Brown v. United States, 12628.

• Decision Date: 18 May 1956
• Docket Number: No. 12628.,12628.
• Citation: 234 F.2d 140
• Parties: Stefena BROWN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

234 F.2d 140 (1956)

Stefena BROWN, Appellant, v. UNITED STATES of America, Appellee.

No. 12628.

United States Court of Appeals Sixth Circuit.

May 18, 1956.

George W. Crockett, Jr., Detroit, Mich. (Goodman, Crockett, Eden & Robb, Detroit, Mich., on the brief), for appellant.

Dwight K. Hamborsky, Detroit, Mich. (Fred W. Kaess, Detroit, Mich., on the brief), for appellee.

Before ALLEN, MARTIN and MILLER, Circuit Judges.

ALLEN, Circuit Judge.

This appeal arises out of a judgment of conviction of criminal contempt rendered by the United States District Court because of appellant's refusal in a denaturalization proceeding to answer certain questions on cross-examination following her direct testimony as a witness. Her refusal was predicated upon the Fifth Amendment to the Federal Constitution.

The government, April 24, 1953, filed a complaint for cancellation of appellant's citizenship, alleging that appellant at the time of her registration pursuant to the Alien Registration Act of 1940, 54 Stat. 670, had knowingly made false representations as to her membership in any organization devoted in whole or in part to influencing or furthering the political activities of a foreign government. It was charged that appellant on August 22, 1946, in testifying before the naturalization examiners under oath made false statements with reference to membership in the Communist Party and to the fact that she had not been a member of, or affiliated with, any organization teaching disbelief in, or opposition to, organized government. The complaint averred that as a result of concealment of material facts and false representations appellant was admitted to citizenship and took the oath of allegiance to the United States, although she had been a member of the Communist Party of the United States and Young Communist League from 1933 to at least February 1937, and during this period these organizations advocated or taught the overthrow by force or violence of the government of the United States. Appellant's answer denied any fraud or misrepresentation on her part in the proceedings.

At the trial appellant was called as a witness by the government under Rule 43(b) of the Federal Rules of Civil Procedure, 28 U.S.C. She answered questions covering the period prior to her naturalization in 1946, but refused to answer questions relating to Communism or Communist activity subsequent to 1946, claiming her privilege under the Fifth Amendment. The court as to such questions sustained appellant's claim of privilege. She testified that she was never a member of the Communist Party at any time prior to her naturalization, that prior to 1946 she did not know three witnesses for the prosecution, but that she knew two others. At the conclusion of the government's examination defendant's counsel called appellant in direct examination as a witness for the defense. She testified that she belonged to the Young Communist League from 1930 until January, 1935, at which time she left the Young Communist League and from then until her naturalization in 1946 she did not engage in any Communist Party or Young Communist League activities. She reaffirmed the truthfulness of her answers in the naturalization proceeding and in taking the oath of allegiance and denied that she had ever belonged to any organization that taught or advocated the overthrow of existing government in this country. She denied that she was asked at the time of her naturalization whether or not she had been a member of a Communist organization and denied that she knew or had ever attended any closed Young Communist League or Communist meeting with the prosecution witnesses Virgil Stewart or Bernice Baldwin.

Appellant also testified on direct examination as follows with reference to the post-1946 period and with reference to her attitude at the time of the trial:

"Q. In question 28 you were asked: `Are you a believer in anarchy, or the unlawful damage, injury or destruction of property, or of sabotage?\' And you answered `No\'. Was that a true answer to that question? A. That was a true answer.

"Q. You say it was not only a true answer at the time you filed the petition, July 16, 1946, and is that the true answer today? A. It is true. It was a perfectly true answer to that question. I never believed in overthrowing anything. I believe in fighting for this country. I like this country. I never told anybody I didn\'t.

"Q. Did you ever teach or advocate anarchy or overthrow of the existing government in this country? A. Teach?

"Q. Did you ever teach the idea that we ought to overthrow the government of the United States? A. No, I never did.

"Q. Did you ever advocate that? A. No.

"Q. Did you ever say that we should? A. No, I never did.

