The opinion
DANAHER, Circuit Judge
(concurring) .
*846 I agree that the conviction should be reversed and a new trial be ordered. The error requiring this result stems from the failure to exclude the jury while highly prejudicial evidence was received to establish the element of pertinency.
From the very outset the jury heard the appellant linked to a nefarious, worldwide Communist movement, with her associates numbered among those perforrii-ing acts of espionage and sabotage even as they purloined secrets of the United States in favor of the Russian government. “[These matters] were of a character to inflame the minds of the jury against the defendant . . . and it would be a matter of grave doubt whether, by the most pointed and vigorous language, the court would have been able to lead the jury to cast it out of their minds . . .. [We] cannot but feel that the poison inherent in such evidence must have done its work.” Zinkhan v. District of Columbia, 1921, 50 App.D.C. 312, 314 , 271 F. 542, 544 .
That pertinency must be shown by the Government is clear, Bowers v. United States, 1953, 92 U.S.App.D.C. 79 , 81, 202 F.2d 447 , but the question as to the sufficiency of the evidence to establish pertinency is for the court, not the jury. Sinclair v. United States, 1929, 279 U.S. 263, 298, 299 , 49 S.Ct. 268, 273 , 73 L.Ed. 692 . There the Supreme Court, said:
“The question of pertinency under section 102 was rightly decided by the court as one of law. It did ■ not depend upon the probative value of evidence. That question may be likened to those concerning relevancy at the trial of issues in court, and it is not essentially different from the question as to materiality of false testimony charged as perjury in prosecutions for that crime. Upon reasons so well known that their repetition is unnecessary it is uniformly held that relevancy is a question of law. . . . And the materiality of what is falsely sworn, when an element in the crime of perjury, is one for the court.
“. . . The matter for determination in this case was whether the facts called for by the question were so related to the subjects cov-vered by the Senate’s resolutions that such facts reasonably could be said to be ‘pertinent to the question under inquiry.’ It would be incongruous and contrary to well-established principles to leave the determination of such a matter to a jury. [Citing cases.]” 1 (Emphasis supplied.)
Government counsel correctly recognized that pertinency is a matter for decision by the court, and before making his opening statement asked, at the bench, “if it is the Court’s plan to hear our pertinency testimony out of the hearing of the jury.” The trial judge replied: “I think I will hear all the testimony in the presence of the jury, but then I shall decide the pertinency question. I don’t think there is any necessity for excluding the jury unless counsel has any other views, in which event I shall be very glad to hear counsel’s views.” ******
Defense Counsel: “We will make that request, Your Honor, that it be heard out of the presence of the jury,” and in further colloquy added “We have no objection, of course, to his making a statement in respect to facts which are ultimately for your decision . . ..” Whether counsel thus invited the opening statement which followed or not, the outline of the Government’s case was inevitably highly prejudicial to the defendant. At its conclusion, the defense *847 moved for a mistrial because “the underground and overground Communist activities, and the acts of espionage, sabotage and subversive activities, and of Sil-vermaster and Ullman, are all intentionally prejudicial to the defendant and far outside the scope of the issues in this case.” The motion was denied. When the trial judge ruled during the bench conference that testimony as to perti-nency would be received in the presence of the jury, it is probable that he had no foreknowledge as to the nature of the evidence which the Government intended to offer. The opening statement, however, was permitted to be received by the jury without admonition or explanation of the purpose for which the appellant’s purported personal history and background were to be put in evidence. It must have had a disastrous effect so far as the defendant was concerned. The jury had been told that appellant had been very closely associated with Communist activities, that she had associated with important members of the Communist underground and overground, that she and her husband became close acquaintances and fraternized with one Silvermaster and one Ullman who were well known “as alleged espionage agents working for the Russian government in obtaining secrets from our Government,” that she had been active in the Institute of Pacific Relations whose ramifications were to undermine the security of the United States and to accomplish certain activities of the Institute in foreign affairs that would “line us and them up with the Soviet Union.” It seems scarcely possible that defense counsel who had requested that such proposed testimony be heard out of the presence of the jury could have expected any such opening statement as has been summarized. At its conclusion prompt objection was voiced which was renewed as various aspects of the case unfolded.
