United States v. Orman

• Citation: 207 F.2d 148
• Decision Date: 18 September 1953
• Docket Number: No. 10837.,10837.
• Parties: UNITED STATES v. ORMAN.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

207 F.2d 148 (1953)

UNITED STATES v. ORMAN.

No. 10837.

United States Court of Appeals Third Circuit.

Argued February 2, 1953.

Decided September 18, 1953.

COPYRIGHT MATERIAL OMITTED

William E. Leahy, Washington, D. C. (Edward I. Feinberg, Atlantic City, N. J., William J. Hughes, Jr., Washington, D. C., on the brief), for appellant.

Grover C. Richman, Jr., U. S. Atty., Newark, N. J. (Alexander Feinberg, Asst. U. S. Atty., Camden, N. J., on the brief), for appellee.

Before BIGGS, Chief Judge, and GOODRICH and KALODNER, Circuit Judges.

BIGGS, Chief Judge.

This is an appeal from a conviction for contempt of a Subcommittee of the United States Senate's Special Committee to Investigate Organized Crime in Interstate Commerce.¹

It is desirable in this case to make a detailed statement of the circumstances so that the reader may not only perceive the operative facts but also may be aware of the background of the case. On July 3, 1951, the Subcommittee caused a subpoena to be issued commanding the defendant Orman to "produce all your records, papers, statements and documents concerning business, employment and financial transactions and a copy of your income tax returns for the years 1947, 1948, 1949 and 1950." Orman appeared before the Subcommittee on July 6, 1951, with the required copies of the tax returns; he produced no other records prior to 1951 for he had destroyed them after making his tax returns. At the hearing on July 6 it developed that Orman was keeping a book containing notes of his business transactions for 1951. Mr. Lane, of counsel for the Subcommittee, expressed his desire to see this book, and Senator Hunt formally stated: "The acting chairman of the subcommittee directs the witness, Mr. Orman, to produce his book containing the records of his business transactions for the year 1951."

On the following day, July 7, 1951, Orman brought the book before the Subcommittee. He apparently handed the book to Mr. Lane, but retrieved it almost immediately to assist in explaining the entries. Orman then refused to read from the book anything except the gross amounts of his 1951 income. He said: "I do not want this to be made public. I think this is my own personal business. This record is going to be made public and a lot of statements will be made like in yesterday's paper. Some of them do not mean anything."

Counsel asked: "Will you let me have the book?"

Orman replied: "No. I do not think I will let you have the book unless I know my business is not going to be made public. I think I am entitled to that courtesy."

Senator Hunt then directed Orman to read the entries, warning him that he might be in contempt of the Subcommittee if he refused. Orman said that the entries did not "mean a thing" and he declined to read the entries or to deliver the book to the Subcommittee.

On July 10, 1951, a second subpoena was issued commanding Orman to appear before the Subcommittee on July 17, 1951, and specifically directing him to produce his 1951 book of financial transactions. Orman again brought the book to the hearing, but when Mr. Moser, Chief Counsel to the Committee, asked him "Will you please produce that book?", he replied "No; I will not." Mr. Moser asked: "And why do you refuse to show it to the committee?" Orman replied: "Because I do not want it to become public property, to be given to the newspapers. That is my personal business." Counsel then inquired: "Is it giving it to the newspapers to give it to us?" and Orman replied: "I think so." Counsel for the Subcommittee then asked: "You do?" Orman replied: "Yes." The Committee's counsel then inquired: "You refuse to produce it before this closed session of the committee on that ground?" Orman stated: "Unless I have an assurance that it will not be given to the newspapers. I must be assured of that first. First of all, this is not pertinent to this investigation, as far as I could determine, but I was very nice and gracious enough to sit through two and a half hours of my income taxes, which I think have nothing to do with this investigation, as far as crime and what this investigation is headed under. I had nothing to do with that. I sat here and tried to be very helpful. * * *"

The colloquy went on. Counsel asked: "Will you please let me see the book?" Orman replied: "I will let you see the book." Counsel said: "Then please do so." Orman asked: "Is it not going to be read into the record?" Counsel said: "I am not going to decide now whether it will go into the record. If it is material, it will certainly go into the record." Orman then said: "I refuse to give you the book." Counsel asked: "You refuse to give me the book on the sole ground of your not wanting to go into the record?", and Orman replied: "I don't care about it going into the record." Counsel then said: "I want an exact statement of the ground for refusing to show us the book." Orman replied: "I don't want the contents of this book to be published in the newspapers and made public property as there have been some other statements made before about myself. I do not know by whom. I am in business in this town."

