Aiuppa v. United States

• Decision Date: 11 December 1952
• Docket Number: No. 11603.,11603.
• Citation: 201 F.2d 287
• Parties: AIUPPA v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

201 F.2d 287 (1952)

AIUPPA v. UNITED STATES.

No. 11603.

United States Court of Appeals Sixth Circuit.

December 11, 1952.

George F. Callaghan, Chicago, Ill., Fred H. Mandel, Cleveland, Ohio, on brief, for appellant.

John J. Kane, Jr., U. S. Atty., Cleveland, Ohio, Robert C. Grisanti, Asst. U. S. Atty., Cleveland, Ohio, on brief, for appellee.

Before MARTIN, McALLISTER and MILLER, Circuit Judges.

MARTIN, Circuit Judge.

Appellant, having waived trial by jury in the United States District Court, was convicted and sentenced to six months' imprisonment and fined $1,000 for alleged contempt of a one-man sub-committee of a special committee created by Senate Resolution to investigate organized crime in interstate commerce S.R. 202, May 3, 1950, 81st Cong., 2d Sess.. His conviction on three counts of a twelve-count indictment was based upon his refusal, while he was an involuntary witness before the sub-committee, to answer three certain questions propounded to him, on the ground that his answers might tend to incriminate him.

Senate Resolution 202 established a special committee to consist of five senators who were authorized and directed to make a full and complete study and investigation of whether organized crime utilizes the facilities of interstate commerce, or otherwise operates in interstate commerce, in furtherance of any transactions in violation of the laws of the United States or of the State in which the transactions occur; and, if so, the manner and extent to which and the identity of the persons, firms, or corporations by which such utilization is being made; what facilities are being used; and whether or not organized crime utilizes such interstate facilities or otherwise operates in interstate commerce for the development of corrupting influences in violation of laws of the United States or of any State.

The special committee was authorized to employ such officers, experts and employees as it should deem necessary in the performance of its duties, and to utilize the services, information, facilities and personnel of the various departments and agencies of the Government to the extent that such services, information, facilities, and personnel, in the opinion of the heads of such departments and agencies, could be furnished without undue interference with the performance of the work and duties of such departments and agencies. An expense fund not to exceed $150,000 was appropriated for the use of the committee, which was directed to report to the Senate not later than a prescribed date the results of its study and investigation, together with such recommendations as to necessary legislation as it should deem advisable.

This committee had the undoubted right to conduct an appropriate investigation in pursuance of the resolution, and to subpoena witnesses to appear before it and give testimony needful to enable the committee efficiently to exercise its legislative functions. McGrain v. Daugherty, 273 U.S. 135, 47 S.Ct. 319, 71 L.Ed. 580; Sinclair v. United States, 279 U.S. 263, 49 S.Ct. 268, 73 L.Ed. 692; In re Chapman, 166 U.S. 661, 17 S.Ct. 677, 41 L.Ed. 1154. But, in the conduct of an investigation by a Congressional committee, the guarantee of the Fifth Amendment to the Federal Constitution, that no person shall be compelled in any criminal case to be a witness against himself, must be scrupulously preserved. See Hoffman v. United States, 341 U.S. 479, 486, et seq., 71 S.Ct. 814, 95 L.Ed. 1118.

The three questions, refusal to answer which resulted in appellant's conviction, were specified in counts 4, 5 and 9 of the indictment and were, respectively, whether he knew R. L. O'Donnell, whether he knew Anthony Accardo, and whether, in 1947, his handbook received its wire service from the R. & H. Publishing Company.

To determine whether appellant was within his constitutional right, guaranteed by the Fifth Amendment, in refusing to answer the foregoing questions, an orderly approach would seem to be consideration first of the pertinent Supreme Court opinions upon the subject matter of constitutional immunity from self-incrimination.

