*1 UNITED STATES v. FLEISCHMAN. May Argued No. 98. December 1949. Decided *2 argued Solicitor General Perlman cause for the With him on were States. the brief Assistant Erdahl, Attorney Campbell, Philip Robert S. R. General Dubrovsky. Monahan H. Felicia O. Rogge argued John and Benedict the cause Wolf for respondent. and filed brief Me. Chief opinion Vinson delivered the Justice the Court.
Respondent Fleischman is a member of the executive of an organization board known as the Joint Anti-Fascist Refugee (hereinafter Committee referred to as the asso- 1945 and was under investi-
ciation), which, during Activi- gation the House Committee Un-American Committee investigation, In of its ties. furtherance mem- 29, 1946, March subpoenas on each issued Bryan, the and to Helen R. of the executive board bers association, demanding that secretary of the executive records of the association’s they certain April 4, 1946. Fleischman chamber on Committee’s on that date appeared of the board the other members produce the but did not response subpoenas to the reported to the thereupon The Committee records. were of the executive board the members House voted debate, House body. contempt of that After *3 report certify the Committee’s Speaker the to direct legal action. Attorney for States District to the United of the executive Respondent and the other members R. for wilful under S. default jointly board were indicted from the separately was tried 102,1 but Fleischman § in consisted Bryan,2 like that of defense, Her others. guilty of that could part contention a of Committee quorum wilful default because response to the appeared when she present not been from the The trial court withdrew issue subpoena. law, a of the Committee matter holding “as jury, 102,2 amended, 155, U. S. C. 192: 1 11 R. S. Stat. § § by the “Every having as a witness person who been summoned pro- Congress give testimony authority or to of of either House House, inquiry upon any under before either papers matter duce joint by joint or resolution any a concurrent committee established House of either Congress, or committee of the two Houses of having who, appeared, re- default, or Congress, willfully makes question inquiry, pertinent under any question to the fuses answer misdemeanor, by punishable a fine of guilty of be deemed a shall imprisonment $1,000 $100 than than nor less not more twelve more than jail one month nor for not less than common months.” ante, Bryan, p. v. 323. United States See Representa- Activities of the House of on Un-American validly Congress, tives was constituted committee of appearance.” at time of the was defendant’s The Appeals reversed, Court for the District Columbia App. 388, C. 2d judge dissenting, one 84 U. S. D. 174 F. presence quorum of a ground respondent’s Committee at the time appearance question a material The jury. fact for the court also question divided on the of whether there was sufficient support evidence to conviction, majority holding certiorari, evidence sufficient. We granted writ of 338 U. S. consider important questions these aris- under ing R. S. quorum question
The governed our decision this day in Bryan, ante, p. Bryan, States 323. Like testified before the Committee on the return day making any without suggestion of lack a quorum. That issue was raised for the time first at trial, years two after her appearance before Committee, given where she had other reasons for her failure the documents. Under the circum- record, stances disclosed we think the defense of quorum lack of was not available to her. questiоn admissibility testimony of her
before the House Committee her at trial for wilful default governed by likewise our Bryan decision in the case, where we held that R. 859, S. S. 3486, U. C. § cannot prevent read to the of introduction of testimony kind at a trial wilful default under R. §S.
There question remains the of the sufficiency the support evidence to the guilt verdict this case. That evidence part consisted of the record of the Com mittee’s unsuccessful period efforts over a of four months to obtain the papers books and of the association from its chairman and secretary, executive of which there in Other evidence knowledge.3 respondent’s
evidence of fol to establish the may reasonably be taken troduced attempts Following its unsuccessful lowing facts: executive the and from chairman obtain the records to all sixteen subpoenas issued secretary, the Committee association, com the of the executive board members in the Com appear April 4, 1946, on manding them to The chamber, produce there to records. mittee’s was to her as respondent served on addressed subpoena of the Board of the Anti “a member Exеcutive Joint power, The had its Refugee Committee.”4 board Fascist passed consisted of a resolution the executive This evidence 1945, condemning investi on the Committee’s board December Bryan attorney directing with gation Miss to consult with an and Committee, protecting toward the records from the a view February 11, meeting 1946, at which the executive minutes of a Barsky before not to the records board voted to instruct Dr. Committee, he been ordered to do. While knowledge actions, participate in her did not either of these previous the records and the board’s Committee’s efforts to obtain respect her attend with thereto was shown evidence of actions March, 1946, Barsky reported meeting in when Dr. of a board ance February concerning appearance before Committee his the board about attorney present and talked to association’s legal matter. position its follows: read as on Mrs. Fleischman served REPRESENTATIVES THE HOUSE OF OF “BY AUTHORITY AMERICA OF STATES THE UNITED OF OF THE CONGRESS Messenger: Arms, Special Sergeant at or his “To the Fleisch- Mrs. Ernestina G. hereby to summon commanded “You are City, Avenue, York New Fighting Spain’, 1 Columbus man, ‘Voice of Refugee Anti-Fascist of the Joint Boаrd a member of the Executive Activities Un-American appear be and before Committee to Representatives of the House Committee of bring chairman, and to isWood of which the Hon. John S. receipt relating papers books, ledgers, records and you all Anti- money by Joint or on account and disbursement any subsidiary or sub-committee Refugee Committee Fascist com- and memoranda thereof, together correspondence with all *5 354 acting
members jointly, Bryan to direct Miss records, of custody transfer the documents to some .5 person, other or to remove her from during office But 29, the interval between when subpoenas March were by any munications persons means whatsoever with foreign coun- books, papers tries. The said and records demanded herein are period January 1, up from including to and the date of subpoena, city Washington, this in their chamber in of April of testify touching at the hour 10:00 A. M. then and there to inquiry of Committee; matters committed to said and is not to [she] depart without leave of said Committee. not,
“Herein fail
and make return of this
.
summons.
