203 F.2d 20 (D.C. Cir. 1952), 11081, Quinn v. United States

Docket Nº11081.
Citation203 F.2d 20
Case DateDecember 19, 1952
CourtUnited States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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203 F.2d 20 (D.C. Cir. 1952)




No. 11081.

United States Court of Appeals, District of Columbia Circuit.

December 19, 1952

Argued Jan. 21, 1952.

Reargued May 27, 1952.

Petition for Rehearing Denied April 13, 1953.

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David Scribner, pro hac vice, by special leave of Court, with whom Allan R. Rosenberg, Washington, D.C., was on the brief, for appellant.

Charles B. Murray, Asst. U.S. Atty., Washington, D.C., at the time of argument, with whom Charles M. Irelan, U.S. Atty. and Joseph M. Howard, Asst. U.S. Atty., Washington, D.C., were on the brief, for appellee. George Morris Fay, U.S. Atty. when the record was filed Washington, D.C., also entered his appearance on behalf of appellee.


PRETTYMAN, Circuit Judge.

Appellant was indicted for refusing to answer a question asked by a subcommittee of the Committee on Un-American Activities of the House of Representatives. The question was whether he was or ever had been a member of the Communist Party. He was tried by a judge of the District Court without a jury and was convicted.

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When appellant was asked the crucial question before the subcommittee, the following colloquy occurred:

'Mr. Quinn. I would like to make a statement along the lines that Mr. Fitzpatrick made yesterday in regard to a question of that nature. I feel that the political beliefs, opinions, and associations of the American people can be held secret if they so desire.

'Mr. Wood. And for those reasons you decline to answer the question?

'Mr. Quinn. I didn't say I was declining to answer the question, I should like to say that I support the position taken by Brother Fitzpatrick yesterday.

'Mr. Wood. Did you hear his statement yesterday?

'Mr. Quinn. In its entirety.

'Mr. Wood. Is there anything else you want to add to it?

'Mr. Quinn. No; I don't.

'Mr. Wood. Will you accept it as the expression of your views, then?

'Mr. Quinn. You may. I may add I feel I have no other choice in this matter, because the defense of the Constitution, I hold sacred. I don't feel I am hiding behind the Constitution, but in this case I am standing before it, defending it, as small as I am.

* * * * * *

'Mr. Wood. You have stated your position. Having enunciated your sentiments and your position, will you now answer the question whether you are now or ever have been a member of the Communist Party, or do you decline to answer.

'Mr. Quinn. I decline to discuss with the committee questions of that nature.'

The record shows that on the day preceding that of the interrogation of appellant, the subcommittee had questioned one Thomas Fitzpatrick, who had made an extended statement.

Having been indicted for refusal to answer the question put to him, Quinn moved to dismiss the indictment upon a number of grounds. The motion was denied. 1 He was tried by a judge without a jury. His defense, so far as pertinent to the present appeal, was in three contentions.

1. Quinn says that he claimed the Fifth Amendment protection against self-incrimination. He says he did this by personally adopting the form of claim made by the prior witness, Fitzpatrick.

The trial court found as a fact that at no point did Quinn, while before the subcommittee, assert the privilege in explicit terms. The court then posed the question: 'Can one claim a personal privilege against self-incrimination by reference to a position that another took?'. The court said:

'On that, this Court finds as a matter of law that one may not. Since the privilege is personal, the defendant must assert it himself, since another may not know what is in a defendant's mind at the time he is called before the Congress to testify on pertinent matters, to proper inquiry, and therefore, one may not, by reference, assert that privilege.'

The trial court therefore concluded that Quinn had not asserted his personal privilege in respect to self-incrimination.

We are of opinion that a witness may claim the constitutional privilege by referring to and adopting language used by another, so long, of course, as that other's language is identified. On that point we think the District Court was in error, and the Government so concedes. It is true that the privilege is a personal one 2 and the circumstances must be such as to indicate that the witness himself personally asserts

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the claim. 3 But, when a witness personally asserts that he adopts a described expression as his expression, the claim is personally made. No formula or specific term or expression is required. The language may be the witness's own composition or may be a quotation from another or may be the adoption of another's statement; so long as the witness himself personally makes the claim, either by words or by action, this requirement is satisfied no matter what form he uses.

