Section 9 of the Federal Trade Commission Act grants immunity
from prosecution only where testimony is given or evidence produced
before the Commission in obedience to a subpoena issued by it, and
not where information was furnished upon the demand made by an
agent of the Commission after the Commission had requested such
information by letter. P.
268 U. S.
372.
290 F. 517, 297
id. 704, affirmed.
Certiorari to a judgment of the circuit court of appeals
affirming a conviction and sentence in a criminal case in the
district court in which the petitioner's plea of immunity was
denied.
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
Sherwin and Schwarz were indicted in the Federal Court for
Northern Texas, under § 215 of the Criminal Code, for
Page 268 U. S. 370
using the mails in consummation of a scheme to defraud, and
also, under § 37, for a conspiracy to commit the offense. They
filed in bar a plea of immunity under § 9 of the Federal Trade
Commission Act, September 26, 1914, c. 311, 38 Stat. 717, 723.
Their claim was that the indictment rested upon information which
the Commission had compelled them to give. There was a replication,
issue was joined, a trial was had upon the plea, and, under
instructions of the court, the jury found against the defendants
upon their plea of immunity. They were found guilty upon the
various counts of the indictment and sentenced.
United States
v. Lee, 290 F. 517. The judgment was affirmed by the United
States circuit court of appeals, 297 F. 704. This Court granted a
writ of certiorari. 265 U.S. 578. Whether the giving of the
information under circumstances to be stated created an immunity is
the sole question for decision.
The Federal Trade Commission Act, in § 5, empowers and directs
the Commission to prevent the use of unfair methods of competition
and provides for proceedings to that end. In § 6, it provides that
the Commission shall have power to investigate the practices of
corporations engaged in interstate commerce, and may require of
them special reports in writing, under oath or otherwise,
concerning their practices. In § 9, it provides that the Commission
or its agents shall
"have access to, for the purpose of examination, and the right
to copy any documentary evidence of any corporation being
investigated or proceeded against,"
and
"to require by subpoena the attendance and testimony of
witnesses and the production of all such documentary evidence
relating to any matter under investigation. Any member of the
Commission may sign subpoenas, and members and examiners of the
Commission may administer oaths and affirmations, examine
witnesses, and receive evidence."
Methods of enforcing obedience to such orders are provided by §
9. Refusal
"to attend
Page 268 U. S. 371
and testify, or to answer any lawful inquiry, or to produce
documentary evidence . . . in obedience to the subpoena or lawful
requirement of the Commission"
is punishable criminally under § 10. It is further provided by §
9:
"No person shall be excused from attending and testifying or
from producing documentary evidence before the Commission or in
obedience to the subpoena of the Commission on the ground or for
the reason that the testimony or evidence, documentary or
otherwise, required of him may tend to criminate him or subject him
to a penalty or forfeiture. But no natural person shall prosecution
or subjected to any penalty or forfeiture for or on account of any
transaction, matter, or thing concerning which he may testify, or
produce evidence, documentary or otherwise, before the Commission
in obedience to a subpoena issued by it:
Provided, that no
natural person so testifying shall be exempt from prosecution and
punishment for perjury committed in so testifying."
Sherwin and Schwarz were the promoters of alleged gas and oil
properties conducted under the names of General Lee Interests Nos.
1 and 2, and General Lee Development Interests. The Commission
addressed to the concern letters requesting, under §§ 5, 6, 9, and
10 of the Act, detailed information in writing concerning its
organization and business. No reply was made thereto. Later, an
agent of the Commission, referred to as a special examiner, called
in person at the office of the concern and demanded the
information. This was at first refused on the ground that the
concern, being a common law trust, was not subject to the
jurisdiction of the Commission. The agent insisted that the Act
required Sherwin and Schwarz to give the information and answers
sought, pointed out that refusal to comply with the Commission's
request would subject them to the criminal penalties provided in
the Act, and, in so doing, omitted to call to
Page 268 U. S. 372
their attention the provision granting immunity from subsequent
prosecution under certain circumstances. Conferences were then had
with their legal adviser. Thereupon, they gave the agent access to
books and papers, furnished him copies of some documents, and
answered freely the inquiries made by him. It does not appear that
the Commission, or any member thereof, ever issued any order in the
matter. There was no hearing of any kind, unless the informal
conversations of the agent with Sherwin and Schwarz could be called
such. No subpoena from any source was ever served upon Sherwin or
Schwarz or any other person connected with their business. No one
made any answer under oath either orally or in writing. There was
no claim by Sherwin or Schwarz of immunity, or that the giving of
information might tend to incriminate them. The subsequent
prosecution which resulted in the indictment was instituted by a
post office inspector. It does not appear that the Federal Trade
Commission had any part in the prosecution, or communicated any of
the information gained to any government officials who did have, or
that any fact was elicited by the Commission which connected
Sherwin and Schwarz with the crime of which they were
convicted.
The question is not, as in
Counselman v. Hitchcock,
142 U. S. 547,
Brown v. Walker, 161 U. S. 591, and
Hale v. Henkel, 201 U. S. 43,
whether the immunity provided by the Act is sufficiently broad to
deprive the witness of his constitutional privilege against
self-incrimination. It may be that, for this and other reasons,
Sherwin and Schwarz could not have been compelled to furnish the
information which they gave.
See Federal Trade Commission v.
American Tobacco Co., 264 U. S. 298. The
question is not, as in
Glickstein v. United States,
222 U. S. 139, and
Cameron v. United States, 231 U.
S. 710, whether an admitted immunity extends to the
particular attempted use of the testimony. Nor is it necessary
to
Page 268 U. S. 373
consider the question involved in
Heike v. United
States, 227 U. S. 131,
whether the information given was beyond the protection of the
immunity provision because not of an incriminating nature and but
remotely, if in any way, connected with the transactions forming
the basis of the later prosecution. The immediate question here is
whether, under this particular immunity provision, the mere
furnishing of information of whatever character creates an immunity
which bars the prosecution.
Compare Tucker v. United
States, 151 U. S. 164,
151 U. S.
167.
The question is said to be one of statutory construction. But,
upon the facts stated, it is clear that there was no basis for the
plea of immunity. The Act grants immunity only when the person
testifies or produces evidence "before the Commission in obedience
to a subpoena issued by it." Sherwin and Schwarz did nothing in
obedience to a subpoena. None was issued. Whether the judgment
below was right for other reasons also, we need not consider. The
case is wholly unlike
United States v. Pardue, 294 F.
543.
Affirmed.