Appeal from the District Court of the United States for the Southern District of New York.
Before MANTON, L. HAND, and SWAN, Circuit Judges.
The power summarily to punish for contempt extends to misbehavior in the presence of the court "or so near thereto as to obstruct the administration of justice." Rev. St. § 725, 28 USCA § 385; Ex parte Savin, Petitioner, 131 U.S. 267, 9 S. Ct. 699, 33 L. Ed. 150. Whether witnesses before the grand jury are to be deemed within the court's presence, as seems probable from Savin, Petitioner, or within the "so near" clause, we need not decide. In either event their recalcitrancy may be dealt with summarily. It is true that what occurs within the grand jury room is not under the eye of the judge, and hence the court cannot forthwith mete out punishment based wholly upon its own knowledge, as in Re Terry, 128 U.S. 289, 9 S. Ct. 77, 32 L. Ed. 405. It must be informed of the alleged contempt, and the contumacious witness must be advised of the charge against him and have adequate opportunity for explanation and defense; but nothing more is necessary. As said by Chief Justice Taft in Cooke v. United States, 267 U.S. 517, 537, 45 S. Ct. 390, 395, 69 L. Ed. 767:
"Due process of law, therefore, in the prosecution of contempt, except of that committed in open court, requires that the accused should be advised of the charges and have a reasonable opportunity to meet them by way of defense or explanation. We think this includes the assistance of counsel, if requested, and the right to call witnesses to give testimony, relevant either to the issue of complete exculpation or in extenuation of the offense and in mitigation of the penalty to be imposed."
Measured by this test, the appellant's objection to the form of the proceeding which resulted in his commitment, cannot prevail. Either a written presentment by the grand jury, as in Blair v. United States, 250 U.S. 273, 39 S. Ct. 486, 63 L. Ed. 979, or an oral presentment, as in Wilson v. United States, 221 U.S. 361, 31 S. Ct. 538, 55 L. Ed. 771, Ann. Cas. 1912D, 558, will suffice to bring the alleged contempt before the court. The appellant was present and represented by counsel when the oral presentment was made to the District Court. Hence no citation or order to show cause was necessary. He was fully advised of what the proceeding was; he asked for no additional time to prepare for defense; he raised no question as to the accuracy of the testimony read in open court, and made no request that more of it be read, or that witnesses be called. His counsel demanded only that the prosecution specify the questions and answers upon which he was being held in contempt, "so that we may have the matter litigated in the proper court," which meant, we suppose, on appeal. To this the court responded that the order was based on the completely evasive conduct of the witness in not answering or in evading the answers to the numerous questions which had been read by the United States attorney, and, on being further pressed for specification said, "I base it on the entire proceedings." The only question of procedure, therefore, is whether refusal of a more detailed specification was prejudicial error.
The prosecutor's oral statement to the court charged the witness with contumacy of two sorts: The giving of evasive and obstructive answers, and the refusal to answer, on the ground of constitutional privilege, when his answers could have no direct tendency to incriminate him. Contumacy of the first sort will seldom appear from a single answer or from a small portion of a witness' testimony. Only by considering a large number of questions and answers will obduracy of this character usually become apparent. It is the constant repetition of "I can't remember" in respect to matters of which the witness must in all likelihood have recollection, and a comparison between his ability to testify as to some matters and his failing recollection as to others, that raises the inference of an intentional refusal to assist the inquiry. To have required the prosecutor to specify only part of what he had read would not have made the charge more specific; it would simply have limited the evidence he offered to sustain it. As to contumacy of the second sort, the witness had already received two previous warnings from the court, and the questions which were the immediate occasion of the presentment, namely, whether he knew Malloy and the location of Malloy's place in Albany, were identical in type with those the court had previously directed to be answered. We do not say that, had the witness offered to purge himself and asked for instructions as to what he must do, it might not have been necessary for the court to pass in detail upon the questions he should answer. But his request for specification was not made for that purpose; nor was it necessary in order that he might be informed of the charge against him. The prosecutor had at the outset definitely stated that the witness was charged with intentionally obstructing the grand jury's inquiry by evasive answers and by refusal to answer under a premature claim of constitutional privilege. Under these circumstances we see nothing prejudicial in the court's refusal to specify the particular questions and answers upon which O'Connell was held in contempt. The refusal is attacked as a denial of due process, but nothing is advanced to indicate that it deprived the appellant of an adequate opportunity to make a defense, had he desired to make one.
The appellant's second point is that the evidence does not support the judgment of contempt, first, because the reading by the United States attorney of the transcript of testimony was not legal evidence of what happened before the grand jury; and, second, because, if it were legal evidence, it would not establish a contempt of court. As to the first branch of the argument, it is a sufficient answer that appellant, with his counsel, and the grand jury were present, and no objection was made to the character of the proof, no question raised as to the accuracy of the transcript, and no opportunity requested to refute what was alleged against him. The whole proceeding assumed that the witness conceded the accuracy of the account of what had transpired before the grand jury, as he had on the previous hearing. If the manner of presenting the facts to the court was informal, it is clear that appellant assented to the informality. People ex rel. Hackley v. Kelly, 24 N.Y. 74, is precisely in point.
