United States v. Emspak
Decision Date | 31 January 1951 |
Docket Number | 1796,1799,1787,1786,No. 1742-1753,1797,1824.,1785,1742-1753 |
Parties | UNITED STATES v. EMSPAK (and nineteen other cases). |
Court | U.S. District Court — District of Columbia |
Charles B. Murray, Washington, D. C., and William Hitz, Asst. U. S. Attys., for the United States.
Allan Rosenberg, Washington, D. C., David Scribner, New York City, for defendant Emspak.
Allan Rosenberg, Washington, D. C., and David Scribner, New York City, for defendants Fitzpatrick, Quinn and Matles.
Joseph Forer, David Rein, Washington, D. C., for defendant Bart.
Allan Rosenberg, Washington, D. C., and David Scribner, New York City, for defendants Panzino and Raley.
Joseph Forer, Washington, D. C., and Albert L. Colloms, New York City, for defendant Hiskey.
Allan Rosenberg, Washington, D. C., and David Scribner, New York City, for defendant Tice.
Joseph Forer, Washington, D. C., and Benedict Wolf, New York City, for defendant Berman.
Ralph E. Powe, Washington, D. C., and Milton H. Friedman, New York City, for defendant Nelson.
Frank Scheiner, New York City, and A. J. Spero, Washington, D. C., for defendant Scherer.
Harold I. Cammer, New York City, for defendant Field.
John Rogge, New York City, and Ralph E. Powe, Washington, D. C., for defendant Patterson.
The first sixteen above-named defendants were indicted by the Grand Jury of this Court for contempt of Congress, 2 U.S.C. A. § 192, for failure to answer questions before a duly created sub-committee of the Committee on Un-American Activities of the House of Representatives, pursuant to Section 121(b) of the Legislative Reorganization Act of 1946, subsection (q) (2), Rules of House of Representatives, rule 11, 60 Stat. 828, and House Resolution 5 of the 81st Congress; the last three above-named defendants were indicted by the Grand Jury of this Court for contempt of Congress for failure to answer questions before a duly created sub-committee of the Committee on Foreign Relations of the United States Senate which was conducting hearings pursuant to Senate Resolution 231, 81st Congress, 2nd Session. Title 2, Section 192, of the United States Code Annotated provides: "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 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 * * *." (Emphasis supplied.)
Defendants herein have filed motions to dismiss the indictments pursuant to Rule 12 of the Federal Rules of Criminal Procedure, 18 U.S.C.A.
Each indictment contains several counts ranging up to as high as 68 counts in one case. Counsel for defendants urge that these indictments are duplicitous in that they charge one crime in several counts and also that they put the defendant in jeopardy of being convicted and punished more than once for the same act. The Government counsel argues that since the statute, 2 U.S.C.A. § 192, supra, defines the crime as the refusal to answer "any question", then each refusal to answer a different question would be a separate violation.
In Upshaw v. United States, 10 Cir., 1946, 157 F.2d 716, the Court set out the test for determining the identity of offenses as follows: Id., 157 F.2d at page 717.
As contended by the United States in this proceeding if a witness refuses to answer any question he has violated the statute. Clearly it is necessary to prove a different fact to sustain the charge for each different question. Applying the above test to the indictments in these cases, the refusal to answer each question must be charged in a separate count since the same proof would not sustain a conviction under each count, and an indictment charging more than one offense in any one count is as defective as an indictment charging a single offense in multiple counts. In several recent cases involving contempt, indictments setting forth the several questions which the defendants refused to answer were held valid. Alexander v. United States, 9 Cir., 1950, 181 F.2d 480; Doran v. United States, 9 Cir., 1950, 181 F.2d 489; Kasinowitz v. United States, 9 Cir., 1950, 181 F.2d 632, 633; Trumbo v. United States, 1949, 85 U.S.App.D.C. 167, 176 F.2d 49.
Counsel for defendants go a step further, however, and urge that a conviction on each count would allow the Court to incarcerate some of these defendants for the balance of their lives. Although the problem of the sentence after conviction is not before the Court at this time, it does appear that a short discussion of this problem as collateral to the allegation of duplicity may be helpful.
Diligent effort on the part of counsel has produced a series of cases which are pertinent here. One of the earliest cases to consider this precise problem was Maxwell v. Rives, 1876, 11 Nev. 213. In this case the defendant was held in contempt of court for refusing to answer a number of questions. In considering the trial court's action in imposing a separate penalty for each refusal the court said: Id., 11 Nev. at page 221. The Court there cited People ex rel. Tweed v. Liscomb, 1875, 60 N.Y. 559, in which opinion may be found a collection of English and early American cases which involved multiple penalties for a single act.
Recently the United States District Court for the District of Hawaii considered indictments identical in substance to those before the Court now, and that court held in respect to the multiple count indictments as follows: United States v. Yukio Abe, D. C., ___ F.Supp. ___ Accordingly, the District Court of Hawaii refused to dismiss the indictments on the ground of duplicity, and deferred ruling on the motion to dismiss until after a trial on the general issue.
Two recent State cases, Fawick Airflex Co. v. United Electrical, Radio & Machine Workers of America, 1950, Ohio App., 92 N.E.2d 431, 436 and People ex rel. Amarante v. McDonnell, Sup. 1950, 100 N.Y.S.2d 463, considered a charge of separate contempts for refusal to answer a series of questions. Both courts held that only one contempt was committed and the defendant could receive only the maximum penalty for one contempt after conviction. In the Fawick case, the court rationalized the problem as follows:
"As heretofore noted in this opinion, the appellant was found guilty of three separate acts of contempt based upon his refusal to answer three separate questions.
The New York court considered the problem in the same light, saying:
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Quinn v. United States
... ... We have passed upon the point contrary to appellant's contention in Emspak v. United States, 91 U.S.App.D.C. 378, 203 F.2d 54, decided today. As was pointed out in Bart v. United States, 91 U.S. App.D.C. 370, 203 F.2d 45, also decided today, to constitute an offense refusal to answer must be intentional. It must appear that Quinn was aware of the intention of his inquirer ... ...
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Aiuppa v. United States
...9 Cir., 181 F.2d 632; United States v. Raley, D.C., 96 F.Supp. 495; United States v. Jaffee, D.C., 98 F.Supp. 191-195; United States v. Emspak, D.C., 95 F.Supp. 1012. The Marcello case is authority also for the proposition that, where the position of a witness in a hearing before the Senate......
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Marcello v. United States
...Trumbo v. United States, 85 U.S.App.D.C. 167, 176 F.2d 49; Marshall v. United States, 85 U.S.App.D.C. 184, 176 F.2d 473; United States v. Emspak, D.C., 95 F.Supp. 1012. At the same time, we call attention that a most important part of the background or setting against which the court must d......
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Baker v. Eisenstadt
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