Sacher v. United States, 13302.

Decision Date03 January 1957
Docket NumberNo. 13302.,13302.
Citation240 F.2d 46
PartiesHarry SACHER, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — District of Columbia Circuit

Mr. Hubert T. Delany, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of Court, with whom Mr. David Rein, Washington, D. C., was on the brief, for appellant.

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

Before WASHINGTON, BASTIAN and BURGER, Circuit Judges.

BURGER, Circuit Judge.

Appellant, Sacher, was subpoenaed and appeared as a witness before the Subcommittee on Internal Security of the Senate Judiciary Committee where he refused to answer questions as to past or present membership in the Communist Party. He was cited for contempt and thereafter indicted on three counts under Title 2 U.S.C.A. § 192,1 found guilty on all three counts and sentenced to six months' imprisonment and a fine of $1000. He appeals from a conviction after trial in the district court, having waived a jury trial.

The indictment charges that on April 19, 1955 Sacher appeared before the Subcommittee at a hearing in Washington, D. C., was asked and refused to answer three questions, each of which is the subject of a separate count of the indictment:

1. Are you, Mr. Sacher, a member of the Communist Party, U.S. A.?
2. Have you ever been a member of the Communist Party of the United States?
3. Are you now or have you ever been a member of the Lawyers\' Section of the Communist Party, U.S. A.?

Appellant challenges his conviction on various grounds: (1) He asserts that the statute punishes only a refusal to answer questions pertinent to the inquiry and argues that his possible membership in the Communist Party was not pertinent. (2) That even if pertinent, the remoteness of the information sought to the subject under inquiry infringes First Amendment rights. (3) Appellant urges that the testimony as to the Subcommittee's information on appellant's background was not admissible in the district court. (4) He claims the Subcommittee changed the subject of inquiry when he testified and that the two members present did not have the power to do so. (5) Appellant attacks the indictment as faulty because it does not charge his refusal to answer was "willful or deliberate or intentional." (6) He argues the source of the Subcommittee's jurisdiction rests upon a resolution of the parent committee which is "hopelessly vague, and leaves the resolution without meaningful boundaries." Appellant urges the "absence of such boundaries brings the Subcommittee's subpoena power in conflict with the Fourth Amendment."

(1)

To determine whether or not the questions set forth in the indictment were pertinent to the subject of the Subcommittee's inquiry, we look to the history of the inquiry as disclosed by the record. In 1950 the Senate adopted a resolution2 which empowered the Committee on the Judiciary, or any authorized subcommittee, to study and investigate subversive activities in terms 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 50 U.S.C.A. § 781 et seq.; (2) the administration, operation, and enforcement of other laws relating to espionage, sabotage, and the protection of the internal security of the United States; and (3) the extent, nature, and effects of subversive activities in the United States, its Territories and possessions, including, but not limited to, espionage, sabotage, and infiltration by persons who are or may be under the domination of the foreign government or organizations controlling the world Communist movement or any other movement seeking to overthrow the Government of the United States by force and violence."

By resolution a quorum of the Subcommittee, for purposes of taking sworn testimony, consisted of not less than two members and the presence of a quorum at the hearings described in the indictment is not in dispute. Early in 1955 the Subcommittee commenced a series of hearings described in the Committee Report as "Strategy and Tactics of World Communism (Significance of the Matusow Case)." Harvey Matusow had appeared before the Subcommittee on four occasions in 1952 as a professed former Communist giving evidence "to expose the Communist conspiracy." At the outset of the hearings here involved, the Chairman of the Subcommittee took note of the fact that Matusow had currently characterized his previous testimony before the Subcommittee as false. A public announcement had been made that Matusow's book was soon to be published on the subject of the recantation of his "false testimony."

It was against this background that the Chairman, in opening the hearings in February, 1955, recited the prior appearances of Matusow and asserted:

"* * * The purpose of the hearing now commencing is to inquire into this whole matter.
"* * *
"As a result of testimony taken in this hearing, it may appear that Mr. Matusow told the truth in his original testimony before us and is now lying when he says that his original testimony was not the truth. It may appear that part of what he told us was true and part was untrue. It may appear that he never tells the truth by intent. It may appear that his recent conduct is designed simply to call attention to a book which is soon to be published under his signature, and that his motive for this shabby performance is merely low personal greed. It may appear that he has been the victim of pressure brought by Communists, as well as those who have a vested interest in concealing the Communist conspiracy, and he has finally broken under this pressure. Or there may be still another explanation.
"* * *
"The subcommittee in this series of hearings hopes to determine what is the truth. The subcommittee may be able to show, in some instances, what are lies. The subcommittee probably can and will try to make a record as to just what Mr. Matusow now says the truth is. The subcommittee also will seek to determine, from the testimony of this witness and others, all the facts surrounding this case, and to make as complete a record of those facts as possible."

The record discloses that prior to appellant's appearance before the Subcommittee it had "information respecting Mr. Sacher's connections with Communist and Communist front organizations going back over a period of a number of years, going back to at least as early as 1937." The Subcommittee had information that Sacher had been "connected with the International Labor Defense which was identified by Attorney General Biddle as the legal arm of the Communist Party." Testimony before Executive Sessions of the Senate Subcommittee identified Sacher as present at meetings attended only by high functionaries of the Communist Party; that he was a member of the American League for Peace and Democracy in 1939-40, which group was cited by the Attorney General as a subversive organization; that he was a trustee of the Jefferson School of Social Science, identified by the Subcommittee as "Communist controlled," and that he had a part in various other organized activities characterized by the Committee as subversive, as well as personal relationships with known Communists. This testimony of Subcommittee legal counsel was received only on the issue of pertinency.

In addition, the record discloses the Subcommittee had information to the effect that the International Union of Mine, Mill and Smelter Workers (described in the Subcommittee's Report as "Communist controlled") gave cash to Cameron and Kahn, publishers, to finance the printing and publication of Matusow's book on recantation, that this publication was part of a concerted attack designed to discredit "anti-communist" witnesses and professed "former Communists," and that this entire scheme was the product of Communist lawyers. There was further information that appellant Sacher was one of the lawyers within the Communist Party who had formulated this plan, and that he probably was one of the two leaders. The accuracy of the Subcommittee's information on any of these subjects was not in issue; and the district court admitted this testimony only for the limited purpose of showing the pertinency of the Senate Subcommittee's line of inquiry.3

Thus, when the Subcommittee called appellant as a witness, it had information as to the following: (a) reports linking appellant with the Communist Party; (b) reports linking the Communist Party with a conspiracy to bring about a recantation by Matusow of his testimony against the Communist Party and members thereof; and (c) reports linking appellant with this alleged conspiracy.

Preliminary questions answered by Sacher established the following background: Sacher met Matusow two days before Matusow took the stand as a witness in support of a motion for a new trial for a Sacher client (Elizabeth Gurley Flynn) who had been convicted under the Smith Act; appellant had appeared as counsel for "leaders of the Communist Party, U.S.A." in a lengthy trial before District Judge Medina. Sacher had seen Matusow on the days when the motions for new trial for Sacher's client and others were heard before District Judge Dimock in New York; Matusow had given Sacher a 75 page report dated October 19, 1951, which Matusow had also given to the Federal Bureau of Investigation and the House Committee on Un-American Activities and perhaps others. In addition, Matusow had also given Sacher a diary "the first sheet of which was dated * * * sometime in 1948" and other sheets dated sometime in 1950, 1951 and 1952. Other sheets bearing notes of Matusow's...

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