United States v. Wilcox

• Decision Date: 30 October 1971
• Docket Number: No. 27370.,27370.
• Citation: 450 F.2d 1131
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Melvin WILCOX, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

450 F.2d 1131 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. James Melvin WILCOX, Defendant-Appellant.

No. 27370.

United States Court of Appeals, Fifth Circuit.

August 9, 1971.

Rehearing Denied October 30, 1971.

COPYRIGHT MATERIAL OMITTED

Harry W. Prebish, Richard M. Gale, Miami, Fla., for defendant-appellant.

Morton Orbach, Asst. U. S. Atty., Robert W. Rust, U. S. Atty., Michael J. Osman, Theodore Klein, Asst. U. S. Attys., Miami, Fla., Will Wilson, Asst. Atty. Gen., Sidney M. Glazer, Atty., U. S. Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, and GOLDBERG and CLARK, Circuit Judges.

JOHN R. BROWN, Chief Judge:

This is a Fifth Amendment case of unusual dimensions. Typically either the prosecution is trying to compel testimony from a witness or the defendant is asserting that the witness should invoke the privilege against self-incrimination.¹ Here, however, for the first time we have been able to discover, the defendant Wilcox sought to force Government witness Maruzewski to testify in person, even though the latter sought and judicially received the protection of the Fifth Amendment. We think Maruzewski's successful invocation of the privilege and the consequent use of his earlier testimony from a prior trial deprived Wilcox of none of his constitutional rights and therefore affirm his conviction.

I. In the Beginning

In 1967 Wilcox was convicted by a jury of transferring counterfeit Reserve Notes with knowledge of their unauthenticity.² During that trial, Maruzewski, the Government's chief witness and the party to whom Wilcox allegedly had transferred the counterfeit notes, gave testimony which gravely inculpated both Wilcox and himself. Maruzewski testified that he had met Wilcox in 1963, in Fort Lauderdale, Florida, where Maruzewski was then renting a room from Wilcox. As a result of this landlord-tenant status they established "a social acquaintance," which amounted primarily to mere "social talk." During some of their conversations, the subject of counterfeit currency "just popped up every once in a while," with Wilcox each time being the instigator. Once Wilcox actually produced a counterfeit $20.00 bill, showed it to Maruzewski, and asked him if he were interested in making a deal. Consequently the two men entered into an arrangement whereby Maruzewski would be supplied the bills from Wilcox, on a consignment basis. This meant that Wilcox would absorb the initial expense of acquiring the bills, and that then Maruzewski would receive and pass them. He would subsequently return Wilcox's investment in the bills, and whatever sum remained would be divided equally between them.

Maruzewski was forwarded $10,000 in counterfeit currency, all in twenty dollar bills. He then began his sojourn as a spendthrift. This journey took him to Louisiana, as he had been directed by Wilcox to stay out of the Florida area when passing the bills. Eventually he was apprehended by federal agents in Detroit, Michigan. At the time of his arrest, he was still in possession of some of the illicit currency.

Subsequently, Maruzewski was returned to Fort Lauderdale to assist in the investigation and apprehension of Wilcox. Once there, he contacted Wilcox by telephone, the call being made from police headquarters, and, with Maruzewski's permission, being recorded by federal agents. This conversation, too, contained incriminating matter which was read to the jury.

Pursuant to that telephone conversation, Maruzewski went to Wilcox's house. He was accompanied by an agent Rivers, who posed as "Mad Dog," an alleged friend of Maruzewski. During this visit Maruzewski handed a number of counterfeit bills to Wilcox, who accepted them and put them in an envelope. All of the action and conversation occurred directly in front of Agent Rivers, and he verified and corroborated all of Maruzewski's testimony concerning the meeting.

