Curcio v. United States

PETITIONER:Curcio
RESPONDENT:United States
LOCATION:Plaquemines Parish Courthouse

DOCKET NO.: 260
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 354 US 118 (1957)
ARGUED: Mar 28, 1957
DECIDED: Jun 10, 1957

Facts of the case

Question

Audio Transcription for Oral Argument – March 28, 1957 in Curcio v. United States

Earl Warren:

Number 260, Joseph Curcio versus United States of America.

Mr. Mezansky.

Samuel Mezansky:

May it please the Court.

The petitioner, the secretary-treasurer of a Local of the International Brotherhood of Teamsters was adjudged guilty of contempt of court by District Judge Noonan of the District Court for the Southern District of New York.

The contempt arose out of petitioner’s failure to obey a direction of District Judge Noonan to answer certain select questions as to the whereabouts of the books and records of the local union in a grand jury investigation.

Petitioner’s refusal is based upon the ground of self-incrimination and his privilege to remain silent under the provisions of the Fifth Amendment.

The petitioner’s conduct was treated as a contempt committed in the actual presence of the Court.

And the petitioner was punished summarily and sentenced to six months imprisonment under Rule 42 — 42 (a) of the Federal Rules of Criminal Procedure.

The petitioner was given the right to purge himself of the contempt by appearing before the grand jury and answering the questions.

The District Court held that the petitioner did not sustain the burden of establishing that the answers to the selected questions would incriminate him.

The Circuit Court of Appeals affirmed the order of District Judge Noonan and this Court granted certiorari.

The questions involved upon this appeal are, first, whether it was evident from the implications of the questions and the setting in which they were asked that responsive answers to the questions or an explanation as to why they cannot be answered would be dangerous because injurious disclosure would result.

And the second question relates to the procedure for — in the hearing before District Judge Noonan.

The petitioner made several request for an opportunity to prepare a defense and produce witnesses.

He made several request for a complete transcript of the grand jury testimony.

Doesn’t the Government concede that if the privilege is available, the answers would have been within the privilege (Voice Overlap) —

Samuel Mezansky:

That appears now for the first time.

And I’d like to go right to that.

Yes, I — I think —

It seems to me it eliminates a large part of the case.

Samuel Mezansky:

That’s correct.

On page 35 of the Government’s brief, ninth line from the top, the statement is made that we do not deny in this Court that if petitioner had a personal claim of privilege in regard to such questions, the possibility of incrimination existed under the rule of Hoffman against United States.

So the Government upon this appeal takes a position different from the District Court and contrary to the opinion of the Court Of Appeals.

So in view of this very commendable concession, the issue presented now is a very narrow and legal one.

And that is whether the custodian of the records of a union may refuse on the ground of his personal privilege to answer questions as to the whereabouts of the union books which have not been produced pursuant to the subpoena.

As I stated, this was not the ground upon which the petitioner was adjudged guilty of contempt.

He was found guilty on the ground that he did not sustain the burden of establishing that the answers to the question would incriminate him.

Now, I think we should have a statement — brief statement of the facts because we cannot consider this question of law abstractly without some relationship to the facts for —

Felix Frankfurter:

Please enlighten me.

Do I understand that the Court of Appeals sustained the conviction solely on the ground that the claim of personal privilege was made and that the claim of personal privilege was not well founded?

Samuel Mezansky:

That’s one of the grounds.

Judge Medina also referred to the issue now raised by the Government as to the duty of a custodian to answer questions as to the whereabouts —

Felix Frankfurter:

When you say, now raised, it must have been raised below then and he was — the conviction — he was partly sustained on that ground, wasn’t it?

Samuel Mezansky:

It was, yes.

Felix Frankfurter:

Well, if — if you were right then — then the Government — I may have misunderstood probably there.

I got the impression that he was convicted on one ground, namely, a personal claim of privilege as the Government now said that that was it, it was well founded.

Samuel Mezansky:

That was the ground —

Felix Frankfurter:

And that —

Samuel Mezansky:

Pardon me.

Felix Frankfurter:

— and rather than that the claimed privilege for — for a custodial documents (Voice Overlap) —

Samuel Mezansky:

In the —

Felix Frankfurter:

Is there any difference — what I — if you — he wouldn’t have to answer this question.

Samuel Mezansky:

Yes.

Felix Frankfurter:

Is there any — is there any legal ground why this judgment couldn’t be sustained here on theory that in the record there was a refusal to answer, which is legally baseless?

In that, he has corporate books or documents, whatever they are, as to which he had no privilege?

Samuel Mezansky:

Well, I say no because he had been —

Felix Frankfurter:

He has to know that there is no basis for —

Samuel Mezansky:

There is no basis.

Felix Frankfurter:

I’m not talking about the merit.

Samuel Mezansky:

I say there’s no basis because we must —

Felix Frankfurter:

Not the merits, but was it in issue below and was the sentence impart for asserting a corporate immunity which he can’t assert?

Samuel Mezansky:

No.

Because in the District Court, the sole question as — as posed by District Judge Noonan, was whether that the petitioner was required to satisfy the burden of proof of establishing that the answers to the question would incriminate him.

Felix Frankfurter:

Him, as a person?

Samuel Mezansky:

That’s correct.

Felix Frankfurter:

Not that he can’t assert a privilege for the production of books that aren’t his.

Samuel Mezansky:

That was not argued in the District Court at all.

Felix Frankfurter:

And so far as the record shows, we don’t know — there’s no basis or findings that the District Court would have held him responsible for accusing to answer on that ground and sentenced him on that ground, is that right?

Samuel Mezansky:

That’s correct.

That’s right.

Felix Frankfurter:

So on that concept, we don’t know if this ground is out, either (a), that the District Court would have found guilty or (b), would have given a six-month sentence, was that right?

Samuel Mezansky:

That’s correct.

I would say that’s true.

Felix Frankfurter:

Well, then how could — how could the Court of Appeals have sustained the sentence on that other ground if that wasn’t an issue?

Samuel Mezansky:

Well, it was argued from the first time in the Circuit Court of Appeals, the Government in its brief at the time presented for the first time the question that this petitioner had no privilege in reference to union books and records.

Felix Frankfurter:

And that doesn’t appear at all in the proceedings before the District Court?

Samuel Mezansky:

No.

And that’s one of the points I’m making that he was — the attempt is now made to sustain the conviction upon a ground not urged in the District Court.

Felix Frankfurter:

Well, he — it’s more that.

It isn’t merely a ground.

The Government as anybody else in a litigation can sustain a judgment on any ground to sustain but if I empower you, there was a finding of contempt and a sentence for contempt on a claim of disobedience to the Court’s order, which is very different from the claim that is now made why he was disobedient.

Samuel Mezansky:

That’s correct.

Felix Frankfurter:

Well, I should — that raises the — not the usual questions sustaining the judgment on some other ground on that on which it was rendered.

Samuel Mezansky:

That’s right.

That’s one of the points we urge.

Now, I might point out at the very beginning in view of the fact that the setting becomes important in these types of case that this petitioner was secretary-treasurer of Local 269 and he was served with two subpoenas.

He was served with a personal subpoena and a subpoena duces tecum.

And in each subpoena, he was directed to appear and testify as to alleged violations of the federal conspiracy statute.

Now, those subpoenas appear on pages 47 and 48 of the record and that fact will become significant.

Now, what was the general setting?

This petitioner was served with these subpoenas on April 9th for his appearance on April 10th.

About a week and a half before that date, a grand jury was impaneled in New York to investigate allegations of racketeering in the garment and trucking industries.

This investigation followed widespread public charges that seven local unions were recently chartered by the International Brotherhood of Teamsters to gain control of the Teamsters Joint Council.

It was charged that these seven locals were under the control of labor racketeers and gangsters and particularly one, Johnny DioGuardia.

One Martin T. Lacey was then president of the Teamsters Joint Council had commenced a civil action to declare a certain election null and void.

