Brown v. United States – Oral Argument – October 16, 1958 (Part 2)

Media for Brown v. United States

Audio Transcription for Oral Argument – October 16, 1958 (Part 1) in Brown v. United States

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Earl Warren:

Mr. Shapiro, you may continue.

Myron L. Shapiro:

Thank you.

May it please the Court?

At the recess, I had indicated that — at the stage of the proceedings where the petitioner was put on the stand by the district judge over the objection and the questions have been put to him, he refused to answer – answer them, he had been directed to answer them and he had refused, all on the ground of self-incrimination.

He was asked two more questions by the district judge.

Question number 1, was whether he would maintain his refusal to answer, if he was sent back to the grand jury room and the other was whether he believed that his answers to those questions would really incriminate him?

To both those questions, objections were made and the petitioner refused to answer.

Hugo L. Black:

Did he (Voice Overlap) —

Myron L. Shapiro:

You see — I’m sorry.

He refused to answer the one about whether he believed his privilege would incriminate him, but he did say that if sent back to the grand jury room, he would refuse to answer.

The — the Government indicated in the argument on sentence that its position was that a substantial sentence could be – should be imposed because the petitioner was not only obstructing this investigation, but also the investigations by the other grand juries in which he had appeared.

The basic question before the District Court was whether Section 305 (d) of the Motor Carriers Act —

Earl Warren:

May I ask —

Myron L. Shapiro:

Yes, sir.

Earl Warren:

— had there been anything in the case up to that time to – to indicate that he did not have the right to claim the privilege in the other – in the other grand jury investigations?

Myron L. Shapiro:

No, sir.

The – the only reference that the Government made to the right to claim the privilege in the other grand jury investigations was on the sentence when the Assistant U.S. Attorney argued that his refusal here to answer in face of the purported immunity statute, indicated that his claim of privilege in the other investigations was not made in good faith.

William J. Brennan, Jr.:

Did the trial judge indicate that that was a factor consistent to the count of fixing the sentence?

Myron L. Shapiro:

No, sir.

As a matter of fact, when I argued that were – that what the U.S. Attorney was asking for was punishment for what he had done in the other investigations, the district judge, I believe, said that that didn’t matter here, that he was concerned only with this investigation.

Earl Warren:

What was that you said just before my question?

I understood you say that judge had said something about he took into consideration the fact that he had not answered before other grand juries.

Myron L. Shapiro:

No, the Government had argued that they should take into consideration.

Earl Warren:

Oh!

I see.

William J. Brennan, Jr.:

But I gather, the judge would face and rather indicated that that argument is (Inaudible) question.

Myron L. Shapiro:

No.

He said that he didn’t understand that the Assistant U.S. Attorney was arguing for that approach to the sentence by the Court.

Tom C. Clark:

He have had to —

Myron L. Shapiro:

I beg your pardon, sir.

Tom C. Clark:

He have had the party that he had immunity to the judge —

Myron L. Shapiro:

On the first time that we appeared before the Court, after the petitioner had refused to answer in the grand jury room and after arguing was had on the question of whether immunity applied, the judge, in his ruling on April 8th, which appears on page 34, 35 of the record, stated that in his opinion, there was immunity and that therefore, the petitioner was obligated to answer and therefore, he advised him that he had immunity.

Tom C. Clark:

That he actually refused to answer.

Myron L. Shapiro:

That’s right Your Honor.

The basic question on the immunity point here is whether Section 305 (d), which appears at page 33 of petitioner’s brief, extends the immunity of Section 46 of the original Interstate Commerce Act to investigations before the – before a grand jury investigating violations or offenses under Section 322 of the Motor Carriers Act.

Section 305 (d), it has two clauses and the – at the beginning of the section, it says that, “So far as maybe necessary for the purposes of this chapter” and then it goes on to say that, “The Commission and the members and the examiners in the joint boards shall have the powers to subpoena witnesses to require the production of documents and to take testimony by a deposition relating to any matter under investigation as the Commission has in the matter arising under Chapter 1 of this title.”

This first clause was separated from the second clause by a semicolon and it goes on to say, “And any person subpoenaed or testifying in connection with any matter under investigation, under this chapter, shall have the same rights, privileges and immunities and be subject to the same duties, liabilities and penalties as though such matter arose under Chapter 1 of this title, unless otherwise provided in this chapter.”

It is it is our contention that before an immunity statute can be deemed to extend to a particular tribunal, authorization must be found in the statute for that body to give immunity.

In Section 46, which also appears at page 33, it is the language in any cause or proceeding, criminal or otherwise, which this Court in Hale versus Henkel sufficed to extend the immunity power to the grand jury, because it was there held that the — a grand jury inquiry was equivalent to a criminal case or the same as in the criminal case and that Congress, by the use of this language, extended the immunity power to grand juries.

The question here is whether the language of incorporation in 305 (d) took into that section the language “or in any cause or proceeding, criminal or otherwise.”

It is our position that the Congress here was dealing with the power of Congress and that — power of the Commission and that it was dealing with its powers to take testimony to require the — the appearance of witness and — witnesses and the production of papers and documents and that it was not concerned with the power of the grand jury.

Congress need not or did not have to give the grand jury power to investigate because the grand jury, I believe, would have the inherent power to investigate the possible violations under the Motor Carriers Act.

Felix Frankfurter:

It’s clear as in your argument, they’re only suggestion, but it’s the Commission that is giving the immunity.

Is that a wrong impression of mine?

Myron L. Shapiro:

No, I’m not suggesting that.

What I am suggesting, Your Honor is that under 305 (d), only the Commission in one of its investigations under the Motor Carrier’s part of the Interstate Commerce Act could give immunity.

Felix Frankfurter:

Well the Commission never gives immunity.

The Commission doesn’t give immunity.

Myron L. Shapiro:

Well, by subpoenaing a witness in an investigation under the Motor Carriers Act, you would thereby give immunity because —

Felix Frankfurter:

And the Commission elicits information and that — and the court in for whom — the refusal to answer is brought upon the insistence of the Commission, they then decide whether it could be held.

The Commission has no — the Commission is not an immunity-giving agency.

Myron L. Shapiro:

I understand Your Honor’s point, but it’s the initial act of the Commission.

If the Commission subpoenas a person to testify what remains for the Court deter — to determine as whether, it was the compulsory process of the Commission and whether this man testified pursuant to this compulsory process and therefore, achieved the statutory immunity.

But there must be the initial act of the Commission.

Felix Frankfurter:

I understand that the Congress, if he chooses can say a court should compel testimony that is sought by the Commission and not the testimony that is sought by a grand jury.

Myron L. Shapiro:

That is —

Felix Frankfurter:

(Inaudible)

Myron L. Shapiro:

That’s right.

Felix Frankfurter:

And therefore, you have to contend that the legislation appropriately construed means that, not against.

Myron L. Shapiro:

That’s correct Your Honor.

Felix Frankfurter:

And that if the – if a grand jury makes an investigation regarding violations of the Interstate Commerce Act and the Motor Carrier Act, the grand jury can be stopped by a fellow saying, “I don’t want to testify.”

Myron L. Shapiro:

That is right Your Honor.

Felix Frankfurter:

That’s your case.

Myron L. Shapiro:

That, in essence, is my position because there — because the — first of all, the language of Section 305 (d) in my view, is not sufficient to extend the — the Act or the power to commit an act to admit — giving immunity to a grand jury.

It restricts it, in my opinion, to the Commission.

Furthermore, the — there is a basis —

Now, are you – you’d read end of the portion of – or you — you say the portion of the 305 (d) that follows a semicolon should read, “any person subpoenaed to testifying in connection with any matter or investigation before the Commission,” that’s what you —

Myron L. Shapiro:

By or —

(Voice Overlap) —

Myron L. Shapiro:

— before the Commission, yes.

Does the Motor Carrier Act carry a criminal sanction of its own?

Myron L. Shapiro:

Yes, it does.

It has separate criminal offenses.

It — the difference between it and the original Interstate Commerce Act is that in the original Act, they carry jail penalties as well as fines, while in the Motor Carriers Act, except for some violations affecting commission personnel, I believe, they carry only fines.

The violations, for which this man was being investigated, would carry only fines.

But there be no — under your construction in 305 (d), there would be no immunity statute applicable to such — for a print — investigations of criminal violations?

Myron L. Shapiro:

By a grand jury under the Motor Carriers Act.

Now, there is — there is a difference between the original Interstate Commerce Act and the Motor Carriers Act in that in Section 12, which describes the power of the — of the Commission.

There’s also a provision that it shall be the duty of the United States Attorney of a particular district to conduct enforcement proceedings upon the request of the Commission.

There is somewhat different statutory scheme, as I see it, in the original Act, than there is in the Motor Carriers Act.

While it might be said that the first clause of the Section 305 (d) carries over some of the provisions of Section 12, this particular part of the — of Section 12 is not carried over into the — into the Motor Carriers Act.

Incidentally, Section 12 appears at page 20 — a footnote in page 22 of the brief for United States.

Felix Frankfurter:

Will you please tell me Mr. Shapiro whether the Motor Carriers Act has some regulatory scheme substantially comparable to the regulatory scheme of rail carriers.

In other words, must tariff be filed?

Myron L. Shapiro:

I believe so Your —

Felix Frankfurter:

Are the classifications of commodities, rates —

Myron L. Shapiro:

I believe so, Your Honor.

Felix Frankfurter:

Are there prohibitions against rebates and discriminations?

Myron L. Shapiro:

Yes, Your Honor.

Felix Frankfurter:

And there are criminal sanctions, violations of those prohibitions?

Myron L. Shapiro:

Yes, Your Honor, but there are, for example, there’s an omission of the civil sanction which is in the original Act, which is not in the Motor Carriers Act.

That is where one carrier diverts revenue or traffic from another carrier, there is a private remedy for damages which accrues to the injured carrier, which does not accrue in the Motor Carriers Act.