. .”
suggested
subpoena
It is now
is defective because addressed
the assoсiation
name but to
of
a member
association,
the executive board of the
and Wilson United
(1911)
Sellew,
“The Chairman. There isn’t other than the ? executive board
“Mrs. Fleischman. No. policy,
“The Chairman. And on all matters of direction Refugee Committee, activities the Joint Anti-Fascist the executive highest authority board is the ?
“Mrs. Fleischman. Yes. Now, say
“The you you as a member of that board — Chairman. are a member now ?
“Mrs. Fleischman. Yes. you willing,
“The Chairman. aAs member of that board are now you so personally concerned, far as are as a member are board *6 before appeared its members April 4, when issued, was the executive board meeting no of Committee, the A members number of compliance. held to discuss York in New on attorney’s in an office met the board statement typewritten he to each a gave when April to read to the Committee. appeared subpoenaed had been
All of members who the subpoenas. in No one place specified the at time and members of the sixteen produced the records. Each or handed to including respondent, read board, prepared identically statements worded Committee read: These attorney. statements the association’s custody, possession, individually “I do not in requested over of the material or control books, rec- upon was served me. subpena which Anti-Fascist correspondence of the Joint ords, and custody, possession, in the Refugee Committee are R. the executive Bryan, Helen and control of Miss legal our and she secretary organization, either I do not have of this material. Since custodian books, rec- my possession, custody, or сontrol I subpena, in the ords, and documents described your order' unable comply am them.” to whether
Upon by the Committee as being questioned production she, individually, give would her consent question was that that books, respondent’s answer willing Congress those you to see permit now this committee subpena? for in that called books records It would know what I would do. I don’t “Mrs. Fleischman. meeting (Emphasis supplied.) require a the board.” power to transfer testimony board had was There also that, person and Bryan- some other custody from of the records very February meeting on that fact, had been the vote at the question. pertinent”; only “not that she would decide at a
meeting the board. Respondent and the other members the board were jointly charge they “appeared indicted on a before Congressional City Washington, Committee April District of Columbia, 4, 1946, pro- but failed to *7 duce the in the subpoenas, they records called for had power do, thereby to wilfully made default.” As pointed we have out, there is evidence to support charge that the records were joint under the control of the members of the executive boаrd and that indi- members, vidual acting power together, It contended, them. is however, (in that respondent respect no different from member) other had no individual records, control over the and that there is thus no evidence the nonproduction of the records resulted from anything personally did or omitted to do.
It seems elementary that only by manner which a duty requiring joint participation persons several may performed be by is a combination of individual performances. And conversely, perform failure to such duty is the result of a by failure some all persons who have been ordered to together act discharge responsibilities. their This failure is not neces- sarily the result a conspiracy, which premises agree- an ment some kind. may, One either alone or in concert with others, perform fail to his part individual of a task joint requiring participation.
When accepts one an joint office of responsibility, whether on board of directors aof corporation, governing board of a municipality, or any other position compliance which with lawful orders requires joint action a responsible body of he a member, he necessarily an assumes individual act, responsibility to so, bring do about power
within the limits his may the efforts be with the order. compliance If nothing. he will avail of the board of one member of the punished because can, he will not all he does Sellew, 99 U. S. Commissioners v. of others. recalcitrance that, compliance But hold because (1879). corporation aof directed to the directors order action common several requires organization or other responsible individually of them is persons, no one comply, effectually organization the failure legisla- beyond the reach organizations to remove such and the This Court state judicial commands. tive adopted matter6 have which have considered courts States, 221 S. U. contrary In view. Wilson proposition stated (1911), Hughes Mr. Justice thus: com- corporation is effect
“A command to the
*8
for
responsible
officially
who are
mand
those
they,
If
writ
apprised
its affairs.
conduct of
prevent compliance
corporation,
directed
power
take
action within their
appropriate
for
fail
duty,
no
performance
corporate
they,
less
itself, are
corporation
guilty
than the
of disobedience
6
analogous
principle
in the
situation
applications
of this
For
City
see State
mandamus,
v.
by noncompliance
presented
Oak,
Town
Live
132,
(1936);
v.
126 Fla.
358 may punished Id. at 376. contempt.”
(Emphasis supplied.) See also Commissioners v. Sellew, supra.7
Nor is a distinction to be drawn on the ground that corporation was there involved while the Joint Anti Refugee Fascist Committee unincorporated is an associ ation. Brown v. United 141-142 U. S. (1928), makes it subpoena clear that a directed to an unincorporated association and its is equally officers valid. If the legislative right committee had a to demand the records, the directing officers are quite association responsible production for their as if they were cor porate White, officers. Cf. States U. S. 694 (1944).
