME.  BLAU V. UNITED STATES, 340 U.S. 159.  P.
>486. 
>
>(B)  TO SUSTAIN THE PRIVILEGE, IT NEED ONLY BE EVIDENT FROM THE
>IMPLICATIONS OF THE QUESTION, IN THE SETTING IN WHICH IT IS ASKED, THAT
>A RESPONSIVE ANSWER TO THE QUESTION OR AN EXPLANATION OF WHY IT CANNOT
>BE ANSWERED MIGHT BE DANGEROUS BECAUSE INJURIOUS DISCLOSURE COULD
>RESULT.  PP. 486-487. 
>
>(C)  IN THIS CASE, THE COURT SHOULD HAVE CONSIDERED THAT THE CHIEF
>OCCUPATION OF SOME PERSONS INVOLVES EVASION OF FEDERAL CRIMINAL LAWS
>AND THAT TRUTHFUL ANSWERS BY PETITIONER TO THE QUESTIONS AS TO THE
>NATURE OF HIS BUSINESS MIGHT HAVE DISCLOSED THAT HE WAS ENGAGED IN SUCH
>PROSCRIBED ACTIVITY.  PP. 487-488. 
>
>(D)  ANSWERS TO THE QUESTIONS AS TO HIS CONTACTS AND CONNECTIONS WITH
>THE FUGITIVE WITNESS AND KNOWLEDGE OF HIS WHEREABOUTS AT THE TIME MIGHT
>HAVE EXPOSED PETITIONER TO PERIL OF PROSECUTION FOR FEDERAL OFFENSES
>RANGING FROM OBSTRUCTION TO CONSPIRACY.  P. 488. 
>
>2.  TWO WEEKS AFTER HIS CONVICTION OF CONTEMPT AND DENIAL OF BAIL
>PENDING APPEAL, PETITIONER FILED IN THE DISTRICT COURT A PAPER
>CAPTIONED "PETITION FOR RECONSIDERATION OF ALLOWANCE OF BAIL PENDING
>APPEAL," ACCOMPANIED BY AN AFFIDAVIT AND EXHIBITS EXPLAINING HIS
>REFUSAL TO ANSWER THE QUESTIONS AND PRESENTING FACTS TO JUSTIFY HIS
>FEAR THAT ANSWERS WOULD TEND TO INCRIMINATE HIM.  THESE PAPERS WERE
>FILED IN THE COURT OF APPEALS AS A SUPPLEMENTAL RECORD ON APPEAL; BUT
>THAT COURT STRUCK THEM FROM THE RECORD AND AFFIRMED THE CONVICTION. 
>HELD:  THE SUPPLEMENTAL RECORD SHOULD HAVE BEEN CONSIDERED BY THE COURT
>OF APPEALS, SINCE IT WAS ACTUALLY DIRECTED TO THE POWER OF THE
>COMMITTING COURT TO DISCHARGE THE CONTEMNOR FOR GOOD CAUSE - A POWER
>WHICH COURTS SHOULD BE SOLICITOUS TO INVOKE WHEN IMPORTANT
>CONSTITUTIONAL OBJECTIONS ARE RENEWED.  PP. 489-490. 
>
>HOFFMAN V. UNITED STATES. 
>
>CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
>CIRCUIT. 
>
>IN A FEDERAL DISTRICT COURT, PETITIONER WAS CONVICTED OF CONTEMPT FOR
>REFUSAL TO ANSWER QUESTIONS BEFORE A FEDERAL GRAND JURY.  THE COURT OF
>APPEALS AFFIRMED.  185 F.2D 617.  THIS COURT GRANTED CERTIORARI.  340
>U.S. 946.  REVERSED, P. 490. 
>
>MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT. 
>
>PETITIONER HAS BEEN CONVICTED OF CRIMINAL CONTEMPT FOR REFUSING TO
>OBEY A FEDERAL COURT ORDER REQUIRING HIM TO ANSWER CERTAIN QUESTIONS
>ASKED IN A GRAND JURY INVESTIGATION.  HE RAISES HERE IMPORTANT ISSUES
>AS TO THE APPLICATION OF THE PRIVILEGE AGAINST SELF-INCRIMINATION UNDER
>THE FIFTH AMENDMENT, CLAIMED TO JUSTIFY HIS REFUSAL. 