Then the question is whether Quinn, by adopting Fitzpatrick's statement, asserted a privilege against self-incrimination. Basically, of course, that question concerns what was in Quinn's mind. But courts cannot act upon unrevealed intentions, and so the inquiry must be whether Fitzpatrick did or did not claim the privilege. If what he said did not amount to such a claim, Quinn's adoption of the statement did not amount to one. The trial court made no ruling upon the meaning or the sufficiency of Fitzpatrick's statement. 4 Having held that Quinn could not as a matter of law adopt it, the court was not called upon to consider it. In the view which we take of the case the efficacy of Fitzpatrick's statement as a claim of the privilege must be determined. The problem is whether it should be determined by this court or by the trial court.

The issue as to Fitzpatrick's statement, as we see it, is whether a reasonable auditor would understand from what Fitzpatrick said that he (Fitzpatrick) was claiming the right to refuse to answer because his answer might tend to incriminate him. The words which Fitzpatrick used are known, are in this record, and are not in dispute. What did those words mean as he uttered them?

Fitzpatrick's discussion, which was lengthy, related chiefly to First Amendment rights. He did not at any point make a clear and unequivocal statement that he claimed the privilege against self-incrimination. The closest he came to it were two references to the Fifth Amendment in the course of his long discussion of rights of free speech and thought. Once, before any questions had been asked him, he said, 'This is a protection of the First Amendment to the Constitution, supplemented by the Fifth Amendment.' And once he said, 'I stand on the protection of the Constitution, the First and Fifth Amendments.' There was no context indicating that a claim of the privilege was meant.

We think the words 'Fifth Amendment', considered alone, do not constitute a formula which invokes the privilege against self-incrimination. The Fifth Amendment contains more than one clause. It contains two which are possibly pertinent here, the privilege against self-incrimination and the due process clause. The expression 'I claim the protection of the First Amendment, supplemented by the Fifth' may well and reasonably mean 'I claim the protection of the First Amendment to my rights of free speech and thought, supplemented by the guarantee of due process of law.' The combination of First and Fourteenth Amendment protection is not unusual, 5 and the combined reference has the meaning just expressed. Of course, as a matter of constitutional law, a reference to the Fourteenth Amendment as supplementing the First is a reference to the due process clause as a vehicle for applying the First Amendment restrictions to the states, and in that sense reference to the Fifth Amendment as supplementing the First has no

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meaning in a controversy over federal action. But we are considering an expression used by a lay witness, and familiarity with the combined phrase 'First and Fourteenth' may account for the use of the phrase 'First and Fifth' to indicate the full force of the First Amendment protections.

In our opinion the question here is whether Fitzpatrick's statement, in full text and context, related only to the claim of the rights of free speech and thought under the First Amendment, or whether an auditor could detect an intention to claim the privilege against self-incrimination, protected by the Fifth Amendment.

Words do not always have indisputable meanings. When they do not, their interpretation is a matter of law in some instances and a matter of fact in others. If an ambiguous phrase appears in a statute, its meaning is a question of law. If one occurs in a contract, its meaning depends upon the intention of the parties; and that may be an unalloyed question of fact. If the dispute concerns the meaning of the whole of a lengthy recital by a witness on the stand, the meaning is a question of fact.

Whether Fitzpatrick's meaning is a question of fact or a mixed question of law and fact is close to the borderline. Our opinion is that, in either event, the conclusion ought to be drawn in the first instance by the trial court. In the setting of a criminal case (which is all we have here), we do not think that strict analysis of whether a given inquiry presents a question of law or of fact or a mixed one of law and fact is controlling as to whether it may be determined in the first instance by an appellate court, especially where that inquiry concerns the main issue in the case. 6

Perhaps, if we were of clear opinion that Fitzpatrick, and therefore Quinn, did claim the privilege and so must be acquitted, we should dispose of the matter finally here and now. Under such circumstances we would reverse a judgment of conviction. But a majority of the court are not of that clear opinion.

The affirmance of a judgment of...

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