United States v. Kamin

Decision Date05 January 1956
Docket NumberCrim. No. 54-389.
Citation136 F. Supp. 791
PartiesUNITED STATES of America v. Leon J. KAMIN.
CourtU.S. District Court — District of Massachusetts

Anthony Julian, U. S. Atty., John M. Harrington, 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 2 U.S.C.A. § 192, tried without jury, for refusal to answer questions put by the Senate Permanent Subcommittee on Investigations, hereinafter called the Subcommittee, of the Senate Committee on Government Operations, hereinafter called the Committee. Reference is made to the earlier opinion herein, reported in D.C., 135 F. Supp. 382, in which the indictment was reduced to two counts at the conclusion of the government's case. Thereafter the defendant introduced evidence.

I find on all the evidence that the defendant deliberately refused to answer the questions involved in the remaining two counts of the indictment. He answered all questions concerning his own Communist activities, but on the stated grounds that his conscience did not permit him to be an informer, and on the First Amendment, enlarged at the trial to include the Fourth, Fifth and Ninth Amendments, he refused to give like information about others.1 There is, in my opinion, no basis in law for drawing such a distinction. If Congress is entitled to information, it does not have to go to original sources. On the other hand, the defendant is not to be charged, whether his given reasons were good or not, if the Subcommittee was not authorized to conduct this particular inquiry, or if the questions asked were not pertinent to the subject matter thereof. The burden of proof on these matters is on the government. Sinclair v. United States, supra, note 1; Bowers v. United States, 92 U.S. App.D.C. 79, 202 F.2d 447; cf. Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150, rehearing denied 348 U.S. 932, 75 S.Ct. 334, 99 L.Ed. 731.

The subpoena to attend the hearing in Boston was served on the defendant at 11 A.M. on January 14. The date and hour he was to appear was not written in, but he was told by the Deputy Marshal making the service to appear at 9:30 the next morning. At 4:00 P.M. on January 14 he retained present counsel, and conferred with him until 6:00. During this consultation he prepared two drafts of a statement. A few changes were made the following morning, and thereafter the defendant and his counsel went to the Federal Building, where they were directed to the lobby of Courtroom 3. After they were seated the Chairman of the Subcommittee and his staff entered the room. A number of others did, also. I find that the room, which was small, was overcrowded, and that during the so-called executive hearing, which commenced shortly, there was some coming and going by persons other than the Subcommittee and its staff, and a certain amount of confusion.

The executive hearing consisted of an examination under oath of the defendant, partly by the Chairman, the only member of the Subcommittee present, and partly by its counsel. The typewritten transcript was introduced in evidence by the defendant. After one page of examination he was asked to name the other members of a Communist club to which he had said he formerly belonged. He conferred with his counsel, who thereupon announced that the defendant would refuse "divulging names of individuals on the grounds of his conscience, on the grounds of the First Amendment." He testified at the trial that this announcement met with his approval when made. The written statement he had prepared the day before, and thereafter read, constituted an elaboration of that position. At the trial, however, he testified that he had not made up his mind in advance of the hearing, and that his decision was to depend upon events. This testimony was at best an idealization which may have grown in recollection with the passing of time. It did not impress me. I find that although the conditions of the executive hearing were not to his liking, they were not the cause of his refusal to answer. Whatever his motives and objections, he had decided before entering the building, in accordance with his prepared statement, not to answer questions along certain lines however they were asked.

There was no occurrence of any procedural or formal nature at the public hearing thereafter held in the open courtroom that justified the defendant's refusal to answer questions. Even if, as he contends, certain conditions there may have violated procedural rules of the Subcommittee as to the method of conducting hearings, this would be immaterial, where they did not contribute to his determination not to answer.2 A Congressional hearing need not be conducted like a court proceeding. Nor, in the absence of complaint by him at the time, should these matters be now considered. This is not a prosecution for perjury, where a defendant might show he was so unprepared, or so distracted, that any false testimony was due to inadvertent error. His conduct here was premeditated and intentional, and for him to raise at this date procedural objections that he in no wise asserted at the time is reminiscent of the situation in United States v. Bryan, 339 U.S. 323, 70 S.Ct. 724, 94 L.Ed. 884, rehearing denied 339 U.S. 991, 70 S. Ct. 1018, 94 L.Ed. 1391. I find such defenses quite out of keeping with the asserted motives of conscience in his prepared statement at the hearing3 and I find and rule that they are not valid.

The first defense of substance is that the Subcommittee had not delegated to the Chairman any authority to pursue an investigation. This is a question of fact, on which oral testimony was introduced of the four majority members of the Subcommittee who were active at the time the authority was said to have been granted. The defendant attacks their testimony, or its effect. While their recollections were not complete I have no doubt that these majority members (the minority had either resigned, or given such notice of proposed abstention that their absence was immaterial), met together in June or July, 1953, that after discussion the Chairman stated he proposed to conduct an investigation, and that the proposal received what all present understood to be unanimous approval. I find and rule that this was sufficient Subcommittee action.

