Before BIGGS, Chief Judge, and MARIS and HASTIE, Circuit Judges.
This is an appeal from a judgment of the United States District Court for the Eastern District of Pennsylvania finding the appellant, Irving Greenberg, Guilty of criminal contempt of court.
It appears that the appellant had been subpoenaed as a witness before the grand jury which was investigating the violation of various federal laws. He had answered many of the questions propounded to him but certain of them he declined to answer upon the ground that his answers thereto might tend to incriminate him of a federal crime. The appellant was then brought before the district court where his claim of privilege was challenged by the Government. The court, after hearing, found that there was no real or substantial danger of such incrimination and ordered the appellant to return and answer the questions before the grand jury. The appellant reappeared before the grand jury as directed but again refused to answer some of the questions upon the same ground.
Thereafter the grand jury filed in the district court a presentment against the appellant charging him with criminal contempt. The presentment charged that the appellant (a) had given obstructive and contumacious answers to the questions propounded to him before the grand jury and had thereby willfully, deliberately and contumaciously shut off and blocked the search for truth, thwarted the investigation of the grand jury and obstructed the administration of justice; and (b) had willfully, contumaciously and deliberately disobeyed and resisted the lawful order and command of the court by willfully and deliberately refusing to obey the order of the court to answer before the grand jury the questions in controversy. Charge (a) involved a violation of clause (1) of Sec. 401 of title 18, United States Code, Annotated, and charge (b) involved a violation of clause (3) of that section.*fn1 After a trial upon the presentment the district court found the appellant guilty of criminal contempt and sentenced him to undergo imprisonment of five months.
The questions which the appellant refused to answer and which were the subject of the presentment against him fall into three groups. The first is represented by the question "Are you in the numbers business now?" The second followed an affirmative answer by the appellant to the question "Do you know any number writers around there [referring to 1133 West Diamond Street, Philadelphia], men who are in the numbers business?" The next question, which appellant refused to answer, was "Who?" The final group of questions involved the appellant's admitted use of a telephone at 1133 West Diamond Street. The appellant had been asked "Do you use that phone in connection with your business?" and he had answered: "Not for my lawful business." He was then asked the questions: "Do you use it for any other business?" "And what business do you use it for?" He refused to answer these two questions. In each case his refusal to answer was, as we have stated, based upon his assertion that the answer would tend to incriminate him of a federal offense.
In the argument before this court the alleged incriminatory nature of an affirmative answer to the first question "Are you in the numbers business now?" was discussed at length. However, it appears from the record that this problem is not before us since the district court based the finding of contempt solely upon the appellant's refusal to answer the second and third groups of questions above mentioned and did not find that the appellant's refusal to answer this first question was a contempt of the court's order. We, therefore, do not here consider its alleged incriminatory character.
Moreover, the district court found the defendant guilty of criminal contempt only in that he had disobeyed the lawful orders and commands of the court, a violation of Sec. 401(3) of title 18, United States Code, Annotated. It did not find him guilty of the charge made in the presentment that he had willfully, deliberately and contumaciously shut off and blocked the grand jury's investigation by his refusal to answer its questions, thereby obstructing the administration of justice, misbehavior which would be a violation of Sec. 401(1) of title 18, United States Code, Annotated. Accordingly we do not have to consider whether the appellant, in claiming his constitutional privilege under advice of counsel, as he did, could be convicted of a criminal contempt consisting of misbehavior obstructing the administration of justice in violation of Sec. 401(1), as charged in the presentment of the grand jury. Certainly the assertion of a constitutional right if made in good faith on advice of counsel could hardly be described as such misbehavior.
