Sacher v. United States, 13302.

Decision Date31 January 1958
Docket NumberNo. 13302.,13302.
Citation252 F.2d 828,102 US App. DC 264
PartiesHarry SACHER, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — District of Columbia Circuit

COPYRIGHT MATERIAL OMITTED

Mr. Telford Taylor, New York City, with whom Mr. David Rein, Washington, D. C., was on the brief for appellant.

Mr. William Hitz, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., Lewis Carroll, John D. Lane and Harold D. Rhynedance, Jr., Asst. U. S. Attys., were on the brief, for appellee.

Before EDGERTON, Chief Judge, and PRETTYMAN, WILBUR K. MILLER, BAZELON, FAHY, WASHINGTON, DANAHER, BASTIAN and BURGER, Circuit Judges, sitting en banc.

Decided January 31, 1958. Judgment Reversed 78 S.Ct. 842.

BURGER, Circuit Judge.

Appellant Harry Sacher was convicted in the District Court under a three count indictment which charged him with violation of 2 U.S.C.A. § 192 for having refused to answer three questions1 of a subcommittee of a Senate Committee which questions were found to be pertinent to a subject then under inquiry.2 Appellant was sentenced to six months imprisonment and $1000 fine. Thereafter this court affirmed the District Court3 and while a petition for certiorari was pending in the Supreme Court, the case of Watkins v. United States4 was decided. Shortly thereafter, the Supreme Court granted certiorari and remanded the instant case5 for reconsideration in light of Watkins v. United States. This court then set the appeal for reargument before the court en banc, received additional briefs and heard arguments.

On remand appellant raises four issues which he contends are controlled by the Watkins case: (1) the indictment failed to allege essential elements of the offense; (2) the inquiry infringed First Amendment rights of privacy; (3) the Senate Resolution 366, which established the subcommittee, is invalid; (4) it was not indisputably clear to appellant that the questions were pertinent to the subject matter of the inquiry.

I. Sufficiency of Indictment.

While conceding that the "Watkins case does not, of course, deal directly with the sufficiency of the indictment," appellant urges his indictment was constitutionally insufficient because it did not recite "the nature of the matter under inquiry and that the matter under inquiry was within the subcommittee's delegated authority." In our view nothing said or implied in the Watkins opinion suggests the Court intended to interpret Rule 7c, Fed.R.Crim.P., 18 U.S.C.A., to require that an indictment under 2 U.S.C.A. § 192 recite details of the authority and scope of the inquiry. We see no reason to alter our earlier holding that the indictment is sufficient.6

II. Infringement of First Amendment.

Appellant urges that "even if pertinent," information as to membership in the Communist Party or the "Lawyers' Section" thereof, "was altogether too remote from the subject under inquiry the Matusow recantation to justify an invasion of his protected freedoms," under the First Amendment. The Supreme Court has indicated that where the exercise of the investigative powers of Congress comes into conflict with the rights to freedom of expression and (presumably) freedom of association, the need for clarity in the congressional Resolution becomes more acute. "The delegation of power to the committee must be clearly revealed in its charter." United States v. Rumely, 1953, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770, cited in Watkins. The Watkins opinion 354 U.S. 178, 77 S.Ct. 1185 also emphasizes that "not all such inquiries which impinge on First Amendment freedoms are barred" and that they are not invalid unless "unrelated to any legislative purpose." It is plain that the courts must find the presence of a valid purpose related to lawmaking to justify "compelled disclosure." Congress is not permitted to expose only to embarrass. We considered this contention carefully in our earlier opinion, saying, "It is difficult to imagine a clearer `overriding public interest' than an inquiry into an alleged conspiracy to discredit the congressional and judicial processes by suborning witnesses and by procuring recantations of testimony upon which Congress and the courts have theretofore relied." 99 U.S.App.D.C. 360, 366, 240 F. 2d 46, 52. We hold that appellant's right to refuse to say whether he is a member of the Communist Party is not greater than the right of the Senate to inquire into the conspiracy just described and to know appellant's connection, if any, with Communist action groups provided the answer might shed light on the primary inquiry. Even if we were to assume that the right to engage in Communist Party activity is a right protected by the First Amendment, which of course we do not concede, that right, not being absolute, must yield to a superior public need, such as that presented here. Nothing in the Watkins7 opinion suggests that our prior holding in this respect should not be adhered to.