There are differences in penalties.

There are differences based – not basic, but specific differences between all four parts of the — of the Interstate Commerce Act as now embodied in Title 49.

The basic regulatory scheme that the Commission at the top and the prohibitions against discrimination and so forth, continue in all four chapters, four parts, but as far as the specific different enforcement provisions, there are differences.

For example in one part, I think it is the freight forwarders part, there is an amnesty provision for giving all that has been done by any of the parties subject to it, prior to the enactment and there’s no such provision in any of the other three parts.

Felix Frankfurter:

What — what reason, assuming the question isn’t crystal clear, to me one has to do some construction and further bearing in mind that the immunity statute, the first immunity statute, I think, that we have a general kind that Congress passed related to the Interstate Commerce Act, what considerations or policy, if one is left in doubt, should one — should be the one to assume that Congress meant to block grand jury investigations regarding criminal violations of the Motor Carrier Act, which applied would as against not allowing such refusal to testify to block investigation of the Interstate Commerce Act.

Myron L. Shapiro:

I have found nothing in the record, Your Honor.

I can speculate, if Your Honor wishes me to, but there are —

Felix Frankfurter:

I’m starting out with the assumption that the statute isn’t at least, ambiguous to put it my way.

Myron L. Shapiro:

Yes, but any answer I will give, Your Honor, would be speculation.

Felix Frankfurter:

Well, but there must be an act —

Myron L. Shapiro:

I can find certain —

Felix Frankfurter:

(Voice Overlap) —

Myron L. Shapiro:

— internal evidence in the statute as to why there would be a difference.

I think one reason is the — the omission to incorporate the provision of Section 12 of the original Act that it shall be the duty of the United States Attorney in their respective districts to prosecute or enforce the Act upon the request of the Commission.

There, the pattern was and the idea was as it is in the securities acts that there would be no grand jury investigations throughout the United States, without the Commission doing — having some part in it, so that where the Commission might be contemplating some kind of an investigation on a major matter, in some district in the remote part of the country, some United States Attorney could start a grand jury proceeding and give immunity and prevent the Commission from coming to the natural conclusion of its investigation perhaps, that is of the criminal prosecutions.

Felix Frankfurter:

Do you think it requires the Commission request to make the U.S. Attorney make an investigation of an alleged violation of the criminal statute of the United States?

Myron L. Shapiro:

Well, I am —

Felix Frankfurter:

That is my notion.

That is my understanding of it.

A complaint (Voice Overlap) —

Myron L. Shapiro:

I would say this —

Felix Frankfurter:

— returning all sorts of a —

Myron L. Shapiro:

I would say this, Your Honor.

That under the securities acts, the immunity provisions of the various — of the various security regulatory statues, there can be no immunity granted by any grand jury, unless that investigation was instituted at the request of the particular Commission — of the Securities and Exchange Commission.

Felix Frankfurter:

Is that a specific statute?

Myron L. Shapiro:

Yes, Your Honor.

Felix Frankfurter:

Let’s have it.

Myron L. Shapiro:

If you will look at page 49 of my brief, Securities Exchange Act, Title 15, U.S.C.

Felix Frankfurter:

Just a sec — 49 of —

Myron L. Shapiro:

Page 49 of petition’s brief.

Felix Frankfurter:

Yes.

Myron L. Shapiro:

Then on page 48, the Investment Companies Act.

Felix Frankfurter:

What is on 49?

Myron L. Shapiro:

49, the Securities Exchange Act at the top of the page provides that no person can be excused from testifying in any cause or proceeding instituted by the Commission on the ground that the testimony or evidence, documentary or otherwise required by him may tend to incriminate him or subject to a penalty of forfeiture.

Tom C. Clark:

That’s (Inaudible)

Myron L. Shapiro:

Well —

Tom C. Clark:

That’s not error.

Myron L. Shapiro:

Well, I would assume that it — the word’s cause or proceeding would cover a criminal case, too.

Tom C. Clark:

Instituted by the Commission.

Myron L. Shapiro:

Well, I would say to that, Your Honor, that a recommendation by the Commission to the Department of Justice or to a specific United States Attorney requesting prosecution would be the institution of that cause or proceeding, within the meaning of that Act.

Felix Frankfurter:

Anyhow, that’s not to your reply brief.

Myron L. Shapiro:

That’s not —

Felix Frankfurter:

(Voice Overlap) different provision.

Myron L. Shapiro:

I beg your pardon?

Felix Frankfurter:

That is a — 78 (u) of Securities Exchange Act means a very different set of words than 305 —

Myron L. Shapiro:

That is right Your Honor.

What I’ve been saying is that in Section 12, which as I say appears on page 22 of the Government’s brief, on page 23 is the particular provision says “Upon the request of the Commission, it shall be the duty of any United —

(Voice Overlap) —

Myron L. Shapiro:

-– page 23 of the footnote above the 56th line down.

“Upon the request of the Commission, it shall be the duty of any United States Attorney to whom the Commission may apply to institute in the proper court and to prosecute under the direction of the Attorney General, all necessary proceedings for the enforcement of the provisions of this chapter and for the punishment of all violations thereof.”

Now, under that, passing the question of whether this is obligatory or not, that is whether a prosecution or investigation could be started with — under this provision without the request to the Commission, the scheme of the Act is that there is not going to be anything done unless the Commission has a hand in it and that as far as immunity is concerned, it maybe that this language is not strong enough to take away the power of the grand jury to investigate a particular offense, but we’re not dealing with the power of the Commission — of the grand jury to investigate, we’re dealing with the question of immunity.

And the statutory scheme in the original Act shows that as far as the Congress was concerned, it had in mind its protection in Section 12, that there would not be any investigations unless the Commission went along with it and was — had some control over them.

Now, I say in answer to this question about what the policy is, I say that the draftsmen perhaps, had in mind that they were not taking in this provision of Section 12 into Section 305 or any other part of the Motor Carriers Act, and therefore, did not want to have any immunity power in the grand jury in the sense that the grand jury could do an act which would give a possible subject of the Commission investigation immunity in a subsequent criminal proceeding.

Felix Frankfurter:

But it says under investigation, under this chapter, what do you make of that phrase, under this chapter?

Does that chapter create criminal offenses which it is the primary duty of the U.S. Attorneys throughout the country to investigate, if the matter is properly brought to their attention and the investigation by U.S. Attorneys is before a grand jury, normally?

Myron L. Shapiro:

Yes, Your Honor.

But —

Felix Frankfurter:

The word, under this chapter, is not a restriction.

Felix Frankfurter:

Under — by proceeding thwart by the Commission under this chapter.

Myron L. Shapiro:

Well, there is this, Your Honor.

It says with any matter under investigation under this chapter.

Felix Frankfurter:

Under this chapter?

Myron L. Shapiro:

Yes.

Felix Frankfurter:

And therefore, if under this chapter, the United States Attorney brings matters to the attention of a grand jury, why wouldn’t it come under the — had clause under this chapter any investigations under this chapter not under — under investigation instituted by the Commission under this chapter.

Myron L. Shapiro:

Because in the prior clause, if Your Honor please, it says relating to any matter under investigation, so that we really have in the second clause merely a repetition of the language relating to any matter under investigation.

Now, this is not new language in the Interstate Commerce Act referring again to Section 12, dealing solely with the power of the Commission.

Congress also used the language, to any matter under investigation.

Now, in Section 46, when Congress wanted to extend the immunity power to the grand jury, they didn’t say to any matter under investigation.

They said in any cause, in any case or proceeding, criminal or otherwise and these are commonly the words of art that are used to extend the power of grand juries to include immunity and this does not appear in Section 305 (d).

Felix Frankfurter:

If it — Congress has to be specific in giving authority to the Commission to issue subpoenas and as you surely know, the Commission makes a lot of none investigations having no relation to criminal investigation or potential criminal investigation.

Myron L. Shapiro:

That is right.

Felix Frankfurter:

The Commission makes any number of investigations regarding rates or practices or matters to be brought to get attention of commerce.

Some times the Commission has been spoken of as the (Inaudible) committee of the Congress regarding not only existing legislation, but desirable future legislation.

And therefore, the legislation has to be specific to authorize it to issue subpoenas in all such investigations and for which it can say you have no power to ask you to testify.

Myron L. Shapiro:

Yes, Your Honor, but the — the statute also has to be specific to give the grand jury the power to grant immunity, because I believe —

Felix Frankfurter:

That is right.

Myron L. Shapiro:

— that a grand jury has no inherent power to grant immunity.

Felix Frankfurter:

Now, the —

Myron L. Shapiro:

And you can’t — I don’t believe you can stretch the language —

Felix Frankfurter:

That is (Voice Overlap) —

Myron L. Shapiro:

— as far as the grand jury is concerned, to give it power to grant immunity, if — if it doesn’t appear for — plainly on the face of the statute.

Felix Frankfurter:

The grand jury, if I may suggest, doesn’t grant immunity.

Myron L. Shapiro:

Well, I am the —

Felix Frankfurter:

We’ll have to find a general clause covering the power of a court to compel testimony and to return therefore, to give equivalent immunity.

Myron L. Shapiro:

Then I agree with Your Honor, but the grand jury through the process of the Court may do an act which would entitle a man to immunity under specific statute.

And before that, the impact that he’ll have, there must be a specific statute which extends to that point.

Felix Frankfurter:

Your argument is that the phrase in the second -– in the second clause of 305, “and any person subpoenaed or testified in connection with any matter under investigation is limited as the prior cause of limitation.”

Myron L. Shapiro:

That’s right, Your Honor.

Felix Frankfurter:

That’s the case.

Myron L. Shapiro:

As far as this phase of the immunity is concerned, that is the case, Your Honor.

Now, the second phase of an immunity questions is whether the immunity granted is coextensive with the privilege.

