Fields v. United States, 9486.

• Decision Date: 27 October 1947
• Docket Number: No. 9486.,9486.
• Citation: 164 F.2d 97
• Parties: FIELDS v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

164 F.2d 97 (1947)

FIELDS v. UNITED STATES.

No. 9486.

United States Court of Appeals District of Columbia.

Argued June 9, 1947.

Decided October 27, 1947.

Writ of Certiorari Denied January 12, 1948.

Mr. William B. Mahoney, pro hac vice, by special leave of court, of Buffalo, N.Y. with whom Messrs. Alton S. Bradford and I. Irwin Bolotin, both of Washington, D.C., were on the brief, for appellant.

Mr. William Hitz, Asst. United States Atty., of Washington, D. C., with whom Messrs. George Morris Fay, United States Atty., Charles B. Murray, Asst. United States Atty., and Sidney S. Sachs, Asst. United States Atty., all of Washington, D. C., were on the brief, for appellee.

Before EDGERTON, CLARK and PRETTYMAN, Associate Justices.

Writ of Certiorari Denied January 12, 1948. See 68 S.Ct. 355.

CLARK, Associate Justice.

Appellant was convicted by the verdict of a jury in the District Court of the United States for the District of Columbia under an indictment charging him with violation of 52 Stat. 942, Act June 22, 1938, 2 U.S.C. A. § 192 which reads as follows: "Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months." He appeals from the judgment of conviction.

On August 8, 1946, a subpoena was issued summoning appellant to appear before the select committee of the House of Representatives, created by authority of H. Res. 385, 79th Congress (1946), to investigate the disposition of surplus property. In obedience to said subpoena appellant appeared before the committee on August 12, 1946, and was sworn as a witness. Appellant was thereupon questioned at some length in connection with a transaction in which he had participated whereby a quantity of bronze wire screen purchased by appellant and his business associates from the War Assets Administration was resold to an Oklahoma company at an unusual profit. During the course of his testimony appellant professed his willingness to provide the committe with all of the records in his possession pertaining to this particular transaction, and appellant did hand over to the committee at this time a file of papers relating to this transaction.

The committee member to whom appellant had handed this file discovered therein a typewritten memorandum, which was received in evidence at the trial below, in the following form:

                Bronze Wire Screening
                  Gross Profit ......................  $4,442.80
                  Less
                    Brokerage, 1/3 to
                      Glenn A. Dies ......  $1,480.93
                    Brokerage, 1/3 to
                      John Doe ...........  $1,480.93
                    Brokerage to John
                      Doe ................  $  400.00
                    Traveling and Misc
                      Expenses ...........  $  100.00
                                              _______   3,461.86
                                                        ________
                        Net Profit ..................     980.94
                

As a consequence of this discovery appellant was then asked if he had any records which would amplify the memorandum and serve to identify the persons therein described merely as "John Doe." Appellant answered with an explanation that most of his records were then in the hands of his auditor, that he thought he could produce the records requested, and would like to have an opportunity to do so. In pursuance of its request the committee caused to be issued and served upon appellant a subpoena duces tecum, returnable August 13, 1946, directing him to "* * * bring with him all books, records, documents, memoranda, notes, ledger sheets, cancelled checks (i. e. Brokerage, 1/3 payable to Glenn A. Dies, $1,480.93; Brokerage, 1/3 payable to John Doe, $1,480.93; Brokerage payable to John Doe, $400.00), and other evidence of payments, and other material relating to or connected with the sale of 539 rolls of bronze mesh screen wire."

On August 13, 1946, appellant requested of the committee that he be allowed to delay his appearance as directed by the subpoena duces tecum for one day, and this request was granted. On August 14, 1946, appellant appeared before the committee at 10 a.m. without additional records, and explained that his auditor was trying to secure the records for him that day, and further that he believed the records could be made available later in the day. Whereupon appellant was excused by the committee until 2 p.m. the same day, with instructions to appear at that time with the subpoenaed records. Appellant did appear at the later time, but without additional records, and testified, when questioned with regard to the whereabouts of the papers called for by the subpoena, "I have given you all I have."

With remarkable forbearance the committee twice again excused appellant to allow him additional time to produce the records requested. During his final appearance before the committee on August 15, 1946, appellant, having yet failed to produce the subpoenaed records, was asked the following question by the committee chairman: "Do you this morning have with you, in obedience to the subpoena served on you August 13, 1946, all books, records, documents, memoranda, notes, ledger sheets, canceled checks, in connection with the matter in which, according to your memorandum one-third commission was payable to Glenn A. Dies, in the sum of $1,480.93, plus one-third payable to John Doe, in the sum of $1,480.93, plus brokerage payable to John Doe in the sum of $400.00, or any other evidence of payments to these two individuals indicated as John Doe?" In reply appellant answered: "Mr. Chairman, I have brought to this committee all of the evidence, all of the files, and all of the books in connection with bronze wire that I possess. There are no other records until such time as the auditor sets them up from a memorandum which I furnish him. If I had any other records I would be very happy to bring them to this committee."

For his failure to produce the records called for by the subpoena appellant was cited by the House of Representatives, upon the recommendation of the committee, for contempt. The indictment returned by the grand jury contained two counts of alleged contempt, similar in substance but referring to the separate days of August 14 and 15, 1946. The lower court granted a motion for acquittal as to the first count but appellant was convicted on the second count. He was sentenced to be confined for a term of three months and to pay a fine of two hundred and fifty dollars.

The Government charged there were at least three documents pertinent to the transaction under investigation by the committee which were available to the appellant at the time of the committee hearing. These documents were produced at the trial. The jury found that one or more of these documents had been willfully withheld from the committee by the appellant.

The principal issues raised on appeal are whether or not the court below erred in failing to direct a judgment of acquittal as to the second count;...