Brief for the US — Price v. United States

Supreme Court brief1961

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Communist activities in the United States 19

II. Petitioner cannot claim for the first time at his

trial that under the Legislative Reorganiza-'

tion Act of 1946 the Subcommittee could not

, held the hearing at which he

appeared. Even if petitioner could make this

contention, Senate Resolution 366 authorized

— 0 22

III. The Subcommittee’s investigation did not

* violate the First Amendment 888 23

were pertinent to the subject under r 24

their pertinen exp 8 24

B. The questions petitioner refused to

answer were in fact pertinent 26

0 : {

619366-—-61———1

. 1

Argument Continued

v. Petitioner was not entitled to dismissal of the

indictment, or a hearing, on the basis of

broed allegations that government employees

VI. The indictment was not required to specify the

subject under inquify or the pertinency of the

questions to this subject, or to allege that

petitioner’s refusal to answer was wilful, or to

state the delegation of authority from the

parent Committee to the Subcommittee -- --

VII. The trial court did not deny petitioner the right

of croes-éxamination by denying his motion

to subpoena the Subcommittee’s files and re-

fusing to allow croes-examination which

＋ sought to obtain confidential information - - - -

| VIII. Petitioner cannot claim for the first time in his

brief on the merits in this Court that the Sub-

committee violated his rights under the

Fourth and Fifth Amendments since it did

hot have probable cause to subpoena him.

In any event, petitioner's rights were not

CITATIONS |

3 United States, 360 U.S. 10909

13,

18, 19, 20, 24, 25, 28, 37, 39

Deutch v. United States, 367 U.S. 4566.

v. United States, 203 F. 2d 54, reversed on

4 TT. a

. New Hampehire, 354 U.S. 234.

United States v. Atkinson, 297 US. 157... .--------

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

United States v. Lamont, 236 F. 2d 31ꝛ—ꝛ—

United States v. Socony Vacuum Oil Co., 310 U.S. 150

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

rrr

3 — — sa.

U.S. Constitution: Page

First Amendment 2, 20, 25, 28, 39

Fourth Amendment 17, 18, 38, 39

Fifth Amendment 34, 38, 40

Legislative Reorganization Act of 1946, c. 753, Title I,

Sec. 134, 60 Stat. 832 (2 U.S.C. 190b(b)) 8 2

2 U.S.C. 192, as amendell 3, 13, 19, 34

Miscellaneous:

Federal Rules of Criminal 8 Rule 7 (c). . 16, 32, 34

Hearings Before the Subcommittee to Investigate the

Administration of the Internal Security Act and

Other Internal Security Laws of the Committee on

the Judiciary, United States Senate, 84th- Cong. ,

Ist and 2d Sess.:

VVV 4

a en ae 7, 8, 26, 28

Hearings, Subcommittee to Investigate the Adminis-

: tration of the Interna] Security Act and other Inter-

„ nal Security Laws of the Committee on the Judi-

ciary, United States Senate, Communist Activity in

Mass Communications, 85th Cong., 2d Sess., p. 1. 21

Rules of the Supreme Court of the United States, Rule

WONT irs bah sks ed SS 33, 38

S. Rep. 1385, 84th Cong., 2d Sess._.._...._________ 21

S. Res. 366, 8ist Cong., 2d Sess___.___________- 2, 3, 19, 20

S. Res. 58, 84th Cong., Ist Ses 2,19

S. Res. 174, 84th Cong., 2d Ses 21

—

J. the Supreme Court of the Waited States

_Ocroser Term, 1961

No. 12

WLAN A. PRICE, PETITIONER

Untrep States oF AMERICA

ON WRIT OF CERTIORARI ro THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

The opinion of the court of appeals (R. 1-5)

is reported at 280 F. 2d 715. The opinion of the

district court (J.A. 136-137; Pet. 17-18) is not re-

ported.

JURISDICTION

The judgment of the court of appeals was entered

on June 18, 1960 (R.5). On July 13, 1960, Mr.

Justice Black extended the time for filing a petition

for a writ of certiorari to and including August 17,

-1960. The petition was filed on August 7, 1960, and

was granted on June 19, 1961 (R. 7; 366 U.S. 959).

The jurisdiction of this Court rests on 28 U.S.C.

1254(1). : 5

(1)

QUESTIONS PRESENTED

4 Whether Senate Resolution 366 of the 81st Con-

gress and Senate Resolution 58 of. the 84th Congress

authorized the Internal Security. Subcommittee to

conduct the hearing at which petitioner appeared.

2. Whether petitioner can claim for the first time

at his trial that, under the Legislative Reorganiza-

tion Act of 1946, the Subcommittee could not properly

hold the hearing at which he appeared and, if he can,

whether the hearing was improperly held.

3. Whether the Subeommittee's investigation into

Communist activities in the- news media field violated

petitioner’s rights under the First Amendment.

4. Whether petitioner raised the question of per-

tinency at the time he refused to answer the ques-

tiqns, and, if not, whether he ean claim that he was

not apprised of their pertinency for the first time at

his trial. 7

5. Whether the 5 proved that the ques-

tions petitioner refused to answer were pertinent to

the subjeet under inquiry.

6. Whether the indictment was invalid because it

failed to specify the subject under inquiry and the

pertinency of the questions to that subject, did not

allege that petitioner’s failure to answer was wilful,

and did not state the delegation of authority from the

parent Committee to the Subcommittee.

7. Whether petitioner, who was indicted by a grand

jury composed, in part, of federal employees, was

entitled to dismissal of the indictment or a hearing

on the basis of general allegations that such jurors

were biased and afraid as a result of the e

ene program.

3 0

8. Whether the trial court denied petitioner the

right of eross- examination.

9. Whether petitioner may raise a ae for the

first time in his brief on the merits in this Court

that the Subcommittee violated his rights under the

Fourth and Fifth Amendments because it did not,

have probable cause to subpoena him.

STATUTES AND RESOLUTIONS INVOLVED

Relevant portions of 2 U.S.C. 192, as amended;

the Legislative Reorganization Act of 1946, c. 753,

Title I, Section 134, 60 Stat. 832 (2 U.S.C. 190b(b)) ;

and Senate Resolution 366, 81st Cong., 2d Sess., are

set forth in petitioner’s brief at pp. 46-48. In addi-

tion, Section 2 of Resolution 366 states: — a

The Committee, or any duly authorized sub-

committee thereof, is authorized to sit and act

at such places and times during the sessions,

recesses, and adjourned periods of the Senate

Las it deems advisable...

STATEMENT

Petitioner was charged in an eight-count indict-

ment in the District Court for the District of Co-

lumbia with having refused, in violation of 2 U.S.C.

192, to answer. eight questions, pertinent to matters

under inquiry, put to him by the Subcommittee to

. Investigate the Administration of the Internal Secu-

rity Act and Other Internal Security Laws of the

Senate Committee on the Judiciary (J. A. 1). Hav-

ing waived his right to trial by jury, petitioner was

found guilty by the district court on all eight counts.

He was sentenced to three months’ imprisonment

and to pay a fine of five 8 dollars (J. A. 11)

On appeal, the conviction was affirmed (Pet. 20).

