Brief for the United States — United States v. Brown (No. 128)

INDEX

% cv aviiviakintpchabebiebvnatevacnne sacha

PE acbapdecdedipvbcerudehatcdcsndpacdap<eil

Questions presented. __...__....._..-.-.---- 1

Statute and rules involve

SNR —— ³ A 2

— «mh ccc iszeccccecistsve

—

Er

legislative purposss

A. The Committee's investigations of Com-

munist activities have been for a valid

legislative purpose

B. The record shows that this particular in-

vestigation had a valid legislative pur-

ͤU— U— .:. ln 33 2

D. The trial court properly excluded the

newspaper stories which petitioner of-

fered to prove that the Committee had

II. The Committee’s investigation did 3 the

r 05 en cscecacsn-x. +3

III. Petitioner, having failed to challenge the per-

5 tinency of the questions before the Committee,

cannot claim for the first time at his trial that

he was not apprised of their pertinency.. In

any event, 3 was apprised of their per-

GS ͤ TTT

A. The issue of pertinency was not 3

raised before th Dmmi tte

B. Petitioner was apprised of the pertineney

of the questions_-_-__..-......------

«)

620763— 61— —1

i

* NNN =

28

30

32

36

IV. Petitioner was not entitled to dismissal of the in-

dictment or a hearing on the basis of broad al-

legations that government employees generally

V. The indictment was not required to specify the

subject under inquiry or to allege that peti-

tioner’s refusal to answer was wilful. 43

Conclusion !: (8 44

.... ͤ SE OF NESE PPE Ga DP OED Sere eee 45

. CITATIONS

Cases: :

Barenblat v. United States, 360 U.S. 109 3 14,

4 16, 17, 19, 21, 27, 28, 32, 34, 35, 39

S —ꝛ.. i scck 14, 20

Cummings v. Missouri, 4 Wall. 277 ꝰ 7 28

Deutch v. United States, 367 U.S. 4506. 34, 41

De Veau v. Braisted, 363 U.S. 144. 30

Garland, Ex parte, 4 Wall. 333. 28

Flemming v. Nestor, 363 U.S. 6033. 3 16, 29

Garner v. Los Angeles Board, 341 U.S. 716 28

Liveright v. United States, No. 11, this Term 42, 43

Price v. United States, No. 12, this Term 42

Russell v. United States, No. 8, this Term 42, 43

Shelton v. United States, No. 9, this Term 16,

17, 18, 32, 34, 42, 43

Trop v. —. ß ³˙ 29

United States v. Lovett, 328 U.S. 30333. 28

Watkins v. United States, 354 U.S. 1788.

20, 21, 27, 28, 5 7

ne bree, No. 10, this Term 7

WwW v United States, 365 U.S. 399 14, 20, 22, 32

Constitution and statute:

U.S. Constitution:

/// 7

First Amendment 2, 7, 8, 9, 10, 16, 32, 35

Fifth Amendment *

%%%%%ẽ sscncbedcsscnseuse 2, 30

Miscellaneous a

Federal Rules of Criminal Procedure, Rule 7 ( e) . 2, 18, 43

Rule XI, Rules of the House of Representatives 2

nthe Supreme Gourt of the Wiited Stats

OcrokER TERM, 1961

No. 128

JohN T. GOJACK, PETITIONER

v ay

U®rrep Srares of Amenica

2 2

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OP

- APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES

OPINION BELOW

The opinion of the court of appeals (R. 215.232) s

is reported at 280 F. 2d 678. The opinion of the dis-

trict court (Tr. 449-451) is not reported.

JUBISDICTION

„The judgment of the court of appeals was entered

on June 18, 1960 (R. 233). On July 12, 1960, Mr.

Justice Black extended the, time for filing a writ of

certiorari to and including August 17, 1960. The

petition was filed on August 16, 1960, and certiorari

was granted on June 5, 1961 (R. 235; 366 U.S. 943).

R.“ refers to the printéd record. “Tr.” refers to the type-

written transcript of the/record. - : :

/ (1)

} .

3

ö . *

a *

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

1254 (1). id

QUESTIONS PRESENTED

1. Whether the courts below correctly held that the

House Committee on Un-American Activities was act-

ing puisuant to a valid legislative purpose when it

questioned petitioner.

2. Whether the Committée violated petitioner’ 8

rights under the First Amendment.

3. Whether petitioner can challenge the pertinency

of the questions he refused to ariswer for the first

time at his trial, and, if so, whether nex was apprised

of their pertinenéy.

