203 F.2d 20 | D.C. Cir. | 1953
Lead Opinion
Appellant was indicted 'for refusing to answer a question asked by a subcommittee of the Committee on Un-American Activities of the House of Representatives. The question was whether he was or ever had 'been a member of the Communist Party, tie was tried by a judge of the District Court without a jury and was convicted.
“Mr. Quinn. I would like to make a statement along the lines that Mr. . Fitzpatrick made yesterday in regard to a question of that' nature. I feel that the political beliefs, opinion's, and associations of the American people can be held secret if they so desire.
“Mr. Wood. And for those reasons you decline to answer the question?
“Mr. Quinn. I didn’t say I was declining to answer the question. Before I do answer the question, I should like to say that I support the position taken by Brother Fitzpatrick yesterday.
“Mr. Wood. Did you hear his statement yesterday?
“Mr. Quinn. Yes; I did.
“Mr. Wood. Do you support it in its entirety ?
“Mr. Quinn. In its entirety.
“Mr. Wood. Is there anything else you want to add to it?
“Mr. Quiñn. No; I don’t.
“Mr. Wood. Will you accept it as ■ the expression of your views, then?
“Mr. Quinn. You may. I may add I feel I have no other choice in this ’' matter, becaúse the defense of' the Constitution," I .hold sacred. I don’t feel I am hiding behind the Cbnstituf tion, but in this case I am standing before it, defending it, as small as I am.
* * * * - * - *
“Mr. Wood. You have stated your position. Having enunciated . your sentiments and your position, will you now answer the question whether you are now or ever have' been a member of the Communist Party, or do you decline to answer.
' “Mr. Quinn. I decline to discuss with the committee questions of that nature.”
The record shows that on the day preceding that of the interrogation of appellant, the subcommittee had questioned one Thomas Fitzpatrick, who had made an extended statement.
Having been indicted for refusal to answer the question put to him, Quinn moved to dismiss the indictment upon a number of grounds. The motion was denied.
1. Quinn says that he claimed the Fifth Amendment protection against self-incrimination. He says he did this by personally adopting the form of claim made by the prior witness, Fitzpatrick.
The trial court found as a fact that at no point did Quinn, while before the subcommittee, assert the privilege in explicit terms. The court then posed the question : “Can one claim a personal privilege against selfdnerimination by reference to a position that another took ?”. The court said:
“On that, this Court finds as a matter of law that one may not. Since the privilege is personal, the defendant must assert it himself, since another may not know what is in a defendant’s mind at the time he is called before 'the Congress to testify on pertinent matters, to-proper inquiry, and therefore, one may not, by reference; assert that privilege.”
The trial court therefore concluded that Quirin had'not asserted his personal privilege in respect to self-incrimination.
We are of opinion that a witness may claim the constitutional privilege by referring to and adopting language used by another, so long, of course, as that other’s, language is identified. On that point we think the District Court was in error, and the Government so concedes. It is true that the privilege is a personal one
Then the question is whether Quinn, by adopting Fitzpatrick’s statement, asserted a privilege against self-incrimination. Basically, of course, that question concerns what was in Quinn’s mind. But courts cannot act upon unrevealed intentions, and so the inquiry must be whether Fitzpatrick did or did not claim the privilege. If what he said did not amount to such a claim, Quinn’s adoption of the statement did not amount to one. The trial court made no ruling upon the meaning or the sufficiency of Fitzpatrick’s statement.
The issue as to Fitzpatrick’s statement, as we see it, is whether a reasonable auditor would understand from what Fitzpatrick said that he (Fitzpatrick) was claiming the right to refuse to answer because his answer might tend to incriminate him. The words which Fitzpatrick used are known, are in this record, and are not in dispute. What did those words mean as he uttered them?
Fitzpatrick’s discussion, which was lengthy, related chiefly to First Amendment rights. He did not at any point make a clear and unequivocal statement that he claimed the privilege against self-incrimination. The closest he came to it were two references to the Fifth Amendment in the course of his long discussion of rights of free speech and thought. Once, before any questions had been asked him, he said, “This is a protection of the First Amendment to the 'Constitution, supplemented by the Fifth Amendment.” And once he said, “I stand on the protection of the Constitution, the First and Fifth Amendments.” There was no context indicating that a claim of the privilege was meant.
We think the words “Fifth Amendment”, considered alone, do not constitute a formula which invokes the privilege against self-incrimination. The Fifth Amendment contains more than one clause. It contains two which are possibly pertinent here, the privilege against self-incrimination and the due process clause. The expression “I claim the protection of the First Amendment, supplemented by the Fifth” may well and reasonably mean “I claim the protection of the First Amendment to my rights of free speech and thought, supplemented by the guarantee of due process of law.” The combination of First and Fourteenth Amendment protection is not unusual,
In our opinion the question here. is - whether Fitzpatrick’s statement, in full text and context, related only to the claim of the rights of free speech and thought under the-First Amendment, or whether an auditor could detect an intention to claim the privilege against self-incrimination,; protected by the Fifth Amendment.
Words do not always have indisputable meanings.- When they do not, their interpretation is a matter of law in some instances and a matter of fact in others. If an ambiguous phrase appears in a statute, its meaning is a question of law. If one occurs in. a contract, its meaning depends' upon the intention of the parties; and that may be an unalloyed question of fact. If the dispute concerns the meaning of the whole of a lengthy recital by a witness on the stand, the meaning is a question of fact.
Whether Fitzpatrick’s meaning is a question of fact or a mixed question of law and fact is close to the borderline. Our opinion is that, in either event, the conclusion ought to be drawn in the first instance by the trial court. In the setting of a criminal case (which is all we have here), we do not think that strict analysis of whether a given inquiry presents a question of law or of fact or a mixed one of law and fact is controlling as to whether it may be determined in the first instance by an appellate court, especially where -that inquiry concerns the main issue in the case.
Perhaps, if we were of clear opinion that Fitzpatrick, and therefore Quinn, did claim the privilege and so must be acquitted, we should dispose of the matter finally here and now. Under such circumstances we , would reverse a judgment of conviction. But a majority of the court are not of that . clear opinion.
The affirmance of a judgment of conviction involves some considerations different from those involved in the reversal of such a judgment. Basically, an accused can be convicted only upon a trial, and the function of an appellate court in affirming a conviction is circumscribed by that principle. A reversal may result in another trial. Generally determinations upon which a judgment of conviction finally rests ought'to be made in the first instance by . the trial court, not by the appellate court. It is upon this phase of the problem presented by . this appeal that members of this court differ.
The judgment of the court is that the case should be remanded to the trial court for a new trial, at which the issue, if then raised, would -be whether Quinn claimed the privilege by adopting the statement made ' by Fitzpatrick. Either or both of two views lead us to that judgment. One view is that in a criminal -case an appellate court has no authority to make the initial determination of an issue such as this one, whether it be called a question of fact or a mixed question of law and fact, upon which a judgment of conviction would rest; that an initial decision upon such an issue must be made by the trial court, if a judgment of con
Two reasons are suggested why it might be appropriate, in the peculiar circumstances of this case, for this court to determine whether the privilege was in fact asserted by Fitzpatrick. The first is that trial by jury was waived and the case was tried by a judge alone. The second is that the evidence consisted primarily of a reading, by counsel for the subcommittee, of, the transcript of the hearings before the subcommittee. But when a defendant waives trial by jury he does not thereby, consent to a determination of his guilt or innocence by an appellate court. . As to the second reason we think it is confused with the rule as to civil equity cases.
The Government urges that we affirm the conviction on the theory that the error of the trial court was harmless,
2. Appellant’s second point is that, before a witness before a congressional committee can be held in contempt for refusing to answer a question, he must be specifically directed to answer and his reasons for refusing to answer rejected or overruled. We have passed upon the point contrary to appellant’s contention in Emspak v. United States, 91 U.S.App.D.C. 378, 203 F.2d 54, decided today. As was pointed out in Bart v. United States, 91 U.S. App.D.C. 370, 203 F.2d 45, also decided today, to constitute an offense refusal to answer must be intentional. , It must appear that Quinn was aware of the intention of his inquirer that answers were required despite his objections.,, He said he adopted all of Fitzpatrick’s statement. Fitzpatrick, ¡made a full statement before he was asked any questions, stating that he would refuse to answer, and before the questioning 'began the Chairman of the Subcommittee explained to him the necessity for answers. When Quinn himself was questioned, and after he had refused to answer, adopting Fitzpatrick’s statement, the Chairman twice asked him to answer the, question. The deliberate and intentional character of the refusal is an element of the offense, to be determined from all the circumstances by the trier of the facts. That issue will be before the trial court if the case is retried.