And in that civil action, Mr. Lacey had made this allegation of fraud.Judge Noonan, who found this petitioner guilty of contempt, had issued a temporary injunction in that action.

The newspapers carry stories about the fact that Mr. Lacey conferred with one of the Assistant United States Attorneys who had questioned the petitioner before the grand jury.

And these charges were dramatized in the local press, so that the setting was such that the petitioner would reasonably have feared that the — and only was he — to be fairly investigated but that he was to be prosecuted.

Now, as we all know in a war, an army starts an attack with an artillery barrage and when such a thing happens, the opposing army knows that it was about to be attacked.

Well, with this barrage of publicity, a lot of it consisting of press releases from the United States Attorney’s office, this petitioner could reasonably have sensed the peril of prosecution for a wide variety of offenses.

Samuel Mezansky:

So when petitioner first appeared before the grand jury on April 10 and his lawyers were then in Albany, he refused to answer most of the questions saying, as appears on page 65 of the record, “You are throwing legal stuff at me and I don’t know whether you are trapping me or not.”

He was told to come back on April 12.

He came back and his attorneys remained in the anteroom.

He denied that he had possession of the books and records at the time he was served with these subpoenas or that he had possession for at least three days prior to the date he was served with these subpoenas.

And then at page 83 of the record, incidentally, the complete transcript of the grand jury testimony appeared in the record before the Circuit Court of Appeals but was not before the District Court, it was made part of the record by consent.

We didn’t have a complete transcript of the grand jury testimony until after the petitioner was adjudged guilty of contempt.

And we — we wanted part of the record, so to show the connection between the — the questions as to the whereabouts of the books and other questions.

We’re beginning at page 83.

We have a series of questions such as these, “Did you try and get in touch with Johnny DioGuardia, who was that well-known a racketeer after he was served with subpoenas?

Did you talk to him?

Did he order you not to produce the books and records?

Do you know John O’Rourke?

When did he last see the records?”

Then, the Government began a series of questions as to where the records were on certain dates.

And the petitioner sensing he was being tracked, said as follows at page 85, “They are leading up to something and I do not know what to do.”

And the Assistant United States Attorney again reframed the questions and asked the petitioner where the — where the books were on various days for about two weeks prior to the time he was served with a subpoena.

And the witness refused to answer those questions on the ground of his right to remain silent.

And he was asked other questions about this local union who this stationary was that permit the stationary.

And finally, he was told to come back on April 17.

In the meantime, the total numbers of questions asked to the petitioner were about 225, most of which he refused to answer.

On April 17th, the grand jury recessed and reconvened before District Judge Noonan.

And at that time, the Assistant United States Attorney submitted as an exhibit only 15 of the 225 questions as the basis for this contempt.

And Judge Noonan asked the petitioner how answering the questions would incriminate him.

The attorney for the petitioner gave a very general explanation and referred to the charges made by Mr. Lacey in the civil litigation that was then going on upstairs.

The court’s rule that the privilege was improperly exercised and direct to the witness to answer the questions.

The petitioner was taken again before the grand jury and he again refused to answer the questions.

He was brought back before Judge Noonan two days later and as the Assistant United States Attorney stated, for the purpose of having the contempt committed in the presence of the Court so that he could be punished summarily.

The petitioner was put on the stand and the Court picked out these 15 selected questions and the Court did not know of the nature of the other questions.

But these were the questions carved out of the 225 questions by the Assistant United States Attorney.

And the — the witness again declined to answer those 15 selected questions as to the whereabouts of the books and records.

Samuel Mezansky:

And the Court stated that under the decision in United States against Trock, decided by the Second Circuit, the burden was upon the petitioner to satisfy the Court that the answers to the questions would incriminate him.

Incidentally, this Trock decision was summarily reversed by this Court in the application for a petition for certiorari after this appeal was argued.

And we made a motion for rehearing on the basis of this Court’s decision.

That application was denied.

Hugo L. Black:

Had we taken that action before the Court of Appeals originally wrote the opinion which is —

Samuel Mezansky:

No, it was after.

Now, the question arose in the proceeding before Judge Noonan, whether this proceeding was a secret proceeding in view of the fact that the grand jury was present.

And the Court remarked, “No, it’s not a secret proceeding.”

And the Court noted that the press was present.

And then on page 34 of the record, there appears a statement by Judge Noonan, which was hardly conducive to a frank disclosure of the reasons for not answering the question, at the bottom of page 34, the Court.

He is probably afraid that if he wakes up some morning with his head in the cement block at the bottom of the East River if he talks too much or at least he has to make some attempt to justify it if he should talk later and say anything.

He has got to make some showing in advance thereof that what he said was minimal and then only because the Court hit him over the head.

The Court — later on, the Court said it was joking but I don’t know whether the petitioner appreciated that humor in any event.

The attorney for the petitioner asked for permission to furnish the explanation in private, not in the presence of the Assistant United States Attorney or the grand jury.

The attorney for the petitioner asked for an opportunity of furnishing an explanation with the Assistant United States Attorney being present but not in the presence of the grand jury.

That was denied.

There are several requests for a complete transcript of the grand jury testimony because the attorney did not know what the nature of the other questions were.

These requests were denied.

And finally, the Court summarily found the petitioner guilty of contempt and sentenced the petitioner to six months.

It was after he was found guilty that the petitioner received a complete transcript of the grand jury testimony and which was incorporated in the record.

And several times during that hearing before District Judge Noonan, there were several requests for an opportunity to — to prepare a defense and produce witnesses and those requests were denied because Judge Noonan move that under — under Rule 42 (a), a summary proceeding, a hearing was not necessary.

Felix Frankfurter:

What — on what ground were the grand jury minutes finally acquainted?

Who furnished it?

Was it by order of the Court?

Samuel Mezansky:

By order of the Court.

The United States Attorney — we — we asked that the — we incorporate in the record before the Circuit Court of Appeals these clippings that appear in the record.

They were not before the district judge.

And that is used — the United States Attorney consented provided we consent that we have the grand jury minutes as part of the record and he obtained an order of the Court permitting those records to be made part of the record.

Now, to complete the picture, I should mention certain facts which occurred after this Court granted certiorari because briefs have been filed by the Government and by petitioner’s attorney with respect to the possible mootness of this case.

Certiorari was granted on October 8, 1956 and about a month later, the Government subpoenaed the accountant and the bookkeeper for the union before the grand jury and they testified that there were certain books and records then in existence in the office of the union.

Samuel Mezansky:

The U.S. Attorney then subpoenaed the petitioner and directed him to produce those books and records which were identified by the accountant and the bookkeeper.

These records were produced and the question arose what effect they would have upon the prior contempt proceeding and the Assistant United States Attorney made a claim that it would have no effect as far as the Government was concerned because the other contempt was one that was committed previously.

And the Government now states in the brief filed on the question of possible mootness and incidentally, the Solicitor General does not claim that this appeal was moot.

But says that now with the books in their possession, the question as to the petitioner’s privilege stands in a different posture and that possibly, the petitioner could go to the lower court and ask for a modification of the sentence.

Now, I —

But the contempt sentence was not for failure to produce the books, was it?

Samuel Mezansky:

No, failure to answer the questions.

Failure to answers the questions.

Samuel Mezansky:

Yes, but they say that now —

(Voice Overlap) —

Samuel Mezansky:

— that they have the books and incidentally, those books contained entries starting with August 1956 and this contempt was committed in April 1956.

But they say that now that they have the books, the question of the petitioner’s privilege stands in a different posture and they feel that if we went before District Judge Noonan, we might obtain a modification of the sentence.

However, in our brief filed, in respect to the question of mootness, we say that the petitioner’s posture has not changed.

He stands convicted of an offense within the sentence of imprisonment of six months.

And he is reluctant at this stage to answer those particular questions on the ground of self-incrimination or to place himself at the mercy of the Court that found him in contempt to court.

And so we say that this appeal is, therefore, not moot and I believe the Government agrees.

