Shelton v. United States

• Decision Date: 18 June 1960
• Docket Number: No. 13737.,13737.
• Citation: 280 F.2d 701
• Parties: Robert SHELTON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

280 F.2d 701 (1960)

Robert SHELTON, Appellant, v. UNITED STATES of America, Appellee.

No. 13737.

United States Court of Appeals District of Columbia Circuit.

Argued November 2, 1959.

Decided June 18, 1960.

Mr. Joseph L. Rauh, Jr., Washington, D. C., with whom Mr. John Silard, 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 and Harold D. Rhynedance, Jr., Asst. U. S. Atty., were on the brief, for appellee.

Mr. John D. Lane, Asst. U. S. Atty., also entered an appearance for appellee.

Before WASHINGTON, BASTIAN and BURGER, Circuit Judges.

BURGER, Circuit Judge.

This is an appeal from conviction and judgment after trial in the District Court for contempt of Congress growing out of refusal to answer questions asked by the Senate Internal Security Subcommittee.^*

Shelton, a copy editor of a New York newspaper, was subpoenaed and appeared, first in executive session in New York City on December 7, 1955, and later in open sessions of the Senate Internal Security Subcommittee in Washington, about a month later. At both hearings he refused to answer questions on the subject of membership in the Communist Party and as to whether he had ever had conversations with a certain named person identified by the Committee as a Communist. He was convicted for contempt on two counts for refusal to answer questions.¹ At Shelton's request he was tried without a jury.

The Subcommittee was operating under a Senate Resolution adopted in 1950,² and continued thereafter,³ which empowered it to make a complete and continuing study and investigation of (1) the administration, operation and enforcement of the Internal Security Act of 1950, 50 U.S.C.A. § 781 et seq.; (2) the administration, operation and enforcement of other laws relating to espionage, sabotage, and the protection of the internal security of the United States; and (3) the extent, nature and effect of subversive activities in the United States, including, but not limited to, espionage, sabotage, and infiltration by persons under the domination of the foreign government or organizations controlling the World Communist movement seeking the overthrow of the United States Government by force and violence.

Under this Resolution the Subcommittee had previously heard testimony from one Winston M. Burdett, a well known journalist, foreign correspondent and newscaster, who had been a member of the Communist Party from 1937 to the early 1940's. Burdett cooperated fully with the Subcommittee and gave information including names of persons with whom he had worked; he did not refer to appellant. Later the hearings involved in this case were called as part of a program "to pursue every lead which developed out of the Burdett testimony."⁴

Some time before appellant was first subpoenaed to appear the Subcommittee had received a letter stating that one "Shelton" who worked for the New York Times was informed about if not active in a "Communist Group" and knew of the Communist Party activities in newspapers. The author of the letter was not identified in the record but there was testimony that he was known to the Subcommittee as a source of reliable information on other occasions. Thereafter a subpoena was issued addressed to "Willard Shelton." In attempting to make service the process server learned that there was no "Willard" Shelton employed by the New York Times, but that a "Robert" Shelton was employed as a news copy editor. The Subcommittee then authorized amendment of the subpoena to add the words "or Robert Shelton," and it was served on Robert Shelton, appellant here.

The record indicates that at the outset of appellant's appearance before the executive session, the Subcommittee was uncertain whether appellant was indeed the person they thought to be in possession of information about Communist Party activities in newspapers generally or in his own newspaper. He was interrogated as to his background in order to clear up the question of identity, and in the course of that interrogation was asked and refused to answer substantially the questions set out in the margin, footnote 1. He was recalled 30 days later when the Subcommittee was holding public sessions.