The pertinent facts may be summarized as follows:

On June 28 and 29, 1955, the Internal Seturity

Subcommittee heard the testimony of Winston Bur-

dett, a newspaperman and broadcaster, in connection

with its continuing investigation since 1950 into Com-

muist subversion and the operation of the internal

‘security laws.“

Erte chs dada. ö.

the Communist Party from 1937 until the early

1940’s, testified concerning attempts by the Commu-

nist Party to influence public opinion by infiltration

_of Party members into the newspaper field. He

stated that he became a member of the Party’s unit

in 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. 1326-1327, 1259-1360) ; that Party

leaders induced. him to become a foreign correspond-

ent 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 em-

ployed by Transradio and the Columbia Broad-

casting System during World War II (id: at pp.

1328-1341, 1347-1353) ; and that employees of other

New York newspapers had been Party members

around 1940 (id. at pp. 1380-1383 ):

Hearings Before the Subcommittee To Investigate the Ad-

ministration of the, Internal Security Act and Other Internal

Security Laws of ‘the Committee on the Judiciary, United

States Senate [hereinafter Hearings ], Sach Cong., ist Sess.

Part 14, pp. 1393-1363.

3 :

The counsel of the Subcommittee testified at peti-

tioner’s trial concerning the reason petitioner was

subpoenaed to testify. At the time petitioner was

subpoenaed, the Subeommittee information that

petitioner, a newspaperman, had been a candidate

for vice president of the New York Newspaper Guild

in 1949 on the so-called “Rank and File” ticket, which

was known to be the Communist-supported slate (J.A.

50-51, 100-101); that ‘Communists had successfully

infiltrated the Guild (J.A. 53, 100-102) ; that a state-

ment in defense of the Communist Party appeared in

the Daily Worker in 1941 signed by a William Price

(J.A. 53); that petitioner had received numerous vis-

its from Marcella Hitschmannova, who was known

to be a Communist courier and to have served the

Communist movement in other capacities for years

(J.A. 52-53, 65, 96-97) ;* that these visits were con-

tinuing up until the time petitioner was called as a

witness (J.A. 65); that petitioner, after returning

from wartime naval service, had flown an airplane

on a trip to Central and South America, during which

, time he was accompanied by a courier for the Com-

munist Party (J.A. 54-55, 65). The Subcommittee,

however, had nb information that directly showed

- petitioner to be a member of the Communist Party

(J. A. 55). 5

On the basis of this information, the Subeommittee

decided to call petitioner as a witness in executive

The Subcommittee also had other information concerning

petitioner and Marcella Hitschmannova which could not be

described at the trial because of its highly confidential nature

(JA. 52, 54-55).

619366—¢1__2

—

session. Pursuant to subpoena, petitioner, accom-

_ panied by counsel, appeared and testified at execu-

tive session held in New Vork City on December 7,

1955 (J. A. 55). At the executive session, petitioner

answered several preliminary questions © his iden-

tity and background (J. A. 72-74), but refused to

answer questions by the Subcommittee concerning the

information described above (J.A. 76-79). Peti-

tioner refused to answer these questions on the basis

of a lengthy legal memorandum (Gov. Ex. 3; J.A.

25-34). This memorandum raised chiefly. the objec-

tion that the Subcommittee was invading “my polit-

ical beliefs, my religious beliefs, any other personal

and private affairs, and my associational activities“

protected by the First Amendment (J.A. 26), but also

invoked the doctrine of separation of powers and

the ex post facto and bill of attainder clauses of the

Constitution (J.A. 28, 29-34).

had given, the testimony apparently withheld, the

manner in which petitioner withheld it, his ‘‘constant

conferring with counsel about the questions which a

man who had no information would find no difficulty

in answering promptly, and his demeanor during

the questioning (J.A. 85-86). The Subcommittee

and its counsel were hopeful that petitioner, ‘‘if we

7 4 *

called him back and went at it right, would come

elean and give the committee the information that

we wanted,“ as had other witnesses on other occa-

sions (J.A. 90). The Subcommittee believed that it

“had information which if true made it clear that

Mr. Price had a great deal of införmation over and

above and beyond what we had, which would be of

value to the committee (J.A. 90-91).

The Subcommittee held public hearings in Washing-

ton, D.C., on January 4, 5, and 6, 1956. At the open-

ing of the hearings on January 4, the Chairman of the

Subcommittee announced that the hearings about to

commence stem from sessions of this subcommittee

held on June 28 and 29, 1955, in which we heard the

testimony of Mr, Winston Mansfield Burdett, a news-

paperman and broadeaster”’ (Gov. Ex. 8, p. 1587).

Burdett had, the Chairman continued, disclosed the

names of persons whom he knew as members of the i

Communist Party in the early 1940’s. The Chairman

concluded that the investigation was of great impor-

tance because (ibid.):

[A]mong the persons involved in this investiga-

tion have been many who were or are members

of the press, and that the international Com-

munist conspiracy has as one of its primary

aims the 5 > 2 3 5

Se Gall eae nt oe

side by methods of penetration. * * * The

Government Exhibit 8 is Part 17 of the Hearings.

nt t cha

| FS er

Following the opening statement, another member

of the Subcommittee, Senator Heunings, apparently

apprehensive that the public might misconstrue the

See ee (Ser. Ex.

+ 8, p. 1588):

TIhis is not in an sense an attack upon the

some of the U nited States.

Of course, the Committee is interested in the

extent and nature of so-called Communist infil

tration if such exists, into any news-dispensing

eee {T]his is not an attack upon any

as such, but an effort on the fa par of th om his come

mite to show such 3

C cae Foe eo the United States. es

— Yo infience or to myer the

_which the Chair certainly agrees, in its entirety

(ibia). The Chairman went on to say (ibid.): :

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

—

„

All had been or were then employed in mass commu-

nications. Petitioner, together with the same counsel

who had represented him at the executive session, ap-

peared before the Subcommittee on J anuary 3, 1956,

Petitioner testified concerning his employment as a

peg reporter and past service as a naval aviator

(JA. 17-18). He refused to answer whether he had

been a candidate for vice president on the “Rank and

File“ slate of the New York Newspaper Guild in 1949

(J.A. 18-19). This refusal, as well as petitioner’s

subsequent refusal to answer other questions, was

based upon the same legal memorandum which he had

submitted to the Subcommittee at the executive session

(J. A. 19).

Petitioner was then asked whether he was at that

time a member of the Communist Party (count 1)

(J.A. 23). After consultation with his counsel, peti-

tioner refused to answer the question on the basis of

the written memorandum which he relied on at. the

executive session, and further on the grounds that

no legislative purpose can be served. by asking me, at

this time again, questions, the answers to which this

committee knows full well from the executive hear-

ings” (J. A. 23). Petitioner likewise refused fo an-

swer whether he had “ever attended Communist

meetings” (count 2) (JA. 35) : N

e ee, stated in my objection

and on further Srounds’ that no legislative

ye) again, inasmuch as the reply has already been

* elicited by this committee in executive session.

For these same reasons, petitioner refused to answer

whether he knew Marcella Hitschmannova (count 3)

(JA. 36). The Subcommittee’s counsel then informed

petitioner of the Subcommittee’s interest in the sub-

_ ject of this question: Do you know, Mr. Price, that

one Marcella Hitschmannova, now connected with the

United Nations, was a courier. for the Communist

Party?” (J.A. 36). Petitioner persisted in his refu-

sal to answer (J. A. 37).

