United States v. Josephson

• Decision Date: 16 February 1948
• Docket Number: No. 91,Docket 20790.,91
• Parties: UNITED STATES v. JOSEPHSON.
• Court: U.S. Court of Appeals — Second Circuit

165 F.2d 82 (1947)

UNITED STATES v. JOSEPHSON.

No. 91, Docket 20790.

Circuit Court of Appeals, Second Circuit.

December 9, 1947.

Writ of Certiorari Denied February 16, 1948.

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Barent Ten Eyck, of New York City (Samuel A. Neuburger, of New York City, of Counsel; Gordon Grand, Jr., of New York City, on the brief), for defendant-appellant.

John F. X. McGohey, U. S. Atty., of New York City (Bruno Schachner, Samuel Rudykoff, Asst. U. S. Attys., both of New York City, of counsel), for appellee.

Arthur G. Silverman, of Washington, D. C., for Constitutional Liberties Committee of the National Lawyers Guild, amicus curiae.

Rogge, Fabricant, Gordon & Goldman, Wolf, Popper, Ross & Wolf and Osmond K. Fraenkel, all of New York City (Herbert J. Fabricant, Robert H. Goldman, Murray A. Gordon and Lester M. Levin, all of New York City, on the brief), for Joint Anti-Fascist Refugee Committee, amicus curiae.

Before SWAN, CHASE and CLARK, Circuit Judges.

Writ of Certiorari Denied February 16, 1948. See 68 S.Ct. 609.

CHASE, Circuit Judge.

The appellant was found guilty by a jury after a trial in the District Court on an indictment reading as follows:

"(1) Pursuant to Public Law 601, 79th Congress, 60 Stat. 812, and House Resolution 5, 80th Congress, dated January 3, 1947, including the Rules of Congress therein adopted and amended, the House of Representatives was empowered to and did create the Committee on Un-American Activities, having duties and powers as set forth in said Resolution.

"(2) On the 5th day of March, 1947, at the Southern District of New York, Leon Josephson was summoned as a witness, by authority of the House of Representatives through its Sub-Committee of the Committee on Un-American Activities, to be sworn and to testify before the said Sub-Committee on matters of inquiry committed to said Committee.

"(3) Leon Josephson did appear before the said Sub-Committee, pursuant to subpoena served upon him, at its session in the Federal Court Building, Southern District of New York, on March 5, 1947, but then and there refused to be sworn and to give any testimony before said Committee (Title 2, United States Code, Section 192)."

The above named statute under which he was indicted provides in so far as presently pertinent that: "Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, * * * or any committee of either House of Congress, 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, * * *." Rev. Stat. § 102, as amended, 52 Stat. 942, 2 U. S.C.A. § 192.

The Committee on Un-American Activities has been duly authorized under the Legislative Reorganization Act of 1946 to conduct investigations "of (i) the extent, character, and objects of un-American propaganda activities in the United States, (ii) the diffusion within the United States of subversive and un-American propaganda that is instigated from foreign countries or of a domestic origin and attacks the principle of the form of government as guaranteed by our Constitution, and (iii) all other questions in relation thereto that would aid Congress in any necessary remedial legislation." 60 Stat. 812, 828. The provisions of this statute were incorporated in the rules of the House of Representatives of the Eightieth Congress by House Resolution 5, January 3, 1947.

After motions to set aside the verdict and in arrest of judgment had been denied, sentence was imposed and the appeal is from the final judgment. The appellant raises questions as to the sufficiency of the indictment; the sufficiency of the proof to support the verdict; the trial court's instructions to the jury; and the constitutionality of the law authorizing the committee to investigate. He is joined on the last point by two amici who have filed briefs by leave of court.

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 for doing 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, 66 S.Ct. 97, 90 L.Ed. 454; United States v. Wodiska, 2 Cir., 147 F.2d 38; United States v. Achtner, 2 Cir., 144 F.2d 49.

