Petitioners Brief — Brown v. United States

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“LIBRARY. - | | en ee US.

\pREME COURT. u. & :

18° 195¢

JAMES R. BROWNING. Clerk

ee -_

IN THE

Supreme Court nf the United States:

OCTOBER TERM, 1957 7

EMANUEL \BROWN,.

Petitioner, .

against

opened STATES OF ‘AMERICA, |

"Respondent.

ON. WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

3 APPEALS FOR THE SECOND CIRCUIT

PETITIONER’S BRIEF

Myron L. SHaprtro and

J. BERTRAM WEGMAN,

Counsel for Pétitioner,

60 Wall -Street,

peetea : New York 5, N. Y.

Myron L. SHapriro, : nat ‘

Of Counsel. Se

; PETITIONER’S Brier PR Mier loons aaa

Opinion Brtow pcsesieiecomnutoec dias

I URISDICTION _ . SEH .

Questions PRESENTED FOR REVIEW

CoNSTITUTIONAL Provisions, Srarures and Reavia-

TIONS INVOLVED ‘ :

STATEMENT OF THE CASE ...

AnguMent AS cabo ; eaiicaacees

Pornt I—Congress in §305(4), Motor Canis

. Act did not intend to make the immunity pro-

visions of $46, Interstate Commerce Act, |

applicable: to Grand Jury investigations of

offenses under the Motor Carriers Act. Con-

sequently Petitioner could not receive im-.

-- munity and was entitled to refuse to answer

the questions because of possible self-incrimi- ssh

nation ee : , paicblndadinccbseebatesedanchn

‘Port ¥I—Assuming that immunity. was con-

-ferred upon Petitioner by section 305(d), .

- Motor Carriers Act, this immunity was not

co-extensive with his constitutional privilege

against self-incrimination : cascades

aye sf PAGE

‘Porst III—The District Court proceedings |

deprived petitioner of his rights under Rule

-42(b) of Criminal Procedure and the consti-

tutional requirements of ‘Due Process and

the fundamental fairness: required in Federal

. criminal proceedings. Petitioner. was com-

-. pelled to testify against himself in a criminal

A Neg re, The fundamental safeguards dué

e defendant in a criminal cause were ‘not |

- gocorded Petitiomer .....-....-:..-..c<:-c:c-ccteecicsceseeeess- oan

A. Rights of a Recalcitrant Jury Witness 23

_ B. Correct Procedure. in Grand nid Con-

tempts aabiniiaaeannictatndannnstenss Spinalinecniannoneie 25

CG. Petitioner Could Not be Compelled to

—e *

. ~~ SSeS ee

D. The Secrecy of the Prsvindings debiaiw a ae

_Pornt. IV—The sentence was an abuse of dis- -

cretion padi I eriseniprecnsnecsceneene eliiisieawess: .

Concivsion | . Wo eee sea tronee 32

APPENDIX TO Barer _ aoe Seosee dices, , OO

; . Table of Cases ne

, Blaine v. “United States, 29 F. od 651 (C.A., 5) SN 18

~ Cammer v. U. 8., 350 U.S. 399... --ecconeeeeceeee =n SOOO

Carlson v. U.S., ‘209 F. 2d 209, 216 (C.A., 1) ........ 25, i 27

Conley-v. U. S., 59 F. 2d 929 a Ey coccssccennstebrneeoss 31

Cooke.v. United States, 267 U. S. 517 ........ Piiabuetes 25.

Counselman v. Hitchcock, 142 U. S. 547 poms :... 19, 21

Ex Parte Savin, 131 U.S. 267 .ccecscceccceeeeeneencepnees 255.29,

Pe tee - SOS EO ee Se eee ernie ame og be

PAB,

4 ill

PAGE

Gompers Vv. ‘Buck's Stove & Range Co. 221 U. S. :

SINC AIEEE, caivessibitadtanieniaeapaditeiceibionnmiestclalhrentivinespapnionegey 24, 30

Gompers “SAT Se 4 | RE eee - B-

Hale v. Henkel, 201 U.-S. 43, 66 (1906) eyrcreneseeeeseenees 17

Wav. 7. B., BOD. Bh: WO inn sincere 31

Matter of Doyle, 257 N. Y. 244, 268, 269 0.0000. 16

Matusow v. United States, 229 F. 2d 335 -0. 24

Michaelson v. U. 8., 266 U.S. 42, 66. ote cesceeceeceeeee 30

Moore v. U. S., 150 F. 2d 323 (C.A,, 10) pa-eeeeeeeeeerosen 32

Powell v. U. S., 226 F. 2d em

Re. Michael, S26 YT. 9. DQG iia ac cae csentine 23, 24, 30»

es ee | eee ean 23, 30

ite Oliver, 333 U.S. 257, 275 ...:......... aol tse: sbaiiotdhinned 27,28 . |

Sherwin v. United States,.268 U. S. 369 2....-.0se00---- 18.

U.S. v. Andolschek, 142 F. 24-508 ....... PUM Aaa ym OR

U.S. v. Courtney, 236 F. 2d 920 oun. pecceccceceeccceees ie.

U.S. v. Curcio, 234 F. 2d 470 reversed 354 U. S: 118 22, +

T. &..% Gordon, gg aR meres 2: Sa

U. 8. v. Lawn, 115 F. Supp. 674, 677. ......2..........-..---- BOL

IU. 8. v. Onassis, 125 F. Supp. 190. ..... lies <a

_ U. 8. v. Price, 96 Fed. 960 (D. Ky.) -...2..02.........-2.----+ - 20

_ UL 8. v. Scully, 225 F. 2d 113 (C.A., 2) ...........- cee. 5 a

U.S. v. Shreveport Grain & E. Co., 287 U. S. 1%, its

415 5 I ideas ee ccc tpi eincenniiaetindincesmaited 14

U. S. v..Trock, 232 F.2d 839 fT Ac PATE a _—

>: U. 8. v. United Mine Workers, 330 U. S, 258, 302 32

° U, 8. v. Weinberg, 65 F. 2d 394 . 32

* U. S. v. Zwillman, 108 F. 2d 802 . Ve a

Warring y. Huff, 422 F. 2d 641 (App..D.C.) 31.

‘ Wong Gim Ying v. U. 8., 231 F. 2d 776, 779, 780... 25,28

‘iv. |

Statutes

a . PAGE

at err Energy Act, Immunity Provision, Title 42, -

ig FEO) vcccccsceseoncniinipnntoneeptinvvocenyeamibartts necct 445 OO

China Trade Act, Title Eh Uac. 18.

Civi} Aeronautics Act, Title 48, US.C., Ch. 9,

_ . $644(1) cooshgesscecconennsnssstectentconnanssseseenennsanasteseesecnnnanssteeet 16, 45,

Code of Criminal Preceiiese ee 3 Co ete

az §401, Title 18, err Power of court pene rs 8, 27,38 -

. §3481, Title 18, U.S.C.F Competency of accused 31, 38 -

Commodity Exchange Act, Title 7, U.S.C., $15 ...... 17, 42 :

Defense Production Act of 1950, Title 50, U.S.C.,

App. §2155(a), (b) «.............- cihsdibiaasiiaiagaheinpiciamaiui 18, 46

Emergency Price Control Act, 56 Stat, 30 (1942),

RET RP ainen it | Chemeae OP Reon ene Hence Lo 18, 43

Export Controls Act, Title 50, App., U.S.C., $2026 18, 45

Federal Communications Act, 47 U. S. c. §409 (1)... 16, 50

Federal Deposit Insurance Cotporation Law, Title

Vac, ee... weit 18,44

. Federal Rules of Criminal Procedure

vi Rule 42. Criminal Contempt 7

(a) Summary Disposition sialaisiebiebibiaxal 2, 3, 8, 10, 26,

eS 28, 30, 37

(b). Disposition Upon Notice and Hearing... .3, 10,

22, 23, 26, 27, 28, 29, 30, 37 —

Federal Trade Commission Act, Immiinity Pro-

vision, Title 15, U.S.C., Ch. 2, Section - 17, 34

Immunity Act of 1954, Title 18, U.S.C., §3486(e) ...... 18, 43

Industrial Aleohol Act, 54 Stat. 363, §3119, Title

Tee ee Wes ot 16,45 .

Investment: Companies Act, Title 15, U.S.C., §80a- :

2 ROG | hele pep ules aoe MIE RnR ee -ononty iavisitene eae

Investment Advisers Act, Title 15, U.S.C., §80b-9(d) 16, 47

* Interstate Commerce Act, Title 49, U.S. C., §46.,....2, 5, 9, 13,

: : SN | 15, 17, 19, 21, 33

: : rane PAGE

Merchant Marine Act,’ 1936, Immunity. Provision,

Title 46,-U.S.C., Section 1124 (@) ..-...----ccscsecsececeees WSS: <

Motor Carriers Act, Immunity: Provision, — eee

U.S.C.,. Ch. 8, Section 305 S| ESAS eal 2, 6, 8, 9, 13, 14,

ferent, 15, 17,18, 19, 20, 22, 33

Motor’ Canrices: Act, Title 49, U.S.C., §322-......:....... 0, oo, +1

_Narcoties Control Act, Title 18, U.S.C. ° $1406 °......... 18, 49°

Natural Gas Act, Title 15, USC. TI en vee ee

National: Prohibition Act, 274 US.C.A. Suid ed: dy

SRP RARE ZIT NTS SARE RP OREs oee RS LC Ee EIR RRO EEO REN Bake sales

Perishable Commodities Act, Immunity Provision, |

2 DR: Fy RNs SOOTHE AON EE) en vrseccesesees 17, 36

Public Utility. sega Company Act, Title —

Sd rig EM Vc ohciias asccoe a a Sesbtancanic oenaodeckspetoaspioneuie tee 16, 48

y. Rent Control an Immunity Provisidh, Pitle 50 SN.

U.S.C., War App., $1896 ( (f)(1), (6) i) Bere = "18, 40

Second War Powers Act, Title 0, hon. USC, ,

SS OE Fie ¢ HE teemne ee eat P Se 16, 47

Securities Act of 1933, lamaunity Provision: Title

15, U.BL., Ch. 2a; Section Tiv te)... 16, 35

Securities Exchange Act, Title 15, U.S.C., §78u(d) 16, 49.

Shipping Act of 1916, Title 46, U S.C., §827 ae 16, 49

Social Security’ Act, Immunity Provision, Title >

US.C.,.-§405," (a), | | eS Reena ed Bese ie

Taft-Hartley Act, Immunity Provision, Title 29,

U. S.C., Section '161(3) ss SS A ES H,.3T~

War and Defense Contract Acts of 1951, ‘Title 00, : .

App., U.S.C., §1152(a) (4): ......-.--..- eae RPE A toe 16, 47

United ‘States Constitution: . - BE

Ammondmment Vi .n....n.ccpeeclceses ses RODE a in 42.

Armordmsemt (VE nario senna newness RSH EN atin 43

Pepnenidmant - VTE nn gprenierectite emery - 42

Ete e IN THE

Supreme Court of the Buited States

gts _ OCTOBER TERM, 1957.

No. 356 | | : a.

‘EmMaNvuEL Brown, <_

Petitioner,

againgt

UNITED SrarEs OF AMERICA,

Co etna

ON WRIT OF CERTIORABI TO THE U NITED STATES COURT OFS

APPEALS FOR THE SECOND CIRCUIT |

PETITIONER’S BRIEF

Cerliocaid dina ‘been granted to review petitioner's con-—

viction for criminal eontempt -in refusing to answer

certain questioris i in a grand jury inquiry. Petitioner was

sentenced to fifteen (15) months imprisonment. On appeal

the Court of Appeals fot the cepa Circuit affirmed.