The defendant states that even if this occurred no powers had been granted by the Committee to the Subcommittee during the 83rd Congress. I do not agree. A somewhat similar point was felt not worthy of elaboration in Maragon v. United States, 87 U.S.App.D.C. 349, 187 F.2d 79, certiorari denied 341 U. S. 932, 71 S.Ct. 804, 95 L.Ed. 1361. In addition, I find that the Committee had known for a number of months that the Subcommittee, after receiving a liberal allowance of funds, was extensively engaged in conducting these hearings, and by its conduct gave implementation, if any were needed.

Nor do I agree that Rule 4 requiring Subcommittee, or Committee, approval of public hearings had not been complied with. The "major" investigation considered and approved at the June or July, 1953 meeting was of such nature that it included, to the understanding of all, public hearings as a matter of course. The fact that public hearings were going on was subsequently called to the attention of the full Committee at a meeting or meetings prior to January 15, 1954. In addition, notice of individual hearings was given in advance to each Subcommittee member in time for him to have disapproved of any specific hearing had he wished. This was sufficient compliance.

Although I am clear that the majority members met and approved of an investigation, it is not so clear just what investigation they approved. As related in my earlier opinion, the court has before it no written records of meetings in 1953, and is dependent upon oral testimony. Before discussing this testimony it would be well to examine the government's contentions with regard to it.

Several months prior to trial the government was ordered to specify the subject matter under inquiry. The pertinent portion of the bill thereafter filed is quoted below.4 It was alleged that there were three main areas of investigation, (1) departments and agencies within the government, (2) outside defense plants employed by government departments and agencies, (3) educational institutions engaged in research for government departments and agencies. While the subsequent limitation or explanatory clauses commencing with "insofar as" are not similarly numerically subdivided, they are in a triple, seemingly symmetrical arrangement. It is not plain whether the investigation of (2) defense plants (the only matter now before the court), was for the second, or was for all three purposes set out. In other words, I am uncertain whether it was to determine the economy and efficiency of the operation of government agencies and departments themselves. This is a distinction of some possible importance, as will be developed later.

This ambiguity in the bill of particulars was not cleared up in oral argument. In his final remarks government counsel stated,

"I say the scope of the inquiry was the existence of subversion and espionage in defense plants and establishments, and of course the purpose of that was as it relates to the efficiency and the operation of government." (Italics supplied.)

In a brief thereafter filed the government said,

"The subject under inquiry at the time that the defendant was asked the questions he refused to answer was subversion and espionage in defense plants and establishments."

It continued,

"The chairman testified further that in the investigation the committee was primarily concerned with security regulations and how they were operating and whether additional legislation was necessary. With regard to the committee's interest in security rules and regulations, taking the
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12 cases
  • Watkins v. United States
    • United States
    • U.S. Supreme Court
    • June 17, 1957
    ...United States, 83 U.S.App.D.C. 315, 170 F.2d 273, 278—279; United States v. Josephson, 2 Cir., 165 F.2d 82, 89; and United States v. Kamin, D.C., 136 F.Supp. 791, 800—801. 35 H.Res. 282, 75th Cong., 3d Sess., 83 Cong.Rec. 7568, 7586. 36 H.Res. 5, 79th Cong., 1st Sess., 91 Cong.Rec. 10, 37 H......
  • Russell v. United States Shelton v. United States Whitman v. United States Liveright v. United States Price v. United States Gojack v. United States 8212 12, 128, s. 8
    • United States
    • U.S. Supreme Court
    • May 21, 1962
    ...'at large' for the trial (Deutch, ibid.), he may still seek a particularization through a bill of particulars. Cf. United States v. Kamin, D.C., 136 F.Supp. 791, 795 n. 4. It should be noted that no pertinency objection was made by any of these petitioners at the committee hearings. Further......
  • Yellin v. United States, 35
    • United States
    • U.S. Supreme Court
    • June 17, 1963
    ...136; Eisler v. United States, 83 U.S.App.D.C. 315, 170 F.2d 273; Hartman v. United States, 290 F.2d 460 (C.A.9th Cir.); United States v. Kamin, D.C., 136 F.Supp. 791. This is no technical quibble, for there are compelling reasons to require an objection to be pursued before the Committee. I......
  • Wyman v. Uphaus
    • United States
    • New Hampshire Supreme Court
    • March 27, 1957
    ...must be found in this language.' United States v. Rumely, 345 U.S. 41, 44, 73 S.Ct. 543, 545, 97 L.Ed. 770. See also, United States v. Kamin, D.C., 136 F.Supp. 791; United States v. Lamont, 2 Cir., 236 F.2d 312. The inquiry must therefore be pertinent to the issue of whether subversive pers......
  • Request a trial to view additional results
1 books & journal articles
  • Congressional investigations: politics and process.
    • United States
    • American Criminal Law Review Vol. 44 No. 3, June 2007
    • June 22, 2007
    ...Watkins v. United States, 354 U.S. 178, 201 (1957); Tobin v. United States, 306 F.2d 270, 274 (D.C. Cir. 1962); United States v. Kamin, 136 F. Supp. 791, 795 (D. Mass. 1956); United States v. Kamin, 135 F. Supp. 382, 389 (D. Mass. (164.) See Gojack v. United States, 384 U.S. 702, 707 n.4 (1......

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