Fleischman v. United States

• Decision Date: 08 April 1949
• Docket Number: No. 9852.,9852.
• Citation: 174 F.2d 519
• Parties: FLEISCHMAN v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

174 F.2d 519 (1949)

FLEISCHMAN v. UNITED STATES.

No. 9852.

United States Court of Appeals District of Columbia Circuit.

Argued February 7, 1949.

Decided April 8, 1949.

Mr. Benedict Wolf, of New York City, of the bar of the State of New York, pro hac vice, by special leave of Court, and O. John Rogge, of Washington, D. C., for appellant.

Mr. Charles B. Murray, Asst. U. S. Atty., of Washington, D. C., with whom Mr. George Morris Fay, U. S. Atty., of Washington, D. C., was on the brief, for appellee. Mr. John D. Lane, Asst. U. S. Atty., of Washington, D. C., also entered an appearance for appellee.

Before EDGERTON, PRETTYMAN, and PROCTOR, Circuit Judges.

EDGERTON, Circuit Judge.

Appellant has been convicted of willfully making default before the Committee on Un-American Activities of the House of Representatives, after being summoned to produce before it the records of the Joint Anti-Fascist Refugee Committee. A single indictment charged this appellant and the defendants in the Barsky case.¹ Appellant was tried separately.

The indictment alleged the defendants "were summoned to produce before the Congressional Committee on April 4, 1946, records * * *" and "appeared before the Congressional Committee" on that day "but failed to produce the records called for in the subpoena, as they had power to do, and thereby wilfully made default." The proof showed that this appellant appeared before some members of the Congressional Committee on April 4 and did not produce the records but testified she could not produce them because they were not in her possession or control.

There is, by definition, no meeting of a committee unless a quorum is present. A quorum of the Congressional Committee was five members. Whether five members were or were not present was a disputed question of fact. It was a material question, assuming there was evidence that (contrary to her own testimony) the records were in appellant's control.² On that assumption, therefore, the question whether a quorum was present should have been submitted to the jury. But the court instructed the jury, over objection, that "as a matter of law * * * the members of the committee before whom the defendants appeared, pursuant to the subpoenas served on them, constituted a sufficient quorum to carry on the investigation." We think this was error. Even if the evidence that a quorum was present had been conclusive the instruction would have been erroneous. In a criminal case "a judge may not direct a verdict of guilty no matter how conclusive the evidence"³ nor direct the jury to find a material fact against the defendant.⁴

A person summoned to testify before a committee cannot commit perjury unless the committee meets. This is conceded. Although the government concedes also that perjury and willful default are analogous in this respect,⁵ the dissenting opinion suggests that if a person summoned to produce records before a committee expresses unwillingness to do so he "willfully makes default" whether the committee meets or not. We think the quoted words cannot bear that construction.

The applicable statute is directed against "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 * * * any committee of either House of Congress, willfully makes default".⁶ "Default" is, of course, failure to comply with the summons. Appellant, summoned to produce records before the Congressional Committee, could not comply with the summons unless the committee met. Production before some members of the committee, absent a quorum, would not be a compliance. So much is clear and undisputed. Unless the appellant could comply with the summons she could not be guilty of willfully making default. Failure to do what cannot be done is not a willful crime. Neither is failure, however expressed, to desire and attempt it. The appellant could not be guilty of anything more than this unless the Congressional Committee met.

Judge Proctor concurs in so much of this opinion. The judgment is therefore reversed and the case remanded. Judge Proctor does not concur in the rest of this opinion and there I speak only for myself.