Petitioner declined to answer a question as to

whether he had ever flown an airplane for or at the

direction of the Communist Party. His refusal was

is previously stated grounds and for the

had answered such a question in the

had ever flown outside the continental limits of the

United States, he admitted that he had done so as a

pilot for the United States Navy (J.A. 39). Upon

being confronted with the transcript of the executive

session—where he initially answered this question in

the negative, and then, upon being informed of the

reason for the question, refused to answer—petitioner

_ contested the accuracy of the record (J.A. 40). After .

a colloquy at the public session between petitioner and

qualification that he had flown outside the continental

limits of the United States (J.A. 41).

Thereupon, petitioner was asked whether he had

ever flown “considerable mileage in Central America

and Latin America” (count 4). He refused to answer

“on the grounds previously stated” (J.A. 41). For the

same reason he refused to answer whether he had

- flown a privately own airplane in South America and

had another person along with him (count 5) (J.A.

41-42). Asked whether the person who accompanied

him on that trip was a courier for the Communist

International, petitioner at first noted that a similar

question had been asked him in the prior executive

session (J.A. 42). Upon being directed to answer,

petitioner responded by giving his answer in the nega-

tive (J.A. 42). Thereupon, the Subcommittee in-

quired (count 6) (J.A. 43):

For the sake of testing the credibility of your

answer to that question, I ask you this: Who

was the person who accompanied you on that

lengthy flight in Latin and Central America?

Petitioner stated that he would like to know what

right the committee has in testing my eredibility”’

(J.A. 43). Upon being directed to answer the ques-

tion, petitioner refused “on the same grounds as

previously stated (J. A. 43). He disclaimed any

claim of right or privilege, under the Fifth Amend-

ment (J.A. 43). |

As the public session was about to close, petitioner

made a lengthy statement in which he denied that he

had (J.A. 44):

ever been involved in .stieh an activity

as suggested here in any way whatsoever at

anpone's direction, at the direction of any of

the organizations as were mentioned in the

closed hearings, or ny such organizations;

that anyone who ever flew with me was ever

engaged in such an activity; that I ever had

knowledge of such activity; or that I was ever

approached to participate in such an acti-

The counsel for the Subcommittee then stated (J. A.

0. ae

I think, in view of this question, Mr. Chair-

man, this statement by the witness again, we

should have a question, or perhaps several

questions, going to the credibility of the state-

ment. - —

" Committee counsel then asked petitioner when he

had “made this lengthy trip to Latin and Central

America (count 7) (J.A. 44). Petitioner declined

to answer the question on the grounds stated in the

objection, and on the additional grounds that my

credibility as a witness is not at question here” (J.A.

44).

Petitioner thereafter 3 a series of further

questions related to his unsolieited statement, admit-

ting only that he had taken a trip to South America

in order to sell an aireraft and to do some free-lance

stories along the way (J. A. 45). He testified that

the airplane was his own and that he sold it to some-

one whose name he did not recall in Panama City

who he believed was a resident of Panama or a

United States resident of the Canal Zone. Petitioner

also testified that he contacted the buyer through an

advertisement in a Panama City newspaper, and that

he went to Panama to sell the airplane because he had

heard there was a good market for airplanes in Cen-

tral America (J.A. 45-47). Finally, petitioner was

asked. and refused to answer whether he had ever

been a member of the Communist Party (count 8)

(J.A. 47).

SUMMARY OF ARGUMENT

As we have shown in our brief in Liveright v.

United States, No. 11, this Term, pp. 19-28, Senate

_ Resolution 366, which established the Subcommittee,

is sufficiently clear, at least when taken together with

its history, to authorize the Subcommittee to investi-

gate Communist activities. There is no basis for

carving an exception out of this general authoriza-

tion for Communist activities in news media, which

was the subject under inquiry when petitioner testi-

fied. Subsequent to this investigation and other in-

vestigations into Communist activities in closely

related areas, the Senate passed resolutions authoriz-

ing the Subconunittee to continue its investigations

and providing appropriations for the purpose. Thus,

this issue is squarely controlled by Barenblatt v.

United States, 360 U.S. 109, 121, where this Court

held that, “[n]ot only is there no indication that the

House ever viewed the field of education as being

outside the Committee’s authority under Rule XI,

but the legislative history affirmatively evinces House

approval of this phase of the Committee’s work.“

Petitioner claims that, under the Legislative Re-

organization Act of 1946, the Subcommittee could not

properly hold the hearing at which he appeared, since

it had not received permission from the Senate to

619366—61— 3

_ hold a hearing while the Senate was fh session. We

have shown in our briefs in Shelton v. United States,

No. 9, this Term, pp. 25-29, and Liveright, supra,

pp. 28-32, that a witness before a Congressional com-

mittee who refuses to answer its questions is not en-

titled to raise objections to the committee's

procedures which he has not raised before the en-

mittee. We have also shown in our brief in Liveright,

pp. 32-33, that, in any event, this contention is with-

out merit.

III :

For the reasons stated in our brief in Shelton,

supra, this Term, pp. 48-50, the Subcommittee’s in-

vestigation did not violate the First Amendment.

Petitioner cannot excuse his refusal to answer by

the alleged lack of pertinency of the questions.

A. He made no objection before the Subcommittee

to the pertinency of any of the questions on which he

was indicted and convicted. Therefore, as shown in

our brief in Shelton, supra, pp. 25-29, he cannot claim

that the Subcommittee failed to apprise him of the

subject un@er inquiry or the pertinency of the ques-

tions to that subject. __

B. The government proved that the 5 under

inquiry when petitioner testified was Communist

activity in news media. The Chairman of the Sub-

cominittee and one of its members clearly stated, the

at before petitioner testified, that Communist activ-

e ity in news media was the purpose of the hearings;

all the witnesses who testified at the hearings worked

in this field; and petitioner’s counsel repeatedly said

at petitioner’s trial that this was the subject of the

hearings. The pertinęney to this investigation of

three ‘of the questions petitioner refused to answer—

whether petitioner, who was admittedly a newspaper

reporter, was or had ever ‘been a Communist or had

attended Communist meetings—was obvious. 3

Petitioner contends that the Subcommittee counsel

testified and the Assistant United States Attorney

stated at the trial that the subject under inquiry was

Communist activities generally. This subject, how-

ever, is perfectly consistent with the subject of Com-

munist activities in news media; the latter is merely

a portion of the broader subject. Moreover, if the

subject was Communist activities generally, this is a

proper subject within the the authority of the Sub-

committee (see our brief in Liveright, supra, pp.

42-44) and all eight questions were pertinent, either

on their face or as shown by the government’s eyi-

dence at the trial, to this subject.

* .

Petitioner claims that he was entitled to dismissal

of the indictment or at least a hearing because of

the bias of government employees who were on the

grand jury. We have shown in our brief in Shelton,

supra, pp. 62-76, that a defendant cannot challenge an

indictment because of the bias of grand jurors unless

he can show specific and convincing evidence of strong

bias in individual grand jurors. Here, as in Shelton,

petitioner made no allegations with resnect to indi-

vidual grand jurers and did not even state any spe-

—

Os:

7 4

. 16

cific facts of bias among goverment employees

generally.

