Petitioners Brief — Russell v. United States

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Gthce- Sir;s rene x fh us. |

FILED

IN THE 3 ce

Supreme Court of the Auited States

OCTOBER sercasey 1961 *,

o 8.

— ‘

‘ *s

Norton Anrnony Russet, Petitioner,

Vv. ~~.

Unirep Sfates or America, Respondent.

~~ On Writ of Certiorari to the United States Court of Appeals for

the District of Columbia Circuit

BRIEF FOR PETITIONER

JosePpH A. FANELLI

Benepict P. Cortone

CorTTONE AND F'ANELLI :

1001 Connecticut Avenue, N. W.

Washington 6, D. C.

Attorneys for Petitioner

animal

Press or Brrow S. Apans, Wasnincton, D.C.

“Ry eognen

Page

SOI I aca eho ec ab ke he dba 4 chee 1

I ee nc. Ss is ba ww ok kk hbo 1

Questions Presented ..... wcccoctrstenptre 2

Statute Involved ..........-.. Ane eies ewsewe 4

NE okies cs SARS PPE RD res OE 4——

Summary of Argument .....................:. 17

PIII ii si oh eno x eae ad Kip cow ob e¥esneves 23

I. The Cunvictien was- Invalid because Peti-

tioner was deprived of his rights to Impar-

Sie I 5 gs ik See 6 ko oo 23

1. Petitioner’s right to impartial grand

BORG ar een e ah a Bie tasap ci eS 23

2. The grand jury Petitioner got .......... 29

3. The precise cofitention we make here .. 31

4. The Remedy for Violation of Petitioner’s

right to Impartial grand jurors ........ 38

- FF. The Conviction should be reversed because

~ the subject under inquirv and the pertinence

of the questions thereto were not particular-

en ten ks cadenel ext ata ke

purpose. At a minimum, Peti-

tioner was wrongfully — of a jury

benapenteeciren 2 SPO OS Aang Sapo wee ee $1 -

. ror nthe handling of the qrstion

(1) the issue of the committee rman’s

authority to appoint subcommittees was “

' @

ii Z Index Continued

Page

withheld from the jury; (2) the jury was

informed that the chairman had authority

to appoint subeommittees by hag oc agp

alone; (3) a. directed verdict for lack

sufficient proof of the appointment of a sub-

committee to hear appellant was denied ; and

(4) the jury was, in effect, instructed that

evidence of the appointment of a subcom-

mittee with Mr. Scherer as chairman would

suffice as proof of the appointment of a sub-

committee with Mr. Clardy as chairman .. 56

ow, The trial court should have directed a ver-

dict on all counts because the proof showed

that if defendant committed any crime of

contempt, the crime was committed, when,

before any of, the questions alleged in the

ptr

- it is not supported by the proof /of perti-

nence at

Conelusion ....... ‘Wad ea kha da eee ba one ca Hi

Application of United Electrical, Radio, and ay

Worker8, 111 F. Supp. 55 (SDN, 1958 23

Ballard v. United States, 329 U.S. 187 ...... - 30, 37

Barrenblatt v. United States, 360 U.S. 109 ....44, 45, ©

eoeeevereve cee ewpeeeeeeevr eee eeeeeaeet

eeeveeenevneveceev eevee eev evn eevee eeeeeenreee

Index Continued iii

redcs v. United States, 965 USB. 481 oo ss a 51

niga . United States, 287 Fed. 636 (C.C.A. 2

Brow mY. United States, 245 F(2) 549 (C.C.A. :

PES 56S bie A ee KEE ER EEE RS 6-00 Oo

gee United States, 222 F(2) 426 (C.C.A. 6,

- | 4 eee baegtiee tes Seen Gan ee gy soy aa

rs a See pe a ie See 25

Burton v. United States, 202 U.S. 344 .......... 42-43

esl v. United States, 1 FO) 3 314 (C.C.A. 8,

Carter Vv. Peres, TUS 448 26

Cassell v. Tezas, 339 U.S. 282 =... 2. ccc eee 23, 26, 37

gga v. United States, 238 F(2) 131 (C.C.A. 8,

Christoffel v. United States, 338 U.S. 84 ........ 60

Clawson v. United States, 114 U8. 477 ....::.- 25, 27

Cobbledick v. United States, 309 US. or pe TMG 24

Coblentz v. State, 164 Md. 558, 166 Atl. 45 (1933)- 38

Cole v. Arkansas, 333 U.S.. 196 oa ueauael oo cwres 47

Collier v. State, 104 Miss. 602, 61 So..689 ( 1913) | 38

Commonwealth v. Craig, 19 Pa. Super. 81 (1902) 28

Costello v. United States, 198 F(2) 200 (C.C.A. 2,

1952) cert. den. 344 U.S. 874 .............. 61, 62

Costello v. United States, 350 U.S. 359 .......... 26, 27

Crawford v. United States, 212 U.S. 183 ........ 31

Crowley v. United States, 194 U.S. 461 .......... 29

Davis v. United States; “49 F(2) 267 (C.C.A. 4,

1931) cert. den. 283 U.S. 859 ..............

Dennis v. United States, 339 U.S. 162...... , 17, 29, 31,

32, 33, 34, 36

Deutsch v. United States, 367 U.S. 456 ...... 22, 44, 64

Dodge v. United States, 258 Fed. 300 (C.C.A. 2, |

1919) cert. den. 250 Ri CL re hse so

Eisler v. Uni , 170 F(2Y 273 (C.C.A.

D.C., 1948) REIS Pa AT COC RIES

Emspak v. United States, 203 F(2) 54 (rev’d on

_ other grounds, $60 U.S 100) 3 59, 60

Ex Parte Bain, 121 US. 1 .......... 23, 24, 26, 37, 46

iv - Index Continued

Page

Ex Parte Frankfeld, 32 F. Supp. 915 (D.C.D.C.

MO eS rata nd boas c ovecedeeeneseses

Ex Parte Peart, 5 Cal. App. (2) 469, 43, Pac. (2)

Bie CE a wa tins xk oak ee ees ans na duee 23, 24

Er Parte United States, 287 U.S. 241 .......... 24

Flazer v. United States, 358 U.S. 147 .......... 51

Fontana v. United States, 262 Fed. 283 (C.C.A. 8,

pS RRS ER eee en er OTE TERE ROE Ry ~43, 44

Frank v. Mangum, 237 U.S. 309 ...............- 34

Frazier vy. United States, 335 U.S. 497 Sewcs 17, 29, a

Gibbs &: Stanton v. State, 45 N.J.L. 379, aff’d 16

WT Ri SO Ce hoes bck ee be Sv cnc tees 25

Gold v. United States, 352 U.S. 985 ........... 23

Hagner v. United States, 285 U.S. 427 ...2...... 43

Hale v. Henkel, “ES Sea Rees 23, 24

Hartson v. United States, 14 F(2) 561 (C.C.A. 2,

i ROMEO SOS UDO Ee SE 43

Hendricks v. United States, 223 U.S. 178 ....... 24

In re Chapman, WEN ORY fe a 49

In re Grand Jurors Ass’n, Bronz County, N. Y.,

Inc., 25 N.Y. Supp. (2) 154 (Sp. . Bronx

6 ME 3 NETS SPRY Sel ee eer gee pepe 28, 36

In re National Window Glass Workers, 287 Fed.

ris gg SIR! NS. 3 Relea cenieren eT ane 23, 24

Irvin ¥, Dewd, O66: US: TIT oo. ccc oc cece ces 34

Jarl v. United States,-19 F(2) 891 (C.C.A. 8,

f+ 8 a RE ee ee op peer Ce 43, 46, 47

Johnson v. United State:, 294 Fed. 753 (C.C.A. :

eS AI ree ee ree Oo pee: 45, 47

Keck v. United States, 172 U.S. 434 ..... Aen FE 42, 43

Keizo v. Hen ene ys ee BE cS asc ks skp aes 25

Kilbourn v. Thompson, 103 U.S. 168 ....*.....

Knauer v. United States, 237 Fed. 8 (C.C.A. 8,

as as ak a ok Pe se Once 42

Kotteakos v. United States, 328 U.S. 750 ....... 47

Lanzetta v: New Jersey, 306 U.S. 451 ....:..:.. 46

mage Unitcd States, 226 Fed. 420 (C. CA 5,

Index Continued ee

Page

Lawn v. United States, 355 U.S. 339 ............ 26

Lynch vy. United States, 10 F(2) 947 (C.C.A. 8,

BOD esas each eects peice sazieassis 43-44

McGrain v. Daugherty, 273 U.S. 135 ..........- 54, 57

Maley v. District Court of Woodbury County, 221

Iowa 732, 266 N.W. 815 (1936) ........... 23, 38

Martin v. United States, 299 Fed. 287 (C. C.A. 4,

WOE) FS. Fos Sv eesti ne Nea ic aveewegeesens 43, 45

Martin v. United States, 168 Fed. 198 (C. CA 8,

1) ne Se eT oe Peer rer oe,

Moore v. Dempsey, 261 U.S. 86 ..............-. 34

Morford v. United States, 339 U.S. 258 . iz 33, 34, 40

Naftzger v. United States, 200 Fed. 494 (C. C.A. 6,

No as Sven ako Ob ewe eea Ben bss 24, 46

N iron v. State, 68 Ala. 535 (1881) ............. 38

Orman v. United States, 207 F(2) 148 (C.C.A. 3,

jp ) BREE ae Ree er ee Pee Poe oe

Parsons v. Age-Herald Publishing Co., 181 Ala.

430, 61 Bo. S45 (IIB), cscs cao sees. 24

Pattick v. State, 16 Nabe. 330, 20.N. W. 121

CR oa ons shih baa oe etasas 28

_ Patterson v. United States, 222 Fed. 599, eet

ee, S58 Ue ci Sans cb ckncee ta sbiere 43

People vy. Bright, 157 Cal. 663, 109 Pac. 33

CII) Ci ees sce cee in bbe SNS eee 28

People. v. Cohen, 357 Ill. 198, 191 N.E. 276

CO 5 a eee se Be 28

People v. Landis, 139 Cal. 426, 73 Pac. 153 —

CRUE) | vp usccdi cuca eek one ss bc kedaes cs 28, 34

People v. Munson, 319 Ill. 596, 150 N.E. _280

gape SP ee ere a a 38

* People v. Wintermute, 1 Dak. 63, 46 N.W. 694

CORRE ak os sa a pales coe hie ce oa enon acc 28

Pierre v. Louisiana, 306 U.S. 354 .......... 23, 25, 26

Quinn v. United States, 203 F(2) 20 (C.C.A.D.C.,

1952), rev’d. 349 U.S. 155 ...:........ 36, 37, 54

Raley v. Ohio, 360 U.S. 423 .....-..... erat awe 51

Reece v. Georgia, 350 U.S. 85 .......,........-. 25

Reimer-Gross Co. v. United States, 20 F(2) 36

COMB GR os assess accu Sere Ser ree

vi oo Index Continued

Page

Remmer v. United States, 347 U.S. 227 ........ 36.

Sacher v. United States, 252 F(2) 828, rev'd. 356

sR OEM ee ss PG ok a es Si eek 44

Shelton v. United States ENOL SO) ace te eke 47

Sinclair v. United States, 279 U.S. 263 -. .49, 50, 54, 57 -

Spencer v. United States, 169 Fed. 562 (C. C.A. ’g,

BO a es A A ek

Stanley v. State, 171 Tenn. 406, 104 8.W. (2) 819

ROOT es et i a

State v. Anderson, 166 Atl. 662 (Gen. Sess., Del.,

MO ai is a wpe vk 25

State v. Barkley, 198 N.C. 349, 151 SE. 733

CR: eos eee eS aa 25

State v. Burney, 229 Mo. App. 759, 84 S.W.

(re a 24

State v. Rector, 158 8 . 212, 155 S.E. 385 |

CT eens ho oe coos ie ais - 25

State v. Richardson, 149 - 8. C. 121, 146 S.C:

CFG CGI) as soca ie bee ORS CES eo we 28

State v. Soileau, 173 La. 531, 138 So. 92 (1931).. 25

Stewart v. United States; 17°F (2) 524 (C.C.A. 9, °

BOGE 6 oes Nos oe hee hes “46

Stirone v. United States, 361.U8: 218 :. 20... 23,46 >

Strauder v. West Virginia, 100 U.S. 303 ...>.. 26, 32

Sweezey v. New Hampshire,.354 U.S. 234 ......3. 48

The State of Iowa v. Gilliek,/7 Towa 287 (1858)". .. 28

Thiel v. Southern Pacific Co., 328 U.S. 217. .26, 29, 37

- Toth-v. Quarles, 350 0.8.11 ...............006- 24

eTwumey V. Ohio, 273 U.S. 510 .2 0.2.0... cee ee 29, 37

‘Turk. v. United, States, 20 F(2) 129 (C. C.A. 8,

BO ee es es pede baie cna as 43

United States v. Adams, 3 FRD. 396 (S.D.. :

oa eos eas Uk oe boob ch bbs eR 39

United States v. Benson, 31 Fed. 896 (C. C.D.

WO RO iS Sac each ccs

United States v. Bop., 230 Fed. 723 (N.D. Cal.,

a eal Sais aS ey eG Sire einen Da 42, 43

United States v. Bryan, 339 U.S. 323 ......... 59, 60

- mal

Index Continued —_ : Vii

a — Sen

United States -v. Burns, 54 Fred. 351 (C.C

We. Wir W008) ks ‘6.4 45, 46

United States v. Cross, 170 F. Supp. 303 (D.C.

eA ADO: Ew ve CRU taS Foss be wees vee ee 55

United States v. Uvwikehenk. 92 U.S. 542 ...... 42°

United States v. Edgerton, 80 Fed. 374 (D.C. ~

BROW, SOT so ys ba ox ean ke cs 37, 38

United States v. Emspak, 95 F. Supp. 1010

(D.C.D.C., 1951) aff’d. 203 F(2) .54 (C.C.A.

D.C., 1952), rev'd. on other grounds, 349 U.S.

Oe sy oe ea vos Beek ee ea ks 25, 27, 40

United States v. Foster, 83 F. Supp. 197 (S. D.

Vag AON Wohin s oe oon bas ea eee ee 40

United States v. Fujimoto, 102 F. Supp. 890 (D.C.

ARIEL BOR) oy ck eng ence gh b eehe cee bae se 39

- United States v. Fuselier,46 F(2) 568 (W,D. La.,

pS SVE te Pe e= Seer Aon aa pion Pn net a MEN

United States’v. Gale, 109 US.65 oox is: 25, 38

‘United ey v. Gear, 293 Fed. 997 (App. D.C.,

ys sp RAIN Oat aes Ton ents Canis oe te eunee Snr aaa ee

United States v. Goggin, 1 Fed. 49 (C.C D., Wisc.,

Bary PEMA Chee uWis bh eliee ea oe dwee awa Ns 43

Oe D. La., 1875) CCU a CEA Ses th ow rk 5 25

United States, v. Hess, 124 U.S. 483 ......... 42, 43

United States v. Icardi, 140 F. Supp. 383 (D.C.”

Be SE ook i oe etek es 55

- United States v. Johnson, 919 U.S. 503 ...... S23, 24

United States v. Jones, 31 Fed. 725 (C.C.8. D. Ga.,\

BO ae a Se ets 27)38

United “Nae v. Jones, 69 "Fed. Rd (D. C. Nev.,

TO ae hs oe ho oh nih cees

United States v. Josephson, 165 FO) 82 (C.C.A. ;

2, 1947) cert. den. 333 U.S. 838 .:......... 61 .

United States v. Klaés, 166 FO) 3 373 (C.C.A. 3, ©

1) eee greens Gree cceeeceeees 47

. / Page >).

