Appeal from the District Court of the United States for the Southern District of New York.
Before L. HAND, CLARK, and FRANK, Circuit Judges.
St. Pierre, the respondent, appeals from an other of the district court, sentencing him for criminal contempt in refusing to answer a question put to him before a grand jury. He had refused to answer substantially the same question once before and had been sentenced to thirty days' imprisonment; he appealed to this court, and we affirmed the conviction because the record did not contain any evidence tending to prove that he had committed a federal offense. United States v. St. Pierre, 2 Cir., 128 F.2d 979. The grand jury minutes then before us, although they showed that he confessed to having embezzled money entrusted to him by appropriating it instead of delivering it to the person for whom it was intended, did not show that he had taken it outside the State of New York. As this was necessary to a federal crime, his refusal to disclose the name of the person to whom the money belonged we held to be a contempt. After the sentence had expired, the respondent was again brought before the grand jury, and once more directed to tell the name which he had before refused to disclose, and again he refused. This time, however, it appears that the money which he embezzled he took out side the State of New York, and that supplies the element lacking before. His position is that his testimony before the grand jury was a confession, requiring corroboration in order to make out a case which could go to a jury (Daeche v. United States, 2 Cir., 250 II. 566); and that since the person from whom he withheld the money would very probably be a corroborating witness, the identification might enable the prosecution to complete its case.
A preliminary question arises at the outset as to the appealability of the order, but the circumstances were precisely the same as in the case of United States v. Cusson, 2 Cir., 132 F.2d 413, handed down December 2, 1942, and we refer to our discussion there for the disposal of the point.
Whatever may have been the original limits of the privilege (Wigmore, § 2261), since Counselman v. Hitchcock, 142 U.S. 547, 12 S. Ct. 195, 35 L. Ed. 1110, it is settled in federal courts that a witness cannot be compelled to disclose anything that will "tend" to incriminate him, whether or not the answer would be an admission of one of the constitutive elements of the crime. The name of the victim would certainly so "tend"; it will furnish a witness whose testimony will certainly assist the prosecution, whether or not it uses the respondent's confession. He need not therefore invoke the doctrine that a witness's corroboration is necessary to make a case against him, or persuade us that his confession is admissible against him. Unless he waived his privilege by what he had already said, it protected him against divulging the name of his victim, regardless of anything else; and the only issue is that.
Although the opposite was formerly probably the law of England (Dixon v. Vale, 1 Car. & P. 278; East v. Chapman, 2 Car. & P. 570), since the decision of the Exchequer Chamber by a divided court in Regina v. Garbett, 2 Carrington & Kirwan, 474, 495, no disclosure, however full, will effect a waiver of the privilege; the witness may stop where he pleases. In Brown v. Walker, 161 U.S. 591, 597, 16 S. Ct. 644, 647, 40 L. Ed. 819, it was assumed, though not held, that if the witness "discloses his criminal connections" he must "make a full disclosure"; but just what those "connections" must be, was left at large. In Arndstein v. McCarthy, 254 U.S. 71, 41 S. Ct. 26, 65 L. Ed. 138, and McCarthy v. Arndstein, 262 U.S. 355, 43 S. Ct. 562, 67 L. Ed. 1023, the question was presented whether a bankrupt's schedules waived his privilege when he was examined under § 21, sub. a of the Bankruptcy Act, 11 U.S.C.A. § 44, sub. a. It was held that they did not, and that he might refuse to answer as to the disposition of his property. The court apparently treated the schedules and the examination as a single proceeding, else the question of waiver could not have arisen (Wigmore § 2276 (4); p. 451, 3rd Ed.); and the essence of the decision is that "an ordinary witness" does not waive his privilege "where the previous disclosure * * * is not an actual admission of guilt or incriminating facts," (262 U.S. page 359, 43 S. Ct. 563, 67 L. Ed. 1023). It may be, though we doubt it, that the court meant that a witness could not be cross examined about a fact to which he had testified and which only "tended" to criminate, unless it was one of those "ultimate" facts constituting the crime. Certainly - in spite of its citation of Regina v. Garbett, supra (2 Car. & K. 474) - it is clear that the court did not mean to set up the English doctrine. Moreover, it would seem not to have meant that the admission of nothing short of the whole crime would suffice; else it would not have spoken in the disjunctive. However that may be, we need not pass on the point here, for the respondent admitted the whole crime and stands upon the fact that that waives nothing. The only other federal dicision we have found is Buckeye Powder Co. v. Hazard Power Co., D.C., 205 F. 827, in which there was no discussion.
