Brief for the US — Noto v. United States

Supreme Court brief1961

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Text

Questions presented OS ET a eee 5

l. Petitioner, having failed to challenge the per-

tinency of the questions before the Subcom-

mittee, cannot raise the issue for the first time

at his trial. In any event, petitioner was

apprised of the subject under inquiry

A. The issue of pertinency was riot properly

raised before the Subcommittee______ -

B. Petitioner was apprised of the subject

1 A as

II. The subpoenaing of petitioner to testify before

the Subcommittee did not violate the Fourth

subpoenas to testi y

C. If the Fourth Amendment does apply, it

was not violated in this case 3

III. The Subcommittee’s investigation of Communist

infiltration of news media did not violate the

A. The Subcommittee was investigating

Communist infiltration of news media,

not news media in themselves

B. The Subcommittee’s subpoenaing of peti-

tioner was not the result of indiserim-

inate dragnet procedures lacking in

probable cau es

617752—1—1 15

£0

Rina 1

Argument Continued

IV. Petitioner cannot challenge the nd jury for

bias on the ground that it was composed in

part of government employees

A. The presence of government employees on

a grand jury does not automatically

invalidate the indietmentt - --

B. Petitioner was not entitled to a hearing,

in order to show that the grand jurors

were biased, because he failed to allege

specific and convincing facts demon-

strating the bias of individual grand

V. The indictment was not required to specify the

subject under inquiry - - --.-........--...---

~ CR a a . ̃ et

CITATIONS .

Cases:

Bain, Ex parte, 121 U. 1111.

Ballard v. United States, 329 U.S. 1877.

Barenblatt v. United States, 240 F. 2d 875, vacated and

remanded, 354 U.S. 930, affirmed, 360 U.S. 109. 3, 13,

14, 17, 18, 24, 28, 29, 30, 31, 42, 43, 45, 48, 50-51,

53, 54, 59, 81 |

Berger v nited States, .... eee pe 80

Boyd v. — 2 44, 45

Braden v. Wnited elie, 272 F. 2d 653, affirmed, 365

UB. 431 Wa ce oz 16, 17, 18, 39, 45, 46, 48-49

Carroll v. United States, 267 U.S. 1322 51

Cassell v. Tea, 339 US. 28222222222 68

Cleveland v. Un States, 146 F. 2d 730, affirmed, 329

pis Sey ats, State ne pore Sara ee ey ee 72

Coblentz v. Maryland, 164 Md. 558, 166 Atl. 45 71

Collins v. State, 3 Ala. App. 64, 58 So. 80_.________- 71

Costello v. United States, 350 U.S. 359. 20, 64, 67

Dennis v. United States, 339 U.S. 162 19, 21, 63, 75

Deutch v. United States, 367 U.S. 456_..... ..._.__. 3, 13,

14, 22, 24, 29, 30, 42, 43

Draper v. United States, 358 U.S. 307. 51

Dunlop v. United States, 165 U.S. 48888. 39

Emspak v. United States, 203 F. 2d 54, affirming 95 F.

Supp. 1012, reversed, 349 U.S. 190 ; 73,78

III

Cases Cont inued Page

Frazier v. United States, 335 U.S. 47777 63

Hagner v. United States, 285 U.S. 47. 80

Hale v. Henkel, 201 U.S. 42 13, 25, 26, 64, 67

Hernandez v. Teras, 347 U. cos a Che ag ae ae 68

Jaffke v. Dunham, 352 U.S. 280. 43

Lawn v. United States, 355 U.S. 3399. 64, 67

Liveright v. United States, No. 11, this Term 3, 35

Markham v. United States, 160 U.S. 319. 21, 80

McKenna v. United States, 232 F. 2d 43 38

McMullen v. United States, . a 39

McPhaul v. United States 364 U.S. 372 29

Morford v. United States, 339 U.S. 258. 63

Neal v. United States, 185 F. 2d 441, certiorari denied.

MN RE oe ee 38

Oklahoma Press Publishing Co. v. Walling, 327 US.

I oC: Rat) ia eae apne a 17, 18, 46-47, 51, 52, 62

Olmstead v. United Sintes, 377 UB. 438. 2... 44-45

People v. Kempley, 205 Cal. 441, 271 Pac. 48 71

People v. Prior, 268 App. Div, 717, 54 N.Y.S. 2d 150,

affirmed, 294 | SP Sete Pr craton 75

Quinn v. United States, 203 F. 2d 20, reversed, 349

ff.... ßßßßßßßßß ß ĩͤ v 73,

Reichert, State ex rel. v. Youngblood, 73 N. E. 2d 174

Rice v. State, 204 Ark. 236, 161 S. W. e 8 Za

Ruthenberg v. L nited States, 245 U.S. 40.

Sacher v. United States, 240 F. 2d 46, N und re-

282

— — 1

—

— . ß ð v. 59

Sacher v. United States, 252 F. 2d 828, reversed, 356

.... ñ ñͤ ß ̃ĩͤ ß ᷑ ᷑ͤͤ Sie tee 8182

Shayne v. United States, 255 F. 2d 739, certiorari de-

nied, 358 U.S. 823 = „ 38

Sinclair v. United States, 279 US S. 263. —— ah a a 45, 80

State v. Easter, 30 Ohio St. 5422 Ree oe 71

Stirone v. United States, 361 US. 212 38, 39-40

Strauder v. West Virginia, 100 U.S. 303 68

Thiel v. Southern Pacife Co., 328 US. 217. 68

mann v. United States, 350 A 42

United States v. Albanese, 224 F. 2d 879 38

United States v. Bender, 218 F.2d 889999. 39

United States v. Bryan, 339 U.S. 323 13, 25-26

Casea—Continued

United States v. Costello, 221 F. 2d 668, affirmed, 350 rage

RRR Rms Sr 7 Se Ree ae See 38

United States v. Debrow, 346 U.S. 374. 79, 80, 81

United States v. Fleischman, 399 U.S. 349. 26

United States v. Fujimoto, 102 F. Supp. 800 65-66

United States v. Josephson, 165 F. 2d 82, certiorari de-

. 82-83

United States v. Kamin, 136 F. Supp. 791 27-28

United States v. Kennefick, 144 F. Supp. 596. 80

United States v. Knowles, 147 F. Supp. 1199... 70

United States v. Lamont, 18 F. R. D. 27, affirmed, 236

7 oe ots aia hos oe dcem 82

United States v. Neff, 212 F. 2d 297 8 40

United States v. Orman, 207 F. 24 143838. 52

United States v. Remington, 191 F. 2d 246, certiorari de-

. // ¼ Ä ͤͤ 64, 65, 74

United States v. Rintelen, 235 Fed. 787 3 65, 70

United States v. Smyth, 104 F. Supp. 283. 65. 70

United States v. White, Fed. Cas. No. 16, 679 65

United States v. Williams, Fed. Cas. No. 16, 716. 71

United States v. Wood, 299 U.S. 1233322.. 63

Watkins v. Uni , 354 US. 17898. 27, 35, 82

Weeks v. United 232 1 45

Wilkinson v. U States, 365 US. 300. ........... 16,

17, 18, 24, 45, 46, 49, 51, 53, 54, 59, 62

Yates v. United States, 355 US. 6006. 83

Constitution and Statutes: :

Consuitution:

First Amendment 16, 17—18, 43, 48-62

Fourth Amendment. 16-17, 18, 41-48, 43, 51, 52, 54, 55

ees IN ] ˙— Y 38, 43-44, 52

2 U.S.C. 192 (RS. 102, as amended 2, 22, 83

New York Code of Criminal Procedure:

E . 74

TTT cia cemeued 74

Miscellaneous

24 American Jurisprudence, Grand Jury, § 10 70-71

Annotation, Prejudice of Member of Grand Jury

Against Defendant as Ground of Aitack on Indict-

ment, TTV 70

Miscellaneous Continued 5 Page

Federal Rules of Civil Procedure, Rule 1 77

Federal Rules of Crnninal Procedure : 7

SEES SSS . ae mee 78

a. SEE BERGE TE ee aoe eee eee 78

.. Sta ete os ene oS ay 78

ene bei a, Ee aU SES ene ta oie A aE 79

Rule —::! . OLS Se 39

tration of the Internal — Act and Other In-

ternal Security Laws of the Committee on the

Judiciary, U.S. Senate, 84th Cong., Ist Sess: b

TFT. ³ AA 4

Wed citetupeekeaisaud cue oe oe No, 50

Orfield, Criminal Procedure from Arrest to Appeal

— . ͤ eS 65

S. Res. 366, 8ist Cong., 2d Ses. 2, 34, 35, 47

In the Supreme Court of the Wnited States

OcToBER TERM, 1961

No. 9

RokERr SHELTON, PETITIONER

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

- \

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the court of appeals (R. 232-244)

is reported at 280 F. 2d 701. The opinion of the dis-

trict court (R. 214-227) is reported at 148 F. Supp.

926.

JURISDICTION

The judgment of the court of appeals was entered

on June 18, 1960 (R. 244). The petition for a writ

gof certiorari was granted on March 27, 1961 (R. 245;

365 U.S. 857). The jurisdiction of this Court rests _

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

5 (1)

QUESTIONS PRESENTED

1, Whether petitioner was apprised and was aware

of the subject under inquiry.

2. Whether a Congressional committee may sub-

poena a person to testify if it has reasonable basis

for believing that he possesses information of value

to its investigation and, if so, whether the Internal

Security Subcommittee had such information as to

petitioner.

3. Whether the Subcommittee’s investigation into

Communist activities “in news media violated peti-

tioner’s rights under the First Amendment.

4. Whether a defendant, who is indicted by a grand

jury partly composed of federal employees, is en-

titled to dismissal 9f the indictment or a hearing on

the basis of general allegations that such jurors are

biased and afraid as the result of the government

security program.

5. Whether the indictment was invalid because it

failed to specify the subject under inquiry.

STATUTE AND RESOLUTION INVOLVED

2 U.S. C. 192 (R. S. 102, as amended) and the perti-

nent provisions of Senate Resolution 366, 81st Cong.,

2d Séss. (1950), are set forth in N s brief at

Pp. 3-4.

STATEMENT

N wes charged in a three-count indictment

with having unlawfullv refused to answer three ques-

tions pertinent to matters under inquiry by the Sub-

3 »-

committee to Investigate the Administration of the

Internal Security Act and Other Internal Security”

Laws of the Senate -Cofnmittee on the Judiciary (R.

1-2). Having waived his right to trial by jury (R.

23), petitioner was found guilty by the distriet court

on Counts 1 and 2. Count 3 was dismissed (R. 226).

Petitioner was sentenced to six months’ imprison-

ment and to pay a fine of two hundred and fifty

dollars on each of the two counts, with the sen-

tences of imprisonment to run concurrently (R. 231).

On appeal, the Court of Appeals for the Distriet

of Columbia Cireuit ordered that hearings in this

and seven other pending contempt of Congress cases

all of which involved refusals to answer questions

asked by Congressional committees— be deferred un-

til after the decision of the Supreme Court in Baren-

platt v. United States *.” Following the Baren-

blatt decision (360 U.S. 109), the eight cases were

assigned to a single panel of the court below, supple-

mental briefs were ordered filed in each, and oral

arguments were heard. On June 18, 1960, the court

of appeals reversed the convictions in two of the eight

eases, Knowles v. United States.and Watson v. United

States, and unanimously affirmed the convictions in

the other six, including that of petitioner. Shelton

v. United States; Deutch v. United States; Russell v.

United States; Price v. United States; Liveright v.

United States; Gojack v. United States. This Court

granted certiorari in the six latter cases, and at its

last Term reversed the conviction in Deutch v. United

States (367 U.S. 456). The other five cases, inelud-

ing petitioner’s, have been set for oral 3 at

this Term.

The pertinent facts may be summarized as s follows:

On June 28 and 29, 1955, the Senate Internal

Security Subcommittee heard the testimony of Win-

ston Burdett, a newspaperman and broadcaster, in

connection with its continuing investigation since 1950

into Communist subversion and the operation of the

internal seeurity laws (R. 71; Hearings, Subcom-

mittée to Investigate the Administration of the In-

ternal Security Act and Other InternaL-Security Laws

of the Committee on the Judiciary, U.S. Senate

[hereafter „Hearings“ '], 84th Cong., Ist Sess., Part

14, pp. 1324-1363). Burdett, who said that he was a

Party member from 1937 until the early 1940s, testi-

fied concerning attempts of the Communist Party to

influenée public opinion by infiltration of Party mem-

bers into the newspaper field. He stated that he

became a member of the Party’s unit on the Brooklyn

Eagle in 1937 while employed by that newspaper

(Hearings, Part 14, p. 1324); that the unit included

several reporters and editorial writers (id. at pp.

1325-1327, 1359-1360); that Party leaders induced

him to become a foreign correspondept for the Eagle

in order to use his position to act as an espionage

agent for the Soviet Union and that he continued

these activities while subsequently,employed by Trans-

radio Press and the Columbia Broadcasting System

during World War II (td. at pp. 1328-1341, 1347-

1353); and that employees of other New York news-

papers had been Party members around 1940 (td. at

pp. 1360-1363).

Subsequent to Burdett’s testimony, the Subcom-

mittee received information that a man by the name

‘of “Shelton,” said td be employed on the editorial

or news side of the New York Times, was a member

of a Communist group among the staff of that or-

ganization, that he was active in the affairs of this

group, and that he was in a position to furnish the

Subcommittee with information concerning Commu-

~ nist activity (R. 48-49, 98, 116). The first name of tae

person identified as „Shelton“ was not given. Al-

though this information came to the Subcommittee

in a letter signed with a pseudonym, the identity of the

writer was known to the former associate counsel of

the Subcommittee, Robert Morris (R. 99-102, 190-

191). The writer was considered to be reliable since

other information he had given the Subcommittee had

- been checked and found to be correct (R. 101-102,

190).

Although the Subcommittee was still unaware of

Mr. Shelton’s first name, a ‘subpoena was issued,

addressed to Willard Shelton” at the New York

Times in New Vork City (R. 105). This name was a

mistake since Willard Shelton was not the person

actually sought by the Subeommittee (R. 49, 102).

Counsel for the Subcommittee, Mr. Sourwine, later sur-

mised, after an investigation by himself, that someone

in the typing section of the Subcommittee staff con-

fused the ‘‘Shelton”’ to be subpoenaed with one Wil-

lard Shelton, who is likewise a newspaperman but

who was not employed by the Times or sought by

the Subcommittee (R. 102-103).

The Subeommittee employee who went to New York

City to serve the subpoena, along with other sub-

poenas, ascertained that no Willard Shelton was em-

ployed by the New York Times (R. 49, 106). He was

4 told that a Robert Shelton (the petitioner) was an

employee of that organization and he was the only

Shelton“ on the editorial or news side (R. 49, 106).

The Subcommittee employee added the words or

. Robert Shelton“ tu the subpoena and upon instruc-

tions of the Subcommittee served the subpoena on

petitioner (R 49, 105-106).

