Before CLARK, Chief Judge, and FRANK and LUMBARD, Circuit Judges.
1. The government, in support of the judge's order, argues thus: Since defendant initially explained that he refused to answer because the answers would impair his business and harm other persons, his subsequent refusal, on Fifth Amendment grounds, was in bad faith and, on that account, should be disregarded. We do not agree. If he was clearly entitled to assert the privilege, his motives for doing so are immaterial. See Taft, J., in Ex parte Irvine, C.C., 74 F. 954, 964-965; cf. United States v. St. Pierre, 2 Cir., 128 F.2d 979, 980.
2.The government also contends that defendant had waived his right to assert the privilege because he had previously testified he had paid the gratuities in question, and in some instances had testified as to the places where the payments were made. But in those answers he had not stated the amounts of the several payments. If answers to the further questions would reveal that he had made a gift to any one person of $600 or more, within any one year, he would have supplied leads to evidence on the basis of which he could be convicted under Sections 145(a) and 147 of the 1939 Internal Revenue Code, 26 U.S.C.A. §§ 145(a), 147, and Sections 6041(a) and 7203 of the 1954 Internal Revenue Code, 26 U.S.C.A. §§ 6041(a), 7203. See Hoffman v. United States, 341 U.S. 479, 486-487, 71 S. Ct. 814, 95 L. Ed. 1118.
On its facts, this case is not governed by Rogers v. United States, 340 U.S. 367, 71 S. Ct. 438, 95 L. Ed. 344. For the same reason United States v. St. Pierre, 2 Cir., 132 F.2d 837, 147 A.L.R. 240, does not apply (even assuming that that decision still has vitality).*fn2 Moreover, since the decision in Rogers v. United States, supra, the Supreme Court has, in general, more generously interpreted the Fifth Amendment privilege. See, e.g., Emspak v. United States, 349 U.S. 190, 75 S. Ct. 687, 99 L. Ed. 997, and Trock v. United States, 351 U.S. 976, 76 S. Ct. 1048, reversing United States v. Trock, 2 Cir., 232 F.2d 839, on the authority of Hoffman v. United States, supra.
As we think the defendant was within his constitutional rights in refusing to answer, he was not guilty of contempt.*fn3
LUMBARD, Circuit Judge (dissenting).
Although the Fifth Amendment does indeed "express the high value our democracy puts on the individual's right of privacy," United States v. Gordon, 2 Cir., 236 F.2d 916, 920 it must also be remembered that "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 * * *." L. Hand, J., in United States v. St. Pierre, 2 Cir., 1942, 132 F.2d 837, 840, 147 A.L.R. 240. To avoid abuse of the privilege, the Supreme Court has repeatedly said that the privilege can only be claimed where the witness has "reasonable cause to apprehend danger," Hoffman v. United States, 1951, 341 U.S. 479, 486, 71 S. Ct. 814, 818, 95 L. Ed. 1118, and not where there is only a "'mere imaginary possibility'" of prosecution, as in this case. Mason v. United States, 1917, 244 U.S. 362, 366, 37 S. Ct. 621, 622, 61 L. Ed. 1198. Prior cases allowing the privilege will be searched in vain, for a set of facts which indicate less cause for reasonable apprehension than this record provides.
Prior to June 26, 1956, Courtney had appeared on four occasions before the grand jury impaneled to investigate allegations of racketeeering in the garment and trucking industries. Apparently sometime after his first appearance and testimony on April 10, and prior to his second questioning on May 3, he retained counsel who attended outside the grand jury room and consulted frequently with Courtney during recesses in the questioning, which recesses were freely granted for that purpose.
Prior to June 26 Courtney had turned over to the grand jury all the books and records of the Courtney Trucking Company of which he was a partner. Following this he was questioned about the disbursement of large sums of cash, unsupported by vouchers, which averaged from $15,000 to $20,000 a year. On June 26 he testified that just the week before he visited about ten packing houses where he had given money to various people. He gave the names of five of the houses which he had visited - National Packing, Fast Service, Payco, Gem and Interstate. Asked to give the names of those to whom he had given money, he refused to answer on the ground that it affected his business and that it would impair his business. He asked to make a statement and testified thus:
"The Witness: My point is that the lifeblood of my business exists merely with the fact that when we go to a packing house or to a pier when we give a special gratuity or we can get our men in and out faster we will -
"The Foreman: We know that.
"The Witness: The reason why I will not say who receives the money; in the first place, there is no one who receives the money that will admit it, and in the second place, if we do tell ...