May v. United States, No. 9610-9612.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: STEPHENS, EDGERTON and PRETTYMAN, Associate Justices
• Citation: 84 US App. DC 233,175 F.2d 994
• Parties: MAY v. UNITED STATES GARSSON v. UNITED STATES (two cases).
• Docket Number: No. 9610-9612.
• Decision Date: 24 January 1949

84 US App. DC 233, 175 F.2d 994 (1949)

MAY
v.
UNITED STATES
GARSSON
v.
UNITED STATES (two cases).

Nos. 9610-9612.

United States Court of Appeals District of Columbia Circuit.

Decided January 24, 1949.

175 F.2d 995

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175 F.2d 996

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Mr. Warren E. Magee, of Washington, D. C., with whom Mr. Daniel J. Anderson, of Washington, D. C., was on the brief, for appellant May

Mr. Charles J. Margiotti, of Pittsburgh, Pa., pro hac vice, by special leave of court, with whom Messrs. Allen J. Krouse and Perry W. Howard, both of Washington, D. C., were on the brief, for appellants Garsson.

Mr. William A. Paisley, Special Assistant to the Attorney General, with whom Messrs. John T. M. Reddan and Bernard J. Vincent, Special Assistants to the Attorney General, were on the brief, for appellee. Mr. George Morris Fay, United States Attorney, and Mr. Sidney S. Sachs, Assistant United States Attorney, both of Washington, D. C., also entered appearances for appellee.

Before STEPHENS, EDGERTON and PRETTYMAN, Associate Justices.

PRETTYMAN, Associate Justice.

These are three appeals from judgments of the District Court of the United States for the District of Columbia (now the United States District Court for the District of Columbia) in criminal cases. The indictment upon which appellants were tried, convicted and sentenced, was in four counts. A motion for acquittal was granted as to the second count, the prosecutor electing to stand upon the third count as an alternative. The cases are thus before us on Counts I, III and IV. Four persons were indicted and tried. The court entered judgment of acquittal as to one, Joseph F. Freeman. The cases before us, therefore, concern the other three persons, each having entered an appeal from his conviction.

Appellant May was a member of the House of Representatives and Chairman of its Committee on Military Affairs. Appellant Henry M. Garsson was an officer, director and stockholder in two corporations, Erie Basin Metal Products, Inc., and Batavia Metal Products, Inc., which were engaged in the production of war materials under contracts with the War Department. Appellant Murray Garsson was an employee of those corporations.

Count I of the indictment charged that appellants conspired together to commit offenses against the United States,¹ that is, to violate Section 203 now § 281 of Title 18 of the United States Code² and to defraud the United States. It described the manner of the conspiring and the nature

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of the defrauding, and alleged the commission of thirty-five overt acts for the purpose of effecting the objects of the conspiracy. Count III alleged that May received from the Garssons and the Erie Company a check of the value of $5,000 as compensation for services rendered them by him in relation to contracts and other matters before the War Department. The act thus committed by May was said to be in violation of the statute just referred to and quoted in footnote 2 below. The indictment alleged that the Garssons aided and abetted him in the unlawful receipt of that compensation. Count IV was similar to Count III and alleged that some $15,000 was received by May as compensation from the Batavia Company and some $38,000 as compensation from the Erie Company, for services in matters before the War Department. It also charged that the Garssons aided and abetted those receipts

Generally speaking, in the indictment it was alleged that during the years 1942 to 1946 the Garssons and their companies had numerous contracts with the War Department for the production of materials of war, and that they were also interested in commissions, promotions, furloughs and transfers in the Army for relatives and friends. It was alleged that upon numerous occasions May telephoned, called personally or wrote officials of the War Department in respect to these matters in which the Garssons were interested, and brought his official prestige and influence to bear upon those officers in order to promote the interests of the Garssons. It was alleged that from time to time during this period the Garssons paid May large sums of money. It was alleged that these payments were compensation for the services rendered.