‘Opinion Below

_° “The opinion of the Court of Appeals (R. 52) is sprinted as

at 247 F. 2d 332. The District Court’s opinion (R. 34)

is not oy printed.

Jurisdiction |

The jedaonit (R. 64) of the Court .below was ala

and entered on July 10,1957. Jurisdiction to review-such | .

fos

judgment by certiorari is’ conferred on. this Court hy i

§1254, Title 28, U.S.C. and. is invoked pursuant thereté

_ and Rule 37(b), Federal Rules of Criminal Procedure.

~ Questions Presented for Review |

1. Whether pursuant to §305(d), Motor Carriers Att

(49 U.S.C.) [infra, ps 32], a witness’in a grand jury

| tiers? alleged offenses: under $322 infra, p. 41]

of that Act obtains immunity from prosecution for any’

transaction or offense concerning :which he under compul-.

sion may there testify or produce evidence,

a. Whether Congress in enacting §305(d), supra,

_intended to make the immunity. provisions. of. $46,

Interstate Commerce Act: (Title. 49, U.S.C.) [infra,

p. 33], applicable to grand -jury investigations - |

under the Motor Carriers: Act.

b. Whether, assuming arguendo, that: some im-

‘munity was conferred upon petitioner: by’ §305(d),

supra, it is co-extensive’ with his privilege against

_ Self-incrimination and, therefore, constitutional]

sufficient to eliminate that privilege.

“2. Whether the procedure. which resulted in_ peti- 4

tioner’s conviction of criminal contempt, pursuant to sub-

division (a) of. Rule 42, Federal Rules of Criminal Pro-

cedure [infra, p. 37], for refusing in the presence of the |

Court. and the grand jury to answer certain questions | |

‘previously put to him beforé the grand jury, was valid‘and | |

‘proper. | ‘ |

ee Whether petitioner after the dimearton of. the

District Court to answer certain questions had .re-

. eee

appeared before the grand jury and refused. again is

to answer the questions, was entitled, under sub-

division (b) [infra, p. 37] of’ Rule 42, Federal

* Rules of Criminal Procedure, the requirements of ~

Due Process and the fundamental fairness requisite

- in: Federal criminal proceedings, to notice, reason-

able time for preparation and a statement of the.

criminal contempt charged. oe

b. Whether, /after petitioner returned to the |

grand jury pursuant .to the District Court’s order

and refused again to answer the questions directed --

to, be answered and was once more brought before

the Court, the Court.could, validly ignore Rule 42(b)

[infra, p. 37] Federal Rules of Criminal Pro-

veedure and refuse. to afford . petitioner . notice,

| specification: of charges, and reasonable time for

lated the requirement that a contempt judgment be.

- public. : !

preparation and conipel petitioner to take the stand.

and testify and, upon petitioner’s refusal to answer

and his statement that he would refuse again to |

answer, if returned to the grand jury, convict. peti- —

tioner of criminal contempt pursuant to Rule 42(a)

[infra, p. 37] as for a eontempt committed .in the

presence ‘of the Court... - 1 al

ce. Whether -the secrecy of the proceedings vio-

——

3. “Whether the sentenée of fifteen months imposed

upon petitioner constituted é¢ruel and unusual punishment. —

or, an abnse of the District Court’s discretion.

Whether in this. criminal contempt proceeding

'. the Court could impose a coercive sentence.

; Constitutional Provisions, Statutes, and

Regulations Involved °

. The gonstititional provisions, statutes and regulations

involved; are set forth in the. appendix to this brief.

} Their citations follow: United States Constitution,

Amendments V, VI,. VIIT [infra, p. 42]; Motor Carriers

Act, Pitle 49, -U.S.C., $$305(d) [infra, p. 33], 322 [infra,

pe 4); Interstate’ Commerce . Act, Title 49, U.S.C. $46

infra, p. 33]; Federal Rules of Criminal Procedure, Rules

me) 42(b) sce p. 37)... | ¥

“f°

Snaacen of the Cass

Petitioner is a principal of Youn Tempo, yh a New

Y York City dress manufacturer (R. 8). T. and R. Trucking

~ Company has transported dresses for Young Tempo, Ine.

and Acme Dress Company between New York and |

Midvale, New Jersey (R. 8,°9). The actual owner of |

thé trucker. (according to. she Government’s information) }

_is John. Dioguardi, eibeunh Theodore Rij is the nominal

_ proprietor (R. 9). |

~. Active in the Southern” District of New York are grand

juries conducting a. general racketeering investigation. and

an inquiry. itt thé Victor Riesel obstruction of justice

ease (R. 46, 47). Tho subjects of these investigations

_ are Dioguardi, Rij‘ (also known as Ray) and _ possibly

others (R. 47). The Government here and in the other

inv estigations sought to show petitioner’ s associations with

these persons (R. 47).

Prior,to this. matter petitioner pursuant to subpoena

appeared at least eleven times before two of these other

grand juries (R. 10, 26). Petitioner’s first appearance

- related to the Riesel obstruction of justice case and the —

% :

locationgof Rij (R. 26).- Petitioner’s subsequent appear-”

ances were before a jury investigating alleged garment

trucking. racketeering (R- 26). .

At the time hereof, petitioner was still subject to. the

earlier subpoenas (R. 26), his farther appearance there-

under having been adjourned. .

Before the ‘oth ler juries, petitioner ‘mainly claimed

his . privilege against self-incrimination, but, concededly,

his testimony there “went part way into the area” with

which the instant proceedings are concerned (R. 27, 28).

Before the other grand juries, petitioner, and. business

; associates were told by the same prosecutor as here that 35

petitioner was to be indicted for violation of the. Internal —

Révenue laws. (R. 28). Stee :

"In March 1957, petitioner’s counsel was told by ‘this

prosecutor that an investigation: under the Interstate

Commerce Act was about to be instituted, that petitioner

would be subpoenaed to appear before the Grand Jury,

that the immunity provision. contained in 446, ,Title

- 49, U.S.C. [infra, p. 33], would apply and that the Fifth

- Amendment plea could not be interposed (R. 9, 10).

‘ ‘Thereafter petitioner ‘appeared before the ‘April, 1957

grand jury pursuant to a subpoena requiring him to

- appear and “testify * * * in regard to an alleged

violation of Sections 309, 322, Title’ 49 United States

Code” (R. 17- 19). Petitioner’s counsel was present in the

‘anteroom, of the Grand Jury room. Petitioner was advised

that “the foreman * * * will * © * allow you to»

consult with your attorney if you feel you desire to do

so” (R. 17-19). 3 | |

Petitioner was asked (R. 19): “Mr, Brown, are you

associated with, Young Tempo, Incorporated?” . ae

' Petitionegjreceived permission to speak with his attor-

, ney (R. 19). After such consultation, petitioner returned

to the grand jury and the question was read to him

again. He refused to answer because of possible self-

incrimination (R. 19).

_ The prosecutor then advised (R. 19; 20) petitioner

“that this Grand Jury is conducting an investigation for

possible violations of the Interstate Commerce laws,

* * * and that under Title 49 United States Code,

* Section 305(d), the Congress * * * has provided that

any witness * * * compelled to give testimony as to

_any.-matter arising under the; Motor Carrier Section

* * * shall by virtue of his testimony be given immunity

from federal prosecution as. to any crime which might

arise out of the subject matter of his testimony” and that ee

he did “not have any privilege to plead the Fifth Amend-

‘ment as to the questions which are going | to be put to”

him before this Grand Jury. |

Petitioner conferred again with! counsel, returned to

the grand jury room and refused once-more to answer the

: question on the ground of possible self-incrimination

(R. 20, 21). Petitioner was then informed (R. 1) that,

if he did not answer this question, he could “be brought

before a Judge of this Court and directed to answer this

and.other questions”. Once more petitioner consulted with

counsel, the same question was again put to him and he

refused to answer on the ground of possible self-incrim- |

ination (R. 21; 22).

Thereafter five more questions were “eeked of petitioner

before the grand jury. Petitioner refused to answer all

on the ground of possible self-incrimination (R. 22, 23)..

The questions: which petitioner refused to answer are:

1. Mr. Brown, are you associated with Young Tempo,

Incorporated (R. 21)? 2. Mr. Brown, does Young Tempo,

Incorporated, use a trucking company known as the T &

R Cutting Company or as the T & R Trucking Company :

(R. 22)? 3. Mr. Brown, who do you known to be the

owner or owners or .the principal in interest or principals

. > in interest of the T & R Cutting or the T & R Trucking

Company (R: 22)? 4. Mr. Brown, are you associated

with the Acme Dress Coffipany, in Midvale, New Jersey

(R. 22).2%. 5. Mr. Brown, does the T .& R Trucking —

Company provide trucking services betw een. Young Tempo,

Incorporated, in New York City and the Acme Dress™ °

Company in Midvale, New, Jersey (R. 23)?. 6. Mr. Brown,

_do you know if the T & R Trucking Company or the T &

’R Cutting Company has 4pplied for or ebtained a permit:

from the Interstate Commerce Commission to operate as

a contract trucker between New York, New York, and

Midvale, New Jersey (R. 23)? :

_ After, petitioner’s refusal to answer these questions,

the grand jury, the prosecutor, petitioner and counsel

: proceeded to District Judge Levet’s courtroom.

At the Court’s request, the prosecutor outlined the

procedure requested by the Government to. be followed

_ (R. 6-8). The courtroom was, cleared (R. 6) and the

proceedings throughout were private. y

- The prosecutor stated that the grand jury requested the

Court’s aid and assistance in a direction to petitioner 0...

answer the questions (R. 6-8).

Outlining the procedure requested, the prosecutor slated

that at the termination~of that hearing “if the Court:

_ determines that the witness in fact. must answer the

questions, that the Court direct him to answer the ques-

tions’ and that “at that point it would be the Govern-

ment’s intention to have the Grand Jury and the witness

return to the grand jury room, at which point the same

questions would be put to the witness” (R. 7, 8).

Upon further refusal ‘by petitioner to answer on his.

return to the grand jury room, the prosecutor said (R. 8), —

‘etitioner would: be returned to the Court with a second

request that the same questions he put to him and, if he,

then refused to answer, “the Government would ask that

he be held summarily in contempt according to the pre-

cedure of Rule 42(a) * * *, and for a viplation of Section .

401, Subdivision 3 (18 U.S .C.) which oak punishable as,

contempt the disobedience of a lawful order of the Court.”

- The prosecutor also. stated (R..8, 9) : general ' nature

of the inquiry.to be “that contrary to the law this T&R

Trucking Company. neither applied for. nor received. a_

permit from the Interstate Commerce Commission to

operate as: a contract trucker between New Ssese New

York, and Midvale, New Jersey.” _ aie,

At this point petitioner’s counsel reminded (R. 9) the

Court that in his off-the-record discussion of procedure |

the prosecutor had said “that the Government’s position

was that this. was the only hearing” petitioner was

“entitled to”, and applied for°a reasonable adjournment

and “a notice from the Government of the specifications —

or charges for which we are having: this hearing so that

we ean prepare for this hearing and be able to properly.

represent our client’, which requests were denied. The

existence of issues. of fact was indicated to the. Court

by petitioner’s counsel (R. 10, 11). |

° After argument (R. 11- 17) on the applicability of. the

immunity sections of the Motor Carriers Act, §305(d)

[infra, p. 33], the Government called (R. 17) the grand

jury stenographer as a witness.. She read her untran-

scribed minutes, of the grand jury proceedings (R. 17-23).

