United States v. Rosen, 209

• Decision Date: 25 April 1949
• Docket Number: Docket 21293.,No. 209,209
• Citation: 174 F.2d 187
• Parties: UNITED STATES v. ROSEN.
• Court: U.S. Court of Appeals — Second Circuit

174 F.2d 187 (1949)

UNITED STATES v. ROSEN.

No. 209, Docket 21293.

United States Court of Appeals Second Circuit.

April 25, 1949.

Before AUGUSTUS N. HAND, CHASE and CLARK, Circuit Judges.

Emanuel H. Bloch, of New York City, for appellant.

John F. X. McGohey, U. S. Atty., of New York City (Thomas F. Murphy, Asst. U. S. Atty., of New York City, and Thomas J. Donegan and Fred E. Strine, Special Assts. to the Atty. Gen. of counsel), for appellee.

CHASE, Circuit Judge.

The appellant was adjudged in contempt of court for refusing to obey an order of the court directing him to answer certain questions he had been asked when he appeared as a witness before a grand jury duly summoned and sitting in the Southern District of New York on March 2 and 3, 1949. He was sentenced to imprisonment for six months or until such time as he purged himself by answering the questions.

There were eleven questions which the appellant refused to answer after a hearing before the court had resulted in the order directing him to do so. His refusal to answer each question was for the claimed reason that his answers would tend to incriminate him and the order adjudging him in contempt is now attacked as erroneous in that it denied him the protection against self incrimination which the Fifth Amendment provides.

The questions which he refused, on the above ground to answer are as follows:

"Q. * * * I show you Grand Jury Exhibit No. 103, which is a certificate of title of a motor vehicle issued by the Director of Vehicles & Traffic of the District of Columbia, for a Ford roadster, which certificate contains a purchase application for new certificate of title, bearing the name William Rosen, signature William Rosen, and an affidavit given before Notary Public Henry J. Gertler on July 23rd, 1936, and I ask you have you seen this document in any form, either the original or the copy, have you previously seen this document in any form either the original or the copy? * * * Prior to the time the committee or any representative of the Committee on Un-American Activities exhibited to you a copy of that document, had you ever seen the original or a copy of the document?

"Q. Mr. Rosen, Judge Rifkind instructed you in court on March 3rd that you were to answer the question that was asked you as to whether you desired to change your answer of `No' to the question as to whether you knew Mr. Gertler, and that is what I am asking you, do you desire to change your answer of `No' to the question as to whether you knew Mr. Gertler, as to whether you ever met or had any conversation with Mr. Gertler? * * * I again ask you the question as to whether you desire to change your answer before the grand jury on March 3rd when you said `No' to the juror's question as to whether you had ever met or had any conversation with Mr. Gertler?

"Q. Mr. Rosen, did you ever own a Ford roadster? That question was asked you on March 3rd in the grand jury room, and Judge Rifkind instructed you when you appeared before him to answer the question. What is your answer?

"Q. Mr. Rosen, I am again asking you a question which you were asked in the grand jury on March 3rd, 1949, and which Judge Rifkind instructed you to answer: `Mr. Rosen did you ever own a Ford automobile?'

"Q. I am now asking you a question which was asked you before the grand jury on March 3rd, 1949 and which Judge Rifkind instructed you to answer: `Mr. Rosen, did you ever seek to obtain a certificate of title or to register a Ford automobile at any time?'

"Q. Mr. Rosen, I am again asking you a question which was asked before the grand jury on March 3rd, 1949, and which Judge Rifkind on that same date instructed you to answer: `Did you appear before a notary public, Henry J. Gertler, in Washington, D. C., on July 23rd, 1936?'

"Q. Mr. Rosen, I am again asking you a question which you were asked by a juror in the grand jury room on March 3rd, 1949 and which Judge Rifkind instructed you to answer on the same date when you appeared before him in court. Question by a juror: `Well, if you were not in Washington, if it is true that you were not in Washington on that particular day, how could you possibly have had any connection with the signing of this document and, therefore, why can't you say that you did not sign that document or that you did not appear before Mr. Gertler?'

