The oral argument in Greenberg

• Jurisdiction: United States

Section 177. The oral argument in Greenberg v. United States.

IN THE SUPREME COURT OF THE UNITED STATESOctober Term, 1951No. 461IRVING GREENBERG, Petitioner,v.THE UNITED STATES OF AMERICA

Washington, D. C,

Wednesday, April 2, 1952.

The above-entitled cause came on for oral argument at 1:05 p.m.

Present: Chief Justice Vinson and Associates Justices Reed, Black, Douglas, Jackson, Burton, Clark, and Minton.

Appearances: On behalf of the United States of America, M. H. Goldschein, Esq., Special Assistant to the Attorney General; on behalf of Petitioner, Frederick Bernays Wiener, Esq.

PROCEEDINGS

The Chief Justice: Argument in No. 461, Greenberg against The United States of America.

ARGUMENT ON BEHALF OF THE PETITIONERBy Mr. Wiener

Mr. Wiener: If the Court please, this is the second writ of certiorari which your Honors have granted in this case. Three questions are involved.

The first is a continuing conflict of decision between the court below and this Court as to the proper scope of the constitutional privilege against self-incrimination.¹¹

The second question is whether the Government may properly prosecute an individual while at the same time denying him the ability to defend—whether, when the Government prosecutes an individual for the contempt involved in refusing to answer questions claimed by him to be self-incriminating and he seeks to prove their incriminating nature through papers in the possession of the Government and normally privileged, the Government may continue to assert its privilege while continuing the prosecution.

The third question concerns the, we think, material variances between what happened at the trial and what is recited in the formal judgment of conviction.

If the Court please, this case involved the same Grand Jury and the same prosecutor as were involved in the Hoffman case decided at the last Term.¹² The background of the case is the prosecutor's announcements of his purpose in the public press. That becomes material because the petitioner stated, in claiming his privilege, that he feared the questions to be incriminating in part because of what he read in the papers. These newspaper accounts were introduced at the trial, and not afterward as in the Hoffman case.¹³

This is what the prosecutor was reported as saying: "Even though there are no Federal laws regarding numbers, slot machines and other rackets, the probers will strike at such rings through the Federal revenue and conspiracy laws."

Mr. Goldschein, who is now here representing the Government, was the prosecutor in charge of the investigation. He "stressed the importance of 'conspiracy.' " Further, "A Justice Department spokesman said that as each witness is called, agents of the Bureau of Internal Revenue are prepared to produce income tax reports so that the jury can check his testimony.

"Income tax violations would permit the Government to strike indirectly at racketeers whose activities are not covered by Federal criminal statutes."¹⁴

During the pendency of this investigation the petitioner refused to answer certain questions before the Grand Jury, and the basic question as to which he claimed his privilege was, "Are you in the numbers business now?" After I have stated the questions, I will expound the claim of privilege that was made.

The second question revolves around the use of his telephone. He was asked, "What business do you use your telephone for?" He said, "Not for my lawful business."

"Do you use it in your real estate business?" "No."

"Do you use it in any other business?" "Yes."

"What other business do you use it for?" "Not for my lawful business," he said, and he refused to answer further, claiming his privilege.

The third question involved is the identification question. He was asked, "Do you know any numbers writers, people in the numbers business, around your place of business?" He said, "Yes."

Question: "Who?" And as to that he claimed his privilege.

When he persisted in refusal, the Grand Jury presented him for contempt and he was tried.

If the Court please, the claim of privilege was very specific. He claimed that if he answered these questions, he would be incriminating himself under the Federal criminal law, and he cited the statutes; and he also stated that his fear of self-incrimination was based on the advice of counsel, on his own knowledge of what the answers would be, and on what he had read in the newspapers. His claim was very specific. It fills a number of complete pages of the record.

Mr. Justice Reed: Do you claim the numbers racket is a Federal Crime?

Mr. Wiener: No. We do not claim that for a minute. I will explain in a minute why the admission that he is in the numbers business is incriminating under Federal law.

Mr. Justice Reed: Some of these questions go beyond the numbers business.

Mr. Wiener: The "Who" question did. The telephone question didn't go beyond that.

After he was presented by the Grand Jury he was tried for contempt. At the trial he offered to prove that he, himself, was under investigation, that there was a definite plan on the part of the Government to show that he and other witnesses were guilty of violating the Federal tax law, and that it was a part of the plan of the prosecutor, once he answered these questions, to prosecute him or recommend prosecution for violation of Federal law.

He introduced the newspapers and in further substantiation of his contention that these answers would be incriminating under Federal law, he subpoenaed the prosecutor's papers, and he moved to examine the Grand Jury minutes in order to show that these questions in their setting were incriminating and that, if he answered them, Mr. Goldschein would initiate prosecution.

The District Judge sustained the objection to the offer of proof. He refused the subpoena of the prosecutor's files and he denied the motion for the inspection of the Grand Jury minutes.

With his defense withheld the petitioner was found guilty and was sentenced to five months imprisonment and held, pending appeal, in the rather high bail of $10,000.

The conviction was affirmed by the Third Circuit.¹⁵ Your Honors granted certiorari last June, vacated the judgment, and remanded the case for reconsideration in the light of the Hoffman decision.¹⁶ The court below reconsidered, reaffirmed,¹⁷ and a second writ of certiorari brings the case here.¹⁸

As to the first question, whether the petitioner properly showed that the answers to these questions would incriminate him, we say he did under the Hoffman case¹⁹ and the Patricia Blau²⁰ decision.

The basis of the difference between the petitioner and the Government on this argument is based on the circumstance that the Government in its rather voluminous brief here never goes on to quote that portion of the Hoffman opinion which says that in order to establish the privilege it isn't necessary to prove the incriminating nature of the question beyond a mathematical doubt, otherwise the privilege would be lost in asserting it. All that is necessary is to show a reasonable apprehension in the setting that these questions would incriminate,²¹ and I think he made that showing, and this is why: He showed that the prosecutor had announced a plan to strike at the numbers people who were not violating Federal law in the numbers business, to strike at them through the Federal revenue and conspiracy laws. How does one strike at a person for tax evasion? That is the wilful understatement of income under Section 145 (b) of the Internal Revenue Code.²² The first requirement is to show that the defendant has an income-producing business. Then you go on from there. That is the first requirement. You have to show that he is in an income-producing business if you are trying to establish an understatement of income by circumstantial evidence. That appears from the writings of the Government's own tax experts, which we have set forth in the Appendix to our reply brief.²³

There is no difference of opinion on it. Non-government authorities in the same field say the same thing.²⁴ The cases establish it. When you are setting out to prove tax evasion—that is, wilful understatement of income in violation of 145 (b) —the first thing you show is that the man had an income-producing business. That is why this question was important. That is why this petitioner specifically claimed his privilege under Section 145 (b), and he cited it.

Mr. Justice Reed: How definite was the Government's threat of criminal prosecution?

Mr. Wiener: The prosecutor said, "Even though there are Federal laws against numbers, we will get them through the tax laws." He announced, "We have the tax returns as each witness is called before the Grand Jury."

As a matter of fact, people have been indicted and tried under the tax laws arising out of this very investigation. It was a threat to do it under the tax and conspiracy laws.

Mr. Justice Reed: The criminal laws?

Mr. Wiener: Yes, the criminal Federal tax laws.

Mr. Justice Reed: Did they use the word "criminal"?

Mr. Wiener: It was the Grand Jury. It wasn't the Civil Division of the United States Attorney's office. The Grand Jury returns indictments. It doesn't draw complaints for civil actions. I think it was a definite threat and under the Hoffman case he proved all he could possibly show without actually incriminating himself.

Mr. Justice Jackson: I suppose the threat was not necessary to the privilege in any event.

Mr. Wiener: It makes it an a fortiori case, that is all.

Mr. Justice Jackson: If the witness knows that what he will reveal would form the basis of a prosecution, it is enough without a threat.

Mr. Wiener: I entirely agree.

Mr. Justice Jackson: I suppose he can assume that the Federal prosecutors will prosecute him if he discloses the facts which show that he ought to be prosecuted.

Mr. Wiener: I agree that the threat simply makes it an a fortiori case.

Under the Federal tax laws, if you have employees, you have to make withholding returns.²⁵ This petitioner showed that in...