The question has come up a number of times in the state courts which have either held, or assumed as the basis of their rulings, that the disclosure of any act or transaction waives the privilege as to all details and particulars which will elucidate that act and transaction, although it waives nothing else. We cite some of these dicisions in the margin.*fn1 In none of them, unless it be Foster v. People, 18 Mich. 266, is there any suggestion of the condition that the testimony must disclose all or any of the "incriminating facts," if by that is meant a constituent of the crime. Perhaps in Foster v. People, supra, Judge Campbell did have such a condition in mind when he said: "This distinction between the cases where a witness has or has not furnished sufficient evidence to criminate himself, is clearly recognized in Amherst v. Hollis, 9 N.H. 107, and in Coburn v. Odell, [30 N.H. 540], 10 Foster 540, * * * which hold that when he has once made a decisive disclosure, his privilege ceases." There is nothing in the decisions which he cited to bear him out; and "criminate" is not the equivalent of "convict"; but as we have said of McCarthy v. Arndstein, supra, 262 U.S. 355, 43 S. Ct. 562, 67 L. Ed. 1023, it is not important here what he did mean, because if it imposed any condition upon the waiver, the condition was here fulfilled. The respondent here is obliged to take a still more extreme position; he must maintain that before he waives his privilege he must admit not only his guilt, but he must tell all he knows which will aid in securing the evidence necessary to support a verdict. Until he has made a revelation as complete as this he may not be compelled to disclose any of the details of what he has already uncovered. There is not the faintest intimation of such a notion in the books unless it be read into the phrase, "sufficient evidence to criminate" in Foster v. People, supra, 18 Mich. 266.
The law in this country has developed without such irrational refinements; it rests upon the obvious injustice of allowing a witness, who need not have spoken at all, to decide how far he will disclose what he has chosen to tell in part, and how far he will refuse to let his veracity be tested by cross questioning. In adversary cases it is hard to see how a trial could go on, if this were allowed. Certainly the party who has called the witness should not profit by what he says, and it is small relief for the judge to admonish the jury to disregard what they have heard. The witness has no just claim for such tenderness, unless he has not learned of his privilege before he consents to speak, and not then if the law charges him with knowledge of it anyway. It must be conceded that the privilege is to suppress the truth, but that does not mean that it is a privilege to garble it ; although its exercise deprives the parties of evidence, it should not furnish one side with what may be false evidence and deprive the other of any means of detecting the imposition. The time for a witness to protect himself is when the decision is first presented to him; he needs nothing more, and anything more puts a mischievous instrument at his disposal. It is true that this mischief is less flagrant in an inquisitorial proceeding like an inquest before a grand jury; but the witness has no better claim to protection in one case than in the other; and his protection is the only relevant weight in the scale. The result of using this, like any other privilege, is to deprive people of evidence which would be otherwise available; at best a disastrous necessity, for disputes ought to be settled so far as they can be by resort to the whole truth; and when the only excuse for darkness ceases, it is shocking to shut out the light. Since none of the decisions suggest any distinction between adversary and inquisitory proceedings, surely wer should not resort to so unnecessary and deplorable an innovation.
We need go no further in the case at bar than to hold that, at least after a witness has confessed all the elements of the crime, he may not withhold the details; for it is hardly necessary to labor the point that even in the narrowest sense the disclosure of the identity of the respondent's victim was only a detail of what he had already confessed. Cases may perhaps arise where the testimony put forward as a waiver was so vague or gerneral as to raise a question whether specifications can be said to be truly in amplification of it, but no such embarrassment exists here.
FRANK, Circuit Judge (dissenting).
1. St. Pierre not as a voluntary witness but under subpoena, confessed before a federal grand jury that he had embezzled money from a person not known to the government, and whose name he did not government. and whose name he did not money across state lines.When asked, before the grand jury, for the name of that person, he refused to answer, asserting his constitutional privilege. Unless St. Pierre is compelled to answer, that question, the government, if he is tried for violating the National Stolen Property Act, 18 U.S.C.A. § 413 et seq.,*fn1 cannot make out a case against him which will go to the jury, and he cannot, therefore, be convicted and punished for that crime. But, if he is compelled to answer the question, he will put the government in possession of evidence which will enable the government, in such a proceeding, to go to the jury. So it appears that to compel him to answer that quesrion is to compel him to give evidence without which his punishment for that crime is impossible and with which it becomes possible.
2. To make it clear that such is the situation here, it is well to note the following: (a) A confession before the grand jury is not a "judicial" confession.*fn2 (b) Therefore, the confession cannot, without extrinsic corroboration, be used against St. Pierre. The corroboratibe evidence may be slight in weight, but there must be some such evidence, even if "circumstantial," as to the corpus delicti. Daeche v. United States, 2 Cir., 1918, 250 F. 566; Cohen v. United States, 2 Cir., 1923, 288 F. 835, 836; Litkofsky v. United States, 2 Cir., 1925, 9 F.2d 877, 880; Forlini v. United States, 2 Cir., 1926, 12 F.2d 631, 634;*fn3 Forte v. United States, 68 App.D.C. 111, 94 F.2d 236, 127 A.L.R. 1120. (c) Here the government, on the record before us, has no such corroborative evidence. For its evidence, other than the confession, will show merely that St. Pierre thraveled from New York to Canada, and return, accompanied by a woman, and with $5,000 in cash in his possession. Such evidence, standing alone, can give rise to no reasonable inference, however slight, of the violation of the National Stolen Property Act. (d) If, however, St. Pierre is compelled to disclose the name of the person from whom he embezzled, the government, in all ...