Wollam v. United States, 14744.

• Decision Date: 02 May 1957
• Docket Number: No. 14744.,14744.
• Citation: 244 F.2d 212
• Parties: Donald M. WOLLAM, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

244 F.2d 212 (1957)

Donald M. WOLLAM, Appellant, v. UNITED STATES of America, Appellee.

No. 14744.

United States Court of Appeals Ninth Circuit.

May 2, 1957.

Gladstein, Andersen, Leonard & Sibbett, Norman Leonard, San Francisco, Cal., Donald M. Wollam, Portland, Or., in pro. per., for appellant.

C. E. Luckey, U. S. Atty., Robert R. Carney, Asst. U. S. Atty., Portland, Or., for appellee.

Before FEE, CHAMBERS and HAMLEY, Circuit Judges.

CHAMBERS, Circuit Judge.

This case is a companion of Simpson v. United States, 9 Cir., 241 F.2d 222.

Here Donald M. Wollam was a witness before the same Congressional subcommittee (before which Simpson appeared) conducting an investigation on June 19, 1954, and he refused to answer the following questions:

1. Mr. Wollam, what is your present address, sir?

2. Now, Mr. Wollam, what is your present employment?

3. Did you ever attend elementary school; and if so, where?

4. Did you ever attend high school, Mr. Wollam?

5. Now, did you ever attend college, Mr. Wollam?

Various grounds were variously stated by Wollam for the refusal to answer which he made. None was later relied on except the claim that an answer might tend to incriminate. It is asserted that he was protected by the Fifth Amendment of the Constitution, the safety of which he claimed.

Indictment with a count for each refusal followed on December 1, 1954. Trial by jury and conviction on each count followed on January 19, 1955. Identical concurrent prison sentences were imposed on each count. In addition, there was a fine of $250 levied on the first count.

As we said in Simpson, if the conviction is valid on the first count, we need not examine the other four counts. In our opinion, the judgment is correct on the first count.

The approach of the appeals in Wollam and MacKenzie varies in some detail from that presented in Simpson; thus, this second opinion.

Appellants contend that the indictment did not plead or prove the pertinency of the questions. Where the question (Mr. Wollam, what is your present address, sir?) is obviously simply one of identification of the witness the pertinency is not obscure. If the witness had been asked if he was familiar with some dolphin in the Willamette River, then an explanation of its pertinency might be required in the indictment. Details of the dolphin's relevance should follow in the proof.

It is argued that it is not evident from any testimony what relevance defendant's address had to the purpose of the investigation. Testimony of any kind must be laid stone on stone. The first relevant point is: Who is the witness, anyway? Certainly the test of pertinency is not whether the question itself was in the ultimate area of investigation: Communist activities in the Pacific Northwest states. It is pertinent if the question is a usual and necessary stone in the arch of a bridge over which an investigation must go.

We next come to the problem of whether defendant was insulated by the Fifth Amendment from answering: "Mr. Wollam, what is your present address, sir?"

In Simpson we said that at the committee interrogation, or at least no later than his trial, the witness or his counsel must demonstrate how the question might be dangerous for him to answer; i. e., lead to a disclosure which he had a right to protect against. Here on appeal counsel import by their own leave a committee hearing report containing the testimony of earlier witnesses who testified of Communist underground activities. These witnesses had testified that underground Communist members conceal their addresses, ages, jobs. Also, it was related that homes were used by Communists in the underground as "mail drops." It is well settled since Sinclair v. United States, 279 U.S. 263, 49 S.Ct. 268, 73 L.Ed. 692, that the trial judge decides and tells the jury whether the defendant had a right to claim the privilege which he, the defendant, asserted. This background of testimony prior to Wollam's appearance was never presented to the trial court by the defendant, although he, Wollam, had abundant opportunity to do so. Strange indeed would it be if we were to receive the evidence offered for the first time here and find it justified the defendant's refusal to answer. This court reviews the trial court's record. Able counsel for the defendant know this. We, therefore, do not consider this collateral record tendered us, other than to decide we should not consider it.¹

Under the historical development of the privilege against self incrimination, it is only in direct defense of a crime that a defendant does not have to be sworn (or affirm) and take the stand.² If within the territorial limits of jurisdiction, a witness must respond to a subpoena and take the stand for grand jury and congressional investigations. We assume that he must state his name. Ordinarily we would think that he should identify himself sufficiently to distinguish himself from all the other David Wollams.