>
>A SPECIAL FEDERAL GRAND JURY WAS CONVENED AT PHILADELPHIA ON
>SEPTEMBER 14, 1950, TO INVESTIGATE FRAUDS UPON THE FEDERAL GOVERNMENT,
>INCLUDING VIOLATIONS OF THE CUSTOMS, NARCOTICS AND INTERNAL REVENUE
>LIQUOR LAWS OF THE UNITED STATES, THE WHITE SLAVE TRAFFIC ACT, PERJURY,
>BRIBERY, AND OTHER FEDERAL CRIMINAL LAWS, AND CONSPIRACY TO COMMIT ALL
>SUCH OFFENSES.  IN RESPONSE TO SUBPOENA PETITIONER APPEARED TO TESTIFY
>ON THE DAY THE GRAND JURY WAS EMPANELED, AND WAS EXAMINED ON OCTOBER
>3.  THE PERTINENT INTERROGATION, IN WHICH HE REFUSED TO ANSWER,
>FOLLOWS: 
>
>"Q.  WHAT DO YOU DO NOW, MR. HOFFMAN? 
>
>"A.  I REFUSE TO ANSWER. 
>
>"Q.  HAVE YOU BEEN IN THE SAME UNDERTAKING SINCE THE FIRST OF THE
>YEAR? 
>
>"A.  I DON'T UNDERSTAND THE QUESTION. 
>
>"Q.  HAVE YOU BEEN DOING THE SAME THING YOU ARE DOING NOW SINCE THE
>FIRST OF THE YEAR? 
>
>"A.  I REFUSE TO ANSWER. 
>
>"Q.  DO YOU KNOW MR. WILLIAM WEISBERG? 
>
>"A.  I DO. 
>
>"Q.  HOW LONG HAVE YOU KNOWN HIM? 
>
>"A.  PRACTICALLY TWENTY YEARS, I GUESS. 
>
>"Q.  WHEN DID YOU LAST SEE HIM? 
>
>"A.  I REFUSE TO ANSWER. 
>
>"Q.  HAVE YOU SEEN HIM THIS WEEK? 
>
>"A.  I REFUSE TO ANSWER. 
>
>"Q.  DO YOU KNOW THAT A SUBPOENA HAS BEEN ISSUED FOR MR. WEISBERG? 
>
>"A.  I HEARD ABOUT IT IN COURT. 
>
>"Q.  HAVE YOU TALKED WITH HIM ON THE TELEPHONE THIS WEEK? 
>
>"A.  I REFUSE TO ANSWER. 
>
>"Q.  DO YOU KNOW WHERE MR. WILLIAM WEISBERG IS NOW? 
>
>"A.  I REFUSE TO ANSWER."  IT WAS STIPULATED THAT PETITIONER DECLINED
>TO ANSWER ON THE GROUND THAT HIS ANSWERS MIGHT TEND TO INCRIMINATE HIM
>OF A FEDERAL OFFENSE. 
>
>PETITIONER'S CLAIM OF PRIVILEGE WAS CHALLENGED BY THE GOVERNMENT IN
>THE FEDERAL DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA,
>WHICH FOUND NO REAL AND SUBSTANTIAL DANGER OF INCRIMINATION TO
>PETITIONER AND ORDERED HIM TO RETURN TO THE GRAND JURY AND ANSWER. 
>PETITIONER STATED IN OPEN COURT THAT HE WOULD NOT OBEY THE ORDER, AND
>ON OCTOBER 5 WAS ADJUDGED IN CRIMINAL CONTEMPT AND SENTENCED TO FIVE
>MONTHS IMPRISONMENT.  18 U.S.C. SEC. 401; FEDERAL RULE OF CRIMINAL
>PROCEDURE 42(A). 