4. Whether petitioner, who was a by a grand

jury composed, in part, of federal employees, was en-

titled 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 government se-

curity program.

5. Whether the indictment was invalid casas it

failed to specify the subject under inquiry and did

not allege that petitioner’s refusal to answer was wil-

ful. , 8

The pertinent portions of 2 U.S. C. 192, Rule XI of

the Rules of the House of Representatives, and Rule

7(e) of the Federal Rules of Criminal Procedure are

set forth at pages 5-6 of petitioner’s brief.

5 . . staves: 22

Piotitioner was indicted on nine counts, each of

which charged unlawful refusal to answer a different

. f

question put to him by a subedmmittee of the Com-

mittee on Un-American Activities of the House of

Representatives (R. 1-3). „Having waived a jury

trial, petitioner was convicted by the court on six of

the nine counts (R. 217),’ and sentenced to nine

months’ imprisonment and a fine of two hundred dol-

lars. On appeal, the conyiction was affirmed (R. 233).

The pertinent facts may be summarized as follows:

The Committee had been engaged intermittently

in investigating the Communist Party activities of

officials of the United Electrical, Radio and Machine

Workers of America (the U. E.“) from August 1949

until Fébruary 1955 when petitioner appeared before

the Committee (R. 26-27). It had received sworn

testimony in 1951 from one Decavitch, a long-time dis-

trict president of the U.E. and a former Communist,

that the Communist Party Dad infiltrated the union

to the extent that of its important officials “99.9 per

cent“ were “pure Communist Party members (R.

27, 29). In July 1953, a former Communist, Jack

Davis, who had been an organizer for the U.E., testi-

fied that all of the organizers for the U.E. who

attended meetings were members of the Communist

Party (R. 29-30). Before petitioner was sub-

poenaed, the Committee had information that he was

a vice-president, of the national union and the presi-

dent of District 9 (R. 80-31). ä

on February 9, 1955, the Committee announced

that hearings would begin in Fort Wayne, Indiana,

"Count one was dismissed when. the United States Attorney

was obliged to elect. On counts two and five, petitioner was

found not not guilty because, the subcommittee failed to disallow

his obj and did not demand an answer - 215-217).

‘serra e ts aR Reali Ge

ee *

|

|

a 4

on February 21, 1955 (R. 85, 89). A newspaper ac-

count mentioned petitioner, who was a resident of

Fort Wayne, as a prospective witness (R. 136): On

February 10, Congressman Walter, the Chairman of

the Committee, received a telegram from petitioner. —

protesting on behalf of the Union the scheduling of

the hearings for February 21, 1955, in view of a

National Labor Relations Board election at the Mag-

navox plant on February 24, 1955, involving the

U.E. and rival unions (Gov. Ex. 9; R. 86-88). The

telegram claimed that the hearing would be a flagrant

use of a Congressional Committee for union-bust-

ing; stated that in view of the criminal conviction

of a former Commi Chairman “for bribery [sic],

we have every right to ask whether the Magnavox

Company is paying for this Congressional assistance 1

in union busting’; argued that the Union had “the

right to know which type Matusow witness Repre-

senative Walters [sic] and the Magnovox Company

would use; characterized a previous Committee

investigation as a “witch-hunt” in which Congress-

„man Walter made a lying claim” against the

Union; and charged that the Committee was run by

2s “publicity-mad zealots who “tarnish[ed]’’ the Con-

gress with their “sf€nch”’ (R. 87-88).

On February 14, 1955, George Goldstein, U.E.’s

Washington representative, sought a continuance of

the hearing (R. 68, 76). Because of the nature of the

telegram sent by petitioner four days earlier, Chair-

Walter decided to hear Mr. Goldstein only at a

reported session (R. 79). At the interview the ; J .

The transcript of the interview was read into the record f

below (R. 78-79).

2

5

Chairman told Mr. Goldstein that the Committee first

knew of the N.L.R.B. election when the Chairnmn

received petitioner’s telegram (R. 77). The follow-

ing exchange then took place between Mr. Goldstein

and Chairman Walter (R. 77):

Mr. Goldstein: Let me say this. As far as

I am concerned, this visit of mine was simply

for the purpose of asking the question that & -

mentioned a moment ago, whether or not you

were aware of [the N.L.R.B.] election, and if

not, to tell you about it, and to say this: that

it looked to us and it would look te a lot of peo-

ple as though the coincidence of the two was

more than a coincidence. -Now, I am saying

that without accusing you.

