United States v. Hintz

• Decision Date: 05 April 1961
• Docket Number: No. 58 Cr 656.,58 Cr 656.
• Citation: 193 F. Supp. 325
• Parties: UNITED STATES of America, Plaintiff, v. Edward A. HINTZ, Defendant.
• Court: U.S. District Court — Northern District of Illinois

193 F. Supp. 325

UNITED STATES of America, Plaintiff, v. Edward A. HINTZ, Defendant.

No. 58 Cr 656.

United States District Court N. D. Illinois, E. D.

April 5, 1961.

COPYRIGHT MATERIAL OMITTED

Robert Tieken, U. S. Atty., Chicago, Ill., for plaintiff.

John M. Leonard, Jr., Williams & Leonard, Chicago, Ill., for defendant.

MINER, District Judge.

Edward A. Hintz was indicted on October 31, 1958, for violation of Section 192 of Title 2 of the United States Code Annotated (Revised Statutes Section 102, as amended by 52 Stat. 942), which 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 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."

The indictment charged, in substance, that the Committee on Banking and Currency of the United States Senate had been conducting hearings pursuant to Public Law 601, 79th Congress, Sections 102(1) (d) (Rule XXV(1) (d) of the Standing Rules of the Senate) and 134 (a) (60 Stat. 815, 831), 2 U.S.C.A. § 190b (a), and pursuant to Senate Resolution 155, 84th Cong., 2d Session; that the defendant had been duly summoned to testify before the Committee at its hearing on October 9, 1956, in Chicago, Illinois; that the defendant had come before the Committee, where he was duly directed to be sworn and to testify; that the defendant had refused so to be sworn and to testify; and that the defendant thereby willfully had made default in violation of the statute.

Defendant subsequently moved to dismiss the indictment, presenting several important legal issues. Both parties filed detailed, comprehensive briefs on all questions raised by the motion. This memorandum will deal with two of those questions.

I.

The defendant complains that there is a fatal inconsistency in the charge of the indictment. He points to the allegation that he had "come before" the Committee pursuant to summons, and then to the conclusory charge that he "wilfully did make default." He next points to the allegation that he refused "to be sworn and to testify," and the supposed failure of the indictment to allege that he refused "to answer any question pertinent to the question under inquiry." Finally, he views the "wilful default" and "refusal to answer" branches of the statute as defining completely discrete and distinct offenses, and contends that activity coming under one must ipso facto be deemed non-violative of the other. In substance, the defendant interprets Section 192 as proscribing only conduct falling within one of two categories: (1) wilful disregard of summons, which defendant says is all that is meant by the statutory phrase "wilfully makes default," and (2) refusal, after having appeared, to answer questions which concern the substance of the subject under investigation, which defendant says is all that is meant by the statutory phrase "pertinent to the question under inquiry."

This Court is unable to adopt the propositions so urged, predicated as they are upon a misapprehension of both the purpose and the provisions of Section 192. The "default" which, when wilful, violates the statute, refers to a failure "to give testimony or to produce papers" upon a matter under inquiry before the Congress or its Committee. Such default can as well occur by refusal to testify as by refusal to appear. The statute proscribes every wilful failure to comply with summons, not merely the failure to appear pursuant to summons.

This interpretation of the provisions of the so-called "first branch" of Section 192 accords with its purpose as expressed by Mr. Chief Justice Vinson in United States v. Bryan, 1950, 339 U.S. 323, 329-330, 70 S.Ct. 724, 729, 94 L.Ed. 884, rehearing denied 339 U.S. 991, 70 S.Ct. 1018, 94 L.Ed. 1391:

"It is clear that R.S. § 102 is designed to punish the obstruction of inquiries in which the Houses of Congress or their committees are engaged. If it is shown that such an inquiry is, in fact, obstructed by the intentional withholding of documents, it is unimportant whether the subpoenaed person proclaims his refusal to respond before the full committee, sends a telegram to the chairman, or simply stays away from the hearing on the return day. His statements or actions are merely evidence from which a jury might infer an intent to default. A proclaimed refusal to respond, as in this case, makes that intent plain. But it would hardly be less plain if the witness embarked on a voyage to Europe on the day before his scheduled appearance before the committee.