Petitioner contends that indictment was re-

quired to specify the subj under inquiry and the

pertinency of the qvestions to those subjects, to allege

that petitioner’s refusal to answer as wilful, and to

state the dglegation of authority from the present

committee to the Subcommittee. We point out in

our brief in Shelton, supra, pp. 78-83, that under

Rule 7(c) of the Federal Rules of Criminal Procedure

and the decisions of this Court and the courts of

_ appeals; an indictment need not specify the subject

under inquiry. For the same reasons, it need not

provide the reasoning underlying | the allegation that

the questions were pertinent. We have shown in our

brief in Liveright, supra, pp. 50-51, that an indict-

ment need not allege that the witness’ refusal to

answer the questions was wilful if, as here, the indict-

ment alleges that the witness has “unlawfully’’ re-

fused to answer.

Petitioner’s contention that the indictment did not

state the delegation of authority from the present

Judiciary Committee to the Subcommittee was not

presented in the petition for a writ of certiorari and

tlerefore it is not before the Court. In any event,

no court has ever suggested that such an allegation is

Pe)

necessary under Rule 7(c) even though, insofar as 7

we know, no indictment under 2 U.S.C. 192 has made

such an allegation. . 2

VII .

Petitioner was 00 deprived of his right of cross-

examination by the trial court’s denial of his motion

to subpoena the Subcommittee’s files and its refusal

to allow him to ask certain questions on cross-exami-

nation of the Subeommittee counsel concerning the

information on the basis of which the Subcommittee

subpoenaed petitioner. The trial court allowed pe-

titioner the opportunity to cross-examine the Subeom-

mittee counsel on this subject extensively. It merely

refused to allow him to subpoena the files of the Sub-

committee and to secure from Subcommittee counsel

confidential information, i. e., the identity of the Sub-

committee's confidential informants, information

which would have provided considerable indication of

their identity, and information as to the manner in

which the Subcommittee secured confidential informa-

tion. As we show in our briefs in Shelton, supra, pp.

59-60, and Liveright, supra, pp. 51-57, a witness who

refuses to answer questions before a Congressional

committee is not entitled to disclosure of the files of

the committee, either directly or by cross-examination

of a government witness, beforé he can be punished

for contempt. .

VIII

( Petitioner claims that his rights under the Fourth

and Fifth Amendments were violated. He cannot

raise this contention, however, since it was not raised

before the Subcommittee, at his trial, in the court of

appeals, or even in his petition for certiorari. In

— ; ; 4

any event, the Fourth Amendment does not apply te

subpoenas to testify as opposed to subpoenas duces

tecum (see our brief in Shelton, supra, pp. 43-46).

Similarly, the due process clause of the Fifth Amend-

ment is not relevant. But even if the Fourth

Fitch Amendments do apply, they requi

First Amendment as construed in Barenblatt, supra,

FFC

able basis for believing that the witness has infor-

mation 6¢ value to the investigation (see our brief in

Shelton, pp. 46-48, 50-55). Here, the Subcommittee

had considerable information that petitioner, admit-

tedly a newspaperman, had been engaged i in Commu-

nist activities.

ARGUMENT

Petitioner was convicted of refusing to answer eight.

questions asked him by a Congressional committee con-

cerning the Communist Party—whether he was at that

time a member of the Communist Party (count 1);

whether he had ever attended Communist meetings

(count 2); ; whether he knew Marcella Hitschmannova

(count 3); whether he had flown considerable mile-

age in Latin America (count 4) ; whether he, along with

another person, had flown a privately-owned plane

in South America (count 5) ; who had accompanied him

on a lengthy flight i in Latin America (count 6); when

he had made the lengthy trip to Latin America (count

1); and whether he had ever been a member of the Com-

munist Party (count 8). Since this Court has upheld

the constitutional validity of the questions involved in

counts 1 and 8 (Barenblatt v. United States, 360 U.S.

109, 114-115, 128 at note 25), and since their perti-

—

19 —

nency is particularly clear (id. at 125), we will stress

these two questions. Petitioner was given a general

sentence and a fine on all eight counts which was less

than the maximum authorized by 2 U.S.C. 192 under

any one count; therefore, the judgment below must be

affirmed if any one of the counts is valid. E. g.,

Barenblatt v. United States, 360 U.S. at 115 In

addition, we submit that petitioner was properly

convicted on all eight counts.

“= 1

THE RESOLUTIONS ESTABLISHING AND CONTINUING THE

SENATE SUBCOMMITTEE ON INTERNAL SECURITY AU-

THORIZED THE SUBCOM MITTEE TO INVESTIGATE COM-

MUNIST ACTIVITIES IN THE UNITED STATES

Petitioner claims (Pet. Br. 34-36) that the reso-

lution authorizing the Internal Security Subeom-

— mittee is “unconstitutionally vague.“ As we show

in our brief in Liveright v. United States, No. 11,

this Term, pp. 19-28, however, this, Subeommittee has

been authorized to investigate Communist activities.

S. Res. 366, 81st Cong., 2d Sess.; S. Res. 58, 84th

Cong., Ist Sess. Therefore, the Subcommittee was —

authorized to question petitioner concerning the sub.

ject under inquiry when petitioner, testified—+.c.,

Communist infiltration of news mesh (se infra,

pp. 26-27). (

Petitioner suggests (Pet. Br. 36) that, whatever

scope Senate Resolution 366 may have, it does not au-

thorize an investigation of Communist activities in news

media. A similar contention was raised in Barenblatt

that Rule XI relating to the House Un-American Ac-

tivities Committee did not include Communist activities

in eld of education. This contention, however, was

: <—

rejected ause the Court found that, In ot only is

there no i tion that the House ever viewed the field

of education as being outside the Committee’s authority

under Rule XI, but the legislative history affirma-

tively evinces House approval of phase of the

Committee’s work (360 U.S. at 121). The Court

then noted that the Committee had conducted pre-

vious investigations in education,

There are at least as strong reasons for not carv-

ing an exception for Communist, activities in news

media out of the Subcommittee¥ pervasive authority

to investigate Communist activities. First, the news

media are no more within the protection of the First

Amendment than is college education. Indeed, the

concurring opinion in Sweezy v. New Hampshire, 354

U.S. 234, 261-263, indicated that college education is

perhaps a particularly sensitive area. Thus, there is

no, constitutional reason why the language and history

of Senate Resolution 366, giving authority to the

Subcommittce to investigate Communist activity gen-

erally, should not be applied to include what is logi-

cally a portion of this general subject, Communist

activities in the news media.

Second, as in Barenblatt, the legislative history of

Senate Resolution 366 and its successors shows that

the Senate approved this phase of the Subcommit-

tee’s work. The Subcommittee had earlier conducted

investigations of Communist activities in areas closely

related to the subject of investigation here—Com-

munist activities in the fields of radio and television,

in the field of education, and in propaganda (see our

brief in Liveright, pp. 26-27, note 6). After the

investigation involved here, the Subcommittee in 1955

conducted hearings entitled “Communist Activity in

Mass Communications,” which inquired into “the

question, among others, of whether Communists are

active under cover of accreditation of the United Na-

tions as correspondents and otherwise.” Hearings,

Subeommittee to Investigate the Administration tof

the Internal Security Act and other Internal Secu-

rity Laws of the Committee on the Judiciary, United

States Senate, Communist Activity in Mass Commu- _

nications, 85th Cong: 2d Sess., p. 1. And, of course,

the Subcommittee heard the testimony of Winston

Burdett (see supra, p. 4) and conducted the hear-

ings involved in this case, both of which involved Com-

munist activities in the communications field.

