Wilkinson v. US

• Citation: 774 F. Supp. 1360
• Decision Date: 01 July 1991
• Docket Number: Civ. A. No. 1:89-CV-0365-JOF.
• Parties: Frank WILKINSON, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Northern District of Georgia

774 F. Supp. 1360

Frank WILKINSON, Petitioner, v. UNITED STATES of America, Respondent.

Civ. A. No. 1:89-CV-0365-JOF.

United States District Court, N.D. Georgia, Atlanta Division.

July 1, 1991.

George Brian Spears, Ralph S. Goldberg, Atlanta, Ga., Paul L. Hoffman, ACLU Foundation of Southern California, Mark Chais, Michael D. Stein, Douglas E. Mirell, Loeb & Loeb, Los Angeles, Cal., for petitioner.

Daniel A. Caldwell, III, Asst. U.S. Atty., Atlanta, Ga., for respondent.

ORDER

FORRESTER, District Judge.

This matter is before the court on defendant United States of America's motion to dismiss Frank Wilkinson's petition for writ of error coram nobis. Petitioner asks the court to vacate his January 22, 1959 conviction for contempt of Congress.

I. FACTS

In the spring of 1958, the House of Representatives Committee on Un-American Activities authorized subcommittee hearings to be held in Atlanta, Georgia to investigate "the extent, character and objects of Communist colonization and infiltration in the textile and other basic industries located in the South, and Communist Party propaganda activities in the South...." One week prior to the hearings, petitioner came to Atlanta and registered at a hotel indicating his business firm association as the "Emergency Civil Liberties Committee." Upon learning this information, the subcommittee subpoenaed petitioner to appear and give testimony at the hearings. See Wilkinson v. United States, 365 U.S. 399, 405 n. 5, 81 S.Ct. 567, 571 n. 5, 5 L.Ed.2d 633 (1961). After being sworn and stating his name, petitioner refused to answer any questions of the committee.

When petitioner refused to answer the question, "Are you now a member of the Communist Party?" Richard Arens, Staff Director of the Committee on Un-American Activities of the House of Representatives, explained to petitioner that the question was relevant to the subcommittee's purpose for holding the hearings in Atlanta because "in order to know about Communist activities and Communist techniques, we have got to know who the Communists are and what they are doing." Arens informed petitioner that,

it is the information of this committee that you are now a hard core member of the Communist Party; that you are designated by the Communist Party for the purpose of creating and manipulating certain organizations, including the Emergency Civil Liberties Committee, the affiliate organizations of the Emergency Civil Liberties Committee, including a particular committee in California and a particular committee in Chicago, a committee — the name of which is along the line of the Committee for Cultural Freedom, or something of that kind. ... It is the information of the committee or the suggestion of the committee that in anticipation of the hearings here in Atlanta, Georgia, you were sent to this area by the Communist Party for the purpose of developing a hostile sentiment to this committee and to its work for the purposes of undertaking to bring pressure upon the United States Congress to preclude these particular hearings. Indeed, it is the fact that you were not even subpoenaed for these particular hearings until we learned that you were in town for that very purpose and that you were not subpoenaed to appear before this committee until you had actually registered in the hotel here in Atlanta.

The subcommittee chairman then directed Wilkinson to answer the question concerning membership in the Communist Party. Petitioner responded, "I challenge in the most fundamental sense, the legality of the House Committee on Un-American Activities." Petitioner stated his belief that it was beyond the power of Congress to establish the committee because the committee "tends, by its mandate and by its practices, to investigate precisely those areas of free speech, religion, peaceful association and assembly, and the press, wherein it cannot legislate and therefore cannot investigate."

Arens then read a portion of testimony given by Anita Edith Bell Schneider at a hearing held in California wherein she stated that she knew Wilkinson was a member of the Communist Party. Petitioner refused to answer a question concerning the truthfulness of this testimony. Petitioner also refused to answer the question "Are you now the principal driving force, the leader of the Emergency Civil Liberties Committee?" Petitioner was subsequently indicted for violating 2 USC § 192 by refusing to answer the question, "Are you now a member of the Communist Party?" Id., at 407, 81 S.Ct. at 572.¹

