The opinion
PRETTYMAN, Circuit Judge
(concurring).
I concur in the result, and I agree with both of my brethren in the parts of their opinions dealing with the reception before the jury of the evidence relating to pertinency. Were it not for the unequivocal holding of the Supreme Court in the Sinclair case, I would think that, since pertinency is an element of this offense, it, like all other such elements, would be for the jury. Since the Supreme Court holds the issue is not for the jury, I agree that evidence which is not relevant to the issues before the jury and which is highly prejudicial to the accused on those issues, ought not be heard by the jury.
On the other point, concerning the accused’s privilege not to answer the question put to her, I find myself midway between my two brethren. I think that, in *850 so far as the answer to the question, “Did anyone in the State Department aid you in obtaining employment with the United Nations?”, depended upon data in the files of the United Nations or upon information derived from those files, it was privileged by the Charter and the Staff Rules and could not legally be revealed. To that extent the witness could and should have refused to answer. But it is conceivable that wholly apart from any files or information gleaned from them the witness had knowledge that someone at the State Department did aid her in getting employment. Some such matters are frequently known personally and altogether outside official channels. Information thus obtained was not privileged, and if this witness knew of any of that sort in her case she should have said so. If she did not know of any, she should have answered to that effect. As the event turned out, that was the view of the United Nations Secretariat and also the view later adopted by the witness. It seems to me that her initial position in response to the question was not fully protected.
At the same time it seems tó me that this witness’s course might not be deemed by a jury to be a refusal to answer. She said in reply to the question that she could not answer under the Staff Rules, etc. She applied to the Secretariat for a ruling, and when the ruling was received she answered the Subcommittee as far at it permitted her to do so. Her answer then was, in effect, that she did not know of any aid from State Department personnel, and she explained why. We discussed this question in a different context in Bart v. United States 1 and there pointed out, citing cases, that the offense of contempt for refusal to answer is a deliberate and intentional refusal. We remarked: “If a witness interposes an objection or query to the propriety of a question, e. g., its pertinency, he may not be refusing to answer.” 2 And again we remarked:
“Whether a witness means to refuse to answer is a question to be determined from all the circumstances. Like the element of intent in every criminal case it is a question of fact, determinable by .the jury, if there be a jury, under appropriate instruction and definition by the court.” 3 It seems to me that the same reasoning applies to the case at bar. The question whether Mrs. Keeney deliberately and intentionally refused to answer, or merely raised a question as to her ability to answer under binding legal compulsions, was a question to be determined by the jury from all the circumstances.
. 1952, D.C.Cir., 91 U.S.App.D.C. 370 , 203 F.2d 45 , certiorari granted, 1954, 347 U.S. 1011 , 74 S.Ct. 872 .
. 91 U.S.App.D.C. at page 373, 203 F.2d at page 48 .
. Ibid.