Kasinowitz v. United States, 12

• Citation: 181 F.2d 632
• Decision Date: 01 June 1950
• Docket Number: 217.,No. 12,12
• Parties: KASINOWITZ v. UNITED STATES. STEINBERG v. UNITED STATES. DOBBS v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

181 F.2d 632 (1950)

KASINOWITZ v. UNITED STATES.

STEINBERG v. UNITED STATES.

DOBBS v. UNITED STATES.

No. 12,217.

United States Court of Appeals Ninth Circuit

April 21, 1950.

Rehearing Denied June 1, 1950.

Margolis & McTernan, Ben Margolis, John T. McTernan, Los Angeles, Cal., (William B. Murrish, John W. Porter, Esther Shandler and Jack Tenner, Los Angeles, Cal., of counsel) for appellants.

Ernest A. Tolin, U. S. Atty., Robert J. Kelleher, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Julius M. Keller, San Francisco, Cal., (Norman Leonard, George G. Olshausen, San Francisco, Cal., of counsel) for Civil Rights Congress, as amicus curiae.

Ibanez & Snider, Los Angeles, Cal., for United Steel Workers of America, et al., as amicus curiae.

Paul Major, San Pedro, Cal., for Carey McWilliams, et al., as amicus curiae.

Before DENMAN, Chief Judge, and MATHEWS, STEPHENS, HEALY, BONE, ORR and POPE, Circuit Judges.

DENMAN, Chief Judge.

These are three appeals from judgments in criminal contempt sentencing each appellant to one year in jail for refusing to answer questions, later considered, in the same grand jury investigation as that in the appeals here in Alexander v. United States, 9 Cir., 1950, 181 F.2d 480.

The three appellants are of a group of thirty persons chosen by the United States Attorney because, he says, he thought he could obtain from them the whereabouts of the membership records of the Los Angeles County Communist Party. The United States Attorney directed that the thirty subpoenas be served at seven o'clock in the morning of the same day because "unless served at that time it would be impossible to effect service thereafter on them."

The Federal Register had disclosed only the month before that the Attorney General classified the "Communist Party U.S.A." as one seeking to alter the form of the government of the United States by unconstitutional means, 13 F.R. 6138. A person properly could infer that the Los Angeles branch of the United States Communist Party had the same subversive purpose, an inference sustained by the statement of the attorney General that the designation of the "Communist Party U.S.A." "includes, of course, all the state and local branches and factions of the parent groups." 14 F.R. 4708. (Emphasis supplied.)

It is obvious that such subversive activities would be secret. Persons, like appellants, finding themselves chosen as one of the group of thirty "in on the secret," that is, selected because they knew of the whereabouts of the records of a membership likely to be secreted, well could regard the government as having them under suspicion.

Appellants, with seven others, had been adjudged guilty of civil contempt for failing to answer other questions put in the same grand jury proceeding — judgments reversed in the Alexander cases, supra. Among these questions were:

"Do you know the names of the county officers of the Los Angeles County Communist Party?"

"Do you know the table of organization and duties of the county officers of the Los Angeles County Communist Party?"

The civil contempt judgments against the three appellants and seven others were entered on October 26, 1948. In the Los Angeles Examiner of the next morning appeared an article describing the contempt proceedings in which the United States Attorney, who had participated in them, is quoted as saying: "This is only the opening gun in the government's inquiry into subversive and disloyal groups."

The United States Attorney here admits the Examiner reported under the headline "Officials Plan `All-Out' Red Inquiry Here," the following:

"Ten witnesses are jailed for refusing to answer in probe.

"Communist groups and activities in Southern California are scheduled to undergo a `top-to-bottom' investigation by a special Federal grand jury here.

"This was indicated by high government officials yesterday after ten witnesses were committed to jail for refusing to answer grand jury questions.

"`This is only the opening gun in the government's inquiry into subversive and disloyal groups,' United States Attorney James M. Carter, declared."

The effect of the Examiner's statements is heightened by the fact that they were effectively verified in a colloquy between the United States Attorney and counsel for the appellants, in which the United States Attorney carefully avoided denying his responsibility for this publication.

