NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ART METALCRAFT PLATING CO., Inc., Respondent.
No. 13880.
United States Court of Appeals Third Circuit.
Argued May 11, 1962. Decided May 22, 1962.
303 F.2d 478
Steven B. Silverman, Philadelphia, Pa. (I. Herbert Rothenberg, Philadelphia, Pa., on the brief), for respondent.
Before McLAUGHLIN, STALEY and GANEY, Circuit Judges.
PER CURIAM.
It is not contested here that (1) Respondent violated
The record in this proceeding gives firm support for the decision of the Board that Respondent had violated
The order of the Board will be enforced. A proposed decree to that effect may be submitted.
UNITED STATES of America, Appellee, v. Peter SEEGER, Defendant-Appellant.
No. 293, Docket 27101.
United States Court of Appeals Second Circuit.
Argued April 9, 1962. Decided May 18, 1962.
303 F.2d 478
See also 180 F.Supp. 467.
Arthur I. Rosett, Asst. U. S. Atty., Southern Dist. of N. Y., New York City (Robert M. Morgenthau, U. S. Atty., and Irving Younger, Asst. U. S. Atty., Southern Dist. of N. Y., New York City, on the brief), for appellee.
Before SWAN, MOORE and KAUFMAN, Circuit Judges.
KAUFMAN, Circuit Judge.
Peter Seeger appeals from a judgment of conviction entered after a trial before Thomas F. Murphy, District Judge, and a jury, on an indictment charging him
Seeger, a musician and folk singer, appeared as a witness before the subcommittee on August 18, 1955 during hearings which were being conducted on the subject of communist infiltration in the field of entertainment in New York.2 Although he answered a number of questions asked by members of the subcommittee and the subcommittee‘s counsel, Seeger refused to discuss allegations that he was connected with communist activities or had participated in functions allegedly sponsored by the Communist Party. The refusal was not based on a claim of constitutional privilege under the
Nearly one year later, on July 25, 1956, appellant‘s refusal to answer those questions was reported to the House of Representatives; and the House thereupon voted to certify the report to the United States Attorney for prosecution. On March 26, 1957 the ten count indictment, predicated on appellant‘s refusal to answer ten stated questions, was filed.5 Seeger pleaded not guilty, and subsequently moved to dismiss the indictment. In support of this motion it was argued, inter alia, that the indictment was defective because it failed “to state the authority of the sub-committee to conduct the inquiry before which the defendant was summoned as a witness.” The motion was denied in an oral opinion delivered from the bench.6
On appeal, Seeger contends that his conviction should be reversed on several grounds. Among them he challenges the authority of the subcommittee, the manner in which the hearings were conducted, the Grand Jury proceedings, and the adequacy of the indictment; moreover, he urges us to consider several errors allegedly committed by the court below during trial. Some of these contentions pertain to claimed violations of appellant‘s rights under the
The “Contempt of Congress” statute under which this prosecution was brought,
“Every person who having been summoned as a witness by the authority of either House of Congress to give testimony * * * upon any matter under inquiry before * * * any committee * * * willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor * * *” (italics added).
A conviction for a violation of Section 192 cannot be sustained unless it appears
In order to determine whether an indictment which charges a violation of
“The object of the indictment is, first, to furnish the accused with such a description of the charge against him as will enable him to make his defence, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had.” U. S. Cruikshank, 92 U.S. 542, 558 (1875).
U. S. v. Debrow, 346 U.S. 374, 377, 378 (1953); Hagner v. U. S., 285 U.S. 427, 431 (1932); Wong Tai v. U. S., 273 U.S. 77, 80-81 (1927); Evans v. U. S., 153 U.S. 584, 587 (1894); U. S. v. Hess, 124 U.S. 483, 487 (1888); U. S. v. Achtner, 144 F.2d 49, 51 (2d Cir. 1944).
In view of this constitutional mandate, and the undisputed fact that the Government must establish that a committee or subcommittee was duly authorized and that its investigation was within the scope of the delegated authority, an indictment under Section 192 is defective if the authority is not pleaded, U. S. v. Lamont, supra.
