United States v. Solomon Fried, Albert Fried, Thied-Party Witness-Appellant, 386 F.2d 691, 2d Cir. (1967)

386 F.
2d 691
68-1 USTC P 9109
UNITED STATES of America, Plaintiff-Appellee,

v.
Solomon FRIED et al., Defendants, Albert FRIED, Thied-Party
Witness-Appellant.
No. 168, Docket 31701.
United States Court of Appeals Second Circuit.

Argued Nov. 13, 1967.
Decided Dec. 4, 1967.
H. Stuart Klopper, Jamaica, N.Y., for Albert Fried, third party witnessappellant.
Howard L. Stevens, Asst. U.S. Atty. (Joseph P. Hoey, U.S. Atty., Eastern
District of New York), for plaintiff-appellee.
Before WATERMAN, FRIENDLY and SMITH, Circuit Judges.
FRIENDLY, Circuit Judge:
Seven years have passed since the United States recovered a judgment against
Dr. Solomon Fried, a Brooklyn dentist, for unpaid income taxes and penalties
on which a balance of $175,000, with interest, remains unpaid. The
Government's sense of frustration has been augmented by the facts that Dr.
Fried liquidated several brokerage accounts and received $269,000 in cash
immediately upon the making of the assessment underlying the judgment,
removed himself to Miami after having been served with a subpoena in
supplementary proceedings, and apparently has avoided examination or
punishment despite an order of contempt. Not unnaturally the Government has
sought information from members of Fried's family in the Eastern District of
New York who it thinks may be holding property belonging to or fraudulently
transferred by the taxpayer. Among these is his son Albert Fried, the appellant
here, who has been employed for many years as a retail furniture salesman and
lives with his wife and three children.
The Government's first effort to examine Albert Fried, a subpoena served in

May 1965 for an oral deposition, provoked a motion to quash on the ground,
supported by a physician's report, that a history of psychoneurosis, resulting in
rejection for military service during World War II, attendance at an out-patient
clinic, and a nervous breakdown in 1958, would make any appearance as a
witness detrimental to his health. Judge Dooling reserved decision on the
motion but granted the Government leave forthwith to serve 'an information
subpoena, accompanied by a copy and original of written questions' pursuant to
New York C.P.L.R. 5224(a)-3, here applicable by virtue of F.R.Civ.P. 69(a).
There followed a long interval during which the Government allegedly sent an
agent to interview Fried and sought, in May 1966, an order compelling him to
submit to a psychiatric examination, which Judge Rosling denied as an
'extraordinary invasion of respondent's (Albert Fried's) right of privacy' and
because of the Government's failure to utilize the written interrogatory
procedure. In November 1966 the Government mailed Fried an information
subpoena and questions. He retained a new attorney who advised that he was
under no duty to comply. When this predictably resulted in a motion to punish
for contempt, counsel offered to submit Fried for oral examination. Thereafter
Fried consulted a psychiatrist of repute who had furnished him a report when
the Government was seeking to compel a psychiatric examination, and returned
to the counsel who had represented him at that time. This attorney appeared
before Judge Dooling on February 21, 1967, two days before the date to which
the contempt motion had been adjourned. The attorney offered to make Fried
available for a psychiatric examination but withdrew the offer of the preceding
counsel to submit him for oral deposition. Although the judge made no
direction of any sort, Fried, accompaned by his lawyer, presented himself for
oral examination in the office of the United States Attorney. After being sworn,
he slumped and fell to the floor, displaying symptoms of acute distress;
thereafter he was hospitalized for 13 days in a private hospital under the
psychiatrist's care. The judge thereupon extended Fried's time to answer the
questionnaire to June 1 and denied the contempt motion without prejudice to
renewal if the questions were not answered by that time.
Late in May 1967, Fried's counsel moved to vacate and quash the information
subpoena. A supporting affidavit recited that at the lawyer's request Fried had
appeared in his office in mid-April in order to prepare answers but had become
so agitated that counsel recommended another visit to the psychiatrist. Fried
made this, and saw the attorney and the psychiatrist again during May. The
psychiatrist's last report, confirming earlier ones of May 1966 and Frbruary
1967, was the Fried was 'incompetent to answer questions pertaining to his
father because of the violent emotional upheaval which they precipitate in him'
and that any further attempt to answer the questionnaire 'would probably cause
the same mental collapse as the one suffered by him on February 21, 1967, with
a real possibility of permanence.' An opposing affidavit of an Assistant United
States Attorney recited, in addition to matters already here summarized, that
Fried maintains a stock brokerage account,1 has access to a safe deposit box in
a Brooklyn bank rented by his father, and has attended annual meetings of a
company in which he owns stock and has presented the complaints of dissident
shareholders 'in a reasoned and competent manner.'
4
The effectiveness of this as rebuttal depended on the exact nature of Fried's