The statute, 2 U.S.C.A. § 192, embraces two offenses. See United States v. Murdock, 290 U.S. 389, 397, 54 S.Ct. 223, 78 L.Ed. 381. The first consists of the willful default of one who has been summoned as a witness. This offense, obviously, may be committed by willfully refraining, without adequate excuse, from appearing in response to a lawful summons and it may also be committed by appearing and then willfully terminating attendance before being excused. Townsend v. United States, 68 App.D.C. 223, 95 F.2d 352, certiorari denied 303 U.S. 664, 58 S.Ct. 830, 82 L. Ed. 1121. Perhaps whatever is the equivalent of an unexcused withdrawal may, if done willfully, be a termination of attendance and a violation of this part of the statute. As willfulness was not charged in the indictment, the trial judge correctly held that the appellant was not on trial for a default in appearance or in attendance. It is argued, however, that, if guilty at all, he is guilty of a willful default and that it was error to hold that he was properly indicted for a violation of the second branch of the statute. The second branch makes refusal to answer a question pertinent to the question under inquiry a misdemeanor but does not include "willfulness," however it may be defined, as an element of the offense. See United States v. Murdock, supra, 290 U.S. at 397, 54 S.Ct. 223, 78 L.Ed. 381. The answer to this contention is that, though a refusal to answer proved to be willful may be sufficient to support a conviction on an indictment for a default, Townsend v. United States, supra, it does not follow that the same refusal to answer may not be prosecuted under the second branch of the statute. That is to say, a refusal to answer any question pertinent to any matter under inquiry is a violation of the second branch of the statute as much when the refusal is "willful" as when it is not.

The indictment being sufficient and properly based upon the second branch of the statute, the next issue is whether there was enough evidence to support the verdict. In this connection it is to be noted, and the appellant rightly concedes, that at least as regards the second branch of the statute whether or not his appearance before the sub-committee was in response to a lawful subpoena lawfully served is immaterial. The language of the Supreme Court is even broader: "Section 102 of the Revised Statutes, now 2 U.S.C.A. sec. 192 plainly extends to a case where a person voluntarily appears as a witness without being summoned as well as to the case of one required to attend." Sinclair v. United States, 279 U.S. 263, 291, 49 S.Ct. 268, 271, 73 L.Ed. 692.¹ The evidence was ample for the jury to find with the requisite certainty that the appellant appeared before the sub-committee and refused to be sworn or to testify. He was called as a witness by the chairman of the sub-committee and then and there refused to be sworn and, when asked upon what ground, stated, "I wish to raise the question of the constitutionality of this committee, and I propose to take the case through the courts to the United States Supreme Court if necessary." He was then asked by Mr. Stripling, the chief investigator for the committee, to stand and be sworn and again refused, saying that he contested "the right, the legality of this committee, to examine me." After the appellant's attorney had been identified and heard and had submitted a written statement, and Mr. Stripling had called attention to the situation regarding the issuance of subpoenas and their service upon the appellant, the following occurred:

"The Chairman: Mr. Josephson, will you stand and be sworn? Mr. Josephson: I will not be sworn.

"Mr. Stripling: Will you stand? Mr. Josephson: I will stand.

(Mr. Josephson stands.)

"Mr. Stripling: Do you refuse to be sworn? Mr. Josephson: I refuse to be sworn.

"Mr. Stripling: You refuse to give testimony before this sub-committee? Mr. Josephson: Until I have had an opportunity to determine through the courts the legality of this committee.

"The Chairman: You refuse to be sworn, and you refuse to give testimony before this committee at this hearing today? Mr. Josephson: Yes."

The appellant was then excused subject to call either by the sub-committee or the full committee.

The appearance and the refusal of the appellant to testify before the sub-committee thus being shown, the jury had evidence from which it could find, as its verdict shows it did, that the appellant refused to answer any question pertinent to the question under inquiry before the sub-committee. It is obvious that the unqualified refusal then and there to testify was tantamount to a refusal to answer any questions at all relating to the matter being investigated. After what had transpired, as shown above, the propounding of one or more specific questions would have been both futile and time-wasting and appellant's renewed or repeated refusal to answer them would have added nothing. He had made it crystal clear that he was determined not to answer any questions concerning the subject matter under investigation. Any...