United States v. Chandler

Citation380 F.2d 993
Decision Date12 July 1967
Docket NumberNo. 469,Docket 31036.,469
PartiesUNITED STATES of America, Appellee, v. Len CHANDLER, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Mordecai Rosenfeld, New York City (Abbott A. Leban, Irvington, N. Y., Peter C. Clapman, Forest Hills, N. Y., on the brief), for defendant-appellant.

Peter Fleming, Jr., Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty. for the Southern District of New York, John E. Sprizzo, Asst. U. S. Atty., on the brief), for appellee.

Before HAYS and FEINBERG, Circuit Judges, and McLEAN, District Judge.*

FEINBERG, Circuit Judge:

In November 1965, a rally was held in Union Square for the announced purpose of burning draft-cards to protest the war in Vietnam. Four of the participants were subsequently prosecuted for that act under 50 U.S.C.App. § 462(b) (3). One pleaded guilty; the other three were tried before Judge Murphy sitting without a jury and were found guilty of violating that statute. Their convictions have recently been appealed to this court, Docket Nos. 31035-37, argued June 26, 1967. However, still another aftermath of the same draft-card burning rally is now before us — an appeal by Len Chandler from a conviction for criminal contempt entered by Judge Murphy for refusal to answer a question put to him by the judge. Chandler's asserted reason for his silence was his Fifth Amendment privilege. For reasons given below, we reverse the judgment of conviction.

At the 1965 rally, one of the draft-card burners was Marc Edelman, who had some difficulty in getting his card to burn. According to Edelman's testimony at his trial, he tore it in half and tried to burn each piece; when this was not completely successful, he threw the singed halves to the crowd. About a week after the rally, appellant Chandler, who was a friend of Edelman, told him that he had found one of the halves. Edelman told Chandler "to keep it that Edelman didn't want it." Edelman was thereafter indicted in December 1965. Nevertheless, Chandler kept the remnant for eleven months "as a memento * * * * in a safe place as a valuable." A few days before the trial, however, Chandler returned the portion of the card when Edelman's counsel requested it.

This information was brought out by Edelman as a witness in his own defense under questioning by his counsel and the court. The Government asked only one question on cross-examination: "I do not imagine Mr. Chandler knew you were under indictment, did he?" Edelman responded that Chandler did know it. Then both sides rested. However, Judge Murphy immediately had appellant Chandler subpoenaed as a court witness. According to the Government, Chandler's testimony could have been relevant on two complicated theories discussed in the margin.1 Whatever the reasons for calling Chandler as a witness, there is no question that he was served on Friday, October 21, 1966, with a subpoena commanding him to appear, that he thereafter acquired counsel (Harold R. Rothwax) on an emergency basis, and that on Monday, October 24, 1966, he appeared before Judge Murphy. The following colloquy, inter alia, thereupon took place, after appellant was duly sworn:

By the Court:

* * * * * *
Q. What I wanted to ask you about were the circumstances under which you received or found this half of the draft card which has been marked as Exhibit AE for identification in this case. Do you see it there? You may take it in your hand. Do you recognize it? A. I respectfully refuse to answer on the ground that my answer might tend to incriminate me.
Q. You had better explain that to me or perhaps you wanted to explain why that answer would tend to incriminate you. I do not understand why it would.
Mr. Rothwax: I do not believe that the witness said it would tend to incriminate him. He said it might.
The Court: There has to be some explanation. I can make a decent guess if he would tell me something, but just asking him what the circumstances were under which he allegedly had possession of it I do not see how that would tend to incriminate him.
Mr. Rothwax: I understand that this was a Selective Service document and I have not, myself, seen it.
The Court: You may look at it. It appears to be half of a Selective Service card.
Mr. Rothwax: I accept your Honor\'s description of it. It is probably, or is it definitely, now evidence in this particular case. It might very well be that Mr. Chandler\'s possession of it was in violation of federal law. It might very well be that his possession of it might be part of an ultimate charge that he conspired with others to obstruct justice, or that he withheld evidence that was relevant in a federal case, and for those reasons I feel that he is justified in standing on the Fifth Amendment in refusing to answer.
By the Court:
Q. Where do you live? A. I live at 645 Water Street.
Q. Are you a musician by profession? A. Yes, I am, sir.
Q. Do you know Mr. Edelman? A. Yes, I do, sir.
The Court: I am not completely satisfied that he has persuaded me or you that the answer to my question would tend to incriminate him.
Mr. Rothwax: Your Honor, as I understand the rulings, it is important for the witness to assert this privilege at a time prior and not necessarily —
The Court: How am I going to make an intelligence sic guess as to whether he is claiming it rightfully or wrongly?
Mr. Rothwax: Your Honor, anythink that would associate him with that piece of evidence could conceivably, at a later time, and due to circumstances beyond my knowledge or his, embroil him, again conceivably, in some kind of federal prosecution. I have not been present throughout this trial; I have not seen all the minutes in this particular case; I do not know what the thrust of your Honor\'s questions are; I do not know what the relevancy of the matter is.
The Court: Mr. Edelman testified, in substance, that at the rally that was held on November 6th of last year, in an attempt to burn his draft card he was met with bad success, as they say, and he could not get the card burning as well as he would like to have it burn because it had been laminated, and he tore it in half and then tried again but without success, and in disgust he took it and threw it into the crowd. He said that at a date not too far from that date this gentleman, who was in the audience and who was a friend of his, told him that he had found the card because Mr. Edelman\'s name was on the handwritten part of it.
Mr. Rothwax: I understand that when this testimony had taken place your Honor addressed a question to Mr. Edelman as to whether or not when Mr. Chandler handed that piece of paper to him Mr. Chandler knew that Mr. Edelman was under indictment. I understand that Mr. Edelbaum sic answered yes, he did know.
Aside from that particular question or its answer, it seems to me that that is a factor or circumstance which weighs in the desirability of Mr. Chandler answering this particular question.
* * * * * *
The Court: Mr. Fleming did ask the witness the following:
"Q. I do not imagine Mr. Chandler knew you were under indictment, did he? A. Yes, he did."
What time that refers to I have no idea.
Mr. Rothwax: It occurs to me that if that was the case, as Mr. Edelman described it, this might again be a basis whereby an answer, responsive to your Honor\'s question, might tend to incriminate Mr. Chandler, so it is on that basis that I ask that he not answer the question.
By the Court:
Q. Were you present at the rally that was held in Union Square on November 6, 1965, as part of the audience? A. I would request permission to speak to counsel.
* * * * * *
(The witness conferred with his counsel.)
* * * * * *
Q. What is your answer? A. I respectfully refuse to answer the question on the ground that it might tend to incriminate me.
The Court: I cannot follow why that would tend to incriminate him being present with 2,000 other people.
Mr. Rothwax: Again, your Honor, as I read the law — and I may be in error — it seems to me that if he is to assert the privilege he is to assert it the first time, the earliest moment when he deems that the answers to those questions may lead into a chain of circumstances, to a possible incriminating circumstance.
The Court: I think we can test it on that.

By the Court:

Q. That\'s your answer, that you refuse to answer the question whether or no you were present at Union Square on November 6, 1965, during the rally when some five men publicly burned their draft cards, and you say you refuse to answer the question on the ground that it might tend to incriminate you? A. Yes, sir.
The Court: I direct the witness to answer, and you advise him not to?
Mr. Rothwax: I do, your Honor.
The Court: I think, perhaps, the better way to do it is to hold him in contempt for failing to answer that question.
You may step down. Thank you.

A contempt hearing was held on November 3, 1966; Chandler's counsel then made quite clear, if it had not been so before, that appellant's refusal to answer had been due solely to counsel's advice. Based upon the above quoted record, Judge Murphy held Chandler in contempt of court. On December 8, 1966, with the benefit of a presentence report showing that the defendant was "a man of integrity and intelligence and a real citizen," the judge suspended imposition of sentence, and placed Chandler on probation for a period of one day.

Appellant asserts that the judgment of conviction should be set aside because (1) the privilege against self-incrimination was properly invoked; and (2), in any event, he was never directly ordered to answer after he invoked the privilege.

The substantive attack on the judgment of conviction is persuasive. The applicable law has been unequivocally stated by the Supreme Court. In Hoffman v. United States, 341 U.S. 479, 486-487, 71 S.Ct. 814, 95 L.Ed. 1118 (1951), the Court said:

The privilege afforded not only extends to answers that would in themselves support a conviction under a federal
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