Emspak v. United States, 10943.

• Decision Date: 19 December 1952
• Docket Number: No. 10943.,10943.
• Citation: 91 US App. DC 378,203 F.2d 54
• Parties: EMSPAK v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

91 US App. DC 378, 203 F.2d 54 (1952)

EMSPAK v. UNITED STATES.

No. 10943.

United States Court of Appeals District of Columbia Circuit.

Argued October 5, 1951.

Reargued May 27, 1952.

Decided December 19, 1952.

Petition for Rehearing Denied April 13, 1953.

David Scribner, New York City, pro hac vice, by special leave of court, with whom Allan Rosenberg, Washington, D. C., was on the brief, for appellant.

Charles B. Murray, Asst. U. S. Atty., Washington, D. C., at the time of argument, with whom George Morris Fay, U. S. Atty., Washington, D. C., at the time the brief was filed, was on the brief, for appellee. Charles M. Irelan, U. S. Atty., Washington, D. C., at the time of argument, and Joseph M. Howard, Asst U. S. Atty., Washington, D. C., also entered appearances on behalf of appellee.

Before STEPHENS, Chief Judge, and EDGERTON, CLARK, WILBUR K. MILLER, PRETTYMAN, PROCTOR, BAZELON, FAHY, and WASHINGTON, Circuit Judges.

CLARK, Circuit Judge.

This appeal was first heard by a division of this court but subsequently, before a decision and opinion had been announced, the court, sua sponte, ordered rehearing in banc. Appellant was indicted by a grand jury, tried without jury, and convicted of violating Section 192, Title 2 U.S.C.A.¹ He was sentenced to imprisonment for a period of six months and to pay a fine of $500. This appeal follows.

In response to subpoena, appellant appeared before a one-man subcommittee of the Committee on Un-American Activities of the House of Representatives. The committee was investigating the general subject of infiltration of Communism into labor unions. During the course of the hearing, appellant was asked approximately two hundred thirty-nine questions, most of which he answered, but there were sixty-eight questions which he refused to answer. Appellant contends that at the time of his refusal to answer those questions, he asserted the privilege against self-incrimination under the Fifth Amendment. In addition, he advances certain other arguments which we will consider before addressing ourselves to an examination of the remarks and events which took place at the hearing.

One argument advanced by appellant is that the lower court erred in denying a hearing on appellant's motion challenging validity of the grand jury which indicted him. The affidavits which he submitted to support his motion for hearing had as their sole basis the argument that government employees on the grand jury were incapable of reaching an unbiased decision, and they did no more than assert existence of a "miasma of fear" so clearly rejected in the Dennis case. Without more, there was no ground upon which an order for hearing might be founded, and there was no error in the denial thereof. The Supreme Court has held that the mere fact of government employment does not result in an implication of bias on the part of a juror, and does not disqualify an individual from jury service. United States v. Wood, 1936, 299 U.S. 123, 57 S.Ct. 177, 81 L.Ed. 78; Frazier v. United States, 1948, 335 U.S. 497, 69 S.Ct. 201, 93 L.Ed. 187; Dennis v. United States, 1949, 339 U.S. 162, 70 S.Ct. 519, 94 L.Ed. 734.

As for appellant's contention that the prosecution failed to prove a material ingredient of the offense — a valid subcommittee — there is no justification whatsoever. The validity of the House Committee on Un-American Activities has been the subject of exhaustive examination and certainly by now conclusive determination. See U. S. v. Josephson, 2 Cir., 1947, 165 F.2d 82, certiorari denied 1948, 333 U.S. 838, 68 S.Ct. 609, 92 L.Ed. 1122; Barsky v. United States, 83 U.S.App.D.C. 127, 167 F.2d 241, certiorari denied 1948, 334 U.S. 843, 68 S.Ct. 1511, 92 L.Ed. 1767; Eisler v. United States, 1948, 83 U.S.App.D.C. 315, 170 F.2d 273; Dennis v. United States, 1948, 84 U.S.App.D.C. 31, 171 F.2d 986, affirmed 1950, 339 U.S. 162, 70 S.Ct. 519, 94 L.Ed. 734. The committee is authorized as a whole or by subcommittee to make investigations. Act Aug. 2, 1946, 60 Stat. 812, 828. Appellant appeared before the subcommittee in response to subpoena and the record discloses that on the call to order the chairman identified the subcommittee and recited the authority under which it was constituted. Appellant was present, accompanied by counsel. He heard the announcements of the chairman, and he made no objection to the chairman's sitting as a subcommittee of one. Not only is it clear from the record that the subcommittee was valid, the appellant may not now advance an objection to it. In the Bryan case the Supreme Court was called upon to consider the failure of a recalcitrant witness to express at time of hearing any objection to the composition of the committee, and in its opinion the Court said: "To deny the Committee the opportunity to consider the objection or remedy it is in itself a contempt of its authority and an obstruction of its processes." United States v. Bryan, 1950, 339 U.S. 323, 333, 70 S.Ct. 724, 731, 94 L.Ed. 884.

