# James H. Ellis, Jr. v. United States of America, Alfred M. Watkins v. United States

> Court of Appeals for the D.C. Circuit · April 30, 1969 · 416 F.2d 791

URL: https://www.frixlaw.com/law-library/cases/9454909

## Case

- **Full name:** James H. ELLIS, Jr., Appellant, v. UNITED STATES of America, Appellee; Alfred M. WATKINS, Appellant, v. UNITED STATES of America, Appellee
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** April 30, 1969
- **Citations:** 416 F.2d 791; 135 U.S. App. D.C. 35; 1969 U.S. App. LEXIS 12599
- **Precedential status:** Published
- **Opinion:** Dissent by Wright
- **Judges:** Danaher, Wright, Leventhal
- **Cited by:** 102 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Questioned by In Re Mayer Morganroth, Raymond J. Donovan, Secretary of Labor v. Frank Fitzsimmons, 718 F.2d 161 (1983).
- Negative treatments: 2
- Distinguished by: 3
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9454909

## How later opinions describe it (automated extraction)

- concluding that, although “[o]rdinarily a defendant does not have standing to complain of an erroneous ruling on the scope of the privilege of a witness,” a “defendant does have standing ... to complain that [a] conviction was obtained in a ease where the trial judge went outs…
- noting that defendant "expressly stated to the grand jury that he had consulted a lawyer prior to going before the grand jury; that he wished to cooperate with the Government though he understood he did not have to; that this cooperation was voluntary, and that he knew anythin…
- holding that a witness who testifies voluntarily before the grand jury may not claim the privilege when called to testify at the trial on the indictment that the grand jury returned
- recognizing that defendant has standing to challenge grant of immunity “where the trial judge went outside his judicial province to grant immunity to a witness”
- declining to adopt, under the circumstances of that case, the prevailing rule that waiver of privilege in one proceed *140 ing does not affect rights in another proceeding

## Opinion text

J. SKELLY WRIGHT, Circuit Judge,
(dissenting):
I join in Parts A and B of Judge Leventhal’s opinion, but because I cannot agree with Part C I must dissent from the judgment of affirmance.
Judge Leventhal would have us depart from the established principle that “a person who has waived his privilege of silence in one trial or proceeding is not estopped to assert it as to the same matter in a subsequent trial or proceeding.” In re Neff, 3 Cir., 206 F.2d 149, 152 (1953). His premise is that compulsion of testimony which does not enhance the risk of prosecution or conviction invades no interest protected by the Fifth Amendment.
On the contrary, I believe the Fifth Amendment not only protects against the risk of prosecution on evidence extorted from the defendant, but also establishes a right to abstain from the demeaning ritual of public self-accusation. In the words of Mr. Justice Douglas, “The Fifth Amendment protects the conscience and the dignity of the individual, as well as his safety and security, against the compulsion of government.” Ullmann v. United States, 350 U.S. 422, 449 , 76 S.Ct. 497, 512 , 100 L.Ed. 511 (1956) (dissenting opinion).
Thus here the witness Izzard chose to waive his right to silence in the privacy of the grand jury hearing. He chose to assert that right rather than recite the evidence of his guilt in open court. The different circumstances of the two proceedings make his decision entirely explicable in terms of those considerations of human dignity which the Fifth Amendment was designed in part to protect.
It is true that compelled self-accusation has not been absolutely barred by the Fifth Amendment. Congress has judged, and a divided Supreme Court has acquiesced in the judgment, that the necessities of public justice allow the compulsion of self-incriminating testimony for the proof of certain serious crimes when immunity from prosecution is granted in return. Ullmann v. United States, supra (6-2 decision); Brown v. Walker, 161 U.S. 591 , 16 S.Ct. 644 , 40 *809 L.Ed. 819 (1896) (5-4 decision). The requirement that immunity be granted at least gives some insurance that the witness’ Fifth Amendment interests will not be overridden lightly. Judge Leventhal’s opinion would allow those same interests to be overridden without legislative provision of the same protective quid pro quo. I cannot agree.
I respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9454909. Public record. Not legal advice.