Hashagen v. United States

• Decision Date: 27 August 1960
• Docket Number: No. 16917.,16917.
• Citation: 283 F.2d 345
• Parties: Sandra (Claretta) HASHAGEN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

283 F.2d 345 (1960)

Sandra (Claretta) HASHAGEN, Appellant, v. UNITED STATES of America, Appellee.

No. 16917.

United States Court of Appeals Ninth Circuit.

August 27, 1960.

Belli, Ashe & Geary, San Francisco, Cal., Wirin, Rissman, Okrand & Posner, Los Angeles, Cal., Jack A. Dahlstrum, Los Angeles, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Robert J. Jensen, Thomas R. Sheridan, Asst., U. S. Attys., Los Angeles, Cal., for appellee.

Before CHAMBERS, HAMLEY and KOELSCH, Circuit Judges.

KOELSCH, Circuit Judge.

This is an appeal by Sandra (Claretta) Hashagen from an order of the district court committing her to the custody of the United States Marshal until she purges herself of contempt of court growing out of her refusal to answer several questions put to her by a grand jury on May 12, 1960. Appellant was subpoenaed to appear as a witness before that body and did so on four occasions: May 2nd, 5th, 9th, and 12th.¹ As a result of her persistent and continuous refusal to answer questions propounded to her, she was taken before the district judge on May 12th by the United States Attorney where the latter, after placing in evidence the transcript of the day's proceedings before the grand jury, moved that appropriate action be taken against the witness.

The district judge examined the transcript in detail and heard arguments on each question by counsel for both the government and the witness. He was apprised that the purpose of the grand jury's investigation was to inquire into the financial transactions and business affairs of one Cohen, and that some individual had already been indicted as a result of this investigation.

The transcript itself revealed that on the evening of December 2, 1959, the witness had gone alone to a night club called "Rondelli's" near Los Angeles to meet Cohen; she was informed on her arrival that Cohen was in the manager's office at the rear of the club, so she waited for him in the main room where he presently joined her. Shortly afterward, a shooting occurred at an adjoining table where a character variously known as Jack Whalen, "J. O.," and "The Enforcer" was mortally wounded; thereupon the witness hurriedly prepared to leave in Cohen's Cadillac, the keys to which he had previously given her, and as she was doing so, the "maitre d'" of the club handed her a money order in the sum of $800.00, payable to Cohen, together with several items of jewelry. A short time later she was arrested by the Los Angeles police who, during a search of her apartment incidental to the arrest, discovered the jewelry; it was subsequently turned over to them. The transcript further showed that many of the questions which the witness had refused to answer inquired into the ownership of, and her interest in, the jewelry, the nature of her association and dealings with Cohen, and the identity of the "maitre d'" at Rondelli's.

During the discussion of these questions between court and counsel, the attorney for the witness asserted that the government claimed that the jewelry was Cohen's property "and they want to make some kind of levy on it in order to collect moneys that are assertedly due from Mr. Cohen." He suggested that if the witness were made to answer the questions and reveal the nature of her interest in the jewelry, she might be subject to prosecution under 26 U.S.C.A. § 7206(4), which makes a federal crime of "* * * removing, depositing, or concealing * * * any property upon which levy is authorized * * * with intent to evade or defeat the assessment or collection of any tax imposed by this title."

The district judge rejected this proposition and observed generally that the questions, except for a few which were later withdrawn, did not require answers which might tend to incriminate. The witness thereupon expressed a willingness to "try to answer the question," but upon her return to the grand jury room she again refused to answer and within thirty minutes was back before the court. Upon hearing the transcript read, the court ordered the witness to return again to the grand jury room and answer the following questions:

"Was the jewelry that was given to you on December 2nd, 1959, in the general area of Rondelli\'s restaurant out in the San Fernando Valley, given to you by the same Phillip Packer that was in the anteroom of the grand jury, and was also present in the anteroom of the grand jury today?

* * * * * *

"Miss Hashagen, do you own the jewelry that Mr. Phillip Packer handed to you in Rondelli\'s restaurant on the night of December 2nd, 1959?