At the opening of the public hearings in Washington on January 4, 1956, the Chairman pointed up the purpose of the inquiry, stating that the Subcommittee "could not be unmindful * * * that among the persons involved in this investigation have been many who were or are members of the press, and that the international Communist conspiracy has as one of its primary aims the influencing of public opinion, thus carrying on its psychological warfare against the United States and its institutions from inside by methods of penetration."⁵ Early in the hearing Senator Hennings, a member of the Subcommittee, stated:

"* * * that it be generally known and understood that this is not an attack upon any one newspaper, upon any group of newspapers as such, but an effort on the part of this committee to show such participation and such attempt as may be disclosed on the part of the Communist Party in the United States or elsewhere, indeed, to influence or to subvert the American press."⁶

The Subcommittee thus defined the general area of this series of hearings.

Immediately before appellant was called to the stand at the January 6 session, Senator Hennings also commented in part:

"I think that no one will quarrel with nor take issue with the fact that this committee has the right to inquire into all efforts or, indeed, all consummations of efforts of the Communist Party to infiltrate newspapers or other media of communication. * * *

* * * * *

"* * * And I do think in the interest of justice and in the interests of preserving the integrity and the high standing of this committee, we should be particularly cautious and aware of the possibility of unnecessarily calling one before us who may have nothing to add to the general subject matter of our inquiry and who may be seriously damaged in his own personal and professional life."⁷

The Chairman at the same time referred to a telegram from the Long Island Press asking the Subcommittee to do what it could to emphasize that it had led in efforts to expose Communist infiltration of the press and that it was supporting the Subcommittee's work. The Chairman commented: "The committee is not investigating the Long Island Press or any other newspaper. We are aware of the fact that the Long Island Press was alert to the danger of the Communist infiltration from a very early date and was aggressive and effective in combating this danger in its own organization."⁸ Upon being called to take the stand at this point appellant challenged the Subcommittee's power to call him as a witness.

Shelton was then asked the questions set forth in the indictment and he refused to answer. He was duly cited for contempt for his refusal and upon being tried was found guilty as charged. Appellant did not rely on the Fifth Amendment to the Constitution as a reason for his refusal to answer questions.

Appellant urges numerous errors in the proceeding below. Briefly stated, they are:

(1) That Part 3 of Senate Resolution 366 is too vague and imprecise to authorize or permit the Subcommittee to compel answers.

(2) That appellant could fairly refuse to answer the questions since he was not told the "subject under inquiry," as required.

(3) That the pertinency of the questions to the subject matter was not explained.

(4) That the very nature of the questions violated appellant's First Amendment rights.

(5) That the indictment was faulty in failing to set out the "question under inquiry."

(6) That appellant need not answer any questions as the Subcommittee did not have "probable cause" to call him.

(1) The challenge to Senate Resolution 366, Part 3, as too vague to authorize the Subcommittee to compel answers to any questions must fall for several reasons. The Resolution as a whole and Part 3 in particular is more explicit than the House Resolution sustained by the Supreme Court in Barenblatt v. United States, 1959, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115. The criticism of vagueness seemingly directed at the House Resolution in Watkins v. United States, 1957, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273, does not in any event apply to Senate Resolution 366. In the recent Barenblatt case the Supreme Court confirmed the power of Congress to investigate activities of this character. Since its creation the Subcommittee has devoted itself to investigating subversive activities and Communist infiltration in many phases of American life, including infiltration in key industries, in television, radio and the press. Congressional awareness and approval of the work of the Committee can be found in numerous reports to the Congress by the parent Committee, and in repeated appropriations for its work.⁹ In one report to the Senate the Committee specifically referred to the so-called "Burdett hearings" and other sessions in New York, relating to Communist efforts to infiltrate newspapers.¹⁰ Whatever may have been argued at one time as to possible infirmities or vagueness in Resolution 366 under which the Committee was acting, the Barenblatt case and the legislative gloss attached to the Resolution has put this issue to rest.

(2) Appellant contends he was not informed of the subject or topic under inquiry and hence could not fairly decide whether he could be compelled to answer. The record discloses that at the opening of the hearings the investigation was expressly described as directed at the efforts and activities of the "international Communist conspiracy" to influence American public opinion through the press. Senator Hennings also stated the hearings were for the purpose of showing "such participation and such attempt as may be disclosed on the part of the Communist Party * * * to influence or to subvert the American...