Quinn v. United States

need not foregoing we view might discovery as it the effect consider for if appellant, been available

have on his claim case there prices ceiling appellees violated position in no better course him, availability to possible reason of the ap within discovery, of evidence

through possession knowledge.

pellees’ previous decision. adhere to our

We

QUINN UNITED STATES.

No. 11081. Appeals States Circuit Columbia District of

Argued Jan. May 27,

Reargued 19, 1952. Dec.

Decided Rehearing Denied

Petition April * ,7 1, supra, treated (b), refers Whether severa- 251, type n. § not the result job this case ble we state available ** “Lump-sum, jobs sales the same. [f]or , selling price total of a basis on the Scribner, vice, pro special hac David Court, R. Rosen- leave Allan whom brief, C., berg, Washington, D. was on appellant. Murray, Atty., Charles B. Asst. U. S. C., argument, Washington, D. at the time of Irelan, Atty. with whom Charles M. U. S. Howard, Atty., Joseph Asst. U. S. M. C., brief, Washington, were on D. Atty. appellee. Fay, George Morris S.U. Washington, D. was filed when record C., appearance behalf also entered his appellee. Judge, STEPHENS, Chief Before CLARK, EDGERTON, WILBUR K. PRETTYMAN, PROCTOR, MILLER, BAZELON, WASHINGTON, FAHY and Judges. Circuit PRETTYMAN, Judge. Circuit Appellant refusing was indicted 'for question asked subcommittee of the Committee on Un-American Activi- Representatives. House of ties of the whether he was or ever had Party, 'been a member Communist tie was tried of the District jury and without a was convicted. day pre- record that on the shows crucial asked appellant When appel- interrogation subcommittee, ceding that of question before questioned one lant, the had subcommittee colloquy occurred: following made an ex- Fitzpatrick, Thomas who make a like to I Quinn. would “Mr. statement. tended .Mr. that the lines along statement refusal to Having been indicted for regard yesterday Fitzpatrick made him, Quinn put question answer the I feel nature. question of that' to a upon a dismiss indictment moved to beliefs, opinion's, and political that the was grounds. number of motion people American associations judge without by He tried a denied.1 they so desire. held can be secret pertinent defense, jury. His so as a far reasons for those And “Mr. Wood. present inwas three conten- appeal, question? you to answer decline tions. say I de- didn’t Quinn. I “Mr. Before question. clining answer says Fifth Quinn that he claimed the like question, I should I do answer self-in- protection against Amendment taken position say support the I says by per- crimination. He he did Fitzpatrick yesterday. by by Brother sonally form of claim made adopting the prior Fitzpatrick. witness, his state- Did hear “Mr. Wood. you yesterday? ment no The trial court found as fact that at Yes; Quinn, the sub- Quinn. point I did. did while before “Mr. committee, privilege explicit assert the support in its you it Do “Mr. Wood. : posed then terms. The court entirety ? personal privilege against “Can one claim entirety. In its Quinn. “Mr. by position to a selfdnerimination reference anything else there Is “Mr. Wood. ?”. The court that another took said: it? you want add that, this Court finds as a matter “On No; I don’t. Quiñn. “Mr. may law that one not. Since accept you it as Wood. Will “Mr. privilege personal, is defendant n views, your then? expression himself, it since another must assert may may. I add may what in defendant’s Quinn. You not know “Mr. ’' in this other choice the time he is before mind at called feel I have I testify pertinent of' the matter, Congress the defense 'the becaúse matters, inquiry, I don’t there- Constitution," to-proper I sacred. .hold may reference; fore, not, by assert one hiding behind feel am Cbnstituf standing I am tion, privilege.” case in this but beforе am. it, defending it, ^{[*] [*] [*]} as - small ^[*] - * as i The trial Quirin n had'not asserted respect to self-incrimination. court therefore concluded that his personal privilege your stated You have “Mr. Wood. are of that a witness We your Having enunciated . position. may claim privilege the constitutional position, you will your sentiments adopting language referringto and used you question whether now other’s, course, another, long, of so member of been a or ever have' now point is identified. On that we language you Party, decline door Communist error, District Court was think the answer. so concedes. It is true the Government ' personal privilege I decline to discuss is a one and the Quinn. that the “Mr. questions must be such as to indicate- the committee circumstances personally witness himself asserts: nature.” States, 1951, D.C.D.C.1951, Rogers Emspak, v. United 1. United States Emspak, 370-371, F.Supp. 1010; 95 L.Ed. 344. United States F.Supp. .D.C.1951, D.C personally discussion, which was But, a witness when the claim.3 expres- chiefly lengthy, related to First Amendment adopts a described he asserts that rights. any point make personal- He did not at expression, the claim sion unequivocal or clear that he specific statement term No formula ly made. may privilege against self-incrimi language claimed the expression required. The may be nation. two The closest to were composition or came be the witness’s own in the Fifth Amendment the references to the quotation from another statement; rights long as course long discussion adoption so of another’s Once, speech thought. the free before personally makes witness himself him, said, questions action, “This this re- been asked claim, byor words either protection is a Amendment to fоrm the First no what of quirement is matter satisfied 'Constitution, supplemented by the Fifth the uses. he said, “I stand Amendment.” And once Quinn, question the whether Then is Constitution, the protection on the statement, Fitzpatrick’s assert by adopting First and Amendments.” There was Fifth privilege against a self-incrimination. ed indicating no a claim of the context course, question concerns Basically, of privilege meant. was Quinn’s courts mind. But what was intentions, upon and unrevealed cannot act Amend We think the words “Fifth Fitzpatrick inquiry the must be whether so ment”, alone, not constitute considered do If privilege. or did not claim the did privilege which a formula invokes claim, a did not amount such what said against Fifth self-incrimination. The adoption did not Quinn’s of the statement than one clause. Amendment contains more court no one. The made amount to possibly pertinent It contains two are which sufficiency meaning ruling upon the or the here, against privilege self-incrimina Having held Fitzpatrick’s statement.4 process The ex tion clause. and due Quinn law not as a matter of could pression protection “I claim the of the First it, called adopt the court was not Amendment, supplemented by the Fifth” In the which we take consider it. view may reasonably mean “I well and efficacy Fitzpatrick’s of the case protection claim First Amend must privilege a claim the statement as speech my rights ment of free and problem is whether it be determined. thought, supplemented by guarantee byor determined this court should be process com law.” The due trial court. First bination Fourteenth unusual,5 statement, protection Fitzpatrick’s not Amendment as to The issue has mean auditor and the combinеd reference it, we see whether reasonable as course, Fitzpatrick expressed. Of a matter ing just from as understand what would law, claiming a reference to the (Fitzpatrick) the of constitutional that he said supplementing Amendment refuse to answer because his Fourteenth process a reference the due might tend to incriminate him. The the First is known, Fitzpatrick applying used vehicle the First are clause words dispute. states, record, Amendment restrictions to the and are reference to the Fifth Amend those words mean as he uttered in that What did sense supplementing the First has ment as them? may Upon Fitzpatrick properly be his own trial held claim 3. As whether privilege. attorney, Jones claimed the the witness’s see to have made Fitzpatrick, D.C.D.C.1951, Commonwealth, 96 F. Mass. v. States Supp. v. 456, and cases collected 99 N.E.2d thereto; State, Musselwhite footnote Burstyn, Wilson, Joseph Inc. v. But Miss. 54 So.2d 911. 1098; 495, 72 96 L.Ed. Leiby’s Estate, App.1951, Ohio see re Maryland, 1951, 340 U.S. Niemotko appeal dismissed, 101 N.E.2d St. N.E.2d anno 156 Ohio v. New York, 1925, Cf. Gitlow Am.St.Rep. tation 339-340. 625, 69 L.Ed. 1138. 2á issue in inquiry concerns the main controversy federal over

