Miller v. United States

• Decision Date: 22 March 1938
• Docket Number: No. 8733.,8733.
• Citation: 95 F.2d 492
• Parties: MILLER v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

95 F.2d 492 (1938)

MILLER v. UNITED STATES.

No. 8733.

Circuit Court of Appeals, Ninth Circuit.

March 22, 1938.

Ralph B. Herzog, of Portland, Or., for appellant.

Carl C. Donaugh, U. S. Atty., and M. B. Strayer, Asst. U. S. Atty., both of Portland, Or., for the United States.

Before DENMAN, MATHEWS, and HEALY, Circuit Judges.

MATHEWS, Circuit Judge.

By presentment of a grand jury in the District Court of the United States for the District of Oregon, appellant was charged with contempt of court in refusing to answer questions propounded to her as a witness before the grand jury. Her defense was that her answers, if she had answered the questions, would have tended to incriminate her, and that, therefore, her refusal was privileged, under the Fifth Amendment to the Constitution of the United States. After a trial, at which evidence was adduced, appellant was adjudged guilty of contempt, was duly sentenced, and prosecutes this appeal. Her appeal is on the judgment roll. There is no bill of exceptions.

The question to be decided is whether, upon the record brought here, it can be said that there was a reasonable probability that appellant's answers to the questions set out in the presentment would have shown or tended to show a violation by her of any law of the United States. That her answers might have shown a violation by her of some state law, would not have justified her refusal to answer. United States v. Murdock, 284 U.S. 141, 149, 52 S.Ct. 63, 64, 76 L.Ed. 210, 82 A.L.R. 1376.

The presentment states that, at the time appellant was asked and refused to answer these questions, the grand jury had under consideration a charge against Daniel Jackson for transporting appellant in interstate commerce from San Francisco, Cal., to Klamath Falls, Or., for immoral purposes, in violation of section 2 of the White Slave Traffic Act, 18 U.S.C.A. § 398, and that the questions propounded to appellant were material thereto. These questions were:

"Did you live with Daniel Jackson at the President Hotel in San Francisco in October, 1937?

"Did you leave San Francisco with Jackson about October 29, 1937?

"Was Jackson staying with you at the President Hotel in October, 1937?

"Did Jackson accompany you from San Francisco, California, to Klamath Falls, Oregon?

"Who drove the car in which you rode from San Francisco to Klamath Falls?

"Where did you stay in Klamath Falls?

"Did Jackson stay with you in Klamath Falls?

"Did you live in Klamath Falls with Jackson as man and wife?

"Did you work as a prostitute in Klamath Falls in November, 1937?"

The mere assertion by appellant that her answers to these questions would or might tend to incriminate her was not conclusive. That was a matter to be determined by the trial court, in the exercise of a sound discretion. Mason v. United States, 244 U.S. 362, 364, 37 S.Ct. 621, 61 L.Ed. 1198; United States ex rel. Vajtauer v. Commissioner, 273 U.S. 103, 113, 47 S.Ct. 302, 306, 71 L.Ed. 560.

It must be and is conceded by appellant that, whatever her answers might have been, they could not have tended to show a violation by her of the White Slave Traffic Act, 18 U.S.C.A. § 397 et seq. That act does not punish a woman for transporting herself. Though she may be the willing object of such transportation, still, if she does not aid or assist otherwise than by her consent, she does not violate the act. Gebardi v. United States, 287 U.S. 112, 118, 53 S.Ct. 35, 36, 77 L.Ed. 206, 84 A.L.R. 370.

The only federal offense of which it is claimed appellant's answers might have tended to prove her guilty is that of conspiring to violate the White Slave Traffic Act. A woman...