Since the appellant admitted at his trial that he had disobeyed the order of the district court by refusing to answer before the grand jury the questions which the court had ordered him to answer and since his conviction of criminal contempt was based solely upon the finding that he had disobeyed a lawful order of the court, the only question properly before us on this appeal is whether the order of the district court to answer the second and third groups of questions was lawful. This turns upon whether or not the court was right in over ruling the appellant's claim of privilege against self incrimination with respect to these questions. It does not depend, as the appellant asserts, upon whether the questions were relevant, competent or material to the grand jury's inquiry, for this was of no concern to him as a witness before that body. Nor does it depend upon whether or not the witness was himself under investigation by the grand jury. Blair v. United States, 1919, 250 U.S. 273, 39 S. Ct. 468, 63 L. Ed. 979. For he is entitled to assert his constitutional privilege against self incrimination regardless of that fact and in doing so was not, as we shall point out later, required to prove that the grand jury or the government actually had incriminating evidence against him. We turn then to the question properly before us.
In Camarota v. United States, 3 Cir., 1940, 111 F.2d 243, certiorari denied 311 U.S. 651, 61 S. Ct. 16, 85 L. Ed. 416, and very recently, with respect to questions asked a witness before this same grand jury, in United States v. Hoffman, 3 Cir., 1950, 185 F.2d 617, this court has had occasion to consider the extent of the privilege against self incrimination under the Fifth Amendment.We have followed Chief Justice Marshall's enunciation of the test in U.S. v. Burr (In re Willie), 25 Fed.Cas. p. 40 No. 14,692e, that: "When a question is propounded, it belongs to the court to consider and to decide whether any direct answer to it can implicate the witness. If this be decided in the negative, then he may answer it without violating the privilege which is secured to him by law. If a direct answer to it may criminate himself, then he must be the sole judge what his answer would be."
If, however, a direct answer to the question cannot under the particular circumstances of the case upon any reasonable theory disclose a fact which is, in the words of Chief Justice Marshall, "a necessary and essential part of a crime"*fn2 the question must be answered. To support the claim of privilege the danger must be real, not remote or fanciful. It must appear that the answer to the question may disclose a fact which will supply a link in the chain of evidence which is necessary to establish the commission of a crime by the witness. Mason v. United States, 1917, 244 U.S. 362, 37 S. Ct. 621, 61 L. Ed. 1198. It is not enough that answers to anticipated later questions might do so. Camarota v. United States, 3 Cir., 1940, 111 F.2d 243, certiorari denied 311 U.S. 651, 61 S. Ct. 16, 85 L. Ed. 416. Applying this rule the district court considered the questions here involved and decided that direct answers to them could not incriminate the appellant of any federal crime. We are satisfied that the court was right in so holding with respect to each of the two groups of questions in controversy on this appeal.
We take up first the group of questions relating to the use of the telephone at 1133 West Diamond Street, Philadelphia.The appellant had stated in reply to previous questions that he had regularly used that telephone but that he had not used it for his lawful business. He declined, however, to answer questions as to whether he used it for any other business and, if so, for what business, claiming that to answer would incriminate him.
It must be conceded that some possible answers to a question as to a witness' business may be incriminating under the federal law. The witness may be by occupation an illicit dealer in narcotics, an illicit distiller or a counterfeiter. However, as this court pointed out in United States v. Hoffman, supra, "the question * * * is so frequently asked of witnesses as a mere identifying question that without more a court may well regard it as normally too innocent to fall within the Marshall principle." Accordingly the witness "must show the court enough beyond his bare statement of crimination at least to indicate that his claim was not clearly groundless, a contumacious assertion made in bad faith." [185 F.2d 621.]
It is not necessary, of course, for the witness to prove that his answer would actually be incriminating, for to do so would be to lose the privilege in establishing it. Accordingly he need not prove that the government has in its possession or that the grand jury has secured from him or from other witnesses evidence which when the answer to the question under attack is added, will be sufficient to complete the chain of evidence needed to convict him of federal crime. Here, as we shall see, the court was justified in concluding that a direct answer could not reasonably form a link in that chain. Accordingly the court did not err in refusing appellant access to the grand jury minutes and to the files of the government.*fn3 Where, as here, the question was innocent on its face all that the appellant was required to do was to satisfy the court that there was a reasonable possibility of ...