United States v. Fried, No. 168

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtWATERMAN, FRIENDLY and SMITH, Circuit
Citation386 F.2d 691
Decision Date04 December 1967
Docket NumberNo. 168,Docket 31701.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Solomon FRIED et al., Defendants, Albert FRIED, Third-Party Witness-Appellant.

386 F.2d 691 (1967)

UNITED STATES of America, Plaintiff-Appellee,
v.
Solomon FRIED et al., Defendants,
Albert FRIED, Third-Party Witness-Appellant.

No. 168, Docket 31701.

United States Court of Appeals Second Circuit.

Argued November 13, 1967.

Decided December 4, 1967.


386 F.2d 692

H. Stuart Klopper, Jamaica, N. Y., for Albert Fried, third party witness-appellant.

Howard L. Stevens, Asst. U. S. Atty. (Joseph P. Hoey, U. S. Atty., Eastern District of New York), for plaintiff-appellee.

Before WATERMAN, FRIENDLY and SMITH, Circuit Judges.

FRIENDLY, Circuit Judge:

Seven years have passed since the United States recovered a judgment against Dr. Solomon Fried, a Brooklyn dentist, for unpaid income taxes and penalties on which a balance of $175,000, with interest, remains unpaid. The Government's sense of frustration has been augmented by the facts that Dr. Fried liquidated several brokerage accounts and received $269,000 in cash immediately upon the making of the assessment underlying the judgment, removed himself to Miami after having been served with a subpoena in supplementary proceedings, and apparently has avoided examination or punishment despite an order of contempt. Not unnaturally the Government has sought information from members of Fried's family in the Eastern District of New York who it thinks may be holding property belonging to or fraudulently transferred by the taxpayer. Among these is his son Albert Fried, the appellant here, who has been employed for many years as a retail furniture salesman and lives with his wife and three children.

The Government's first effort to examine Albert Fried, a subpoena served in May 1965 for an oral deposition, provoked a motion to quash on the ground, supported by a physician's report, that a history of psychoneurosis, resulting in rejection for military service during World War II, attendance at an out-patient clinic, and a nervous breakdown in 1958, would make any appearance as a witness detrimental to his health. Judge Dooling reserved decision on the motion but granted the Government leave forthwith to serve "an information subpoena, accompanied by a copy and original of written questions" pursuant to New York C.P.L.R. § 5224(a)-3, here applicable by virtue of F.R.Civ.P. 69(a). There followed a long interval during which the Government allegedly sent an agent to interview Fried and sought, in May 1966, an order compelling him to submit to a psychiatric examination, which Judge Rosling denied as an "extraordinary invasion of respondent's Albert Fried's right of privacy" and because of the Government's failure to utilize the written interrogatory procedure. In November 1966 the Government mailed Fried an information subpoena and questions. He retained a new attorney who advised that he was under no duty to comply. When this predictably resulted in a motion to punish for contempt, counsel offered to submit Fried for oral examination. Thereafter Fried consulted a psychiatrist of repute who had furnished him a report when the Government was seeking to compel a psychiatric examination, and returned to the counsel who had represented him at that time. This attorney appeared before Judge Dooling on February 21, 1967, two days before the date to which the contempt motion had been adjourned. The attorney offered to make Fried available for a psychiatric examination but withdrew the offer of the preceding counsel to submit him for oral deposition. Although the judge made no direction of any sort, Fried, accompaned by his lawyer, presented himself for oral examination in the office of the United States Attorney. After being sworn, he slumped and fell

386 F.2d 693
to the floor, displaying symptoms of acute distress; thereafter he was hospitalized for 13 days in a private hospital under the psychiatrist's care. The judge thereupon extended Fried's time to answer the questionnaire to June 1 and denied the contempt motion without prejudice to renewal if the questions were not answered by that time

