Bart v. United States

• Decision Date: 23 May 1955
• Docket Number: No. 117,117
• Citation: 99 L.Ed. 1016,349 U.S. 219,75 S.Ct. 712
• Parties: Philip BART, Petitioner, v. UNITED STATES of America
• Court: U.S. Supreme Court

349 U.S. 219

75 S.Ct. 712

99 L.Ed. 1016

Philip BART, Petitioner,

v UNITED STATES of America.

No. 117.

Argued April 5, 1955.

Decided May 23, 1955.

Messrs. James T. Wright, Washington, D.C., A. L. Wirin, Los Angeles, Cal., for petitioner.

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

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

On November 20, 1950, the petitioner was indicted under 2 U.S.C. § 192, 2 U.S.C.A. § 192, for refusing to answer thirty-two questions put to him by a subcommittee of the Committee on Un-American Activities of the House of Repre- sentatives. During the trial in the District Court for the District of Columbia, the Government abandoned twenty-four of these counts. The District Judge, sitting without a jury, found Bart guilty of the remaining eight charges.¹ On appeal, the Court of Appeals for the District of Columbia Circuit reversed the judgment upon three of the counts and, one judge dissenting, affirmed as to the others.² From that decision, we granted certiorari³ and set the case down for argument along with the two companion cases. Quinn v. United States, 349 U.S. 155, 75 S.Ct. 668, and Emspak v. United States, 349 U.S. 190, 75 S.Ct. 687.

In response to a subpoena, petitioner appeared before the subcommittee on June 21, 1950. He was then general manager both of Freedom of the Press Co., Inc., which publishes the Daily Worker, and of the Daily Worker itself. During the course of the interrogation, members of the committee and the committee counsel posed various questions dealing with Bart's background, his activities, and alleged associates. Among these were the five questions which, because of petitioner's refusal to answer, led to the convictions now under scrutiny. The particular inquiries involve petitioner's name when he came to this country as a child, his name before it was changed years ago to Philip Bart pursuant to a New York court order,⁴ his father's name, and the identity of officials of the Ohio section of the Communist Party in 1936.⁵ To the questions concerning name or family background, he raised objections of pertinency; to the other, he unequivocally pleaded the privilege against self-incrimination.

In finding petitioner guilty, the trial court rejected these defenses as without merit. Before the Court of Appeals, petitioner abandoned his defense as to lack of pertinency. The majority thought that this abandonment in effect erased petitioner's objections from the committee record and that they were thus faced with 'naked refusals to answer'⁶ which did not require affirmative rulings from the committee. We cannot agree. The objections were in fact made before the committee and the witness was entitled to a clear-cut ruling at that time, even though the claims were later abandoned or found to be invalid. Quinn v. United States, supra. Without such a ruling, evidence of the requisite criminal intent to violate § 192 is lacking. An abandonment made two and one-half years after the objections were raised cannot serve retroactively to eliminate the need for a ruling. If the requirement of criminal intent is not satisfied at the time of the hearing, it cannot be satisfied nunc pro tunc by a later abandonment of petitioner's objection.⁷ Therefore, the issue before us is, upon the record as it stood at the completion of the hearing, whether petitioner was apprised of the committee's disposition of his objections.

At no time did the committee directly overrule petitioner's claims of self-incrimination or lack of pertinency. Nor was petitioner indirectly informed of the committee's position through a specific direction to answer. At one juncture, Congressman Case made the suggestion to the chairman that the witness 'be advised of the possibilities of contempt'⁸ for failure to respond, but the suggestion was rejected. The chairman stated:

'No. He has counsel. Counsel knows that is the law. Proceed, Mr. Tavenner.' ⁹

A few moments later, when committee counsel inquired as to certain details of petitioner's marriage, the following colloquy took place:

'Mr. Unger (Counsel for petitioner). Mr. Chairman, what concern is it of anybody here—

'Mr. Walter. We permit you to appear with your client for the purpose of advising your client. You apparently are old enough to have had some experience in court.

'Mr. Unger. Yes, indeed.

'Mr. Walter. Of course, you know there are many preliminary questions asked witnesses, leading up to some point. As they are propounded you will readily learn what the purpose is. Just advise your client and don't argue with the committee, because we don't rule on objections.'¹⁰

The questioning proceeded on this basis.