meaning in a. expres- case.6 considering an' action. But we are -familiarity witness, by lay sion used Perhaps, opinion that if we of clear were Four- “First phrase with the combined Fitzpatrick, Quinn, did claim and therefore the use of teenth” account acquitted, we privilege and must so full indicate the phrase Fifth” to “First and finally dispose here should of the matter protections. . First Amendment force of the circumstances we Under such and now. ,- judgment conviction. reverse In our here. of that majority But a court are not statement, full . opinion. clear claim context, relаted text and thought speech and of free rights judgment The affirmance of a Amendment, whether under the-First involves consideration some conviction to claim an intention auditor could detect those involved in the reversal different s self-incrimination,; privilege Basically, judgment. an accused of such a protected by Fifth Amendment. trial, only upon can be convicted indisput always have Words do appellate affirming of an court function not, their do meanings.- When able by that is circumscribed a conviction in some law is a matter of interpretation may A principle. reversal result another in others. of fact a matter instances upon Generally determinations trial. statute, appears in phrase a ambiguous If an finally rests judgment which a conviction of If question law. one meaning is of a by in the first instance ought'to its occurs be made contract, meaning depends' its in. a by appellate . court, not the court. trial the parties; and that upon intention the problem pre phase upon this It is If unalloyed question fact. of may be an .by appeal that members of this this sented of meaning the dispute the concerns the differ. court by a witness on recital lengthy of a whole is the judgment of the court that question fact. meaning is a of stand, the the to the court be remanded trial case should issue, trial, if at which the then Fitzpatrick’s meaning is for newa Whether raised, Quinn question -bewhether claimed the a mixed of would question fact or a by made adopting statement privilege borderline. the is and fact close law ' Fitzpatrick. two views event, by Either or both of that, in the opinion is either Our judgment. One is that us to that view to be drawn the first lead ought conclusion appellate court has no setting criminal -casean by court. In the in a the trial instance authority initial determination to make the (which is all we have case of a criminal one, be analysis whether it an issue such as think that strict this here), we do a ques- fact mixed inquiry presents question of or a called a given a f fact, upon judgment one o tion of law of fact or a mixed of law rest; an initial whether it of conviction controlling as to law fact upon must made by such an issue be instance decision first may determined be court, especially by court, judgment of con- where -that the trial appellate an appellate States, 1948, without an court Cir. Miller v. United 6. See retry jurisdiction Ap power criminal 865, where Court of F.2d authority being cases, limited re peals our Circuit reversed the Sixth for viewing alleged of law which errors for conviction de a criminal remanded ‍​​‌‌‌‌​​​‌‌‌‌​​​‌​‌​​‌‌‌​​​​​‌‌‌​​‌​‌‌‌‌​​​​​‌‌​‍by ques by trial court.” committed have been trial court of a the. termination (1948), Compare U.S.C.A. law, 62 Stat. sec and the same case tion (1912), appeal, Stat. 565 with 37 § 6 Cir. 173 F.2d ond (1928), amended, by judgment re § U.S.C.A. conviction where by partial pealed 62 Stat. Court, of June Act new after District Code, Judicial Revised trial, was [See and remanded new reversed Kemp also Litton v. Unit §§.1291, 1292, 1294]. See novo. See trial de U.S.C.A. Zone, Canal Cir. States, Government 8 Cir. F.2d. ed denied, 1948,167 F.2d certiorari 1344: “This interpreted The other view would follow. circumstances viction e require appellate some discretion as appellate has cas court to court that an present sume initially the function of considering hut in such circumstances exercised to basic issue.9 discretion should case by the the issue a determination cause Appellant’s point is second court, a convic- rather than to affirm trial that, before congres a witness before a an issue not con- the decision of tion contempt sional committee can be held in by the trial court. sidered refusing question, to answer a must why suggested Two reasons specifically be directed to answer and his peculiar appropriate, might for refusing reasons to answer rejected or case, for this court of this circumstances passed upon point overruled. We have in fact privilege was whether the determine contrary appellant’s in Em contention by Fitzpatrick. first is asserted spak v. States, United U.S.App.D.C. 378, and the case waived trial today. F.2d point decided As was The second is judge alone. tried ed out in Bart primarily of a read consisted the evidence App.D.C. 370, 203 F.2d decided also of, subcommittee, ing, by counsel for today, to constitute an offense refusal sub hearings before the transcript of , ap must be intentional. It must defendant waives But when a committee. pear Quinn was aware the intention thereby, consent to by jury he does not inquirer of his that answers were re or innocence guilt a determination quired despite objections.,, said he He second appellate . court. As adopted all of statement. is confused we think it reason ¡made Fitzpatrick, a full statement before those equity cases.7 In civil rule as questions, stating asked he was that he specific findings makes cases the answer, would refuse before the appellate and the facts the several questioning 'began the Chairman of the find those must court determine explained Subcommittee to him neces the “clearly erroneous”. or are not ings are sity Quinn for answers. When himself criminal situation exists no such But questioned, and after he had refused Moreover, the substantial one of case. answer, adopting Fitzpatrick’s statement, by defendant rights a criminal accorded the Chairman twice asked him to answer right courts is the in the federal statute the,question. The deliberate and intentional appeal. this court affirm Were an character of refusal is element of the not finding considered on conviction offense, to cir be determined from all the in effect be below, would the defendant cumstances the trier of That facts. right, finding, our that deprived of will be issue before the trial court if the issue, instance, main on the first is retried. case grant on subject to review be Supreme Court. certiorari Appellant’s point that, third grand jury since ten members of the which urges we The that Government him employees indicted were Government theory that the conviction on the affirm the and two were wives of Government em- harmless, court of the trial error ployees, he was entitled to a hearing on his reasonably be concluded that it could dismiss the motion to indictment as void for adop Quinn by his that the evidence from passed reason. We have also on this statements, asserted tion of contrary point appellant’s contention in think Rule privilege. We claim of States, supra. Emspak v. United Criminal should not he 52(a) Rules States, 1946, v. Higgins, Kotteakos United See F.2d v. Cir. 1950. 180 7. Orvis 750, 757-777, 1950, 1239, denied, 810, 340 U.S. certiorari 1557; Arkansas, Cole v. L.Ed. L.Ed. 595. S.Ct. 644; 333 U.S. 52(a), 18 U.S.C.A. States, 1946, 8. Fed.R.Crim.P. v. Bollenbach United 326 U. S. L.Ed. 350. will think the court misreads Dennis v. United Distriсt Court judgment of The phase of discussing for a States. Before case remanded be reversed however, opinion, I think it court’s new trial. essential to con the Government’s consider remanded. Reversed tention that the rule of Dennis case— petit applies only whatever to a BAZELON, Judge, with whom Circuit is— jury. and not grand to a con- EDGERTON, Judge, joins, Circuit curring in the result. says, free from Government “It is not reversal of the con agree IWhile partiality doubt that in a grand juror is ** trial, new for a remand and the viction se per disqualifying. Historical- respect to some differing view take a grand jurors were chosen for what ly, knew about n o questi s. important community, affairs in the which petit juror the case of a would be dis- I. “Partiality,” qualifying.”2 resulting from concludes that court’ knowledge, thing. partiality is one But re- appellant denying a sulting atmosphere error fear induced there was demonstrating purpose intimidation, appellant for the hearing seeks to quali employees demonstrate, quite were my view, that Government another. This jurors in this case. grand latter would be disqualifying. fiedto act For in Ems “petitioner’s court’s on this view federal rests right conclusion constitutional pak States, U.S.App.D.C. 378, v. United impartial jury”3 a fair and grand can be no appellant “did no more than less 203 F.2d his' indictors be free of fear fear’ of a ‘miasma of paralyze existence that would assert than the exercise of their Dennis clearly case.”1 free rejected will.4 so States, requisite qualifications jurors, Emspak 91 U.S. United Dennis App.D.C. pleaded F.2d in abatement in S. dictment. And this doctrine and distinc . principle. tion L.Ed. 734 seems founded Ct. ques of the accused to have the Emspak Appelleе in 2. v. United Brief for guilt, by compe tion of his decided two p. concedes 26. The Government juries tent before is condemned to re “The Fifth Amendment that while punishment. right, is his in the first only capital quires ‘or other indictments place, accusation.passed upon, to have the * * * crime, the where infamous’ upon before he can be called to answer compelled or been has chosen Government charge by. crime, grand jur to the of a by indictment, proceed the accused y to probably composed good and lawful men. If standing to move to dismiss has jury composed be not of such men a by disqualified body, a found an indictment s possess requisite qualifications, just a to attack an have as he would ought put upon upon not to be his trial upon a the oath of dis filed information charge preferred by them; a but should 26, prosecuting qualified officer.” Id. permitted plead incompetency be their Appellee Brief for in the And see 3. note prefer charge put upon and him p. case, 58. instant trial, in avoidance of the indictment. Texas, 1950, 282, may compelled 339 U.S. v. 3. Cassell Otherwise he be to an 629, charge preferred by swer to a criminal S.Ct. infamous, unworthy men who are or to be Crowley States, 1904, v. 4. See his accusers.” L. S.Ct. Supreme quot Court Remington, Cir., where Ed. United States v. “leading approval 246, 252, appellant from the case” F.2d ed moved State, .quash contending 12 Tex. 268: v. of Vanhook indictment “that opinion, foreman, Brunini, deduced from be better “The one a financial access, government’s to which we have interest in a book authorities which irregularities writing in select chief witness seems ing be The grand jury, impaneling Appeаls and Court of reversed for further competency proceedings pointing to the not relate indi out “[t]he do in general, only can, jurors, quashed ob be dictment should not be vidual jected unless challenge array. by by to the undue But shown” a Brunini on influence Ibid, jurors. grand incompetency, (emphasis or want of the the other us, jury securing the Gov- tell valuable unconvincing to as as as ever in It is * ** does, “bias” here asserted ‘individual citizens’ an ernment .‘from grand open public not, disqualify crime, a accusation of proved, if and would trouble, expense, this Supreme Court nor and from the and Neither the juror. question. public Even anxiety of a prob- a trial before has ruled on court a from direct finan- arising regard to bias present- by able cause is established confu- interest, cases are in the state cial grand jury;’ ment of a indictment well afresh might start this court sion and and ‘in high justly case of offenses’it ‘is jurisdiction.5 fashioning for this a rule regarded as one of the securities federal no case—state I have discovered malicious, against hasty, innocent ¡considers by induced whether fear —which ” 8 oppressive public prosecutions.’ disqualifies atmosphere intimidation an means, grand jury a designed “is as jury.6 grand persons bringing to trial accused is proposing What the Government upon just public grounds, but offenses repeal Fifth Amendment’s pro tanto protecting means the citizen also as a or indictment presentment of “a assurance accusation, whether it unfounded grand Jury.”7 It is true that a Grand government, prompted comes from or be anachronistic has been an jury criticized partisan passion enmity.”9 private Supreme has But, institution. system grand jury dеrives the notion said: subjected “that no one shall be to the bur- given force expense “whatever until den of a trial there has grand true that the remains argument, prior inquiry adjudication by been a supplied). prevent States v. And cf. United “as him from ren- (plea Wells, dering upon F. 313 D.C.Idaho a true verdict the evidence” sustained—prosecuting disqualification r required grand juror in abatement atto appeared grand ney voluntarily before person “would be unfit to sit finding urged indictment, jury stat petit jury”); Wilcox, but see State v. sufficiency S.E,. ing evi law and views on 104 N.C. etc.); dence, (dictum magistrate States v. Bel but see United fact —“The , vin, F. 384- Va.1891 C.C.E.D. who committed defendant was foreman ** [indicting grand] jury ** * good ground for motion to Richardson, 149 S.C. 5. State quash ”). [indictment] (indictment returned 146 grand S.E. atmosphere clearly An of intimidation who commissioners chosen disqualify petit jury. does Moore v. quashable deposited bank in defendants’ Dempsey, 1923, 86, 91, 43 Joslyn time); see raised in if issue People, 1919, (domination 265, 543 L.Ed. 67 297, 375, P. 184 Colo. 67 courtroom); in mob violence Mangum, 3915, Frank v. pecuniary (“direct 377, in 339 7 A.L.R. 309, 335, 237 U.S. 35 S. disqualifies juror); grand but cf. terest” 582, public (hostile Ct. 59 L.Ed. 969 sen 558, 1933, State, 166 164 Md. v. Coblentz timent and mob domination of the court (depositors 45, not dis 886 A.L.R. 88 A. qualified room). voting insolvent to indict from 1905, president); Turner, v. State bank’s 7. Prosecution for violation of 11 Stat. 155 404, courts (1857), amended, 1112. State (1938), 60 A. N.J.L. 72 as 52 Stat. 942 disagreement on mem in not, also course, are 2 192 § U.S.C.A. need be previously grand jury by grand jury which in aof bers commenced action. But see qualified supra. serve 2, a defendant dicted note jury grand him for reindicts which aon parte Bain, 1887, 1, Ex 12, 8. 121 U.S. 7 People Hansted, v. same offense. the 1901, 781, 787, 849, quoting S.Ct. (not 763, 349, P. 764 135 Cal. 67 Chief Justice Shaw of Massachusetts disqualifies state qualified “a — statute Robbins, Gray v. Jones 8 329. [grand juror’s] mind on exists Bain, emphasis parte supra, page part Ex 121 U.S. at in reference 9. case” — Bullard, 1905, page 786, quoting supplied); at v. 7 S.Ct. cf. State Justice Charge (statute disqual Field, Jury, 168, 102 to Grand N.W. Iowa ifying Fed. Cas.No.18,255, Sawy. page grand juror if he such an 667. probable preme grand long Court has

