United States v. Brown

• Citation: 247 F.2d 332
• Decision Date: 10 July 1957
• Docket Number: Docket 24626.,No. 388,388
• Parties: UNITED STATES of America, Appellee, v. Emanuel BROWN, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

247 F.2d 332 (1957)

UNITED STATES of America, Appellee, v. Emanuel BROWN, Defendant-Appellant.

No. 388, Docket 24626.

United States Court of Appeals Second Circuit.

Argued May 6-7, 1957.

Decided July 10, 1957.

Myron L. Shapiro, New York City, for defendant-appellant.

Paul W. Williams, U. S. Atty., Southern Dist. of New York, New York City (Herbert M. Wachtell, Asst. U. S. Atty., New York City, of counsel), for appellee.

Before MEDINA, HINCKS and LUMBARD, Circuit Judges.

LUMBARD, Circuit Judge.

Emanuel Brown appeals from a judgment of conviction and a sentence of 15 months imprisonment for refusing to answer questions before a grand jury which was investigating alleged violations of the Motor Carrier Act, 49 U.S. C.A. §§ 301-327 despite assurances that under the applicable provisions of law, 49 U.S.C.A. §§ 305(d), 46, he would be immune from prosecution regarding any matters concerning which he would be required to testify.

As Brown questions the propriety of the procedure resulting in the judgment, as well as the existence and extent of the immunity conferred and the severity of the sentence imposed, we first consider the sequence of events before the grand jury and the court.

On Friday, April 5, 1957, Brown was called before a grand jury which he attended pursuant to the command of a subpoena. This grand jury was conducting an investigation into an alleged violation of the Motor Carrier Act. Although advised by the Assistant United States Attorney that he could not be prosecuted on account of any matter concerning which he would testify under the Motor Carrier Act, Brown refused to answer these six questions:

"Q. Mr. Brown, are you associated with Young Tempo, Incorporated?

"Q. Mr. Brown, does Young Tempo, Incorporated, use a trucking company known as the T and R Cutting Company or as the T and R Trucking Company?

"Q. Mr. Brown, who do you know to be the owner or owners or the principal in interest or principals in interest of the T and R Cutting or the T and R Trucking Company?

"Q. Mr. Brown are you associated with the Acme Dress Company in Midvale, New Jersey?

"Q. Mr. Brown, does the T and R Trucking Company provide trucking services between Young Tempo, Incorporated, in New York City and the Acme Dress Company in Midvale, New Jersey?

"Q. Mr. Brown, do you know if the T and R Trucking Company or the T and R Cutting Company has applied for or obtained a permit from the Interstate Commerce Commission to operate as a contract trucker between New York, New York, and Midvale, New Jersey?"

Thereupon the grand jury attended before Judge Levet to seek his aid and assistance in a direction to Brown, who was present with his counsel, that he answer the questions. At the suggestion of the government the courtroom was cleared of all but the interested parties and court personnel, no objection being then made to this procedure.

At this first hearing, government counsel stated that Brown's testimony was sought because Young Tempo, Inc., a New York City dress manufacturing firm in which Brown was a principal, had used the T and R Trucking Company or the T and R Cutting Company for trucking. The government stated that its inquiry was directed to the true ownership of these trucking companies and their operation between New York and New Jersey, contrary to law, without a permit from the Interstate Commerce Commission.

Although Brown's counsel had been advised eleven days before, on March 25, that Brown was to be questioned on these matters under the Motor Carrier Act, he asked for a "reasonable adjournment" and notice of the specifications or charges in order to prepare for the hearing.

When the judge asked counsel what proof he might wish to present, counsel replied that he would like to look into the question of whether he could compel production of the minutes of prior grand jury investigations in which Brown had pleaded the Fifth Amendment.¹

Brown's counsel asserted the investigation was being used "as a means of circumventing the exercise by Brown of his Fifth Amendment privilege to refuse to testify before the other grand jury," which government counsel denied.² There followed a colloquy regarding the existence and scope of the immunity available to a grand jury witness under 49 U.S.C.A. § 305(d) and § 46, which we treat as the principal questions before us.