As to the second branch of the argument, the refusal to answer certain questions under the claim of privilege will first be examined. Here only questions as to which the privilege was claimed need be considered. The grand jury was investigating a lottery, a subject within its jurisdiction as lotteries almost always involve some use of the mails. 18 USCA § 336. The questions asked were apparently relevant, or at least were a proper introduction to further inquiries, which might elicit information that would lead to prosecution of crime. The appellant was not privileged to refuse to answer unless his answer would have a direct tendency to incriminate him; a remote or speculative possibility of danger is not enough. Mason v. United States, 244 U.S. 362, 37 S. Ct. 621, 61 L. Ed. 1198; United States v. Sullivan, 274 U.S. 259, 264, 47 S. Ct. 607, 71 L. Ed. 1037, 51 A.L.R. 1020. Many of the questions were merely whether he was acquainted with certain persons, who presumably were thought by the grand jury to have some connection with the pool. An answer of "Yes" or "No" to such questions could have no direct tendency to incriminate him. The danger was much more remote than in Mason v. United States, supra. He claimed his privilege in response to some twenty-five questions. They were all innocuous, except, perhaps, those relating to whether he had placed bets through the Albany pool. If those be excluded, and also questions which he answered after direction by the court on the prior hearing, there are still plenty left of a type which he could not refuse to answer, as the court had already explained to him. His persistence in prematurely claiming the privilege and refusing to answer well justified a finding of contumacy.
His contumacy was further established by the character of his responses to questions to which he did make formal answer. Since Ex parte Hudgings, 249 U.S. 378, 39 S. Ct. 337, 63 L. Ed. 656, 11 A.L.R. 333, we have held that, though a witness make formal answer, it may be apparent that he is withholding the truth, and that such obstruction of justice may be punished as contempt even if it be also perjury. Loubriel v. U.S. (C.C.A.) 9 F.2d 807. See, also, In re Schulman, 177 F. 191 (C.C.A. 2); In re Kaplan Bros., 213 F. 753 (C.C.A. 3); Haimsohn v. United States, 2 F.2d 441 (C. C.A. 6); United States v. Karns, 27 F.2d 453 (D.C.N.D. Okl.). While the record does not show it, the briefs have stated that O'Connell has been subsequently indicted for perjury in giving the testimony for which the grand jury made this presentment for contempt. But such indictment, if the fact be accepted outside the record, can have no materiality on the present appeal. Before the grand jury the appellant was plainly holding back what he knew as to the extent and duration of his acquaintance with some of the persons whom he admitted knowing. While the materiality of when his acquaintance began may not be obvious, his refusal to state his best recollection made it impossible for the examiner to pursue the inquiry further into matters whose relevancy might have clearly appeared. The scope of a grand jury's inquiry is not to be narrowly limited by forecasts of the probable result of the investigation. Carroll v. United States, 16 F.2d 951, 953 (C.C.A. 2). His parrying with the examiner and his constant reiteration of "I don't remember" in respect to matters of which he must have had some recollection indicate to our minds, as they did to the grand jury and the District Court, a determination not to give his best recollection of facts about which he was being interrogated. Such conduct, coupled with his refusal to answer some questions at all, under a claim of privilege which the court had previously instructed him to be inapplicable, furnishes a typical example of recalcitrancy. His attitude was clearly obstructive and contemptuous of judicial authority.
The final contention of the appellant is that, regardless of the details of his examination, it was a violation of his rights under the Fifth Amendment to require him to be sworn and examined before the grand jury, because its investigation, though ostensibly general, was in reality an attempt to secure from his own mouth evidence upon which to indict him. Some judicial support may be found for such a view. See People v. Gillette, 126 App. Div. 665, 668, 111 N.Y.S. 133; People v. Bermel, 71 Misc. Rep. 356, 357, 128 N.Y.S. 524. But it has not prevailed generally. United States v. Price, 163 F. 904 (C.C.S.D.N.Y.); United States v. Kimball, 117 F. 156 (C.C.S.D.N.Y.); Commonwealth v. Bolger, 229 Pa. 597, 602, 79 A. 113; State v. Cox, 87 Ohio St. 313, 346, 101 N.E. 135; State v. Howat, 107 Kan. 423, 430, 191 P. 585; Wigmore, Evidence (2d Ed.) § 2268. As Prof. Wigmore has aptly said, the constitutional provision is "an option of refusal and not a prohibition of inquiry." Were it otherwise, any suspect would be sacrosanct, and witnesses most likely to know the facts could refuse any aid to an investigation of the crime. The mere summoning of a witness before the grand jury gives no basis for the assumption that his constitutional privilege will be impaired. His duty is to answer frankly until some question is propounded, the answer to which might tend to self-incrimination.
For the foregoing reasons, a majority of the court believes the judgment was without error. It is accordingly affirmed.
MANTON, Circuit Judge (dissenting).
On July 30, 1928, the appellant, a resident of Albany, N.Y., was arrested under a body attachment, taken to the city of New York, because he had failed to answer a subpoena issued to compel his attendance as a witness in the trial of one Otto and others, to be had in the Southern district of New York. At the time, Otto had not been arraigned on the indictment and the date of the trial had not been set. The following morning he was arraigned before the District Court and there held in $10,000 bail for his appearance as a material witness.
Without further process, he was directed to appear before the grand jury, then in session. Advised by counsel, he refused to take the oath or give his name or answer questions. He was hailed before the court and directed to take the oath and answer questions. This he did, answering a number of questions, and, upon being interrogated about his business and his acquaintance with individuals, he declined to answer. He was again brought into court and directed in general terms to answer questions. His refusal to answer was based upon his assertion of a violation of his constitutional rights. He gave as the reasons for his refusal, that the answers would tend to incriminate and degrade him. At the time the grand jury was investigating the so-called Albany baseball pool, which seems to have been a fraudulent scheme, a lottery; and the basis for investigation by the federal grand jury was the use of the mails in ...