Shelton v. United States

• Decision Date: 30 December 1963
• Docket Number: No. 17904.,17904.
• Parties: Robert SHELTON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

327 F.2d 601 (1963)

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

No. 17904.

United States Court of Appeals District of Columbia Circuit.

Argued September 23, 1963.

Decided December 30, 1963.

Mr. Joseph L. Rauh, Jr., Washington, D. C., with whom Messrs. John Silard and Daniel H. Pollitt, Washington, D. C., were on the brief, for appellant.

Mr. William Hitz, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Frank Q. Nebeker, Asst. U. S. Atty., and Robert L. Keuch, Attorney, Dept. of Justice, were on the brief, for appellee.

Before WILBUR K. MILLER, WASHINGTON and WRIGHT, Circuit Judges.

WRIGHT, Circuit Judge.

Appellant, Robert Shelton, was convicted¹ of unlawful refusal to answer two questions² propounded to him by the Subcommittee to Investigate the Administration of the Internal Security Act and Other Internal Security Laws of the Senate Judiciary Committee. His prior conviction on the same charges was reversed for failure of the first indictment to allege the limited subject under inquiry at the time the questions were asked. Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). At the second trial new testimony raised legal issues not considered in our first Shelton decision, 108 U.S. App.D.C. 153, 280 F.2d 701 (1960), which we find require reversal.³

At the first trial Subcommittee counsel Sourwine testified that there had been received an anonymous letter suggesting that a "Shelton" of the New York Times could give the Subcommittee useful information concerning Communist infiltration of the press. It was for this reason, he said, that he included the name "Willard Shelton"⁴ on a proposed list of witnesses to be subpoenaed which he submitted to the Subcommittee chairman for approval. At the second trial⁵ Sourwine testified he did not inform the Subcommittee chairman or any other member of the Subcommittee about the letter⁶ or communicate to them any other reason for selecting "Willard Shelton."⁷ As a matter of fact, no effort was made, according to Subcommittee counsel, to explain the reason for subpoenaing any particular witness.⁸ The Subcommittee chairman was merely advised in general terms why counsel wanted subpoenas to issue. The record indicates that the subpoenas were prepared under the direction of the Subcommittee counsel and submitted to the chairman for signature. It does not appear, however, that the chairman always signed the subpoenas himself, having on occasion delegated that function to his administrative assistant.

On the first trial, appellant repeatedly attempted, without success, to have Subcommittee counsel produce the anonymous letter which he claimed supported the subpoena for a "Shelton." Sourwine maintained it was still in existence, but the Government simply declined to produce it. At the second trial, when appellant made an attempt to obtain the letter, Sourwine testified that while appellant Robert Shelton's first conviction was pending on appeal he had the letter destroyed as obsolete, through inadvertence.

Shelton contends that his First Amendment rights as an individual and as a member of the press were violated by the Subcommittee's effort to have him answer questions. At the time he refused to answer questions, asserting his First Amendment freedom, he told the Subcommittee that it was "peeking over my shoulder" while he was writing for the Times and "nudging the end of my copy pencil." He asserts here that, in addition to attempting to influence what he wrote, the Subcommittee lacked probable cause under the First or Fourth Amendments⁹ to subpoena him. He states he was the victim of the accidental subpoenaing of the wrong Shelton. He also maintains that the Subcommittee violated its own rules in subpoenaing him, a point not raised on the prior appeal.

The Government asserts that the Subcommittee's investigation was of Communism, not of the press; that Shelton was subpoenaed on the basis of an anonymous letter which satisfied any need for probable cause under the First or Fourth Amendments; and that the subpoena for Shelton was validly issued over the signature of the chairman of the Subcommittee on the recommendation of Subcommittee counsel.

