United States v. Klein

• Decision Date: 30 September 1954
• Parties: UNITED STATES of America, v. Hyman Harvey KLEIN, Isidor J. Klein, Albert McLennan, George Norgan, Ellis Rosenberg, Maurice Haas, Irving A. Koerner, Morris O. Alprin and Albert Roer, Defendants.
• Court: U.S. District Court — Southern District of New York

124 F. Supp. 476

UNITED STATES of America, v. Hyman Harvey KLEIN, Isidor J. Klein, Albert McLennan, George Norgan, Ellis Rosenberg, Maurice Haas, Irving A. Koerner, Morris O. Alprin and Albert Roer, Defendants.

United States District Court, S. D. New York.

September 30, 1954.

J. Edward Lumbard, U. S. Atty., for the Southern Dist. of N. Y., New York City, Thomas W. Hill, Jr., Asst. U. S. Atty., New York City, of counsel, for United States.

E. Gayle McGuigan, New York City, for defendant Hyman Harvey Klein.

Michael Kaminsky, New York City, F. Joseph Donohue and Abraham S. Goldstein, Washington, D. C., of counsel, for defendants Morris O. Alprin and Maurice Haas.

Samuel Becker, New York City, Greenman, Shea, Sandomire & Zimet and Frederick F. Greenman, New York City, of counsel, for defendant Irving A. Koerner.

Barr & Barr, New York City, Jerome H. Barr, New York City, of counsel, for defendant Albert Roer.

PALMIERI, District Judge.

Defendants Haas, Alprin, Roer and Koerner were subpoenaed to appear and testify before a grand jury that subsequently indicted them. They were charged in a five count indictment with three substantive attempts to evade taxes and two conspiracies, one to evade tax, and the other to defraud the Government in the exercise of a governmental function, namely, the assessment and collection of income taxes. The United States Attorney who questioned them before the grand jury did not inform them that the Fifth Amendment to the Constitution of the United States gave them the privilege to refuse to answer questions which might incriminate them. Although Government counsel states that these defendants appeared before the grand jury without any compulsion whatever because none of them was served personally, I shall assume, for the purposes of the motions before me, that they appeared and testified before the grand jury under the compulsion of subpoenas. All of the named defendants claim that because of the foregoing facts their rights under the Fifth Amendment were violated; Haas and Alprin claim further that their rights under 18 U.S.C. § 3481 were violated; and on these grounds the named defendants move to dismiss the indictment.

Defendants seek to bring themselves within the compass of the cases that state that a defendant in a criminal case cannot be compelled to testify before a grand jury on matters pertaining to that case. See United States v. Lawn, D.C.S.D.N.Y.1953, 115 F.Supp. 674. But these cases are not applicable because defendants were not charged with the commission of any offense against the United States when they appeared before the grand jury. At that time defendants were witnesses, and although it was probable that the grand jury would, as it did, subsequently indict them, they are not entitled to the protection that is afforded a defendant. United States v. Scully, D.C.S.D.N.Y.1954, 119 F.Supp. 225. Therefore, defendants' rights were not violated when they were subpoenaed to appear and testify before a grand jury; United States v. Scully, supra; United States v. Wilson, D.C.Del.1942, 42 F.Supp. 721; and if they desired the protection of the privilege, they should have claimed it. See United States v. Monia, 1943, 317 U.S. 424, 427, 63 S.Ct. 409, 87 L.Ed. 376; United States ex rel. Vajtauer v. Commissioner of Immigration, 1927, 273 U.S. 103, 47 S.Ct. 302, 71 L.Ed. 560.

Defendants urge upon the Court that when persons who are likely to be indicted are called as witnesses before a grand jury, the United States Attorney should be required to inform them of their privilege under the Fifth Amendment. Cf. Federal Rules of Criminal Procedure, rules 5(b) and 40(b)(2), 18 U.S.C.A. However, defendants (two of whom are lawyers and all of whom were represented by counsel) do not claim that they were ignorant of the privilege, and that if they had known of it they would not have answered the questions put to them. They have failed to make any showing of fraud, duress, or deception on the part of the Government which they contend resulted in their testifying before the grand jury. It is clear that under such circumstances, a United States Attorney is not required to inform a grand jury witness who is under suspicion of his privilege. Powers v. United States, 1912, 223 U.S. 303, 32 S. Ct. 281, 56 L.Ed. 448; United States v. Scully, supra; United States v. Wilson, supra; see Wilson v. United States, 1896, 162 U.S. 613, 16 S.Ct. 895, 40 L.Ed. 1090; Pulford v. United States, 6 Cir., 1946, 155 F.2d 944, 947-948; 8 Wigmore on Evidence § 2269 (3d ed. 1940). The defendants have placed great emphasis upon the statement of the Assistant United States Attorney, made upon the argument of these motions, to the effect that at the time of the grand jury proceedings, he believed that there was a strong possibility that information the Government then had in its possession would lead to the indictment of the defendants Haas and Alprin. But it is quite apparent that the defendants and their counsel were well aware of this possibility. Moreover, the applicable rules of law are not affected by the state of mind of Government counsel.

Nor can I conclude on the basis of the affidavits before me that the defendants were in any way overreached or that substantial justice was frustrated. It would seem that, far from being deprived of their rights, the defendants have sedulously availed themselves of their rights at every stage of the proceedings. Having failed to invoke the privilege under the Fifth Amendment in good time, they cannot be heard to say that they would now decide otherwise and that the indictment should be dismissed upon their tardy assertion of privilege.

With respect to the defendants' motions for bills of particulars, they must, except to the extent consented to by the Government, be denied. The defendants have made a large number of demands pursuant to Rule 7(f) of the Federal Rules of Criminal Procedure. These demands are in many instances repeated by the five named defendants whose motions are before me. No useful purpose can be served by reciting the numerous demands.

All five named defendants seek to compel the Government to disclose the nature and source of income and computations of tax. The Government has already complied with this demand. In accordance with my direction upon the oral argument of the motions for bills of particulars, the United States Attorney has submitted to me the details of the nature, source and amount of the income on which it is alleged in the indictment a tax was due to the United States; the amount of the tax is set forth; and there is also furnished that portion of the Federal income tax return of the defendant Hyman Harvey Klein which is alleged to be false. Furthermore, the Government has set forth those portions of the 1952 Federal income tax returns of defendants Alprin and Koerner and of the 1950 return of Roer which are alleged to be false. This information has been communicated to the defendants.

It is my opinion that by this disclosure, the defendants have obtained all the information to which they are properly entitled. I am mindful that the purposes of a bill of particulars are (1) to obviate surprise at a trial and enable the defendant to prepare his defense and (2) to permit him to plead double jeopardy in the event of subsequent prosecution for the same offense. United States v. Foster, D.C.S.D.N.Y.1948, 80 F.Supp. 479, 486. But the administration of justice does not require the Government to disclose its...