ABRAMS v. UNITED STATES.

No. 388.Circuit Court of Appeals, Second Circuit.
April 3, 1933.

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Appeal from the District Court of the United States for the Southern District of New York.

Proceedings by the United States against Morris Abrams for contempt for failure to answer certain questions put to him as a witness before a federal grand jury. From an order adjudging him in contempt, defendant appeals.

Affirmed.

The appellant was subpœnaed to appear as a witness before a federal grand jury in the Southern district of New York in the course of its investigation of alleged election frauds in violation of 18 U.S.C. § 51 (18 USCA § 51). He appeared, and, while being examined, was asked certain questions which he refused to answer on the ground that his answers might tend to incriminate him. He was then taken before a District Judge; a hearing was had at which he was represented by counsel; he was directed to answer certain of the questions, and given an opportunity to appear again before the grand jury to do so. Upon his refusal to do so, he was adjudged in contempt and sentenced to a term of imprisonment with the privilege of purging himself within five days by answering as directed.

The appellant, when he appeared before the grand jury, gave his name and residence. The following then occurred:

“Q. Live anywhere else? A. Yes sir.

“Q. Where? A. I do not think I will answer that.

“Q. Well, if you have in mind a possible prosecution for registering from the wrong address, I can assure you now that we have not any such thing in mind. In any event, we have no jurisdiction of it. Registering from the wrong address is not a Federal crime, and therefore is no immunity against answering that question. A. Well, I still refuse to answer.”

After testifying as to his occupation, the examination continued:

“Q. Are you the Democratic captain of the Fourth Election District of the Fourth Assembly District in New York County? A. I do not think I will answer that.

“Q. On what ground do you decline to answer that? A. Well, standing on my constitutional rights. It may tend to incriminate me.

“Q. Where was the polling place of the Fourth Election District of the Fourth Assembly District at the last elections? A. I refuse to answer that.

“Q. On what ground? A. Same grounds.

“Q. You mean that it might tend to incriminate you? A. Yes.

“Q. Were you present at the polling place — A. I refuse to answer.

“Q. Wait; I have not finished. I will put the question and then you can make your refusal. A. Pardon me.

“Q. Were you present in the polling place of the Fourth Election District of the Fourth Assembly District at the last election? A. (No answer.)

“Q. Do you mean you decline to answer on the ground that it might tend to incriminate you? A. That is right.

“Q. Were you present in that polling place after six o’clock on the evening of Election Day? A. I decline to answer.

“Q. Did you, after the close of the polls on Election Day in the Fourth Election District of the Fourth Assembly District see these numbers on the back of the machine? A. I decline to answer.

“Q. On what ground? A. Same grounds.

“Q. That it might tend to incriminate you? A. Yes it might incriminate me.

“Q. Are you acquainted with the persons who acted as inspectors of the Fourth Election District of the Fourth Assembly District at the last election? A. I decline to answer.

“Q. On the ground that it might tend to incriminate you? A. Yes, sir.

“Q. Did you file a report with your district leader of the result of the vote cast in the Fourth Election District of the Fourth Assembly District at the last election? A. I decline to answer.

“Q. On the ground that it might incriminate you? A. It might incriminate me.

“Mr. Medalie: Mr. Foreman, I ask that the witness be directed to answer the questions that he has declined to answer on the ground that they might incriminate him.

“The Foreman: You are directed to answer

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the questions that have been put to you by Attorney Medalie.

“The Witness: I decline to answer any of those questions on the ground they might tend to incriminate me.

“Q. Were you present in any polling place other than that of the Fourth Election District of the Fourth Assembly District on Election Day? A. I decline to answer.

“Q. On the ground it might tend to incriminate you? A. Yes, sir.

“Mr. Medalie: I ask that he be directed to answer that question, Mr. Foreman.

“The Foreman: You are directed by the Foreman to answer that question, Mr. Witness.

“The Witness: I decline to answer, Mr. Foreman.

“Q. Do you know who read the numbers from the back of the machine in the Fourth Election District of the Fourth Assembly District? A. I decline to answer.

