Marcello v. United States

• Decision Date: 22 April 1952
• Docket Number: No. 13773.,13773.
• Parties: MARCELLO v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

196 F.2d 437 (1952)

MARCELLO v. UNITED STATES.

No. 13773.

United States Court of Appeals Fifth Circuit.

April 22, 1952.

Wm. C. Orchard, G. W. Gill, New Orleans, La., for appellant.

John N. McKay, U. S. Atty., New Orleans, La., for appellee.

Before HOLMES, RUSSELL, and RIVES, Circuit Judges.

RIVES, Circuit Judge.

This appeal is from a judgment finding the appellant guilty of contempt of the United States Senate in violation of Title 2, U.S.C.A. § 192, which reads:

"Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months."

Senate Resolution No. 202 of the 81st Congress, Second Session, was adopted by the United States Senate on May 3, 1950. The first section of the Resolution reads as follows:

"Resolved, That a special committee composed of five members, two of whom shall be members of the minority party, to be appointed by the President of the Senate from the Committee on Interstate and Foreign Commerce of the Senate and the Committee on the Judiciary of the Senate, is authorized and directed to make a full and complete study and investigation of whether organized crime utilizes the facilities of interstate commerce or otherwise operates in interstate commerce in furtherance of any transactions which are in violation of the law of the United States or of the State in which the transactions occur, and if so, the manner and extent to which, and the identity of the persons, firms or corporations by which such utilization is being made, what facilities are being used, and whether or not organized crime utilizes such interstate facilities or otherwise operates in interstate commerce for the development of corrupting influences in violation of law of the United States or of the laws of any State; Provided, however, That nothing contained herein shall (1) authorize the recommendation of any change in the laws of the several States relative to gambling, (2) effect any change in the laws of any State relative to gambling, or (3) effect any possible interference with the rights of the several States to prohibit, legalize, or in any way regulate gambling within their borders. For the purposes of this resolution, the term `State\' includes the District of Columbia or any Territory or possession of the United States."

A sub-committee of one Senator of this special committee convened in New Orleans, Louisiana, on January 25, 26, 1951, and proceeded to take testimony. When the appellant was subpoenaed to testify before the sub-committee, he was placed on the stand as a witness and administered the oath. He answered the first two questions which called for his name and address. He was then asked whether he had copies of his federal income tax returns since January 1, 1946, and certain other documents called for by the subpoena, and in response he read the following statement:

"With due respect to the committee, I am going to refuse to answer any and all questions other than my name and place of residence on the ground that the answer might tend to incriminate me and I refuse to produce any documents, records, or paper on the ground that they might tend to incriminate me."

The appellant was nevertheless asked some 166 specific questions, each of which he refused to answer on the ground that his answer might tend to incriminate him. The indictment was in 49 counts, each count charging that the appellant refused to answer a specific question propounded to him which was "pertinent to the question then under inquiry". Trial by jury was waived, and the court adjudged the appellant not guilty under 43 counts, and guilty under the six counts which charged the appellant with refusing to answer the following questions:

"Count 1: Now, sir, is there an indictment pending against you?

"Count 15: Have you ever been outside the State of Louisiana?

"Count 31: Do you know Salvatore Vittali?

"Count 34: Did you have an interest in the Beverly Club?

"Count 38: Did you ever make a statement that you had an interest of between $40,000 and $50,000 in the Beverly Club?

"Count 39: Did you ever make the statement that you had bought the New Southport Club from Vic Trapani at a cost of between $160,000 and $165,000?"

The court found that appellant was not justified in his claim of privilege against self-incrimination in refusing to answer the questions as charged in Counts Nos. 1, 15, and 31, and found that as to the questions in Counts Nos. 34, 38, and 39, the appellant had waived his right to assert his privilege against self-incrimination because of a previous statement made orally under oath to a Special Agent of the F. B. I. in 1948.

