United States v. Yellin, 13097.

• Decision Date: 03 April 1961
• Docket Number: No. 13097.,13097.
• Citation: 287 F.2d 292
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edward YELLIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

287 F.2d 292 (1961)

UNITED STATES of America, Plaintiff-Appellee, v. Edward YELLIN, Defendant-Appellant.

No. 13097.

United States Court of Appeals Seventh Circuit.

February 16, 1961.

Rehearing Denied April 3, 1961.

Victor Rabinowitz, New York City, Burton D. Wechsler, Gary, Ind., for appellant.

J. Walter Yeagley, Asst. Atty. Gen., Internal Security Division, U. S. Dept. of Justice, Washington, D. C., Kenneth C. Raub, U. S. Atty., Hammond, Ind., Kevin T. Maroney, Lee B. Anderson, Attys., Dept. of Justice, Washington, D. C., for appellee.

Before SCHNACKENBERG, KNOCH and CASTLE, Circuit Judges.

KNOCH, Circuit Judge.

Defendant was indicted in five counts for the offense of contempt of Congress, in violation of Title 2 U.S.C.A. § 192,¹ in willfully refusing to answer questions pertinent to the subject then under inquiry² by the House of Representatives' Committee on Un-American activities. Each count alleged refusal to answer a single question. The fifth count was dismissed on motion of the government. Counts I to IV, inclusive, listed the following questions:

"I. Mr. Yellin, where did you reside prior to September 1957?

"II. Will you tell the committee, please, whether or not incidents came to your attention of the colonization of the steel unions in Gary by the Communist Party at any time prior to September 1957?

"III. Were you a member of the Communist Party on the 23d of June, 1949, which is the date of application filed in your name for employment in Gary?

"IV. Will you tell the committee whether or not in 1957 there were present in any of the steel unions at Gary, Indiana, persons who were known to you to have been colonizers of the Communist Party?"

Defendant waived jury trial. The District Court found him guilty as charged in Counts I to IV, inclusive, and imposed concurrent sentences of one year on each count, plus a fine of $250. Defendant took this appeal.

Defendant argues that he was subpoenaed to testify in February, 1958, a few months after the United States Supreme Court had decided Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273 (June 1957), and that, relying on Watkins, he believed that he was not required to answer the questions put to him. Therefore, he contends that he cannot be said to have had the requisite criminal intent to support conviction. He further contends that:

"Rule XI of the House Rules, which defines the jurisdiction of the House Committee on Un-American activities, is so unclear on its face that it cannot support a criminal charge."

The pertinent portions of the Rule read:

"17. Committee on Un-American Activities. * * *

"(b) The Committee on Un-American Activities, as a whole or by subcommittee, is authorized to make from time to time investigations of (1) the extent, character, and objects of un-American propaganda activities in the United States, (2) 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 (3) all other questions in relation thereto that would aid Congress in any necessary remedial legislation.

"The Committee on Un-American Activities shall report to the House (or to the Clerk of the House if the House is not in session) the results of any such investigation, together with such recommendations as it deems advisable.

"For the purpose of any such investigation, the Committee on Un-American Activities, or any subcommittee thereof, is authorized to sit and act at such times and places within the United States, whether or not the House is sitting, has recessed, or has adjourned, to hold such hearings, to require the attendance of such witnesses and the production of such books, papers, and documents, and to take such testimony, as it deems necessary. Subpenas may be issued under the signature of the chairman of the committee or any subcommittee, or by any member designated by any such chairman, and may be served by any person designated by any such chairman or member. * * *

"26. To assist the House in appraising the administration of the laws and in developing such amendments or related legislation as it may deem necessary, each standing committee of the House shall exercise continuous watchfulness of the execution by the administrative agencies concerned of any laws, the subject matter of which is within the jurisdiction of such committee; and, for that purpose, shall study all pertinent reports and data submitted to the House by the agencies in the executive branch of the Government."

On January 15, 1958, the Committee had adopted a resolution to hold hearings in Gary, Indiana. Under authority of an earlier resolution, January 22, 1957, Chairman Francis E. Walter designated a three-man subcommittee, with himself as its Chairman, to conduct hearings in Gary on February 10 and 11, 1958.

Defendant makes a point of the fact that the U. S. Supreme Court did not decide Barenblatt v. United States, 1959, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115 until after his refusal to answer the subcommittee's questions. In Barenblatt, the Supreme Court had held that the House Committee on Un-American Activities and its subcommittees were authorized by compulsory process to investigate Communist activities in this country, and that the record there, (as in the case before us) refuted the contention that the defendant was not adequately apprised of the pertinency of the subcommittee's questions to the subject matter of the inquiry. We do not agree with defendant that Barenblatt modified the earlier holding in Watkins. The facts differed. In distinguishing Watkins, the Supreme Court states in Barenblatt, 360 U.S. at page 123, 79 S.Ct. at page 1091:

"And the questions asked the petitioner were not only amorphous on their face, but in some instances clearly foreign to the alleged subject matter of the investigation — * *"

Defendant quotes from Barenblatt, 360 U.S. at page 126, 79 S.Ct. at page 1093, that:

"Where First Amendment rights are asserted to bar governmental interrogation resolution of the issue always involves a balancing by the courts of the competing private and public interests at stake in the particular circumstances shown."

Defendant argues that he was, therefore, entitled to introduce testimony relating to such balance of interests in the circumstances shown here. Defendant called Professor Thomas I. Emerson, Professor of Law at Yale University, to testify as an expert on the issue of balancing the public and private interests in this case. The District Court sustained the government's objection that this constituted opinion evidence on matters of law and invaded the province of the Court. Aside from the rejected testimony, defendant argues that there was little value to the testimony sought to be elicited from him; that it was solely cumulative in nature, the subcommittee having taken much evidence on this subject in other areas; and that it was insufficient to outbalance the defendant's substantial rights under the First Amendment to the Constitution.

Rule IV-A (1) of the Committee's Rules of Procedure provides:

"If a majority of the Committee or Subcommittee, duly appointed as provided by the rules of the House of Representatives, believes that the interrogation of a witness in a public hearing might endanger national security or unjustly injure his reputation, or the reputation of other individuals, the Committee shall interrogate such witness in an Executive Session for the purpose of determining the necessity or advisability of conducting such interrogation thereafter in a public hearing."

Defendant's counsel, under date of February 6, 1958, had sent a telegram to Frank Tavenner, the Committee's counsel, at Washington, D. C., requesting:

"Executive session in lieu of open session, testimony needed for legislative purposes * * * can be secured in executive session without exposing witnesses to publicity."

Mr. Tavenner testified in the District Court that he was no longer in Washington when the telegram arrived, having already left for Gary. The Staff Director, Richard Arens, on February 6, 1958, sent defendant's counsel an answering telegram advising him that his request was denied. The Chairman, Congressman Walter, at the hearing on February 10, 1958, refused to allow defendant's counsel to read the two telegrams into the record, although he did state that their inclusion in the record would be considered in executive session. Both telegrams are a part of the record before us. Defendant characterizes these actions of the Committee as a failure to adhere to its own rules, which excused defendant's refusal to answer questions in public session.

Defendant further contends that the questions set out in Counts II and IV are too vague to support an indictment and that the Committee has in fact no genuine legislative purpose.

Defendant sees the contested issues as:

"1. Was appellant guilty of a willful violation of 2 U.S.C.A. 192?

"2. Did the District Court err in refusing to admit the profferred sic testimony of Professor Thomas I. Emerson?

"3. On this record, does the public interest in securing answers to the questions put to appellant outweigh his interest in protecting his rights under the First Amendment?

"4. Did the Committee violate its own rules in refusing to grant or to consider appellant\'s request for an executive session?

"5. Were the questions contained in Counts 2 and 4 too vague to support a criminal indictment?

"6. Does the House Committee on Un-American Activities have a genuine legislative purpose?"

The record shows that at the opening of the proceedings in Gary, on February 10, 1958, the Chairman, Congressman Walter, stated the purpose of the hearing, as set out in the resolution of January 15, 1958, to inquire into:

"1. The extent, character and objects of Communist infiltration and Communist Party propaganda activities in

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