United States v. Knowles, 147 F. Supp. 19 (D.C.

D.C., anys rev’d. on other 280 F.

(2) 696 (C.C.A.D.C., 1960) ........ 23, 28, 39, 47 /

U —— v. Lamont, "236 F(2) 312 (C.C.A. 2, V

ptt ee Car ere ne oe ae eee ee eee tree

United States v. Lorch, Cr. No. ay (8.D. Ohio,

November 27, 1957, un a Suviawa ek 47, 49

United States v. Metcalf, Cr 3082 (S8.D. Ohio,

- October 3, 1955, unreported) ...........-..

United States v. Moran, 194 F(2) 623 (C. C.A,

- 1952) cert. den. 343-U.S. 965 ........5.....

Share Henan v. Neff, 212 — (C. C.A. 3,

Te a oi en ne OA eae ees oe coese

> United States v. Norris, 981 U.S. 619 ..s....... 46

United States v. Nunan, 236 F(2) 576 (C.C.A. 2,

-- 1956) cert. den. 353 US 912 ..............

United States v. Peck, 154 #. Supp. 603 (D.C.

BIA), TT eno eo ced he dvc ded Cancneiege 47

United States v. Remington, 191 wan 246

(CGA. DB TORI? Sei cos ox sisson 27, 34, 39

United States v. Roemig, 52 F. Supp. 857 UND.

5 EMS TOD ae ak ees bua hime densa ents 26, 37

United States v. Rumely, 345 U.S. 41 .......... 55

United States v. Simmork, 96,U.S. 360 ........ 42, 43

United States v. Stein, 140 F. Supp. 761 (S.D.

1 A SS eae ery renee 27

United State v. Strauss, 285 F(2) 953 (C.C.A. 5, ©

FEO ec ears Saw hee doe kaos ees Seas

U “ States v. Thompson, 144 F(2) 604 (C.C.A._

MED oe R GN Ci pee ae eRe dei Ohe eee

United States v. Wells, 163 Fed. 313 (D.C. Idaho,

1 ANRURIP YE spe Rene ne oneme nara Grek crear aren OAT AS 27, 38

United States v. Wood, 299 U.S. 123 ........... 31

Watkins ¥. United States, 354 U.S. 178. .22, 44, 47, 48, .

White ¥. United States, 67 F(2) 71 (C.C.A. 10,

WN ee 42, 43, 46

Wilkinson v. United States, 365 U.S. 399 ...... 45,

Index Continued : ix

' Page

Williams v. United States, 275 Fed. 129 (C.C.A.

<a ES cae bate Ses Ve a es eee ves (25

Ww ileow v. United States, 221 U.S. 361 ..........

_Wolpa v. United States, 86 F(2) 35 (C.C.A. 8,

1936) cert. den. 299 U.S. 611 .............. 43

Yates v. United States, 355 U.S. 66 , .21, 22, 61, 62, 63

MISCELLANEOUS

2 U.S.C. See. 192, R.S. 102 (52 Stat. 942) ....... 4

Be: Wigan os as bob a we ok ee ok ck 46, 63

18 U.S.C. (1946 ed.) See. soniges ol SRT 39

Bae Gr Soong ha oe aa obo ond ws 1

28 U.S.C. Sees. 1861 ff -........... Reo Seee. 25, 39

ae Te Oe, D008 oe eck nas os 25

48 Stat. 649 ....... SERIE Sry oy OOO Stee 25, 40

78 Cork. Wes UN TEM a cas coca wees beh 39

D. C. Code, Title 11, Sees. 1401 ff .............. .25

Fifth Amendment to the Constitution of the

United States ...9, 15, 19, 41, 46, 48, 49, 50, 53, 63

First Amendment to the Constitution ‘of the

United States .......... ....6, 7, 8, 18, 19, 21, 48,

49, 50, 51, 52, 53, 57, 60

H. Rept. 707, 73rd Cong., 2nd Sess. ...-.......... 39

H.R. 7748, 73rd Cong., 2nd Seas. ............:. 39

ee ee Se eee en ea eee 22, 64, 65

Moneta Survey of the Grand Jury System, 10

Ore. L. Rev. 116-118 (fo 3 BASES peeing 25, 26

Rule 6(b) Federal Rules of Criminal .

PINS oor RS ga Re ee ei hen cok 25

Rule 6(b) (2) Federal Rules of ido sees

i RE Sans as oa 0 i a ce oe 39

~ Rule 7(¢c) Federal Rules of Criesinal Sane

FE A a oo ke 41

Rule 42(a) Federal Rules of Criminal

PONS: 5 re ie ke 63

S. Rept. 585, 73rd ‘Cong., 2nd se REY FREES 39

Sixth Amendment to the Constitution of the |

United States ........... 19, 41, 42, 45, 48; 49, 50

“IN THE

Supreme Court of the United States

Octoser TeRM, 1961

No. 8

Norton ANTHONY Rvsse.., Petitioner,

v. aa

UntrTep States oF AMERICA, Respondent. /

BRIEF FOR PETITIONER

OPINION BELOW

The opinion of the Court of Appeals in affirmjng

Petitioner’s conviction is reported at 280 F(2) 688,

and is set forth at R. 166-167. TheDistrict Court ren-

dered no opinion.

JURISDICTION #

The judgment of the Court of Appeals affirming

Petitioner’s conviction was entered June 18, 1960. R.

168. The Petition for a Writ of Certiorari was filed

on July 15, 1960, and granted on June 19, 1961 (R.

169; 366 U.S. 960). The jurisdiction of this Court

rests on 28 U.S.C. 1254(1).

_ ,QRESTIONS PRESENTED

Petitioner was tried by jury and convicted on an in-

dictment for contempt of a Subcommittee of the House

Committee on Un-American Activities at a hearing

held in the Distriet of Columbia in November 1954. |

In this context, tlie questions presented are:

1. Whether in a case concerning communism leti-

tioner is entitled to a dismissal of the indictment upon

an uncontradicted showing that of the twenty-three

members of the grand jury eleven were employees. of

the Federal Government,and,two were employees of the

District of Columbia Gove t, and that such em-

ployees generally are in fact biased against a defendant

because of the pressures generated by official loyalty--

security programs; and if not so entitled, whether

upon such showing Petitioner was at least entitled to

a hearing to determine the extent of the actual bias in

fact among such thirteen grand jurors against Peti-

tioner.

2. Whether the indictment was required to state

what subject was under inquiry and the relationship

of the questions asked to that subject.

3. Whether Petitioner has been effectively deprived

of his right to a trial by jury because: -

- (a) The trial judge applied a conclusive presump-

tion that Petitioner’s testimony was demanded in aid

of a legislative purpose, although undisputed, objective

evidence showed that Petitioner’s testimony served no

- legislative purpose and was demanded orfly in order

to punish him for contempt; and

- (b) The trial judge personally decided the issue of

the authority of the Committee Chairman to appoint

subcommittees adversely to Petitioner as a matter of

law, although all the evidence on the issue was oral,

and there were no documen to interpret; and _

of the appointment of a subcommittee with *‘X"’ as

Chairman to sit in Dayton could be taken as proof of

the appointment of a subtommittee with ‘‘ Y"’ as Chair-

man to sit in Washington; and

(d) The trial judge refused direction of a verdict

for lack of sufficient proof of the appointment of the

Subcommittee of three which heard Petitioner, al-

though there\was no evidence at all as to the appoint:

ment of two of them, and the evidence of the appoint-

ment of the third of the three consisted solely of his

own testimony which was self-contradictory on the

point. 2

4. Where authority to a Committee Chairman to ap-

point subcommittees does not specify the method of

appointment can the Chairman validly appoint a sub-—

committee by mere telephone call with no record made.

5. Does a witness gommit contempt when at the out-

set of his second appearance he clearly refuses, as he

had on his first appearance, to answer any questions on

the subject of communism ; and, if an he be validly

tried and punished for each reiterated refusal to an-

swer specific questions on the subject of communism

which follow after his complete declinature.

6. Does the proof of pertinence at trial support the

conviction of Petitioner.’

1 On this point which was not raised in the Petition for Certiorari

Petitioner appeals to the power of the Court to pass on plain and

prejudicial error apparent on the face of the record.

STATURE INVOLVED |

2 U.S.C. Sec. 192, R.S. 192 (52 Stat. 942), as

amended, provides: ’

person who having been summoned as a

witness by the authority of either House of Con-

gress to give testimony or to produce papers upon

“any matter under inquiry before .. = any commit-

tee of either House of Congress, willfully makes

default, or who having appeared, refuses to an-

swer any question pertinent to the question under ~

inquiry, shall be deemed guilty of a misdemeanor,

punishable by a fine of not more thin $1,000 nor

less than $100 and imprisonment in a common jail

for ed less than one month nor more than twelve

mon

U—~

The indictment here » 3) was for contempt of a

Subcommittee of the House Committee on Un-Amer-

ican Activities at a hearing held in the District of

Columbia in November 1954. It alleges in separate .

counts, with one-question to each count, that Petitioner

unlawfully refused to answer the questions set forth.

Otherwise the indictment merely asserts the questions

to have been ‘‘pertinent to the question then under in-

quiry.”” ;

_ The questions on which Petitioner was convicted

were these:

1. Whether you did or whether you didn’t join [the

Communist Party] at that time, did he [Herbert Reed]

encourage you to join? [Count Two]

2. I want to know whether Herbert Reed had any-

thing to do with your getting inte the Communist

Party. [Count Three]

3. Did you have any knowledge of the existence of

that group [an organized group of the Communist

Party in Yellow Springs] in 1945 or 1946? [Count

Four]

By motion to dismiss the indictment (R. 7), motion

for hearing on qualifications of grand jurors (R. 5),

motion for a directed verdict or in the alternative for a

judgment of dismissal (R. 19), pertinent requests for

jury charges. (R. 21), all of which were refused or

denied (R. 15, 139, 149), by statement of points on

appeal to the Court of Appeals, and by Petition for

Certiorari, all of the questions presented were, with

one exception,’ unquestionably raised and preserved.

Petitioner was indicted in December 1954 (R. 2),

following more than seven years of official loyalty-

security programs (R. 10). Of the twenty-three mem-

bers of the grand jury which indicted Petitioner, eleven

were employees of the Federal Government (including

the Foreman who was employed by the Department of

State) and two were employees of the District of Co-

lumbia (R. 5). In support of his motions for dis-

missal of the indictment for lack of an impartial grand

jury, or for hearing on the qualifications of the grand

jurors, Petitioner presented proof consisting of the

uncontradicted affidavits of two experts in the field

(R. 12-13), to the effect that such employees generally

are in fact biased against a defendant in a case con-

cerning communism because of the pressu nerated

by official loyalty-security programs. The rts, Dr.

Maria Jahoda and Dr. Stnart W. Cook, Head of the

Department of Psychology, Graduate School of Arts

and Seience, New York University, both social psy-

2 See Fn. 1, p. 3.

_chologists, had conducted a study on the impact of

loyalty-security programs on Government employees in —

Washington, D. C. (R. 12-13). Petitioner offered, if

- hearing on grand juror qualifications were afforded, to

show by the testimony-of Drs. Jahoda and Cook, by

the testimony of other named experts ir the loyalty-

- security. field, and by the testimony of the grand jurors

concerned that such grand jurors were biased in voting

in favor of Petitioner’s indictment (R. 13-15). The

opportunity was not afforded (R. 15).

At the trial, the evidence on a second issue was also

not in dispute. The issue was whether Petitioner on

the occasion of the alleged contempt was required to

testify in aid of some legislative purpose or to com-

-» mit contempt for which he would ‘be punished. The

evidence follows.

The alleged contempt was in Washington in Novem-

ber 1954. In September of 1954, Petitioner, a resident

of the Dayton area, responded to a subpoena to appear

in Dayton, Ohio, before a Subcommittee of the House

Committee on Un-American. Activities (R. 33, 61).

Committee counsel called him then because he thought

Petitioner would cooperate and testify ‘‘or [he] would

not have called him, in‘all probability” (R. 68); and,

when Petitioner did not cooperate, Committee counsel.

to use his own words, ‘‘broke the questioning up and

did not follow through on it’’ (R. 68).

At Dayton, Petitioner claimed a First Amendment.

privilege, against disclosure of his ‘‘opinions, political

beliefs, and associations,’’ and declined to answer the

very first question asked of him which pertained to

communism. That question was whether as an under-

graduate at Antioch College Petitioner was aware of

_ a Young Communist League organization within the

student body (R. 61-62). On the ‘asis of the same

First Amendment privilege, Petitioner declined to an-

swer all questions concerning communism, and spe-

_ cifically questions concerning the circumstances under

which he had met one Herbert Reed; whether Peti-

_ tioner had paid dues to the Communist Party in Day-

ton before moving to Yellow Springs in 1948; whether

Petitioner was in the Communist Party at any. time

prior to moving to Yellow Springs in 1948; and whether

Petitioner is a member of Communist Party (R.

61-63). After these declinatures, Committee counsel

announced: ‘‘I have no further questions’’ (R. 63) ;

and Petitioner was completely excused (R. 63).

Although the Subcommittee at Dayton had started

with all three members present on the day of Petition-

er’s appearance, there was only one member left and

present by the time of Petitioner’s appearance to hear

his testimony (R. 61, 106). Committee counsel was

aware of this lack of a legal quorum during Petitioner’s

appearance, and had it in mind when he broke off his

questioning of Petitioner (R. 64, 107). a

Committee counsel testificd at the trial. At the close

of Petitioner’s appearance in Dayton, he had further

questions and expected to get a Committee ruling as

- to recalling Petitioner (R. 63-64). So he testified ; al-

though at Dayton he announced having no further ques-

tions, and permitted Petitioner to be completely ex-

cused (R. 63). Committee counsel thought that Peti-

tioner might not claim his First Amendment privilege

if ealled to testify again, because when served with

a new subpoena to appear in Washington in Novem-

ber Petitioner showed a desire to get in touch with a

Committee staff member (R. 64-65). However, the

subpoena was not served until after the making of the

decision to subpoena Petitioner-for his appearance ih

Washington; and Petitioner’s desire for a conference

was to change the stated time for his appearance (R.

65).

At the time of Petitioner’s appearance in Washing-

ton, the Chairman of the Committee group which heard

him announced that the shortness of time allotted to

the Dayton hearings had ‘“‘resulted in the necessity

of continuing that hearing by calling several witnesses

for further testimony”’ (R. 67). However, three wit-

nesses had testified at Dayton after Petitioner had tes-

tified ;\and one of them was a volunteer witness, un-

expected ail uninvited, who was permitted to testify

at his own request after the hearings had already been

closed (R. 67-68).

Two witnesses at Dayton, other than Petitioner, had

declined to answer questions on a First Amendment

claim of privil These declinatures were in the

presence of a | quorum. Neither witness was called

to Washington for further testimony. Both were cited

for contempt at Dayton and indicted there (R. 69-70).

Petitioner was the only Dayton witness called for a

further appearance at Washington; he was the only

Dayton witness who claimed a First Amendment privi-

lege in the absence of a legal quorum (R. 79).

At the Washington hearing, the Petitioner claimed

precisely the same First Amendment privilege against

forced disclosure of his “‘opinions and political be-

4iefs and associations’”’ (R. 66) as he had claimed at

Dayton. And’he made that claim at the very outset

of the hearing in declining to answer the very first

question which concerned communism (R. 66). The

taking of this stand by Petitioner in Washington ad- |

mittedly ended any hopes that he “‘might cooperate

with the Committee”’ and answer questions concerning

communism (R. 113). Immediately upon Petitioner’s

- general refusal at the outset to answer questions con-

cerning communism, the Chairman, Mr. Clardy, sought

and obtained a specific disclaimer from Petitioner of

any reliance on the Fifth Amendment (R. 66): and,

then, Committee counsel, in covering the same field of

questioning as at Dayton, went on to. ask the sixteen

questions which provided the counts in the indictment

(R. 3-4, 62-63, 67, 123-132). It was believed by the

Committee and Committee counsel that.at Washington

they had a legally competent body to receive Petition-

er’s declinature (R. 65).

