Namet v. United States

PETITIONER:Namet
RESPONDENT:United States
LOCATION:Formerly S. H. Kress and Co.

DOCKET NO.: 134
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the First Circuit

CITATION: 373 US 179 (1963)
ARGUED: Mar 18, 1963
DECIDED: May 13, 1963

Facts of the case

Question

Audio Transcription for Oral Argument – March 18, 1963 in Namet v. United States

Earl Warren:

Mr. Fitzgerald.

John H. Fitzgerald:

Mr. Chief Justice and honorable Justices of this Court.

May it please the Court, for a moment I would just like to review the factual situation concerned with this case?

This case involves an infraction of Title 26 of the U.S. Code, which requires any person in the business of accepting wagers to have a federal tax stamp, further to register as a so-called acceptor of such wagers with the local Internal Revenue Bureau.

David Namet was accused of failing to have done this.

The treasury agents for sometime conducted a surveillance of Mr. Namet, during which period they followed him about.

They saw him visiting on a couple of times a week various variety stores, which had a reputation for accepting wagers.

At no time in their entire surveillance, which consumed over a month, did they ever see the defendant, the petitioner here, accept one bet, one wager for himself or anybody else or did they find any — during that period of surveillance, any kind of evidence upon his person.

The evidence offered by the government’s eyewitnesses was to the effect that the surveillance was conducted in the month of March during one of the fabled New England winters of course where an automobile could be used and when it couldn’t, the petitioner would go on foot.

This time he wore a three-quarter length coat, which paired with patch pockets.

Witnesses testified to the effect that as he went into the different stores, his pockets were perceptibly filled when he came out while there were perceptibly empty when he went in.

A raid was eventually conducted in the city of Chelsea, Massachusetts to the North of Boston, at which time the Treasury Agents went into the house of Namet.

There they found an envelope containing — three envelopes containing a total of $700, $75 and $50 and $186 in cash on defendant Namet’s peron.

They found miscellaneous items of pieces of paper with numbers on them.

Political cards, pencils, paper, unused pads, three slips in his wallet the size of 3×5 pad containing some numbers there on, none of which was dated in anyway except for three items, two of which were mere information items called half slips; they were dated 1948 and 1949 I believe.

John M. Harlan II:

What’s a half slip?

John H. Fitzgerald:

A half slip Your Honor is a card where the better puts in a number to a person engaged in a business of taking wagers.

Should numbers they play come up so frequently, they are only paid half of the odds, which another number would pay the full extent of the odds.

These are merely for information purposes and I suppose they found as has been testified by experts in these various cases and through the course of the year or so as the numbers come out repeatedly in the newspapers, they are taken from newspapers by the way, should numbers repeat themselves with such a frequency, that it’s unfair to the so-called man who accepts a wager to have him pay the full amount of the bet, so therefore he only pays half, they are just information.

John M. Harlan II:

[Inaudible]

John H. Fitzgerald:

Something to that effect Your Honor.

But these are not for sale, they are given away and there was some other — and there was one other envelope in the defendant Namet’s house, which had a date February with no specific day Your Honor but 1949.

About this evidence which was taken in his house, his son appeared and testified on behalf of his father and parenthetically and coincidentally his son happens to be a practicing lawyer in Massachusetts, Office of the Court.

He testified to the effect of this material, this pile of pencils and papers have been around the house for years to his knowledge.

The money and the envelopes was the proceeds of an insurance policy left over after they had buried his mother with — recently before this so-called raid.

At the trial, it was during the same raid in another part of the city, same agents picked up a husband and a wife Irving and Annette Kahn.

Present Counsel appeared for all three.

For reasons best known to Counsel, he suggested that the Kahns change their plea of guilty to not guilty, which they did.

While changing their plea to guilty and at the same time, the Namet trial was to proceed on a not guilty basis for a jury.

The United States Attorney had the United States Marshall present serve the two Kahns with a summons.

Arthur J. Goldberg:

[Inaudible]

John H. Fitzgerald:

Separate and —

Arthur J. Goldberg:

[Inaudible]

John H. Fitzgerald:

Yes, Mr. Justice they were similar, but separate.

Arthur J. Goldberg:

[Inaudible]

John H. Fitzgerald:

All with the same deed.

The Kahns, husband and wife were on separate information, both included on that information, Namet was included on other information.

Arthur J. Goldberg:

Same Judge?

John H. Fitzgerald:

Same Judge.

Arthur J. Goldberg:

You were the Counselor?

John H. Fitzgerald:

I was the Counselor, yes Your Honor.

Arthur J. Goldberg:

[Inaudible]

John H. Fitzgerald:

The Kahns case called first that morning.

When first we appeared in the Court as it usually happens, the call of the list, which Counsel on short notice generally to accept the practice pleads not guilty.

Then the case is marked for trial and the day came for trial, all three were called at the same time.

At that time, the Counsel decided for the best interests of the Kahns to plead guilty.

Arthur J. Goldberg:

They pleaded guilty?

John H. Fitzgerald:

And they pleaded guilty.

And the case is customarily done on our jurisdiction, the cases were put off for usually a minimum of two weeks for disposition.

Arthur J. Goldberg:

[Inaudible]

John H. Fitzgerald:

For a probationary report and so forth.

So, at that particular moment upon their plea of guilty, they were served with a summons to be Government witnesses.

While it isn’t a matter of any record this took place down the back of the courtroom during a recess.

Counsel advised the United States Attorney that he would instruct the Kahns about their rights to further incrimination and that he believed that they would avail themselves of the privilege under the Fifth Amendment of the constitution.