The question that remains is whether, after introducing evidence that the board had power the rec- ords, that it had not done so, and that each member the board had read the identical quoted statements above suggested It is distinguishable Wilson case is because it may that, be inferred from the according fact counsel, to Government the Government had been after the “in way records one or another” nearly subpoenas month that the upon duces tecum served supplemented by directors had been oral orders. There is not one supports word the Wilson record that such an inference. On the contrary, grand jury’s presentment obey was not for failure to obey oral commands “for but failure to a certain issued Court, following: out of this dated October 1910.” Vide the presentment “The : precisely Court What is the ? Jury “Mr. presents : The Grand [Government Counsel] Wise corporation in contempt obeying of this court in not the sub- *9 gentlemen poena, contempt they that these are in of Court in that subpoenas
have known had and actual notice of .the issued to the corporation requiring books, it to these and in defiance process court and its failed to take action to have corporation comply process, their with . . .”. argument respondent The that upon was tried and convicted theory upon different from that which the is evidence here found record, sufficient to sustain the conviction is refuted has the Government noncompliance, as his reason mem- individual proving that each further burden power was within his had not done that which ber It Committee’s order. bring compliance about before respondent’s prepared statement may well be that ques- her answers to the Committee’s the Committee and satisfy require- that tions are sufficient themselves had clearly that they ment. For indicate prepared The personal duty anything. no to do assumed Com- was, course, patent evasion statement that each member of stating demands. While mittee’s individually did have control not the executive board it that records, deny, not, not could over the it does sub- power jointly comply had with the the members act subpoenas required they poenas. Since the chairman and the previous demands on the jointly —the of no avail— secretary individually having been executive individually had no the members the statement completely irrelevant. power comply is respondent whether asked And when the Committee to have permit the Committee she, would persоnally, of the Wilson case. concerning import is full of discussion following representative: . . . Let’s look at respondent]: “MR. ROGGE [counsel Barsky passed Appeals again, which the Court [in
Wilson case says your if members have States, 167 2d F. 251]. action; appropriate corporation right and fail take to direct the propa- to be a guilt did Ernestina have here in order to be free taking say before action— go gandist to the board members responsibility on the (interposing): When she takes “THE COURT along with flow responsibilities board member certain of an executive it. she does that when The evi- executive board. She is a member “MR. ROGGE: you get that, what also shows . . The record has shown that. . dence guilty here, to see Ernestina, not to be in order down to is that taken, and I do action was it some sort an affirmative Wilson required even case.” under think that *10 books, again access to the her answer was an evasion. pertinent “I I say She said: don’t think it is what should do a week from now.” difficulty position
The with that that it is not her nor say other member of board to that she up would day make her mind next week. return had arrived. No so one much as hinted there had been no time to members had act. The gathered attorney’s April 2, they on when office received their statements. There was evidence that gathered some had informally members elsewhere to dis- question compliance. cuss the present In fact all were in the anteroom of the Committee’s chamber on the morning April 4. If had slightest there been the bent toward compliance, opportunities were there. When respondent appeared Committee, before the she was asked effect, time, of that whether party she was a joint to produce refusal you now, records: “Would right now, here give your consent to this committee books ?” As [see one of the members records] the Committee stated to main respondent: “That thing, the whole Her case.” answer nowas answer. may argued, however, respondent may adopted position of the other members of the board only after had bring tried faith good about compliance subpoena. with the Or perhaps she been necessarily ill or out of immediately prior April town Granting may these other excuses nonaction exist, must negative each, Government or was the burden to advance them as defensive matter?
We think that fairly the circumstances of this case bring play into the familiar doctrine in criminal cases that “it is not prosecution incumbent on the to adduce positive evidence support negative averment truth of which is fairly indicated by established circum- *11 readily disproved if could be untrue
stances and prob- or other evidence of documents production or Rossi possession control.” ably the defendant’s within and author- 89, (1933), 91-92 v. United 289 U. S. question govern ities cited. The considerations in dis- Cardozo Mr. Justice been well stated have constitutionality of a question cussing a similar —the in proof of a criminal the burden statute which shifted He said: prosecution to the defendant. limits manifold that within
“The decisions are may be proof fairness the burden reason and prosecutions in criminal lifted from the state in substance limits are cast on defendant. The enough to proved shall have these, that state to required to be it for the defendant just make expla- or excuse repel proved has what been balancing of con- upon or nation, at least knowledge for opportunities or venience aid found be an of the burden will be shifting subjecting the accused without the accuser oppression. hardship or experience must burden, of the “. . . For a transfer inculpatory has be the evidence held to teach that if this at , ... or significance a sinister at least a mani event lacking, there must be times be proof oppor disparity fest in convenience instance, gen where as, tunity knowledge, who is every one applicable prohibition eral range himself within the bring unable Evidence, 1, 79.* The Greenleaf, Vol. exception. application of this footnote reads: “Instances *The Court’s typical profusion. that follow are principle cases can cited King Turner, a defendant Sel. where examples: v. 5 Mau. & whereby having game possession in violation of a statute in his crime, the burden held to have generally a possession was list is not may exhaustive. Other instances develop may arisen or in the future where the balance can be convenience redressed oppression without through procedural defendant the same ex- pedient. The decisive considerations are too vari- able, too much distinctions of degree, dependent too analysis last upon a common sense estimate fairness of facilities of proof, to be crowded into a formula. One can do no more than adumbrate sharper them; specific definition must await the case California, arises.” Morrison as it 291 U. S. *12 (1934)9 88-91 situation,
In
manifestly,
prosecution
this
is under
practical
a
if
handicap
serious
it must prove
negative
proposition
respondent
did not or had no good
—that
try
reason
failing
comply
with
insofar as
possibilities
she was able. The
of time and
proving
special qualifications (cf.
States,
Yee Hem v. United
his
[268
Spieres Parker,
178];
U. S.
also
v.
1
144, per
Mansfield);
T. R.
Lord
Fleming
People,
329, prosecution
v.
bigamy,
27 N. Y.
a
where on
proof that
the defendant
marriage during
had contracted a second
wife,
the lifetime of his
upon
prove
first
the burden was laid
him to
exceptional
;
circumstances
marriage
that would have
made
lawful
Deyo,
finally
Potter
361, 363,
and
such cases as
v.
19 Wend.
Turner,
United States v.
(typical
others)
363 defy as inclusive range wide circumstance are such affirma- hand, the burden On the other rebuttal. to under- oppressive not an one for tive was knowl- are within her take; peculiarly the relevant facts evidence upon merely to introduce edge. She was called subpoena, steps receiving to what took after tending if evidence to excuse action, she took no or, presumption does not lose the Respondent her omission. in a criminal that surrounds the defendant innocence operate presumption That continues prosecution. beyond a reasonable proof guilt until overcome proof, be confused with burden of doubt and is not to and manner of affecting merely is a rule time ed.) proof. Wharton, (11th Criminal Evidence See 199-204.10 §§ This buttressed the fact that such burden conclusion
ordinarily corpo upon governing is cast members of the boards orders, complied with court and associations which have not rations contempt charges. they brought In Wilson into court on when are (1911), Wilson, president where v. United U. S. custody them and had removed corporation, the books corporation served home, five of its directors were to his subpoenas produce. appeared in court and The directors *13 although they contempt did the books held in not were not opinion: directors because, in its “On behalf the as this Court noted obtain they made efforts to had before the court it stated grand jury, that Wilson production but for before the the books They a presented minutes of the surrender them. had declined to day these at which held on that meeting of the board of directors subpoenas], con with those who had been served directors e. [». demanding board, passed a resolution stituting majority of the a copy for press books called possession of the letter of Wilson the Federal same before the by subpoena production ‘for the the the ” contrasting actions Again, Wilson’s Jury.’ Id. at Grand appellant did directors, “The the stated: of the Court with those part; his corporation’s] any right on attempt not to assert [the corporation, its attitude antagonism so far as to the was in conduct including appellant, directors, the majority of A the is shown. 364 though
Even we assume, therefore, contrary to the respondent’s reasonable inferences to be drawn from Committee, may statements before that she compliance made effort bring some about with the subpoena, or had so, some excuse for to do failing we think that presented under the circumstances here upon burden was her to present evidence to sustain such And, defense. the absence of such we evidence, conclude that by evidence adduced the Government amply sustains the Respondent conviction. is no more any guilty less than other member of the If board. escape prosecution she can by remaining quiescent, so can all the If others. hers is a valid defense, then all corporation the directors of a need do when they corporation are served with subpoenas is to discussing refrain from сompliance with the order. No one need make attempt comply, none them “individually” has control over the action —or nonac tion —of corporation. A stratagem transparent so 11 does not cast shadow of substance. appeared urged before court and comply their solicitude with They presented the writ. action, their formal meeting taken at board, they' in which appellant delivery demanded of the production of the books grand jury.” before the Id. at 376. considering practice In it should be noted criminal con- tempts, cases, as in presumption criminal obtains; of innocence proof guilt beyond doubt; must be a reasonable and the defendant may compelled against not be Gompers to be a witness himself. Range Co., v. Bucks & 418, (1911); Stove 221 U. S. United Goldman, States v. (1928); 277 U. S. 235-236 Michaelson v. (1924). U. S. proposition that one who compliance tries but fails to obtain joint requiring persons action of several has “empty gesture” made a useless and compelled which should not be enough the courts overlooks the fact that if members of the governing body required attempt make the subpoenas their *14 joint ordinarily will еffort be successful. In the Wilson case itself dealing are not emphasized we be should but by one committee witnesses summoned the duties of by summoned persons obligations owed with the , Representatives or House of authority of the Senate by that designated any person group or appear before procedures practices in the authority. Reforms by persons demanded vigorously are certain committees not be We would Congress. within and both without approval either expressing in this understood case if remedy, practices. But the disapproval of those opera- the effective certainly destroy is not to needed, is if necessary result which is the committees, tion of all A compel facts. the disclosure of they cannot may flouted with if its orders document a sterile impunity. number of contentions
Respondent advances a Appeals. We do by the passed upon Court were not judgment at this time. not decide them Appeals is Court of
Reversed. Douglas took Clark Justice Justice Mr. Mr. of this case. decision in the consideration or part no Frank- Justice Black, with whom Justice Mr. Mr. dissenting. concurs, furter in this evidence that thеre is sufficient The Court holds Fleisch- support the conviction record Whether agree. I cannot § man R. under S. what conduct depends primarily sufficient evidence is is re- what action 102 and R. S. made criminal contempt the directors imprisonment between the difference upon gesture” calling Wilson “empty acquittal was their and their 10, supra. note records. See *15 366