It is also our position, referring again to Section 305 (d) in page 33 of our brief, that since it starts with the language, so far as maybe necessary for the purposes of this chapter, that this serves to whittle down the immunity.

That this does not make it as extensive as the privilege, because there maybe many things asked in the course of this inquiry, which are not necessary for the purposes of an investigation under this chapter of this part of the Interstate Commerce Act, namely, the Motor Carriers Act, and therefore, under the specific provision of this Act, he may not — the petitioner may not obtain immunity.

Felix Frankfurter:

But that limiting clause doesn’t belong to the second — that limiting phrase — that qualifying phrase, also must be implied into the second clause.

It isn’t there.

Myron L. Shapiro:

Well —

Felix Frankfurter:

It simply equates the second clause and equates rights, privileges and immunity to those defined by Congress in Chapter 1 of this title.

Myron L. Shapiro:

Well, I — I read it definitely, Your Honor, because I believe that starting so far as maybe necessary for the purposes of this chapter with a comma, it then goes on the Commission and the members will have these powers.

I don’t think that in the matter of statutory construction that the semicolon plays any role here and that the limiting clause — the limiting phrase at the beginning, limits the latter part, the second clause of the statute.

That’s our position in any event.

Now, with — like in the minutes that remain, to get to the procedural point that is involved here and that is what transpired in the courtroom which resulted in this petitioner being convicted of criminal contempt.

The question basically there is whether Rule 42 (b) means anything in the administration of contempts involving the recalcitrant grand jury witnesses or Rule 42 (a) which provides for the summary punishment of the grand — recalcitrant grand jury witness, as — for something theoretically done in the presence of the Court, should — should govern.

The Rule 42, both (a) and (b) appear at page 37 of my brief.

The Court of Appeals took the position that the position that the proceedings in the court on April 8 were ancillary to the grand jury investigation and that the judge was merely being advised as to what transpired in the grand jury room and insofar as the petitioner being compelled to take the stand in the courtroom, Judge Lumbard said, “It made no difference” and Brown remained mute, page 62 of the record and refused to speak at all, the result that would have been the same.

In other words, the Court of Appeals considered that the petitioner was convicted of criminal contempt for refusing to answer the questions before the grand jury and this is evident from his statement and that also at page 53, the very — the very beginning of his opinion, page 53 of the record, “The Government now, however — however, now takes the position that if petitioner were to be convicted for what went on in the grand jury room after he has been directed to return there and answer, that there would have had to be a proceeding under Rule 42 (b), that is there would have to be notice, specification of charges and the description of the nature of the criminal contempt and an opportunity to prepare and defend — and the right to bail and so forth, that’s provided in Section 42 (b).”

The Government, however, still seeks to sustain this conviction under Rule 42 (a) and it therefore reverts to the theory of the District Court that this was a continuance of a grand jury proceeding.

That is now — we now have in the Southern District, a judge grand jury tribunal and although you have the judge there, you have the clerk of the court and all the requirements of Section — Rule 6 of the Criminal Procedure are violated to have a valid grand jury proceeding continuing before the court and that the petitioner could have been compelled before the court to answer these questions.

And that for his refusing to answer these questions before the court and the grand jury is judged grand jury tribunal, he is to be held in contempt under Rule 42 (a) of Criminal Procedure.

Have these procedures been used in the district for many years?

Myron L. Shapiro:

For a number of years and there’ve been other procedures followed in the Southern District.

There have been —

(Inaudible) Federal Rules —

Myron L. Shapiro:

No.

(Voice Overlap) —

Myron L. Shapiro:

I —

— it saves all the delay wherein the grand jury is allowed to summon back again and so forth and had this done that’s practice of the court on the rule (Inaudible)

Felix Frankfurter:

Will — will you be good enough to state what it is you think is necessary under the rule?

Myron L. Shapiro:

My —

Felix Frankfurter:

In this case.

Myron L. Shapiro:

In this case?

Felix Frankfurter:

After Judge Levet said, “Yes, you must stand.”

Myron L. Shapiro:

After —

Felix Frankfurter:

(Voice Overlap) of the grand jury rule, he says I stand (Inaudible)

Myron L. Shapiro:

That’s right.

Felix Frankfurter:

Now what — what do you see the rule requires?

Myron L. Shapiro:

The rule require — Rule 42 (b) requires in no equivocal terms, but he get — receive a notice stating the time and place of hearing and allowing a reasonable time for the preparation of defense and shall state the essential facts constituting the criminal contempt charge in describing it as such.

William O. Douglas:

The prosecutor need rather than (Inaudible)

Myron L. Shapiro:

That’s right, Your Honor.

Charles E. Whittaker:

It is not (Inaudible) didn’t you really have the three days notice and the specification orally by the judge of what was going on?

Myron L. Shapiro:

No.

(Inaudible) First of all, there was — there was no notice in that sense in that we were not in a position to do the things which might be necessary for the defense of this man in this period of time.

Assuming that that were notice, there was no opportunity to do anything because we were not at the position where the contempt was charged.

The point here is that there is no contempt in the Southern District until the judges put the questions to him on the second time and what it was merely a request by the grand jury for the aid and assistance of a court in obtaining answers, automatically becomes a contempt when the man refuses to answer those questions which the court is seeking to get answers for the aid and assistance of the grand jury.

Now, it would seem to me that if you — that if the Government or would’ve take the position or receive notice on April 5th, that is when the Court made its direction, then the error —

William J. Brennan, Jr.:

That was Friday.

Myron L. Shapiro:

Friday, yes.

William J. Brennan, Jr.:

(Voice Overlap) upon.

Myron L. Shapiro:

Then the — there is a basic error by the District Court in compelling mine — my client to take the stand because there is a criminal contempt proceeding.

It is a crime pending.

It’s a criminal case and he’s being compelled to take the stand in the courtroom to testify against himself.

And therefore, the procedure assuming that Your Honor was right, that there may have been notice when the direction was first given, it leads to a position that my man’s constitutional rights have been violated in that the court made him take the stand and testify —

(Voice Overlap) —

Myron L. Shapiro:

— and that —

— instead of answering the judge’s question, he stood mute and said nothing.

Myron L. Shapiro:

Well and I don’t know —

Same situation as he — he’s in — the result of answering the question.

Myron L. Shapiro:

No.

I — I do not believe so because then there would not be any contempt in the presence of the court.

Myron L. Shapiro:

He was found, if Your Honor would look at the certificate on page 5, he was not found guilty of contempt for refusing to answer the questions in the grand jury.

He was found guilty of — of contempt for refusing to answer the questions before the court and in the presence of the grand jury at this time in April 8th.

He wasn’t convicted of what he did when he went up in the grand jury room.

A matter of fact, the Government doesn’t argue that he was convicted of — for what went on at the grand jury room.

They say that the district judge was being charitable and generous and not considering the contempt complete in giving up — an opportunity to commit an act of penitence.

And that, when he then refused to answer in the presence of the court, that therefore, the — and grand jury, excuse me, that the contempt was then committed in front of the grand – in front of the court.

Felix Frankfurter:

Was there anything in this record to indicate that he wanted time to think about it and that if he had opportunity for reflection, he might answer?

Myron L. Shapiro:

I cannot strictly say that, Your Honor.

The only thing that —

Felix Frankfurter:

Was there anything that has been negatives of definitive refusal?

Myron L. Shapiro:

No.

No, Your Honor.

There was no negative thing.

As a matter of fact that is one of the points I’d make as far as the position of the Government and the matter of being a continuance of the grand jury and that is that he had definitely took – taken his position in the grand jury room and that carrying on before the court was merely an attempt — an invalid attempt to multiply contempt and that —

Felix Frankfurter:

But there couldn’t be a contempt in the grand jury room.

We constantly come back to that.

Myron L. Shapiro:

Well that — on that —

Felix Frankfurter:

(Voice Overlap) —

Myron L. Shapiro:

I must —

Felix Frankfurter:

— called it as a — it isn’t a technical thing.

Myron L. Shapiro:

On that, I —

Felix Frankfurter:

There is no contempt in the presence of the grand jury room.

It’s the court that must determine where the contempt of his direction.

William J. Brennan, Jr.:

But your point is that when he went back the second time to — and again for question, before the grand jury, he did so notwithstanding the court ordered him —

Myron L. Shapiro:

That’s right.

William J. Brennan, Jr.:

— to answer those questions.

Myron L. Shapiro:

And that contempt, this —

William J. Brennan, Jr.:

Therefore, the contentions of that order, he was sent back to a grand jury (Voice Overlap) —

Myron L. Shapiro:

That’s right, Your Honor.

That’s right.

Felix Frankfurter:

What I wanted to know and I’m afraid I can’t carry my question intelligently, I want to know if there was anything too negative to deny that when Judge Levet told him to answer, he stood his ground and indicated beyond (Inaudible) that he would not answer.

Myron L. Shapiro:

When he went back to the grand jury, he said —

Felix Frankfurter:

But —

Myron L. Shapiro:

— he would not answer.

Felix Frankfurter:

Did he – what?

Myron L. Shapiro:

When he went back to the grand jury —

Felix Frankfurter:

I want to know whether — when he was before Judge Levet —

Myron L. Shapiro:

The first or second?

Felix Frankfurter:

And that would indicate or that anything to indicate when the judge told him to answer, he didn’t in effect say to the judge, “Your Honor, I need not to answer.”

Myron L. Shapiro:

The judge asked him the question, “Would you answer if I sent you back to the grand jury?”

This is on the second time when he was before the judge again and he’s —

Felix Frankfurter:

What was the answer?

Myron L. Shapiro:

The answer was, “I will maintain my refusal, if I am returned to the grand jury,” not in very words, but in substance that’s what he said.

Felix Frankfurter:

All he said, “Notice of your sending me back to the grand jury, Your Honor, I now tell you, it’s a futile thing for you to do and you direct me to answer I refuse to answer.”

Would that have been a contempt of the Court?

Myron L. Shapiro:

I believe it would.

Charles E. Whittaker:

Well, isn’t that what happened to —

Myron L. Shapiro:

No.

Charles E. Whittaker:

— in — in such —

Myron L. Shapiro:

No, not under the – I don’t believe that it — that it was a contempt which would result in a – a conviction of criminal contempt.

Charles E. Whittaker:

No, but didn’t — didn’t Judge Levet say, “If I send you back to the grand jury, will you answer these questions?”

And in fact he said, “No, I won’t.”

Isn’t that right?

Myron L. Shapiro:

Yes, he — he said that if I’m back in the grand jury, I will not answer these questions, if Your Honor please.

If you will look at the citation on page 4 — pages 4 and 5 —

Charles E. Whittaker:

Of what?

Myron L. Shapiro:

There — of the record, there is no reference to his answer to that question.

As a matter of fact, the — the citation — neither citation, nor the order refer at all to that — to his answer or to that question.

Felix Frankfurter:

Mr. Shapiro, suppose the petitioner, after Judge Levet had asked him – had directed him to answer these questions, and the petitioner had said respectfully, standing on what he believes to be his rights, “Your Honor, I will not answer these questions.”

Suppose that judge Levit there said, “Your condemnation — consummation, I — exercising the power that I have, have ordered you to do something you tell me you will not do it” and suppose then and there, he said, “You’re guilty of contempt of the order which I have given you” and then and there, given him the opportunity to get and — you can say something to this, what would be your objection to that procedure?

Myron L. Shapiro:

My objection to the procedure is that the court —

Felix Frankfurter:

That’s the procedure that I’ve indicated, not what the record shows.

Suppose that — may I (Voice Overlap) —

Myron L. Shapiro:

I’m sorry, I don’t seem to follow.

Felix Frankfurter:

Suppose — suppose you put the grand jury — your representations are made to the court, the District Court, District Court hears it, gives you an opportunity to speak for your client and then he says I am sorry.

There is an immunity statute.

I can – well I can (Inaudible) its directions, the privilege is ample, I order you to answer, Mr. Brown and Mr. Brown says either direct it to his counsel, “Your Honor, I regret, but I feel it’s my duty to refuse to carry out what you now directed me to do.”

Myron L. Shapiro:

To answer the —

Felix Frankfurter:

Suppose —

Myron L. Shapiro:

I’m sorry.

Felix Frankfurter:

— and suppose then and there, no use of sending me back to the grand jury room, I don’t need any time for reflection.

I tell you now that I will not carry out your directions.

The judge then and there says that’s contempt of court and I now sentence you to X months or X days or X dollars.

What will be your objection, if that was the record?

Myron L. Shapiro:

If the refusal of the witness is a refusal to return to the grand jury room, Your Honor, then I would say that the Court could consider it a contempt committed in the presence of the court and sentence him to — to whatever 42 (a) permits him to sentence him to.

But if it’s merely a refusal to answer the question, I do — do not believe that where he has once indicated his refusal in the grand jury room that the court can then, passing by the Rule 42 (b) provisions, convict him of criminal contempt under the Rule 42 (a).

Now, I want to make one thing clear in answering to Your Honor, that there was no vacuum of power under my view of the court, the court’s role here.

There is still the inherent power of the court to commit this man without a contempt conviction until he shall answer made to these questions, which was not done here.

He was convicted of criminal contempt here.

He was not committed until he shall make answer.

I see that my time is up.

Earl Warren:

No, you haven’t.

You have until the red light comes up.

Myron L. Shapiro:

Oh, I’m sorry.

Earl Warren:

That’s a five minute — that light Mr. —

Myron L. Shapiro:

Well, I would like to save that time.

Earl Warren:

Yes, you may.

Mr. Davis.

John F . Davis:

Mr. Chief Justice, if it please the Court.

With respect to the question on the construction of the Motor Carrier Act —

William J. Brennan, Jr.:

Excuse me, Mr. Davis.

With respect to your argument (Inaudible) do I understand that under your (Inaudible) before the judge and the judge tells him (Inaudible) have immunity at such, if he doesn’t the judge, I will not answer —

John F . Davis:

No, he didn’t.

No, he did not.

William J. Brennan, Jr.:

He went back to the rand jury room and that doesn’t have to be (Inaudible) and they were forced back toward a non-proceeding answer to the judge.

John F . Davis:

That is right.

William J. Brennan, Jr.:

Thank you.

Felix Frankfurter:

And what did he do when he was brought back?

John F . Davis:

When he was brought back on the second occasion, the — the court — the proceedings when he was brought back were that the court had the minutes read so that it could tell what took place in the grand jury meeting room itself.

And then the court undertook to direct the questions to the respond – to the petitioner directly, the same questions which he had refused to answer and he again refused to answer them to the court.

He was not sworn again.

There was that interim of that question about whether he had already been sworn and it was assumed that he had and the questions were put to him under his prior oath.

He refused to answer on the grounds of self-incrimination and the court said to him then, “And do I understand that if I return you, if I’d send you back to the grand jury room, you will —

William J. Brennan, Jr.:

Send him back the second —

John F . Davis:

Yes, “that you will still refuse to answer there” and he said, “Yes.”

That particular language is on page 43 or 44 of the record.

His answer is, yes, which means, “Yes, I would refuse to answer if I went back.”

The judge asked him the second question about whether he believed that the answers would incriminate him and he refused to answer that question.

Felix Frankfurter:

And what took place after that?

John F . Davis:

After that, the Court says, “By reason of your refusal to answer in the actual presence of the court, I’m forced to act upon the matter and I will hear from counsel” and he heard from counsel again and then he sentenced him for contempt in the presence of the court.

On this question of construction as to whether Congress intended the immunity provision of the Motor Carrier Act, to apply to proceedings before a grand jury, it would be strange indeed, if Congress did not so intend.

A great deal of the history of the immunity provisions of the Interstate Commerce Act and indeed that’s the history of the immunity provisions in our — in our jurisprudence, actually occurred before grand juries, rather than in administrative proceedings.

Counselman against Hitchcock, Brown against Walker, Hale against Henkel, all of these cases are landmark cases in this immunity provision with grand jury proceedings.

And I — I say this then, that it would be — it would be a strange thing in view of this history, if Congress in making applicable to the Motor Carrier Act, these same provisions which had previously been construed by this Court in connection with the railroads could suddenly have withdrawn the protection and made it apply only in case of commission proceedings.

Felix Frankfurter:

Indeed, there was powerful argument by some of the ablest lawyers of the day that to require testimony before the Commission makes the court an adjunct of an administrative agency.

John F . Davis:

Yes.

Yes, indeed.

There’s another — another feature too and that is not only do we have the prior history with respect to the Interstate Commerce Act, but we have the subsequent history because in 1940 and again in 1942, Congress passed additional provisions of the Interstate Commerce Act applying it first to motor carriers and second to freight forwarders.

In both of these cases, they again incorporated the application of the Section 46, the immunity provision applying the railroads.

And in this — these cases, there’s never been any question that it applies to grand juries, as well as to administrative proceedings.

John F . Davis:

And so I say that it’s a — it would be a strange thing if Congress had carved out this particular section of the Act and made only the administrative proceedings subject to the immunity provisions.

Certainly, it doesn’t appear from the language of this section.

The language of this section is, “Any person subpoenaed or testifying in connection with any matter under investigation shall have the same immunities as those any matter arose under Chapter 1 of the Act.

The — the only reason — the only reason that it can be implied if this is limited is because it is connected in the same section.

Indeed, it’s in the same sentence with this provision with respect to the power of the Commission to conduct investigations.

And petitioner would have us believe that since the first part of this section deals solely with — with commission investigations, the second part must to do so also.

Well, the truth of the matter is the first part of this section deals with investigations by the Commission because it’s necessary to give that power specifically to the Commission in connection with motor carriers.

It wouldn’t have it, unless it give — gave it.

So, it incorporated by reference Section 12 of the — of the Interstate Commerce Act, but section — the second part of the section is not necessarily of — if there’s no reason why it should be limited to the — to the investigative proceedings only and Congress in nowise implied that it should be.

I can think of only one possible excuse for construing this section in the limited way that petitioner suggest.

And that is on the mistaken thought that this is a criminal statute since there can be a possibility of construing it, one of two ways, we must construe it in a way which will give protection to a defendant.

And that’s a — that’s a valid argument in connection with criminal statutes.

But I would point out that this particular statute is not a statute establishing a crime, defining a crime.

It’s a statute defining immunity.

And this question of interpretation might well come before the court in a different context.

It might come up in the case of a criminal prosecution against an individual who claimed that he had obtained immunity on the ground that he had testified before a grand jury.

And in that case, it’s perfectly apparent that it would be to the advantage of that defendant, if we construed the statute so that he was given immunity on the basis of his — of his testimony before a grand jury.

Yet the question of construction is the same and it is perfectly apparent that there is no really strict interpretation, it’s a question of rather determining what Congress had in mind in enacting this particular provision.

It seems fair to us, at least, that Congress intended to adopt the immunity provisions which it had found satisfactory from the comparable provisions of dealing with railroads and in the way which this Court has construed them.

Now, the — the second question of construction deals with whether or not, the immunity granted by this section is sufficient so as to make it unnecessary, make it impossible for the petitioner to claim his privilege against self-incrimination.

This too seems to be concluded by prior decisions of this Court.

What was — the immunity which is given in this case, is the very immunity which was passed upon by this Court in Brown against Walker in dealing with the immunity granted to individuals testifying with respect to the first portion of the Act.

And in Brown against Walker, this Court, after very careful consideration, found that the immunity was coextensive with the liability and as — as recently as in 1955, this Court has reaffirmed that — that position in Ullman against the United States.

Petitioner’s argument is that the immunity is not complete because of the fact that the section begins with the words, “So far as maybe necessary for the purposes of this chapter.”

These words, however, in that context, clearly state — clearly mean the circumstances under which the Commission may conduct investigations.

The Commission itself may conduct administrative proceedings.

If the petitioner is right that these words must be read for the entire section, this is really no more than a repetition of his first argument that we’re dealing only with — with Commission — with proceedings before the Commission and therefore, we don’t need to reach this argument here.

He’s proved his — he’s proved his first case that — that it applies — that does not apply to grand jury proceedings.

Therefore, this really adds nothing to his prior argument.

Now, with respect to procedure, the petitioner has raised three questions.

John F . Davis:

The first question is whether it was proper for this Court to proceed under Rule 42 (a) of the Rules for Criminal Procedure, for a contempt committed in the presence of the Court rather than to proceed on notice under Section 42 (b).

And the second question on procedure was — is whether the petitioner was unlawfully required to testify against himself when he was put on the stand and ask questions.

And his third question is whether he was deprived the due process by reason of the court’s action in the clearing the court at the commencement of the proceeding and not thereafter, inviting the public back in.

But with that, it attacked first the question of whether this procedure was proper under Section — under Rule 42 (a) of the Rules for Criminal Procedure.

Rule 42 (a) provides that when a contempt is committed in the very presence, in the sight of the — of the court, the court may act summarily in dealing with that contempt.

Section 22 (b) deals with the situations where a contempt occurs outside of the presence of the court and it’s necessary for the court to learn from some other source what went on.

In this particular situation, I think it is true that there was contempt of court, when the petitioner refused in the grand jury room to answer questions which the court had ordered him to answer.

And I think that that was a contempt which was out of the presence of the court and that one could have proceeded therefore, under Section 42 (b) on notice and would have had to, if you had proceeded on that contempt.

William J. Brennan, Jr.:

Now, is that (Inaudible)

John F . Davis:

That is right.

It was —

William J. Brennan, Jr.:

Getting back to the grand jury as being advised of (Inaudible)

John F . Davis:

That is right, disobedience of the court’s order, but disobedience of the court’s order outside of its presence.

Instead of proceeding under 42 (b), this petitioner was brought back to the court and these same questions were asked and he refused to answer them in the presence of the court and he further said that he would not answer them, if he were returned to the grand jury.

William J. Brennan, Jr.:

Now, would (Inaudible)

John F . Davis:

I think not, Your Honor.

I think that this under the Yates case — under the Costello case, this is one continuing refusal to answer these questions, culminating in the refusal before the court.

I think it was actually completed, could have been prosecuted on what happened in the grand jury.

I think it was —

William J. Brennan, Jr.:

(Inaudible) in the grand jury room how (Inaudible)

John F . Davis:

Well, because they didn’t — the — neither the United States Attorney, nor the judge decided to charge him with contempt for that proceeding.

They said, they were really anxious, of course, in this case to get the answers to these questions.

They were still trying to persuade this man to answer these questions which were important.

William J. Brennan, Jr.:

I gather the sentence (Inaudible) in Section 7, (Inaudible) the order on which you went back —

John F . Davis:

That’s right.

William J. Brennan, Jr.:

Now, you have a new independent order on which attempt when he came back before the jury?

John F . Davis:

I think it’s not a new and independent order, I think it’s really a repetition of the first order.

William J. Brennan, Jr.:

In other words, this is a contempt continuing, if you please, of the original order under which he was sent back with the (Voice Overlap) –.

John F . Davis:

I think that is right.

It was restated, this counsel argued again, but there was no new order, they were the same questions in the same — in the same termination.

Felix Frankfurter:

But the — the judge the second time, became back, the judge redirected it, did he not?

John F . Davis:

Yes, he did.

Felix Frankfurter:

And if then (Inaudible) judge I’ve reflected on this thing and I’m now prepared to answer and if you — if the Government said, well, you already committed a contempt because you refused them the grand jury room, I don’t think we would look with favor upon that kind of proceeding (Voice Overlap) —

John F . Davis:

I — I think that’s right.

I think he would have purged himself.

I think they would be — we would — it be impossible then to say when you maybe all right now, but you committed a contempt awhile ago.

William J. Brennan, Jr.:

I’m just a little confused though, Mr. Davis.

What — what’s the contempt to which he was convicted, a contempt of the original order under which he went back to the grand jury room?

John F . Davis:

Well, his contempt was the refusal to answer these particular questions which were properly put.

William J. Brennan, Jr.:

In disobedience of what order of the court?

John F . Davis:

In — well, the order isn’t defined in — in so many terms — in — in so many words.

It’s — the terms of the certificate are — I put the same questions which he refused to answer after having been — been directed to do so.

William J. Brennan, Jr.:

What page does that appear?

John F . Davis:

They’re from page 5 of the record.

William J. Brennan, Jr.:

Well, then that indicates doesn’t it that the conviction was had upon the disobedience before Judge Levet are not upon the disobedience of the order which send him back (Voice Overlap) —

John F . Davis:

Well I have no doubt that that is so that the actual final act of disobedience for which he was punished and say gave them the further opportunity to answer was before Judge Levet.

But I — I do not think that there are two acts of contempt.

I don’t think that we can multiply acts of contempt by asking him questions in the grand jury and having him refuse to answer, bringing him before the court and answering — asking the same questions and having him refuse to answer.

William J. Brennan, Jr.:

Well when we’re dealing though with disobedience of the court order, I’m not what this is — that section in the contempt act (Voice Overlap) —

John F . Davis:

That is right.

William J. Brennan, Jr.:

When we’re — when we’re — we have to know, do we not, just what order it is which he did (Voice Overlap) —

John F . Davis:

That’s right.

You have to find him that — you have to find in the record that he was — that the court asked upon his claim of privilege and turned it down and ordered him to answer these questions, which he did twice.

William J. Brennan, Jr.:

I’m — I’m coming right back then, where I started.

Just what order is it that the Government says he disobeyed?

John F . Davis:

Well, the — the final order was the order when he was brought back the second time and certainly, there was a disobedience of that order.

I think that was a mere repetition of a prior order.

I don’t think it was really two orders of the court.

I think that the court made one decision and reaffirmed it.

William J. Brennan, Jr.:

Well and the — the basic order was the one that send him back to the grand jury (Voice Overlap) —

John F . Davis:

That’s when the court determined that he had no — no privilege against —

Felix Frankfurter:

I am not convinced on having to be a little sharp on this case because what we’re reviewing here is the certificate that constitutes the order on which the sentence is based, is that correct?

John F . Davis:

That is right.

Felix Frankfurter:

And therefore, if the certificate, that’s the controlling document and the certificate indicates what he was committed for — and the proceeding under which he was committed for, 42 (a) in that when he came back before Judge Levet, and Judge Levet propounded the same questions to be sure that theretofore he directed him to go to the grand jury room to testify.

It is — that’s the basis — that’s the fundamental document for the contempt, which is here under review.

Now, the antecedents, of course, this is — this is a continuing affair, but what is — what the court clamped down on was that when he’s (Inaudible) the questions and he said, “I stand (Inaudible) I refuse to answer” and the judge says therefore, I find under Rule 42 (a) that in my presence, maybe to my patience certainly, you don’t care about the court’s order, you’re going disobey it.

I don’t make such complications out of what is written plainly on the certificate’s face.

John F . Davis:

I think — I think that is — that is everything you’ve said is true, Your Honor.

I would point out the certificate recites both refusals.

In the first paragraph, it’s the refusal when he went back the first time —

Felix Frankfurter:

That’s the history.

That was —

John F . Davis:

Second paragraph, when he refused the second time and then he says accordingly, pursuant to Rule 42 (a), why we find him in contempt.

Felix Frankfurter:

But if that were in there, they have great trouble, Mr. Davis.

John F . Davis:

As to —

Felix Frankfurter:

(Voice Overlap) because then 42 (b) I mean, after all —

John F . Davis:

Well, I think that it’s perfectly clear that a court cannot for the purpose of summary — of summary contempt, transform a 42 (b) case into a 42 (a).

I don’t think that just in order to — to get a man —

Potter Stewart:

I’d expect you to say that —

John F . Davis:

— to get a summary proceeding that he can go through an artificial business of bringing him before him and — and having him repeat them.

William J. Brennan, Jr.:

I’d expect you to —

John F . Davis:

And if we had anything like that —

William J. Brennan, Jr.:

I’d expect you to say that.

John F . Davis:

Why?

We wouldn’t —

William J. Brennan, Jr.:

Yes.

John F . Davis:

— we wouldn’t argue it.

But that is not the situation here.

Here is the continuing effort by the United States Attorney and by the court to get this man to answer these questions which were essential to this investigation.

And he — he gave them every opportunity and he included, if I may say so, quite properly, whatever dignity the court had in trying to persuade this man to answer it.

Mr. Davis, with the permanence of this case open the — open the door to the — might’ve — the action by the district judge that you say you wouldn’t argue his (Inaudible) That the conversion of (Inaudible) district judge a 42 (b) case into a 42 (a) case.

John F . Davis:

Not — I think not, as long as — as this Court has the record before them and conceive what did occur.

I think that if anyone — if — if that attempt were made, it would appear from the record what was going on.

Tom C. Clark:

Well, the fact that procedure is (Inaudible) important doesn’t mean –

John F . Davis:

Excuse me?

Tom C. Clark:

Is that procedure followed throughout the United States (Inaudible)

John F . Davis:

Well, it’s followed in the Second Circuit particularly.

I’m not sure that how many of the other circuits have the judge, in the presence of the grand jury, ask the questions.

Now, here in the District of Columbia, I don’t think, for example, that the judge asked the — these questions in the presence of the grand jury.

I think he directs the witness to go back to the grand jury to answer.

William J. Brennan, Jr.:

And then the procedures under 42 (b), is it?

John F . Davis:

Well, not necessarily.