The trial then started the case of Namet and jury was impaneled and Namet — the government made their opening.

Of course, the Counsel believed that he had to wait until the opening was made to be sure of what was going to be said.

In the opening, the Government Attorney stated to the jury that he would produce two witnesses, a husband and wife who he believed would testify against the defendant Namet.

Once he finished his opening, Counsel, the Government and Defense Counsel approached the bench.

There ensued one of many bench conferences, which is replayed in the transcript and which isn’t in the transcript many, many lobby conferences ensued beside that, over a period of two days.

The principle issue was whether the government could use the Kahns as witnesses, which raises the salient issue that the Counsel brings before this Court.

John H. Fitzgerald:

So, whether the United States District Court for the District of Massachusetts erred in permitting two witnesses, the husband and wife, namely the Kahns, who had pleaded guilty in a separate, similar but separate case involving the same crime to take the stand over not only to Petitioner’s objection, but over their own Counsel’s objection when both the Court and the prosecution knew in advance that such witnesses would invoke the Fifth Amendment privilege against further self-incrimination.

From the beginning, in reliance upon this, the Counsel has cited throughout his brief, the United States versus Maloney in 1959 where Mr. Justice Hand, Learned Hand of New York in the Second Circuit held that in a similar instance, it wasn’t quite as similar as this, because the witness on the stand was not — had never been a defendant in the case, the particular witness involved.

But the attorney for one of the defendants there also represented the witness testifying and he requested the Court to advice the witness of his constitutional privileges, which the Court did.

Despite that, the witness was compelled to testify.

Justice Hand in reviewing the doings of that Court stated that it was reversible error to force a witness to take the stand under those circumstances.

And as in this case here, the government knew in advance as did the Court below that the Kahns who undoubtedly were essential to the government’s case, but whether they are a necessity in the government’s case should overshadow the danger and would say were headed to further incriminate themselves and subject themselves to further indictment is one of the issues before this Court.

Counsel advised the Court immediately following the government’s opening to the jury and the bench conferences to which I had alluded.

While the Kahns had admittedly confessed their guilt to failure to fulfill the requirements of the 26th United States Code, I believe it was Sections 44/11 and 44/12, they had only pleaded guilty to a conceivable conspiracy, which could arise out of any testimonial in their part.

They had only pleaded guilty to conceivable bribery of a Federal Official to income tax evasion, Federal income tax evasion and they were compelled to take the stand.

It was felt by Counsel, who not withstanding the government’s brief, was not trying to engineer a case, but was looking out for the best interest of the Kahns and they coincidentally represented during this trial to not further subject themselves to future incrimination.

Potter Stewart:

Particularly for me, Mr. Fitzgerald with that argument is that the Kahns aren’t here.

They are not the Petitioner’s here.

You have a —

John H. Fitzgerald:

They are not Petitioner’s here, admittedly sorry Your Honor.

Potter Stewart:

You are not talking about the Kahns rights under the Fifth Amendment?

John H. Fitzgerald:

Yes, sir.

Potter Stewart:

But the Petitioner here is a third party and how can avail himself to their rights or complain if their rights are violated anymore that he can complain if they hadn’t waived the protection of the Fifth Amendment and testified against him?

John H. Fitzgerald:

If the Kahn’s were testifying concerning a further crime, these crimes might also involve the Petitioner.

That was the same case, which was before Mr. Justice Hand in the United States versus Maloney, neither was a witness there a defendant.

The witness was not a — while an acknowledged part of a conspiracy, he had never been indicted, but he was represented by the same Counsel, who represented one of the defendants in the Maloney case.

And thus was the reasoning of Mr. Justice Hand that the witnesses in that case.

And again, it was the — for the Trial Court to force the witness to take the stand.

Arthur J. Goldberg:

[Inaudible]

John H. Fitzgerald:

That is a further part of my argument, Your Honor in the so-called popular term guilt by association.

And that I would attempt to develop as I proceed, but that is the salient but in answer to Mr. Justice Stewart’s question, the same set of facts confronted Mr. Justice Hand in New York.

And then, in the Maloney case, Mr. Justice Hand in arriving at his position stated, which partially will answer your question Mr. Justice Goldberg, by virtue of the commonwealth knowing in advance — the government knowing in advance that these witnesses will avail themselves in the Fifth Amendment, an inference would be created by their failure to answer the questions put to them, which inference would they almost like an unseen cloud pulled over to the jury.

And the jury would treat that as evidentiary and the jury would be conjuring up what the answer might have been had the witness answered, whether it was the Kahns or somebody else.

Arthur J. Goldberg:

[Inaudible]

John H. Fitzgerald:

There was a same transaction – well, for instance the Kahns would be asked the question which they were asked, did you have any business relations with the defendant?

There was an objection, there was an invocation.

John H. Fitzgerald:

The Fifth Amendment, it was sustained, that is in the transcript.

Now the jury would conceivably sit there and try to conjure up what the answer would have been.

In other words, what did the Kahns have to hide, why didn’t they say yes or no?

Well, knowing fine technical distinctions of the law, now as this approach or inference would roll across the courtroom, the Counsel had no, the Defense Counsel for Namet had no opportunity to cross examine that inference, which was the evidenced being put into the jury’s mind indirectly.

The inference further under Mr. Justice Hand’s rulings was to avoid of the sanctity of a note.

And Counsel feels this apparently Mr. Justice Hand felt to strip any Defense Counsel in this way of the Excalibur of cross-examination is to erase the search for the truth, which cross-examination is supposed to be and is designed to produce.