quired by subpoena a My duces tecum. views on these questions differ drastically so from those of Court present that I them, shall and the they conclusions dictate, before turning to the opinion. Court’s
I. R. provides: “Every §S. 102 person having who been summoned as a authority witness of either House testimony to Congress, give produce or to . papers . . willfully makes . default, guilty . . shall be a deemed misdemeanor . . .” This . criminal statute limited is just its types terms to congressional two a (1) orders: subpoena give to a testimony, (2) pro- papers. duce type latter of order is involved here. comply Refusal to with a subpoena produce papers can be punished only if the has power produce. witness a complete is defense for him to papers show that the are not in possession his or under his control. For a subpoena duces tecum does not a require witness “to sue and labor order to obtain possession any instru purpose ment from another for the production its after- wards by himself . . . .” Munroe v. United F. 107, 111-112, quoting Lord Ellenborough’s opinion Amey Long, v. 9 East 483; general see the discus in Notes, sion 1915B L. R. A. 980-985; 32 Am. Rep. St. A produce command to command to get others to in producing. assist Of course Con gress, court, like powers broad supplement has its sub poena with other requiring commands to take witness specific steps affirmative reasonably calculated remove production. obstacles to But even though disobedience supplementary such can punished orders at the bar of Congress contempt, Jurney MacCracken, S.U. it does not come within the scope limited of R. S. Only by § 102. importing the contempt broad powers of Congress into criminal statute can this Court say expansion I to such cavalier agree
it cannot does. provision. criminal thus limited under R.
Prosecution S. contempt, far range proceeding narrower than is un- Congress. or at the And even either court bar *16 contempt punishment power, broad der the notoriоusly comply has justifiable only person when failed to is do, and precisely an what he must specifying order what do Cer- power when he has himself to ordered.1 in precise no standard should be established tainly less prosecutions criminal statute. violation Cf. 314 S. 310-311. v. United U. Pierce case unmis- light, the evidence this Viewed disobeyed takably proving short of Fleischman falls Government subpoena or violated the statute. The had the sub- establishing did that she received succeed documents she knew what poena, approximately But produce, produce to them. yet tó failed required power offense—that had ingredient an of the essential April com- on 4—remains produce to those records does Government pletely unsubstantiated.2 The except power had to contend that Fleischman And, members the board. by jointly with other acting above, subpoena addressed for the reasons stated on imposed an individual board member Fleischman joint produce, or initiate duty prod her no others production.3 action aimed at 1 applica general principle components of this and their two The (D) (A) in II and II to this case are disсussed tion infra. 2 deficiency in II attempt to offset this is discussed The Court’s (D) infra. required been joint action would Whether set out for the reasons completely irrelevant the board is addressed to the noted, however, an order It should in note infra. action; addressed to joint one entity necessarily implies board as an sufficiently Moreover, the former not. does individual member scope Because com- limited of R. S. and the plete proof pro- power absence Fleischman had subpoenaed documents, duce the her conviction of crime created that statute should be set aside.
II. Court not dispute The does that the insuf- evidence is ficient to uphold es- Fleischman’s conviction under the principles tablished outlined above. Rather it con- theory which, structs novel legal plausible however on surface, analysis. will not stand detailed chain of reasoning legal theory hangs on which its appears to be this: Fleischman and other members of the executive board separate subpoenas were served with ordering papers to produce each association April 4; Bryan, secretary, possеssion the executive *17 papers; subpoenas imposed the the individual on each a personal duty board member do to all each could bring joint about action that production; would cause performed had Fleischman her individual part of this joint task, might prevailed pass have on the board to a might Bryan resolution which produce; forced have Fleischman failed to show that she had all done she could bring result; about therefore Fleischman was properly wilfully convicted the crime of the disobeying subpoena addressed to as her an individual member of board.
In this intricate chain, certain crucial links are en- tirely missing and others are far too weak to a sustain criminal conviction:
A. The theory foundation the Court’s is that a sub- poena duces tecum addressed to an individual board mem- specific exactly if it do; tells the board what the latter must tell case, recipient the individual what to do. In either must power punishment to do is ordered justified. what before bring do “all he that he can”
ber includes the command subpoenaed board action to joint about expands scope of the sub- papers.4 This doctrine boundaries, its traditional poena beyond tecum far duces precedent for in Part I No supra. which are outlined two cases relied on expansion be found can such by the Court. Sellew, 624, merely approved 99 U. S.