Between the time that the subpoena was issued and

petitioner’s appearance, the Subcommittee checked its

various sources to secure further information con-

cerning petitioner (R. 111). At that time, the Sub-

committee had under the name Shelton (without a

first name) three, four or five leads (R. 111). Be-

cause of this information, the Subcommittee desired

to question petitioner concerning whether he was the

Shelton. who was not sufficiently identified by the

Subeommittee’s files (R. 111).

Petitioner, represented by counsel, first appeared at

an executive session of the Subcommittee, in New York

City on Deeember 7, 1955 (R. 48). Petitioner was ad-

vised by Subcommittee counaél that the purpose of

the appearance was to clarify the question of identity

(R. 52). Upon being queried as to Communist Party

membership, petitioner immediately responded that

he had a statement to read (R. 52). The statement,

which was then read, objected in substance to the

Subcommittee’s inquiry into petitioner’s Communist

Party membership on the grounds that the Subcom-

- mittee lacked jurisdiction and the inquiry infringed |

his rights under the First Amendment of freedom of

speech and, since he was a newspaperman, of the

press (R. 53-55). Subcommittee counsel then told

the Subcommittee that he was surprised by petitioner“s

refusal to answer the questions since petitioner was

subpoenaed only for purposes of identification and he

was not charged with being a Communist (R. 57).

The Subcommittee held public hearings in Washing-

ton, D.C., on January 4, 5, and 6, 1956 (R. 70-71). At

the opening of the hearings on January 4, Senator East-

land, the chairman of the Subcommittee, announced

that the hearings about to commerce stem from ses-

sions of this subeommittee held on June 28 and 29,

1955, in which we heard the testimony of Mr. Winston

Mansfield Burdett, a newspaperman and broadcaster”’

(R. 71). Burdett had, the chairman continued, dis-

closed the names of persons whom he knew as mem-

bers of the Communist Party in the early 19408. The

chairman concluded that the investigation was of

great importance because (R. 71) :

[Almong the persons involved in this investi-

gation have been many who were or are mem-

bers of the press, and * * * the international

Communist conspiracy has as one of its pri-

mary aims the influencing of public opinion,

thus carrying on its psychological warfare

against the United States and its institutions

from inside by methods of penetration.

The present hearings open up a subsequent

chapter to the Burdett testimony * * *.

Following the opening statement, another member

of the Subcommittee, Senator Hennings, apparently

apprehensive that the public might misconstrue the

purpose of the hearings, further explained (R. 72-73):

[TIhis is not in any sense an attack upon the

free press of the United States.

Of course, the committee is interested in the

extent and nature of so-called Communist in-

filtration, if such exists, into any news-dis-

pensing agency. * * * [T]his is not an attack

upon any one newspaper, upon any group of

newspapers as such, but an effort on the part

of this committee to show such participation

and such attempt as may be disclosed on the

part of the Communist Party in the United

States or elsewhere, indeed, to influence or to

subvert the American press.

In response, the chairman approved Senator Hen-

nings’ description of the purpose of the hearings as

a very fine and very accurate statement, one with —

which the Chair certainly agrees, in its entirety’ (R.

73). The chairman went on to say (R. 73):

We are not singling out any newspaper and not

investigating any newspaper or any group of

newsrspers. We are simply investigating com-

man wherever we find it, and I think that

when this series of hearings is over that no

one can say that any newspaper or any em-

ployees of any, one newspaper has been singled

out.

Eighteen witnesses were called by the Subcommittee

to testify at the hearings on January 4, 5, and 6, 1956.

All had been or were then employed in mass commu-

nication. Clayton Knowles, who had previously given

the Subcommittee information on Communist activity

in newspapers (R. 75, 76), was among the witnesses

called to testify on January 4. Knowles testified that

he was then a reporter for the New Vork Times; that

he was a member from 1937 to 1939 of, the Commu-

nist Party unit of the Long Island Daily Press where

he was a reporter; and that Party members at that

time had positions of importance and exerted con-

siderable influence in the American Newspaper Guild

(Hearings, Part 17.“ pp. 1635-1642).

On January 6, 1956 (two days later), immediately

preceding petitioner’s testimony, the hearings opened

with the reading of a telegram sent to the Subcom-

mittee by a New York newspaper, the Long Island

Daily Press, in which that newspaper agreed with the

Subeommittee’s efforts to expose Communist infiltra-

tion wherever found (R. 74-75). The chairman, in

responding to the telegram, repeated that the hear-

ings were directed to investigating Communist infil-

tration into news agencies (R. 75-76). Senator

Hennings stated (R. 77): >

I think that no one will quarrel with nor take :

issue with the fact that this committee has the

right O inquire into all efforts or, indeed, all

consummations of efforts of the Communist

Party to infiltrate newspapers or other media of

communication. a

The Subcommittee then called petitioner to testify.

At petitioner's trial, Counsel Sourwine stated that

1 Part 17 of the Hearings is entitled Strategy and Tactics of

World Communism (Communist Activity in New York).

the reason petitioner was recalled by the Subcommit-

tee was that he had refused to answer certain ques-

tions at the executive session (R. 81):

They were questions in the area in which the

committee wanted information. I was satis-

fied that he had such information, and I hoped

that if he came on in executive session [sic],

that perhaps he might change - mind and give

it to us.

Mr. Sourwine further testified that the question un-

der inquiry before the subcommittee when the defend-

ant testified was (R. 138-139) :

Broadly, the question under inquiry was the

scope and extent and activities of the commu-

nist conspiracy against the United States, more

specifically, as it applied to the New York area,

and on the particular day he testified, and with

regard to his testimony, still more specifically

within that broader area, and we endeavored to

get information about communist activity in the

New York Times or in connection with em-

ployees of the New York Times or by such

employees.

Mr. Sourwine continued (R. 139) :

When the committee was questioning this par-

ticular witness, within the area of its much

broader investigation, it was concerned with

the particular area of that, broader investiga-

tion which concerned ist activity among

newspaper people, communist activity cn. the

New York Times and communist activity in an

effort to infiltrate the Typographical Union in

New York.

At the start of his testimony before the Subcom-

mittee on January 6, before he was sworn, petitioner

interposed several objections to his having been called

to testify. These objections included: an objection

to the jurisdiction of the Subcommittee on the ground

that petitioner’s testimony in executive session made

clear that no information would be obtained relating

‘to the Subcommittee’s legislative purpose; the claim

that questioning “might subject me to prosecution in

violation of my right to be tried in the community

where I wor. and live“; and the statement that he

did not “see why 1 am involved in this hearing, which

the chairman said on Wednesday stems from the Bur-

dett testimony. There was no reference to me in the

Burdett testimony nor in the testimony of Clayton

Knowles (R. 84).

After having been sworn, petitioner gave his name

and stated that he had been employed first as a news

clerk and then as a copy editor on the New Vork

Times for the previous five years (R. 84-85). Peti-

tioner was then asked: Are you, sir, a member of

the Communist Party, U. S.A. 7“ (R. 86). After con-

sultation with his counsel, petitioner said that “I

decline to answer on the grounds of the first amend-

ment and challenge to the jurisdiction of the com-

mittee (R. 87). He was then permitted to read a

lengthy statement in which he restated his refusal

to answer the question on the basis of the First

Amendment and the lack of jurisdiction of the Sub-

committee to investigate beliefs and associations (R.

87-91). These objections were predicated principally

617792— 61——-2

on the claim that the Subcommittee was investigating

newspapers, which violated freedom of the press. The

objections were overruled by the chairman, who or-

dered him to answer the question (R. 91). Petitioner

persisted in his refusal to answer the question on the

grounds set forth in his statement (R. 91), and Count

1 of the indictment was predicated upon this refusal

(R. 2).

Later in the hearing, petitioner refused to answer,

on the basis of the two grounds given in his written

statement, whether he was acquainted with any per-

sons whom he knew to be members of the Communist

Party, whether he had ever attended Party meetings,

and whether he knew Matilda Landsman. As dis-

closed at the trial, Matilda Landsman was believed by

the Subeommittee to be an employee of the New York

Times at the same time petitioner was on the Times,

first as a secretary and, after resigning to take lino-

type training, as a journeyman linotype operator in

the typographical department; a member of Typo-

graphical Union No. 6; and a member of the Com-

munist Party who had participated in the Party’s

attempt to take over the Typographical Union (R.

61-62). Pctitioner denied having any knowledge

respecting a Communist attempt to take over con-

trol of Typographical Union No. 6” or having “dis-

eussſ ed] with Matilda Landsman the question of any

Communist activity in that union (R. 93). Follow-

ing these denials, he was then asked (R. 93):

Now, for the purpose of testing the credibility

of that answer, sir, I will ask you, did you ever

have any conversation with Matilda Landsman?

Petitioner refused to answer this question on the

grounds set forth in his prepared statement. The

chairman ordered petitioner to answer the question

on penalty of contempt of the Senate, but petitioner

persisted in his refusal based on these same grounds

(R. 94). Count 2 of the indictment was predicated

upon this refusal (R. 2).

SUMMARY OF ARGUMENT

Petitioner cannotgexcuse his refusal to answer by

the alleged lack of pertinency of the questions.

A. A series of decisions by this Court has estab-

lished that a witness charged with contempt cannot

raise at his trial issues which he did not raise before

the tribunal before which the contempt occurred at

least when the tribunal might have been able to meet

the witness’ objection. E. g., Hale v. Henkel, 201

U.S. 43; United States v. Bryan, 339 U.S. 323. A

Congressional committee can remedy an alleged fail-

ure to make the pertinency of the question clear to

the witness by fully explaining its pertinency or even

by modifying the precise subject under inquiry, if

necessary. Thus, this Court has held that a witness

before a Congressional committee cannot claim that

the committee failed to apprise him adequately of the

pertinency of the question unless he makes a specific

objection on this ground before the committee.

Barenblatt v. United States, 360 U.S. 109, 123-124;

Deutch v. United States, 367 U.S. 456, 469.

Petitioner did not make even the “contemplated’’

and “buried”’ objection to the questions on the ground

of lack of pertineney which was made by the witness

in Barenblatt nor did he indicate any doubt as to the

importance of the questions such as was stated by

the witness in Deutch. He said that he could not

understand .why he had been subpoenaed, but this

objection appears only to raise the issue of “probable

cause,” a contention which petitioner renews in this

Court. Moreoyer, this general objection was made

when petitioner first appeared before the Subeom-

mittee, before any questions were asked; it was not,

and could not have been, directed to questions which

petitioner did not even know would be asked. When

they were asked petitioner gave other, different,

grounds for refusing to answer. He never claimed

lack of understanding of the pertinency of the ques-

tions, and is therefore, in no position to raise 2255

issué now.

B. In any event, petitiongr was made fully aware of

the subject under inquiry. At the beginning of the hear-

ings, the chairman clearly stated that the Subcommit-

tee’s purpose was to investigate Communist activity in

news media. While petitioner did not appear before the

Subcommittee until two days later, he showed his

awareness of the contents of the chairman’s opening

statements as well as of the testimony of two other

witnesses before the Subcommittee concerning Com-

munist infiltration of communications. Moreover,

petitioner was presumably in the committee room

when, only a few minutes before he appeared, two

—

— — —

members of the Subcommittee clearly identified the

subject of the investigation as Communist infiltration

of newspapers and other methods of communication.

And almost all of petitioner’s statement giving his

reasons for refusing to answer the Subeommittee's

questions is devoted to the claim that investigation

of the newspaper field violated freedom of the press.

Petitioner claims that four different subjects under

inquiry have been stated by the government at vari- 7

ous stages of this case. All these statements men-

tioning other s"bjects are fully consistent with the

assertion that the subject of investigation was Com-

munist activities in news media. For example, this

subject is part of the larger subject of Communist

activity in the United States generally, while Com-

munist activity on the New York Times is part of

Communist activity in news media.

Petitioner also claims that the government gave an

‘oral bill of particulars restricting its proof of the

subject under inquiry to Communist activities. gen-

erally. But the Assistant United States Attorney

made clear that he was merely saying that the au-

thority of the Subcommittee included Communism

generally—which obviously includes the more particu-

larized subject of Communist activity in news media.

Even if there was a variance between the govern-

ment's proof and the bill of particulars, it is well

established that the government can amend its bill

of particulars as long as the defense is protected

against surprise. If petitioner is correct in his inter-

pretation of the oral bill of particulars, the govern-

ment in effect amended it later. And petitioner has

never claimed—and could not claim—that he was sur-

prised by the government’ s reliance on the Subcom-

mittee’s clear statements made at the hearing as to

the subject under inquiry.

7 II

Petitioner’s dlaim that the Subcommittee violated

the Fourth Amendment is without merit.

A. Petitioner did not raise this objection before

the Subcommittee. Merely to express doubt of the

sufficiency: of the reasons for calling him was not

specific’ enough to meet the requirement of Baren-

blatt and Deutch that objections be brought home to

the committee. Thus, this contention was not avail-

able when he was tried for contempt. —

B. In any event, the Fourth Amendment 8

only to subpoenas duces tecum, not to subpoenas to

testify. The language of the Amendment itself

makes clear that it was intended to protect ‘‘persons,

houses, papers, and effects’’ only from improper

search or seizure. And this Court has never applied

the amendment to subpoenas to testify. While in

Barenblatt, supra, Braden v. United States, 365 U.S.

431, and Wilkinson v. United States, 365 U.S. 399,

the Court indicated that a Congressional committee

can subpoena 2 witness only on the basis of probable

cause, it suggested that this requirement resulted

from the First’ Amendment or from the need for a

valid legislative purpose; the Fourth Amendment was

not even mentioned.

— —

— — —

C. Even if the Fourth Amendment can be invoked,

it was not violated in this case. In Oklahoma Press

Publishing Co. v. Walling, 327 U.S. 186, 209, which

involved an administrative subpoena duces tecum,

this Court held that the requirement of probable

cause under the Fourth Amendment is satisfied if

„the investigation is authorized by Congress, is for a

purpose Congress can order, and * documents

sought are relevant to the inquiry.“ There is no

reason to apply a stricter standard to subpoenas fo

testify than to subpoenas duces tecum, or to Congres-

sional committees than to executive agencies. Here,

the investigation was authorized by Congress, and had

a purpose Congress could order; the questions peti-

tioner was asked were pertinent to the subject under

inquiry ; and the Subcommittee had a reasonable basis

for believing that the petitioner had information

which would be of value in the investigation.

III *

The Subcommittee’s investigation of Communist in-

filtration of news media did not violate the First

Amendment.

A. The record of the hearings and trial shows that

the Subcommittee was investigating Communist infil-

tration of news media, not the news media in fhem-

selves. In the Barenblatt, Braden, and Wilkinson

cases, this Court established that Congressional com-

mittees could, consistent with the First Amendment,

investigate Communist activities in education and

propaganda; equally, Congress can investigate Com- .

munist activities in news media,,

B. The Subcommittee’s subpoenaing of petitioner

was not the result of “indiscriminate dragnet pro-

cedures, lacking in probable cause. Barenblatt v.