If — he can also say as this judge and if I send you back, will you answer and if he says, I won’t go back or I won’t answer for them, why then the refusal takes place in the presence of (Voice Overlap) —

William J. Brennan, Jr.:

Could answer your question but that’s never refused an order.

John F . Davis:

Well, it’s a — it is.

It’s — at least in the anticipation of saying, “I am going to refuse your order”.

William J. Brennan, Jr.:

It’s not a (Inaudible)

John F . Davis:

Well that is — that maybe so.

Felix Frankfurter:

Mr. — Mr. Davis, the reason why isn’t this business is important to what the certificate says.

This isn’t just a paper stuff.

We give the importance because of the decisions of this Court — what is the name of the cases, the — the importance that this Court attaches, if I may so rightly, that there should be a definitiveness of refusal and therefore, bearing on what are the name of those cases?

John F . Davis:

Oh, you mean the congressional cases —

Felix Frankfurter:

Yes.

John F . Davis:

— a part of the —

Felix Frankfurter:

Flower (Voice Overlap) —

John F . Davis:

No.

not Flower, but —

Earl Warren:

(Inaudible) Quinn —

John F . Davis:

Quinn, that’s right.

Felix Frankfurter:

I think of Quinn, That’s a case of very important business.

Felix Frankfurter:

Well that therefore — therefore, all preliminary deal is to be important as bearing on whether the — whether the petitioner here had ample notice and that there was an unambiguous clarity that he stood his ground of obstructive refusal.

John F . Davis:

That is right, the — his statement that I will not go back, shows that this is final or that I will not answer, if I go back.

Felix Frankfurter:

And after all that has preceded (Voice Overlap) —

John F . Davis:

That’s right.

Felix Frankfurter:

— and after this preliminary (Inaudible) is relevant on that to me, very important thing that a layman should know without any peradventure of doubt that he is really being asked something, that if he refuses (Inaudible) the consequence —

John F . Davis:

Yes, I think that’s the reason that he asked the — asked the — the man whether he will answer when he goes back.

Felix Frankfurter:

Certainly.

Well, isn’t the situation just the same and if — instead of bringing the grand jury into the courtroom, clearing the courtroom, the judge with counsel, as honor to the grand jury room had gone through this ritualistic formula there.

John F . Davis:

I think it’s precisely —

Exactly the same thing, isn’t it?

John F . Davis:

I think that’s — that’s what they intend to do.

I think that’s the —

(Voice Overlap) —

John F . Davis:

— purpose.

William J. Brennan, Jr.:

I gather then when he was put on the stand, (Inaudible) and that’s because there’s no difference had he (Inaudible)

John F . Davis:

Well, that’s what the judge said.

That’s why he said and I don’t —

William J. Brennan, Jr.:

(Voice Overlap) response to the subpoena (Inaudible)

John F . Davis:

That is right.

That is not — we don’t have to imply that.

That’s what the judge says.

That’s why he said it wasn’t necessary to affirm.

William J. Brennan, Jr.:

And did that go also to the (Inaudible)

John F . Davis:

Well then we come to the — the great issue of secrecy.

I — I think it’s perfectly clear that the judge couldn’t have gone into the grand jury room and have the contempt occur and then in the secrecy of a grand jury room, convicted the man of contempt.

And I think that’s – he has to do that out in the open court and our question on secrecy in this case is whether or not, the fact that the court had been cleared from the beginning of these proceedings and the fact that the doors weren’t formally thrown over, whether that makes this a proceeding where he was the — of (Inaudible) chamber of secret proceedings and in violation of his rights to a public trial.

Well, there’s no reason why the judge, if he wished to, shouldn’t have gone into the grand jury room with counsel, gone through this formula and gone back to the courtroom, convicted him in a contempt after hearing counsel in open court and you do have exactly the same situation that you’re confronted with here, aren’t you?

John F . Davis:

That is — that is right.

That’s — that’s what we conceive that this situation is the equivalent of —

Earl Warren:

Mr. Davis, I notice at the bottom of page 44 of the record that after — after the petitioner had raised his objection that the question — the answer to the questions would tend to incriminate him.

Earl Warren:

The judge insisted that he answer the question, will these answers incriminate you and that was objected to — the question was, “And do you believe that these answers will incriminate you?”

Mr. Shapiro, I object to that question, Your Honor.”

The court overruled, Mr. Shapiro exception to question, do you believe the answers to these questions just asked you would incriminate — would incriminate you in anyway and the same objection, same ruling and then — then the petitioner refused to answer.

Now, does — when a man has raised his constitutional privilege that the — the answer might tend to incriminate him, does the judge have the right to compel him to answer whether it will, in fact, incriminate him?

John F . Davis:

He has the right to explore his — his good faith in making the claim then do you really believe, as this man, do you really believe that the answer to these questions will incriminate you in anyway?

Earl Warren:

That isn’t the — that isn’t — that isn’t the privilege that he claimed.

He claimed that it might tend to incriminate him.

John F . Davis:

Well —

Earl Warren:

Now —

John F . Davis:

(Voice Overlap) —

Earl Warren:

— does the judge —

John F . Davis:

I have to tell — I have to tell this right.

I — I think that the question should properly be asked.

Do you believe that it will tend to incriminate?

Earl Warren:

All right.

Now that being true and he proceeded immediately to — to convict him of contempt and then gave him 15 months in jail for the contempt.

How many months might he had given him for refusing to answer these questions that I just read to you, how do we know?

John F . Davis:

Well.

Earl Warren:

He never had a chance to defend against this?

John F . Davis:

Well, he had this — he has — he has chance to defend in what — in what followed after whether or not —

Earl Warren:

The judge proceeded immediately?

John F . Davis:

— whether or not — no, the judge then — there was colloquy and before the — before the adjudication, he had the — the same counsel to defend against it as he held against any of the — any of the rest of the contempt charge.

But may I say this, that the judge did not actually certify this as one of the acts of contempt for which he was imposing the punishment.

The certificate limits the contempt to the — to the other questions.

I — I repeat that I believe this is a proper question for the judge to revise.

If we go back to the early questions of contempt in the Ehrenberg case, we find that — that’s what the judge is trying to do.

He’s trying to find out whether or not the claim of privilege is made in good faith or whether (Inaudible) because the man is afraid that the gangsters would get him or something else, which is not a proper basis for making the claim.

Earl Warren:

But in this case, it wasn’t — it was a question of the privilege and whether it would incriminate him or whether it would incriminate him or not, you say that —

John F . Davis:

Well —

Earl Warren:

— that he had to answer………

John F . Davis:

— that’s one question which was raised, but that may not be the only question that was —

Earl Warren:

And I understood you to say just few minutes ago that you did not — that you did think this was not a proper question.

John F . Davis:

No, I think this is a proper question except that it didn’t —

Earl Warren:

And I must —

John F . Davis:

— cannot (Voice Overlap) —

Earl Warren:

(Voice Overlap) —

John F . Davis:

— phrase because it should have said, would tend to incriminate you and —

Earl Warren:

Isn’t there any difference?

John F . Davis:

There is a difference and I — and in that — in that sense, if — if objections were made to the — to the form of this question, if it wasn’t meant to carry the thought I — in good faith in making your claim, which I think is what the judge meant.

Are you in good faith in making this claim that you are making by —

Earl Warren:

Well, Mr. — Mr. Shapiro said, “I object to that as wholly improper, Your Honor,” a violation of his privilege.

John F . Davis:

And I — I think that doesn’t raise this question of whether it would tend to incriminate —

Earl Warren:

Why don’t (Voice Overlap) —

John F . Davis:

— or would incriminate you.

Earl Warren:

Why doesn’t it.

John F . Davis:

Well —

Earl Warren:

Why doesn’t it?

John F . Davis:

— it — it may, but it doesn’t — it isn’t pinpointed of course that — I don’t think the court or anybody else in this setting has realized that any objection was being raised to the language that the judge used in — in the — with respect to the claim.

Hugo L. Black:

It seems to me like it’s the most appropriate objection he got to make.

Why — why isn’t it not a fair interpretation of the two questions, do you believe that this would incriminate you to say that’s the same as asking, are you really guilty of this?

That’s what it is, isn’t it?

John F . Davis:

Well, it is — it is if the — if the question is taken literally.

This — this is —

Hugo L. Black:

Well, what — what way could the defendant take it except literally?

He refused to answer them after objection has been made that those questions were a violation of the privilege.

John F . Davis:

Well, I think that and it is hard — it’s hardened on a cold record to know exactly what is in the minds of the target.

Certainly, Mr. Shapiro did not at that time, raise any objection to this — to this form in which the — just leaving out the words, tend to incriminate you, and in fact, when it come — the Chief Justice called to my attention, in fact, that he says incriminate you instead of tend to incriminate you, I have not even been conscious that they — there had been phraseology anew.

Earl Warren:

Well, I don’t think that’s a question of form.

If a man — if a man answers not once, but as many times he did here that the questions might tend to incriminate him and the judge insists on the — on an answer, will it incriminate you, I don’t consider that a matter of form, I think that’s a matter of substance.

John F . Davis:

Well, if that is so, Your Honor, and if that was the objection and properly whether he should’ve realized it, then this was an improper question and he — and the objection was properly taken.

Earl Warren:

But if (Voice Overlap) —

John F . Davis:

But I may point out, as I’ve pointed out in the beginning, that the judge did not place any of his sentence of contempt on the basis of this question, he placed it entirely on the refusal to answer the other question.

Felix Frankfurter:

Well that —

Hugo L. Black:

But if you are right, may I ask you this, it maybe that you have a perfectly good answer, I’m not sure because if you are right and there was complete immunity that he’s confessing any crime at all, that has brought [Laughs] all the crimes after he (Inaudible)

Felix Frankfurter:

That — that’s — I think that’s the importance of this thing, if what you call a cold record, if this were — if this was the cold record where the question compelling to testify on whether or not, the judge in good in faith, concluded that the witness in good faith or lack of good faith rather, refused to answer, I think you would be in great trouble.