Commissioners county a a writ commission of mandamus issuance specifically specific a date as specific action on ordering traditional statutes. Such is the required by Kansas judicial order been of mandamus. Seldom has function Fleischman, the sharp In contrast to com- explicit. more guess to hazard the least required were not missioners judicial mandate. satisfy the action would to what applicable state statutes told mandate and the Both to do.5 precisely them what States, 221 opinion in v. United Nor does the Wilson to produce an order 361, support today's holding U. S. further to take requires person, orders, without papers produce. The Court relies action others to getting corporate required can be to take a dictum that officials corpo- performance of a “appropriate action” to secure however, duty. dictum, must be read rate Even president of сor- Wilson, of that context case. addressed, had actual poration to which before subpoenaed Appearing records. custody he re- corporation directors, with several jury grand *18 entity, subpoena as was also addressed to the board an While knew of it. There utterly that Fleischman ever no evidence there subpoena had Court, if no fore, the case as board like the we treat ever been issued. Court’s 6 of the string cited in note The of mandamus cases No general reason. inapplicable opinion equally for the same are position. supports the case cited Court’s produce. power fused to denied to make directors contempt him In resulting proceedings, do so. attorney complained prosecuting Government “in way had after the records one or before been another empha- this Jury nearly same Grand month.” He had many frequently appeared sized the directors grand jury, spent before indeed the entire In preceding day frequent there.6 view prolonged appearances grand of the directors before the jury, passing acquaintance grand jury еven a with how a operates way would make it inconceivable that “one or did another” not include oral orders to take action aimed forcing at Wilson to turn over the records. Whether specific justify holding such orders were enough in contempt, directors or whether failure to take justify punishment action would for violation of the sub- poena ordering without itself first the directors to take specific steps, became immaterial when the directors passed ordering produce. a resolution Wilson to The di- innocent, only rectors were found and the issues before guilt. this Court involved Wilson’s Read context, the dictum on which relies support the Court affords no for its whatever conclusion here that a subpoena, itself, imposes amorphous duty “appropriate action” to get produce. Moreover, others to citation of Sellew authority case as clearly the dictum indicates that “appropriate action” would be designated have to by specific and commanded orders. Nothing the Wil- opinion fairly son can interpreted be supplanting, casting on, even doubt the traditional rule that failurе take action required punished can only order be 6It appeared response should noted directors to a corporation. Fleischman, they addressed Unlike subpoenaed individually. supra. were not See note
371 unequivocally and specifically, clearly, if the action is that order.7 commanded for only given discarding Apparently reason failure to construe rule is the Court’s statement joint by mem requiring action an individual beyond “remove organizations bers of a board would such That judicial and commands.” legislative the reach of A wilfully failing is without foundation. custodian fear S. 102. can be under R. prosecuted § records anyone abetting” or 3, “aiding C. § And under 18 U. S. and is simi principal in that offense her also becomes a larly subject Moreover, S. 102. conspiracy to R. for certainly provide grounds prevent production would question Fleischman’s conviction. Thus there is no if had been sufficient conviction could be sustained there actually encouraged aided or the cus evidence that she accomplish conspired todian’s refusal or produce, And in the that result.8 rare instance where these sanc 7 States, See, g., 648, е. v. United 295 F. 650: “Cer McFarland violating tainly may punished contempt be for before one order, specific, terms of such order should clear and court uncertainty in to whom leave no or the minds of those and doubt Berry Corp., F. 2d v. Midtown Service 104 it addressed.” See also 107, 111, York Mer L. and Labor Board v. New A. R. court, Co., F. 2d 952. In the latter case the chandise by Judge Hand, opinion Learned characterizes as “cardinal” the of an for the disobedience order punished rule that “no one shall be definitely prescribe applica For what he is to do.” which does not proceedings for general contempt enforcement of the same rule to tion 266 U. S. decree, Terminal R. Assn. United of a court see 17, 29. actually charged Fleischman One count of indictment conspiracy. was dis That count other members of the board abettor,” that guilt as an “aider As Fleischman's missed. charge. In jury by judge’s trial question was submitted was evidence suggest that there affirming, not even this Court does Bryan encouraged or ever aided Fleischman had to show that *20 unlikely compliance, Congress tions seem to secure can upon fall back its always supplementary arsenal of orders enforced by congressional contempt proceedings: officers authority to call board can meeting be ordered so, do and board members be can ordered to vote for resolutions production. calculated to foster can be safely presumed that capable of organization escaping barrage this would brought not be into line by today’s expansion R. S. 102. A not made “sterile” holding only that it commands what it it says commands. fact,
In new Court’s doctrine creates a far danger genuine more than what it allegedly avoids. While in contempt proceedings just witness in doubt as to what action can given precise demanded be more orders be- punish fore tribunal him noncompliance, decides no such flexibility prosecutions exists criminal under applied R. S. § 102. As sweep- such prosecutions, the requirement ing that a not custody witness or con- having trol subpoenaed documents do “all he can” to must production places their him an secure unfair dilemma. Caution dictates that he “sue and labor” to obtain the papers, great however however useless effort and expense. On other common hand, sense counsels practical he make satisfy such efforts as would reason- jury able not until the jury spoken has will he know —and guessed right. whether he today’s opinion
Not even after can or, Eleischman — matter, anyone precisely steps else—know what were anyone else. That Fleischman's upheld conviction cannot be under existing inadequacy doctrines does not establish of those doc- any purpose except convicting guilt charged trines for one whose as proven. has not been supra. Part See I production of documents
required encourage of her to produce.10 herself could which she upholds theory if on which Court Even B. is, might it tenable, conviction were Fleischman’s from completely different expected novelty, from its An essential element the case was tried. theory on which charge was his instruction that judge’s trial if guilty only find Fleischman it found jury could other members of execu in concert with “acted Court, with production. But the prevent tive board” to *21 on this her attempting support out even to conviction involving completely different theory, theory substitutes a 11 whether proof problems and evidеnce. The issue persuade others to attempt had Fleischman failed reason being tried, not was no produce was there question it. concerning to introduce evidence for her The a as a exudes is not whether the record whole on review guilt, but whether the evidence impression general presented on a the issues supports finding guilt v. by charge. trial Bollenbach jury judge’s 607, U. This Court should 326 S. appellate courts forbidding mandates state heed its materially different any theory on convictions uphold presented jury. to the case was from that on which the Arkansas, v. 333 U. S. 201-202. Cole See anything slightest indication that Fleischman is not There fostering compliance with prospect done even had could have (D) Apparently convic Fleischman’s subpoena. See II infra. empty failed to make some undefined being upheld because she tion gesture. by quoting change justify its of theories attempts to The Court trial attorney and the Fleischman’s argument between from bench case theory on which argument alter the cannot judge. Such charge. by judge’s jury to the submitted heavily by C. Court relies on statements made congressional Fleischman before But committеe. expressly by these statements are made inadmissible provides S. testimony TJ. C. no given any a witness before committee of either house “shall be any used as evidence in proceeding against criminal him except any court, prosecution com- perjury in giving testimony.” See United States mitted such ante, Bryan, pp. 323, 346.
