Russell v. United States Shelton v. United States Whitman v. United States Liveright v. United States Price v. United States Gojack v. United States 8212 12, 128, s. 8

Decision Date21 May 1962
Docket NumberNos. 8,s. 8
Citation369 U.S. 749,8 L.Ed.2d 240,82 S.Ct. 1038
PartiesNorton Anthony RUSSELL, Petitioner, v. UNITED STATES. Robert SHELTON, Petitioner, v. UNITED STATES. Alden WHITMAN, Petitioner, v. UNITED STATES. Herman LIVERIGHT, Petitioner, v. UNITED STATES. William A. PRICE, Petitioner, v. UNITED STATES. John T. GOJACK, Petitioner, v. UNITED STATES. —12, 128
CourtU.S. Supreme Court

No. 8:

[Syllabus from pages 749-750 intentionally omitted] Joseph A. Fanelli, Washington, D.C., for petitioner.

Kevin T. Maroney, Washington, D.C., for respondent.

No. 9:

Joseph L. Rauh, Jr., Washington, D.C., for petitioner.

Bruce J. Terris, Washington, D.C., for respondent.

No. 10:

Gerhard P. Van Arkel, Washington, D.C., for petitioner.

J. William Doolittle, Jr., Washington, D.C., for respondent.

No. 11:

Harry I. Rand, Washington, D.C., for petitioner.

J. William Doolittle, Jr., Washington, D.C., for respondent.

No. 12:

Leonard B. Boudin, New York City, for petitioner.

J. William Doolittle, Jr., Washington, D.C., for respondent.

No. 128:

Frank J. Donner, New York City, for petitioner.

Kevin T. Maroney, Washington, D.C., for respondent.

Mr. Justice STEWART delivered the opinion of the Court.

In these six cases we review judgments of the Court of Appeals for the District of Columbia,1 which affirmed convictions obtained in the District Court under 2 U.S.C. § 192, 2 U.S.C.A. s 192.2 Each of the petitioners was convicted for refusing to answer certain questions when summoned before a congressional subcommittee.3 The cases were separately briefed and argued here, and many issues were presented. We decide each case upon a single ground common to all, and we therefore reach no other questions.

In each case the indictment returned by the grand jury failed to identify the subject under congressional subcommittee inquiry at the time the witness was interrogated. The indictments were practically identical in this respect, stating only that the questions to which answers were refused 'were pertinent to the question then under inquiry' by the subcommittee.4 In each case a motion was filed to quash the indictment before trial upon the ground that the indictment failed to state the subject under investigation at the time of the subcommittee's interrogation of the defendant.5 In each case the motion was denied. In each case the issue thus raised was preserved on appeal, in the petition for writ of certiorari, and in brief and argument here.

Congress has expressly provided that no one can be prosecuted under 2 U.S.C. § 192, 2 U.S.C.A. § 192 except upon indictment by a grand jury.6 This Court has never decided whether the indictment must identify the subject which was under inquiry at the time of the defendant's alleged default or refusal to answer.7 For the reasons that follow, we hold that the indictment must contain such an averment, and we accordingly reverse the judgments before us.

In enacting the criminal statute under which these petitioners were convicted Congress invoked the aid of the federal judicial system in protecting itself against contumacious conduct. Watkins v. United States, 354 U.S. 178, 207, 77 S.Ct. 1173, 1189, 1 L.Ed.2d 1273. The obvious consequence, as the Court has repeatedly emphasized, was to confer upon the federal courts the duty to accord a person prosecuted for this statutory offense every safeguard which the law accords in all other federal criminal cases. Sinclair v. United States, 279 U.S. 263, 296—297, 49 S.Ct. 268, 272—273, 73 L.Ed. 692; Watkins v. United States, supra, 354 U.S. at 208, 77 S.Ct. at 1189; Sacher v. United States, 356 U.S. 576, 577, 78 S.Ct. 842, 843, 2 L.Ed.2d 987; Flaxer v. United States, 358 U.S. 147, 151, 79 S.Ct. 191, 193, 3 L.Ed.2d 183; Deutch v. United States, 367 U.S. 456, 471, 81 S.Ct. 1587, 1595, 6 L.Ed.2d 963.

Recognizing this elementary concept, the Sinclair case established several propositions which provide a relevant starting point here. First, there can be criminality under the statute only if the question which the witness refused to answer pertained to a subject then under investigation by the congressional body which summoned him. '(A) witness rightfully may refuse to answer where * * * the questions asked are not pertinent to the matter under inquiry.' Sinclair v. United States, supra, 279 U.S. at 292, 49 S.Ct. at 271. Secondly, because the defendant is presumed to be innocent, it is 'incumbent upon the United States to plead and show that the question (he refused to answer) pertained to some matter under investigation.' Id., at 296—297, 49 S.Ct. at 273. Finally, Sinclair held that the question of perti nency is one for determination by the court as a matter of law. Id., at 298, 49 S.Ct. at 273.

