Appeal from the District Court of the United States for the District of Delaware; John P. Nields, Judge.
Before DAVIS, Circuit Judge, and DICKINSON and McVICAR, District Judges.
DICKINSON, District Judge.
The defendant in the case of the United States against the Democratic League of Delaware made an appropriate motion to suppress evidence which it was averred had been illegally obtained. In the course of the hearing of this motion, Harold D. Wilson was called as a witness. He testified inter alia that he had entered the premises of the defendant by means of a key which had been furnished him by a member of the league. He was asked upon cross-examination, "Who was the member?" This question he refused to answer; was directed by the trial court to answer; and was adjudged to be in contempt for his refusal, and was committed. From this order of commitment these appeals have been taken and the question raised is the sole one of the legal propriety of his commitment. The nature of the proceeding was such that no formal expression of the views of the court below has come up with the record. There is, however, the informal discussion which led up to the order of commitment, but this does not necessarily disclose what moved the court to make the order from which this appeal is taken. We will, in consequence, follow the arguments of counsel which have been addressed to us. We pass all questions of procedure, as none is here raised; counsel being in accord that the legal propriety of the commitment may be determined on the appeal here taken for which they cite Gill v. United States (C.C.A.) 262 F. 502; Alexander v. United States, 201 U.S. 117, 26 S. Ct. 356, 50 L. Ed. 686.
We go, in consequence, directly to the question of the legal propriety of the commitment. This has been presented to us from different angles or points of view.
1. Objection was interposed to the question on the ground of immateriality. We do not see, however, that this question arises. If a witness be asked a question which he declines to answer for the reason that he deems the fact sought to be elicited to be immaterial to the issue before the court, the trial court must of necessity determine the question of materiality and must enforce its ruling. Not to do so would be to surrender to the witness a function of the trial judge. The propriety of a commitment following the ruling is not determined by the merits of the evidentiary question ruled. This witness, however, did not refuse to answer on this ground but the wholly different one next discussed.
2. The real ground of his refusal was that he had been forbidden by another department of the government to make the disclosure for which the question asked, because the information had been confidentially given as an aid to crime detection. The appellate question raised is, in consequence, whether the policy of the law forbids the disclosure asked for, or at least whether a trial court should compel a witness to disclose what a co-ordinate branch of the government had commanded him not to disclose. We have so stated the question because of a difference of view respecting the basis of the doctrine. Many of the decided cases, and emphatically the early English ones and our own, as well, view the doctrine as founded upon policy of the law that the name of one by whom information has been given to an officer of the law of law violations should not be divulged. The policy recognizes that it is the duty of everyone to aid in law enforcement and has been adopted for the encouragement of those from whom information may be received. In the other view, the power to compel such disclosures is one resting in the judicial discretion of the trial court. It has in it the element of comity and official courtesy. Every branch of government owes the duty of assistance to each of the others. Out of this has grown the general doctrine accepted in the courts of the United States not to compel disclosure of the identity of any one who has given information to the government without the consent of the latter. When the witness has been called by the United States, the trial court may modify the general doctrine by imposing the terms that consent to the disclosure be given or the witness be withdrawn and his testimony struck out as incomplete. When, however, the disclosure is asked as essential to the defense of one on trial or is essential to the determination of the cause, a further modification of the referred to doctrine is made. The general doctrine as thus modified may be stated as follows:
3.It is the right and the duty of every citizen of the United States to communicate to the executive officers of the government charged with the duty of enforcing the law all the information which he has of the commission of an offense against the laws of the United States, and such information is privileged as a confidential communication which the courts will nto compel or permit to be disclosed without the consent of the government. Such evidence is excluded, not for the protection of the witness, but because of the policy of the law. Vogel v. Gruaz, 110 U.S. 311, 4 S. Ct. 12, 28 L. Ed. 158; In re Quarles, 158 U.S. 532, 15 S. Ct. 959, 39 L. Ed. 1080; Worthington v. Scribner, 109 Mass. 487, 12 Am. Rep. 736; Steen v. First Nat. Bank (C.C.A.) 298 F. 36; Segurola v. United States (C.C.A.) 16 F.2d 563.
There is, however, an exception to this rule or a modification of this general doctrine, in that it gives way to another doctrine of the law when the two conflict. A trial court must dispose of the cause before it. If what is asked is useful evidence to vindicate the innocence of the accused or lessen the risk of false testimony or is essential to the proper disposition of the case, disclosure will be compelled. Centoamore v. State, 105 Neb. 452, 181 N.W. 182; Regina v. Richardson, 2 Fost. & F. 693; Marks v. Dreyfus, L.R. 25 Q.B.D. 494; Humphrey v. Archibald, 20 Ont. App. 267; Wigmore on Evidence, p. 3331.
The question here at issue was whether the evidence secured by a search and seizure should be suppressed. The proceeding was ancillary to a criminal prosecution against the Delaware league. The witness had testified that he had procured access to the rooms of the league on the invitation of a member, who had supplied him with a membership card, a key, and a plan of the building. If these means of access had not been supplied by a member, but had been unlawfully obtained, the evidence secured should be suppressed. Fraternal Order of Eagles v. United States (C.C.A.) 57 F.2d 93. To determine this, the information sought could not be withheld. The evidence was "essential to the proper disposition of the case," and, in consequence, admissible, and, being admissible, the witness could not withhold it. Upon his refusal to testify he was properly adjudged to be in contempt, and an order of commitment properly followed.
The assignments of error are overruled, and the order of commitment affirmed.
McVICAR, District Judge (dissenting).
A member of the Democratic League of Delaware, a social political corporation, told Harold D. Wilson, deputy prohibition administrator for the district of Delaware, that the league was in possession of intoxicating liquor and was maintaining a nuisance on its property located in the city of Wilmington, Del., in violation of the National Prohibition Act. The member gave Wilson a key for, and a diagram of, the building of the league, with directions as to where and how the liquor could be found. Wilson, with several prohibition agents, by virtue of the key furnished by the member, unlocked the locked doors in the building of the league, and, by virtue of the diagram and instructions, found the bar and liquor therein, which they seized without a search warrant. On the basis of this evidence, an information was filed in the United States District Court for the state of Delaware, January 5, 1931, charging the league with the unlawful possession of intoxicating liquor and the maintenance of a nuisance on the premises aforesaid.
January 26, 1931, the league presented its petition to the District Court praying that the property seized by the federal prohibition agents be returned, and that the evidence received be suppressed on the ground that the search and seizure, under the circumstances, was a violation of the league's rights under the Fourth Amendment. A hearing was had on the petition February 18, 1931, at which hearing the above facts were developed. While Wilson was on the witness stand for the government, and after testifying that the key, diagram, and instructions were received from a member, he was asked on cross-examination, "Who was the member?" The government's attorney objected to the question on the ground (page 69 of the record) "that it is clearly against public policy on the part of an officer of the United States to divulge the source of his information in regard to a violation of the law, particularly of a felony." The court overruled the objection and directed the witness to answer the question, which the witness refused to do, stating: "Your Honor, I will have to tell you that that was given to me in confidence and I can not with honor disclose it." It further appears that Wilson was prohibited from giving such information under paragraph 51 of section VI, Regulations 4, Manual of Instructions for Officers and Agents in Field, Bureau of Prohibition. The Court, after admonishing the witness of the effect of his action, ...