347 F.2d 473 | D.C. Cir. | 1965
Lead Opinion
This appeal is from appellant’s second conviction of contempt of Congress,
In his second trial, appellant raised several points which were not decided in this court’s prior consideration of his case,
With regard to the issuance of subpoenas, Senate Resolution 366 provides that “[t]he committee, or any duly authorized subcommittee thereof, is authorized * * * to require by subpenas or otherwise the attendance of
Appellee in this case would distinguish Shelton on the ground that Live-right did not object specifically to his being called before the Subcommittee as Shelton had done.
“ * * [T]he Government argues that Yellin’s rights were forfeited by his failure to make clear at the time he was questioned that his refusal to testify was based upon the Committee’s departure from Rule IV. Whatever the merits of the argument might be when immediately apparent deviations from Committee rules are involved, it has no application here. Yellin was unable, at the time of his hearing, to tell from the actions of the Committee that his rights had been violated. So far as Yellin knew, the Staff Director acted as Congressman Walter’s agent, announcing the results of the Committee’s deliberations. And so far as he knew, the Committee, when it initially decided to hold a public hearing, did so in accordance with Rule IV. It was not until petitioner’s trial, when his attorney for the first time had an opportunity for searching examination, that it became apparent the Committee was violating its rules.” 374 U.S. at 122-123, 83 S.Ct. at 1836-1837. (Footnote omitted.)
In light of the Supreme Court’s holding in Yellin and in view of appellant’s obvious reluctance to testify, we cannot conclude that by his mere silence appellant forfeited the procedural safeguards accorded his right to privacy. Therefore, we hold that under the principles announced by the Supreme Court in Yellin v. United States, supra, and by this court in Shelton v. United States, supra, this conviction must be
Reversed.
. 52 Stat. 942, 2 U.S.C. § 192.
. Appellant also claimed that the Subcommittee had no valid legislative purpose and that by compelling his appearance the Subcommittee was subjecting him to punishment by the legislature in violation of the Bill of Attainder Clause. U.S. Const, Art. 1, § 10, cl. 1.
. Liveright v. United States, 108 U.S.App. D.C. 160, 280 F.2d 708 (1960), reversed sub nom. Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962).
. The Shelton case involved the same Subcommittee. The subpoena procedures used in that case were similar to those followed here.
. The Shelton decision is not inconsistent with either Sinclair v. United States, 279 U.S. 263, 49 S.Ct. 268, 73 L.Ed. 692 (1929), or United States v. Josephson, 2 Cir., 165 F.2d 82 (1947), cert. denied, 333 U.S. 838, 68 S.Ct. 457, 92 L.Ed. 1118 (1948), cited by appellee in this case. Both of those cases held that a valid subpoena was not an essential element of the offense of “refusfing] to answer any question pertinent to the question under inquiry” under 2 U.S.C. § 192. Neither held that the invalidity of the subpoena could not be raised as a defense. Compare United States v. Bryan, 339 U.S. 323, 70 S.Ct. 724, 94 L.Ed. 884 (1950), where the Court held that presence of a quorum was not essential to the offense, 339 U.S. at 327-330, 70 S. Ct. at 728-730, but that absence of a quorum, if brought to the attention of the committee, might be a valid defense, 339 U.S. at 330-335, 70 S.Ct. at 730-732. And see Yellin v. United States, 374 U.S. 109, 83 S.Ct. 1828, 10 L.Ed.2d 778 (1963).
. See Shelton v. United States, supra, 117 U.S.App.D.C. at 161 n. 15, 327 F.2d at 607 n. 15. The Supreme Court has on several occasions spoken of the fundamental importance of the right of privacy. In Sinclair v. United States, supra Note 5, 279 U.S. at 292, 49 S.Ct. at 271, 73 L.Ed. 692, the Court stated:
“It has always been recognized in this country, and it is well to remember, that few if any of the rights of the people guarded by fundamental law are of greater importance to their happiness and safety than the right to be exempt from all unauthorized, arbitrary or unreasonable inquiries and disclosures in respect of their personal and private affairs. * * * ”
And see United States v. Rumely, 345 U.S. 41, 58, 73 S.Ct. 543, 97 L.Ed. 770 (1953) (Mr. Justice Douglas concurring).
. Shelton claimed that he was called by mistake, that the Subcommittee had in mind another person named “Shelton.”
. In Bryan, as pointed out supra at Note 5, the objection was to the absence of a quorum; in McPhaul, the witness moved for a directed verdict on the ground that the prosecution had not shown that he actually had access to the records he was ordered to produce. He had not denied access when he appeared before the Committee. Obviously, in both cases, the witness, at the time of his appearance, knew, or had reason to know, of the grounds of the claim he later asserted. Compare Yellin v. United States, supra Note 5, where the witness’ complaint was that the Committee counsel, instead of the Committee itself, had denied his request for executive session.
Concurrence Opinion
(concurring) :
I concur in the result reached because reversal is required under the holding of the Supreme Court’s Yellin decision and our own Shelton decision, since Appellant cannot be held to have known that the subpoena was unauthorized when he responded to it. As Í read the majority opinion this ground would be unavailable to Liveright if the record revealed facts sufficient to have charged him with knowledge of the infirmity of the subpoena, since he made no timely objection.
Were the present question here for the first time I should indeed hesitate before deciding that a Congressional Resolution relating to the internal workings of its own committees confers enforceable rights on witnesses called before such committees. These resolutions are addressed by the Congress to its own membership for their own internal functioning. However, I am bound to apply these precedents so recently reaffirmed by this court. Shelton v. United States, 117 U.S.App.D.C. 155, 327 F.2d 601 (1963). But I now doubt the wisdom of our going to such lengths to achieve a desired end and to avoid resolution of constitutional questions posed by the conflict between Congress’ right to inquire and a person’s right to be left alone. To see that this is our announced purpose for reading Congressional Resolutions as vesting rights in witnesses, rather than finding what rights the Constitution provides in the circumstances, one need only scan the line of cases in the past ten years. See, e.g., Shelton v. United States, supra. Neither the occasional abuse of the congressional power of investigation nor the neglect of it at times can alter the hard fact that Congress cannot legislate without information. Sooner or later Congress may be expected to refine its procedures and internal restraints beyond the point where judges