But in frankness, these facts were submitted to the Court by separate briefs filed in December of last year.

Now, we come then to the main legal question, the Government concedes that if a — if the petitioner had a privilege, that he made an adequate showing of possible incrimination, so that the Government is now seeking to affirm this order of punishing the petitioner for contempt on a theory, as Mr. Justice Frankfurter pointed out also, different from that on which the case was presented in the District Court.

Now, the Solicitor General argues that a custodian of union records may not refuse on the ground of his personal privilege against self-incrimination to answer questions as to the whereabouts of the union books and records.

The Government says that this issue is purely one of law that no hearing is necessary.

There is no need for any witnesses and that Rule 42 (a) therefore applies.

Now, before discussing that question — that very narrow legal question raised by the Solicitor General, I should like to say something about this procedure under Rule 42 (a).

In the District Court, the petitioner was told very plainly that under the decision in Trock — in United States against Trock, that he had the burden of establishing that the answers to the questions would incriminate.

He was not warned by the District Court that he had no personal privilege in respect to these questions.

So we say that as a matter of simple due process, whether the issue is one of fact or one of law, the petitioner was entitled to some notice that that was the basis of the charge against him.

Rule 42 (a) deals with contempt committed in the actual presence of the Court and upon facts which are within the judges’ personal knowledge.

This Court has held that under Rule 42 (a), knowledge acquired from the testimony of others even the confession of the accused would not justify conviction for contempt without a trial and without giving contemnor an opportunity to defend.

Leading cases, the Terry case, in that case, the marshal was assaulted by a person right in the presence of the Court and there Rule 42 (a) applied and the Court saw the misbehavior.

But in this case, while it is true that the contempt consists of the petitioner’s refusal to answer questions as directed by the Court, the validity of the court’s order, directing the petitioner to answer the question, depends upon facts which were not within the knowledge — personal knowledge of the judge.

And we, therefore, say in the First Circuit, in Carlson against United States so held that under these circumstances, a witness is entitled to notice of the charge against him and an opportunity — he should be given an opportunity to defend the charge and produce witnesses if he so saw fit.

Samuel Mezansky:

He was also entitled to a complete transcript of the grand jury testimony.

That was the holding in another case in the Second Circuit by a different panel of the same court, in Zwillman case.

In that case, the Court — Judge Augustus Hand wrote that the Government was not obliged to disclose the testimony before the grand jury.

But if it chose to adopt such attitude and to confine the defendant’s defense only to showing that the questions asked were incriminating on their face, you could not put him in contempt so long as it prevented him from adducing evidence that would demonstrate that his answers were likely to form links in proof of a conspiracy.

We turn now then to the basic legal issue as to whether or not this petitioner had a personal privilege.

The Government says that as secretary-treasurer of a union, he had no privilege what was bound to answer questions as to the whereabouts of the union books and records.

As I pointed out, this witness was served with two subpoenas.

A personal subpoena and a subpoena duces tecum.

And in each subpoena, he was directed to appear and testify and that we believe is a very significant factor.

We do not believe that this witness can be cutup into different personalities so conveniently and we do not believe that the petitioner’s constitutional rights can depend upon the expert use of the scissors or the carving knife by carving out 15 questions and disregarding the other questions.

Out of an entire interrogation of 225 questions, can we carved out just 15 and say that as to these, although, the answers would incriminate the petitioner that petitioner in his capacity as custodian had no privilege?

We do not believe and we submit that if the constitutional question cannot be decided in a vacuum or in an isolation booth completely unmindful or insensible to all the facts and the fact that this petitioner was a perspective defendant and he was directed to appear and testify in both of those subpoenas.

Now, that fact is significant because we take the Wilson case.

In that case, this Court held that an officer of a corporation could not refuse to produce books and records even though those books and records would incriminate the officer.

In United States against White, that same principle was applied to union books and records.

But in the Wilson case, Chief Justice Hughes pointed out, there is no question, of course, of oral testimony or he was not required to give any.

In the Wilson case, it was simply a subpoena duces tecum with no direction to testify.

Could I clarify my mind on something?If we hold that this privilege was available to him that requires a reversal of this case, doesn’t it?

Samuel Mezansky:

That’s correct.

Because the Government’s concession as — is that the privilege was — there were sufficient grounds for believing he’s been incriminated.

Samuel Mezansky:

That’s correct.

Is that right?

Samuel Mezansky:

That’s right.

And if we hold that the — the privilege was — was not available and what is their basis on —

Samuel Mezansky:

Well, then you would be affirming a judgment on the ground other than that urged in the District Court.

Well, so what —

Samuel Mezansky:

Now, in the Wilson case, he was not required to testify.

In the White case, which was the case which applied to union books and records, Mr. Justice Murphy pointed out that there was no effort or indicated intention to examine him personally as a witness.

Well, those cases have no application and both of those cases were based upon the fact that a witness may not complain if records which were semipublic in character furnished the incriminating evidence.

And the question now presented is whether these principles in these cases may be projected to require oral testimony of an officer which concededly would be incriminated.

Samuel Mezansky:

Now, the argument is made that if a witness of a corporation — an officer of a corporation or an officer of a union is required to produce books and records, shouldn’t he be required to answer questions auxiliary to their production?

That is as to their whereabouts.

There is a case in the Second Circuit where such — such statement was made in the Court’s opinion but that referred only to the identification of the records.

That was the Austin-Bagley case.

In that case, the defendant was charged with a violation of the National Prohibition Act.

The United States Attorney introduced the books and records of the corporation.

The counsel for one of the defendants, the officer, objected on the ground that the records were not identified and the United States Attorney called as a witness, the defendant officer, and asked him to identify these records.

And the Court held that he was required to identify the records because that question was auxiliary to the production of the books and records.

There is no decision on this precise question by this Court and the question has not appeared in any other decision and the only case directly in point on this precise question is a decision of a New York court recently rendered where it was held that an officer of a union could refuse to testify as to whereabouts of the union books and records.

Now, the Government says that we could have obtained this information in another way.

We could have started a proceeding to punish this petitioner for a contempt for failing to produce the books and records.

In that proceeding, he would have been required to furnish a reasonable explanation as to the whereabouts of the books and records.

Now, there is a decision in the Eighth Circuit, in Lopiparo against United States, decided in 1954, where the Court held, it was a 2-to-1 decision, where the Court held that in such a proceeding to punish a witness for a contempt for failing to produce corporation books and records, the witness was required to furnish an explanation as to their whereabouts.

There’s a case that arose in the Circuit Court of Appeals for the District of Columbia, Traub against United States, which rejects that reasoning and the Court stated to refuse to follow the Lopiparo case and gave adverse reasons the following.

In other words, the witness can choose his own brand of hemlock.

He can destroy himself either by failing to produce records called for by subpoena, even they were not in his possession or control when the subpoena was served, by refusing to answer questions even if he has claimed the privilege — the protection of the privilege and there has been no judicial determination that it is not available or by giving incriminating evidence.

The Court stated that that view was plainly untenable.

Now, we say it’s no answer that the Government could have started a proceeding to punish for a contempt for failing to produce these records.

In such a proceeding, the burden of proof would have been upon the Government to establish that these books and records were in the possession of the petitioner.In that proceeding, there would have been the presumption of innocence.

In that proceeding, the petitioner could have submitted other remedies rather than his own testimony as to the whereabouts of the union books and records and not be required to furnish the incriminating evidence from his own lips.

We recognized that the Fifth Amendment was written in part to prevent any Congress or any court or any prosecutor from prying open the lips of an accused to make incriminating statements against his will.

This Court has greatly spoken out plainly about the Fifth Amendment that is to be given a liberal application that it was not a historical relic to be tolerated.

It is not a constitutional nuisance.

We say that the principles of the cases in the Wilson or White cases should not be projected to require a person to furnish the incriminating evidence out of his own lips.

The argument of the Government cannot be reconciled with the principles established by the decisions of this Court as to the application of the Fifth Amendment.