Upon the foregoing facts, Petitioner moved for a

directed verdit on the ground that ‘‘the proof fails-to

show that in questioning defendant the Committee was

pursuing a legislative purpose [but] rather, the proof

shows that defendant was called to testify in order to

punish him for contempt” (R. 20), and upon the fur-

ther ground that ‘“‘the proof shows that if defendant

committed any crime of contempt, the crime was com-

mitted when, before any of the questions specified in

the indictment, he made it clear that he was not going

to answer any questions involving Communist Party

membership or activities on his part”? (R. 20). The

motion was denied (R. 139). The specific requests

of Petitioner for charges to the jury which would sub-

mit both issues were denied (R. 24-25). The Court

informed the jury that as a matter of law the “inquiry

was for a legislative purpose’’ (R. 156).

We turn to a summarization of the case on the two

lee ar wea: to appoint and action taken to ap-

of whether the three Congressmen, chaired by

Mr. Clardy, before whom Betitioner appeared in Wash-

ington were legally appointed as a Subcommittee of

the House Committee on Un-American Activities. The

summary follows. 6

The Rules’ of the House of Representatives, ap-

plicable to the House Un-American Activities Com-

mittee, provide: ‘‘A Comntittee may adopt rules under

which it will exercise its functions .*. . and may ap-

point subcommittees’’ (R. 134). Committee counsel

testified that there was no rule of the House on ‘“‘who

should be the one to appoint members of a subcom-

mittee’’ (R. 104). The practice of the Committee was

‘for the Chairman of the Committee to appoint sub-

committees; and, in-conformity with that practice, the -

. Committee in J anuary 1953 adopted a resolution au-

thorizing the Chairman to appoint subcommittees (R.

135). So Commi unsel testified; but no resolu-

‘tion was offered. (Né@ither the House nor the Commit--

tee has any rule with respect to the method by which

the Chairman should appoint subcommittees (R. 134).

The practice of the Chairman was to appoint subcom-

mittees by personal interview or telephone (R. 116).

Petitioner urged to no avail that the question of

the authority of the Committee Chairman to appoint

subcommittees was one of fact, and that hence the fore-

going evidence should be heard by the jury (R. 99,

103, 144). The Court excluded the jury (R. 91, 99,

103) ; refused a specific request for a charge submit-

ting the issue ofthe Chairman’s authority to appoint

subcommittees for jury determination (R. 23) ; and in-

1: Sees

formed the jury as a matter of law that the Committee

_ Chairman was authorized to appoint subcommittees,

and could do so by telephone (R. 156).

The group before which Petitioner appeared in

Washington had Mr. Clardy as Chairman, with Messrs.

Scherer and Walter as ondintty members (R. 91, 120).

All of the evidence on whether this Clardy group had

been appointed as a subcommittee by the Chairman

came from two Government witnesses, Messrs. Scherer

and Tavener. In rejection of Petitioner’s view that

all of his testimony should be passed on by the jury (R.

31, 32-33), Mr. Tavener, Committee counsel, testified

both in and out of the presence of the jury. He tes-

tified that at an executive Committee hearing in Au-

gust 1954, the Chairman appointed a subcommittee of

Congressman Scherer as Chairman with Messrs. Clardy

and Walter as ordinary members to hold hearings at

Dayton at any time prior to three weeks before the

election in the beginning of November (R. 115, 119).

This was out of the presence of the jury,(R. 120). In -

the presence of the jury (R. 120), Government coun-

sel emphasized ‘‘Clardy,’’ ‘‘Scherer”’ and ‘‘Walter’’ as

the names of -the three man group before whom Peti-

tioner appeared at Washington, and merely asked:

‘‘Are ©ongressmen Clardy, Scherer and Walter the

same members of the Un-American Activities Commit-

tee which you state were appointed by Chairman Velde

on August the 9th, 1954, at the time that the full com- -

mittee authorized taking hearings?’’ To which Mr.

Tavener simply answered: ‘“‘They are, yes’”’ (R. 120-

121).

Mr. Scherer, a member of the group before which

Petitioner appeard at Washington in November 1954, ©

testified on cross-examination that the Committee

Chairman had telephoned him during the noon recess

.on the day of, Petitioner’s appearance ‘‘and said that

he was appointing Mr. Clardy and Mr. Walter and my-

self, as the Chairman of the subcommittee, for the pur- .

pose of conducting the hearings that afternoon” (R.

87). Qn re-direct examination, Mr. Scherer, under the

guidance of Government counsel, also testified that Mr..

‘Clardy was to be-Chairman of the subcommittee for

the purpose of conducting thechearings that afternoon

(R. 89). -

Petitioner’s motion for a directed verdict because

of the lack of a sufficient showing of a properly con-

stituted- body (R. 19), was denied (R. 139). The trial

judge in his own charge on this issue stated that the:

jury need only find that ‘‘the Chairman of the full

committee had theretofore designated and appointed

Representatives Clardy, Scherer and. Walter as sub-

commitiee for the purpose of conducting such hear-

ings’’ (R. 157); and, further informed the jury that

they could find such appointment either in the execu-

tive session of the Committee in August or by tele-

phone on the day of Petitioner’s appearance (R. 158).

By this,instruction to the jury, the trial judge per-

mitted, indeed encouraged, the jury to find the appoint-

ment of the Washington subcommittee with Clardy as

Chairman from Mr. Tavener’s testimony of the August

appointment of a subcommittee. But- the jury was

kept from hearing that the August appointment was

of a Dayton subcommittee with Scherer as Chairman,

and hence irrelevant to the appointment of the Wash-

ington subcommittee chaired by Clardy.

The indictment did not specify the subject under in-

quiry (R. 3). At the beginning of Petitioner’s trial,

ee eet

a 2

43 ie “s

the Government stated its trial position to be that the

subject under inquiry was as broad as the powers con-

ferred upon the Committee by H. Res. § which estab-

lished it; but that the Goverriment d also offer

* proof of “‘special pertinency.’’* Purs to the an-

nounced position of the Government as to the subject

under inquiry, Committee Counsel testified that the

‘particular purpose of the Committee’’ as announced ~

by the Chairman at the outset thé hearings in which

Petitioner testified was ‘“Communist Party activities

in the labor movement in industry, in educational in-

stitutions,’’ ‘‘the leadership in the United Electrical,

Radio and Machine Workers of America in the Dayton

area,” and “‘particularly’’ the strike at the Univis Lens

Corporation™ According to Committee counsel the

foregoing ‘‘summarizes the purpose of the hearing”’ at

which Petitioner’s contempt is. claimed (R. 34-35).

But, on motion of the defense, Committee counsel’s

statement of the subject under inquiry was striken so

far as it did not conform to the Chairman’s announce-

ment at the outset of the hearings (R. 37).

The Government introduced. the Chairman’s an-

nouncement of the subject under inquiry. That an-

*The Government’s exact statement on the subject was (R.

43):

; v 8.

It is the position of the Government that this -particular

committee may call anyone available to it as a witness to

inquire about matters that have to do with its resolution, that

is, subversive activities, no matter who that person may be,

because it has been held that personnel-is part of the subject,

and the numbers of persons that are engaged in that activity

or that know about it would be possible sources of information.

In spite of that position, that we do that, we also feel that we

are entitled, nevertheless, to offer proof of special pertinency.

nouncement (R. 38-42), made at the beginning of the

series of hearings in which Petitioner testified, went as

follows: A summary of H. Res. 5; a reference to the

cold war with Russia and Communist China being the

cause of the Committee’s investigation of the ‘‘Commu-

nist conspiracy’’; the authorization by Congress of 160

billions for the nation’s security; the observation that

one ‘‘Communist agent’’ within our borders is more

pind Sar than 10,000 enemy troops; the observation

that the Kremlin has taken 600 million people behind

’ the iron curtain by “‘boring from within’’; a recitation

of Committee activities atid communist objectives, and

what ~‘Mr. Average American’”’ has | as a re-

sult; a recitation of some subjects in which “‘the Com-

mittee as such has no interest” as, for example, “‘the

labor movement”’; the Committee’s being ‘‘engaged . . .

in throwing light upon the nefarious and subtle activi- -

ties of those individuals who are promoting the Com-

munist conspiracy so that . . . the average American

may know them’’; a denial of exaggeration of ‘‘the

Communist danger’’; the bad faith of witnesses who

invoke the Fifth Amendment; and the pleasure of the -

Committee im the passage by Congrees of an immunity

law recommended by it. The Chairman did conclude

with a statement that “for some time there has been

a rather intense controversy in the Yellow Springs

area’’ and that “complaints . . from the Dayton-

Yellow Springs area’ resulted ; in the hearings about

to start (R. 42). But neither the Chairman, nor any-

one else, ever stated what the ‘‘rather intense contro-

versy’’ was; and the defense’s questioning directed to

eliciting what ‘‘the complaints from the Dayton-¥ellow

Springs area”’ were about was prohibited on successful

objection by the Governmentf ‘‘a fishing expedition”’

(R. 80).

In proof of “‘special pertinency,’’ the Government

introduced the testimony of two witnesses, Strunk and

Wornstaff, who had preceded Petitioner at the hear-

ings. Strunk, a member of the Communist Party in

Dayton at the request of the Federal Bureau of In-

vestigation, had testified (R. 43-50) that the main

objective of the Communist Party in Dayton was in-

filtration in labor unions and building up strikes (R.

48). As to-Petitioner, Strunk had stated that he was

a member of the Communist Party in Dayton before

moving to Yellow Springs at some time prior to 1950

(R. 48-49). As to Herbert Reed (a name involved in

two of the three counts on which Petitioner Was con-

victed), Strunk merely identified him as a Communist

Party officer who had already left Dayton when Strunk

became a member of the Communist Party in 1944

(R. 46, 49). Wornstaff, President in 1948 of Local

678, U.E.-C.I.0., had testified (R. 50-56) to aspects,

Communist and otherwise, of the Univis Lens Corpora-

tion strike in which his Local was engaged in 1948.

His only reference to Petitioner was to state that Pe-

titioner is not a member of sagen bee (R. 54). There

is no mention of Herbert in Wornstaff’s

testimony. ‘

In furthér proof of subject under inquiry and saad:

nence, the Government introduced portions of the Com-

mittee’s Annual Report for 1954 (R.57). The Annual

Report (R. 57-60) sets forth the legislative status of

recommendations made by the Committee on: capital

punishment for peace time espionage; immunity for

certain witnesses; admissibilty of wiretapping evi-

dence; elimination of Communist Party control over

certain labor unions; withdrawal of military commis-

sions from persons claiming the Fifth Amendment;

“outlawing of the Communist Party; and requiring

”

Government contractors to supply affidavits of non-

membership im the Communist Party. With reference

to the Dayton hearings, the Annual Report specifically

stated that those hearings were a continuation of ‘‘the

committee’s investigation of Communist infiltration in

basic industries throughout’the United States” (R.

58). Nevertheless, the Report goes on to state that

(R. 58-59): “‘During your committee’s hearings in

Dayton, Ohio, several witnesses connected with various

institutions of higher learning in the Upiited States

were subpoenaed.’’ Those witnesses included a Mr.

Metealf who admitted his participation in a Commu-____--

nist group at Antioch College in 1945 but refused to

name his associates (R. 59).

Finally, as to subject under inquiry and pertinence,

Committee Counsel testified that of the matters en-

trusted to the full Committee no particular subject was

singled out for the Dayton hearings (R. 115).

Such is the whole of the Government’s proof at trial

so far as it was offered for the purpese of showing sub-

ject under inquiry and pertinence. The trial judge

refused to direct a verdict (R. 139). *He ruled twice

that the questions on which Petitioner was convicted

were ‘‘pertinent to the subject under inquiry”’.(R. 132,

138), and so instructed the jury (R. 156), without in-

dieation of what he believed the subject under inquiry

to be. The Court of Appeals in affirming Petitioner’s

conviction had only this to say on the point (R. 167):

“The judge determined here that the questions were

pertinent, and we find no ground on which to disagree.”’

The sentence on each of Counts Two, Three, .and

Four was thirty days’ imprisonment and a fine of Five

Hundred Dollars, ‘‘said sentences . . . to run coneur-

rently’’ (R. 29). ‘

SUMMARY OF ARGUMENT

It was Petitioner's right to be put to trial only upon

indictment by the Grand Jury. Grand Jurors, no less

than Petit Jurors, are required to be impartial and

to have the appearance of impartiality. Thirteen of

the 23 man grand jury here were government em-

ployees. The indictment against Petitioner was re-

turned in December 1954, when the latest of more than

seven continuous years of official loyalty-security pro-

grams for government employees was still current.

By that time, as our uncontroverted proof at trial

showed, government employees in general were so in-

timidated by the fear of personal security consequences

as to be ineapable of passing unbiased judgment on

charges involving communism. The presence of a ma-

jority of such government employees on the grand jury

here seriously prejudiced Petitioner; for the grand

jury had to adjudicate the existence or absence of

probable cause on at least two difficult issues—a _ perti-

nent subject of inquiry, \amid a welter of conflicting

possibilities ; and a legi tive purpose in the demand

i This is just such a case

as the opinions of the Court in Frazier, Dennis, and

1 Morford envisaged. Petitoner’s motion to dismiss the

indictment for lack of an unbiased grand jury should

have been granted.

At a minimum, Petitioner was unquestionably en-

titled to the alternative he requested in May 1956, of a

hearing to determine the existence of actual bias in the

thirteen government emplovees who sat on the grand

jury. Because of the change in the Washington lov-

alty-security climate since 1956, we respectfully sug-

gest that the proper remedy today for failure to accord

Petitioner such a hearing in 1956 is the dismissal of

the indictment.

IL.

The indictment merely used the words of the statute

in charging that the questions which Petitioner refused

to answer “‘were pertinent to the question then under

inquiry.”” The failure to specify ‘the question then

under inquiry” vitiates the indictment. ‘shar gal

ling precedunts in this Court requiring that

edi;

tf At [iti

o [:

i.e. the question under inquiry,

tien oa etian ego sim

it i

different to the trial judge or reviewing Court. That

the questions asked of Petitioner invaded his normal

First Amendment rights is al] the more reason for the

Court to insist upon the grand jury's statement of the

19 ms

Finally, if, in this connection, Petitioner's rights un-

der the First, Fifth, and Sixth Amendments are to be

with indictments Specifying no question under inquiry,

the seales must incline heavily on Petitioner's ‘side,

conceded at the trial, there as no hope of Pe-

titioner’s answering the indictment questions. All of

_ purpose

Coe anishing him for contempt and not to get infwrnn

tion in aid of a legislative - The decisions do

leireriude adjudication of the issue of punishment

legislative aid. Rather’ the decisions require consid-

IV.

x ;

Under this heading, we summarize four separate but a4

connected reversible errors made at trial in connection

with determination ef the legality ef the Washington

group which heard Petitioner.

Admittedly, the Congressional group before whom

the ajteged contempts were committed were appointed

‘as’ » Subcommittee by the Chairman of the full Com-

mittee, or they were not appointed at all. The Chair-

man’s authority so to appoint was a contested issue at

the trial. The evidence on the issue,.all oral, was in

conflict. Credibility was important. The issue was a

factual one. Determination of-it rested essentially on

whether, in the face of testimony that only the full

Committee could appoint subcommittees, a Government

witness’ was to be believed in his assertion that the Com-

mittee had adopted a resolution (ever produced)

authorizing the Chairman to appoint subcommittees.