Richard Arens was the primary government witness at petitioner's trial. Arens testified that the committee possessed information that Wilkinson was a member of the Communist Party. This information included the identification of Wilkinson as a party member by a "creditable witness" who appeared before the committee within a year or so prior to the Atlanta hearings. Arens claimed that the committee knew that the "Communist hierarchy" had given Wilkinson the task of infiltrating the South through the work of the Emergency Civil Liberties Committee ECLC, a group identified as a communist organization by the Senate Internal Security Subcommittee. Arens stated that the House Committee knew Wilkinson had been engaged in Communist work for the ECLC in Atlanta and elsewhere in the South, but did not know that Wilkinson was coming to Atlanta to try and prevent the subcommittee hearings until he registered at an Atlanta hotel. Arens also testified that Wilkinson was in Atlanta with a Dr. James A. Dombrowski, a leader of the Southern Conference Education Fund, which the Internal Security Subcommittee of the Senate had also found to be a communist organization.

At the close of the evidence, Wilkinson moved for a judgment of acquittal on grounds that the evidence clearly showed that the sole purpose for subpoenaing him was to harass him in retaliation for his efforts to prevent the subcommittee from conducting the hearings in Atlanta.² Wilkinson also argued that his fundamental position was that the mandate of the House Committee was "defective because it is an encroachment upon sic violation of the first amendment." Transcript, p. 48. The motion was denied. After closing arguments the judge instructed the jury,

You are not concerned with whether the committee had a right to ask the questions or why it asked them. You are not concerned with whether this defendant was or was not a communist or subversive or what his answer might have been, and you are not concerned that his failure to answer may even have been upon the advice of counsel or his lawyer. ... You are not to consider the validity of the objection made by the defendant to answering the question concerned in this indictment or whether the claimed invalidity of the committee, lack of jurisdiction of the committee or lack of pertinency of the question because these are matters for my decision, and I have decided as a matter of law that the committee was properly authorized by Congress, that the questions were pertinent to the subject matter under investigation, and that the objections he made and the reasons he gave do not justify refusal to answer these questions. ... I have determined as a matter of law that the committee had the right to ask this question and the defendant had the duty to answer this question under the conditions that I will explain later.

Transcript, p. 57.

The issues presented to the jury were 1) whether the offense was committed in the Northern District of Georgia; 2) whether a quorum of a validly constituted subcommittee was present on the date of the alleged offense; 3) whether defendant appeared before the subcommittee; 4) whether defendant was asked the question set forth in the indictment; 5) that defendant willfully refused to answer the question after having been directed to do so; and 6) that the subject matter under inquiry and the pertinency of the question to that subject matter would have been clear to an average person in the defendant's position. See Transcript, at p. 60. Defendant did not object to the charge.

Defendant appealed his conviction to the Fifth Circuit on grounds that the statute and resolution establishing the House subcommittee were unconstitutional and that the committee's questioning of defendant and subsequent prosecution were undertaken to harass and expose defendant. Relying on the Supreme Court's decision in Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (1959), the Fifth Circuit affirmed petitioner's conviction. In Barenblatt, the Supreme Court held, "Congress has wide power to legislate in the field of Communist activity in this country and to conduct appropriate investigations in aid thereof...." 360 U.S. at 127, 79 S.Ct. at 1093. The Court found that "the constitutional legislative power of Congress in this instance is beyond question." Id., at 133, 79 S.Ct. at 1097. The Court rejected Barenblatt's contention that the House committee's investigation of Communist infiltration in the area of education was not in furtherance of the legislative purpose but with the true objective being purely "exposure." Id. at 132, 79 S.Ct. at 1096.

In Barenblatt, the Court recognized that there was no congressional power to "expose for the sake of exposure." Nonetheless, the court had no authority to intervene on the basis of the motives of Congress or congressional committee members so long as Congress or the committee was acting in pursuance of a constitutional legislative purpose. Id., at 132-33, 79 S.Ct. at 1096-97; Arizona v. California, 283 U.S. 423, 455, 51 S.Ct. 522, 526, 75 L.Ed. 1154 (1931). The Court reiterated its holding in Watkins v. United States, 354 U.S. 178, 200, 77 S.Ct. 1173, 1186, 1 L.Ed.2d 1273 (1957), that the committee members' "motives alone would not vitiate an investigation which had been instituted by a House of Congress if that assembly's legislative purpose is being served." The Court's opinion in Barenblatt...