Subsequent to, and with full knowledge of, all these

investigations, the Senate has passed resolutions au-

thorizing the Subcommittee to continue its investiga-

tions and providing appropriations fer this purpose

(see our brief in Liveright, supra, pp. 27-28). In-

deed, in 1956 (shortly after the hearing involved

here), the Senate extended the life of the Subcommit-

tee with the same jurisdiction and appropriated a

large sum (S. Res. 174, 84th Cong., 2d Sess.) on the

basis of the Subcommitfte’s 1955 Report. See S.

Rept. 1385, 84th Cong., 2d Sess. That report de-

scribed Winston Burdett’s testimony concerning

Communist infiltration of the press and ated that

“subsequent hearings confirmed his testimony and pro-

vided new information on such infiltration into vari-

ous New York newspapers (id. at p. 4). The report

then said It Ihe subcommittee’s investigation, which

was set in motion by Mr. Burdett’s revelations, had

not been completed at the end of 1955 (ibid.).

. PETITIONER CANNOT CLAIM FOR THE FIRST TIME AT HIS

TRIAL THAT UNDER THE LEGISLATIVE REORGANIZATION

40 OF 1946 EZ COULD NOT PROPERLY

HOLD THE AT WHICH HE APPEARED. EVEN IF

‘PETITIONER © MAKE THIS CONTENTION, SENATE

Petitioner asserts (Pet. Br. 43-44) that the Sub-

committee when he appeared before it was not a

competent tribunal because the Legislative Reorgan-

ization Act of 1946 (see Pet. Br. 46) provides that

“[nJo standing committee of the Senate * shall

sit, without special leave, while the Senate * * * is

in session.“ This contention is without merit.

A. First, as we have shown in our briefs in Shelton

v. United States, No. 9, this Term, pp. 25-29, and

Liveright v. United States, supra, pp. 29-32, a wit-

ness before 2 Congressional committee is not entitled

to raise objections to the procedures followed by the

committee at his trial for eontempt which he has not

raised before the committee itself. See United States

v. Bryan, 339 U.S. 323, 330-335; Emspak v. United

States, 203 F. 2d 54, 56 (C. A. D. C.), reversed on other

grounds, 349 U.S. 190. Here, petitioner’s refusal to

answer the questions asked by the Subcommittee was

based on precisely the same statement of legal argu-

ment and authorities relied on by the petitioner in

Tiveright. In neither case did the witness even sug-

—

— 23 ”

gest any objection to the authority of the Subeom-

mi tee (see supra, p. 6).*

B. In any event, we have shown in our brief in

Liveright, supra, pp. 32-33, that petitioner’s conten-

tion under the Legislative Reorganization Act of

1946—that the Subcommittee could not hold the

hearing while the Senate was in session—is without

merit.

THE SUBCOMMITTEE’S INVESTIGATION DID NOT VIOLATE

THE FIRST AMENDMENT

Petitioner claims (Pet. Br. 37-43) that the Sub-

committee’s investigation violated his rights under the

First Amendment. As we have demonstrated, how-

ever, in our brief in Shelton, supra, pp. 48-50, which

involved the same investigation and hearings, pe-

titioner’s contention is without merit. Here, as in

Shelton, the Subcommittee was investigating Com-

munist infiltration of news media, not the news media

themselves (see infra, pp. 26-27). All the questions

asked petitioner plainly related to Communist

activities.“ a

If petitioner had objected when he appeared before the

Subcommittee, the Subcommittee could have easily met his

objections by simply holding the hearing when the Senate

was not in session.

* Petitioner contends (Pet. Br. 40) that the 88

could have had no valid legislative purpose when it subpoe-

naed him since it could not constitutionally pass legislation

barring Communists from being newspapermen or regulating

the conient of newspapers. Even if such legislation would be

unconstitutional, however, petitioner’s two suggested statutes

are clearly not the only legislation which can result from an

investigation of Communist activity in news media either

alone or particularly when combined with investigations of

Communist activity in other fields.

53 Iv 39

PETITIONER, HAVING -FAILED TO CHALLENGE THE PERTI-

NENCY OF THE QUESTIONS BEFORE THE SUBCOM MITTEE,

CANNOT. CLAIM AT HIS TRIAL THAT HE WAS Nor gv

FICIENTLY APPRISED OF THE SUBJECT UNDER INQUIRY

AND THE PERTINENCY OF THE QUESTIONS. THE QUES-

TIONS PETITIONER REFUSED TO ANSWER WERE PERTI-

NENT TO THE SUBJECT UNDER INQUIRY

Petitioner contends (Pet. Br. 22-27) that (1) the

Subcommittee failed to apprise him when he appeared

before it of the subject under inquiry and the perti-

nency of the questions he refused to answer to this

subject; and (2) the government failed to prove at his

trial what the subject under inquiry was and the per-

tinency of the questions he refused to answer to this

subject. ?

4. PETITIONER FAILED TO CHALLENGE THE PERTINENCY OF THE

QUESTIONS ON WHICH HE WAS CONVICTED BEFORE THE son-

OCOMMITTER AND THEREFORE CANNOT CLAIM AT HIS TRIAL THAT

HE WAS NOT APPRISED OF THEIR PERTINENCY

In our brief i in Shelton, supra, pp. 25-29, we show

that a witness before a Congressional committee can-

not claim that the committee has failed to apprise.

him of the / subject under inquiry and the pertinency

of the questions asked him to this subject unless he

raises the issue of pertinency before the committee

itself. Barenblatt v. United States, supra, 360 U.S.

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

469. He cannot wait. until trial to raise an objection |

which the committee could easily remedy. 4

Petitioner failed to object before the Subcommittee

on grounds of pertinency to the questions on which he

was indicted and convicted. Earlier, in refusing to

answer a question on which he was not indicted, he

25 *

inquired of the Subcommittee why this question is

put“ (J. A. 18). We doubt, however, that this ob-

jection raises the issue of pertinency with the clarity

required by the Barenblatt and Deutch decisions (see

our brief in Shelton, supra, pp. 28-29). Moreover,

this objection was not repeated or even suggested

when petitioner refused to answer the questions which

are involved here. Instead, he relied entirely on his

lengthy legal memorandum (Gov. Ex. 3; J. A. 25-

34)—which raised only constitutional objections based

on the First Amendment, separation of powers, and

the ex post facto and bill of attainder clauses—and

in addition on his oral claim that the Subcommittee

had no valid legislative purpose (J. A. 23, 35, 36, 38).

The only suggestion of an objection to pertinency mm

du rand is the statement in petitioner’s

memorandum that petitioner “might wish to * * *

challenge the pertinency of the question to the inves-

tigation“ (J.A. 33). Considering the very same

statement in a substantially similar legal memoran-

dum, this Court held in Barenblatt that the issue of

pertinency is not properly raised by statements of a

witness which “constituted but a contemplated objec-

tion to questions still unasked, and buried as they

were in the context of [the witness’] general chal-

lenge to the power of the Subcommittee * * (360

U.S. at 124). Therefore, here, as in Barenblatt, the

witness failed “to trigger what would have been the

Subcommittee’s reciprocal obligation’’ to explain the

pertineney of the questions, and the witness is fore-

Ses the record in Barenblatt v. United States, No. 35, Oct.

