United States v. Hoffman

• Decision Date: 08 December 1950
• Docket Number: No. 10308.,10308.
• Citation: 185 F.2d 617
• Parties: UNITED STATES v. HOFFMAN.
• Court: U.S. Court of Appeals — Third Circuit

185 F.2d 617 (1950)

UNITED STATES v. HOFFMAN.

No. 10308.

United States Court of Appeals Third Circuit.

Argued November 6, 1950.

Decided December 8, 1950.

Rehearing Denied December 27, 1950.

William A. Gray, Philadelphia, Pa., for appellant.

M. H. Goldschein, Sp. Asst. to Atty. Gen. (Justinus Gould, Drew J. T. O'Keefe and Vincent P. Russo, Sp. Assts. to Atty. Gen., on the brief), for appellee.

Before GOODRICH, KALODNER, and HASTIE, Circuit Judges.

HASTIE, Circuit Judge.

This is an appeal from an order of the United States District Court for the Eastern District of Pennsylvania adjudging the appellant, Samuel L. Hoffman, guilty of criminal contempt, and sentencing him to imprisonment for five months.

The issue raised is whether the appellant was privileged to refuse to answer certain questions put to him by a federal grand jury on the ground that his answer might incriminate him of a federal offense.

The grand jury in question was duly impaneled and sworn on September 14, 1950, and thereupon undertook an "investigation concerning frauds upon and conspiracies to defraud the Government of the United States, involving violations of the customs, narcotics, and internal revenue liquor laws of the United States, as well as violations of the White Slave Traffic Act, perjury, bribery, and other criminal laws of the United States, and conspiracy to commit all such offenses."¹

Pursuant to subpoena issued by this jury, the appellant, Hoffman, appeared as a witness on October 3, 1950. He refused to answer certain questions propounded to him by the grand jury on the ground that his answers might incriminate him of a federal offense.² Subsequently, he appeared before the district court where the claim of privilege was challenged by the government. The court heard the questions propounded to the witness and the answers he made thereto. After hearing argument of counsel for the witness, it found that the witness had been subjected to no real and substantial danger of incrimination for a federal offense, and ordered him to reappear before the grand jury and answer the questions which he had theretofore refused to answer.

The appellant stated in open court and in the presence of his counsel that he would not obey this order. The court thereupon found him guilty of contempt of court by wilful disobedience of its lawful order constituting misbehavior in its presence, and sentenced him.³

The only issue before us on this appeal is whether the appellant's claim of privilege was properly overruled.

The questions and answers in issue fall into two groups. The first concerns appellant's occupation, and is as follows:

"1. Q. What do you do now, Mr. Hoffman? A. I refuse to answer."

"2. 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."

The second concerns appellant's knowledge of the whereabouts of one William Weisberg, and is as follows:

"3. 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."

"4. Q. Have you seen him this week? A. I refuse to answer."

"5. 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."

"6. Q. Do you know where Mr. William Weisberg is now? A. I refuse to answer."

The appellant's claim of privilege not to answer these questions is based on the provision of the Fifth Amendment that "No person * * * shall be compelled in any Criminal Case to be a witness against himself * * *."⁴ It was observed very early, however, that the interest of the United States in the testimony of every citizen foreclosed an unbridled application of the privilege. See United States v. Burr (In re Willie), 1807, 25 Fed.Cas. pages 38, 39, No. 14,692e. Whatever conflict there was in the application of the two interests was thought to have been resolved by Chief Justice Marshall's enunciation of the now famous test: "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." United States v. Burr, supra, 25 Fed. Cas. p. 40. See Mason v. United States, 1917, 244 U.S. 362, 364, 37 S.Ct. 621, 61 L.Ed. 1198; Camarota v. United States, 3 Cir.1940, 111 F.2d 243, 245. It is not disputed that this prohibition applies to proceedings before a grand jury of the United States. Counselman v. Hitchcock, 1892, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110; United States v. Monia, 1943, 317 U.S. 424, 63 S.Ct. 409, 87 L.Ed. 376.

A

The first of two situations where dispute is likely to occur over the application of the Marshall rule is illustrated by the questions directed to appellant with regard to the whereabouts of William Weisberg. It is not claimed by the appellant that the answers to the questions will in themselves incriminate him, but only that they expose him to danger in that they, in conjunction with other information, may lead to revelation that appellant is guilty of a federal offense. The reality of this danger is the matter in dispute upon which the privilege depends.

Where the risk is made apparent and appears substantial, the constitutional proscription has been held applicable. But in cases where the danger is not obvious, decision has depended upon the degree of likelihood of linkage between the probable answer and a crime. E. g., United States v. Weisman, 2 Cir.1940, 111 F.2d. 260; United States v. Rosen, 2 Cir. 1949, 174 F.2d 187; United States v. Zwillman, 2 Cir.1940, 108 F.2d 802. It may well be that no more helpful generalization of the degree of likelihood required can be devised than Judge Learned Hand's often quoted statement: "* * * perhaps in the end we should say no more than that the chase must not get too hot; or the scent, too fresh." United States v. Weisman, supra, 111 F.2d 263.

We do not think appellant's admission that he had seen Weisberg within the week, or had talked to him within the week, or that he knew where he was, or a statement when he last saw him, could come dangerously close to involving him in a federal offense. We cannot see that any answer to this would be likely to differentiate appellant at all or in any significant way from a considerable number of blameless people. It was suggested that he would perhaps be subject to punishment for obstructing justice, pursuant to Section 371 or Section 1501 of the Criminal Code, 18 U.S.C.A.⁵ The sole basis for this claim is the fact, widely publicized, and known to the witness that a subpoena had been issued but not served requiring Weisberg to appear before this grand jury. However, the relationship between possible admissions in answer to the questions asked appellant and the proscription of those sections would need to be much closer for us to conclude that there was real danger in answering. In the nature of this problem, analogical comparison of cases is difficult. However, we think it worth noting that any possible answers would, in our judgment, have come no closer to connecting appellant with wrongdoing than the answers which were required by this court in Camarota v. United States, supra.

B

A more difficult problem arises in applying to the first group of questions⁶ concerning the business of the witness the accepted generality of the Marshall test. It is perfectly obvious that the questions here permit of direct answers which in themselves would be an admission of federal crime. Appellant has invoked that possibility in his assertion that a statement of "what he does" would tend to incriminate him "on the ground that it would incriminate him of a federal offense." Since the question asked permits an answer admitting federal crime, appellant urges that the court must accept this general assertion of crimination and that further inquiry whether he is in fact engaged in such illegal business is foreclosed. Literally construed Marshall's dictum — "* * * if a direct answer may criminate himself, then he must be the sole judge what his answer would be" — suggests an unqualified privilege to refuse to answer such a question as this. But we think there is one qualification which consists with the privilege and at the same time provides a salutary protection of the public interest in facilitating official inquiries.

The claimant of privilege must show the court enough beyond his bare statement of crimination at least to indicate that his claim was not clearly groundless, a contumacious assertion made in bad faith. In some circumstances, the nature of the question and the common experience of life may suffice for this purpose.⁷ But the question, "What do you do now?" is so frequently asked of witnesses as a mere identifying question that without more a court may well regard it as normally too innocent to fall within the Marshall principle. The danger may not appear sufficiently real.

In this case, the district judge in course of oral argument took the position that he could not assume appellant to be any different from any other private citizen. To him the danger that the answer would reveal more than routine identification did not appear sufficiently real. Therefore, he apparently concluded that this was a case where the burden was on the witness to offer some affirmative indication of the incriminatory possibilities of the question. Cf. United States v. Rosen, supra; United...