As indicated in our opinion in the Alexander case, supra, we are not in accord with the contention that a grand jury witness cannot possibly form a reasonable apprehension from matters stated in the press that answers to questions may incriminate him.¹ Here the report is in the press of the city of the prosecution and the statement reported is of the prosecutor himself about the nature of the grand jury proceedings.

Within a week of this publication in the Examiner, the three appellants, on November 3, 1948, were again taken before the grand jury which, as appears from its later presentment, was inquiring to "ascertain the official identity of one Dorothy Healy; the identity of the person or persons in charge of the books and records of the Los Angeles County Communist Party showing or pertaining to the membership of said organization." (Emphasis supplied.)

In so seeking to ascertain the "official" identity of Dorothy Healy in connection with the identity of the person having the books and records of the Los Angeles County Communist Party, each of the three appellants was asked and refused to answer on the ground that the answers might be incriminating, questions substantially as follows:

"Do you know Dorothy Healy?"

"Do you know her business or home address?"

"Do you know her occupation?"

"Do you know where she can be located?"

"Do you know whether Dorothy Healy is married?"

"If so, what is her husband's name?"

"Do you know what his occupation is?"

(Emphasis supplied.)

The three appellants were brought before the court and on November 12th on the suggestion of the Attorney General, the court heard the witness Dobbs privately in chambers to determine whether the answers to these questions would tend to incriminate the witness. At the request of that appellant the hearing was made public. This witness Dobbs there testified:

"Mr. Dobbs: In view of the fact that there have been many newspaper articles of recent date stressing the point or emphasizing that the government is going to conduct a full-scale investigation of Communist activities, and in the publicity relative to the indictment of the 12 Communist leaders, or alleged Communist leaders, that come up, I believe, next Monday for trial, and in view of the fact that the government takes the position that aliens who may be members of the Communist Party are subject to deportation proceedings because of the government's contention that Communists are advocates of force and violence against the government, and in view also of the whole spreading thesis through various committees of the guilt-through-association theory, that I still maintain the position that I refuse to answer questions about Communist organizations, alleged Communist Party members, in view that the answers to these questions might incriminate me.

"For instance, I have read that Mr. Sparks and Mrs. Healey are leaders in the Communist Party and if I answer these questions relative to these people or any knowledge I may have of these people, that I am afraid that my answers might tend to link me to the Communist Party and that these answers before the Grand Jury might tend to create a chain of evidence that might be used against me."

"My thinking on it is that, that in view of the fact that the government maintains that — well, I will put it this way — there are now I believe around 150 or 160 cases throughout the country of deportation proceedings of people who are being deported because they are Communists and, according to the government, therefore favor the advocacy of the overthrow of the government by force and violence. It is only that I am afraid if my testimony before this Grand Jury might link me to the Communist Party I too would fear that possible proceedings could come against me. Not that I am afraid of being deported. Of course not."

Under similar circumstances on that day, appellant Kasinowitz stated:

"Well, your Honor, I hold to the position that I might be incriminated principally on three grounds:

"First, the developments which have preceded our involvment in this grand jury hearing, particularly with regard to the trials in New York which come up in a few days, and also with respect to the fact as was indicated in court that the Communist Party is viewed and so designated by the Attorney General's office as a subversive organization, and thirdly on the grounds that in regard to this particular question I have become aware of the fact that Dorothy Healey is or was a leading officer of the Communist Party in Los Angeles, and I feel that my answering of the questions that are directed to me I might place myself in the position of incrimination."

Appellant Steinberg then similarly stated:

"Your Honor, I am aware, through reading the newspapers, of efforts on the part of the government to accuse, to charge the leadership of the Communist Party with overthrowing the government by force and violence for violation of the Smith Act, as well as the attempts on the part of the government to deport people because of membership in the Communist Party, and I feel that tying myself in any way in answering these questions would tend to incriminate me."

The witnesses were ordered back to the grand jury. The questions to each were repeated; each again refused to answer and the grand jury make its presentation to the court to that effect. The court treated the presentment as if it were an indictment for a criminal contempt. To these presentments the appellants pleaded not guilty.

After hearing and the taking of evidence, including a repeat of the...