“The cornerstone of the Government‘s case in any prosecution under § 192 must be a lawfully constituted committee engaged in an inquiry within the scope of its authority when the refusal to answer occurred. This is the hard core of its case against the defendant and he is entitled to have it pleaded in the indictment.” 10
Furthermore, as Judge Weinfeld pointed out in the lower court opinion in the Lamont case,
“There is an added reason why this element should be pleaded. With pertinency also an essential element, it is important for the defendant in preparing his defense to know the claimed source of authority since ‘The initial step in determining the pertinency of the question is to ascertain the subject matter of the inquiry then being conducted by the subcommittee.’ [Bowers v. United States, 92 U.S.App.D.C. 79, 202 F.2d 447, 448.] Or, as stated by Mr. Justice Frankfurter in the Rumely case, the resolution under which the committee purports to act is the ‘controlling charter’ of its powers and governs ‘its right to exact testimony.’ [United States v. Rumely, 345 U.S. 41, 44.] Since pertinency must be and has been pleaded, there is no logical reason why the authority of the committee should not likewise be pleaded.” Id., 18 F.R.D. pp. 33-34 (italics added).11
The Government does not appear to contest this.12 Instead, it seeks to have us disregard and overrule the pertinent and correlative holding of U. S. v. Lamont, supra, that it is not enough to allege the subcommittee was “duly authorized,” but that “the source of its claimed authority, whether it be a resolution of the [House of Representatives] or the parent committee [Cf. United States v. DiCarlo, D.C.N.D.Ohio, 102 F.Supp. 597] should be alleged in the indictment.” 13
This we cannot do. The Federal Rules of Criminal Procedure unmistakably require the Government to plead “the essential facts constituting the offense charged,”
Moreover, unless we disregard as mere surplusage certain allegations in the indictment before us, a course not urged by the Government, it is perfectly clear that the prosecutor recognized that it was necessary to allege facts indicating the
The possibility that a defendant might obtain this essential information by means of a bill of particulars does not affect our conclusion. A bill of particulars cannot repair a fatal defect in an indictment, U. S. v. Lamont, supra, at p. 315, because the defendant has a constitutional right to a fair and accurate accusation by indictment; and there is no unconditional right to a bill of particulars, U. S. v. Bentvena, D.C., 193 F.Supp. 485, 498 (1960). Furthermore, in the instant case, although the trial court did order the Government to specify the basis of the subcommittee‘s authority in a bill of particulars, the vital resolution of July 27, 1955 (Government Exh. 8) was not produced in compliance with that order.18
There can be no doubt that it is the duty of every citizen to help Congress obtain information which it needs to legislate intelligently and effectively. It should be expected that persons summoned before a Congressional committee will respect its dignity; and a witness has an “unremitting obligation * * * to testify fully with respect to matters within the province of proper investigation.” Watkins v. U. S., supra, 354 U.S. at pp. 187, 188.
When Congress believes that its authority has been flouted by improper behavior of a witness who has refused to give testimony before one of its subcommittees, and has voted that the witness be prosecuted for contempt, it is incumbent upon the courts to apply the
“When society acts to deprive one of its members of his life, liberty or property, it takes its most awesome steps. No general respect for, nor adherence to, the law as a whole can well be expected without judicial recognition of the paramount need for prompt, eminently fair and sober criminal law procedures. The methods we employ in the enforcement of our criminal law have aptly been called the measures by which the quality of our civilization may be judged.” Coppedge v. U. S., 82 S. Ct. 917.
In this instance we have concluded that the prosecutor cannot put a gloss on the essential and basic teachings of the Lamont case, fortified by constitutional holdings of the Supreme Court. A defendant, faced with possible loss of liberty, should not, at the commencement of the prosecution, be made to guess whether the inquiring body had power to exact his testimony. The burden placed upon the prosecutor by a requirement that he adequately and accurately allege facts indicating the existence of this element of the crime is minor; and the Government is in no way prejudiced in its attempt to vindicate the authority of Congress. On the other hand, the benefit derived from that requirement by the accused is substantial; and the benefit is wholly consistent with, and we believe dictated by principles of fundamental fairness.
The Government would dispose of appellant‘s argument as a “hypertechnical” challenge to a conviction warranted by the evidence. But an assertion that a prosecution must begin with a fair and accurate accusation involves more than mere technicality or form. It goes to substance. We are not inclined to dismiss lightly claims of constitutional stature because they are asserted by one who may appear unworthy of sympathy. “Once we embark upon shortcuts by creating a category of the ‘obviously guilty’ whose rights are denied, we run the risk that the circle of the unprotected will grow.” U. S. v. Tribote, 297 F.2d 598, 604 (2d Cir. 1961).
Reversed and indictment dismissed.
MOORE, Circuit Judge (concurring in the result).
