Kronick v. United States
| Decision Date | 17 March 1965 |
| Docket Number | No. 19852.,19852. |
| Citation | 343 F.2d 436 |
| Parties | Norman KRONICK, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
David Y. Mar, Honolulu, Hawaii, for appellant.
Wm. H. Orrick, Jr., Asst. Atty. Gen., Lionel Kestenbaum, Donald L. Hardison, Attys., Dept. of Justice, Washington, D. C., for appellee.
Before ORR, HAMLEY and BROWNING, Circuit Judges.
Norman Kronick was convicted of criminal contempt pursuant to Rule 42 (a), Federal Rules of Criminal Procedure, and appeals to this court. The conviction followed Kronick's refusal, on a claim of privilege against self-incrimination, to obey a court order that he answer questions propounded of him as a witness in an action then on trial.
The action in question is entitled United States v. Flynn-Lerner, et al., Civil No. 2109, District of Hawaii. It involves two claims, the first being for liquidated damages under section 209 of the Federal Property and Administrative Services Act of 1949, 63 Stat. 392, 40 U.S.C. § 489 (1958). The second, and alternative claim, brought under section 4 of the Clayton Act, 38 Stat. 371 (1914), 15 U.S.C. § 15 (1958), is for damages resulting from asserted violations of sections 1 and 3 of the Sherman Act, 26 Stat. 209 (1890), as amended, 15 U.S.C. §§ 1, 3 (1958).
Kronick, a former officer of National Metals, Ltd., one of the defendants in the action just described, was subpoenaed by the Government and called as its first witness at the trial. He gave fully responsive answers to a variety of questions.
While being questioned concerning the internal business methods of National Metals, he stated, in answer to a question, that the presence of a carbon copy of a letter in the files of the company did not necessarily indicate that the letter had been sent. This answer was directly contrary to an answer to the same question which Kronick had given in a previously-tried criminal action involving the same parties.
Kronick was confronted with his previous testimony. He stated that he had thought at the time of the criminal trial that he was telling the truth. However, he continued, a subsequent check of the files now indicated to him that some carbon copies had been retained in the company files although the original of the letter had not been sent.
Kronick was then asked by Government counsel whether Dulien Steel Products had any business relationship with National Metals. He answered that there was no such relationship. This testimony, too, was directly contrary to that given by Kronick at the criminal trial. He was confronted with his previous testimony and asked whether he had told the truth at the criminal trial. Kronick replied, "Yes." This colloquy then occurred:
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Another Government attorney then took over the examination of Kronick during the course of which the latter reiterated his "coaching" charge. Counsel for the Government then asked for, and obtained, a recess, and a conference out of the presence of the jury occurred in the court room. Government counsel indicated his frustration because of the contradictory answers Kronick had given, and counsel's concern about Kronick's apparent charge of subornation of perjury. Counsel did not ask the court to take any particular action but was apparently seeking guidance from the court as to how to proceed. The court stated, in effect, that it could not properly prevent Kronick from making any answers he chose to make, indicating that his credibility was for the jury to determine.
The conference resumed a short time later in chambers. Counsel for the Government and for all of the defendants were present at this further conference. Kronick, who was only a witness, was not present. Further discussion was had along the same line as that which took place in the court room after a recess had been declared. Raymond M. Carlson, one of the Government attorneys, then made the following statements, which allegedly precipitated the claim of privilege against self-incrimination:
Alioto protested emphatically against the making of this statement. He asserted that it was an attempt by the Government in the presence of what Alioto termed counsel for Kronick, namely David Y. Mar and Robert St. Sure, to intimidate the witness, to the prejudice of Alioto's client. Up to this time, however, neither the court nor Government counsel had been advised that Mar or St. Sure were counsel for Kronick, and it was not until later in the day, at another conference in chambers that Mar and St. Sure so advised the court and Government counsel.
Government counsel immediately denied having said or intended to indicate that Kronick had been reported to the Federal Bureau of Investigation for investigation and was being investigated for perjury. Carlson stated that he was mistaken in making the general statement quoted above, to the extent that it implied that Kronick had been reported for investigation. Carlson explained his mistake by saying that he had assumed too much from overhearing one side of a telephone conversation between Carl L. Steinhouse, one of the Government attorneys, and the United States Attorney in Honolulu. The actual purport of that conversation, Government counsel advised the court, was that Steinhouse had reported to the United States Attorney that Kronick had accused Steinhouse of subornation of perjury in the criminal action.
The district court, while believing the explanation offered by Government counsel, admonished them for what it regarded as an improper remark concerning an investigation for possible perjury. The conference in chambers then recessed until the afternoon, when it was resumed. During this conference the court was advised for the first time that St. Sure and Mar were representing witness Kronick as well as National Metals, Ltd., one of the defendants. These attorneys also told the court that they had advised Kronick of what they stated to be his privilege against self-incrimination. At this and subsequent conferences in chambers and hearings in the court room, extensive argument was had concerning the basis for claiming the privilege against self-incrimination, in the light of the immunity statute, 32 Stat. 904 (1903), 15 U.S.C. § 32 (1958), which, as it appears in the Code, reads:
Trial of the civil action resumed on the following Monday morning. Kronick went back to the witness stand and was asked by Government counsel whether he had a meeting with anyone other than National Metals prior to certain bids on military scrap metal. Kronick refused to answer the question, stating:
The jury was immediately excused and further argument was had on the privilege question. After a recess during which the court read the authorities cited, court proceedings resumed but without the presence of the jury. The court informed Kronick that the reasons given by him and his counsel for claiming the privilege were insufficient in law. The court told Kronick that he was therefore in contempt and would be subject to punishment should be refuse to testify. The court thereupon ordered Kronick to testify, but the latter declined to answer any such questions. In further explanation of his position Kronick stated, in effect, that he feared the Government counsel would seek reprisals against him concerning the answers he might give. He added that he had been in "tremendous fear" in the last three or four days.
The court told Kronick that under the immunity statute his testimony would immunize him from all prosecution, including perjury at the...
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Bonk, In re
...these nine questions truthfully, whether or not his answers are consistent with the June 1975 acquittal verdict. Kronick v. United States, 343 F.2d 436, 441 (9th Cir. 1965). As the Government conceded at the oral argument, the doctrine of collateral estoppel would adequately prevent a succe......
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State v. Rice
...with his trial testimony, the State cannot use that inconsistency to prove that Officer Porter committed perjury. Kronick v. United States, 343 F.2d 436, 441 (9th Cir.1965) (noting that the State will be precluded “from relying upon any contradiction which may appear as between [the witness......
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People v. Campbell
...320, 326, 85 Cal.Rptr. 129, 466 P.2d 673; see also Blau v. United States (1950) 340 U.S. 159, 71 S.Ct. 223, 95 L.Ed. 170; Kronick v. United States (1965) 343 F.2d 436.) The privilege is therefore not limited to the subject matter of the inquiry concerning which the testimony is compelled. A......
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In re Baldinger
...militates in favor of the construction urged by Miss Baldinger, and against that suggested by the government. In Kronick v. United States, 343 F.2d 436 (9th Cir. 1965), the appellant, a former corporate officer, first testified at a criminal trial in which the corporation was a defendant. H......