person to whom she had given the Party's books, finally asserting the privilege against self-incrimination. This claim came after she had testified, as stated, to her status as an officer of the Party. In an opinion by Chief Justice Vinson, the Court, referring to Brown v. Walker, supra, stated that 'federal courts have uniformly held that, where criminating facts have been voluntarily revealed, the privilege cannot be invoked to avoid disclosure of the details', and that the Arndstein cases, supra, 'further support the conviction in this case for, in sustaining the privilege on each appeal, the Court stressed the absence of any previous 'admission of guilt or incriminating facts" (Italics in opinion.) Also in its opinion the Court quoted with approval from Foster v. People, supra, and then made the following statement: 'Requiring full disclosure of details after a witness freely testifies as to a criminating fact does not rest upon a further 'waiver' of the privilege against self-incrimination. Admittedly, petitioner had already 'waived' her privilege of silence when she freely answered criminating questions'. (Italics supplied.)
Very recently the question here involved came before the Court of Appeals for this circuit, in Powell v. United States, 1955, 96 U.S.App.D.C. 367, 226 F.2d 269, 276. Powell was convicted of contempt on the ground that he gave obstructive and contumacious answers to questions propounded to him before the grand jury, and that he disobeyed a court order that he answer. He asserted his privilege under the Fifth Amendment. On this point, the Court of Appeals for this circuit had the following to say: 'It is said Powell had no privilege, because he had already answered and so opened the door to further questioning under the Rogers doctrine. But his earlier answers had been that he had no diaries, and so he did not open any door. If he had said he had the diaries and then refused to testify further about them, the privilege might not lie; this might be the Rogers doctrine. We think the Rogers doctrine does not apply to Powell's claim of the privilege in response to the ten questions put to him upon his third appearance before the Grand Jury.'
The rule of law, therefore, as announced by these cases, is that the voluntary answer must be 'criminating' to prevent the witness from stopping short and refusing further explanation. The defendant in this case did not testify as to any criminating fact; on the contrary her testimony relied on by the Government as requiring her to answer the questions herein involved were completely non-incriminating in character and, under the authorities above mentioned, she had the right to 'stop short' and assert her privilege.
In support of its position, the Government presses on me certain cases, but they are either not in point or do not support its contention.
Among others, it refers to Rogers v. United States, supra (also relied on by defendant) as authority in support of its claim of a waiver. But as above pointed out, this is authority against its position, because the waiver in that case came about by reason of the incriminating testimony previously given by respondent, which is not present here.
The other cases principally relied on by the Government do not relate to a refusal to answer under the Fifth Amendment, but to evidential questions arising when a defendant in a criminal case takes the stand and testifies. Among them is Walder v. United States, 347 U.S. 62, 74 S. Ct. 354, 98 L. Ed. 503. That was a criminal case where the defendant elected to testify, and denied that he had ever possessed any narcotics. The court held that it was proper for the Government to cross-examine him about a heroin capsule unlawfully seized from his home on a prior occasion. The defendant denied that narcotics were taken from him at that time, and the court held that the Government might thereafter properly offer the evidence which had been previously suppressed, to rebut his testimony. Also relied on by the Government is Raffel v. United States, 271 U.S. 494, 46 S. Ct. 566, 70 L. Ed. 1054, a criminal case where the court held that it was proper to require the defendant to disclose that he had not testified at his first trial. Also cited is Viereck v. United States, 78 U.S.App.D.C. 279, 139 F.2d 847, 851. That also was a criminal case where defendant, 'under no compulsion whatever', took the stand and testified in his own defense. The court held that it was proper for the Government to develop before the jury that on previous occasions he had refused to testify on the ground that his testimony might tend to incriminate him. This was held admissible for the purpose of attacking his credibility by showing manifest inconsistencies in the illusion he sought to create as to his willingness to tell fully and frankly all that he knew. Also cited is Dowling Bros. Distilling Co. v. United States, 6 Cir., 153 F.2d 353, where a defendant had testified on cross-examination, that he had never sold any whiskey over the ceiling price. The court held it was proper for the Government to offer testimony as to overpayment made to defendant under circumstances similar to those charged in the indictment, because it went to his credibility. In none of these cases, as above noted, was the issue here involved before the court. None of them involved a refusal to testify on the ground of self-incrimination, and none of them involved the question of any waiver of this right.
The Government also cited the case of Reagan v. United States, 157 U.S. 301, 15 S. Ct. 610, 39 L. Ed. 709, but there the issue was whether the judge erred in charging the jury that it should consider defendant's personal interest in the outcome of the case when weighing his testimony. The court held that this was proper, and stated that a defendant, when he assumes the position of a witness, is entitled to all its rights and is subject to all it burdens.
From this statement, the Government argues that, if the position of a defendant when he testifies is no different from that of an ordinary witness, the position of an ordinary witness is no different from that of a defendant. But this generalization overlooks the fact that, when a defendant takes the witness stand and testifies, 'His waiver is not partial', and 'having once cast aside the cloak of immunity, he may not resume it at will, whenever cross-examination may be inconvenient or embarrassing.' Raffel v. United States, supra $ 271 U.S. 494, 46 S. Ct. 568). see also Johnson v. United States, 318 U.S. 189, 195, 63 S. Ct. 549, 87 L. Ed. 704. In the case of an ordinary witness, however, he does not waive his immunity unless he fails to invoke it when an answer might tend to incriminate him, or unless he has given incriminating testimony, in which case he waives it so far as further details in respect thereof are concerned. Also, it should not be overlooked that the status of a defendant who testifies in his own behalf is different from that of an ordinary witness, e.g., one before a grand jury or a congressional committee. The former is not required to testify, but may make his choice of testifying or not, with the right to have the jury instructed that his failure to testify creates no presumption against him. The ordinary non-defendant witness is required to appear and answer questions unless he properly claims that his answers may tend to incriminate him.
Two other cases cited by the Government, namely, United States v. Weisman, 2 Cir., 111 F.2d 260, 261, and United States v. St. Pierre, 2 Cir., 128 F.2d 979, and 2 Cir., 132 F.2d 837, 840, 147 A.L.R. 240, relate to the question of waiver of the privilege, but the former simply stated that Weisman's answers, claimed to be an abandonment, 'were slips, and not really intended as an abandonment', and the latter supports the position of the defendant in that the court stated in the later of the St. Pierre cases that it need go no further 'than to hold that, at least after a witness has confessed all the elements of the crime, he may not withhold the details; * * *.' In the case at bar, as above stated, the defendant confessed none of the elements of the crime, but denied any wrongdoing.
Having in mind the admonition in the recent case of Emspak v. United States, 1955, 349 U.S. 190, 196, 75 S. Ct. 687, 691, 99 L. Ed. 997, quoting from Smith v. United States, 337 U.S. 137, 150, 69 S. Ct. 1000, 93 L. Ed. 1264, that "Waiver of constitutional rights * * * is not lightly to be inferred", and in the light of the controlling decisions of the Supreme Court and the Court of Appeals for this circuit, above referred to, I reach the conclusion that the defendant did not waive her privilege under the Fifth Amendment and therefore did not violate the statute in question in refusing to answer the questions propounded to her. Therefore, I find that she is entitled to a judgment of acquittal on all counts, and judgment will be entered accordingly.
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