"Of course a witness may always change his mind. A default does not mature until the return date of the subpoena, whatever the previous manifestations of intent to default. But when the Government introduced evidence in this case that respondent had been validly served with a lawful subpoena directing her to produce records within her custody and control, and that on the day set out in the subpoena she intentionally failed to comply, it made out a prima facie case of wilful default."

The allegation in the indictment that defendant refused to be sworn and to testify is sufficient to charge, not only that he made wilful default, but also that, having appeared, he refused to answer questions pertinent to the question under inquiry.¹ See United States v. Josephson, 2 Cir., 1947, 165 F.2d 82, certiorari denied 333 U.S. 838, 68 S.Ct. 609, 92 L.Ed. 1122, rehearing denied 333 U.S. 858, 68 S.Ct. 731, 92 L.Ed. 1138; Eisler v. United States, 1948, 83 U.S.App. D.C. 315, 170 F.2d 273, certiorari granted 335 U.S. 857, 69 S.Ct. 130, 93 L.Ed. 404, certiorari dismissed 338 U.S. 883, 70 S.Ct. 181, 94 L.Ed. 542. Indeed, the mere charge of refusing to be sworn sufficiently charges a violation of the so-called "second branch" of the statute. There is no question more pertinent to a subject under investigation than the question whether the witness before the tribunal will answer truthfully.

The defendant is mistaken in his view that, having appeared before the committee pursuant to a subpoena requiring that he appear and testify, he could be charged only for refusing to answer pertinent questions rather than for wilful default. He further errs when he urges that his refusal to be sworn and to testify is not sufficient to charge a refusal to answer pertinent questions.

II.

Defendant further attacked the indictment by asserting that the circumstances under which he was being asked to testify were such that any attempt to punish him for his refusal would constitute an unlawful interference with his "legal" and "moral" rights. In substance, he contends that such refusal cannot be contumacious when it is made in the presence of, and purports to be predicated upon an inability to testify accurately when he is the subject for television and radio broadcasting apparatus, newsreel cameras and photographers.

Ordinarily, this type of attack is phrased in terms of avoidance and may be properly raised only during the trial as a defense or in mitigation. However, defendant has raised the issue in his attack on the legal sufficiency of the indictment, and it is this attack with which the Court is here concerned.

All counsel agree that television, radio, newsreel and other equipment were present and operating in the hearing room when defendant was asked to testify. Counsel only disagree concerning the existence, nature and extent of the discomfiture which a witness may feel while being subjected to the scrutiny of the public as well as the Congress. The issue, therefore, which this Court decides, is whether a contempt of Congress is divested of its criminal character by the mere presence of mass communication media in the vicinity of the witness whose silence the statute condemns.

In support of his position, the defendant has cited United States v. Kleinman, D.C.D.C.1952, 107 F.Supp. 407, and an Illinois statute (Ill.Rev.Stats., 1957, chapter 51, § 57).

The Kleinman decision does not support plaintiff's contentions on the issue now before this Court. The Court there was considering the merits of a contempt of Congress charge, and not the sufficiency of the charging document. Indeed, the fact that District Judge Schweinhaut disposed of the Kleinman case on its merits necessarily implies a belief, if not a judicial determination, that the indictments were sufficient to charge the crime even though "there were, in close proximity to the witness, television cameras, newsreel cameras, news photographers with their concomitant flashbulbs, radio microphones, a large and crowded hearing room with spectators standing along the walls, etc." 107 F.Supp. 408. If Kleinman is authority at all on the question whether a reluctant witness may or may not cite the presence of communications mechanisms as complete justification for his contempt of Congress and in bar of any prosecution, it is authority for the principle that he may not.

The language in Kleinman² can, of course, be read as approving a single pervasive principle of exclusion—one which prevents conviction of any witness who commits contempt of Congress while in the presence of spectators and the sensory apparatus which permit the nation to see and to hear. To the extent that the learned Court in Kleinman may, in fact, have been advancing such an exclusionary principle, this Court disapproves its reasoning and declines to accept the case as authority. This is not solely because the statement of such a rule was unnecessary to the disposition made of the merits in Kleinman and is...