Chairman Walter: I do not care if you accuse

— me or not. I do not care what you have to say

about me. But thi. t-legram said very defi-

nitely that this was a case of union-busting.

Now, there is no one on this committee inter-

eated in busting unions. All of us have very

_ established records, but all of us are interested

in seeing your union go out of business, because

we do not believe it is good for the United

States.

Mr Goldstein refused to state any definite knowledge

he had about an N.L.R.B. ‘election, although he was

repeatedly asked to do so (R. 78-79). The Commit-

tee adjourned without any action being taken (R. 79).

Petitioner’s subpoena to appear at the February 21

hearing was served on February 15, 1955 (R. 22).

The next day, the counsel for the Committee, Frank

Tavenner, received a telegram from an attorney rep-

resenting petitioner which requested a continuance un-

—

—

5 til “any time after next week.“ because of the attor-

vw ney’s extremely heavy schedule and also because of

the N.L. R. B. election at Magnovox Company (R. 23).

The request was at first denied. After further com-

munication between counsel, Mr. Tavenner investi-

gated the proposed election and explained <he situation

to Chairman Walter; the latter agreed that the hear-

be postponed (R. 23). The hearings were re-

for February 28, 1955, in Washington, D.C.

Petitioner's counsel was notified of the rescheduling

and a new subpoena was issued and served on peti-

tioner (A 33, 34).

Petitioner appeared on February 28 and March 1,

1955, before a subcommittee in Washington, D.C.

Upon convening the subcommittee on the morning of

Pebruary 28, Representative Moulder, the acting

chairman, explained the purposes of the hearing as

fellows (A. e; Gev. Ex. , p. 19) *

There will be considered at this hearing testi-

mony relating to Communist Party activities

‘within the field of labor, the methods used by

the Communist Party to infiltrate inbor organi-

zations, and the dissemination of the Commu-

mst Party propaganda

Before the first witness, Julia Jacobs, was sworn, her

attorney (A. 201-202) filed with this Committee a

motion (Def. Ex. 3) on her behalf, as well as on

b-half ef two other clients, petitioner and Lawrence

Cover, who were subpeensed to appear before the

*Government Exhibit 8 is the Hearings Before the Commit

tee on Un-American Activities, House of Represeniatives, Sth

Cang., lat Sess, entitled /avcstigation of C Activition

in the Fort Wayne, indiana, Area.

—

\

7

‘ suBeonunittee (Gov. Ex. 8, p. 20; R. 201-202). The

motion claimed that the Committee did not have a

valid legislative purpose; that no criminal charges

had been made against the three witnesses and, in any

event, under Article 1, Section 3 of the Constitution,

only the courts can investigate crime; that the Com-

mittee’s authorizing resolution did not give it puter

to engage in breaking a union; that if the reschucion

had purported to convey this power, it would violate

the First Amendment’; that the authorizing resolution

was unconstitutionally vague; and that compulsory

disclosure of political beliefs and associations violated

the First Amendment.

At the start of petitioner's testmifony on February

28, he objected that the investigation did not have “a

bona fide legislative purpose” (Gev. Ex. 8, p. 72).

He answered a series of questions concerning ‘his

union offices, military serviec, and employment record

(id. at pp. 73-79; R. 64-66). After a colloquy con-

cerning “union busting”, Congressman Doyle, a mem-

ber of the subcommittee, told petitioner that [i f you

will tell us the truth and the facts about the extent to

which there are Communists in your union, that will

be helpful. * * * We want to know if you are a Com-

munist and the extent to which you have heen” (Gov.

Ex. 8, P. 79). Petitioner testified that he was still

president of district couneil 9, vice-president of the

national union, and a member of the general executive

board (id. at pp. 73, 83-84; R. 67).

EN petitioner was asked whether he had ever

.

any of the union offices, he stated that the Committee

beliefs or affiliations, especially so when its purpose is

union-busting” (R. 94). The question was rephrased

several times, but petitioner still refused to answer

/ on the ground that he had signed affidavits that be

“was not a Party member yearly from 1949 to 1954 and

because the question violated the First Amendment

(R. 94-95). Petitioner was then asked whether he

had ever been a member of the Communist Party

* (count one, dismissed on the election of the govern-

ment) (R. 96). Petitioner again invoked the First

Amend, but denied any reliance on the Fifth

Amendment (R. 97).

