United States v. Seewald, 115

• Decision Date: 10 November 1971
• Docket Number: Docket 71-1523.,No. 115,115
• Parties: UNITED STATES of America, Appellee, v. Benjamin SEEWALD, Contemnor-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

450 F.2d 1159 (1971)

UNITED STATES of America, Appellee, v. Benjamin SEEWALD, Contemnor-Appellant.

No. 115, Docket 71-1523.

United States Court of Appeals, Second Circuit.

Argued September 28, 1971.

Decided November 10, 1971.

William E. Dertinger, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty. for the E.D. of N.Y., and Edward R. Korman, Asst. U. S. Atty., on the brief), for appellee.

Robert Hermann, New York City (Robert Kasanof, Legal Aid Society, New York City, on the brief), for contemnor-appellant.

Before LUMBARD, MANSFIELD and OAKES, Circuit Judges.

LUMBARD, Circuit Judge:

Benjamin Seewald was cited for contempt and sentenced to six months in prison by Chief Judge Mishler of the Eastern District of New York when Seewald refused to testify as the key government witness at a trial of six of his coconspirators accused of possession of goods stolen in interstate commerce. Seewald now appeals, asserting that when called as a witness, he properly invoked his Fifth Amendment privilege against self-incrimination so that his refusal to testify was not contemptuous. We disagree and affirm the trial court's decision.

Seewald was charged with the illegal possession in June 1967 of 425 cases of eggs which he knew were stolen during shipment from Georgia to New York, a violation of 18 U.S.C. § 659. On May 13, 1968, he pleaded guilty to a one-count information charging him with this crime. Two months later, he appeared before a grand jury in the Eastern District which was investigating the egg thefts. He was informed of his Fifth Amendment privilege against self-incrimination, but decided to testify, declaring that he had made his decision after consultation with retained counsel. After signing a waiver of immunity, Seewald described in detail the egg thefts including a lengthy explanation of his participation in them as middleman between the hijackers and the ultimate receivers. On the basis of this information, a four-count indictment was returned naming six persons as Seewald's coconspirators and defendants in the egg thefts. Seewald was named as a copossessor of the stolen goods in the first of the four counts, but he was not charged as a co-defendant, having already pleaded guilty to the information.

The case was finally called for trial April 17, 1971, after delays resulting from pre-trial motions and a backlog of cases due largely to the long delay in filling two judicial vacancies in the Eastern District. Seewald was sworn as the government's first witness. He had apparently advised the United States Attorney that he would refuse to testify and when he so indicated after being sworn, Chief Judge Mishler appointed Simon Chrein, a Legal Aid lawyer to represent him while on the stand. Judge Mishler then adjourned court for an hour so that Chrein could consult with Seewald and familiarize himself with the circumstances of Seewald's refusal to testify. When court reconvened with Seewald present, Chrein told Judge Mishler that he had fully explained to Seewald the possible consequences of a refusal to testify. Judge Mishler asked Chrein whether he agreed that Seewald had no right to refuse to testify and Chrein agreed only as to what Seewald had previously testified to before the grand jury and as to the specific acts to which he had pleaded guilty. After ascertaining that the government intended to examine Seewald only on the matters about which he had testified when before the grand jury, Judge Mishler inquired of Seewald why he refused to testify. Chrein, speaking on Seewald's behalf said, "The defendant has advised me that he does not wish to cause any harm to any of the codefendants * * * he doesn't wish to hurt anybody." After hearing this, Judge Mishler explained at length to Seewald that if he refused to testify before the trial jury on the following day, he would be held in contempt and sentenced to six months in prison.