The appellant insists that the questions contained in the counts of the indictment upon which he was convicted were not "pertinent to the question under inquiry" as required by Title 2, Section 192, United States Code. See Sinclair v. United States, 279 U.S. 263, 296, 49 S.Ct. 268, 73 L.Ed. 692; McGrain v. Daugherty, 273 U.S. 135, 173, 47 S.Ct. 319, 71 L.Ed. 580; Ex parte Frankfeld, D.C., 32 F.Supp. 915.

The position of the United States is well stated in brief of its counsel as follows:

"The committee generally was engaged in the investigation of crime throughout the country, whether, it be local crime or federal crime. In the case of local crime it was the function of the committee to see whether facilities of interstate commerce were aiding the local violations with the idea ultimately of ascertaining whether or not it was advisable for the federal government to pass any statute, whether it be criminal or non-criminal, which would in some way enable the state governments and local communities to better cope with their local situation.

"The scope of the committee and the pertinency of matters into which it could, and can, inquire are almost limitless. Insofar as anything bearing upon crime, local or otherwise, is concerned the scope and pertinency of the Senate Resolution is very, very broad.

Accordingly, the persons whom the committee could call and the questions which they could ask those persons were and are almost without limit."

A Congressional inquiry may be as broad as the legislative purpose requires. Its power of inquiry as an aid to the legislative process should not be curtailed by the courts. Whether the questions for refusal to answer which the appellant was convicted were pertinent to the investigation presents a question of law which we decide in the affirmative. See In re Chapman, 166 U. S. 661, 17 S.Ct. 677, 41 L.Ed. 1154; McGrain v. Daugherty, 273 U.S. 135, 174, 47 S.Ct. 219, 71 L.Ed. 580; Trumbo v. United States, 85 U.S.App.D.C. 167, 176 F.2d 49; Marshall v. United States, 85 U.S.App.D.C. 184, 176 F.2d 473; United States v. Emspak, D.C., 95 F.Supp. 1012.

At the same time, we call attention that a most important part of the background or setting against which the court must determine whether the answers could possibly have a tendency to incriminate the appellant consists of the fact that each of the six questions must be regarded as pertinent to an "investigation of whether organized crime utilizes the facilities of interstate commerce in furtherance of any transactions which are in violation of the law of the United States or of the state in which the transactions occur."

A further part of that background or setting consists of the statement of the Chairman and only member of the subcommittee made in the course of the hearing:

"The committee will state further, to you, Counsel, that the committee has had quite an extensive investigation in which Mr. Marcello has played a very important part, in the State of Louisiana. The committee has information and reason to believe that he has had gambling, narcotics, and other kinds of operations with not only criminal characters in the State of Louisiana but in other parts of the United States; that he owns and has interest in quite a number of illegitimate businesses, illegal businesses, and probably some legal businesses; that he was born in Tunis, Africa, I believe in 1910, of Sicilian parents; that he came here in October 1910, that he has been engaged in many violations of law with various and sundry people from many parts of the United States; that he has had many meetings with criminal characters from other parts of the United States; investments in the Beverly Club, another club out here, I think, the Forrest Club, a racing news service, and many of the other organizations that counsel has asked about; that Mr. Marcello, according to the investigative reports, is one of the principal criminals in the United States today."

Other parts of that background or setting are supplied by newspaper articles, including the New Orleans Item of October 12, 1950, proclaiming in front page headlines, "Gretna Hoodlum Called Crime Czar". The headline was accompanied by "rogue's gallery" pictures of the appellant. The article is by the nationally syndicated columnist Drew Pearson, and states, "Senator Kefauver of Tennessee is the only man so far who has had the courage to beard this gang of criminals."

The article further charges that the Mafia dominates the nation's criminal rackets and names Carlos Marcello (appellant), the Louisiana head of the "Mafia", the infamous "Black Hand". It charges Marcello was made Mafia head man by Frank Costello in a meeting at the Black Diamond Club in 1947. Marcello is pictured as the "Number 1 gangster and racketeer in...