In that case the Court had before it an indictment which set out in specific and lengthy detail the subject under investigation by the Senate Committee which had summoned Sinclair. The Court was thereby enabled to make an enlightened and precise determination that the question he had refused to answer was pertinent to that subject. Id., at 285—289, 296—298, 49 S.Ct. at 269—270, 272—273.

That the making of such a determination would be a vital function of the federal judiciary in a prosecution brought under 2 U.S.C. § 192, 2 U.S.C.A. § 192 was clearly foreseen by the Congress which originally enacted the law in 1857.8 Congress not only provided that a person could be prosecuted only upon an indictment by a grand jury, but, as the record of the legislative debates shows, Congress was expressly aware that pertinency to the subject under inquiry was the basic preliminary question which the federal courts were going to have to decide in determin- ing whether a criminal offense had been alleged or proved. The principal spokesman for the bill, Senator Bayard, repeatedly made this very point:

'The bill provides for punishing a witness who shall refuse to answer any question 'pertinent' to the matter of inquiry under consideration before the House or its committee. If he refuses to answer an irrelevant question, he is not subject to the penalties of the bill. The question must be pertinent to the subjectmatter, and that will have to be decided by the courts of justice on the indictment. That power is not given to Congress; it is given appropriately to the judiciary.' Cong. Globe, 34th Cong., 3d Sess. 439 (1857).

'This law does not propose to give to this miscellaneous political body the power of punishment; but one of its greatest recommendations is, that it transfers that power of punishment to a court of justice after judicial inquiry. All that is to be done in the case of a refusal to testify is to certify the fact to the district attorney, who is to lay it before the grand jury, and if the party is indicted he is bound to answer according to the terms of the law, as any other person would for an offense against the laws of the land. * * * I am aware that legislative bodies have transcended their powers—that under the influence of passion and political excitement they have very often invaded the rights of individuals, and may have invaded the rights of coordinate branches of the Government; but if our institutions are to last, there can be no greater safeguard than will result from transferring that which now stands on an indefinite power (the punishment as well as the offense resting in the breast of either House) from Congress to the courts of justice. When a case of this kind comes before a court, will not the first inquiry be, have Congress jurisdiction of the subject-matter?—has the House which undertakes to inquire, jurisdiction of the subject? If they have not, the whole proceedings are coram non judice and void, and the party cannot be held liable under indictment. The Court would quash the indictment if this fact appeared on its face; and if it appeared on the trial they would direct the jury to acquit.' Cong. Globe, 34th Cong., 3d Sess. 440 (1857).

'* * * The law prescribes that, in case of such refusal, the House shall certify the fact to the district attorney, and he shall bring the matter before the grand jury. When that comes up by indictment before the court, must not the court decide whether the question put was pertinent to the inquiry? Of course they must; and they cannot hold the party guilty without doing it.' Cong. Globe, 34th Cong., 3d Sess. 444—445 (1857).

These forecasts of the office which the federal courts would be called upon to perform under 2 U.S.C. § 192, 2 U.S.C.A. § 192 have been amply borne out by the cases which have arisen under the statute. The crucial importance of determining the issue of pertinency is reflected in many cases which have come here since Sinclair, supra. Watkins v. United States, 354 U.S. 178, 208, 77 S.Ct. 1173, 1189, 1 L.Ed.2d 1273; Sacher v. United States, 356 U.S. 576, 577, 78 S.Ct. 842, 843, 2 L.Ed.2d 987; Barenblatt v. United States, 360 U.S. 109, 123—125, 79 S.Ct. 1081, 1091—1092, 3 L.Ed.2d 1115; Wilkinson v. United States, 365 U.S. 399, 407—409, 413, 81 S.Ct. 567, 572—573, 5 L.Ed.2d 633; Braden v. United States, 365 U.S. 431, 435—436, 81 S.Ct. 584, 587, 5 L.Ed.2d 653; Deutch v. United States, 367 U.S. 456, 467—471, 81 S.Ct. 1587, 1593—1595, 6 L.Ed.2d 963. Our decisions have pointed out that the obvious first step in determining whether the questions asked were perti- nent to the subject under inquiry is to ascertain what that subject was. See, e.g., Deutch v. United States, supra, at 469, 81 S.Ct. at 1594. Identification of the subject under inquiry is also an essential preliminary to the determination of a host of other issues which typically arise in prosecutions under the statute. In Wilkinson v. United States, supra, for example, the Court pointed out that in order properly to consider any of the many issues there presented, 'the starting point must be to determine the subject matter of the subcommittee's inquiry.' 365 U.S., at 407, 81 S.Ct. at 572.

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