responsible that there is included tribunal scope jury within the of the Fourteenth guilty.”10 him cause'to believe equal protection slight Amendment’s ordinary has protection An citizen clause,16 in- prejudice For even in the absence to an jury. a grand the activities of from highly without the dividual defendant.17 It would be example, may indicted he be anamolous, then, neither the preliminary hearing before to hold that benefit of a though jury process grand clause clause and even nor the due committing magistrate,11 appear on of the Fifth Amendment affords a defend- opportunity he has had witness, any protection presence must an ant of the As a own behalf.12 jury prejudice jury. which grand an intimidated questions grand of a swer the unconstitution under an proceeding application of I turn now to the court’s thinks questions which al statute13 Dennis, present the Dennis case. Like subject grand relevant to the are not “inherently touching case one the secur- sweep Delegation of such jury’s inquiry.14 Government, ity pub- at a when time compels balancing caution powers ing notoriously- feeling lic on these matters is them. exercise those who * the selection of twenty running high *.”18 Of the be a should will and conscience Freedom jury members of the grand which voted requisite in their' selection. minimal present indictment, ten were Government grand integrity employees Preservation of and two others wives of were in- merely a matter of system employees. timely is not jury By Government motion ’ our demo- touches dividual concern. af- (together supporting dismiss the fair administration or, alternative, insistence on fidavits) cratic grant prop- not grand jury is matter, appellant hearing of law. When in the the- called constituted, not erly “reversible error does court’s attention to the existence both in an in- depend prejudice showing alleged known circumstances * * * injury case. charged dividual it was that Government em- injury to ployees limited to the defendant—there is jurors not be could suitable in this institution, system, as‘an particular not, to the law jury case. If could then the community large, and to the dem- indicting grand jury illegally constitut- processes of in the ideal reflected ocratic ed and its indictment void since there were reason, For the Su- qualified grand jurors.19 our courts.”15 less than twelve Henkel, 1904, U.S. 10. v. Beavers S. 67 S.Ct. L.Ed. 882. 181. D.C.D.C.1949, Gray, Amendment, however, v. United States The Fourteenth require F.Supp. proceed a state to do.es way presentment, of indictment or even Thomp v. rel. McCann States ex first-degree in a murder case. Hurtado 604, 605-606, Cir., 1944, son, 144 F.2d California, 1884, 110 U.S. 74 S. Henkel, 1906, Hale A.L.R. Ct. L.Ed. 232. In about half 65-66, 50 L. England grand the states and in use of the Ed. 652. investigative body and of in v. United step prosecution

13. Cf. Blair dictment has L.Ed. 979. largely Dession, been abandoned. Crim Law, inal Administration and Public Or 282, page 39 S.Ct. 250 U.S. at 14. id. See (1948). der 857 McGovern, page States v. United 888-889, 880, 1932, Cir., development cer summarized, F.2d 60 17. This and 650, denied, 96, protested, dissenting 287 U.S. tiorari in the of Mr. cited. cases therein Texas, L.Ed. Jackson in Justice v. Cassell Legislation in the been introduced has 339 U.S. S.Ct. L. * * * app the “to authorize Senate Ed. 839. special investi of counsel and ointment gators dissenting 18. Mr. Frankfurter Justice juries grand in the ex assist States, 1950, Dennis United 339 U.S. powers.” S. 82d of their ercise 94 L.Ed. 734. (1951). Cong., 1st Sess. 6(b) (2). States, 1946, 19. Fed.R.Crim.P. 329 U. See also United note 15. Ballard 2, supra. em- challenged for cause all Government and strik- appellant’s motion denying In jurors.24 ployees petit called “for to serve as affidavit20 supplemental .appellant’s ing affidavit, support of insufficient,” presented A short legally it is reason the motion, the (1) that the transfer asserted: court said: the 9835, 5 U.S.C.A. effect of Executive Order showing of ac of a the absence “In Order,, Loyalty note, known as the part of the members §631 bias on tual trial; pos- (2) that would bar a employ fair their Jury due the Grand sibility Committee Un- of the House of the United Government ment any- taking note American Activities of the Dis or the Government States acquittal prevent a voting one for Columbia, is not would indictment trict (3) guilty”; Wood, verdict “not (1936) States v. void. United spread by Washington rumors 81 L.Ed. false S.Ct. U.S. 123 [57 prejudiced States, press Dennis and had discredited ; (1948) United Frazier v. 78] Although trial.25 to a fair S.Ct. U.S. [69 States, Supreme Court con- Dennis brief in the (1950) ; v. United Dennis 187] seeking to lengthy tained discussions es- [70 “miasma of fear” which affected tablish a particular case Government 734], In a employees, record con- all Government employees serving Grand Petit implied nothing but the affidavit the as- for tained might he barred Jurors just The record also properly sertions described. are bias when circumstances requested hearing disclosed brought attention to the Court’s proof proffer made in connection with Court that Government convince the counsel, fact, prejudice. jurors. issue of employees suitable would not be expressly that he could prеsent un for Dennis stated No such circumstances nothing The mo- present motion to “add affidavit.” der the force of the challenges dismiss, transfer and the such tion for nor were circum proffer jury on voir dire were denied.. in defendant’s cause to the stances indicated proof support motion for the latter action that was sus- And it was qualifications hearing on the majority Supreme- tained Grand Jurors.” Court. court, court, This relics on like the however, present case, In the counsel culminating in the line of cases Dennis v. affidavits, request for hearing, extensive for the States as a basis denial of United proof develop proffer sought hearing I think on bias. Because prove for the record certain circumstances Dennis,22 accept I cannot court misreads attempt His bearing on the issue of bias. built it. conclusions loyalty impact and se- show When the Dennis case was called for curity programs on Government em- trial, the accused transfer to- moved ployees materially differed from the ground preju- another district on the showing in Dennis case. There the dice him in the District of Colum- out; Supreme carefully pointed prevent a fair trial.23 bia He also Transcript Record, p. Appellant affidavit, J.A., Dennis v. submitted an pp. supplemental 15-17, affidavit, S. 519, 94 id. at There no notation in Ct. L.Ed. 734. 83-15. struck, record that first affidavit at 64-5. Id. presumably judge’s but the trial action appears supplemental at 27-32. applied 25. The affidavit id. on the affidavit the first affidavit as well. at 41. Id. p. J.A., 21. 65. interesting 27. For discussion of this Security problem, Cook, States, 1950, Jahoda & see 22. See Morford v. United Thought: and ‍​​‌‌‌‌​​​‌‌‌‌​​​‌​‌​​‌‌‌​​​​​‌‌‌​​‌​‌‌‌‌​​​​​‌‌​‍Freedom of Ail Measures U.S. S.Ct. 94 L.Ed. 815. Loy Exploratory Study Impact of alty Security Programs, L. Yale (1952). J. “ * * * immunity, the conse- pre might have feared Loyalty Order quences following only by of similar attack about trial ceded the instant by refusal to indict. promulgated It three months. was This 1947. March President-on de point There would be no to a more 23, 1947, and was began trial on June cbmparison this case of the record in tailed May On concluded on 1947.- June ap suffices that with that in Dennis. 9, 1947, to Con the President submitted considerably pellant’s affidavits went be appropriation to request gress for an yond demonstrate attempting Dennis in Order, was Loyalty carry out * * * employees have that “Government July 1947. law until into enacted subject campaign an active been the of August It was not until any way determine whether certain requesting Form Standard sympathetic tolerant to ‘Communism’ or each fed pertinent information from ‘Communists,’ any per sympathetic to or or available. employee, made eral with ‘Com son who in turn is associated implementation “The administrative organiza munism’ or ‘Communists’or , 9835,which was yet Executive Order of ‘Communist tions which have been called subject come, apparently not the persons have been Fronts’ or with who ” by jurors.” anticipatory fear these of called ‘Communist travelers.’ fellow contrast, indictment in the In marked disqualification issue Resolution of the of returned in November present case was upon loyalty depend does Loyalty had Order which time have program investigations Congress for more than three operation full been in ques- exceeded lawful bounds. No such support appel- of years. The affidavits depends tion is before us. It instead gen- of some a recital motiоn lant’s contain prevent whether these activities Govern- procedures, and erally events and known employees exercising the free ment others, relating to the allegations as to required impartiality will essential to the operation that Order. of jurors grand in this their service Moreover, in the argument instead security problems case. are real. “The Court that the Supreme Dennis brief par- problems are the of freedom. So giv- Un-American Activities Committee age is to reconcile the amount issue employees to the Attor- federal en lists of two.” General,29 present record contains ney alia, Despite the differences between Dennis referring, inter to the tem- an affidavit case, argues congressional the out- and the instant Government per criticism qualifications grand that an attack on the the admis- the first Hiss trial and come of jurors must be “based on facts and not Harry That criti- Bridges to sion of bail.. mere conclusions.” Government fur- against judges en- cism was directed who asserts, any authority, citing ther without immunity of joy life the constitutional appellant can that unless advance a reason sought to appellant tenure.30 that basis On making his showing for “not whole in the “far-fetched and would not be show that it ” * * * form affidavits usual suppose challenged that the chimerical” properly deny hearing.34 trial can employees, who have no such Government McGrath, 1951, 123, 174, 162, 169-170, U.S. tee v. S.Ct. 28. 624, 650, 519, 522, 95 L.Ed. 817. 94 L.Ed. 734. pp. 33-4, Petitioner, 29. Dennis Brief 12(b) (4) 34. Federal Rules of Rule States, 1950, v. United U.S. Procedure Criminal reads: 519, 94 L.Ed. 734. raising trial “A motion before defenses J.A., p. 30. objections 37. shall be determined before the court trial unless orders that it be Wood, 1936, United States v. for determination at deferred the trial general issue. An issue of fact J.A., pp. 34 — 6. jury tried if a shall be Doug required Concurring Mr. under the Constitution or an Justice act Refugee Congress. las, All other Commit- issues Joint Anti-Fascist of fact quash misconception A indictment should of motion to position a This rests on disquali- not, course, merely legally granted of on required be proof the nature of the cannot allegations. failure sufficient The movant fy on a employee, Government a allegations in- insist that his stand admitted difficulties to make allowance for the Nor in absence a denial.40 mind35 of establishing herent in a state of suppose grant judge must a that a trial in case. the circumstances of this appears hearing clearly it that the when a trial It is well understood that factual basis on the movant relies which objections disposing has wide of latitude in appears from af- frivolous. But where it qualifications jury. grand of al- support legally sufficient fidavits in of support grounds Where the advanced is not legations that their factual basis quash of a motion to an indictment are clearly seeks frivolous and the movant a law, clearly hearing would insufficient in a them, error hearing prove reversible purpose. was the situation be without This to cut him short.41 Rintelen,36 in United v. relied States case, plea legally Since sufficient alle appellant’s a by the In that Government. “grand simply charged that the abatement gations supported by of cir affidavits were jurors were finding the said indictment] [in cumstances cannot be said to be temper prejudice by strong actuated a frivolous, principles required foregoing as the false the defendants result request hearing granted be that his for a publi- newspaper statements and vicious appellant may well be that in this case. It 37 The that these were cations.” court held' prove allegations or will be unable to But allegations of ultimate fact. such result in his se show facts as would markedly present affidavits in the case curing the relief which he seeks. His bur specifici- in their nature and different both undoubtedly proof great. den of will be ty. Here seek to show in the accept might unwilling to the sort We Communist, prosecution in- alleged of an proof may bring But I offer. cannot myself view which concur in fore dependent judgment now be ex- cannot opportunity showing the extent closes all because, pected employees of Government may rights have been inf which basic President’s Committee on Civil contrary ringed.42 I could reach a result 1947, opin- freedom of Rights said “The parti by adopting premise that the expression enjoyed by people ion these persons cannot in ality of class of ways upon the many dependent is in at- to an individual. But I case be attributed practices government.” titudes Supreme precluded think intimidation as conse- charge This Dennis, pre premise by its assurance unintended, loyalty quence, however respect cisely with to Government em situation,39 crux security is the way the ployees class, open as a that “[t]he every case to raise a contention between the two cases. distinction [such] Texas, 1906, 316, 200 U.S. 40. Martin v. with or the court shall be determined 497; 338, 319-320, on affidavits in such without Carolina, 1903, v. South Brownfield direct.” manner as the court other 882; 513, 426, 23 L.Ed. S.Ct. U.S. 27, supra, Cook, note at 35. & See Jahoda 1896, 592, Mississippi, 162 U.S. Smith v. possible sеq., effects 305 et 1082; L.Ed. see Glasser S.Ct. thought of mind. on state the climate 315 U.S. v. United D.C.S.D.N.Y.1916, F. L.Ed. 680. 36. 787. S.Ct. page at 788. 37. 235 F. Id. Texas, 41. Carter 687, also L.Ed. see cases S.Ct. Report Bights: these 38. To Secure supra. cited in note Committee Civil the President’s quoted p. 101, J.A., p. Bights, opinion, dissenting Johnson Mat 42. Cf. U.S.App.D.C. 376, thews, 182 F. denied, Cook, supra, certiorari 2d note & See Jahoda 32 the trial think speculation trial because I to for new from the realm of of bias 43 ap denying in its discretion court abused of fact.”