The next day, Seewald was sworn as a witness and asked, "Mr. Seewald, were you a defendant in this case at one time?" Seewald responded, "I refuse to testify." Judge Mishler then excused the jury and again advised Seewald that if he persisted in refusing to testify, he would be held in contempt. Seewald was then asked several questions by the government attorney such as, "Mr. Seewald, you don't deny testifying before the grand jury on July 18, 1968, do you?" and "Mr. Seewald, you told me on previous occasions that you knew the defendants and you did business with them, during 1967, isn't that so?" To these questions and several others propounded both by the government attorney and Judge Mishler, Seewald answered, "I refuse to testify," "I refuse to answer," "I refuse to answer any question. I refuse to testify," and "I refuse to testify to anything, any questions asked me." Judge Mishler then held Seewald in contempt. Since Chrein, Seewald's lawyer of the previous day, was not then available, Judge Mishler appointed Edward Kelly, another Legal Aid lawyer, as counsel. The judge then advised Seewald that if he would agree to testify, he could purge himself of the contempt. When Seewald persisted in his refusal to testify, Judge Mishler sentenced him to six months' imprisonment to run consecutively to the sentences he was then serving. In view of Seewald's refusal to testify, the government was unable to prove its case and moved for dismissal of the indictment, which the court granted.

Seewald now claims that the contempt conviction cannot stand because he properly asserted his Fifth Amendment privilege before Judge Mishler. We have set out the pertinent record at some length to show that at no time before Judge Mishler did Seewald intimate that he was asserting his Fifth Amendment privilege. Quite the contrary occurred.

Although Seewald had earlier determined not to assert his Fifth Amendment privilege before the grand jury after a decision made with counsel's advice and although Seewald had the advice of counsel throughout the proceedings before Judge Mishler, when he refused to testify in the instant case his reason was that he "did not wish to cause any harm to any of the co-defendants * * * he didn't wish to hurt anybody." Every citizen, when called as a witness in a criminal case, has the duty to testify to the facts known by him regardless of the detriment or benefit such testimony might bring to anyone.¹ If the administration of justice is to function, courts must have the power to discover and compel the disclosure of evidence. Otherwise truth can be concealed and justice can be thwarted at the whim of anyone who prefers not to divulge what he knows. Therefore when it is reasonably clear that a witness is protected against criminal prosecution for any matters regarding which he might testify, then the witness must respond to inquiry or face the consequences of contempt. Only if testimony might incriminate one's self² may a defendant refuse to testify. The desire not to hurt a defendant of course has no bearing on the witness's Fifth Amendment privilege and accordingly the Supreme Court has held, "A refusal to answer cannot be justified by a desire to protect others from punishment." Rogers v. United States, 340 U.S. 367, 371, 71 S.Ct. 438, 441, 95 L.Ed. 344 (1950).

If Seewald had claimed immunity at the grand jury hearing rather than freely testifying, as in fact he did, the government could have granted him immunity and he would have had to testify or face the threat of contempt. Or, if he had asserted his claim at trial— laying aside for the moment whether such claim was any longer available to him—the government could have granted him immunity. But since Seewald neither claimed, nor intimated that he would claim, his Fifth Amendment privilege, the government had no basis under the applicable immunity statute, 18 U.S.C. § 6002-03, on which to grant him immunty. It was Seewald's own failure to assert the privilege which prevented the government from immunizing him, under the statutory procedure available, from the prosecution which he allegedly feared. The failure to assert the privilege as the basis for his refusal to testify is, by itself, sufficient ground on which to base the contempt citation. To hold otherwise would mean that Seewald would be in a better position by failing to claim immunity and then refusing to testify than he would be if he had asked for and received immunity.

Moreover, Seewald's refusal to answer covered not only potentially incriminatory questions, but all questions. Seewald repeatedly refused to answer questions the answers to which in no way could have incriminated him. This refusal to answer questions which were not incriminatory in themselves also is a sufficient ground on which to sustain the contempt citation.

Seewald has asserted in this court that the reason he did not claim his Fifth Amendment privilege was that he was improperly advised as to its availability. He argues that Chrein should not have agreed with Judge Mishler that the privilege was unavailable as to his...