United States v. Flaxer, 1756-52.

• Decision Date: 05 June 1953
• Docket Number: No. 1756-52.,1756-52.
• Citation: 112 F. Supp. 669
• Parties: UNITED STATES v. FLAXER.
• Court: U.S. District Court — District of Columbia

112 F. Supp. 669

UNITED STATES v. FLAXER.

No. 1756-52.

United States District Court, District of Columbia.

June 5, 1953.

Leo Rover, U. S. Atty., and William Hitz, Asst. U. S. Atty., Washington, D. C., for plaintiff.

David Rein, Washington, D. C., and Vito Marcantonio, New York City, for defendant.

MATTHEWS, District Judge.

Two motions are before the court. One seeks a judgment of acquittal under Rule 29(b) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. The other, by way of alternative relief, seeks a new trial.

The defendant, president of a union known as the United Public Workers, was summoned by a congressional subcommittee to appear on October 5, 1951 to testify and to produce certain records relative to the subject matters under consideration by the subcommittee.¹ He appeared but failed to comply with the command of the subpoena to bring union records showing the names and addresses of members (1) employed by the United States Government and (2) employed by any state, county or municipal government within the United States.

In its report to the Senate the subcommittee indicated that the defendant's illegal refusal to comply with the subpoena duces tecum deprived the subcommittee of information pertinent to the subject matter committed to it for investigation and "places this witness in contempt of the United States Senate."² The Senate directed certification of the subcommittee's report to the United States Attorney for the District of Columbia "to the end that said Abram Flaxer may be proceeded against in the manner and form provided by law."³

Thereafter the defendant was charged in a two count indictment with contempt⁴ in that he failed on October 5, 1951 to produce the specified union records and had thereby willfully made default. The jury returned a verdict of guilty as to both counts.

The motion for a judgment of acquittal is based on two main contentions. The first is that although the subpoena directed the production on October 5, 1951 of the records, the defendant appeared on that day without them and was given ten days additional time to produce them by the one member of the subcommittee who was present at the hearing, and hence that no default occurred on October 5, 1951.

The court finds no merit in the contention that the subcommittee granted an extension of time within which to comply with the subpoena. The defendant was clearly informed that he was to produce the records according to the terms of the subpoena, as is shown by the following:

"Mr. Arens. Mr. Chairman, I respectfully ask of the chairman that the witness be ordered to produce for this record, in compliance with the subpoena duces tecum served upon him, the record of the United Public Workers showing the names and addresses of all members of the United Public Workers who are employed by the Federal Government of the United States of America, and records showing the names and addresses of all members who are employed by any State, county, or municipal government located anywhere in the United States of America. * * *

"Senator Watkins. Do you stand on your statement that you refuse to produce those? Mr. Flaxer. I didn't say I refused * * *

"Mr. Arens. But you do have the information? Mr. Flaxer. In a general sense, I think I have the information.

"Mr. Arens. And you have not complied with the command of the subpoena to produce that information.

Mr. Flaxer. I think it is an improper command, sir.

"Senator Watkins. That is the reason you have refused to bring them here today, because you think it is improper? Mr. Flaxer. That is the reason I haven't got them.

"Senator Watkins. That is the main reason. You are directed by the committee to produce those records according to the terms of the subpoena. * * *"

It appears to the court that the offense of contempt was complete at this point. The defendant had been duly summoned to appear before the subcommittee and to bring with him the specified records and the offense of contempt matured when he willfully failed to comply on the return date of the subpoena. U. S. v. Bryan, 339 U.S. 323, 330, 341, 70 S.Ct. 724, 94 L.Ed. 884. The defendant often iterated his view that the subcommittee had no right to the union membership lists but consistently his view was rejected by the subcommittee. The following statement in Bart v. U. S., 91 U.S.App.D.C. 370, 203 F.2d 45 at page 49 is applicable here:

"A witness does not insulate himself from contempt by asserting a reason for a refusal to answer, or by objecting to the question, or by querying its propriety. When he deliberately and intentionally refuses to answer upon a stated ground, he assumes the risk that the ground is unsound."

The subcommittee's subsequent command to defendant to produce the information sought within ten days was a new order, the validity of which need not now be considered.⁵ Had the defendant respected the new order he probably would not have been cited for contempt for failure to comply with the subpoena on October 5, 1951 albeit such failure on that day made out a case of willful default.

The other main contention of the defendant concerns a quorum. The setting in which the quorum query arises will first be given. After the defendant was sworn as a witness he said: "I notice that we do not have a quorum of the committee here." When told by Senator Watkins that "one present makes a quorum" the defendant responded: "I am not sure about that. I would like to have the record show that I object to the fact that I think there is no quorum."

The subcommittee had as members seven senators. The resolution creating the subcommittee declares that a quorum for the transaction of business is a majority of its members except that a lesser number to be fixed by the subcommittee shall constitute a quorum for the purpose of administering oaths and taking testimony.⁶ That lesser number was fixed by the subcommittee for the purpose stated to consist of one Senator of the subcommittee.⁷

The defendant takes the position that only a subcommittee consisting of at least a majority of its members possesses the power to rule on his objections to the production of the records named in the subpoena; that therefore the purported adverse ruling on them by the one-man subcommittee was a nullity, and that since the objections were "never passed on in any way" by a subcommittee validly constituted for that purpose a judgment of acquittal should be entered.

Before the one-man subcommittee the defendant did not state that he would produce the records if a majority of the members of the subcommittee were present to rule on his objections. It is perfectly plain from his testimony at the hearing that he would not have complied with the subpoena no matter how many members of the subcommittee had been present. There he grounded his objections to producing the documents on "the rights of unions to the privacy of their membership records" ...