the realm hearing. pellant that subject generally difficulty The with clarity toas lack from seéms result II. disqualification. for grounds the substantive The view take of another I clarity appears in the trial This lack of upon re- dispose entire case might of the hand one court’s statement on the substance, contends, Appellant trial: * ** might employees “Government contempt cannot lie since charge implied bias”44 and be from barred answer “specifically directed to “to required appellant was * * other hand that * for refusing and his reasons distinction be * * * actual bias.”45 show or rejected were not . ' concepts “actual bias” and tween the problem of the rests nub overruled.”51 The problem “implied in semantics bias” is a phrase “re- meaning key quality.46 arising from their chameleon-like That section 192. fuses to answer” § other, use one.term But we or per- provides in contempt statute neces here think context their part : tinent (not a tech sarily “state mind” mean a * * * “Every sum person who reasonably be can conception)47which nical authority moned a witness the “circumstances expected to follow give Congress, to testi either House of ** * court’s properly brought * * * * * * аny mony before appar court’s It was the.trial attention.”48 Congress, committee either House of grounds bring substantive ent failure to default, willfully who, -having makes or sharp disqualification into focus which for ques appeared, to answer refuses applicable relating the issue blurred * ** inquiry, pertinent to the tion proof. hearing criteria * ** . guilty of a misde-: shall be * * * meanor, punishable by fine [disqual “For the -ascertainment of this , imprisonment jail the Con in common mental attitude ifying] particular lays than one month nor more than stitution- down tests les.s any ancient procedure is not chained-to months.”52 twelve opinion procedure problem is discussed in formula.”49 This artificial adopted States.53 appellant in this case was court in Bart v. United prin proper hearing granted this basic be There the court establishes ask that “a * * * interposes objection produced ciple: be “If that evidence a witness propriety question, query did exist.”50 of a show actual bias court to pertinency, may refusing g., the conviction and remand not be reverse e. its States, 1950, 43. U.S. S.Ct. 48. U.S. 339 70 Dennis v. United 339 519, 524, 162, 173, L.Ed. 734. S.Ct. opinion Reed). (concurring of Mr. Justice p. J.A., 65. 44. Wood, 1936, States v. 299 U.S. 49. United positions were at both 45. Id. 159. And 123, 145-146, 81 L. ' judge’s memorandum taken quoted language was Ed. This 78. supra. quoted ' approval in Frazier employee dealing with an 46. “In S.Ct. 335 U.S. properly government, the court would 187. in view of to discover whether solicitous p.161. J.A., or circumstances em nature par Appellant, ployment, Ques- relation of the Brief for Statement of activity governmental mat ticular tions Presented. prosecution, or oth involved ters amended, (1857), 52. 11 Stat. and, bias, had, erwise, if he he had actual (em- (1938), 2 U.S.C.A. § Stat. disqualify States him.” United to Wоod, supplied). phasis U.S.App.D.C. F.2d 45. L.Ed. 78. pages 145-146, at Id. page 185. elementary- But the for.58 court in defines naked both Bart In such event to answer. require legal as a that refusal refusal “without asserted statutory provision justice and merely justification.”59 some If this means that aware, by method at some he be made inquirer legal principle an actual position the must be invoked time, despite his that answer, agree. question.”54 justify a refusal to I But if that he shall means implies the court’s that the formula Bart is no talismanic Although there invoked, principle applicable directing must in fact be must use which the Committee answer, particular circumstances of I would state the witness to case,60 disagree. interpreta- way: appear from all The I principle must latter tion, by abolishing the distinction between that the witness (1) the circumstances hand, claim, the assertion the risk of of a on the one clearly apprised, and left to validity penalties, applicability, and its or pain criminal on the oth- guessing upon er, would objection sap to an all substance basic grounds whether the principle ected, accepted rej by enunciated! swering were court. op given another (2) rejected, he was It is after an intent refuse has portunity Under this view to answer. been established accordance with die necessarily in have to Committee foregoing principles that the witness is opportun time to form the witness in allow “¡bound rightly to construe the statute.”61 implicit ity answering. I think it except since, refusals, And for naked in in Bart that must be that of the ruling imputed tent cannot be the accused as a authority (the quiring Committee here}.55 law, matter of it be must determined as a says actual there court “[i]f fact, circumstances, from the all questioner inquir be counsel instead as an essential element crime. Be it, authority, ing or member of the at validity fore the can court consider the * * * authority may titude of that any plainly frivolous, grounds, not for ob prior made clear announcement or answer, jecting to intent to refuse must be acquiescence phase That ratification. thus determined.62 the matter must be determined from the I take mean circumstances.”56 this to foregoing key construction of the clearly appear per it must to a reasonable phrase clearly “refuses to answer” is in- position son in of the witness that the by an legislative dicated examination of the ruling is, fact, the inquiring au history and the cases under this decided thority duly or its presiding authorized statute. acting member on its behalf.57 Congress contempt In 1857 enacted the A presumption supplement powers.63 conclusive statute to of intent to its inherent might Davis, the statute Congressman pro violate attach speaking naked for the answer, e., committee, section, refusal to i. posing a refusal said of the first without statement, time, respects at the all significant the reason which in is identical there- States, U.S.App.D.C. 54. Bart v. United 60. Ibid. (emphasis supplied). 203 F.2d 49 States, 61. Sinclair v. United See, Cong.Rec. e.g., (June 30, 1952) where the Committee directs the discussed infra. request witness of Committee expressed Bart, reasons For I counsel. ques- think the court cannot reach validity U.S.App. 56. See Bart v. United of the claim tion privilege self-incrimination until it D.C. 203 F.2d 49. has been determined the Committee Kamp, See United States v. D.C.D.C. clearly apprised the witness that it had F.Supp. 759, discussed rejected his claim. infra. (1857). generally See 63. 11 Stat. 58. See United Bryan, 1950, States v. Cong., Cong.Globe, Sess., 34th 3d 403 et 323, 332-333, U.S. 94 L. seq. (1857). Chapman, And see re Ed. 884. U.S.App.D.C. 203 F.2d 47. 41 L.Ed. 1154. postponed inquiry, interro power now tefial no increases 192:64 with § “[I]t give witness gation a short time “to any existing in committee confers breaching 'be claimed that he would com either power exercised [who to be the con time for reflection on presume, confidence] or the House. mittee - sequences After re of his refusal.”67 burden therefore, does not that it inflict calling informing him that a Simonton and guards around throws citizen; that it on the him,”65 contempt proceed refusal would result pertinent therefore It becomes again propounded the ings,- the Committee which conimittees'then rights determine the for his for hearing. original question. At Simonton during a the witness afforded answer, for that -mer reason and safeguards refused time, had the the witness refusal was called before the bar of the procedure: The committee following 'the why adversely, should not be House cause 'he objections, and, show ruled on his contempt68 construe “re opportunity to cited for To other provided one at least these requiring fuses to haled answe'r” as witness Only was the then answer. contrary safeguards would, committee House to Senate or of the bar before the power intent, congressional “confer” new 'held why not'be he should cause show and “inflict” pro congressional committees' contempt.for refusing to answer. The " new burdens on investi citizen. Committee 1857 cedure House safeguards corruption illustrates gating 'Congress The intent of is confirmed preserve, not intended Congress. enacting .to what it has done since statute Because Com alter,66 statute. It continued to deal with con this of 1857. being testimony tempt powers and with the with tinder inherent mittee believed up 1894,69 ‍​​‌‌‌‌​​​‌‌‌‌​​​‌​‌​​‌‌‌​​​​​‌‌‌​​‌​‌‌‌‌​​​​​‌‌​‍procedures years, same for 37 was ma W. Simonton by one held James seq. Except unchanged (1857), for 411 cases of so far 68. Id. at et 11 Stat. 155 64. response appear here, amended, a witness’ failure to 52 Stat. as is relevant subpoena, so far as can (1938), to a we deter 2 § U.S.C.A. 942 only mine, on one occasion between 1850 Cong.Globe, Cong., Congress contempt 3d Sess. 34th 427 and did consider 1857 supplied). proceedings against Cong. (1857), (emphasis a witness. Cong., 1679-80, Globe, 31st 1st Sess. imprisoned could not 66. A eontemnor (1850). During debate 1716 beyond session of life current Ritchie, as to Thomas wit Simonton, example, Congress, for could ness, haled before the bar of should be imprisoned for weeks. five have been why the House to show cause should he contempt, primarily at rem- was aimed statute proceeded against not be major Congress’ deficiency edying this Congressman Stanton remarked that “the See, e.g., powers. remarks of inherent [the Committee did not wit indicate 405-6, Representative Orr, and of id. at after answer] ness he declined to House, Cong.Globe, Speaker of perfectly were not satisfied." Id. (1868); Cong., 2d Sess. 2579 40th Congress at 1716. decided not to call Bryan, United States v. bar Ritchie before the of the House. 94 L.Ed. 884. Ibid.; Journal, Cong., House 31st 1st Congress un It should be noted (1850). 1343, 1345 Sess. powers and in its inherent further der investigative afforded ance its activities See, e.g., reports and debate concern continuing op contumacious witness ing proceedings committee in which a prior purge portunity himself ques to answer witness refused certain See, Cong. following e.g., conviction. rejected after tions a committee had Globe, (1857) Cong., 3d 34th Sess. grounds. Cong.Globe, Cong., 40th 3d Simonton); (James Cong.Globe, 37th W. (1869), (Florence Scannell); Sess. 771 (Henry (1862) Cong., Wik Sess. 2d Cong.Globe, Cong., 42d 3d Sess. 95 Legislative Potts, off); Power (1873) (Joseph Stewart); Cong. B. Contempt, U. of to Punish for Bodies (1876), (Hallett Rec. 1707-8 Kilbourn— (1926). Th 808-9 Pa.L.Rev. Thompson, 1880, Kilbourn v. see 103 U. e purge provision for a makes no statute (concerning S. proceeding this following proceeding for con conviction raising deciding but not tempt. here) question Cong.Rec. ); considered Cong., (1877), (E. Barnes, Cong.Globe, W. 3d 34th Sess. Enos . Runyon) (1857). clearly un apprised was first obtained when the indictment was that his reasons Chap case, withholding In re testimony rejected by der the statute.70 were upheld.71 No man, constitutionality fully was committee. After his counsel had its presented phrase grounds meaning answering, to the for not raised, committee, for the wit presence, to answer” was “refuses Sinclair’s voted give Con “that be called to charge the stand to ness demurred [he] testimony before that he had been this committee.” Sin- gressional Record shows testify clair then refused to re- apprised by the committee.72 contempt. fusal was cited for Chapman case years after A random check that the next years enactment citations for con and 67 after tempt Congress for year each obtained.73 since the indictment under statute States,74 episode case, supports of 1924 Sinclair further In that Sinclair v. this refusing to construction of the witness statute.78 Until held that 1946, except refusals,79 good ad- answer, though acting faith on cases of naked contempt proceedings con- counsel, rightly to were initiated “was bound vice of 75 witness, fully apprised be after a cannot case that his strue the statute.” grounds unacceptable, were com- support the still refused to to contention read upon answer subsequent opportuni- direction.80 ruling The Un-Ameri and a mittee’s can itself, wit- Activities required before a Committee ty testify are which con problem with the here, That fronts us subjected originally this burden.76 ness is provided safeguard.81 this the Court—no At before some unde was not termined time since the close because, an examination last doubt war, Committee, provided reveals, congres unlike other committee record 82 sional Sinclair committees—the discuss here. Kefauver safeguard we and the 76. See 74. 75. Id. 279 73. 65 71. 72. 70. Transcript Court, page in United States v. L .Ed. 692. To the same H. Snowden Rec. under habeas S. L.A. 411 L.Ed.1154. Edwards, all v. were six Rec. 6143 et 26 meyer, J. E. tempt Sess. Supreme S.Ct. (3894), Sinclair v. Id. 166 U.S. Cong.Rec. 5458, Cong.Rec. addition to E. Brief for 9639-70 Gordon, 1917, 214-16, 238, Seymour). October Congress by Senate Court's citations for U.S. at John seq. (1894). Marshall was cited corpus proceedings. Marsh 661, 17 Searles, Record, Appellee, 4785-91 (1916); S. S.Ct. Journal, Term explanation of page 299, 49 254 Murdock, 1933, Shriver, 881.) publication, R. S.Ct. pp. 147-50. 6146, 6648, J. W. contempt (1894), (Elisha (1924). States, Supreme he was released U.S. p. Chapman, 53d effect, H. A. Have- McCartney, Cong., No. 26 this case (In for con in 1894. see the 290 U. Cong. Cong. there 8121 2d J. 82. 81. 79. See note 58 and 80. 78. At least ono citation follow fusal at 505-6. advised the entire committee that these eases constitutes a that I have sel have tor tempt 453-5 mittee which resulted in citation for con- seph Doto); on H.R. Res. Dolsen, Gеorge Powers); tations. a witness Powers. examined. See note questions Cunningham); Cong.Rec. 3694-5, (1940), reporting (1928) (1934) See, e.g., See, e.g., See, e.g., Investigate Campaign Expenditures Kefauver: House to answer certain (1944), Hearings Congress of James H. Dolsen and (1944) (Edward (Robert (William considered the for each Un-American direction refusing previously 69 and see remarks of Sena- Cong.Rec. 78 “I W. Cong.Rec. made text, Cong.Rec. 3695, 3857 Cong.Rec. P. can 78th Stewart, year of the chairman in MacCracken); proceedings supra. such A. stated that coun- only say (1940) (James before Committee matter and have questions Activities Com- contempt.” Cong., Rumely). since 1924 in infra, 90 citations was contempt 1904 et (1951) (Jo- Thomas W. Cong.Rec. 2d Sess. ^[*] the re- George certain for ci- 5286-8 and to before seq. Id. H. 86 court, con- acquitting defendant of example tempo Judiciary,83 for Senate — tempt Congress, said: Despite this Com rarily failed to do so.84 lapse, there is mittee’s indication dis- will not “A search the record word give Congress ever intended close when the one instance Committee cases, new mean “refuse,” contempt presiding or its member overruled legis urges here. The ing the Government per- objections defendant’s [based con overwhelmingly history lative if, tinency] right him or offered to set trary. perchance, were ill his observations position in the founded or his untenable Murdock85 Although United States eyes of the Committee. predecessors, 192 or its does not involve § ****** upon heavily most relied case it is the objections upon “His acted were not proposition support the the Government he had the believe that his require Com- that this does section exрlanations acceptable views and were re- objections before a mittee to rule to the Committee.” contempt can occur.86 constituting fusal cer- Murdock dealt agree. This view cannot was followed United States Revenue the Internal provisions of Fox92 where the court observed tain held, merely 1928. It why proce- 1926 and “there is no reason a different Code withholds alia, individual who pursued that an the inter dure courts] [from agent informa- revenue permissible involving an internal should be in cases 93 required by statute87 was specifically contempt tion Congress.” statutory prevailing under entitled the not Kamp,94 again And in United States v. separate proceeding to test court to a scheme court declared: the prior to indictment. refusal grounds for his Congress “Committees of must con agent discuss whether the did The Court duct examinations in manner such a reject grounds the required to would be that it is clear to the witness that the “refusal” could answer before a direct an to recognizes being him as i Committee question was not even raised.88 occur. This ndefault, anything short of a clear recently remind- Supreme Court has ** default will not sustain a cut a “case is circumstances that in such ed us contempt Congress. conviction for * * * 89 precedent binding not a required The witness is not to (cid:127) has, however, been direct- guessing game This enter into a when called recent appear in three district court ly upon considered before committee. Browder,90 the States v. presiding In United the mem- burden is cases. Hearings interesting e.g., See, before tbe Sub-Com- to note that 88. It is the record 83. Investigate Prettyman discloses, Judge points thе Administration out mittee Security opinion case, Act and other Internal in the Bart “that in his Security fully aware, Laws of the Commit- in an was made ex- Internal Murdock Senate, Judiciary, refusals, U. S. 82d discussion before on the tee tended (1951). questioners Cong., 2d Sess. 1st and 76 intentions and of consequences of refusal by Government coun informed areWe 84. contemplated questions.” Bart v. their argument in the Bart case on sel U.S.App.D.O. 370, Activities Committee Un-American 49. E.2d pro recently traditional resumed the has safeguard; affords this v. A. Tucker Truck 89. United States L. cedure see, (June Cong.Rec. 30, e.g., Lines, 33, 67, 8683-6 344 U.S. S.Ct. 69. 1952) (Saul Grossman). 1784-50, (March D.C.D.C., Criminal No. 90. 14, 1951). opinion publication.] [No for 284 U.S. S.Ct. 85. 210. Id. at 4. 91. seq. p. Appellee, 49 et Brief See 86. D.C.D.C., (June 92. Criminal No. 1798-50 Supreme Murdock, publication.] 1951). [No States 87. United 38, Tran- Court, No. Term October Transcript Id., Proceedings, p. 93. 3. pp. 20, Record, script 21. 102 F.Supp. D.C.D.C.1952, 94. 757. objection. on an committee rule For directions clear ber to make opportunity is entitled consider an to an reasonable committee, consider witness, witness, objection, would follow that by the explanations given turn, apprised clearly response.” entitled to be witness’ rule on the then to ruling. a committee’s adverse has Supreme Court Although the sup fairness there Considerations of fundamental question, directly this ruled support this construction of the statute.98 States in United port for this construction fact, minimal wit believe that this is There, holding that a Bryan.96 requirement Congress might and that well the committee inform required to ness is amending an consider include the objects to statute time grounds at purge opportunity for which it accords in at a first raised grounds swering, and that considered, powers.99 proceedings inherent under its will not proceeding court important the Another consideration stems from deny “To Committee said: Congress obliged felt objection fact has opportunity consider contempt contempt during au of its cite more witnesses for remedy in itself it is processe years during preceding than of its last thority an obstruction 2% required Although procedure is an as decision 92.100 Underlying this s.” required deliberately to my view would not eliminate committee sumption that a Cong., F.Supp. page nal, at 759. 2d Sess. Sen 39th 95. Id. 102 Journal, Cong., 40th 1st Sess. ate S.Ct. 339 U.S. Journal, Cong., 1867) 3; 2d House (1868) 40th L.E'd. 884. Journal, House 40th Sess. Cong., page 333, at (1869) 4; Id. 3d Sess. page Cong.Globe, Cong., 42d 3d Sess. Journal, (1873) 1; Cong., 43d 1st House necessity recognizing of con- While Journal, 716, Cong., Sess. House 43d 2d compel testimony, power gressional to 2; Journal, (1874) House 51-2 43d Sess. Wigmore prophetically: “Not said logic 2; 159, (1875) Cong., 2d Sess. 205 House legislative needs of the does the Journal, Cong., 534, 588, 44th 2d Sess. power, of this for a strict limitation call 313, 3; 149, 219, 631, (1876) Id. at 1189 situation; policy for the of but also the Cong., Journal, 87, 44th Senate Sess. 2d by, Legislatures and bound not the aro 9; Journal, 196, (1877) 46th 228 Senate employ, rules that do the evidential 5; Cong. (1879) Cong., 22 2d Sess. 73 parties protect judicial wit- trials Cong.Rec. 1973, 1; (1891) 26 Rec. 2150 power. abuses of nesses and check 6643, 8121, 5458, 6146, Senate Jour * * * legislative inquiries Moreover, Cong., 214-16, nal, 238, 53d 2d Sess. 254 partisan for sometimes conducted are Cong.Rec. (1913) (1894) 7; 1431-52 50 aggrandizement, personal purposes and ; 1; Cong.Rec. Cong (1916) 1 53 9639 65 temptation particular to and there is a Cong. 4785-91, (1924) 1; Rec. 7216 69 inquiry beyond pursue necessities 2; 5353, (1928) 2439, 5286, Rec. 7239 legislation contemplated and to as- of Cong.Rec. Cong. (1934) ; 1914 79 78 4 grand improperly a sume the function of (1935) ; Cong.Rec. 2 8222 Rec. 80 13077 jury. (1937) 6; (1936) 3; Cong.Rec. 81 953 “ * ** Judiciary (4) enti- The Cong.Rec. 3694, 3856, 4152, 4156 86 the limitations tled to define and declare 5; Cong.Rec. 2; (1940) (1944) 8163 90 power.” Wigmore, Evidence § 8 Cong.Rec. 2744, 3762-73, 7591, 92 1940). pp. (3d 89-1 ed. 20; Cong.Rec. (1946) 10748 93 66, supra. note See 3804, 3814, 10770, 10780, 10794-802 (1947) 13. contempt citations for 1857-1949 113 citations for 1950-June 1952 117 con- (number year of for each citations tempt : italics): Cong.Rec. 12237, Journal, Cong., 12256, 12260, 96 House 34th 3d Sess. 2; Journal, (1857) 12286-89, 12296-382, 13873, 13894, 14639, House 35th 271 Cong.Rec. (1858) 2; (1950) Cong., ; 1st Sess. House 15727 Cong., (1859) 507, 1086, 1453, 3038, Journal, 2d 35th Sess. 411 , 8702 1; Cong., (1951) ; Cong. Journal, 36th 1st Senate Sess. (Feb. 5; (Feb. Journal, 5, 1952), (1860) House 836-43 Rec. 25, 1952), (March 17, 1952), Cong., 37th 2d Sess. Cong., (March (1862) 4; Cong.Globe, 19, 1952), (April 9, 1952), 37th 3d 1952) (1863) (June 30, House Jour- Sess. 8675-83 arbitrary a'hearing con- entitled to dis- resistance to on- motion and obstructive his gressional elim- ten miss the indictment authority,-it calculated as void because n him ambiguous of indicted inate resistance members which attributable procedures. employees thereby serve and two were better were Government power employees, objectives congressional but that of wives Government of compel, namely, a testimony, effectuate'the new the case should be remanded for dig- or not legislative preserve and to the issue whether (1) function trial so that upon a nity ruling by adopting Congress.101 Quinn privilege A clear of claimed the answer, Fitzpatrick objecting by witness’ reason for the statement made opportunity court, increases reply, (2) another initially in the trial decided securing Quinn information. desired probability or n'ot for determination whether nearly comports inquirer procedure And such more a intention of his was aware of the concept despite our worth required with traditional ob- that answers were personality upon states, individual the de- As jections. of all free institu- dignity Congress and character liberate and intentional vitally dеpends. tions so the offense. refusal an element of necessity the witness awareness III. require inquirer to the intention of his adopted erroneous court below despite objections, answers the witness’ appellant could' claim view necessity and the deliberate against self-incrimination privilege refusal, by the intentional are shown language adoption reference analysis Judge in Section II of Bazelon’s neither reached Thus it another.102 used opinion. III The formulation Section adopted language decided nor opinion of the issues involved furnishes privilege claim the amounted to practical guide to trier the facts. n joined with have self-incrimination. major- my brethren constitute some MILLER, Judge, Circuit K. WILBUR trial ordering a new of this court ity dissenting. minimally agree that the court because I majority agree ought to decide this below holding erred that the view, my Under how- instance.103 first Quinn adopt could not law matter of .that ever, only, (1) must not determine the court Fitzpatrick’s for whatever statements adopted language amounted to whether But, to be were for reasons worth. privilege against self-incrimi- a claim of'the later, Quinn that my view was stated is (2) it but whether amounted nation ruling, erroneous prejudiced not that as, frivolous), plainly claim’(not such other my of think brothers and therefore I pertinency protection First of of- lack majority wrong reversing his con are in rights; if it did amount to and Amendment remanding case for the trial viction and claim, (3) then whether Com- a such Fitzpatrick judge say whether did or did apprised re- clearly appellant of its mittee protection not of the Fifth claim the opportunity to another jection afforded and compelled -being Amendment safeguard answer; were and if testify against himself. provided, the claim was valid. (4) whether The court’s action in reversing re- FAHY, concurring. Judge, Circuit from, me manding seems to arise agree Judge depend I upon, entirely following state- opinion appellant Prettyman’s that was not majority opinion: ments in investiga Congress’ Contempt, on 101. For comments for Bodies Punish islative tory power, Chapman, see, e.g., In re ofU. Pa.L.Rev. 804-27 671-672, (1926). Bry 1154; 677, 41 United States opinion, p. 102. Court’s an, 1950, Wig expressed my in cases cited 103. As dissents Bart Emspak. pp. (3d more, 75-80 ed. Evidence § Leg Potts, 1940). Power of And see “ 23(c) the Federal of Criminal made of Rules trial court The provides: with “In case tried the suffi- Procedure upon meaning or a ruling general make a Hav- a the court shall Fitzpatrick’s out ciency of statement. request find finding and in addition on not shall ing could as Quinn held that finding specially.” general the facts adopt it, the court was matter of law finding o-feither referred to in the rule is upon it.” called to consider judge the trial guilty guilty.2 or not Here “called Perhaps was not judge the trial general finding guilty announced the it,” believe upon but cannot to consider I special findings charged. request No for conclusion, that legal judge’s erroneous was submitted. by adopt- immunity Quinn could not claim precluded him Fitzpatrick’s language, ing question whether, 23(c), I Rule under language considering that required special judge trial is to make im- legally sufficient as a claim involved, findings on all factual issues If the trial munity from self-crimination. requested, merely when none be- had been Fitzpatrick’s judge actually considered findings cause he announced some insufficient as a аnd held them statements the issues of fact the course of the my that we privilege, view is claim of opinion preceded general finding which regard holding that an alternative should however, guilty. may, Be I that as it finding guilt, after basis for the quite think clear this case that the trial finding the ultimate all was stated, trial court -delivering while judge. I do not believe we should set aside opinion, finding Fitzpatrick’s state- finding correct ultimate that a defendant did legal ments not amount in to a effect judge gave because trial guilty two claim the privilege against self-incrimi- it, wrong one which was reasons nation. right. one which legal The erroneous ruling the district mind, With those considerations in Quinn court adopt could not Fitz- majority suggest saying incorrect patrick’s language judge did mean judge ruling the district made no- had not read and considered language, meaning sufficiency Fitzpatrick of what nor had not expressed formed and attempted justification of said in his refusal Fitzpatrick as to whether question. If I to answer am correct actually claimed privilege. contrary say, belief—that the district appears. The judge’s opinion trial shows judge did make ruling such a —then he had read and considered disappears, sole basis for reversal and the statements. He noted their nature and purpose remand the futile per- found them insufficient as a claim of im- mitting the finding to make a munity against compulsory self-incrimi- already which he has made.1 quote nation. from the District Court’s Moreover, I while do not stress the opinion: point, think extremely it doubtful whether “ ** * the District Court will required, the not go was the circumstances, into special -position make detail of to the finding a which Mr. concerning Fitzрatrick the sufficiency Fitzpatrick’s took, of other say than remarks as a claim of the privilege. certainly Rule it left much to be desired as Furthermore, question doubt the not, my But whether fact. so or it is in Fitzpatrick’s unnecessary whether statements decide, amount view since I think immunity a claim of (if ed to is such) of the issue fact it be which say at all. of fact There is no majority issue as to the the trial court should Fitzpatrick’s language was, determined, what have and —there for the determina contrariety proof of as to what is ease, tion of which remand the was question was, actually he used. The words did judge, decided the trial as I language, words, opinion. those constitute shall show later in this immunity? of for Quinn claim Counsel Barron, during argument oral Federal conceded Practice and' Proce- legal question dure, § not an of is and issue not be claiming lege, must claim it or he will' actually he whether he was ‘compelled’ have been considered to self-incrimination not. Amend- meaning of the within the “It his an- is to be observed ment.” speak of Mr. Fitz-

