Phaul v. United States

Decision Date14 November 1960
Docket NumberNo. 33,33
PartiesArthur M. McPHAUL, Petitioner, v. UNITED STATES of America
CourtU.S. Supreme Court

See 364 U.S. 925, 81 S.Ct. 282.

Mr. Ernest Goodman, Detroit, Mich., for petitioner.

Mr. Daniel M. Friedman, Washington, D.C., for respondent.

Mr. Justice WHITTAKER delivered the opinion of the Court.

We here review petitioner's conviction under 2 U.S.C. § 192, 2 U.S.C.A. § 1921 for willful failure to comply with a subpoena of the House of Representatives commanding him to produce certain records of the Civil Rights Congress before a Subcommittee of the House Committee on Un-American Activities. The principal question presented is whether th evidence justified the trial court's rulings that the records called for by the subpoena were in existence, subject to petitioner's control, and pertinent to the Committee's inquiry.

The relevant evidence was as follows. Having knowledge that the Civil Rights Congress had been declared a subversive organization by the Attorney General—indeed, having itself earlier found that organization to be a subversive one—and having reason to believe that petitioner was its Executive Secretary,2 the House Committee on Un-American Activities caused a subpoena of the House of Representatives to be issued and served upon petitioner commanding him to appear before its Committee on Un-American Activities, or a subcommittee thereof, at a stated time and place in Detroit, Michigan, on February 26, 1952, and there to produce 'all records, correspondence and memoranda pertaining to the organization of, the affiliation with other organizations and all monies received or expended by the Civil Rights Congress * * * (and) then and there to testify touching matters of inquiry committed to said Committee * * *.'

Upon the opening of the hearings before the Subcommittee at Detroit on February 26, 1952, the chairman made a public statement, saying, among other things, that earlier Committee hearings has 'disclosed a concentration of Communist effort in certain defense areas of the country,' consisting in part of keeping 'the national organization of the Communist Party and the international Communist movement fully advised of industrial potentialities' in such areas, and that '(t)here is no area of greater importance to the Nation as a whole, both in time of peace and in time of war, than the general area of Detroit,' and he concluded with the statement that: 'The purpose of this investigation is to determine first, whether there has been Communist activity in this vital defense area, and if so, the nature, extent, character and objects thereof.'

Accompanied by counsel, petitioner appeared before the Subcommittee at the time and place commanded by the subpoena, and the following colloquy occurred:

'Mr. Wood (the chairman): Mr. McPhaul, the committee has heretofore served upon you a sub- poena duces tecum, to produce certain records and documents. Are you prepared to respond to that subpoena?

'Mr. Wood: * * * Will you answer my question, Mr. McPhaul. Are you prepared to produce the documents and papers that have been called upon for you to produce under the subpoena?

'Mr. McPhaul: Mr. Wood, I refuse to answer this or any question which deals with the possession or custody of the books and records called for in the subpoena. I claim my privilege under the fifth amendment of the Constitution.

'Mr. Tavenner (Committee counsel): I would like to ask the witness if he has any other reason for refusing to produce the documents called for in the subpoena?

'Mr. Wood: In order to complete the record, Mr. McPhaul is it in response to this subpoena that has just been read that you now decline, for the reason you have stated, to produce the documents and books and records therein called for?

'Mr. McPhaul: I have stated the reasons, for the record.

'Mr. Wood: Is it in responses to this subpoena that you refuse to answer?

'Mr. McPhaul: That is my answer that I have just given.

'Mr. Wood: To this subpoena?

'Mr. McPhaul: To that subpoena; yes.'

Petitioner was then sworn, and, after submitting a prepared statement and answering a few preliminary questions, the following occurred:

'Mr. Tavenner: The question is as to whether or not you are refusing to produce the records directed to be produced under the subpoena?

'Mr. McPhaul: My answer to that is, I refuse to answer this or any questions which deal with possession or custody of the books and records called for in this subpoena. I claim my privilege under the fifth amendment of the United States Constitution.

