United States v. Weisman, 111 F.2d 260 (2nd Cir. 1940)
Circuit Court of Appeals, Second Circuit.
UNITED
STATES
v.
WEISMAN.
No. 278.
April 22, 1940
Before L. HAND, CHASE, and CLARK, Circuit
Judges.
L. HAND, Circuit Judge.
The defendant appeals from a sentence of six
months following a conviction by the district judge for refusing to answer two
questions, put to him by a grand jury on January 26, 1940. The
questions were: first, whether he had ever received any cables at Murray's Restaurant,
Sixth Avenue, New York; second, whether he knew anyone who visited, lived in,
or stayed at, Shanghai in the years 1934 to 1939. The defendant had
already been before the grand jury a number of times in December, 1939, and
January, 1940, and had answered a few questions, but in the main had claimed
his privilege against crimination. On January 22, he had denied
that he had received any cables at Murray's Restaurant in 1934, but had
immediately asked to retract the answer, and had thereupon asserted his privilege.
Similarly on the 24th he had at first denied that he knew anyone who had
visited Shanghai in 1934, but had immediately asked to retract; as to 1939 he
also denied knowing anyone, but that denial he let stand. These
answers the prosecution urges as an abandonment of the privilege; but we agree
with the defendant that they were slips, and not really intended as an
abandonment. The defendant's attorney, who was of course not with
him before the grand jury, had instructed him to claim his privilege, and
nothing had happened to change that purpose which he had claimed again and
again. We shall, therefore, dispose of the appeal on the assumption
that the privilege, whatever it was, remained.
The two questions were on their face
innocent, and it lay upon the defendant to show that answers to them might
criminate him. United States v. Burr (In re Willie), Fed. Cas. Sec.
No. 14,692e; State v. Thaden, 43 Minn. 253, 255, 45 N.W. 447; Regina v. Boyes,
1 B.& S. 311, 321; United States v. Zwillman, 2 Cir., 108 F.2d
802. Whether he had the burden of proof upon that issue we need not
decide, for we think in any case he proved his excuse. Obviously a
witness may not be compelled to do more than show that the answer is likely to
be dangerous to him, else he will be forced to disclose those very facts which
the privilege protects.
Logically, indeed, he is boxed in a paradox, for he must prove the criminatory
character of what it is his privilege to suppress just because it is
criminatory. The only practicable solution is to be content with
the door's being set a little ajar, and while at times this no doubt partially
destroys the privilege, and at times it permits the suppression of competent
evidence, nothing better is available. All this has been long
understood, but it is not so clear to what facts the privilege
extends. Does it protect more than those which 'tend' to prove a
crime? Does it also cover those which can only be clues to the discovery of
other facts which in turn so 'tend'? The doctrine of Counselman v.
Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110, goes as far as the
second; though we need not say how far it has been affected by later
decisions. Mason v. United States, 244 U.S. 362, 37 S.Ct. 621, 61 L.Ed.
1198. All crimes are composed of definite elements, and nobody
supposes that the privilege is confined to answers which directly admit one of
these; it covers also such as logically, though mediately, lead to any of them;
such as are rungs of the rational ladder by which they may be
reached. A witness would, for example, be privileged from answering
whether he left his home with a burglar's jimmy in his pocket, though that is
no part of the crime of burglary. This, as we shall try to show, is
as far as we need go here.
The defendant offered in evidence an
indictment found in the year 1937 by the grand jury of the Southern District of
New York against thirty persons (not including himself), charging a conspiracy
to import narcotic drugs from Shanghai, payment to be made either by messenger,
or by cable, direct to China; cables also being sent from New York to advise
the shippers that the drugs had arrived, upon which 'arrangements would * * *
be made, likewise in code, by cable for the transmission of the next shipment.'
This indictment the judge ruled out, but it was clearly competent, and we shall
dispose of the appeal as though he had admitted it. The defendant's
examination was part of an investigation afoot about the importation of
narcotics, in the course of which the prosecution had secured possession of
three cables from Shanghai, to which the question almost certainly
referred. These were addressed to one, 'L. C. Spiegel, 1247 Sixth
Avenue' (Murray's Restaurant) and were in code; they were all dated in March, 1937,
and were apparently among those mentioned in the indictment. An
article had appeared in a New York newspaper, declaring that the federal
district attorney would soon indict, as a dealer in narcotics, 'the owner of a
big advertising agency', who had been the 'one-time partner of a big gangster',
and who had been 'in hiding for a month'. The defendant was in fact
the head of an advertising agency, and it had been rumored that at one time he
had been the accomplice of a 'gangster'. He had in fact gone to
Florida under circumstances which suggest that he was trying to hide; and the
prosecution had questioned his family about his business between 1934 and 1939,
and had secured the books of his business.
With this background it is easy to see that
the danger from an answer to the first question was real. If the
defendant had in fact received the three cables at Murray's Restaurant, there
was reason to suppose either that, in spite of his denial, he was the Spiegel
to whom they were addressed, or that he was acting on Spiegel's
behalf. The indictment was in turn evidence that some such cables
had been used in executing the conspiracy, and there was an antecedent
probability that the prosecution's cables were among these. Further, the defendant
was plainly justified in supposing that he was the object of pursuit by the
district attorney; and, while the irresponsible gossip of a newspaper is a weak
reed, there is always the possibility that it may for once be
right. It directly pointed to the defendant, and it would certainly
have disturbed any but the most hardy.
The case for the privilege against answering
the second question was not so strong; yet strong enough in our
judgment. The defendant might of course have known people living in
Shanghai, or visiting there, without being implicated in the conspiracy of
which Shanghai was the focus. But we are to take the question in its setting,
including the other question and the information of which we may reasonably
infer the prosecution had possession. United States v. Zwillman, supra,
108 F.2d 802. The persons in Shanghai with whom the owner of a New
York Advertising business would be likely to be acquainted, were not many, and
among them would be the senders, or sender, of any cables received at Murray's
Restaurant. Those were in code, and, as we have already said, were
presumptively among the cables by which the conspiracy had been carried
out. Again we are to remember that the defendant had been the
object of much more than casual interest by the prosecution. These things made
it perilous for him to answer; if he had acknowledged such acquaintances, it
would probably have directly connected him with the principals in the
conspiracy.
Mason v. United States, supra, 244 U.S. 362,
37 S.Ct. 621, 61 L.Ed. 1198, certainly does make against our conclusion, at
least as to the second question. The Alaska statute there in
question made it a crime to take part in a game of cards played for money; and
the questions were merely whether the defendants had seen a game of cards being
played, from which of course it did not follow that it was being played for
money, or that they had taken a hand in it, if it had been. Yet it
is also true that an affirmative answer would have been an admission of one of
the three elements of which their guilt would be composed: (1) a game of cards;
(2) a money stake; (3) the witness a hand in the game.
Nevertheless, we think that the decision did not necessarily go further than to
hold that not even answers which directly 'tend' to prove the crime are
inevitably protected; that there must be some reason to fear that the
disclosure will put the witness in pressing danger. Indeed, perhaps
in the end we should say no more than that the chase must not get too hot; or the
scent, too fresh. In any event we are satisfied that if the
privilege is to be of any value, a situation like that at bar must fall within
it.
Judgment reversed; defendant discharged.