United States v. Ullmann

• Decision Date: 04 April 1955
• Docket Number: Docket 23555.,No. 260,260
• Citation: 221 F.2d 760
• Parties: UNITED STATES of America, Appellee, v. William Ludwig ULLMANN, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

221 F.2d 760 (1955)

UNITED STATES of America, Appellee, v. William Ludwig ULLMANN, Appellant.

No. 260, Docket 23555.

United States Court of Appeals Second Circuit.

Argued March 16, 1955.

Decided April 4, 1955.

Writ of Certiorari Granted June 6, 1955.

Nathan Witt and Leonard B. Boudin, New York City (Victor Rabinowitz, New York City, of counsel), for appellant.

J. Edward Lumbard, U. S. Atty. for the Southern Dist. of New York, New York City (B. Franklin Taylor, Sp. Asst. to Atty. Gen., of counsel), for appellee.

Before CLARK, Chief Judge, FRANK, Circuit Judge, and GALSTON, District Judge.

Writ of Certiorari Granted June 6, 1955. See 75 S.Ct. 882.

FRANK, Circuit Judge.

The facts are fully stated in Judge Weinfeld's excellent opinion, 128 F.Supp. 617, the reasoning and conclusions of which we adopt.

It is well to add a few words about defendant's contention concerning the doctrine of Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819, which held that the Fifth Amendment privilege against self-incrimination relates solely to testimony that might lead to defendant's prosecution for a crime. Defendant asks us to modify this doctrine in the light of new circumstances which have since arisen.¹ We are not prepared to say that this suggestion lacks all merit.² But our possible views on the subject have no significance. For an inferior court like ours may not modify a Supreme Court doctrine in the absence of any indication of new doctrinal trends in that Court's opinions,³ and we perceive none that are pertinent here. Accordingly, the argument must be addressed not to our ears but to eighteen others in Washington, D. C.

Affirmed.

CLARK, Chief Judge (concurring).

I concur, but regretfully. For the steady and now precipitate erosion of the Fifth Amendment seems to me to have gone far beyond anything within the conception of those justices of the Supreme Court who by the narrowest of margins first gave support to the trend in the 1890s. And serious commentators have found this new statute peculiarly disturbing in policy and in law. Griswold, The Fifth Amendment Today 80-81 (1955); Taylor, Grand Inquest 217-221, 296-300 (1955); Barth, Government by Investigation 130-134 (1955). It undermines and so far forth nullifies one of the basic differences between our justice and that of systems we contemn, namely the principle that the individual shall not be forced to condemn himself. Practically, as we know, no formal immunity can protect a minority deviator from society's dooms when he departs from its norms. And realistically viewed there is much in the defendant's contention that at the end of the road is a charge of perjury supported by the oath of a renegade or paid informer. Convictions so obtained and punishment thus decreed cannot satisfy either the needs or the ideology of a democratic country committed to respect and toleration for dissident minorities. But I can see no escape from the Supreme Court decisions so carefully analyzed by Judge Weinfeld which, while they stand, are binding on us.

GALSTON, District Judge (concurring).

If this matter were one of first impression I could easily reach the conclusion that the immunity statute in question is in effect a circuitous attempt to circumvent the Constitution by a short-cut legislative statute amending the Fifth Amendment. However, it would appear that the authorities support the contention that Congress has the power to compel testimony by the enactment of an immunity statute which provides an immunity co-extensive with privilege against self-incrimination. Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819; Smith v. United States, 337 U.S. 137, 69 S.Ct. 1000, 93 L.Ed. 1264. Secondly, that being so, consistently it can be argued that the statute is not invalid for failure expressly to grant immunity from state prosecution. United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210; Feldman v. United States, 322 U.S. 487, 64 S.Ct. 1082, 88 L.Ed. 1408. See also Jack v. Kansas, 199 U.S. 372, 26 S.Ct. 73, 50 L.Ed. 234.

The good faith of the Attorney General when he acts under 18 U.S.C.A. Section 3486(c) should be assumed.

1 Defendant's brief states the following:

"The Internal Security Act (64 Stat. 987 (1950) ), 50 U.S.C. Secs. 74o et seq. 50 U.S.C.A. § 781 et seq., federal executive orders and current loyalty procedures prohibit the employment of socalled subversives in government or defense facilities and make it unlawful for them to apply for or use passports. If the President declares the existence of `an internal security emergency,' the Attorney General can intern anyone as to whom `there is reasonable ground to believe that such person probably will engage in, or probably will conspire with others to engage in, acts of espionage or sabotage.' 50 U.S.C. 812, 813, 50 U.S.C.A. §§ 812, 813.

"Employment as a longshoreman or in the privately owned merchant marine is subject to governmental screening (64 Stat. 428, 1950; 50 U.S.C., Sec. 191 50 U.S.C.A. § 191). Since June 1954, the Defense Department has promulgated an elaborate series of security regulations providing for the undesirable discharge of persons inducted into the Armed Forces under the Selective Service Acts 50 U.S. C.A.Appendix, §§ 301 et seq., 451 et seq. for associations antedating their induction, with the consequent disgrace and economic injury. (See, for example, Department of the Army, Special Regulations S.R. XXX-XXX-X.) It may reasonably be estimated that at least 15 million people are affected by security regulations imposed by the federal government.

"It is inconceivable that the government would license political dissenters to operate radio stations, would give them government contracts, or permit their employment in government jobs, defense plants, or other industries whose employment is controlled or regulated by it. The recently enacted statute which purports to deprive of citizenship persons convicted of Smith Act 18 U.S.C.A. § 2385 violations (Public Law, 83rd Cong., 2d Sess. (1954) 8 U.S.C.A. § 1481(a) (9) ) may be the precursor of extension to persons compelled to make such admissions before congressional committees, and grand juries.

"Obviously the immunity statute cannot relieve of these disabilities those who testify pursuant to its provisions. Certainly the Act was not intended to permit those who admit Communist Party membership before a grand jury thereby to become eligible for passports, for employment in the government or in defense facilities, for broadcasting station licenses, for retention in the armed forces and the right to remain outside concentration camps. All of the disabilities created by statute will exist just as...