IN THE MATTER OF PROCEEDINGS BEFORE A SPECIAL GRAND JURY.

SMITH, J. This appeal is from a Superior Court judgment holding a grand jury witness (witness) in contempt for refusing to answer questions put to him before a special grand jury in Norfolk County. The judgment stated that the witness was to be committed to the house of correction "until he decides to comply with the [c]ourt [o]rder, up to the time that the term of the [s]pecial [g]rand jury expires." A single justice of this court stayed the judgment of contempt pending resolution of this appeal. The witness claims, among other things, that his refusal to answer the questions posed to him was lawful in that he had properly invoked his privilege against self-incrimination under the Fifth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. We agree with the witness and reverse the Superior Court's judgment of contempt.

Page 694

The witness is employed as a pari mutuel manager at a race track in the eastern part of the Commonwealth. He was summoned on three separate occasions to appear before a special grand jury convened in Norfolk County. He was informed by the prosecution that the special grand jury was investigating possible illegal gaming operations at the track. On each occasion, the witness was asked questions as to (1) various aspects of his job; (2) his knowledge of track employees' either taking bets over the telephone or placing bets for persons not on the track's grounds; and (3) the cashing of winning tickets by individuals other than the ticket holders. To twenty of these questions he pleaded the Fifth Amendment and art. 12, refusing to answer on the ground that doing so would tend to incriminate him.

On April 25, 1989, the Superior Court judge held an in camera hearing on the Commonwealth's motion to compel the witness to answer the questions put to him by the prosecutor. At that hearing, the judge was informed by the prosecutor of the following facts: A special grand jury was empanelled in Norfolk County on October 24, 1988, for the purpose of investigating illegal gaming operations. An area of the investigation concerned certain activities that had allegedly occurred at the track at which the witness was an employee. One aspect of the investigation involved an inquiry into whether one Richard Boe, [Note 1] father of the owner of the track, may have engaged in illegal gaming or gaming-related activity at the track in concert with the general manager of the track and others. More specifically, the special grand jury was investigating whether Boe, while not on track premises, may have relayed bets over the telephone to the general manager, who then placed the bets for Boe at the mutuels windows. [Note 2] Another subject of the special

Page 695

grand jury's investigation involved the cashing on October 29, 1987, of a winning twin trifecta ticket in the amount of $60,141.70, at the track. The ticket was cashed by an individual we shall call Goe. The Commonwealth was in possession of information, some of which had already been presented to the special grand jury, that showed that Boe, the general manager, and others had shared in the proceeds of the ticket, that the ticket was cashed in the witness's office, that the witness was the pari mutuel manager working at the track at the time and that Goe had signed an Internal Revenue Service (IRS) form upon receipt of the winnings. The special grand jury was also investigating the cashing of two winning tickets, each in the amount of $33,247.70, at the track on June 21, 1987, by Goe and another individual we name Hoe. These two individuals were suspected of being "straw men" or "ten percenters" for Boe, the general manager and others not yet identified, who shared in the proceeds of these three tickets. These "straw men" or "ten percenters" cashed the tickets, claiming the winnings on their income tax, thereby concealing the true identity of the person or persons who actually held ownership of the winning racing tickets. Such conduct, if proved, is a Federal crime because it obstructs the assessment and collection of Federal income taxes in violation of 26 U.S.C. Section 7206 (1) (1982) [Note 3] and 18 U.S.C. Section 371 (1988). [Note 4]

The judge reviewed each question asked of the witness by the prosecutor before the special grand jury. He ruled that the

Page 696

witness did not have to answer six of them because the answers might directly incriminate him. As to the other fourteen questions, however, the judge declined to accept the claim of privilege and ordered the witness to answer the questions before the special grand jury. [Note 5] That afternoon the witness again appeared before the special grand jury. At that time the prosecutor propounded those questions to which the judge had ordered the witness to respond. The witness refused to answer any of them, once again invoking his privilege against self-incrimination.

On April 27, 1989, the Commonwealth filed a petition in the Superior Court, seeking to have the witness declared in

Page 697

civil contempt of court and incarcerated until such time as he was willing to purge the contempt by testifying before the special grand jury as ordered. After a hearing, the Superior Court judge adjudged the witness to be in contempt. [Note 6] This appeal followed.

A grand jury "has a right to every man's evidence." Branzburg v. Hayes, 408 U.S. 665, 688 (1972), cited with approval in United States v. Nixon, 418 U.S. 683, 709 (1974). An important exception to this principle is that a witness before a grand jury is entitled to assert his Fifth Amendment privilege against self-incrimination by refusing to answer questions. Counselman v. Hitchcock, 142 U.S. 547, 559 (1892). The claim of the privilege by a witness before a State's grand jury may be based on fear of a Federal as well as State prosecution. See In re Brogna, 589 F.2d 24, 27 (1st Cir. 1978).

In determining whether a claim of privilege is justified, we apply Federal standards. Taylor v. Commonwealth, 369 Mass. 183, 187 (1975). Powers v. Commonwealth, 387 Mass. 563, 564-565 (1982). "Under these standards, a witness who asserts his privilege cannot be compelled to testify unless it is `"perfectly clear from a careful consideration of all the circumstances in the case that the witness is mistaken, and that the answer[s] cannot possibly have such tendency" to incriminate.'" (emphasis in original). Powers v. Commonwealth, supra, quoting from Malloy v. Hogan, 378 U.S. 1, 12 (1964), quoting from Hoffman v. United States, 341 U.S. 479, 488 (1951). The privilege covers not only answers that would in themselves support a conviction "but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute." Malloy v. Hogan, supra at 11, quoting from Hoffman v. United States, supra at 486. The person asserting the privilege is not "required to prove the hazard [of incrimination] in the sense in which a claim is usually required to be established in court. . . ." Hoffman v.

Page 698

United States, supra at 486. Rather, the privilege may validly be asserted whenever "the witness has reasonable cause to apprehend danger from a direct answer." Id. However, "[t]he fear must be reasonable in light of the witness's specific circumstances, the content of the questions, and the setting in which the questions are asked." United States v. Jones, 703 F.2d 473, 476 (10th Cir. 1983). Also see Hoffman v. United States, supra at 486-487; Emspak v. United States, 349 U.S. 190, 199 n.18 (1955). See Murphy v. Commonwealth, 354 Mass. 81, 83-84 (1968); Taylor v. Commonwealth, supra at 187-188; Powers v. Commonwealth, supra at 565; Commonwealth v. Borans, 388 Mass. 453, 456 (1983); Commonwealth v. Sasu, 404 Mass. 596, 600 (1989). See generally Wright, Federal Practice and Procedure: Criminal 2d Section 407 (1982 ed.). It is for the trial court in the first instance to determine whether "a responsive answer to the question [posed] or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result." Hoffman v. United States, supra at 487. In that regard, the judge must undertake a particularized inquiry as to each question because the witness may have a valid claim to the privilege with respect to some of the questions, but not with respect to others. United States v. Goodwin, 625 F.2d 693, 701 (5th Cir. 1980).

In the circumstances of the present case, it is far from clear that the witness's testimony cannot possibly incriminate him. The witness is the pari mutuel manager and, as such, supervises the betting at the track. Because of the nature of his position, the witness is in jeopardy of violating a number of statutes, both Federal [Note 7] and State [Note 8] that are concerned not only with illegal

Page 699

gambling but also the payment of taxes on some successful wagers made at the track. Here, the special grand jury was in possession of information that certain transactions involving the cashing of winning trifecta tickets by Goe on October 29, 1987, and Goe and Hoe on June 21, 1987, had taken place in the witness's office while he was on duty. Those transactions, which the Commonwealth believed to be illegal, were the focus of many of the questions as to which the witness claimed his privilege. [Note 9] Because of his position as pari mutuel manager, the witness was in close proximity not only to the allegedly illegal conduct but also to the individuals who were the targets of the investigation as well as to several of the "others" with whom the special grand jury believed the targets may have conspired. Therefore, as to those questions (see n.9), because of the witness's specific circumstances, the content of the questions, and the setting in which the questions were asked, the witness was justified in claiming his privilege against self-incrimination.

The witness, for the reasons stated above, was also justified in not answering the remaining questions. [Note 10] Although these questions appear to be innocent, a witness is not required to answer even an innocuous question if the setting suggests a substantial and real hazard of incrimination. Emspak v. United States, 349 U.S. 190, 200-201 (1955). In re Atterbury, 316 F.2d 106, 109-110 (6th Cir. 1963) ("Answers to questions which at first blush may appear wholly innocuous, may, under

Page 700

certain existing circumstances, furnish a link connecting the witness with a criminal act and show that the danger apprehended by the witness was not fanciful"). In the circumstances, the answers to those questions could furnish a link in the chain of evidence needed to prosecute the witness.

Finally, the Commonwealth contends that the witness cannot validly assert his privilege against self-incrimination because he is not a "target" of the investigation and that neither it nor the special grand jury has any evidence to suggest any wrongdoing on the witness's part or that would implicate him. This argument is without merit. "[T]he right to assert one's privilege against self-incrimination does not depend on the likelihood, but upon the possibility of prosecution." (emphasis in original). In re Master Key Litigation, 507 F.2d 292, 293 (9th Cir. 1974), citing Hoffman v. United States, supra at 486-487. See also, In re Folding Carton Antitrust Litigation, 609 F.2d 867, 872 (7th Cir. 1979).

Judgment reversed.

Judgment for the witness.