III. Validity of Senate Resolution 366.

In a prosecution for contempt of Congress under 2 U.S.C.A. § 192, such as presented here, the resolution of the parent body must show that there was a valid legislative purpose for the inquiry. Unless this is shown, the courts cannot determine whether the inquiry was pursuant to a valid legislative purpose and whether the inquiry was within the authority delegated by the parent body. The Watkins case dealt with a resolution criticized by the Supreme Court for its vagueness. We are dealing with a different resolution. Senate Resolution 366 so far as we rely on it provides as follows:

"Resolved, That the Committee on the Judiciary, or any duly authorized subcommittee thereof, is authorized and directed to make a complete and continuing study and investigation of (1) the administration, operation, and enforcement of the Internal Security Act of 1950; (2) the administration, operation, and enforcement of other laws relating to espionage, sabotage, and the protection of the internal security of the United States * * *."

Bare recital of this portion of the resolution discloses that it is not subject to the same criticism as was directed at the House Resolution under which Watkins was questioned. It sufficiently describes "the kind of investigation that the committee was directed to make." When appellant was before the subcommittee the Internal Security Act of 1950, 50 U.S.C. A. § 781 et seq., was recent legislation; in many respects it was novel, and its enforcement, and that of related laws was of acute interest and concern to the Congress, the Executive Branch and the public. The enforcement or lack of enforcement could be studied in various ways, including checking the truth or falsity of reports of conspiracies to frustrate the law and its enforcement by suborning witnesses. Such inquiries are important in amending and improving laws. We are satisfied that the resolution was valid, that investigation into the Matusow recantation was authorized by the resolution, and that the Matusow inquiry was pursuant to the valid legislative purpose plainly revealed by the resolution.

IV. The Pertinency of the Questions.

The final argument urged by Sacher is three-pronged. First, he contends that the questions were not even intended to be pertinent to the Matusow inquiry, but were intended to be pertinent to an altogether different subject,8 and so he cannot be held to have known the questions were pertinent to the Matusow inquiry. Second he urges that the questions were not in fact pertinent to the Matusow inquiry, and so he cannot be held to have known that they were pertinent. Finally, he argues that even assuming the questions were intended to be pertinent to the Matusow inquiry, and further assuming the questions were in fact pertinent to the Matusow inquiry, still, he was not aware of these two factors at the time the questions were put to him; he correctly points out that under the Watkins case, to sustain a conviction it must appear that pertinency was made clear to the witness.

Intended Subject Matter: Appellant's contention is that the questions were not even intended to be pertinent to the Matusow inquiry, but instead, were intended to be pertinent to an inquiry relating, as he describes it, to "a measure * * * barring Communists from practice in the Federal courts." The determination of this issue is essentially one of fact the resolution of which depends entirely upon the record in the case.

As with almost any examination of a witness whether in court or before a committee, we find in this record a main thread of examination which is readily followed, and also occasional digressions. One digression was made from that main thread. In the original transcript this main thread, which is the Matusow inquiry, runs for 18 pages before the Count 1 question was asked. During the course of those 18 pages the witness resisted various questions, raised the issue of pertinency and after exchanges with the Chairman, gave answers covering in general his contacts with Matusow and with Communist leaders. Appellant contends the Count 1 question was asked in the context of this digression.

Shortly before the Count 1 question, a single question digressed into the subject of possible legislation controlling admission of Communist Party members to practice in Federal courts. However, the record conclusively shows that as a result of objections from appellant, the digression or "excursion" was promptly terminated and the line of questions brought back to "whether Matusow lied when he testified." The colloquy between the Chairman and appellant indisputably informed appellant that the digression was not approved by the Chairman and that he directed his counsel to ask the Count 1 question in order to "lay the foundation for this," (emphasis added) i.e., the inquiry into "whether Matusow lied."9 In this context the Count 1 question was asked. Shortly following, the Count 2 question was...

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