Chief Justice Marshall, sitting as a trial judge in the celebrated case of United States v. Burr, 25 Fed.Cas.No. 14,692e, pages 38, 40, discussed the subject. He pointed out that the witness alone would know whether an answer to a particular question might, or might not, incriminate him; and, accordingly, if the witness should say upon his oath that his answer would incriminate him, the court can command no other testimony as to the facts. The great jurist reasoned that many links frequently compose the chain of testimony necessary to convict an individual of crime and that no witness should be compellable to furnish any one of them against himself; for it is certainly not only a possible case, but a probable one, that a witness, by disclosing a single fact, may complete the testimony against himself and to every effectual purpose accuse himself as entirely as he would by stating every circumstance required for his conviction. It was declared that the fact, of itself, might be unavailing, but all other facts without it would be insufficient. The Chief Justice asserted: "What testimony may be possessed, or is attainable, against any individual the court can never know. It would seem, then, that the court ought never to compel a witness to give an answer which discloses a fact that would form a necessary and essential part of a crime which is punishable by the laws."

More than sixty years ago the Supreme Court emphasized the liberal construction which must be placed upon the constitutional prohibition against compelling a witness to give self-incriminating testimony. Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110. In Ballman v. Fagin, 200 U.S. 186, 195, 196, 26 S.Ct. 212, 50 L.Ed. 433, Mr. Justice Holmes observed that, according to United States v. Saline Bank, 1 Pet. 100, 7 L.Ed. 69, a witness had been exonerated from disclosures which would have exposed him to the penalties of state law. He referred also to Jack v. Kansas, 199 U.S. 372, 26 S.Ct. 73, 50 L.Ed. 234; Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746; and Counselman v. Hitchcock, supra; and wrote for the Supreme Court that the conviction of the plaintiff in error for contempt in failing to produce a cash book the production of which he said would tend to incriminate him, must be reversed.

Upon study of the authorities emphasized by the Government in support of its argument that the judgment of conviction and sentence for contempt should be affirmed in this case, we are of opinion that none gainsays the proposition that a liberal attitude must be indulged by the courts toward upholding rigidly the constitutional protection against self-incrimination provided by the Fifth Amendment. The two opinions of Mr. Justice Brown, in Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819, and Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652, while not reiterating strongly, do not deny the principle. The first case merely cautions against applying the principle of Counselman v. Hitchcock to the extent of permitting a witness to decline to answer a question "for a purely fanciful protection of the witness against an imaginary danger". 161 U.S. 591, 16 S.Ct. 648. The second case holds that the benefits of the Fifth Amendment are exclusively for protection against compelling a witness to testify against himself in a criminal case, and do not empower the witness to set up his personal privilege on behalf of another person or individual, or of a corporation of which he is an officer or employee.

It is true that, in Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 82 L.Ed. 288, Mr. Justice Cardozo did not enthusiastically support the doctrine of immunity from compulsory self-incrimination. Even so, he did not challenge its constitutional validity or its applicability to an appropriate case. The opinion in Mason v. United States, 244 U.S. 362, 364, 365, 37 S.Ct. 621, 61 L.Ed. 1198, quoted the language of Chief Justice Marshall in the treason case of Burr (In re Willie), 25 Fed.Cas. No.14,692e, pages 38, 39, to the effect that when a question is propounded it is for the court to consider and decide whether a direct answer to it can implicate the witness, and if a negative conclusion be reached the witness may be required to answer without violating the constitutional privilege extended him; but that: "If a direct answer to it may criminate himself, then he must be the sole judge what his answer would be." 244 U.S. 362, 37 S.Ct. 622. The decision of the trial judge, that neither witness had reasonable cause to apprehend danger to himself from a direct answer to any question propounded, was upheld and his judgment that two witnesses were in contempt was affirmed.

In Arndstein v. McCarthy, 254 U.S. 71, 41 S.Ct. 26, 65 L.Ed. 138, the Supreme Court held that the privilege of the Fifth Amendment protects the witness against answering questions propounded if, considered in the light of the circumstances disclosed, the questions could not have been answered with entire impunity. The opinion quoted from Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 35 L.Ed. 1110: "The object was to insure that a person should not be compelled, when acting as a witness in any investigation, to give testimony which might tend to show that he himself had committed a crime." It was said that the constitutional protection against self-incrimination was not removed by a relevant provision of an Act of Congress that no testimony given by the witness in the circumstances could be offered in evidence against him in any criminal proceeding; for, as was asserted in Counselman v. Hitchcock, supra: "It could not and would not prevent the use of his testimony to search out other testimony to be used in evidence against him or his property."

The opinion in United States v. White, 322 U.S. 694,...