252 F.2d 129 (D.C. Cir. 1958), 13327, Barenblatt v. United States

Docket Nº:13327.
Citation:252 F.2d 129
Party Name:Lloyd BARENBLATT, Appellant, v. UNITED STATES of America, Appellee.
Case Date:January 16, 1958
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 129

252 F.2d 129 (D.C. Cir. 1958)

Lloyd BARENBLATT, Appellant,


UNITED STATES of America, Appellee.

No. 13327.

United States Court of Appeals, District of Columbia Circuit.

January 16, 1958

Argued Oct. 23, 1957.

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


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BASTIAN, Circuit Judge.

On January 3, 1957, this court affirmed the conviction of Barenblatt on the charge of contempt of Congress. 1 Petition for certiorari was duly filed in the Supreme Court and on June 24, 1957, the following per curiam order was entered: 2

'The petition for writ of certiorari (in this case) is granted. The judgments of the Court of Appeals for the District of Columbia Circuit is vacated and case is remanded for consideration in light of Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173 (1 L.Ed.2d 1273).'

The present opinion is written in obedience to the above order. 3

The facts concerning this case are sufficiently stated in the opinion of this court dated January 3 and need not be repeated here. Also, we limit ourselves to the directions of the Supreme Court and consider only the impact of Watkins on the instant case, except that we have also weighed the applicability of Sweezy v. State of New Hampshire, infra.

The Supreme Court in Watkins held that the witness there was not accorded a fair opportunity to determine whether he was within his rights in refusing to answer the questions involved and therefore his conviction was invalid under the Due Process Clause of the Fifth Amendment; and that no clear understanding of the question under inquiry could be gathered from the resolution setting up the Standing Committee on Un-American Activities, from the action of that Committee in authorizing the creation of the Subcommittee before which Watkins appeared, from the statement of the chairman at the opening of the hearings at which Watkins appeared, or from the statement of the chairman in response to Watkins' protest.

At the hearing before us on remand two points are mainly relied upon by appellant: First, it is claimed that the opinion of the Supreme Court in Watkins struck down the resolution creating the Standing Committee on Un-American Activities (hereinafter referred to as the Committee), and that prosecution based on refusal to answer questions asked by the Committee or a Subcommittee questioning thereunder must necessarily fall in that the resolution on which the indictment is based fails to meet the requirements of due process; and second, assuming this was not the case, that part of the opinion in Watkins relating to pertinency is dispositive of the present case.

As to the first point, such infirmity of the resolution as may be said to exist does not affect the indictment and, in any event, is a matter of affirmative defense. It is quite true that the Supreme Court in no uncertain terms criticized the resolution creating the Committee for lack of specificity, for uncertainty, for vagueness, and the scope of the construction accorded to the resolution as acted upon by the members of the Committee and its Subcommittees. It would serve no useful purpose to review in detail all the criticisms directed by the Supreme Court to the resolution and the construction placed thereon by the Committee and its Subcommittees as they were constituted over the fifteen years of their existence; but in the margin are contained certain of the comments thereon by the Supreme Court. 4

Against the background of its views so voiced, the Court considered,

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in terms presently relevant, the relationship of congressional investigating committees and the witnesses who appear before them. The opinion in Watkins clearly describes five criteria by which the pertinence of a question can be made clear to a witness (354 U.S. 178, 209, 211, 212, 213, 214, 77 S.Ct. 1173, 1191, 1192, 1193): (1) the authorizing resolution, (2) opening remarks of the chairman, members, or counsel of the Committee, (3) the nature of the proceedings, (4) the questions themselves, and (5) the chairman's response to an objection on pertinency.

There are several reasons which we believe militate against the conclusion urged by appellant in this case that the resolution itself was struck down and that, consequently, the prosecution based on failure to answer questions propounded by the Subcommittee was fatally defective.

In the first place, we believe that if the Court had intended to strike down the resolution, it would have said so in so many words. It would not have left so vital an issue to inference or interpretation. The far-reaching result of such a holding would be that the Committee, established by action of the entire House of Representatives, would be rendered helpless and would not even be able to summon a witness, much less have him testify. Nothing less would be an immediate consequence. Certainly nowhere in the Watkins opinion does the Court use language essential to effectuate the result contended for by appellant and, on remand, there is no such direction to us to strike down the resolution or to hold invalid the indictment brought for failure to answer questions pertinent to the subject under inquiry. In the absence of a clear expression from the Court we do not take this position.

In the second place, had the Supreme Court struck down the resolution creating the Committee the matter would have been ended, without the further, extended discussion found in Watkins. We cannot assume the rest of the opinion to be, nor do we read it as, mere dictum. On the contrary, it is clear the Court was familiar with the present case as it is specifically referred to in

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note 34 of the opinion in Watkins. The Court certainly knew, therefore, that Barenblatt's conviction grew out of testimony taken under the same resolution. Moreover, it is reasonable to assume that, had the resolution under which both Watkins and Barenblatt were questioned been stricken in its entirety, this case would have been reversed on authority of Watkins rather than remanded for consideration 'in light of' that opinion. We read Watkins as demonstrating the necessity of more than ordinary caution in upholding First Amendment rights of individuals who are summoned before committees or subcommittees which operate under resolutions infected with the vagueness criticized in Watkins.

We do believe that the Supreme Court was of the opinion that the vagueness of the resolution made it necessary, and only fair, that the witness be apprised of the particular matter under inquiry by the Committee or Subcommittee holding the hearings, and, on objection, of the pertinency of the questions involved in the inquiry.

Thirdly, the Supreme Court cited in Watkins a number of cases, both in that Court and in Courts of Appeals, bearing on convictions sustained under the same resolution. 5 There is no suggestion that those decisions were repudiated or that their reasoning was erroneous. One finds no intimation that the cases should have been decided by the simple process of voiding the resolution establishing the Committee. We are of clear opinion that Watkins did not void H. Res. 282, 75th Cong., 3d Sess., or H. Res. 5, 79th Cong., 1st Sess. 6

Apart from our present review in light of Watkins, we have reconsidered the case also in light of Sweezy v. State of New Hampshire, 1957, 354 U.S. 234, 77 S.Ct. 1203, 1 L.Ed.2d 1311. Appellant argues that there the Court emphasizes by analogy the fallibility of the resolution creating the Committee. Sweezy refused to answer questions in the course of an investigation by the State Attorney General acting under a resolution of the State Legislature relating to subversive activities. The Supreme Court there held that the investigation had deprived Sweezy of due process of law under the Fourteenth Amendment, and concluded that the record did not sustain the power of the State of New Hampshire to compel the disclosures that the witnesses refused to make. At the outset of the hearing, Sweezy had raised the question of pertinency as well as the question of violation of First Amendment rights. The Court further pointed out that there was no assurance...

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