Bowers v. United States, 11457.

• Decision Date: 12 February 1953
• Docket Number: No. 11457.,11457.
• Citation: 202 F.2d 447
• Parties: BOWERS v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

202 F.2d 447 (1953)

BOWERS v. UNITED STATES.

No. 11457.

United States Court of Appeals District of Columbia Circuit.

Argued October 31, 1952.

Decided February 12, 1953.

Petition for Modification of Judgment Denied March 16, 1953.

William H. Collins, Washington, D. C., for appellant.

Carl H. Imlay, Atty., Dept. of Justice, Washington, D. C., with whom Charles M. Irelan, U. S. Atty., and Joseph M. Howard, Asst. U. S. Atty., Washington, D. C., were on the brief, for appellee.

William E. Kirk, Jr., Asst. U. S. Atty., Washington, D. C., also entered an appearance on behalf of appellee.

Before CLARK, WILBUR K. MILLER, and BAZELON, Circuit Judges.

WILBUR K. MILLER, Circuit Judge.

The indictment in this case was returned under 2 U.S.C.A. § 192, the pertinent part of which is as follows:

"Every person who having been summoned as a witness * * * to give testimony * * * upon any matter under inquiry before * * * any committee of either House of Congress * * * refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor * * *." (Emphasis added.)

The words of the statute which we have italicized were used advisedly, because Congress knew of course that in hearings before its committees the questioning of witnesses customarily, and probably necessarily, takes a wide range. Committees may and do obtain vague information and receive hearsay evidence from which they form well-grounded suspicions that evils exist at which legislation should be aimed. That is to say, committees' conclusions that corrective legislation should be enacted need not be reached on the basis of relevant and pertinent evidence only. The precision of court procedure is not required. It may often be proper, justifiable and ultimately helpful in the accomplishment of its investigative purposes for a Congressional committee to address to witnesses questions which it cannot demonstrate to be pertinent. But in branding a refusal to answer as a misdemeanor, Congress was careful to provide that the question must be "pertinent to the question under inquiry." It follows that, when a witness refuses to answer a question and the government undertakes to convict him of a criminal offense for not answering, then pertinency must be established. Presumption or possibility of pertinency will not suffice.

In discussing a prosecution under the statute which is involved here, the Supreme Court said "a witness rightfully may refuse to answer * * * where the questions asked are not pertinent to the matter under inquiry." Sinclair v. United States, 1929, 279 U.S. 263, 292, 49 S.Ct. 268, 271, 73 L.Ed. 692. In the same opinion, 279 U.S. at page 296, 49 S.Ct. at page 273 the Court said the presumption of pertinency without proof, if there be such a presumption, is overcome by the stronger presumption of innocence, and that it is "therefore incumbent upon the United States to plead and show that the question pertained to some matter under investigation."

Obviously, then, the pertinency of the question is an essential ingredient of the offense, and one may not be convicted of violating the statute unless the government shows the question he refused to answer pertained to some matter being investigated.

The indictment against the appellant, which was in seven counts, charged generally that on February 16, 1951, when he appeared as a witness before a duly created subcommittee of the Senate's Special Committee to Investigate Organized Crime in Interstate Commerce, Bowers unlawfully refused to answer seven questions, "all of which were pertinent to the question then under inquiry before the subcommittee." Each question was set out in a separate count and Bowers was found guilty under all of them.

We first take up Count 1 of the indictment, which is as follows:

"`What business did you engage in in Chicago?\' (the meaning of the question being, as the defendant knew, What business did the defendant engage in in Chicago during the year 1927)."

The initial step in determining the pertinency of the question is to ascertain the subject matter of the inquiry then being conducted by the subcommittee. Senate Resolution 202, 81st Cong., 2d Sess., created the Special Committee to Investigate Organized Crime in Interstate Commerce and authorized and directed it

"* * * to make a full and complete study and investigation of whether organized crime utilizes the facilities of interstate commerce or otherwise operates in interstate commerce in furtherance of any transactions which are in violation of the law of the United States or of the State in which the transactions occur, and, if so, the manner and extent to which, and the identity of the persons, firms, or corporations by which such utilization is being made, what facilities are being used, and whether or not organized crime utilizes such interstate facilities or otherwise operates in interstate commerce for the development of corrupting influences in violation of law of the United States or of the laws of any State * * *."

