240 F.2d 875 (D.C. Cir. 1957), 13327, Barenblatt v. United States

Docket Nº:13327.
Citation:240 F.2d 875
Party Name:Lloyd BARENBLATT, Appellant, v. UNITED STATES of America, Appellee.
Case Date:January 03, 1957
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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240 F.2d 875 (D.C. Cir. 1957)

Lloyd BARENBLATT, Appellant,


UNITED STATES of America, Appellee.

No. 13327.

United States Court of Appeals, District of Columbia Circuit.

January 3, 1957

Argued Sept. 27, 1956.

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Mr. David Scribner, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Mr. David Rein, Washington, D.C., was on the brief, for appellant.

Mr. John D. Lane, Asst. U.S. Atty., with whom Messrs. Oliver Gasch, U.S. Atty., Lewis Carroll and William Hitz, Asst. U.S. Attys., were on the brief, for appellee.

Before WASHINGTON, BASTIAN and BURGER, Circuit Judges.

BASTIAN, Circuit Judge.

Appellant was tried, convicted and sentenced under 2 U.S.C.A. § 192 1 (contempt of Congress). From this conviction the present appeal was taken.

The factual situation disclosed by the record is as follows: On June 28, 1954, one Francis X. T. Crowley testified before a subcommittee of the Committee on Un-American Activities of the House of Representatives concerning his past membership and activities in the Communist Party, and identified the appellant as a member of the Haldance Club of the Communist Party while appellant was a graduate student and instructor at the University of Michigan. On that same day, appellant appeared before the subcommittee in response to its subpoena, at which time, after certain preliminary inquiries, appellant was asked the questions which he refused to answer. These refusals are the basis for his indictment, which charges that appellant 'unlawfully refused to answer' the following questions:

'Count One: Are you now a member of the Communist Party?

'Count Two: Have you ever been a member of the Communist Party?

'Count Three: Now, you have said that you knew Francis Crowley. Did you know Francis Crowley as a member of the Communist Party?

'Count Four: Were you ever a member of the Haldance Club of the Communist Party while at the University of Michigan?

'Count Five: Were you a member while a student of the University of Michigan Council of Arts, Sciences, and Professions?'

The indictment charges that these questions 'were pertinent to the question then under inquiry,' and that the subcommittee was conducting hearings at the time pursuant to its enabling resolution. 2 This law establishes the Committee on Un-American Activities and vests in it, and its duly constituted subcommittees, the duty:

'* * * to make from time to time 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.'

At the time of appellant's appearance, inquiry into communism in the field of education, and the record reflects that appellant had knowledge of this.

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The first ground urged for reversal is that the indictment is fatally defective in that it does not plead a deliberate and intentional or knowing refusal to answer. This specific question was ruled on by this court contrary to appellant's contention in United States v. Deutch, 1956, 98 U.S.App.D.C. 356, 235 F.2d 853.

The argument is also advanced that the indictment is defective in that it does not describe the matter into which the subcommittee was inquiring at the time appellant appeared before it. The indictment alleges an unlawful refusal to answer 'questions which were pertinent to the question then under inquiry,' which inquiry was made pursuant to the subcommittee's enabling resolution. Thus, it appears that the indictment stated all the elements of the offense charged and served notice on appellant as to what conduct on his part constituted the alleged offense. This satisfies the requirements of Fed.R.Crim.P. 7(c), 18 U.S.C.A. See United States v. Josephson, 2 Cir., 1947, 165 F.2d 82, certiorari denied, 1948, 333 U.S. 838, 68 S.Ct. 609, 92 L.Ed. 1122.

