United States v. Maloney

• Decision Date: 15 January 1959
• Docket Number: No. 3,Docket 24870.,3
• Citation: 262 F.2d 535
• Parties: UNITED STATES of America, Appellee, v. Robert William MALONEY, Robert Murphy and Paul Merrick, Appellants.
• Court: U.S. Court of Appeals — Second Circuit

262 F.2d 535 (1959)

UNITED STATES of America, Appellee, v. Robert William MALONEY, Robert Murphy and Paul Merrick, Appellants.

No. 3, Docket 24870.

United States Court of Appeals Second Circuit.

Argued October 14-15, 1958.

Decided January 15, 1959.

Robert F. Morten, New York City, for appellant Robert William Maloney.

John D. Kelly, Brooklyn, N. Y., for appellant Robert Murphy.

Henry A. Lowenberg, New York City, for appellant Paul Merrick.

Cornelius W. Wickersham, Jr., Brooklyn, N. Y., for appellee.

Before HAND, HINCKS and WATERMAN, Circuit Judges.

HAND, Circuit Judge.

This is an appeal by the defendants, Maloney, Merrick and Murphy from a judgment of conviction of the District Court for the Eastern District of New York (Bruchhausen, J., presiding), entered upon the verdict of a jury upon an indictment in five counts. The first count was for a conspiracy of five persons to pretend falsely that Maloney was an agent of the Federal Bureau of Investigation, and by this means to blackmail one, Cohen, a physician, by threatening to expose him for an abortion performed by him. The second count was for abetting Maloney in this false pretence; the third was for demanding money by the same means, and the fourth was for obtaining the money. Maloney, Merrick and Aviron (who did not appeal) were convicted under all four counts; Murphy under the first two, and Parker pleaded guilty. A fifth count was dismissed by the court and may be disregarded.

The outline of the relevant evidence is as follows. The defendant Parker appeared as a witness for the prosecution and his testimony was its main reliance. He testified that he and the other four had discussed a scheme to blackmail Cohen after inducing Cohen to perform an illegal abortion. According to the plan so arranged, the defendant Aviron, a woman, was to take an employee of Murphy, named Mascali, who was pregnant, to Cohen's office and have him abort her. This Aviron did, and Cohen performed the operation. On the next day Parker, Merrick, Maloney and Aviron went to Cohen's office and posed, Maloney as an F.B.I. agent, Parker and Merrick as New York police officers. They succeeded in extracting from Cohen $10,000 which they divided among the five and two others who were not indicted. Maloney had possession of a set of F.B.I. "credentials" which he showed to Cohen as evidence of his authority to prosecute him for the abortion. He had procured these from a man, named Silin, and had given them for safe keeping to his mistress, named Parkhurst, who put them in her safe deposit box, from which she took them and delivered them to Maloney shortly before the day when Maloney used them to blackmail Cohen.

The jury was unlikely to accept Parker's testimony unless it was corroborated. He had been an accomplice and hoped for lenity by inculpating his associates. Moreover, his own criminal record was extremely bad. He had been convicted of larceny, of extortion, and of "unlawful entry," and had made his living largely by blackmailing at least 100 homosexuals and 50 physicians. The errors on which the appellants particularly rely arose from the examination of Parkhurst, Silin and Mascali. In order to prove that Parkhurst had kept the "credentials" for Maloney in her safe deposit box, she was asked whether she had "ever put anything into that box at the request of Robert William Maloney." Upon a previous question the judge at the request of one of the attorneys for the defense had advised her that she might refuse to answer any questions on the ground that they might incriminate her, and, so prompted, she refused to answer. When the witness, Mascali, was called she was asked whether "any arrangements" were "made whatsoever with respect to your having an abortion," and she too, after being advised of her privilege, refused to answer. Finally, the witness, Silin, similarly prompted, also claimed his privilege, when asked whether he had procured the "credentials" for Maloney.

When a witness claims his privilege, a natural, indeed an almost inevitable, inference arises as to what would have been his answer if he had not refused. If the prosecution knows when it puts the question that he will claim the privilege, it is charged with notice of the probable effect of his refusal upon the jury's mind. In the case at bar it can hardly be doubted that the answers of each of the three witnesses, if given, would have served to corroborate Parker's story, either as to Maloney's possession of the "credentials," or as to the plan for an abortion. Moreover, the prosecution on its summation conceded that, in the case of Parkhurst and Mascali, it had known, or "anticipated," that the witnesses would refuse to answer. It does not, indeed, appear that it knew that Silin would also refuse, although Parker testified that Maloney had told him that it was from Silin that Maloney had procured the "credentials." We need not say that this was enough to put the prosecution on notice that Silin would refuse; but in its summation it referred to his refusal in a context that could only have been understood as arguing that, if he had not refused, his answer would have been in the affirmative. Such refusals have been uniformly held not to be a permissible basis for inferring what would have been the answer, although logically they are very persuasive. How to deal with them is another matter, not easy to decide; but it is clear, not only that the presumed answer has not the sanction of an oath, but — what is even more important — that the accused cannot cross-examine. If they once do get before the jury, there arises, as we have said, a strong probability that they will be taken as evidentiary.

The prosecution replies that, if it is forbidden to put the question, the jury may well assume that the witness, if called, would testify for the accused, and that this inference too would be unfair. We must confess that the situation is one in which either alternative results in prejudice to one side or the other; and it is impossible, so far as we can see, to lay down any general rule that will cover all instances. In the case at bar the prosecution knew that Parkhurst and Mascali would refuse to answer, and it seems to us that the interest of the accused should prevail over that of the prosecution, and that the judgment should not stand, for the questions touched vital elements of the charge. On the other hand, we agree that in such situations, if the accused at any stage of the trial should argue that the failure to call such a witness indicated that he would not support the charge, the prosecution should be free to disclose the fact that it had reason to suppose that the witness would refuse. Although, as we have said, it does not appear that the prosecution knew that Silin would refuse, in substance the same issue arose when on its summation it used his refusal as corroboratory of Parker.

The question has come up several times in this circuit. The first, so far as we know, was in United States v. Five Cases, etc., 2 Cir., 179 F.2d 519, 523, where we were "not prepared to say that it would not be ground for reversal if the party who called a witness connected with a challenged transaction knew, or had reasonable cause to know, before putting the witness on the stand that he would claim his privilege." We avoided an answer because the accused had allowed the examination to go on so long without protest that he had lost any right to raise the question. In United States v. Hiss, 2 Cir., 185 F.2d 822, 832, we repeated this statement, but held that the error had not been substantial enough to justify a reversal. "It is not enough if there are no more than minor lapses through a long trial." In United States v. Cioffi, 2 Cir., 242 F.2d 473, 476-477, United States v. Romero, 2 Cir., 249 F.2d 371, 374-375, and United States v. Gernie, 2 Cir., 252 F.2d 664, 669-670, the witness had lost any privilege he might have had, because he had been convicted of the offence as to which he was being questioned. As appears in our decisions we also relied upon a cautionary admonition by the judge to the jury that they must not use the refusal as evidence of what the answer would have been. See also Weinbaum v. United States, 9 Cir., 184 F.2d 330; United States v. Amadio, 7 Cir., 215 F.2d 605, 613-614. It is true that in United States v. Gernie, supra, 252 F.2d at page 669 we said: "Under such circumstances it makes no difference whether the government has reason to believe that the witness will refuse to testify." For this we cited as authority United States v. Romero, supra, an...