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 ======================================================================= LIBERTY LAW - CROSS THE BAR & MAKE YOUR PLEA - FIRST VIRTUAL COURT, USA Presiding JOP: Tom Clark, Constable: Robert Happy, Clerk: Kerry Rushing ======================================================================= <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 : > > > > > > ==================================================================== [Text is usually formatted in Courier 11 non-proportional spacing @] [65-characters per line; .DOCs by MS-WORD for MS-DOS, Version 5.0B.] 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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