swers—and I rambling. say patrick’s long in order and What must a witness —were théme, major They claim ? privilege which seemed the He must some had a ' prostituí- m fairly anner of bring to be that the committee to the attention it, fact seeking to aid a rival ing pass tribunal which must its officeand upon the group forthcoming invoking relying that he in a is [local union] it privilege. must claim constitutional He election.” in no uncertain terms. He must use some apply the sure, judge did not To-be expression directly inten indicative of the this evaluation “finding fact” label to particular protection tion to claim this im Fitzpatrick’s but that language, Amendment, distinguishеd the Fifth was oné material. Whether issue United rights. from other constitutional just law, judicial observations fact or Vajtauer States ex v. Commissioner rel. finding that quoted to a were tantamount Immigration, 273 U.S. the subcommittee remarks to 302, 306, Supreme L.Ed. upon- the did not' reliance amount’ Court said: (cid:127) clause. self-incriminaition shelter “ * * * may. privilege The not For, those remarks when the said relied on be deemed and must “certainly as to left much to be desired ’ fairly waived if not in some manner actually claiming self-in brought the attention the tribunal not,” clearly saying crimination or he Was pass upon re which must it. See In Fitzpatrick asserted claim not Company, Knickerbocker Steamboat say witness must in way the cases D.C., [716]; 139 F. 713 United States protec be entitled to it in its voke order to Skinner, D.C., 218 F. So, legal ruling the erroneous did tion. Elton, D.C., 222 F States v. . prejudice Quinn., . 428, 435.” self-incrimination, privilege against n case, In the Knickerbocker cited Steamboat liberally con- properly, invoked when Court, Supreme it was said: applied; language but the strued “ * * claim is said to constitute a which witness Incriminating matter strictly privilege is construed may appear party desire but a appear appraised. will from cases This privilege answer- of not to resort to privilege auto- does, cited. Nor is the hereinafter respect thereto. If he ing applicable every question matically language say must so unmistakable requires incriminating answer. him- shielding give reasons witness, un- personal and is waived self.” when, he claims at the time less Rogers v. United later In the case where, question is asked. the tribunal States, 1951, 340 U.S. Supreme in United States Court said Court said: Monia, protection petitioner dеsired the “If 409, 410, 87 276: i privilege against self-incrim nation, required claim it. to she Fifth Amendment declares was “The * * * Monia, 1943, 317 U.S. com- United States v. person shall be ‘No 87 L.Ed. any be a criminal case to pelled * * * privilege The ‘is waived deemed against himself.’ witness compulsion. v. Mur speaks invoked.’ United States unless Amendment The dock, 1931, from U.S. S. preclude a witness does Furthermore, L.Ed. 210. Ct. voluntarily matters which testifying explicit of this Court are If, therefore, decisions him. may incriminate privilege against holding that privi- protection desires he grand solely the ben- investigating subject ‘is self-incrimination purely and 'is matter efit of the above indictment. He witness/ ” alleged thereupon personal privilege the witness.’ appeared he .immunity asserted his constitutional opinion following The is from against being compelled testify, but States, Phelps v. United Eighth Circuit notwithstanding this was examined and 872 : 160 F.2d compelled give testimony. Upon course, is, prescribed no “There plea trial of the it was shown that when crystalized for claiming the formula he came before grand jury he was against privilege self-incrimination. told that he was at liberty to assert his provision Ap- The in 50 U.S.C.A. privilege respect any answers to pendix, 922(g), (and in other recent § questions might which tend incrimi statutes) privilege self- nate thereupon He him. stated that ‘specifically’ incrimination must be upon he going to stand his consti claimed, however, imply, would seem to response rights. tutional ques expression, he there must some tions his relating dealings with .Bob directly indicative of the intention to questions he freely answered the with particular privilege, claim the as dis- objections. out raising constitutional tinguished possible rights, from other lawyer only He was not himself but reasonably communicative of the appears to have been advised coun being fact that this is what is done.” We sel. have no doubt rights that his for the The District Eastern Dis- were not invaded. It is to be remem Pennsylvania, trict in United States appellant bered that the had not the Miller, 1948, F.Supp. 982, said: constitutional privilege to refuse to “ * * * witness, upon oath, testify belongs which to a defendant on privilege claim must uncertain trial. subject He was to call as a wit proceeding terms at the in which the ness and had the wit sought information is will he give ness to decline to answers when thereafter he considered to have been interrogated might which tend to in ‘compelled’ meaning within the criminate him. O’Connell v. United Amendment.” Cir., States, 201, 205; 40 F.2d Mul case, Vajtauer court To cited the loney v. United Cir., 79 F.2d supra, Murdock, 1931, United States v. 566. As Wigmore said, Professor has 210 and privilege option is ‘an of refusal Cir., Benjamin, States v. prohibition and not a inquiry’. Wig F.2d Evidence, more Ed., 2d 2268. The § appellant apparently Benjamin m the under the case was er impression roneous by Judge Augustus written general Hand N. Judges statement that he upon was concurred in Hand Learned stand rights constitutional following quotation and Swan. The there- a substitute objections supports my specific belief that can- answering a witness questions.” privilege not claim the announcing that he stands on his rights, constitutional From these authorities prin- deduce the leaving guess thus it to court to the ciple that witness waives the privilege un- provision upon relies; which he and that he less he it clearly, claims distinctly, express- by saying cannot claim it he relies the ly, specifically and in unmistakable terms. First and point- Fifth Amendments without When district said particular ing protection out the position “certainly left much desired out of seeks the several afforded by those as to whether was actually claiming self- two Amendments: not,” incrimination or he was finding that appellant “The plea Fitzpatrick filed in abate- had not claimed privilege ment in which he alleged that the fashion the say cases it must he in- subpoenaed appear been before if voked waiver is to be avoided. In order political feel of that I that ‍​​‌‌‌‌​​​‌‌‌‌​​​‌​‌​​‌‌‌​​​​​‌‌‌​​‌​‌‌‌‌​​​​​‌‌​‍language nature. claim, of a to amount to a beliefs, opinions, and associations to be desired. nothing witness must leave secret people be held American can note, I agree, court of this majority The if so desire.” Fitz- appraisal judge’s the trial