In this case we tread in the delicate area of First Amendment freedoms. As in Rumely v. United States, 90 U.S.App. D.C. 382, 197 F.2d 166 (1952), affirmed, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770 (1953), this court is asked to resolve a conflict between the informing function of Congress and appellant's First Amendment freedom as an individual and as a member of the press. We are asked to weigh the interest of the Government to obtain information in an area which may affect national security and the competing interest of the individual to be free from compulsory participation in such an inquiry. In short, we are asked to balance Congress' need to know against the right of the individual and the press to be let alone.¹⁰

Unquestionably, "the power of the Congress to conduct investigations is inherent in the legislative process. That power is broad." Watkins v. United States, supra Note 9, 354 U.S. at 187, 77 S.Ct. at 1179, 1 L.Ed.2d 1273. But "the Bill of Rights is applicable to investigations as to all forms of governmental action. Witnesses cannot be compelled to give evidence against themselves. They cannot be subjected to unreasonable search and seizure. Nor can the First Amendment freedoms of speech, press, religion, or political belief and association be abridged." Id., 354 U.S. at 188, 77 S.Ct. at 1179, 1 L.Ed. 2d 1273. Thus in this case we are asked to stake out the limits of the investigative power of Congress insofar as that power affects the First Amendment rights of Shelton as a member of the press. We shrink from this awesome task and adopt a narrower disposition of this case which will not require the resolution of the constitutional problem presented.

In so doing, we press into service our opinion in Rumely v. United States, supra. There, faced with the same problem, we found that by an interpretation of the resolution which created the House Committee before which Rumely, a publisher, refused to testify and produce documents, we could avoid the constitutional question. We found that the resolution did not authorize the type of inquiry addressed to Rumely, and his contempt conviction was set aside.

In affirming that disposition, the Supreme Court indicated that even a strained interpretation of the congressional resolution was preferable to deciding the case on a constitutional basis. The Court noted that "to give such meaning is not barred by intellectual honesty. So to interpret is in the candid service of avoiding a serious constitutional doubt." United States v. Rumely, 345 U.S. 41, 47, 73 S.Ct. 543, 546, 97 L.Ed. 770 (1953). Fortunately, here straining is unnecessary, for the charter of the Subcommittee makes clear that the Shelton subpoena was invalidly issued.

The Senate Internal Security Subcommittee was created pursuant to Senate Resolution 366 of the Eighty-first Congress, Second Session. Section 2 of that resolution outlines the power of the Subcommittee with respect to the attendance of witnesses at hearings: "The committee, or any duly authorized subcommittee thereof, is authorized * * * to require by subpenas or otherwise the attendance of such witnesses * * * as it deems advisable.¹¹ * * * Subpenas shall be issued by the chairman of the committee or the subcommittee, and may be served by any person designated by such chairman." Examination of this authorization discloses that the resolution divides the authority with respect to the attendance of witnesses into two parts. The first gives to the committee or subcommittee itself the discretionary function of calling such witnesses "as it deems advisable." Thus it places in the Subcommittee the power and the responsibility¹² of deciding who shall be called. It then places the mechanical or ministerial function of issuing the subpoenas in the chairman.

Here, admittedly,¹³ the Subcommittee did not determine the witnesses to be called. But the Government points to Rule 2 of the Subcommittee's rules and argues that, since the Subcommittee itself has interpreted the resolution in its Rule 2, the court must accept that interpretation. Rule 2, however, merely refers to the ministerial duty of issuing subpoenas. It says: "Subpenas for attendance of witnesses * * * shall be issued by the subcommittee chairman or by any other member of the subcommittee designated by him." Thus Rule 2 would allow the chairman to delegate his ministerial responsibility under the resolution for issuing subpoenas to another member of the Subcommittee. Rule 2 makes no reference whatever to the discretionary function of calling witnesses "it deems advisable," which function Senate Resolution 366 imposes on the Subcommittee itself.¹⁴ Since the Subcommittee did not authorize the issuance of the subpoena to Shelton, the subpoena was invalid. Compare Yellin v. United States, 374 U.S. 109, 83 S.Ct. 1828, 10 L.Ed.2d 778 (1963).

Actually, one cannot read this record without realizing that the whole function of determining who the witnesses would be was de facto delegated to the Subcommittee counsel. Not even the chairman, by his own admission and that of the Subcommittee counsel, made the decision to call Shelton, nor did he know why Shelton was called. Thus, assuming the language of Senate Resolution 366, "The committee may require by subpena or otherwise the attendance of such witnesses * * * as it deems advisable," can be read to mean "as the chairman deems advisable," still the subpoena to call Shelton was invalid because the decision to issue it was de facto made by Subcommittee counsel alone.

As its final argument¹⁵ on this point, the Government says that, in any event, the Subcommittee, by its presence at the time Shelton refused to answer the questions, ratified his appearance as a witness. We do not agree....