“Q. On what ground? A. It may tend to incriminate me.”

The District Court held that he willfully obstructed the course of the investigation by the grand jury and willfully obstructed the due administration of justice by refusing to answer these questions:

“Q. Live anywhere else? A. Yes.

“Q. Where?

“Q. Are you the Democratic captain of the Fourth Election District of the Fourth Assembly District in New York County?

“Q. Where was the polling place of the Fourth Election District of the Fourth Assembly District at the last elections?

“Q. Were you present in the polling place of the Fourth Election District of the Fourth Assembly District at the last election?

“Q. Are you acquainted with the persons who acted as inspectors of the Fourth Election District of the Fourth Assembly District at the last election?

“Q. Did you file a report with your district leader of the result of the vote cast in the Fourth Election District of the Fourth Assembly District at the last election?

“Q. Were you present in any polling place other than that of the Fourth Election District of the Fourth Assembly District on Election Day?”

Slade Slade, of New York City (Maxwell Slade, David H. Slade, Charles S. Port and Albion H. Koestler, all of New York City, of counsel), for appellant.

George Z. Medalie, U.S. Atty., of New York City (Thomas E. Dewey and James A. Austin, Asst. U.S. Attys., both of New York City, of counsel), for the United States.

Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

CHASE, Circuit Judge (after stating the facts as above).

What was said in Counselman v. Hitchcock, 142 U.S. 547, 12 S. Ct. 195, 35 L. Ed. 1110, has apparently been given a broad interpretation by the appellant and relied upon to justify his refusal to comply with the direction of the court. However that may be, our decision on this appeal is, we think, controlled by Mason v. United States, 244 U.S. 362, 37 S. Ct. 621, 61 L. Ed. 1198. A proper disposition of the claims of the appellant seems to be plain if one takes the questions he refused to answer and inquires whether within reason it can be said that a truthful answer, whatever the fact may have been, to any of them, would have had any tendency to incriminate him. Having said that he lived somewhere else, that is, other than at the address already given, he was merely asked where. It is impossible to understand how the answer could have had any tendency to incriminate, and he did not then say that it would. It was surely not a violation of law either to be or not to be the Democratic captain of the election district concerning which inquiry was made; nor to know, or not to know, the location at the then last election of the polling place in that district; nor to have been, or not to have been, present at that polling place at the then last election; nor to have been, or not to have been, acquainted with the persons who acted as inspectors in that district at the then last election; nor to have made, or not to have made, to a district leader a report of the result of the vote then and there cast; nor to have been present, or not to have been present, at any other polling place on that day. Moreover, without subscribing to the theory that there is any constitutional right to refuse to answer simply because by some possibility a witness would provide a clue to aid a search for evidence of his own commission of a crime, it may be noticed that no answers to these questions could reasonably be thought to have furnished leads to evidence which would tend to prove him guilty of a crime unless we are prepared to go to the length of saying that

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in every criminal investigation the Constitution permits every person to remain silent, if he chooses, merely on the off chance that if he opens his mouth he will say something to indicate that he has committed some crime. The statement of such a proposition is enough to show its absurdity. There must be some direct tendency to incriminate. O’Connell v. United States (C.C.A.)40 F.2d 201; Mason v. United States, supra; United States v. Sullivan, 274 U.S. 259, 47 S. Ct. 607, 71 L. Ed. 1037, 51 A.L.R. 1020.

Within limits, as pointed out by Chief Justice Marshall in Aaron Burr’s Case (In re Willie) 25 Fed. Cas. 38, No. 14,692e, the witness may decide whether or not to answer and be the sole judge as to whether his answer will tend to incriminate himself for he, and not the court, knows what his truthful answer would be. But the court is not without both duty and power. As stated in the above opinion: “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.” This puts such matters as are here involved on a solid foundation both of law and of common sense. It allows specious claims of privilege to be dealt with as such. It fully protects the witness and permits society to protect itself, but does not permit a witness to protect others by claiming, in reality for their benefit, a privilege which he ostensibly asserts for his own protection.

Affirmed.