The majority has limited its consideration to the single issue, namely, “that the indictment was defective because it failed to properly allege the authority of the subcommittee to conduct the hearings in issue, and to set forth the basis of that authority accurately.” The defects in the validity of the indictment are stated in terms of the right of the accused “to be informed of the nature and cause of the accusation” (
In contrast, the indictment against Seeger alleges that “The Committee on Un-American Activities of the House of Representatives, having been duly created and authorized by the Legislative Reorganization Act of 1946, Public Law 601, Section 121(q) (1) (A) (2), (60 Stat. 828), and House Resolution 5, 84th Congress, on or about the 8th day of June, 1955, pursuant to said authorization, directed that an investigation be conducted of Communist infiltration in the field of entertainment in New York.” The indictment continues “Pursuant to said direction, in or about August, 1955, in the Southern District of New York, a duly constituted and authorized subcommittee of said Committee was holding hearings.” It then alleged in conclusory form that the witness “was asked certain questions pertinent to the question under inquiry which pertinent questions the defendant deliberately and intentionally refused to answer.”
Following the Lamont district court‘s rejection of “duly authorized” as a sufficient allegation, the majority does not, in my opinion, adequately heed or accept this court‘s decision in United States v. Josephson, 2 Cir., 1947, 165 F. 2d 82 (Swan, Chase, Clark, C.JJ.). However, the Josephson case and the Seeger case, unlike Lamont, both came before this court after trial and conviction rather than on a technical attack upon the indictment. The indictment in Josephson alleged that pursuant to Public Law 601 and House Resolution 5, 80th Congress, the House was empowered to and did create the Committee on Un-American Activities and that the witness was summoned “by authority of the House of Representatives through its Sub-Committee of the Committee on Un-American Activities.” There were no direct allegations, as are found here, that the Committee was “duly created and authorized.” Nor was there any specific statement of purpose such as is found here, namely, that the Committee “directed that an investigation be conducted of Communist infiltration in the field of entertainment in New York.” Yet the court in Josephson said of the indictment:
“[1, 2] The above quoted indictment conforms to the requirements of
Rule 7(c), Federal Rules of Criminal Procedure, 18 U.S.C.A. , following section 687, 327 U.S. 821, 839, and was rightly held sufficient. Indeed, it is a good example of ‘a plain, concise and definite written statement of the essential facts constituting the offense charged.’ It enabled the appellant to understand the nature of the accusation, gave him the needed information to prepare his defense, and made it possible for him to plead the judgment in bar of another prosecution for the same offense should occasion fordoing so arise. That, as we have often held, is enough to make an indictment good. United States v. Fried, 2 Cir., 149 F.2d 1011, certiorari denied, 326 U.S. 756; United States v. Wodiska, 2 Cir., 147 F.2d 38; United States v. Achtner, 2 Cir., 144 F.2d 49.”
I cannot distinguish the decision in the Josephson case as to the form and sufficiency of the indictment except to believe that the Seeger indictment is a more specific document and, hence, I would hold the indictment as such to be sufficient.1
But even assuming the validity of the indictment, “the next issue is whether there was enough evidence to support the verdict” (Josephson, 165 F.2d p. 86). Since authority and subject matter of inquiry relate directly to the pertinency of the questions asked, both are important. As to the Committee, the court in Josephson said, “The trial court properly took judicial notice of the Legislative Reorganization Act of 1946, 60 Stat. 812, 828, setting forth the duties and the powers of the Committee on Un-American Activities” (p. 87). The same Act is here pleaded and the Committee‘s powers should not have to be copied into the indictment.
Seeger‘s refusal to answer did not occur before the Committee but only before a Sub-Committee. For this reason, Seeger argues that the authority of the sub-committee must be shown. Although creation of the Committee may be adequately alleged in the indictment,2 this fact does not dispense with the necessity of proving upon the trial the authority of the subcommittee before which Seeger refused to answer, commonly known as proof of the “chain of authority.” The government offered a document dated June 8, 1955 (Exh. 7) authorizing the Clerk to “proceed with the investigation of communist infiltration in the field of entertainment in New York.” Had Seeger appeared before the Clerk and refused to answer, it is more than questionable whether this could have been a Section 192 violation. Had the Clerk proceeded to appoint a subcommittee, his power so to do would have been equally doubtful. But neither of these events occurred.
