404 F.2d 1292 (D.C. Cir. 1968), 20587, Shelton v. United States

Docket Nº:20587.
Citation:404 F.2d 1292
Party Name:Robert M. SHELTON, Appellant, v. UNITED STATES of America, Appellee.
Case Date:August 14, 1968
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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404 F.2d 1292 (D.C. Cir. 1968)

Robert M. SHELTON, Appellant,


UNITED STATES of America, Appellee.

No. 20587.

United States Court of Appeals, District of Columbia Circuit.

Aug. 14, 1968

Argued April 6, 1967.

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Mr. Lester V. Chalmers, Jr., Raleigh, N.C., of the bar of the Supreme Court of North Carolina, pro hac vice, by special leave of court, and Mr. Paul Shiffman, Washington, D.C., for appellant.

Mr. Robert L. Keuch, Atty., Department of Justice, with whom J. Walter Yeagley, Asst. Atty. Gen., Messrs. David G. Bress, U.S. Atty., and Kevin T. Maroney, Atty., Department of Justice, were on the brief, for appellee. Mr. Frank Q. Nebeker, Asst. U.S. Atty., also entered an appearance for appellee.

Mr. Thurman Arnold, Washington, D.C. (appointed by this court), with Mr. Daniel A. Rezneck, Washington, D.C., filed a brief as amicus curiae, after argument.

Before BAZELON, Chief Judge, FAHY, Senior Circuit Judge, and WRIGHT, Circuit Judge.

FAHY, Senior Circuit Judge:

Robert M. Shelton appeals from a judgment entered upon a jury's verdict finding him guilty of contempt of Congress in violation of 2 U.S.C. § 192. 1 He is under sentence of one year imprisonment and a fine of $1, 000.00. We affirm.

The case arose and progressed as now explained. Mr. Shelton was served on October 11, 1965, with a subpoena duces tecum, issued a few days earlier by a Subcommittee of the House Committee on Un-American Activities. The subpoena summoned him to appear as a witness before the full Committee or a Subcommittee thereof and to bring with him and produce items specified in an attachment to the subpoena consisting of five numbered paragraphs. The first four paragraphs specified books, records, documents, correspondence and memoranda

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of named Klan organizations which were in his possession, custody or control, or which were maintained by or available to Mr. Shelton as Imperial Wizard of the organizations. The fifth paragraph called for the production of copies of Mr. Shelton's individual income tax returns for the years 1958 through 1964. The full text of the subpoena is set forth in an Appendix to this opinion.

On October 19, 1965, Mr. Shelton appeared with counsel in response to the subpoena at a hearing of the Subcommittee which had issued the subpoena and which had previously been authorized by the full Committee to conduct the investigation. At that time Mr. Shelton was asked to produce the documents called for in each of the five paragraphs of the attachment. 2 He refused to produce anything called for in the subpoena. 3 On October 20, 1965, Mr. Shelton again appeared before the Subcommittee. This time he was directed to produce only the documents specified in the first four paragraphs of the attachment, which he refused to do. 4 He was not asked to produce copies of the individual tax returns referred to in paragraph (5). Mr. Shelton gave the following reasons for his refusal to produce:

Sir (addressing the Chairman), I respectfully decline to deliver to this committee any and all records as requested by this committee under subpena dated October 7, 1965, for that information is not relevant and germane to the subject under investigation, and the same would not aid the Congress in the consideration of any valid remedial legislation, nor is such inquiry within the scope of that authorized to be investigated by Rule IV of the rules adopted by the 89th Congress, of House Resolution 8, adopted January 4, 1965. 5

I respectfully decline to turn over these documents in question for the reason that I honestly feel that by doing so it might tend to incriminate me in violation of my rights as guaranteed to me by amendments 5, 1, 4, and 14 of the Constitution of the United States of America. 6

