to surrender the very protection which the privilege is designed to guarantee. To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. The trial judge in appraising the claim 'must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence.' See Taft, J., in Ex parte Irvine, C.C.S.D. Ohio 1896, 74 F. 954, 960.'
It thus appears that the Court must construe the question addressed to a witness in the light of the setting in which the questions were asked.
On cross-examination of the Government's witnesses, it appeared that the defendant's name had been prominently and unfavorably referred to over a long period of time prior to the actual appearance of the defendant before the Senate Committee. The defendant was identified on various occasions as being associated with various 'crime syndicates' of Chicago and with members of the so-called 'Capone gang'. There are many references to the defendant in the reports of the Committee covering its investigations of crime prior to the appearance of the defendant before the Committee. The cumulative effect of these references persuades the Court to conclude that the Senate Committee was of the opinion that it had before it, in the person of the defendant, one who presently or had been in the past, engaging on a large and varied scale in forms of criminal activity and in association with prominent leaders of gangsterism in questionable 'business' operations.
The Court believes that, under these circumstances, the defendant had every reason to be apprehensive as to what his answers might entail.
In the Hoffman case, supra, the defendant had been called as a witness before a special federal grand jury making a comprehensive investigation of violations of numerous federal criminal statutes and conspiracies to violate them. The defendant had been publicly charged with being known as an underworld character and a police record covering twenty years, including a prison sentence on a narcotics charge. The questions he refused to answer pertained to the nature of his present occupation and his contacts and connections with and knowledge of the whereabouts of a fugitive witness sought by the same grand jury.
In referring to the action taken by the Court of Appeals, 3 Cir., 185 F.2d 617, the Supreme Court said, 341 U.S.at page 484, 71 S. Ct.at page 817: 'One judge dissented, concluding that the District Court knew that 'the setting of the controversy' was 'a grand jury investigation of racketeering and federal crime in the vicinity' and 'should have adverted to the fact of common knowledge that there exists a class of persons who live by activity prohibited by federal criminal laws and that some of these persons would be summoned as witnesses in this grand jury investigation."
The Supreme Court further observed in 341 U.S.at page 488, 71 S. Ct.at page 819: 'In this setting it was not 'perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer$ s$ cannot possibly have such tendency' to incriminate.'
The Court believes that the language above quoted applies to the case before it. On the basis of the recent pronouncements of the Supreme Court to which reference has been made and in the light of the peculiar background and milieu surrounding the appearance of the defendant before the Senate Committee, the Court is of the opinion that it is required to grant the defendant's motion for judgment of acquittal. In so doing, the Court points out that the Supreme Court in the case of United States v. White, supra, stated in 322 U.S. at page 698, 64 S. Ct. at page 1251: 'The prosecutors are forced to search for independent evidence instead of relying upon proof extracted from individuals by force of law. The immediate and potential evils of compulsory self-disclosure transcend any difficulties that the exercise of the privilege may impose on society in the detection and prosecution of crime. While the privilege is subject to abuse and misuse, it is firmly embedded in our constitutional and legal frameworks as a bulwark against iniquitous methods of prosecution. It protects the individual from any disclosure, in the form of oral testimony, documents or chattels, sought by legal process against him as a witness.'
The defendant's motion for judgment of acquittal is granted.