alleged disturbance, on which unfortunately the psychiatrist's reports shed little
light. One theory, perhaps hinted at in the reports, is that Fried's illness is
causally related to an unconscious fear of or guilt concerning his father, and that
this fear or guilt paralyzes him from any action, such as disclosing his father's
assets, which would bring him in conflict with his father. If this were the case,
evidence that appellant is capable of handling matters not connected with his
father would be of little relevance, and the court would be squarely faced with
the question whether it should attempt to coerce appellant to overcome his
inhibition, with possibly serious consequences to his future memtal equilibrium,
or should resign itself to non-disclosure from appellant and perhaps noncollection of the judgment. Another theory not inconsistent with the
psychiatrist's reports is that appellant's psychological difficulties are not the
result of such a relationship with his father, but that whatever their cause, they
place such a load on his personality structure that this might collapse under the
additional stress from having to answer possibly embarrassing questions. If this
were the theory, the prediction that even the answering of a questionnaire under
oath would produce dire results would be effectively countered by evidence
that Fried takes similar amounts of stress in his stride. Judge Dooling
apparently assumed the psychiatrist was proceeding on the latter theory and
gave greater weight to the evidence of Fried's regular involvement with
financial matters than to the medical prediction. Accordingly he denied the
motion to quash the information subpoena, except for extending the time for
compliance to August 1. Fried, represented by still another attorney, appealed,
and counsel stipulated for a further extension until 10 days after our decision.
The Government contends that under the clear mandate of Alexander v. United
States, 201 U.S. 117, 26 S.Ct. 356, 50 L.Ed. 686 (1906), which we recently
applied in United States v. Fabric Garment Co., Inc., Eve Abrams, Witness,
383 F.2d 984 (2 Cir. 1967), the order is unappealable and a right to review will
arise only should Fried persist in his refusal to answer and the requisite finality
be furnished by an order punishing him for contempt. Fried counters with the
familiar 'collateral order' doctrine of Cohen v. Beneficial Indus. Loan Corp.,
337 U.S. 541, 545-547, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and contends that
an order risking the subjection of an individual to bodily harm must be 'final' in

the very nature of things.
6
The Cohen case itself is rather easily distinguishable as involving a 'collateral'