Earl Warren:

Is there any area of examination that would have been proper for these witnesses, Kahns?

John H. Fitzgerald:

There were some witnesses, some questions Counsel didn’t object to their name, where they lived, what they did, how long they owned the property they had.

Those were harmless questions to which Counsel didn’t object.

Earl Warren:

Are those the only things that –?

John H. Fitzgerald:

Matters along that line.

Earl Warren:

That they could have testified to.

John H. Fitzgerald:

And there were other questions, which in the course of this trial, having in mind that the Kahns have pleaded guilty.

Earl Warren:

Yes.

John H. Fitzgerald:

It was virtually a retrial or an opening up of their trial by questions.

Did you accept wagers?

Yes, I did accept wagers.

They had already pleaded guilty to that, which Counsel pointed out to the Court.

Now again, there was a –-

John M. Harlan II:

[Inaudible]

John H. Fitzgerald:

I am not saying that is a general statement.

I don’t believe that statement would hold through generally.

I am saying in the instant case.

John M. Harlan II:

What is it that makes this difference [Inaudible]?

John H. Fitzgerald:

For instance, there it is conceivable whether it could be government witnesses that were called to the stand and they might be custodian of public documents.

They would have no conceivable danger in invoking the Fifth Amendment.

It might be a witness who saw at a distance a crime occurring, an eyewitness might be a [Inaudible] or a witness who was present when statements were made in the presence of the defendant who was in an outer circle from the arresting officers so to speak.

There are many instances where you conceive that a government witness could not possibly incriminate himself and would have no need to invoke the Fifth Amendment.

Byron R. White:

[Inaudible]

John H. Fitzgerald:

I say this case is unique Mr. Justice, because here the Government knew from the information being before it, from the dockets of the Court before it, that Kahns were within [Inaudible] this entire matter, which involved Mr. Namet.

Byron R. White:

[Inaudible]

John H. Fitzgerald:

That’s right, there is no question about that and Government even admitted that on their bench conferences.

Byron R. White:

[Inaudible]

John H. Fitzgerald:

Again, as a Court ruled in sustaining the objections at —

Byron R. White:

[Inaudible]

John H. Fitzgerald:

I believe they did Your Honor, where they said it was a legal conclusion.

Byron R. White:

[Inaudible]

John H. Fitzgerald:

Prior to that, there was an —

Byron R. White:

[Inaudible]

John H. Fitzgerald:

It’s relevant.

Byron R. White:

It’s relevant.

John H. Fitzgerald:

Prior to that, there was another question.

Byron R. White:

[Inaudible]

John H. Fitzgerald:

Well, now they wanted to explain.

Again, I go back to the inferences of —

Byron R. White:

[Inaudible]

John H. Fitzgerald:

Of course, I think I agree with Your Honor too.

Byron R. White:

[Inaudible]

John H. Fitzgerald:

Of course, Your Honor, dealings of one thing.

What were the extent of the dealings, having in mind that nature of the Kahn’s business was primarily the conduct of variety store and again, they confess that they took bet in that variety store.

There was nothing to say what the nature of the dealings where.

Byron R. White:

[Inaudible]

John H. Fitzgerald:

What I say, set as my original — hoping as I told the Trial of Judge in this case, I don’t think that Kahn should ever have been put on the stand.

Byron R. White:

[Inaudible]

John H. Fitzgerald:

Well, there was a question before that Your Honor which was not admitted.

Did you have any business dealings was the question.

And the Trial of Justice asserted that call for illegal conclusion, so what the dealings were.

Then the question was rephrased to omit the word business.

Byron R. White:

[Inaudible]

John H. Fitzgerald:

Well, many people had dealings with the Kahn.

Byron R. White:

[Inaudible]

John H. Fitzgerald:

I can’t see the relevancy of it.

I failed to see the relevancy of that question.

John M. Harlan II:

My understanding was in the bench conference, the Judge said this so far the testimony [Inaudible] which they completed jury, the Fifth Amendment was not available.

John H. Fitzgerald:

Yes.

John M. Harlan II:

But it was available to the extent that it might have involved in other trial.

John H. Fitzgerald:

That’s right.

John M. Harlan II:

Then I understand that the Judge said, “Why don’t you bring this man to chambers to go over his testimony?”

John H. Fitzgerald:

He didn’t say that to me, no.

John M. Harlan II:

[Inaudible]

John H. Fitzgerald:

He called for a conference between —

John M. Harlan II:

[Inaudible]

John H. Fitzgerald:

Well, I believe Your Honor that the —

John M. Harlan II:

[Inaudible]

John H. Fitzgerald:

I did Your Honor.

John M. Harlan II:

[Inaudible]

John H. Fitzgerald:

Well, when we had these various conferences, the Judge was — let’s say on my side one time and the Government side the other time, and it was never completely clear just what his feeling was.

In other words, in the testimony of the — in the conversations of the bench conferences its replete what the Judge’s own statements to the Government, what would you have done if the Kahns had not pleaded guilty?

Do you have enough evidence without them?

And the Government answered we have — admittedly, we don’t have a strong case without the Kahn’s.

Then after a few more questions by the Kahns, another recess was had.

The trial Judge stated to the government, “I don’t see how I can let you proceed with the Kahns, you are going to put them in jeopardy of further indictment.”

And then there was a suggestion that the Kahns be released from the Court, be sent home.

And the Judge himself told and then further instructed the U.S Attorney, “You better keep the witnesses here, you might be criticized downstairs.”

