United States v. Lombardo

• Citation: 228 F. 980
• Decision Date: 10 November 1915
• Docket Number: 3117.
• Court: U.S. District Court — Western District of Washington
• Parties: UNITED STATES v. LOMBARDO.

228 F. 980

UNITED STATES v. LOMBARDO.

No. 3117.

United States District Court, W.D. Washington, Northern Division.

November 10, 1915

Clay Allen, U.S. Atty., and Winter S. Martin, Asst. U.S. Atty both of Seattle, Wash., for the United States.

Samuel A. Wright, of Seattle, Wash., and Frank H. Kelley, of Tacoma Wash., for defendant.

NETERER District Judge.

The indictment charges a violation of section 6 of the White Slave Traffic Act of June 25, 1910, 36 Stat. at Large, pages 826, 827. The sufficiency of the indictment is challenged by demurrer. The defendant contends that by section 6 of the act, supra, she is required by statements in writing to incriminate herself under the criminal laws of Washington, and is deprived of her protection under the Fourth and Fifth Amendments, and that the saving provision of section 6 supra, granting immunity from prosecution under 'any law of the United States,' is not as broad as the provisions of the amendments, and therefore abridges her rights. In this connection it may be said that the laws of Washington make keeping a house of prostitution an offense punishable by fine and imprisonment. Sections 2688 and 2440, Rem. & Bal. Codes of Washington. If the defendant was harboring the party charged in the indictment for the purposes of prostitution, and she made the statement required by section 6, supra, she would be furnishing evidence which could be used against her in the prosecution for a violation of the laws of Washington.

Is the requirement a violation of the Fifth Amendment, which provides that a party 'shall not be compelled in any criminal case to be a witness against himself' (herself)? The immunity granted by section 6 of the act is not as broad as the constitutional provision. Counselman v. Hitchcock, 142 U.S. 547, 12 Sup.Ct. 195, 35 L.Ed. 1110. In this case Justice Blatchford said that it was not possible that the meaning of this constitutional provision was limited to a case against the party himself. It seems that the Counselman Case applies directly to the issue here. Courts must jealously guard the rights guaranteed to accused persons, and save to them the constitutional protection. The Supreme Court, in Boyd v. U.S., 116 U.S. 616, 6 Sup.Ct. 524, 29 L.Ed. 746, held the provisions of Revenue Act of June 22, 1874, c. 391, 18 Stat. 186, repugnant to the Fourth Amendment, which required a defendant to produce, on motion of the district attorney, his private books and papers in suits for penalties or forfeitures. In Weeks v. U.S., 232 U.S. 383, 34 Sup.Ct. 341, 58 L.Ed. 652, L.R.A. 1915B, 834, Ann. Cas. 1915C, 1177, the court held the protection of the Fourth Amendment to reach all alike, whether accused of crime or not, and that convictions by means of unlawful seizure or enforced confessions in violation of federal rights are not to be sanctioned by the courts, which are charged with guarding the constitutional rights, and directed the return of letters seized in violation of the protection given by the Fourth Amendment; application having been made for such return before trial. The same reason applies to the protection given by the Fifth Amendment, and to penalize the failure to give a statement which is self-incriminatory is beyond the power of the Congress.

The contention of the government that Brown v. Walker, 161 U.S. 591, 16 Sup.Ct. 644, 40 L.Ed. 819, is controlling, is not accepted. In the Brown Case the immunity granted by the act was held as broad as the Fifth Amendment by the majority of the Supreme Court, and this immunity amendment was passed by Congress after the decision in the Counselman Case, presumably for the purpose of meeting the objection urged in that case. The minority of the court by a dissenting opinion held the immunity provision not broad enough to meet the provisions of the Fifth Amendment. The immunity granted by this act is expressly limited to prosecutions 'under the laws of the United States, ' thus withdrawing the protection granted by the Fifth Amendment as to prosecutions under the state laws, and abridging the protection granted by section 9, art. 1, of the Constitution of Washington, which is not in harmony with the privileges and immunities granted to the citizens of the several states, and inhibitions placed upon the several states by the Constitution of the United States.

The Supreme Court of Missouri, in State of Missouri v. Simmons Hardware Co., 109 Mo. 118, 18 S.W. 1125, 15 L.R.A. 676, considered a similar constitutional provision with relation to the act of the Legislature of 1889 'for the punishment of pools, trusts and conspiracies,' which required an officer of every corporation to inform under oath the Secretary of State, under penalty of fine and imprisonment, concerning its business with relation to sid act, which it held to be in conflict with the constitutional provision that 'no person shall be compelled to testify against himself in a criminal case.'

In People v. Rosenheimer, 70 Misc.Rep. 433, 128 N.Y.Supp. 1093, the court held unconstitutional a statute making it a felony for the owner of any motor vehicle, with knowledge that an injury had been occasioned by the operator's negligence or accident, to fail to stop and give his name and address and number of license to the injured person, or a police officer, etc., and at page 436 of 70 Misc. Rep., at page 1096 of 128 N.Y. Supp., the court said:

'A similar provision applicable to proceedings in the federal courts is found in the Fifth Amendment to the Constitution of the United States.'

The state decisions are not controlling in federal courts, and are simply referred to for the purpose of showing the trend of thought of recognized legal minds upon a like issue as here presented. The manifest purpose of the constitutional provisions of the United States and the states is to place the stamp of silence upon parties or witnesses as to self-incriminating statements,...