United States v. Trock, 293

• Citation: 232 F.2d 839
• Decision Date: 09 April 1956
• Docket Number: No. 293,Docket 24025.,293
• Parties: UNITED STATES of America, v. Theodore TROCK, Defendant Appellant.
• Court: U.S. Court of Appeals — Second Circuit

232 F.2d 839 (1956)

UNITED STATES of America, v. Theodore TROCK, Defendant Appellant.

No. 293, Docket 24025.

United States Court of Appeals Second Circuit.

Argued March 6, 1956.

Decided April 9, 1956.

Leonard P. Moore, U. S. Atty. for Eastern District of New York, Brooklyn, N. Y. (Marie L. McCann, Asst. U. S. Atty., Brooklyn, N. Y., of counsel), for appellee.

Harry Krauss, New York City, for defendant-appellant.

Before CLARK, Chief Judge, MEDINA, Circuit Judge, and GALSTON, District Judge.

Decided April 9, 1956. Judgment Reversed 76 S.Ct. 1048.

GALSTON, District Judge.

On February 21, 1956 Theodore Trock, the defendant, appeared as a witness before the grand jury for the Eastern District of New York, and was asked certain questions which he refused to answer on the ground that the answers might tend to incriminate and degrade him. He was brought before the court, and after failing to state any reason why the answers might expose him to criminal prosecution was directed to answer eleven questions which had been put to him.

On February 23, 1956 he again appeared before the grand jury but refused to answer the questions which he had been directed to answer. Then he was brought before the court and the questions were put to him by the court in the presence of the grand jury. He refused to answer; and failed, so it is charged by the Government, to show any reason why the answers might tend to expose him to criminal prosecution. Thereupon he was summarily committed to the custody of the United States Marshal to be held in close confinement for a period of four months. He was informed that he might purge himself of the contempt by complying with the court's order.

The court minutes disclose that Miss McCann, an assistant United States Attorney, explained to Judge Byers that there was an indictment outstanding against a man by the name of Thomas Tanner, then a fugitive, and that a co-defendant, Isadore Hillman, had been convicted and was serving a sentence. The indictment had to do with the theft of certain goods in interstate commerce. Miss McCann explained that there were three other persons who had not yet been indicted, but against whom the Government might subsequently file indictments should investigation provide them with enough evidence. She added: "We have reason to believe that the witness, Mr. Trock, may have some knowledge of operations, or have some knowledge of the whereabouts of Thomas Tanner."

It appeared that Trock had been asked whether he knew one Harry Baus. At first he refused to answer. Subsequently he admitted, said Miss McCann, that he had seen Harry Baus in 1950. A third time, when asked whether he knew Baus, he refused to answer on the ground that it might tend to incriminate or degrade him.

The witness also refused to answer whether he knew Isadore Hillman. Likewise he refused to answer whether he knew a William Cooper. A succession of questions followed: "Did you ever operate any business in New York?" "Did you ever register in any trade names in New York?" "Did you ever have any offices at 250 Broadway in New York?" "Did you ever have an office in 246 Fifth Avenue, New York City?" "Did you ever hear of the Gulf Trading Company?" "Did you ever hear of the Empire State Buying Company?" "Did you ever use the name of Thomas Tanner?" "Did you ever use the name of James Fausto?" "Can you type?" "Did you ever stay at the Hotel Victoria in New York City?"

The court requested the witness to stand before him, and the court asked him to explain why answering the questions whether he knew Baus, Hillman and Cooper would tend to incriminate him. Trock responded: "Well I honestly feel that making a statement there might incriminate me. That is just the way I feel." The following colloquy resulted:

"The Court: What is there incriminating about knowing a person by the name of Baus?

"Mr. Trock: Well evidently these people are wanted for something and I don\'t feel like being incriminated with them.

"The Court: What is there that would tend to expose you to a criminal prosecution if you answer the question `Yes, I do know him\' or `No, I don\'t know him\'?

"Mr. Trock: Well, I honestly feel that way.

"The Court: You have said twice that you feel that way. Now, is that feeling based on a reason?

"Mr. Trock: Well, the reason I feel I am just better off not answering that question."

