information possessed by that able and experienced investigator, upon which were based the questions involved in this indictment. It is further to be noted that many of the questions asked this defendant, and which he declined to answer on the ground that such answers would tend to incriminate him were so obviously incriminating on their face that they were not made the subject of contempt proceedings, as were the questions set forth in the twenty-six counts of the indictment. It is of significance also that, during the course of the questioning of this defendant, his attention was directed to the provisions of Section 3486, Title 18, United States Code, which reads as follows: 'No testimony given by a witness before either House, or before any committee of either House, or before any joint committee established by a joint or concurrent resolution of the two Houses of Congress, shall be used as evidence in any criminal proceeding against him in any court, except in a prosecution for perjury committed in giving such testimony. But an official paper or record produced by him is not within the said privilege.'
It can hardly be doubted that there was then a misapprehension that this provision afforded such immunity to a witness testifying that he could be compelled to make answers to pertinent questions, even if incriminating. The defendant, upon advice of his counsel, took the position that the statute referred to did not provide such complete immunity from prosecution that it supplanted the right afforded him under the provisions of the Fifth Amendment. This is, of course, what was decided by the United States Supreme Court in the case of Counselman v. Hitchcock, 142 U.S. 547, at page 564, 12 S. Ct. 195, at page 198, 35 L. Ed. 1110, at page 1114. In considering Section 860 of the Revised Statutes, which, in substantially the same terms as the section relating to witnesses before congressional committees, provided like immunity to witnesses in judicial proceedings, the Court said:
'That section must be construed as declaring that no evidence obtained from a witness by means of a judicial proceeding shall be given in evidence, or in any manner used against him or his property or estate, in any court of the United States, in any criminal proceeding, or for the enforcement of any penalty or forfeiture. It follows that any evidence which might have been obtained from Counselman by means of his examination before the grand jury could not be given in evidence nor used against him or his property in any court of the United States, in any criminal proceeding, or for the enforcement of any penalty or forfeiture. This, of course, protected him against the use of his testimony against him or his property in any prosecution against him or his property, in any criminal proceeding, in a court of the United States. But it had only that effect. It could not, and would not, prevent the use of his testimony to search out other testimony to be used in evidence against him or his property, in a criminal proceeding in such court. It could not prevent the obtaining and the use of witnesses and evidence which should be attributable directly to the testimony he might give under compulsion, and on which he might be convicted, when otherwise, and if he had refused to answer, he could not possibly have been convicted.
'The constitutional provisions distinctly declares that a person shall not 'be compelled in any criminal case to be a witness against himself,' and the protection of section 860 is not co-extensive with the constitutional provision.' (Emphasis supplied.)
While Section 860 of the Revised Statutes has since been repealed, the determination that its provisions afforded only partial immunity has been considered by the Supreme Court to be equally applicable to Section 3486, Title 18, United States Code,
which relates to witnesses before congressional committees. That this is clearly so was subsequently recognized by the Sub-Committee in its report,and in that connection it made recommendation that an adequate statute of immunity be formulated and adopted.
In the light of the setting and all of the facts and circumstances surrounding the questioning of this defendant, which have been briefly alluded to above, it does not seem in the slightest unreasonable that the defendant would have very grave apprehension that he was in danger of prosecution for an offense against the United States, and that in those circumstances he ought not to be required to furnish information upon which he could be prosecuted or convicted, or which would reveal sources from which evidence could be obtained that would lead to such prosecution or conviction. Of course, the defendant is not entitled to assert privilege to avoid giving information respecting any offense for which he could not be prosecuted or convicted, and, therefore, he was in no danger with respect to the offense for which he had previously been indicted, plead guilty and fined; nor was he in any danger respecting any offense for which he could not be prosecuted by reason of the statute of limitations. Clearly, however, his previous indictment and punishment would not be a bar to prosecution for violation of Section 794(a) (b) (c) and (d), Title 18, United States Code, 'Gathering or delivering defense information to aid (a) foreign government:, which is not the offense for which he has already been put in jeopardy. Certain of the offenses provided in that Section are not barred by the statute of limitations,
and others are subject to a statute of limitations of three years,
but, as to the three-year statute of limitations, Section 3287, Title 18, United States Code, provides that, 'When the United States is at war the running of any statute of limitations applicable to any offense (1) involving fraud or attempted fraud against the United States or any agency thereof in any manner, whether by conspiracy or not, or (2) committed in connection with the acquisition, care, handling, custody, control or disposition of any real or personal property of the United States, * * * shall be suspended until three years after the termination of hostilities as proclaimed by the President or by a concurrent resolution of Congress.'