United States, supra, 360 U.S. at 134. The standard

laid down in Barenblatt, Braden, and~ Wilkinson

under the First Amendment is plainly. less strict

than that applied to arrests or searches and seizures

under the Fourth Amendment. Moreover, there

is no reason under the First Amendment to apply

a stricter standard for subpoenas to testify than

the Court applied under the Fourth Amendment in

the Oklahoma Press case, supra, to subpoenas duces

tecum. In short, the proper standard to be applied

when a Congressional committee subpoenas a witness

is whether it has a reasonable basis for believing that

the witness has information related to the subject

under investigation which would be of value to the

committee. ä

Applying this standard, it is clear that the Sub-

committee had probable cause to subpoena petitioner.

It had heard testimony as to Communist efforts to

infiltrate the newspaper field. A reliable inform-

ant had written the Subcommittee that a Shelton on

the news side of the New York Times was an active

Party member in a Communist group on the Times

and would be able to give the Subcommittee informa-

tion as to that group. While the Subcommittee did

not have the first name of Shelton and initially made

an error in this regard in making out the subpoena,

there was only one Shelton on the news side of the

Times. Thus, the Subcommittee could be reasonably

ee —

certain that the Shelton who was subpoenaed was the

man identified as a Party member. But even if,

arguendo, the Subcommittee did not have reasonable

ground to believe that petitioner was a Party member,

the Subcommittee was absolutely certain that peti-

tioner had valuable information. For he could at least

clarify for the Subcommittee whether he was the

Shelton identified by the informant and by other in-

formation possessed by the Subcommittee.

Petitioner cannot challenge the grand jury for bias

on the ground that it was composed in part of govern-

ment employees.

A. An indictment is not automatically invalid

merely because government employees are grand

jurors. Indeed, it is well established that federal em-

ployes are not automatically disqualified from serving

even on petit juries in federaf criminal cases. And

this rule has been applied to a case involving a prom-

inent Communist charged with contempt of the House

Un-American Activities Committee. Dennis v. United

States, 339 U.S. 162. These principles involving the

petit jury apply a fortiori to grand juries, since de-

fendants have been traditionally provided far more

mrotection from possible bias as to jurors on petit

juries.

B. Petitioner was not entitled to a hearing in order

—

to show that the grand jurors were biased because he

failed to allege specific and convincing facts demon-

strating the bias of individual grand jurors.

)

The courts are traditionally reluctant to scrutinize

grand jury proceedings. See Costello v. United

States, 350 U.S. 359. The reasons are that an indict-

ment is merely an accusation and does not decide

guilt or innocence; thorough scrutiny of grand jury

proceedings would mean considerable delay in the

administration of criminal justice; and the defendant

is guaranteed elaborate trial and appellate protec-

tion' as to the proceeding at which his guilt or inno-

cence is determined. Moreover, this general reluc-

tance to scrutinize grand jury proceedings is par-

‘ticularly strong with regard to inquiries into the

beliefs and prejudices of grand jurors. History shows

that grand juries, unlike petit juries, are not expected

to be unprejudiced. Rather, they serve as conduits

to report the common knowledge of the community to

the courts.

This Court has never said what. kind of bias, if

any, would disqualify a grand juror or what kind of

allegations are necessary to require a hearing on this

issue. The cases invalidating convictions because of

racial or other discrimination on grand juries turn,

“not on the bias of the grand jurors who were on the

improperly constitiited grand jury, but on the failure

‘of the grand jury fairly to represent the community.

‘Most other eourts which have considered the issue

of grand-jury bias have held that Jias, no matter

how strong, of one or more grand jurors does not

‘invalidate an indictment. But some courts have held

that an indictment is invalid if it is shown that in-

dividual grand jurors are strongly biased. At the

— — — —

—

least, the rule in federal courts must be to require

convincing proof of strong. bias in individual grand

jurors. For in Dennis v. United States, supra, the

plurality opinion stated that even petit jurors are not

disqualified unless “actual bias“ is shown as to indi-

vidual jurors; it is not enough to show that govern-

ment employees generally are impliedly biased as a

result of government loyalty and security programs.

Even if we apply the standard in Dennis, petitioner

did not allege the specifie and convineing facts as to

individual grand jurors necessary to entitle him to a

hearing. Petitioner alleged only that government em-

ployees in general were biased and intimidated by the

government loyalty and security programs. Moreover,

he did not even allege speeific facts indicating gen-

erally that government employees were biased or

intimidated. Thus, petitioner is in effect seeking a

hearing in order to conduct a gen ral exploration into

the motives and beliefs of some Sie an jurors.

The indictment was not required to specify the

subject under inquiry. It is well established that

indictments in the statutory language are ordinarily

sufficient. This principle has been applied by this

Court so as to sanction the omission of a specific

allegation of materiality in a perjury indictment

(Markham v. United States, 160 U.S. 319, 325),

which is closely analogous to the pertinency of ques-

tions in a case involving contempt of Congress.

Every decision in the courts of appeals has held that

an indictment under 2 U.S.C. 192 need not specifi-

cally state the subject under inquiry.

Here the indictment stated, in the words of the

statute, that the questions petitioner refused to answer

were pertinent to the question then under inquiry.

The indictment provided ample information to pre-

vent a second prosecution for the same offense—the

name of the committee, the date of the hearings, and

the specifie questions which petitioner refused to

answer. With respect to preparing his defense, peti-

tioner was clearly apprised at the time of the hearings

what the subject under inquiry was, and he could

hardly have been in doubt that the transcript of the

hearings would be relied on by the government at

his trial.

ARGUMENT

PETITIONER, HAVING FAILED TO CHALLENGE THE PERTI-

NENCY OF THE QUESTIONS BEFORE THE SUBCOMMITTEE,

CANNOT RAISE THE ISSUE FOR THE FIRST TIME AT HIS

TRIAL. IN ANY EVENT, PETITIONER WAS APPRISED OF

THE SUBJECT UNDER INQUIRY

In Deutch v. United States, 367 U.S. 456, this

Court stated that “two basically different issues” of

pertinency are involved in a prosecution for con--

tempt of Congress. One issue arises out of the

présecution’s duty at the trial to prove that the ques-

tiens propounded by the congressional committee

were in fact ‘pertinent to the question under inquiry’

by the committee. Id. at 468. The Court held,

in reversing the Deutch conviction on that ground,

ee —

— —

that pertineney is part of the standard of eriminality

for contempt of Congress and therefore must be

proved by the government even if not challenged at

the committee hearing.

Petitioner, however, did not raise this issue in

the court of appeals or in his petition for certiorari

(see Pet. 2). While petitioner now claims that there

was no question under inquiry before the Subeom-

mittee (Pet. Br. 2, 26, 58), this was not the issue

on which certiorari was granted and therefore it is

not before the Court. Consequently, we do not con-

sider this issue at length in this brief, but merely

note here that the actual relevancy of the questions

petitioner refused to answer to the subject under

inquiry is clear beyond doubt. The subject under

inquiry was, as the trial court found (R. 225), Com-

munist infiltration into news media. This subject

was shown by the statements of members of the Sub-

committee and the testimony of other witnesses be-

fore the Subcommittee “which were known to

petitioner and which, as we will show (pp. 32-33),

fully apprised petitioner of the subject the Subcom-

mittee was pursuing. In addition, all the witnesses

called by the Committee to testify at the hearings

on January 4, 5, and 6 worked in the news media

field (see Gov. Ex. 7) and the Subcommittee counsel

testified at petitioner's trial that Communist

activity in this area was the subject under in-

quiry (see supra, p. 10). The question whether

petitioner, who was employed by the New York

Times (see supra, p. 11), was a member of the

ay 2

Communist Party (Count 1) is obviously pertinent

to the subject of Communist infiltration of the press.

Cf. Wilkinson v. United States, 365 U.S. 399, 413;

Barenblatt v. United States, 360 U.S. 109, 125. As to

the question whether petitioner had ever had a conver-

sation with Matilda Landsman (Count 2), the Sub-

committee had information that she was an employee of

the New York Times and was a member of Typograph-

ical Union No. 6 and of the Communist Party (see

supra, p. 12). The question, as petitioner was.

told at the hearings, was intended to test the credi-

bility of his earlier answers denying any knowledge

of a Communist attempt to take control of Typo-

graphical Union No. 6 and denying having discussed

Communist activity in the union with Matilda Lands-

man. Thus, the pertinency of this question to the

subject under inquiry is like wise clear.

ee ee ee, isted tp the

Court in Deutch is whether the pertinency of the

interrogation to the topic under the congressional

committee’s inquiry [was] brought home to the wit-

ness at the time the questions [were] put to him“

(367 U.S. at 467-468). The Court made clear that any.

witness who is doubtful about the pertinency of ques-

tions must raise the issue befere the Congressional

committee. He cannot object that the pertinency

was not explained to him for the first time at the

trial for contempt. As we will show below (pp.

25-32), petitioner did not challenge the pertinency of

the questions before the Subcommittee at the hear-

‘ings, and therefore the Subcommittee had no duty

ht A iit he hte

— — —

to apprise petitioner of the subject under inquiry.

We will also show (pp. 32-41), however, that peti-

tioner was in fact apprised of the subject under

inquiry.

A. THE ISSUE OF PERTINENCY WAS NOT PROPERLY RAISED BEFORE

THE SUBCOMMITTEE

Petitioner claims that he was not adequately ap-

prised by the Subcommittee of the subject undér in-

quiry so that he could determine whether the ques-

tions asked him were pertinent to this subject. But

- petitioner failed to raise this objection before the

Subcommittee and, under this ‘Court’s decisions, is

- precluded from raising it for the first time in the

contempt proceeding.

1. In Hale v. Henkel, 201 U.S. 43, the witness

based his refusal to produce documents on three

grounds, one of which was that it was impossible

for him to collect them within the time allowed’’

(id. at 70). The Court indicated that it would not

consider this objection because, “[h]ad the witness

relied solely upon [this]: ground, doubtless the court

would have given him the necessary time“ (ibid.).

United States v. Bryan, 339 U.S. 323, 334, in com-

menting on the Hale case, stated:

[Hlaving refused compliance for other rea-

sons which the lower court could not remedy,

the witness could not later complain of its

15 refusal to do a meaningless act—to grant him

additional time to gather papers which he had

indicated he would not produce in any event.

Similarly, Bryan held that a witness who, having

been subpoenaed to appear and produce records be-

‘

fore a Congressional committee, appears but refuses

to produce the records, may not raise at his trial for

the first time the issue whether a quorum of the com-

mittee was present. The Court stated that It he

defect in composition of the Committee, if any, was

one which could easily have been remedied. * * *

For two years, now grown to four, the Committee’s

investigation was obstructed by an objection which,

!. ðᷣͤ v

in a few minutes” (339 U.S. at 333). Moreover, it

was apparent that this witness would not have com-

plied with the subpoenas no matter how the Commit-

tee had been constituted at the time. * * * Here re-

spondent would have the Committee go through the

empty formality of summoning a quorum of its mem-

bers to gather in solemn conclave to hear her refuse

to honor its demands” (id. at 333-334). And in

United States v. Fleischman, 339 U.S. 349, 352, the

Court, relying on Bryan, stated simply that the issue

of a quorum “was raised for the first time at the trial,

two years after [the witness’] appearance before the

Committee, where she had given other reasons for her

failure to produce the documents,” and therefore “the

defense of lack of quorum was not available to her.”

The principles—originally laid down by the Court

in the Hale, Bryan, and Fieischman cases are fully

applicable to the issue whether the witness is suffi-

ciently apprised of the subject under inquiry and the

pertinency of the questions to this subject. When a

witness challenges the pertinency of a question, the

Congressional committee or its counsel can explain

more fully the subject under inquiry and the relation-

ship between the question and the subject. Indeed,

the committee can even modify the precise subject

under inquiry if that is necessary. Moreover, when

a witness relies on other grounds for refusing to an-

swer the question, the pertinency of the question, like

the existence of a quorum, is immaterial since the

witness would not have answered no matter how elear

the committee made the pertinency of the question

appear. ö

In Watkins v. United States, 354 U.S. 178, the

Court stated that It he final source of evidence as

to the ‘question under inquiry’ is the Chairman’s

response when petitioner objected to the questions on

the grounds of lack of pertinency’’ (id. at 214;

emphasis added). The Court then held that,

“{uJnless the subject matter has been made to appear

with undisputable clarity, it is the duty of the investi-

gative body, upon objection of the witness on grounds

of pertinency, to state for the record the subject un-

der inquiry at that time and the manner in which the

‘propounded questions are pertinent thereto” (id. at

214-215; emphasis added). The footnote to this

sentence reads “Cf. United States v. Kamin, 136 F.

Supp. 791, 800“ (354 U.S. at 215, note 55). At page

800 of the Kamin opinion, then District Judge Ald-

* Watkins specifically told the committee that “I do not

believe that such questions are relevant to the work of this

committee * * *.”

617792 61—3

we mt ee

rich emphasized the necessity of a specific objection

on grounds of pertinency:

The defendant contends that it is nog enough

for a question to be pertinent—the witness

must be informed of the subject matter, so that

he may have a definite standard by which to

determine whether he should answer. Because

if he was not so informed he admittedly indi-

cated no interest, and did not choose to sup-

plement any deficiency in his knowledge by

asking either the Chairman or his own counsel,

I regard this contention as immaterial. —_

The requirement that the issue of pertinency be

raised before the investigating committee was made

absolutely clear by the holding in Barenblatt v.

United States, supra, 360 U.S. at 123-124. Indeed,

the Court stated that the issue is not even raised by

a memorandum submitted by a witness to the com-

mittee saying that “I might wish to * * * challenge

the pertinency of the question to the investigation“

and quoting, from an opinion of this Court, “language

relating to a witness’ right to be informed of the

pertinency of questions asked him by an administra-

tive ageney. Id. at 123. This Court held that

“[t]hese statements cannot, however, be accepted as the

equivalent of a pertinency objection. At best, they

constituted but a contemplated objection to questions

still unasked, and buried as they were in the ‘context

of petitioner’s gencral challenge to the power of the

Subeommittee they can hardly be considered adequate,

within the meaning of what was said in Wat-

kins * * * to trigger what would have been the Sub-

committee’s reciprocal obligation had it been faced

with a pertinency objection’’ (id. at 123-124). See

also McPhaul v. United States, 364 U.S. 372, 380-381.

And in Deutch v. United States, 367 U.S. 456, 468,

the Court found that “the petitioner was not made

aware at the time he was questioned of the question

then under inquiry nor of how the questions which

were asked related to such a subject. Nevertheless,

the Court did not reverse the witness’ conviction on

this ground since (id. at 469):

[T]he thoughts which the petitioner voiced in re-

fusing to answer the questions about other peo-

ple can hardly be considered as the equivalent

of an objection upon the grounds of pertinency.

Although he did indicate doubt as to the im-

portance of the questions, the petitioner’s main

concern was clearly his (wn conscientious un-

willingness to act as an informer. It can hard-

ly be considered, therefore, that the objections „

which the petitioner made at the time were

“adequate, within the meaning of what was said

in Watkins, supra, at 214-215, to trigger what

would have been the Subcommittee’s reciprocal

obligation had it been faced with a pertineney

objeetion. Barenblatt, supra, at 124.

