People v. Burkert

131 N.E.2d 495, 7 Ill. 2d 506, 1955 Ill. LEXIS 385

• Court: Illinois Supreme Court
• Decided: November 23, 1955
• Docket: 33476
• Status: Published

Opinions

Mr. Justice Maxwell

delivered the opinion of the court:

This is a writ of error to review a judgment of the circuit court of Lake County convicting Alfred Burkert of contempt of court for his failure to answer questions before the grand jury, and sentencing him to the Illinois State Farm at Vandalia for a term of six months. The judgment followed the entry of an order granting Burkert immunity under the witness immunity statute enacted in 1953. (Ill. Rev. Stat. 1953, chap. 38, par. 580a.) Although the offense was a misdemeanor, the writ of error was properly sued out of this court because a construction of the constitution is involved.

The Witness Immunity Act, upon which the proceeding against Burkert was based, provides: “Whenever, in any investigation before a grand jury or trial in a court of record of any person charged with a criminal offense (either felony or misdemeanor), it shall appear to the court that any person called as a witness in behalf of the prosecution is a material witness and that his testimony or any evidence he may produce, documentary or otherwise, would tend to incriminate him, on motion of the State’s Attorney the court may cause an order to be entered of record that such witness be released from all liability to be prosecuted or punished on account of any transaction, matter or thing concerning which he may be required to testify or produce evidence, documentary or otherwise; and such order"shall forever after be a bar to any indictment, information or prosecution against the witness for any felony or misdemeanor shown in whole or part by such testimony or evidence, documentary or otherwise, except for perjury committed in the giving of such testimony; provided however, that the court shall deny a motion of a State’s Attorney made under this section and shall not enter an order releasing such witness from such liability if it shall reasonably appear to the court that such testimony or evidence, documentary or otherwise would subject such witness to an indictment, information or prosecution (except for perjury committed in the giving of such testimony) under the laws of another State or of the United States; * * *. Any witness who, having been granted immunity as aforesaid, refuses to testify or produce evidence, documentary or otherwise, may be punished for contempt of the court and sentenced to the county jail for not more than two years.” Ill. Rev. Stat. 1953, chap. 38, par. 580a.

On July 8, 1954, Burkert appeared before the grand jury of Lake County, which was then engaged in an investigation of gambling. He was asked a number of questions which he declined to answer on the ground of self incrimination. The following morning the State’s Attorney filed a petition in the circuit court which set forth the questions and Burkert’s responses, recited that Burkert was a material witness and that his testimony would tend to incriminate him, and prayed for the entry of an immunity order pursuant to the statute.

Burkert was thereupon brought before the court. His request to be represented by counsel was denied. The court explained to him the purpose of the proceeding and the effect of an immunity order, and advised him that from the face of the petition the court saw no reason why the witness would be subject to prosecution under the laws of the United States or of any other State, and asked him if he had anything to add to what was contained in the petition. Burkert stated that he had nothing to add, but would like to talk to his attorney. The court then entered an order which required him to answer such relevant and material questions as might be put to him, and granted him immunity from prosecution for any matters concerning which he might be required to testify.

Later on the same day, before he had been talcen back before the grand jury, Burkert again appeared before the court, accompanied this time by his attorney, who made an oral motion to vacate the immunity order. A hearing was had at which it was disclosed that Burkert had been arrested on June 12 on a charge of operating a handbook, and was awaiting trial before a police magistrate. Burkert took the stand at this hearing. His counsel asked him several questions relating to his compliance with the various Federal statutes and regulations applicable to persons engaged in the occupation of taking wagers. (See 26 USC 4401-4414.) Burkert stated that he had held a Federal occupational gambling tax stamp during fiscal 1953, but he declined to state, on the ground that his answers might incriminate him, whether he presently held such a stamp, whether he had filed informational returns required by the Federal statute, and whether he had paid the Federal tax of ten per cent of the gross amount of wagers handled by him. He also stated that to answer the questions asked him before the grand jury would tend to incriminate him under the laws of the United States.