When she finished, an adjournment was requested by

petitioner’s attorney, but was not granted (R. 24). |

Argument was then had on the issues raised by peti-

tioner’s appearance before other Grand Juries, and on

other issues involved and on the incriminatory nature of

the questions put to petitioner. (R., 25-34).

_ This part of the proceedings occurred on Friday, April

Sth, 1957. The Court directed the parties to return on

- Monday, April 8th, at 2:00 P.M. (R. 34).

On. April 8th, the Court (R. 34, 35) “* * * determined

that the Witness must testify as to the questions * * * |

propounded * * * that -* * * Sections 305(d), Title

49 and Section 46 of Title 49 adequately provide for im-

munity in the “instances involved * * * that the

immunity applies to a grand jury * * * that the im-

munity applies in the State Courts * * *” and that

the “immunity: exists even though no privilege.is claimed

* * * and under the Rules of Criminal Procedure * * *

the witness must answer * * *” ee

_ The Court also said (R. 36): “I do not think the fact

that this witness has testified before other grand juriés ©

affects this ‘situation * * * He is immune from prose-

cution for all matters on. which: he is questioned before

-this grand jury * * *”, |

The Court then directed the grand jury to retire (R.-

35, 36). Counsel for petitioner requested an adjournment

to consult with his client (R. 35). A postponement for

thirty minutes was granted (R. 35). aie .

Petitioner, pursuant to the Court’s direction, returned

to the grand jury rooni’and the six questions ordered.

to be answered were again put to him (R. 37-39).

Petitioner refused to answer on the ground of possible —

self-inerimination (R. 38, 39). The grand jury, petitioner

and all counsel then proceeded again to Judge Levet’s

courtroom = 36, 37).

At that time the prosecutor stated to the Judge that

‘the grand jury “again wishes to request the aid and

assistance of- the Court. with reference to” petitioner (R.

36). Discussion was then had again as to the nature of -

this proceeding (R. 36, 37). | |

. The prosecutor said: “At this point the grand jury is”

still merely requesting the assistance of the Court. What ’

the Government would request is that if it appears, * * *

that the witness is persisting in his refusal * ** the Court

itself, in the presence of the grand jury, will put the six

questions to the witness and ask him, first, whether he is

willing to answer them now, and, santas would he answer

them if he were sent back to the grand jury again. And

if the witness again refuses here and: now in the physical —

presence of the Court or persists.in his refusal to answer, ©

that the witness be held in summary contempt under Rule

42(a) [infra, p. 87] of the Federal Rules of Criminal

Procedure” (R. 36, 37). |

And the Court stated “That i is what I propose” (R. 31).

‘Petitioner’s .counsel excepted to this procedure and

- requested. complianée: with Rule 42(b) [infra, p. 37],

‘notice of the charges and specifications and an opportu-

nity for a full hearing (R. 37). The -publie was excluded.

This request. and objection were overruled (R. 37). The |

grand jury stenographer was then called ‘and read his

untranscribed minutes which disclosed petitioner’s refusal

before the jury to answer the quéstions set forth above

because of possible .self-inerimination (R. 37-39). |

The Court, over objection and’ exception, directed peti-

tioner to take the stand in the courtroom (R. 40).

' Petitioner’s counsel also. objected on thie ground that

t petitioner was being compelled in a criminal cause to be a

' witness against himself, which objection was overruled |

« 40). | |

The Court did not swear petitioner, but deemed him to

be under oath, since he had been sworn before the grand .

jury. The Court’s ‘theory was that this was “a continu-

ance of the Grand Jury proceeding before the Court”.* —:

’ Petitioner’s counsel took further exception and objection

to this proceeding (R. 40).

. The Court then put to petitioner. the same six questions.

Petitioner’ < counsel made specific objection to each ques-

tion. Petittoner refused to answer each question on the

_ ground of possible self-incrimination (R. 41, 42).

Phe Court, repeating each question directed the peti-

tioner to answer, which interrogation and directions were

done over the objection of petitioner’s counsel (R. 43,”44). ° .

To each question and direction petitioner maintained his

refusal to answer on ‘the ground of escomas self-incrimina--.

tion 6R, 43, 44).

At the Government’s request the “Court, over objection,

then asked petitioner “whether he would maintain his

refusal to answer, if he returned to the grand jury room”, .

to which petitioner answered in the affirmative (R. 44). |

Petitioner. was then asked, over. counsel’s objection,

_ whether lie believed that these answers would incriminate

him in any way and petitioner refused to answer (R. 44, _

45). See

.The Court than stated that by reason of petitioner's

“refusal {6 answer in the actual presence ofthis Court, I

ain forced to act upon-this matter”. Petitioner’s counsel

objected to the whole proceeding and again asked for

notice and specifications and an opportunity to be heard,

which objection and request were overruled (R. 45).

'The Court of Appeals ( R. 62) considered that it was “merely

a pea Tt ancillary to the grand jury ee and. not a

_, Criminal proceeding”.

—-_

The. Court then permitted counsel to argue as to why

‘an adjudication ° of contempt should not be made (R. 46,

47). . 3

_ Petitioner’s counsel. ond, inter alia, that the pur-

——ported_ immunity did not exist, that petitioner should have

a full hearing on the issues. of fact involved, herein, that

the whole. procedure was bad and objectionable on the

ground that, irrespective. of the question of immunity,

petitioner’s constitutional rights in a criminal cause were

seriously infringed by his being compelled to take the

stand and being sworn and being asked questions, that

in this proceeding, entirely separate and apart from the

grand jury proceedings, it was wrong to ask petitioner

whether he believed that- answering the. questions would |

incriminate him and that the failure to give petitioner

notice and an opporunity to defend was in violation of —

‘due process: and of pétitioner’s rights. under the Con-

stitutionand that the proceeding was being used by the

United States Attorney as a device or subterfuge or .

artifice to circumvent petitioner's constitutional rights

(R. 46, 47). : |

The Court nonetheless adjudicatéa petitioner in con--

tempt (R. 47).

Government counsel was ‘then heard wy the Court on

the question of sentence and in that regard he said, among

other things, the following (R. 47-49):

“For these reasons bes *, .the Government -

here-would ask for a substantial sentence, and that

is done not se much for any punitive effect Jas it

would be for the coercive effect. of the sentence. . |

Under the statute there is no maximum. penalty

upon the sentence that your Honor may impose:,

_ The only maximum is that imposed by the Consti- —

we ‘tion against cruel and; unusual punishment. i

I would further ask * -* * that * * * your

- Honor not include a purge clause. * * °*”:

43).

Following this request by the United States Attorney

- for a coercive sentence, the Court sentenced petitioner to

be confined for a period of one year and three months

(R. 49). es

. ARGUMENT

POINT I.

Congress in §305(d), Motor Carriers Act. did not

intend to make the immunity provisions of §46, Inter-

state Commerce Act, applicable to Grand Jury investi-

gations of offenses under the Motor Carriers Act.

Consequently Petitioner could not receive immunity .

-and was entitled to refuse to answer the questions

because of possible self-incrimination.

-- The subpoena served’ upon petitioner directed him to

appear before the April Grand Jury to testify in an

investigation of possible violations of §§309 and 322

fenfra, p. 41] of the Motor Carriers Act. . ‘

On his appearance before ‘the Grand. Jury and before

the Court, petitioner refuséd to’ answer certain concededly

incriminatory questions on the ground that “the answers

might tend to incriminate him, :

- Consequently we have here a valid. claim of - privilege, :

_exeept for the claimed applicability of. an immunity

provision. ?. .

The Motor Carriers Act does not have a separate

immunity provision. Congress in §305(d). [infra; p. 33]

incorporated | by reference | the immunity provision. con-

tained in $46 [infra, p. 33] of the Interstate Commerce

~ Act.’

- 14

To determine whether a witness may obtain immunity

before a specific body, it is necessary always to ascertain

whether the particular. immunity statute by its -terms

applies to that tribunal or officer—here a grand jury.’

The statute’ here involved ~ $305 (d) linfra, p. 33],

Motor Cariers Act, first provides for the Commission’s

power to administer ‘the Act’ and to require by subpoena

the attendance and testimony of witnesses and the pro-

~ duction of books and documents and to take testimony

by deposition. |

This grant “of power contained’ in’ the first clause of

_ 9805(d) is then modified by the language “relating to any |

matter under, investigation, as the commission has in a

matter arising under Chapter ; of this title (Title 49,

U.S.C.].”

Following this modifying phrase is a semi-colon and a

‘second clause is then set forth which reads “and any

person. subpenaed or testifying: in connection with any’

matter under investigation under this chapter shall have —

the same * * * immunities * * * as though such.

matier arose under Chapter 1 of this title, unless other-

wise provided ‘in this chapter.” 3

_ In statutory construction, this Court has held, tactile

‘tion marks are no part of an act’’ and “to determine the

intent of the law, the court * * * will disregard the

me aoepougl (U. S..v. Shreveport Grain & E. Co., 287 .

Boe, 1, 83, 83). Consequently, the whole of §305(d)

[infra, p. 33] must be read together.

1. See Blaine v. United States, 29 F. 2d 651 (CA. 5); Matter ~

of Doyle, 257 N.Y. 244; State.v. Nolan, 231 Minn., 522, 44 NW.

2d 66; State v.,Gensmer, 235 Minn. 72, 51 N.W. 2d 680; Koonck v.

‘Cooney, 244 Iowa 153, 55 N.W. 2d 268; Ex parte Andrews, 51 Tex.

Cr. R. 79, 100 S.W. 376. See also Hebebrand v. State, 429 Ohio St.

574, 196 N.E. 412.

‘

15 |

- When read together the whole sentence “of §305(d)

-shows that Congress was concerned with and describing

the powers of. tlie Commission to obtain testimony and =

evidence for its enforeement and administration of .the

Motor Carriers Act, and that it intended to give as broad

as possible scope to the Commission’s investigatory

powers, but no more. Foe

In the first clause of §305(d) the Commission’s S power

to take testimony and to compel the production of papers .

relates “to anv matter. under investigation”. Then in the

second clause. the grant of immunity is limited ‘to, “any

_ person subpoenaed or testifying in connection with any |

matter under ‘investigation ‘under this chapter.” - Neces-

sarily the re-use of the words. “in connection with: any

matter under investigation under this chapter” discloses

an intent by.Congress to relate back to the prior use of.

the. words “any matter under investigation” in the first

clause of §305(d) and, therefore, to limit the immunity

to the Commission’s investigations and not to extend the

immunity to: investigations | by grand jury or other bodies.

It is a necessary implication in the second clause of

§305(d) after the ‘phrase_ “any matter under. investi-

gation” that the words “by the Commission” be inserted.

Congress having used these words before in the* same |

sentenc® and having limited those provisions to. the Com-

mission, obviously, as a matter of draftsmanship, did not

deem it necessary to -repeat. the words “by the. Com-

mission”; as ordinary rules of statutory construction

would sncesiabiielte require their implication. |

The language of §305(d) in effect displaced ed.

