Hays and Feinberg, Circuit Judges, and McLean, District Judge.*fn*
In November 1965, a rally was held in Union Square for the announced purpose of burning draft-cards to protest the war in Vietnam. Four of the participants were subsequently prosecuted for that act under 50 U.S.C.App. § 462(b) (3). One pleaded guilty; the other three were tried before Judge Murphy sitting without a jury and were found guilty of violating that statute. Their convictions have recently been appealed to this court, Docket Nos. 31035-37, argued June 26, 1967. However, still another aftermath of the same draft-card burning rally is now before us -- an appeal by Len Chandler from a conviction for criminal contempt entered by Judge Murphy for refusal to answer a question put to him by the judge. Chandler's asserted reason for his silence was his Fifth Amendment privilege. For reasons given below, we reverse the judgment of conviction.
At the 1965 rally, one of the draft-card burners was Marc Edelman, who had some difficulty in getting his card to burn. According to Edelman's testimony at his trial, he tore it in half and tried to burn each piece; when this was not completely successful, he threw the signed halves to the crowd. About a week after the rally, appellant Chandler, who was a friend of Edelman, told him that he had found one of the halves. Edelman told Chandler "to keep it that [Edelman] didn't want it." Edelman was thereafter indicted in December 1965. Nevertheless, Chandler kept the remnant for eleven months "as a memento * * * * in a safe place as a valuable." A few days before the trial, however, Chandler returned the portion of the card when Edelman's counsel requested it.
This information was brought out by Edelman as a witness in his own defense under questioning by his counsel and the court. The Government asked only one question on cross-examination: "I do not imagine Mr. Chandler knew you were under indictment, did he?" Edelman responded that Chandler did know it. Then both sides rested. However, Judge Murphy immediately had appellant Chandler subpoenaed as a court witness. According to the Government, Chandler's testimony could have been relevant on two complicated theories discussed in the margin.*fn1 Whatever the reasons for calling Chandler as a witness, there is no question that he was served on Friday, October 21, 1966, with a subpoena commanding him to appear, that he thereafter acquired counsel (Harold R. Rothwax) on an emergency basis, and that on Monday, October 24, 1966, he appeared before Judge Murphy. The following colloquy, inter alia, thereupon took place, after appellant was duly sworn:
Q. What I wanted to ask you about were the circumstances under which you received or found this half of the draft card which has been marked as Exhibit AE for identification in this case. Do you see it there? You may take it in your hand. Do you recognize it? A. I respectfully refuse to answer on the ground that my answer might tend to incriminate me.
Q. You had better explain that to me or perhaps you wanted to explain why that answer would tend to incriminate you. I do not understand why it would.
Mr. Rothwax: I do not believe that the witness said it would tend to incrminate him. He said it might.
The Court: There has to be some explanation. I can make a decent guess if he would tell me something, but just asking him what the circumstances were under which he allegedly had possession of it I do not see how that would tend to incriminate him.
Mr. Rothwax: I understand that this was a Selective Service document and I have not, myself, seen it.
The Court: You may look at it. It appears to be half of a Selective Service card.
Mr. Rothwax: I accept your Honor's description of it. It is probably, or is it definitely, now evidence in this particular case. It might very well be that Mr. Chandler's possession of it was in violation of federal law. It might very well be that his possession of it might be part of an ultimate charge that he conspired with others to obstruct justice, or that he withheld evidence that was relevant in a federal case, and for those reasons I feel that he is justified in standing on the Fifth Amendment in refusing to answer.
Q. Where do you live? A. I live at 645 Water Street.
Q. Are you a musician by profession? A. Yes, I am, sir.
Q. Do you know Mr. Edelman? A. Yes, I do, sir.
The Court: I am not completely satisfied that he has persuaded me or you that the answer to my question would tend to incriminate him.
Mr. Rothwax: Your Honor, as I understand the rulings, it is important for the witness to assert this privilege at a ...