question of law, as to the applicability in federal court of a state statute
requiring the posting of security in derivative actions, which, once
authoritatively determined, would hardly arise again; the Court made clear that
its decision should not be taken to rule controversies over the amount of
security, 337 U.S. at 547, 69 S.Ct. at 1226. Although this distinction would not
cover Swift & Co., Packers v. Compania Columbiana Del Caribe, S.A., 339
U.S. 684, 688-689, 70 S.Ct. 861, 865, 94 L.Ed. 1206 (1950), on which Fried
relies, that decision rested on the basis that 'Appellate review of the order
dissolving the attachment (of a ship) at a later date would be an empty rite after
the vessel had been released and the restoration of the attachment only
theoretically possible,' and the Court distinguished the case where an
attachment was upheld. The decisions sustaining the appealability of orders
refusing to reduce bail, Stack v. Boyle, 342 U.S. 1, 6, 72 S.Ct. 1, 96 L.Ed. 3
(1951), and denying leave to proceed in forma pauperis, Roberts v. United
States District Court, 339 U.S. 844, 70 S.Ct. 954, 94 L.Ed. 1326 (1950), are
similarly explicable; in the former case a subsequent review would be wholly
ineffective and in the latter there could be none. Despite these decisions and
other more recent inroads on the finality doctrine, see Mercantile Nat'l Bank v.
Langdeau, 371 U.S. 555, 83 S.Ct. 520, 9 L.Ed.2d 523 (1963); Local No. 438,
etc. v. Curry, 371 U.S. 542, 83 S.Ct. 531, 9 L.Ed.2d 514 (1963); Gillespie v.
United States Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964),
we know of no instance in which the Supreme Court has reflected on the
holding in Alexander that a judge's order directing a witness to answer a
question in the very action pending lacks the finality required to support an
appeal by the witness until he decides to risk citation for contempt and a
contempt order is made. 2 While in Covey Oil Co. v. Continental Oil Co., 340
F.2d 993, 996-997 (10 Cir.), cert. denied, 380 U.S. 964, 85 S.Ct. 1110, 14
L.Ed.2d 155 (1965), the court said it was 'not impressed' with the argument that
a mere witness 'may obtain review by disobedience of the order and appeal
from a subsequent order of contempt,' this appears to be the very argument with
which the Supreme Court was sufficiently impressed in Alexander to dismiss
the appeal. So far as we can see, it has remained so. Cf. Cobbledick v. United
States, 309 U.S. 323, 326-330, 60 S.Ct. 540, 84 L.Ed. 783 (1940); DiBella v.
United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962). The other
cases cited by appellant involve orders which terminated independent judicial
proceedings, e.g., directing the taking of depositions for use in an action to be
thereafter commenced, Mosseller v. United States, 158 F.2d 380 (2 Cir. 1946),
quashing a subpoena duces tecum for information to be used in a proceeding in
another court, Horizons Titanium Corp. v. Norton Co., 290 F.2d 421 (1 Cir.,
1961), or quashing or enforcing subpoenas issued by executive or
administrative agencies. See our recent discussion of these distinctions in In re
Letters Rogatory Issued by Director of Inspection of Government of India, 385
F.2d 1017 (1967), and the cases there cited, and 4 Moore, Federal Practice
P26.37 (1.1. and .2) and 6 id. P54.16.
7
The argument that the order must be regarded as final because of its possible
serious consequences to appellant's well-being does not withstand analysis
despite its superficial attractiveness. While Fried's highly particularized
syndrome may indeed be unlikely to recur, acceptance of his position would
open the door to countless appeals from orders heretofore uniformly deemed
interlocutory, thereby swelling appellate dockets already too large and delaying
trial calendars already too slow. In addition to orders compelling testimony
before, during or after trial by witnesses who claim serious physical or mental
ailments, the principle would embrace orders directing physical or mental
examinations under F.R.Civ.P. 35(a) of persons who contend, as Fried earlier
did, that such examinations would injure their health, and directing that a
criminal or civil case proceed to trial despite alleged inability of a party to
participate, compare United States v. Knohl,379 F.2d 427 (2 Cir. 1967). Under
the Covey Oil decision, claims of serious pecuniary damage from discovery
orders would also qualify. With the number of appeals having increased almost
70% In the last five years, see Report of the Proceedings of the Judicial
Conference of the United States, March 30-31, 1967, p. 8, as against the much
smaller growth in district court litigation, this is no time to weaken the historic
rule putting a witness' sincerity to the test of having to risk a contempt citation
as a condition to appeal, however harsh its application may seem to the
appellant here. If Fried is not exaggerating, as the district judge thought he was,
he will continue his refusal and a more meaningful review can be had on the
fuller record that will become available in a contempt proceeding.
While we therefore must dismiss the appeal, we think it not amiss to note,
without thereby intimating any direction, that the belated offer to submit Fried
to examination by a psychiatrist designated by the Government, made at the
baginning of the February 21, 1967 hearing, seems somehow to have
disappeared from view.
Appeal dismissed for want of appellate jurisdiction.
The record contains testimony by an employee of the brokerage firm, cited in
Judge Dooling's memorandum, that Albert Fried 'was up in the office a couple
of times a week,' 'trades for himself,' and 'is an expert' on stocks
2
Appellant's doubt as to the reviewability of such an order as to him, under Fox

v. Capital Co., 299 U.S. 105, 57 S.Ct. 57, 81 L.Ed. 67 (1936), is unfounded.
That decision simply reaffirmed the rule 'that except in connection with an
appeal from a final judgment or decree, a party to a suit may not review upon
appeal an order fining or imprisoning him for the commission of a civil
contempt,' and the distinction from Alexander was expressly noted. 299 U.S. at
107-108, 57 S.Ct. at 58

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386 F.

UNITED STATES of America, Plaintiff-Appellee,

United States Court of Appeals Second Circuit.

The Government's first effort to examine Albert Fried, a subpoena served in

The effectiveness of this as rebuttal depended on the exact nature of Fried's

an order risking the subjection of an individual to bodily harm must be 'final' in

The Cohen case itself is rather easily distinguishable as involving a 'collateral'

Appeal dismissed for want of appellate jurisdiction.

The record contains testimony by an employee of the brokerage firm, cited in

Appellant's doubt as to the reviewability of such an order as to him, under Fox

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