>
>PETITIONER APPEALED TO THE COURT OF APPEALS FOR THE THIRD CIRCUIT,
>WHERE THE RECORD WAS DOCKETED ON OCTOBER 11.  AFTER DENIAL BY THE
>DISTRICT COURT OF HIS REQUEST FOR BAIL PENDING APPEAL, PETITIONER ON
>OCTOBER 20 FILED IN THAT COURT A "PETITION FOR RECONSIDERATION OF
>ALLOWANCE OF BAIL PENDING APPEAL," ALLEGING THAT "ON THE BASIS OF THE
>FACTS CONTAINED IN HIS AFFIDAVIT, ATTACHED ...  , HE WAS JUSTIFIED IN
>HIS REFUSAL TO ANSWER THE QUESTIONS AS AFORESAID, OR, IN ANY EVENT,
>THAT THERE IS SO SUBSTANTIAL A QUESTION INVOLVED THAT YOUR PETITIONER
>SHOULD BE RELEASED ON BAIL ...  "  IN THE ACCOMPANYING AFFIDAVIT
>PETITIONER ASSERTED THAT 
>
>"HE ASSUMED WHEN HE REFUSED TO ANSWER THE QUESTIONS INVOLVED BEFORE
>THE GRAND JURY, THAT BOTH IT AND THE COURT WERE COGNIZANT OF, AND TOOK
>INTO CONSIDERATION, THE FACTS ON WHICH HE BASED HIS REFUSALS TO
>ANSWER. 
>
>"HE HAS SINCE BEEN ADVISED, AFTER HIS COMMITMENT, THAT THE COURT DID
>NOT CONSIDER ANY OF SAID FACTS UPON WHICH HE RELIED AND, ON THE
>CONTRARY, THE COURT CONSIDERED ONLY THE BARE RECORD (OF THE QUESTIONS
>AND ANSWERS AS SET OUT ABOVE). 
>
>"IN THE INTEREST OF JUSTICE AND PARTICULARLY IN AID OF A PROPER
>DETERMINATION OF THE ABOVE PETITION, HE SUBMITS THE FOLLOWING IN
>SUPPORT OF HIS POSITION THAT HE GENUINELY FEARED TO ANSWER THE
>QUESTIONS PROPOUNDED: 
>
>"(A)  THIS INVESTIGATION WAS STATED, IN THE CHARGE OF THE COURT TO
>THE GRAND JURY, TO COVER 'THE GAMUT OF ALL CRIMES COVERED BY FEDERAL
>STATUTE.'  ... 
>
>"(B)  AFFIANT HAS BEEN PUBLICLY CHARGED WITH BEING A KNOWN UNDERWORLD
>CHARACTER, AND A RACKETEER WITH A TWENTY YEAR POLICE RECORD, INCLUDING
>A PRISON SENTENCE ON A NARCOTICS CHARGE.  ... 
>
>"(C)  AFFIANT, WHILE WAITING TO TESTIFY BEFORE THE GRAND JURY, WAS
>PHOTOGRAPHED WITH ONE JOSEPH N. BRANSKY, HEAD OF THE PHILADELPHIA
>OFFICE OF THE UNITED STATES BUREAU OF NARCOTICS.  ... 
>
>"(D)  AFFIANT WAS QUESTIONED CONCERNING THE WHEREABOUTS OF A WITNESS
>WHO HAD NOT BEEN SERVED WITH A SUBPOENA AND FOR WHOM A BENCH WARRANT
>WAS SOUGHT BY THE GOVERNMENT PROSECUTOR.  ... 
>
>"ON THE BASIS OF THE ABOVE PUBLIC FACTS AS WELL AS THE FACTS WITHIN
>HIS OWN PERSONAL KNOWLEDGE, AFFIANT AVERS THAT HE HAD A REAL FEAR THAT
>THE ANSWERS TO THE QUESTIONS ASKED BY THE GRAND JURY WOULD INCRIMINATE
>HIM OF A FEDERAL OFFENSE." 
>
>INCLUDED AS APPENDICES TO THE AFFIDAVIT WERE CLIPPINGS FROM LOCAL
>NEWSPAPERS, OF DATES CURRENT WITH THE GRANDJURY PROCEEDING, REPORTING
>THE FACTS ASSERTED IN THE AFFIDAVIT.  ON OCTOBER 23 THE DISTRICT COURT
>ALLOWED BAIL.  ON THE FOLLOWING DAY THE PETITION FOR RECONSIDERATION OF
>ALLOWANCE OF BAIL, INCLUDING AFFIDAVIT AND APPENDICES, WAS FILED IN THE
>COURT OF APPEALS AS A SUPPLEMENTAL RECORD ON APPEAL.  THE GOVERNMENT
>MOVED TO STRIKE THIS MATTER ON THE GROUND THAT IT WAS NOT PROPERLY PART
>OF THE APPEAL RECORD. 
