Before MARIS, STALEY and HASTIE, Circuit Judges.
The issue presented by this appeal is whether a witness under subpoena during a criminal trial may be compelled over her objection based on the constitutional privilege against self-incrimination to answer certain questions which she had answered a year earlier before the grand jury which indicted the defendant on trial.
The defendant, Sylvia Neff, on October 21, 1952, in response to a subpoena issued by the Government, appeared as a witness in the District Court for the District of New Jersey at the trial of the case of United States v. Anthony Valenti, also known as Valentino. Valentino was being tried under an indictment charging him with filing a false non-Communist affidavit under Section 9(h) of the Labor Management Relations Act, 29 U.S.C.A. § 159(h). The defendant, an office secretary of Local 80A, United Packinghouse Workers of America, in Camden, New Jersey, of which union Valentino was business agent, in her capacity as a notary public had taken the affidavit in question. A year earlier she had been subpoenaed to appear before the federal grand jury for the District of New Jersey which was conducting an investigation of Valentino. When the present defendant appeared before the grand jury she was asked a number of questions concerning Valentino which she answered. She was also asked as to her own membership in the Communist Party and her participation in its affairs. As a result of her testimony before the grand jury she was indicted for perjury for falsely answering three questions: namely, whether she had ever attended a meeting of the Communist Party, whether she had ever collected dues for the Communist Party and whether she had ever handled any money for the Communist Party. She was found guilty, after a trial on the charge of perjury, and sentenced on June 20, 1952, to imprisonment aggregating ten years. An appeal from her conviction is presently pending in this court.
Upon being called as a witness in Valentino's trial, the defendant after testifying she knew Valentino about 12 years and had worked for him since 1944 refused to state from whom she took direct instructions. Thereupon the jury was temporarily excused. The testimony she gave before the grand jury was read to her. Thereafter the trial judge advised her that the questions propounded to her thus far by the prosecuting attorney were not incriminating, but that even if subsequent questions could be proved to be incriminating, if they should be questions which she had previously answered before the grand jury, she had waived her right against self-incrimination as to them and he directed her to answer them. The defendant informed the trial judge that she had during the recess telephoned her attorney in Newark for advice and that he was then on his way to Camden. However, the trial judge stated that the trial could not wait and he directed the prosecuting attorney to further examine the defendant. In particular the defendant was directed by the trial judge to answer seven questions which she refused to answer upon the ground that her answers might incriminate her. The questions were these:
"Any time did you know him [Sid Stein] to be a Communist?"
"Do you know Julius Zinman?"
"Did you ever discuss the Communist Party with Mr. Valentino?"
"Were you ever a member of the Communist Party, Mrs. Neff?"
"Have you ever seen Mr. [Julius] Zinman in Mr. Valentino's office?"
"Do you know Lou Malinow?"
"Did you ever see Sid Stein in the union office?"*fn1
At the close of the defendant's testimony the prosecuting attorney prepared contempt charges against the defendant. On November 28, 1952, at the hearing on these charges the record of the defendant's perjury trial was made part of the record as well as those parts of the record of the Valentino trial in which appeared the defendant's testimony and the testimony of another witness stating that Sid Stein was chairman of the South Jersey group of the Communist Party. The defendant sought to prove by this record that the individuals as to whom questions were asked of the defendant had been identified as having been members of the Communist Party. After hearing, the trial judge found that the questions asked were material and relevant to the pending issue and that the defendant, in willfully refusing to answer them, had obstructed justice and prejudiced the conduct of the case, for which she was found guilty of contempt in the presence of the court and sentenced to one year's imprisonment.
The defendant contends that the district court erred because the seven questions which she declined to answer were clearly within the scope of the privilege against self-incrimination which she was entitled to assert during Valentino's trial. The Government on the other hand contends that the defendant by previously testifying upon certain matters before the grand jury had waived her right to assert her privilege against self-incrimination with respect to the same matters in the subsequent trial of the indictment found by the grand jury as a result of its inquiry. The Government asserts that a witness is guilty of contempt of court when he refused to answer questions propounded to him upon the direction of the trial judge in open court and that the court, under Section 401 of Title 18, U.S.C., is empowered to punish for the contempt. A witness' assertion of his constitutional privilege against self-incrimination, if properly claimed, cannot be contempt ...