United States v. Turoff

• Decision Date: 26 June 1961
• Docket Number: Docket 26243.,No. 183,183
• Citation: 291 F.2d 864
• Parties: UNITED STATES of America, Appellee, v. Sidney TUROFF, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

291 F.2d 864 (1961)

UNITED STATES of America, Appellee, v. Sidney TUROFF, Appellant.

No. 183, Docket 26243.

United States Court of Appeals Second Circuit.

Argued January 6, 1961.

Decided June 26, 1961.

Lipsitz, Green, Fahringer & Fleming, Buffalo, N. Y. (Herald P. Fahringer, Jr., Buffalo, N. Y., of counsel), for appellant.

J. Walter Yeagley, Asst. Atty. Gen., Neil R. Farmelo, U. S. Atty., W. D. N. Y., Buffalo, N. Y., George B. Searls, Robert L. Keuch, Attys., Department of Justice, Washington, D. C., for appellee.

Before WATERMAN, MAGRUDER and FRIENDLY, Circuit Judges.

WATERMAN, Circuit Judge.

This is an appeal from a conviction after a jury trial in the United States District Court for the Western District of New York in which appellant was charged with having violated 2 U.S.C.A. § 192.¹ On October 1, 1957 Sidney Turoff, an honorably discharged combat air force veteran of World War II, was a witness before a Subcommittee of the Committee on Un-American Activities of the House of Representatives which was conducting hearings in Buffalo, New York, for the purpose of inquiring into:

"the entry and dissemination in the Buffalo area of foreign Communist Party propaganda; execution by administrative agencies concerned of laws requiring the listing of printing presses and machines capable of being used to produce or publish printed matter, in the possession, custody, ownership, or control of the Communist Party or Communist fronts; the extent, character, and objects of Communist infiltration into industrial, civic, and political organizations of the Buffalo area; and misuse of passports by subversives and concealment of material facts in applications for passports."

After Turoff had identified himself, had stated his place of residence, and had given his occupation as that of a general factory worker, he was identified by one Alan Dietch as the person to whom Dietch had previously sold certain printing equipment which Dietch stated he understood was to be used in the Communist Party underground. Turoff then testified that the equipment, though not sold to him, was indeed purchased at his request, and that he was a member of the American Communist Party when it was purchased.

He went on to detail his experience with the Communist Party until the time he voluntarily left it early in April 1957. He freely described the organization within the Party of the units to which he belonged and he fully testified to particulars of Party operations with which he was familiar.

At this point in his interrogation Turoff was asked the following question:

"Mr. Arens: Now, kindly tell us sir, who were the members of the Steel Section of the Communist Party to which you were attached as of the time you disassociated yourself from the Communist Party in April of 1957?"

After having the purpose of the question explained to him² Turoff refused to answer, declaring that his constitutional rights of association were violated by the question and that he believed the committee was without power to ask questions of that nature. After being directed to answer Turoff persisted in his refusal.

Committee counsel then proceeded to question him for the purpose of obtaining the names of persons he may have entertained in his home and those whom he had known were members of the Party when he had been a member. Turoff refused to divulge any names. Finally, Turoff was asked to name the person to whom he had delivered the printing equipment admittedly delivered to him by Dietch. He refused to answer that question, and, even after counsel for the Committee sought to explain the pertinency of the question to him,³ and after he was specifically directed to answer it, persisted in the refusal.

The refusal to divulge the names of the members of the Steel Section of the Communist Party in April of 1957, and the name of the person to whom the printing equipment was delivered, were, respectively, Counts I and III of the indictment before us in which the grand jury charged that Turoff had violated 2 U.S.C.A. § 192. It is from his conviction on both of these counts that he appeals.

During the course of the trial the prosecution, without defense objection, introduced as an exhibit the transcript of the subcommittee hearing which, of course, included the detailed testimony of his Party activities that Turoff had freely given in answer to the other questions the committee had asked him. However, thereafter, when the prosecuting attorney began to read this entire transcript to the jury, appellant's counsel vehemently objected, contending that only the questions Turoff refused to answer, and his refusals, were relevant to the proof of the alleged crime. The objection was overruled as not having been taken early enough. Thereupon government counsel read into the record all of Turoff's answers wherein he had freely disclosed his personal knowledge of the Communist Party; and, as well, the questions, explanations, and directions of the subcommittee members and its counsel during Turoff's interrogation. This exhibit, which, when read, comprised 39 pages of the trial record, was taken by the jury at the conclusion of the case into the jury room.

As one of several grounds upon which he relies, appellant assigns as error the failure of the trial judge to exclude this material from the jury's consideration. We are of the opinion that appellant's contention is a sound one and that it was error to admit into evidence for jury consideration this entire colloquy. Pages and pages of what transpired at the committee investigation were entirely irrelevant to any of the issues the jury had to deal with, and much of it was highly prejudicial to the defendant. We, therefore, reverse the judgment of conviction and remand the case back to the district court for a new trial.

In Deutch v. United States, 81 S.Ct. 1587, 1593-1594, the Supreme Court set out the dual issues of pertinency that are involved in a prosecution under 2 U.S. C.A. § 192 for a Contempt of Congress, as follows:

"As our cases make clear, two quite different issues regarding pertinency may be involved in a prosetion under 2 U.S.C. § 192, 2 U.S.C. A. § 192. One issue reflects the requirement of the Due Process Clause of the Fifth Amendment that the pertinency of the interrogation to the topic under the congressional committee\'s inquiry must be brought home to the witness at the time the questions are put to him. `Unless the subject matter has been made to appear with undisputable clarity, it is the duty of the investigative body, upon objection of the witness on grounds of pertinency, to state for the record the subject under inquiry at that time and the manner in which the propounded questions are pertinent thereto.\' Watkins v. United States, 354 U.S. 178, at pages 214-215 77 S.Ct. 1173, at page 1193, 1 L.Ed.2d 1273. See Barenblatt v. United States, 360 U.S. 109, at 123-124, 79 S.Ct. 1081, 3 L.Ed.2d 115. The other and different pertinency issue stems from the prosecution\'s duty at the trial to prove that the questions propounded by the congressional committee were in fact `pertinent to the question under inquiry\' by the committee. `Undeniably a conviction for contempt under 2 U.S.C. § 192, 2 U.S.C.A. § 192 cannot stand unless the questions asked are pertinent to the subject matter of the investigation.\' Barenblatt, supra, 360 U.S. at page 123 79 S.Ct. at page 1091 `The statute defines the crime as refusal to answer "any question pertinent to the question under inquiry." Part of the standard of criminality, therefore, is the pertinency of the questions propounded to the witness.\' Watkins, supra, 345 U.S., at page 208, 77 S. Ct. at page 1190. See Wilkinson v. United States, 365 U.S. 399, at page 407-409, 413 81 S.Ct. 567, 5 L.Ed.2d 633; Braden v. United States, 365 U.S. 431, at page 433, 435-436 81 S.Ct. 584, 5 L.Ed. 2d 653; Sacher v. United States, 356 U.S. 576, 577 78 S.Ct. 842, 2 L.Ed.2d 987; Sinclair v. United States, 279 U.S. 263, 296-297 49 S. Ct. 268, 73 L.Ed. 692. These two basically different issues must not be blurred by treating them as a single question of `pertinency.\'"

Whether the witness has been made aware of the pertinency of the particular interrogatory at the time it is asked bears upon the issue of whether he has knowingly refused to answer that interrogatory, and whether he has...