3. Appellant’s third point is that, since ten members of the grand jury which indicted him were Government employees and two were wives of Government employees, he was entitled to a hearing on his motion to dismiss the indictment as void for that reason. We have also passed on this point contrary to appellant’s contention in Emspak v. United States, supra.
Reversed and remanded.
BAZELON, Circuit Judge, with whom EDGERTON, Circuit Judge, joins, concurring in the result.
While I agree to the reversal of the conviction and the remand for a new trial, I take a differing view with respect to some important questions.
I.
The court’ concludes that there was no error in denying appellant a hearing for the purpose of demonstrating that Government employees were not qualified to act as grand jurors in this case. This conclusion rests on this court’s view in Emspak v. United States, 91 U.S.App.D.C. 378, 203 F.2d 54, that appellant “did no more than assert existence of a ‘miasma of fear’ so clearly rejected in the Dennis case.”
The Government says, “It is not free from doubt that partiality in a grand juror is per se disqualifying. * * * Historically, grand jurors were chosen for what they knew about affairs in the community, which in the case of a petit juror would be disqualifying.”
What the Government is proposing is pro tanto repeal of the Fifth Amendment’s assurance of “a presentment or indictment of a Grand Jury.”
“whatever force may be given to this argument, it remains true that the grand jury is as valuable as ever in securing * * * ‘individual citizens’ .‘from an open and public accusation of crime, and from the trouble, expense, and anxiety of a public trial before a probable cause is established by the presentment and indictment of a grand jury;’ and ‘in case of high offenses’ it ‘is justly regarded as one of the securities to the innocent against hasty, malicious, and oppressive public prosecutions.’ ”8
The grand jury “is designed as a means, not only of bringing to trial persons accused of public offenses upon just grounds, but also as a means of protecting the citizen against unfounded accusation, whether it comes from government, or be prompted by partisan passion or private enmity.”
An ordinary citizen has slight protection from the activities of a grand jury. For example, he may be indicted without the benefit of a preliminary hearing before a committing magistrate,
Preservation of the integrity of the grand jury system is not merely a matter of individual concern. ’ It touches our democratic insistence on the fair administration of law. When the grand jury is not properly constituted, “reversible error does not depend on a showing of prejudice in an individual case. * * * The injury is not limited to the defendant — there is injury to the jury system, to the law as‘an institution, to the community at large, and to the democratic ideal reflected in the processes of our courts.”
I turn now to the court’s application of the Dennis case. Like Dennis, the present case is one “inherently touching the security of the Government, at a time when public feeling on these matters is notoriously-running high * * *.”
“In the absence of a showing of actual bias on the part of the members of the Grand Jury due to their employment in the Government of the United States or the Government of the District of Columbia, the indictment is not void. United States v. Wood, (1936) 299 U.S. 123 [57 S.Ct. 177, 81 L.Ed. 78] ; Frazier v. United States, (1948) 335 U.S. 497 [69 S.Ct. 201, 93 L.Ed. 187] ; Dennis v. United States, (1950) 339 U.S. 162 [70 S.Ct. 519, 94 L.Ed. 734], In a particular case Government employees serving as Grand or Petit Jurors might he barred for implied bias when circumstances are properly brought to the Court’s attention which convince the Court that Government employees would not be suitable jurors. No such circumstances are present under the force of the present motion to dismiss, nor were any such circumstances indicated in defendant’s proffer of proof in support of the motion for a hearing on the qualifications of the Grand Jurors.”21
This court, like the trial court, relics on the line of cases culminating in Dennis v. United States as a basis for the denial of a hearing on bias. Because I think this court misreads Dennis,
When the Dennis case was called for trial, the accused moved for a transfer to-another district on the ground that prejudice against him in the District of Columbia would prevent a fair trial.
In the present case, however, counsel by extensive affidavits, request for hearing, and proffer of proof sought to develop and prove for the record certain circumstances bearing on the issue of bias. His attempt to show the impact of the loyalty and security programs on Government employees
*30 “ * * * the Loyalty Order preceded the instant trial only by about three months. It was promulgated by the President-on March 21, 1947. This trial began on June 23, 1947, and was concluded on June 26, 1947.- On May 9, 1947, the President submitted to Congress a request for an appropriation to carry out the Loyalty Order, which was not enacted into law until July 31, 1947. It was not until August 18, 1947, that Standard Form 84, requesting certain pertinent information from each federal employee, was made available.
“The administrative implementation of Executive Order 9835, which was yet to come, was apparently not the subject of anticipatory fear by these jurors.”28
In marked contrast, the indictment in the present case was returned in November of 1950, by which time the Loyalty Order had been in full operation for more than three years. The affidavits in support of appellant’s motion contain a recital of some generally known events and procedures, and allegations as to others, relating to the operation of that Order.
Moreover, instead of the argument in the Dennis brief in the Supreme Court that the Un-American Activities Committee had given lists of federal employees to the Attorney General,
There would be no point to a more detailed cbmparison of the record in this case with that in Dennis. It suffices that appellant’s affidavits went considerably beyond Dennis in attempting to demonstrate that “Government employees * * * have been the subject of an active campaign to determine whether they are in any way sympathetic or tolerant to ‘Communism’ or ‘Communists,’ or sympathetic to any person who in turn is associated with ‘Communism’ or ‘Communists’ or with organizations which have , been called ‘Communist Fronts’ or with persons who may have been called ‘Communist fellow travelers.’ ”
Resolution of the disqualification issue does not depend upon whether the loyalty program or investigations by Congress have exceeded lawful bounds. No such question is before us. It depends instead upon whether these activities prevent Government employees from exercising the free will essential to the impartiality required for their service as grand jurors in this case. “The problems of security are real. So are the problems of freedom. The paramount issue of the age is to reconcile the two.”
Despite the differences between Dennis and the instant case, the Government argues that an attack on the qualifications of grand jurors must be “based on facts and not mere conclusions.” The Government further asserts, without citing any authority, that unless appellant can advance a reason for “not making his whole showing in the usual form of affidavits * * * ” the trial judge can properly deny a hearing.
It is well understood that a trial judge has wide latitude in disposing of objections to the qualifications of the grand jury. Where the grounds advanced in support of a motion to quash an indictment are clearly insufficient in law, a hearing would be without purpose. This was the situation in United States v. Rintelen,
A motion to quash an indictment should not, of course, be granted merely on legally sufficient allegations. The movant cannot insist that his allegations stand admitted in the absence of a denial.
Since appellant’s legally sufficient allegations were supported by affidavits of circumstances which cannot be said to be frivolous, the foregoing principles required that his request for a hearing be granted in this case. It may well be that appellant will be unable to prove his allegations or to show such facts as would result in his securing the relief which he seeks. His burden of proof will undoubtedly be great. We might be unwilling to accept the sort of proof he may offer. But I cannot bring myself to concur in a view which forecloses all opportunity of showing the extent to which basic rights may have been infringed.
The difficulty with the subject generally seéms to result from lack of clarity as to the substantive grounds for disqualification. This lack of clarity appears in the trial court’s statement on the one hand that “Government employees * * * might be barred from implied bias”
“For the -ascertainment of this [disqualifying] mental attitude * * * , the Constitution- lays down no particular tests and procedure is not chained-to any ancient and artificial formula.”
II.
The view I take of another question might dispose of the entire case upon retrial: Appellant contends, in substance, that a charge of contempt cannot lie since he was not “specifically directed to answer * * * and his reasons for refusing to answer * * * . were not rejected or ' overruled.”
“Every person who * * * summoned as a witness by the authority of either House of Congress, to give testimony * * * before * * * any committee of either House of Congress, willfully makes default, or who, -having appeared, refuses to answer any question pertinent to the * * * inquiry, . shall be * * * guilty of a misde-: meanor, punishable by a fine * * * and imprisonment in a common jail for not les.s than one month nor more than twelve months.”52
This problem is discussed in the opinion of the court in Bart v. United States.
A conclusive presumption of intent to violate the statute might attach to a naked refusal to answer, i. e., a refusal without a statement, at the time, of the reason therefor.
It is only after an intent to refuse has been established in accordance with die foregoing principles that the witness is “¡bound rightly to construe the statute.”
The foregoing construction of the key phrase “refuses to answer” is clearly indicated by an examination of the legislative history and of the cases decided under this statute.
In 1857 Congress enacted the contempt statute to supplement its inherent powers.
The intent of 'Congress is confirmed by what it has done since enacting the statute of 1857. It continued to deal with contempt tinder inherent powers and with the same procedures for 37 years, up to 1894,
It was 30 years after the Chapman case and 67 years after enactment that the next indictment under the statute was obtained.
A random check of the citations for contempt of Congress for each year since the Sinclair episode of 1924 further supports this construction of the statute.
Although United States v. Murdock
This question has, however, been directly considered in three recent district court cases. In United States v. Browder,
“A search of the record will not disclose one instance when the Committee or its presiding member overruled the defendant’s objections [based on per-tinency] or offered to set him right if, perchance, his observations were ill founded or his position untenable in the eyes of the Committee.
******
“His objections were not acted upon and he had the right to believe that his views and explanations were acceptable to the Committee.”91
This view was followed in United States v. Fox
And again in United States v. Kamp,
“Committees of Congress must conduct examinations in such a manner that it is clear to the witness that the Committee recognizes him as being in default, and anything short of a clear cut default * * * will not sustain a conviction for contempt of Congress. * * * The witness is not required to • enter into a guessing game when called upon to appear before a committee. The burden is upon the presiding mem
Although the Supreme Court has not ruled directly on this question, there is support for this construction in United States v. Bryan.
Considerations of fundamental fairness support this construction of the statute.
III.
The court below adopted the erroneous view that appellant could' not claim the privilege against self-incrimination by reference and adoption of the language used by another.
. United States v. Emspak, D.C.D.C.1951, 95 F.Supp. 1010; United States v. Emspak, D.C.D.C.1951, 95 F.Supp. 1012.
. Rogers v. United States, 1951, 340 U.S. 367, 370-371, 71 S.Ct. 438, 95 L.Ed. 344.
. As to whether claim may properly be made by the witness’s attorney, see Jones v. Commonwealth, 1951, 327 Mass. 491, 99 N.E.2d 456, and cases collected in footnote 4 thereto; Musselwhite v. State, 1951, 212 Miss. 526, 54 So.2d 911. But see In re Leiby’s Estate, Ohio App.1951, 101 N.E.2d 214, appeal dismissed, 1951, 156 Ohio St. 254, 101 N.E.2d 906, annotation at 75 Am.St.Rep. 339-340.
. Upon his own trial Fitzpatrick was held to have claimed the privilege. United States v. Fitzpatrick, D.C.D.C.1951, 96 F. Supp. 491.
. Joseph Burstyn, Inc. v. Wilson, 1952, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098; Niemotko v. Maryland, 1951, 340 U.S. 268, 71 S.Ct. 325, 95 L.Ed. 267; Cf. Gitlow v. New York, 1925, 268 U.S. 652, 666, 45 S.Ct. 625, 69 L.Ed. 1138.
. See Miller v. United States, 6 Cir. 1948, 169 F.2d 865, where the Court of Appeals for the Sixth Circuit reversed and remanded a criminal conviction for determination by the. trial court of a question of law, and the same case on a second appeal, 6 Cir. 1949, 173 F.2d 922, where the judgment of conviction by the District Court, after only a partial new trial, was reversed and remanded for new trial de novo. See also Litton v. United States, 8 Cir. 1949, 177 F.2d. 416, 417, certiorari denied, 1950, 339 U.S. 921, 70 S.Ct. 620, 94 L.Ed. 1344: “This * * * is an appellate court without power or jurisdiction to retry criminal cases, our authority being limited to reviewing alleged errors of law which may have been committed by the trial court.” Compare 62 Stat. 963 (1948), 28 U.S.C.A. § 2106, with 37 Stat. 565 (1912), as amended, 48 U.S.C.A. § 1356 (1928), repealed by Act of June 25, 1948, 62 Stat. 991 [See 1948 Revised Judicial Code, 28 U.S.C.A. §§.1291, 1292, 1294]. See Kemp v. Government of Canal Zone, 5 Cir. 1948,167 F.2d 938, 942.
. Orvis v. Higgins, 2 Cir. 1950. 180 F.2d 537, certiorari denied, 1950, 340 U.S. 810, 71 S.Ct. 37, 95 L.Ed. 595.
. Fed.R.Crim.P. 52(a), 18 U.S.C.A.
. See Kotteakos v. United States, 1946, 328 U.S. 750, 757-777, 66 S.Ct. 1239, 90 L.Ed. 1557; Cole v. Arkansas, 1948, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644; Bollenbach v. United States, 1946, 326 U. S. 607, 614, 66 S.Ct. 402, 90 L.Ed. 350.
. Emspak v. United States, 1952, 91 U.S. App.D.C. 378, 203 F.2d 56; Dennis v. United States, 1950, 339 U.S. 162, 70 S. Ct. 519, 94 L.Ed. 734.
. Brief for Appellee in Emspak v. United States, p. 26. The Government concedes that while “The Fifth Amendment requires indictments only in capital ‘or other infamous’ crime, * * * where the Government has chosen or been compelled to proceed by indictment, the accused probably has standing to move to dismiss an indictment found by a disqualified body, just as he would have a right to attack an information filed upon the oath of a disqualified prosecuting officer.” Id. at 26, note 3. And see Brief for Appellee in the instant case, p. 58.
. Cassell v. Texas, 1950, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839.
. See Crowley v. United States, 1904, 194 U.S. 461, 472, 24 S.Ct. 731, 736, 48 L.Ed. 1075, where the Supreme Court quoted with approval from the “leading case” of Vanhook v. State, 12 Tex. 252, 268: “The better opinion, to be deduced from the authorities to which we have access, seems to be that irregularities in selecting and impaneling the grand jury, which do not relate to the competency of individual jurors, can, in general, only be objected by a challenge to the array. But that the incompetency, or want of the requisite qualifications of the jurors, may be pleaded in abatement to the indictment. And this doctrine and distinction seems founded on principle. It is the right of the accused to have the question of his guilt, decided by two competent juries before he is condemned to punishment. It is his right, in the first place, to have the accusation.passed upon, before he can be called upon to answer to the charge of crime, by. a grand jury composed of good and lawful men. If the jury be not composed of such men as possess the requisite qualifications, he ought not to be put upon his trial upon a charge preferred by them; but should be permitted to plead their incompetency to prefer the charge and put him upon his trial, in avoidance of the indictment. Otherwise he may be compelled to answer to a criminal charge preferred by men who are infamous, or unworthy to be his accusers.”
In United States v. Remington, 2 Cir., 1951, 191 F.2d 246, 252, appellant moved to .quash the indictment contending “that the foreman, one Brunini, had a financial interest in a book which the government’s chief witness was writing * * The Court of Appeals reversed for further proceedings pointing out that “[t]he indictment should not be quashed unless undue influence is shown” by Brunini on the other grand jurors. Ibid, (emphasis
. State v. Richardson, 1928, 149 S.C. 121, 146 S.E. 676 (indictment returned by grand jury chosen by commissioners who deposited in defendants’ bank quashable if issue raised in time); see Joslyn v. People, 1919, 67 Colo. 297, 184 P. 375, 377, 7 A.L.R. 339 (“direct pecuniary interest” disqualifies grand juror); but cf. Coblentz v. State, 1933, 164 Md. 558, 166 A. 45, 88 A.L.R. 886 (depositors not disqualified from voting to indict insolvent bank’s president); State v. Turner, 1905, 72 N.J.L. 404, 60 A. 1112. State courts are also in disagreement on whether members of a grand jury which previously indicted a defendant are qualified to serve on a grand jury which reindicts him for the same offense. People v. Hansted, 1901, 135 Cal. 349, 67 P. 763, 764 (not qualified—statute disqualifies if “a state of mind exists on his [grand juror’s] part in reference to the case”—emphasis supplied); cf. State v. Bullard, 1905, 127 Iowa 168, 102 N.W. 1120 (statute disqualifying grand juror if he had such an opinion “as would prevent him from rendering a true verdict upon the evidence” required disqualification if grand juror “would be an unfit person to sit upon a petit jury”); but see State v. Wilcox, 1889, 104 N.C. 847, 10 S.E,. 453, 454 (dictum — “The fact that the magistrate who committed a defendant was foreman of the [indicting grand] jury * * * not * * * good ground for motion to quash [indictment] ”).
. An atmosphere of intimidation clearly does disqualify a petit jury. Moore v. Dempsey, 1923, 261 U.S. 86, 91, 43 S.Ct. 265, 67 L.Ed. 543 (domination of trial by mob violence in courtroom); Frank v. Mangum, 3915, 237 U.S. 309, 335, 35 S. Ct. 582, 59 L.Ed. 969 (hostile public sentiment and mob domination of the courtroom).