'Mr. Tavenner: My question to you was not answered by that statement, in my judgment. My question was whether or not you are refusing to produce the records which you were directed to produce under this subpoena?

'Mr. McPhaul: I have answered it in this statement.

'Mr. Tavenner: No sir. You have stated that you refuse to answer any questions pertaining to them. I have not asked you a question that pertains to them. I have asked you to produce the records. Now, will you produce them?

'Mr. McPhaul: I will not.'

Following receipt of the Subcommittee's report of these occurrences, the House certified the matter to the United States Attorney for the Eastern District of Michigan for initiation of contempt proceedings against petitioner, and he was indicted on July 29, 1954. After denial of his motion to dismiss the indictment,3 petitioner entered a plea of not guilty and the case was put to trial before a jury. The Government offered and there was received in evidence those portions of the transcript of the Detroit hearings which we have mentioned, various House documents authorizing the initiation of this proceeding, and a letter on the letterhead of the Civil Rights Congress, dated February 16, 1952, over petitioner's name, and what purported to be his signature, as Executive Secretary.4

Petitioner offered no evidence, but moved for a directed verdict of acquittal substantially on the grounds asserted in his motion to dismiss the indictment (see note 3) and on the further grounds that the Government had failed to adduce any evidence sufficient to show that the records called for by the subpoena were in existence and in petitioner's possession or control at the time he was served with the subpoena or that they were pertinent to the Subcommittee's inquiry. The motion was denied, and thereupon petitioner requested the court to charge the jury, in substance, that unless they found from the evidence and beyond a reasonable doubt that the records called for by the subpoena were in existence and in petitioner's custody or control at the time the subpoena was served upon him, they should find him not guilty. The court refused that request and, instead, charged the jury not to consider 'whether the records and documents designated in the subpoena were actually in existence or under the possession or control of the defendant, because if the defendant had legitimate reasons for failing to produce the said records, he should have stated his reasons for noncompliance with the subpoena when he appeared before the said subcommittee.'

The jury found petitioner guilty, and he was fined the sum of $500 and sentenced to imprisonment for a period of nine months. The Court of Appeals affirmed, 6 Cir., 272 F.2d 627, and we granted certiorari, 362 U.S. 917, 80 S.Ct. 670, 4 L.Ed.2d 737.

Petitioner's principal contentions here are that there was no evidence showing that the records called for by the subpoena were in existence or, if it may be said that there was, that those records were in petitioner's possession or subject to his control, and the trial court therefore should have sustained his motion for a directed verdict of acquittal or, at the minimum, should have submitted those matters to the jury for resolution.

It is of course true that '(a) court will not imprison a witness for failure to produce documents which he does not have unless he is responsible for their unavailability, cf. Jurney v. MacCracken (294 U.S. 125, 55 S.Ct. 375, 79 L.Ed. 802), or is impeding justice by not explaining what happened to them, United States v. Goldstein, 2 Cir., 1939, 105 F.2d 150.' United States v. Bryan, 339 U.S. 323, 330—331, 70 S.Ct. 724, 730, 94 L.Ed. 884. But, so far as the record shows, petitioner has never claimed either before the Subcommittee, the District Court, or the Court of Appeals, and he does not claim here—that the records called for by the subpoena did not exist or that they were not in his possession or subject to his control. Rather, his claim, first raised at his contempt trial more than two years after his appearance before the Subcommittee, is that the Government failed to show that he could have produced the records before the Subcommittee notwithstanding he has never claimed he could not produce them.

We think the Court's decision in United States v. Bryan, 339 U.S. 323, 70 S.Ct. 724, is highly relevant to these questions.5 For it is as true here as it was there, that 'if (petitioner) had legitimate reasons for failing to produce the records of the association, a decent respect for the House of Representatives, by whose authority the subpoenas issued, would have required that (he) state (his) reasons for noncompliance upon the return of the writ.' Id., 339 U.S. at page 332, 70 S.Ct. at page 731. Such a statement would have given the Subcommittee an opportunity to avoid the blocking of its inquiry by taking other appropriate steps to obtain the records. '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. See Bevan v. Krieger, 1933, 289 U.S. 459, 464—465, 53 S.Ct. 661, 662 663, 77 L.Ed. 1316.' His failure to make any such statement was 'a patent evasion of the duty of one summoned to produce papers before a congressional committee (, and) cannot be...