* * * * * *

"Do you have an ownership interest in the jewelry that was given to you or handed to you at Rondelli\'s restaurant on the night of December 2nd, 1959?

* * * * * *

"On the jewelry in question, that is the jewelry that was handed to you at Rondelli\'s restaurant on December 2nd, 1959, did you see that jewelry at any time, or any piece of it, prior to December 2nd, 1959?

* * * * * *

"Has * * * Cohen ever given you a gift?

* * * * * *

"Has * * * Cohen ever given you any cash?

* * * * * *

"Has * * * Cohen ever secured any type of employment for you?"

The witness refused to comply with the order, stating, "I am standing on the Fifth;" the court then committed her "* * * until such time as she sees fit to answer such questions as she was ordered to answer and then she will be immediately released."

The "guarantee against testimonial compulsion"² embodied in the Fifth Amendment to the United States Constitution must be liberally construed and broadly applied in order to sustain fully the basic right it was designed to protect. It is not merely an admission of guilt of a federal crime, or of a probative fact which, with others, may aid in establishing guilt, that may be withheld; the privilege to remain silent may also be validly asserted where the answer to a question would be likely to provide a lead or clue to a source of evidence of such crime, and thus furnish a means of securing one or some of the "links in the chain of evidence" required for federal prosecution of the witness. Counselman v. Hitchcock, 1892, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110; Alexander v. United States, 9 Cir., 1950, 181 F.2d 480. The emulous conflict between the government's right to information, including the consequent duty of the citizen to testify, and the witness' right not to incriminate himself, must be balanced in favor of the constitutional privilege. If at times this results in closing and locking the doors of discovery to the government, that is but a calculated and foreseen consequence of recognizing this basic right in a free society.

The scope of the privilege is clearly outlined by innumerable decisions, but the bare assertion by a witness that he may incriminate himself does not establish that fact: "* * * his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified * * *". Hoffman v. U. S., 1951, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118. If a witness were required actually to prove the validity of his claim of privilege, he would necessarily relinquish it; in recognition of this potential loss, the Supreme Court has declared:

"To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. The trial judge in appraising the claim `must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence.\'" Hoffman v. United States, supra, 341 U.S. at page 486, 71 S.Ct. at page 818.

In light of these principles, we believe answers to the above seven questions, in the setting in which they were asked, could require a disclosure of elements and probative facts of federal crimes, or clues leading to them, which might reasonably fall within the privileged "dangers" referred to in Hoffman.

It is apparent that the district judge adopted the government's contention that the answers to the questions propounded would at best prove helpful only in some prosecution against Cohen. If this were true, the witness was properly required to answer, for the Supreme Court settled this question long ago:

"The right of a person under the 5th Amendment to refuse to incriminate himself is purely a personal privilege of the witness. It was never intended to permit him to plead the fact that some third person might be incriminated by his testimony, even though he were the agent of such person." Hale v. Henkel, 1906, 201 U.S. 43, 69, 26 S.Ct. 370, 377, 50 L.Ed. 652.

But it seems to us that if the answers might tend to increase the danger toward Cohen, they could well and on the same basis similarly affect the witness herself. So viewed, the answers could be properly withheld. See United States v. Courtney, 2 Cir., 1956, 236 F.2d 921. In this regard, the statute called to the attention of the court by counsel for the witness merits more than passing consideration: one who aids in its violation may be an accomplice.

When the tableau sketched by this record is examined, the incriminating dangers to this witness become apparent. She was present at the fatal shooting of the man significantly called "The Enforcer," in a night club that was apparently frequented by underworld figures of greater and lesser notoriety. With the presence of the police momentarily expected, she was suddenly handed valuable property for the fairly obvious purpose of secreting it from the police. The fact is that she quickly left the night club in Cohen's Cadillac before the police arrived, and it was only after her arrest wherein the jewelry was discovered that she finally turned it over to the authorities; apparently the money order, with Cohen's name on it, was never found.

Then came the investigation of Cohen and his financial transactions for...