_ exeised from §46 linfra;, p. 33] of the Interstate Com-

merce Act as made applicable to the Motor Carriers

Aet-the words “testifying * * * in any cause or proéeed-

LU a

a 9

ing criminal or otherwise based upon, or growing out

- of any alleged violation of Chapter 1”. Congress thereby

eliminated the grand jury: as a body before whom immu-

nity could be obtained in an investigation waner the Motor —

‘ Carriers Act.

If Congress had intended the. immunity to extend to

grand jury proceedings and proceedings other than the

Commission . it certainly knew “the phraseology necessary

to reach this .result” Matter of Doyle, 257 N.Y. 244, 268,

269).

court proceedings are “in any proceeding” or “in any

suit or proceeding” or “in any cause or proceeding, crim-

inal or otherwise” or “in any action or proceeding” or -

“in any cause of proceeding instituted by..the Commission”

or “in any proceeding, suit or prosecution”. See Federal

Communications Act, Title 47, U.S.C., §409(1) [tnfra,-p

50]; Civil: Aeronautics Act, Title 49, U.S.C., S644(1)-

[infra, p. 453] Second War Powers .Act (1946), Title

50 U.S.C. App. §648a [infra, p. 47]; War and

‘Defense Contracts Acts (1946), Title 50 U.S.C., App.,

§1152(a)(4)- [infra; p. 47}; Shipping Act of 1916, Title

46,:U.S.C.; $827 [infra, p. 49]; Industrial’ Alcohol Act,

Title 26, U.S.C. (1946 ed.), §3119, now $9315, Title 26,

U.S.C. [infra, p. 45]; Securities Act: of 1933, Title 15,

US.C., §77v(e) [infra, p: 25]; Securities Exchange Act,

" Title 15, U.S.C., §78u(d) [infra,-p. 49]; Publie Utility

Holding Company Act, Title 15, U.S.C., §79r(e) [infra,

p. 48]; Natural (Gas Act, Title 15, U.S.C., §717m(h)

_finfra, p. 50] ; Investment Advisers Act, Title. 15,-U.S.C.,

§80b-9(d) [infra, p. 47];. Investment. Companies Act, *

Title 15, U.S.C.,° §80a-41(d) [infra, p. 48].

The words of art necessary and most. often used for |

the purpose of. extending the immunity to grand jury or -

eres Ce SE

Actually, ‘the inclusion of the words “before the Com. .

_ mission” is not necessary to limit immunity to testimony |

befare the Commission, ‘but the use of the phrascology

3 : s

“in any cause or proéeeding” or other similar language is —

‘required to extend the immunity power to grand jufies or.

court proceedings; these words or words of similar import

having been held by this Court in Hale v. Henkel, 201

UC S. 48, 66 (1906), to extend immunity to grand jury

and court proceedir

use in §305(d), Motor Gussie Act, of the

language “testifying in connection with any matter under

‘investigation under this chapter” operated to delete the

language “any cause or proceeding, criminal: or other-

wise”\from $46 as incorporated into §305(d) and pre-

vented the immunity provisjons from extending to grand

jury. proceedings. °

' The. enactment by Congress of an immunity provision.

limited to proceedings by a Commission and insufficient

to extend to Grand Jury . investigations is not ‘novel. »

- Federal ‘Trade Commission Act, Title 15, ULS.C.A,,

Ch. 2, $49 Linfra) p. 34]; Taft-Hartley Act, Title 29,

US.C.,, $161 (3) [infra, p. 36]; Merchant Marine ‘Act,

1936, Title 46, U.S.C). §1124(c) [infi'a, p. 35]; Perish-

able Commodities ‘Act Title 7, U.S.C., §499m(f) [infra,

p. 36]; China ° Trade Axt, Title 15; U.S.C., $155(a),

(ec) [infra, p. 38]; Atomic Energy Act, Title 42, U.S.C.,

§2201(¢) [infra, p. 39]; and the Social Security Act, Title

42, U.S.C., §405(d), (f) [infra, p. 39). ren

It should be noted that §305(d), Motor Carriers Act,

is not alone in incorporating by \reference §46 of the

Interstate Commerce. Act and not extending the immu-

| ___nity_power_beyond_the_particular_adiministrative_orficer

or board. involved. See’ Commodit. y eer Act,

Title 7, U.S.C. (1946 ed.), $15 [infra, p. 42]; Emergency

Price Control Act, 56 Stat. 30 (1942), $202 -lanfra, p. 43];

and the Rent Control Act, Title 50, App., U.S.C., §1896

(f) (1),.(3), (6) [infra, p. 40]. See also Export Controls

Act, Title 50, U.S.C., App., $2026(a), (b) [infra, p.45]2 |

Illustrative of the converse of the situation confront-

ing the petitioner here is Blaine v. United States, 29

F. 2d 651 (C.A,, 5). The National Prohibition Act

provided in §47,:27 U.S.C.A. (1927 ed.) that “no per- |

son shall be excused, on the ground that it may tend to

incriminate him * * * from * * * testifying * * * in obedi-

ence to a subpoena of any court in any suit or proceedings |

based upon or growing out. of any alleged violation of

‘this chapter.” |

In the Blaine case, supra, a defendant claimed immunity ~

under this: provision of the National Prohibition Act, on

the ground that he gave evidence at a revocation hearing

conducted by: the Prohibition Administrator. The Court

‘of Appeals held that lie had not brought himself. within

the terms laid down by the statute “for the reason that

* he did not testify in obedience .to the subpoena of. any:

-court”. Sherwin v. United States, 268 U. S. 369. _

Accordingly, since petitioner was before a Grand Jury,

$305(d) did not and could not confer any immunity.

upon him and he properly invoked his privilege against :

self-incrimination, as he, concededly, had the right to do.

in the absence of any immunity provision.

2. In the Narcotics Control Act, Title 18, U.S.C., §1406 [infra,

p. 49], the Jmmunity Act of 1954, Title 18, U.S.C., §3486(c) [infra,

. p. 43] and the Defense Production Act of 1950, Title.'50, U.S.C.,

App.. §2155¢a), (b) [infra, p. 46], Congress specifically mentioned

the grand jury as a body before which immunity may be obtained.

In the Federal. Deposit Insurance Corporation Law, Title, 12 U.S.C., .

$t820(c), (da) finfra, p. 44}, while the Board of~ Directors: may

apply to a judge or clerk of any United States Court fora subpoena,

the immiunity power extends only toa hearing, examination or inves-

tigation by the ——:

And the direction of the District Court that petitioner

answer based upon its finding, of immunity, was not a

lawful order and petitioner’s refusal to comply with the

Court’s direetion could not: constitute contempt.

: ‘POINT if

Assuming that immunity was ciated: upon Peti-

' tioner by §305(d), Motor Carriers Act, this. immunity

was not co-extensive with his constitutional privilege

against self-incrimination.

Even if the Conrts below were assumed to be correct -

in holding that §305(d), Motor Carriers Act [infra, p. 33]

incorporated $46, Interstaté Commerce Act (infra, p. 33]

in toto, the question necessarily arises Whether theimmu- -

nity attempted to be provided is constitutionally sufficient,

that is, is it co-extensive with petitioner’s constitutfonal

privilege against self-incrimination. Counselman v. Hitch- —

cock, 142 U. 8. 547. 7

§305 (d) commences “so far as may be necessary for

the purposes of this chapter”. This language limits the

' proffered immunity and ‘makes it futile and worthless.

If, for example, the Government before the grand jury ©

went beyond the concededly incriminatory questions put

to petitioner (which we assume arguendo to be relevant

to an investigation under the Motor Carriers Act) and

inquired. as to matters outside the scope ‘of such an

investigation, such’ as possible Internal Revenue. viola-

tions and other offenses, would it not be possible for the

Government then to contend that all that was done before

. ne

the .grand jury which was necessary for the purposes of

the “Motor Carriers Act were the. questions now asked

of the petitioner and that all. the other inquiries were not

_” necessary and that consequently the immunity did not

om. *

apply? :

“EE the Government. were correct in such an argument,

‘then ‘petitioner, deprived of his priv ilege by this immunity

‘provision, would be liable to prosecution based on his own

_ testimony, if ‘the, same were incriminatory. |

Petitioner would” also, if this possible Government ‘argu- »

“ment as to the limitation*en, the immunity provision were

‘upheld, be in this position—havi ing been asked concededly -

. incriminatory questions at the very. outset of the investi-

gation and having, let us suppose, failed, in limine (coni-

‘trary to his action) te claim his privilege—he would be

deemed to have waived the privilege and would then be

- liable in contempt for failing. to answer in’ the other fields

of investigation or to indictment on ‘the crimes, if any,,

ne dise losed by -his testimony other than on matters under’

‘the Motor Carriers Act. Cf., U. 8.°¥, side 96 Fed. 960

( D. Ky.).

‘Even if petitioner in answering the quistions involved

here touched. incidentally upon other crimes, it would be

open to the Government to argue that such testimony was

not recessary for.the purposes of the Motor Carriers ‘Act.

Consequently, it is submitted, the immunity “purported

to be granted by §305(d) is not. .CQ- extensive with’ the

privilege. 3 :

The purported ‘inimunity - -is not co-extensive with his

priv ilege against self- incrimination for the further reason

that petitioner has been before. two other grand juries in

the Southern District of New York (R 26, 27). There he.

was told by the prosecutor that he is a prospective defend-:

ant (R. 28). Petitioner continues under subpoena to

appear before the grand juries. 7 |

In this situation the Government.in its investigation _ of

possible violations of the Motor Carriers Act may develop

clues and leads which will furnish it with evidence for

- use before the other grand juries to incriminate petitioner _

and cause his indictment and, prosecution.

Corisequently, under | §305(d) despite the language of,

§46; Title 49, U.S.C., petitioner’s situation is marked]

“similar to that of the witness in Counselman v. Hitchcock,

supra, nee this Court said at page 9564:

“Tt remains to eile whether $860 of the

Revised Statutes removes the protection of the con-

stitutional privilegé of Counselman. * * * 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 testi-

mony 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. . \

pes “The constitutional: provision distinctly declares

that a person shall not ‘be compelled in any crimi-

nal case to be a witness against himself;’ and the *

- protection of §860 i is not co-extensive with the con-

stitutional. prenaie::

Here, moreover; petitioner is under direct notice from

the prosecutor that he is a prospective defendant in other

grand jury proceedings.- Yet he is being compelled to-

testify without the protection of his privilege against self- .

Ate

“ - \ ”

incrimination. He faces real’ jeopardy and therefore the

' purported immunity is not co-extensive with the privilege.*

‘Since the proffered immunity wnder .§305(d), Motor

Carriers Act, is not co-extensive witl the privilege against

- self-ineriinination, petitionér had ‘a valid right to claim

the*privilegé and could -not be held in contempt for doing

SO.

POINT Ill

The District Court proceedings deprived Petitioner

of his rights under Rule 42(b) of Criminal Procedure

_and the constitutional requirements of Due Process

and the fundamental -fairness required in Federal

criminal proceedings. Petitioner was compelled to

testify against himself in a criminal proceeding. The

fundamental safeguards due the defendant in a crim-

inal cause were not accorded Petitioner. ete

This case presents for review the validity of the pro-

ceedings in the Second Cireuit for the handling of recalei-.

trant grand jury witnesses before grand,. juries. Cf.,

U.S. v. Curcio, 234 F. 2d 470, reversed 354 U. S. 118.