And it went back and forth on seesaw effect like that.

There was no clear-cut idea as to just what was the conviction of the judge in this case.

Byron R. White:

[Inaudible]

John H. Fitzgerald:

Not relevant to the Namet’s case.

Byron R. White:

I know [Inaudible]

John H. Fitzgerald:

There was no evidence of —

Byron R. White:

[Inaudible]

John H. Fitzgerald:

They never had one iota of evidence that Namet was every present when a bet was taken in the counsel.

Byron R. White:

[Inaudible]

John H. Fitzgerald:

They had evidence he was in and out of the store.

Byron R. White:

And [Inaudible]

John H. Fitzgerald:

I would say this is relevant Your Honor if Namet — unless an agent was inside to say he stood there, saw Namet present when bets were being taken.

Byron R. White:

The evidence [Inaudible]

John H. Fitzgerald:

Well, may I put –-

Byron R. White:

[Inaudible]

John H. Fitzgerald:

May I put it this way Your Honor, there was an — that exact question came up in relation to another store, when Namet had entered, as he was followed around, and the government witness on the stand testified to the effect, the bets were taken in that store.

I objected again on the same ground as to where was it material to Namet, because unless they can place him in the store and bets were being taken.

The judge received me upon that.

Hugo L. Black:

What did the prosecutor say was the relevancy of having these witnesses ask questions before in the presence of the jury when it was known that their answer would be — they wouldn’t answer it because of the Fifth Amendment?

What did the prosecutor say was the relevancy of having them making that claim before the jury instead of having the Court act on it outside the presence of the jury?

What’s the relevancy of that?

John H. Fitzgerald:

Well, a prosecutor at that time felt that if he could get the Court’s permission to put the Khans on the stand, he could go the distance and ask them many questions, open up everything and bring out evidence of what happened or things that occurred when Mr. Namet wasn’t present.

Hugo L. Black:

I would suppose that your objection is, I haven’t heard you say it yet, but I thought that was it, that’s it was certainly not relevant or proper deliberately to put witnesses on the stand and ask them questions, which would tend to incriminate this defendant when it was known in advance that they would refuse to answer on the ground of self-incrimination?

John H. Fitzgerald:

I didn’t put the query that way Your Honor, but I thought I had tried to make that, so that is my position.

Hugo L. Black:

That is your objection.

John H. Fitzgerald:

Yes, Your honor.

Hugo L. Black:

You are not claiming that it is not relevant to ask them some questions about this.

What you are saying if there was jury on Court, as I understand it, not to put these people up there and make them refuse to answer, when it was known in advance and as frequently done by prosecutors that that would have a bad effect on the defendant.

John H. Fitzgerald:

That’s very true Your Honor and in answer to that, the government in its brief has said that the — or the government as they went along in this case have no time knew other than the mere statement of an attorney as to what the Khans would do well.

Hugo L. Black:

That’s a very common factor [Inaudible] committed something —

John H. Fitzgerald:

Virtually the only way I can see —

Hugo L. Black:

[Inaudible] say they won’t testify without incrimination may be two or three hundred times.

The idea being that the [Inaudible] they are guilty.

John H. Fitzgerald:

Well I —

John M. Harlan II:

[Inaudible]

John H. Fitzgerald:

That’s right Your Honor — they are not objecting themselves.

John M. Harlan II:

How would you [Inaudible] how is your man prejudiced [Inaudible]

John H. Fitzgerald:

He is prejudiced very much I think of this way that his counsel is stripped of the right of cross examination to an inference, which has been created, an important inference.

Hugo L. Black:

There is more than that, isn’t there?

John H. Fitzgerald:

As guesswork in the part of the Jury is a conjunction.

Hugo L. Black:

Everybody knows if you get a witness who is associated with somebody else, some kind of bet and you are [Inaudible] kind of been connected with one another, if the prosecutor can [Inaudible] get in, as that man standing before the Jury and not going to testify on the ground of discriminating, it does more than affect the witness, it affects the other man.

John H. Fitzgerald:

It does, Your Honor.

Hugo L. Black:

And that may not be sufficient to reverse the case, but I would think it would [Inaudible] prejudices on the circumstances at the time.

John H. Fitzgerald:

It’s one of the —

Potter Stewart:

Well testimony, yeah.

Their testimony against this defendant would have prejudiced him too, but we are talking about whether or not it was erroneous, whether it was an error.

Now, of course in the prosecution testimony always prejudiced the defendant.

John H. Fitzgerald:

Unless the – as a Judge putting this case and by the remark of counsel was in an enviable position and — that’s true.

Hugo L. Black:

But if its testimony that’s put in against him as the testimony relevant, prosecutor knows it, that’s one thing of course, but if they put somebody up there and make them do something, they know that they won’t do.

What right do they have to use that as a method for convicting the defendant, if they going to draw inferences from the claiming of the privilege.

Byron R. White:

[Inaudible]

John H. Fitzgerald:

That was the government’s position if they and —

Byron R. White:

[Inaudible]

John H. Fitzgerald:

Insofar it’s the one information to which they have pleaded guilty was concerned, they didn’t have a wagering tax.

Earl Warren:

Mr. Pollak.

Stephen J. Pollak:

Mr. Chief Justice, may it please the Court.

This case is here on direct review of the Petitioner’s criminal conviction.

As opposing counsel has stated he was found guilty of violation of the Internal Revenue code by failing to register and pay the taxes as to one engaged in the business of accepting wagers.