with Quinn question repeated, was When the say: They patrick’s statement. said: opin- of clear “Perhaps, we were if the com- “I decline discuss with therefore Fitzpatrick, and ion that questions mittee that nature.” privilege and so Quinn, did claim Quinn understanding of gave Thus his dispose acquitted, we should must be Fitzpatrick’s to answer refusing reason for now. finally here and matter of the Fitzpatrick question: he understood * * * court majority of the aBut upon to have relied the constitutional opinion.” that clear are not keep people their the American secret Quinn and let the that fact should not We political beliefs, opinions and associations. entitled to Fitzpatrick have been would reference free- This was an obvious to the invoked,3 color our been privilege, had it speech dom of clause of the Amend- First privilege was thinking as to silence, ment and its correlative freedom of imm question is not whether claimed. per- and was an means assertion of claim granted have been unity should by Quinn sonal claim to refrain an- privilege was claimed. ; is whether the ed it swering ground doing on the that in so in United For, Supreme said Court as the might Having incriminate stated himself. 148,52 Murdock, page U.S. States re- statements could be 64, L.Ed. 210: page S.Ct. at garded expression views, as own “ * justifi- validity Quinn said: upon depends, claims cation * “* * may add I feel I I have no by the warranted have been matter, other choice in this because the shown, but the claim facts Constitution, defense of the I hold sa- privilege of actually made. The cred. I feel I am hiding don’t behind solely benefit for the silence Constitution, but this case amI waived unless is deemed witness it, standing it, before defending as Vajtauer v. Commissioner invoked. small Ias am.” 113, S.Ct. Immigration, U.S. Quinn’s This about covers examination 560.” ex- 302, L.Ed. cept for this further statement him: analysis made the statements A brief by Quinn “Yesterday Fitz- Congressmen one of the to the subcommittee adequate support show committee made the patrick suffice statement will holding people brought neither down here District Court’s were opportunity protection being given Fifth Amend- an to clear claimed the testify themselves-, compelled to being were. I would as like ment majority agree say opportunity I with the I don’t feel it is against himself. to. myself. considered opportunity should be I feel the statements clear that their given “in and context.” clearing full text -choice of evaluated am here ques- myself price Quinn assisting asked the crucial at the When reply tion, destroying was this: his immediate committee Constitu- along made “I would yesterday’ lines that Mr. like make a statement regard Fitzpatrick tion, doing and could not ^[*] that. ^[*] join ^[*] the committee ^[*] ' ^[*] privilege against subject Supreme self- in Blau v. United 3. The calling for disclosure of incrimination tending questions under to criminate facts held that Party Act, § 2385. U.S.C.A. the Communist Smith connections opinions they hold hearing those secret if de- this was so “I think it is clear protection of sire. This is a the First of inter- purpose solely called for the Constitution, sup- Amendment to the fering with our election.”4 plemented pro- by the Fifth Amendment.” invoking a constitutional Far that himself, Quinn conceived tection for this, Fitzpatrick Following was asked against Constitution defending was question whether he was or had ever been subcommittee. the encroachment Party. a member of the Communist His response suggest immediate was this: light foregoing, I In the said, Fitzpatrick had no matter that what Chairman, my opening “Mr. re- Quinn understanding demonstrated gave quite my marks I a bit attitude adopted being that as statements he question. say on this com- this I himself, including people, American all the my right pry mittee into has no to political keep their right had the to secret mind.” associations, opinions and that beliefs, and Upon insistence counsel committee First prepared defend this was to “yes” “no,” that he answer or to decline or attack of Amendment freedom Fitzpatrick answer, said: the subcommittee. question. “I will answer the however, aside, suggestion Putting that guarantees right me Constitution to adoption Fitz- Quinn’s assuming that and beliefs, every and citizen other to have qualification patrick’s language without they popular unpopular, whether are or part, him to so as to entitle keep they and to if them to themselves Fitzpatrick claimed privilege fact fit, being see and I have no intention it, statements now consider party weakening destroying or As the district full and context. text protection in the Constitution. I feel observed, Fitzpatrick’s remarks were position when I take this that I am one by asking rambling. began long and He Americans, of the real and like make a few obtaining permission to phonies appear some of the who here.” diatribe preliminary After remarks. After this the following statement collo- committee, he said: against the quy Fitzpatrick occurred between on the questions honest will all “I answer one hand and the chairman and counsel on me, intention have no put but l the other: people seek to de- with the who joining you “Mr. Wood. Now will answer country, this stroy the Constitution question? anybody else. To witnesses whether Fitzpatrick. “Mr. I have answered country this is me, Constitution of question. paper.' something to scrap not a “Mr. Wood. It is not an answer at I have two sons. maintained. I be all. the same freedoms them to have want Fitzpatrick. “Mr. my That an- rights enjoyed.- have If that I swer. world, a better leave this world can’t just good. it to leave you want “Mr. Wood. Do mean that only you answer are going give ? country “The Constitution Fitzpatrick. “Mr. That is the way it protection for minori- provides certain answered, ha-s be according my people privilege for gives the ties conscience. they feel speak think gives It also and want to. “Mr. Wood. Is should that the people opinions you have can give will privilege that unpopular. be you now beliefs or ever have been a mem- them opinion, gives Party? ber of the my Communist Fitzpatrick were, thereafter, at held sоon Quinn to which . appellant time, local union office candidates referred Pittsburgh. election, The union 4á say only- whether he was had been a or ever Fitzpatrick. That “Mr. Party because he conscientiously you. member of the Communist give I can answer him, might feared answer incriminate his Fitzpatrick, Mr. “Mr. Tavenner. or that relied on the self-incrimination he during the yesterday present you were declin- clause of the Fifth Amendment in it stated testimony You heard here. respond. to men- ing true that he member you are a under oath that His tioned the Fifth Amendment twice. you deny Party. Do the Communist re- preliminary first reference to it was ? that accusation quoted above, I he mark which have when my answer to Fitzpatrick; The “Mr. opinions people unpopular or said can have to this the answer previous they so de- beliefs them secret if and hold per- question. have no intention I “This,” said, protection sire. he “is a my abridge to mitting this committee Constitution, Amendment the First opin- political on rights constitutional supplemented by Amendment.” the Fifth with, associations, who ions, I work Thus he described his reference to think, with, I read or what I meet who being freedom of two Amendments kind. anything of that or speech guaranteed people and silence to all words, So, other “Mr. Tavenner. Amendment, sup- by the First as somehow question? you refuse to answer plemented by Fifth, perhaps due — to I refuse Fitzpatrick. don’t “Mr. process peo- point His that clause. all I have answered question. answer ple keep right as to their have silent question.” political opinions because the freedom of testimony During the remainder speech right; guarantees clausе that as:

Fitzpatrick statements made such right he in that refused to an- shared " ** * it, intention of I have because of at all because no swer —not ac- political speak political opinions or my actions and associa- discussing committee, for the might incriminate him. with this tions tivities stated before.” I have reasons Fitzpatrick A second referred time the commit- say is no affair Amendments, “I Fifth First and when belong I organizations to. what tee was asked whether had solicited one applies.” answer previous Copeland join Party, Communist " responded saying: * beliefs, my my far So associations, activities, af- my political “I my will not talk about association read, rights filiations, I those are what know, people and actions with Iwho every other citi- me and guaranteed to did, anything I I what or else. don’t Nation.” zen of my loyalty think it reflects dis- read you witnesses delve people and ing? I think paper and it comes here.” me is control “ * * * " going say the Constitution into the ^[*] join with Constitution.,” who ^[*] to convict you gives maybe Do mind appeared here fellows opportunity you give you you you States now? people oh think- protection to and these have everybody have ‘ fellows is a yesterday scrap thought should other who Are quired : The chairman of the committee then in- “ tion for application Political time Party? D. loyalty have Mr. “Mr. Copeland during, Fitzpatrick. Fitzpatrick,’ membership Association, give you my anything blank sign year did else.” and make Mr. in the -Communist or the ‘Communist request 1943 furnish an you Chairman, ever at Clarence applica- again? do know, testimony just “Mr. Wood. want to nothing in I find indicates, you did thing. he refused to one even

