United States v. Fort

• Citation: 443 F.2d 670
• Decision Date: 14 December 1970
• Docket Number: No. 22746.,22746.
• Parties: UNITED STATES of America v. Jeff FORT, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

443 F.2d 670 (1971)

UNITED STATES of America v. Jeff FORT, Appellant.

No. 22746.

United States Court of Appeals, District of Columbia Circuit.

Argued March 12, 1970.

Decided December 14, 1970.

As Amended December 31, 1970.

Certiorari Denied June 21, 1971.

Messrs. Marshall Patner and William W. Brackett, Chicago, Ill., for appellant.

Mr. John A. Terry, Asst. U. S. Atty., with whom Mr. Thomas A. Flannery, U. S. Atty., was on the brief, for appellee. Messrs. David G. Bress, U. S. Atty., at the time the record was filed, and John D. Aldock, Asst. U. S. Atty., also entered appearances for appellee.

Before TAMM, ROBINSON and MacKINNON, Circuit Judges.

Certiorari Denied June 21, 1971. See 91 S.Ct. 2255.

MacKINNON, Circuit Judge:

Appellant was convicted on two counts of being in contempt of Congress on July 9, 1968 in violation of 2 U.S.C. § 192.¹ He is here appealing this conviction.

The Senate proceedings out of which this conviction ultimately arose originated with the Permanent Subcommittee on Investigations of the Senate Committee on Government operations. Under the Standing Rules of the Senate a committee on Government Operations is required to be appointed at the commencement of each Congress, with duties which include that of:

"(B) studying the operations of Government activities at all levels with a view to determining its economy and efficiency. * * *" (Emphasis added.)²

All Standing Committees of the Senate are empowered to act as such and through subcommittees³ and "may make investigations into any matter within their jurisdiction."⁴ Also from time to time the Senate by separate resolutions makes money available for certain investigations it considers necessary in furtherance of its legislative responsibilities and in such resolutions directs the committee to undertake the investigations and outlines the general scope of the matter to be investigated. The powers conferred by such resolutions are in addition to the standing powers of the committees and subcommittees.

On March 15, 1968, the Senate adopted Senate Resolution 216 authorizing its Committee on Government Operations "or any subcommittee thereof * * * from February 1, 1968 through January 31, 1969, to make investigations into the efficiency and economy of operations of all branches of the Government * * * waste * * * and to make a full and complete study and investigation of riots, violent disturbances of the peace, vandalism, civil and criminal disorder, insurrection, the commission of crimes in connection therewith * * *"⁵ Previously on August 11, 1967, the Senate had adopted Senate Resolution 150 authorizing the Government Operations Committee and any duly authorized subcommittee thereof to make a full and complete study and investigation of all other aspects of crime and lawlessness within the United States which have an impact upon or affect the national health, welfare and safety⁶ and of other subjects. With the authority above described, the Senate Committee on Government Operations, through its Permanent Subcommittee on Investigations, in the summer of 1968 was in the process of holding hearings on the subjects of riots and civil disorders in the United States.⁷ A subpoena directing appellant to appear before the Subcommittee in Washington, D. C., to testify was issued over the signature of the chairman, Senator John L. McClellan, and was served on appellant in Chicago on May 22, 1968.⁸ By letter dated July 1, 1968, appellant's counsel acknowledged receipt of the subpoena and submitted the following requests to the Subcommittee:

Chicago, Ill., July 1, 1968.

Hon. Chairman and Members of the Subcommittee on Investigations of the Committee on Government Operations of the United States Senate:

My client, Mr. Jeff Fort, has been subpoenaed to appear before this committee concerning an investigation of the Woodlawn area job training project, Chicago, Ill., funded by the Office of Economic Opportunity. On behalf of Mr. Fort, I hereby request and demand:

1. That each person who has made statements or presented evidence before this subcommittee, either orally or in any written form, including by affidavit, which tends to defame Mr. Fort or otherwise adversely affect his reputation, and any persons who shall hereafter do so, be called to appear personally before this subcommittee and at such time to be confronted personally by Mr. Fort and his undersigned counsel, after reasonable notice to Mr. Fort and said counsel of the time and place of such personal appearance by each such person.

2. That the undersigned counsel for Mr. Fort be permitted to personally orally cross-examine, in a reasonable manner, said persons described in paragraph 1, above.