After the hearing the court amended its immunity order to provide that Burkert should not be required to give any testimony relating to any matter or transaction occurring after June 30, 1953. Burkert was then taken before the grand jury and asked a number of questions similar to those previously asked of him, but qualified to conform with the time limitation contained in the court’s amended order. He was asked what his occupation had been from July 1, 1952, to June 30, 1953; where he had worked in 1952, in 1948, and in 1938; whether he knew of any gambling activities in Lake County; whether he knew of any vice or prostitution there; and whether he was acquainted with two named persons. Burkert again refused to answer any of these questions on the ground that his answers might incriminate him under the laws of Illinois or of the United States.

On July 13 the State’s Attorney filed a petition for a rule on Burkert to show cause why he should not be held in contempt. Burkert filed an answer which admitted that he had refused to answer before the grand jury. So far as the questions as to where he had worked in 1948 and 1938 were concerned, the answer based his refusal solely on the fear of incrimination under Illinois law, and he offered to answer these questions upon condition that his answers should not be used against him in any criminal procedings, and that his privilege in respect to other questions should not thereby be deemed to be waived. As to the remainder of the questions Burkert justified his refusal to answer on the ground of possible incrimination under the Federal statutes and regulations relating to the tax imposed on persons engaged in accepting wagers, a list of which was included in the answer. The obvious purpose of the answer was to suggest that truthful replies to the questions asked would have disclosed violations of Federal law or would have furnished clues from which such violations could be discovered.

On July 23 the court, after denying a motion by defendant for a continuance of ninety days, and a request for a jury trial, adjudged him guilty of contempt. The imposition of sentence was deferred for one week to afford the defendant an opportunity to appear again before the grand jury if he desired to do so. He did not choose to appear, and he was committed to the Illinois State Farm in Vandalia for a term of six months.

The first contention of the defendant is that he was deprived of the right to counsel. This contention is readily disposed of. At the first hearing on July 9 the court did deny defendant’s request for counsel. But at the subsequent hearing held that day upon the motion to vacate defendant was represented by his attorney, who offered evidence and advanced arguments in his behalf. He thus had effective representation by counsel before the immunity order was acted upon, and he was represented at all times thereafter. It is therefore unnecessary to consider whether a witness is entitled to counsel upon an application for the entry of an immunity order. See People v. Cochrane, 307 Ill. 126; cf. People v. Zazove, 311 Ill. 198.

Plaintiff in error’s second contention is that he was deprived of his constitutional right to a trial by jury upon the question of whether or not his refusal to answer before the grand jury constituted contempt. This contention has its point of departure in People v. Gholson, 412 Ill. 294. Prior to that decision this court had held that in cases of indirect criminal contempt the sworn answer of the alleged contemner denying the facts upon which the charge was based must be accepted as conclusive, and that he was thereupon entitled to be discharged. (People v. McDonald, 314 Ill. 548.) If his answer was false, he could be prosecuted for perjury, but his sworn answer effectively purged him of contempt. This anachronistic doctrine of purgation by oath was abandoned in the Gholson case. Cf. People v. Ryan, 410 Ill. 486, 490.

Defendant’s argument is that since under the old practice he would have been entitled to a trial by jury on an indictment for perjury, the issue of whether a contempt had been committed was thus triable by a jury at common law. Therefore, so runs the argument, section 5 of article II of the constitution preserves that right, and since the Gholson case permits the determination of whether a contempt occurred to be made in the contempt proceeding itself, that proceeding requires a jury trial.

In reply to this argument the People contend that the former doctrine of purgation by oath was limited to “indirect” contempts, while the contempt committed here was “direct,” since it took place before the grand jury. Our decisions indicate that a refusal to answer before the grand jury is a direct contempt. (See People v. Cochrane, 307 Ill. 126; People v. Sheridan, 349 Ill. 202.) But the precise question of whether a sworn denial would discharge one charged with a refusal to testify does not appear to have been passed upon. We do not agree with defendant’s argument that a constitutional right of trial by jury can be distilled from an analogy to the perjury prosecution which might have followed under the former practice of purgation by oath, for the contempt proceeding was terminated by the sworn answer, and the perjury prosecution was an independent criminal proceeding. The present case, however, does not present the issue sought to be raised, for here the defendant admitted his refusal to answer before the grand jury. There was thus no factual issue to be tried, by jury or otherwise.

