a question as to whether he would agree to an additional examination of his books and records by Special Agents from the Internal Revenue Service, he did answer questions which amplified testimony previously given by him about moneys paid on behalf of Raymond Cohen.
Again summoned with his records before the same Grand Jury on Thursday, April 12, 1962, he appeared with his records and invoked the Fifth Amendment, stating that he refused as an individual to turn over his records to the internal Revenue Service for examination and would refuse to discuss further his financial transactions on the basis that answers to the questions might tend to incriminate him in the light of the new direction of the inquiry, to wit, income tax evasion.
An oral motion was made to the undersigned on April 12, 1962 to compel the witness to give answers to certain questions and for a direction to him to turn over his records to the Grand Jury for examination by the Internal Revenue Service. The Court orally refused the motion but stated that if a hearing were desired, one would be granted. The hearing was requested and was held on Tuesday, April 17, 1962, attended by the Special Attorney of the United States Department of Justice, the witness, his counsel, and the Grand Jury. The thrust of the Government's argument in support of its motion is that the witness, by appearing and testifying and exhibiting his records which are now in his possession, has waived any privilege and must produce his records and testify fully in respect thereof. The contention of the witness, through his counsel, is that with the change of the ground rules and with himself being the target of an income tax investigation, he has made timely claim of privilege.
The Government cited the case of Blair v. United States, 250 U.S. 273, 39 S. Ct. 468, 63 L. Ed. 979 (1918) as illustrative of the scope of a Grand Jury investigation and cites Ballantyne v. United States, 237 F.2d 657 (5 Cir., 1956) and United States v. St. Pierre, 132 F.2d 837, 147 A.L.R. 240 (2 Cir., 1942) in support of its contention. The witness cites United States v. Miranti, 253 F.2d 135 (2 Cir., 1958) in support of his claim of timely privilege.
The Court has carefully read the testimony of the witness before the Grand Jury. While the testimony relates rather unusual circumstances in connection with the purchase of a boat, a bank loan, purchase of insurance stocks, and the placing of an insurance contract, there cannot possibly be gathered from the four corners of his testimony any admission on his part of confession that any crime had been committed by him or anyone else. This immediately distinguishes and makes completely inapposite the case of United States v. St. Pierre, supra, upon which the Government places such great reliance. Judge Learned Hand properly held in that case that where a witness has confessed all the elements of a crime he nay not withhold the details. This situation is not present in the instant case. In connection with possible kickbacks to Raymond Cohen, a violation of what are loosely termed 'labor laws', the witness did not appear to be other than cooperative. It may well be possible that the transactions which the witness has admitted he had with Cohen, together with checks, vouchers, etc., in connection with those matters which he at one time produced before the Grand Jury and which apparently were not examined, although actually in the custody of the Grand Jury, may, with other evidence, contain incriminating evidence when viewed in the light of an income tax violation case. The Court finds that the witness never waived any privilege in respect of testimony concerning his income tax liability.
The decisions of the United States Supreme Court have in recent years liberally construed the protection afforded by the Fifth Amendment. Curcio v. United States, 354 U.S. 118, 77 S. Ct. 1145, 1 L. Ed. 2d 1225; Grunewald v. United States, 353 U.S. 391, 77 S. Ct. 963, 1 L. Ed. 2d 931; Trock v. United States, 351 U.S. 976, 76 S. Ct. 1048, 100 L. Ed. 1493; Hoffman v. United States, 341 U.S. 479, 71 S. Ct. 814, 95 L. Ed. 1118; Emspak v. United States, 349 U.S. 190, 75 S. Ct. 687, 99 L. Ed. 997.
The Court holds in the instant case that the claim of privilege has been timely asserted; that it has not been waived. The motion of the Government to compel the witness to further answer before the Grand Jury and to turn over his records to the Grand Jury is DENIED, witness's constitutional plea is SUSTAINED, and it is SO ORDERED.
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