No. 240.

9 F.2d 807 (1926)


Circuit Court of Appeals, Second Circuit.

January 4, 1926.

Attorney(s) appearing for the Case

Isaac Reiss, of New York City (Charles H. Tuttle and Emily C. Holt, both of New York City, of counsel), for plaintiff in error and appellant.

Emory R. Buckner, of New York City (C. D. Williams, Sp. Asst. U. S. Atty., of New York City, of counsel), for the United States.

Before ROGERS, MANTON, and HAND, Circuit Judges.

HAND, Circuit Judge (after stating the facts as above).

The order dismissing the writ of habeas corpus must be affirmed. We understand the case of Craig v. Hecht, 263 U.S. 255, 44 S.Ct. 103, 68 L. Ed. 293, to have established that the writ does not lie to review an order adjudging the relator in contempt of court. Cases like Ex parte Hudgings, 249 U.S. 378, 39 S.Ct. 337, 63 L. Ed. 656, 11 A. L. R. 333, are confessedly exceptional in their character. We read the last declaration of the Supreme Court as indicating a disposition substantially, if not altogether, to eliminate the exception, where a direct review of the order is possible.

Upon the writ of error, the first question is of power; that is, whether, if Loubriel's answers were an evasion of his duty to disclose what he knew, he might be committed as though he had refused point blank to answer at all. We held in In re Schulman, 177 F. 191, 101 C. C. A. 361, that a bankrupt's disclaimer of any knowledge about what he must in the nature of things have known would not be taken as compliance with his duty as a witness. The Circuit Court of Appeals for the Sixth Circuit followed us in Raimsohn v. United States (C. C. A.) 2 F.2d 441, and the Circuit Court of Appeals for the Third Circuit in In re Kaplan Bros., 213 F. 754, 130 C. C. A. 267. The District Court for the Southern District of New York has several times so ruled. In re Fellerman (D. C.) 149 F. 244; In re Steiner (D. C.) 195 F. 299; United States v. Appel (D. C.) 211 F. 495. Ex parte Hudgings, supra, instead of throwing any doubt upon the power, gave it the express sanction of the Supreme Court.

The question is no less than whether courts must put up with shifts and subterfuges in the place of truth and are powerless to put an end to trifling. They would prove themselves incapable of dealing with actualities if it were so, for there is no surer sign of a feeble and fumbling law than timidity in penetrating the form to the substance. We have not the least doubt of the power of the District Court to punish a witness for an evasion patently put forward to avoid his duty. No doubt, since its exercise is drastic, it is to be used with caution, but at times no other means exists to prevent an entire miscarriage of justice. Of its limitations we shall have more to say.

Nor does it make the least difference that compliance may furnish evidence of the falsity of the earlier statement. Perhaps all a man's testimony upon a continued inquiry must be taken together, and no prosecution will lie if he recants before he is through. People v. Gillette, 126 App. Div. 665, 111 N.Y.S. 133. But we do not rely upon that case, or mean to accept the doctrine. We may assume the opposite, and suppose that subsequent admissions at the same hearing may be used against the witness to prove his guilt in uttering the earlier. Nevertheless his duty to testify exists by hypothesis before the predicament which his tergiversation has created; he cannot absolve himself of that duty by an initial contumacy, whatever disguise he may choose for it. It continues until the inquiry is at an end, however he may have enmeshed himself in his own toils. Were it not so, even cross-examination would be impossible, and a hardy knave could block the search for truth by the first preposterous fancy which he chose to put forward. We do not mean necessarily to include a second and independent hearing, even though concerned with the same subject. Whether or not one may then claim a privilege by virtue of the peril from his earlier testimony we do not say. In Daniels v. United States, 196 F. 459 (C. C. A. 6) 116 C. C. A. 233, so much was said obiter, and Cameron v. United States, 231 U.S. 710, 34 S.Ct. 244, 58 L. Ed. 448, is not to the contrary. But there is a clear distinction between a single inquiry and succeeding ones; as to the first there is no doubt.

We have considered the point of power only because it was challenged on the supposed authority of Ex parte Hudgings, supra. However, we think that its limitation has not been properly observed, even assuming that the record in the case at bar shows that Loubriel was evading his duty, a point on which we are not agreed. His supposed contumacy, if any, was at once a contempt, punishable as such, and a continued obstruction to the investigation of the grand jury. The committal did not attempt to punish it as a contempt, but to compel him to perform his duty. The duty in turn was measured by the subpœna, the only process under which he could be required to appear and testify at all. But the subpœna did not require his attendance before any other than the September grand jury. When that body adjourned, Loubriel was under no further duty to testify, and could, of course, be no longer compelled to discharge a duty which had ended. We agree with Judge Wolverton's decision in U. S. v. Collins (D. C.) 146 F. 553, and the analogy of legislative contempts seems to us apposite. Marshall v. Gordon, 243 U.S. 521, 542, 37 S.Ct. 448, 61 L. Ed. 881, L. R. A. 1917F, 279, Ann. Cas. 1918B, 371; Anderson v. Dunn, 6 Wheat. 204, 231, 5 L. Ed. 242. Loubriel still remained subject to punishment for any contempt (U. S. v. Collins, supra), and to a prosecution for perjury, but he could not be lawfully detained thereafter, merely to compel compliance with the subpœna.

Nor does it make any difference that the order of committal gave him leave to purge himself before another grand jury. Each investigation is separate and independent; it terminates with the grand jury which undertakes it, and the next does not take it up as unfinished business. The order, if it could be construed as a direction to testify before another grand jury, would have been void. If Loubriel was to be punished, his punishment must be fixed; if he was to be coerced, it might be only while the inquiry was on. The investigation could not be indefinitely continued until the pains of punishment overcame his will, even if the statute did not make the inquiries several and separate. The reasons which forbid such procedure go very deep into the past. Even when men did not wince at the most awful sanctions, the evidence procured was regarded with suspicion. A man, faced with perpetual imprisonment till he discloses his confederates, will in the end find confederates to disclose. There is no modern engine to effect the result; the costs are too high, and the results too meager.

Order reversed; plaintiff in error discharged.


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