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United States Supreme Court


No. 134

Argued: March 18, 1963    Decided: May 13, 1963

During a trial in a Federal District Court in which petitioner was convicted by a jury of violating the federal wagering tax law, the prosecutor asked two witnesses questions concerning their relationship with petitioner. Refusal of these witnesses to answer some of the questions, based on their privilege against self-incrimination, was sustained. Counsel for the witnesses had previously stated that the witnesses would claim their privilege against self-incrimination if asked about wagering violations. The judge instructed the jury that no inference should be drawn against petitioner from these refusals to testify, "unless it would be a logical inference that would appeal to you as having a direct bearing upon the defendant's guilt," and petitioner's counsel made no objection to this instruction. Held:

    1. In the light of the entire record in this case, no reversible error was committed when the prosecutor asked the witnesses questions as to which their plea of privilege against self-incrimination was sustained. Pp. 185-190.

    2. Even if the instruction on this subject was erroneous, it was not a plain error or defect "affecting substantial rights," within the meaning of Federal Rule of Criminal Procedure 52 (b), and it did not constitute reversible error. Pp. 190-191.

301 F.2d 314, affirmed.

John H. FitzGerald argued the cause and filed a brief for petitioner.

Stephen J. Pollak argued the cause for the United States. With him on the brief were Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Theodore George Gilinsky. [373 U.S. 179, 180]  

MR. JUSTICE STEWART delivered the opinion of the Court.

The petitioner was convicted by a jury on two counts of violating the federal wagering tax law, 4411 and 4412 of the Internal Revenue Code of 1954, 26 U.S.C. 4411, 4412. His conviction was affirmed by the Court of Appeals for the First Circuit, 301 F.2d 314. The petitioner contends that his conviction should have been reversed because at his trial the prosecutor was permitted to ask two witnesses incriminating questions concerning their relationship with the petitioner, with the knowledge that the witnesses would invoke their privilege against self-incrimination. We granted certiorari to resolve an asserted conflict with decisions in other circuits. 371 U.S. 858 .



In his opening statement to the jury, the prosecuting attorney stated that he had reason to believe "a husband [373 U.S. 179, 181]   and wife" would testify against the petitioner. Upon the completion of the opening statement, Mr. Fitzgerald approached the bench, and the following colloquy took place:



    "The COURT: They have pleaded guilty.








One of the key issues which developed during this part of the case was the question of whether the places regularly visited by the petitioner were, in fact, known gambling establishments. The court sustained objections [373 U.S. 179, 184]   by Mr. Fitzgerald to such testimony by government agents, on the ground that the agents could not testify to events observed when the petitioner was not present.

The Government then called Irving Kahn to the stand. No objection was made. Mr. Kahn testified voluntarily that he owned the store in question, and that he was acquainted with the petitioner. After being directed to answer by the court, he testified that he had dealings with the petitioner. And, when a second claim of privilege was overruled, he also testified that he had accepted wagers in his store. In the questioning which followed, the witness testified that the petitioner did come to his store "a couple of times a week," but denied that the petitioner came every day in the morning and afternoon.






The petitioner's principal contention is that reversible error was committed in permitting the Government to question the Kahns after it was known that they were going to claim their privilege not to incriminate themselves. It is said that when a witness is asked whether he participated in criminal activity with the defendant, a refusal to answer based on the privilege against self-incrimination tends to imply to the jury that a truthful [373 U.S. 179, 186]   answer would be in the affirmative. This inference, the petitioner argues, cannot properly be used as evidence against a criminal defendant. To support this argument, the petitioner relies on dicta in several federal cases and upon the decision in United States v. Maloney, 262 F.2d 535, in which the Court of Appeals for the Second Circuit said, "Such refusals [to testify] have been uniformly held not to be a permissible basis for inferring what would have been the answer, although logically they are very persuasive." Id., at 537. 6  

