United States v. Grumman
| Decision Date | 06 March 1964 |
| Docket Number | Cr. No. 823-62.,Cr. No. 822-62 |
| Citation | 227 F. Supp. 227 |
| Parties | UNITED STATES of America v. Frank GRUMMAN. UNITED STATES of America v. Bernard SILBER. |
| Court | U.S. District Court — District of Columbia |
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David C. Acheson, U. S. Atty., William Hitz, Asst. U. S. Atty., for plaintiff.
Victor Rabinowitz, New York City, David Rein, Washington, D. C., for defendant Silber.
These defendants have been tried in companion cases by the Court sitting without a jury, by the agreement of all parties. Both defendants have been indicted for contempt of Congress, 2 U.S.C. § 192, in refusing to answer certain questions propounded to them as witnesses during public hearings of a subcommittee of the House Un-American Activities Committee in 1957. The present indictments were returned after convictions based upon previous indictments for the same offense were reversed per curiam by the Supreme Court as to defendant Grumman, 370 U.S. 288, 82 S.Ct. 1560, 8 L.Ed.2d 501 (1962), and as to defendant Silber, 370 U.S. 717, 82 S.Ct. 1287, 8 L.Ed.2d 798 (1962). Both reversals rested upon the authority of Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962), decided only a few weeks previously, which had held that an indictment for contempt of Congress must specify the subject under Congressional subcommittee inquiry at the time the witness was interrogated. In these new indictments, the subject under inquiry is alleged to have been:
"considering whether or not members of the Communist Party or persons subject to its discipline are employed in various media of communications used in the transmission of vital communications, and the advisability, in the national defense and for internal security, of the adoption of remedial legislation authorizing the Defense Department and other Government agencies to adopt and enforce appropriate regulations designed to protect and preserve inviolate secret and classified Government information, and investing in appropriate Government agencies, power to preclude access to vital communication facilities in time of war or other national emergency, persons who probably will engage in, or probably will conspire with others to engage in, acts of espionage or sabotage * * *."
Neither defendant disputes that the above was the subject under inquiry at the time he was interrogated, although they do dispute the authority of the subcommittee to inquire into this subject. Both, moreover, advance other grounds for a judgment of acquittal — grounds which were not considered by the Court of Appeals when it affirmed the convictions (based upon the earlier, defective indictments) of Grumman, 111 U.S.App.D.C. 79, 294 F.2d 708 (1961), and of Silber, 111 U.S.App.D.C. 331, 296 F.2d 588 (1961).1 Because of a case decided by the Supreme Court on June 17, 1963, Yellin v. United States, 374 U.S. 109, 83 S.Ct. 1828, 10 L.Ed.2d 778 (1963) and for other reasons which the Court finds compelling, this Court has concluded that findings of not guilty must be made in both cases. Each case will be discussed separately.
The Silber Case.
In Yellin v. United States, 374 U.S. 109, 83 S.Ct. 1828, 10 L.Ed.2d 778 (1963), the Supreme Court reversed a contempt of Congress conviction because the House Un-American Activities Committee had failed to comply with its own rules regarding the choice between executive and public sessions. Rule IV of the Committee's own Rules provided, at the time Yellin was questioned (and at the time both defendants Silber and Grumman were questioned):
The Supreme Court held in the Yellin case that this rule had been violated in two respects:
The Court concluded that Rule IV was designed for the protection of witnesses, 374 U.S. at 115-116, 83 S.Ct. at 1832-1833, 10 L.Ed.2d 778, that it entitled the witness to the exercise of the Committee's discretion in accord with Rule IV's standards, 374 U.S. at 120, 83 S.Ct. at 1835, 10 L.Ed.2d 778, and that failure on the part of the Committee to adhere to its own rules requires the reversal of any subsequent conviction for contempt of Congress, even if the witness did not invoke Rule IV at the time he refused to answer the question propounded, 374 U.S. at 123, 83 S.Ct. at 1836-1837, 10 L.Ed.2d 778. 374 U.S. at 124, 83 S.Ct. at 1837, 10 L.Ed.2d 778.
Under the clear authority of Yellin, a judgment of acquittal must be entered so far as defendant Silber is concerned. Silber, like Yellin, after receiving a subpoena to appear before the subcommittee of the House Un-American Activities Committee, requested an executive session in a telegram sent (and received) prior to his appearance before the subcommittee. Silber's request, like Yellin's was denied by the Staff Director without consultation either with the Committee or with the subcommittee or with the chairman of either. Silber, like Yellin, was thereafter required to appear for interrogation at a public session.
The telegram requesting an executive session was sent by Victor Rabinowitz (an attorney who appeared with Silber at the public hearing and who has represented Silber in all subsequent proceedings growing out of Silber's refusal to answer certain questions, including the instant trial) in behalf of four subpoenaed witnesses, including Silber. The existence of this telegram was first revealed on August 2, 1957, at the beginning of the questioning of Louis J. Stallone, one of the four witnesses in whose behalf it was sent. Silber appeared for interrogation later the same morning. The following exchange between Mr. Rabinowitz, Congressman Clyde Doyle (chairman of the subcommittee, now deceased), and Richard Arens (Staff Director) demonstrates that neither the subcommittee nor the subcommittee chairman had known of the existence of the telegram before the request for an executive session had been turned down and the witnesses had appeared for public interrogation:
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Congressional investigations: politics and process.
...to follow the rule that the subcommittee chairman consult with the entire committee before filing a subpoena); United States v. Grumman, 227 F. Supp. 227 (D.D.C. 1964) (holding that the committee failed to follow its own rules where the committee did not respond to a request for an executiv......