It is also contended that the indictment is fatally defective in that it alleges a refusal to answer questions before a subcommittee of a committee, and that Congress did not intend to make it a crime to refuse to answer questions of a subcommittee. Appellant urges that Congress was fearful of having penal sanctions imposed upon those who refused to answer questions propounded by subcommittees, as Congress considered subcommittees more subject to partisanship and more likely to abuse their powers than full committees. We disagree. Nothing has been shown which reflects that Congress has indicated such belief. We can only construe the statute in the light of the obvious purpose for its enactment. That purpose was to discourage the impairment of the vital investigative function of Congress. Fields v. United States, 82 U.S.App.D.C. 354, 164 F.2d 97, certiorari denied, 1948, 332 U.S. 851, 68 S.Ct. 355, 92 L.Ed. 421. The function Congress sought to protect is as often committed to subcommittees as it is to full committees of Congress, as indeed it must be.

Construing the statute in a manner consistent with its obvious purpose, Vermilya-Brown Co. v. Connell, 1948, 335 U.S. 377, 69 S.Ct. 140, 93 L.Ed. 76, United States v. Brown, 1948, 333 U.S. 18, 68 S.Ct. 376, 92 L.Ed. 442, The Emily and The Caroline, 1824, 9 Wheat. 381, 22 U.S. 381, 6 L.Ed. 116, we hold that Congress intended the word 'committee' in its generic sense, which would include subcommittees.


Next, appellant contends that the subcommittee failed to consider and overrule his objections to the questions asked him, and that, therefore, there could be no proof beyond a reasonable doubt of a criminal intent to refuse to answer. He insists that to meet this burden the subcommittee must be shown to have considered his objections, to have overruled them, and then to have directed him to answer. In support, appellant cites Quinn v. United States, 1950, 349 U.S. 155, 75 S.Ct. 668, 99 L.Ed. 964, Emspak v. United States, 1950, 349 U.S. 190, 75 S.Ct. 687, 99 L.Ed. 997, and Bart v. United States, 1950, 349 U.S. 219, 75 S.Ct. 712, 99 L.Ed. 1016.

The record of the subcommittee hearing for the day appellant appeared was admitted in evidence at the trial. 3 From that record we are convinced that appellant did communicate his objections to the subcommittee and that he was clearly directed to answer each of the questions. Furthermore, it is entirely clear that appellant had ample opportunity to state any additional objections he may have had.

Appellant came before the subcommittee with an eleven-page written statement,

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which he characterized as his objections to the questions asked of him. Whenever he was asked a question which he refused to answer, appellant asked permission, or attempted without permission, to read the prepared statement. The Chairman ruled that it was a preliminary statement, which, under the rules of the subcommittee (with which appellant admitted familiarity) had to be filed a reasonable time in advance of appearance before the subcommittee. 4 At one point appellant asserted:

'I am objecting on these grounds, and I will not answer any questions about which the list of objections is read: my political beliefs; my religious beliefs; any other personal and private affairs; my associational activities.

'I will not answer any of those questions on the grounds of my objections in this statement which I again respectfully request that I be able to read at this point to get into the record the objections so that we can proceed from that point.'

This assertion by appellant was made before he was directed to answer the question set forth in the first count of the indictment.

Prior to making the objection referred to above, appellant had stated, in response to a question:

'Sir, I would like here to state my objections to the power and jurisdiction of this committee to inquire into my political beliefs, my religious beliefs, and any other personal and private affairs * * *.'

The Chairman, as stated, had regarded the written statement as a preliminary one and had ruled that it would be taken under advisement as to whether or not it might be inserted into the record. Faced with continued refusal to answer the questions and appellant's repeated attempts to read the lengthy statement, the Chairman waived compliance with the rules of the subcommittee and accepted the statement into the record. Thereafter, when appellant refused to answer a question, he referred to the statement, as the sucommittee suggested that he do, as the basis of his refusal. The record reflects that on member of the subcommittee had read the statement but it does not show that the other members had done so. It is this upon which appellant relies when he argues that the subcommittee failed to consider his objections. With that position we cannot agree.

First, appellant did communicate to the subcommittee the general basis of the objections contained in his written statement. Secondly, one member of the subcommittee, shown by the record to have read the statement, indicated his belief that the statement contained no valid grounds for refusal to answer; and, in admitting the statement into the record, the Chairman indicated that he was relying on that member.

We cannot, within the limited power of a court to review the procedures of a congressional committee, insist that such a committee interrupt its...

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