Emspak v. United States

• Decision Date: 23 May 1955
• Docket Number: No. 9,9
• Citation: 349 U.S. 190,99 L.Ed. 997,75 S.Ct. 687
• Parties: Julius EMSPAK, Petitioner, v. UNITED STATES of America. Re
• Court: U.S. Supreme Court

349 U.S. 190

75 S.Ct. 687

99 L.Ed. 997

Julius EMSPAK, Petitioner,

v UNITED STATES of America.

No. 9.

Reargued April 4, 5, 1955.

Decided May 23, 1955.

Messrs. David Scribner and Frank J. Donner, New York City, for petitioner.

Mr. Robert W. Ginnane, Washington, D.C., for respondent.

Mr. Chief Justice WARREN delivered the opinion of the Court.

This is a companion case to Quinn v. United States, 349 U.S. 155, 75 S.Ct. 668. Challenged in each proceeding is a conviction under 2 U.S.C. § 192, 2 U.S.C.A. § 192, in the District Court for the District of Columbia.¹ The two cases arose out of the same investigation by the Committee on Un-American Activities of the House of Representatives. Because of the similarity of the legal issues presented, the cases were consolidated for argument in this Court.

Pursuant to subpoena, petitioner appeared on December 5, 1949, before a subcommittee of the Committee on Un-American Activities. The subcommittee consisted of a single member, Rep. Morgan M. Moulder. Petitioner was then the General Secretary-Treasurer of the United Electrical, Radio & Machine Workers of America as well as Editor of the UE News, the union's official publication. The subcommittee's hearings had previously been announced as concerning 'the question of Communist affiliation or association of certain members' of the union and 'the advisability of tightening present security requirements in industrial plants working on certain Government contracts.'²

Petitioner was asked a total of 239 questions. Most dealt with the structure of the union, the duties of its officers, the scope of its membership and bargaining commitments, the alleged similarity in policies of the UE News and the Communist Party, the non-Communist affidavit that petitioner had filed with the National Labor Relations Board, and related matters. Petitioner answered all of these questions. He declined, however, to answer 68 of the 239 questions. These 68 questions dealt exclusively with petitioner's associations and affiliations. He based his refusal on 'primarily the first amendment, supplemented by the fifth.'³ Of the 68 questions, 58 asked in substance that he state whether or not he was acquainted with certain named individuals and whether or not those individuals had ever held official positions in the union. Two of the questions concerned petitioner's alleged membership in the National Federation for Constitutional Liberties and the Civil Rights Congress. Eight questions concerned petitioner's alleged membership and activity in the Communist Party.

On November 20, 1950, petitioner was indicted under § 192 for his refusal to answer the 68 questions.⁴ Sitting without a jury, the District Court held that petitioner's references to 'primarily the first amendment, supplemented by the fifth' were insufficient to invoke the Fifth Amendment's privilege against self-incrimination.⁵ The District Court accordingly found petitioner guilty on all 68 counts and sentenced him to a term of six months and a fine of $500. The Court of Appeals for the District of Columbia Circuit, three judges dissenting, affirmed en banc.⁶ From that decision this Court granted certiorari.⁷

I.

As pointed out in Quinn v. United States, 349 U.S. 155, 75 S.Ct. 668, no ritualistic formula or talismanic phrase is essential in order to invoke the privilege against self-incrimination. All that is necessary is an objection stated in language that a committee may reasonably be expected to understand as an attempt to invoke the privilege. In the Quinn case we hold that Quinn's references to "the First and Fifth Amendments" and "the First Amendment to the Constitution, supplemented by the Fifth Amendment" were sufficient to meet this standard. It would be unwarranted, we think, to reach a different conclusion here as to petitioner's plea based on 'primarily the first amendment, supplemented by the fifth.'