_ Nevertheless, the trial judge decided the issue as ».

matter of law, and adversely to Petitioner. aah

was a

s ~s

deprivation of Petitioner’s right to a jury trial

prejudicial error. P

Ga ths Sets Bek, the authority, if any, conferred ‘

upon the Chairman to appoint subcommittees failed to

specify the method of appointment, and the Washing-

‘ ton group which heard Petitioner were appointed as

a Subcommittee by telephone, if appointed at all. In

‘ these circumstances, the trial judge charged the jury

that appointment of the subcommittee by telephone

would be legal. This Court should hold that Commit-

tee authority to its Chairman to appoint subcommittees

without specification of method is limited to a method

more formal and definitive than a mere telephone call

without any record made. No less is appropriate when

compulsion upon pain of jailing for contempt is used

in a First Amendment area.

The Washington group which heard Petitioner had

Mr. Clardy as Chairman and Messrs. Walter and

Scherer as members. The whole of the Government’s

proof on the appointment of that group consisted of:

(1) a statement by Mr. Scherer of his appointment to

a subcommittee of which Mr. Clardy was to be Chair-

man; (2) a contradictory statement by the same Mr.

Scherer that his appointment was to a subcommittee of

which he was to be Chairman; and (3) no evidence at

all of the appointment of Messrs. Clardy and Walter.

In refusing a directed verdict, the trial court er-

roneously permitted the jury to engage in speculation

on ‘the appointment of the Washington group that

heard Petitioner.

The trial court plainly wcimatied a fourth piaitalin

error in instructing the jury that the appointment. of

the Washington group with Mr. Clardy as Chairman

could be derived from the appointment of a subcommit-

tee with Mr. Scherer as Chairman to hold hearings i in

Dayton.

The contempt, if any, committed by Petitioner was

complete when he refused to answer any questions con-

cerning communism. Thereafter, the subcommittee

could not multiply the contempt, and the punishment,

by asking the indictment’s fhdividual questions con-

cerning communism and repeatedly eliciting the same

refusal. Yates v. United States, 355 U.S. 66, and other

authorities cited.

True, the contempt, completed on Petitioner’s re-

fusal to answer any quéstions concerning communism,

continued through each individual question on which

he thereafter declined. Yates v. Untted States, supra.

Petitioner, however, had a right to be tried only upon

the indictment of the grand jury. The indictment did

not charge Petitioner with one continuing contempt,

but alleged sixteen separate contempts which under

Yates were not punishable. Petitioner of venedips been

afforded the opportunity of meeting a c of one

continuing contempt. His conviction of multiple, in-

dividual contempts cannot, consistently with Due

Process, be now sustained on the basis of one con-

tinuing contempt that was never charged.

VI.

The Government was required to prove a subject

under inquiry. Deutch v. United States, 367 U.S. 456.

For a subject under inquiry the Government relied on

H. Res.‘5, the resolution which established the Com-

mittee. But H. Res. 5 cannot validly serve as the sub-

ject under inquiry. Watkins v. United/States, 354

U.S. 178. At trial, the Government oh a num-

ber of possible subjects of inquiry. But none pf these

was connected to the indictment questions, or relied on

in this Court by the Government. Instead,

ernment now claims a subject under inquiry which was

not offered as such at trial. In these circumstances,

the trial court rather plainly found pertinence on the

invalid basis of H. Res. 5 as the subject under inquiry.

In any event, no other subject was proven beyond a

reasonable doubt. A verdict should have been directed

as requested by Petitioner.

ARGUMENT

L The Conviction Was Invalid Because Petitioner Was Deprived

of His Rights to Impartial Grand Jurors.

1. Petitioner’s right to impartial grand jurors.—It

was Petitioner’s right to be put to trial only upon in-

dictment by the Grand Jury. 2 U.S.C. See. 194; Con-

stitution, Art. V. The indictment of Petitioner; like

any indictment, was “‘no more than an accusation.”

See p. 126 of Brief for the United States in Gold v.

United States, 352 U.S. 985, No. 137, Oct. Term 1956;

United States v. Remington, 191 F(2) 246, 252 (C.C.A.

2, 1951) ; United States v. Knowles, 147 F. Supp. 19, 21

(D.C.D.C., 1957). But it does not follow that the com-

position of the Grand Jury matters not. This Court

rejects the contention that who is on a grand jury is

immaterial. Cassell v. Texas, 339 U.S. 282; Pierre v.

Louisiana, 306 U.S. 354.. The Grand Jury is not an

adjunct of the prosecutor’s office.‘ Established in

Anglo-Saxon institutions since Magna Charta, the

Grand Jury has continuously served through the cen-

turies to protect the citizen against being put to trial

upon prejudiced and unfounded accusations.’ The

* Stirone v. United States, 361 U.S. 212, 217; Ex Parte Bain,

121 U.S. 1; In re National Window Glass Workers, 287 Fed. 219

(N.D. Ohio, 1922) ; Stanley v. State, 171 Tenn. 406, 416, 104 S.W.

(2) 819, 822 (1937); Ex Parte Peart, 5 Cal. App. (2) 469, 473,

43 Pac. (2) 334, 336 (1935).

* Ex Parte Bain, 121 US. 1, 11; Beavers v. Henkel, 194 U.S. 73,

84; Hale v. Henkel, 201 US. 43, 61-62; United States v. Johnson,

319 U.S. 503, 513; Application of United Electrical, Radio, and

M Workers, 111 F. Supp. 858, 866 (S.D.N.Y., 1953); Maley v.

District Court of Woodbury County, 221 Towa 732, 734, 266 N.W.

815, 817 (1936).

Grand Jury is no less than a judicial body,* which as

a “part of the judicial process’’’ for ‘‘the determina-

tion of guilt or innocence’’* is charged with conduct-

ing a‘ “judicial. inquiry’’® to judge conclusively

whether probable cause exists for the trial of a citizen

in a criminal case.” Since the function of adjudica-

tion of probable cause performed by the Grand Jury

‘‘forms a vital feature of the federal system of criminal

justice, the law governing its precedures and the ap-

propriate considerations for determining the legality

cf its actions are matter of first importance.”” See.

opinion of Mr. Justice Frankfurter for the Court in

United States v. Johnson, 319 U.S. 503, at 507. Be-

cause of ‘considerations such as these, ‘‘this Court over

the past fifty years has adhered to the view that valid

grand jury selection is a constitutionally protected

right.” See opinion of Mr. Justice Clark for the Court

* Toth v. Quarles, 350 U.S. 11, 16; Cobbledick v. United States,

309 U.S. 323, 327; Wilson v. United States, 221 U.S. 361, 377;

United States v. Neff, 212 F(2) 297 (C.C.A. 3, 1954) ; Naftzger v.e

United States, 200 Fed. 494, 497 (C.C.A. 8, 1912) ; In re National

Window Glass Workers, 287 Fed. 219 (N.D. Ohio, 1922) ; Parsons

v. Age-Herald Pub. Co., 181 Ala. 439, 446, 61 So. 345, 348 (1913) ;

State ¥. Burney, 229 Mo. App. 759, 767, 84 S.W. (2) 659, 664

(1935); Ex Parte Peart, 5 Cel. App. (2) 469, 473; 43 Pac. (2)

334, 336 (1935). _

' See Cobbledick v. United States, 309 U.S. 323, 327.

*See Toth v. Quarles, 350 U.S. 11, 16.

* Cobbledick v. United States, 309 U.S. 323, 327; Wilson v.

United States, 221 U.S. 361, 377; Hale v. Henkel, 201 U.S. 43, 66;

Beavers v. Henkel, 194 U.S. 73, 84; United States v. Neff, 212

F(2) 297, 301 (C.C.A, 3, 1954).

° Ex Parte United States, 287 U.S. 241, 250; Blair v. United

States, 250 U.S. 273, 282; Hendricks v. United States, 223 US.

178, 184; Beavers v. Henkel, 194 U.S. 73, 84; Ex Parte Bain, 121

U.S. 1, 12.

in Reece v. Georgia, 350 U.S. 85, 87. A Grand Juror

has always been subject to disqualification in the Fed-

eral Courts," and in State Courts, too.”

And the Grand Juror, no less than his twin, the Petit

Juror, to whom he is generally assimilated,” is required

" Crowley v. United States, 194 U.S. 461; United States v. Ham-

mond, 26 Fed. Cas. 99. (C.C.D..La., 1875) ; Rule 6(b) of the Fed-

eral Rules of Criminal Procedure; see United States v. Gale, 109

US. 65, 69-70; Keizo v. Henry, 211 U.S. 146, 149; and 48 Stat.

649.

12 State v. Barkley, 198 N.C. 349, 151 S.E. 733 (1930) ; State v.

Rector, 158 S.C. 212, 155 S.E. 385 (1930); State v. Soileau; 173

La. 531, 138 So. 92 (1931) ; see Gibbs & Stanton v. State, 45 N.J.L.

379, 382, aff’d. 46 N.J.L. 353 (1884) ; Statéw. Anderson, 166 Atl.

662, 664 (Gen. Sess., Del., 1933). ee

” The Grand Juror decides probable cause with Siipest to -the

same issues on which the Petit Juror decides guilt. The federal

statutes provide but one set of éatutory qualifications (28 U.S.C.

Sees. 1861 ff.), and one method of selection from a common list -

(28 U.S.C: See. 1864; D.C. Code, Title 11, Sees. 1401 ff.) for

Grand Juror and Petit Juror alike. A majority of the States do

the same. See Wayne IL. Morse, A Survey of the Grand Jury

System, 10 Ore. L. Rev. 231. ‘‘Statutes covering jurors,’’ with-

out specification of whether grand or petit, are held to apply to

grand jurors as well as petit jurors. Clawson v. United States,

114 U.S. 477; Williams v. United States, 275 Fed. 129 (€.0.A. 9,

1921) ; Spencer v. United States, 169 Fed. 562 (C.C.A. 8, 1909).

" ciples which forbid discrimination in the selection of petit

juries also govern the selection of grand juries.’ See Pierre v.

Louisiana, 306 U.S. 354, 362. Early in our history, Chief Justice

Marshall equated. grand jurors to petit jurors on the matter of

grounds for challenge. 1 Burr’s Trial, 38. And not long ago, it

was stated that ‘‘in a particular case Government employees serv-

ing as Grand or Petit Jurors might, be barred for implied bias

when circumstances are properly brought to the Court’s attention

which: convince the Court that Government employees would not

be suitable jurors.”’ See United States v. Emspak, 95 F. Supp.

1010, 1012 (D.C.D.C., 1951), aff'd. 203 F (2) 54 (C.C.A.D.C.,

1952), rev’d. on other grounds, 349 U.S. 190.

to be impartial. The®Grand Juror is so pledged. See

the opinion of Mr. Justice Black for the Court in Cos-

tello v. United States, 350 U.S. 359, 362; Wayne L.

Morse, A Survey of the Grand Jury System, 10 Ore. L.

Rev. 116-118 (1931). This Court has noted the ‘‘right

to a fair and impartial grand jury’”’ (Cassell v. Tezas, . .

339 U.S. 282, 298), and in specifying the requirements

_ *. of a valid indictment insists upon a “nonbiased grand

=_ jury’? (Lawn v. United States, 355 U.S. 339, 349) or

“unbiased grand jury”’ ¢Costello v. United States, 350

U.S. 359, 363). The decisions invalidating convictions

on indictments by grand juries from which negroes,“

or women,” have been excluded are surely based upon

‘‘assuring a diffused impartiality.”” See Thtel v.

‘Southern Pacific Co., 328 U.S, 217, 227 (opinion of Mr.

Justice Frankfurter dissenting but not on this point) ;

Cassell v. Texas, 339 U.S. 282, 287; and Strauder v.

West Virginia, 100 U.S. 303, 309. In the federal

courts, at least, there has never been any substantial

‘doubt that,grand jurors are required to be impartial.

See Strauder v. West Virginia, 0 U.S. 303, 309

- (Reason given for reversal of conviction where Negroes

were excluded from grand jury was that “prejudices

often exist against particular classes in the community,

which sway the judgment of jurors.’’) ; Ex Parte Bain,

121 U.S. 1, 11 ies indictment itself is designed to pro-

“Cassell v. Texas, 339 US. 282; Pierre v. Lowisiana, 306 US.

354; Carter v. Texas, 117 U.S. 442; Streuder v. West Virginia,

100 U.8. 303.

% Ballerd v. United States, 329 U.S. 187; United States v.

Roemig, 52 F. Supp. 857 (N.D. Towa, 1943); and cf. Thiel v.

Southern Pacifie Co., 328 U.S. 217 (exelusion of daily wage earners

from petit jury).

‘?

2 y 7

° a7 [

tect against ‘unfounded accusations . . . prompted by

partisan passion.’’) ; Costello v. United States, 550 U.S.

359, 364 (Mr. Justice Burton in a concurring opinion

states: ‘‘I assume that the Court would not preclude

an examination of grand jury action to ascertain the

existerite-of bias or prejudice in an indictment.’’);

Clawson v. United States, 114 U.S. 477 (Statute pro-

viding for exclusion in a bigamy case of all ‘‘jurors’’

believing in bigamy held to apply to grand jurors be-

cause grand jurors holding such a belief would be as

biased as petit jurors of the same belief); United

States v. Nunan, 236 F(2) 576, 593 (C.C.A. 2, 1956),

cert. den. 353 U.S. 912 (Refusal of grand jurors to be

intimidated by “‘legislative sound and fury’’ com-

mended) ; United States v. Remington, 191 F(2) 246,

- 252 (C.C.A. 2, 1951) (Biased grand jury foreman

might exercise undue influence requiring quashing of

indictment) ; United States v. Stein, 140 F. Supp. 761,

767 (S.D.N.Y., 1956) (Indictment to be valid must be

returned by unbiased grand jury); United States v.

Emspak, 95 F. Supp: 1010, 1012 (D.C.D.C., 1951),

aff’d. 203 F(2) 54 (C.C.A. D.C., 1952), rev’d. on other

grounds 349 U.S. 190 (Grand Jurors can be barred for

implied bias) ;,Umited States v. Wells, 163 Fed. 313,

329 (D.C. Idaho, 1908) (‘‘Unbiased equipoise”’ is a

‘‘principal feature’’ of the grand jury) ; United States

v. Jones, 69 Fed. 973, 975 (D.C. Nev., 1895) (Grand

Juror can be barred for bias) ; United States v. Jones,

31 Fed. 725, 727 (C.C.S.D. Ga., 1887) (One biased

grand juror vitiated the indictment) : Untted States v.

Benson, 31 Fed. 896, 900 (C.C.D. Calif., 1887), (Mr.

Justice Field states that Federal Courts are not re-

stricted to state disqualifications of grand jurors but

can always bar grand jurors biased by intimidation.”

In some respects, the achievement of justice in the

administration of the criminal law requires impartial-

ity more of the Grand Juror than the Petit Juror. The

Grand Juror is more likely to succumb to prejudice,

fear, or partiality. Unlike the Petit Juror, he works

directly with the prosecutor, and does not have the

immediate presence and assistance of an impartial

judge and counsel for both sides. Partiality stands

out less in his large group of 23.. The Petit Juror

knows that his own vote is required for conviction.

With that individual responsibility, the Petit Juror

may succeed in surmouiiting his fears. Contrariwise,

the Grand Juror knows that indictment can be had

without his own vote, and that a petit jury will pass

upon the case in its turn. In these circumstances, it is

all too easy for the frightened Grand Juror to see no

compelling reason for “sticking his neck out’’ by vote

%* A number of cases in the state courts are in accord. Indict-

“ments are invalidated because of the participation of but one

biased grand juror. The State of lowa v: Gillick, 7 Towa 287%,

(1858) *People v. Wintermute, 1 Dak: 63, 46 N.W. 694 (1875) ;

People v. Landis, 139 Cal. 426, 73 Pac. 153 (1903); People v.

Bright;,157 Cal. 663, 109 Pac. 33 (1910) ; see Patrick v. State, 16

‘Nebr. 330, 20 N.W. 121 (1884); Commonwealth v. Craig, 19.Pa.

Super. 81 (1902); State v. Richardson, 149 S.C. 121, 123, 146

8.E. 676, 677 (1928) ; People v. Cohen, 357 Ill. 198, 200, 191 N.E.

276, 277 (1934) ; In Re Grand Jurors Ass’n., Bronz County, N.Y.,

Ine., 25 N.Y. Supp. (2) 154 (Sp. T. Seen f., 1941). In view of

the authorities cited in the text and in this footnote, the statement

in United States v. Knowles, 147 F. Supp. 19, 21 (D.C.D.G., 1957),

rev’d. on othér grounds, 280 F(2)°696 (C.C.A.D.C., 1960) that the

basic theory of a grand jury — not require er can ortly

be regarded as a sport.

29°

and argument against an indictment which he per-

sonally knows to be unwarranted.

Petitioner was plainly entitled to impartial grand

jurors. And further, in order to avoid injury to the

jury system by an unseemly use of grand jurors lack-

ing the appearance of impartiality, the grand jurors

who indicted petitioner were required to have the ap-

pearance of impartiality as well as the substance. See

Ballard vy. United States, 329 U.S. 187, 195; Thiel v.

Southern Pacific Co., 328 U.S. 217, 225; Frazier v.

United States, 335 U.S. 497, 515-516 (Opinion of Mr.

Justice Jackson, dissenting) ; Dennis v. United States,

* 339 U.S. 162, 181-182 (Opinion of Mr. Justice Frank-

furter, dissenting); cf. Tumey v. Ohio, 273 U.S. 510,

2. The grand jury Petitioner got.——The indictment

here was returned in December 1954 ‘R. 2). More

than seven years of official loyalty-security programs

for government employees immediately preceded the

indictment (R. 10), and the latest security program

was still-current (R. 10). The programs received wide

publicity in the press, and by the time the grand jury

met to adjudicate probable cause for trial in petition-

er’s case every government employee must have been

keenly aware of the existence and operation of such

programs (R. 10), ineluding the fact that official in-

vestigation was made of ‘‘any government employee

against whom an accusation is made, however slight,

of any indication of sympathy for a communist”’ (R.

10). The grand jury here knew that petitioner was

believed to be a Communist ; for his Congressional tes-

timony shows that, and the very questions on which he

was indicted all dealt with petitioner’s alleged Com-

munist activities (R. 3-4; 9).

30 e

In the period 1951-JQ52, two social psychologists had

conducted a study of the impact on government em-

ployees in Washington, D. C., of less than six years of!

loyalty-security programs (R. 12-13). One of these’

experts, Dr. Marie Jahoda, found that (R. 12):

. Under present conditions there is a great

likelihood. that many federal employees are not

in a position of passing fearless and unbiased

judgment on matters in any way concerning

loyalty, security or charges of communism. It is

my opinion also that many government employees

will at present be reluctant to disagree with official

accusations that a person was a communist or as-

sociated with communists for fear that if they dis- _

agreed, they themselves wquld become suspect and

subject to investigation. I am further of the opin-

ion that the fear which was so-evident in our in-

terviews is the result not of a bad conscience, but

of the present climate of opinion among federal

employees which engenders suspicion and fear,

regardless of innocence or guilt.

The other expert who collaborated in the study, Dr.

Stuart .W. Cook, Head of the Department of Psy-

chology, Graduate School of Arts and Science, New

York University, found that (R. 13):

. under present conditions -in Washington,

D. C., ‘such employees are not sufficiently free from

the fear of personal consequences to pass unbiased

judgment on — loyalty, security

or communism. yees, I believe, are

unable to free Tab nor Eien of the possibility that if

they disagree with official accusations that a per-

son is a communist or is associated with com-

munists, this will become a part of their own rec-

ords and eventually play a rolein an investigation

of their own loyalty and security.

Wee

The foregoing findings were proven by the affidavits

of the experts concerned (R. 9-13). The Government’

passed up cross-examination; and offered no evidence

in contravention (R. 15). ~

—~

Of the twenty-three members of the grand jury ~_

which indicted petitioner, thirteen were government

employees, including the Fefeman who was an em-

ployee of the Department of State and two employees

of the District of Columbia (R. 5-6)._

Nevertheless, the District Court refused to. dismiss

the indictment (R. 15); and the Court of Appeals af-

firmed petitioner’s conviction (R. 167).

3. The precise contention we make here.—We accept

the decisions in Frazier v. United States, 335 U.S. 497,

and United States v. Wood, 299 U.S. 119. We do not

urge that the government employee isto be barred

from jury participation in criminal cases in the Dis-

trict of Columbia regardless of the nature or eireum-

stances of his employment and their relation to the

matters involved in.a particular prosecution. Yet, in

evaluating the seriousness for petitioner and jury sys-

tem alike of the contention we do make, the Court

should reeall that such barring of the Government em-

ployee was once held essential for impartiality and the

appearance of impartiality in all criminal prosecutions

in the District of Columbia. See Crawford v. United

States, 212 U.S. 183. .

We accept the majority decision in Dennis v. United

States, 339 U.S. 162. Aceordingly we do not urge that

‘Aree months of having anh official loyalty order with

“‘ydministratite implementation .. . yet 40 come,” as

was the case in Dennis (339 Uaratp. 169), would so .

affect government emplovees in the District of Colum-

bia_as to prejudice the fact or the appearance of their

impartiality as jurors in criminal cases. The facts in

petitioner's case are far more grave. Yet, in connec-

tion with Dennis, too, we would respectfully ask the

Court to observe that the meager facts in Dennis were

believed by two dissenting Justices to suffice for the

barring of Government employees as jurors. See Den-

nis V. United States, 339 U.S. 162 at 175 ff. and 181 ff.

(Dissenting opinions of Mr. Justice Black and Mr.

Justice Frankfurter).

We are not concerned here with grand juries that

sit atany place other than Washington, D. C., or that

consider cases not involving alleged communists.

Neither are we cougerned with any Washington, D. C..

grand jury that sat in 1947 (as in Dennis) or that sits

now or in the future. The grand jury which indicted

petitioner, an alleged Communist, sat at Washington, .

D. C., in 1954 (R. 2). As to that grand jury, we

urge on the facts we have shown (pp. 29-31, supra),

that the intimidating impact of seven years of opera-

tion of loyalty-security programs on government em-

ployees as a class was more than sufficient to bar the

thirteen government employees from participation in

its deliberations.

Over eighty years ago, the Coet in Sfreuder v. West

Virginia, 100 U.S, 303, 308, stated :

It is well known that prejudices often exist

against particular classes in the community, which

sway the judgment of jurors, and, which, there-

eee Se eee ee ee ene

the full enjoyment of that protection

which others enjoy.

Uneontradicted on the record here is the fact of pre ju

dice i in the Washington community of government em-

‘

ployees against the hated class of communists which,

allegedly, in¢luded petitioner.

The Court in Frazier carefully left the government

employee ineligible for jury participation when a show-

ing of “actual bias’’ is made. And the (‘ourt care-

fully defined “‘actual bias"’ to include ‘‘not only preju

dice in the subjective sense but also such as might be

thought implicitly to arise in view of the nature or

circumstances of his employment, or of the relation

of the particular governmental activity to the matters

involved in the prosecution, or otherwise.”” See Frazier

v. United States, 335 U.S. 497, 510m. In Dennis, the

majority opinion noted that no decision was being made

against a showing of prejudice and fear from a loyalty

order in bar of the government employee as a juror

in a communist case; and Mr. Justice Reid who eon-

eurred did so on his understanding of the majority

opinion to, hold that government employees are to be

barred ‘‘for implied bias when circumstances are prop-

erly brought to the Court’s attention which convince

the Court that Government emplovees would not be

suitable’ jurors in a particular case."" See Dennis v.

United States, 339 U.S. 162, 168, 171-172, 172-173. The

Court in Morford v. United States, 339 US. 258, re

versed a conviction in a communist case for failure to

allow a voir dire of govérnment employees on the sub-

ject of the influence on government employees of the

Truman loyalty order.”

Petitioner’s case is just such a ease as Frazier and

Dennis envisaged. The uncontroverted showing we

" That Frazier, Dennis, and Morford were concetned with petit

jurors rather than grand jurors is immaterial on a question of

impartiality. See paragraph 1, supra, pp. 23-29.

*«

have already made of ‘‘fear’’ among government em-

ployees ‘‘regardless of innocence or guilt’ in a com-

munist case (R. 12) is Ss for which oppor-

tunity was afforded by “reve of the conviction in

Morford—except that our proof by at least two im-

partial experts who conducted a study of government:

employees is more seemly and rational than direct

questioning of jurors.”

The Court invalidates convictions where jurors acted

under colorful conditions of intimidation because of

hostile public sentiment and mob violence. Muoere v.

Dem psey, 261 U.S. 86; see Frank v. Mangum, 237 U.S.

309, 335. Here the exposure of government employees

to seven years of loyalty-security programs was more

depressing than colorful, and more subtly baneful than

violent. Cf. Irvin v. Dowd, 366 U.S. 717. We have

proven the inevitable intimidation which resulted. Had

we not made that proof, we might well have asked the

Court, whose members live in the Washington metro-

politan area, to take notice of intimidation that was

certainly notorious by 1954. As early as 1948, Mr. °

Justice Jackson, a veteran in government employment,

already had a prophetic insight into such intimida-

tion:

At the same ‘ime that it [the Government] made

its plea to them [government-employee jurors] to

convict, it had the upper hand of every one of them

in matters such as pay and promotion. Of late

years, the Government is using its power as never

before to pry into their lives and thoughts upen

* See Dennis v. United States, 339 U.S. 162, 182-183 (Dissaent-

ing opinion of Mr. Justice Frankfurter); United States v. Rem-

ington, 191 F(2) 246, 252 (C.C.A. 2, 1951); People v. Landis, 139

Cal. 426, 73 Pae. 153 (1903). -

the slightest suspicion of less than complete trust-

worthiness. It demands not only probity but un-

questioning ideclogical loyalty. A government em-

ployee cannot today be disinterested or uncon-

cerned about his epperrmnce of faithful and en-

thusiastic support for government departments

whose prestige and record is, somewhat, if only a

little, at stake in every such prosecution. And

prosecutors seldom fail to stress, if not to exag-

gerate, the importance of the case before them to

the whole social, if not the cosmic, order. Even

if we have no reason to believe that an acquitting

juror would be subjected to embarrassments or

reprisals, we cannot expect every clerk and mes-

senger in the great bureaucracy to feel so secu. °

as to put his dependence on the Government wholly

out of mind. I do not doubt that the government

employees as a class possess a normal independ-

ence and fortitude. But we have grounds to as-

sume also that the normal proportion of them are

subject to that very human weakness, especially

_ displayed in Washington, which leads men to **. . .

crook the pregnant hinges of the knee where thrift

may follow fawning.” (Frazier v. United States,

335 U.S. 497, 515)

_ With the passage of but two vears, two Justices of

this Court found such intimidation of government em-

ployees already so notorious as to warrant judicial

notice :

... Only naivete could be unmindful of the force

of the considerations set forth by Mr. Justice

Black, and known of all men. There is a pervasive-

ness of atmosphere in Washington whereby forces

are released in relation to jurors who may be

deemed supporters of an accused under a cloud of

dislovalty that are emotionally different fre a

which come into play in relation to jurors dealing

with offenses which in their implications do not

glee =

fp.

touch the security of the nation. Considering the

situation in which men—of power and influence

find themselves through such alleged associations,

- it is asking more of human nature in ordinary

government employees than history warrants to

ask them to exercise that ‘‘uncommon portion of

fortitude’”’ which the Founders of this nation

thought judges could exercise only if given a 4

tenure. (Dennis v. United States, 339 U.S.

175, 182)

And see Quinn v. United States, 203 F(2) 20, 26

(C.C.A.D.C., 1952), rev’d 349 U.S. 155 (Opinion by

Judge Bazelon, dissenting for himself and Judge Ed-

gerton).

If an increasingly oppressive and intimidating at-

mosphere was so notorious by 1950 as to warrant judi-

cial notice by Justices of the Court, then surely our

proof of the fact of intimidation in 1954 is ample. In

Remmer v. United States, 347 U.S. 227, 229, the Court

laid down the requirement that ‘‘a juror must feel free

to exercise his functions without the F.B.I. or anyone

else looking over his shoulder.”’ Cf. In re Grand Jurors

Ass’n, B County, N. Y., Inc., 25 N.Y. Supp. (2)

154 (Sp. T. Bronx Co. 1941). Here our proof (R. 9-13)

shows the government employee to have been borne

down by the whole weight of a suspicious Congress, a

frightened Executive Branch, an oppressive and perva-

sive fear, and consequent worry as to family and family

support—the very things that move men most.

“Diffused impartiality’’ befits a grand jury. Peti-

tioner got a concentration of partiality, and. certainly

the appearance of it. The conviction of petitioner de-

nies due précess of law; for the procedure followed in

this case offered every government employee on the

grand jury ‘‘a possible temptation . . . to forget the

burden of proof required ... or... not to hold the

balance nice, clear and true between the State and the

accused ...’” See Tumey v. Ohio, 273 U.S. 510, 532.

The judicial functions which the Grand Jury had

here to perform were not pro forma. The Grand Jury

had to adjudicate the existence or absence of probable

cause on two issues—a pertinent subject of inquiry,

amid a welter of conflicting possibilities; and a legis-

lative purpose in the demand for petitioner’s testi-

mony. Those issues remain difficult of fair solution

even at this late stage of the case. See Points IIT

and VI, pp. 51 and 64, infra. A third issue before the

Grand Jury was whether petitioner’s answers to the

questions declined were demanded despite his objec-,

tions®(see Quinn v. United States, 349 U.S..155). At

trial; the District Court directed a verdict on most .

of the Counts for laek of such demand (R. 153). But

the grand jury’s erroneous: finding of such demand

left the issue in the case to burden the preparation of

petitioner’s defense. A grand jury less subject to in-

timidation might have insisted upon specification in the

indictment of the subject of inquiry for which it found

probable cause, and saved petitioner the bewilderment

on this point which plagued his defense throughout

trial. See Point II, infra, p. 41. So, although we need

make no showing of prejudice,” petitioner suffered

serious prejudice by the violation of his right to im-

partial grand jurors.

Cassell v. Teras, 339 U.S. 282; Ballard v. United States, 329

T.S. 187, 195: Thiel v. Southern Pacific Co., 328 U.S. 217, 225:

Er Parte Bain, 121 U.S. 1, 9; United States v. Roemig, 52 F. Supp.

857, 862 (N.D. lowa, 1943) ; United States v. Edgerton, 80 Fed. 374

(D.C. Mont., 1897). .

4. The Remedy for Violation of Petitioner’s_right to

impartial grand jurors.—A biased grand juror does

more than just vote. He participates in the give and

take of grand jury deliberations. In any deliberative

group where all but one are impartial, the one who is

secretly biased has a tremendous advantage in getting

his fellows to reach the result which he is determined

to achieve regardless of every consideration. His fel-

lows but weigh while the biased one drives toward a

' predetermined goal. So it is that a considerable body

‘of authority supports invalidation of an indictment be-

cause of one biased grand juror.” And the law is so

solicitous of avoiding any possibility of undue influence

on the grand jury that the presence of any unauthor-

ized person invalidates an indictment.” Had there

been but one government employee on the grand jury

here, it would have been a nice question whether the

indictment should be invalidated on that account, or

whether the conviction should be reversed for ascer-

tainment of how many jurors, not government em-

* United States v. Gale, 109 U.S. 65, 69-70; United States v.

