Cole v. United States

• Decision Date: 01 June 1964
• Docket Number: No. 18807.,18807.
• Citation: 329 F.2d 437
• Parties: Marvin R. COLE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

329 F.2d 437 (1964)

Marvin R. COLE, Appellant, v. UNITED STATES of America, Appellee.

No. 18807.

United States Court of Appeals Ninth Circuit.

March 16, 1964.

Certiorari Denied June 1, 1964.

Joseph A. Ball, Ball, Hunt & Hart, Long Beach, Max F. Deutz and Herman F. Selvin, Los Angeles, Cal., for appellant.

Francis C. Whelan, U. S. Atty., Timothy M. Thornton, Asst. U. S. Atty., Chief, Sp. Prosecutions Section, and Benjamin S. Farber, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before BARNES, MERRILL and KOELSCH, Circuit Judges.

Certiorari Denied June 1, 1964. See 84 S.Ct. 1630.

BARNES, Circuit Judge:

An indictment in two counts was found by a grand jury charging appellant Marvin R. Cole with obstructing the due administration of justice, made a crime by 18 U.S.C. § 1503.

That section reads as follows:

"Influencing or injuring officer, juror or witness generally.

"Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any witness, in any court of the United States or before any United States Commissioner or other committing magistrate, or any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States commissioner or other committing magistrate, in the discharge of his duty, or injures any party or witness in his person or property on account of his attending or having attended such court or examination before such officer, commissioner, or other committing magistrate, or on account of his testifying or having testified to any matter pending therein, or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, commissioner, or other committing magistrate in his person or property on account of the performance of his official duties, or corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be fined not more than $5,000 or imprisoned not more than five years, or both."

Count I charges appellant with "corruptly" endeavoring "to influence, intimidate and impede" one Joel R. Benton (who was a witness before a certain grand jury investigation) in connection with certain testimony he might give, and Count II charges appellant with "corruptly and by threats" endeavoring "to influence, intimidate and impede" the same Benton (a witness before a second grand jury) in connection with certain testimony he might give.

Cole was found guilty by a jury on both counts. Appellant was fined $1,000 on each count concurrently, or a total fine of $1,000.

To understand appellant's theory, we quote from the "Introductory Statement" appearing in appellant's brief:

"Joel R. Benton was a friend and former employee of Cole. Benton had been orally requested to appear before a Federal grand jury. He was, however, deeply concerned and frightened over the prospect of such an appearance because he had executed and filed with a committee of the United States Senate, the socalled McClellan Committee, a false statement and affidavit. He came to Cole for advice, telling him about this perjury and of his intention simply to stand on the false statement, thus in effect repeating the perjury, before the grand jury. Cole advised Benton against this obviously improper course, and offered as the solution of Benton\'s problem the suggestion that he claim his constitutional privilege against self incrimination. Benton did. Later he turned informer; and as a consequence of Cole\'s advice to Benton to do what the latter admittedly had a perfect and lawful right to do, Mr. Cole finds himself convicted on two counts of violating section 1503. note It is from that judgment of conviction that he appeals.

"The basic and determinative question raised by this appeal is whether advice to claim the constitutional privilege, which advice does not have and was not designed to have any consequence in the way of influencing the witness to violate any of his duties as a witness or in the way of bringing about an effect upon the administration of justice that is undue, corrupt or unlawful, can be as a matter of law the crime defined by section 1503. It is the appellant\'s contention that there is not and cannot be any obstruction of justice within the meaning of that section when there is no endeavor or effort to get the witness to do anything wrong in relation to his duties as a witness. Every witness has the constitutional right to refuse to testify on grounds of possible self-incrimination; accordingly, he violates no duty as a witness when he invokes that right; and one who tries to influence or induce or persuade him to invoke it, therefore, does not endeavor to get the witness to do anything wrong."

The errors claimed are two: One, that the court erred in denying appellant's motion for an acquittal, and two, the evidence is insufficient to support the verdict of guilty.

