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UNITED STATES v. FISCHETTI

March 11, 1952

UNITED STATES
v.
FISCHETTI



The opinion of the court was delivered by: TAMM

The defendant in this case was indicted by the Grand Jury of this Court for contempt of Congress. Title 2, Sec. 192, U.S.C.A. He refused to answer questions before a duly created Sub-committee of the United States Senate Special Committee to Investigate Organized Crime in Interstate Commerce (popularly known as the Kefauver Committee). This Committee was conducting hearings pursuant to Senate Resolution No. 202 of the 81st Congress, 2d Session. *fn1"

Section 192 of Title 2 of the United States Code Annotated provides: 'Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $ 1,000 nor less than $ 100 and imprisonment in a common jail for not less than one month nor more than twelve months.'

 At the trial of this case, the Government introduced evidence that the defendant was subpoenaed to appear before the Committee, that, upon his appearance he was asked certain questions and that he refused to answer these questions.

 The defendant based his refusal to answer on the privilege against self-incrimination afforded him by the Fifth Amendment to the Constitution. At the conclusion of the Government's presentation of its case, the defendant moved the Court for a judgment of acquittal. This motion raises the question of whether the Government has established by its proof a violation of the statute which would permit the case to go to the jury.

 The Fifth Amendment provides: 'No person * * * shall be compelled in any criminal case to be a witness against himself'. There have been a number of Supreme Court and Appellate Court decisions delineating the depth, as well as the breadth, of this constitutional guaranty. A thorough examination and consideration of these decisions has been made by the Court in reaching its decision on the defendant's motion.

 The first and probably the most interesting of these cases historically arose out of the trial of Aaron Burr. United States v. Burr, 1807, 25 Fed.Cas. p. 38, No. 14,692e. One Willie, who had served as secretary to Colonel Burr, was shown a certain letter and asked if he understood the code in which it was written. He refused to answer, saying that he might incriminate himself. His claim of privilege was examined by Chief Justice Marshall who, sitting on circuit, was presiding at the trial. The Chief Justice stated, at page 40 of 25 Fed.Cas.: 'When a question is propounded, it belongs to the court to consider and to decide whether any direct answer to it can implicate the witness. If this be decided in the negative, then he may answer it without violating the privilege which is secured to him by law. If a direct answer to it may criminate himself, then he must be the sole judge what his answer would be. The court cannot participate with him in this judgment, because they cannot decide on the effect of his answer without knowing what it would be; and a disclosure of that fact to the judges would strip him of the privilege which the law allows, and which he claims. It follows necessarily then, from this statement of things, that if the question be of such a description that an answer to it may or may not criminate the witness, according to the purport of that answer, it must rest with himself, who alone can tell what it would be, to answer the question or not. If, in such a case, he say upon his oath that his answer would criminate himself, the court can demand no other testimony of the fact.'

 Following this decision, the protection afforded by the Fifth Amendment has been gradually and materially extended by a series of Supreme Court decisions. The most recent of these are United States v. White, 1944, 322 U.S. 694, 64 S. Ct. 1248, 88 L. Ed. 1542, Blau v. United States, 1950, 340 U.S. 159, 71 S. Ct. 223, 95 L. Ed. 170, Blau v. United States, 1951, 340 U.S. 332, 71 S. Ct. 301, 95 L. Ed. 306, and Hoffman v. United States, 1951, 341 U.S. 479, 71 S. Ct. 814, 95 L. Ed. 1118. The present status of the law is that: 'The privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime.' Hoffman v. United States, supra, 341 U.S.at page 486, 71 S. Ct.at page 818.

 It appears clear to the Court that answers to the questions asked of the defendant (set forth above) would not 'in themselves support a conviction under a federal criminal statute'. Further consideration is required before a determination may be made whether the answers 'would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime'.

 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 ...


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