Late in May 1967, Fried's counsel moved to vacate and quash the information subpoena. A supporting affidavit recited that at the lawyer's request Fried had appeared in his office in mid-April in order to prepare answers but had become so agitated that counsel recommended another visit to the psychiatrist. Fried made this, and saw the attorney and the psychiatrist again during May. The psychiatrist's last report, confirming earlier ones of May 1966 and February 1967, was that Fried was "incompetent to answer questions pertaining to his father because of the violent emotional upheaval which they precipitate in him" and that any further attempt to answer the questionnaire "would probably cause the same mental collapse as the one suffered by him on February 21, 1967, with a real possibility of permanence." An opposing affidavit of an Assistant United States Attorney recited, in addition to matters already here summarized, that Fried maintains a stock brokerage...

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35 practice notes
  • National Super Spuds, Inc. v. New York Mercantile Exchange, Nos. 343
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 17, 1979
    ...Id. at P 110.13(4) at 165-66. We have applied this rule in many cases of non-party witnesses, in one of which, United States v. Fried, 386 F.2d 691, 694 (2 Cir. 1967), we specifically rejected a contrary view expressed in Covey Oil Co. v. Continental Oil Co., 340 F.2d 993, 996-97 (10 Cir.),......
  • Kaufman v. Edelstein, Nos. 934
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • April 20, 1976
    ...Id. at P 110.13(4) at 165-66. We have applied this rule in many cases of non-party witnesses, in one of which, United States v. Fried, 386 F.2d 691, 694 (2 Cir. 1967), we specifically rejected a contrary view expressed in Covey Oil Co. v. Continental Oil Co., 340 F.2d 993, 996-97 (10 Cir.),......
  • Cronin v. Strayer
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • July 17, 1984
    ...thereby swelling appellate dockets already too large and delaying trial calendars already too slow," United States v. Fried, 386 F.2d 691, 695 (2d Cir.1967). "To accept the [appellants'] view is to invite the inundation of appellate dockets with what have heretofore been regarded as nonappe......
  • International Business Machines Corp. v. United States, No. 1133 to 1136
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • December 17, 1973
    ...are immediately appealable because the appeal does not interfere with the orderly progress of the main case. See United States v. Fried, 386 F.2d 691, 694 (2d Cir.1967). Where the main case is effectively terminated, the contempt order may no longer be interlocutory. New York Telephone Co. ......
  • Request a trial to view additional results
35 cases
  • National Super Spuds, Inc. v. New York Mercantile Exchange, Nos. 343
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 17, 1979
    ...Id. at P 110.13(4) at 165-66. We have applied this rule in many cases of non-party witnesses, in one of which, United States v. Fried, 386 F.2d 691, 694 (2 Cir. 1967), we specifically rejected a contrary view expressed in Covey Oil Co. v. Continental Oil Co., 340 F.2d 993, 996-97 (10 Cir.),......
  • Kaufman v. Edelstein, Nos. 934
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • April 20, 1976
    ...Id. at P 110.13(4) at 165-66. We have applied this rule in many cases of non-party witnesses, in one of which, United States v. Fried, 386 F.2d 691, 694 (2 Cir. 1967), we specifically rejected a contrary view expressed in Covey Oil Co. v. Continental Oil Co., 340 F.2d 993, 996-97 (10 Cir.),......
  • Cronin v. Strayer
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • July 17, 1984
    ...thereby swelling appellate dockets already too large and delaying trial calendars already too slow," United States v. Fried, 386 F.2d 691, 695 (2d Cir.1967). "To accept the [appellants'] view is to invite the inundation of appellate dockets with what have heretofore been regarded as nonappe......
  • International Business Machines Corp. v. United States, No. 1133 to 1136
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • December 17, 1973
    ...are immediately appealable because the appeal does not interfere with the orderly progress of the main case. See United States v. Fried, 386 F.2d 691, 694 (2d Cir.1967). Where the main case is effectively terminated, the contempt order may no longer be interlocutory. New York Telephone Co. ......
  • Request a trial to view additional results

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