The Government called as its first witness a lawyer employed as a member of the professional staff of the Senate Committee on the Judiciary and after certain preliminary questions the following occurred :
“Q. Would you be good enough, before we go into her testimony, to explain the pertinency of her testimony to the purposes of the Internal Security Subcommittee, as contained in the resolution that authorized the creation of that subcommittee?
“In other words, what did the committee have in mind in seeking her testimony pursuant to the resolution?
“Mr. Donner. If Your Honor please, may I ask that this testimony be given out of the presence of the jury?
“The Court. No. I don’t see the necessity for that.
“Mr. Donner. Then I object.”
The witness testified that the Committee was attempting to learn a number of facts about the Institute of Pacific Relations, how it operated, what it sought to accomplish, and the degree to which it had accomplished it. “The Institute of Pacific Relations was an institution which had been taken over by Communists and was being operated for their purposes.” The Institute had sought to place and had in fact placed “its persons” in high places in government and elsewhere in positions of influence. The Committee came across the name of Mary Jane Keeney in a document which had been seized from the files of the Institute; the document indicated that appellant was active in the Washington Advisory Committee of the Institute; and “the Committee found that Mrs. Keeney had a long record of what appeared to be Communist affiliation — ”
“Mr. Donner. I object to this, Your Honor.
“The Court. Objection overruled. This testimony is not given as proof of any fact, but merely as proof of the pertinency of the inquiry )>
Defense counsel again insisted that the question of pertinency was a matter of *848 law for the court, and upon a ruling that the trial judge saw no reason for excluding the jury, defense counsel moved for a mistrial.
The witness continued that appellant in San Francisco prior to 1940 had attended a number of Communist meetings and after coming to Washington had entered a circle of acquaintanceship which included Communists and suspected Communists, numbering among her friends Nathan Gregory Silvermaster and Leonard Ullman. The Committee had “unevaluated” information that Mrs. Keeney had been placed in the United Nations with the help of persons in the IPR and the assistance of persons in the State Department.
Defense counsel renewed his motion for a mistrial and moved to strike the testimony and both motions were denied. That the admission of such evidence over appellant’s objections was highly prejudicial can not be doubted, and the rulings with reference thereto and denial of appellant’s motion for mis,-trial constitute reversible error. A new trial must be granted.
On the record presented we do not, in my view, reach the question of privilege. Appellant in her brief and in oral argument has urged us to adopt the sophistry which both before the Senate committee and the District Court she applied to the question: “Did anyone in the State Department aid you in obtaining employment with the United Nations?”
Cited to us are the United Nations charter, its rules and interpretations, and section 7 (b) of the International Organizations Immunities Act, 59 Stat. 669 , 22 U.S.C.A. § 288 et seq. The question asked does not lead us within the fold of privilege so predicated. There is not the slightest suggestion at any stage that by virtue of her official position the appellant gleaned knowledge from the official files as to how her employment came about. On the contrary, after her conviction, the appellant took the witness stand and was sworn and testified “. . . I do not know to whom the United Nations wrote for references, because that information is never disclosed to the applicant, to the Secretariat . . (Emphasis supplied.) 2
When a witness before the Senate committee, if appellant did not know the answer to the question, all she had to say was “I don’t know” — if she did not know. If, either before obtaining employment with the United Nations or after such employment had been terminated, she learned — other than from official sources —that someone in the State Department had aided her in obtaining employment she was bound to answer “Yes.” If she had personal knowledge — other than from official sources — that no one in the State Department had been of “aid” in *849 her procuring employment, she was bound to answer “No.”
