United States v. Seeger

• Decision Date: 18 May 1962
• Docket Number: Docket 27101.,No. 293,293
• Citation: 303 F.2d 478
• Parties: UNITED STATES of America, Appellee, v. Peter SEEGER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

303 F.2d 478 (1962)

UNITED STATES of America, Appellee, v. Peter SEEGER, Defendant-Appellant.

No. 293, Docket 27101.

United States Court of Appeals Second Circuit.

Argued April 9, 1962.

Decided May 18, 1962.

COPYRIGHT MATERIAL OMITTED

Paul L. Ross, New York City (Wolf, Popper, Ross, Wolf & Jones, New York City and Samuel M. Koenigsberg, Newark, N. J., of counsel), for defendant-appellant.

Arthur I. Rosett, Asst. U. S. Atty., Southern Dist. of N. Y., New York City (Robert M. Morgenthau, U. S. Atty., and Irving Younger, Asst. U. S. Atty., Southern Dist. of N. Y., New York City, on the brief), for appellee.

Before SWAN, MOORE and KAUFMAN, Circuit Judges.

KAUFMAN, Circuit Judge.

Peter Seeger appeals from a judgment of conviction entered after a trial before Thomas F. Murphy, District Judge, and a jury, on an indictment charging him with a refusal to answer ten questions asked by a subcommittee of the Committee on Un-American Activities of the House of Representatives, in violation of 2 U.S.C.A. § 192. Appellant was sentenced to imprisonment for the maximum term of one year on each of the ten counts in the indictment, to be served concurrently, and to pay the costs of his prosecution.¹

Seeger, a musician and folk singer, appeared as a witness before the subcommittee on August 18, 1955 during hearings which were being conducted on the subject of communist infiltration in the field of entertainment in New York.² Although he answered a number of questions asked by members of the subcommittee and the subcommittee's counsel, Seeger refused to discuss allegations that he was connected with communist activities or had participated in functions allegedly sponsored by the Communist Party. The refusal was not based on a claim of constitutional privilege under the Fifth Amendment,³ but generally on Seeger's expressed belief that the questions were either "improper" or "immoral."⁴

Nearly one year later, on July 25, 1956, appellant's refusal to answer those questions was reported to the House of Representatives; and the House thereupon voted to certify the report to the United States Attorney for prosecution. On March 26, 1957 the ten count indictment, predicated on appellant's refusal to answer ten stated questions, was filed.⁵ Seeger pleaded not guilty, and subsequently moved to dismiss the indictment. In support of this motion it was argued, inter alia, that the indictment was defective because it failed "to state the authority of the sub-committee to conduct the inquiry before which the defendant was summoned as a witness." The motion was denied in an oral opinion delivered from the bench.⁶

On appeal, Seeger contends that his conviction should be reversed on several grounds. Among them he challenges the authority of the subcommittee, the manner in which the hearings were conducted, the Grand Jury proceedings, and the adequacy of the indictment; moreover, he urges us to consider several errors allegedly committed by the court below during trial. Some of these contentions pertain to claimed violations of appellant's rights under the First⁷ and Fifth Amendments to the Constitution. However, we find it unnecessary to consider the merits of any of these arguments, except one: that the indictment was defective because it failed to properly allege the authority of the subcommittee to conduct the hearings in issue, and to set forth the basis of that authority accurately.

The "Contempt of Congress" statute under which this prosecution was brought, 2 U.S.C.A. § 192, states in part:

"Every person who having been summoned as a witness by the authority of either House of Congress to give testimony * * * upon any matter under inquiry before * * * any committee * * * 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 * * *" (italics added).

A conviction for a violation of Section 192 cannot be sustained unless it appears (1) that Congress had the constitutional power to investigate the matter in issue or to make the particular inquiry, Watkins v. U. S., 354 U.S. 178, 187, 77 S.Ct. 1173, 1 L.Ed.2d 1273 (1957); Sinclair v. U. S., 279 U.S. 263, 292, 49 S.Ct. 268, 73 L.Ed. 692 (1929); McGrain v. Daugherty, 273 U.S. 135, 173-174, 47 S.Ct. 319, 71 L.Ed. 580 (1927); Kilbourn v. Thompson, 103 U.S. 168, 196, 26 L.Ed. 377 (1880); (2) that the committee or subcommittee⁸ was duly empowered to conduct the investigation, and that the inquiry was within the scope of the grant of authority, U. S. v. Rumely, 345 U.S. 41, 42-43 (1953) 73 S.Ct. 543, 97 L.Ed. 770; U. S. v. Lamont, 236 F.2d 312, 315 (2d Cir. 1956), affirming 18 F.R.D. 27, 33 (S.D.N.Y.1955); U. S. v. Orman, 207 F. 2d 148, 153 (3d Cir. 1953); U. S. v. Kamin, 136 F.Supp. 791, 793 (D.Mass. 1956); (3) that the question was pertinent to the authorized inquiry, Barenblatt v. U. S., 360 U.S. 109, 123, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (1959); Sacher v. U. S., 356 U.S. 576, 577, 78 S.Ct. 842, 2 L.Ed.2d 987 (1958); and (4) that the refusal to answer was deliberate and intentional, Quinn v. U. S., 349 U.S. 155, 165, 75 S.Ct. 668, 99 L.Ed. 964 (1955).