. Prosecution for violation of 11 Stat. 155 (1857), as amended, 52 Stat. 942 (1938), 2 U.S.C.A. § 192 need not, of course, be commenced by grand jury action. But see note 2, supra.
. Ex parte Bain, 1887, 121 U.S. 1, 12, 7 S.Ct. 781, 787, 30 L.Ed. 849, quoting Chief Justice Shaw of Massachusetts in Jones v. Robbins, 8 Gray 329.
. Ex parte Bain, supra, 121 U.S. at page 11, 7 S.Ct. at page 786, quoting Justice Field, in Charge to Grand Jury, 30 Fed. Cas.No.18,255, page 992, 2 Sawy. 667.
. Beavers v. Henkel, 1904, 194 U.S. 73, 84, 24 S.Ct. 605, 607, 48 L.Ed. 882.
. United States v. Gray, D.C.D.C.1949, 87 F.Supp. 436.
. United States ex rel. McCann v. Thompson, 2 Cir., 1944, 144 F.2d 604, 605-606, 156 A.L.R. 240; Hale v. Henkel, 1906, 201 U.S. 43, 65-66, 26 S.Ct. 370, 50 L.Ed. 652.
. Cf. Blair v. United States, 1919, 250 U.S. 273, 39 S.Ct. 468, 63 L.Ed. 979.
. See id. 250 U.S. at page 282, 39 S.Ct. at page 471; United States v. McGovern, 2 Cir., 1932, 60 F.2d 880, 888-889, certiorari denied, 287 U.S. 650, 53 S.Ct. 96, 77 L.Ed. 561, and cases therein cited.
Legislation has been introduced in the Senate “to authorize * * * the appointment of special counsel and investigators to assist grand juries in the exercise of their powers.” S. 2086, 82d Cong., 1st Sess. (1951).
. Ballard v. United States, 1946, 329 U. S. 187, 195, 67 S.Ct. 261, 265, 91 L.Ed. 181.
. The Fourteenth Amendment, however, do.es not require a state to proceed by way of indictment or presentment, even in a first-degree murder case. Hurtado v. California, 1884, 110 U.S. 516, 74 S. Ct. 111, 292, 28 L.Ed. 232. In about half the states and in England use of the grand jury as an investigative body and of indictment as a step in prosecution has been largely abandoned. Dession, Criminal Law, Administration and Public Order 857 (1948).
. This development is summarized, and protested, in the dissenting opinion of Mr. Justice Jackson in Cassell v. Texas, 1950, 339 U.S. 282, 298, 70 S.Ct. 629, 94 L. Ed. 839.
. Mr. Justice Frankfurter dissenting in Dennis v. United States, 1950, 339 U.S. 162, 183, 70 S.Ct. 519, 526, 94 L.Ed. 734.
. Fed.R.Crim.P. 6(b) (2). See also note 2, supra.
. Appellant submitted an affidavit, J.A., pp. 15-17, and a supplemental affidavit, id. at 83-15. There is no notation in the record that the first affidavit was struck, but presumably the trial judge’s action on the supplemental affidavit applied to the first affidavit as well.
. J.A., p. 65.
. See Morford v. United States, 1950, 339 U.S. 258, 70 S.Ct. 586, 94 L.Ed. 815.
. Transcript of Record, p. 27, Dennis v. United States, 1950, 339 U.S. 162, 70 S. Ct. 519, 94 L.Ed. 734.
. Id. at 64-5.
. The affidavit appears in id. at 27-32.
. Id. at 41.
. For an interesting discussion of this problem, see Jahoda & Cook, Security Measures and Freedom of Thought: Ail Exploratory Study of the Impact of Loyalty and Security Programs, 61 Yale L. J. 295 (1952).
. 1950, 339 U.S. 162, 169-170, 70 S.Ct. 519, 522, 94 L.Ed. 734.
. Brief for Petitioner, pp. 33-4, Dennis v. United States, 1950, 339 U.S. 162, 70 S.Ct. 519, 94 L.Ed. 734.
. J.A., p. 37.
. United States v. Wood, 1936, 299 U.S. 123, 150, 57 S.Ct. 177, 187, 81 L.Ed. 78.
. J.A., pp. 34—6.
. Concurring opinion of Mr. Justice Douglas, Joint Anti-Fascist Refugee Committee v. McGrath, 1951, 341 U.S. 123, 174, 71 S.Ct. 624, 650, 95 L.Ed. 817.
. Rule 12(b) (4) of the Federal Rules of Criminal Procedure reads:
“A motion before trial raising defenses or objections shall be determined before trial unless the court orders that it be deferred for determination at the trial of the general issue. An issue of fact shall be tried by a jury if a jury trial is required under the Constitution or an act of Congress. All other issues of fact
. See Jahoda & Cook, supra, note 27, at 305 et seq., for the possible effects of the climate of thought on a state of mind.
. D.C.S.D.N.Y.1916, 235 F. 787.
. Id. 235 F. at page 788.
. To Secure these Bights: The Report of the President’s Committee on Civil Bights, 1947, p. 101, quoted in J.A., p. 39.
. See Jahoda & Cook, supra, note 27, at 288.
. Martin v. Texas, 1906, 200 U.S. 316, 319-320, 26 S.Ct. 338, 50 L.Ed. 497; Brownfield v. South Carolina, 1903, 189 U.S. 426, 23 S.Ct. 513, 47 L.Ed. 882; Smith v. Mississippi, 1896, 162 U.S. 592, 16 S.Ct. 900, 40 L.Ed. 1082; see Glasser v. United States, 1942, 315 U.S. 60, 87, 62 S.Ct. 457, 86 L.Ed. 680.
. Carter v. Texas, 1900, 177 U.S. 442, 20 S.Ct. 687, 44 L.Ed. 839; see also cases cited in note 40, supra.
. Cf. dissenting opinion, Johnson v. Matthews, 86 U.S.App.D.C. 376, 383, 182 F. 2d 677, 684, certiorari denied, 1950, 340 U.S. 828, 71 S.Ct. 65, 95 L.Ed. 608.
. 1950, 339 U.S. 162, 168, 70 S.Ct. 519, 521, 94 L.Ed. 734.
. J.A., p. 65.
. Id. at 159. And both positions were ' taken in the trial judge’s memorandum opinion quoted supra.
. “In dealing with an employee of the government, the court would properly be solicitous to discover whether in view of the nature or circumstances of his employment, or of the relation of the particular governmental activity to the matters involved in the prosecution, or otherwise, he had actual bias, and, if he had, to disqualify him.” United States v. Wood, 1936, 299 U.S. 123, 134, 57 S.Ct. 177, 179, 81 L.Ed. 78.
. Id. 299 U.S. at pages 145-146, 57 S.Ct. at page 185.
. Dennis v. United States, 1950, 339 U.S. 162, 173, 70 S.Ct. 519, 524, 94 L.Ed. 734 (concurring opinion of Mr. Justice Reed).
. United States v. Wood, 1936, 299 U.S. 123, 145-146, 57 S.Ct. 177, 185, 81 L. Ed. 78. This language was quoted with ' approval in Frazier v. United States, 1948, 335 U.S. 497, 511, 69 S.Ct. 201, 93 L.Ed. 187.
. J.A., p.161.
. Brief for Appellant, Statement of Questions Presented.
. 11 Stat. 155 (1857), as amended, 52 Stat. 942 (1938), 2 U.S.C.A. § 192 (emphasis supplied).
. 1952, 91 U.S.App.D.C. 370, 203 F.2d 45.
. Bart v. United States, 91 U.S.App.D.C. 370, 203 F.2d 49 (emphasis supplied).
. See, e.g., 98 Cong.Rec. 8086 (June 30, 1952) where the Committee directs the witness upon the request of Committee counsel.
. See Bart v. United States, 91 U.S.App. D.C. 370, 203 F.2d 49.
. See United States v. Kamp, D.C.D.C. 1952, 102 F.Supp. 757, 759, discussed infra.
. See United States v. Bryan, 1950, 339 U.S. 323, 332-333, 70 S.Ct. 724, 94 L.Ed. 884.
. 91 U.S.App.D.C. 370, 203 F.2d 47.
. Ibid.
. Sinclair v. United States, 1929, 279 U.S. 263, 299, 49 S.Ct. 268, 274, 73 L.Ed. 692, discussed infra.
. For the reasons I expressed in Bart, I think the court cannot reach the question of the validity of the claim of the privilege against self-incrimination until it has been determined that the Committee clearly apprised the witness that it had rejected his claim.