If it was impossible to produce the records before the Congressional Committee, which it plainly was if the Committee did not meet, appellant's supposed unwillingness to produce them is immaterial because it had no practical effect. A will or desire or intention that has no practical consequences has no legal consequences. Whatever a defendant's intention may be, and however emphatically he may announce it, he commits no crime unless he is guilty of some act or omission that causes a prohibited event. The statute does not prohibit willfully expressing a desire or intention to make default. It prohibits only willfully making default. Our system of law does not take the will for the deed. To paraphrase what the Supreme Court said when we treated another statute as dispensing with another fundamental principle, "We cannot but think that if Congress had intended to make such a drastic departure from the traditions of our law, an unequivocal statement of its purpose would have been made."⁷

Since a bad intention and a prohibited event do not make a crime, proof of them does not make a case. There is no presumption that if a defendant desired a thing, and it happened, he did it. If it is proved in a murder trial that the defendant expressed an intention to kill a man, and that the man was killed, the government must still convince the jury that the defendant killed him. If it was proved that this appellant expressed an intention not to comply with the summons, and that the summons was not complied with, the government must still convince the jury that noncompliance was caused by some act or omission of the appellant.

The assumption that the appellant had control of the records and refused to produce them, or expressed unwillingness to do so or an intention not to do so, has been shown to be immaterial unless the Congressional Committee met. In my opinion the assumption is also erroneous. Appellant testified without contradiction that she could not produce the records because they were not in her possession or control. She refused to express either willingness or unwillingness that they be produced.⁸ Even this refusal did not occur until she was questioned by members of the Congressional Committee on April 4. The records were in possession of one Bryan, subject to control by an Executive Board of about 18 members of whom appellant was one. Long before April 4 Bryan, directed by other members of the Board but not by the appellant, had determined not to produce the records. There is no evidence that appellant ratified or approved the action of the other members of the Board. The government says "In taking part in a combined action to withhold records from a Congressional Committee the appellant acted at her own peril." But I have not been able to find any evidence, and no evidence has been pointed out, that the appellant took part in a combined action to withhold records. It has been suggested that she might have asked the Board, or Bryan, to produce the records. But there is no evidence that if she had asked them they would have complied. There is no evidence that the nonproduction of the records in the committeeroom resulted either from anything the appellant did or from anything she omitted to do. This makes it quite immaterial whether or not the Congressional Committee met. The court should have directed a verdict of acquittal. The DeJonge, Herndon and Schneiderman cases,⁹ holding that things said or done by an organization cannot be attributed to a member merely because of his membership, are directly in point. Guilt, like belief, is "personal and not a matter of mere association".¹⁰

We need not consider the questions raised in the Barsky case¹¹ or whether government employees were qualified jurors.

Reversed.

PRETTYMAN, Circuit Judge (dissenting).

I think this judgment should be affirmed, and because the disputed point is important in congressional committee proceedings, I state the reasons for my view.

The court finds error in that part of the trial judge's charge in which he said, at the end of a long sentence concerning the House Committee, its constitution and jurisdiction, and the issuance and pertinence of the subpoena, "* * *; that the members of the committee before whom the defendants appeared, pursuant to the subpoenas served on them, constituted a sufficient quorum to carry on the investigation." I find no error — certainly no reversible error — in the judge's observation, because I think that the presence of a quorum was immaterial to the issues presented by the case when the parties rested. If the judge had said that a quorum need not have been present under the circumstances, he would have been correct. A fortiori he committed no error when he said that those present were sufficient.

The indictment was for a willful default in failing to respond to a subpoena. A default is negative. It is not an act but is a failure to act. A person subpoenaed to produce books consciously and deliberately does not produce them. He is in default.

The statute under which the indictment was brought, provides in pertinent part, "Every person who having been summoned as a witness by the authority of either House of Congress * * *, willfully makes default, * * * shall be * * *", etc.¹ This statute describes an offense of omission. The provision generally applicable to court subpœnas is Rule 45(f) of the Federal Rules of Civil Procedure, 28 U.S.C.A. — "Failure by any person without adequate excuse to obey a subpœna served upon him may be deemed a contempt of the court from which the subpœna issued." That Rule refers to "Failure * * * to obey". It is not limited to refusal or to any other affirmative action.

A willful default may be evidenced by a declared...