Petitioner was asked whether he was a Party mem-.

ber at any time during 1948 (count two, on which

petitioner was found not guilty since he was never

directed to answer) (R. 98). He refused to answer

on the ground that the question violated the First

Amendment and the hearing had no legislative pur-

pose (R. 99). Petitioner then refused to answer

whethe; he was “now a member of the Communist

Party” (count three), because his affidavit stated that

he was not a Communist, because the question violated

the First Amendment, and because “I am not going

to cooperate with union busters” (R. 100-101). The

hearings were then adjourned for the day (Gov. Ex.

8, p. 88).

were renewed on March 1, 1955. After further ques-

* —

9

tions about Communist activities in labor unions

(Gov. Ex. 8, pp. 91-92; R. 103), the Committee

asked whether petitioner attended a union meet-

ing in 1946 at which he presented a letter written

to him by the secretary of the Communist Party

(R. 103). The Committee read to petitioner the

minutes of the meeting which said that a letter had

been sent to Brother Gojack” from the secretary ,of

the Party offering to donate a hundred copies of

the Daily Worker (R. 106). Petitioner could not

recall eventa, nor who was the Party secretary

or chai in Indiana at the time (R. 106-107, 109

110). Petitioner repeated his objections to the hear-

imgs on the ground that they had no legislative

purpose and violated the First Amendment, as well

as that they exceeded the authority given the Com-

mittee by Congress (R. 108. 111). The Committee

counsel asked petitioner whether he was acquainted

with Elmer Johnson‘ (R. 107, 112). Congressman

Scherer stated that [y lou have left us under the

impression at this point that by reading the news-

papers you knew that Johnson was chairman of

the Communist Party of Indiana and I am asking

von if that is the only way that you knew John.

on (count four) (R. 112). Petitioner based his

refusal to answer on the Committee’s use of paid

informers whom he called liars, on the First

Amendment, and on the Committee's lack of author-

»The Committee had heard testimony that Elmer Johnson

was the chairman of the Communist Party in Indiana (R.

32-34).

| 0 |

ity under its authorizing resolutions to ae ae

AR. 113; Gov. Ex. 8, pp. 102-14).

- Petitioner refused to answer whether he knew

Henry Aron‘ on the same ground that he had refused

to answer the earlier questions, particularly the Com-

mittee’s use of informers and the First Amendment

(count five, on which petitioner was found not guilty)

(R. 114-115). Petitioner was then asked and refused

to answer on the basis of the First Amendment

whether Johnson or Aron ever addressed a group of

people when petitioner was present (count six) (R.

115-146).

After petitioner had charged a former member of

the Committee with using a “paid liar’s testimony to

try to break [the Square D] strike” (Gov. Ex. 8,

p. 105), he was questioned concerning the State De-

partment’s refusal to issue him a clearance in 1952

on security grounds (sd. at pp. 112-118, 120, 122-123,

129-132). this discussion, after petitioner

had objcated that Committee was attempting to

‘find him guilty a trial, Congressman Doyle

' stated (id. at p. 125)?

[W]e are not hexe finding anybody guilty. We

are here as a p of Congressmen trying to

find out the to which Communists have

infiltrated your n if they have - the union

of which you are the executive vice president.

That is what we are here for, young man; not

to find you guilty of anything, but to find out

the extent to Which you know of Communist

domination or control in your union, if there

is such domination and control or infiltration.

*The Committee had heard testimony that Henry Aron was

the sécretary of the Communist Party in Indiana (R. 32-34).

11

Petitioner testified that he knew Russell Nixon.

but when asked whether he knew Nixon to be a

Party member, petitioner said that he knew him as

legislative representative of tlie U. E. in Washington

(R. 116, 119).’ Petitioner said be would not answer

questions concerning political beliefs and affiliations

because of the Committee’s lack of jurisdiction (R.

119-120). Petitioner then again refused to answer

whether he knew Russell Nixon to be a member of

the Communist Party (count seven) on the ground

that the Committee’s authorizing resolution did not

give the Committee power to expose people (R. 121).

The Committee counsel handed petitioner a letter

from Russell Nixon, which had been sent immediately

after a peace pilgrimage to Washington, enclosing a

letter from the Metal Workers Trade Union, an or-

ganization with headquarters in Paris which the Com-

mittee believed was Communist-dominated (R. 123;

Gov. Ex. 8, p. 131; see R. 50-58). Petitioner admitted

that he had sent the latter letter, which praised the

Stockholm peace appeal, to locals of the U.E. (Gov.

