Prosecution by the United States against the Greater New York Live Poultry Chamber of Commerce and others for conspiracy to violate the Sherman Anti-Trust Law. On demurrers of the United States to special pleas in bar filed by defendants Morris Frisman and others, claiming immunity. Demurrers sustained.
See also (D.C.) 30 F.2d 939.
Defendant Morris Frisman filed a plea in bar to each of the counts in the indictment on the ground that he had previously, in obedience to a subpœna duces tecum, testified before the grand jury under oath regarding his place of residence, business affairs of the slaughterhouse for live poultry which he was operating, and his connection and identification with defendant Greater New York Live Poultry Chamber of Commerce, and respecting the books, records, and papers relating to his business and respecting the business of said corporate defendant.
The government argued its demurrer to such plea on the grounds: (1) That a witness testifying before the grand jury is not entitled to immunity, unless he gives testimony substantially incriminating himself, or if he answers questions in the negative or evasively, or merely incriminates others, he is not entitled to immunity. (2) A witness testifying before the grand jury, even though he does incriminate himself, is not entitled to immunity, unless he claims his privilege before he testifies.
KNOX, District Judge.
There has been much discussion in a number of cases under the immunity provision of the Sherman Anti-Trust Act ( 15 USCA §§ 1- 7, 15) as to whether a witness is entitled to immunity without having given evidence which criminates him, and as to whether a witness may have such immunity without having claimed his privilege against self-incrimination under the Fifth Amendment, or in the absence of the existence of facts and circumstances which may fairly be construed to have been the equivalent of such claim. Upon the words of the statute the argument is with the contention now advanced by the defendants, whose pleas are before me. United States v. Pardue (D.C.) 294 F. 543; United States v. Goldman (D.C.) 28 F.2d 424. These words, however, by repeated judicial construction within this district, have been so limited as to require me to sustain the government's demurrers. United States v. Skinner (D.C.) 218 F. 870; United States v. Elton (D.C.) 222 F. 428; United States v. Lay Fish Co. (D.C.) 13 F.2d 136. Also see Heike v. United States, 227 U.S. 131, 33 S. Ct. 226, 57 L. Ed. 450, and Johnson v. United States (C.C.A.) 5 F.2d 471.
Anything that I might say as to the interpretation properly to be placed upon the immunity provision of the Anti-Trust law would add nothing to the arguments, pro and con, that now appear in reported decisions. I shall content myself merely by saying that, so far as this district is concerned, the law is in favor of the government, and the demurrers to the pleas in bar of the three defendants who filed the same are separately sustained.