Ellis v. United States

Ellis v. United States

Opinion

 [*793]  LEVENTHAL, Circuit Judge:

These appellants were convicted of arson and of carrying a dangerous weapon. They seek reversal on the ground that the trial judge erred in compelling the testimony of one Izzard who had been their companion in crime.

 [*794]  The prosecution called Izzard to testify at trial, whereupon the trial judge advised the witness of his privilege against self-incrimination, and asked him if he wished to take the stand. The witness responded in the negative. The prosecuting attorney asked that counsel be appointed to advise the witness. Counsel was appointed; he consulted the witness, and reviewed the transcript of the grand jury proceedings at which the witness had already testified, and he advised the witness to claim his privilege.

Thereafter a long colloquy ensued among court and counsel. The prosecutor urged that the witness should be compelled to testify [**2]  based on his prior waiver of the privilege at the grand jury proceedings. He argued that there could be no prejudice if the witness merely reiterated what he had already said for the record, and that the standard for waiver under the Supreme Court decisions was that there had to be an actual, realistic possibility of harm.

Government counsel also urged that the defendants had no standing to object to the ruling on the claim of privilege of a witness, and that there could be no prejudice to the witness, if the court erroneously compelled the testimony, in view of Murphy v. Waterfront Comm'n, 378 U.S. 52, 84 S. Ct. 1594, 12 L. Ed. 2d 678 (1964), and other Supreme Court decisions. In opposition counsel for witness Izzard contended that there was some doubt in Izzard's mind as to whether he was being charged or under investigation, etc. at the time he testified before the grand jury, and thus he had not waived his privilege there, and that in any event he had not been given immunity and thus could reclaim the privilege at the subsequent proceeding.

The trial judge rejected outright the Government's contention that the waiver of privilege before the grand jury carried [**3]  through to a subsequent proceeding, and subscribed to the rule announced in other circuits, even though there was no binding precedent from this court. He concluded, however, that there was no reason not to compel the testimony, since, under his reading of Murphy v. Waterfront Comm'n, supra, the witness would be protected from its subsequent use against him. ² 

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