United States v. Kamin, Crim. No. 54-389.

• Citation: 135 F. Supp. 382
• Decision Date: 02 November 1955
• Docket Number: Crim. No. 54-389.
• Parties: UNITED STATES of America v. Leon J. KAMIN.
• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts

135 F. Supp. 382

UNITED STATES of America v. Leon J. KAMIN.

Crim. No. 54-389.

United States District Court D. Massachusetts.

November 2, 1955.

John M. Harrington, Jr., Arthur I. Weinberg, Asst. U. S. Attys., Boston, Mass., for plaintiff.

Calvin P. Bartlett, John L. Saltonstall, Jr., Boston, Mass., for defendant.

ALDRICH, District Judge.

This is a prosecution under Title 2 U.S.C.A. § 192 for refusal to answer questions propounded by a Congressional committee, in this instance the Permanent Subcommittee on Investigations of the Committee on Government Operations of the Senate, hereinafter called the Subcommittee. On January 15, 1954, the defendant, a former teaching fellow, and then a research assistant at Harvard University, was called before the then Chairman of the Subcommittee, sitting as a committee of one, and asked a number of questions. In answer to some he disclosed that he had formerly been a Communist. Six other questions he refused to answer, for which refusal he was subsequently indicted on six counts. At the close of the government's case, tried without jury on motion of the defendant with the consent of the government, the defendant moved for acquittal. I do not pass on that motion at this time so far as it relates to the entire indictment, but will consider some of the individual counts.

The six counts fall into three groups of two. Counts 1 and 3 to a considerable extent are substantially the same question; Counts 2 and 6 are essentially identical; and so are Counts 4 and 5. Although it may have been entirely proper to indict on all six counts, I do not think it appropriate, to the extent that they involve the same question, that the defendant should be convicted separately on each one of them. United States v. Orman, 3 Cir., 207 F.2d 148, and cases cited. There the court said, 207 F.2d at page 160, "Where the separate questions seek to establish but a single fact, or relate to but a single subject of inquiry, only one penalty for contempt may be imposed." All doubts as to the coincidence of the questions should be resolved in the defendant's favor.

Of the similar questions involved in Counts 1 and 3 the one more favorable to the government is Count 1, as follows:

Count 1. Whether or not individuals known to him to have been members of the Communist party are now working in defense plants.

The defendant has stipulated that this question may for all purposes of this case be construed as calling for the names of the persons therein inquired about,¹ thus removing a possible objection of lack of pertinency which might be made if the question asked only for a "Yes" or "No" answer. I will, accordingly, dismiss Count 3.²

Of the pair of questions contained in Counts 4 and 5 the one more favorable to the government is Count 5.

Count 5. Did he know whether Emanuel Blum had contacts with people handling government classified material. I will therefore dismiss Count 4.³

I turn now from matters of form to a matter of substance.

Count 2 alleges that the defendant refused to answer a question described in the indictment as follows:

Count 2. Did he know anyone teaching at Harvard or connected with Harvard who was either in his Communist cell or known by him to be a Communist. This is a sufficiently accurate statement of the question in fact asked, which was,

"Did you know anyone teaching at Harvard or connected with Harvard, who were either in your Communist cell or known to you to be Communists?"

The defendant refused to answer on the stated grounds that he was unwilling to act as an informer in identifying other persons, and on the grounds of his conscience and the First Amendment.

I pass the possible defect in the phraseology of the question, "Did he know anyone * * *" although I still have in mind Bowers v. United States, 92 U.S.App.D.C. 79, 202 F.2d 447, at page 452, supra, note 3, where it was suggested that a question which merely asked whether the witness knew a person could never be a pertinent inquiry. For present purposes I shall assume in favor of the government that the question was in reality intended to ask for names, and shall consider its pertinency on that basis. Even so the question is not a simple one. In the first place it is not clear as to what period of time it relates. The preceding question was,

"Do you know professors at Harvard who were in your Communist cell?"

This was cast clearly in the present tense. The defendant answered this question, using the past tense.

"I don't want to appear to weasel, Senator, but I didn't know any professors. No."