Jones, 31 Fed. 725, 727 (C.C.S.D. Ga., 1887); and see the State

Court casés cited, supra, p. 28 n. 16.

- ™ Lathan v. United States, 226 Fed. 420 .(C.C.A. 5, 1915);

United States v. Wells, 163 Fed. 313 (D.C. Idaho, 1908) ; United

States v. Edgerton, 80 Fed. 374 (D.C. Mont., 1897) ; Coblentz v.

State, 164 Md. 558, 166 Atl. 45 (1933) ; People v. Munson, 319 IN.

596, 150 N.E. 280 (1926); Collier v. State, 104 Miss. 602, 61 So.

689 (1913); Maley v. District Court of Woodbury County, 221

Towa 732, 266 N.W. 815 (1936) (by statute); Nixon v. State, 68

Ala. 535 (1881) (by statute). ’

ployees, necessarily concurred in the indictment.”

However, there was a majority of 13 government em-

* Rule 6(b)(2) of the Federal Rules of Criminal Procedure. in

providing for a motion to dismiss an indictment based ‘‘on the

laek of legal qualifications of an individual juror”’ goes on to re-

quire that an indictment shall not be dismissed if ‘‘12 or more

jurors, after deducting the number not ly qualified, concurred

in finding the indictment.’’ If we had but one government em-

ployee on the grand jury here, it would be an open question

whether this provision as to the concurrence of 12 ‘‘legally quali-

fied’’ jurors applies to a case of bias as distinguished from the

lack of legal quulifications provided by statute, 1.e., citizenship,

age, residence, non-conviction for serious crime, literacy and men-

tal and physical competence. See 28 U.S.C. Sec. 1861. -

The Rule 6(b)(2) provision on the concurrence of 12 legally

qualified jurors derives from Section 2 of Public Law 180, Act

of April 30, 1934, Ch. 170, 48 Stat. 649. The draftsmen of Rule

6(b)(2) apparently intended no change. See 18 U.S.C. (1946

ed.), Sec. 554(a). But the legislative reports on Public Law 180

supply no light on the problem of applicability to a case of bias.

See H. Rept. 707, and S. Rept. 585 on H.R. 7748, 78rd Cong., 2nd .

Sess. There was no debate in the Senate. And the debate of a

few minutes in the House_looks in both directions; but darkly.

78 Cong. Rec. 2777-2778. A few dicta merely assume applicability

of Rule 6(b)(2) to a bias case. See United States v. Thompson,

144 F(2) 604, 606 (C.C.A. 2, 1944) ; Castle v. United States, 238

F(2) 131, 136 (C.C.A. 8, 1956); United States v. Fujmoto, 102

F. Supp. 890, 896 (D.C. Hawaii, 1952) ; United States v. Adams,

3 F.R.D. 396, 405-406 (S.D.N.Y., 1944). However, the opinions

in United States v. Knowles, 147 F. Supp. 19, 20 (D.C.D.C., 1957)

and United States v. Remington, 191 F(2) 246, 252 (C.C.A. 2,

1951) proceed on the assumed premise of non-applicability of

Rule 6(b) (2) to a case of bias. Finally, if the prope? interpreta-

tion of Rule 6(b)(2) were involved here, the cases cited in foot-

notes 6 and 20, supra, would indicate strongly that Congress in

passing Public Law 180 to alleviate invalidation of indictments

for technical defects did not mean in such ambiguons fashion to

change the law as to deprivation of fundamental rights to im-

partial grand jurors who are free of the possibility of undue in-

fluence. ;

40 ‘

ployees * on the grand jury which indicted Petitioner.

The District Court, accordingly, should have dismissed

the indictment. Petitioner's conviction should be re-

now for that purpose. We think that plain

in the light of the Court’s decisions and the

history of a. judicial process that ever seeks fairness,

particularly in the criminal law. -

Yet, if we be wrong on this, Petitioner was unques-

tionably entitled in May of 1956 to the minimum alter-

native he requested of a hearing to deteymine the

existence of actual bias in the thirteen grand jurors

who were government employees. Morford y. United

States, 339 U.S, 258; United States v. Foster, 83 F.

Supp. 197 (S.D.N.Y., 1949); see United States v.

Emspak, 95 F. Supp. 1010, 1012 (D.C.D.C., 1951). Re-

versal in order to require such a hearing in“1961, or

1962, would not remedy the deprivation of Petitioner’s

right to a hearing in 1956. Happily for the govern-

ment employee the Washington of 1961 is not the

Washington of 1956; for in the years since 1956 there

23 Perhaps it is unnecessary to state that on the issue here pre-

sented no rational distinction can be drawn between the eleven

government employees who worked for the federal government and -

the two government employees who worked for the District of

Columbia. All were subject to the Federal Congress, and to ap-

pointees of the President. The District of Columbia Government

and the Federal Government both employ on the basis of Standard

Form 57, ‘‘ Application for Federal Employment,’’ which includes

questions relating to considerations of loyalty and security. The

Veterans Preference Act applies alike to employees in each govern-

ment. Six departments of the District government are by statute

directly under the Civil Service Commission. = the personnel

policies and forms of the Federal and District | Governments are

practically identical; and identical are their impact upon the em-

ployees of the two governments, except that District employees in

1954 were not formally assured of the meager protection of federal

loyalty-seeurity orders.

_ 365 U.S. 431. However, Petitioner in

bea been increasing freedom from oppression. To ex-

tract the evidences of fear from a grand juror who is

then in fear is difficult enoygf. To extract such admis-

sions years after he was frightened would hardly be

possible. Shame inhibits self-diseovery. The friendly

presence of the prosecutor lends weleome support to

the suppression of hateful memories of shabby grand

jury action. When the battle is over,°all men were ©

brave. It is a commonplace that totalitarian-regimes

have been in power for decades and have vanished

without leaving many who can admit supporting them.

For these reasons, we respectfully suggest that the

remedy today for failure to accord a hearing in 1956

must, in fairness, be dismissal of the indictment. So

the Court may find it unnecessary to decide whether

Petitioner in 1956 was entitled to dismissal of the in-

dictment because of implied bias or ‘to a Hearing for

determination of actual bias. 4

Il. The Conviction Should Be Reversed Because the Subject

Under Inquiry and the Pertinence of the Questions Thereto

Were Not Particularized in the Indictment.

The indictment merely used the words of the statute

in charging that the questions which Petitioner refused

to answer ‘‘were pertinent to the question then under

inquiry.’? (R. 2) Our contention is that the indict-

ment’s use of such generic language without further

particularization of those %elements ofthe charged

crime violated petitioner’s rights under the Fifth and

Sixth Amendments, and under Rule 7(c) of the Fed-

eral Rules of Criminal Procedure.* _

*% The same contention was presented as a question in Petition

for Certiorari in Braden v. United Stateg, Oct. Term, 1960, No. 54,

frat ease did not brief the

point, a. was not decided.

To avoid confusion between the questions which Petitioner de-

elined to answer and the ‘‘question under inquiry’’ we use the

PO EE

‘a

;

States, 112 U.S. 434, 437. es an ooh s. United

. ment of the offense was held to violate the right of an

accused, conferred upon him by the Sixth Amendment,

to ‘‘be apprised by the indictmen{, with reasonable

eras of the nature of the accusation against him,

to the end that he may prepare his defense.’’ See

United States v. Simmons, 96 U.S. 360, 362; Burton v.

term ‘‘subject under inquiry,’” instead of ‘‘question under in-

quiry.’””

If, as we urge, the indictment was void for failure to specify

the subject under inquiry, there is no need to consider whether the

indictment would have to state some connéctive reasoning between

the questions and the undisclosed subject of inquiry to show per-

tinence. Conversely, if the subject of inquiry need not be specified

in the indictment, it follows that the pertinence of the questions

need not be particularizéd and, indeed, cannot be. For these rea-

sons, we simplify the argument made in the text by confining it

to the lack in the indictment of a-specified subject of inquiry,

% United States v. Goldberg, 225 F(2) 180, 184 (C.C.A. 8, 1955) ;

White v. United States, 67 F(2) 71, 73 (C.C.A. 10, 1933) ; United

States v. Geare, 293 Fed. 997, 1000 (App. D.C., 1923) ; Brenner v.

United States, 287 Fed. 636 (C.C.A. 2, 1922); Knauer v. United

States, 237 Fed. 8, 13 (C.C.A. 8, 1916) ; Martin v. United States, 168

Fed. 198, 205 (C.C.A. 8, 1909) ; United States v. Bop, 230 Fed. 723,

726 (N.D. Cal., 1916).

rz wt

United States, 202 U.S. 344, 372; Bartell v. United

States, 227 U.S. 427, 431; Hagner v. United States,

285 U.S. 427, 431.”

The Simmons, Hess and Keck indictments were held

void by this Court, and many indictments are held void

in the lower federal courts,” for failure to descend

from generic statutory terms to particulars that would

lie within the knowledge of a guilty accused. Never-

theless, in those cases the presumption of innocence

secured the constitutional right to indictment partic-

ulars of guilty and innocent alike. Sco Lynch v. United

26 In the lower federal courts, the purpose of this Constitutional

right of an aceused to particularity in an indictment is variously,

but strongly stated. The indictment must so clearly inform the

accused of the crime charged ‘‘that he may prepare all defenses

within his power to offer,’’ Burnett v. United States, 222 F(2) 426,

428 (C.C.A. 6, 1955); that he ‘‘not be taken by surprise by the

evidence offered at the trial,’’ Wolpa v. United States, 86 F(2) 35,

38 (C.C.A. 8, 1936), cert. den. 299 U.S. 611; and that he be told

‘*all he needs to know for his defense,’’ Davis v. United States, 49

F(2) 267 (C.C.A. 4, 1931), cert. den. 283 U.S. 859; Blum v. United

States, 46 F(2) 850, 851 (C.C.A. 6, 1931) ; Martin v. United States,

299 Fed. 287, 288 (C.C.A. 4, 1924).

2? United States v. Strauss, 285 F(2) 953 (C.C.A. 5, 1960) ; White

v. United States, 67 F(2) 71 (C.C.A. 10, 1933) ; Reimer-Gross Co.

v. United States, 20 F(2) 36 (C.C.A. 6, 1927); Turk v. United

Stcies, 20 F(2) 129 (C.C.A. 8, 1927); Jarl v. United States, 19

F(2) 891 (C.C.A. & 1927); Boykin v. United States, 11 F(2) 484

(C.C.A. 5, 1926); Hartson v. United States, 14 F(2) 561 (C.C.A.

2, 1926); Lynch v. United States, 10 F(2) 947 (C.C.A. 8, 1925) ;

Carpenter v. United States, | F (2) 314 (C.C.A. 8, 1924) ; Fontana

v. United States, 262 Fed. 283 (C.C.A. 8, 1919) ; Martin v. United

Statcs, 168 Fed. 198 (C.C.A. 8, 1909) ; United States v. Fuselier, 46

F(2) 568 (W.D. La., 1930) ; United States v. Burns, 54 Fed. 351

(C.C.D. W. Vir., 1893) ; United States v. Goggin, 1 Fed. 49 (C.C.D.

Wise., 1880) ; cf. Patterson v. United States, 222 Fed. 599, cert.

den. 238 U.S. 635; United States v. Bop, 230 Fed. 723 (N.D.

Cal., 1916).

ty See

- States, 10 F(2) 947, 949 (C.C.A. 8, 1925); and Fon-

tana v. United States, 262 Fed. 283, 286 (C.C.A. 8,

1919). mi

But the ‘‘subject of inquiry” is an elusive thing.

The very term, itself, has its semantic difficulties. Cf.

the di ion, infra at p. 64. The subject of in-

quiry in cases like this one is not susceptible of ascer-

tainment from the House Resolution which

the House Committee on Unamerican Activities. Wat-

-kins v. United States, 354 U.S. 178, 209-211. It can-

not properly be derived from sources not known to the

accused at the time he testified. Watkins, at pp. 214-

215, 217. It may or may not be sisceptible of ascer-

tainment from a number of different sources. Watkins

at pp. 209-214; Barrenblatt v. United States, 360 U.S.

109 at pp. 124-125. Given the same sources, Courts

disagree on what it is in a particular case. Cempare

_ the opinions of the Court below in Watkins v. United

States, 233 F(2) 681, and Sacher v. United States, 252

F (2) 828, with the opinions of this Court in the same

‘eases, 354 U.S. 178, and 356 U.S. 576.° And members

of the same Court, fiven the same materials, can and

do disagree on the subject of inquiry. Compare the

majority and dissenting opinions in Deutsch v. United

States, 367 U.S. 456, 472, 475. Usually difficult of cer-

tain ascertainment in any case, the fact of the subject

of inquiry was surely not in petitioner’s possession at

the time of indictment—entirely apart from any pre-

sumption of innocence. We must assume that the

Grand Jury had-a subject in mind to which it thought

the indictment questions to be probably relevant. Had

it been revealed in the indictment, petitioner could -

have prepared his defenses to the subject of inquiry

claimed. Instead, he was left to grope at trial ameng

the many different possible subjects on which the prose-

cution offered proofs ;* and some of those could not

possibly have been imagined by him in advance of

trial. See pp. 12-16, supra. Here, then, there was

extraordinary reason-for requiring specification in

the indictment of the subject of inquiry; for, unlike

most cases in which the Sixth Amendment has been ap-

plied to invalidate indictments couched in general,

statutory terms, petitioner, himself, had no knowledge

of the subject of inquiry, whether or not he was pre-

sumed to be innocent. Indeed, in this ease, it remains

an assumption to this day that anyone rightly knew

or knows the subject under*inquiry when petitioner

testified. The Chairman of the Subcommittee before

which petitioner appeared meandered extensively (R.

38-42); but not more so than the Subcommittee’s

counsel (R. 35) or the prosecutor at trial (R. 43ff).

The Grand Jury (R. 2), the District Court (R. 132;

138; 156), and the Court of Appeals (R. 166-167) all

failed to specify any subject under inquiry. And yet, a

subject under inquiry, although %t is hard to come by, is

stated easily and in a few words, once it is ascertained.

See, e.g. Barrenblatt v. United States, 360 U.S. 109

(ascertained subject of inquiry: Communist infiltra-

tion into education) ; (Wilkinson v. United States, 365

- U.S. 399 (ascertained subject of inquiry: Communist

infiltration into basic Southern industry).

The failure of the indictment to specify the subject

under inquiry could not be remedied by a bill of par-

]

* Cf. Johnson v. United States, 294 Fed. 758 (C.C_A. 9, 1924);

and United States v. Burns, 54 Fed. 351 (C.C.D. W. Vir., 1893).

. 46

ticulars.” White v. United States, 67 F(2) 71 (C.C.A.

10, 1933) ; Jarl v. United States, 19 F(2) 891 (C.C.A.

8, 1927); Nafteger v.. United States, 200 Fed. 494

(C.C.A. 8, 1912) ; ef. Lanzetta v. New Jersey, 306 U.S.

451, 453. If he was to be charged at all, it was peti-

tioners’s right to be indicted by the Grand Jury. 2

U.8.C. See. 194; Constitution, Art. V. Neither the

prosecutor, nor any of the Courts passing on this case

could amend the indictment. That is well settled.”