In short, even if we were to reach the question of the claimed privilege, unless she acquired information by virtue of her official position during the period of her employment by the United Nations that someone in the State Department did aid her in obtaining such employment, she was bound to answer according to the fact. Whatever privilege may be said to stem from the charter and the staff rules and regulations of the United Nations would apply only with respect to information known to the witness by reason of official position, past or present.
The International Organizations Immunities Act, § 7(b), 59 Stat. 671 , 22 U.S.C.A. § 288d(b), provides: “Representatives of foreign governments in or to international organizations and officers and employees of such organizations shall be immune from suit and legal process relating to acts performed by them in their official capacity and falling within their functions as such representatives, officers, or employees . . ..”
(Emphasis supplied.) This witness was not subjected to suit or legal process relating to acts performed by her in her official capacity. There is no need to give strained and extended interpretation to the very useful Immunities Act which by its terms has no application here.
After trial when the very question was put to her, with her own particular qualification she answered “I don’t know.” She specified “that information is never disclosed to the applicant . . ..” When she applied for employment in the United Nations she “did not know anyone in the State Department.” “Q. Did anyone intercede for you? A. Not to my knowledge.”
The answer to the question was clearly within the power of the witness to provide, and a reading of her testimony in the Joint Appendix discloses that the jury might properly be asked to pass upon the issue as to her contumacy as alleged.
Although we are agreed that a new trial must be had, it is not to be understood that a trial judge must always exclude the jury when evidence is being presented with reference to an issue of law. A ruling as to exclusion of the jury would be a matter for the trial judge to determine in the exercise of his broad discretionary powers. Holt v. United States, 1910, 218 U.S. 245, 248 , 31 S.Ct. 2 , 54 L.Ed. 1021 . Cf. Model Code of Evidence, Rule 11 (1942), 9 Wigmore, Evidence § 2550 (3d ed. 1940). Where the issue as to pertinency, solely for the court, may be readily separable from other questions in the case, the judge might properly exclude the jury. Otherwise, the situation would call for careful instruction, and where evidence as to pertinency must be heard in connection with other issues to be resolved by the jury, proper admonition can be afforded together with an explanation of the limited purpose for which evidence as to pertinency must be so received. Here, however, in the absence of admonition and adequate explanation, we cannot doubt that the evidence previously outlined was highly prejudicial.
. Cf. Interstate Commerce Commission v. Brimson, 1894, 154 U.S. 447, 488 , 14 S. Ct. 1125, 1137 , 38 L.Ed. 1047 , where the Court said: “If, as we have endeavored to show, this proceeding makes a case or controversy within the judicial power of the United States, the issue whether the defendants are under a duty to answer the questions propounded to them, and to produce the books, papers, documents, etc., called for, is manifestly not one for the determination of a jury. The issue presented is not one of fact, but of law exclusively.”
. In the course of questioning by the trial judge the following occurred:
By the Court:
“Q. Did anyone connected with the 'State Department aid you in securing your job or your position with the United Nations? A. Your Honor, I don’t know, for this reason, and I am not quite sure what you mean by the word ‘aid.’
To me, when the question was put to me by the subcommittee, I interpreted the word ‘aid’ to mean recommend.
I do not know who did recommend me for the position in the United Nations. Since I filed a written application listing thereon the supervisors under whom I had worked for many years, I do not know to whom the United Nations wrote for references, because that information is never disclosed to the applicant, to tb“ Secretariat
If ‘aid’ means influence, intercession, or undue pressure of any kind, tbe answer is no, for so far as I know, at the time I applied for employment in the United Nations in 1948 I did not know anyone in the State Department. I made no effort to find out if I knew anyone. I did not write to anyone. I did not seek in any way to exercise any influence.
“Q. Well, specifically, did anyone in the State Department intercede for you or' urge that you be appointed? A. I cannot answer that question, Your Hon- or.
“Q. I am not now referring to inquiries written to persons whom yon gave as reference. What I mean is this, or what the committee no doubt meant was this: Did anyone intercede for you?
A. Not to my knowledge.”