Ex. 8, pp. 141-145). The Committee counsel noted

that petitioner had said tliat he had engaged in many

meetings on behalf of peace and informed petitioner

that the Committee believed that the Communist Party

had been involved in the Stockholm peace appeal and

similar activities (R. 121). Petitioner then refused

to answer whether he had taken “an active part in

* Nixon had earlier appeared as a witness before the Com-

mittee and refused to answer questions concerning his Party

activities (R. 118-119). Dorothy Funn, a former member of

the Communist Party who had been a legislative ropresent u-

tive for the National Negro Congress in Washington, had

testified before the Committee in 1953 that Russel] Nixon wa

a member of the Communist Parity (R. 43-4).

ee 8

*

12

the peace pilgrimage to Washington which was or-

N ganized by one of the ‘front’ organizations known as

the America Peace Crusade” (count eight ) (R. 122).

When petitioner based his refusal to answer on the

First Amendment, the Committee counsel said (R.

122):

I want to make it clear, Mr. Gojack, that I

am not interested at all in what your beliefs or

opinions were about those matters. What I am

interested in is the extent to which the Com-

munist Party was engaged in manipulating

peace moves in this country in behalf of a for-

eign power.

Congressman Doyle said (R. 122-123) :

Mr. Chairman, may I add * * * that I am

also interested in knowing whut the witness

knows about the extent to which the American

Communist Party, in connection with these

peace moves or otherwise, was using the leader-

ship of American labor unions, especially any

labor union that the witness might have been

a member of at that time or had any connec-

tion with. The question is the extent to which

the Communist Party had infiltrated American

labor unions * * *, the extent to which they

were using it then and are using it now for

their conspiratorial purposes.

Petitioner refused to answer, on the grounds he had

already stated, whether he had taken part in the pil-

grimage to Washington, whether he was a member of

*

13

the American Peace Crusade, and whether he had

frequently served as chairman of its meetings (Gov.

Ex. 8, p. 148).

Petitioner was shown a copy of the February 1,

1951, issue of the Daily Worker which listed a “John

Gojack, international vice president, UERMWA, Fort

Wayne, Ind.” as an initial sponsor of the American

Peace Crusade (R. 124; see R. 41).* Petitioner re-

fused to answer who had solicited him as aponser,

on the grounds he had previously stated (count nine) ;

also he would not say what method of an had d

been used (R. 124-125),

When petitioner refused to answer whether he was

a sponsor of a particular conference because the Com-

mittee could not “be a court, jury, and prosecutor, \

Congressman Doyle said (Gov. Ex. 8, p. 153):

[Wie do not try to do that. We are trying to

get your cooperation as one of the labor leaders

of our country, to give us facts which will help

us more intelligently to legislate with reference

to the extent to which the Communist con-

„ sSpiracy has entered your union and either con-

trolled it or tried to control it.

The Committee counsel stated that the Committee had

information that petitioner was a member of the

American Peace Crusade, as well as six other organ-

izations (id. at p. 154). Petitioner refused to answer

The Committee also had a leaflet of the American Peace

Crusade, which was signed by a “John Gojack,” entitled “Bring

Our Boys Home From Korea. Make Peace With China Now™

(R. 41). |

—

14

. + nveiie Ol ole ok thane etnies.

tions (ibid). 7

SUMMARY OF ARGUMENT

I

The Committee was acting pursuant to a valid legis-

lative purpose.

A. It is established that the Committee, in conduct-

ing extensive investigations into Communift activities

in this country, has been pursuing a valid legislative

purpose. In Barenblatt v. United States, 360 U.S.

109, 127-128; the Court noted that Congress “has

enacted or considered in [the security] fiéld a wide

range of legislative measures, not a few of which

have stemmed from recommendations of [this] very

Committee and held that investigations of Commu-

nist activities had a valid legislative purpese. See

also Wilkinson v. United States, 365 U.S. 399, 409-

411; Braden v. United States, 365 U.S. 431, 433-435.

Petitioner claims, relying on statements of the

Chairman of the Committee and what he alleges are

the Committee’s methods of operation, that the Com-

~“mittee’s investigations re conducted for purposes of

__ ~exposure, not legislation. But an identical argument,

baséd on the same or similar evidence, was rejected

by this Court in Watkins v. United States, 354 U.S.

178, 199-200, and again in Barenblatt, and Wilkinson,

on the ground that s lo long as Congress acts in pur-

suance of its constitutional power, the Judiciary lacks

authority to intervene on the basis of the motives

which ