United States v. Field

• Citation: 193 F.2d 109
• Decision Date: 30 October 1951
• Docket Number: Docket 22119.,No. 303,303
• Parties: UNITED STATES v. FIELD.
• Court: U.S. Court of Appeals — Second Circuit

193 F.2d 109 (1951)

UNITED STATES
v.
FIELD.

No. 303, Docket 22119.

United States Court of Appeals Second Circuit.

Argued September 14, 1951.

Decided October 30, 1951.

193 F.2d 110

Victor Rabinowitz, of New York City (Mary M. Kaufman and Belle Seligman, both of New York City, on the brief), for appellant.

Roy M. Cohn and James B. Kilsheimer III, Asst. U. S. Attys., both of New York City (Irving H. Saypol, U. S. Atty., and Robert Martin, Asst. U. S. Atty., both of New York City, on the brief), for the United States, appellee.

Before CHASE, CLARK, and FRANK, Circuit Judges.

FRANK, Circuit Judge.

1. Field contends, and we agree, that any relinquishment by him of his Fifth Amendment (anti-self-incrimination) privilege in the proceedings in United States v. Field, Hammett, and Hunton, 2 Cir., 193 F.2d 92, decided today, did not constitute a relinquishment of that privilege in these separate grand jury proceedings. But, although at first he did, before the grand jury, refuse, on the basis of that privilege, to answer any questions bearing on his connection with the Bail Fund, subsequently he did tell the grand jury that, as one of the trustees of the Fund, he had actively participated in the retention of counsel by the Fund.¹ With that admission, he was no

193 F.2d 111

longer in a position to argue that the act of producing the Fund's papers might in itself involve self-incrimination. As an admitted trustee, he, together with the other trustees, held these papers merely in a "representative capacity" and could not interpose the "personal privilege against self-incrimination, even though production of the papers might tend to incriminate * * * personally." Rogers v. United States, 340 U.S. 367, 372, 71 S.Ct. 438, 441, 95 L.Ed. 344.² He was obliged both (a) to produce the records and (b) to answer questions "auxiliary" to their production.³

2. All other questions he was asked before the grand jury were of the kind the answers to which this court today held not privileged in the companion case of United States v. Field, Hammett and Hunton, 2 Cir., 193 F.2d 92.⁴

3. Field, on this appeal, seems to assert, on behalf and as trustee of the Bail Fund, that the direction to produce all its books and records was so sweeping that it constituted a violation of the Fund's privilege, under the Fourth Amendment, to be free of any unreasonable searches and seizures. We doubt whether the Fund's privilege (as distinguished from Field's personal privilege) was urged on its behalf by Field as trustee (or by anyone else) before the grand jury or the district judge; if not so urged, we cannot consider that alleged privilege on this appeal. But we pass that point. For, having in mind the nature of the inquiry, we think the direction was not so...