2. Petitioner in the instant case, who appeared be-

fore the Subcommittee with °counsel, did not make

even the “contemplated’’ and buried“ objection to

the two questions on the ground of pertinency which

Vas made by the witness in Barenblatt or indicate

any doubt as to the importance of these questions

such as was stated by the witness in Deutch. In-

* ee

stead, petitioner orally stated, after consulting with

his counsel, that he objected to the question whether

he was a Party member (Count 1) on the grounds of

the First Amendment the Subcommittee’s lack

of jurisdiction (see supra, pp. 11-12). The lengthy

legal document which he read to the Subcommittee

after being asked this question and which he also in-

voked after being asked whether he had talked with

Matilda Landsman (Count 2) raises, and develops,

only these same two grounds concerning the Subeom-

mittee’s power to investigate beliefs and associations.

It does not even suggest that petitioner was refusing

to answer the questions because of their lack of per-

tinency. And petitioner explictly told the Subcom-

mittee that this written statement, which was obviously

prepared by counsel, contained ‘the only grounds he

was raising (R. 90). es

The only statement made by petitioner at the hear-

ings which could conceivubly be construed to have

raised the issue of pertinency came at the start of his

appearance before the Subcommittee. He then gave

as one of his three objections to being called by the

Subcommittee (see supra, p. 11) that [I fail to] see

why I am involved in this hearing’’ since no prior

witnesses had mentioned him. This objection, however,

seems to claim that the Subcommittee did not have

probable cause to subpoena him—a contention which

petitioner renews in this Court (Pet. Br. 29-53; see

infra, pp. 41-48, 50-62)—not that the questicns asked

petitioner lacked pertinency to the subject under in-

quiry. At the least, this objection does not have the

clarity required by this Court in Barenblatt and

Deutch (where the witness ‘‘indicate[d] doubt as to

the importance of the questions (367 U.S. at 469) )

“to trigger what would have been the Subcom-

mittee’s reciprocal obligation had it been faced with

a pertinency objection.” —~Barenblatt v. United

States, supra, 360 U.S. at 124. Moreover, petitioner

made this general objéction prior to his being sworn

and before any questions had been asked. The ob-

jection was not, and could not, have been directed

to questions which petitioner did not even know would

be asked. When the questions gn which Counts 1 and

2 are based. were asked, petitioner gave other, differ-

ent grounds for refusing to answer them.

Petitioner’s omission of any objection as to the

pertinency of the two questions which were the basis

of his conviction is particularly ‘significant since, in

response to other questions asked by the Subcommit-

tee—both before and after the two questions which

underlie Counts 1 and 2—he specifically objected on

the ground of pertinency. Three times in testifying

before the Subcommittee in executive session (R. 52,

59, 63) and three times in open session (R. 85, 86, 94)

petitioner stated explicitly that he objected to a ques-

tion because it was not pertinent. For example, in

executive session he twice responded, “Is that question

pertinent to the scope of this inquiry? (R. 52, 59).

At the hearing during which his contumacy occurred,

he stated with respect to other questions: “I don’t

see the pertinency of the question to the scope of the

investigation (R. 85); I am raising the question

since this is not a question of the investigation of the

press, why you are asking why I have written—”’ (R.

86); I really must challenge the pertinency of that

question to the scope of the investigations“ (R. 94).

Thus, petitioner knew how to object to the pertinency

of particular questions but, apparently because he

understood the pertinency of these two particular

questions, deliberately did not raise this objection as

to them. *

YA PETITIONER WAS APPRISED OF THE SUBJECT UNDER INQUIRY

1. There can be little doubt that petitioner was

aware of the subject under inquiry. At the beginning

of the hearings on January 4, 1956, the chairman

clearly stated that the purpose of the hearings was

to investigate Communist activity in the news media

field (see supra, p. 7). While petitioner did not

appear at the hearings until January 6, he showed

his awareness of the chairman’s opening statement by

saying at the hearings that he did not “see why I

am involved in this hearing, which the chairman said

on Wednesday stems from the Burdett testimony”?

(see supra, p. 11). Petitioner also showed that he

was familiar with the testimony of Winston Burdett

‘and Clayton Knowles—which concerned Communist

infiltration of the communications field (see supra,

pp. 4, 9)— by saying that ‘‘[t]here was no reference

to me in the Burdett testimony nor in the testimony

of Clayton Knowles.“

- Moreover, petitioner was presumably in the room

at the beginning of the Subcommittee’s proceedings

on January 6, 1957, the day he was subpoenaed to

appear, and did appear only a few moments later

as the first witness of the day. Before petitioner

2 2 33 *

testified on January 6, the chairman stated that the

hearings were directed to-inv estigating infiltration of

persons identified as Communists into news agencies.’

Senator Hennings said (R. 77): |

I think that no one will quarrel with nor

take issue Writh the fact that this committee

has the right to inquire into all efforts or, in-

deed, all consummations of efforts of the Gem

munist Party to infiltrate newspapers or other

media of communication.

And petitioner's prepared statement hich was read

by him before the Subcommittee as his reason for

refusing to answer the questions underlying his c-

vietion demonstrates clearly that he knew that the Sub-

committee's investigation was into Communist activity

in the newspaper field. For almost the entire state-

ment is devoted to the claim that the Subcommittee’s

investigation of the newspaper field violated free-

dom of the press guaranteed by the First Amendment

(R. 88-89, 90-91).

2. Petitioner contends (Pet. Br. 17-21, 58-60, 67)

that the subject under inquiry could not possibly have

been made clear to him since different subjects were

stated by the Subcommittee at the hearings, by the

prosecution and Subeommittee counsel at the trial, and

by the district court and court of appeals. Petitioner

contends (Pet. Br. 18) that four different subjects

have been suggested: (1) Communism generally ;

(2) Communist infiltration of news media; (3) Com-

munism in the New York Typographical Union or

in the New York area; and (4) Communism on the

f —

New York Times. This contention is elearly without

merit.

All these subjects except possibly Communism in

the New York area are on their face fully and directly

consistent with subject number 2, Communist infiltra-

tion of news media, which, as we have shown (pp.

32-33), was the subject clearly described to petitioner \

at the hearing. That subject was obviously a part of

Communism in the United States generally, which is

the major part of the investigatory authority given

the Subcommittee by the Senate. S. Res. 366, Sist-.

Cong., 2d Sess. On the other hand, Communism in

the New York Typographical Union and on the New

York Times are a part of the subject of Communism

in news media. Thus, all these subjects were being

investigated at one and the same time. And the per-

tinency of the questions which petitioner refused to

answer was equally apparent to all these subjects.

As to the subject of Communism in New York, this

too was the subject under inquiry. For, while the

subject was Communist infiltration of news media, the

hearing was in fact limited to such Communist activ-

ity in the New York area. This can be readily seen

from the witnesses who testified. Thus, the Subeom-

media, was also investigating Communism in New

York. Moreover, the only references to this subject

as the subject under inquiry were the heading to the

transcript of the hearings (Gov. Ex. 7) and testi-

"mony of Subcommittee counsel at petitioner g trial

(R. 138-138). Thus, even if we assume arguendo

that petitiuner would have been confused if he had

been told when-he testified that the Subcommittee was

investigating both Communism in news media and in

New York, petitioner was not so told.’

Indeed, as petitioner implicitly admits (Pet. Br. 18-

19), the only subject described to petitioner at the

hearings was Communist infiltration of news media.

Both the district court and the court of appeals held

that this was the suhject unde inquiry (R. 224, 225,

243). We submit that the deseription of other sub-

jects under inquiry long after the time petitioner re-

fused to answer the questions (particularly when these

subjects are fully consistent with the subject which

was clearly described to him) cannot possibly mean

that the Subcommittee did not apprise petitioner of

the subject under inquiry. |

2. Petitioner argues (Pet. Br. 60-63) that the oral

bill of particulars furnished prior to trial makes the

subject under inquiry that stated in the resolution

authorizing the Internal Security Subcommittee, i. e.,

Communist activities generally, and that this Court

held in Watkins v. United States, supra, that this

resolution is not-suffieiently precise to-apprise a wit- ~

ness of the subject under inquiry. Thus, petitioner

argues, the government cannot rely on evidence show-

ing petitioner was apprised that the subject under

inquiry was the lesser, more specific inquiry of Com-

7 Jn addition, little importance can be attached to the head-

ings subsequently placed on particular hearings. As the chief

counsel of the Subcommittee testified in Liveright-v. United

States, No: 11, this Term, the headings are applied merely “to

keep the evidence in a reasonably, dispensable chanfel“ (J.A.

119-120). : . :

At a hearing on defendant’s pre-trial motions, gov-

ernment counsel gave an oral bill of particulars’ in

response to an oral motion, in which he stated, regard-

ing the subject under inquiry, that the inquiry was

being conducted pursuant to the Senate resolution au-

thorizing the Subcommittee and for the purposes con-

tained in that resolution (R. 19-20). The resolution

authorized investigation of Communist activities gen-

erally. Considering the oral bill of particulars in con-

text, it is apparent that this reply by the Assistant

United States Attorney was not intended to preclude

the government from introducing evidence that the

subject under inquiry was the more specific subject of

Communist infiltration of the press. The latter sub-

ject is ‘merely one portion of the broader subject of

Communist activities in general, which the resolution

authorizes the Subcommittee to investigate. When

the Subcommittee is investigating the narrower prob-

lem of Communist infiltration of the press, it is simul-

taneously investigating the broader subject which it

is authorized to investigate. The introduction of evi-

dence on the narrower problem was therefore con-

sistent with the statement of the Assistant United

States Attorney that the subject under investigation

was the full scope of the Subcommittee’s authority.

While the Assistant United States Attorney did

state that there was no smaller, more limited inquiry

being conducted (R. 20), he apparently meant that

the Subcommittee was not restricted to showing any

inquiry less than the full authorizing resolution. In

fact, he specifically said that his remarks as to the

exact subject under inquiry should not be taken to

Ümit the scope of the government's proof at the sub-

sequent trial (R. 17):

That [the subjéct under inquiry] is a mat-

ter of fact that will come out at the trial and

the proof. [Petitioner] is not entitled to have

it in advance because the authority that this

subcommittee was acting under is found in the

resolution which I have already referred to,

and there is no particularly defined inquiry

less than the full authority to which this com-

mittee was restricted at this particular hearing.

Again indicating that he was not limiting the Sub-

committee’s general power to investigate Communism

wherever found, the Assistant United States Attor-

ney stated (R. 17): 3

Let us assume that the particular inquiry at

the moment might have been subversive activi-

ties in the field of education. That does not

limit and does not restriet the full authority

that was granted to this committee by the reso-

lution and, therefore, the committee, through

this subcommittee, could make all inquiries that

were authorized by it to make.

From these statements it is apparent that the gov-

ernment was not denying that the Subcommittee was

conducting a particularized inquiry. While resisting

a specification of the subject under inquiry because

the indictment was “ sufficient, without further par-

ticularization, to inform the defendant of the charge

that he must meet and to protect him from a second

prosecution’? (R. 18), the Assistant United States

Attorney was at the same time insisting that the Sub-

“a.

committee was entitled to pursue the full extent of

he powers provided by the Senate. Thus, his state-

nt at the trial did not preclude the government

from introducing evidence that the more specific sub-

ject under inquiry, when petitioner was questioned

was Communist infiltration of the press.

Even if we assume, arguendo, that the Assistant

United States Attorney intended to restrict the gov-

ernment’s proof of the subject under inquiry to Com-

munist activities in general, this still did not preclude

the government from offering evidence at the trial

that the particular subject under inquiry at petition-

er’s hearing was Communist activities in the area of

‘the press. While a variance between an indictment

and the proof introduced is fatal if it relates to a

matter of substance (see Stirone v. United States, 361

U.S. 212), the variance between a bill of particulars

and the proof is fatal only if the defendant has been

prejudiced. Vnited States v. Albanese, 224 F. 2d

879 (C. A. 2); United States v. Costello, 221 F. 2d 668,

675. (C. A. 2), affirmed, 350 U.S. 359; Neal v. United

Stat, 185 F. 2d 441 (C.A. D.C.), certiorari denied,

340 U.S. 937: Shayne v. United States, 255 F. 2d 739,

743-744 (C.A. 9), certiorari denied, 358 U.S. 823;

McKenna v. United States, 232 F. 2d 431, 436-437

(C. A. 8).

This difference between the cases where the variance

involves an indictment or a bill of particulars reflects

their significantly different functions. The Fifth

Amendment guarantees that a person charged with a

felony be indicted by a grand jury and that the in-

—

dictment contain the essential elements of the crime.

If tle government offers proof at trial inconsistent

with one of the essential elements charged, it cannot

be assumed that the grand jury would have been

willing to return an indictment with a charge con-

forming to the proof actually introduced. Thus, in

such circumstances the goverument is in effect at-

tempting to convict the defendant of a crime for which

he was not indicted. See Stirone v. United States,

supra, 361 U.S. at 217.

On the other hand, a bill of particulars is simply

designed to give the defendant sufficient details of

the charges against him so that he can adequately

‘prepare his defense and not be surprised by the

evidence offered by the prosecutiin. Dunlop v. United

States, 165 U.S. 486, 490-491; Braden v. United

States, 272 F. 2d 653, 662 (C.A. 5), affirmed, 365

U.S. 431; McMullen v. United States, 96 F. 2d 574,

579 (C.A. D.C.). Since the prosecution and not a

_ quasi-judicial body like the grand jury provides the

bill of particulars, the government is entitled to

amend its bill of particulars at any time so long as

thé defense is not surprised or otherwise prejudiced

by the amendment and subsequent variance between

the government's proof and the original bill. Rule

7(f)” Federal Rules of Criminal Procedure; United

States v. Bender, 218 F. 2d 869, 874 (C.A. 7). Al-

though the government in this case did not go through

the technicality of amending the bill of particulars, if

the government’s proof was inconsistent with the bill,

“the effect of what it did was the same” (Sttrone v.

}

<i 4h: 88 AN

United States, supra, 361 U.S. at 217); thus, just

as if the bill of particulars had been formally

amended, there can be no complaint unless the vari-

ance between the government’s proof and the bill

surprised the defendant and thereby unfairly preju-

-diced his defense. ‘

Petitioner does not claim, and has never claimed,

chat his defense was surprised or otherwise Freju-

diced by any variance between the government’s oral

_ bill of particulars and the proof it offered at the trial.

If petitioner was prejudiced, this fact was of course

apparent to him when the government introduced

the evidence which he claims conflicts with the bill

of particulars. And if this objection had been prop-

erly raised at the trial, any prejudice could have been

cured by granting petitioner a continuance so that

he could prepare bis defense to the government’s

evidence. See United States v. Neff, 212 F. 2d 297

(C.A. 3). 3

In any event, the record 8 that peti-

tioner was not prejitdiced by the alleged variance

between the government’s bill of particulars and its

proof of the subject under inquiry. Petitioner

clearly came to trial adequately prepared to rebut the

government’s evidence that the Subcommittee was

considering Communist infiltration in the news media

field, for this was the Subcommittee’s sole interest at

both the executive and public sessions at which peti-

tioner testified. The transcripts of both these hear-

ings were of course public documents which were

readily available to petitioner and his counsel. In

e et alts phe nnn

maren Ty Ce Pm teeny

Wine

addition, during both of petitioner’s appearances before

the Subcommittee he objected to the investigation

of Communist activity as infringing on freedom of

the press (see supra, pp. 6-7, 11-12). And, at the

trial, petitioner’s counsel had charts respecting the

newspaper affiliations of the other witnesses called by

the Subcommittee at the public hearings ‘at which

petitioner testified (R. 148-149). .