The Court takes judicial notice that the President proclaimed termination of hostilities of World War II at 12 o'clock noon of December 31, 1946.
It would thus appear that the three-year statute of limitations would not begin to run until December 31, 1949, and would not bar prosecution until December 31, 1952. It can hardly be doubted that, under the statements and charges made by some of the witnesses at the hearings of the Sub-Committee, the witness could reasonably apprehend danger of prosecution for violation of the Smith Act,
or conspiracy to violate the Smith Act.
See Blau v. United States, 340 U.S. 159, 71 S. Ct. 223.
That the Congress should have the power and means to secure any information which it needs in the public interest is certainly beyond question. Certainly there should be no barrier which would prevent the Congress from obtaining such information, but also certainly this information should not be had at the expense of the American tradition that no one should be prosecuted for or convicted of crime upon confessions coerced from him, or testimony which he has been compelled to give. There are ample ways within that tradition, with diligent investigation, upon testimony of others, and voluntary statements of the accused to bring guilty persons to justice. And furthermore, it clearly lies within the power of Congress, when information is needed by the Congress for its constitutional purposes, to secure that information, even though it would reveal that the witness is guilty of a criminal offense, by providing complete immunity to such witness when it is deemed that the information sought is relatively more important in the public interest than punishment of the witness for the crime. The Congress has done this with respect to numerous administrative agencies of the Government, and could certainly do so with respect to witnesses before its own committees. Such safeguards as Congress deems proper could be provided against any improvident use of such immunity. Indeed, as already mentioned, the Sub-Committee conducting the hearing involving this defendant has recommended such course of action, which would avoid the present conflict between congressional power and constitutional limitation.
I cannot reach any other conclusion but that the defendant had reasonable ground for apprehension that the testimony sought from him would expose him to prosecution for or conviction of a crime against the United States, and, having claimed the privilege granted to him by the Fifth Amendment to the Constitution, he should not have been required to give such testimony, and, therefore, it is the judgment of the Court that, in refusing to do so, he is not guilty of contempt.
Exhibit Date Newspaper
B 4/20/50 New York Journal
C(4) 4/23/50 American
C(5) 4/21/50 "
D(2) 3/16/50 "
D(3) 4/07/50 "
G(1) 5/23/50 "
H(7) 6/15/50 "
C(1) 4/21/50 New York Herald Tribune
H(2) 6/09/50 "
H(5) 6/17/50 "
C(2) 4/21/50 The New York Times
D(5) 5/05/50 "
F(1) 5/23/50 "
H 6/10/50 "
H(4) 6/13/50 "
C(8) and D 5/01/50 New York World-Telegram
D(1) 5/18/50 "
F 5/26/50 "
G(2) and G(3) 6/09/50 "
H(1) 6/10/50 "
H(3) 6/12/50 "
C 4/21/50 The Daily News
D(7) 6/09/50 The Post Home News
C(7) 3/07/50 The Hartford Times
C(3) 4/21/50 Boston Record
H(6) 6/16/50 Knoxville News Sentinel
G 5/23/50 Tulsa World
C(6) 5/04/50 Worcester Gazette & Post
D(6) 6/09/50 Chicago Tribune
D(8) A booklet entitled "The Shocking
Story of the Amerasia Case,"
published by Scripps-Howard
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