Term, 1958, pp. 227-235.

closed from raising the issue for the first time in the

contempt proceeding.

B. THE QUESTIONS PETITIONER REFUSED TO ANSWER WERE IN FACT

PERTINENT

We submit that the government sufficiently proved

at the trial that the subject under inquiry when peti-

tioner testified was Communist activity in news media

by introducing the transcript. of the hearings on

January 4, 5, and 6, 1956 (Gov. Ex. 8). At the be-

ginning of the hearings on January 4, the Chairman

of the Subcommittee indicated that the purpose

of the hearings was to investigate this subject (see

supra, pp. 7-8). Senator Hennings, another mem-

ber of the Subcommittee, reiterated that the Com-

mittee is interested in the extent and nature of

so-called Communist infiltration if such exists, into

any news-dispensing agency’’ and the investigation

was 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 3

to subvert the American press (see supra, p. 3).

Again, on January 6, the day after petitioner testi-

fied, the Chairman stated that the hearings were di-

rected to investigating infiltration of persons

identified as Communists into news agencies (Gov.

Ex. 8, p. 1717). And Senator Hennings said (id. at

p. 1718):

I think that no one will quarrel with nor

take issue with the fact that this committee

has the right to inquire into all efforts, or

indeed, all consummations of efforts of the

—— em,

Communist Party to infiltrate newspapers or

other media of communication.

All eighteen witnesses who testified at the hear-

ings on January 4, 5, and 6, 1956, worked in the news

media field.

In addition, the Subcommittee counsel testified at

petitioner’s trial that the information the Subcom-

mittee possessed which caused petitioner to be sub-

poenaed included information that petitioner was a

newspaperman and that he had participated in sev-

eral Communist activities. These activities included

running on the Communist-supported Rank, and

File“ slate for vice-president of the New York News-

paper Guild, which had been infiltrated by Commu-

nists (see supra, p. 5). The first question which -

petitioner refused to answer (although he was not

indicted for this refusal) concerned whether he had

been a candidate for vice-president of the Guild on

the “Rank and File” slate (see supra, p. 9). When

petitioner asked why this question is put,“ the Sub-

committee counsel answered: ‘‘The question is put

to qualify you as a person of whom we can ask

questions with respect to the persons who were on

that slate and the manner in which that slate was

supported (J. A. 18).

At petitioner’s trial, his counssi acknowledged, al-

though he used varying descriptive terms, that the

subject under inquiry which the government had

proved was Communist infiltration of the press.

Thus, he said that the subject was the press (Tr.

245, 246, 259); *Communiste E infiltrate

mass communication media in the United States

N *

; 28

(Tr. 259); and “the newspapers and Communism in

the newspaper field” (Tr. 289). Indeed, counsel stated

that it is “crystal-clear that what this subcommittee

was interested in was to determine whether there

were Communists working in the press (Tr. 340).

It was on the basis of these facts that the defense

argued that the questioning of petitioner violated

freedom of the press guaranteed by the First Amend-

ment (Tr. 245-266) and that Congress was not act-

ing pursuant to a legislative purpose because it .can-

not “legislate concerning the content of the =.

(Tr. 245-266, 440-342).

The first two questions and the last question on

which petitioner was convicted were pertinent on

their face to the subject of. Communist activities in

news media. These questions were whether petitioner,

who was admittedly a newspaper reporter (J.A. 17),

was at that time a member of the Communist Party

(count 1); whether he had ever attended Communist

meetings (count 2); and whether he had ever been

*a member of the Communist Party (count 8). As

Court said in Barenblatt, supra, where a Con-

ional committee was investigating Communist

infiltration of education: ‘‘petitioner refused to

answer questions as to his own Communist Pasty

affiliati “whose pertinency was of course r

bey: oubt. 360 U.S. at 125.“ As we have noted

(see pp: 18-19), if these questions alone were perti-

The other questions on which petitioner was convicted

clearly related to Communist activities (see supra, pp. 5, 10-

12). The record, however, does not show that they related to

Communist activities in news media.

Be: 5

nent, petitioner’s conviction must be upheld since he

was given a general sentence on all counts.

Petitioner, however, emphasizes (Pet. Br. 25) that

the Subcommittee counsel ‘expressly disclaimed that

‘Communist infiltration into the field of communica-

tions’ was the subject of hearings. This statement,

which was made to another witness (Gov. Ex. 8,

p. 1616), cannot overcome the clear’ statements—

made both before and after counsel’s brief remark—

by both the Chairman of the Subcommittee and Sena-

tor Hennings that Communist infiltration of news

media was the subject under inquiry. 2

Petitioner also contends (Pet. Br. 25-26) that the

Subeommittee counsel stated at the hearings (also

to another witness) (Gov. Ex. 8, p. 1652) and.

the Assistant United States Attorney argued at

petitioner’s trial (J. A. 130-133) that the purpose of

the investigation was to investigate Communist ac-

tivities generally. As we have shown in our brief

in Shelton, supra, p. 36, the subject of Communist

activities in news media is merely a portion of the

broader subject of Communist activities generally.

Thus, when the Subcommittee counsel and the As-

sistant United States Attorney stated that the Sub-

committee was investigating Communist activities

generally, this did not preclude proof that it was

simultaneously investigating Communist activities in

news media.“ Moreover, if there wus an inconsistency

The other statements made by the Subcommittee counsel

at petitioner's trial, on which petitioner relies (Pet. Br. 24),

similarly do not help his position. They say merely that

(1) the Subcommittee was investigating “several allied fields”

of Communist activity (J.A. 54) (which is consistent with

* *

between the ambiguous testimony at the trial by the

Subcommittee counsel and the clear statements at the

hearings by the Chairman and another member of the,

Subcommittee, the latter evidence is clearly con-

trolling. And if there is any inconsistency between

the ambiguous statements of the Assistant Urfited

States Attorney at petitioner’s trial and the clear

statements of the Subcommittee members at the hear-

ings, certainly it is the evidence introduced by the

government, not the government’s characterization of

this evidence, which is controlling. pipes

Furthermore, even if petitioner were correct and

the subject under inquiry was Communist activities in

the United States generally, the government proved

the pertinency of all eight questions on which peti-

tioner was conyicted. All eight, either on their face

or as shown by the explanations to petitioner at

the hearing and the testimony of the Subcommittee

counsel at petitioner’s trial (see supra, pp. 5, 10-12),

were directly related to Communist activities. And as

we indicate in our brief in Liveright, supra, pp. 42-44,

this Court has never required that a Congressional

committee investigate only one narrowly defined sub-

ject at a given time. It is enough that the com-

mittee have a subject under inquiry and that the

the subject stated by the Subcommittee of Communist ac-

tivity in news media); (2) that “strategy and tactics of

World Communism” is the general subject which the Sub-

committee had been investigating and it was affixed as an

editorial title to the transcript of these and other hearings

(JA. 61-62) (a subject of which Communist activity in news

‘media is a part); and (3) that the authority of the Subcom-

mittee includes any organization, including the Communist

Party, attempting to overthrow the government of the United

States by force (d. A. 84-85).

31 +

questions which a witness is asked W pertinent to

this subject.

