United States v. Zwillman, 177.
| Citation | 108 F.2d 802 |
| Decision Date | 15 January 1940 |
| Docket Number | No. 177.,177. |
| Parties | UNITED STATES v. ZWILLMAN. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Before SWAN, AUGUSTUS N. HAND, and CLARK, Circuit Judges.
Arthur Garfield Hays, of New York City (Arthur Garfield Hays and Morris Shilensky, both of New York City, of counsel), for defendant-appellant.
John T. Cahill, U. S. Atty., of New York City (Jerome Doyle, Robert L. Werner, and William F. Young, Asst. U. S. Attys., all of New York City, of counsel), for the United States.
In the month of August, 1939, the defendant-appellant appeared before a grand jury in the Southern District of New York pursuant to a subpœna which required him to testify to all and everything which he might know in regard to an alleged violation of Section 88 of Title 18 of the United States Code, 18 U.S.C.A. § 88, which is the familiar statute denouncing conspiracies "to commit any offense against the United States, or to defraud the United States in any manner or for any purpose." The proceeding was a grand jury investigation under the title of United States v. John Doe. After being sworn and giving some testimony the defendant was asked the following questions which he refused to answer on the grounds hereinafter stated:
Because of the defendant's refusal to answer the above questions he was presented by the grand jury for contempt. After receiving advice of counsel he persisted in his refusal and was adjudged guilty of contempt by a judge of the United States District Court and sentenced to six months' imprisonment, whereupon he took the present appeal. We hold that the judgment was erroneous and should be reversed.
In dealing with the presentment for contempt the court had before it only the questions which the defendant declined to answer and it expressly held that no other part of the testimony before the grand jury was relevant.
Defendant's counsel asked leave to examine his testimony before the grand jury in order to ascertain whether it did not show (as counsel alleged it did) that he had been engaged in the liquor business during the years in which he was asked to give the names of his business associates. Counsel also asked the court to examine the minutes to see whether the answers to the questions asked would not tend to incriminate the defendant, but the judge declined to do this. Counsel further asked leave to call as a witness a man named Baldwin, who he said had been making income tax investigations for the years involved, and also to call one Murray, who had previously testified at the trial in the case of United States v. Torrio that six men, of whom the defendant was one, had been engaged in illegal liquor activities during the last two years, i. e. 1937 and 1939.
The government objected to all these sources of proof and was sustained by the court. The Assistant District Attorney, who was in charge of the grand jury proceeding, was called as a witness by defendant's counsel and asked what was the purpose of the investigation and whether he was seeking to implicate the defendant but, on objection, these interrogatories were ruled out.
In the course of argument at the time of the presentment defendant's counsel stated that his client had been in the liquor business up to 1933 when the 18th Amendment, Const.U.S.C.A., was repealed. In view of that statement and the apparent assumption of all concerned, proof of who were defendant's associates in business might tend to establish a conspiracy to violate the revenue laws by failing to pay taxes, to affix stamps or to make returns under the applicable statutes. The repeal of the 18th Amendment would not validate violations of the internal revenue laws or conspiracies which had been carried on to effect such violations. Evidence necessary to show that defendant was engaged in a conspiracy during the years from 1928 to 1932 might well be supplied by...
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...dismissed 286 U.S. 523, 52 S.Ct. 495, 76 L.Ed. 1267; United States v. Weinberg, 2 Cir., 65 F.2d 394 (60 days); United States v. Zwillman, 2 Cir., 108 F.2d 802 (six-month sentence reversed); United States v. Weisman, 2 Cir., 111 F.2d 260 (six-month sentence reversed); United States v. St. Pi......
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