In short, it is plain that petitioner knew long

before his trial that the government would attempt

to prove that the specific subject under inquiry by

the Subcomntittee was Communist activity in the com-

munications field. His failure to object on the ground

of surprise when the government introduced this evi-

dence undoubtedly reflects his belief that there was

no variance -between the proof and the bill of particu-

lars, or his agreement that the variance in no way

surprised or prejudiced him.

$ 11 f 2

THE SUBPOENAING OF PETITIONER TO TESTIFY BEFORE THE

SUBCOM MITTEE DID NOT VIOLATE THE FOURTH AMEND-

MENT

A. e vies CANNOT RAISE THIS OBJECTION FOR THE FIRST TIME

AT HIS TRIAL ‘

Petitioner urges (Pet. Br. 29-53) that the sub-

poena issued to him violated his rights under the

Fourth Amendment because the Subcommittee. did

not have probable cause to believe that he possessed

information relevant to tHe pending inquiry.

We have seen, however, that this Court has re-

peatedly held that a witness who refuses to preduce

documents or testify before a Congressional committee

must present his legal objections before the com-

mittee (see supra, pp. 25-29). If he fails to do so, it

is established that objections cannot be raised for the

first time at his trial for contempt. This principle

has been applied by this Court to constitutional claims

in a cace where a witness refused to answer questions

ꝓropounded by a grand jury. In Ullmann v. United

States, 350 U.S. 422, 439, note 15, the Court refused

to consider First Amendment issues on the ground

that “it is every man's duty to give testimony before

a duly constituted tribunal unless he invokes some

valid legal exemption in withholding it.“ Moreover,

in Barenblatt v. United States, supra, 360 U.S. at

123-124, and Deutch v. United States, 367 U.S. 456,

469, the Court held that buried and anticipatory ob-

jections and suggestions of doubt are not sufficient to

raise an objection before a Congressional committee.

Petitioner here at no time objected to the Subcom- |

mittee that the subpoena violated the Fourth Amend-

mend. As we have seen above (pp. 29-30), although

petitioner submitted a ‘lengthy legal document to the

‘subcommittee, his sole contentions were that the sub-

committee was violating his rights under the First

Amendment and that it lacked jurisdiction to investi-

gate beliefs and associations, While he did state that,

he did not understand why the Subcommittee” had

subpoenaed him (R. 84) and that he was subpoenaed

by accident (R. 89), this was part of his contention

that the Subcommittee was violating his First Amend-

ment rights. Certainly, this claim was not clear

enough to raise a Fourth Amendment claim under

amm Lie

„ d eee ee eee ech

the test ‘of specificity laid down by this Court in

Barenblatt and Deutch. : |

Petitioner claims (Pet. Br. 33 at note 9, 57 at note

53) that he could not. have waived his Fourth Amend-

ment contentions since probable cause is an element

of the offense. He reasons that the statute punishes

only refusal to answer questions pertinent to a pend-

ing inquiry. Deutch v. United States, supra, 367

U.S. at 469-471. But this is not the same as probable

cause. Even though petitioner has not raised the con-

tention, we have shown (pp. 23-24) that the ques-

tions here were clearly pertinent. The issue as to

_ probable cause is entirely different—whether the Sub-

committee could reasonably believe that petitioner

had information of value to it in response to pertinent

questions." ; :

B. THE FOURTH AMENDMENT DOES NOT APPLY TO SUBPOENAS TO

* TESTIFY ;

Even if petitioner had raised a claim under the

Fourth Amendment when he appeared before the

Subcommittee, the Amendment does not apply to sub-

poenas to testify. The Fourth Amendment of course

protects witnesses who appear before Congressional

committees. But we submit that the Fourth Amend-

ment, unlike the First and Fifth, pertains only to

subpoenas duces tecum. The language of the

Amendment itself makes clear that it was intended

¢ Petitioner also claims (Pet. Br. 32, note 9) that the govern-

ment cannot raise this contention because it failed to argue it

in the district court or the court of appeals. A respondent

is entitled, however, to raise new grounds to support a judg-

ment below, even though the party attacking the judgment

cannot do so. E. g., Jaffke v. Dunham, 352 US. 280, 281.

* —

2 44

to protect “persons, houses, papers, and effects” from

improper search or seizure and not, like the Fifth

Amendment, to protect — from forced

to testify. ‘

Thin Court hea saver held thes the Fourth Amend-

ment is relevant to subpoenas requiring witnesses to

appear and testify. In Boyd v. United States, 116

.S. 616, and other cases cited by petitioner (Pet.

Br. 34, 36-38), the Court decided that the Fourth

Amendment applies to subpoenas duces tecum, as

well as to forcible searches and seizures, because the

“compulsory production of a man’s private papers

“‘accomplishes the substantial objects of [the] aets’’

of “‘foreible entry into a man’s house and searching

amongst his papers.“ 116 U.S. at 622. In contrast,

the requirement that a person appear briefly before

a Congressional committee does not accomplish the

substantial objects—or interfere with his rights to

the same extent—as seizure of his person by arrest.

Petitioner’s principal authority (Pet. Br. 35-36) for

the proposition that the Fourth Amendment applies

to subpoenas to testify other than the cases which

concern subpoenas duces tecum is a general statement

in the dissgnting opinion of Mr. Justice Brandeis -in

Olmstead v. United States, 277 U.S. 438, 478:

The makers of our Constitution * * * con-

ferred, as against the Government, the right to

be let alone—the most comprehensive of rights

and the right most valued by civilized men.

To protect that right, every unjustifiable in-

trusion by the Government upon the privacy

of the individual, whether the means employed,

must be deemed a violation of the Fourth

Amendment.

ee ee ae

—— ee ee ee ei

bin Senet thes ied its hee sh

nee

alin chlo eae

— 45

This extremely broad statement has never been ac-

cepted by a majority of the Court. In addition, it

was directed at physical invasions of privacy or their

equivalent such as wire-tapping—which was the in-

trusion involved in that case. For the statement is

based on a synopsis and citation of cases (see: 277

U.S. at 477-478, and notes 4-10) involving physical

invasion of privacy (e. g., Weeks v. United States,

232 U.S. 383), or improper use of subpoenas duces

tecum which this Court has held have substantially

the same effect as a physical invasion (Boyd v. United

States, su pra).

The only decisions of this Court (which we or pe-

titioner have discovered) indicating that probable

cause is required-in order to subpoena a person to

testify are Barenblatt v. United States, 360 U.S. 109,

Braden v. United States, 365 U.S. 431, and Wilkinson

v. United States, 365 U. S. 399. In all of these cases,

however, the Court discussed probable cause in terms

of the First Amendment or a valid legislative.pur-

pose, not the Fourth Amendment, In the Barenblatt

case, the Court stated (360 U. Sat 134): Nor did

petitioner's appearance as a witness follow from in-

discriminate dragnet procedures, lacking in probable

* Petitioner quotes (Pet. Br. 34) from Sinclair v. United

States, 279 U.S. 263, 292, that persons are “exempt from all

unauthorized, arbitrary or unreasonable inquiries and

disclosures * * *.” The rest of the sentence, however, was “in

respect of their personal and private affairs.” The issue was

@thus whether the committee had a valid legislative purpose,

probable cause de., the issue was whether Congress

- power to question persons as to non-legislative matters, not

\ whether the Fourth Amendment forbids inquiry whether for

à legislative purpose or not.

2 46 ;

cause for belief that he possessed information which

might be helpful to the Subeommittee.“ This state-

ment suggests that if a witness was subpoenaed as the

result of indiseri in te dragnet procedures, lacking

in probable cause? he might be freed from having to

answer the questions. But the statement is clearly

part of a discussion of a witness’ rights under the

First Amendment. Similarly, in Braden v. United

States, 365 U.S at 435, the Court stated that “[t]he

subcommittee had reason to believe that the petitioner

was a member of the Communist Party, and that he

had been actively engaged in propaganda efforts.”

At the end of this paragraph, the opinion said that

“Tujpon the reasoning and authority of Barenblatt

* * * we hold that the judgment is not to be set

aside on First Amendment grounds (ibid.). And

in Wilkinson, in discussing whether the commit-

tes had a valid legislative purpose, the Court sim-

ilarly said (365 U.S. at 412): “It is to be emphasized

that the petitioner was not summoned to appear as

the result of an indiscriminate dragnet procedure,

lacking in probable cause for belief that he possessed

information which might be helpful to the subcom-

mittee.” *

C. E THE FOURTH AMENDMENT DOES APPLY, IT WAS NOT VIOLATED

N THis CasE

. If the Fourth Amendment does apply to subpoenas

to testify, we submit that it is less striet with regard

to Congressional investigations, which merely seek

testimony, than for arrests or searches and seizures.

In Oklahoma Press Publishing Co. v. Walling, 327

Pen SY AP re ee Ee

ccc le

a ‘ é'

U.S. 186, this Court held that the test to be applied

under the Fourth Amendment when an administrative

agency issues subpoenas duces tecum* is markedly

different from the standard applicable to warrants

(id. at 208-209): ;

It is not necessary, as in the case of a warrant,

that a specific charge or complaint of violation

of law be pending or that the order be made

pursuant to one. It is enough that the investi-

gation be for a lawfully authorized purpose,

within the power of Congress to command.

This has been ruled most often perhaps in re-

lation to grand jury investigations, but also

frequently in respect to general or statistical

investigations authorized by Congress. The re-

quirement of “probable cause, supported by

oath or affirmation,” literally applicable in the

case of a warrant, is satisfied in that of an

order for, production by the court’s determina-

tion that the investigation is authorized by

Congress, is for a purpose Congress can order,

and the documents sought are relevant to the

inquiry.

There is no reason to apply a stricter standard to

subpoenas to testify than to subpoenas duces tecum or

to Congressional committees than to 6xecutive agencies.

Applying these standards to this case, the Subcom-

mittee clearly had authority from Congress to investi-

gate Communist activities (S. Res. 366, Sist Cong.,

* As we have indicated (pp. 43-45), the Fourth Amendment

does subpoenas duces tecum as contrasted with sub-

poenas to testify. ö

2d Sess.; see the government’s brief in Liveright v.

United States, No. 11, this term) and such an investi-

gatjon is within the power of Congress to conduct

* v. United States, supra, 360 U.S. at 125

134). And as we show elsewhere, the Subcommittee

asked questions which were pertinent to the subject

under inquiry (supra, pp. 23-24) and had a reasonable

basis for believing that petitioner had information in

answer to these questions which would be of value in

the investigation (infra, pp. 50-62). Thus, even if the

Fourth Amendment applies to subpoenas to testify,

as contrasted with subpoenas duces tecum, the sub-

poenaing of petitioner was fully consistent with the

Fourth Amendment.

RRR

III

THE SUBCOMMITTEE’S INVESTIGATION OF COMMUNIST N-

FILTRATION OF NEWS MEDIA DID NOT VIOLATE THE

FIRST AMENDMENT

Petitioner contends (Pet. Br. 53-57) that the Sub-

committee’s investigation of the press violated the

First Amendment. The subject under inquiry when

petitioner testified before the Subcommittee was Com-

munist infiltration into news media, and particularly

the press (see supra, pp. 23, 32-41). This Court has

made clear that such a Congressional investigation of

Communist activity in a field protected by the First

Amendment is constitutional. In Barenblatt v.

United States, supra, 360 U.S. at 125-134, the Court /

held that Congress could legitimately investigate

Communist infiltration of education. Last Term, in

Braden v. United States, 365 U.S. 431, the Court,

get”

in upholding a Congressional investigation of Com-

munist propaganda activities, stated that (id. at 435) :

Barenblatt did not confine Congres-

sional committee investigation to overt criminal

activity, nor did that case determine that Con-

gress can only investigate the Communist Party

itself. Rather, the decision upheld an investi-

gation of Communist activity in education.

Education, too, is legitimate and protected

activity. Communist infiltration and propa-

da in a given area of the country are

surely as much within its pervasive authority

as Communist activity in educational institu-

tions. * * * Information as to the extent to

which the Communist Party was utilizing legiti-

mate organizations and causes in its propaganda

efforts * * * was surely not constitutionally

beyond the reach of the subcommittee’s i inquiry.

And in Wilkinson v. United States, 365 US. 399,

413-414, the Court similarly upheld Congressional in-

vestigation of Communist propaganda activities, stat-

ing that this issue was “thoroughly canvassed by us

in Barenblatt.“ Just as Congress can investigate

Communist activities in education and propaganda,

fields equally protected by the First Amendment, so

Congress and therefore this Subcommittee could in-

vestigate Communist infiltration of communications

and the press.

A. THE SUBCOMMITTEE WAS INVESTIGATING COMMUNIST INFILTRA-

TION OF NEWS. MEDIA, NOT NEWS MEDIA IN THEMSELVES

~ Petitioner contends (Pet. Br. 53-55), however, that

the Subcommittee was in fact investigating the press

(or the New York Times), not Communist infiltration

of news media. But this is squarely contradicted by

the record and by the findings of the district court

meat ( 225-226). The chairman and another member of

the Subcommittee (Senator Hennings) explicitly stated

at the hearings (supra, pp. 7-8, 9), and Subcommittee

counsel testified at petitioner’s trial (supra, p. 10), that

Communist infiltration of the press, not the press itself,

was under investigation. All the questions asked

petitioner were either directly related to Communist

activities or were preliminary inquiries intended to

lead up to such questions. After petitioner had testi-

fied, the Subcommittee asked other neWspaper em-

ployees similar questions concerning Party activities

(see, e.g. Hearings, Part 17, 1739-1743, 1761-1763,

1769-1774, 1777-1784, 1785-1787, 1790-1791). In ad-

dition, the record shows that the questions were not a

mere fishing expedition, as the Subcommittee had in-

formation that Communists had infiltrated into the

press (see supra, p. 4), and this information was con-

firmed by testimony taken the same day as petitioner

appeared (Hearings, Part 17, pp. 1732, 1739-1740,

Trt? 1791). 2

B. THE SUBCOMMITTER’S SUBPOENAING OF PETITIONER WAS NOT

THE RESULT OF “INDISCRIMINATE DRAGNET PROCEDURES LACKING

IN PROBABLE CAUSE”

1. In Barenblatt v. United States, supra, 360 U.S.

at 126, the Court held that, when a witness is called °

before a Congressional committee and refuses to

‘testify, determination of any claim under the First

Amendment “always involves a balancing by the

courts of the competing 81 and public interests

—

at stake in the particular circumstances shown.” The

Court subsequently indicated that “the individual in-

terests at stake [are] not subordinate to those of the

state” if the witness’ appearance follows from “in-

discriminate dragnet procedures, lacking in probable

cause * * *” (id. at 134). See also Wilkinson, supra,

365 U.S. at 412. ;

The standard laid down in Barenblatt and Wilkin-

son is clearly not the same as the “probable cause’’ re-

quired for arrest or search and seizure under the Fourth

Amendment. The test under the Fourth Amendment as

4o arrests or searches and seizures is whether “the

facts and circumstances within [the arresting officer’s }

knowledge and of which they had reasonabiy

trustworthy information [are] sufficient in themselves

to warrant a man of reasonable caution in the belief

that” the person has committed an offense or there

is contraband in the place to be searched. Draper v.