Hence, if the Gran@ Jury had specified ‘‘A”’ as the

subject of inquiry, neither ‘‘B”’ nor “‘C”’ nor “D”’

ete. could validly serve as the subject of inquiry at any

stage of petitioner’s case. But here where the Grand

Jury has made no specification of the subject of in-

quiry, it is true, for aught that the Court can discern,

that the Grand Jury indicted on the basis of subject

of inquiry ‘‘A,’*the trial judge convicted on ‘subject

of inquiry ‘‘B,’’ and the Court of Appeals affirmed on

subject of inquiry ‘‘C.’’ This is a forbidden process of

amendment of the indictment, far worse than any con-

demned by the controlling decisions with respect to

amendments of indictments on which we rely. Here,

Tf, in fact, the prosecutor here Saie for what subject of in-

quiry the Grand Jury found probable cause, thén there is all the

more reason for requiring its specification im the indictment. The

fair administration of criminal justice seeks justce. The Govern-

ment should not want a conviction obtained by concealment which

deprives the aceused of a full and fair opportunity to prepare his —

defense. See White VOUnited States, 67 F(2) 71, 77 (C.C.A. 10.

1933) ; United States v. Burns, 54 Fed. 351, 359 — W. Nir.

1893).

® Stirone v. United States, 361 U.S. 212; United States v. Norris,

281 U.S. 619; Ex Parte Bain, 121 US. 1; Dodge v. United States,

258 Fed. 300 (C.C.A. 2, 1919), cert. den. 250 U.S. 660; Stewart v.

United States, 12 F(2) 524 (C.C.A. 9, 1926) ; Neftager v. United

States, 200 Fed. 494 (C.C.A. 8, 1922). ‘

as to an essential clement of the crime charged, the

Girand Jury left a blank which anyone—proseeutor,

trial judge, or reviewing Court—could fill in differently

at will, and for all we know, did. Petitioner’s convie-

tion must be reversed, or the well-settled rule against

amendments to indictments is made meaningless. More

fundamentally, the fairness required by the Due Proc-

ess Clause surely invalidates the procedures by which

petitioner still stands convicted; for~here, unless his

conviction is set aside, it will always remain likely that

Petitioner was, in effect, charged by the Grand Jury

with one crime, convicted by the trial judge of another,

and found guilty on review of still a third. Cf. Kot-

* teakos vy. United States, 328 U.S. 750; Colew. Arkansas,

333 U.S. 196; United States v. Klass, 166 F(2) 373

(C.C.A. 3, 1958) ; Jarl v. United States, 19 F(2) 891,

892 (C.C.A. 8, 1927); Johnson v. United States, 294

Fed. 753 (C.C.A. 9, 1924). og

However, it remains most likely that petitioner was

indicted for no crime at all. The indictment and trial

in this case were before this Court’s decision in Wat-

kins. In the pre-Watkins days, the Government was

ewroneously asserting the subject of inquiry to be as

broad as the House Resolution which empowered the

House Committee on Un-American Activities. Such

was the position of the Government at trial in this case.

See R. 43; see also United States v. Lorch, Cr. No.

3185 (S.D. Ohio, Nov. 27, 1957, unreported); and ef.

Shelton v. United States, No. 9, United States Supreme

Court October Term, 1961, R. 17-18; 20; 40; Knowles

v. United States, 230 F(2) 696, 700 (C.C.D.C., 1960) ;

and United States v. Peck, 154 F. Supp. 603, 610-11,

fn. 25 (D.C.D.C., 1957). The Grand Juty’s position

can be reasonably assumed to have been the same. So, |

in all likelihood, petitioner was put upon his trial upon

Grand Jury findings as to probable cause that con-

stituted no offense, since, under this Court's decision in

W atkins, the House Resolution which empowered the

Committee cannot serve as a subject of inquiry.

Because the indictment specified no subject of in-

i= we have been compelled in this discussion to

~__~speak of the probability rather than the fact of indict-

ment for no erime, or indictment and conviction for

different crimes. And the Court here is under the

same compulsion. In plain and simple terms the

Court must reverse Petitioner’s conviction ; or, in this

type of contempt of Congress case where the indict-

ment specifies no subject of inquiry, the Court must

abdicate its traditional and paramount function of re-

view in enforcement of Constitutional limitations. Un-

less the indictment specifies the subject under inquiry,

the Court cannot discern whether the Grand Jury

found probably cause as to the elements of a punishable

offense, or whether, if the Grand Jury did, the peti-

tioner was convicted of that offense. In such circum-

stances, and they are the very circumstances here, re-

view becomes impossible or constitutes the mere rubber

stamping of a conviction, which is the same thing. Cf.

Watkins v. United States, 354 U.S. 178, 214;-Sweezey

*. Nge Hampshire, 354 U.S. 234, 254.

Furthermore, since the questions Petitioner refused

to answer were to some extent an invasion of a personal

area normally protected by the First Amendment

(Barrenblatt v. United States, 360 U.S. 109, 126), the

strict according of Petitioner’s Fiftht and Sixth

Amendment rights with respect to the indictment, and

a strict demand for precise procedures that enable this

‘ Court’s purposeful review, are particularly ’appro-.

priate. The several provisions of the Bill of Rights

were not intended to wither away separately in isola-

tion but to reinforce each other in their various and

overlapping applications. At least, such is the juris-

prudence of which we Americans haye been taught,

largely by this Court, to be proud.

Finally, if Petitioner’s rights under the First, Fifth,

and Sixth Amendments are to be balanced against the

Governhment’s need to continue with indictments which

specify no subject of inquiry, the scales must inclim.

heavily on Petitioner's side. There is so little to put

»on the Government’s side. A subject of inquiry is

difficult to ascertain. But that is no excuse for the

Grand Jury’s failure to state one. Rather, since it is

difficult to ascertain, it is only the statement of it

which can insure that probable “eause was found for

_ this element of pertinence. Once the subject of in-

quiry is ascertained, there is no burden involved in

stating it. Only a few words are needed. See p. 45,

supra; and see United States v. Lorch, Cr. No. 3185

($.D. Ohio, Nov. 27, 1957, unreported). The Lorch

case arose from the same series of hearings as this

one; but the indictment there simply stated in a few

: words that the subject under inquiry was ‘‘Communist

Activities in the Dayton-Yellow Springs area.’’ In-

iced, in contempt of Congress eases it was once tra-

ditional for the indictment to state the subject under

inquiry and the relation of the indictment questions to

it, even though such statement was much more compli-

cated than the few words required here. See Sinclair

v. United States, 279 U.S. 263, 285-289; In re Chap-

man, 166 U.S. 661, 663; cf. Kilbourn v. Thompson, 103

U.S. 168, 170ff.

The Government, it is authoritatively stated, must

‘*plead”’ pertinence. See Sinclair v. United States,

279 U.S. 263, 296-297; Bowers v. United States, 202

F(2) 447, 453 (C.C.A.D.C., 1953). In the light of the

considerations we have set forth, the pleading of perti-

nenece must require more than a general statement that

the questions were ‘‘ pertinent to a question then under

inquiry’ (J.A. 3). See United States v. Lamont, 236

F(2) 312 (C.C.A. 2, 1956); United States v. Metcalf,

Cr. No. 3052 (8.D. Ohio, Oct. 3, 1955, unreported).

Otherwise, the requirement that pertinence must be

pleaded would insure only that the Assistant United

States Attorney accredited to the Grand Jury has read

the statute and quoted it accurately in the indictment.

Surely, the Court in Sinclair was not concerning it-

self with requiring that formal ritual. Required plead-

ing in any indictment, and especially where fights

under the First, Fifth, and Sixth Amendments are in-

volved, is directed, as we have shown, to assuring:

Trial upon the Grand J ury ’s finding of probable cause

for the elements of the crime, and no one else’s; a fair

opportunity to the accused #*Know the charge and

so prepare his defense; conviction upon a crime

charged by the Grand Jury and not some other crime

or no crime at all; and preservation of the Appellate

Court’s opportunity to review. Because the indict-

ment failed to specify a subject under inquiry, none

of these is asstired here. Petitioner’s conviction should ~~

be set aside and the indictment dismissed.

We respectfully ask the Court to reread our State-

ment at pp..6-9 for the details (none of them is unim-

portant) of the evidence at trial pertinent to the largely

factual contentions we make here.

Petitioner first testified at Dayton in September,

1954. He was called then only on the theory that he

would ‘‘cooperate,”’ i.e. answer all questions ; for other-

wise ‘‘in all probability’’ he would not have been called

at all (R. 68). Petitioner’s flat refusal on the basis

of the First Amendment to answer any questions con-

cerning communism was thoroughly tested at Dayton

‘by a series of specific questions that elicited no change

in Petitioner’s refusal. Satisfied that Petitioner would

not cooperate, Committee Counsel ‘‘broke the question-

ing up”’ (R. 68) and Petitioner was excused with the

announcement that Committee Counsel had no further

questions (R. 63). In Petitioner’s appearance at

Dayton nothing oceurred to warrant any hope that if

called again in a few weeks and asked the very same

questions he would answer them. He was not in any

doubt as to(the rightness of his position,” and had not

been misled by any misinformation (cf. Raley v. Ohio,

360 U.S. 423) or ambiguous order (cf. Flarer v. United

States, 358 U.S. 147) from the Committee. And, in

31 Petitioner’s refusal was explicitly based on the claim of a First

Amendment right. Later, Barrenblatt, Wilkinson, and Braden.

rejected such a claim. But those cases, this case, and the com-

panion contempt cases now before the Court are all evidences of

a widespread belief in such a claim, sincerely and staunchly held

by many people at the time of Petitioner's appearances.

the face of the Government’s burden of proof in a

criminal trial, it cannot be assumed from the fact of

no quorum at Dayton that Petitioner (1) knew that a

quorum is required ; (2) knew what constitutes a quor-

um; (3) knew that the one member sitting had not

been appointed to sit alone, and hence might not be a

quorum; and (4) that his refusal to answer was there-

fore influenced by the absence of a quorum.

At Washington where Petitioner’s alleged contempt

occurred, the Chairman announced that shortness of

time at Dayton had ‘‘resulted in the necessity of con-

tinuing that hearing by calling several witnesses for

further testimony’’ (R. 67). That false excuse fails to

hide the absence of any purpose other than punitive

in the Committee’s recall of Petitioner; for (1) three

witnesses testified at Dayton after Petitioner had testi-

fied, including an unscheduled witness permitted to

testify on his ewn request; (2) the other witnesses at

Dayton, who had relied on the First Amendment were

ously declined, but were indicted for contempt in

Dayton where their appearances had, unlike Petition-

er’s, been before legal quorums; and (3) Petitioner

who was the only Dayton witness to rely on the First

Amendment in the absence of a legal quorum was the

only Dayton witness called for a further appearance at

Washington. (p. 8, supra)

_ Nothing oecurred in the weeks between Sai auber

and November to warrant any hope that Petitioner at

Washington ‘would answer the questions he had flatly

refused to answer at Dayton. But again, the Govern-

ment’s effort at trial to rebut this fact fails to hide

the absence of any purpose other than punitive in the

Committee’s recall of Petitioner. Committee Counsel

testified at the trial.. He thought that Petitioner might

not claim his First Amendment privilege if called to

testify again, because when served with a new sub-

poena to appear in Washington in November, Peti-

tioner showed a desire to get in touch with a Committee

staff member. However, the subpoena was not served

until after the making of the decision to subpoena Peti-

tioner for his appearance in Washington; and Peti-

tioner’s desire for a conference was to change the

stated time for his appearance (p. 8, supra).

At the Washington hearing, the Petitioner claimed

precisely the same First Amendment privilege against

‘forced disclosure of his ‘opinions and political’ be-

liefs and associations” (R. 66) as he had claimed at

Dayton. And he made that claim at the very outset

of the hearing in declining to answer the very first

question which concerned communism, The reiteration

of his position by Petitioner in Washington admittedly

ended any remotely possible hope that he ‘‘might co-

operate with the Committee’’ and answer questions

concerning communism (R. 113). Immediately upon

Petitioner’s reiterated general refusal at the outset to’

answer questions concerning communism, the Chair-

man sought and obtained a specific disclaimer from

Petitioner of any reliance on the Fifth Amendment;

and, then, Committee counsel, in covering the same

‘ field of questioning as at Dayton, went on to ask the

sixteen questions which provided the counts in the

} _indietment. It was believed by the. Committee and

Committee counsel that at Washington they had a

legally competent body to receive Petitioner’s decli-

nature (pp. 8-9, supra).

In the circumstances here presented, the fact that

Petitioner was —s to Washington for the purpose

ao bd

fem

of punishing him for contempt and not for a legislative

purpose can searcely be doubted. We do not under-

stand that the trial judge disagreed with the fact.

Rather he ‘‘felt’’ that consideration of the issue ‘‘was -

pretty well precluded by some of the decisions” (R.

139). On that theory the trial judge denied our motions

for a directed verdict and for judgment of dismissal

made at the elose of the Government’s case and at the

close of all of the evidence, and refused to submit the

' issue to the jury (R. 139, 149, 24-25). The Court of

Appeals affirmed (R. 167).

The pertinent decisions do not preclude considera-

tion of the issue of legislative purpose or purpose to

punish; rather they require consideration and deter-

~ mination of that issue. The power of the Congres-

sional group which heard Petitioner could extend only

to obtaining information in aid of legislation. It had

no power to eall petitioner to punish him for contempt.

McGrain v. Daugherty, 273 U.S. 135, 178; Sinclair v.

United States, 279 U.S. 263, 295; Quinn v. United

States, 349 U.S. 155,,161; Watkins v. United States,

-354 U.S. 178, 187. In Sinclair, the Court expressed

doubt as to whether any presumption of regularity

attaches that a Congressional Committee is asking

questions pertinent to an authorized subject; and the

Court stated that the presumption of innocence in a

contempt of Congress trial would be stronger. Sinclair

vy. United States, supra, at p. 296. In any event, so far

as there may be a presumption favoring the Govern-

ment it is plainly a rebuttable one; for in its decisions _

which déal with a charge of questions fag punishment

and not in aid of legislation, the Court has carefully —

reviewed the record before passing on the charge. See

McGrain v. Daugherty, supra, at pp. 179-180; Sinclair

v. United States, supra, at p. 295; Wilkinson v. United

States, 365 U.S. 399, 411, 429; Browmy. United States,

245 F(2) 549 (C.C_A. 8, 1957) ; see also, United States

v. Teardi, 140 F. Supp. 383 (D.C.D.C., 1956); and

United States v. Cross, 170 F. Supp. 303 (D.C.D.C.,

1959). re

Here there was no more than “the mere semblance

of legislative purpose’ (Watkins, at p. 198) ih com-

pelling the responses by Petitioner for which he was

indicted. The semblance of a legislative purpose can-

not justify the questions asked of Petitioner. Watkins

v. United States, 354 U.S. 178, 198; United States v.

Rumely, 345 U.S. 41. We readily admit that a Com-

mittee may secure a quorum to encourage the getting

of information by threatened sanctions of contempt

and perjury prosecution. And we do not seek to im-

pugu the motivation of Committee members. But the

affirmance of Petitioner’s conviction requires the exist-

ence of a legislative purpose in demanding answers to

the questions for which he was indicted. Here, we

have shown by objective and uncontradicted evidence

that those questions were asked of Petitioner, not with

the legislative purpose of getting answers, but with

the forbidden purpose of again getting refusals for.

punishment by contempt. A directed verdict on the

issue was warranted. See Brown v. United States,

United States v. Icardi, and United States v. Cross, all

supra; and ef. Wilkinson v. United States, 365 U.8.

399, 429 (Di ng opinion by Mr. Justice Brennan

for himself and Mt. Justice Douglas). At a minimum,

Petitioner was entitled to a submission to the jury of

an issue of fact. as to punishment or legislative aid.

