Before BIGGS, Chief Judge, and GANEY and SMITH, Circuit Judges.
This is an appeal from an order of the United States District Court for the District of New Jersey, adjudging the appellant Fox in contempt of court. The contempt charged is a civil one.
Fox had been required to appear as a witness for the taking of his pre-trial deposition in the action between American Cyanamid Company, the plaintiff, and Nathan Sharff, the defendant.
Fox moved to set aside the notice of examination, and to stay the examination itself. These motions were denied. Cyanamid then moved to compel Fox to answer the questions propounded in the examination before trial. The motion was granted and Fox was directed to reply to the questions set out in the footnote.*fn1 Fox declined to answer these questions, basing his refusal on the privilege against self-incrimination.
After an examination, in which the court below investigated the incriminatory tendencies of the questions, Fox was ordered to answer. He refused to obey this direction, and the court ordered him committed until he answered. This appeal followed.
That the privilege against self-incrimination extends to all judicial or official proceedings where persons are compelled to give testimony permits small argument. United States v. Goodner, 35 F.Supp. 286 (D.Colo.1940). This court in United States v. Coffey, 3 Cir., 198 F.2d 438, 440 (1952), stated that it is enough to justify the exercise of the privilege: "(1) that the trial court be shown by argument how conceivably a prosecutor * * * might proceed step by step to link the witness with some crimes against the United States, and (2) that this suggested course and scheme of linkage not seem incredible in the circumstances of the particular case." Once it has been determined that a conceivable possibility exists of the commission of a crime against the United States the trial court must then decide whether the questions asked have a tendency to incriminate.
In describing the kinds of questions which give rise to a valid exercise of the privilege against self-incrimination, Judge Learned Hand said: "All crimes are composed of definite elements, and nobody supposes that the privilege is confined to answers which directly admit one of these; it covers also such as logically, though mediately, lead to any of them; such as are rungs of the rational ladder by which they may be reached. A witness would, for example, be privileged from answering whether he left his home with a burglar's jimmy in his pocket, though that is no part of the crime of burglary." United States v. Weisman, 111 F.2d 260, 262 (2 Cir.1940).
The function of determining whether a direct answer to a question will furnish evidence against the witness falls on the court. United States v. Burr (In re Willie), 25 Fed.Cas. 38 (1807). If the questions appear innocent upon their face the witness must then "show that answers to them might criminate him". United States v. Weisman, 111 F.2d 260, 261 (2 Cir.1940). To require a showing on the part of the witness of more than the likelihood of danger to him arising from answering the question would defeat the privilege granted.
In reviewing an order of contempt arising from a plea of self-incrimination the decision of the trial judge must be given weight. Mason v. United States, 244 U.S. 362, 366, 37 S. Ct. 621, 61 L. Ed. 1198 (1917). But in order to deny the application of the privilege, it must be "'perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answers cannot possibly have such a tendency'" to incriminate. Hoffman v. United States, 341 U.S. 479, 488, 71 S. Ct. 814, 95 L. Ed. 1118 (1951), citing Temple v. Commonwealth, 75 Va. 892, 898 (1881); cited with approval in Counselman v. Hitchcock, 142 U.S. 547, 579-580, 12 S. Ct. 195, 35 L. Ed. 1110 (1892).
Using the standards set out above, the first inquiry must be whether there appears to be a conceivable possibility that the witness could be linked to a crime against the United States.
From reading (a) the complaint of the plaintiff Cyanamid filed in the action against the defendant Sharff,*fn2 and (b) the complaint filed by Cyanamid in an action against Fox in the Supreme Court of New York*fn3 and (c) the affidavit, executed by the plaintiff's, Cyanamid's, counsel, which was served upon Fox at the time he received notice to appear for the taking of his deposition in this proceeding,*fn4 we find that Fox has been charged with being a coconspirator in the receiving, selling, and transporting of trade secrets, strains of microorganisms, and sample drugs belonging to Cyanamid in interstate and foreign commerce, knowing them to have been stolen. The facts supporting this allegation, if proved, could give rise to an indictment under 18 U.S.C. §§ 2314, 2315*fn5 if the term "goods, wares, and merchandise" employed in the statutes includes one of the articles, trade secrets, strains of micro-organisms, or sample drugs alleged to have been transported, concealed, sold or disposed of by Fox, and if the article or articles had a value of $5,000 or more.
We point out that the law does not require that the recalcitrant witness be found to have clearly committed a crime against the United States before he is entitled to exercise the privilege. All that is necessary is that it be shown that conceivably he has committed such a crime.
Applying these rules, we now turn to the question of whether or not there is a conceivable possibility that the articles allegedly stolen are covered by the phrase "goods, wares, and merchandise". This court has previously stated that "the terms 'goods, wares, and merchandise' is a general and comprehensive designation of such personal property or chattels as are ordinarily a subject of commerce." United States v. Seagraves, 3 Cir., 265 F.2d 876, 880 (1959). Since the articles allegedly stolen are personal property, all that must be alleged and proven at trial is the fact that one or all of such articles are ordinarily a subject of commerce and therefore covered by the statute. We, however, can find nothing in the language of the trial judge (and he wrote no opinion) that would indicate with clarity that he applied the principle of law to which we have just referred. Moreover, the trial judge made no finding of fact respecting the conceivable possibility that the allegedly stolen items were of the value of $5,000 or more. The court below simply ordered Fox to answer and committed him to jail when he refused to testify. No question of double jeopardy is, of course, presented, since the alleged contempt is civil rather than criminal. As we have indicated the charges made against Fox may or may not constitute a crime against the United States. We cannot say as a matter of law, on the present record, that the items allegedly stolen by Fox are ...