Poretto v. United States, 13818.
| Decision Date | 22 April 1952 |
| Docket Number | No. 13818.,13818. |
| Citation | 196 F.2d 392 |
| Parties | PORETTO v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Eugene Stanley, Wm. C. Orchard, New Orleans, La., for appellant.
John N. McKay, U. S. Atty., New Orleans, La., for appellee.
Before HOLMES, RUSSELL, and RIVES, Circuit Judges.
A special committee to investigate organized crime in interstate commerce was created by resolution of the United States Senate. The resolution, among other things, directed the committee to make a complete investigation of whether organized crime utilizes the facilities of interstate commerce or otherwise operates in interstate commerce in furtherance of any transactions in violation of the laws 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 laws of the United States or of any state.
The appellant, Joseph Poretto, appeared as a witness before said special committee, and refused to answer a number of questions propounded to him by the committee, assigning in each instance, as his reason for refusal, that an answer would tend to incriminate him. On March 28, 1951, the appellant was indicted in 26 counts for contempt of the United States Senate, in violation of Section 192, Title 2, of the United States Code Annotated. A motion to dismiss the indictment was overruled, a plea of not guilty entered, a trial by jury waived, and a trial had before the court, which found appellant not justified on 12 counts in his claim of privilege against self-incrimination, but not guilty on the other 14 counts of the indictment. The counts upon which appellant was indicted, the questions that he refused to answer, and the findings of the court thereon, were as follows:
The appellant did not voluntarily appear as a witness before the committee, and the testimony that he gave was under compulsion. He did not waive his privilege against self-incrimination by allegations verified by him in 1946 in prior suits. The constitutional privilege attaches to the witness in each particular case in which he is called upon to testify, without reference to his declarations at some other time or place or in some other proceeding. New federal criminal laws have been enacted in the interim between 1946 and 1951. New situations have arisen; new grounds for apprehension against self-incrimination confronted the appellant. His situation was not that of a defendant taking the stand in a criminal case. The defendant in a criminal prosecution against himself cannot be compelled to take the witness stand; but, if he voluntarily does so, he waives the privilege against self-incrimination by the mere act of offering himself as a witness in his own behalf. An ordinary witness, such as appellant, has no choice; he is compelled to appear as a witness, be sworn, and take the stand. As stated by the Supreme Court, the waiver of the privilege against self-incrimination is not lightly to be presumed. Smith v. United States, 337 U.S. 137, 150, 69 S.Ct. 1000, 1007, 93 L.Ed. 1264. See also Glasser v. United States, 315 U.S. 60, 69, 70, 62 S. Ct. 457, 464, 86 L.Ed. 680.
The 12 questions in the counts on which appellant was convicted were interspersed with 14 others that he was adjudged not guilty of refusing to answer; and the entire 26 in the indictment against him were imbedded in an extended examination of him as a witness at a hearing which was concluded by the Chairman telling him that he appeared to be one of the worst characters that had appeared before the committee. This hearing was preceded by two weeks or more of newspaper publicity about Poretto as a member of a national racket gang and other criminal organizations, together with much prominence about his private life. The Chairman also read to the witness a report about his connections with a so-called Chicago mob and about his having...
To continue reading
Request your trial
-
Com. v. Rodgers
...L.Ed.2d 260 (1973); United States v. Miranti, 253 F.2d 135 (2d Cir. 1958); In re Neff, 206 F.2d 149 (3d Cir. 1953); Poretto v. United States, 196 F.2d 392 (5th Cir. 1952); 8 J. Wigmore, Evidence § 2276, at 471--72 (McNaughton rev. ed. 1961). But see Ellis v. United States, 135 U.S.App.D.C. ......
-
Emspak v. United States
...9 Cir., 181 F.2d 480; Doran v. United States, 9 Cir., 181 F.2d 489; Healey v. United States, 9 Cir., 186 F.2d 164; Poretto v. United States, 5 Cir., 196 F.2d 392, 396; United States v. Girgenti, 3 Cir., 197 F.2d 218; United States v. Coffey, 3 Cir., 198 F.2d 438; Daly v. United States, 1 Ci......
-
Ellis v. United States
...L.Ed. 1118 (1951). 31 Thus the court cited, in addition to In re Neff, 206 F.2d 149, 36 A.L.R.2d 1398 (3d Cir. 1953), Poretto v. United States, 196 F.2d 392 (5th Cir. 1952) (five year lapse between investigations, "New federal criminal laws have been enacted * * * new grounds for apprehensi......
-
Martin v. Flanagan
...14, 82 S. Ct. 127, 7 L. Ed. 2d 75 (1961); Ballantyne v. United States, 237 F.2d 657, 665 (5th Cir. 1956), quoting Poretto v. United States, 196 F.2d 392, 394 (5th Cir. 1952) ("`[t]he constitutional privilege attaches to the witness in each particular case in which he is called upon to testi......