Alexander v. United States, 12081.

Citation181 F.2d 480
Decision Date08 February 1950
Docket NumberNo. 12081.,12081.
PartiesALEXANDER v. UNITED STATES and nine other titles.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Margolis & McTernan and Esther Shandler, Los Angeles, Cal., for appellants.

James M. Carter, U. S. Atty., Los Angeles, Cal., Max H. Goldschein, Sp. Asst. to Atty. Gen., Frank De Nunzio and Vincent Russo, Sp. Assts. to Atty. Gen., for appellee.

A. L. Wirin and Fred Okrand, Los Angeles, Cal., for American Civil Liberties Union as amicus curiæ.

Daniel G. Marshall and Sam Houston Allen, Los Angeles, Cal., for Los Angeles & Hollywood-Beverly Hills Chapters National Lawyers' Guild, as amicus curiæ.

J. Bruce Fratis, George Olshausen and Benjamin Dreyfus, San Francisco, Cal., for San Francisco Chapter, National Lawyers Guild, as amicus curiæ.

Before DENMAN, Chief Judge, and MATHEWS, STEPHENS, HEALY, BONE and ORR, Circuit Judges.

Before DENMAN, Chief Judge, and MATHEWS, STEPHENS, HEALY, BONE, ORR and POPE, Circuit Judges.

A rehearing in banc is hereby ordered. The parties have stipulated that the ten instant appeals be submitted on the briefs heretofore filed herein and the briefs and record in Doran v. United States, 9 Cir., 181 F.2d 489, and Kasinowitz v. United States, 9 Cir., 181 F.2d 632, appeals pending here, in which are presented similar contentions. The opinion on the merits follows.

DENMAN, Chief Judge.

These are ten appeals from judgments and commitments in civil contempt, based upon refusals to answer questions put to appellants while witnesses in an investigation by a grand jury of the District Court for the Southern District of California. The refusals were based upon the claim that the answers would tend to incriminate them. A hearing was had before the district court for each appellant and the court ordered the questions answered. The refusals led to the judgments.

The questions asked may be briefly summarized as follows:

Appellants Bissey, Noble and Smith were asked substantially the following questions:

1) Do you know the names of the county officers of the Los Angeles County Communist Party?

2) Do you know the table of organization of the Los Angeles County Communist Party?

3) Do you know Ned Sparks?

Appellants Alexander, Forest, Kasinowitz and Steinberg were asked substantially the following questions:

1) Do you know the names of the county officers of the Los Angeles County Communist Party?

2) Do you know the table of organization and duties of the Los Angeles County Communist Party?

Appellant Dobbs was asked substantially the following questions:

1) The questions heretofore described in connection with the first group of appellants just above, and in addition thereto,

2) "By whom are you employed"; this question having been asked after appellant Dobbs had testified that his occupation was "an organizer."

Appellant Bock was asked the following questions:

1) The questions described in connection with the second group of appellants just above, and in addition thereto,

2) "An organizer for whom?"; this question having been asked after the witness had testified that he was an organizer.

Appellant Sherman was asked the following questions:

1) Do you know the names of the county officers of the Los Angeles County Communist Party?

2) Do you know Ned Sparks?

To eight of these appellants, Assistant Attorney General Goldschein made statements calculated to persuade them that their answers to such questions could not incriminate them. Typical is the following:

"Q. By Mr. Goldschein: Your name is Frank Edward Alexander, is that right? A. Yes.

"Q. Where do you live? A. 78 Hurlburt Street, Pasadena.

"Q. I want to let you know before we start that you are not under investigation by this grand jury for any offense. You are merely called here as a witness to give evidence that you may have of certain facts that the grand jury is interested in. Do you understand that? A. I do.

"Q. Now, do you know the names of the county officers of the Los Angeles Communist Party? A. I refuse to answer that on the basis it may incriminate me."

"Q. Do you know the table of organization and the duties of the county officers of the Los Angeles County Communist party? A. I refuse to answer that on the basis it might incriminate me." (Emphasis supplied.)