At this trial, the government called Mr. and Mrs. Kahn, proprietors of a variety store in Chelsea and people who had admitted to revenue agents that they had acted as agents in their store for petitioner in the wagering operations.

They had, as stated here, also pleaded guilty to separate information, making charges based upon their actions involving the petitioner.

There are two issues; the first issue raised and the only issue raised by the Petitioner is, whether the government was properly permitted to call Mr. and Mrs. Kahn, where the Petitioner’s lawyer had informed the court and the government that he had advised them to plead their privilege.

Essentially, we believe this issue is whether the Defense Counsel may block material witnesses and material and relevant evidence by informing the Court before trial that he has advised those witnesses to claim their privilege.

We believe that nothing in the history of the Fifth Amendment would warrant giving this control over an opposing party’s case to the opposing Counsel.

The parties must be free to call and question witnesses known to be able to give relevant evidence so that each party may present his case.

There is a second issue —

Earl Warren:

Before you get the second issue, did the Kahns tell the prosecutor themselves that they would not testify or did it just come from the counsel?

Stephen J. Pollak:

It only came from Counsel, Mr. Chief Justice.

The second issue, which I will just state, was called to the attention of the Court by the government in our memorandum response to the petition for certiorari.

And it concerns the cautionary instruction, which the Court gave on the inferences which could or could not be drawn from the claim of the privilege.

The question here is, whether that instruction, which we concede to have been defective, was so prejudicial as to require a new trial where there was no objection prior to the retirement of the jury and where the issue was not raised at any appellate level or in the petition for certiorari.

Arthur J. Goldberg:

[Inaudible]

Stephen J. Pollak:

Well, I mean to spend as petitioner’s counsel addressed himself most primarily to the first issue on the propriety of the calling Kahns.

I mean to spend most of my time on that, but let me state that we raised this issue for the Court’s consideration.

The Court took this case we took that to mean that this Court wished us to make the review, which we initially suggested be made at an appellate court level.

So we endeavored to address ourselves to that issue and provide the Court with a briefing and an argument position and I’m prepared to argue that point.

It may be helpful to state briefly the facts on which we think the issue is raised, the issues.

The information as stated were brought against the petitioner and the two Kahns charging that each of them all three had engaged in wagering operations with failure to register and pay the tax.

My opposing counsel has detailed the evidence.

The Kahns were the proprietors of one of the stores that the petitioner was observed to visit each day.

They retained at same counsel and plead guilty, on the morning of the trial as stated the Kahns withdrew their plea of — did I say guilty — they withdrew their plea of not guilty and plead guilty.

In the opening, the government stated that it would believe that it would offer a husband and wife, who would testify that they had acted as agents in petitioner’s wagering operation and would testify to the procedures of that operation.

At a bench conference immediately following this opening, petitioner’s lawyer stated to the Court, that the Court should keep in mind that the Kahns and I’m quoting “were defendants, entitled not to testify in their own case.”

The Court stated that they had pled guilty and the defense counsel, petitioner’s defense counsel, stated that he had not intended to wave any constitutional privileges in pleading them guilty.

The Court then stated that he hadn’t seen them on the stand.

If they took the stand, if they made a claim it would ruled.

Thereafter as the second witness, the government called Mrs. Khan.

She answered a number questions voluntarily stating that she and her husband were proprietors of Harvey’s variety shop in Chelsea, that they knew the petitioner, that they had known him by sight for a couple of years.

Thereafter she was asked if she had a business relationship with the petitioner and she stated “Our attorney has advised us not to answer on a plea of the Fifth Amendment,” her attorney of course was also the defense counsel.

Thereafter at proceedings outside the hearing of jury, bench conference, the Court ruled that because of her plea of guilty, Mrs. Khan could be questioned.

She could be asked what she did and she had seen in relation to the defendant, but that she could not be asked questions which might tend to incriminate her of other crimes.

Hugo L. Black:

That was outside the presence of the jury.

Stephen J. Pollak:

That was outside the presence of the jury Mr. Justice Black, yes sir.

The government described in stating why it was calling Mrs. Khan, had described the statements that she had given to the revenue agents, stating — laying out the direct evidence against the petitioner which she was aware of.

She had been the petitioner’s agent in his wagering operation, she and her husband.

The Court noted the spot, the defense counsel was in representing the various parties and defense counsel stated and I’m quoting “In pleading her guilty he had not intended that she would cooperate with the government.”

Then the Court as it was pointed out I believe in the questioning by Mr. Justice White, sustained the objection on the ground that the question called for a legal conclusion.

Stephen J. Pollak:

Immediately thereafter on page 8 I believe of the record, the Court ruled that the witness could be asked if she had a relationship with the petitioner.

However, the Government did not put that question to Mrs. Kahn, the Government asked several other questions to which she gave answers and then when there was an objection on grounds of materiality of a line of questioning, Mrs. Kahn was excused without claiming the privilege again.

Arthur J. Goldberg:

[Inaudible]

Stephen J. Pollak:

I think that would make a difference, and I intend to address myself to that directly.

I just have one more statement of facts on which this issue is raised that I think is important.

Later in the trial, the Government called Mr. Kahn.

He was asked 18 questions.

He answered ten questions voluntarily.

He claimed the privilege as to eight.

The Court sustained the claim of the privilege as to four questions and ordered him to answer the other four.

When the privilege was sustained as to two questions in a row, the Government excused the witness.