Either the defendant then had some period of time in mind, and subsequently felt that the next (Count 2) question incorporated it, or he felt that the past included the present (see footnote 3, supra), or he was satisfied, so far as Count 2 question was concerned, not to particularize the period of time. In any event, I will assume that he cannot now be heard to say that the specification of time was too vague.⁴ I shall also assume, without deciding, that the Subcommittee had the right to inquire into the past as well as the present, and for the period that this question covered. Accordingly, the defendant cannot say that he fully answered the question later when he in effect stated that when he appeared before the Harvard Corporation he "knew of no member of the Harvard faculty who was at that time a Communist." This did not cover, even substantially, the minimum period encompassed by the present question.

The Count 2 question referred to two classes of persons, — those who were "teaching at Harvard," and those who were simply "connected with Harvard." It is a familiar principle that if there are two parts to one question, both must be pertinent. Belk v. Meagher, 104 U.S. 279, 26 L.Ed. 735; 58 Am. Jur. 317. The government, accordingly, could not complain if it were held that this question is to be tested in the light more favorable to the defendant; in other words, that both matters inquired about must be pertinent. I believe this would be the proper rule for me to follow, particularly for hearings where, as here, the witness' counsel is not permitted to voice objections. Nonetheless, for present purposes I will make another assumption in favor of the government, namely, that the defendant should have answered if it was appropriate to ask him either portion of the question, — either as to teachers at Harvard, or as to anyone connected with Harvard, known by him to have been Communists. I shall start with teachers.

The presently material portion of § 192 makes it a misdemeanor to "refuse to answer any question pertinent to the question under inquiry" by any Congressional committee, within, of course, the scope of its authority. In this case documentary evidence as to the subject matter of the inquiry is lacking. The Chairman testified that the Subcommittee orally "decided to hold hearings on infiltration in defense plants." (R. 97). He amplified this by saying he meant "Communist infiltration of defense establishments * * * subversion and espionage." (R. 99). He amplified this further, saying, "We were investigating the efficiency of the organization which was responsible for handling security matters in defense plants." (R. 100). He stated that he told the Subcommittee,

"We were not going into an investigation of Harvard as a university or as an educational institution, but rather because of the defense work that these two professors had been doing." (R. 104).

"I emphasize we were not investigating Harvard." (R. 113).

All of the above testimony came on direct examination as part of the government's case. Whatever it may have established with relation to investigating defense work at Harvard, it is quite apparent that it did not extend to the broad subject of teaching at Harvard. Indeed, the Chairman conceded as much on more than one occasion. In addition to the previously quoted testimony of what he initially stated to the other members of the Subcommittee, which statement, so far as the record shows, may be taken as his maximum grant of authority, he testified as follows.

"The purpose was not to investigate Harvard University." (R. 143).

"Fifth Amendment Communists * * * teaching the young people of our nation * * * is viciously wrong * * * I would like to see some committee expose it if it is true that Harvard is implicated. Accidentally we found two. My committee is not doing that job * * * that was not my task." (R. 162-3).

"Any institution that harbors Fifth Amendment Communists should have that fact exposed * * I was not doing that job, I never took on that job." (R. 166).

The government called as its principal witness, so far as the Harvard questions were concerned, one Reynolds, administrative vice-president of the University, who testified as to Harvard's defense contracts over the ten years or more prior to the Subcommittee hearing. His evidence indicated, and I find, that during each of these years Harvard did considerable research work under contract for the federal government; that during the war years most of this work was of a "classified or restricted" nature;⁵ that little or no such work was undertaken from and after January, 1946 and none after June, 1946, and that by June, 1946 only a smattering of such work remained unfinished. The witness testified that this government work was not particularly departmentalized so far as the University was concerned, but was done by members of various departments of Arts and Sciences, the Business School, the Medical School, and the Schools of Public Health and Public Administration.

Even if all of the witness' testimony related to classified work, which was not clear, it left large segments of Harvard's teaching staff entirely out of the government orbit. The Schools of Design (Architecture), Divinity, Education, and Law come to mind. Nor can it be easily assumed that all members, or even every separate department of the sizeable faculty of Arts and Sciences,...