Healey v. United States

• Decision Date: 06 December 1950
• Docket Number: No. 12283.,12283.
• Citation: 186 F.2d 164
• Parties: HEALEY et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

186 F.2d 164 (1950)

HEALEY et al. v. UNITED STATES.

No. 12283.

United States Court of Appeals Ninth Circuit.

December 6, 1950.

Margolis & McTernan, Los Angeles, Cal., for appellants.

Ernest A. Tolin, U. S. Atty., Norman W. Neukom, Herschel E. Champlin, Asst. U. S. Attys., all of Los Angeles, Cal., for appellee.

Before DENMAN, Chief Judge, and STEPHENS and POPE, Circuit Judges.

DENMAN, Chief Judge.

These are five appeals from judgments of criminal contempt in which four were given sentences of a year or more and one, Averbuck, was fined $10.00 for refusing to answer questions put to them in sessions of the grand jury. Each claimed the right to refuse to answer on the ground that the answers would tend to incriminate.

Each is one of the thirty persons selectively chosen and sought to be served around seven o'clock in the morning on the 25th day of October, 1948, for appearance before the grand jury on that day, as described in our opinion in Kasinowitz v. United States, 9 Cir., 181 F.2d 632. Included in the same thirty persons are the appellants in Alexander v. United States, 9 Cir., 181 F.2d 480. All these litigants had the same attorneys, who thus had knowledge of the facts proved in each of these cases. It is stipulated that the records in the Alexander and Kasinowitz cases, supra, are a part of the record before the District Court in the cases in which the instant appeals were taken.

The presentment states the questions were asked in the course of "an inquiry concerning certain employees of the United States Government, who had made false statements to an agency of the Government, in a matter within the jurisdiction of that agency and in connection with the investigation of their loyalty to the Government, in violation of old Section 80, Title 18 U.S. Code, Revised Title 18 U.S. C.A. § 1001, and other criminal laws of the United States. In pursuance of such inquiry, it became necessary for said Grand Jury to inquire into and ascertain the official identity of one Dorothy Healey; the identity of the person or persons in charge of the books and records of the Los Angeles County Communist Party showing or pertaining to the membership of said organization." (Emphasis supplied.)

The presentment further alleged that "each of said questions refused answer by appellants was proper and material to the Grand Jury's inquiry." (Emphasis supplied.) Hence we are to assume that the questions which appellants refused to answer are those requiring a knowledge in the witnesses of the person or persons in charge of the books and records of the Los Angeles County Communist Party and those concerning the official identity of Dorothy Healey. If any of the questions to which answers were refused can be deemed not relevant to the declared purpose of the presentment, we assume they are not the basis of conviction.

The United States through its Assistant Attorney General Goldschein assured each witness that the investigation did not involve the witness and that he was not under investigation. The purpose of this was "just to put your mind at ease," as stated by the Assistant Attorney General to witness Newman.¹ This is such conduct as is discussed in the Alexander case, supra, 181 F.2d at page 482, and by the Court of Appeals for the Tenth Circuit in Rogers v. United States, 179 F.2d 559, 562.

It appears, however, that appellants' minds were not put at ease by these assurances of the Assistant Attorney General. Before the presentments were tried on June 23 and 24, 1949, the Department of Justice on June 15, 1949, published a press release which was admitted in evidence at the trial in which the Alexander and Kasinowitz cases, then pending in this court and which involved twenty convictions of contempt of persons of the same group that includes the five appellants here, are described as a part of the Department's record of "Prosecution * * * against Communists in the United States. The Department of Justice continues:

"Prosecution action in the courts against communists in the United States was as follows: * * *

"Sixteen alleged communists have been convicted in California on charges of civil contempt for refusing to testify before a Federal Grand Jury. Fifteen are out on bail, pending appeal to higher courts, and one was fined and paid $2500 for refusing to answer subpoena, thereby obstructing justice. He will be summoned to appear before the Grand Jury again. Conviction of 10 of these 16 has been affirmed by the 9th Circuit Court of Appeals in San Francisco, 173 F.2d 867, 181 F.2d 480. The appeals of the other 5 to the Circuit Court are pending." (Emphasis supplied.)