Defendant’s right to a continuance, which he contends was wrongfully denied, was in the sound discretion of the court. The continuance requested here would have delayed the proceedings beyond the duration and jurisdiction of the particular grand jury, when the cogency of his testimony would no longer exist, and since defendant had admitted the nature of his alleged contempt at a hearing in open court, the denial of the continuance cannot be deemed an abuse of discretion.

In determining defendant’s further contention that the entry of the immunity order was contrary to the Witness Immunity Act and in violation of defendant’s privilege against self incrimination, reference must be made to the section of the statute, heretofore quoted, which is section 274 of division I of the Criminal Code. It is provided therein that an order may be entered upon application of the State’s Attorney to grant a material witness immunity from prosecution under Illinois law based upon testimony or other evidence adduced by the witness, and that upon the entry of the immunity order the witness is required to testify or adduce evidence or suffer punishment for contempt. There is a further proviso “that the court shall deny a motion of a State’s Attorney made under this section and shall not enter an order releasing such witness from such liability if it shall reasonably appear to the court that such testimony or evidence * * * would subject such witness to an indictment, information or prosecution * * * under the laws of another State or of the United States (Italics supplied.)

In the absence of such a proviso, where the immunity statute gives the witness protection against the government compelling the witness to answer, that is regarded as equivalent to the protection given him by the rule against self incrimination, and the witness may be compelled to testify. (58 Am. Jur. 75; People v. Rockola, 346 Ill. 27.) With the exception of the Michigan decisions (In re Ward, 295 Mich. 742, 295 N.W. 483,) the more recent cases hold that the inability of a State to provide immunity from Federal prosecution arising out of the testimony given in State proceedings does not constitute grounds for a witness refusing to testify. (38 A.L.R. 2d 257, 267.) Consequently, any assertion of privilege in a State court proceeding based upon danger of prosecution under Federal law must be predicated on statutory grounds. 58 Am. Jur. 53.

However, under the Illinois statute, as hereinbefore noted, the legislature has prescribed that no immunity order may be entered where there may be a danger of Federal prosecution. Under these circumstances the witness in a State court proceeding, as in the case at bar, is given the protection of the fifth amendment of the Federal constitution, as well as of section 10 of article II of the Illinois constitution. Therefore, in determining whether the immunity order was properly issued, we must re-examine the decisions of the Supreme Court of the United States, which are authoritative in construing both the fifth amendment and the comparable section of the Illinois constitution. Halpin v. Scotti, 415 Ill. 104.

The Supreme Court of the United States, in a substantial body of precedent, has considered the scope of the privilege against self incrimination under the fifth amendment. (Meltzer, Privilege Against Self Incrimination, 18 Univ. Chi. L. Rev. 687.) In the recent case of Emspak v. United States, 349 U.S. 198, the court reviewed the authorities and re-affirmed the test enunciated in Hoffman v. United States, 341 U.S. 479, which the court regarded as being declarative of the rule stated by Chief Justice Marshall in the early case of United States v. Burr, 25 Fed. Cas. 403.

In the Hoffman case the defendant was asked before a Federal jury investigating various Federal crimes, including violations of the narcotics law, what his present occupation was, whether he knew the present whereabouts of one Weisberg for whom a subpoena had been issued but who had not been served, and when he had last seen Weisberg or spoken to him on the telephone. The witness refused to answer the questions and was held guilty of contempt by the district court, which judgment was affirmed by the Court of Appeals, notwithstanding the fact that defendant had filed a supplement to the record disclosing that he had been publicly charged with being a racketeer, and that while waiting to testify he had been photographed with an official of the Bureau of Narcotics “in an accusing pose.” The Supreme Court reversed the judgment, and explained that while the witness’s own claim of privilege did not establish the risk of incrimination, and that the matter was one for the court to decide, nevertheless, to sustain the privilege it need only be evident from the implications of the question in the setting in which it is asked that a responsive answer to the question, or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result, and that consequently the privilege included answers that might furnish a link in the chain of evidence needed to prosecute the witness for a Federal crime.

The court thereupon held that an answer to the questions concerning Weisberg’s activities might have proved incriminating since, in view of defendant’s police record and long acquaintance with Weisberg defendant might have aided him to conceal himself to avoid being brought before the grand jury. The court also held that the question relating to defendant’s occupation might also be incriminating, and suggested that the trial judge should have considered, in view of the broad scope of the investigation, that the chief occupation of some of the persons called as witnesses might be the evasion of Federal law. Hence the court concluded that in the particular setting, it was not “perfectly clear that the witness was mistaken, and that the answers could not possibly have had a tendency to incriminate him.”