So, according to the record before us, the matter under investigation by the subcommittee was the activity vel non of organized crime through the facilities of interstate commerce. The pertinency of the question covered by Count 1 depends, therefore, on whether the answer to that question would aid the subcommittee in ascertaining the extent, if any, to which organized crime operates in interstate commerce and the nature of such operations, if any. Our view is that, on its face, the question was not pertinent to that inquiry, for we are unable to see how an investigation into the activities of organized crime in interstate commerce which was being conducted in 1951 would be furthered in any way by the subcommittee's knowledge of what business Bowers engaged in in Chicago some twenty-four years before. Nor does the context of the question indicate its pertinency, as will be seen by an excerpt from the transcript of the proceedings before the subcommittee which is reproduced in the margin.¹

While it was the duty of the trial court to determine as a matter of law whether the question was pertinent, that determination could only be made from a factual showing by the government, since the question and the answer for which it called, standing alone, did not pertain to the subject under inquiry. We find in the record not the slightest showing by the prosecution that the nature of Bowers' business in Chicago in 1927 pertained to, or would shed any light upon, the activities of organized crime in 1951.

The government's only witness was Downey Rice, the attorney who interrogated Bowers at the hearing before the subcommittee. He identified and quoted from the transcript of the hearings and spoke of an earlier informal conversation with Bowers, but gave no hint of how the Count 1 question could possibly have been pertinent. If he or the subcommittee had some background of information which led them to conclude that the nature of Bowers' business in Chicago in 1927² pertained to the business which the subcommittee had in hand in 1951, such background was not revealed to the trial judge. Nevertheless, the charge to the jury contained this language:

"I instruct you as a matter of law that the questions which the indictment alleges were asked of the defendant, and all of them, were pertinent to the question then under inquiry before the subcommittee, as it is alleged in the indictment."

After the completion of the charge, the judge inquired whether there were exceptions to it, whereupon appellant's counsel, among other things, said:

"* * * Of course, consistent with the position I have taken previous to this time, I, of course, object to the charge in saying that the questions were pertinent."

The exception seems to us to have been well taken. The question embraced in Count 1 was clearly not pertinent, standing alone or in context, and no showing of pertinency was made, although it was "incumbent upon the United States to plead and show that the question pertained to some matter under investigation." (Emphasis supplied.) In the absence of such a showing, the jury should have been directed to find Bowers not guilty under that count.

We turn to Count 2, which is as follows:

"`My question is what did you earn the money doing?\' (the meaning of the question being, as the defendant knew, What did the defendant do to earn the five thousand dollars which he paid in 1942 for a ten per cent interest in the Little Palm Restaurant in Florida)."

This question was immediately preceded by the following interchange (Proceedings, supra note 1, at page 7):

"Mr. Rice. * * * Where did you get the $5,000?

"Mr. Bowers. I had earned it.

"Mr. Rice. What doing?

"Mr. Bowers. Now, I paid income taxes on it. You got the papers; you can look at it."

The background of the question was that Bowers had just said that in 1942 he had paid $5,000 for an interest in the Little Palm Restaurant in Florida. So he was being asked how he had earned the sum of $5,000, net after taxes, which he invested in 1942 and which he must have earned earlier in that year or in some prior year or years. This question does not appear on its face to pertain to the investigation which was being conducted in 1951 into the activities of organized crime in interstate commerce. It may have been in fact in some remote way pertinent to that inquiry but, if so, the government made no effort to establish that fact.

Counts 3 and 4, which contain related questions, are as follows:

3. "Well, you have an interest in the Sunny Isles, don\'t you?"

4. "From whom did you acquire your interest in the Sunny Isles?"

Sunny Isles, although not identified in the record, presumably was a bar and restaurant in Florida, since other establishments of that nature were being discussed at that point in Bowers' examination. It may have been a gambling place³ and therefore the two questions may have somehow pertained to the interstate activities...