Amato v. Porter

• Decision Date: 26 October 1946
• Docket Number: No. 3360.,3360.
• Citation: 157 F.2d 719
• Parties: AMATO v. PORTER.
• Court: U.S. Court of Appeals — Tenth Circuit

157 F.2d 719 (1946)

AMATO v. PORTER.

No. 3360.

Circuit Court of Appeals, Tenth Circuit.

October 26, 1946.

Harold Taft King, of Denver, Colo., for appellant.

Albert M. Dreyer, of Washington, D. C. (George Moncharsh and David London, both of Washington, D. C., and Max D. Melville, of Denver, Colo., on the brief), for appellee.

Before HUXMAN and MURRAH, Circuit Judges, and BROADDUS, District Judge.

HUXMAN, Circuit Judge, delivered the opinion of the court.

The appellant, Marion M. Amato, is a wholesale distributor of bananas in Denver, Colorado. As such, he was subject to the Office of Price Administration Act,¹ and to the regulations of the Administrator promulgated thereunder. The administrator instituted an action against him in the United States District Court for the District of Colorado for treble damages under Sec. 205 (e) of the Act, as amended, alleging overcharges on sales of bananas. The action was prosecuted on evidence adduced by the Administrator from an examination of the records which the appellant was required to keep under the regulations of the Administrator. A motion to dismiss and a motion to supress the evidence were filed, and were overruled by the court, 60 F.Supp. 361, and the appellant was found guilty of violating the provisions of the Act.

Section 202(b) of the Act authorized the Administrator by proper regulation or order to require any person who is engaged in business subject to the Act to keep certain records and other documents, and to make reports, and provides that the Administrator may require any such person to permit the inspection and copying of records and other documents and the inspection of inventories in enforcing the provisions of the Act. Section 202(g) of the Act provides that no person shall be excused from complying with any requirements under this section because of his privilege against self incrimination, but that the immunity provisions of the Compulsory Testimony Act of February 11, 1893, 49 U.S.C.A. § 46, shall apply with full respect to any individual who specifically claims such privilege.

The Compulsory Testimony Act provides that no person shall be prosecuted or subjected to any penalty or forfeiture on account of any transaction made or things concerning which he may be compelled to testify or produce evidence, documentary or otherwise. It is under this provision that appellant sought the suppression of testimony upon which judgment was entered against him, and now seeks a reversal of the judgment of the court below.

The Administrator urges two grounds in opposition to the position of appellant, namely, that these are public records and that as to them appellant has no immunity, and, second, that this is a civil and not a criminal proceeding and therefore the constitutional immunity does not, in any event, apply.

The Compulsory Testimony Act must be construed as coterminous with the constitutional immunity privilege of the individual. Heike v. United States, 227 U.S. 131, 33 S.Ct. 226, 57 L.Ed. 450, Ann.Cas. 1914C, 128. In other words, it does not add to the constitutional immunity. It merely manifests the intent that nothing is taken away. But the constitutional immunity against self-incrimination does not protect an individual against a demand for the production of all records or evidence in his possession, even if the production thereof might subject him to personal prosecution. This question is extensively treated in Wilson v. United States, ...