PETITIONER WAS NOT ENTITLED TO DISMISSAL OF THE IN-

DICTMENT OR A HEARING, ON THE BASIS OF BROAD

ALLEGATIONS THAT GOVERN MENT EMPLOYEES GENERALLY ~

Petitioner contends (Pet. Br. 44-45) that the indict-

ment should have been dismissed because the grand

jury included government employees who were biased

against him because ef the government’s loyalty and

security programs. Alternatively, petitioner argues

that he was entitled to a hearing in the district court

to allow him to prove bias: As we have shown, how-

ayer, in our brjef in Shelton v. United States, supra,

pp. 62-64, a defendant is not entitled to dismissal of

the indictment merely because government employees

were on the grand jury. We have also argued in our

brief in Shelton (pp. 64-76) that a defendant is en-

titled to a hearing to inquire into the activities and

beliefs of grand jurors—even if we assume, contrary

to the holdings of numerous cases, that a defendant is

sometimes entitled to such a hearing—only when he

alleges specific and convincing evidence of strong bias

in individual grand jurors. Here, however, as in Shel-

ton (see our brief in Shelton, pp. 76-78), petitioner’s

Motion to Dismiss the Indictment (J.A. 3-7) and

accompanying affidavit (which is virtually identical

with that in Shelton; see the record in No. 9, this

Term, pp. 4-8) ' did not allege bias or fear with re-

»The affidavit is identical-with that submitted to the trial

court by the petitioner in Liveright v. United States, supra.

gard to any individual grand juror and did not even

state any specific evidence of fear or intimidation

among government employees generally resulting

from the security program which petitioner would

show if a hearing were granted. In these circum-

stances, the trial court properly refused to grant

petitioner a hearing to conduct a general exploration

of the motives and beliefs of the grand jurors.

THE INDICTMENT WAS NOT REQUIRED TO SPECIFY THE SUB-

JECT UNDER INQUIRY OR THE PERTINENCY OF THE QUES-

TIONS TO THIS SUBJECT, OR TO ALLEGE THAT PETITION-

ER’s REFUSAL TO ANSWER WAS WILFUL, OR TO STATE THE

DELEGATION OF AUTHORITY FROM THE PARENT’ COMMIT-

TEE TO THE SUBCOMMITTEE

The indictment upon which petitioner was convicted

alleged that the questions petitioner refused to an-

swer ‘‘were pertinent to the question then under in-

‘ quiry” and that “the defendant unlawfully refused_

to answer those pe nt questions (J.A.1)>~ Peti- —

tioner claims (Pet. Br. 15-20) that the indictment was

invalid because it failed (1) to specify the subject

under inquiry when petitioner testified, (2) to specify

the pertinency of the questions he refused to answer to

this subject, (3) to allege that his refusal to answer

was wilful ; and (4) to state the delegation of authority

from the parent Judiciary Committee to the Subcom-

As we have shoWn-in our brief in Shelton v. United

States, supra, pp. 78-83, petitioner’s contention that

the indictment was required to state the specific sub-

» Jeet under inquiry is inconsistent with Rule 7(e) of

33 —

the Federal Rules of Criminal Procedure and with

decisions both of this Court and the courts of appeals.

For the same reasons, an indictment which states that

the questions are pertinent to the subject under in-

quiry need not provide the specific reasoning under-

lying this allegation of pertineney. As to petitioner’ ~

contention that the indictment was required to state

that his refusal to answer was wilful, we have shown

in our brief in Liveright v. United States, supra

pp. 50-51, that it is sufficient if, as here, the indiet-

ment alleges that the witness has “unlawfully. N

fused to answer.

Petitioner also contends that the indictment was

invalid because it did not state that the Judiciary

Committee had authorized the Subcommittee to act

and did not give the basis of this authority. Peti-

tioner, however, did not raise this issue in his petition

for a.writ of certiorari (see Pet. 3, 13). Therefore,

under Rule 40(1)(d) (2) of the Rules of this Court,

the issue is not properly before the Court unless per-

haps it constitutes “plain error.“ We submit that

not only is there no plain error, but that ti indict-

ment was plainly valid.

The indietment alleged that the hearings were being

conducted by “a Subcommittee of the Judici. iry Com-

mittee “Pursuant to * * * Senate Resolution 306 of

the 81 Congress and 58 of the Sith Congress“

(J.A. 1), which authorize the Judiciary Committee

or one of its subcommittees to investigate Communist

activities (see our brief in Liveright supra, pp. 19-

28). Thus, the indictment clearly implies that the

Judiciary Committee authorized the Subcommittee

to investigate Communist activities.

Certainly, it is not necessary under Rule 7) of

the Federal Rules of Criminal Procedure—which

states that the indictment “shall be a plain, concise

and definite written statement of the essemtial facts

constituting the offense charged’’—to allege the spe-

eifie resolution of the parent committee authorising

the subcommittee’: investigation. We know of no

indictment under 2 U.8.C. 192 which makes such an

allegation and yet, as far as we or petitioner have

been able to ascertain, no court has dismissed an

indictment on this ground. The only case cited by

petitioner (Pet. Br. 19-20), United States v. Lamont,

236 F. 2d 312, 315-336 (C.A. 2), holds merely that

the indictment must state the authority of the parent

" Fetitioner sleo claims (Pet. Br. 15-16) thet the indict-

ment was defective in that “it merely stated the offense in the

generic term of the statute *

‘

—

poena the Subcommittee’s file and its refusal to allow

him to cross-examine the Subcommittee counsel con-

cerning the information on which the Subcommittee

subpoenaed petitioner.

Petitioner's motion to subpoena the records of the

Subcommittee (J.A. 8-10) asked, inter alia, for the

production of all written information in the files of

the Judiciary Committee or the Subcommittee (in-

cluding confidential material) related to petitioner

and Marcella Hitschmannova. The trial court

granted the government’s motion te quash (J.A. 49).

In addition, during his cross-examination of the Sub-

committee counsel, petitioner’s counsel asked for the

witness to produce’ materials he had concerning an

airplane ffight by petitioner outside the United

States, on which, according to the information of the

Subcommittee, he was accompanied by a Communist

Party courier (J.A. 97; see J.A. 54-55). This request

was denied on the ground it sought the disclosure

of confidential information .(J.A. 97). In addition,

petitioner’s counsel renewed his motion, which was

again denied, for all material in the Subeommittee s

files relating to Marcella Hitschmannova (J.A. 97).

Petitioner sought, through these motions, to obtain

evidence showing the absence of probable cause to

subpoena petitioner and the lack of any legislative

purpose in the hearings (J.A. 48).

The Subcommittee counsel testified on direct exam-

ination concerning the information possessed by

the Subcommittee which was the basis for subpoena-

ing petitioner (J.A. 51-55, 65). Petitioner's counsel

cross-examined him extensively on this subject (J. A.