United States, 358 U.S. 307, 313; Carroll v. United

States, 267 U.S. 132, 162. In contrast, in Oklahoma

Press Publishing Co. v. Walling, supra, 327 U.S. 186,

this Court held that an executive officer and therefore

a fortiori a Congressional committee may, consistent

with the Fourth Amendment, issue a subpoena duces

tecum if “the investigation is authorized by Congress,

is for a purpose Congress can order, and the docu-

ments sought are relevant to the inquiry” (327 U.S.

at 209). We submit that the Barenblatt and Wilkin-

son cases laid down a similar rule as to subpoenas to

testify, where First Amendment rights are involved—

that a Congressional committee may properly sub-

poena a witness when it has reasonable basis for be-

lieving that the witness has information related to the

subject under investigation which would be of value

to the committee. See United States v. Orman, 207

F. 2d 148, 154-155 (C.A. 3).

First, there can be no reason to impose a stricter

standard on Congressional committees for subpoenas

to testify than for subpoenas duces tecum issued by

executive agencies as in Oklahoma Press. The in-

trusion is no greater in one situation than the other.

Cextainly, there is no basis for imposing the same re- :

quirements on Congressional committees (before they

can subpoena witnesses consistently with the First

Amendment) as are imposed on arrests and searches

and seizures under the Fourth Amendment. It would

be strange to require the same degree of probable

cause to arrest a person or use force to enter his

house as to ask him questions—particularly when he

is ‘protected by the Fifth Amendment from being

forced to incriminate himself. And, if Congressional

committees must have the kind of proof to subpoena

a witness as police do to make an arrest, the result

will be seriously to hamper Congressional inquiries.

The power of Congress to investigate before it legis-

lates—to question hostile as well as friendly wit-

nesses—is of course of great importance to the legis-

lative process. This power necessarily includes the

discretion to subpoena witnesses where there is any

substantial likelihood that they possess information

of value to an investigation and to possible legislation.

Second, the difference in requirements as to sub-

poenas on the one hand and arrests and searches and

—

NN re ee ee ee ee eS ee

seizures on the other was indicated in the Burenblatt

and Wilkinson opinions themselves. The Court did

not use the phrase “probable cause”. alone—thereby

conceivably suggesting the same standard as for an

arrest or search and seizure under the Fourth Amend-

ment. Rather, the Court indicated that Congressional

committees must not use “indiscriminate dragnet pro-

cedures, lacking in probable cause for belief that [the

witness] possessed information which might be helpful

to the Subcommittee” (360 U.S. at 1347365 U.S. at

- 412). We submit that this phrase suggests that Con-

gressional committees can properly act if they have rea-

sonable ground for believing that the witness has infor-

mation which will be of value to their inv estigation.

Moreover, in determining that the defendant in

Barenblatt was not subpoenaed as a resulf of dragnet

procedures, the Court cited two earlier-portions of

the opinion as showing this fact (360 U.S. at 124,

125 at note 24). The first reference is to discussion

showing that the witness was apprised by the subcom-

mittee of the pertinency of the questions asked to

the subject under inquiry. The second reference is

to a footnote which quotes the statement of the chair-

man of the subcommittee at the close of the witness’

testimony : .

* * * the evidence or information contained

in the files of this committee, some of them

in the nature of evidence, shows clearly that

the witness has inforniation about Communist

activities in the United States of America, par-

ticularly while he — the University of

Michigan. f

That information which the witness has

would be very valuable to this committee and

its work.

These citations show that this Court was a follow-

ing the strict standard of probable cause which is

applied under the Fourth Amendment for arrests or

searches and seizures. The references cited plainly

do not meet these standards. As we will see (pp. 55-

60), the record in this case gives far more details as to

the information possessed by the 9 Show-

ing that petitioner had information of value @ the Sub-

committee than is shown by the two references cited by

the Court in Barenblatt. 1

Similarly, in Wilkinson, in demonstrating that the

defendant had not been subpoenaed as a result of

“an indiscriminate dragnet procedure,” the Court

‘relied oh the testimony of the staff director of the

committee, at the ‘trial, that the defendant “was an

active Communist leader engaged primarily in propa-

ganda .activities” (365 U.S. at 412). The footnote

to this statement quotes trial testimony that the

committee had earlier heard the testimony of a

witness under oath identifying the witness as a Com-

munist and that it had other information that he was

leading Communist infiltration in the

eden goos on to say that the staff director testimony

supported by his statement to the defendant at the

committee's hearings and evidence that the defendant

had been identified as a Party member at a prior

heating. While, in this case, the Subcommittee did

th. The

not have sworn testimony that petitioner was a Party

member, this was not the basic evidence relied

on in Wilkinson. Rather, this sworn testimony was

used in Wilkinson to support the testimony of

the staff director that the Subcommittee had consid-

erable information concerning the defendant’s Party

activities. Since the testimony principally relied on

in Wilkinson did not state the source of the commit-

tee’s information, it is clear that this Court was not

using the standard of probable cause which is fol-

lowed under the Fourth Amendment when arrests

or searches and seizures are involved.

2. The frial court, as finder of facts, determined

that It he record of, this case discloses beyond any

reasonable doubt that the subcommittee had infor-

mation in its possession at the time defendant was

initially summoned to appear before it which estab- 5

lished a reasonable cause for requiring his testimony”

(R. 223). This finding is fully supported by cae

evidence. —

The Subcommittee had heard testimony from a news-

paperman and broadcaster, who was a former mem- ,

ber of the Communist Party, of Communist efforts,

in part successful, to infiltrate and influence the

newspaper field (see Supra, p. 4). _ Subsequently,

as the chief counsel of the Subcommittee testified at

petitioner’s trial, the Subcommittee received infor-

mation that a man named Shelton, who was em-

ployed in the news department or city side of the

New York Times, was a member of a communist

group on the Times, was active in the affairs of that

Lead *

* ‘ 56 é

group, and would be or should be in a ꝓosition to

give the committee information about the adtivities of

that group” (R. 98; see R. 48-49, 116). This infor-

: mation was sent to the Subcommittee{im a letter a

few months before petitioner testified (R. 98, 186-

187). Although the letter was signed with a

pseudonym, the identity of the signer was known to

the former associate counsel of the Subcommittee,

Robert Morris (R. 99-100, 190-191). The same person

had sent other letters to the Subcommittee, using the

same -pseudonym, and the information contained in

these letters had been ehecked and found to be correct

(R. 101, 190). As the chief counsel testified (R. 102) :

* We had received other letters from this

Same individual. I knew by the appear-

ance of the letter, the way it was typed and

the pseudonym which was signed to it, that it

came from the same individual who had given

us leads before which proved out and concern-

ing whom Judge Morris had stated that he

knew him and that he was a reliable person.

Although the Subcommittee was still unaware of

Mr. Shelton’s first name, a subpoena was issued, ad-

dressed to Willard Shelton” at the New York Times

(R. 105). This was a mistake since Willard Shel-

ton, although a newspaperman, was not employed.

by the Times and was not sought by the Subcom-

mittee (R. 49, 102). Apparently, as the chief counsel

surmised, the error was made in the typing section

by someone who supplied the first name of the only

newspaperman known to him to be named Shelton

(R. 10-103).

amn r

The Subcommittee employee who went to New

York to serve the subpoena discovered that there

was no Willard Shelton on the New York Times

(R. 49, 106). The employee was told that a Robert

Shelton was employed by the Times and that he was

the only Shelton on the editorial or news side (R.

49, 106). The chief counsel concluded that Robert

Shelton must be the Shelton described by the in-

formant without a first name and the Subcommittee

employee was authorized by the Subcommittee chair-

man to serve the subpoena on petitioner (R. 106).

The employee then added the words “or Robert

Shelton“ ta the subpoena and served it on petitioner

(R. 49, 105-106). eee

Between the time the subpoena was issued and the

date of petitioner’s appearance before the Subcommit-

tee, the Subcommittee (R. 111):

„„ made a tHorough check of all the

sources. that were available to us to see

what there might be on a Robert Shelton or

what there might be on a Shelton who might

be the Robert Shelton that we were talking

[about]. And we accumulated those things

from all the sources available to the committee

and then attempted in the hearing to see if

this was the same individual. ;

By this time, the Subcommittee had three, four or

five leads“ under the name of Shelton without a

first name (R. 111). Therefore, the Subcommittee

desired to question petitioner concerning whether he

was the Shelton mentioned in the Subcommittee’s

files (R. 111): i

We had here a man who was Robert

Shelton, who was a newspaperman. It was of

some importance to the committee, while he

was on the stand, to ascertain whether he was

> the same person as any of these other individ-

uals. It is a procedure which we follow wher-

ever it is possible, where time will permit: we

F bhave a witness who may be the same as a per-

m not adequately identified in our files.

When petitioner appeared at the executive session

on December 7, 1955, he was advised by Subcommit-

tee counsel that the purpose of his appearance was

to clarify the question of identity (R. 52). Peti-

tioner declined to cooperate with the Subcommittee

by refusing to answer numerous questions (R. 52-

64). The ittee subsequently called peti-

tioner’s eo and told him to have petitioner ap-

pear at 2 ings beginning on January 6, 1956 (R.

66). It was at the latter hearings that petitioner

refused to answer the questions on which he was con-

victed. Thus, the subpoena—on which the mistake

was initially made as to: Mr. Shelton’s first name

was not the basis for petitioner's appearance at the

hearings which are directly involved in this case.

There was no mistake as to the direction to peti-

tioner to appear at the hearings which resulted in

his contempt; the Subcommittee called petitioner’s

oounsel and asked petitioner to appear.

We submit that at the time petitioner appeared at

the open hearings the Subcommittee had reasonable

ground for believing that petitioner had information

that would be of considerable value. The Subcom‘,

mittee had been informed that there was Communist

PEPE Te A TET ae toy eT Oe,

ey at

hh al hi hel Bodie TAs rte

Mash n Git

infiltration of the press, and also had specifie infor-

mation from a reliable informant that a Shelton on

the editorial or news side of the New York Tirhes was

a member of the Communist Party. Since petitioner

was the only Shelton fitting this description, the Sub-

committee had reason to believe that petitioner was a

Party member who could testify concerning Party

- activities in the newspaper field.

Petitioner claims (Pet. Br. 29, note 6), now Mer,

that the government cannot rely on information pro-

vided by the informant because it refused at trial to

produce the anonymous letter which conveyed this in-

formation to the Subcommittee. This might be true

if “probable cause’? was an element of the

eriminal offense which the government was re-

quired to prove. This, however, is clearly not the

ease. Instead, the Barenblatt case shows that prob-

able cause is one of several considerations in deter-

mining whether First Amendment rights have

been Violated. Therefore, we submit that, when

the Court in Barenblatt and Wilkinson referred to

“dragnet procedures“ and “probable cause,” it did not

mean to suggest that the sufficiency of the information

or reasons which cause a committee to call a witne®

should be subject to plenary judicial review. Rather,

we believe, the Court intended at most to require only

that Congressional committees present material show-

ing the basis of their decision to subpoena the witness.

See Sacher v. United States, 240 F. 2d 46, 50 (C. A.

D. C.), vacated and remanded on other grounds, 354 U.S.

930. Here the Subcommittee’s counsel described the in-

formation possessed by the Subcommittee as to petition-

er’s Communist activities. This evidence is sufficient

61779261 5

—

for a court to decide whether the information déscribed

by the Subcommittee constitutes ‘‘ probable cause,’’ . e.,

that it was reasonable for the Subcommittee to believe

that it could obtain pertinent testimony from the

witness,

In short, we believe that the decision whether to

subpoena a witness is mainly for the legislative body.

To superimpose on a trial for contempt a full-scale

trial of a committee’s judgment would be an invasion

of the prerogative of the legislature and a serious in-

terference with Congressional investigations. The

permissible secpe of a Congressional imvestigation,

which ‘of necessity must proceed step by step, is not to

be limited by the strict requirements of a criminal

prosecution,

Petitioner also quotes (Pet. Br. 8) a statement

made by the Subcommittee counsel to petitioner at the

executive session that petitioner was not charged with

being a Communist and that counsel was greatly sur-

prised when petitioner refused to answer questions

(R. 56). Subcommittee counsel, however, fully ex-

plained this statement at petitioner’s trial on the

ground that petitioner had earlier in the executive ses-

sion strongly indicated to the Subcommittee both by

his answers to questions and his demeanor that he was

not the Shelton whom the Subcommittee was seeking

to question and that therefore the subpoena was

wrongly issued (R. 112). Certainly, the statement of

counsel at the executive session was not sufficient to

overcome all the other evidence in the trial record that

the Subcommittee had reasonable ground to ques-

tion petitioner about Communist infiltration into

—

news media when he appeared at the public hearings

after refusing to testify in executive session.

Even if we assume, however, that the Subcommittee

did not have reasonable ground to believe that peti-

tioner was a Party member, the Subcommittee could

be absolutely certain: that petitioner had vziuable

information to contribute. This infor::stion was

whether petitioner was in fact the Shelton described

in the information previously given to the Subeommit-

tee. If he was, the ing of the information already

in the files would be clarified and there would be Hb need

to look for another Shelton who was the subject of this

information. At the least, the Subcommittee would

have information that one Party member was em-

ployed, perhaps in a significant capacity, on an impor-

tant newspaper. In addition, petitioner could then be

thought to have information concerning Communist ae-

tivity in the newspaper field. If petitioner testified that

he was not the Shelton described in the Subeommittee’s

files, this would indicate to the Subcommittee that it

would have to look further to find the subject of its in-

formation. In short, we submit that a Congressional

committee can call a witness for purpeses of identifica-

tion where it has information concerning one of a nar-

rowly defined group of persons. Certainly, it was not

likely that there would bea large number of Sheltons

on the New York Times.

Clearly, the Subcommittee reasonably believed that

petitioner “pos<essed information which might be

helpful to the subrommittee“ (Wilkinson . United

States, supra, 365 U.S. at 412) and relevant to the

inquiry” (Oklahoma Press Publishing Co. v. Walling,

— —

supra, $27 U.S. at 209. Thus, the Subcommittee could

7 IV

PETITIONER CANNOT CHALLENGE THE GRAND JURY FOR

Has ON THE GROUND THAT IT WAS COMPOSED IN PART

GF GOVERNMENT EMPLOTERS

In his tion to dismiss the indictment, petitioner

urgea as the ground for granting the motion that the

indictment was void and illegal in that there were

less than 12 members of the Grand Jury who con-

eurred in finding the indictment who were free from

prejudice or bias against this defendant” (R. 3).