Now, Mr. Kahn testified voluntarily and under orders of the Court, Court ruling that he had no valid claim of the privilege, that he ran a store in Chelsea, that he knew the petitioner, that he had dealings with him during the period of the information; that he had accepted wagers in his store, that the petitioner came to his store not everyday and not twice a day, but came to his store several times a week.

Arthur J. Goldberg:

[Inaudible]

Stephen J. Pollak:

No, there were some questions, Your Honor, as to which no objection was interposed and he answered those questions.

We mean to say that he — the record shows that he voluntarily testified.

Arthur J. Goldberg:

[Inaudible]

Stephen J. Pollak:

No, we would not, but, we assume that if there is — if the question is asked and there is no objection, that then he is giving a voluntary answer.

Hugo L. Black:

May I ask have you viewed the record as I have read it, but as you view the record, did the prosecuting attorney ask any questions of the Kahns which the Court had told him in advance in his chamber, he would not compel them to answer.

So I’m free to say that that has [Inaudible] to do with the case.

I do not agree in other words that at this time, that the statement that you could never put a witness on the stand if he says, I claim the privilege.

I do not agree with the idea that a prosecutor can run rough shot over the government of what the judges told him he couldn’t do it inside the Court and get it for the purpose of having him claim the privilege in the Court.

What I understood is what this record shows on that.

Stephen J. Pollak:

Our position is Your Honor that the government here acted properly in putting him on the stand and in questioning.

We do not mean to say that it would not be improper under some circumstances for the government to put a witness on the stand with knowledge that the witness is going to claim the privilege.

If the witness is placed on the stand in bad faith for purposes of forcing the claim of the privilege, we would think that, that would be improper.

Hugo L. Black:

But that’s what I thought, what this record shows on that.

Stephen J. Pollak:

We do not believe that this record shows that.

The petitioner has cited the Johnson case, Texas case, and we have cited a case called Tucker in the Third Circuit.

I might just mention the Tucker case.

In that case that it was coming on to the third trial.

Stephen J. Pollak:

There had been a first trial; the government had called a witness.

The witness had pled the privilege to several, a string of questions.

The trial then was — conviction was obtained, there was a reversal on appeal, there was a second trial.

At the second trail, the same witness was called, the same questions were asked, the same privilege was pled.

The Third Circuit said upon review of that second trial, said since there must be a third trial and reversed the second conviction, since there must be a third trial, we state that the government should not call this witness unless it has knowledge that he will now no longer claim the privilege or that it has — well the Court really didn’t expatiate on that.

Hugo L. Black:

You’re not challenging —

Stephen J. Pollak:

We’re not challenging, no Your Honor.

We also —

Hugo L. Black:

[Inaudible]

Arthur J. Goldberg:

[Inaudible]

Stephen J. Pollak:

Yes.

Arthur J. Goldberg:

[Inaudible]

Stephen J. Pollak:

Mr. Justice Goldberg, we do not think that those questions were — require a reversal here.

We think that there are several points that are important.

Prior to the asking of those questions, the witness had answered five questions voluntarily.

The six previous questions he had been ordered to answer.

So he had proceeded to answer six questions.

We believe that in light of the Court’s ruling in the case that the witnesses could be asked, what they had done and what they had seen in relation to the petitioner that these questions were within the parameters laid down by the Court.

And that counsel, again I might stress that defense counsel had never asked here for proceedings out of the hearing of the jury.

We think on the top of 23 that the Court perhaps even invited such proceedings.

No question was — no request was made for that.

The government lawyer here, we think the record really — you can smell it if you read the record that the government lawyer was trying to be careful, not trying to overreach, he was trying to represent the public in placing the case before the jury.

And that these questions, these two questions as you pointed out the witness was then released after the two questions were asked, came within those parameters.

Now the — I don’t think that the government attorney can be taxed with being certain under the circumstances here that the witness would make the claim.

I might address myself to that for a minute, because this petitioner has not argued here for a broad rule in the oral argument, we think the facts of the case are also important.

Here the Court stated that the government — that the defense lawyer was in the spot, in representing witnesses and the defendant at the same time.

I think it’s particularly appropriate here for the government to have determined whether these witnesses intended to plead the privilege themselves and it really didn’t become clear.

They continued to give voluntary testimony, so that where there is an advice, the only advice that the government had from the Defense Counsel was that he had advised these witnesses to claim their privilege.

He did not inform the government that they would claim their privilege or so far as the record shows.

He perhaps candidly said, he had advised them to claim their privilege.

Stephen J. Pollak:

In the background was the plea of guilty to the charges involving the very transactions and the government went into the case relying on the decisions as it read them believing that there was no basis for a claim of a privilege at all.

There is some suggestion in the Reina —

Hugo L. Black:

But there was — the government did have knowledge of something when the judge told them out of the presence of the jury there were certain things they would not let him ask.

Stephen J. Pollak:

That’s right.

We don’t — we of course cannot state that the government proceeded without knowledge, that there were — that there might possibly be objections to certain questions or a claim of the privilege would be sustained as to certain questions, but it never had knowledge that the privilege would actually begin to pose.

Hugo L. Black:

Have they been convicted for taking wagers from this man Namet?

Stephen J. Pollak:

They had been convicted of failing to register and failing to pay the tax while engaged in wagering operations.

Hugo L. Black:

They had not — that is it had not been adjudicated in the prior case where they pleaded guilty or whether —

Stephen J. Pollak:

The face of the information did not refer to Namet.

Hugo L. Black:

So that this question was one that was related to this defendant on trial, and which was precisely inline with what the Court had told him they couldn’t ask him, wasn’t it?

