United States v. Bessie, 2130-2139.

• Citation: 75 F. Supp. 95
• Decision Date: 12 December 1947
• Docket Number: No. 2130-2139.,2130-2139.
• Court: U.S. District Court — Southern District of California
• Parties: UNITED STATES v. BESSIE et al.

75 F. Supp. 95

UNITED STATES v. BESSIE et al.

Nos. 2130-2139.

District Court, S. D. California, Central Division.

December 12, 1947.

James M. Carter, U. S. Atty., and Ernest A. Tolin, Asst. U. S. Atty., both of Los Angeles, Cal., for plaintiff.

Robert W. Kenny, Charles J. Katz, and Ben Margolis, all of Los Angeles, Cal., for defendants.

J. F. T. O'CONNOR, District Judge.

The above named defendants were arrested in the Southern District of California and are before this Court for hearing of the Government's petition for warrant of removal to the District of Columbia in which district the defendants have been indicted.

The Indictment reads as follows:

"Pursuant to Public Law No. 601, Section 121, of the 79th Congress, (Ch. 753 — 2d Session), and House Resolution 5 of the House of Representatives of the United States, 80th Congress, dated January 3, 1947, the House of Representatives was empowered to and did create the Committee on Un-American Activities, having duties and powers as set forth in said Public Law.

"____, having been summoned as a witness by the authority of the House of Representatives of the United States to give testimony upon a matter under inquiry before the Committee on Un-American Activities of the said House of Representatives, and having appeared before the said Committee at its session within the District of Columbia on October 29, 1947, refused to answer a question put to him by the Committee, namely, whether or not he was a member of the Screen Writers Guild, which question was a question pertinent to the question under inquiry.

"Second Count:

"The Grand Jury incorporates herein the first paragraph of Count One.

"____, having been summoned as a witness by the authority of the House of Representatives of the United States to give testimony upon a matter under inquiry before the Committee on Un-American Activities of the said House of Representatives, and having appeared before the said Committee at its session within the District of Columbia on October 29, 1947, refused to answer a question put to him by the Committee, namely, whether or not he was or had ever been a member of the Communist Party, which question was a question pertinent to the question under inquiry."

Each defendant is named separately in separate indictments: "____ having been summoned," etc.

The statute under which the defendants are prosecuted is Title 2 U.S.C.A. § 192:

"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. As amended June 22, 1938."

The applicable section is Rule 40 of The New Rules of Criminal Procedure, 18 U.S. C.A. following section 687. These rules became effective on March 21, 1946. Subdivision 3 of Paragraph (b) of Rule 40 is as follows:

"Hearing; Warrant of Removal or Discharge.

"The defendant shall not be called upon to plead. If the defendant waives hearing, the judge shall issue a warrant of removal to the district where the prosecution is pending if the defendant does not waive hearing the commissioner or judge shall hear the evidence. If the commissioner hears the evidence he shall report his findings and recommendations to the judge. At the hearing the defendant may cross-examine witnesses against him and may introduce evidence in his own behalf. If it appears from the commissioner's report or from the evidence adduced before the judge that sufficient ground has been shown for ordering the removal of the defendant, the judge shall issue a warrant of removal to the district where the prosecution is pending. Otherwise he shall discharge the defendant. If the prosecution is by indictment, a warrant of removal shall issue upon production of a certified copy of the indictment and upon proof that the defendant is the person named in the indictment. If the prosecution is by information or complaint, a warrant of removal shall issue upon the production of a certified copy of the information or complaint and upon proof that there is probable cause to believe that the defendant is guilty of the offense charged. If a warrant of removal is issued, the defendant shall be admitted to bail for appearance in the district in which the prosecution is pending in accordance with Rule 46. After a defendant is held for removal or is discharged, the papers in the proceeding and any bail taken shall be transmitted to the clerk of the district court in which the prosecution is pending." (Italics supplied)

The italicized portion of the rule is the part on which counsel for the Government and the defendants request a ruling by the Court.

We are not concerned where a defendant is prosecuted upon information or complaint. The present prosecution is upon indictment, by a Grand Jury in the District of Columbia.

Judge Leon R. Yankwich of this Court published "The New Federal Rules of Criminal Procedure" with his commentary (Parker & Co. Los Angeles). With reference to the particular rule applicable in the matter before this Court, the distinguished jurist said:

"* * * proof of identity coupled with a certified copy of the indictment will be sufficient, as the indictment will be conclusive proof of probable cause. The...