## Facts

- Frank Costello was subpoenaed to testify before a United States Senate committee investigating organized crime, including Costello’s financial resources and net worth.
- Costello appeared and did not dispute that the committee was lawfully organized, that he was properly subpoenaed, or that the hearing transcript was accurate.
- During questioning, Costello refused to answer certain financial questions, including his net worth and the existence and amount of large debts, asserting the Fifth Amendment privilege against self-incrimination.
- Costello also refused to answer additional questions after indicating he would not testify further; some refusals were attributed to illness.
- The Senate referred Costello’s refusals for prosecution, and a grand jury indicted him on ten counts of contempt of Congress under 2 U.S.C. § 192.
- After a jury trial in the Southern District of New York, Costello was convicted on all ten counts and sentenced to imprisonment and a fine.
- The district court ruled, as a matter of law, that Costello had no reasonable basis to invoke the Fifth Amendment as to several core financial questions, and it rejected the privilege on those counts.

## Issues

1. Whether Costello validly invoked the Fifth Amendment privilege against self-incrimination when refusing to answer questions about his net worth and indebtedness.
2. Whether the Senate’s contempt citation and the indictment were sufficiently specific to support the prosecutions.
3. Whether the committee could generate multiple contempt offenses by continuing to ask questions after Costello made clear he would not testify.
4. Whether Costello’s later willingness to answer questions was relevant to the willfulness of his earlier refusals.

## Decision

- The Second Circuit affirmed in part and reversed in part.
- The court reversed the convictions on the counts based on Costello’s refusals to answer the net-worth and indebtedness questions, holding the Fifth Amendment privilege was properly asserted.
- The court upheld the remaining contempt convictions for unprivileged refusals to testify, while recognizing limits on charging repeated refusals as separate contempts once the witness’s noncooperation was clear.
- The court rejected challenges to the breadth or sufficiency of the Senate resolution and found no fatal mismatch between the Senate’s action and the indictment.
- The court held evidence of Costello’s later cooperation was irrelevant to whether his earlier refusals were willful.

## Legal Principles

- A witness’s Fifth Amendment claim must be sustained unless it is “perfectly clear,” considering all circumstances, that the answer cannot possibly tend to incriminate.
- The privilege applies when an answer may provide a link in a chain of evidence leading to prosecution; the witness need not show that prosecution is certain.
- In a congressional contempt prosecution, courts evaluate the context of the inquiry and the realistic risk of incrimination, including potential exposure for financial offenses.
- A committee may treat an initial, directed refusal to testify as contempt, but it may not multiply criminal counts indefinitely by repeating questions after the witness’s refusal is unequivocal.
- Later cooperation does not negate the mental state associated with earlier refusals when the jury has found willfulness at the time of those refusals.

## Conclusion

The Second Circuit held that Costello’s refusals to disclose net worth and indebtedness were protected by the Fifth Amendment under the governing standard for self-incrimination risk, requiring reversal of those contempt convictions, while sustaining other contempt convictions and limiting the government’s ability to convert a single continuing refusal into multiple offenses through repetitive questioning.


United States v. Costello, 198 F.2d 200 (2d Cir. 1952)