Stephen J. Pollak:

Well, no.

As we read the Court’s ruling, he stated that they could be asked what they did and what they saw in relation to Namet and what they did in relation to Namet is taking wagers in relation to Namet.

I might say Your Honor that there has not been an objection made as to the Court’s ruling as to what questions would be allowed and what questions would not.

Hugo L. Black:

I understand it, I understand it.

The reason I am asking is this, I do think it would be wrong and lawless, as the Judge looked into and they’ve came up with the claim, and said now we are going to claim this.

It precisely is, the Judge said, I would agree you, and you claim that that you got it right.

Then, I would say if the prosecutor takes them in and the Jury has to make that claim in the presence of the Jury, it would be hard for me to think he did it for any reason on earth except to get the advantage whatever it is from having that Constitutional privilege claimed by the witnesses and I wouldn’t think that was correct on the part of prosecutor.

Stephen J. Pollak:

Well, we may — the government may differ Mr. Justice Black in this respect, the — we feel that there is some burden upon the Lawyer for witnesses or a Lawyer for a defendant to see that the witness make it certain that the witness will claim the privilege.

I pose this situation, this is what — this is the rule.

Hugo L. Black:

Then of course that is, without that there would be no relevancy to it unless —

Stephen J. Pollak:

Well, in the circumstances of this case, we do not believe that it was certain that these witnesses would continue to claim their privilege.

What the Court or what the government had was the statement of the attorney for the defendant.

Hugo L. Black:

You think you are [Inaudible] with that been said the layer said they were going to do and nobody objected on the ground and hadn’t asked them.

The only way that could be proven that the lawyer meant what he said and the witnesses wouldn’t testify without the question asked in open Court or the Jury.

Stephen J. Pollak:

We believe that in the absence of a request by the defendant’s lawyer for proceedings outside the hearing of the Jury, the government was entitled to proceeding the normal way.

Hugo L. Black:

[Inaudible] that argument.

Stephen J. Pollak:

And we are very concerned that the rule contended for by the petitioner would exclude witnesses, exclude material evidence from the Jury.

Arthur J. Goldberg:

[Inaudible]

Mr. Edmonton was present.

Arthur J. Goldberg:

[Inaudible]

Stephen J. Pollak:

Well, we think that under the circumstances of the questioning of the witness where he had proceeded to answer several questions, where it was still unclear as to the intention of the witness to claim the privilege, as to question-by-question that the government in these circumstances was entitled to — it was entitled, we claim in good faith to test the parameters of what the witness was willing to answer and that there is at least a basis in an ongoing trial here for the government to believe that these question were within the Court’s prior ruling.

There may have been some conflict in the position that the Court was taking as to what would and would not permitted.

Of course the case comes up in a situation where there was considerable doubt as to whether the witnesses had any claim of the privilege available to them at all since they had pled guilty and since these questions we are asking them about the very transactions out of which their information arose.

I don’t mean to override the point that the name of Namet wasn’t on the information, but that was the only basis on which the information was brought.

Hugo L. Black:

And this Judge went on to say didn’t he, he says that’s [Inaudible] criminal, I’ve got to go along with it, probably if I doubt her, I could examine her in private.

Stephen J. Pollak:

Yes.

Hugo L. Black:

The judge showed pretty clearly that he thought that this time, now this could be held in private.

Stephen J. Pollak:

Well, I suppose the government’s response to that Your Honor is that we — this was for the Defense Counsel to ask if he wished proceedings out of the voir dire proceedings that was never requested.

We don’t know why that wasn’t requested.

Hugo L. Black:

Why did it have to be about that question, there had been private proceedings.

Stephen J. Pollak:

Well there has been —

Hugo L. Black:

The judge had —

Stephen J. Pollak:

There has been no request by the defendant for proceedings at which the witness was questioned in advance of the appearance on the stand.

Hugo L. Black:

Well there was no challenge that affected the law, he was truthfully stating this about his witness because that’s a defender about his witness.

Stephen J. Pollak:

We don’t make any — there is no dispute that he advised the witness to make the claim.

He never told us that the witness would make the claim.

Hugo L. Black:

You are saying the prosecuting attorney had a right somehow to say keep back in the back of his mind well now later on when this comes up I will say that — witness didn’t say, this is just the lawyer.

Stephen J. Pollak:

Well —

Hugo L. Black:

That would be right, would it?

Stephen J. Pollak:

We think that there is –-

Hugo L. Black:

That would be rather —

Stephen J. Pollak:

We think there is teaching that states that a claim of the privilege much be personally made under the Fifth Amendment, the Maloney case cited in our brief and we don’t think that it’s unusual for the witness to make a claim so that it can be ruled on by the Court and that these proceedings follow that procedure.

Hugo L. Black:

But you have to agree there the circumstances well, you know, on which that shouldn’t be done.

Stephen J. Pollak:

We —

Hugo L. Black:

Suppose two brothers are charged with a crime, both of them are there, they try and went out and the brother comes there and its already brought out for the jury, they are together and the lawyer goes and says, now look here I don’t want them to ask them a question, because he is going to claim his privilege, and that hurt me before the jury.

Would you say that that would be a proper proceeding for the prosecuting attorney knowing, let’s assume that he knows that he is going to claim?

Stephen J. Pollak:

This is the lawyer for the brother who is so advised.

Hugo L. Black:

Yeah.

Stephen J. Pollak:

Yes.

Hugo L. Black:

Well, would you say that if the prosecuting attorney is going to hold out on the basis of maybe of witness then the lawyer may not be telling the truth.