4:5 Amendment, Fitzpatrick. say I did or references to the when “Mr. I if if Fifth did, not, I I it is are considered in full regardless did of what text and context. pry way, they not Considered in show the affair of committee to that realistic this Fitzpatrick invoking into this kind action. no intention of privilege against Amendment’s self-incrimi- “Mr. for that reason do Wood. And judgment nation. I would affirmthe you question? decline to . Court. District Fitzpatrick. I on the “Mr. stand protection 'Constitution, say I am Judge authorized to PROCTOR First and Fifth Amendments. opinion; dissenting concurs Judge that, except CLARK also concurs “Mr. Wood. And for those reasons being privi- claim of questions decline to answer the fur- lege personal a highly one and must be ther? person made claiming it and not Fitzpatrick. “Mr. I have answered reference, judge he thinks trial question. Quinn right holding adopt could not you “Mr. Wood. I say, do decline to Fitzpatrick. statements of answer it further? Fitzpatrick.

“Mr. I no fur- have

ther comment on it.” also,

In this Fitzpatrick instance made it

abundantly clear he was invoking not

two Amendments to giving avoid an in

criminating answer, but thought that he Amendments barred the from committee asking pry which would into BART v. UNITED STATES. his mind and would violate his constitution No. 11045. al to be silent an answer were compelled. I impossible find it regard Appeals United States Court of Fitzpatrick’s statements amounting to a District of Columbia Circuit. n claimto the immunity constitutional from Argued 6,Oct. self-incrimination. Measured the strict standards announced in the cases I have Decided Dec. n cited,by which language of a witness Rehearing Petition for Denied must be measured in determining whether April 15, 1953. actually intended to and did claim the privilege, Fitzpatrick’s fall statements far short constituting such a claim. As the said, judge they certainly leave much

to be desired. Emspak Cf. v. United

(1952) U.S.App.D.C. 203 F.2d conclude, therefore, the district did in fact find that Fitz-

patrick did claim the privilege, but also amply that he was justified in finding, so

n despite that, Quinn’s fact after convic- ‍​​‌‌‌‌​​​‌‌‌‌​​​‌​‌​​‌‌‌​​​​​‌‌‌​​‌​‌‌‌‌​​​​​‌‌​‍tion, Fitzpatrick himself was found not

guilty by a different district judge, F.Supp. 491, who seems not to have con- Fitzpatrick’s

sidered statements “in full context,” acquitted

text but him solely

because he used the words “Fifth Amend- ment.” impossible think it spell out

a claim the privilege

Case Details

Case Name: Quinn v. United States

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Apr 13, 1953

Citation: 203 F.2d 20

Docket Number: 11081

Court Abbreviation: D.C. Cir.