We submit that this petitioner should not be required to testify to facts which would furnish a link in the chain of testimony to convict him.

No subtle or fine distinction should be permitted to deprive this petitioner of his privilege to remain silent and the Government has conceded that if he answered these questions, they would incriminate him.

Judge Medina, writing for the Circuit Court of Appeals, stated that counsel seems to suppose that notorious criminals, racketeers and unsavory characters generally have an open sesame to the privilege guaranteed by the Fifth Amendment.

We suppose nothing of the kind.

The rulings of this Court require that any assertion in good faith of the privilege against self-incrimination must be respected, whether the privilege is asserted by a criminal, a Communist, a school teacher or a business person.

Samuel Mezansky:

We say that by reason of these facts, the foregoing principles, this letter should be reversed.

Earl Warren:

Ms. Rosenberg.

Beatrice Rosenberg:

Let me first clarify the procedure here and explain why we think that the issue that we say is here, we think the Court can decide here.

This determines the petitioner was served with two subpoenas, a personal subpoena and a subpoena duces tecum to him as secretary-treasurer of Local 269.

And it was served on April 9th, this may be turnable to 10th, but because the counsel wasn’t available, it was put off until the 12th.

Now, on the 12th, he was asked a lot of questions not only in his capacity as secretary-treasurer, not only in relation to the subpoena duces tecum but others and he claimed the privilege in regard to most of it.

Nothing happened, he — he was simply told to come back on the 17th before the grand jury.

And when he came back on the 17th, the only questions that were put to him were the questions that are, at pages 6 to 7 of our brief.

They are the only questions involved in this proceeding.

Those were the only questions asked of him on April 17th before there’s been any request to the Court for a ruling, any of the sort.

And at that point, the Court looked at those questions.

They are all, all 15 of them, concerned with where are the union records to which the subpoena duces tecum relates?

Harold Burton:

They don’t depend in any way on the other 200?

Beatrice Rosenberg:

No.

And they weren’t put to him.

As to the other 200 or on April 12th, there was no request for a ruling by the Court.

Nothing was done.

He was simply told to come back.

Then when he came back on the 17th, these 15 questions were put to him.

He refused to answer.

Now, some of these had been put to him back in the 12th, some had — and was mixed in with the other things.

When the attorney came on the 17th, these had been called out and were put to indirectly and they all related to these records.

I think it’s fair to say they were — he had been — let me say this, that on the 12th, he had said that the union had books to his knowledge.

He had seen them and they weren’t in his possession — in his possession at the time that the subpoena was served on him.

But he claimed the privilege as to whether he knew who had possession whether they were in his custody as distinguished from possession and as to where they had been a few days before.

So that — as I say that happened on the 12th and he did admit the union had the book that he didn’t have it in his possession.

When he came back on 17th, these questions, I think, can fairly be said to try to reach the question of were they in his custody, is not in his possession or did he know where they were, were they in a possession of the union, as the union which after all was the organization who’s books were subpoenaed and he was the officer who would normally have charge of those books.

Well, he claimed the privilege then on the 17th and it was at that point that the grand jury reconvened or if they came before Judge Noonan for a ruling on the question and it was at that point that they read only these 15 questions and asked for a ruling from the judge only on these questions relating to the custody in control of the union’s book.

The United States Attorney made no attempt to put anything else at issue.

And it is true that they didn’t argue with in exactly the same fashion that we intend to argue here, the reason why he had no privilege with regard to these books.

Beatrice Rosenberg:

They talked about the fact that he didn’t make a showing of incrimination.

But the fact is that the only question on which a ruling was sought were these questions about the union book and that was what the judge ruled and he had no privilege in regard to.

Again — perhaps, the ruling might have been more articulate from our point of — of our theory —

Earl Warren:

Where is the — where is the ruling, Ms. Rosenberg?

Beatrice Rosenberg:

At pages of — 15 of the record.

He said — and I will just have to read it, Your Honor, in the middle of the page, “All the ones I heard, he’s now read to me seem repetitions and certainly the ones that I have heard have been properly asked and should be answered.”

That’s 15.

And if you look over at page 16, the fact that this was solely confined to the books and records was certainly made clear to everybody because at page 16 of the record, the Government counsel said, where it says Mr. Wachtell, “I would like to check the record that there are other questions not pertaining to the books and records,” which it has been indicated to the Court that the witness did not answer on a prior proceeding.

The Government might feel at some future day that these questions are probable, so that everybody knew that these questions were combined to the books and record, all that — which I say, the theory wasn’t spelled out in exactly the same fashion.

I hope to discuss it here.

Hugo L. Black:

May I ask you a question about —

Beatrice Rosenberg:

Yes.

Hugo L. Black:

— these questions?

All of them related to whether something had happened to books in the last week, is it not or were they had been taken.

Beatrice Rosenberg:

Or where was that.

That’s right —

Hugo L. Black:

Yes, (Voice Overlap) —

Beatrice Rosenberg:

— who had custody and control.

Hugo L. Black:

Now, had he been ordered to bring those books the week before he failed to bring them?

Beatrice Rosenberg:

That’s right.

It was the subpoena duces tecum —

Hugo L. Black:

If he failed to bring them, was that a crime?

Beatrice Rosenberg:

Without adequate excuse.

Hugo L. Black:

Well, if he admitted then that he had — if he had answered these questions or assuming that he had violated the law and failed to bring them, was guilty of a crime.

Will you not — was he was not asked questions that would certainly tend to incriminate him?

Beatrice Rosenberg:

Yes, Your Honor.

He was asked questions that would tend to incriminate him.

Hugo L. Black:

Is about the book.

Beatrice Rosenberg:

And the issue —

Hugo L. Black:

I’m talking about the books, custody of books.

Beatrice Rosenberg:

That’s right.

Hugo L. Black:

And your — your contention is that even though it would tend to incriminate him because this was about the custody of books, he nevertheless could be compelled to incriminate himself.

Beatrice Rosenberg:

Well, that goes that our petition is that —

Hugo L. Black:

That if — wouldn’t that be the result?

Beatrice Rosenberg:

— that this Court decided that in the White case, yes, Your Honor, and in the Wilson case because in that case, in both those cases —

Hugo L. Black:

How they had to bring the book?

Beatrice Rosenberg:

They had to bring the book —

Hugo L. Black:

That’s right.

Beatrice Rosenberg:

— even though the book would show that they had committed a crime.

Hugo L. Black:

But has it ever been held so far that a person who might be under suspicion of having violated the law and subjected himself for a criminal prosecution failing to bring those books could be compelled to incriminate himself about him and confess it?

Beatrice Rosenberg:

There is one holding on this precise issue which is by the Second Circuit, in the Field case.

Hugo L. Black:

Has this Court ever held it?

Beatrice Rosenberg:

No, this Court has not.

Let me say, however, that in the White — in the Wilson case, the defendant who was told to bring the book there was under — already under indictment.

Two indictments had been returned against him and he still had to produce the books.

And the whole rationale, as I understand it, is that the corporate book — the corporate books or the union books are something separate and apart from the right of the individual.

Now, of course, whenever we’re dealing with this artificial entity, you can’t actually separate the entity from the individual.

It will become a legal question of, are we going to consider the entity and this individual merged into the entity and forget about his individuality or are we going to consider the individual and disregard the entity?

And it seems to me that it follows, despite the fact that this is testimony and other is producing books seems to me a different — without distinction because there’s no question about the fact.

It goes back to Boyd against the United States.

That is their — the privilege.

It goes to the book.

If this man — if these were his books, he couldn’t be subpoenaed or at least he could claim the privilege in regard to showing them to the grand jury.

And he certainly couldn’t be compelled to produce them at a criminal trial.

That would violate his privilege.

So that it doesn’t seem to me the question of whether there is or is not a privilege can be said to stem from the fact that one is bringing in the book and the other is explaining why you didn’t bring them.

