United States v. Chandler
Citation | 380 F.2d 993 |
Decision Date | 12 July 1967 |
Docket Number | No. 469,Docket 31036.,469 |
Parties | UNITED STATES of America, Appellee, v. Len CHANDLER, Defendant-Appellant. |
Court | United 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.*
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:
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:
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