The procedure followed here by. the District Court and .

approved by the Court of Appeals is, it is. respectfully

3.. Nor was petitioner permitted the opportunity to obtain the

~ minutes of his other grand jury appearances to show the real danger *

‘and the. substantial -relationship. +» Nor did thé District Court examine

these minutes. Cf., Youngdahl, J., in U. S. v. Onassis, 125 F. Supp.

190, The failure to do either deprived petitioner of his opportunity to

defend and vitiated the proceedings... U. S. v. Andolschek, 142 F. 2d

503; U. S. v. Zwillman, 108 F. 2d 802.

sutanitted, violative of Due Process we the fundamenta!

rights of defendants in criminal cases.‘

_. Moreover, this procedure followed in the Second Circuit

has the effect-of nullifying subdivision (b) of Rule 42 of

the Rules of Criminal Procedure insofar as applicable fo

recalcitrant grand jury witnesses.

A. Rights-Of A Recalcitrant Grand Jury Witness.

The rights of a witness claimed to be recalcitrant before

a grand jury have been well established. a

Rule 42(b) of the Rules of Criminal Procedure [infra,

p. 37]. requires that criminal. contempts shall be prose-

cuted on notice, stating the place and time of hearing and _

the essential facts ‘constituting the criminal contempt -

‘charge and allowing a reasonable time for the preparation

of the defense.

Rule 42(b): is, of course, elite the distieatinn to criminal

‘eontempts of the requirements of due process contained

in the Fifth Amendment to the Constitution and the fun-

damental fairness required to be a ———, attribute

of Federal criminal procedure. \

- But the rights of a party to a criminal. contempt pro-

ceeding go beyond mere notice, opportunity to prepare

and hearing. The safeguards surrounding criminal prose-.

-cutions must be afforded to’ the party.5 Cammer ev.

bec 350 U.S. 399, 403; Re Michael, 326 U.S. 224;. Nye

4. The procedure here followed is in direct conflict with the -

holding of the First Circuit Court of Appeals in Carlson v. U.S., 209

F. 2d 209, and of the Court of Appeals for the District of Columbia

in W ong. Gim Ying v. U.S., 231 F.2d 776, 779, 780 [see also Powell

Vv. U.S., 226 F. 2d 269 (App. D.C.) ] and in conflict with the decision

of this Court in Ex Parte Savin, 131 U.S. 267, 277. .

-_ §. “Since a charge of criminal contempt. is essentially an accusa-

tion of crime, all the constitutional saféguards available to an accused

in a criminal trial should be extended to prosecutions for such con-’.

e Rpt.” Frankfurter and Greene, The Labor Injunction, 226.

¥. U&., 313 U.S: 38. ‘Otherwise “too great inroads on the

procedural safeguards of the Bill of Rights” would be >

permitted. Re Michael, supra, 227.

“As pointed out in Gompers v. Buck's Stove dé Range

Co., 221 U.S. 418, 444:

“ee * *. it is certain that in proceedings for

criminal contempt the defendant is presumed to be

innocent, he must be proved to be guilty beyond a

reasonable doubt and cannot be compelled to tory |

against himself.” t

Measured against these basic requirements of a pro;

ceeding in criminal contempt, namely notice, opportunity

to prepare, hearing, presumption of innocence, proof of “

guilt beyond a ‘reasonable doubt and freedom from com-

pulsion to testify, the proceedings in this ease and in

other similar cases in the Second Circuit fall far short

_ and obviously constitute merély a putatively clever device —

to circumvent these principles-and to deprive the witness

of hiscrights. -Cf. Matusow v. United States, . 229° F.

24.3 (CA. 5). “

_The . procedure here and in other such proceedings in

the Second Circuit are so contrived that the commission

of the alleged’ contempt and the adjudication. is one

interrelated action. 3

‘The sudden and almost miraculous transmutation of a

proceeding (described not as a hearing. but. merely an

attempt to obtain the assistance of the Court) into a

criminal contempt done in the presence of the Court -

(although actually done, if at all, in. the grand’ jury room) |.

which is the hallmark of this type of procedings in the

Second Circuit enables the Government to debase the

fundamental rights of parties;which adhere to any criminal

proceeding including one for criminal contempt.

-The claim that the proceeding is merely an attempt to

secure the assistance of the Court in obtaining the testi-.

* 25

mony hog petitioner is self-evidently spurious. Is it:

not clear that, from the time that the petitioner first

appeared before the Court at the direction of the grand

jury until the time when the Court finally directed him,

question by question, to answer, the petitioner was in

jeopardy and faced, in view of the announced purpose of |

these proceedings in the Second Circuit and ‘their char-

acteristic endings, a finding: of criminal contempt pur-

portedly committed in’ the presence of the Court -and,

hence, he was put on the defense of his claimed right not

‘ to auswer these questions and of his conduct?

It is no answer to say that petitioner had a hearing,

in that the Court listened to his counsel’s arguments, -

‘when he was not permitted to. make any defense on the

issues of fact existent in the matter and his presumption —

of innocence was abrogated ‘and he was compelled to take ~

the stand. | a i

Besides it was, if a hearing, -held before the offense,

eS: any, was committéd—ceertainly a novel doctrine. |

B.- Correct Procedure In Grand Jury’ Contempts.

The correct procedure in the situation presented here

is well set forth in Carlson v. U. S., 209 F. 209; 216 ~

(C. A., 1) and ‘Wong Gim Ying v. U. S., 231 F. 2d 776,

779, 780. These cases rest. firmly upon the foundation

of Ex Parte Savin, 131 U. S. 267 and Cooke v. United

States, 267 U. S. 517. a ee ae =

- In the Carlson case the Court described: the proper

procedure, as follows: If the witness is recalcitrant on

- the ground of his claim of possible self-incrimination, hé

is to be brought before the Court which is to rule on the

_ availability of the. claim of privilege; if the privilege is

overruled by the Court, it “would then normally instruct -

the witness to go back to the.grand jury and answer the

question. If the witness then and there, in the face of the

| 26

Court, declined to do so, this is’ ‘@inobedionse to a Jawful ;

order of the Court * ee, ; and since this disobedience occurs ©

in the ‘actual presence’ ‘of the Judge. it-may be punished

summarily under Rule 42(a). eee) |

Hence, according ‘to the ‘Carlson case, if at this Solit

the witness refuses to return to the grand jury room and ~ ©

answer the questions, it is his- refusal to return, which

is a contempt committed in the’ presence of the Court and ©

punishable summarily. is nS partes

But, if the witness returns to the grand jury room the

First Cireuit said in Carlson at page 216: :

re). ee there again refuses: to’ answer the '

. question which the court directed him to answer,

this is still, disobedience of a lawful ‘order of the’

court * * *. But because such disobedience did not

take place in the actual presence of thé court, and

thus could be made known to the court only By the:

taking of evidence, the court’ would have -to conduct

the proceeding in criminal contempt in accordance

with Rule 42(b). se hag a / .

> -

It is at this point that Second Cireuit proceedings -

branch off from the proceedings outlined, in the Carlson |

case. as proper and proceed post-haste to the i Aides

of the witness’ fundamenta// rights. |

In the Carison ease, it w as made clear that, at this point,

ifthe witness still clainied oe privilege, it was not a

criminal contempt proceeding and the “worst-. that could

happen, if the ruling is against him (the witness), is: that

whe would be given a sécond chance to go before the grand

jury and answer the Auestions. 8 ‘(Cf ., Pow ell v. U. S., 226

F.2d 269. 4 :

If, on the other hand, he is bathe diasgod with miscon-

.. duct in the jury room, constituting misbehavior in. the

presence of the Court, the Court in Carlson said that “this

charge must be prosecuted on notice, and under Rule

42(b) the.notice ‘shall state the essential facts constituting

the criminal contempt charged and describe it as such’”.

Then specifically directing itself to a situation exactly

opposite to that presented by. this- “ease, the Court said at

page 216: '

“If the charge’ of criminal sunteaiot j is that the

witness declined:to answer the questions ‘upon the

pretended ground that the answers would tend to_

incriminate him, this ‘¢laim of. privilege being ad--

vanced’ in bad faith, then (assuming that such con-

- duct might be deemed misbehavior in. the presence

of the court within ‘the meaning of\ 18° U.S.C.

*§$401(1) the required notice under. Rule 42(b) would

have to describe the alleged misbehaviors in order

that the witness, ‘in preparing his defense to the —

- good faith in claiming thie, privilege.”

tt is. respectfully submitted that this _procedure cat 3

lined ‘in ‘the Carlson case is obligatory in a proceeding

Such as presented by this case and becatse not followed

the proceedings here are vitiated. . |

Especially applicable here is -the. language of this Court ie

in Re Oliver, 333 U. S. 257, 275 Ba ae 4

“Except for a: narrowly ae category of con-

tempts: due pyocess of law as explained in. the

Céoke ease [357 U. .S.. 517} requires that one

charged’ with contempt of. court ‘be advised of the

charges against ‘him, have a reasonable opportunity

to meet them by way of defense or explanation,

have. the right to be represented by counsel, and

have a chance to testify and call other witnesses

in his behalf, either by way. of defense or explana/

_. tion. The narrow exception to- these due process

s agg action silky: includes only charges of misconduft,

in open cofrt, in the presence of the judge, w ch

_ disturbs the court’s business, where all of the essen-

tial elements of the misconduct are under the/ eye

. of the court, are. actually observed by the -court,

‘and. where immediate punishment is essential to .

prevent ‘demoralization of the court’s aut many

sab the public”.

fee ¢

And in the Oliver case this Court said that “the right

to be heard in open court before one is condemned is too

valuable to be whittled away under the: guise of ‘demoral--

ization of the Court’s authority’.” 333 U. S.. 257, 278.

Because of the existence of Rule 42(b) it is quite clear

that Rule 42(a) can only apply to acts actually done in

‘the presence of the Court which tend to demoralize the

Court’s authority before the public. Since; however, the

refusal of the witness to testify before a grand jury occurs

in its room, what reason can there be to invoke Rule

- 42(a) in the manner followed here other than to cirewn-.

vent Rule 42(b) and to do indirectly what cannot ‘be done |

directly? Wong Gim Ying v. U. S., supra.

' Thus a strange procedure has been established in which

e witness is compelled to commit the allegedly wrongful

act again in.the presence of the Court so > that his rights

and privileges can be avoided. — i

_ The conflict between the decision here and those of other

Courts .of Appeal and with decisions of this Court is.

clear. Moreover there has been such a departure here -

o from the usual course of judicial proceedings, as to call

- for the exercise of. this Court’s power of supervision.

CG Petitioner ‘Could Not Be Compelled To —_

: ‘The Stand. .

The Court of Appeals held that the District Court had

, the right to compel petitioner to take the stand and to

- answer questions. It specifically held that the proceed-

ing was not a criminal proceeding but merely one which

was “ancillary to the grand jury investigation”.