. 11 Stat. 155 (1857). See generally Cong.Globe, 34th Cong., 3d Sess., 403 et seq. (1857). And see In re Chapman, 1897, 166 U.S. 661, 672, 17 S.Ct. 677, 41 L.Ed. 1154.
. 11 Stat. 155 (1857), unchanged so far as is relevant here, as amended, 52 Stat. 942 (1938), 2 U.S.C.A. § 192.
. Cong.Globe, 34th Cong., 3d Sess. 427 (1857), (emphasis supplied).
. A eontemnor could not be imprisoned beyond the life of the current session of Congress, Simonton, for example, could only have been imprisoned for five weeks. The statute was primarily aimed at remedying this major deficiency in Congress’ inherent powers. See, e.g., remarks of Representative Orr, id. at 405-6, and of the Speaker of the House, Cong.Globe, 40th Cong., 2d Sess. 2579 (1868); and United States v. Bryan, 1950, 339 U.S. 323, 327, 70 S.Ct. 724, 94 L.Ed. 884.
It should be noted that Congress under its inherent powers and in furtherance of its investigative activities afforded the contumacious witness a continuing opportunity to purge himself prior to and following conviction. See, e.g., Cong. Globe, 34th Cong., 3d Sess. 413 (1857) (James W. Simonton); Cong.Globe, 37th Cong., 2d Sess. 831 (1862) (Henry Wikoff); and Potts, Power of Legislative Bodies to Punish for Contempt, 74 U. of Pa.L.Rev. 691, 780, 808-9 (1926). The statute makes no provision for a purge proceeding following conviction for contempt.
. Cong.Globe, 34th Cong., 3d Sess. 403 (1857).
. Id. at 411 et seq. Except for cases of a witness’ failure to appear in response to a subpoena, so far as we can determine, on only one occasion between 1850 and 1857 did Congress consider contempt proceedings against a witness. Cong. Globe, 31st Cong., 1st Sess. 1679-80, 1694, 1714, 1716 (1850). During debate as to whether Thomas Ritchie, the witness, should be haled before the bar of the House to show cause why he should not be proceeded against in contempt, Congressman Stanton remarked that “the Committee did not indicate to [the witness after he declined to answer] that they were not perfectly satisfied." Id. at 1716. Congress decided not to call Ritchie before the bar of the House. Ibid.; House Journal, 31st Cong., 1st Sess. 1343, 1345 (1850).
. See, e.g., reports and debate concerning committee proceedings in which a witness refused to answer certain questions after a committee had rejected his grounds. Cong.Globe, 40th Cong., 3d Sess. 771 (1869), (Florence Scannell); Cong.Globe, 42d Cong., 3d Sess. 952 (1873) (Joseph B. Stewart); 4 Cong. Rec. 1707-8 (1876), (Hallett Kilbourn—see Kilbourn v. Thompson, 1880, 103 U. S. 168, 26 L.Ed. 377 (concerning this proceeding but not raising or deciding the question considered here) ); 5 Cong.Rec. 352, 473 (1877), (E. W. Barnes, Enos Runyon).
. In addition to E. R. Chapman, there were six citations for contempt in 1894. 26 Cong.Rec. 5458, 6146, 6648, 8121 (3894), Senate Journal, 53d Cong., 2d Sess. 214-16, 238, 254 (1894), (Elisha J. Edwards, John S. Shriver, H. A. Have-meyer, J. E. Searles, J. W. McCartney, A. L. Seymour).
. 1897, 166 U.S. 661, 672, 17 S.Ct. 677, 411 L.Ed. 1154.
. Id. 166 U.S. 661, 17 S.Ct. 677; 26 Cong. Rec. 6143 et seq. (1894).
. 65 Cong.Rec. 4785-91 (1924). (In 1916 H. Snowden Marshall was cited for contempt of Congress by publication, 53 Cong. Rec. 9639-70 (1916); he was released under habeas corpus proceedings. Marshall v. Gordon, 1917, 243 U.S. 521, 548, 37 S.Ct. 448, 61 L.Ed. 881.)
. 1929, 279 U.S. 263, 49 S.Ct. 268, 73 L.Ed. 692. To the same effect, see the Supreme Court's explanation of this case in United States v. Murdock, 1933, 290 U. S. 389, 397, 54 S.Ct. 223, 78 L.Ed. 381.
. Id. 279 U.S. at page 299, 49 S.Ct. at page 274.
. See Brief for Appellee, p. 50.
. Sinclair v. United States, Supreme Court, October Term 1928, No. 555, Transcript of Record, pp. 147-50.
. At least ono citation for contempt by a witness refusing to answer certain questions for each year since 1924 in which Congress made such citations was examined. See note 100, infra, for citations.
. See note 58 and text, supra.
. See, e.g., 69 Cong.Rec. 2440, 5286-8 (1928) (Robert W. Stewart, Thomas W. Cunningham); 78 Cong.Rec. 1904 et seq. (1934) (William P. MacCracken); 86 Cong.Rec. 3694-5, 3857 (1940) (James H. Dolsen, George Powers); 90 Cong.Rec. 8163 (1944), Hearings before Committee to Investigate Campaign Expenditures on H.R. Res. 551, 78th Cong., 2d Sess. 453-5 (1944) (Edward A. Rumely).
. See, e.g., 86 Cong.Rec. 3695, 3857 (1940), reporting the proceedings before the House Un-American Activities Committee which resulted in citation for contempt of James H. Dolsen and George Powers.
. See, e.g., 97 Cong.Rec. 499 (1951) (Joseph Doto); and see remarks of Senator Kefauver: “I can only say * * * that I have previously stated that counsel have considered the matter and have advised the entire committee that the refusal to answer certain questions and to follow the direction of the chairman in these eases constitutes a contempt.” Id. at 505-6.
. See, e.g., Hearings before tbe Sub-Committee to Investigate the Administration of the Internal Security Act and other Internal Security Laws of the Committee on the Judiciary, U. S. Senate, 82d Cong., 1st and 2d Sess. 76 (1951).
. We are informed by Government counsel on argument in the Bart case that the Un-American Activities Committee has recently resumed the traditional procedure which affords this safeguard; see, e.g., 98 Cong.Rec. 8683-6 (June 30, 1952) (Saul Grossman).
. 1921, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210.
. See Brief for Appellee, p. 49 et seq.
. United States v. Murdock, Supreme Court, October Term 1931, No. 38, Transcript of Record, pp. 20, 21.
. It is interesting to note that the record discloses, as Judge Prettyman points out in his opinion in the Bart case, “that Murdock was made fully aware, in an extended discussion before the refusals, of the intentions of his questioners and of the consequences of refusal to answer their contemplated questions.” Bart v. United States, 91 U.S.App.D.O. 370, 203 E.2d 49.
. United States v. L. A. Tucker Truck Lines, 344 U.S. 33, 73 S.Ct. 67, 69.
. D.C.D.C., Criminal No. 1784-50, (March 14, 1951). [No opinion for publication.]
. Id. at 1, 4.
. D.C.D.C., Criminal No. 1798-50 (June 29, 1951). [No opinion for publication.]
. Id., Transcript of Proceedings, p. 3.
. D.C.D.C.1952, 102 F.Supp. 757.
. Id. 102 F.Supp. at page 759.
. 1950, 339 U.S. 323, 70 S.Ct. 724, 94 L.E'd. 884.
. Id. 339 U.S. at page 333, 70 S.Ct. at page 731.
. While recognizing the necessity of congressional power to compel testimony, Wigmore said prophetically: “Not only does the logic of the legislative needs call for a strict limitation of this power, but also the policy of the situation; for the Legislatures aro not bound by, and do not employ, the evidential rules that in judicial trials protect parties and witnesses and check abuses of power. * * * Moreover, legislative inquiries are sometimes conducted for partisan purposes and personal aggrandizement, and there is a particular temptation to pursue the inquiry beyond the necessities of contemplated legislation and to assume improperly the function of a grand jury.
“ * * * (4) The Judiciary are entitled to define and declare the limitations of the power.” 8 Wigmore, Evidence § 2195, pp. 89-1 (3d ed. 1940).
. See note 66, supra.