"Q. Mr. Rosen, I am again asking you a question which you were asked before the grand jury on March 3rd, 1949 and which Judge Rifkind subsequently instructed you to answer: `Did you ever purchase an automobile from any automobile dealer either in Washington or New York other than the Cherner Motor Company?'

"Q. The next question was, `I correct my question: What model of Ford car did you drive?'

"Q. I am asking you a question, Mr. Rosen, which you were previously asked before the grand jury on March 3rd, 1949, and which question judge Rifkind on that same date instructed you to answer: `Mr. Rosen, were you ever on the premises of the Cherner Motor Company, 1781 Florida Avenue, N. Y., Washington, D. C.?'

"Q. Did you ever purchase an automobile in Washington, D C.?"

As they do not on their face appear to call for answers which would tend to incriminate the appellant, it was incumbent upon him to justify his refusal to answer on the ground claimed by making it appear that his assertion that they would was based upon substantial reason so to believe and was not made merely to protect some other person or persons. Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L. Ed. 1110; Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819; Mason v. United States, 244 U.S. 362, 37 S.Ct. 621, 61 L.Ed. 1198; United States v. Zwillman, 2 Cir., 108 F.2d 802; United States v. Weisman, 2 Cir., 111 F.2d 260; United States v. Cusson, 2 Cir., 132 F.2d 413.

In an effort to do that he introduced evidence at his hearing from which it appears that he had reasonable cause to believe that the "setting" in which he was asked the above questions was substantially as follows.

At a series of hearings in the summer of 1948 before a standing committee of the House of Representatives, and of sub-committees, a witness, Whittaker Chambers, had testified that both in 1935 and 1936, as well as for a period before and after those years, he had been acting as an agent of the so-called "underground" of the Communist Party which was engaged in behalf of Russia in espionage activities in this country. Later Chambers also had testified that he had received confidential information from public servants of the United States in Washington while he was an agent of the Communist "underground," which was the secret espionage branch of the Communist Party, and that some of this information was contained in confidential documents of the State Department which were delivered to him by Alger Hiss, an employee of that department, to be photostated or microfilmed. He had also testified that he had returned the originals to Hiss shortly after he had received them but after he had had them photostated or microfilmed. He had also testified that Hiss was a dues paying member of the Communist Party with whom he was well acquainted and with whom he had discussed at length the principles of Communism especially in its relation to this government. The import of his testimony was that Hiss had been a disloyal employee of the State Department engaged in espionage against his own country for the benefit of Soviet Russia and was so acting in furtherance of a conspiracy to overthrow this government by force and violence in which the members of the underground of the Communist Party in America were his co-conspirators.

Hiss, who was privately employed in New York when Chambers so testified, learned he had been so accused and denied emphatically any connection with such activities or with Chambers. He requested that he be permitted to appear before the committee to enable him to refute the charges without delay, and his request was granted. He testified positively that he was entirely innocent; that he did not know Chambers; and that he was unable to recognize a picture of Chambers which was shown to him as that of anyone he knew under any other name. He expressed disappointment that Chambers was not present so that he could see him and asked for that opportunity. Hiss subsequently appeared several times before the committee and its sub-committee and for a time was unable to suggest anyone he might have known who could have been Chambers under some other name. Chambers not only continued to maintain, after Hiss's denials, that he had testified truthfully but amplified his testimony as to his acquaintance and activities with Hiss. After hearings had been held on several days. Hiss stated that it had but recently occurred to him that Chambers might be a freelance writer, known to him as Crosley, who had visited him, when Hiss was attorney for the Nye Committee that was investigating the munitions industry, to get materials for articles he intended to write and hoped to sell to magazines. He described his recollection of him, said he had in 1935 sub-let his apartment to him and at first said he had then sold Crosley an old Ford Model A roadster which he had purchased shortly before he was married and which accordingly had a sentimental value but was otherwise...