Jurisdiction existed below, and appeal lies here. 28 U.S.C. §§ 1291 and 1294 (1).

I — FACTS

The facts are many and complicated. Appellant's recital covers twenty-three pages of its brief; appellee's covers fifteen. The latter recital, slightly modified and corrected to be less argumentative, is attached hereto as Appendix A, and we adopt it as part of this opinion.

We note also it was stipulated that during all the times herein mentioned Cole knew he was under investigation by a grand jury for possible perjury and the obstruction of the due administration of justice.

II — ARGUMENT

Appellant first urges that § 1503 has implicit in it a limitation of its literal language; that it cannot proscribe criminal acts consistent with the due administration of justice, such as influencing a witness to tell the truth. We agree. (That is not this case. Cole here never urged or advised Benton to tell the truth.) We likewise agree with appellant that "the limitation on the literal language of the statute must be that only that is proscribed which produces or which is capable of producing an effect that prevents justice from being duly administered." (Emphasis, except as to the word "duly," is this court's. Appellant's Opening Brief, p. 28.)

Appellant then argues to us (and again we agree):

"The constitutional privilege against self-incrimination is designed to protect the innocent as well as the guilty. It is an inalienable right that every witness has. It is, therefore, an important and integral part of the due administration of justice. A witness who claims it exercises only his constitutional right. When he does so, he does not, therefore, obstruct the due administration of justice or do anything contrary to his duties as a witness." (Emphasis added.)

Again, we concur emphatically. But it is from here on that this court parts company with appellant's argument. Appellant continues:

"That being so, it cannot be a crime for one to advise or persuade him to do that which is lawful and his absolute right, and which, because of that fact, is not a corrupt or otherwise wrongful obstruction of the due administration of justice."

With that conclusion, we cannot agree. It neither necessarily nor logically follows. What the statute attempts to prohibit is the "endeavor * * * to influence * * * any witness" corruptly or by threats or force or by any threatening letter.

Many acts which are not in themselves unlawful, and which do not make the actor a criminal, may make another a criminal who sees that the innocent act is accomplished for a corrupt purpose, or by threat or by force.

If in a kidnapping for ransom case "X" hires or by force and/or threat requires a messenger boy to pick up a box containing the ransom money at a certain spot and deliver it to the kidnapper, can the kidnapper escape liability for his corrupt act, by claiming it was lawful because the person he influenced was acting within his legal rights, and was himself innocent? Should either a despotic leader of a financially strong labor union, or an extremely successful manipulator in big business operations on Wall Street, be permitted to effect the withholding of testimony in a court of law or before a grand jury which might aid in convicting him of some violation of law, by permitting him to pay any sum, or intimidate in any way, one to one hundred witnesses who might testify against him, and who themselves are not being investigated, because they have the right, individually, to invoke the Fifth Amendment when called upon to testify? Such a thesis is not morally, and in our opinion, not legally sound.

According to appellant's theory, no matter how much money one pays a witness not to testify before a grand jury — whether $1,000 or $100,000; nor how many witnesses are paid such sums, and no matter what threats or force are used, and no matter how corrupt the purpose which the payer of such money may have for urging the witness to claim his (the witness') Fifth Amendment right — is of no consequence. "Its exercise that of the constitutional privilege is lawful and effective regardless of the inducing cause." (Emphasis added. Opening Brief, p. 29.)

That the inducing cause is immaterial insofar as the witness is concerned, we affirm. That this lawfulness wipes out the criminality of the inducer, acting with corrupt motive, we cannot agree. It is the witness' privilege which our inspired Constitution protects and which any person in our courts may invoke, whether he be upright citizen or foul criminal; not someone else's privilege to capture by force or threat or bribe; and thus be enabled to prostitute one of the great cornerstones of our freedom under law.

To hold otherwise, would obstruct the due administration of justice, and we refuse...