Such statements would reasonably add to the apprehension of the appellants that they were in danger of prosecution under either the "membership" or "affiliation" clauses of the Smith Act, 18 U.S.C.A. § 2385, or conspiracy to violate it. As seen in the Alexander and Kasinowitz cases, whose records are in evidence, that apprehension was already excited by the New York indictments against eleven persons then being tried for conspiracy to violate the Act, and the eleven individual indictments there for "membership" in the Communist Party of the United States of America "a society, group, and assembly of persons who teach and advocate the overthrow and destruction of the Government of the United States by force and violence."

Underlying other questions, the United States contends that because, though unauthorized by statute, the attorneys for the United States offered appellants full immunity if they testified, their refusal to accept the offer makes their subsequent refusal to testify the crimes for which they were convicted. Of their offer of immunity, their brief offers another assurance to relieve the minds of the appellants now before us. It is that "it is inconceivable that once immunity has been offered by the government that it would attempt to turn such evidence against any witness in breach of the good faith in which the assurance was given."

However, their same brief calls our attention to the Whiskey Cases, 99 U.S. 594, 25 L.Ed. 399, where the United States Attorney for the Northern District of Ohio offered a witness such immunity from criminal charges for offenses against the United States revenue law if he would waive his privilege against incrimination and give testimony against himself. This offer the witness accepted and, relying on it, testified, only to have the agreement broken by being prosecuted for the offenses.

Contrary to the assurances of the government's attorneys here, the Supreme Court, 99 U.S. at pages 595-596, 25 L.Ed. 399, of the Whiskey Cases, held of a person accepting such an agreement not to prosecute that it is "clear that he cannot by law plead such facts in bar of any indictment against him, nor avail himself of it upon his trial, for it is merely an equitable title to the mercy of the executive, subject to the conditions before stated, and can only come before the court by way of application to put off the trial in order to give the prisoner time to apply to the executive for that purpose. Rex v. Rudd, 1 Cowp. 331."

The cases were remanded to the district court, which was to postpone the trials to give the defendants time to seek a presidential pardon.

In Smith v. United States, 337 U.S. 137, at page 146, 69 S.Ct. 1000, at page 1005, 93 L.Ed. 1264, the Supreme Court discusses the need for statutes granting immunity to make compulsory the giving of incriminating testimony and states that it must be "absolute" in the following language: "Through Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110, it was established that absolute immunity from federal criminal prosecution for offenses disclosed by the evidence must be given a person compelled to testify after claim of privilege against self-incrimination." (Emphasis supplied.)

It is obvious that to be indicted with the right to seek a pardon is not the "immunity" which appellee's brief describes as preventing "any attempt to turn such evidence against any" of them. As the Supreme Court states, to seek and accept a pardon implies an admission of guilt. In Burdick v. United States, 236 U.S. 79, at page 94, 35 S.Ct. 267, at page 270, 59 L.Ed. 476, the Supreme Court, contrasting immunity by legislative act with a presidential pardon, states: "This brings us to the differences between legislative immunity and a pardon. They are substantial. The latter carries an imputation of guilt; acceptance a confession of it. The former has no such imputation or confession. It is tantamount to the silence of the witness. It is noncommittal. It is the unobstrusive act of the law given protection against a sinister use of his testimony, not like a pardon, requiring him to confess his guilt in order to avoid a conviction of it." (Emphasis supplied.)

It is elementary that in claiming the right not to testify against himself the witness admits no guilt. He well may be entirely innocent of the crime for which he fears prosecution. His situation may be like that of the law school discussed case of the man who has made threats against the life of a murdered man and, happening along after the murder, pulls the knife from the deceased's body and is seen clutching it. Clearly it is no admission of guilt to refuse to testify to the grand jury concerning such threats. There is no merit to the contention that because of appellee's offer of immunity appellants thereafter committed criminal contempt in refusing to testify.

A distinguishing factor regarding the questions, the answers to which were refused, is that the answer to each required a contact with persons in an organization which well may be shown to be for the criminal purpose of overthrowing the government by force. Such an organization is necessarily a secret one which probably would not keep any records of its criminal activities and particularly of "the membership of said organization" stated in the presentment....