At the time he testified, Maruzewski had already pleaded guilty as an accomplice to the counterfeiting charge here in dispute. Also, he had already been convicted and paroled. At that time he was serving a sentence in a state prison for another unrelated, intervening counterfeiting conviction.³

Primarily as a result of Maruzewski's devastating testimony, much of which was corroborated by one or more secret service agents, Wilcox was convicted of the counterfeiting charge. On appeal this Court reversed his conviction and remanded for a new trial.⁴

II. The Witness Takes the Fifth

In accordance with our mandate, a new trial was held, but it terminated in a mistrial almost immediately because counsel for one of the parties mentioned in his opening argument to the jury that Maruzewski was not present and would not appear to testify.

Subsequently when this case came on to be tried for the third time the Trial Judge was fully cognizant of the witness's reluctance to testify, for it was again brought to his attention by Government counsel prior to the trial. Knowing this, the Court convened a post-voir dire, pretrial conference to attempt to determine whether the witness did intend to invoke the privilege against self-incrimination, and whether the witness had a valid reason for doing so.

At this hearing Maruzewski was represented by court-appointed counsel. Out of the presence of the jury, he was subjected to an examination by the Court and counsel for the Government and Wilcox. Following the advice of his attorney Maruzewski invoked the Fifth Amendment to virtually all of the questions which were propounded. In conclusion the Judge found that: (i) Maruzewski would claim the Fifth Amendment privilege against self-incrimination at the prospective trial on the merits,⁵ (ii) that he could validly do so without being contemptuous, (iii) as a result, the witness need not take the witness stand, and (iv) his testimony from the first trial could be introduced to the jury instead.

III. Prior Testimony Used Against Accused

Thus, at Wilcox's third trial, the witness was not called to testify, and his testimony from the first trial was read into the record before the jury. Wilcox was again convicted, and he appeals.

In an effort to sustain his burden Wilcox presents four arguments: i the Court erroneously believed that the witness "had an absolute right to refuse to testify by merely saying that he was invoking the Fifth Amendment," and that as a result of this incorrect interpretation of the extension of the privilege the Judge tendered incorrect admonitions, and incorrect advice, to the witness at the most crucial time possible — when the witness was attempting to decide whether to testify or to invoke the privilege. ii It is the duty of the Court to do everything reasonably within his power to compel a witness to testify, even to the point of threatening him with contempt, but in this case the Court instead, "in effect, encouraged the witness not to testify, by telling him to invoke the Fifth Amendment so he could avoid testifying and at the same time avoid any contempt proceedings against him." iii Since the witness had already pleaded guilty to, and had already been convicted of, the same offense as is here in question, he had already fully incriminated himself with respect to that matter, and he was estopped from invoking the Fifth Amendment in regard to any aspect of that transaction. And iv as the possibility of perjury in the giving of testimony is not a valid basis upon which one may claim the privilege, it was error for the Court, upon learning from Government counsel that Maruzewski "could commit perjury" if he should testify again, not to have made an in-depth inquiry to determine whether this was the witness's reason for refusing to testify.

IV. Determining Likely Incrimination Short of Actual Incrimination

Considering first Wilcox's major contention — that Maruzewski should not have been permitted to invoke the privilege against self-incrimination at the third trial until (i) the Trial Judge had first made a far more searching inquiry than he had conducted to determine the validity of the witness's apprehension of incrimination, and until (ii) the Court had asserted substantial pressure on the witness, by utilizing all of the means at his disposal, including his contempt powers. The key question then becomes whether the Judge properly determined that the protection of the Fifth Amendment was proper for the witness here.

The best illustration of how the Trial Judge should determine whether the privilege against self-incrimination can rightfully be invoked is Hoffman v. United States, 1951, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118. There the petitioner had refused to obey a court order to answer certain questions in a grand jury investigation into violations of a large number of federal statutes, questions largely dealing with whether the petitioner was acquainted with or knew the whereabouts of one William Weisberg. The Court held that it is for the Trial Judge to decide whether using the privilege is justified, yet pointed out the crucial difficulty in making this determination:

"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."

341 U.S. at 486, 71 S.Ct. at 818, 95 L.Ed. at 1124.

Since the Court then cannot directly inquire of the witness as to the nature of the danger he senses, how should it then proceed? Hoffman provides the guidelines:

"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. The trial judge in appraising the claim, `must be governed as much by his personal perception of the peculiarities

...