The Government does not even attempt to distinguish between the two cases in this respect. Apparently conceding that petitioner as well as Quinn intended to invoke the privilege, the Government points out 'the probability' that his references to the Fifth Amendment were likewise deliberately phrased in muffled terms 'to obtain the benefit of the privilege without incurring the popular opprobrium which often attaches to its exercise.'⁸ On this basis the Government contends that petitioner's plea was not adequate. The answer to this contention is threefold. First, an objection that is sufficiently clear to reveal a probable intention to invoke the privilege cannot be ignored merely because it is not phrased in an orthodox manner. Second, if it is true that in these times a stigma may somehow result from a witness' reliance on the Self-Incrimination Clause, a committee should be all the more ready to recognize a veiled claim of the privilege. Otherwise, the great right which the Clause was intended to secure might be effectively frustrated by private pressures. Third, it should be noted that a committee is not obliged to either accept or reject an ambiguous constitutional claim the very moment it is first presented. The way is always open for the committee to inquire into the nature of the claim before making a ruling. If the witness intelligently and unequivocally waives any objection based on the Self-Incrimination Clause, or if the witness refuses a committee request to state whether he relies on the Self-Incrimination Clause, he cannot later invoke its protection in a prosecution for contempt for refusing to answer that question.

The Government argues that petitioner did in fact waive the privilege, at least as to one count of the indictment, and that the conviction can be sustained on that count alone.⁹ In response to a question concerning his associations, petitioner expressed apprehension that the committee was 'trying to perhaps frame people for possible criminal prosecution' and added that 'I think I have the right to reserve whatever rights I have. * * *'¹⁰ The following colloquy then took place:¹¹

'Mr. Moulder. Is it your feeling that to reveal your knowledge of them would subject you to criminal prosecution?

'Mr. Emspak. No. I don't think this committee has a right to pry into my associations. That is my own position.'

Petitioner's reply, it is contended, constituted an effective disclaimer of the privilege. We find this contention without merit. As this Court declared in Smith v. United States, 337 U.S. 137, 150, 69 S.Ct. 1000, 1007, 93 L.Ed. 1264: 'Although the privilege against self-incrimination must be claimed, when claimed it is guaranteed by the Constitution. * * * Waiver of constitutional rights * * * is not lightly to be inferred. A witness cannot properly be held after claim to have waived his privilege * * * upon vague and uncertain evidence.'

The Smith case, we believe, is controlling here. The witness in that case, at the outset of questioning by an OPA examiner, stated "I want to claim privilege as to anything that I say." The examiner accepted this statement as a plea of possible self-incrimination and a request for the immunity afforded to involuntary witnesses by the Price Control Act of 1942, 50 U.S.C.A.Appendix, § 901 et seq. The questioning proceeded on that basis. In response to one question, however, the witness made a statement that appeared to the examiner to be voluntary. This colloquy then ensued:

'Question. This is a voluntary statement. You do not claim immunity with respect to that statement? Answer. No.'

In a subsequent prosecution of the witness for violation of the Price Control Act, it was held that his 'No' answer waived his immunity at least as to the one statement.¹² This Court unanimously reversed, stating, 337 U.S. at page 151, 69 S.Ct. at page 1007: 'Without any effort to clarify the 'No', the examiner went ahead and had the witness restate the substance of the long answer * * * without any further intimation that the subsequent answers were considered by the examiner to be voluntary. We do not think under these circumstances this equivocal 'No' is a waiver of the previous definite claim of general privilege against self-incrimination.' Similarly, in the instant case, we do not think that petitioner's 'No' answer can be treated as a waiver of his previous express claim under the Fifth Amendment. At most, as in the Smith case, petitioner's 'No' is equivocal.¹³ It may have merely represented a justifiable refusal to discuss the reasons underlying petitioner's assertion of the privilege; the privilege would be of little avail if a witness invoking it were required to disclose the precise hazard which he fears.¹⁴ And even if petitioner's 'No' answer were taken as responsive to the question, the answer would still be consistent with a claim of the privilege. The protection of the Self-Incrimination Clause is not limited to admissions that 'would subject (a witness) to criminal prosecution'; for this Court has repeatedly held that 'Whether such admissions by themselves would support a conviction under a criminal statute is immaterial'¹⁵ and that the privilege also extends to admissions that may only tend to incriminate.¹⁶ In any event, we cannot say that the colloquy between the committee and petitioner was sufficiently unambiguous to warrant finding a waiver here. To conclude otherwise would be to violate this Court's own oft-repeated admonition that the courts must 'indulge every reasonable presumption against waiver of fundamental constitutional rights.'¹⁷

Throughout this entire proceeding—in the trial in the District Court, on appeal in the Court of Appeals, and here on certiorari-the Government has never denied that petitioner would be entitled to the protection of the privilege if he did in fact invoke it. And during argument in this Court the Government expressly conceded that all 68 questions were of an incriminatory character. In addition, neither the District Court nor the Court of Appeals saw fit to introduce the...