3. Mr. Fort also requests and demands the right to present additional evidence as to the issues described in paragraph 1, above.

Respectfully submitted. Marshall Patner Attorney for Mr. Jeff Fort.

On July 9, 1968, pursuant to the subpoena, appellant and his counsel appeared before the Subcommittee in Room 3302, New Senate Office Building, Washington, D. C., and at that time the chairman ruled on the requests. The chairman ruled that the first request would be granted in the discretion of the Subcommittee upon appellant's request for a given witness. The second request was denied as being unauthorized under the rules of the Subcommittee.⁹ A ruling on the third request was deferred until after the appellant had testified.¹⁰

The chairman then asked appellant to state his name and appellant did so. However, when appellant was asked to state his address, his counsel interjected that he must instruct his client not to participate further in the proceedings without the right to cross-examination. The chairman again denied this request, and appellant was again asked to state his address; thereupon the appellant and his counsel withdrew from the hearing room. In due course on July 19, 1968 the entire record in the matter was presented to the Senate in the form of a resolution, designated S.Res. 379, and the Senate by a roll call vote of 80 to 19 adopted said resolution directing that the report of its Committee on Government Operations on the appearance on July 9, 1968 of Jeff Fort before the Senate Permanent Subcommittee on Investigations of the Committee on Government Operations, together with all the facts in connection therewith, be certified to the United States Attorney for the District of Columbia, to the end that the said Jeff Fort might be proceeded against in the manner and form provided by law.¹¹ Appellant was thereafter indicted for contempt by a grand jury in the District of Columbia and there brought to trial.

The Government's only witness at trial was Mr. Lavern J. Duffy, an assistant counsel to the Subcommittee, but additional facts were stipulated. Mr. Duffy testified that he had been directed by the Subcommittee to conduct an investigation of riots in three cities, one of which was Chicago. He stated that during the course of his investigation in Chicago, he learned that the Office of Economic Opportunity (OEO) had funded a project in the amount of $927,431 to set up a training program for two "youth gangs" in Chicago. His investigation disclosed that appellant was vice-president of one of these gangs, the Blackstone Rangers, and was on the payroll at a salary of $6,000 a year as a "Center Chief" of the Woodlawn Organization, the entity which had received the OEO grant. Mr. Duffy further testified that he conveyed this information to the Subcommittee, that the Subcommittee issued a subpoena to appellant, and that at the hearing appellant refused to state his address or anwer any other questions. The Government also introduced (1) the opening statement of the chairman of the Subcommittee, which outlined the scope of the hearings, (2) the letter which appellant's counsel had written to the Subcommittee¹² and (3) the subpoena itself. The Government then rested.

The court received certain items of evidence solely for consideration in connection with matters of law for the court and other evidence was admitted for consideration by the jury on factual issues. Other than such evidence as was stipulated to by counsel, appellant put in no evidence. However, during closing argument appellant's counsel attempted to persuade the jury that appellant was not aware of the pertinency of the questions to the purpose of the hearings.

This was his principal argument to the jury and he referred to it by numerous remarks sprinkled throughout his argument. In arguing this point counsel at one place stated:

"There is no showing that he Fort was ever given a copy of the opening statement that Mr. McClellan made."

At another point in his argument counsel remarked:

"The only thing we did was we wrote a letter, for certain reasons which are not before you, but that doesn\'t show that we knew all those things. It doesn\'t show that we had the opening statement and no one has shown that we had the opening statement and no one showed why there was no opportunity, and it hasn\'t been proved. It\'s missing."

At the close of counsel's argument the United States Attorney objected to the inference that appellant had no knowledge of the opening statement of the chairman because it had been stipulated by both counsel (and admitted as relevant on those issues involving matters of law which the court had to decide) that:

"The defendant\'s counsel purchased daily copy from June 20, 1968 through October 11, 1968. The cover sheet of each daily transcript delivered to the defendant\'s counsel on the day following each hearing; including the hearings of July 1, July 2, and July 3, correctly referred to the meeting as follows: `The Subcommittee met at * * * (time and date) in Room 3302, Senate Office Building, pursuant to Senate Resolution 216, agreed to March 15, 1968. * * *\'

"Attached hereto as Exhibit A is a printed pamphlet entitled `Rules of Procedure\' bearing the date March 15, 1968. It is agreed that a copy

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