Supposing this man had taken these books and used them for — to start a fire, to burn down a government warehouse and then, he is called before the grand jury on that charge and he is asked the question, did you use these corporate books to start that fire?

Can he claim his privilege?

Beatrice Rosenberg:

I — maybe so, Your Honor.

Let me — this is fairly an extreme case, but let me be, what I think —

Extreme case, but it —

Beatrice Rosenberg:

Where I think — what I think the law and legitimately is which is that it seems to me it goes as far as the union duty is.

Now, the union duty, the union, the owner of the books, his duty is to produce the books or to give an adequate excuse for nonproduction under Rule 17.

But then he gets punished for not producing the books.

Beatrice Rosenberg:

Well — but I say, the union’s duty is to produce the books or give an adequate excuse.

Now, it seems to me that in relation to the books, the personality of the custodian disappears.

Hugo L. Black:

Well, the personality could be sent to jail if he could confess he is guilty, doesn’t it?

Beatrice Rosenberg:

That’s right.

But the personality could be sent to jail in the White case on the basis of what the book show.

Hugo L. Black:

But they didn’t try to prove there to make a man confess a crime there, did he?

They made him produce some books and that was the (Voice Overlap) of the judge —

Beatrice Rosenberg:

In the Wilson case —

Hugo L. Black:

— if they have it.

Beatrice Rosenberg:

The book — and presumably in the White case, the book that he was compelled to produce were books which could send him to jail.

William J. Brennan, Jr.:

Yes, but Ms. Rosenberg, did I understand you to answer Mr. Justice Black, these questions where or any of all of these records a week ago or yesterday Monday, where or any of all of those records a week ago, Saturday, where or any of these records or all of these records a week ago, Thursday that the Thursday, Saturday and Monday or one of them perhaps was a day upon which he’d been subpoenaed to produce those books?

Beatrice Rosenberg:

These were all before.

Well, no, some of them were —

William J. Brennan, Jr.:

Well, was anyone of those days, a day upon which he’d been ordered subpoenaed or otherwise required to produce books?

Beatrice Rosenberg:

Yes, Monday was the day that he was subpoenaed and some of them were before and some of them were after.

William J. Brennan, Jr.:

I know but he was under some order of some kind to produce on one or more of those days, was he?

Beatrice Rosenberg:

He was — this was Thursday.

William J. Brennan, Jr.:

I’m looking at page 7 of the questions on page 7.

Beatrice Rosenberg:

Well, that’s right.

One of the things that happened was that they repeated the days at the latter hearing.

William J. Brennan, Jr.:

Well, whatever that may have been, was anyone or more those days, a day upon which he’d been under order to produce books?

Beatrice Rosenberg:

That’s right.

William J. Brennan, Jr.:

And was there a possibility that for failure to produce on anyone of those days, he might be prosecuted for a crime?

Beatrice Rosenberg:

Obstruction — if he — obstruction of justice.

William J. Brennan, Jr.:

All right.

Now, that be —

Beatrice Rosenberg:

I think — by the way, Your Honor, that that might even be true of some days before not knowing that.

William J. Brennan, Jr.:

Well, I’m speaking of these particular questions.

In any event then for failure to have produced books on any one or more of those days, there was a possibility of prosecution for crime, obstruction of the justice or otherwise, is that right?

Beatrice Rosenberg:

That’s right.

William J. Brennan, Jr.:

Well, then how can possibly — the Government argued that when these questions were asked on the day they were asked, an answer didn’t lead to the possible confession of guilt of some crime.

Beatrice Rosenberg:

We don’t argue that they weren’t incriminating.

What we say is that this Court held in the White case that a custodian of books and records of an entity doesn’t have a privilege in regard to those books and records.

His personal privilege even of those books and records implicate him in a crime.

In the Grant case —

William J. Brennan, Jr.:

No, it’s not — not the contents of the books or — or records that I thought we were dealing with but his failure here to produce whatever his reason may have been for not producing, on any of those days exposed him to the possibility of prosecution for crime.

And on that circumstance, why isn’t he justified at asserting the privilege against answering the question, where were they on Thursday, Saturday or Monday because if he admitted that he knew, he contribute to the Government’s case against them for failure to have produced the books on one of those days.

Beatrice Rosenberg:

Because in this catastrophe, he happened to be — if one starts with the — with the premise of the White case is that when one act for the organization, you simply have to disregard the individual.

William J. Brennan, Jr.:

Well then, is that to say this could have happened, suppose he’d answered one of these questions, where were the — any of these records or all of these records that we can go Thursday.

And he were to have answered that having — fail to produce them on that week ago, Thursday, he were to have answered it, they were in my office.

Could the Government then have indicted him for failing —

Beatrice Rosenberg:

I suppose so, yes.

William J. Brennan, Jr.:

— to produce the records a week ago, Thursday?

And used his admission that they were in his office on that day and he knew where they were to support the prosecution?

Is that your position?

Beatrice Rosenberg:

As I say in the Wilson case, I don’t think that that’s really any different from the situation where Wilson who was under two indictment was told to bring books, which when he produced them, would be induced evidence against him at this indictment.

William J. Brennan, Jr.:

Well, the —

Beatrice Rosenberg:

Now, we — but this Court held in the Rogers case — not held, I should qualify that suggestion in the Rogers case in discussing something else or assumed in the Rogers case that the secretary of the Communist Party, of a particular local, couldn’t refuse to produce the books to the Communist Party because they weren’t her books.

And under that, the mere fact of the production in that case, the mere fact of bringing the records into court would have been a change in some evidence against her in a prosecution for — Smith Act or something of that sort.

But the Court said those aren’t her books.

It was perfectly clear that if somebody else had those books and they — we’re told to bring them in, no matter how it — no matter how they would incriminate the petitioner, they would be brought in for the theory of the corporate or association books as been, that the books of an association are so different and apart from the individual that even though the individual was the one whose before the Court, we have to considerate it as something different that the entities can’t act except through individuals, that’s true.

But when a man is asking for a union, he is asking at something different from what he’s asking for himself.

And on that theory, it is the union’s duty to account for the books.

And that’s theoretical basis, of course, it has certain practical effects.

Now, what actually happened in this case, of course, is implicit.

In the record, if a man can come in, a custodian, who has no personal privilege in regard to the book, can come in and merely say, “I don’t have them in my possession.”

Beatrice Rosenberg:

And then refuse to say, “Did you turn them over to anybody else in the union?”

Then, you really do get again hard to see.

And so, you just pass it from one union officer —

Hugo L. Black:

Is that in the —

Beatrice Rosenberg:

— to another.

Hugo L. Black:

— is that in the words of any other case of failing to answer (Voice Overlap)?

Beatrice Rosenberg:

I think so, Your Honor, because I think that if you go through the cases, you’ll find that no matter how much the Court — with great weight, the Court has given to the privilege.

It has always not sure of allowing constitutional rights, the Board’s amendment, the privilege, that same type of being used as an affirmative light.

Hugo L. Black:

Well, what you — what you’re saying is the fact that the Fifth Amendment says that no witness could be compelled to give evidence against himself, except in connection of the charges that he failed to produce books.

Beatrice Rosenberg:

No, I don’t think, sir —

Hugo L. Black:

Well, that’s what it amounts to.

Beatrice Rosenberg:

— except in connection with —

Hugo L. Black:

That’s what it amounts to.

Beatrice Rosenberg:

— books that are not his book.

Hugo L. Black:

Well —

Beatrice Rosenberg:

Now, that’s the distinction between the Traub case.

Hugo L. Black:

No man — you then — you demanded by saying that no person should be compelled to be a witness against himself, except in connection of the charge that he failed to produce books —

Beatrice Rosenberg:

But they’re not in —

Hugo L. Black:

— what he had as a custodian and then he can be compelled to confess his guilt.

Beatrice Rosenberg:

I think, Your Honor, that this Court so held in the Wilson case, and in the White case and then the whole string of cases.