"Q. To your knowledge, did you ever belong to any organization that taught or advocated anarchy or the overthrow of the existing government in this country? A. No. As much as I know, I didn\'t belong, to destroy the country. I believe in helping the country, and helping the people. That was my life of living, not destroying the things that the people put up.

"Q. Are you attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States? A. That, I am."

When asked on cross-examination, "Are you now, or have you ever been, a member of the Communist Party of the United States?" she claimed her privilege under the Fifth Amendment and declined to answer. The court ruled that by taking the stand in her own defense appellant had waived her privilege and directed her to answer. Appellant then refused to answer the following questions, basing her refusal on the Fifth Amendment:

"Q. Isn\'t it true that in 1947 you were a member of the McGraw Communist Club, District No. 7 of the Communist Party of the United States?

"Q. Do you know what the Michigan School of Social Science is?

"Q. Do you know Barry Cody?

"Q. What year was the first time that you were a member of the same Communist Party Club as Barry Cody?

"Q. Isn\'t it true that there was an executive board meeting of the McGraw Communist Club held at your house in 1948?

"Q. Isn\'t it true that you have paid Communist Party dues in the McGraw Communist Club?

"Q. Did you attend an affair of the Communist Party celebrating the birthday of William Z. Foster, national chairman of the Communist Party?

"Q. Were you a student in the class at the Michigan School of Social Science, in Detroit, in 1948 and 1949?

"Q. Did you attend a meeting of the Lenin Memorial sponsored by the Communist Party at any time?

"Q. In 1948 did you hold Communist Party membership card No. 72066?

"Q. Did you hold Communist Party membership card No. 72061 in 1949?

"Q. You mean you never belonged to the Communist Party?"

The court held that appellant in testifying as a witness in her own behalf waived the right to exercise her privilege under the Fifth Amendment and found her in contempt of court. Appellant contends that a party by taking the stand in his own behalf in a civil proceeding does not waive his Constitutional privilege against incrimination.

The denaturalization proceeding is a civil case. Although the Fifth Amendment in its express terms covers criminal prosecutions and not civil cases, the courts have extended the protection of the amendment to civil as well as criminal proceedings. The meaning of the privilege is not merely that a person charged with crime shall not be compelled to be a witness against himself in a criminal prosecution; but that a person shall not be compelled, when acting as a witness in an investigation, to give testimony tending to show that he himself has committed a crime. Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110. Or, as stated in McCarthy v. Arndstein, 266 U.S. 34, 40, 45 S.Ct. 16, 17, 69 L.Ed. 158, a bankruptcy case, the privilege "applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it."

The privilege may be waived, however. In Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 568, 70 L.Ed. 1054, the Supreme Court held that a defendant in a criminal case who voluntarily testifies in his own behalf waives completely his privilege under the Fifth Amendment. As Mr. Justice Stone there stated, when the defendant takes the stand in his own behalf "within the limits of the appropriate rules he may be cross-examined as to the facts in issue. * * * He may be examined for the purpose of impeaching his credibility. * * * If, therefore, the questions asked of the defendant were logically relevant, and competent within the scope of the rules of cross-examination, they were proper questions, unless there is some reason of policy in the law of evidence which requires their exclusion."

The court pointed out that "The safeguards against self-incrimination are for the benefit of those who do not wish to become witnesses in their own behalf and not for those who do. There is a sound policy in requiring the accused who offers himself as a witness to do so without reservation, as does any other witness."

This decision was followed in Johnson v. United States, 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704. The principal question there was whether it was error for the trial court, after granting the privilege against self incrimination, to permit the prosecutor to comment upon the claim of privilege and to permit the jury to draw any inference therefrom. The Supreme Court in ruling upon this point held that, since the petitioner, who was on trial for willful attempt to defeat and evade income taxes, took the stand and in direct examination made statements in self-defense, he waived the privilege. On page 195 of 318 U.S., on page 552 of 63 S.Ct. the court quotes 8 Wigmore on Evidence, 3rd Ed. (1940), Section 2276(2) to the effect that his "`voluntary offer of testimony upon any fact is a waiver as to all other relevant facts, because of the...