If this were a question of compelling testimony —

John F . Davis:

Oh, I would be —

Felix Frankfurter:

— not a question of immunity for refusal.

John F . Davis:

— I would be in great trouble —

Felix Frankfurter:

Yes (Voice Overlap) —

John F . Davis:

There’s no question about (Voice Overlap) —

Felix Frankfurter:

— you’d have a hard (Inaudible) —

William O. Douglas:

We should have another case.

John F . Davis:

That’s right.

That would — we’ve had just the Hoffman case, which was — that I had the misfortune (Inaudible) have some years ago —

William J. Brennan, Jr.:

Before you (Inaudible)

John F . Davis:

Yes.

Well, I — I want to go to the secrecy point and I also want to go to the question of whether it was — whether he was compelled to testify against himself.

The secrecy point is — is an important one in this respect only.

This Court neither — neither the Department of Justice nor this Court should give any competence to the thought that in a conviction for contempt that it can be done behind closed doors, that is not a proper way to try contempt.

It should be done in open court and the man had a right to have it done in open court.

Now, the question is how did that apply to the facts of these cases and this case?

And as we see this case, this complaint is not because it was actually done in secret, but it’s — again it’s the case of careful lawyers going over a — a record and finding what maybe a — an error on appeal.

When the — when the first of these proceedings was started on — on bringing before the judge, the courtroom was clear that because they were going to ask the questions over again.

And when the court came around, came to the question of actually passing upon the contempt, there was no change — there was no affirmative order inviting people in.

However, this was a public courtroom.

This is in a public — in the criminal section of the — of the District Court in New York and it is ordinarily open to the public, unless the public is excluded and there is no evidence in this case in fact that the public was excluded.

In fact, the most important person present from the defendant’s point of view was his own counsel, who, of course, is not permitted in — in a grand jury proceeding.

His own counsel is present and —

Hugo L. Black:

Was he present at first?

John F . Davis:

Yes, he — well, he was present before the — in the courtroom and before the judge, not on the grand jury and the grand jury gives him an (Inaudible).

Before the — before the judge, he was present in the courtroom.

Now —

William J. Brennan, Jr.:

Is — is affirmance of evidence is the — it was instruction that just (Inaudible)

John F . Davis:

At the very beginning of the record, you’ll find that there was a —

William J. Brennan, Jr.:

Well then, at what point in time was that?

This (Voice Overlap) —

John F . Davis:

That was April 5th.

William J. Brennan, Jr.:

On April 5th.

John F . Davis:

Yes, not on April 8th (Voice Overlap) —

William J. Brennan, Jr.:

Is that — does that fall on April 8th?

John F . Davis:

Nothing on April 8th.

Now —

Earl Warren:

Why would they have a different procedure on April 8th than April 5th in the courtroom?

John F . Davis:

Well, there was a different procedure going on when — when it came down to the question of making the finding — making the adjudication at the contempt.

Earl Warren:

How did he know he was going to make the adjudication until they knew what the defendant was going to answer?

John F . Davis:

Well, when the court said, “Very well, by reason of your refusal to answer in the actual presence of the court, I’m forced to act upon this matter.

This would be in Justice Harlan’s comparable situation the time when the court, in effect, returned to his courtroom and began and went to the question of adjudication on contempt.

William J. Brennan, Jr.:

And we know what kind of day it shows?

John F . Davis:

Yes, it shows this is early in the afternoon.

It was 2 o’clock in the afternoon when the proceeding started.

He was — he reported to the grand jury at about quarter-of-three and this is about a quarter pass three, I believe, 3 o’clock or — or 3:15.

Hugo L. Black:

Suppose the doors were shut, he didn’t let anybody in, except the counsel at the time he actually sentenced him for contempt and declared him guilty, what would you say then?

It’s what the record — one should think the record showed that.

John F . Davis:

I would think from the first place, it was the duty of — of defendant’s counsel to raise this question before the judge rather than to, in effect, save an error in order to reverse on appeal.

I think that if there’s been anything that’s been called to the attention of the court, then we’d have a clearest of the clear issues.

Counsel did not bring this to the attention of the court, raised no objection.

If — if it turned out — if the evidence was that people were actually excluded from the courtroom during this period, I think that that was an improper proceeding and he was denied due process.

Earl Warren:

It might be objection to the entire procedure carried with it such an objection.

John F . Davis:

Well, I — I think that —

Earl Warren:

There was such an objection made to the entire procedure.

John F . Davis:

Well, I — I would not think that it would be in the — in the — but to the benefit of orderly procedure to permit a general exception like that to carry this particular — to carry this particular objection.

It — it doesn’t give enough protection.

It allows — it allows trial counsel to lull the court along in error in order to get reversal up above, if it doesn’t win at the trial.

Earl Warren:

Well, but when the court is taking shortcuts over the procedure that’s rather precise here, is the burden on the — is the burden on the — the petitioner to — to be alert to whether the doors are closed and things of that kind or — or is that an obligation of the — of the court, when it cuts corners on procedures?

John F . Davis:

Well, if — if the court were cutting corners on procedure, why, we would have a different — we would have a different question here, Your Honor, but I — I —

Earl Warren:

Well, did it follow the language of the section?

John F . Davis:

Oh!

I think the court followed them.

Yes, I think the court followed that.

You mean in this — in this question as (Voice Overlap) —

Earl Warren:

Yes.

John F . Davis:

— tend to incriminate?

Earl Warren:

No.

No, I mean as to the — the giving him notice and so forth.

John F . Davis:

Oh!

No.

He wasn’t proceeding under — under the 42 (b).

He was following the language of 42 (a) as I think that he was entitled to that.

The — there’s also the allegation made and this was objected to at the time of the — of the proceeding, there was the allegation that was improper to put this man on the stand and ask him these questions in — for the judge to do so.

It said that he was being asked to testify against himself.

And this, I think, also — the answer to this, I think, also depends upon an understanding of the nature of these proceedings.

If we are right that this was a proceeding in which the court was still attempting to get this witness to answer these questions which would give him immunity, then he was not being asked to testify against himself.

He was merely being asked to do the kind of act that citizens are required to do in order to carry out the procedure to justice, namely, to testify.

Now, when he refused to testify, to be sure that redounds to his — to his detriment, but that is so in — in any case where a witness is called to testify and — and defies the court or — or purges himself.

In that sense, of course, what he — what he says is against himself, but this is not what historically we think of as being — being called upon to testify against oneself and I come finally to the question of the — of its sentence.

The court sentenced this man to 15 months and I’m — in connection with whether or not, this involved sentencing him for claiming his privilege properly before the other grand juries, the court itself, said on page 49 that he wasn’t concerned with that.

He was concerned only with the — with the current preceding, so that we do have a situation of the 15-month penalty for this — this particular contempt of the court.

I do not think that it is important that the Motor Carrier Act has lesser penalty for violations of that Act.

This is not an attempt by indirection to punish this man for a violation of the Motor Carrier Act.

John F . Davis:

I do not know that — I do not know that the United States Attorney had any belief that this man had in any way, violated the Motor Carrier Act.

They were making investigation of racketeering in connection with the Teamsters Union and the garment industry.

They were trying to find out the background of the blinding of Victor Riesel.

And in connection with that, this man had had of — the United States Attorney thought that he had had close relationships, business relationships with people that were involved in those proceedings and they were trying to get information from him.

They weren’t trying to pin a crime on him.

So the relationship between the punishment for contempt and the punishment for the crimes involved in the Motor — Motor Vehicle Act, really have no — no relation to this case.

Here, he — it was defiance of the court in a serious and important grand jury investigation.

William J. Brennan, Jr.:

Is that what differs, as I recall it, Mr. Davis, is that what you argued Winston or not, but the Government I know in Winston argued that three years imposed there was justified because of (Voice Overlap) —

John F . Davis:

Well —

William J. Brennan, Jr.:

— jumping is a crime for three years.

John F . Davis:

I think that the Green —

William J. Brennan, Jr.:

Green (Voice Overlap) —

John F . Davis:

And that — that is right, but we argued that there was a five-year penalty.

I didn’t argue the case, but there was a five-year penalty for — which was actually enacted after Mr. Green refused to surrender.

But one of the arguments presented to this Court that this is an indication that at least the Congress, five years didn’t seem to be an extreme punishment for the offense that Green did in defiance of the court.

William J. Brennan, Jr.:

And here you suggest that the —

John F . Davis:

But here, I suggest that in that case, the contempt of court and the crime were of comparable acts.

The — the offenses in one case, is they’re — they’re looked at from a different angle.

In one case, it’s an offense to the court and the other is an offense to the justice — to Congress.

In this case, there was no comparable relationship because we’re not — no one — no one is accusing Brown and as far as I know and no one — no one believed that Brown was guilty of any violation of the motor vehicle provision for the (Voice Overlap) —

William J. Brennan, Jr.:

Is the — isn’t there a six-month provision of the antitrust laws for contempt, in this situation or is it a year?

John F . Davis:

That’s — if the year — if in case you are left the provision in case that’s a — it — it is six months, Your Honor.

William J. Brennan, Jr.:

There is.

John F . Davis:

It is in connection — it is a — if it is a crime which is punishable by statute and if the United States is not bringing the proceeding, then there is a six months punishment for contempt.

William J. Brennan, Jr.:

And that’s on contempt, isn’t it?

John F . Davis:

That’s contempt, the contempt of — of the — of the Commission.

William J. Brennan, Jr.:

Is there any analogy to be drawn from that?

John F . Davis:

No, because it says — and that was the problem which arose in Green also, whether you could do more than here.

It says in other cases, this is a case that’s clearly doesn’t come within or wouldn’t come within that six months provision.

William J. Brennan, Jr.:

All right —

John F . Davis:

And then this (Voice Overlap) —

William J. Brennan, Jr.:

— I’m not suggesting it does.