Because of the consistent failure to advise the witness of the committee's position as to his objections, petitioner was left to speculate about the risk of possible prosecution for contempt; he was not given a clear choice between standing on his objection and compliance with a committee ruling.¹¹ Because of this defect in laying the necessary foundation for a prosecution under § 192, petitioner's conviction cannot stand under the criteria set forth more fully in Quinn v. United States, supra.

Our disposition of the case makes it unnecessary to consider petitioner's other contentions. The judgment below is reversed and the case remanded to the District Court with directions to enter a judgment of acquittal.

Reversed.

Mr. Justice REED, with whom Mr. Justice MINTON joins, dissenting.

This case is controlled entirely by the rule enunciated by the majority in the second ground for the decision in Quinn v. United States, 349 U.S. 155, 75 S.Ct. 668. We shall not here repeat our comments made regarding that rule and its application which are set out in our dissent in the Quinn and Emspak cases. But we cannot agree that under the Quinn rule the petitioner here was not sufficiently apprised of the disposition of his Fifth Amendment and pertinency objections for him to be held guilty of violating § 192. For us the record establishes, as it did for the two courts below, that the petitioner knew that the grounds for his objections were not accepted by the committee; that the committee required him to answer; that he willfully refused to answer. As the majority stated the rule in Quinn, 75 S.Ct. p. 677, 'the committee is not required to resort to any fixed verbal formula to indicate its disposition of the objection. So long as the witness is not forced to guess the committee's ruling, he has no cause to complain.' Under this rule we think that the extract from the record set out below places this petitioner in the status of one who 'has no cause to complain.'

'Mr. Walter: Did you ever hold any positions other than positions with newspapers?

'Mr. Bart: I did.

'Mr. Walter: What were they?

'Mr. Bart: I was organizer and head of the Communist Party at different times, in different years.

'Mr. Walter: Where?

'Mr. Bart: In Illinois and Pennsylvania, among many.

'Mr. Tavenner: The Daily Worker of March 28, 1936, shows you to have been a section organizer for the Communist Party in Ohio. That is correct, is it not?

'Mr. Bart: Most likely.

'Mr. Tavenner: Well, you know whether you were a section organizer for the Communist Party in Ohio, do you not?

'Mr. Bart: I do not know the exact period of time you mentioned. It is 14 years ago.

'Mr. Tavenner: Who were the other officials of the Ohio section of the Communist Party during the period of time you were organizer there? (Count 8, emphasis supplied.)

'Mr. Bart: I object to this question. I will not answer it, standing on my rights in accordance with Article V of the Constitution, and furthermore I protest because this committee has asked this question of numerous people and has infringed upon their rights as American citizens.

'Mr. Tavenner: I think, Mr. Bart, I should point out that your testimony relating to other people who were associated with you at that time could not in any way incriminate you under the Fifth Amendment.

'Mr. Unger: I should like to correct you, Mr. Tavenner.

'Mr. Walter: You advise your client.

'Mr. Tavenner: You have told us you were a section organizer for the Communist Party in Ohio, and my question now is, who were the officials who worked with you in that work, that is, officials of the Ohio section of the Communist Party?

'Mr. Unger: Permit me to advise my client that Mr. Tavenner, counsel, is in error in his interpretation of the Constitution so far as the Fifth Amendment is concerned, and that Mr. Bart, the witness, is entirely correct in his interpretation of the Constitution, and has a right to assert that this committee has no right—no right, let me make it plain—

'Mr. Walter: Under our procedure the attorney is permitted to advise his client and then the client, the witness, answers the question. You may advise your client.

'Mr. Unger: As he has stated in his previous answer, he is not required to testify against himself.

'Mr. Bart: I stand on the advice of my counsel. I am not required to testify against myself, and in accordance with Article V of the Constitution I will not answer the question.

'Mr. Tavenner: I was not asking you to testify against yourself. I was asking you to state the names of other persons associated with you.

'Mr. Bart: I consider this an attempt on the part of the committee to use this against myself as well as against others, as it has on many previous occasions.

'Mr. Walter: And therefore you refuse to answer?

'Mr. Bart: I refuse to answer.'

The colloquy set out above pertains only to count 8.^* We think the record also shows that the committee rejected the pertinency objections on the other four questions which constitute the other four counts and therefore petitioner willfully refused to answer these as well. However, since conviction on any one count is sufficient to sustain the judgment, enough of the record is set out above to show what we consider to be the error of the...