>
>THE COURT OF APPEALS GRANTED THE MOTION TO STRIKE AND AFFIRMED THE
>CONVICTION.  185 F.2D 617(1950).  WITH RESPECT TO THE QUESTIONS
>REGARDING WEISBERG, THE COURT HELD UNANIMOUSLY THAT "THE RELATIONSHIP
>BETWEEN POSSIBLE ADMISSIONS IN ANSWER TO THE QUESTIONS  ... AND THE
>PROSCRIPTION OF (PERTINENT FEDERAL CRIMINAL STATUTES (18 U.S.C. SECS.
>371, 1501)) WOULD NEED TO BE MUCH CLOSER FOR US TO CONCLUDE THAT THERE
>WAS REAL DANGER IN ANSWERING."  AS TO THE QUESTIONS CONCERNING
>PETITIONER'S BUSINESS, THE COURT OBSERVED THAT "IT IS NOW QUITE
>APPARENT THAT THE APPELLANT COULD HAVE SHOWN BEYOND QUESTION THAT THE
>DANGER WAS NOT FANCIFUL."  IN THE COURT'S VIEW THE DATA SUBMITTED IN
>THE SUPPLEMENTAL RECORD "WOULD RATHER CLEARLY BE ADEQUATE TO ESTABLISH
>CIRCUMSTANTIALLY THE LIKELIHOOD THAT APPELLANT'S ASSERTION OF FEAR OF
>INCRIMINATION WAS NOT MERE CONTUMACY."  BUT THE COURT OF APPEALS
>CONCLUDED, AGAIN UNANIMOUSLY, THAT THE INFORMATION OFFERED IN SUPPORT
>OF THE PETITION FOR RECONSIDERATION OF BAIL "WAS NOT BEFORE THE COURT
>WHEN IT FOUND APPELLANT IN CONTEMPT, AND THEREFORE CANNOT BE CONSIDERED
>NOW."  THUS LIMITED TO THE RECORD ORIGINALLY FILED, THE MAJORITY OF THE
>COURT WAS OF THE OPINION, WITH RESPECT TO THE BUSINESS QUESTIONS, THAT
>"THE WITNESS HERE FAILED TO GIVE THE JUDGE ANY INFORMATION WHICH WOULD
>ALLOW THE LATTER TO RULE INTELLIGENTLY ON THE CLAIM OF PRIVILEGE FOR
>THE WITNESS SIMPLY REFUSED TO SAY ANYTHING AND GAVE NO FACTS TO SHOW
>WHY HE REFUSED TO SAY ANYTHING."  ONE JUDGE DISSENTED, CONCLUDING THAT
>THE DISTRICT COURT KNEW THAT "THE SETTING OF THE CONTROVERSY" WAS "A
>GRAND JURY INVESTIGATION OF RACKETEERING AND FEDERAL CRIME IN THE
>VICINITY" AND "SHOULD HAVE ADVERTED TO THE FACT OF COMMON KNOWLEDGE
>THAT THERE EXISTS A CLASS OF PERSONS WHO LIVE BY ACTIVITY PROHIBITED BY
>FEDERAL CRIMINAL LAWS AND THAT SOME OF THESE PERSONS WOULD BE SUMMONED
>AS WITNESSES IN THIS GRAND JURY INVESTIGATION." 
>
>PETITIONER UNSUCCESSFULLY SOUGHT REHEARING IN THE COURT OF APPEALS,
>URGING REMAND TO THE DISTRICT COURT TO PERMIT RECONSIDERATION OF THE
>CONVICTION ON THE BASIS OF DATA IN THE SUPPLEMENTAL RECORD.  WE GRANTED
>CERTIORARI, 340 U.S. 946(1951). 
>
>THIS IS ANOTHER OF FIVE PROCEEDINGS BEFORE THIS COURT DURING THE
>PRESENT TERM IN EACH OF WHICH THE PRIVILEGE AGAINST SELF-INCRIMINATION
>HAS BEEN ASSERTED IN THE COURSE OF FEDERAL GRAND-JURY INVESTIGATIONS* .