Tom C. Clark:

In White —

Beatrice Rosenberg:

They said —

Tom C. Clark:

All White — that’s not all in White now, was it?

To force him to produce the books, that goes against him —

Beatrice Rosenberg:

Well, I don’t see —

Tom C. Clark:

— to produce the book.

Beatrice Rosenberg:

— that that’s any different.

He is compelled to bring in the book — to bring in books that might show that he committed all sorts of crime.

William J. Brennan, Jr.:

But, Ms. Rosenberg, isn’t it —

Beatrice Rosenberg:

All right, the Court so held — let me say this in relation to the sole stockholder of a corporation, after the corporation has been dissolved, that’s Grant and Wheeler in 226 U.S.

Beatrice Rosenberg:

Now, I don’t see that a sole stockholder bringing in the books, which show that he committed all kinds of embezzlement is any less incriminating himself, then the man is — we’re not asking to incriminate himself.

We’re only — all that he has been told to do is to bring in the book.

If he has a reasonable explanation and offer why he can’t —

Hugo L. Black:

Well, if he —

Beatrice Rosenberg:

— that would be expected.

Hugo L. Black:

Well, if he doesn’t have a reasonable explanation to make him tell it, what then?

Beatrice Rosenberg:

Well, the alternative, Your Honor, it seems to me the alternative suggestion is we punish him for not bringing in the book and then ask him to come forward with the explanation.

It seems to me a very round of that way of accomplishing the same failure.

Hugo L. Black:

Well, if you ask if he wouldn’t have to come forward then.

When you charged him with it, he wouldn’t have to testify if he wanted to.

Beatrice Rosenberg:

He wouldn’t have to testify.But it seems to me that under the cases, once the books are in existence, once he’s a normal custodian to those books, he goes to jail, unless he explain.

That’s what the Court of Appeals in New York held.

William J. Brennan, Jr.:

For nonproduction?

Beatrice Rosenberg:

For nonproduction.

William J. Brennan, Jr.:

The questions in answering the questions about the books (Inaudible)

How could —

Beatrice Rosenberg:

Is it real —

William J. Brennan, Jr.:

— how could you tell the (Inaudible)

Beatrice Rosenberg:

I’m not melding them.

I’m saying that’s the alternative open to the Government.

I think it exists.

William J. Brennan, Jr.:

Well, Ms. Rosenberg —

Beatrice Rosenberg:

That’s what the Court of Appeals in New York had held.

They said he doesn’t have to answer any questions about the books but he goes to jail for nonproduction.

In other words, you — you go to jail in order to force an explanation from him.

It seems to me, more honest, more — definitely accomplishing the purposes of the grand jury to say these aren’t your books.

You’re here only insofar as you represent the union.

Now, the union’s duty is one of two things, not just one.

The union’s duty is to produce the books no matter how much they incriminate you personally.

Your duty as a union officer is to produce those books no matter how much they’re going to send you to jail.

Beatrice Rosenberg:

And the union’s duty that doesn’t produce them is to account for them.

And if — as you’re here as a union officer, you’ve got to carry out the union’s duty.

And the union’s duty is to account for the book.

Now, once you account for the books, we’re through.

And I started — I think I got interrupted when I started saying your explanation of burning, that it seems to me that you showed the books were burned that, thereafter, we couldn’t ask him.

Were they burnt in your direction?

Were they burnt before or after the subpoena?

As soon as he have accounted for the books, we agreed that we are through.

And on that basis, may I explain what I saw as embezzlement about — about our concession in regard to mootness.

The judgment here with six months in jail with opportunity to encourage himself by answering these questions.

What we said was we can see that these we have the right to ask these questions only to the extent if they enable us to get the books that this Court said we’re entitled to have, the union books.

Now, we’ve got those books and at this point, with the books in our hands, if he’s asking question, he’s got a personal claim of privilege.

We don’t deny that.

We say he doesn’t have a claim of privilege so long as the union, whom he represents, hasn’t complied with its duty.

Now, the minute the union complied with its duty, his representative duties are over and he’s an individual.

And so, the question we had about mootness was that the opportunity to purge is — in the practical sense go.

And the question was, did that make it criminal or civil?

Earl Warren:

Ms. Rosenberg, I understood Mr. Mezansky to say that these books weren’t even prepared until after — after this man was convicted of contempt.

So how could — how could he have —

Beatrice Rosenberg:

Mr. —

Earl Warren:

— delivered the books if we’re not even prepared —

Beatrice Rosenberg:

Mr. Chief Justice —

Earl Warren:

— before that?

Beatrice Rosenberg:

— there’s a very curious thing about these books.

On the basis of that segment, I ask him as they turn it specifically and he tells them specifically that they regard the subpoenas and had to have him — he didn’t — complied with.

Earl Warren:

I beg your pardon?

Beatrice Rosenberg:

They regard the books in their hands as the books called for by the subpoena.

So we have a very curious situation of the defendant suggesting.

He can say though just — just — that maybe this won’t the same books that subpoena called for.

Earl Warren:

What is the fact?

Earl Warren:

Were they — are they books that were prepared after this man was convicted —

Beatrice Rosenberg:

No, they have entries afterwards.

Earl Warren:

I beg your pardon?

Beatrice Rosenberg:

They have entries afterwards.

As I say, I don’t know.

I specifically asked the United States Attorney.

He thinks these books were there before.

They had very sketchy entry.

This is one of the items, one of the questions in this case as the sort of paper character of this local.

So the books were very sketchy in the early period and the entries were more careful as I get it after the subpoena — after this conviction.

Earl Warren:

Well, you wouldn’t want us to declare this case and move just because somebody might think those things if there was nothing in the — in the record to establish it then —

Beatrice Rosenberg:

We had —

Earl Warren:

— that the indication is —

Beatrice Rosenberg:

We had never contended that the case was moot.

Earl Warren:

— that there were books that was prepared after the — after the man was convicted.

You wouldn’t ask this?

Beatrice Rosenberg:

No, we — if the subpoena wasn’t complied with, we don’t regard it as any question of mootness.

It was on the assumption that we got from the United States Attorney that this book, that these questions were designed to get had gotten into his hand that we raise the question of mootness —

Earl Warren:

Well, it would seem to me —

Beatrice Rosenberg:

— because the whole purpose of this was to get the books.

Earl Warren:

I know.

But it would seem to me that the Government would be a little more precise in this information that it’s apparent we would want on the — on the questions to that kind is to whether the books actually were in existence or whether they were not.

And just to say that — that you didn’t really pursue it but that the United States Attorney thinks it might have been —

Beatrice Rosenberg:

Well —

Earl Warren:

— you might have been —

Beatrice Rosenberg:

— I — I probably haven’t been —

Earl Warren:

— prepared before.

That isn’t the very accurate.

Beatrice Rosenberg:

I haven’t been accurate to him.

He said it would appear at this time, there has been a production of all existing books and records of Local 269 demanded in either of the two subpoenas.

Beatrice Rosenberg:

The only reason I just want to say so definitely is that presumably they may know some books the United States Attorney doesn’t know.

The United States Attorney thinks he’s been complying.

But it — it’s their suggestion that cuts down on the complaint — comply.

They may know some books that we don’t know about.

We — we have them all.

Charles E. Whittaker:

They review that if this case is mooted at all upon the ground that the books have in fact been produced?

Beatrice Rosenberg:

No, it’s our view that it’s not because what we have is an in between judgment.

The rules are clear.

Charles E. Whittaker:

Well, are you — I’m — this is the only thing I understood in this case.

Does the Government concede that what has been done in respect to these books constitutes of purge to this defendant on the sentence?

Beatrice Rosenberg:

No.

Charles E. Whittaker:

Well, then you (Voice Overlap) —

Beatrice Rosenberg:

The reason that we raised the issue was this.

We concede that at this point, these questions which the Court said could purge the contempt are in a different posture than they were before because we concede that the only — we could ask these questions only insofar as they were auxiliary to getting the books.