83-104). He received answers stating that the infor-

mation received by the Subcommittee relating to Mar-

cella Hitschmannova was both oral and written; that

the oral information was received shortly before the

executive session ; that the Subcommittee had received

othéF oral information concerning Miss Hitschman-

nove over a year previously ; that the earlier informa-

tion came to someone else on the Subcommittee and

the later information to himself, the Subcommittee

counsel; that written information concerning Miss

Hitechmannova came to the Subcommittee more than

a year before the executive session; that the written

information had no signature; that the letter giving

Whelton (the petitioner in No. 9, this Term) did not

provide information as to petitioner here; that he

(tae Subsommittee counsel) knew the source of the

written material; ; that the information stated thut Miss

Hitschmannova had been a courier for the Communist

Furty in Europe; that the Subcommittee had oral

information concerning the contacts between her and

petitioner ; that this information was given to the

Subcommittee counsel directly ; that Miss Hitschman-

nova visited repeatedly the place where petitioner

lived; that she had been connected with the United

Nations; that petitioner had flown to Latin America

and had been accompanied by a Communist courier;

that this information was written; that the Subcom-

mittee had files showing that petitioner had run on

the Rank and File ticket for vice-president of the

New York Newspaper Guild; that there were public

allegations at the time of the election that the ticket

was supported by the Communist Party; and that he

(the Subcommittee counsel) did not know whether

petitioner was the William Price who had signed a

statement in 1941 in the Daily Worker defending the

Communist Party: The Subcommittee counsed re-

fused to answer only ten questions, all of which con-

cerned, the precise identity of the Subcommittee’s

confidential informants, information which would

have provided considerable indication of their iden-

tity, and information as to the manner in which the

Subcommittee secured confidential information (J A.

93-95, 98, 99, 100, 102). Thus, the only -questions

which the court allowed the Subcommittee counsel

not to answer would have disclosed confidential

The issue here, as in Shelton, supra, and Liveright,

supra, is whether a witness who refuses to answer

questions asked by a Congressional committee is en-

titled to the disclosure of the files of the committee,

either directly or by croés-examination of a govern-

ment witness, before he can be punished for contempt. —

As in those cases (see our briefs in No. 9, pp. 59-60,

and in No. 11, pp. 51-57), we submit that a witness

is not entitled to this disclosure merely in the hope

chat these files will impeach the witness’ testimony on

an issue which-is riot even an element of the offense.

In short, while this Court indicated in Barenblatt, 360

U.S. at 134, and Wilkinson v. United States, 365 U.S.

399, at 412, that a Congressional committee must pre-

sent information showing that it had a reasonable

basis for subpoenaing the witness, those cases did not

require that the information or reasons which caused

the Gpmmittee to subpoena the witness be subject to

plenary judicial review.

VIII

PETITIONER CANNOT CLAIM FOR THE FIRST TIME IN HIS

BRIEF THE MERITS IN THIS COURT THAT, SUB-

COMMITTEE VIOLATED HIS RIGHTS UNDER FOURTH

AND FIFTH AMENDMENTS SINCE IT DID NOF HAVE PROB-

ABLE CAUSE TO SUBPOENA HIM. IN ANY EVENT, PETI-

TIONER’S RIGHTS WERE NOT VIOLATED

Petitioner claims (Pet. Br. 20-21) that his rights

under the Fourth and Fifth Amendments were vio-

lated because the Subcommittee did not have probable

cause to believe that he had information pertinent

to its inquiry. Petitioner, however, never raised this

contention prior to filing his brief on the merits in

this Court. As we have shown in our brief in Shelton,

supra, pp. 41-43, his failure to raise this issue before

the “Subcommittee “ prevented him from raising it

when he was tried for contempt. He again waived

any contention he might have made—unless the error

was “obvious’’—by failing to raise the issue in the

district court or thé court of appeals. E.., United

States v. Atkinson, 297 U.S. 157, 159-160; United

. States v. Socony Vacuum Oil Co., 310 U.S. 150, 239;

Johnson v. United States, 318 U.S. 189, 200. And

in this Court. Under Rule 40(1)

AL (d) (2) of the Rules of this Court he cannot raise the

& e in his brief on he merits unless there was “plain

7 error.” E. g., Kessler q. Strecker, 307 U.S. 22, 34.

i e submit that petitioner’s contention, far from

showing that his convietion was plainly erroneous, is

u See supra, pp. 6, 9, for the grounds on which petitioner

relied.

without merit. As we show in our brief in Sheiton,

supra, pp. 43-46, the Fourth Amendment does not

apply to subpoenas to testify as contrasted to sub-

poenas duces tecum. We further show (pp. 46-48)

that, even if the Fourth Amendment does apply, this

Court has held in Oklahoma Press Publishing Co. v.

Walling, 327 U.S. 186, that its restrictions on admin-

istrative subpoenas (with regard to subpoenas duces

tecum) are not nearly so strict as with regard to

arrests and searches and sejzures. The only require-

ments are that “the investigation is authorized by

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

documents sought are relevant to the inquiry” (id. at

209). If the Fourth Amendment applies at all, we

submit that this standard is applicable to subpoenas

to testify as well as subpoenas duces tecum, and to

Congressional committees as well as executive agencies.

Even if the Fourth Amendment does not apply to

' subpoenas to testify, this Court has indicated in Bar-

enblatt v. United States, 360 U.S. 109, 134, Braden v.

United States, 365 U.S. 431, 433-435, and Wilkinson

v. United States, 365 U.S. 399, 412-413, that a Con-

gressional committee investigating Communist activi-

ties cannot, consistent with the First Amendment, sub-

poena a witness “as the result of an indiscriminate

dragnet procedure, lacking in probable cause for be-

lief that [the wi J. possessed information which

might be helpful to the subcommittee” (365 U.S. at

412). As we contend in our brief,in Shelton, pp. 50-

55, those cases clearly do not appli the standard of

probable cause for. arrests or searches and seizures.

Rather, they apply essentially the same standard as

was laid down for subpoenas duces tecum in the Okla-

homa Press case. |

Applying the above standards to the facts here,

the Committee clearly had reasonable grounds to be-

lieve that petitioner “possessed information which

might be helpful to the committee’’ and that was “rel-

evant to the inquiry. The Subcommittee counsel

testified in considerable detail concerning informa-

tion possessed by the Subcommittee as to Communist

activities in which petitioner engaged (see supra, p.

5). Thus, the Subcommittee had information that

petitioner, admittedly a newspaperman, had run as a

candidate for vice-president of the New York News-

paper Guild, which had been infiltrated by Com-

munists, on the Communist-supported ticket; that

petitioner had received numerous visits up until the

time of the hearing from Marcella Hitschmannova,

who was believed to be a Communist courier and

otherwise active in the Communist movement for

years; and that petitioner had flown an airplane to

Latin America accompanied by a courier for the

mittee had no direct information that petitioner was

a member of the Communist Party, it had basis for

Communist activities in the United States and, more

specifically, coneerning the subject under inquiry

when petitioner testified, i. e., Communist activities in

news media.

As to petitioner’s claim under the Fifth Amend-

ment, he expressly did not claim that his answers

would incriminate him (J.A. 21). Apparently, peti-

tioner is relying on the due process elause. But he

cites no authority for the proposition that this clause

limits the power of Congressional committees to issue

subpoenas to testify. In any event, it certainly pro-

vides no stricter a standard than that provided by the

Fourth Amendment (if it applies) and by the First

Amendment—that is, whether the committee has rea-

sonable basis for believing that the witness has infor-

mation of value in its investigation. And, as we have

‘seen, the Subcommittee had such information here.

For the foregoing reasons, we respectfully submit

that the judgment of the court of appeals should be

affirmed.

ARCHIBALD Cox,

Solicitor General.

J. WALTER Yeaiey®

Assistant Attorney General.

Bruce J. TRS,

Assistant to the Solicitor General.

Kevin T. Maroney,

LEE B. ANDERSON,

Attorneys.

NoOvEMBER 1961.

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