"Rule 52(b) Plain Error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." The rule states the prior holdings in Wiborg v. United States, 163 U.S. 632, 638, 16 S.Ct. 1127, 1197, 41 L.Ed. 289. Crawford v. United States, 212 U.S. 183, 194, 29 S.Ct. 260, 53 L.Ed. 465; Weems v. United States, 217 U.S. 349, 362, 30 S.Ct. 544, 54 L.Ed. 793; Mahler v. Eby, 264 U.S. 32, 45, 44 S.Ct. 283, 68 L.Ed. 549; Brasfield v. United States, 272 U.S. 448, 450, 47 S.Ct. 135, 71 L.Ed. 345; United Brotherhood of Carpenters v. United States, 330 U.S. 395, 411, 67 S.Ct. 775, 91 L.Ed. 973. It was followed in this Court in Jackins v. United States, 9 Cir., 231 F.2d 405, 407, and Hatchett v. Government of Guam, 9 Cir., 212 F.2d 767, 772. The requested instructions are:
Giving testimony that has some incriminating tendency does not obligate a witness to give other testimony that will subject him to a "`real danger' of further crimination." Rogers v. United States, 340 U.S. 367, 374, 71 S.Ct. 438, 95 L.Ed. 344. Arndstein v. McCarthy, 254 U.S. 71, 41 S.Ct. 26, 65 L.Ed. 138; McCarthy v. Arndstein, 262 U.S. 355, 43 S.Ct. 562, 67 L.Ed. 1023; United States v. Courtney, 2 Cir., 1956, 236 F.2d 921; Jackins v. United States, 9 Cir., 1956, 231 F.2d 405; Starkovich v. United States, 9 Cir., 1956, 231 F.2d 411. Our District Court has applied this principle in other cases. United States v. Nelson, D.C. 1952, 103 F. Supp. 215; United States v. Hoag, D.C. 1956, 142 F. Supp. 667.
(Emphasis supplied.) Quinn v. United States, supra, 349 U.S. at page 166, 75 S.Ct. at page 675; Jackins v. United States, 9 Cir., 231 F.2d 405. We believe that Quinn v. United States, supra, requires a reversal of this conviction as it appears that the Committee did not indicate its refusal to accept the claim of privilege against self-incrimination, and did not "demand" that the witness answer the question.
Appellant Starkovich was found guilty and sentenced to fine and imprisonment for refusing to answer a certain question propounded to him as a witness before a subcommittee of the Committee on Un-American Activities of the House of Representatives, in violation of Title 2, U.S.C.A. § 192. This was the same committee hearing at Seattle discussed in our opinion in Jackins v. United States, 9 Cir., 231 F.2d 405. Starkovich refused to answer the question set out in count 1 of the indictment claiming privilege against self-incrimination under the Fifth Amendment. Although the trial was by jury, the court ruled that the question of privilege was one for the court, and held the privilege here claimed not available to appellant. Appellant was convicted upon a single count of a six count indictment.
He may, for example, refuse to testify before the Senate or decline to answer specific questions there if his testimony will result in his self-incrimination at the criminal trial. See, e.g., Jackins v. United States, 231 F.2d 405, 409-10 (9th Cir. 1956) (witness at congressional hearing properly refused to answer questions on ground of self-incrimination). Moreover, the state will not be able to use the Governor's recourse to his constitutional rights against him in superior court.
Blau v. United States, 340 U.S. 159, 71 S.Ct. 223, 95 L.Ed. 170 (1950); see comment on Blau in Rogers v. United States, 340 U.S. 367, at p. 372, 71 S.Ct. 438 (1951); Brunner v. United States, 343 U.S. 918, 72 S.Ct. 674, 96 L.Ed. 1332 (1952), reversing 190 F.2d 167 (9 Cir. 1951); Quinn v. United States, 349 U.S. 155, 75 S.Ct. 668, 99 L.Ed. 964 (1955); Emspak v.United States, 349 U.S. 190, 199, 75 S.Ct. 687, 99 L.Ed. 997 (1955); Annotation 100 L.Ed. 661 (1955); Annotation 19 A.L.R.2d 388 (1951). The same bar may be raised as to inquiry concerning his acquaintance or association with persons known as or charged with being members of or affiliated with that Party. Brunner, supra; Emspak, supra; Alexander v. United States, 181 F.2d 480 (9 Cir. 1950); Kasinowitz v. United States, 181 F.2d 632 (9 Cir. 1950); Jackins v. United States, 231 F.2d 405 (9 Cir. 1956). The reason for the principle is that answers to such questions could well furnish a link in the chain of evidence needed to prosecute appellants for violation of or conspiracy to violate the Smith Act, 18 U.S.C.A. § 2385, which makes it a crime to organize, help or attempt to organize any society, group or assembly of persons who teach, advocate or encourage the overthrow or destruction of the government of the United States by force or violence; or to be or become a member of, or affiliated with, any such society, group or assembly, knowing its purposes.