The Court of Appeals also held that to prevent the

District Court “from inquiring of the witness whether he

is wiJling to answer questions, would.frustrate the proper |

operations of the grand jury * * *” and that the “Court

is merely being advised as-to what had already happened

before the’ grand jury”. This latter holding of the Court

Po oe

of Appeals is directly contrary to ‘the holding of this Court

in Ex Parte Savin, 131 U. 8. 267, 277, where Mr. Justice’

Harlan said: ,

“It is true that the mode proceeding for con-

tempt is not the same in evéry case of such mis-

behavior. Where the contempt is committed directly .

under. the eye or within the view of the court,: it

may proceed * upon its own knowledge of the facts,

and punish the offender, without further proof, and’ -

without issue or trial in‘any form’ * * *; whereas,

in. cases of misbehavior of ‘which the Judge cannot

have such personal knowledge, and is informed

- thereof only by the confession of the party, or by

the testimony under oath of others, the _ proper

practice is, by rule or other- process, to require the

offender to = and show cause why he should

not be puhished.” rae - |

Here the District Court knew of the scale only

through the confession of the petitioner obtained ‘in viola-

tion of his fundamental rights in a criminal case*® not to

_ take the stand and testify and through the testimony of

others; namely, the Grand Jury stenographer. Under

Ex Parte Savin, supra, and Rule 42(b) of the Rules of .

Criminal Procedure, the practice followed was s consequently

invalid and improper. ;

With ‘respect to the first ground stated by the Court

of Appeals for the rejection of petitioner’s contention that

he should not have been compelled to take the stand before

the District Court, namely, that the proceeding was not

a criminal proceeding and merely ancillary to the grand

jury investigation, the fact is that from the moment peti-

‘tioner-was returned to the District Court after having

refused for the second time to answer the “questions put

~6. Even though criminal contempts are held by this Court not to

. ‘be crimes within the Constitutional guaranty of trial by jury (Green

v. United States, 2 L. ed. 2d 672), a criminal contempt. proceeding,

must be a criminal case. See Holmes, J. in Gompers v. United States,

233 U.S. 604, 610, 61.

: to him: before the grand jury, he Was in : jeopardy of his. ie

liberty and the proceeding was, therefore, criminal in

. Mature. ‘Whether ‘ancillary or plenary, or merely. as the

_ District Court thought, an extension of the grand jury.

proceeding, jeopardy for the petitioner . existed and the -

proceeding was criminal in nature.’

This Court has held that in proceedings which resalt 3 in,

a judgment of criminal contempt, the defendant is: entitled

to the rights accorded to the defendant in criminal cases.

Cammer v. U. S., 350 U. S. 399, 403; Re Michael, 326 U. S.

224; Nye v. U. S., 313 U. S. 33; Michaelson v. U. S., 266 .

U.S. 42,: 66; Gir y. Buck's Stove & Range Co., 221

U.S. 418, “a... :

And, as pointed out in UV. s. v. Lawn, 115 F. Supp. |

674; 677, it is in a criminal case “a clear. violation of

a defendant’s right against self-incrimination under the

Fifth Amendment of ‘the Constitution to compel him

to take the. stand, testify and. produce his records, relat-

ing to the matter with: whieh he is charged * * * it

would invalidate the trial. * * * Title 18 U.S. C. A.,,

§3481 makes a defendant a competent witness at: his own

“ request. It is thus improper to call him as a witness with-

out a- request on his part”. {Emphasis in original]

Gompers v. Buck’s Stove € Range Co., 221 U. S. 418, 444.

- See U. S. v. Scully, 225 F. 2d 113 (C. A. 2).

Thus this casé presents basic and important questions |

of constitutional law affecting criminal contempt proceed. .

ings and requiring the vindication and re-establishment of

Rule 42(b). "Tt is clear: that here not even the minimal

- procedural requirements of Rule 42(b) were observed and .

Rule 42(a) was misapplied and abused. |

D. The Secrecy Of The Proceedings.

A vital defect in the proceedings in the District Court

was the surrounding secrecy.

7. See footnote 6 supra.

‘While the record does not show that the courtroom was _

cleared by the Court 6n April 8,.1957 (the day conviction. —

was had) that it was.cannot factually be disputed and the

Court of Appeals assumed such fact (R. 62). And the

prosecutor on April 5, 1957 said to the Court. that it is

the procedure to clear. the courtroom (R. 6).

In Re Oliver, 333 U. S. 257, this Court held that a.

contempt proceeding and sentence must be -publiec. :

The Court of Appeals (R. 62) rejected this contention

on the ground it had not been raised in the District Court.

The right ‘to a “publie trial being so fundamental, the

infringement thereof cannot, it is respectfully submitted,

be overlooked on appeal or in this Court, because of |

_counsel’s failure’ to raise it in the trial court. ASST Ue

POINT IV

The sentence was an abuse of discretion and

improper. — :

In this case petitioner received a sentence of one year _

and three months. The Court of Appeals held that the

sentence did not violate the Eighth Amendment to the

Constitution, that it was not an abuse of discretion and

that the Court could impose a coercive sentence in a

criminal contempt proceeding without a purge clause. 7

The Court of’ Appeals here held the sentence proper

in view of the sentences in Warring v. Huff, 122 F. 2d /

641 (App. D. C.) [two consecutive sentences of thirteen

months] ; Conley v. U. S., 59 F. 2d 929 (C. A., 8) [two

years]; and Hill v. U. S., 300 U. S. 105 [eoneurrent sén-

tences of a year and a day and two years]. :

- On the other hand the Court of Appeals ignored aiiah

lesser sentences imposed by District Courts in its circuit

upon recalcitrant grand jury witnesses. In U. S. v. Gordun,

236 F. 2d 916, the sentence-was six months; in JU. S.. ve

[™

Courtney, 236 F. 2d 921—three months; in U. 8. v. Trock,

- 232 F. 2d 839—four months; in U. S. v. Curcio, 234 F. 2d-

470—six months; and } in U.S. v. oe 65 F. 2d 394—

. sixty days. |

Both courts below omitted to consider as an ‘ean in

- determining the sentence the penalty attached to the sub-

ys stantive criminal. offense. ‘involved. Here, under Section

32 ‘of the Interstate Commerce Act, the only punishment -

which could be imposed upon petitioner is a fine. This _

failure to consider the quantum of the penalty attached . -

' to the substantive criminal offenses is in cet wi

Moore v. U: S., 150 F. 2d 323 (C. ‘A. 10). :

‘The United: States Attorney did not request a specific —

sentence but insisted’ upon a strong coercive sentence, as

he characterized it, and this sentence was the result.

This Court has held that the sentence in a criminal -

contempt proceeding must: be punitive and not coercive.

U. S. v..United Mine Workers, 330 U. S. 258, 302. On the -

other. hand, if the sentence could be coercive, a purge

clause necessarily had to be included which was not done

here. /

The sentence was, therefore, an abuse of discretion and

improper. -

CONCLUSION .

The judgment of conviction of petitioner for —

criminal contempt should be reversed and his ac: -

/quittal directed. 3

; Respectfully submitted,

Myron L. Searmo and

: 3 J. Bertram WEGMAN,

’ . 5 oe Counsel for Petitioner.

Myron L. SHaprro, :

Of Counsel.

APPENDIX TO BRIEF

Statutes ond -Rules

Motor Carriers ‘Act, Immunity Provision, .Title 49,

US.C., Ch. 8, Section 305(d) :

“So far as may bé necessary for the purposes of

this chapter, the Commission’ and the members and ©

* examiners\thereof and joint boards shall have the

same power to administer oaths, and require by

subpena the attendance and testimony of witnesses

_ and the production of books, papers, tariffs, con-

tracts, agreements, and documents, and to take

testimony by. deposition, relating to any matter

under investigation, as the Commission has in .a

matter arising under chapter 1 of this title; and

any person subpenaed or testifying in connection

with any matter under investigation under thiS |

chapter shall have the same rights, privileges, and

-unmunities and be subject to the same duties, lia-

| bilities, and penalties as though such matter arose

‘under chapter 1-of this title, unless otherwise pro-

vided in this chapter.”

Interstate Commerce Act, Temunity Provision, Tifle 49,

U.S.C., Ch. 2, Section 46:

“No person shall be excused from attending and —

testifying or from producing books, papers, tariffs,

contracts, agreements, and doéeuments before the

Interstate Commerce* Commission, or in obedience _

to .the subpoena of the commission, whether such

subpdina be signed-or issued by one or more com-

‘Missioners, or in any cause or proceeding, criminal

‘or otherwise, based upon or growing out of’ any

alleged violation of chapter 1 of this title on the

ground or for the reason ‘that the testimony or

evidence, documentary or otherwise, required of

him, may tend’ io criminaté him or subject him to -

a penalty or forfeiture. t no person shall be |

prosecuted or subjected to\any penalty .or for-—

feiture for or on account of any transaction, mat; |

ter or thing, concerning which hé may testify, or

produce evidence, documentary or otherwise, before ©

said commission, or-in obedience to its subpoena,

_ or the subpoena of ‘either of them, or in any such

case or proceeding: Provided, That no person so

testifying shall’ be exempt from prosecution and

\ punishment for perjury committed in so testifying..

Any person. who shall neglect or refuse to attend

. and testify, or to answer any lawful inquiry, or to

produce books, papers, tariffs, contracts, agree-

’ ments, and documents, if in his power to do so,.in

obedidnce to the subpoena or lawful requirement of

the commission shall be guilty of an offense and

upon conviction thereof by a eourt of competent

jurisdiction shall be punished by fine not less than

‘ $100 nor more than $5,000, or by imprisonment for .

-not.more than one year or by both ‘such fine and

imprisonment.” ,

Federal Trade Commission Act, Immunity Provision,

‘Title 15, U.S.C., Ch. 2, Section 49:

“For the purposes of sections 41-46 and 47-58

of this title the commissioi,” * * * shall have

power to require by subpena the attendance and

testimony of witnesses and the production of. all

- such documentary evidence relating | to any matter

under investigation. * * *

No person shall be excused’ from attending and

testifying or from producing documentary evidence

before the commission or in obedience. to the sub-

pena of the commission on the ground or for the

reason that the testimony or evidence, documentary

or otherwise, required of him may tend to crimi-

nate” him or subject him to a‘ penalty or forfeiture.

But no natural person shall be prosecuted or sub-

) 2. “Ov

jected to any penalty. or forfeiture for or on ac-

count of any transaction, matter, or thing con- 4

cerning which.he may testify, or produce evidence,

documentary or otherwise, before the commission

in obedience*to a subpoena issued ‘by laa batten ag

Securities Act. of 1933, Immunity Provision, — 15,

‘USC,

Ch, 2A, Section tiv (c):

“No person. shall be exvused from attending and

testifying or from producing books, papers, con-

tracts, agreements, and other documents before the

Commission, of in obedience to the subpena of

the Commission or any member. thereof or anv

- officer designated by it, or inany cause or. pro-.

ceeding instituted ‘by the Commission, on the

’ ground that the testimony or evidence, documen-.

tary or otherwise, required of him, may tend to

incriminate him or subject him to a penalty of for-

feiture; but no individual shall be prosecuted or

subjected to any penalty-or foreiture for or on

account, of any transaction, matter, or thing con-

cerning which he-i ‘is compelled, after having claimed

his privilege against self-incrimination, to testify

or produce evidence, documentary or otherwise,

except that such individual so testifying shall not

be-exempt from prosecution and punishment for

perjury committed — in so testifying.”

Merchant Marine ‘a "1936, Sapeiiiaid Provision, Title

46, US.L,, Section 1124(c):

“No person shall be excused from attending and

‘testifving or’ from producing books, papers, or.

other documents before the Board, or any member

- ov officer or employee thereof, or/the Secretary, in

any investigation instituted by the Board or the Sec-

retary under this chapter, on the ground that the

testimony or evidence, documentary or otherwise,

required of him may tend to incriminate him or sub-

ject him to a penalty or-forfeiture; but no person

-- shall be prosecuted or subject to any penalty or for- -

-feiture for or on account of any transaction, matter,

or thing concerning which he is ‘compelled, after hav-

_. ing claimed his privilege against self-incrimination,

“to testify or produce evidence, documentary or

, nes alia sie anhel id .