Nor does Fleischman’s if testimony, even admissible, support the inferences drawn it by from this Court. Weighty significance is her say attached to refusal to how question production she would vote if a board held. it meeting say meeting were Suffice that no had following receipt subpoena, been held her no future meeting past relevance whatever to the offense with which was charged, and the subpoena did order her take action at meeting anyway. board See Part I supra.
Equally unwarranted is the inference drawn Court from the fact board Fleischman and other individual denying members read same statement possession or control documents. subpoenaed over the *22 prepared by lawyer, The Court refers to this a statement, as a “patent evasion” of On the committee’s order. the I contrary, regard power pro- the denial individual to a complete adequate response duce and to indi- subpoenas. surely, vidual although And the Committee permit would not counsel for to com- witnesses enter the room, always mittee get witnesses have been to entitled qualified from a a lawyer present advice statement prepared himby having without guilt inferences of drawn from that fact. produce
D. Power to ingredient is essential of any offense under R. S. and the indictment necessarily alleged that all” “each and of the board members had such power. proof produce power Thus Fleischman’s to subpoenaed papers undeniably is Court’s vital theory of the case. only tending power
The the board evidence to show policies produce authority itself is that it over the association, suspend and activities of the and had power Bryan any Assuming at that regular meeting.12 board Bryan board could have ordered under threat the Wilson case demonstrates pro- that suspension, spective can- potential obedience a board order to such accurately supremacy from not be inferred merely And record is еvidence to board. barren support finding Bryan complied would on with a April 4th board order. important theory ques-
Equally under Court’s production. power bring tion of Fleischman’s own about membership Court holds that on the her gave board it one-eighteenth “power,” the board’s official But her fraction enough support conviction. considers “power” only at an official of official could be exercised meeting. showing any meeting was There no held April 4, 29 and that Fleischman had between March I meeting.13 And do not understand power to call such testimony primarily evidence comes from Fleisehman’s Even this committee, congressional should therefore held before the Bryan, ante, pp. United States inadmissible. See meeting Fleischman have called a The Court intimates that could attorney’s gathered in an office members were when board April 2d, gathering of members elsewhere. or an informal valiantly prosecutor at trial noted that labored should be attorney’s or attended visited the office to establish that Fleischman Despite meeting. completely in this effort. informal He failed some evoked witnesses, response reрeated questions to several one single communicated with indicating Fleischman ever saw or *23 during time was sub the she the interval between board member poenaed met in anteroom the time the members say “power produce” that to the Court solely criminally Fleischman failed exercise was some personal imagined ability, unconnected with her official cajole a capacity, attempt calling chairman into meeting ordering production. merely a
Upon showing that the board controlled the “policies and that activities” the association and she imposes a member, board the Court on Fleischman was “power disproving allegation the crucial burden produce” by “all establishing that she had done she up In has bring production. could” to about effect it set a automatically presumption that board member every has and has power, such saddled Fleischman pre- proving by showing burden of that the her innocence sumption In should not to her.14 absence of apply showing authority oppor- an some that to call or tunity meeting, to vote at official board or at least had members, substantial influеnce over other board this is Tot every arbitrary rejected as presumption bit suggestion might As for Committee. that Fleischman have called meeting chambers, strange anteroom of the Committee’s it is doctrine to assert that the Committee’s command' that members all automatically appear enough require that each member call meeting. wanted, If could that was what the Committee it meeting ordered itself. equated any event, “opportunity” meeting
In to call a cannot be meeting. “power” There is no evidence even with official to call authority. intimating she had such theory sharply principle established This contrasts with the officials, corporate persons, be held and association like other can guilty only crime, of their for their own and not the crimes Any they participated. proof no associates in which there is country. startling contrary in the laws of this doctrine is a innovation U. S. Carpenters v. See Brotherhood 787; 16 Notes, 33 A. L. R. 406-407. also See cases collected (N. S.) 333; L. R. A. Ann. Cas.
