United States v. Weisman, 278.

• Decision Date: 22 April 1940
• Docket Number: No. 278.,278.
• Parties: UNITED STATES v. WEISMAN.
• Court: U.S. Court of Appeals — Second Circuit

111 F.2d 260 (1940)

UNITED STATES v. WEISMAN.

No. 278.

Circuit Court of Appeals, Second Circuit.

April 22, 1940

Before L. HAND, CHASE, and CLARK, Circuit Judges.

George Wolf, of New York City, for appellant.

John T. Cahill, U. S. Atty., of New York City (Walter R. Mansfield and Jerome Doyle, Asst. U. S. Attys., both of New York City, of Counsel) for appellee.

L. HAND, Circuit Judge.

The defendant appeals from a sentence of six months following a conviction by the district judge for refusing to answer two questions, put to him by a grand jury on January 26, 1940. The questions were: first, whether he had ever received any cables at Murray's Restaurant, Sixth Avenue, New York; second, whether he knew anyone who visited, lived in, or stayed at, Shanghai in the years 1934 to 1939. The defendant had already been before the grand jury a number of times in December, 1939, and January, 1940, and had answered a few questions, but in the main had claimed his privilege against crimination. On January 22, he had denied that he had received any cables at Murray's Restaurant in 1934, but had immediately asked to retract the answer, and had thereupon asserted his privilege. Similarly on the 24th he had at first denied that he knew anyone who had visited Shanghai in 1934, but had immediately asked to retract; as to 1939 he also denied knowing anyone, but that denial he let stand. These answers the prosecution urges as an abanddonment of the privilege; but we agree with the defendant that they were slips, and not really intended as an abandonment. The defendant's attorney, who was of course not with him before the grand jury, had instructed him to claim his privilege, and nothing had happened to change that purpose which he had claimed again and again. We shall, therefore, dispose of the appeal on the assumption that the privilege, whatever it was, remained.

The two questions were on their face innocent, and it lay upon the defendant to show that answers to them might criminate him. United States v. Burr (In re Willie), Fed.Cas. No. 14,692e; State v. Thaden, 43 Minn. 253, 255, 45 N.W. 447; Regina v. Boyes, 1 B. & S. 311, 321; United States v. Zwillman, 2 Cir. 108 F.2d 802. Whether he had the burden of proof upon that issue we need not decide, for we think in any case he proved his excuse. Obviously a witness may not be compelled to do more than show that the answer is likely to be dangerous to him, else he will be forced to disclose those very facts which the privilege protects. Logically, indeed, he is boxed in a paradox, for he must prove the criminatory character of what it is his privilege to suppress just because it is criminatory. The only practicable solution is to be content with the door's being set a little ajar, and while at times this no doubt partially destroys the privilege, and at times it permits the suppression of competent evidence, nothing better is available. All this has been long understood, but it is not so clear to what facts the privilege extends. Does it protect more than those which "tend" to prove a crime? Does it also cover those which can only be clues to the discovery of other facts which in turn so "tend"? The doctrine of Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110, goes as far as the second; though we need not say how far it has been affected by later decisions. Mason v. United States, 244 U.S. 362, 37 S.Ct. 621, 61 L.Ed. 1198. All crimes are composed of definite elements, and nobody supposes that the privilege is confined to answers which directly admit one of these; it covers also such as logically, though mediately, lead to any of them; such as are rungs of the rational ladder by which they may be reached. A witness would, for example, be privileged from answering whether he left his home with a burglar's jimmy in his pocket, though that is no part of the crime of burglary. This, as we shall try to show, is as far as we need go here.

The defendant offered in evidence an indictment found in the year 1937 by the grand jury of the Southern District of New York against thirty persons (not including himself), charging a conspiracy to import narcotic drugs from Shanghai, payment to be made either by messenger, or by cable, direct to China; cables also being sent from New York to advise the shippers that the drugs had arrived, upon which "arrangements would * * * be made, likewise in...