It is obvious that, whether or not the grand jury was investigating the witness "for any offense," he might give answers incriminating him as one violating the Smith Act, later considered. The Assistant United States Attorney General pursued the same tactics tending to put the witness off his guard in similar grand jury proceedings reviewed by the Court of Appeals for the Tenth Circuit in Rogers v. United States, 179 F.2d 559, where that court said:

"Goldschein's stock statement to the witness that she was not under investigation and that the grand jury was not proceeding against her, was not warranted. It was not for him to say what the scope of the grand jury's investigation was; neither was his statement a substitute for her constitutional protection."1

While none of the witnesses rose to this lure, it is the duty of this court not to pass unnoticed such conduct of a prosecuting officer towards any of the circuit's litigants when it appears in the record before us.

These questions, "Do you know the names of the county officers of the Los Angeles County Communist Party?" "Do you know the table of organization and the duties of the county officers of the Los Angeles County Communist Party?" and other questions asked do not, on their face, require incriminating answers. Hence the burden is on appellants to show they had substantial reason to believe they call for answers tending to incriminate them. Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110; United States v. Rosen, 2 Cir., 174 F.2d 187, 188, certiorari denied 338 U.S. 851, 70 S.Ct. 87.

The contention of the appellants is that they had a reasonable apprehension that the object of the investigation was something more than the purpose declared by government counsel to seek government employees who had falsely answered questions respecting their loyalty in violation of 18 U.S.C.A. § 1001. That something more is the reasonable apprehension of an investigation as to all persons who might be members of various subordinate divisions of the Communist Party of the United States as a part of a general movement by the Attorney General of the United States to prosecute them under the Smith Act, as were the persons convicted in the Southern District of New York before Judge Medina.

The peculiar selectivity of the ten appellants was further likely to convince them that the proceeding before the grand jury was a part of such a national investigation. All were served at seven o'clock or shortly thereafter in the morning, a most unusual time to seek to procure grand jury witnesses. Eight were ordered to appear before the grand jury at ten o'clock on the same morning, a time so short as to raise the suspicion that no opportunity would exist for them to make a collective defense in such an investigation. The United States attorney admitted that the group was selected because he thought he would "obtain from them the whereabouts of the records of the Los Angeles County Communist Party membership." That they were indeed a selected group having a common need for such protection is apparent from the fact that, in this less than three hours in the early morning, each of the eight had somehow managed to select the same attorneys to appear for him and that at ten o'clock these attorneys did make such appearance for each.

The principal argument made by the government is that such questions as to the membership and organizational setup of the Communist Party of Los Angeles could not possibly incriminate the appellants on a charge of such membership or affiliation with such members because of the decision of the Supreme Court in Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796.

This is an extraordinary argument. The Schneiderman case decided that the evidence before it was insufficient to show the Communist Party advocated the overthrow of the government by force. It stated 320 U.S. at page 157, 63 S.Ct. at page 1352:

"There is a material difference between 1 agitation and exhortation calling for present violent action which creates a clear and present danger of public disorder or other substantive evil, and 2 mere doctrinal justification or prediction of the use of force under hypothetical conditions at some indefinite future time * * *." and 320 U.S. at page 158, 63 S.Ct. at page 1352 held:

"Under the conflicting evidence in this case we cannot say that the Government has proved by such a preponderance of the evidence that the issue is not in doubt, that the attitude of the Communist Party of the United States in 1927 towards force and violence was not susceptible of classification in the second category. * * * In so holding we do not decide what interpretation of the Party's attitude toward force and violence is the most probable on the basis of the present record, or that petitioner's testimony is acceptable at face value." (Emphasis supplied.) being preceded by the following 320 U.S. at page 155, 63 S.Ct. at page 1351:

"On the basis of the present record we cannot say that the Communist Party is so different in this respect that its principles stand forth with perfect clarity, and especially is this so with relation to the crucial issue of advocacy of force and violence, upon which the Government admits the evidence is sharply conflicting." (Emphasis supplied.)

We do not agree that, because of the Schneiderman decision in 1943, in 1948 the branch of the Communist Party in Los Angeles could not possibly be composed of persons organized in violation of the Smith Act to overthrow the government by force or to teach such overthrow or composed of persons affiliating with such an organization....

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