Some accommodation must be made to the subpoena power. Suppose five David Wollams were subpoenaed. Suppose each refused to state where he lived on the ground it might tend to incriminate. We don't think a committee ordinarily has to stand for that.

We do not hold that there can never be a case where a witness cannot refuse to state his residence. We do think that a factor to be considered in determining privilege is that it is a rare, rare case where disclosure of address would lead to incrimination. If the case on trial is such a case where address might tend to lead to incrimination, it ought to be pointed out how somewhere before the case goes to the jury, or the possibility should appear to the trial court in the record it had. It was absent here.

Defendant complains that the indictment failed to allege that the refusal was willful. The charging part of the indictment was identical with Simpson's. What we said there on this point, we adhere to now. We are satisfied that the question of defendant's intentional refusal to answer was properly submitted to the jury. Also, the instructions are amply adequate.

It is claimed that under Quinn v. United States, 349 U.S. 155, 75 S.Ct. 668, 99 L.Ed. 964, and Emspak v. United States, 349 U.S. 190, 75 S.Ct. 687, 99 L.Ed. 997, and Fagerhaugh v. United States, 9 Cir., 232 F.2d 803, the committee chairman did not properly instruct the defendant to answer. These cases do not stand for the proposition that the last words on the subject of any question must be a demand that the witness answer. In our judgment adequate demand to answer was made. This really must be tested by a fair reading of the record. Therefore, we add as an appendix the record as the trial court had it on what transpired at the congressional hearing with reference to Donald Wollam.³ This appendix is also useful in examining the setting of the questions which Wollam refused to answer, as the trial court had the setting of the questions for study and examination.

We do not rest our decision on the next point. We do not say that if a witness amplifies his claims with an untenable reason for not testifying then he cannot later fall back on an evident good reason for not testifying, which reason was susceptible of observation by the trial court.

The truth of the matter of refusal may rest in Wollam's statement before the committee that:

1. He was afraid of reprisals to his family.

2. He was not going to join "the stable of stool pigeons."

3. He was afraid if he started answering questions he might go too far and answer one too many questions; thus, waive his rights.

While, as above stated, we do not rely on the three specific reasons he gave, yet his statements certainly do not strengthen his case.

Of course, Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118, is our guide. We do not believe the conviction here is proscribed by the standards set forth there.

In our examination of all of the cases in recent years where Fifth Amendment contempt convictions have been reversed by the Supreme Court, it is our belief that the possibility of the particular answers to questions supplying some link in a chain was real. See the cases cited in Circuit Judge Hastie's review of the subject in United States, v. Coffey, 3 Cir., 198 F.2d 438. Here we think it was imaginary and perhaps even an afterthought. The refusals are probably accounted for by just the reasons Wollam gave.

Judgment affirmed.

APPENDIX

Testimony of Donald M. Wollam, Accompanied by His Attorney, Irvin Goodman

Mr. Wollam. My name is Donald M. Wollam. W-o-l-l-a-m.

Mr. Kunzig. Would counsel please state his name and office address for the record?

Mr. Goodman. My name is Irvin Goodman, Portland Trust Building, city.

Mr. Kunzig. Thank you, Mr. Goodman. Mr. Wollam, what is your present address, sir?

Mr. Wollam. Mr. Kunzig, I refuse to answer that question on the first, under the fourth amendment because I believe that counsel is aware that people who have given their address over this microphone both here and in Seattle have had their homes threatened. I have a wife and family at home who I don't propose to put in jeopardy because of any action I may take here.

Mr. Kunzig. Just shorten it up.

Mr. Velde. You may state your legal grounds.

Mr. Wollam. I don't like your question, Mr. Kunzig, and I will certainly not surrender to you any right that I may have to —

Mr. Velde. You may state your legal grounds, young man, but we're not going to listen to another tirade. Do you have contempt in your heart, when you approach the witness stand, do you have contempt in your heart for this committee of your United States Congress?

Mr. Wollam. I refuse to answer that question on the grounds of the fifth amendment, the decision of United States judge, James Alger Fee, in the case of United States versus —

Mr. Velde. It is apparent that this witness is trying to filibuster. We just can't have that, as I pointed out the other day.

Mr. Kunzig. Mr. Chairman, I...