Charles E. Whittaker:

Well, this position then would cut the defendant off the pockets and deny him an appeal, perhaps even a meritorious one, wouldn’t it?

If we followed the position that this is a moot case now, still be a sentence outstanding against the defendant —

Beatrice Rosenberg:

Oh, no.

If the case were moot, we would agree that it wouldn’t be remanded and admit if the case were moot.

If the — if this had been a civil contempt that he should remain in jail until he purged himself, it’s clear, I think, that it would be moot because even though he reluctantly — and the books were produced reluctantly, they were produced.

And therefore, the whole case would be moot ab initio.

Earl Warren:

I thought you did tell us —

Beatrice Rosenberg:

On the other hand —

Earl Warren:

I thought you did tell us that the judge gave him an opportunity to purge himself.

Beatrice Rosenberg:

By answering the question.

Earl Warren:

Yes, but not by —

Beatrice Rosenberg:

Though different.

Earl Warren:

— not by producing the books.

So you do make the distinction yourself between the act of producing the books and the answering of these questions.

Beatrice Rosenberg:

He wasn’t put in contempt for failure to produce the books.

The Government didn’t conceive it that way.

Beatrice Rosenberg:

They tried to get a ruling that he should tell them where the books were, instead of just automatically putting him in jail for failure to produce the book.

And the — on that basis, the only thing that was before the judge was a question, presumably, preliminarily because if the defendant had disclosed where the books were that would have been the end of the matter and it wouldn’t have been unnecessary to proceed with the jail sentence for failure to produce the book.

Earl Warren:

Where do we — where do we find the precise words of the judge in finding him guilty?

Beatrice Rosenberg:

Oh, there’s a certificate of contempt.

Earl Warren:

Where is that?

Beatrice Rosenberg:

That’s at page 43 to 45 of the record.

Earl Warren:

43.

Beatrice Rosenberg:

And there’s an order at page 41 to 42.

The — the contempt is — the actual wording of the sentence is at page 42, “Held him close confinement for a period of six months and that he may purge himself of that contempt by appearing before the United States grand jury in answering questions in direct.”

Earl Warren:

Now, what does he say he is convicting him for —

Beatrice Rosenberg:

Failure to —

Earl Warren:

(Inaudible)

Beatrice Rosenberg:

— answer the questions that are set forth in the certificate of contempt.

Earl Warren:

Where is that?

Beatrice Rosenberg:

On pages 44 to 45.

Earl Warren:

Well, it must have been some place between 40 and 45.

I — I would like to see what —

Beatrice Rosenberg:

42 was the sentence and 43 to 45 are the certificate of contempt, 43.

Earl Warren:

All right.

You may proceed Ms. —

Beatrice Rosenberg:

Well, on this question of mootness, this is — we have an in between situation.

If he had simply been punished for refusing to answer the question, that would have been a strict criminal contempt and there’s no question about the fact that it would survive no matter what happened later on to that book.

If this had been a civil case where it was purely remedial and the judges said you’ll stay in jail until you answer the questions, then the purpose of these questions is to get the book.

Once the book got there, we would agree the case became moot.

Now, the reason we filed the memorandum bringing them back to the attention of the Court is that this is sort of in between the two.

It’s criminal and that then that he is being punished for failing to answer.

But the judge did give it a remedial term by saying, “Well, I’ll cut down your sentence if you answer the questions that will help us get the book.”

When we went into this matter further, we decided that under the authority and particularly, the decision of this Court in Grant against the United States in 227 U.S, the case was not moot because the Court had said that even though you have an opportunity to purge, if the criminal case under the old procedure reviewable by writ of error.

And therefore, the primary derived of the sentence is criminal.

On that basis the case is not moot.

Beatrice Rosenberg:

Although as I say, we do admit that the opportunity to purge is in a different posture to this Court since the Government does have the book.

Well, basically, that is the Government’s position that this is no different from what this Court has held in Wilson and in Grant and in Wheeler and in —

William J. Brennan, Jr.:

Tell me, Ms. Rosenberg, were both Wilson and White cases of prosecution for a contempt for disobedience of the subpoena itself?

Beatrice Rosenberg:

That’s right.

That — that’s the way the question came up.

William J. Brennan, Jr.:

Well, I mean in —

Beatrice Rosenberg:

Yes.

William J. Brennan, Jr.:

— both instances, the subpoena was to produce books and the books weren’t produce and then, the one upon whom the subpoena was serve was prosecuted for contempt —

Beatrice Rosenberg:

(Inaudible)

William J. Brennan, Jr.:

— for failure to produce books.

Beatrice Rosenberg:

That’s right.

William J. Brennan, Jr.:

And then there’s at least this fact difference that the Government didn’t pursue that course in this instance.

I suppose you could —

Beatrice Rosenberg:

Well, of course, in both those cases.

William J. Brennan, Jr.:

No, but that was the fact.

Beatrice Rosenberg:

That was the fact.

William J. Brennan, Jr.:

And that’s not —

Beatrice Rosenberg:

I’m going to say —

William J. Brennan, Jr.:

— and the Court — and the Government did not pursue that course in this case.

Beatrice Rosenberg:

No, but they — there was this — an additional factual difference.

Then in both of those cases, they admitted that they had the book.

William J. Brennan, Jr.:

Yes and I — I take it.

You didn’t pursue — or the Government didn’t pursue that course here because they could not approve essential to a prosecution for disobedience of the subpoena.

Beatrice Rosenberg:

Oh, I don’t think so, Your Honor, because it seems to me that under the — well, the recent — the other decision by this Court and the Lopiparo case in the Eighth Circuit that the Government could have proceeded that way.

It seems to me that —

William J. Brennan, Jr.:

All right.

Then I take it, it did not.

And I think you —

Beatrice Rosenberg:

They didn’t.

William J. Brennan, Jr.:

— you told me earlier that it might have proceeded that way as a prosecution for contempt for disobedience of the subpoena or perhaps by a prosecution for obstruction of justice.

William J. Brennan, Jr.:

In other words, prosecution of the offense of obstructing justice.

Beatrice Rosenberg:

Yes —

William J. Brennan, Jr.:

Yes.

Beatrice Rosenberg:

I suppose it would have gone back and forth.

William J. Brennan, Jr.:

Well then, when — does this difference then when we get to the day when Judge Noonan put this question, “Where were those books a couple of weeks ago?”

On that occasion, when those questions were put, they are hung over the head of this defendant, the possibility being prosecuted for a crime.

Beatrice Rosenberg:

Actually, that’s right.

William J. Brennan, Jr.:

All right.

Beatrice Rosenberg:

We — as I say, I — we have said in his brief and — and we don’t retract in position that if there is a personal privilege in regard to this, there’s — there’s all kinds of basis.

There’s a basis of the fact that after all if the Government found the book, they’d involve him and not only in the prosecution for a contempt but they might involve him in all the offenses that the book would show too.

But as I say, there’s no question about the fact that in Wilson, he was already indicted for a crime and the books were, I think admittedly wanted — well, they — prior the same investigation in any case, so that they were there.

And it seems to me to make a different as the Court hadn’t really recognized in other situations between written and oral testimony that is — the fact that something — that bringing in a book will implicate you in a crime.

It doesn’t seem to me to be essentially different from the fact that answering a question will implicate you in a crime.

The real question is, since these aren’t your books, then they belong to this artificial entity.

Can you obey the duty of the entity simply by saying, “Oh, but this is going to implicate me personally.”

The Court said you couldn’t do it even though those books might involve you in all sorts of things.

It held that you couldn’t do it even as I say in relation to a sole stockholder of the dissolved corporation and where the corporation has no longer had existed.

The only person interested was the defendant.

That was in Grant and Wheeler.

The Court said, nevertheless, those aren’t your books and you’ve got to produce them.

So that I don’t see the fact that this is oral testimony, if so can — makes this situation that different.

And as to this matter about proceeding for failure to produce the books, it just seems to us a really more direct recognition of the custodian’s duty to say, “No, you’re a custodian.