On January 6, 1966, the Subcommittee reported to the full Committee and recommended in accordance with its report that Mr. Shelton be cited for contempt for his refusal to produce the documents and items set forth only in paragraphs (1) and(4) of the subpoena. 7 On January 13, 1966, the full Committee adopted the Subcommittee's report. 8 On February 2, 1966, the House adopted H.Res. 699, which provided that the Speaker should

certify the report of the Committee on Un-American Activities * * * as to the refusals and failures of Robert M. Shelton to produce certain pertinent papers in compliance with a subpena served upon him as ordered before a duly authorized subcommittee * * * to the United States Attorney for the District of Columbia. * * * 9

Thus, the House cited Mr. Shelton only for his failure to produce the items in the first four paragraphs, which did not include copies of his individual income tax returns, and the indictment and conviction are likewise limited to his failure and refusal to produce on October 20 any of the items requested in paragraph (1) through (4) of the subpoena. 10

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We consider now sufficiency of the reasons which Mr. Shelton advanced before the Subcommittee for his refusal to produce these documents. Except as we shall later note we cover in this manner all defenses he advanced at trial and all contentions he makes on this appeal.

1. He apparently objected that the House of Representatives had never authorized an investigation of the Klan. The record demonstrates the contrary. On January 4, 1965, the House of the 89th Congress adopted as its Rules those of the House of the 88th Congress, with amendments not relevant to this case. 11 Rule XI, 18(b) authorized the Committee on Un-American Activities,

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 * * * 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.

On March 30, 1965, Representative Willis, Chairman of the full Committee, introduced H.Res. 310, which called for the appropriation of a sum not to exceed $50, 000 in order to pay the

additional expenses of conducting the investigations authorized by section 18 of rule XI of the Rules of the House of Representatives, incurred by the Committee on Un-American Activities, acting as a whole or by subcommittee, in investigating the Ku Klux Klan organizations in the United States, for the purpose of aiding the Congress in the consideration of any necessary remedial legislation. * * * 12

On April 14, 1965, after extensive debate, this resolution was agreed to by the House vote of 313 to 43. And see the Committee resolution of March 30, 1965, n. 20 infra.

2. He objected that the investigation would not aid the Congress in the discharge of any valid legislative purpose. We think this objection not well founded.

It is settled that 'the power of inquiry-- with process to enforce it-- is an essential and appropriate auxiliary to the legislative function. It was so regarded and employed in American Legislatures before the Constitution was framed and ratified.' McGrain v. Daugherty, 273 U.S. 135, 174, 47 S.Ct. 319, 328, 71 L.Ed. 580. This is so because,

A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information-- which not infrequently is true-- recourse must be had to others who do possess it.

Id. at 175, 47 S.Ct. at 329.

The scope of this essential power of Congress was delineated in Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273. The defendant there appeared before a Subcommittee of the House Un-American Activities Committee in compliance with a subpoena and refused to state whether certain persons had or had not been members of the Communist Party. The Supreme Court reversed the defendant's conviction for contempt of Congress, but recognized as a 'basic premise, '

The power of the Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them.

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Id. at 187, 77 S.Ct. at 1179. And see Barenblatt v. United States, 360 U.S. 109, 111, 79 S.Ct. 1081, 3 L.Ed.2d 1115.

The Court declared, however, in Watkins, that, although 'broad, ' the power of inquiry 'is not unlimited, ' noting at least two limitations. First, 'there is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress.' Second, Congress is not 'a law enforcement or trial agency. These are functions of the executive and judicial departments of government.' The object of the particular inquiry in question must be examined to ascertain whether it is within the broad investigative authority of Congress.

The Supreme Court has recognized that several sources are available in aid of ascertaining this. One of these is the resolution of the Congress authorizing the inquiry. Wilkinson v. United States, 365 U.S. 399, 408, 81 S.Ct. 567, 5 L.Ed.2d 633; Watkins v. United States, supra, 354 U.S. at 209, 77 S.Ct. 1173. Others are the opening statement of the Chairman at the hearings; and statements of the members of the committee, Watkins v. United States, supra, 354 U.S. at 209, 77 S.Ct....

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