Hugo L. Black:

It would his duty to say it, wouldn’t he?

Stephen J. Pollak:

Well we think there are — that there is Justice Learned Hand said in the Mahoney case, there are — there is no general rule here to keep witnesses from the state.

We think that the circumstances — the circumstances will show and overreach by the Federal Government, which we don’t believe is present here or an overreach by a prosecutor.

There are State cases which have charted these courses and we think that Johnson case cited by the petitioner, the Washburn case, both Texas cases show over reaching, but we don’t find an over reaching by the prosecutor here in the circumstances.

We think —

John M. Harlan II:

[Inaudible]

Stephen J. Pollak:

Well, in Judge — in the Mahoney case, Judge Hand at the conclusion of his opinion rested it solely on the fact that the Judge had not given a cautionary instruction.

He did not rest it and he did not as I read it, rule, that the calling of the witness was a reversible error.

So that there are several other cases in the New York Second Circuit they seem to have risen most there that hold where the witnesses entered a plea, there is no objection to calling him at all, but we recognize it in those cases, the practice in New York at least with those indictments have been the charge both conspiracy and the substantive crime, a situation we didn’t have here.

We think also that it —

Hugo L. Black:

[Inaudible] know the defendant himself.

Well, and he had told them in advance, I want to claim my privilege.

Stephen J. Pollak:

Well, we could not call the —

Hugo L. Black:

Well it’s just a difference in degree isn’t it?

Stephen J. Pollak:

Well I think we —

[Inaudible] weren’t they?

Hugo L. Black:

Is it?

Stephen J. Pollak:

We think —

Hugo L. Black:

Would you — I do not understand that you would say what that question implies from what I understand.

Do I understand you to say that if the prosecutor thinks he can get some [Inaudible] to convict a man by bringing a witness up, who is going to claim his privilege of self-incrimination and the prosecutor puts him up for that purpose, that’s it.

He knows that the Judge won’t let him in that that would be —

Stephen J. Pollak:

We don’t take that position, I am sure that there is no suggesting that the government, that the government is taking that —

Hugo L. Black:

Then you can’t simply draw the distinction on the fact that one of them is the defendant and one on them is a witness, can you?

Stephen J. Pollak:

We draw the distinction on —

Hugo L. Black:

Do you think you can?

Stephen J. Pollak:

We draw the distinction on whether the government as the record shows call the witness in good faith for a purpose of giving material evidence.

We believe that —

Hugo L. Black:

But not on the basis merely that one is a defendant and one is a witness.

Stephen J. Pollak:

I don’t think we would make that — just draw that line, because we recognize that there are some circumstances where a witness knowing he will plead the Fifth Amendment, knowing that the Court will sustain the plea and knowing for example that he has almost no material evidence to give that he wouldn’t claim the privilege to or none, I make that flat none, then the governments would be calling him in bad faith.

But here, we review the record and we find there are three things to review, whether the witness is in a position to give material and relevant evidence.

Stephen J. Pollak:

This witness was.

This witness did give material and relevant evidence whether there is a reasonable basis for belief that he wouldn’t claim the privilege.

There was such a reasonable basis here as to both Mr. and Mrs. Kahn.

One, they had pled guilty; they had shown a willingness and pled guilty.

Two, they had given statements to the revenue agents, we had no reason to believe they wouldn’t continue to give bad account, and three, a reasonable basis for believing that the Court would not sustain the claim of the privilege and that the time we call them we thought that the privilege would not be sustained on the background of this case.

[Inaudible]

Stephen J. Pollak:

Well, we believe —

[Inaudible]

Stephen J. Pollak:

Well there are differences in the situation in which the cautionary instruction rises, although we’ve attempted to state carefully our position in the brief on that issue which we raise.

We take it from Judge Hand’s opinion that the objections to the lack of a cautionary instruction were presented and pursued by the — at the Appellate level by the attorney for Mr. Mahoney, something that has never been done here.

[Inaudible]

Stephen J. Pollak:

I think you are correct Mr. Justice.

At the trail – at the trial it reads as if the defendant was willingly have nothing to say and in fact judge Hastings set it on that ground and said that the defendant should have that within his own purpose.

Hugo L. Black:

Do you agree or disagree with judge Hastings’ statement in the Tucker case, it was called to out attention, where he said that two circuit courts of appeals have already warned that [Inaudible] interrogation which has no apparent purpose which invite invocation of privilege against self incrimination is improper and is likely to constitute reversible error?

Stephen J. Pollak:

We have studied those two cases.

In one of them the court held that it was not reversible error, that was the Five Cases case and in Amadio it also held, if I am right, my memory may not serve me, but in Amadio they did not reverse as well but in the Tucker circumstance of straight track –-

Hugo L. Black:

The statement he said there – he also said that in our view interrogating official himself gravely abuses the privilege against self incrimination when believing a truthful answer will incriminate a witness he nevertheless insists on that incriminating question with the view to eliciting claim of privilege thereby creating a prejudice against the witness or some other person concerned?

Stephen J. Pollak:

If the –-

Hugo L. Black:

[Voice Overlap]

Stephen J. Pollak:

If it shows that he did that with a view to eliciting the claim of the privilege I would agree.

Hugo L. Black:

That’s what I understood –-

Stephen J. Pollak:

We — I think that’s the position we have taken in the brief that where knowing the witness will claim the privilege, the question is asked in bad faith for the purpose of the eliciting the claim that, that would be improper.

We don’t believe that’s presented here.