You — you got to account for the union books because they aren’t your books.

They’re the union’s book.”

Then, it is to go ahead and say, “As a New Yorker it feels he did.

Well, you can claim your privilege but you got to have the bounty for nonproduction.”

And the Court — this Court’s Wilson case is clear.

Hugo L. Black:

That was — that wasn’t quite all in New York, was it?

They proved to the inference that he has failed to produce them.

Beatrice Rosenberg:

So this man said he had — the books were there.

Beatrice Rosenberg:

The books were in the union’s possession.

He admitted that.

They were in the possession of the union.

Hugo L. Black:

Yes, but you haven’t prosecuted him for that.

In New York, what they did I assume was to prosecute a man for failure to produce the books and proves that he has the books, deliberately refused to produce, wasn’t that the bases of that?

Beatrice Rosenberg:

Well, if — for nonproduction.

No, he didn’t produce them and — well, this is a man who admits that the union has book, admit that the union has book.

The subpoenas directed to him as treasurer of the union.

The union was supposed to bring the books.

Now, suppose the subpoena had gone, instead of being directed to Joseph Curcio, as secretary-treasurer, it had been directed to Local 269, just as such the Wilson case, it was addressed to the corporation.

The Wilson case said if it’s addressed to the corporation, how do you punish the corporation?

You punish the person who represents the corporation.

Who taught — who represents the corporation in relation to union book?

The secretary-treasurer, so that in a sense, a ruling contrary to the proposition here, forces us to go against the man to put him in jail, instead of recognizing that as a custodian, he’s in a different position than as an individual.

And at the minimum what he has to do is at least account for the books in relation to the union.

Stanley Reed:

Suppose the — the Government purported the subpoena duces tecum on a man and asked him, the secretary-treasure (Inaudible)

Beatrice Rosenberg:

Well, we concede so.

We think — we think that in relation to the union book, he simply doesn’t have a personal privilege.

Stanley Reed:

Whether or not he’d been subpoenaed?

Beatrice Rosenberg:

Whether or not they’ve been subpoenaed.

Charles E. Whittaker:

Was there a —

Beatrice Rosenberg:

Now, if —

Charles E. Whittaker:

— reason to prove this fact?

Beatrice Rosenberg:

Pardon?

Charles E. Whittaker:

Does he waive the privilege by saying, I don’t have the books?

Beatrice Rosenberg:

No, our point is that he doesn’t have the privilege.

They aren’t — they aren’t his books and he doesn’t have the privilege in regard to them.

Charles E. Whittaker:

Of course, in this case, he did before the grand jury.

Several times say, he did not have the books at the time he was served with the subpoena or since.

Now, did that waive his privilege as against prosecution on the basis that’s been several times suggested here for a failure to obey the subpoena?

Beatrice Rosenberg:

Well, he said he didn’t have possession, Your Honor.

That he didn’t have possession.

He didn’t deny that the union had possession.

And he certainly didn’t — he certainly didn’t — it wasn’t an excuse for the union.

That wasn’t an adequate excuse.

He’s saying he didn’t have possession.

Under this Court’s Nilva decision, it’s clearly wasn’t an adequate excuse just for the man to come in and say, the union is not producing the books because I, individually, don’t have possession at this moment.

So that it’s perfectly true, the alternative to saying, you don’t have to answer the questions here, is that the Government is going to say, “Okay, the union will be prosecuted for failure to produce the books or to give an adequate explanation.”

William J. Brennan, Jr.:

But this much is true, isn’t it, Ms. — Ms. Rosenberg?

If he had answered every one of these questions, the Government might nevertheless have proceeded and prosecuted him for having failed to produce the goods — produce the books so we could sue early.

Beatrice Rosenberg:

Unless there were adequate excuses.

No, I don’t think so.

William J. Brennan, Jr.:

We’re not —

Beatrice Rosenberg:

That is — no, I don’t think necessarily.

If he said, “Oh, I don’t have possession of the books, they were in the possession of —

William J. Brennan, Jr.:

I’m not saying that.

I said if he had answered every one of the questions put to him by Judge Noonan —

Beatrice Rosenberg:

Well, that’s a question —

William J. Brennan, Jr.:

— which could go out — here me out a moment, which go out of the fact that he had failed to refuse to produce them in response to the subpoena.

As I get you, he could have been prosecuted for having failed to respond to the subpoena.

And if that’s so, could he not have been prosecuted whether or not he answered these questions?

Beatrice Rosenberg:

No, he’s prosecuted for a failure to produce without adequate excuse that he is —

William J. Brennan, Jr.:

Well, whatever he’s prosecuted for, he could have been prosecuted for not having produced on the day that the subpoena required him to produce, is that —

Beatrice Rosenberg:

Without adequate excuse.

William J. Brennan, Jr.:

But without adequate excuse or otherwise.

Beatrice Rosenberg:

Well, no, but if he says, I didn’t have possession.

They were given to our accountant and he was out of town, though I don’t —

William J. Brennan, Jr.:

He may have had a good defense but he could still have been prosecuted, could he not?

Maybe the Government couldn’t have prosecuted him successfully but they could have prosecuted him for not having responded to the subpoena.

You told me that twice (Voice Overlap) —

Beatrice Rosenberg:

Oh, I suppose one can bring an unsoundly charge but the prosecution is for a failure to produce without adequate excuse.

It’s not just for a failure to produce.

Earl Warren:

Well, you say he’s convicted though of failing to answer the question.

Beatrice Rosenberg:

He is.

Earl Warren:

Yes.

Let me ask you this question, Ms. Rosenberg.

Suppose you prevail in this case, the man goes to jail for six months for failure to answer these questions, would you go back to the District Court then prosecute him for not producing the books?

Beatrice Rosenberg:

You want that now?

Earl Warren:

Yes, now.

Beatrice Rosenberg:

Well, of course, we have the book.

It’s a little hard to —

Earl Warren:

No, no, no.

Let’s just — let’s just (Voice Overlap) —

Beatrice Rosenberg:

I suppose theoretically so.

Earl Warren:

I beg your pardon?

Beatrice Rosenberg:

I suppose theoretically so.

Earl Warren:

Yes.

Well, there are two separate and distinct crimes, definitely?

Beatrice Rosenberg:

Well, that’s right.

They are separate but I’m saying that in a sense, I don’t think it prosecute this generally go after people just for the sake of putting him in jail.

William J. Brennan, Jr.:

Well, is that the task, the right to know (Voice Overlap) —

Beatrice Rosenberg:

No.

But I’m saying that the point is that if the Government is going to be forced to go after these people in contempt, if it can’t get a ruling that when somebody doesn’t produce books, they have to account for the reason why.

Now, it seems to me that if they have to account for the reason why, there will be less in necessity for prosecution for failure to produce.

And I don’t think the Government would deliberately go after (Inaudible).

It shows this vehicle.

It will be asked for a ruling.

It said, answer these questions and if he had answered them and the books have been produced, there wouldn’t have been any prosecution.

Theoretically, there was a right to it but as a practical manner, people don’t bring prosecutions for failure to produce books if they gotten the books through the man’s testimony.

And this is a method of trying to see that a — the subpoena isn’t just disregarded by a kind of flimflam, just passing it from one member of the union to another without having to do with it by starting a prosecution for contempt for failure to produce.

Beatrice Rosenberg:

So that — I suppose if the Government —

Hugo L. Black:

I thought we — I thought we had a case just two weeks ago where the Government did prosecute for failure to produce after they got the books?

Beatrice Rosenberg:

Oh, not through his testimony.

They got the books because — through an impounding order.

But I’m saying that if they had gotten —

Hugo L. Black:

I thought he — I thought he justified they were all down there at the office where they were before.

That Government sat on that job.

Beatrice Rosenberg:

Oh, no.

He testified that he has produced them all.

And then they had reason to believe that they weren’t true and then they were impounded and found in the Nilva case.