_ Perishable Cimntidities Act, Immunity Provision, Title

4s. U.S.C., Seetion 499m (f):

. “No person shall be excused from attending, tes-

‘tifvi ing * * * before the Secretary or any officer or

employee | designated by him, in obedience to the

subpoena of the Secretary or any such officer or

employee, in any cause or proceeding, based upon

“or growing out of any alleged violation of. this

chapter, * * * upon the ground or for the reason

that the testimony or evidence, ‘documentary or.

otherwi ise, required of him may tend to incriminate -

him * * *.. But no natural person shall be prose-

cuted * * ‘. for or on accoynt of any transaction, -

matter, or thing, concerning which he is eompelled

‘ “under oath so to testify, * * * before the Secre-

_ tary or any officer or employee designated by him, -

‘in obedience to the subpoena of the Secretary, or

‘ any such officer or employee, * * * or in any such

cause or proceeding: *.* *.”

Taft Hartley Act, Immunity Provision, Title 29, ,v. S.C.,

Section 161(3):

“No person shall be und ‘tees aitendini and

- testifying or from producing books, recards, corres-

pondence, documents, or other evidence i in obedience |

to the subpena ‘of. the Board, on the ground that

the testimony or evidence required of him may tend

to incriminate him or subject him to a penalty or _

forfeiture; but no individual shall ‘be —

4 il

bs Sa ; . |

* * * for or.on account of any transaction, matter,

or thing concerning which he is compelled, after

- haying claimed his privilege against self-incrimina- | ~

tion, to testify or produce exjdence, * * *.”

Federal Rules of Criminal Procedure:

Rule 42. Criminal Contempt [18 U. 5S. C.A.].

(a) Summary Disposition. A eciniaal contempt

may be’ punished summarily if the judge certifies

that he saw or heard the conduct constituting the °

contempt and that it was committed in the actual

presence of the court. The order of contempt shall ..

recite the, facts and: shall ‘be signed by the judge =

and. entered of. record. }

“(b) Disposition Upon Notice and Hearing. A

3 criminal contempt except as provided in subdi- -

vision (a) of this rule shall. be prosecuted on not

The notice shall state the time and place of Kearing,

allowing a reasonable ‘time for the preparation of

the defense, and shall state the essential facts

- constituting’ the criminal contempt charged and

describe it as such. The notice shall be given orally

‘by the judge in open court,in the presence of the’

defendant or, on application of the United States

attorney or of /an attorney appointed by the court.

_for that purpose, by an order to show cause or an

order. of arrest.:' The defendant is entitled to a

trial by jury in any case in which an act of Con-

gress so provides. “He is entitled to admission to

bail as provided in these rules. If the contempt

charged involves disrespect to or criticism of: a

judge, that judge,is disqualified from presiding: at

the trial’ or hearing except with the defendant’s

consent. Upon a verdict- or finding of guilt the

court shall enter an order fixing the punishment. -.

Code of Criminal Procedure: | |

$401. Title 18, U.S.C. Power of court

“A court of the United States shall have power

to punish by fine or imprisonment, at its disctetion,

such contempt of .its authority, and none other, as—

““(1).Misbehavior of any person in its: presence

* or so near thereto as to obstruct the administration

of justice;

“(2) Misbehavior of any of its officers in ‘their,

official transactions; —

«(3) Disobedience or resistance to. its lawful

writ, process, order, rule, decree, or command.’

§3481, Title 18, U. S.C.. Competency - of accused |

“Tn trial of. all persons charged ‘with the commis-

_ sion of offenses against the United States and in

all proceedings in courts :martial and courts of |

inquiry in any State, District, Possession or Terri-

‘ tory, the person charged shall, at his own request,

be a competent witness. His. failure to make such

request shall not create any presumption oe .

» him.”

China Trade Act, Title 15, U.S.C. $155,

“(a) For the efficient administration of the fune- —.,

tions vested -in the registrar by this. chapter, he -

may require, by subpoena issued ae *

(1) the attendance of any witness and the produe-

tion of any book, paper, document, or other evi-

dence: * * ° The ‘registrar, or. any officer, em-

/ployee, or agent of the United States authorized

in writing ‘by him, niay administer oaths and ex- -

amine any witness, oar

“(c) No person ‘shall be excused from so attend-

ing and testifying * * * ‘on. the ground that the

‘testimony * * * required of him may tend to in-

criminate him * * * but no natural person shall be

prosecuted or subjected to any penalty or forfeiture

for or on account of any transaction, matter, or

thing as to which,~in obedience to a eran and

: “Social Security..Act, Immunity Provision: Title 42, :

U.S.C., § 405, (d), Xf). |

“(d)' For the. purpose of any hearing, investiga-

tion, or other proceeding authorized or directed

under sections under this subchapter, or relative to

_any ‘other matter within his jurisdiction hereunder,

the Secretary shall have power to issue sub-

-penas requiring the attendance and testimony of .

witnesses and the production of any evidence that

- relates to any matter under investigation | or in

question before the Secretary * ° °.

_- “(f) No person so ahiaaed or ordered shall

- be excused from attending and testifying * * * on

the ground. that the testimony or evidence required

of him may tend to incriminate him * * * but no

person shall be- prosecuted * * * for, or-on account

of, any transaction, matter, or thing concerning

which he is compelled, after having claimed ‘his

privilege against self-incrimination, to testify or.

produce — Poe

Gi bani Energy ‘Act, Hosienily Provision, Title 42,

US.C., § 2201. |

“(¢@) make such studies boa i wentiations, obtain

such information, and hold such meetings or hear-

re ings, as the Commission may | ‘deem necessary or

« . proper to assist it in exercising any authority pro-

- vided in this chapter, or in the administration or _

‘enforcement of this chapter, oF any aoe or

40)

orders. issued thereunder. For such purposes the

~ Commission is authorized to administer oaths and

affirmations, and by subpoena to require any per-

son to appear and testify, or to appear and pro-

duce documents, or both, at any designated place.

No person shall be excused from complying with

any requirements under this paragraph bécause of

his privilege against -self-incrimination, but the

' immunity provisions of the Compulsory Testimony

Act of February 11, 1893, shall apply with respect

to any individual who epecthonity claims such

assneosis |

“Rent Control: Act, iucinaliy Provision, Title 50, U. S. C,

War App. a) 1896. :

“(f) (t) The- President is authorized to make

such studies and investigations, to conduct such

hearings, and .to obtain such information, as he —

deems necessary or proper to assist him in pre- -

seribing any regulation or order under this: Act

** * or in the administration and enforcement

> of this Act * * * and regulations and orders

prescribed thereunder. ;

“(3) For the purpose of obtaining information

under this ‘subsection, the President may by sub-

pena require any person to appear and testify or

' 40 appear and: ‘produce comments, or ‘both, at any

‘designated ieee. id Ss

(6) No person shall be man from ao

and ‘testifying or producing documents or . from

complying with any other requirement under this

‘subsection because of. his privilege against self-

incrimination, but the immunity provisions of ‘the.

Compulsory Testinony Act of February 11,1893,

‘shall apply with respect to any individual | who

apectenty. ¢ claims-such privilege.”

\ .

rt : ) a

| Motor Carriers Act, Title 49, U.S.C. §322. +

“Any person knowingly and willfully violating

any provision of this chapter, or any rule, regula-

_ tion, requirement, or order thereunder, or any term -

or condition of any certificate,*permit, or license,

for which a penalty is- not otherwise herein pro-

vided, shall, upon conviction thereof, be fined not

more than $100 for the first offense and not more

than $500 for any subsequent offense. Each day

of such violation shall constitute a separate offense.

* * * : * * ae ase ae eal os

Pes) Any person, whether carrier, shipper, con-

signee” or broker, or any officer, employee, agent,

or representative thereof, who shall knowingly

offer, grant, or give, or solicit, accept, or receive

any rebate, concession, or discrimination in viola-

tion of any provision of this chapter, or who. by

means of any false statement or representation or

‘by the use of any false or fictitious bill, bill of. lad- |

ing, receipt, voucher, roll, account, claim, certificate; .

affidavit, deposition, lease, or bill of sale, or by any

_ other means or device, shall knowingly and willfuly

assist, suffer or permit any person or persons,

natural or: artificialy to obtain transportation of

passengers or property subject to this chapter for

less than the applicable rate, fare, or charge, or

who shall knowingly and willfully by any such:

means or otherwise:fraudulenty seek to evade or

_ defeat regulation as in this chapter provided -for ie

motor carrier or brokers, shall be deemed guilty of

* a misdemeanor and upon conviction thereof be fined ~

not more than $500. for the first offense and not.

more than $2,000 for any ‘subsequent offense.

“(d) Any special agent, accountant, or examiner

information which may/comé to his knowledge dur-

ing the course of any examination or inspection |

42 R : PS Sle ee Se ae ae —-

made under authority of section 320 of this title,-

except as he may be directed. by the Commission or

by a, court or judge théreof, shall be guilty of a

misdemeanor and shall be subject, upon conviction

in any eourt -of.the United States of competent

| jurisdiction, to a fine of: not more than $500 or .

imprisonment for not exceeding Six months, or:

both.” °..-; |

United States’ Constitution, “Amendments V, VI and

V HiT. ; — : eats

e .

Vv kectals ou

“No person * * * shall be compelled in’ any

~ criminal case to be a witness against himself, nor.

be .deprived | of life, eae or property, . without

due process of law;”

¥ $ ? F

oo. .

“VI ‘

’ “Tn all criminal prosecutions, the accused shall

enjoy the right to a speedy and public-trtal, by an

impartial jury * * * and to be informed of the

nature and cause of the accusation; to be confronted

with the witnesses against him; to have compulsory

process for obtaining Witnesses in his favor, and

_ to have the eg yu Counsel for his defense ;”

“Excessive — bail salt not be required, nor

excessive fines imposed, nor cruel and unusual

punishments inflicted.” srt

Commodity Exchange Act, Title 7, GEC. (1946 ed. TSS.

- “For the purpose of securing effective enforce-

ment of the provisions of this chapter, the pro-

Ces ——— 4g

visions, including penalties, of sections 12 and 46:

48 of Title 49, as amended and supplemented relat-

ing to the attendance and testimony of witnesses, :

the production of. documentary evidence, and the

.lImmunity. of witnesses, are made applicable to the

power, jurisdiction, and authority of. the Secretary

of Agriculture, the said -commission, and said

referee in proceedings under this chapter, and to

persons subject to its ees.

| Immunity Act of 1954, Title 18, USC, $3486. |

«(e) Whenever in the judgment of a United

States dttorney the testimony of any witness stn ley

_in any case- or proceeding before any grand jury

or court: of the United States involving any inter-.

‘ference with or endangering of, or any plans or

attempts to. interfere with or endanger, the national

security or defense of the United States by treason,

sabotage, espionage, sedition, seditious conspiracy,

* * * is necessary to the public interest, he,.upon’”

the approval of the Attorney General, shall make

_ application to the court that the witness shall be —

instructed to testify or produce evidence subject to

the provisions of this section, and upon order of.

the court such witness shall not. be excused from

testifying or froni producing books, papers, or other’

evidence on the ground that the testimony or: evi-

- dence required of him may tend to incriminate him

or subject him to a penalty or forfeiture.”

a “SS

Emergency y Price Control Act, 56 Stat. 30 (1942) §202.