I’m just wondering if there’s an analogy.

John F . Davis:

Yes, but then the statute says, the statute itself, the same one that provides the six-month provision said, in other cases then it shall be according to the custom usage and that — and that may not be exactly, there’s something like a custom usage and this Court, in determining — and the eyewitness made to be a custom usage was less than a year.

It was a year or less and that was the — argued to the — to the Court and the Court said that in that case, it’s really —

William J. Brennan, Jr.:

Well have we any sources for analogies —

John F . Davis:

Well —

William J. Brennan, Jr.:

— by which to test was 15 months?

John F . Davis:

Well, we — it’s really a question.

The only question is whether or not, this judge abused its discretion and you’ll look at this case from the other cases of contempt, you’ll look at the circumstances and you — anyone has to make a determination, if this to — to (Inaudible) closer within 36 months.

William J. Brennan, Jr.:

Five years, what —

John F . Davis:

That’s right.

And then you’ll —

William J. Brennan, Jr.:

(Voice Overlap) —

John F . Davis:

— have to look and — and you’d say, well, up to this time, most that’s been given for contempt for refusing to answer is — is 18 months.

This is quite as much as —

William J. Brennan, Jr.:

Well what is the experience?

John F . Davis:

Well, we have cited in our — in our brief situation, most of them — most contempt of — are not as — as punished us seriously at this, but there have been contempt of court which has been (Voice Overlap) —

William J. Brennan, Jr.:

What — what’s the pattern seemed to be?

What — what punishment?

John F . Davis:

Well, as I say, there isn’t any — any fixed pattern.

There are cases where it is gone above us.

William J. Brennan, Jr.:

But are more of them (Voice Overlap) —

John F . Davis:

There are more of them —

William J. Brennan, Jr.:

Anymore below?

John F . Davis:

Well, the state case is certainly, because generally speaking the State —

Felix Frankfurter:

The statutes in states (Voice Overlap) —

John F . Davis:

Made plea to this 60 days or 90 days and that’s the — that’s the real — and people say that this is so severe.

What I suggest that when you look at the background of this case, that this is — this is not a — an unreasonable or a severe penalty for refusing to come forward with useful information in this — in this situation.

Earl Warren:

My recollection is that I believe it was last term you — in one case we had, you — you listed all of the federal convictions for contempt back to 1790.

John F . Davis:

(Voice Overlap) —

Earl Warren:

And up to the last few years there was nothing there that exceeded six months, and eight out of ten of them at least, were in 30 days or less.

John F . Davis:

I think it —

Earl Warren:

It was only recently that they’ve come to — to be sentencing people to 15 months and two years and three years and five years for — for contempt in the summary manner.

John F . Davis:

It is — it is true that we — that those were listed.

I think that’s what the brief in the Green.

Earl Warren:

I forgot in which one was this (Voice Overlap) —

John F . Davis:

I think it’s Green (Voice Overlap) —

Earl Warren:

— Green —

John F . Davis:

and now, a (Inaudible) study was made of the history of the contempt of the sentences that were given, because the same question that is raised here was raised in the Green case where there was the three-year sentence.

Earl Warren:

Very well.

Mr. Shapiro.

Myron L. Shapiro:

May it please the Court?

I might point out on the question of sentence.

Now that all the cases cited by the Government in its brief on so-called comparable sentences, only one deals with a witness and that’s with Lopiparo versus United States, referred to on page 14 of my reply brief, where he received 18 months, but this involved the credibility and good faith of the witness, testified that he wasn’t a — was been unable to find certain books he was ordered to produce.

Actually, in the Second Circuit from where this case comes, cases involved in the same investigation that is the same broad investigation not this particular grand jury, U.S. against Gordon, 236 F.2d 916 at page 31 of my main brief, six months, Courtney case, three months, Trock which was before this investigation, but was reversed by this Court, four months, Curcio which was before this Court last year, six months with a purge clause, and U.S. against Weinberg in the prohibition days or near-prohibition days, 60 days.

The other cases cited by the Government in — on the sentence involved for example, fixing the juror, fixing the criminal case, corrupting a trial juror, contempt of decreeing the case, not the same as this.

Now, on the objection on secrecy, if anybody was involved here, well, Mr. Davis referred to the Government being involved because there was no specific objection and then that this is called out of the record when we’re working on the appeal.

We brought down before the court on April 8, in which although — no, this no contempt proceeding.

You’re not here — we’re not dealing with contempt here.

We’re seeking the aid and assistance of the Court.

We don’t want to have anything here to happen here.

We just want to have this aid and assistance to the Court.

Nobody is guaranteed that this is going to windup in the contempt proceeding because everybody is trying to get this man to testify.

There is nothing — no objection made at that time because we’re not told that this is a contempt proceeding.

We’re not told that this is a contempt proceeding until the man is in contempt.

At the same time that he’s in contempt, he has a contempt proceeding.

So how can the — how can anybody make an objection that this proceeding is secret, because we’re not in a contempt proceeding when (Inaudible) the problem district, until he commits the contempt, then — then the contempt proceeding is over and all you get is a (Inaudible)

Felix Frankfurter:

And you had no thought at all that this might lead to sentence for contempt that is quite absent from your mind in the course of this proceeding?

Myron L. Shapiro:

It — it might, but I’m told.

Myron L. Shapiro:

I’m told that —

Felix Frankfurter:

It might.

Myron L. Shapiro:

I have in mind that it might lead to a contempt —

Felix Frankfurter:

Then — then why this argument of innocence?

Myron L. Shapiro:

I’m not arguing that I’m innocent, Your Honor.

I’m saying —

Felix Frankfurter:

I’m saying — this argument that it would — nobody would be thinking about contempt.

Myron L. Shapiro:

At that point (Voice Overlap).

If you look at the record, if you look at the records, Your Honor, that’s exactly what the (Voice Overlap) —

Felix Frankfurter:

The record merely indicate that the court wanted answers, that some respect should be laid to law and to order the court and not — that this was not a punitive enterprise.

Myron L. Shapiro:

If Your Honor please —

Earl Warren:

What page, Mr. —

Myron L. Shapiro:

Page 36, Mr. Wachtell — “May it please the Court.

The April 1957 record of the grand jury, again wishes to request the aid and assistance of the court with reference to witness Emanuel Brown” and then below, Mr. Wachtell, “The Government’s understanding of the nature of this proceeding is this, “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, as were shown by the testimony of the grand jury reporter, that the witness is persisting in his refusal, the Government will then request of this court that the court itself in the presence of the grand jury, will put the six questions to the grand (Voice Overlap) —

Felix Frankfurter:

What was — to say what then (Voice Overlap) —

William O. Douglas:

Well, I’d think you want to go out with it, Mr. Shapiro?

This last (Voice Overlap) —

Myron L. Shapiro:

Well, I have the red light.

Earl Warren:

It’s all right.

You’ll finish your thought in this — in this matter, Mr. —

Myron L. Shapiro:

And asking first, whether he’s willing to answer and now, the second, would he answer them if he was sent back to the grand jury again.

And if the witness again refuses here and now of the physical presence of the Court or persists on his refusal to answer, that the witness be held in summary contempt under rule 42 (a) in the Federal Rules of Criminal Procedures.

Earl Warren:

Well, it’s that (Voice Overlap) —

Hugo L. Black:

Go ahead and read the next.

Myron L. Shapiro:

The court — that’s what I propose, Mr. Shapiro, Your Honor please, I respectfully accept to this procedure and state for the record that this is in lieu of a hearing under Rule 42 and the requirements of due process.

I request that he be served or furnished with the notice in open court of the charges, the specifications and afforded an opportunity for hearing, a full hearing.

The court —

Hugo L. Black:

Why did state open court?

Myron L. Shapiro:

Yes, sir.

Myron L. Shapiro:

I did say —

Hugo L. Black:

Why was that stated?

Myron L. Shapiro:

I beg your pardon?

Hugo L. Black:

Why was it stated that he be summoned or furnished with a notice in open court?

Myron L. Shapiro:

Well —

Hugo L. Black:

You don’t have to furnish him in an open court, do you?

Myron L. Shapiro:

Well — what I know in my brief provision, Mr. Justice Black, I said that I did not believe that it could be factually disputed that the courtroom was cleared at that time.

It is now factually disputed by the Government who was — who was taking some kind of a statement and the Assistant United States Attorney is now with him, is not with the Government anymore and he said that the courtroom was not cleared, but there were no spectators there.

I — I don’t know whether I can be in a position to match my recollection what this meant, this Assistant United States Attorney, but I’m willing to say to the Court that the courtroom was clear.

And it is my recollection that it was clear and that as a matter of fact, the marshal or deputy marshal or the bailiff who has the grand jury in charge, stood outside the courtroom door to keep the people out.

There were strangers into the courtroom that were strangers to the grand jury proceeding, namely, the court clerk, who was not an officer of the grand jury, the judge who was an intruder, if this is in a continuing for the grand jury proceeding then judge was an intruder, I was an intruder and the — the court’s (Inaudible) was an intruder and also, there was another bailiff of the court inside.

Thank you.

Did the — the record show you made any objection?

Myron L. Shapiro:

To these individuals?

To the (Inaudible) by which you’re (Inaudible)

Myron L. Shapiro:

Yes, I objected in the whole procedure.

I requested that we proceed under Rule 42 (b).

I know, but in part of 42 (a) — apart from that, did you object — make any objection to the fact that there is — were or were not people in the court room where the court was (Inaudible)

Myron L. Shapiro:

No, because to fight the District Court’s opinion, I did not consider that this was a continuous of grand jury procedure as I could not concede the grand jury proceedings with the judge presiding, whether it’s in the grand jury room or in the courtroom.

John F . Davis:

Mr. Chief Justice, I misinformed you when I took the list of the cases which are Green cases, our brief — our brief in the Yates case.

Earl Warren:

In the Yates case, yes.

Thank you very much.