(1) The Government’s theory at the trial. was that

the Chairman of the Committee had appointed as a

subcommittee the group which heard Petitioner. The

Chairman’s authority so to appoint was therefore

squarely in issue. All of the evidence on the issue was

oral. No documents were introduced. There was testi-

mony that subcommittees could be appointed only by

the Committee, itself (R. 134). There was also testi-

mony that in practice the Chairman appointed com-

° mittees by telephone or personal interview (R. 116),

‘and that he had been autherized to do so by.a Commit-

tee resolution (never produced) which did not specify

the method of appointment to be used (R. 135). The

trial judge refused to submit to the jury the question

of whether the Chairman had been authorized to ap-

point subcommittees, and decided as a matter of law

that the Chairman was so authorized. (See pp. 10-11,

spe ae

There appears to be no basis for the action of the

trial Court on this point. The question was one of dis-

puted fact—either the Chairman had been authorized —

by the Committee, or he had not. An evaluation of

- the credibility of the Government witness who testi-

fied on the point was essential—was he biased ; was his

memory good enough to recall a resolution ado std over

three years before his testimony; was he . the

truth. It was not even the type of factual question

that rests on interpretation of documents. Yet the

trial judge arrogated to himself the Se of

credibility, and decided the contested issue of au ority

to appoint. So Petitioner was deprived of the jury

trial to which he was entitled under the Constitution.

(2) Mr. Scherer, one of the group who heard Peti-

tioner, testified that he was appointed to the group by

telephone call from the Committee Chairman (R. 87).

The trial judge charged the jury that the Committee

Chairman could appoint By telephone (R. 158). We

claim error.

In our day, we have witnessed many excesses by

Congressional committees, sufficient to remind the

writer of De Tocqueville’s dictum that a number of

tyrants are no-better than one. Many of the excesses

are beyond the corrective powers of the Judiciary.

But here we respectfully suggest that this Court can,

and should hold that Committee authority to its Chair-

man to appoint subcommittees without specification of

the method must be held in law to be limited to a

method of appointment more formal and definitive

than a mere telephone call without any record made.

Cf. Ex Parte Frankfeld, 32 F. Supp. 915, 916 (D.C.

D.C., 1940). No less would seem to be required when

compulsion upon pain of jailing for contempt is used

in a First Amendment area.

(3) There was not sufficient evidence before the j jury

.. from which it could find that the Committee Chairman

had appointed the group of three with Clardy as Chair-

man which heard Petitioner. A verdict should have

been directed.

Committee counsel, Mr. Tavenner, testified that at

an executive Committee meeting in August 1954 the

Chairman appointed a subcommittee of Congressman

Scherer as Chairman with Messrs. Clardy and Walter

as members to hold hearings at Dayton at any time

prior to three weeks before the election in the begin-

ning of November (R. 115, 119). That testimony of an

appointnert of a subcommittee witha Chairman dif-

ferent from Clardy, to huld hearings at a city different

from Washington, at a time different from the time

of Petitioner's appearance at Washington was not rele-

_ vant in any way to a showing of the appointment of the

group of three with Mr. Clardy as Chairman who

heard Petitioner. :

Congressman Scherer testified on cross-examination

that the Committee Chairman had telephoned him dur-

ing the noon recess before the afternoon of Petitioner's

appearanee ‘‘and said that he was appointing Mr.

Clardy and Mr. basa ib aonson as the Chairman

tienen appeared. radince to. teh: cane

guidance of Government counsel, also testified that.

his appointment by telephone was to a subcommittee of

which Clardy was %o be Chairman (R. 89). :

\ There was no evidence at al! to show the appointment

of Messrs. Clardy and Walter to a subcommittee to

ment consisted of a gnided staiement by Scherer of

his appointment to a subcommittee of which Clardy

was to be Chairman; his own statement that he,

Scherer, was to be chairman of the group to which he

was appointed ; and no idence at allof the-appoint-

ment of Clardy and Walter. \

—

@n this lack of an adequate showing, the jury was

left to speculate on the appointment of the group of

three that heard Petitioner. Fairly considered, a

verdict should have been girected.

(4) The trial judge compounded the error of his

refusal to direct a verdict by sending the issue of the

appointment of the Clardy group to the jury in a

manner that left the jury free to find the appointment

of the Washington €lardy group from the Tavenner

evidence of a Dayton, Scherer subcommittee. In re-

jection of Petitioner’s view that all of Tavenner’s evi-

dence should be passed on by the jury (R. 31-32), the

only part of Tavenner’s appointment testimony which

~ the jury was permitted to hear was that in_August the

Chairman had appointed a subcommittee with Clardy,

Scherer, and Walter as members. The jury was not

permitted té hear that the August hg was of

a subcomrftittee with Seherer and not Clardy as Chair-

man and for the holding of hearings in Dayton and not

Washington (R, 115, 119). This serious error, plain

on the faee of the record, was made worse by the trial

judge’s instruction (R. 158) that the jury could find

‘the appointment of the Clardy group in Mr. avefinér’s

evidence as to the appointment of a gama in

August.” ?

8? Respondent, in retiause on “Tnited States ¥. Bryan, 339 U.S.

323; 330-235 and Emspak v.'Gnited. States, 203 F(2) 54, 56, rev'd.

on other grounds, 349 U.S. 190, urges that Petitioner cannot raise

the lack of a legally-constituted subcommittee for the first time at

Doubtless, the Government will argue that in this

heading we concern ourselves with the proof of a mere

procediiral matter... But the history of the preserva-

tion of liberty under law. is largely one of the observ-

ance of procedural requirements. Beyond that, we

offer the suggestion of scarcely anything being more |

eorrosive of the citizen’s rights than the judicial ac-

ceptance of sloppy Government proof.

V. The Trial Court Should Have Directed a Verdict on All

Counts Because the Proof Showed That If Defendant Com-

mitted Any

tions specified in the indictment were asked of him,

Petitioner made a complete refusal on answering any

questions at all concerning communism. And at least

trial. Brief for the United States in Opposition, p. 11. Unlike

Bryan, Petitioner was not convicted of contempt for the purely

negative act of ‘‘an intentional failure to testify or produce

papers.”’ See Bryan at p. 329. Petitioner did appear and testify.

Unlike Emapak, Vetitioner appeared at Washington before a

‘three-man group and not a-one-man subcommittee that he could

then see and object to if he desired. At the time of Petitioner's

appearanee before the Washington group he could not possibly

have observed or known the facts pertaining to its appointment.

Cf. Christoffel v. United States, 338 U.S. 84, 88. Had Petitioner

sought then to ascertain those facts he could not have obtained any-

thing more than the Chairman's self-serving declaration of the

apprieent of the group—unless this Court had plainly decided,

as the Government in effict now asks, that any Committee appear-

anee may begin with’a hearing on the validity of the Committee's

appointment. In reason, the issue is properly raised and decided

' at the trial; and the cases so indicate. See United States v. Moran,

194 F(2) 623 (C.C.A. 2, 1952), cert. den. 343 U.S. 965; Eisler v.

United States, 170 F(2) 273, (C.C_A. B.C., 1948) ; ef. Chris-

tofel v. United States, 338 U.S. 84.

;

by that point, if not sooner, the Subeommittee knew

that Petitioner would not answer any of the questions

alleged in the indictment. (See pp. 8-9, supra)

In these circumstances, the complete refusal at the

outset to answer questions concerning communism was

a contempt, if there be any here. Thereafter, since the

Petitioner at the outset had made elear his position of

such complete refusal, the subcommittee could not

multiply the contempt, and the punishment, by continu-

ing to ask him questions concerning communism and

eliciting the same answer to each individual question.

The contempt, if any, was total at the outset when he

made his statement of general refusal on the whole

subject of communism. The refusals thereafter to an-

‘swer specific questions eannot be considered anything

more than expressions of Petitioner’s intention to

adhere to his earlier statement. As such they were

not separately punishable. At most they were only a

continuation of the one contempt already committed.

_ Yates v. United States, 355 U.S. 66; Bevan v. Krieger,

289 U.S. 459, 465; Costello v. United States, 198 F(2)

200 (C.C.A. 2, 1952), cert. den. 344 U.S. 874; see

Bowers v. United States, 202 F(2) 447, 451, 92 U.S.

App. D.C. 79; ef. United States v. Josephson, 165 F (2)

82 (C.C.A. 2, 1947), cert. den. 333 U.S. 838; and Orman

v. UnitealeStates, 207 F(2) M48 (¢.C.A. 3, 1953).

The Costello ease, approved by the Court and ac-

~ cepted by the Government as correct in Yates v. United

- States, 355 U.S. 66, 73, is persuasive here. A quota-

tion from that opinion (198 F(2) at p. 204) sets forth

the problem there, which is not distinguishable from

the problem here, and the Court’s decision thereon:

We are of the opinion that. the convictions on

Counts Seven, Nine, Ten, and Eleven, must be re-

versed. Each of those counts dealt with the defend-

bad

ant’s refusal to answer a specific question put to

him after he had-flatly refused to give any further

testimony on that particular day. Certainly the

refusal to testify was an act in contempt of the

ee for which the Hcg ena was —. to

punishment prescribed - by statute. But

when the defendant made his position clear, the

Committee could not multiply the contempt, and

the punishment by continuing to ask him questions

each time eliciting the same answer: his refusal to

give any-testimony. In other words, the contempt

was total when he stated that he would not testify,

and the refusal to answer specific questions can

‘not be considered as anything more than expres-

sions of his intention to adhere to his earlier state-

ment and as such were not separately punishable..

The petitioner in Yates had refused, as did Peti-

tioner here, to answer questions in a stated area of

‘ interrogation, and was then found guilty of contempt

.on eleven individual questions which followed. There,

the Government sought to distinguish Costello on the

ground that the refusal in Yates was not a refusal to

answer any questions. That attempted distinction was

rejected (Yates at p. 73), and must be rejected here.

Yates requires the determination that Petitioner, if

he committed any contempt, committed but one eon-

tempt in his Washington appearance. Sifch contempt,

_under the controlling doctrine of Yates on this point,

was asingle contempt, complete on Petitioner’s general

refusal to answer questions concerning communism and

continuing through the refusals to answer individual

-. questions, But that is not the crime charged against

Petitioner in the indictment. The indictment makes

_ no reference to a general refusal to answer questions

concerning Communism, and charges sixteen separate

contempts. So Petitioner was tried, convicted and

sentenced on the basis of a charge of sixteen contempts.

Such conviction was plainly erroneous under Yates.

But here, unlike Yates, the remedy is not the setting

aside of the conviction for the sole purpose of resen-

tencing. Yates was a case of criminal contempt com-

mitted in the presence of the trial court, and punished

summarily. In such a ease, ag the Court noted in

Yates at p. 69, it was only necessary under Rule 42(a)

of the Federal Rules of Criminal Procedure for the

trial judge to certify that he saw or, heard the con-

temptuous conduct, and to recite the facts in his order

of contempt. In Yates, as the Court specifically ob-

served at p. 70, there was no question as to the form

_ or-content of the specifications of the contempt found..

So it was possible in Yatés to affirm the conviction (in

effect) on the basis of one continuing contempt. Here,

Petitioner had a right to be tried only upon the indict-

ment of the Grand Jury. 2 U.S.C. See. 194; Constitu-

tion, Art. V. The indictment did not charge Petitioner

with one continuing contempt, but alleged sixteen sep-

arate contempts which under Yates were not punish-

able offenses. The indictment was also invalid in fail-

ing to apprise Petitioner with reasonable certainty, of

the nature of the accusation against him, to the end

that he might prepare his defense. See the cases

cited supra, at pp. 42-43. One contempt is not sixteen

_eontempts. Defense preparation and trial of one con--~

tempt charge differs from preparation and frial «*”

sixteen contempt charges—and not only in considera-

tion of whether a plea of guilty or nolo contendere

would be in a defendant’s best interest. Cf. p. 37, supra.

- For these reasons, the indictment must be dismissed.

Tn any event, since indictment, trial, and conviction

here were on the invalid basis of sixteen separate of-

fenses, due process does not permit affirmance on an .

otherwise valid basis of one contempt, for Petitioner

was never accorded an opportunity to meet a one con-

tempt charge. See the cases cited at p. 47, supra. Peti-

tioner’s invalid conviction cannot be validated on re-

view and must be set aside.

Vi. The Conviction ‘Should. Bo Roversed Baceuse it le Not

Supported by the Proof of Pertinence at Trial. .<

In making its showing of.pertinence at the trial,

the Government was required to prove a subject under

inquiry. Deutch v. United States, 367 U.S..456. This

the Government failed by far to do.

At the outset of Petitioner’s trial, the Government

announced its primary position to be that the subject |

under inquiry was as broad as the powers conferred

upon the Committee by H. Res. 5 which established it

(R. 43). The Government maintained that position

thronghowtthe trial. Its last witness, Committee Coun- -

sel, claimed that of the matters entrusted to the full

Committee no particular subject was singled out for

the hearings at which Petitioner testified (R. 115).

This proof cannot support the conviction; for the

House resolution which empowers this Committee can- °

not validly serve as the subject under inquiry. Wat-

kins v. United States, 304 U.S. 178.

The Government’ s proof of “special pertinence’’

touched upon a myriad.of separate and distinct pos-

sible subjects, which in sum total vaguely comprise the

vague, full powers conferred up. on the Committee by

H. Res. 5. See pp. 12-16, supra. The Government

_offered no proof to connect any of these many possible °

subjects with the questions on which Petitioner} was

convicted ; and no connection is apparent. sienect

‘

Here the Government does not claim any of these

many possible, subjects on which it touched at trial as

- the subject under inquiry when Petitioner testified.

Instead it is claimed that the subject under inquiry

was ‘*Communist activity at Antiéch College.” Brief

for the United States in Opposition, p. 10. No such

contention, or proof of such contention was offered at

trial as a subject under inquiry. The questions on

which Petitioner was convicted (R. 3) are not, in and

of themselves, related to ‘Communist activity at Anti-

och College. ”* Proof of a connection between those

questions and the subject now claimed was introduced

by the Government at trial not as part of its proof of

pertinence but éxpressly im attempted refutation of

. Petitioner’s contention of no legislative — (See

Point TI, supra, p. 51.)*

In these circumstances, the trial judge rather plainly

found pertinence on the basis of a prohibited subject

under inquiry—H. Res. 5 which established the om-

mittee. And, in any event, no other subj under i

quiry was proven beyond a reasonable dou

trial judge, no more than a jury, was free to upecala

among the many possible subjects of inquiry the Gov-

83 Committee Counsel, Mr. Tavermer, was the Government's only

witness on pertinence. During his testimony on direct, the Gov-

ernment introduced all of the many possible subjects of inquiry

which it does not now claim (R. 32-6Q). Petitioner’s cross-exam-

ination (R. 62-84, 91-99) was completely devoted to proving no

legislative purpose. {Pn redirect, the prosecutor with express ref-

erence to the testimony on lack of legislative purpose which peti--«

tioner had elicited on cross-examination ( R. 105-106) went on, in

attempted refutation of that testimony, to get. such connection,

between the indictment questions and communism at Antioch

peo as the Government now relies on for pertinence (R.

a 112). «

66 =

ernment touched on either as subjects under inquiry

or in attempted refutation of no legislative purpose.

The directed verdict requested by Petitioner (R. 19)

should have been granted.”

‘ CONCLUSION :

The conviction-sho be reversed with directions

to dismiss. .

a Respect submitted,

aia A. FANELLI

BEneEpict P. Corrone

CorTone & FANELLI

1001 Connecticut Ave., N.. W.

Washington 6, D. C.

‘ Attorneys for Petitioner

Dated: October, 1961. -

‘

r ;

* Of course, the Government cannot now, consistently with Due

Process, support the conviction on the basis of a theory as to sub-

ject under inquiry not advanced at trial. See the cases cited

supra, at p. 47. ¢

° ; 3

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