It was alleged in the indictment that some of the payments to May were direct, and that some were indirect through the medium of a corporation, the Cumberland Lumber Company, which was organized and operated for the purpose of concealing the payments. It was also alleged that the defrauding of the United States consisted, generally speaking, of defrauding it of its right to have its business conducted honestly and impartially, to have its officials free to transact that business unhampered by dishonest influence, and to have the duties of May as a Congressman performed honestly and impartially.

Appellants present some broad generalizations. They say that all the evidence offered by the Government was incompetent, irrelevant, immaterial and hearsay; that in order to determine the questions presented in their briefs, this court will be required to read the entire record on appeal; and that the trial court erred in denying their written motions to strike each exhibit and all testimony presented by the Government. They say: "Space does not permit a detailed argument covering all the assignments of error made by the defendants throughout the trial. We urge that this Court consider carefully each of these assignments, as we feel they are all meritorious and that the errors complained of therein clearly warrant a reversal of the judgment below."

This court cannot consider points on appeal made in the foregoing fashion. The Rules³ require that the brief of an appellant shall contain a concise statement of points and an "argument, exhibiting clearly the points of fact and of law being presented, citing the authorities and statutes relied upon." The points must be explicit and must be argued as specific propositions of law or fact. We, therefore, proceed to consider the points presented by appellants in this latter manner.

I. Appellants May and Henry Garsson say that they were immune from prosecution for any alleged offense within the subject matter of their testimony before the "Mead Committee" of the Senate. May appeared and testified voluntarily before that Committee. It seems to be agreed that Henry Garsson was subpoenaed to appear before the Committee. He says in his brief that he "did claim and expressly refused to waive his constitutional privilege before the Committee". No reference to the record upon the point is given us, and the only reference we find is the single statement made by him on the witness stand in his trial that he had testified before the Mead

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Committee. He did not mention the point in any of his motions to dismiss, for judgment of acquittal, etc. He testified that when he appeared before the grand jury he was told that he had a right to refuse to answer questions, but that he nevertheless answered them. We will assume, without knowing precisely what happened, that when Henry Garsson appeared before the Mead Committee he made a general statement claiming and refusing to waive "his constitutional privilege", but that he then proceeded to testify without further objection or refusal to answer. Murray Garsson did not testify before the Committee

Appellants' contention is based upon the Fifth Amendment and two statutes. One statute⁴ reads:

"No testimony given by a witness before either House, or before any committee of either House, or before any joint committee established by a joint or concurrent resolution of the two Houses of Congress, shall be used as evidence in any criminal proceeding against him in any court, except in a prosecution for perjury committed in giving such testimony. But an official paper or record produced by him is not within the said privilege."

The other statute⁵ reads:

"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."

Total immunity from prosecution is one thing; the admissibility of evidence is another. Some statutes confer the former; for example, that dealt with in United States v. Monia.⁶ The statute first above-quoted, 28 U.S.C.A. § 634 now 18 U.S.C.A. § 3486, pertains exclusively to the admissibility of evidence. It does not in terms confer immunity from prosecution. But appellants say that the two statutes must be read together and that when so read they confer complete immunity from prosecution for any offense within the subject matter of the testimony, because otherwise they would contravene the Amendment.

The leading cases upon the subject are Counselman v. Hitchcock,⁷ In re Chapman,⁸ Heike v. United States,⁹ McGrain v. Daugherty,¹⁰ United States v. Monia,¹¹ Glickstein v. United States,¹² and Brown v. Walker.¹³ We need not attempt to reproduce what those opinions contain. We need only follow the law there laid down.

The problem before us is whether these appellants were entirely immune from prosecution. We are not now discussing the admissibility of evidence.

The Fifth Amendment deals with compulsion to testify against oneself. Experience long ago demonstrated that public authorities must at times, in the public interest, obtain information which might incriminate the informant. They may compel that testimony. But...