>A NUMBER OF SIMILAR CASES HAVE BEEN CONSIDERED RECENTLY BY THE LOWER
>COURTS.  THE SIGNAL INCREASE IN SUCH LITIGATION EMPHASIZES THE
>CONTINUING NECESSITY THAT PROSECUTORS AND COURTS ALIKE BE "ALERT TO
>REPRESS" ANY ABUSES OF THE INVESTIGATORY POWER INVOKED, BEARING IN MIND
>THAT WHILE GRAND JURIES "MAY PROCEED, EITHER UPON THEIR OWN KNOWLEDGE
>OR UPON THE EXAMINATION OF WITNESSES, TO INQUIRE  ...  WHETHER A CRIME
>COGNIZABLE BY THE COURT HAS BEEN COMMITTED," HALE V. HENKEL, 201 U.S.
>43, 65(1906), YET "THE MOST VALUABLE FUNCTION OF THE GRAND JURY  ...
>(HAS BEEN) NOT ONLY TO EXAMINE INTO THE COMMISSION OF CRIMES, BUT TO
>STAND BETWEEN THE PROSECUTOR AND THE ACCUSED," ID. AT 59.  ENFORCEMENT
>OFFICIALS TAKING THE INITIATIVE IN GRAND-JURY PROCEEDINGS AND COURTS
>CHARGED WITH THEIR SUPERINTENDENCE SHOULD BE SENSITIVE TO THE
>CONSIDERATIONS MAKING FOR WISE EXERCISE OF SUCH INVESTIGATORY POWER,
>NOT ONLY WHERE CONSTITUTIONAL ISSUES MAY BE INVOLVED BUT ALSO WHERE THE
>NONCOERCIVE ASSISTANCE OF OTHER FEDERAL AGENCIES MAY RENDER IT
>UNNECESSARY TO INVOKE THE COMPULSIVE PROCESS OF THE GRAND JURY. 
>
>*(PATRICIA) BLAU V. UNITED STATES, 340 U.S. 159(1950); (IRVING) BLAU
>V. UNITED STATES, 340 U.S. 332(1951); ROGERS V. UNITED STATES, 340 U.S.
>367(1951); UNITED STATES V. GREENBERG, 187 F.2D 35(C.A. 3D CIR. 1951),
>PETITION FOR WRIT OF CERTIORARI PENDING.  (SEE POST, P. 944.) 
>
>THE FIFTH AMENDMENT DECLARES IN PART THAT "NO PERSON  ...  SHALL BE
>COMPELLED IN ANY CRIMINAL CASE TO BE A WITNESS AGAINST HIMSELF."  THIS
>GUARANTEE AGAINST TESTIMONIAL COMPULSION, LIKE OTHER PROVISIONS OF THE
>BILL OF RIGHTS, "WAS ADDED TO THE ORIGINAL CONSTITUTION IN THE
>CONVICTION THAT TOO HIGH A PRICE MAY BE PAID EVEN FOR THE UNHAMPERED
>ENFORCEMENT OF THE CRIMINAL LAW AND THAT, IN ITS ATTAINMENT, OTHER
>SOCIAL OBJECTS OF A FREE SOCIETY SHOULD NOT BE SACRIFICED."  FELDMAN V.
>UNITED STATES, 322 U.S. 487, 489(1944).  THIS PROVISION OF THE
>AMENDMENT MUST BE ACCORDED LIBERAL CONSTRUCTION IN FAVOR OF THE RIGHT
>IT WAS INTENDED TO SECURE.  COUNSELMAN V. HITCHCOCK, 142 U.S. 547,
>562(1892); ARNDSTEIN V. MCCARTHY, 254 U.S. 71, 72-73(1920). 
>
>THE PRIVILEGE AFFORDED NOT ONLY EXTENDS TO ANSWERS THAT WOULD IN
>THEMSELVES SUPPORT A CONVICTION UNDER A FEDERAL CRIMINAL STATUTE BUT
>LIKEWISE EMBRACES THOSE WHICH WOULD FURNISH A LINK IN THE CHAIN OF
>EVIDENCE NEEDED TO PROSECUTE THE CLAIMANT FOR A FEDERAL CRIME. 
>(PATRICIA) BLAU V. UNITED STATES, 340 U.S. 159(1950).  BUT THIS
>PROTECTION MUST BE CONFINED TO INSTANCES WHERE THE WITNESS HAS
>REASONABLE CAUSE TO APPREHEND DANGER FROM A DIRECT ANSWER.  MASON V.
>UNITED STATES, 244 U.S. 362, 365(1917), AND CASES CITED.  THE WITNESS
>IS NOT EXONERATED FROM ANSWERING MERELY BECAUSE HE DECLARES THAT IN SO
>DOING HE WOULD INCRIMINATE HIMSELF - HIS SAY-SO DOES NOT OF ITSELF
>ESTABLISH THE HAZARD OF INCRIMINATION.  IT IS FOR THE COURT TO SAY
>WHETHER HIS SILENCE IS JUSTIFIED, ROGERS V. UNITED STATES, 340 U.S.
>367(1951), AND TO REQUIRE HIM TO ANSWER IF "IT CLEARLY APPEARS TO THE
>COURT THAT HE IS MISTAKEN."  TEMPLE V. COMMONWEALTH, 75 VA. 892,
>899(1881).  HOWEVER, IF THE WITNESS, UPON INTERPOSING HIS CLAIM, WERE
>REQUIRED TO PROVE THE HAZARD IN THE SENSE IN WHICH A CLAIM IS USUALLY
>REQUIRED TO BE ESTABLISHED IN COURT, HE WOULD BE COMPELLED TO SURRENDER
>THE VERY PROTECTION WHICH THE PRIVILEGE IS DESIGNED TO GUARANTEE.  TO
>SUSTAIN THE PRIVILEGE, IT NEED ONLY BE EVIDENT FROM THE IMPLICATIONS OF
>THE QUESTION, IN THE SETTING IN WHICH IT IS ASKED, THAT A RESPONSIVE
>ANSWER TO THE QUESTION OR AN EXPLANATION OF WHY IT CANNOT BE ANSWERED
>MIGHT BE DANGEROUS BECAUSE INJURIOUS DISCLOSURE COULD RESULT.  THE
>TRIAL JUDGE IN APPRAISING THE CLAIM "MUST BE GOVERNED AS MUCH BY HIS
>PERSONAL PERCEPTION OF THE PECULIARITIES OF THE CASE AS BY THE FACTS
>ACTUALLY IN EVIDENCE."  SEE TAFT, J., IN EX PARTE IRVINE, 74 F. 954,
>960(C.C.S.D. OHIO, 1896). 
>
>WHAT WERE THE CIRCUMSTANCES WHICH THE DISTRICT COURT SHOULD HAVE
>CONSIDERED IN RULING UPON PETITIONER'S CLAIM OF PRIVILEGE?  THIS IS THE
>BACKGROUND AS INDICATED BY THE RECORD: 
>
>THE JUDGE WHO RULED ON THE PRIVILEGE HAD HIMSELF IMPANELED THE
>SPECIAL GRAND JURY TO INVESTIGATE "RACKETS" IN THE DISTRICT.  HE HAD
>EXPLAINED TO THE JURY THAT "THE ATTORNEY GENERAL'S OFFICE HAS COME INTO
>THIS DISTRICT TO CONDUCT AN INVESTIGATION  ...  (THAT) WILL RUN THE
>GAMUT OF ALL CRIMES COVERED BY FEDERAL STATUTE."  "IF RACKETS INFEST OR
>ENCRUST OUR SYSTEM OF GOVERNMENT," HE INSTRUCTED, "JUST AS ANY BLIGHT
>ATTACKS ANY OTHER GROWTH, IT WITHERS AND DIES.  ...  "  SUBPOENAS HAD
>ISSUED FOR SOME TWENTY WITNESSES, BUT ONLY ELEVEN HAD BEEN SERVED; AS
>THE PROSECUTOR PUT IT, HE WAS "HAVING TROUBLE FINDING SOME BIG SHOTS." 
>SEVERAL OF THOSE WHO DID APPEAR AND WERE CALLED INTO THE GRAND-JURY
>ROOM BEFORE PETITIONER HAD REFUSED TO ANSWER QUESTIONS UNTIL ORDERED TO
>DO SO BY THE COURT.  THE PROSECUTOR HAD REQUESTED BENCH WARRANTS FOR
>EIGHT OF THE NINE WHO HAD NOT APPEARED THE FIRST DAY OF THE SESSION,
>ONE OF WHOM WAS WILLIAM WEISBERG.  PETITIONER HAD ADMITTED HAVING KNOWN
>WEISBERG FOR ABOUT TWENTY YEARS.  IN ADDITION, COUNSEL FOR PETITIONER
>HAD ADVISED THE COURT THAT "IT HAS BEEN BROADLY PUBLISHED THAT
>(PETITIONER) HAS A POLICE RECORD."    THE COURT SHOULD HAVE CONSIDERED,
>IN CONNECTION WITH THE BUSINESS QUESTIONS, THAT THE CHIEF OCCUPATION OF
>SOME PERSONS INVOLVES EVASION OF FEDERAL CRIMINAL LAWS, AND THAT
>TRUTHFUL ANSWERS BY PETITIONER TO THESE QUESTIONS MIGHT HAVE DISCLOSED
>THAT HE WAS ENGAGED IN SUCH PROSCRIBED ACTIVITY. 
>
>ALSO, THE COURT SHOULD HAVE RECOGNIZED, IN CONSIDERING THE WEISBERG
>QUESTIONS, THAT ONE PERSON WITH A POLICE RECORD SUMMONED TO TESTIFY
>BEFORE A GRAND JURY INVESTIGATING THE RACKETS MIGHT BE HIDING OR
>HELPING TO HIDE ANOTHER PERSON OF QUESTIONABLE REPUTE SOUGHT AS A
>WITNESS.  TO BE SURE, THE GOVERNMENT MAY INQUIRE OF WITNESSES BEFORE
>THE GRAND JURY AS TO THE WHEREABOUTS OF UNLOCATED WITNESSES; ORDINARILY
>THE ANSWERS TO SUCH QUESTIONS ARE HARMLESS IF NOT FRUITLESS.  BUT OF
>THE SEVEN QUESTIONS RELATING TO WEISBERG (OF WHICH THREE WERE
>ANSWERED), THREE WERE DESIGNED TO DRAW INFORMATION AS TO PETITIONER'S
>CONTACTS AND CONNECTION WITH THE FUGITIVE WITNESS; AND THE FINAL
>QUESTION, PERHAPS AN AFTERTHOUGHT OF THE PROSECUTOR, INQUIRED OF
>WEISBERG'S WHEREABOUTS AT THE TIME.  ALL OF THEM COULD EASILY HAVE
>REQUIRED ANSWERS THAT WOULD FORGE LINKS IN A CHAIN OF FACTS IMPERILING
>PETITIONER WITH CONVICTION OF A FEDERAL CRIME.  THE THREE QUESTIONS, IF
>ANSWERED AFFIRMATIVELY, WOULD ESTABLISH CONTACTS BETWEEN PETITIONER AND
>WEISBERG DURING THE CRUCIAL PERIOD WHEN THE LATTER WAS ELUDING THE
>GRAND JURY; AND IN THE CONTEXT OF THESE INQUIRIES THE LAST QUESTION
>MIGHT WELL HAVE CALLED FOR DISCLOSURE THAT WEISBERG WAS HIDING AWAY ON
>PETITIONER'S PREMISES OR WITH HIS ASSISTANCE.  PETITIONER COULD
>REASONABLY HAVE SENSED THE PERIL OF PROSECUTION FOR FEDERAL OFFENSES
>RANGING FROM OBSTRUCTION TO CONSPIRACY. 
>
>IN THIS SETTING IT WAS NOT "PERFECTLY CLEAR, FROM A CAREFUL
>CONSIDERATION OF ALL THE CIRCUMSTANCES IN THE CASE, THAT THE WITNESS IS
>MISTAKEN, AND THAT THE (ANSWERS) CANNOT POSSIBLY HAVE SUCH TENDENCY" TO
>INCRIMINATE.  TEMPLE V. COMMONWEALTH, 75 VA. 892, 898(1881), CITED WITH
>APPROVAL IN COUNSELMAN V. HITCHCOCK, 142 U.S. 547, 579-580(1892).  SEE
>ALSO, ARNDSTEIN V. MCCARTHY, 254 U.S. 71(1920). 
>
>THIS CONCLUSION IS BUTTRESSED BY THE SUPPLEMENTAL RECORD.  IT SHOWED
>THAT PETITIONER HAD A TWENTY-YEAR POLICE RECORD AND HAD BEEN PUBLICLY
>LABELED AN "UNDERWORLD CHARACTER AND RACKETEER"; THAT THE SENATE CRIME
>INVESTIGATING COMMITTEE HAD PLACED HIS NAME ON A LIST OF "KNOWN
>GANGSTERS" FROM THE PHILADELPHIA AREA WHO HAD MADE MIAMI BEACH THEIR
>HEADQUARTERS; THAT PHILADELPHIA POLICE OFFICIALS HAD DESCRIBED HIM AS
>"THE KING OF THE SHORE RACKETS WHO LIVES BY THE GUN"; THAT HE HAD
>SERVED A SENTENCE ON A NARCOTICS CHARGE; AND THAT HIS PREVIOUS
>CONVICTION WAS DRAMATIZED BY A PICTURE APPEARING IN THE LOCAL PRESS
>WHILE HE WAS WAITING TO TESTIFY, IN WHICH PETITIONER WAS PHOTOGRAPHED
>WITH THE HEAD OF THE PHILADELPHIA OFFICE OF THE UNITED STATES BUREAU OF
>NARCOTICS IN AN ACCUSING POSE. 