In order to determine whether an indictment which charges a violation of 2 U.S.C.A. § 192 is valid, the Court must examine it in light of the requirement of the Sixth Amendment to the Constitution, that "in all criminal prosecutions, the accused shall enjoy the right * * * to be informed of the nature and cause of the accusation" made against him. Procedurally, this means that an indictment must set forth an offense "with clearness, and all necessary certainty, to apprise the accused of the crime with which he stands charged," U. S. v. Mills, 7 Pet. 138, 142, 8 L.Ed. 636 (1833). Thus, it has been long recognized that "every ingredient of which the offence is composed must be accurately and clearly alleged in the indictment * * *" U. S. v. Cook, 17 Wall. 168, 174, 21 L.Ed. 538 (1872).⁹

"The object of the indictment is, first, to furnish the accused with such a description of the charge against him as will enable him to make his defence, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had." U. S. Cruikshank, 92 U.S. 542, 558, 23 L.Ed. 588 (1875).

U. S. v. Debrow, 346 U.S. 374, 377, 378, 74 S.Ct. 113, 98 L.Ed. 92 (1953); Hagner v. U. S., 285 U.S. 427, 431, 52 S.Ct. 417, 76 L.Ed. 861 (1932); Wong Tai v. U. S., 273 U.S. 77, 80-81, 47 S.Ct. 300, 71 L.Ed. 545 (1927); Evans v. U. S., 153 U.S. 584, 587, 14 S.Ct. 934, 38 L.Ed. 830 (1894); U. S. v. Hess, 124 U.S. 483, 487, 8 S.Ct. 571, 31 L.Ed. 516 (1888); U. S. v. Achtner, 144 F.2d 49, 51 (2d Cir. 1944).

In view of this constitutional mandate, and the undisputed fact that the Government must establish that a committee or subcommittee was duly authorized and that its investigation was within the scope of the delegated authority, an indictment under Section 192 is defective if the authority is not pleaded, U. S. v. Lamont, supra.

"The cornerstone of the Government\'s case in any prosecution under § 192 must be a lawfully constituted committee engaged in an inquiry within the scope of its authority when the refusal to answer occurred. This is the hard core of its case against the defendant and he is entitled to have it pleaded in the indictment."¹⁰

Furthermore, as Judge Weinfeld pointed out in the lower court opinion in the Lamont case,

"There is an added reason why this element should be pleaded. With pertinency also an essential element, it is important for the defendant in preparing his defense to know the claimed source of authority since `The initial step in determining the pertinency of the question is to ascertain the subject matter of the inquiry then being conducted by the subcommittee.\' Bowers v. United States, 92 U.S. App.D.C. 79, 202 F.2d 447, 448. Or, as stated by Mr. Justice Frankfurter in the Rumely case, the resolution under which the committee purports to act is the `controlling charter\' of its powers and governs `its right to exact testimony.\' United States v. Rumely, 345 U.S. 41, 44, 73 S.Ct. 543, 545, 97 L.Ed. 770. Since pertinency must be and has been pleaded, there is no logical reason why the authority of the committee should not likewise be pleaded." Id., 18 F.R.D. pp. 33-34 (italics added).¹¹

The Government does not appear to contest this.¹² Instead, it seeks to have us disregard and overrule the pertinent and correlative holding of U. S. v. Lamont, supra, that it is not enough to allege the subcommittee was "duly authorized," but that "the source of its claimed authority, whether it be a resolution of the House of Representatives or the parent committee Cf. United States v. DiCarlo, D.C.N.D.Ohio, 102 F.Supp. 597 should be alleged in the indictment."¹³

This we cannot do. The Federal Rules of Criminal Procedure unmistakably require the Government to plead "the essential facts constituting the offense charged," Rule 7(c), Fed.R. Crim.P., 18 U.S.C.A. (italics added), and not mere legal conclusions. As we have already noted, the basic function of an indictment is to inform the defendant so that he may defend himself. See, Scott, A Fair Trial for the Accused, 41 Minn.L.Rev. 509, 518 (1957).¹⁴ "For this, facts are to be stated, not conclusions of law alone," U. S. v. Cruikshank, supra. Anxious as we are to avoid over-elaboration and formalism, we cannot condone "a formalism of generality."¹⁵

Moreover, unless we disregard as mere surplusage certain allegations in the indictment before us, a course not urged by the Government, it is perfectly clear that the prosecutor recognized that it was necessary to allege facts indicating the subcommittee's authority. The first paragraph of the indictment purports to relate the substance of a resolution passed by...