The opinion
BAZELON, Circuit Judge
(dissenting).
All of the circumstances and pleadings relating to the issue of the qualifications of Government employees to serve as grand jurors in this case are identical with those in Quinn v. United States. 1 For the reasons set forth in my opinion in that case, I would reverse and remand for a new trial here.
I think there is another ground for ordering a new trial, based upon my view in Quinn of the words “refuses to answer” in § 192. 2 I shall discuss only the impact of this view upon the instant record.
Here the court relies upon certain statements in a colloquy between appellant and his counsel, on the one hand, and Committee members and their counsel, on the other, as showing that appellant was made aware that his grounds for objecting to answer were overruled by the Committee. 3 Con-cededly, those statements are pertinent. But so is the statement of the Committee chairman that “ * * * we don’t rule on objections.” 4 And in response to a Committee member’s suggestion that the witness “be advised of the possibilities of contempt,” the Committee chairman said: “No, he has counsel. Counsel knows that is the law.” 5 In my view the record presents seriously conflicting statements which raise a question of fact for the trial court. An examination of the record demonstrates that the court, sitting without a jury, did not so understand the matter. For while it found that 'appellant “comprehended that he was refusing to answer those questions,” 6 this conclusion was not based upon findings, express or implied, (1) that appellant was clearly apprised that his grounds for not answering were rejected by the Committee and (2) that he was afforded another opportunity to answer. This, I think, is manifest from appellant’s conviction on Count 7. There he was charged with refusing to answer a question after Committee counsel merely repeated the grounds for appellant’s objection, and then proceeded immediately to propound another question. This court reverses that conviction because “the Committee abandoned the question as asked and asked another question. * * * The Committee indicated clearly that it agreed with [appellant’s] view of the initial question.” 7 Thus, the only thing that suggests that the Committee meant to have an answer to the question in Count 7 was its subsequent certification for contempt, initiating the indictment here. If the trial court applied the same view in considering all of the other counts, and there is no contrary indication, then clearly it committed similar error as to those counts.
Appellant asserted lack of pertinency as the ground for not answering the questions *54 involved in Counts 3, 4, 5 and 6. At the oral argument here, appellant’s counsel conceded that those questions were pertinent. “So,” says the court, “the controversy now posed- concerns naked refusals to answer.” 8 As I made dear in Quinn, a naked refusal, i. e., “a refusal without a statement, at the time, of the reason therefor” does not require affirmative action by the inquiring authority. 9 Thus the court, in effect, treats counsel’s concession as a retroactive waiver of appellant’s right to “be made aware,” as stated in the court’s present opinion, “by some method at some time, that despite his position the inquirer means that he shall answer the question.” 10 I cannot reconcile this result with the decision in Quinn today where the court said, “It must appear that [a witness] was aware of the intention of his inquirer that answers were required despite his objections.” 11
This court affirms the conviction on Count 8 on the ground that under the Rogers 12 doctrine appellant’s claim of the privilege against self-incrimination was unavailing. 13 I do not. reach a consideration of that issue because, as this court agrees, there is no basis for treating a claim' of the privilege against self-incrimination differently from any other objection to answer: 14 It therefore follows that even under Count 8, the fact finder must still weigh, on the one hand, the Committee’s statement advising that the daim of the privilege was not available, and, on the other hand, the Committee’s statements that it would not rule on objections. Thus, before this court can consider the validity of appellant’s claim of the privilege, it must first determine that the court below found that the’ witness had been clearly apprised of the Committee’s adverse ruling and afforded another opportunity to answer. 15
. 91 U.S.App.D.C. 344 , 203 F.2d 20 .
. 11 Stat. 155 (1867), as amended, 52 Stat. 942 (1938), 2 U.S.C.A. § 192 .
. Majority opinion, 91 U.S.App.D.C. 370 , 203 F.2d 50 , 51.
. J.A., p. 14.
. Id. at 12.
. J.A., p. 105.
. Majority opinion, 91 U.S.App.D.C. 370 , 203 F.2d 51 .
. Id., 91 U.S.App.D.C. 370 , 203 F.2d 47 .
. 91 U.S.App.D.C. 344 , 203 F.2d 33 .
. Majority opinion, 91 U.S.App.D.C. 370 , 203 F.2d 49 .
. 91 U.S.App.D.C. 344 , 203 F.2d 25 .
. Rogers v. United States, 1951, 340 U.S. 367 . 71 S.Ct. 438 , 95 L.Ed. 344 .
. See majority opinion, 91 U.S.App.D.C. 370 , 203 F.2d 51 , 52.
. Id., 91 U.S.App.D.C. 370 , 203 F.2d 48 et seq.
. See Quinn v. United States, supra, 91. U.S.App.D.C. 344, 203 F.2d 38 .