To continue reading

Request your trial
101 cases
  • In re Horowitz
    • United States
    • U.S. Court of Appeals — Second Circuit
    • June 8, 1973
    ...relevancy without knowing more about the documents than the record disclosed, see 237 F.2d at 362. McPhaul v. United States, 364 U.S. 372, 382-383, 81 S.Ct. 138, 140, 5 L.Ed.2d 136 (1960), also recognized the impracticability in many cases of detailed advance determination of relevancy. In ......
  • Estate of Baehr
    • United States
    • Pennsylvania Superior Court
    • September 26, 1991
    ...S.Ct. 739, 94 L.Ed. 906 (1950); Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344 (1951); McPhaul v. United States, 364 U.S. 372, 81 S.Ct. 138, 5 L.Ed.2d 136 (1960); and Bellis v. United States, 417 U.S. 85, 94 S.Ct. 2179, 40 L.Ed.2d 678 (1974).) In essence, the trial court ......
  • Craib v. Bulmash
    • United States
    • California Supreme Court
    • August 28, 1989
    ...records relating to company tax returns need not be supported by probable cause to suspect fraud]; McPhaul v. United States (1960) 364 U.S. 372, 382-383, 81 S.Ct. 138, 144-145, 5 L.Ed.2d 136 [finding no overbreadth in congressional committee subpoena despite assertion that existence of reco......
  • United States v. McSurely, 24812
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • December 20, 1972
    ...be reversed. 7 See Watkins v. United States, 354 U.S. 178, 188, 77 S.Ct. 1173, 1 L.Ed.2d 1273 (1954); McPhaul v. United States, 364 U.S. 372, 382-383, 81 S.Ct. 138, 5 L.Ed. 2d 136 (1960); cf. Note, The Application of the Fourth Amendment to Congressional Investigations, 52 Minn.L.Rev. 665 (......
  • Request a trial to view additional results
3 books & journal articles
  • Congressional investigations: politics and process.
    • United States
    • American Criminal Law Review Vol. 44 No. 3, June 2007
    • June 22, 2007
    ...States v. Fort, 443 F.2d 670, 676-78 (D.C. Cir. 1970). (98.) 2 U.S.C. [section] 192 (2000). (99.) See, e.g., McPhaul v. United States, 364 U.S. 372 (1960) (upholding a conviction for failure to produce subpoenaed records); United States v. Bryan, 339 U.S. 323 (1950) (reinstating the distric......
  • The Pierced Privilege: Challenges to How Congress Vitiates the Attorney-Client Privilege
    • United States
    • Georgetown Journal of Legal Ethics No. 35-4, October 2022
    • October 1, 2022
    ...practice. 81 73. Barenblatt v. United States, 360 U.S. 109, 112 (1959). 74. U.S. CONST. amend. IV. 75. See McPhaul v. United States, 364 U.S. 372, 382 (1960). See also CONG. RSCH. SERV., RL30240, CONGRESSIONAL OVERSIGHT MANUAL 58 (2021). 76. See infra Section III.A.1–3. 77. Katz v. United S......
  • The Study of Judicial Attitudes: the Case of Mr. Justice Douglas
    • United States
    • Political Research Quarterly No. 24-1, March 1971
    • March 1, 1971
    ...(1961). Hutcheson v. United States, 369U.S. 599, 641 (1962). Russell v. United States, 369 U.S. 749, 778 (1962). McPhoulv. United States, 364 U.S. 372, 383 (1960). Yates v. United States, 355 U.S. 66, The term value, as used here, means a "... clustering of attitudes which direct[s] behavio......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT