Eisler v. United States

Decision Date14 June 1948
Docket NumberNo. 9582.,9582.
PartiesEISLER v. UNITED STATES
CourtU.S. Court of Appeals — District of Columbia Circuit

COPYRIGHT MATERIAL OMITTED

Messrs. David Rein, of Washington, D. C., and Abraham J. Isserman, of New York City, with whom Mr. Joseph Forer, of Washington, D. C., was on the brief, for appellant.

Mr. William Hitz, Assistant United States Attorney, of Washington, D. C., with whom Mr. George Morris Fay, United States Attorney, of Washington, D. C., was on the brief, for appellee. Mr. Sidney Sachs, Assistant United States Attorney, of Washington, D. C., also entered an appearance for appellee.

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, Associate Justices.

Writ of Certiorari Granted November 8, 1948. See 69 S.Ct. 130.

CLARK, Associate Justice.

Appellant is an Austrian national who arrived in this country in 1941 as a political refugee, by virtue of a transit visa. On January 24, 1947, appellant was yet a temporary resident in this country and was on that date summoned by authority of the House of Representatives, through its Committee on Un-American Activities,1 to appear as a witness before that Committee on February 6, 1947. On January 31, 1947, the Chairman of the Committee wrote a letter to the Attorney General of the United States informing the latter that a subpoena had been served on appellant and requesting assistance in the following manner: "The hearing which opens on February 6 will be of extreme importance, and it is necessary that Eisler be prohibited from departing from the United States or disappearing or refusing to appear. I have been reliably informed that he is endeavoring to take such steps. For this reason, I am requesting, as Chairman of the Committee on Un-American Activities, that you direct the agents of the FBI to put Eisler under an immediate twenty-four hour surveillance in order to insure his appearance before our Committee."

Subsequently, on February 4, 1947, appellant was arrested by two security officers of the Immigration and Naturalization Service, Department of Justice. On February 6, 1947, appellant appeared before the Committee in the custody of the security officers, accompanied by his legal counsel. When he was called as a witness the following colloquy ensued:2

The Chairman.3 Now, Mr. Stripling, call your first witness.

Mr. Stripling. Mr. Gerhart Eisler, take the stand.

Mr. Eisler. I am not going to take the stand.

Mr. Stripling. Do you have counsel with you?

Mr. Eisler. Yes.

Mr. Stripling. I suggest that the witness be permitted counsel.

The Chairman. Mr. Eisler, will you raise your right hand?

Mr. Eisler. No. Before I take the oath —

Mr. Stripling. Mr. Chairman —

Mr. Eisler. I have the floor now.

Mr. Stripling. I think, Mr. Chairman, you should make your preliminary remarks at this time, before Mr. Eisler makes any statement.

Mr. Chairman. Sit down, Mr. Eisler. Now, Mr. Eisler, you will be sworn in. Raise your right hand.

Mr. Eisler. No.

The Chairman. Mr. Eisler, in the first place, you want to remember that you are a guest of this Nation.

Mr. Eisler. I am not treated as a guest.

The Chairman. This committee —

Mr. Eisler. I am a political prisoner in the United States.

The Chairman. Just a minute. Will you please be sworn in?

Mr. Eisler. You will not swear me in before you hear a few remarks.

The Chairman. No; there will be no remarks.

Mr. Eisler. Then there will be no hearing with me.

The Chairman. You refuse to be sworn in? Do you refuse to be sworn in, Mr. Eisler?

Mr. Eisler. I am ready to answer all questions, to tell my side.

The Chairman. That is not the question. Do you refuse to be sworn in? All right.

Mr. Eisler. I am ready to answer all questions.

The Chairman. Mr. Stripling, call the next witness. The committee will come to order, please. What is the pleasure of the committee?

Mr. Stripling. Mr. Chairman, I think that the witness should be silent, or take the stand or be removed from the room, one or the other, until this matter is determined.

Mr. Mundt. Mr. Chairman, suppose you ask him again whether he refuses to be sworn.

Mr. Rankin not "sworn in," but to be sworn.

The Chairman. Mr. Eisler, do you refuse, again, to be sworn?

Mr. Eisler. I have never refused to be sworn in. I came here as a political prisoner. I want to make a few remarks, only 3 minutes, before I be sworn in, and answer your questions, and make my statement. It is 3 minutes.

The Chairman. I said that I would permit you to make your statement when the committee was through asking questions. After the committee is through asking questions, and your remarks are pertinent to the investigation, why it will be agreeable to the committee. But first you have to be sworn.

Mr. Eisler. That is where you are mistaken. I have to do nothing. A political prisoner has to do nothing.

The Chairman. Then you refuse to be sworn.

Mr. Eisler. I do not refuse to be sworn. I want only 3 minutes. Three minutes to make a statement.

Mr. Chairman. We will give you those 3 minutes when you are sworn.

Mr. Eisler. I want to speak before I am sworn.

The Committee then voted to cite Mr. Eisler for contempt. Thereafter, on February 27, 1947, an indictment was returned by the Grand Jury for the District of Columbia charging appellant with a violation of 52 Stat. 942 (1938), 2 U.S.C.A. § 192.4 Appellant was tried before a jury in the District Court of the United States for the District of Columbia and found guilty; he has appealed from the judgment of conviction.

At the outset we are confronted with the contention made by appellant that the trial judge erred in refusing to disqualify himself following the filing of appellant's affidavit of bias and prejudice. The Justice designated to preside at the trial of this case struck the affidavit, principally on the grounds that it was filed too late and that it was legally insufficient.

The statute5 which allows the filing of such an affidavit requires that "Every such affidavit shall state the facts and the reasons for the belief that such bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term of the court, or good cause shall be shown for the failure to file it within such time." This case was originally set for trial on May 26, 1947. Several days prior to that date counsel for appellant requested a continuance of the argument on preliminary motions and of the trial. The Justice who had been designated to preside at the trial denied the continuance of the motions but granted continuance of the trial to May 27. Then, on May 23, the motions were argued and disposed of, and counsel for appellant requested a further continuance of the trial date because of the death of a brother of the chief trial attorney for the defense, which had occurred that day. The request was granted and the trial continued to June 4. We deem it necessary to set out these happenings with chronological references, for the affidavit of bias and prejudice was not filed by appellant until May 29. As has been noted, this was after two continuances had been granted by the Justice against whom the affidavit was directed; it was three days after the first trial date had passed, and only six days prior to the date when the trial actually began.6

Appellant contends he had no knowledge of the identity of the trial Justice prior to May 20, although in the usual course of affairs he should have received notice of the designation earlier than that time. Nevertheless, the delay then ensuing before the affidavit was filed is attributed to the death of a brother of the chief defense counsel and the asserted consequence that the latter was prevented from giving his immediate attention to the matter. The explanation is reasonable so far as it goes, but appellant had two other counsel of record, one of whom actually certified the affidavit submitted, and it is not shown that it was essential to delay the affidavit for the reason given. This court has demonstrated willingness to apply the statute with liberality, with respect to the time element, where good cause was shown for delay in filing the affidavit, but we are not moved in this case to do so. See Hurd v. Letts, 1945, 80 U.S.App.D.C. 233, 152 F.2d 121.

We are of the opinion that the lower court properly determined, as the second ground for striking the affidavit, that it was legally insufficient to show personal bias or prejudice regarding the justiciable matter pending before the court. The Supreme Court has ruled that the judge has a lawful right to pass on the legal sufficiency of the affidavit, Berger v. United States, 1921, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481, subject to appellate review, of course, and we consider it the duty of the judge, when the showing for recusation is insufficient, to remain in the case.

The basis for disqualification upon affidavit is that the judge has personal bias or prejudice either against the affiant or in favor of an opposite party, by reason of which the judge is unable to impartially exercise his functions in the particular case. Ex parte American Steel Barrel Co., 1913, 230 U.S. 35, 33 S.Ct. 1007, 57 L.Ed. 1379. This court said, in Hurd v. Letts, supra:

"Nothing is now better established than the rule that a sufficient affidavit under the statute must state facts and reasons which tend to show personal bias and prejudice regarding the justiciable matter pending and must give support to the charge of a bent of mind that may prevent or impede impartiality of judgment. Berger v. United States, 255 U.S. 22, 33, 41 S.Ct. 230, 65 L.Ed. 481.

"Accordingly, the question in all such cases is whether the affidavit asserts facts from which a sane and reasonable mind might fairly infer personal bias or prejudice on...

To continue reading

Request your trial
65 cases
  • United States v. Smith
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • 12 Enero 1962
    ...Rogers v. Richmond, 178 F.Supp. 44, 48 (D.Conn.1958), citing: Tucker v. Kerner, 186 F.2d 79 (7 Cir.1950); Eisler v. United States, 83 U.S.App.D.C. 315, 170 F.2d 273, 278 (D.C.Cir.1948), petition for cert. dismissed per curiam, 338 U.S. 883, 70 S.Ct. 181, 94 L.Ed. 542 (1949); In re Federal F......
  • Watkins v. United States
    • United States
    • United States Supreme Court
    • 17 Junio 1957
    ...100 U.S.App.D.C. —-, 240 F.2d 875, 880—881; Morford v. United States, 85 U.S.App.D.C. 172, 176 F.2d 54, 58; Eisler v. United States, 83 U.S.App.D.C. 315, 170 F.2d 273, 278—279; United States v. Josephson, 2 Cir., 165 F.2d 82, 89; and United States v. Kamin, D.C., 136 F.Supp. 791, 35 H.Res. ......
  • U.S. v. Verdugo-Urquidez
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 29 Agosto 1988
    ...In return for these constitutional guarantees, aliens must assume certain duties and obligations. Indeed, in Eisler v. United States, 170 F.2d 273 (D.C.Cir.1948) (Eisler ), cert. dismissed, 338 U.S. 883, 70 S.Ct. 181, 94 L.Ed. 542 (1949), the District of Columbia Circuit explicitly recogniz......
  • Morgan v. Kerrigan, s. 75--1184
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 14 Enero 1976
    ...stronger than this case. See, e.g., McNeil Bros. Co. v. Cohen, 264 F.2d 186, 188--89 (1st Cir. 1959); Eisler v. United States, 83 U.S.App.D.C. 315, 170 F.2d 273, 278 (D.C.Cir. 1948); Darlington v. Studebaker-Packard Corp., 261 F.2d 903, 906 (7th Cir. 1959); Weiss v. Hunna, 312 F.2d 711, 714......
  • Request a trial to view additional results
2 books & journal articles
  • Congressional investigations: politics and process.
    • United States
    • American Criminal Law Review Vol. 44 No. 3, June 2007
    • 22 Junio 2007
    ...198 F.2d 200 (2d Cir. 1952) (affirming a conviction for leaving a committee hearing before being excused); Eisler v. United States, 170 F.2d 273 (D.C. Cir. 1948) (affirming a conviction for refusal to be sworn in to testify); Townsend v. United States, 95 F.2d 352 (D.C. Cir. 1938) (affirmin......
  • Self-incrimination and Congressional Hearings - Roberto Iraola
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 54-2, January 2003
    • Invalid date
    ...which he will or will not testify, or the conditions under which having appeared he will remain in attendance."); Eisler v. United States, 170 F.2d 273, 280 (D.C. Cir. 1948) ("Appellant could not impose his own conditions upon the manner ofinquiry, and the trial court rightly instructed the......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT