426 F.2d 664 (D.C. Cir. 1970), 23845, McSurely v. McClellan

Docket Nº:23845.
Citation:426 F.2d 664
Party Name:Alan McSURELY et al., Appellants v. John L. McCLELLAN, Chairman, et al.
Case Date:March 26, 1970
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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426 F.2d 664 (D.C. Cir. 1970)

Alan McSURELY et al., Appellants


John L. McCLELLAN, Chairman, et al.

No. 23845.

United States Court of Appeals, District of Columbia Circuit.

March 26, 1970

Argued Jan. 15, 1970.

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Mr. Morton Stavis, Newark, N.J., with whom Messrs. Philip J. Hirschkop, Alexandria, Va., and William M. Kunstler, New York City, were on the motion, for appellants.

Mr. Irwin Goldbloom, Washington, D.C., with whom Mr. Morton Hollander, Washington, D.C., was on the opposition to the motion, for appellees.

Before BAZELON, Chief Judge, and TAMM and LEVENTHAL, Circuit judges.

BAZELON, Chief Judge:

Appellants here are Alan and Margaret McSurely and four organizations. 1 The McSurelys, interposing several claims under the First and Fourth Amendments, refused in March of 1969 to comply with a subpoena duces tecum issued by a Senate subcommittee 2 which demanded the production of documents relating to membership in, and activities of, several organizations including those parties here. 3 The day on which production was required--March 4, 1969 4

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appellants filed suit in the District Court, naming as defendants the members of the subcommittee and the subcommittee's chief counsel and general counsel. They sought a declaration that compliance with the subpoena was not required; a preliminary and permanent injunction to restrain the institution of criminal proceedings against the McSurelys for failure to comply with the subpoena; and damages. 5

No further action was taken in this suit for some time. 6 Meanwhile, pursuant to a Senate resolution, 7 the McSurelys were indicted on August 20 for contempt of Congress. 8 They were arraigned on September 5. On September 18, appellants in the civil case served notice of intent to take depositions of Jerome Adlerman, general counsel to the subcommittee, and one John Brick, an employee of the subcommittee. One week later, the McSurelys filed pretrial motions in the criminal case seeking, inter alia, pretrial discovery by depositions and otherwise. Shortly thereafter, appellees filed in the civil case a motion to stay all proceedings pending completion of the criminal cases. A temporary stay of the civil proceedings was granted on October 7.

The motions in the criminal cases came on for hearing on November 24, at which time the District Court denied the bulk of the McSurelys' motion for discovery, 9 and their motions to dismiss the indictments. An oral motion to stay the criminal proceedings pending disposition of the civil case was likewise denied, and the trials set for January 19, 1970. 10 On December 10, the motions in the civil case were heard; and on December 18, the District Court entered an order staying all proceedings, including the taking of depositions and other discovery, until thirty days after the completion of 'all appellate remedies' in the criminal cases; and denying appellants' motion to stay the criminal cases until resolution of the civil proceedings. Appellants seek relief from this order.


We need not pause long over the Government's contention that we have no jurisdiction to entertain an appeal from the District Court's order simultaneously denying a stay of the criminal proceedings and staying the civil proceedings until the criminal cases are concluded. With an exception not here relevant, 11 we have jurisdiction over appeals from 'all final decisions' of the District Court. 12 The Supreme Court has adopted 'essentially practical tests for identifying those judgments which are, and those which are not, to be considered 'final.' (Citations) A pragmatic approach to the question of finality has been considered essential to the

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achievement of the 'just, speedy, and inexpensive determination of every action': the touchstones of federal procedure.' Brown Shoe Co. v. United States, 370 U.S. 294, 306, 82 S.Ct. 1502, 1513, 8 L.Ed.2d 510 (1962). 13'The concept of finality as a condition of review has encountered situations which make it clear that it need not invite self- defeating judicial construction.' DiBella v. United States, 369 U.S. 121, 125, 82 S.Ct. 654, 657, 7 L.Ed.2d 614 (1962).

The order of the District Court in this case had 'sufficient indicia of finality' 14 to render it appealable as a final decision. At the core of appellants' complaint is the claim that their rights will be irretrievably lost if the McSurelys are forced to trial on the criminal charges, regardless of the outcome. If the claim of a right to be free from prosecution is not determined before the criminal trials take place, it will be for all practical purposes lost. 15 Consequently, the order of the District Court amounted to a final determination of this claim, and we may therefore hear the appeal. 16 Our conclusion that the order involved is appealable in view of the nature of appellants' claims is not undercut by the fact that we do not adopt such of their contentions as we find open in the present posture of the case. Appellants present the claim that they will be subject to constitutional injury no matter what the course of events in the criminal proceeding. We have jurisdiction to consider that claim, even though we conclude, as will appear, that the criminal proceeding can be conducted so as to avoid trampling on appellants' constitutional rights.

In view of this disposition, we need not consider whether the order is appealable as the denial of a preliminary injunction, or whether relief might be available under the All-Writs Act. 17


In addition to claims regarding the construction and validity of the Senate resolutions authorizing the subcommittee's investigation, 18 appellants raise in substance four claims, any one of which, they argue, would justify the McSurely's failure to comply with the subpoena. First, that the documents in issue were originally taken from their possession in an unlawful search and seizure by agents of the State of Kentucky; 19 that the information upon which the present subpoenas are based stems from an examination of the illegally seized documents by a staff member of the Senate subcommittee after the seizure had been declared unconstitutional; and that, therefore, the subpoena is unlawful. 20 Second, that the documents relate to membership and political activity protected

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by the First Amendment, 21 and that consequently, absent justification not present in this case, 22 the subpoena infringes '(the) freedom to engage in association for the advancement of beliefs and ideas, ' N.A.A.C.P. v. Alabama ex rel. Patterson, 357 U.S. 449, 460, 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488 (1958). 23 Third, that the interplay of the First and Fourth Amendments 24 requires that, at least when production of documents is resisted on a colorable First Amendment basis, 25 judicial review of the legality of the subpoena must be available before criminal liability may attach to failure to comply. 26 Fourth, that whether or not such preenforcement judicial review is available to the individuals served with the subpoena, third parties whose rights may be irretrievably lost upon compliance are entitled to press their claims either prior to the time at which criminal liability will attach to the individuals served should they fail to comply with the subpoena, 27 or at the very least in a civil proceeding before the individuals served are prosecuted for contempt, lest the third parties' rights, necessarily entrusted in criminal proceedings to the persons subpoenaed, receive inadequate protection.

For present purposes, we may assume without deciding that one or more of these claims is valid. It nevertheless appears to us that, in the circumstances of the present case, the criminal trial should be allowed to proceed. Admittedly the third and fourth claims presented by appellants, if valid, would lead to the conclusion not only that the McSurelys may not be convicted for failure to comply with the subpoena, but also that prosecution itself is barred until the underlying issues have been determined. But we believe that so broad a claim is no longer open to appellants. Although the instant suit was filed on March 4, before compliance with the subpoena was required, 28 no attempt was made to obtain a temporary restraining order, and beyond the filing of the complaint appellants took no action whatsoever in the suit for almost seven months thereafter. 29 In the meantime, although the Senate, on May 5, resolved that the matter be referred to the United States Attorney for criminal prosecution, 30 appellants made no attempt to join him in the suit, or to otherwise restrain him from, e.g., presenting to the grand jury the fruit of an unlawful search. 31 Even after the indictment had been filed, and the McSurelys

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arraigned, appellants made no attempt to halt the criminal prosecutions for almost a month. 32 Having permitted the prosecutions to proceed so far unchallenged, appellants are in a weak position to complain of injury from the mere fact of prosecution. Cf. United States v. Munsingwear, Inc., 340 U.S. 36, 40, 41, 71 S.Ct. 104, 95 L.Ed. 36 (1950). Finally, with respect to the possibly separate claims of the appellant organizations, we note that there has never been any hint that the McSurelys will do other than vigorously defend the rights of the organizations and their members.

We therefore conclude that appellants' claim of a right to be free from criminal prosecution may not at this stage operate to stay the criminal proceedings. 33 Nevertheless, there remains appellants' separate claim that they will be unable adequately to present their constitutional defenses in the criminal proceedings. That claim would in itself constitute a defense to the criminal charges. 34 It may...

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