Alternative to immediate dismissal of the indictment,

petitioner sought a hearing to give him an opportun-

ity to demonstrate the bias (R. 3-4). In support of

these contentions, he submitted an affidavit reciting

that fourteen of the twenty-three members of the

grand jury were employed by the United States Gov-

ernment, and that, being so employed and thus subject

to the government’s security programs, they were so

‘instilled with the fear of creating the appearance of

sympathetic attitude toward any person accused of

Communism that they could not consider the facts

presented to them with open minds, free from bias

and prejudice (R. 4-8). The motion was denied

without opinion (R. 19). We submit that the order

was correct.

4. THE PRESENCE OF GOVERNMENT QMPLOTEES ON A GRAND JURY

DOES NOT AUTOMATICALLY INVALIDATE THE INDICTMENT

Petitioner’s broad contention is that a person ac-

cused of refusal to reveal whether he. was a member

eae Gerd OF

PIT OS

2 63

of the Communist Party and give other information

on hfs Communist connections“ (R. 5) is entitled to

be indicted by a grand jury on which no government

employee. sits. This argument is conclusively an-

swered by the cases involving government employees

on petit juries. It has long been settled that gov-

ernment employees, in the absence of a showing of

actual bias, are not disqualified for service on petit

juries in federal criminal prosecutions. United

States v. Wood, 299 U.S. 123; Frazter v. United

States, 335 U.S. 497; Dennis v. United States, 339

U.S. 162. This is true even though one or more of

the employees are employed in the very department

charged with responsibility for enforcing the statute

which the defendant is charged with having violated.

Frazier v. United States, supra. And the rule was

adhered to even though the defendant was a promi-

nent Communist charged with contempt of the House

Un-American Activities. Committee and where the

trial was held after the promulgation of the first

“Loyalty Order.“ Dennis v. United States, supra.

Of course, the accused must be given the opportu-

nity to prove actual bias at the voir dire examination

and thus to challenge particular government em-

ployees for cause (Dennis v. United States, supra, 339

U.S. at 171-172; Morford v. United States, 339 U.S.

258), but in this respect government employees oc-

cupy no different status from other -prospective

jurors, any of whom are challengeable for cause when

actual bias appears.

The above cases, involving the petit jury, apply a

fortiori to petitioner’s contention as to grand juries.

— —

—

6⁴

For, as we shall see below, defendants have tradi-

tionally been afforded far mor protection from pos-

sible bias as to jurors on petit juries than on grand

juries. 7

B. PETITIONER WAS NOT ENTITLED TO A HEARING, IN ORDER TO

SHOW THAT THE GRAND JURORS WEES : BLAGED, BECAUSE HE

FAILED TO ALLEGE SPECIFIC AND CONVINCING FACTS DEMONSTRAT-

ING THE STRONG BIAS OF INDIVIDUAL GRAND JURORS

1. In our system of justice, the courts have been

traditionally and continually reluctant to scrutinize

grand jury proceedings. For example, this Court

has held that a defendant is not entitled to a hearing

in order to challenge an indictment on the ground

that the grand jury has considered incompetent ur

even illegally obtained evidence. . Costello v: United

States, 350 U.S. 359; Lawn v. United States, 355 U.S.

339, 348-350. This judicial reluctance to scrutinize

grand jury proceedings is based on at least three

related reasons. First, the grand jury has always

been a purely accusatory body which does not de-

cide question of guilt or innocence but merely

whether defendant should be remanded for trial.

See Hale v, Henkel, 201 U.S. 43, 65. As Chief Judge

Swan stated, an indictfnent is, after all, no more

than an tion. United States v. Remington,

191 F. 2d 246, 252 (C. A. 2), certiorari denied, 343

US. 907. Second, if the courts allowed defendants

to challenge various aspects of the grand jury pro-

ceeding, the result would be a second elaborate hear-

ing, in addition to the trial itself, before guilt or

innocence was determined. This would mean delay

mead, Dee

ree we r

and inefficiency in the administration of criminal

justice. See United Statés v. Remington, supra, 191

F. 2d at 252. Finally, the defendant is guaranteed

detailed and elaborate protection, both at the trial

and appellate levels, as to the proceeding at which

his guilt or innocence is determined.

2. The history and purpose of grand juries suggest

not only the reluctance of the courts to scrutinize

grand jury proceedings in general but also their re-

luetance to examine in particular the beliefs, motives,

and prejudices of the jurors. This can readily be seen

from the absence from ordinary grand jury proce-

dures of anything comparable to the voir dire exam-

ination, the historie guarantee against bias and parti-

ality on the part of members of the petit jury. It

reflects the assumption, dating at least from the time

of our Constitution, that grand juries were not ex-

pected to be unprejudiced.

The grand jury has traditionally served as a con-

duit to report the common knowledge of the com-

munity to the courts. Orfield, Criminal Procedure

from Arrest to Appeal (1947), 144-145. The fact

— “that it might have formed a prejudgment as to the

truth of an accusation was not considered improper

(United States v. White, Fed. Cas. No. 16,679 (C.C.

D.C.)); nor was the fact that it might even have

prejudices against a possible accused unrelated to the

cireumstances of the particular case. Cf. United

States v. Smyth, 104 F. Supp. 283, 301 (N.D. Calif.) ;

United States v. Rintelen, 235 Fed. 787, 789 (S. D.

N. V.); see also United States v. Fujimoto, 102 F.

Supp. 890, 896 (D. Haw.). The grand jurors took

oaths not to allow prejudice to influence their judg-

ment, and this was apparently regarded as a sufficient

safeguard. |

Although the growth in the size of the communities

for which grand juries now act means that they are

far less likely than earlier to have prior personal in-

formation about their accusations, this same growth

also means that grand jurors are more likely to have

biases with respect to classes of persons or types of

crimes, rather than with respect to the individual

accused. A grand jury in a modern urban community

will, in the course of its service, have brought before

it a wide gamut of crimes and persons. It would be

a serious impairment of the work of such juries if

defendants were free to invalidate indictments on a

showing, in general terms, that there were community

prejudices of-one sort or another probably operating

on the gr jury to their disadvantage, or to be free

to delay the p of a criminal case by demanding a

hearing in order to rummage among the thoughts of

individual grand jurors to discover possible preju-

dices. A “trial of the grand jury, particularly on

the basis of unsubstantiated allegations, would be a

serious obstacle to disposing expeditiously of erimi-

nal charges on their merits. And it would be a seri-

ous addition to the burdens incident to service on

grand juries. It follows, therefore, that the practical

operation of the grand jury system requires, as we

show below the cases hold, that a showing of grand

jury bias must be strong and specific and relate to in-

dividual grand jurors to invalidate an indictment, and

that, absent an allegation of facts which if proven

would constitute such a showing, a general exploration

to discover such bias cannot be permitted.

3. This Court has never said what kinds of bias, if

any, would disqualify a grand juror or what kind of

allegations are necessary in order to require a hearing

on this issue. In Hale v. Henkel, 201 U.S. 43, 59, the

Court said that it is the function of a grand jury to

stand between the prosecutor and the accused.’’ See

also Ex parte Bain, 121 U.S. 1, 10-11. This means

that a grand jury which was merely the tool of the

prosecution would not be a proper grand jury; but it

sheds very little light on any criteria by which to

judge whether a particular jury is, in fact, a tool of

the prosecution. Certainly, not every circumstance

which might indicate bias on the part of one or more

grand jurors would indicate that the jury was so

pliant that it would do whatever it was told. Simi-

larly, in Lawn v. United States, 355 U.S. 339, 349, and

Costello v. United States, 350 U.S. 359, 363, the Court

indicated that an indictment must be returned by an

unbiased grand jury. But again no standards which

would require dismissal of the indictment were

sugggested.

There is only one group of cases in which this Court

has considered squarely the composition of grand

juries. In these cases, the Court has insisted that

grand jury panels be broadly representative of the

community, and has struck down indictments returned

by grand juries drawn from panels from which. par-

ticular groups—for example, persons of Mexican an-

cestry, Negroes, and women—had been deliberately

excluded. Hernandez v. Texas, 347 US. 475; Cas-

sell v. Tezas, 339 U. 8. 282; Ballard v, United Stat es,

329 U.S. 187; ef. Fhiel v. Southern Pacific Co., 328

U.S. 217 (wage earners). In so holding, a plurality

opinion of the Court has indicated that an accused

is entitled to indictment by a fair and impartial

grund. jury (Cassell v. Texas, supra, 339 U.S. at

282), which suggests that a grand jury made up with

systematic discrimination cannot be fair and im-

partial in . matters involving — from

the excluded group.

"Cf. Strauder v. West Virginia, 100 U.S. 303, 309, which

dealte with petit jury panels from which Negroes had been

deliberately excluded :

It is well known that prejudices often exist against par-

ticular classes in the community, which sway the judg-

ment of jurors, and which, therefore, operate in some

cases to deny to persons of those classes the full enjoy-

ment of that protection which others enjoy. Prejudice in

a local community is held to be a reason for a change of

venue. The framers of the constitutional amendment must

have known full well the existence of such prejudice and

its likelihood to continue against the manumitted slaves

and their raco, and that knowledge was doubtless a motive

that led to the amendment. By their manumission and

citizenship the colored race became entitled to the equal

protection of the laws of the States in which they resided;

and the apprehension that through prejudice they might

be denied that equal protection, that is, that there might

* discrimination against them, was the inducement to be-

stow upon the national government the power to enforce

the provision that no State should deny to them the

eq rotéction of the laws. Without the apprehended

existence of prejudice that portion of the amendment would

have been unnécessary, and it might have been left to the

states to extend equality of protection.

Seer eee eee eee

eee eee

Te ee

Nonetheless, we submit that this Court’s decisions

holding that the arbitrary exclusion of*entire groups

from grand juries is unconstitutional do not rest in

any substantial way on the view that members of the

excluded group may be subjected to improper biases

if nd jurors are drawn solely from the excluding

group. Rather, those cases turn principally on the

ground that the grand juries so chosen are unrepre-

sentative of the community, and therefore are not

proper grand juries—a ground which reflects the his-

tory of grand jury proceedings to which we referred

above. It is plain that it is not merely general

prejudice against the accused’s class that is involved,

because the reniedy of the Court has been to require

the selection of grand jury panels without the arbi-

trary exclusion. Such a remedy does not provide for

the_exclusion of those who might still be. prejudiced

or the inclusion of ‘those from the formerly excluded

elass in every case involving other members of the

elass; it merely insures the presence, at random, of

the previously excluded group on grand jury panels,

although not necessarily on particular grand juries.

Any serious prejudice against members of the pre-

viously excluded group is not likely to be erased or

rendered ineffective by the inclusion of members of

that group on a jury panel, and even the inclusion

of a member on a particular ‘grand jury would not

prevent other grand jurors from voting in accordance

with their prejudices.

Thus, the Court has implicitly recognized in these

decisions that various general community prejudices

are not a basis for challenging an indictment which

has been returned by a grand jury, so long as the

70 —

panel from which the jury was drawn was repre-

sentative of the entire community, with the resulting

assumption that any given grand jury, drawn by lot

from the panel, will similarly be representative of

the community.“ In short, it is not possible prejudice

which the decisions of the Court have sought to guard

against, byt rather unfair representation. The rule

which petitioner asks the Court to adopt in this case,

on the other hand, would insure precisely the opposite

result juries which are not representative of

the community, particularly in the District of Colum-,

bia—for it would systematically exclude from —

juries all members of a certain class, namely, govern-

ment employees.

Most of the courts which ave considered the issue

: of/grand- jury bias. have held that, in the absence of

a statute, bias on the part of one or more grand jurors

does not invalidate an indictment.’ See, e. g., United

States v. Rintelen, 235 Fed. 787, 789 (S. D. N. .);

United States v. Smyth, 104 F. Supp. 283, 300-301

(N. D. Calif.); United States v. Knowles, 147 F. Supp.

19 (D. D.C.); see alsg the cases collected in support

of this proposition in Annotation, Prejudice of Mem-

ber of Grand Jury Against Defendant us Ground of

Attack ot Indictment, 88 A.L.R. 899, and 24 Ameri-

— *

*Cf. Ruthenberg v. United States, 245 U.S. 480 (fact that

no Socialists were on grand jury held nat a basis for chal-

lenging indictment).

* Cases stating that biased grand jurors may or should be

excluded by the judge are of course not controlling as to the

issue before the Court, de., whether such bias requires that an

„ indictment, on which a defendant has been tried and convicted

by an unbiased judge or petit jury, must be dismissed.

can Jurisprudence, Grand J ury, s ‘0. Many courts

have so held even on records which strongly showed

that some of the grand jurors were biased. See,

e. United States v. Williams, Fed. Cas. No. 16,716

(C. C. D. Minn.) (prosecuting witness was a member of

-the grand jury); Coblentzev. Maryland, 164 Md. 558,

166 Atl. 45 (indictment against defaulting bank offi-

cial returned by grand jury some of whose members

had lost money as a result of default); State v.

Easter, 30 Ohio St. 542 (murder indictment returned

by grand jury which included nephew of deceased) ;

Rice v. State, 204 Ark. 236, 161 S.W. 2d 401 (indict- -

ment returned by grand jury which included unsuc-

cessful political opponent of accused) ; see also United

States v. Caldwell, 8 Alaska 117, 121-122; Collins v.

State, 3 Ala. App. 64, 67, 58 So. 80.“

Some courts, however, have invalidated an e

ment when the bias was particularly strong and clear.

See, e. g., State ex rel. Reichert v. Youngblood, 73 N. E.

2d 174 (Ind.) (grand juror reported to have boasted,

9 know how I got on the grand jury. We are going

to get a Mayor * * *).” There the court quoted. with

approval (ick at 179):

The general rule is that neither the bias nor

prejudice of a grand juror, nor his interest in

a prosecution (other than a direct pecuniary

interest); nor the fact that he has formed, or

expressed an opinion, will so disqualify him as

10 And California lias, by statute, expressly withdrawn an

earlier statutory right to challenge a grand juror or attack

an indictment on the ground of prejudice. People v. Kempley,

205 Cal. 441. 446-448, 271 Pac. 478, a

to render invalid indictments returned by the

grand jury. * * But we know of no authori-

ty which goes so far as to hold that this would

de true where jurors had determined, through

* malice or bribery, to violate their oaths. It

is the difference between honest error, to which

all men are subject, and the wilful corruption

which distinguishes the malefactor. |

Even when it is recognized that some kinds of bias

may invalidate an indictment, it is required that the

showing’ of that bias be made in specific terms, as to

individual grand jurors, rather than in the form

of a mere general allegation of prejudice. In Cleve-

land v. United States, 146 F. 2d 730, 732-733 (C. A.

10), affirmed, 329 U.S. 14, it was alleged that the

indictment against the defendant for violation of the

Mann Act and kidnapping resulted from a factional

dispute in the Mormon Church, and “that the fore-

man of the grand jury was a prominent and domi-

nating figure in the high priesthood quorums of the

church; that, upon information and belief, a large

majority of the grand jurors, if not all of them, were

likewise influential members of the church; and that

the indictment was returned in a spirit of animosity

and enmity toward the defendant.“ The court re-

jected this showing as insufficient, stating (146 F. 2d

at 732-733) :

Except the ex parte affidavit attached to the mo-

tion, which contained many allegations predi-

cated upon information and belief, there was

no showing that the foreman or any other mem-

ber of the grand jury belonged to any particular

——

oe +}

religious sect, or that he bore any animosity,

enmity, or prejudice against the defendant.