In his brief and in oral argument on appeal, appellant sought to remove himself from the operation of the statute by claiming that there could have been no contempt until after a question had been asked by the subcommittee, reply had been refused, and thereafter specific direction that the question be answered, with still another refusal. In other words, he argued that failure to answer the questions of the Congressional subcommittee was not of itself contempt, but rather that contempt would arise from refusal to comply with a specific Congressional order to answer. We cannot agree with appellant's proposition that there is an analogy between a committee of Congress and a grand jury. The grand jury is an appendage of the court, 24 Am.Jur., Grand Jury, § 2, dependent upon the court to punish contumacious witnesses, whereas the contempt power of Congress is implied to both Houses from the inherent nature of the Congress, and "Congress was only implementing a conceded power when it enacted the statute providing punishment for contempt of its committees." See Fields v. United States, 1947, 82 U.S.App. D.C. 354, 356-357, 164 F.2d 97, 99-100, certiorari denied 1948, 332 U.S. 851, 68 S.Ct. 355, 92 L.Ed. 421. Any crime of contempt was complete when appellant refused to answer questions propounded by the subcommittee. United States ex rel. Cunningham v. Mathues, 3 Cir., 1930, 50 F.2d 411.

The Supreme Court has said that "The offense of contempt of Congress * * * matures only when the witness is called to appear before the committee to answer questions or produce documents and wilfully fails to do so." See United States v. Bryan, supra, 339 U.S. at page 341, 70 S.Ct. at page 735. But that does not mean that the witness appears before a committee of the Congress deprived of his legal rights or shorn of his constitutional privileges. A person summoned to appear before a Congressional committee may refuse to answer questions and submit to a court the correctness of his judgment in doing so, but a mistake of law is no defense, for he is bound rightly to construe the statute involved. Townsend v. United States, 68 U.S.App.D.C. 223, 95 F.2d 352, certiorari denied 1938, 303 U.S. 664, 58 S.Ct. 830, 82 L.Ed. 1121.

This brings us to the primary argument advanced by appellant in this appeal. He has argued that at the time of his refusal to answer the questions of the subcommittee he asserted the privilege against self-incrimination under the Fifth Amendment.

The record discloses that appellant is an experienced, intelligent, and articulate individual who holds high executive position in a large labor union and who also serves as editor of the union's official publication. He was accompanied at the hearing by able and experienced counsel. His testimony shows him to be a man of strong opinions and clear and vigorous expression. These elements leave no doubt of his ability to say what he might mean, and, conversely, to mean what he might say.

At the start of the hearing, appellant answered questions concerning the union and its organization, officials, and functions. He also answered later questions concerning access of union officers to defense plants. But when asked to identify certain persons, he lashed out at the committee, condemning its conduct in the past, and impugning its motives. Rather than draw about him the protecting mantle of the Fifth Amendment, in his sole reference to the Constitution the appellant stated: "Because of the hysteria, I think it is my duty to endeavor to protect the rights guaranteed under the Constitution, primarily the First Amendment, supplemented by the Fifth. This committee will corrupt those rights." Later, on being asked if he felt answers to certain questions would subject him to criminal prosecution, he not only replied in the negative, but he also added: "I don't think this committee has a right to pry into my associations. That is my position."

This court is well aware that the provisions of the Fifth Amendment must be accorded liberal construction in favor of the right it was intended to secure. Hoffman v. United States, 1951, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118, and cases there cited. We are also aware that no magic formula of words must be precisely recited, as though a talisman, to assure the protection which the Amendment was intended to provide. However, there is no analogy between this situation and the circumstances involved in the Hoffman case, for in that case it was stipulated that the petitioner had declined to answer on the ground that his answers might tend to incriminate him of a federal offense, whereas the very question to be decided here is whether or not appellant adequately invoked the privilege. We find that he did not.

Affirmed.

PRETTYMAN, Circuit Judge, with whom STEPHENS, Chief Judge, and WASHINGTON, Circuit Judge, concur, concurring.

The rule invoked by appellant in respect to the grand jury, as stated by him in his brief, is: "It is...