None of the several decisions dealing with this question suggests that reversible error is invariably committed whenever a witness claims his privilege not to answer. Rather, the lower courts have looked to the surrounding circumstances in each case, focusing primarily on two factors, each of which suggests a distinct ground of error. First, some courts have indicated that error may be based upon a concept of prosecutorial misconduct, when the Government makes a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege. This seems to have been one of the principal reasons underlying the finding of reversible error in United States v. Maloney, supra. In that case, the prosecution admitted knowing that two of its key witnesses could validly invoke the privilege against self-incrimination and intended to do so. The prosecutor nevertheless called and questioned them. The court also found that the Government's closing argument attempted to make use of the adverse inferences from their refusals to testify. See also United States v. Tucker, 267 F.2d 212. [373 U.S. 179, 187]   A second theory seems to rest upon the conclusion that, in the circumstances of a given case, inferences from a witness' refusal to answer added critical weight to the prosecution's case in a form not subject to cross-examination, and thus unfairly prejudiced the defendant. This theory seems also to have been present to some extent in the Maloney decision, where the court noted that the challenged inferences were the only corroboration for dubious and interested testimony by the Government's chief witness. 262 F.2d, at 536-537. On the other hand, courts have failed to find reversible error when such episodes were "no more than minor lapses through a long trial." United States v. Hiss, 185 F.2d 822, 832 (C. A. 2d Cir.). See also United States v. Amadio, 215 F.2d 605, 614 (C. A. 7th Cir.). And even when the objectionable inferences might have been found prejudicial, it has been held that instructions to the jury to disregard them sufficiently cured the error. 7  










[ Footnote 1 ] "MR. FITZGERALD: Your Honor, may the record show that I object to the use of this witness. "The COURT: All right, it may be noted."

[ Footnote 2 ] "MR. FITZGERALD: Your Honor, may I stand beside her while she testifies, being her counsel? "The COURT: Well, I would rather have you not stand beside her, because that could impress the jury. "But ask the questions slowly, and you can take your objection each time. . . . . . "MR. FITZGERALD: Your Honor, if I should rise in my chair, may that be taken that she pleads the Fifth Amendment? "The COURT: Yes. Now, the question pending is what?"

[ Footnote 3 ] "Can you tell us what those dealings [the witness' dealings with the petitioner] were?" "And were you paid a commission on all the bets you took in your variety store?" "Who did you accept the bets for that you took in your variety store?" "Did you ever take bets for the defendant David Namet?"

[ Footnote 4 ] The petitioner did not take the stand. The court's instruction concerning this fact was as follows: ". . . you must not draw any inference from the fact that the defendant himself did not take the stand. He doesn't have to. He can sit mute and stand or fall upon the Government's case. Or he may take the stand as he wishes. But from the fact that he didn't take it, you should not draw any inference against him."

[ Footnote 5 ] Cf. Grunewald v. United States, 353 U.S. 391, 415 -424; Konigsberg v. State Bar, 353 U.S. 252 .

[ Footnote 6 ] See United States v. Tucker, 267 F.2d 212, 215; United States v. Gernie, 252 F.2d 664; United States v. Romero, 249 F.2d 371; United States v. Cioffi, 242 F.2d 473; United States v. Amadio, 215 F.2d 605; United States v. Hiss, 185 F.2d 822; Weinbaum v. United States, 184 F.2d 330; United States v. 5 Cases, etc., 179 F.2d 519. See generally 86 A. L. R. 2d Ann. 1443.

[ Footnote 7 ] See, e. g., United States v. Gernie, 252 F.2d 664 (C. A. 2d Cir.); Weinbaum v. United States, 184 F.2d 330 (C. A. 9th Cir.). See also United States v. Maloney, supra, at 538.

[ Footnote 8 ] See generally Grunewald v. United States, 353 U.S. 391, 415 -426; Stewart v. United States, 366 U.S. 1 .



[ Footnote 11 ] The issue was brought to this Court's attention in the Government's memorandum in reply to the petition. Rule 23, par. 1 (c) of the Supreme Court Rules provides, "Only the questions set forth in the petition or fairly comprised therein will be considered by the court."

[ Footnote 12 ] Rule 30 provides, in pertinent part: "No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury." Rule 52 provides: "(a) Harmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded. "(b) Plain Error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court."



[ Footnote * ] "Nor should any inference be drawn against him [petitioner] because the Kahns refused to testify, unless it would be a logical inference that would appeal to you as having a direct bearing upon the defendant's guilt." [373 U.S. 179, 193]  

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