Neither was there any showing that due to prej-

® udice or other like attitude toward the de-

fendant, the foreman or any other member ex-,

erted or sought to exert influence with mem-

bers of the body in bringing about the return

of the indictment. Assuming, without so decid-

ing, that the indictments were subject to attack

on the ground indicated, the motions and ex

parte affidavits, alone and without. more, were

not enough to warrant the quashing of them.

In Emspak v. United States, 203 F. 2d 54 (C.A.

D.C.), reversed on other grounds, 349 U.S. 190, and

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

«reversed on other grounds, 349 U.S. 155, the witnesses

convicted ‘ef contempt of Congress claimed, as in this

ease, that the indictment was invalid because some

of the grand jurors were government employees and

asked for a hearing at which they could show bias.

The defendants in those cases introduced consider-

able evidence by way of affidgvits and exhibits, unlike

petitioner, who relied entirely on his counsel’s affida-

vit (see infra, pp. 76-77), to show that a miasma of

fear” had developed among government employees due

to a loyalty order and investigation which would make

them afraid to vote for a person alleged to be a

Communist. See Emspak v. United States, 203 F.

2d at 58-59. The court of appeals rejected the at-

tacks on the indictments in both cases. Emspak, 203

F. 2d at 56, 58-60; Quinn, 203 F. 2d at 25. The plu-

rality opinion in Emspak explained (203 F. 2d at 59):

J, No claim was made that any grand juror was

biased against this appellant personally. We

think that under the circumstances presented to

the court there was no indication that Govern-

ment employees would not be suitable grand

jurors in respect of the charge that was before

them in this particular case.

In United States v. Remington, supra, the defend-

ant alleged that the foreman of the grand jury had a

financial interest in a book written by the govern-

ment’s chief witness. The Second Circuit, however,

refused to allow the defendant the opportunity to

examine all the grand jury minutes on a hearing to

show that the foreman had unduly influenced the

grand jury to secure an indictment. The court rea-

soned that while “some abuses may thus go uncor-

rected,” “we are unwilling to turn the indictment

procedure into a separate trial” (191 F. 2d at 252).

The New York courts have required a specific

showing of bias even under a statute which permits

a person to challenge a grand juror on grounds of

bias. The statute allows such a challenge if it ap-

pears “That a state of mind exists on [the grand

juror's] part in reference to the case or to either

party, which satisfies the court, in the exercise of a

sound discretion that he cannot act impartially and

withont prejudice to the substantial rights of the

party challenging.” New York Code of Criminal

Procedure, § 23966); see also id. 5 77602). This

u The court ordered the minutes of the defendant's own testi-

r ü

2 ———— EN

provision has been interpreted to mean that there

must be a showing of actual bias on the part of an

individual juror, as contrasted with implied bias, in

order to disqualify the juror. People v. Prior, 268

App. Div. 717, 54 N.Y.8. 2d 150, 153, affirmed, 294

N.Y. 405, 410-411, 63 N.E. 2d 8, 10.

The plurality opinion in Dennis v. United States,

339 U. 8. stated that a defendant is not entitled

sai ene eee eee eee

eral courts unless he can show “actual bias of partie-

ular jurors. Id. at 168-172: In Dennis, the defendant

had been convicted of contempt for refusing to answer

questions concerning Communist activities anked by

the House Un-American Activities Committee. The

claimed* that a “Loyalty Order” of the

government created an aura of surveillance

and i idation which would make it impossible for

government employees to judge impartially a case

jeeted the defendant’s contention on the ground that,

while the guarantee of an impartial trial requires that

no petit jurors have an actual bias against the

defendant, it does not disqualify petit jurors merely

beeause of an “implied bias” resulting from their

relationship with the government. As we have indi-

cated above (pp. 63-64), if a defendant must show

that individual petit jurors are actually biased in order

to disqualify them, a fortiori he has at least the same

burden in order to disqualify grand jurors. And

even if “implied bias” is sufficient to disqualify petit

jurors for cause, as the concurring and dissenting

r- 61 4

opinions in Dennis state, we submit that actual bias

is at least required with regard to grand jurors.

4 Petitioner did not allege the specific and con-

vineing facts of strong bias in individual grand jurors

necessary to entitle him to a bearing even if we as-

sume, contrary to the holdings of numerous cases (see

supre, pp. 70-71), that an indietment can be challenged

on the ground of the bias df one or more grand jurors

convincing.

The affidavit in support of the motion for a hearing

(R. 48) amounted, in substs: ce, to no more than

an offer to adduce evidence that there existed among

government empleyees in general such a elimate of

opinion, fear and intimidation” as to make it likely

that any individual employee of the government would

be afraid to vote against the return of an indictment

in any case which was in any way connected with

charges of “Communism, membership in the Commu-

nist Party, or association with members of the Com-

munist Party, present and past. These allegations

were insufficient for two reasons. First, even if peti-

among government employees generally, he failed to

allege such fear (as well as the grounds supporting

the allegation) as to the individual government ent

ployees on the particular grand jury. Thus, even if

petitioner’s allegations are true, this does not estab-

lish that any of the government employees on the

grand jury which returned this indictment were in-

timidated to the extent of disregarding their honest

convictions. The lack of specificity as to individual

. . ~ TR

grand jurors shows that petitioner hoped to conduct

a general exploration into the lives and beliefs of the

grand jurors. A similar attempt was rejected by

the Court of Appeals for the District of Columbia in

Emspak v. United States and Quinn v. United States

(see supra, pp. 73-74), where the defendants, unlike

petitioner here, introduced affidavits and exhibits pro-

viding considerable detail as to fear among govern-

ment employees generally. Thus, even if a hearing

had been awarded and petitioner had proved his alle-

gations, this would not have been a showing of

specific and strong bias in a particular grand juror

or jurors—which is the only kind of a showing under

the decisions that could suffice | to invalidate an indict-

ment. Since petitioner’s general allegations, assum-

ing arguendo that they are correct, were not sufficient

to imvalidate the indictment, he was not entitled to

a hearing in order to prove these insufficient allega-

tions.”

Second, petitioner failed even to state the facts

which he hoped to show in order to demonstrate that

there existed a climate of great fear and intimidation

among government employees generally as a result of

the security program. His basic contention is that a

security program, almost by definition, instills fear.

For petitioner merely makes conclusory assertions

about a climate of fear (Affidavit, points 7-9, R. 5-6),

The situation is comparable to a motion to dismiss for

failure to state a claim upon which relief can be granted under

Rule 12 (b) (6) of the Federal Rules of Civil Procedure. The

plaintiff is not entitled to a trial to determine the truth of

allegations which, even if true, do not entitle him to relief.

states facts which he hopes to show at the hearing but

which he does not swear exist (Affidavit, points 10-11,

R. 7-8), and claims that government employees under

investigation were asked their opinion of eases involv-

ing Communism and Congressional investigatory com-

mittees (Affidavit, points 12-13, R. 8). Thus, peti-

tioner is seeking a hearing in order to conduct a gen-

eral exploration into the motives and beliefs of four-

teen grand jurors. No court, as far as we have been

able to determine, has ever allowed such a hearing.”

THE INDICTMENT WAS NOT REQUIRED TO SPECIFY THE

SUBJECT UNDER INQUIRY

In his motion to dismiss the indictment, petitioner

contended that the indictment was defective for fail-

underlined by the provisions of Rule 6 of the Federal Rules

deliberating or voting.” Rule 6(e) provides that the “delibera-

tions and the vote of any juror may be made only when

juror voted on a matter.

In view of these provisions designed to maintain the tra-

* ;

79 —

ure to plead “the nature of the question then under

inquiry’ to which the questions addressed to defendant

are alleged to be relevant” (R. 3). It is clear, how-

ever, that an indictment which pleads, in the words

of the statute, that the questions defendant refused to

answer were “pertinent to the question then under in-

quiry” (R. 1) is, without additional description of the

subject under inquiry, sufficient to charge a violation

of 2 U.S.C. 192.

Rule 7(c) of the Federal Rules of Criminal Pro-

cedure provides that:

The indictment or the information shall be

a plain, concise and definite written statement

of the essential facts constituting the offense

charged. 7

It is well established that indictments in the statutory

language are ordinarily sufficient under Rule 7(c).

In United States v. Debrow, 346 U.S. 374, the indict-

ment charged, in the language of 18 U.S.C. 1621, that

petitioner committed perjury by “unlawfully, know-

ingly and wilfully, and contrary to such oath,

stat[ing] a material matter which he did not beiieve

to be true. Id. at 375. Rejecting the contention that

failure to allege the name of the person who admin-

istered the oath and his anthority to do so invalidated

the indictment, this Court stated (td. at 377-378):

The charges of the indictments followed sub-

stantially the wording of the statute, which em-

bodies all the elements of the crime, and such

charge clearly informed the defendants of that

with which they were accused, so as to enable

them to prepare their defense and to plead the.

judgment in bar of any further prosecutions

for the same offense. It is inconceivable to

us how the defendants could possibly be misled

as to the offense with which they stood charged.

The sufficiency of the indictment is not a ques-

tion of whether it could have been more definite

and certain.

In Markham v. United States, 160 U.S. 319, 325,

the Court held that a simple averment that the false

statement was material to an inquiry then pending“

(id. at 320) was sufficient to charge the materiality

element of a perjury offense. Accord, United States

v. Kennefick, 144 F. Supp. 596, 598 (N.D. Ill.) The

holding in Markham is directly applicable to the in-

stant case. For the pertinency of the questions

(which a witness refuses to answer) to the subject un-

der inquiry by a Congressional committee is not es-

sentially different from the question as to materiality

of false testimony charged as perjury in prosecu-

tions for that erime. Sinclair v. United States, 279

U.S. 263, 298. See also Berger v. United States, 295

U.S. 78, 82; Hagner v. United States, 285 U.S. 427,

431-433. 3

It is inconceivable, in the words of Debrow, that

with which he stood charged. Petitioner received

ample information from the indictment in order to

prepare his defense and to prevent a second prosecu-

tion for the same offense. As to the possibility of a

second prosecution, the indictment specified the Sub-

committee holding the hearings, the time of the hear-

ings, and the questions which petitioner refused to

answer at those hearings. With respect to preparing

— —ü—ä AL

— — U— —

his defense, petitioner was apprised at the time of

the hearings before the Subcommittee as to the sub-

ject under inquiry (see supra, pp. 32-33), and it

was obvious that the transcript of the hearings would

be relied on by the government at the trial. More-

over, if petitioner was surprised at trial, he could

have moved for a continuance. The test is not

whether the government could have alleged the sub-

_ ject under inquiry in the indictment, nor whether

such an allegation would have been useful to the de-

fendant—as Debrow phrased it, the sufficiency of

the indictment is not a question of whether it could

have been more definite and certain“ (346 U.S. at 378).

The courts of appeals have expressly held that an

indictment alleging that a witness has wilfully re-

fused to answer questions asked by a Congressional = _

committee need not specifically state the subject under

inquiry. In Barenblatt v. United States, 240 F. 2d

875, vacated and remanded on other grounds, 354 U.S.

930, and ultimately affirmed, 360 U.S. 109, the Court

of Appeals for the District of Columbia Cireuit upheld

an indictment which is identical in this respect to the

indictment in this case (240 F. 2d at 878):

* * * it appears that the indictment stated

all the elements of the offense charged and

served notice on appellant as to what conduct.

on his part constituted the alleged offense.

This satisfies the requirements of Fed. R. Crim.

P. 7(c), 18 U.S. C. A.

Likewise in Sacher v. United States, 252 F. 2d 828

(C. A. D. C.), reversed on other grounds, 356 U.S.

576, the court of appeals, on remand from this Court

for reconsideration of the case in light of Watkins v.

United States, 354 U.S. 178; stated that (252 F. 2d

at 830-831):

In our view nothing said or implied in the

Watkins opinion suggests the Court intended

to interpret Rule 7(c), Fed. R. Crim. P., 18

U. S. C. A., to require that an indictment under

2 U.S. C. A. § 192 recite details of the authority

and scope of this inquiry. We see no reason

to alter our earlier holding that the indictment

is sufficient.

And in United States v. Josephson, 165 F. 2d 82,

certiorari denied, 333 U.S. 838, the Court of Appeals

for the Second Circuit upheld an indictment which

simply said that the defendant refused to testify 1

‘fon matters of inquiry committed to said — phe

(td. at 85):

It has been suggested that United States v. Lamont, 236 F. 2d

312 (C.A. 2), holds to the contrary. In that case, the district

court hele that an indictment under 2 U.S.C. 192 must set forth

the authority of the Congressional committee before which the al-

leged contempt occurred, that the inquiry was within the scope of

authority granted to the committee, that the questions which

the ‘witness refused to answer were pertinent to the subject mat-

ter of inquiry being conducted by the committee, and that the

refusals were wilful. 18 F. R. D. 27, 37. The court held that the

requirement as to pertinency was satisfied by an allegation that

the questions were pertinent. Id. at 32. In affirming dismissal

of the indictment, the Court of Appeals for the Second Circuit

did not reach the issue as to pertinency. It held only that the

indictment failed to allege te authority of the committee to

conduct the inquiry and found, as a result of judicial notice,

that the inquiry was in fact outside the scope of the committee’s

authorizing resolution and hence its jurisdiction. The court of

‘appeals stated that the result might well be different were

this a case of a committee created by Congress to hold hearings

for a specific purpose, with the inquiry in question apparently.

falling within the assigned purpose” (236 F. 2d at 316, note 6).

The court then cited the Josephson case, supra.

—

The above quoted indictment conforms to

the requirements of Rule 7(c) * * * and was

rightly held sufficient. Indeed, it is a good

example of ‘‘a plain, concise and definite writ-

‘ten statement of the essential facts constitut-

ing the offense charged.“

CONCLUSION

For the foregoing reasons, we respectfully submit

that the judgment of the court of Spee” should be

affirmed.

ARCHIBALD Cox,

4 Solicitor General.

J. WALTER YEAGLEY,

Assistant Attorney General.

Bruce J. TERRIs,

Assistant to the Solicitor General.

Kevin T. Maroney,

Caroy. M. BRENNAN,

Attorneys.

NOVEMBER 1961. 0

8 Petitioner does not renew in his brief on the merits the

contention which he made in his petition (Pet. 30) that the

district court erred in fining petitioner separately in each of two

counts. Under 2 U.S.C. 192 each refusal to answer a pertinent*

question is a separate offense. While Fates v. United States, 355

U.S. 66, 72-74, holds that a witness can be punished only for one

contempt no matter how many questions he refuses to answer if he

“carve[s] out an area of refusal” or a “generally defined area

of interrogation,” petitioner made no general refusal to answer

all questions in a particular area. Moreover, the record in

this case does not suggest ‘any jattempt by the Subcommittee

to multiply contempts. See also United States v. Emspak,

95 F. Supp. 1012 (D. D.C.), affirmed, 203 F. 2d 54 (C.A.D.C.),

reversed on other grounds, 349 U.S. 190.

U.S. GOVERNMENT PRINTING OFFICE: 1961

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