. 1857-1949 113 citations for contempt (number of citations for each year in italics):
House Journal, 34th Cong., 3d Sess. 241, 271 (1857) 2; House Journal, 35th Cong., 1st Sess. 258, 371 (1858) 2; House Journal, 35th Cong., 2d Sess. 411 (1859) 1; Senate Journal, 36th Cong., 1st Sess. 159, 178, 242 (1860) 5; House Journal, 37th Cong., 2d Sess. 210, 298, 498, 948 (1862) 4; Cong.Globe, 37th Cong., 3d Sess. 314, 370 (1863) 1; House Journal, 39th Cong., 2d Sess. 166, 252, Senate Journal, 40th Cong., 1st Sess. 186 1867) 3; House Journal, 40th Cong., 2d Sess. 729 (1868) 1; House Journal, 40th Cong., 3d Sess. 226, 250, 392 (1869) 4; Cong.Globe, 42d Cong., 3d Sess. 952, 956 (1873) 1; House Journal, 43d Cong., 1st Sess. 716, House Journal, 43d Cong., 2d Sess. 51-2 (1874) 2; House Journal, 43d Cong., 2d Sess. 159, 205 (1875) 2; House Journal, 44th Cong., 2d Sess. 534, 588, 1189 (1876) 3; Id. at 149, 219, 313, 631, Senate Journal, 44th Cong., 2d Sess. 87, 196, 228 (1877) 9; Senate Journal, 46th Cong., 2d Sess. 73 (1879) 5; 22 Cong. Rec. 1973, 2150 (1891) 1; 26 Cong.Rec. 5458, 6146, 6643, 8121, Senate Journal, 53d Cong., 2d Sess. 214-16, 238, 254 (1894) 7; 50 Cong.Rec. 1431-52 (1913) 1 ; 53 Cong.Rec. 9639 (1916) 1; 65 Cong Rec. 4785-91, 7216 (1924) 1; 69 Cong. Rec. 2439, 5286, 5353, 7239 (1928) 2; 78 Cong.Rec. 1914 (1934) 4 ; 79 Cong. Rec. 13077 (1935) 2 ; 80 Cong.Rec. 8222 (1936) 3; 81 Cong.Rec. 953 (1937) 6; 86 Cong.Rec. 3694, 3856, 4152, 4153, 4156 (1940) 5; 90 Cong.Rec. 8163 (1944) 2; 92 Cong.Rec. 2744, 3762-73, 7591, 10592, 10748 (1946) 20; 93 Cong.Rec. 1128, 3804, 3814, 10770, 10780, 10794-802 (1947) 13.
1950-June 1952 117 citations for contempt :
96 Cong.Rec. 12237, 12256, 12260, 12286-89, 12296-382, 13873, 13894, 14639, 15727 (1950) 64 ; 97 Cong.Rec. 499, 506, 507, 1086, 1453, 3038, 3039, 7014, 8702, 9803, 12406, 12407 (1951) 45 ; 98 Cong. Rec. 836-43 (Feb. 5, 1952), 1338 (Feb. 25, 1952), 2397 (March 17, 1952), 2537 (March 19, 1952), 3904 (April 9, 1952), 8675-83 (June 30, 1952) 8.
. For comments on Congress’ investigatory power, see, e.g., In re Chapman, 1897, 166 U.S. 661, 671-672, 17 S.Ct. 677, 41 L.Ed. 1154; United States v. Bryan, 1950, 339 U.S. 323, 327, 70 S.Ct. 724, 94 L.Ed. 884; and cases cited in 8 Wigmore, Evidence § 2195, pp. 75-80 (3d ed. 1940). And see Potts, Power of Legislative Bodies to Punish for Contempt, 74 U. of Pa.L.Rev. 691, 780, 804-27 (1926).
. Court’s opinion, p. 4.
. As expressed in my dissents in Bart and Emspak.
Dissenting Opinion
dissenting.
I agree with the majority that the trial judge erred in holding as a matter of law .that Quinn could not adopt Fitzpatrick’s statements for whatever they were worth. But, for reasons to be stated later, my view is that Quinn was not prejudiced by that erroneous ruling, and therefore I think my brothers of the majority are wrong in reversing his conviction and remanding the case for the trial judge to say whether Fitzpatrick did or did not claim the protection of the Fifth Amendment against -being compelled to testify against himself.
The court’s action in reversing and remanding seems to me to arise from, and to depend entirely upon, the following statements in the majority opinion:
*39 “ * * * The trial court made no ruling upon the meaning or the sufficiency of Fitzpatrick’s statement. Having held that Quinn could not as a matter of law adopt it, the court was not called upon to consider it.”
Perhaps the trial judge was not “called upon to consider it,” but I cannot believe the judge’s erroneous legal conclusion, that Quinn could not claim immunity by adopting Fitzpatrick’s language, precluded him from considering whether that language was legally sufficient as a claim of immunity from self-crimination. If the trial judge actually considered Fitzpatrick’s statements and held them insufficient as a claim of privilege, my view is that we should regard that holding as an alternative basis for the finding of guilt, which after all was the ultimate finding of the trial judge. I do not believe we should set aside a correct ultimate finding that a defendant is guilty because the trial judge gave two reasons for it, one of which was wrong and one of which was right.
With those considerations in mind, I suggest the majority are incorrect in saying the district judge made no- ruling upon the meaning or sufficiency of what Fitzpatrick said in attempted justification of his refusal to answer the question. If I am correct in that belief — that is to say, if the district judge did make such a ruling — then the sole basis for reversal disappears, and the remand is for the futile purpose of permitting the trial judge to make a finding which he has already made.
Moreover, while I do not stress the point, I think it extremely doubtful whether the District Court was required, in the circumstances, to make a special finding concerning the sufficiency of Fitzpatrick’s remarks as a claim of the privilege. Rule 23(c) of the Federal Rules of Criminal Procedure provides: “In a case tried without a jury the court shall make a general finding and shall in addition on request find the facts specially.” The general finding referred to in the rule is a finding o-f either guilty or not guilty.
I question whether, under Rule 23(c), a trial judge is required to make special findings on all the factual issues involved, when none had been requested, merely because he announced findings on some of the issues of fact in the course of the opinion which preceded his general finding of guilty. Be that as it may, however, I think it quite clear that in this case the trial court stated, while -delivering his opinion, a finding that Fitzpatrick’s statements did not amount in legal effect to a claim of the privilege against self-incrimination.
The erroneous legal ruling by the district court that Quinn could not adopt Fitzpatrick’s language did not mean the judge had not read and considered that language, nor that he had not formed and expressed an opinion as to whether Fitzpatrick had actually claimed the privilege. The contrary appears. The trial judge’s opinion shows he had read and considered Fitzpatrick’s statements. He noted their nature and found them insufficient as a claim of immunity against compulsory self-incrimination. I quote from the District Court’s opinion:
“ * * * the Court will not go into detail of the -position which Mr. Fitzpatrick took, other than to say that it certainly left much to be desired as*40 to whether he was actually claiming self-incrimination or not.
“It is to be observed that his answers — and I speak of Mr. Fitzpatrick’s — were long and rambling. They had a major théme, which seemed to be that the committee was prostituí- ' ing its office and seeking to aid a rival group in a forthcoming [local union] election.”
To- be sure, the judge did not apply the “finding of fact” label to this evaluation of Fitzpatrick’s language, but that is immaterial. Whether the issue was oné of fact or law, the judicial observations just quoted were tantamount to a finding that Fitzpatrick’s remarks to the subcommittee did not' amount’ to a reliance upon- the shelter of • the self-incriminaition clause. For, when the judge said those remarks “certainly left much to be desired as to whether he was actually claiming self-incrimination or not,” he Was clearly saying Fitzpatrick had not asserted the claim in the way the cases say a witness must invoke it in order to be entitled to its protection. So, the erroneous legal ruling did not prejudice Quinn., .
The privilege against self-incrimination, when invoked ■ properly, is liberally construed and applied; but the language of the witness which is said to constitute a claim of the privilege is strictly construed and appraised. This will appear from cases hereinafter cited. Nor is the privilege automatically applicable to every question which requires an incriminating answer. It is personal to the witness, and is waived unless he claims it at the time when, and in the tribunal where, the question is asked. The Supreme Court said in United States v. Monia, 1943, 317 U.S. 424, 427, 63 S.Ct. 409, 410, 87 L.Ed. 276:
“The Fifth Amendment declares that ‘No person * * * shall be compelled in any criminal case to be a witness against himself.’ * * * The Amendment speaks of compulsion. It does not preclude a witness from testifying voluntarily in matters which may incriminate him. If, therefore, he desires the protection of the privilege, he must claim it or he will' not be considered to have been ‘compelled’ within the meaning of the Amendment.”