377 United, States, directly bars 319 S. 463.15 That case U. however proof, of use of such device to shift burden And without prosecutor. it would for the convenient clearly insufficient device, the Government’s case was support to the verdict. re- rule,
The time-honored Government it quired every ingredient offense prove essential preservation provides safeguard essential charges, oppression. against governmental individual liberty in order to sustain the conviction should not be sacrificed guilt has of a whose the Government single defendant plainly failed prove. merely
If above theory the Court’s one four, all flaws, reasoning chain of would break. With its Appeals collapses. judgment it the Court should be affirmed. Frankfurter, dissenting. Justice
Mr. “willfully obeying makes default” in Anyone who records before a committee valid 1857, guilty been of a federal Congress has, ever since opinion. 9 of note the Court’s See rule, justification pre- minimum for such a the Tot Under insignificant general experience that the most sumption would be can,” to secure power, if she “does all she member of a board has Experience production held custodian. of documents its board anyone only support premise; as familiar fails know, most loose-jointed nonprofit should associations structure wholly to the executive members or boards are subordinate most “many significant secretary chairman. This is one of the and the obviously from business associations differ respects” in which such White, 694, Not a v. S. corporations. United States U. See 89, or Morrison Cali- single line in v. United 289 U. S. Rossi retroactively cre- fornia, 82, supports “presumption” 291 U. S. membership produce,” mere board “power ated here. As basis of custody or possession, control. is no substitute for January 24, 155, offense. Act of 11 Stat. 1857, R. S. 22, 1938, § amended Joint Resolution June This 52 Stat. now U. S. C. 192. was the offense prosecuted. The trial court prosecution: put jury theory thus to the *25 “If you find that members the executive board, directly or indirectly, custody had or dominion subpoenaed and control over the records and could produced wilfully for, records called but so, failed refused to do and that the defendant Fleischman acted in with other concert members board, throughout the executive either or at point, prevent getting committee from the sub- records, find poenaed you may then the defendant Fleischman if find guilty, you that the other elements proved by hereinafter set out have been the United beyond a States reаsonable doubt.” only “other element” that bears on the issue sufficiency explanation was the evidence court’s requirement the default be “will- made fully” means that the default must be “deliberate intentional.” against respondent
The indictment also had count her and others charging conspiring to make willful default of congressional subpoenas. inappropriate suffi- consider whether evidence would have been bring respondent expansive range cient to within the or conspiracy charge whether evidence that could have been charge admitted under such a but was not admissible in trial For prove guilt. this would have sufficed to its own con- good reasons the Government dismissed the A careful spiracy charge against study Fleischman. compels the record the conclusion that Edgerton, J. con- in veyed fairly and all that balance Government proved on which against charge on the she tried:
“Appellant testified without contradiction that produce they could not the records because were possession not her or control. She refused express willingness unwillingness they either or produced.8 Even refusal did occur until not questioned by Congres- she was members of the April sional 4. The records were Committee subject possession Bryan, by one control Executive Board of about 18 members of whom appellant April Bryan, was one. before Long directed other members of the Board but appellant, determined not no appellant records. evidence that ratified There approved the action the other members part government says taking Board. The ‘In *26 combined action to withhold records from Con- gressional appellant the acted at her own Committee I peril.’ evidence, But have not been able to find pointed out, appel- has and no evidence been that the Fleischman; going you “8‘The I am ask now Chairman: Mrs. to requesting you personally your personal permission. I am to permit Congress to have to those books. this committee of access you you do, to you give it or not? far as are able will Will to us So give toit us? “ my opinion, expressing is Mr. Chairman. ‘Mrs. Fleischman: That say do. I what the board will cannot “ I asking board will do. am not what the ‘The I am Chairman: asking you will what do. “ thing comes to the know, the do not because ‘Mrs. Fleischmаn: I say I pertinent is to what discuss, think to and I don’t it board meeting.’ special It is from now. should do a week than this nearer nothing record that comes else “I know produce the appellant refused to supporting inference that to unwillingness them.” produce expressed or records lant took in a action withhold part combined suggested might has that she have records. been records. Board, Bryan, produce asked the or But there no if them is evidence that had asked she they no complied. would There is evidence nonproduction the records commit- anything appellant resulted from teeroom either or anything did from omitted to do.” 84 U. S. App. 388, 390, 519, D. C. F. 2d 521. produce papers was summoned be- a congressional
fore committee and them. did prosecuted For this a person non-action she was who “willfully papers. producing makes default” in not I giving penal scope believe statutes a their words speech.” would receive everyday McBoyle “in v. United 25, Ward, U. S. see Roschen If in a U. S. criminal statute is to language English speech, be read with the normal meaning of “willfully conveys surely thought makes default” non-production papers substаntial tie between the the non-action which it attributed. This record system of the under proof punitive barren our justice respond- would a jury have warranted find that passively ent actively responsible non- production papers produce. she was asked to imply slightest
This conclusion does not relaxation duty obedience to the lawful con- commands gressional power in exercising committees of testi- their monial compulsion. Daugherty, McGrain v. 273 U. S. *27 But regard power not does call slightest requirements relaxation of our criminal A process. penal applied beyond statute must not terms, its crime charged defined it and an by proof beyond indictment must be a established reason- able doubt. should have well be that the House committee may meeting a respondent try
asked to have convened the custodian of the asking executive board with view to procedure suggested them. Such records to v. by what was done Wilson S. U. she would have Had refused 361, 370-71. contempt proceeding for disobedi- subjected herself to of a command of the committee. But this ence As to the offense for which she was proceeding. such I prosecuted, agree Judge Edgerton acquittal should have been directed.