Somewhat in advance of trial, the government disclosed to Seeger a document (Exh. 8), dated July 27, 1955 (not mentioned in the indictment or in the government‘s bill of particulars), merely announcing a date for the hearings (August 15-18) and stating the names of the subcommittee appointed. The government characterizes this document as a resolution passed by the Committee on July 27, 1955, directing the hearings and ratifying the appointment of the subcommittee. Even the most liberal construction cannot transform Exhibit 8 into a resolution of the Committee vesting its authority in a subcommittee and ratifying a previously appointed group of three. I would, therefore, hold that there had been a failure of proof of authority. I realize that this conclusion may seem as technical as the majority‘s decision on the inadequacy of the indictment but in contempt proceedings decisional law seems to approve reliance upon technicalities.
At the hearing on August 15, 1955, the Committee Chairman, Francis Walter, clearly stated the purpose and scope of the inquiry, i. e., “the extent to which the Communist Party is active in the entertainment media” and “to ascertain, and to identify individuals who are or were members of the Communist Party and who are using or did use their influence to promote the objectives of the
“I am not going to answer any questions as to my associations, my philosophical or religious beliefs or my political beliefs, or how I voted in any election or any of these private affairs. I think these are very improper questions for any American to be asked, especially under such compulsion as this” (GX10, p. 2449).
Equally irrelevant answers were made to other questions which prompted the Chairman to reply in answer to a statement by appellant, “I love my country very deeply, sir,” “Why don‘t you make a little contribution towards preserving its institutions?”
Despite such colloquies, upon a reading of the entire record, I gain the impression that Seeger felt that he had a particular kind of right of privacy, asserted by some in complete disregard of serious Congressional investigations conducted for the welfare of the nation, but that his refusal lacked the elements of criminality. He did not rely on the
For the reasons stated, I do not believe that the Government has satisfied the requirements necessary to sustain the conviction and, hence, I would reverse and dismiss the indictment for insufficiency of proof.
Marie MILLER and Jeanette M. Edelblute, Appellees, v. EAST GEORGIA MOTORS, INC., a corporation, Appellant.
No. 8523.
United States Court of Appeals Fourth Circuit.
Argued March 30, 1962. Decided May 19, 1962.
303 F.2d 488
Notes
“Mr. Scherer. Let me understand. You are not relying on the fifth amendment, are you?
“Mr. Seeger. No, sir, * * * I simply feel it is improper for this committee to ask such questions.
“Mr. Scherer. And then in answering the rest of the questions, or in refusing to answer the rest of the questions, I understand that you are not relying on the fifth amendment as a basis for your refusal to answer?
“Mr. Seeger. No, I am not, sir” (Government Exh. 10, p. 2450).
“I am not going to answer any questions as to my associations, my philosophical or religious beliefs or my political beliefs, or how I voted in any election or any of these private affairs. I think these are very improper questions for any American to be asked, especially under such compulsion as this” (Government Exh. 10, p. 2449).
The questions which form the basis of Counts 2, 3 and 4 were not answered for the “same” reason (id., pp. 2450-51). In response to the question named in Count 5, Seeger informed the subcommittee that he felt it was “immoral to ask any American this kind of question” (id., p. 2452). Questions cited in Counts 6, 8, 9 and 10 were not answered for the “same” reasons given earlier (id., pp. 2453-54, 2458, 2460). When asked to identify a photograph of himself (Count 7) the witness replied, “Let someone else identify it” (id., p. 2454).
(caption omitted)
“The Grand Jury charges:
“Introduction
“The Committee on Un-American Activities of the House of Representatives, having been duly created and authorized by the Legislative Reorganization Act of 1946, Public Law 601, Section 121 (q) (1) (A) (2) (60 Stat. 828), and House Resolution 5, 84th Congress, on or about the 8th day of June, 1955, pursuant to said authorization, directed that an investigation be conducted of Communist infiltration in the field of entertainment in New York.
“Pursuant to said direction, in or about August, 1955, in the Southern District of New York, a duly constituted and authorized subcommittee of said Committee was holding hearings. In the course of said hearings, and on or about the 18th day of August, 1955, defendant Peter Seeger, having been summoned by the authority of the House of Representatives to give testimony, appeared as a witness before said subcommittee and was asked certain questions pertinent to the question under inquiry which pertinent questions the defendant deliberately and intentionally refused to answer.
“The allegations of this Introduction are adopted and incorporated into the counts of this indictment which follow, each of which counts will in addition designate the particular pertinent question which was asked of the defendant and which he refused to answer * * *”