What must a witness say in order to claim the privilege ? He must in some manner fairly bring to the attention of the tribunal which must pass upon it, the fact that he is invoking and relying upon the constitutional privilege. He must claim it in no uncertain terms. He must use some expression directly indicative of the intention to claim this particular protection of the Fifth Amendment, as distinguished from other constitutional rights. In United States ex rel. Vajtauer v. Commissioner of Immigration, 1927, 273 U.S. 103, 113, 47 S.Ct. 302, 306, 71 L.Ed. 560, the Supreme Court said:
“ * * * The privilege may. not be relied on and must be deemed waived ’ if not in some manner fairly brought to the attention of the tribunal which must pass upon it. See In re Knickerbocker Steamboat Company, D.C., 139 F. 713 [716]; United States v. Skinner, D.C., 218 F. 870, 876; United States v. Elton, D.C., 222 F. 428, 435.”
In the Knickerbocker Steamboat case, cited by the Supreme Court, it was said:
“ * * * Incriminating matter may appear but a party may not desire to resort to the privilege of not answering with respect thereto. If he does, he must say so in unmistakable language and give the reasons for shielding himself.”
In the later case of Rogers v. United States, 1951, 340 U.S. 367, 370, 71 S.Ct. 438, 440, 95 L.Ed. 344, the Court said:
“If petitioner desired the protection of the privilege against self-incrimination, she was required to claim it. United States v. Monia, 1943, 317 U.S. 424, 427, 63 S.Ct. 409, 410, 87 L.Ed. 376. The privilege ‘is deemed waived unless invoked.’ United States v. Murdock, 1931, 284 U.S. 141, 148, 52 S. Ct. 63, 64, 76 L.Ed. 210. Furthermore, the decisions of this Court are explicit in holding that the privilege against*41 self-incrimination ‘is solely for the benefit of the witness/ and 'is purely a personal privilege of the witness.’ ”
The following is from the opinion of the Eighth Circuit in Phelps v. United States, 1947, 160 F.2d 858, 872:
“There is, of course, no prescribed or crystalized formula for claiming the privilege against self-incrimination. The provision in 50 U.S.C.A. Appendix, § 922(g), (and in other recent statutes) that the privilege against self-incrimination must be ‘specifically’ claimed, would seem to imply, however, that there must he some expression, directly indicative of the intention to claim the particular privilege, as distinguished from other possible rights, and reasonably communicative of the fact that this is what is being done.”
The District Court for the Eastern District of Pennsylvania, in United States v. Miller, 1948, 80 F.Supp. 979, 982, said:
“ * * * The witness, upon oath, must claim his privilege in no uncertain terms at the proceeding in which the information is sought or he will not thereafter he considered to have been ‘compelled’ within the meaning of the Amendment.”
To this the court cited the Vajtauer case, supra, United States v. Murdock, 1931, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210 and United States v. Benjamin, 2 Cir., 1941, 120 F.2d 521, 522.
The opinion m the Benjamin case was written by Judge Augustus N. Hand and was concurred in by Judges Learned Hand and Swan. The following quotation therefrom supports my belief that a witness cannot claim the privilege by announcing that he stands on his constitutional rights, thus leaving it to the court to guess the provision upon which he relies; and that he cannot claim it by saying he relies upon the First and Fifth Amendments without pointing out the particular protection which he seeks out of the several afforded by those two Amendments:
“The appellant filed a plea in abatement in which he alleged that he had been subpoenaed to appear before a grand jury investigating the subject matter of the above indictment. He alleged that he thereupon appeared and asserted his constitutional .immunity against being compelled to testify, but notwithstanding this was examined and compelled to give testimony. Upon the trial of the plea it was shown that when he came before the grand jury he was told that he was at liberty to assert his privilege in respect to any answers to questions which might tend to incriminate him. He thereupon stated that he was going to stand upon his constitutional rights. In response to questions relating to his dealings with .Bob he answered the questions freely without raising constitutional objections. He was not only a lawyer himself but appears to have been advised by counsel. We have no doubt that his rights were not invaded. It is to be remembered that the appellant had not the constitutional privilege to refuse to testify which belongs to a defendant on trial. He was subject to call as a witness and only had the right of any witness to decline to give answers when interrogated which might tend to incriminate him. O’Connell v. United States, 2 Cir., 40 F.2d 201, 205; Mulloney v. United States, 1 Cir., 79 F.2d 566. As Professor Wigmore has said, the privilege is ‘an option of refusal and not a prohibition of inquiry’. Wigmore Evidence, 2d Ed., § 2268. The appellant is apparently under the erroneous impression that a general statement that he would stand upon his constitutional rights was a substitute for objections to answering specific questions.”
From these authorities I deduce the principle that a witness waives the privilege unless he claims it clearly, distinctly, expressly, specifically and in unmistakable terms. When the district judge said Fitzpatrick’s position “certainly left much to be desired as to whether he was actually claiming self-incrimination or not,” he was finding that Fitzpatrick had not claimed the privilege in the fashion the cases say it must he invoked if waiver is to be avoided. In order
The majority of this court agree, I note, with the trial judge’s appraisal of Fitzpatrick’s statement. They say:
“Perhaps, if we were of clear opinion that Fitzpatrick, and therefore Quinn, did claim the privilege and so must be acquitted, we should dispose of the matter finally here and now. * * * But a majority of the court are not of that clear opinion.”
We should not let the fact that Quinn and Fitzpatrick would have been entitled to the privilege, had it been invoked,
“ * * * The validity of his justification depends, not upon claims that would have been warranted by the facts shown, but upon the claim that actually was made. The privilege of silence is solely for the benefit of the witness and is deemed waived unless invoked. Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 113, 47 S.Ct. 302, 71 L.Ed. 560.”
A brief analysis of the statements made to the subcommittee by Quinn and Fitzpatrick will suffice to show adequate support for the District Court’s holding that neither claimed the protection of the Fifth Amendment against being compelled to testify against himself. I agree with the majority that their statements should be considered and evaluated “in full text and context.” When Quinn was asked the crucial question, his immediate reply was this:
“I would like to make a statement along the lines that Mr. Fitzpatrick made yesterday’ in regard to a question of that nature. I feel that the political beliefs, opinions, and associations of the American people can be held secret if they so desire.”
When the question was repeated, Quinn said:
“I decline to discuss with the committee questions of that nature.”
Thus Quinn gave his understanding of Fitzpatrick’s reason for refusing to answer the question: he understood Fitzpatrick to have relied upon the constitutional right of the American people to keep secret their political beliefs, opinions and associations. This was an obvious reference to the freedom of speech clause of the First Amendment and its correlative freedom of silence, and was by no means an assertion of a personal claim by Quinn to refrain from answering on the ground that in doing so he might incriminate himself. Having stated that Fitzpatrick’s statements could be regarded as the expression of his own views, Quinn said:
“* * * I may add I feel I have no other choice in this matter, because the defense of the Constitution, I hold sacred. I don’t feel I am hiding behind the Constitution, but in this case I am standing before it, defending it, as small as I am.”
This about covers Quinn’s examination except for this further statement by him:
“Yesterday one of the Congressmen on the committee made the statement that people brought down here were being given an opportunity to clear themselves-, as it were. I would like to say I don’t feel it is an opportunity to. clear myself. I feel the opportunity I am given here is a -choice of clearing myself at the price of assisting this committee and destroying the Constitution, and I could not join the committee in doing that.
* * * * * ' *
*43 “I think it is clear this hearing was called solely for the purpose of interfering with our election.”4
Far from invoking a constitutional protection for himself, Quinn conceived that he was defending the Constitution against the encroachment of the subcommittee.
In the light of the foregoing, I suggest that no matter what Fitzpatrick had said, Quinn demonstrated his understanding of the statements he adopted as being that all the American people, including himself, had the right to keep secret their political beliefs, opinions and associations, and that he was prepared to defend this First Amendment freedom against the attack of the subcommittee.
Putting that suggestion aside, however, and assuming that Quinn’s adoption of Fitzpatrick’s language was without qualification on his part, so as to entitle him to the privilege if Fitzpatrick had in fact claimed it, 1 now consider Fitzpatrick’s statements in full text and context. As the district judge observed, Fitzpatrick’s remarks were long and rambling. He began by asking and obtaining permission to make a few preliminary remarks. After a diatribe against the committee, he said:
“I will answer all honest questions put to me, but l have no intention of joining with the people who seek to destroy the Constitution of this country, whether witnesses or anybody else. To me, the Constitution of this country is not a scrap of paper.' It is something to be maintained. I have two sons. I want them to have the same freedoms and rights that I have enjoyed.- If I can’t leave this world a better world, I want to leave it just as good.
“The Constitution of this country provides certain protection for minorities and gives the privilege for people to speak and think as they feel they should and want to. It also gives the privilege that people can have opinions or beliefs that may be unpopular. In my opinion, it gives them the right to hold those opinions secret if they so desire. This is a protection of the First Amendment to the Constitution, supplemented by the Fifth Amendment.”