>
>IT APPEARS THAT THE PETITION WHICH COMPRISED THE SUPPLEMENTAL RECORD,
>THOUGH CAPTIONED A "PETITION FOR RECONSIDERATION OF ALLOWANCE OF BAIL
>PENDING APPEAL," WAS BY ITS TERMS AN APPLICATION TO THE DISTRICT COURT
>TO VACATE THE CONTEMPT ORDER ON CONSTITUTIONAL GROUNDS, AND
>ALTERNATIVELY A SECOND MOTION FOR BAIL.  CLEARLY THIS PETITION, FILED
>BUT TWO WEEKS AFTER THE CONTEMPT ORDER, WAS DIRECTED TO THE POWER OF
>THE COMMITTING COURT TO DISCHARGE THE CONTEMNOR FOR GOOD CAUSE - A
>POWER WHICH COURTS SHOULD BE SOLICITOUS TO INVOKE WHEN IMPORTANT
>CONSTITUTIONAL OBJECTIONS ARE RENEWED.  CF. GOULED V. UNITED STATES,
>255 U.S. 298(1921).  THE ENDS OF JUSTICE REQUIRE DISCHARGE OF ONE
>HAVING SUCH A RIGHT WHENEVER FACTS APPEAR SUFFICIENT TO SUSTAIN THE
>CLAIM OF PRIVILEGE.  ACCORDINGLY THE SUPPLEMENTAL RECORD SHOULD HAVE
>BEEN CONSIDERED BY THE COURT OF APPEALS. 
>
>FOR THESE REASONS WE CANNOT AGREE WITH THE JUDGMENTS BELOW.  IF THIS
>RESULT ADDS TO THE BURDEN OF DILIGENCE AND EFFICIENCY RESTING ON
>ENFORCEMENT AUTHORITIES, ANY OTHER CONCLUSION WOULD SERIOUSLY
>COMPROMISE AN IMPORTANT CONSTITUTIONAL LIBERTY.  "THE IMMEDIATE AND
>POTENTIAL EVILS OF COMPULSORY SELF-DISCLOSURE TRANSCEND ANY
>DIFFICULTIES THAT THE EXERCISE OF THE PRIVILEGE MAY IMPOSE ON SOCIETY
>IN THE DETECTION AND PROSECUTION OF CRIME."  UNITED STATES V. WHITE,
>322 U.S. 694, 698(1944).  PERTINENT HERE IS THE OBSERVATION OF MR.
>JUSTICE BRANDEIS FOR THIS COURT IN MCCARTHY V. ARNDSTEIN, 266 U.S. 34,
>42(1924):  "IF CONGRESS SHOULD HEREAFTER CONCLUDE THAT A FULL
>DISCLOSURE  ...  BY THE WITNESSES IS OF GREATER IMPORTANCE THAN THE
>POSSIBILITY OF PUNISHING THEM FOR SOME CRIME IN THE PAST, IT CAN, AS IN
>OTHER CASES, CONFER THE POWER OF UNRESTRICTED EXAMINATION BY PROVIDING
>COMPLETE IMMUNITY."  REVERSED. 
>
>MR. JUSTICE REED DISSENTS.  HE AGREES WITH THE CONCLUSIONS REACHED BY
>JUDGES GOODRICH AND KALODNER AS EXPRESSED IN THE OPINION BELOW. 
>..END :
>
>
>
>
>
>

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Paul Andrew Mitchell, B.A., M.S., email address: pmitch@primenet.com      
ship to: c/o 2509 N. Campbell, #1776, Tucson, Arizona state [We win]
We can decode all your byte streams, spaghetti code notwithstanding.
Coming soon: "Manifesto for a Republic" by John E. Trumane ie JetMan
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