On the same day, July 17, 1951, the following colloquy also took place:

Counsel for the Subcommittee asked: "You borrowed $25,000 in December, 1950?" Orman said: "That is right." Counsel asked: "From whom did you borrow that?", and Orman replied: "From a friend of mine." Mr. Moser inquired: "What is his name?" Orman said: "I cannot tell you." Counsel asked: "You do not know?" Orman said: "I won't tell you; no." The inquiry was then made: "Why?" Orman simply stated: "I don't want to tell you." Counsel said: "You refuse to answer? On what ground?", and Orman replied: "It is my personal affairs." Counsel then said: "You just refuse to answer?" Orman replied: "That is right. It is my personal affairs." Counsel then asked: "Under that you are running the risk of a charge of contempt if you refuse to answer that, do you know?" Orman said: "I do, sir." Counsel finally asked: "You still refuse to answer?" Orman replied: "I do, sir."

On September 18, 1951, the Special Committee to Investigate Organized Crime in Interstate Commerce submitted a report to the Senate describing the above proceedings and included a resolution that the United States Attorney for the District of New Jersey should be required to proceed against Orman in the manner prescribed by law. This resolution was adopted and became Senate Resolution 211, dated October 1, 1951.²

Orman was then indicted on four counts for violation of Section 192, Title 2, U.S.C.A.³ Count 1 charged that Orman on July 7, 1951, "* * * wilfully made default in that he refused to turn over his 1951 book of accounts pertaining to his income, which records were pertinent to the matter under inquiry by the * * * Committee." Count 2 made an identical charge relating to Orman's refusal to let the Subcommittee have the book on July 17, 1951. Count 3 further charged that Orman on July 17, 1951, "* * * refused to answer the following question pursuant to the Committee seeking to ascertain from whom the defendant Herman Orman had borrowed certain sums of money, which question was pertinent to the question under inquiry by the * * * Committee: `What is his name?'" Count 4 made an identical charge relating to the Subcommittee's similar directive on the same date: "Mr. Orman, the acting chairman directs you to answer the question asked you by the counsel."

At the trial the jury returned a verdict of guilty on each count of the indictment. The court below sentenced Orman to twelve months imprisonment on Counts 1 and 3, the terms to run concurrently, and to a suspended sentence and one year's probation on Counts 2 and 4, the probationary periods to run concurrently but commencing at the expiration of the sentences imposed on Counts 1 and 3.

On this appeal Orman contends broadly that under all the circumstances his refusal to disclose the items in his 1951 book of accounts did not constitute a willful default within the indictment and the statute. He also argues that it was not pertinent to the investigation undertaken by the Senate Crime Committee either to demand his 1951 book of accounts or to ask the name of the person from whom he had borrowed the $25,000. We will discuss these contentions.

I.

Orman challenges the pertinency of the book and of the name of the person who loaned him $25,000. Specifically, Orman claims error in the trial court's view of the law set out in the following portion of the charge to the jury:

"In that particular respect, ladies and gentlemen, there has been argument here as to whether or not it was pertinent to the committee where the defendant actually got the $25,000. And there has likewise been argument here as to whether or not it was pertinent to the committee what was in the book. That is not the question, in my estimation. The question is, could it have been pertinent to this Senate inquiring committee in July of 1951; could it have been pertinent to such inquiry where Mr. Orman got the $25,000. If it could have been pertinent, they were entitled to an answer. If it could have been pertinent to such inquiry at that time what information would be disclosed in the book, then they were entitled to have the book at that time. And you and I are not to pass now upon the information disclosed in either the book or the information disclosed in the court room of where he got the money. It\'s a question could it have been pertinent at the time the question was propounded by the Senate in their inquiry."

Acting consistently with this view, the trial court had excluded all evidence of the actual contents of the book and of the name of the man who loaned Orman $25,000. Orman contends that this exclusion was erroneous. Orman also argues that since the question of pertinency was one of law, it was error for the trial court to submit this question to the jury. His view is that as a matter of law, taking into consideration...