The Hoffman case was deemed determinative in the summary opinions in United States v. Greenberg, 341 U.S. 944, and United States v. Singleton, 343 U.S. 944, where the court reversed contempt convictions where the witnesses refused to answer questions relating to their respective occupations, and whether they knew certain named persons, and other questions, seemingly innocuous on their face, before the same grand jury.

In accordance with this approach of the Supreme Court of the United States, the Court of Appeals in United States v. Coffey, 198 F. 2d 438, held that a witness’s refusal to answer whether two named individuals were engaged in the numbers racket did not constitute a contempt. The court states: “It is enough that the trial court be shown by argument how conceivably a prosecution, building on the seeming harmless answer might proceed step by step to link the witness with some crime against the United States, and that this suggested course and scheme of linkage ‘not seem incredible’ in the circumstances of the particular case.”

In the analogous case of United States v. Girgenti, 197 F. 2d 218, the Court of Appeals considered whether a witness could assert the protection of the fifth amendment or was guilty of contempt for refusing to answer the question, “Now who operated the Maple Shade Gambling House?” The witness submitted State court records of indictments and convictions for keeping a gambling house, newspaper clippings referring to him as a gambler, and reports of investigations and letters from the internal revenue service relating to his failure to file certain returns, which evidence the court referred to as character testimony in reverse, indicating that whatever the witness happened to be doing at the time was probably illegal. The witness therein argued, as does defendant in the instant case, that by revealing his occupation as owner or manager of the property he would aid a prosecution against himself for a Federal offense such as failing to file the required partnership, social security or other returns under Federal tax laws, and that the Federal constitution protects him from being led into such a trap. In sustaining this argument the court concluded that Girgenti had made a sufficient showing to entitle him to the protection of the privilege against self incrmination, and set forth the policy considerations underlying its decision: “If our conclusion permits in the individual case a rascal to go unwhipped, or a villain unhung, it is because Americans have thought it better public policy to lose a conviction now and then, than to force a conviction from the defendant’s own mouth.”

In the instant case, as in the Hoffman case, defendant refused to answer what his occupation was during certain years, whether he knew certain designated individuals, reputed to be gamblers, and also whether he knew of gambling activities, vice, or prostitution in Lake County. At the time of asserting his privilege against self incrimination and refusing to answer, defendant had submitted evidence similar in nature to that presented in the Girgenti case, showing that he had a Federal gambling stamp for 1953 that he had been arrested on June 12, 1954, on a charge of operating a handbook and was awaiting trial before a police magistrate; that a newspaper article at the time of his arrest alluded to the fact that he was operating a handbook for a known gambler. This evidence not only constituted character testimony in reverse, indicating that defendant was the type of individual who could be expected to be in trouble with the law, as suggested in the Girgenti case, but it provided the basis for inferring that defendant’s answers to these questions could reasonably furnish a link in aiding a Federal prosecution for his failure to file certain returns and keep certain records relating to the “business of accepting wagers,” as provided under Federal law. Consequently defendant’s apprehension of Federal prosecution if he were to answer the questions, and the scheme of linkage between the probable answers and some Federal crime, was neither fanciful nor “incredible” under the test enunciated in the Coffey case.

Moreover, as stated by the court in that case, in determining whether a witness really apprehends danger in answering a question a court cannot be skeptical, but rather must be acutely aware that “in the deviousness of crime and its detection, incrimination may be approached and achieved by obscure and unlikely lines of inquiry.”

Under the circumstances here, measured by the standards and rules set forth in the Hoffman case and subsequent decisions, it was not “perfectly clear” that defendant Burlcert was mistaken or that the answers to the questions propounded to him could not possibly have a tendency to incriminate him under Federal law. We believe therefore, that he was properly entitled to the protection against self incrimination afforded by the terms of the Illinois Witness Immunity Act, and the immunity order issued was not in accordance with the statute and was therefore void. Hence defendant’s refusal to answer any of the questions where there was no immunity whatever granted could not be deemed a contempt of court.

The judgment finding defendant guilty of contempt is therefore reversed.

Judgment reversed.