The court then asked how answering the question whether he operated a business in New York City could incriminate him, and the court's interrogation of the witness in respect to all the other questions resulted in the failure of the defendant to explain why answers to those questions would tend to incriminate him. He was thereupon ordered to answer all of these questions. He was not ordered to answer questions about Thomas Tanner and James Fausto.

The defendant contends that the entire setting of the examination must be considered by the court, and that where it can be observed that the refusal to answer is not capricious, and where there is some basis for apprehension on the part of the witness, the court may not substitute its judgment for that of the witness. Defendant argues that the court in interpreting the refusal to answer need not base it upon a positive showing of incrimination.

Nevertheless, in appraisal of these eleven questions, when viewed independently each one is certainly free of any criminal suggestion. It does not require the opinion of a psychologist to establish that one laboring under a guilt complex when appearing before a grand jury might decline to answer any and all questions propounded to him; but such an attitude in and of itself would not protect such a witness from the necessity of complying with a court order to answer questions which were free from criminal implication, and not part of a link or setting connoting criminal implication.

We approach then a study of cases which bear on the legal principle involved.

Chief Justice Marshall in United States v. Burr (In re Willie), 25 Fed. Cas. No. 14,692 (e), pp. 38, 39, said:

"The principle which entitles the United States to the testimony of every citizen, and the principle by which every witness is privileged not to accuse himself, can neither of them be entirely disregarded. They are believed both to be preserved to a reasonable extent, and according to the true intention of the rule and of the exception to that rule, by observing that course which it is conceived courts have generally observed. It is this: When a question is propounded, it belongs to the court to consider and to decide whether any direct answer to it can implicate the witness. If this be decided in the negative, then he may answer it without violating the privilege which is secured to him by law. If a direct answer to it may incriminate himself, then he must be the sole judge what his answer would be."

The foregoing passage is quoted in Mason v. United States, 244 U.S. 362, 365, 37 S.Ct. 621, 622, 61 L.Ed. 1198. In that case Justice McReynolds added:

"The constitutional protection against self-incrimination `is confined to real danger, and does not extend to remote possibilities out of the ordinary course of law.\' Heike v. United States, 227 U.S. 131, 144, 33 S.Ct. 226, 57 L.Ed. 450, 455; Brown v. Walker, 161 U.S. 591, 599, 16 S.Ct. 644, 40 L.Ed. 819, 822."

United States v. Doto, 2 Cir., 205 F.2d 416, led Judge Clark to review leading authorities bearing on the question involved, including Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L. Ed. 1118; Blau v. United States, 340 U. S. 159, 71 S.Ct. 223, 95 L.Ed. 170; Rogers v. United States, 340 U.S. 367, 71 S. Ct. 438, 95 L.Ed. 344; and Mason v. United States, supra. In Hoffman v. United States, the question presented involved business dealings of a person publicly charged with being known as an underworld character and a racketeer with a twenty year police record, including a prison sentence on a narcotics charge. The questions he refused to answer pertained to the nature of his present occupation and his contacts and connections with, and knowledge of the whereabouts of a fugitive witness sought by the same grand jury, and for whom a bench warrant had been requested.

Judge Clark, referring to the opinion of Mr. Justice Clark, quoted the following passage from the Hoffman case 341 U.S. 479, 71 S.Ct. 818:

"The privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime. (Patrica) Blau v. United States, 1950, 340 U. S. 159, 71 S.Ct. 223 95 L.Ed. 170. But this protection must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer. Mason v. United States, 1917, 244 U.S. 362, 365, 37 S.Ct. 621, 622, 61 L.Ed. 1198, and cases cited. The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself — his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified, Rogers v. United States, 1951, 340 U.S. 367, 71 S.Ct. 438 95 L.Ed. 344, and to require him to answer if `it clearly appears to the court that he is mistaken.\' Temple v. Commonwealth, 1881, 75 Va. 892, 899. However, if the witness, upon interposing his claim, were required to prove the hazard in the sense in which a claim is usually required to be established in court, he would be compelled to surrender the very protection which the privilege is designed to guarantee. To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result."

Applying then the test suggested in Hoffman v....