Dennis v. United States

• Decision Date: 12 October 1948
• Docket Number: No. 9597.,9597.
• Citation: 171 F.2d 986
• Parties: DENNIS v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

171 F.2d 986 (1948)

DENNIS v. UNITED STATES.

No. 9597.

United States Court of Appeals District of Columbia Circuit.

Argued May 7, 1948.

Decided October 12, 1948.

Mr. Louis F. McCabe, of Philadelphia, Pa. and Mr. Earl B. Dickerson, of Chicago, Ill., pro hac vice, by special leave of court, with whom Mr. David Rein, of Washington, D.C., was on the brief, for appellant.

Mr. John D. Lane, Asst. U. S. Atty., of Washington, D. C., with whom Messrs. George Morris Fay, U. S. Atty., and John W. Fihelly, Asst. U. S. Atty., both of Washington, D. C., were on the brief, for appellee. Mr. Sidney S. Sachs, Asst. U. S. Atty., of Washington, D. C., also entered an appearance for appellee.

Mr. Frank D. Reeves, of Washington, D. C., filed a brief on behalf of the Committee to Enforce the Fourteenth Amendment as amicus curiae, urging reversal.

Mr. Belford V. Lawson, Jr., of Washington, D. C., filed a brief on behalf of the National Lawyers Guild as amicus curiae, urging reversal.

Before CLARK, PRETTYMAN and PROCTOR, JJ.

CLARK, J.

Appellant was indicted, tried and convicted under the style (to use the language of the indictment) of "Eugene Dennis, also known as Francis Waldron."

Since the identity of the appellant is well established for the purposes of this action and since his real name is immaterial if the conviction is proper, we shall for the sake of brevity refer to him hereinafter as "Dennis", which is apparently the name under which he desires to travel at the present time whether it be a real name or an alias. So far as the actual facts as to the contempt involved in the indictment and trial are concerned there is substantially no conflict.

The case involves proceedings before the U. S. House of Representatives' Committee on Un-American Activities, operating under House Resolution 5 of the House of Representatives of the United States, 80th Congress, bearing date of January 3, 1947. To avoid repetition, it may be said that this Committee was originally a special committee of the House commonly called the "Dies Committee" which has since by re-passage of the House Resolution to the House rules been continued first as a Special Committee, later by the House rules as a standing committee and finally by statute in the same category. It is now commonly known as the "Thomas Committee" following the general practice of reference to Congressional Committees under the name of their chairmen.

Since one of the chief points raised by appellant is a general attack on the constitutionality of the creation of the Committee and of the resolutions, rules and statute authorizing its activities, it may be said at the outset that it is the self-same Committee, operating under the same set of resolutions, rules and statute as has been recently passed on by at least two Courts of Appeals, and in two of the cases by the Supreme Court of the United States in denying petitions for certiorari. See Josephson v. United States, 2 Cir., 1947, 165 F.2d 82, certiorari denied, 1948, 333 U.S. 838, 68 S.Ct. 609, rehearing denied, 1948, 333 U.S. 858, 68 S.Ct. 731; Barsky v. United States, 1948, 83 U.S.App.D.C. 127, 167 F.2d 241, certiorari denied, 68 S.Ct. 1511, 334 U.S. 843; and Eisler v. United States, 1948, 83 U.S.App.D.C. 315, 170 F. 2d 273.

These cases were to the unanimous effect that the constitutionality of the authority of the Committee should be upheld, that the creation of the Committee and the matters confided to it for investigation were constitutional and lawful. This would seem to settle this question but since the appellant had devoted a large part of his brief to this subject, his counsel on oral argument was, at the special instance of Justice Prettyman who had written the majority opinion in the Barsky case, indulged to argue the question again. This he did with eloquence and persuasiveness, fortified by copious quotations from magazine writers, pamphleteers, and even by some general expressions from some of the Fathers of the Republic which did not seem to be in point. Nevertheless, he failed to convince any member of the court that the law as established by the three cases mentioned supra should be overruled.

