Davis v. United States, 13373.

• Decision Date: 21 August 1959
• Docket Number: No. 13373.,13373.
• Parties: Horace Chandler DAVIS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

269 F.2d 357 (1959)

Horace Chandler DAVIS, Appellant, v. UNITED STATES of America, Appellee.

No. 13373.

United States Court of Appeals Sixth Circuit.

August 21, 1959.

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Philip Wittenberg, New York City (Philip Wittenberg, Irving Like, New York City, of counsel, Wittenberg, Carrington & Farnsworth, New York City, on the brief), for appellant.

Wendell A. Miles, Grand Rapids, Mich. (Wendell A. Miles, U. S. Atty., Grand Rapids, Mich., on the brief), for appellee.

Before MILLER, Circuit Judge, and JONES, District Judge.

SHACKELFORD MILLER, Jr., Circuit Judge.

The appellant was indicted under a twenty-six count indictment for contempt of Congress in violation of Sec. 192, Title 2 U.S.Code. He was tried by the Court without a jury. The District Judge treated the twenty-six counts as charging only one offense, made a finding of guilty, and imposed a fine of $250.00 and imprisonment for a period of six months. Judgment was stayed pending this appeal.

Appellant had been a student at Harvard College from 1942 to 1945 and had received his B. S. degree therefrom. He received the degree of Ph. D. from Harvard University in 1950. Thereafter, he had been employed as a teacher of mathematics at the University of Michigan.

Count 1 of the indictment states that a standing Committee on Un-American Activities was duly elected and certified by the House of Representatives of the 83rd Congress of the United States in accordance with the provisions of Public Law 601, 79th Congress, Chapter 753, 2nd session, known as the Legislative Reorganization Act of 1946, 60 Stat. 812; that beginning on February 23, 1953, said Committee commenced public hearings into "Communist Methods of Infiltration into Education", in accordance with provisions of Public Law 601 and the authority and power of said committee, as provided by Rule XI of House Resolution No. 5; that thereafter, on May 10, 1954, public hearings were held in Lansing, Michigan, by a duly appointed and authorized subcommittee of said Committee on Un-American Activities; that the appellant appeared before said subcommittee on May 10, 1954; that during the course of said hearing appellant was asked the following pertinent question to the inquiry:

"During the period of time that you were at Harvard as an undergraduate, say between 1942 and 1945, were you aware of the existence on the campus or in Cambridge of an organized group of the Communist Party made up chiefly of members of the student body of Harvard?"

and that the appellant deliberately and intentionally refused to answer said question claiming privilege under the First Amendment to the Constitution of the United States and persisted in such intentional refusal although directed to answer.

Each of the remaining counts incorporated the allegations of the first count with respect to the creation of the standing Committee on Un-American Activities and its subcommittee and the hearing on May 10, 1954, and in addition stated that the appellant was asked another pertinent question to the inquiry which he deliberately and intentionally refused to answer.

The questions set out in counts 1 through 11 dealt with alleged Communist activities at Harvard University and the appellant's awareness of the existence of such groups and certain named persons as having been active in such groups. The questions set out in counts 12 through 20 dealt with appellant's connection with and participation in the dissemination of a pamphlet entitled "Operation Mind" which called upon the people of Detroit to oppose the Committee's presence in the Detroit area, and which bore the notation, "Distributed by University of Michigan Council of the Arts, Sciences, and Professions, and the Civil Liberties Committee of the University of Michigan." The questions in the remaining counts dealt with certain political beliefs and associational activities of the appellant including the question whether the appellant had any time during 1952 or 1953 solicited membership in the Communist Party of any faculty member or student of the University of Michigan, whether the appellant was a member of the Communist Party and whether he had ever been a member of the Communist Party. The appellant filed a motion to dismiss the indictment, which was overruled by the District Judge, and also entered a plea of not guilty.