The grand jury reporter was then called as a witness and testified that Brown refused before the grand jury to answer each of the six questions on the ground that by answering he might tend to incriminate himself. A recess was taken until Monday afternoon, April 8. On Monday, Brown and his counsel again appeared before Judge Levet. After the judge had indicated that he would instruct Brown to answer because the statute gave him full immunity, Brown's counsel asked for an adjournment of a day or so for further discussion with his client. The judge refused to allow more than half an hour and directed that the questions be answered before the grand jury at 2:45 p. m. After Brown's reappearance the grand jury returned to the courtroom at 3:15 p. m. and reported Brown's continued refusal to answer. The government then asked that the court again put the questions to Brown and suggested that Brown's persistent refusal in the physical presence of the court would justify his being summarily held in contempt under Rule 42(a) of the Federal Rules of Criminal Procedure, 18 U.S.C.A.

Brown, who had already been sworn before the grand jury, was called to the stand by the district judge. His counsel objected to this procedure, apparently on the ground that Brown was now a defendant in a criminal contempt case, but this was overruled. The questions were again put by the court and Brown refused to answer each question on the ground that it might tend to incriminate him. After Brown's counsel again repeated his arguments why Brown should not be compelled to answer, the Court adjudged Brown to be in contempt, under 18 U.S.C.A. § 401, and sentenced him to be confined for one year and three months.

1. Immunity under the Motor Carrier Act.

We start with the general proposition that where Congress has granted immunity from prosecution coextensive with the protection of the Fifth Amendment, the witness may not refuse to testify on the claim that he may incriminate himself. Brown v. Walker, 1896, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819 decided that with respect to the same § 46 here in question, then 27 Stat. 448, Act of February 11, 1893. Ullmann v. United States, 1956, 350 U.S. 422, 76 S. Ct. 497, 100 L.Ed. 511 is the latest affirmation of this principle with respect to the Immunity Act of 1954. 18 U.S. C.A. § 3486.

Brown claims, however, that Congress did not intend to make the immunity provisions of § 46 of the Interstate Commerce Act apply to grand jury investigations of alleged offenses under the Motor Carrier Act. We do not agree. We find that a reading of the applicable sections of the Interstate Commerce Act shows that Congress intended that witnesses testifying in a grand jury inquiry under those sections having to do with motor carriers would receive immunity just as if they were testifying in a grand jury inquiry under Title I.

The second clause of 49 U.S.C.A. § 305 (d) affords immunity in grand jury proceedings under the Motor Carrier provisions, Chapter 8, by incorporating, the "rights, privileges and immunities" and "the duties, liabilities, and penalties" of witnesses as stated in § 46 of Title I.

Section 305(d)³ in its pertinent words provides:

"* * * and any person subpoenaed or testifying in connection with any matter under investigation under this chapter shall have the same rights, privileges, and immunities and be subject to the same duties, liabilities, and penalties as though such matter arose under chapter 1 of this title, * * *"

Section 46⁴ provides in part:

"No person shall be excused from attending and testifying * * * in any cause or proceeding, criminal or otherwise, based upon or growing out of any alleged violation of chapter 1 of this title on the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him, may tend to criminate him or subject him to a penalty or forfeiture. But no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing, concerning which he may testify * * * in any such case or proceeding: * * *"

It seems to us that the natural meaning of the reference in § 305(d) to § 46 is that whatever is within the scope of the latter is to be incorporated into the former. Hence the immunity applies to grand jury investigations under Chapter 8, the Motor Carrier Act, just as it does to such investigations under Chapter 1.

Brown's argument is that since the first clause of § 305(d) grants investigatory power only to the Commission, for "any matter under investigation," the reference in the immunity clause of § 305(d) to "any matter under investigation under this chapter" should be read in pari materia with the empowering clause to mean "under investigation under this chapter by the Commission." Consequently, § 305(d) is limited to hearings before the Commission and does not apply to matters before grand juries and courts. We do not agree. It seems clear that if § 46 applies at all it applies equally to "any cause or proceeding, criminal or otherwise." There is no qualifying language. On the contrary, § 305(d) in plain words has made the immunity applicable to "any matter under investigation under this chapter." Emphasis added. This is not limited to any matter under investigation before the Commission. Furthermore, Chapter 8 provides in § 322 for criminal prosecutions and penalties for the enforcement of its various provisions, 49 U.S.C.A. §§ 301-327. Thus the power to compel testimony is as natural to and as much wedded to Chapter 8 as it is to Chapter 1. Moreover, we are unable to see anything peculiar to motor...