Following this, Fitzpatrick was asked the question whether he was or had ever been a member of the Communist Party. His immediate response was this:
“Mr. Chairman, in my opening remarks I gave quite a bit of my attitude on this question. I say that this committee has no right to pry into my mind.”
Upon insistence by the committee counsel that he answer “yes” or “no,” or decline to answer, Fitzpatrick said:
“I will answer the question. The Constitution guarantees the right to me and every other citizen to have beliefs, whether they are popular or unpopular, and to keep them to themselves if they see fit, and I have no intention of being a party to weakening or destroying that protection in the Constitution. I feel when I take this position that I am one of the real Americans, and not like some of the phonies who appear here.”
After this statement the following colloquy occurred between Fitzpatrick on the one hand and the chairman and counsel on the other:
“Mr. Wood. Now will you answer the question?
“Mr. Fitzpatrick. I have answered the question.
“Mr. Wood. It is not an answer at all.
“Mr. Fitzpatrick. That is my answer.
“Mr. Wood. Do you mean that is the only answer you are going to give ?
“Mr. Fitzpatrick. That is the way it ha-s to be answered, according to my conscience.
“Mr. Wood. Is that the only answer you will give to the question whether you are now or ever have been a member of the Communist Party?
*44 “Mr. Fitzpatrick. That is the only-answer I can conscientiously give you.
“Mr. Tavenner. Mr. Fitzpatrick, you were present yesterday during the testimony here. You heard it stated under oath that you are a member of the Communist Party. Do you deny that accusation ?
“Mr. Fitzpatrick; The answer to my previous question is the answer to this question. I have no intention of permitting this committee to abridge my constitutional rights on political opinions, associations, who I work with, who I meet with, what I read or think, or anything of that kind.
“Mr. Tavenner. So, in other words, you refuse to answer the question?
“Mr. Fitzpatrick. I don’t refuse to answer the question. I have answered the question.”
During the remainder of his testimony Fitzpatrick made such statements as:
" * * * I have no intention of discussing my political actions or activities with this committee, for the reasons that I have stated before.”
“I say it is no affair of the committee what organizations I belong to. The previous answer applies.”
" * * * So far as my beliefs, my political activities, my associations, affiliations, what I read, those are rights guaranteed to me and every other citizen of this Nation.”
" * * * The opportunity you give me is to join with you and these other witnesses who appeared here yesterday and say the Constitution is a scrap of paper and it gives no protection to the people and you fellows have a right to delve into the mind of everybody who comes here.”
“ * * * Do you have thought control in the United States now? Are you going to convict people oh thinking? I think maybe you fellows should read that Constitution.,” ‘
I find nothing in Fitzpatrick’s testimony which even indicates, that he refused to say whether he was or ever had been a member of the Communist Party because he feared his answer might incriminate him, or that he relied on the self-incrimination clause of the Fifth Amendment in declining to respond. It is true that he mentioned the Fifth Amendment twice. His first reference to it was a preliminary remark which I have quoted above, when he said people can have unpopular opinions or beliefs and hold them secret if they so desire. “This,” he said, “is a protection of the First Amendment to the Constitution, supplemented by the Fifth Amendment.”
Thus he described his reference to the two Amendments as being the freedom of speech and silence guaranteed to all people by the First Amendment, as somehow supplemented by the Fifth, — perhaps the due process clause. His point was that all people have the right to keep silent as to their political opinions because the freedom of speech clause guarantees that right; that he shared in that right and refused to answer because of it, — not at all because to speak of his political opinions and associations might incriminate him.
A second time Fitzpatrick referred to the First and Fifth Amendments, when he was asked whether he had solicited one Copeland to join the Communist Party, and responded by saying:
“I will not talk about my association and actions with people who I know, what I did, or anything else. I don’t think it reflects on my loyalty or disloyalty or anything else.”
The chairman of the committee then inquired :
“Mr. Fitzpatrick,’ did you ever at any time during, the year 1943 furnish an application blank and request Clarence D. Copeland to sign and make application for membership in the -Communist Political Association, or the ‘Communist Party?
“Mr. Fitzpatrick. Mr. Chairman, do I have to give you my answer again?
“Mr. Wood. I just want to know, whether you did that one thing.
*45 “Mr. Fitzpatrick. I say if I did or if I did not, regardless of what I did, it is not the affair of this committee to pry into this kind of action.
“Mr. Wood. And for that reason do . you decline to answer the question?
“Mr. Fitzpatrick. I stand on the protection of the 'Constitution, the First and Fifth Amendments.
“Mr. Wood. And for those reasons decline to answer the questions further?
“Mr. Fitzpatrick. I have answered the question.
“Mr. Wood. I say, do you decline to answer it further?
“Mr. Fitzpatrick. I have no further comment on it.”
In this instance also, Fitzpatrick made it abundantly clear he was not invoking the two Amendments to avoid giving an incriminating answer, but that he thought the Amendments barred the committee from asking the question which would pry into his mind and would violate his constitutional right to be silent if an answer were compelled. I find it impossible to regard Fitzpatrick’s statements as amounting to a ■claim to the constitutional immunity from self-incrimination. Measured by the strict standards announced in the cases I have ■cited, by which the language of a witness must be measured in determining whether he actually intended to and did claim the privilege, Fitzpatrick’s statements fall far short of constituting such a claim. As the trial judge said, they certainly leave much to be desired. Cf. Emspak v. United States, (1952) 91 U.S.App.D.C. 378, 203 F.2d 54.
I conclude, therefore, that the district judge not only did in fact find that Fitzpatrick did not claim the privilege, but also that he was amply justified in so finding, ■despite the fact that, after Quinn’s conviction, Fitzpatrick himself was found not guilty by a different district judge, 1951, 96 F.Supp. 491, who seems not to have considered Fitzpatrick’s statements “in full text and context,” but acquitted him solely because he used the words “Fifth Amendment.” I think it is impossible to spell out a claim of the privilege from Fitzpatrick’s references to the Fifth Amendment, when they are considered in full text and context. Considered in that realistic way, they show Fitzpatrick had no intention of invoking the Amendment’s privilege against self-incrimination. I would affirm the judgment of the District Court.
I am authorized to say Judge PROCTOR concurs in this dissenting opinion; and that Judge CLARK also concurs except that, being of the opinion that the claim of privilege is a highly personal one and must be made by the person claiming it and not by reference, he thinks the trial judge was right in holding Quinn could not adopt the statements of Fitzpatrick.
. Furthermore, I doubt if the question whether Fitzpatrick’s statements amounted to a claim of immunity is a question of fact at all. There is no issue as to what Fitzpatrick’s language was, — there is no contrariety of proof as to what words he used. The question was, did that language, those words, constitute a claim of immunity? Counsel for Quinn conceded during oral argument that this is a legal question and not an issue of fact. But whether so or not, it is in my view unnecessary to decide, since I think the issue of fact (if it be such) which the majority say the trial court should have determined, and for the determination of which they remand the ease, was actually decided by the trial judge, as I shall show later in this opinion.
. 4 Barron, Federal Practice and' Procedure, § 2124.
. The Supreme Court in Blau v. United States, 1950, 340 U.S. 159, 71 S.Ct. 223, 95 L.Ed. 170, held that questions as to connections with the Communist Party are subject to the privilege against self-incrimination as calling for disclosure of facts tending to criminate under the Smith Act, 18 U.S.C.A. § 2385.
. Quinn and Fitzpatrick were, at that time, candidates for office in a local union at Pittsburgh. The union election, to be held soon thereafter, was that to which the appellant referred.
Concurrence Opinion
concurring.
I agree with Judge Prettyman’s opinion that appellant was not entitled to a'hearing on- his motion to dismiss the indictment as void because ten members of the jury which indicted him were Government employees and two were wives of Government employees, but that the case should be remanded for a new trial (1) so that the issue whether or not Quinn claimed the privilege by adopting 0 the statement made by Fitzpatrick may be initially decided in the trial court, and (2) for determination whether or n'ot Quinn was aware of the intention of his inquirer that answers were required despite his objections. As the opinion states, the deliberate and intentional character of the refusal is an element of the offense. The necessity for awareness by the witness of the intention of his inquirer to require answers despite the witness’ objections, and the necessity for a deliberate and intentional refusal, are shown by the analysis in Section II of Judge Bazelon’s opinion. The formulation in Section III of his opinion of the issues involved furnishes a practical guide to the trier of the facts.