We therefore feel it unnecessary to discuss this question further except to emphasize this point. Once the rule has been established that the creation of the Committee was within the constitutional powers of the Congress (as has been well established by the three cases noted supra), it is neither the business nor the prerogative of this court or any other court to pass upon either the wisdom of Congress in setting up the Committee, the private or public character of members of the Committee or the propriety of the procedure of the Committee unless it transgress the authority committed to it by the Congress under the Constitution.

Dennis was not originally a witness appearing by virtue of process before the Committee. He learned about the investigation through the public press. Thereupon, in the language of the sworn affidavit of his counsel (Joint App. p. 9), he made "formal demand" upon the Committee for the opportunity to appear on behalf of the Communist Party. To this "demand" the Committee courteously responded that it would be glad to have Dennis appear. To this Dennis responded with a somewhat arrogant demand that he be granted at least two hours for his testimony. To this "demand" the Committee again replied courteously that it would be glad to grant him two hours.

When Dennis actually appeared before the Committee, on March 26, 1947, he proved a recalcitrant witness.

Being asked by the Committee for the usual identification, he refused to answer some of the questions directed merely to the question of showing his identity. He refused to answer questions as to the name under which he was born or as to when and where he was born. At this point a Committee subpoena was directed to be served on Dennis. Thereupon, apparently suddenly smit with the delusion that by some marvelous transition he had been appointed to be the spokesman of all of the American people, Dennis arose and shouted: "In the name of the American people, I hold this Committee in contempt." But then and there Dennis was served with a subpoena commanding his appearance before the Committee on April 9, 1947.

These facts are recited only as the background of the service of the subpoena. Appellant was not indicted or convicted for his conduct in this appearance, although he well might have been upon proper citation. He was indicted and convicted for wilful default in answering a lawful subpoena. It is set out because one of the chief contentions of appellant is that the subpoena was not lawfully served upon him because he had appeared voluntarily and therefore enjoyed some sort of fancied immunity from service.

This contention of appellant that the subpoena was illegally served is without the slightest foundation in reason. It is based upon a misinterpretation of an old case decided in the Supreme Court of the District of Columbia (now United States District Court for the District of Columbia), in 1874, in Wilder v. Welsh, 1 MacArthur 566. This case is cited by appellant as establishing the principle that a witness was immune from the service of a subpoena. As a matter of fact, the case holds directly to the contrary. That was a case in which a motion was made to set aside the service of a summons upon the ground that the defendant in a suit, when the service was made upon him, was a witness from one of the States in attendance upon a congressional committee under a subpoena and was, therefore exempt from process while in attendance, and in coming and returning from the city. The court held that the privilege of a witness before Congress or any of its committees, stands on the same footing as the privilege of the members of that body, and that this does not extend to freedom from the service of a simple summons but only to freedom from arrest. The court overruled the motion on the ground that no privilege had been violated.

To urge that a person who voluntarily appears before a Congressional Committee and is not only in the jurisdiction but the actual presence of the Committee is exempt from subpoena by the Committee itself is preposterous.

On April 9, 1947, appellant failed to appear before the Committee in response to the subpoena. Instead one Lapidus appeared and stated that he (Lapidus) was a secretary of the Communist Party and attorney for Dennis, that Dennis would not appear but had sent a long statement which he (Lapidus) proposed to read into the record. Since Lapidus had not been subpoenaed by the Committee and was not desired as a witness by the Committee he was not permitted to substitute for Dennis nor to read the purported statement of Dennis but was permitted to leave the statement with the Committee which later read the communication but did not include it in its report to the House.

Upon proper citation by the House, Dennis was indicted, tried and convicted for the crime of wilful default in failing to answer the subpoena. In view of the defense which appellant has attempted to set up in this case, it is to be remembered that the case now before this court has nothing to do with the fact that Dennis is a Communist nor does it involve any question of Dennis refusing to answer questions as to his political views or anything else. It has to do solely with the question of whether he wilfully failed to respond to the subpoena of a lawful Committee of Congress.

The so-called "statement" of Dennis was actually sent to each member of the House of Representatives by zealous friends of the appellant. How many members of the House actually read the document we have no means of knowing, and it is immaterial. We say only that we have read it. While it was rejected for inclusion in the report of the Committee to the House and was also rejected by the trial court, it is included in the record as part of appellant's case as ...