United States v. Malone, 33157.
| Decision Date | 27 February 1953 |
| Docket Number | No. 33157.,33157. |
| Citation | 111 F. Supp. 37 |
| Parties | UNITED STATES v. MALONE et al. |
| Court | U.S. District Court — Northern District of California |
Chauncey Tramutolo, U. S. Atty., San Francisco, Cal., Irving Goldstein, Sp. Asst. to Atty. Gen., San Francisco, Cal., for the United States.
James E. Burns, San Francisco, Cal., for defendant John A. Malone.
Leo R. Friedman, San Francisco, Cal., for defendant Eleanor F. Dana.
At the trial of this cause, one Edwin M. Furtado was called as a witness by the United States. The Government propounded a series of questions to him, each of which he refused to answer upon the ground that his answers would be self incriminatory. The question presented is whether or not the court should approve the exercise of the privilege by the witness or order him to testify.
A consideration of the circumstances and setting, in which the exercise of the privilege was asserted by the witness, as well as applicable principles of law, is essential for the resolution of this question.
Prior to February 13, 1952, the United States Grand Jury for this District was engaged in the investigation of the activities of certain members of the Internal Revenue Bureau for the purpose of determining whether or not offenses against the statutes of the United States had been committed. Edwin M. Furtado gave evidence before the Grand Jury regarding his participation with the defendants Malone and Dana in acts which the Grand Jury regarded as constituting an offense under 18 U.S.C. § 371. Thereafter, and on February 13, 1952, the Grand Jury returned an indictment naming Malone and Dana as defendants and Edwin M. Furtado as a co-conspirator, but not as a defendant, in a conspiracy to defraud the United States of penalties due the United States in connection with certain Retail Dealers Excise Tax Returns.
Undoubtedly the indictment was so framed, i. e. it named Malone and Dana as defendants and Furtado as a co-conspirator, in order that the government might use Furtado as a witness against the defendants Malone and Dana. Had Furtado been named as a defendant he would not, of course, have been available to the government as a witness.
At the trial, the government propounded to Furtado a series of questions, in substance akin to the questions asked of him before the Grand Jury. Furtado refused to answer each one of the questions upon the ground that his answers would tend to incriminate him. It is beyond question that Furtado would incriminate himself if he answered the questions propounded by the government. His answers would unquestionably have furnished evidence against himself upon a charge of violation of Federal criminal statutes. Indeed, the fact that he is named as a co-conspirator in the indictment is in itself sufficient basis to sustain his refusal to answer the questions.
The refusal of the witness to answer necessarily proved a disappointment to the prosecuting attorney. Such disappointment is understandable. But it could not provide a lawful basis for depriving Furtado of his constitutional privilege. Nor can the fact that the witness is a convicted felon serving a long sentence in a federal prison, be considered. For he has the same constitutional right as any one else. U. S. v. Pechart, D.C.N.D.Calif.1952, 103 F.Supp. 417. I therefore hold that the witness is justified in refusing to answer the questions propounded to him, upon the ground that he asserts, namely, that the answers would tend to incriminate him.1
The government contends, however, that Furtado has waived his right to assert his constitutional privilege because he testified on the same subject matter before the United States Grand Jury, which returned the indictment in this case, and also because of his previous testimony in another case in this court, U. S. v. Benatar. It is not contended that the witness, by any statement or words on his part, waived the right to assert the constitutional privilege. It is claimed by the government, however, that his testimony before the Grand Jury and in the Benatar case constitutes a waiver.
The government's contention, that Furtado waived the privilege by testifying on the same subject in U. S. v. Benatar, a separate and independent...
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