There is no factual dispute between the parties, and the appeal presents purely a question of law. The case was argued to this Court on April 21, 1958, but due to the pending review in the United States Supreme Court of the case of Barenblatt v. United States, 102 U.S.App.D.C. 217, 252 F.2d 129, certiorari granted 356 U.S. 929, 78 S.Ct. 771, 2 L.Ed.2d 760, which involved some of the same issues as are raised in this case, a ruling on the present appeal was held in abeyance until the Supreme Court decided Barenblatt. Its opinion in Barenblatt v. United States was handed down on June 8, 1959, and is reported at 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115.

Appellant first contends that the Committee was acting under an excessively broad charter, which exceeded the bounds of legislative power; that when First Amendment rights are threatened, the delegation of power to the committee must be clearly revealed in its charter; that the authorizing resolution of the Un-American Activities Committee and Rule XI which authorized the subcommittee were so broadly drafted and loosely worded as to fail to point out with sufficient particularity the Committee's jurisdiction and purpose, thus violating the rule against vagueness. United States v. Rumely, 345 U.S. 41, 73 S.Ct. 543, 97 L. Ed. 770; Watkins v. United States, 354 U.S. 178, 200-205, 77 S.Ct. 1173, 1 L.Ed. 2d 1273. This contention has been decided adversely to appellant's contention in Barenblatt v. United States, supra.

The decision in Barenblatt v. United States, supra, also disposes of appellant's contention that his conviction in this case violates the freedoms of speech and of the press guaranteed by the First Amendment.

In his opening statement the chairman of the subcommittee made the following statement,

"However, if any witness desires to decline to answer any question propounded, if that witness will so indicate, not through counsel, but through his own words, the fact that he does object, that will be duly noted and recorded. I must caution the witnesses, however, that the committee will recognize as an objection only the Fifth Amendment. We are repeatedly confronted by witnesses who invoke practically all the amendments and the entire Constitution itself."

Appellant contends that this assumption of an absolute power to investigate subject only to the Fifth Amendment was an unwarranted usurpation of power, in that the power to investigate is subject to the First Amendment as well as the Fifth, and that appellant's resistance thereto was accordingly lawful. Watkins v. United States, supra, 354 U.S. 178, 188, 77 S.Ct. 1173.

The statement referred to is not properly relied upon. Committee member Moulder promptly thereafter made the statement, "I want the record to show that I disagree with the chairman's position that only the Fifth Amendment can be relied upon by a witness." The subcommittee chairman thereafter made it clear that the subcommittee was not depriving any of the witnesses of the right to raise any proper objection including all of the amendments. Appellant stood squarely upon the First Amendment. He at no time claimed the protection of the Fifth Amendment. Appellant was not prejudiced in any way by the original incorrect statement.

Sec. 192, Title 2 U.S.Code, makes it a criminal offense for a witness before a committee of either House of Congress in any matter under inquiry by such committee to refuse "to answer any question pertinent to the question under inquiry." (Emphasis added.) We agree with appellant's construction of the statute that in such a hearing part of the standard of criminality is the pertinency of the questions propounded to the witness, that the witness is entitled to be apprised of the object of the inquiry so as to show the connective tissue between the questions asked and the claimed power of the committee, and that the witness must be apprised that the committee demands his answer notwithstanding the objections made by the witness to answering the question. Watkins v. United States, supra, 354 U.S. 178, 187, 198, 208, 77 S.Ct. 1173; Quinn v. United States, 349 U.S. 155, 165-166, 75 S.Ct. 668, 99 L.Ed. 964. However, we do not agree with his contention that these standards were not complied with.

The acting chairman of the subcommittee in his opening remarks stated that the committee was operating under a printed set of rules which would be scrupulously observed throughout the proceedings, that each witness would be permitted to have counsel sit alongside of him at the table, that counsel would be permitted to advise the witness on his constitutional rights as the hearing progressed, and that if the witness desired, an informal recess would be called so that the witness might counsel at length with his attorney. He also made the following statement,

"Now, the last thing the committee wants to emphasize is the fact, oft repeated but many times misunderstood,

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