“(a) The Administrator is authorized to make

such studies and investigations, and.to obtain. such

- information as he deems necessary or proper to

assist him-in prescribing any regulation or order —

under this Act or in the administration and enforce-

"ment of this Act dnd regulations, sah and price

- schedules thereunder.

44 . | 2 7 eee,

“(e) For the purpose of obtaining any -informa-

tion under subsection (a), the Administrator may

by subpena require any other person to appear and

and testify pr to appear. and’ produce documents,

or both,.at any “designated” place. 25 a

cy g) No person shall be excused from complying’

with any requirements under this section because

of his privilege. against -self-incrimination, but the

immunity provisions of the Compulsory Testimony

Act of ‘February 11; 1893 * *-* shall apply -with

respect to any individual who apecihenity. claims

- such priv legs." :

Pelee Degosit hecieuncs Corporation Law, Title 12,_:

US.C., $1820. |

“(a) The Board of Directors shall stsiatates the .

affairs of the Corporation fairly and impartially 7

and without discrimination. * * * .

“¢c) For the purpose of any hearing ree this |

' chapter, the Board of Directors, any member thereof —

or any person designated by the Board of Directors

to conduct any ~ such hearing, is: empowered . to ”

* . administer oaths and affirmations, subpena any

_officer or employee.of the insured Naik compel his

“attendance, take evidence, * * *. For the .purpose

of any hearing, examination, or investigation under

* this chapter, the Board of Directors may apply to

_ any judge or clerk of any court of the United States:

* * * to issue a subpoena commanding each person .

to whom it is directed to attend and give testimony

* * * at a time and place/and before a person

therein specified. * * *

. “(d) No/person shall be excused from attending

and testifyi ing or from, producing books, records, or

‘ other papers in obedience to a_ subjpena. issued

' under the authority of this chapter on the ground

45,

‘that the testimony or evidence, documentary or

otherwise, required of- him may tend-to incriminate

. him or subject him to penalty, or AOREAETEER pd eka

Industrial Alcohol Act, 53 Stat. 363, $3119, Title 26,

U.S.C. (1946. Ed.), now §5315, Title 26, U.S.C. |

“No peyson shall be excused, on the ground that

‘ it. may tend to incriminate him or subject him to a

pen nalty or forfeiture, from attending and testifying,

or producing books, papers, documents, and other |

ev idence in obedience to a subpena of. any court in,

any suit or proceeding based upon or growing out

® of any alleged violation of this OE MTs

Civil Aeronautics Act, Title 49, U.S.C., Ch. 9, §644(1).

“(i) No person: shall be excused from attending

and testifying, or from producing books, papers, or

-. documents before the Board, or in obedience to the

subpena of the Board, or in any cause. or proceed-

_ ing, criminal or otherwise * * .* on the ground, or

for the reason, that the testimony or evidence, docu-.

mentary or otherwise, required of’ him may tend to

incriminate him. or “subject him to a penalty or for-

feiture; ees

Export. Controls Act, Title 50, App; U.S.C. §2026 _

(a), (b). | itis

“(a).To the extent neeessary or appropriate to

the enforcement of this Act the head. of any

department or agency exercising any functions here-

under (and officers or employees of such department .

or agency -specifically designated by the head there-

of) may Anake such investigations and obtain such

information from, require such reports or the keep- /

ing of such records by, make such inspection of the

books, _reeords, and other writings, premises, or

“ property of, and take the sworn testimony of, any

person. In addition, such officers or employees may.

_administer oaths or affirmations, and may by sub-_

pena require any ee to appear and testify ahtihiye®

«(p) No person shall be excused from complying

with dny requirements under this’ section because

of his privilege against self-incrimination, but the

immunity provisions of the Compulsory Testimony

Act of February 11, 1893. (27 Stat. 443) shall apply :

with respect. to. any individual ‘who specifically

claims such privilege.” .

Délenes Production Act’ of 1950, Title 50, U.S.C., » APP.

$2155.

“(a) The President shall be entitled, while this

Act is in effect and for a period of two vears there-

after, by regulation, subpena, or otherwise, to .

obtain such information from, require such reports

and the keeping of:such records by, make such |

inspection of the books, reeords, and other writings,

premises or property of, and take the. sworn testi- ..

mony of, and administer oaths and affirmations to,

any ‘person as may be necessary or appropriate, in

his dis¢cretion, to the enforcement or the adminis-

‘tration of this Act and the regulations- or order

‘issued thereunder. eee

“(b) No-person shall be excused from complying

with any requirements under this section or from

attending ‘and testifying or from producing books,

‘papers, documents, and other evidence in obedience .

to a subpena before any grand jury or in any court

or administrative proceeding based upon or grow-

_ ing out of any. alleged violation of this Act on=the

- ground that the testimony or evidence, documen-

tary or otherwise, required of him may tend to

incriminate him~ or~ subject him to penalty or

forfeiture ;”

See ek ae

| ) . atc ‘

‘War onl Defense Contract Acts of 1951, Title 50, App.,

.S.C., §1152(a) (4). ,

“(4) For the purpose of obtaining any informa-

tion, verifying any report required, or making any.

_ investigation pursuant to-paragraph (3), the Presi-

dent may administer oaths and affirmations, and -

may require by subpena or otherwise the attendance

and testimony by witnesses. * * * No person shall

be excused from attending and testifying or from

producing any books, records, or other nice td

evidence or certified copies. thereof or physical evi-

dence in obedience to any such subpena, or in any

action or proceeding which. may be instituted under

this subsection, on the ground that the testimony

or .evidence, documentary or. otherwise, required

of him may tend to incriminate him or subject him

to a penalty or ei eaatued j

6 3

Second War Powers Act, Title 50, App., USC §643a.

“For the purpose of obtaining any information |

or making any inspection or audit pursuant to

section 1301, any agency acting hereunder, or the..

Chairman of the War Production Board, as the case

may be, may administer oaths and affirmations and .

may require by subpena or otherwise the attend-

ance and testimony of witnesses..* * .* No person

shall be excused from attending and testifying or

- from .producing any books, records, or other docu-

mentary evidence or ‘certified copies thereof or

" phy sical evidence in obedience to any such subpena,

or in any action or proceeding which may be insti-

tuted under this section, on .the ground that the

testimony or evidence, documentary or otherwise, .

| required of him may tend to incriminate him or —

subject to a penalty or by saa: I .

Inv estment Advisers Act, Wii ‘15, U.S.C., §$80b-9. | wis

“(d) No, person shall be excused from attending

and testifying. or Y a producing books, papers,

eee

evrrespondence, memoranda, contracts, agre¢

or other records and documents before the ||

mission,. or in obedience to the’ subpena of the

Commission or any member thereof or apy officer

designated by it, or in any cause or proceeding

instituted ‘by the’ Commission, on. the ground that -

the testimony or evidence, documentary or _other-

. wisé, required of him may tend to incriminate him

‘ or subject him to a penalty cr forfeiture ;”.

Investment Companies Aci, Title 15; U.S.C., §80a-41.

“(d) No person shall be excused from attending

and testifying or -from producing books, papers,

correspondence, ‘memoranda, contracts, agreements, .

or other records and documents before the. Com-

‘mission, or in obedience, to’ the subpena of the

Comniission,.or any member thereof or any. officer

designated by it,.or in -any cause or proceeding’

instituted by the Commission; - -on the ground that

the testimony or evidence, documentary or other-'

> wise, required of him may tend. to incriminate him.

or subject him to a. penalty or forfeiture;” —

- Public Utility Holding Company Act, Title ‘4K, USC,

§79r.

“(e) No person ghia be ectoused. fan attending

~~. and testifying or from. producing books, papers,

_.eprrespondence, memoranda, contracts, agreements,

vor other records and documents before “the Com-

mission, of in obedience to thé subpena of. the

Commission or any member: thereof or any officer,

‘designated by -it, or in. any: cause or “proceeding. -

instituted by, the Commission, on the ground ‘that

the testimony or evidence, documentary :or. other-.

- “wise, required of him may tend to. incriminate him

or subject him toa penalty or forfeiture ;”

ai Securities Exchange Act, Title 15, US Cy. $78u.

“(d) No ‘person shall be‘exeused from attending

| oa testifying or. from producing books, papers, con--

tracts, agreements, an ther records und’ docu-

ments ‘before the Commis n, or in obedience to the

‘subpena of -the Commission or any member thereof

or any offic®,designated by it, or in any cause or

_ proceeding institabed by the. Commission, ‘on the

ground that the testimony or evidence, documentary

or otherwise, required by: him may tend to inecrim-

inate him. or subject him toa penalty or forfeiture;”

Shipping Act ‘of 1916, Title 46, US.C., $827.

_“No person shall be excused, on ‘the ground that it

_ may terd to incriminate him or subject him to a

penalty or forfeiture, from attending and testifying,

.or producing books, papers, documents, and other _

‘evidence, in obedience t6 the subpena of the .Com- ’

mission or of-any court in amy proceeding based

upon or growing out of any alleged vielation of. this

chapter;”

Narcoties Control Act, Title 18, US.C., $1406. -

“Whenever in the judgment of a United States”

. attorney the ‘testimony of any w itness, or the pro-

duction of. books, papers, or other evidence by any

‘witness; in any case or proceeding before any grand

\ jury .or court of the United States involving any

violation of—* * * is necessary to: the public inter-—

. est, he, upon ‘the approval of the Attorney General,.

. shall make application to the court that: the witness

witness shall be prosecuted or subjected to any pen-.

_alty or forfeiture for or on account of any trans-

action, matter, or thing concerning which he is com-

~ pelled, after having. claimed his privilege against —

_ self-incrimination, to testify or produce evidence,

nor shall testimony so compelled be used as evidence

in any criminal proceeding. * * * against. him in

any court.

Natural Gas 4a. Title 15, USC, 717m.

_ “th) No person shall. be excused from attending

and testifying or from producing books, papers, cor-

respondence, memoranda, contracts, agreements, or

other records and documents before the Commis-

; sion, or in obedience to the subpena of the Com-

mission or any member thereof or any officer desig-.

nated by it, or in any cause or proceeding insti-

tuted by the Commission, on, the ground that the

testimony or evidence, documentary - or -otherwise,

required of him may tend to incriminate him or

subject him to a penalty or povehed

_ Federal Copsitiniidtions act, 47 U. S. C., §409 ()):

No person’ shall be excused from attending and

testifying or from producing: books, papers, sched-

—-s

ules of. charges, contracts, agreements, and docu- ~

ments before the Commission, or in obedience 40

the subpena of the Commission, eget wal sub-

-_. pena be signed or issued by one or e commis-

sioners, or in any cause. or procééding, criminal or ,

- otherwise, based upon ‘or growing out of any alleged

violation of this ¢hapter, or of any amendments

thereto, on the ground or for the reason ‘that the

testimony or evidence, documentary or otherwise,

required of him may, tend to incriminate him or

subject him to a penalty of forfeiture;. but no

individual shall be prosecuted .or. subjected to any

penalty or forfeiture for or on account of any

transaction, . matter, or thing concerning which he

is compelled, after having claimed his privilege

against self-incrimination, to testify or produce

evidence.” ars

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.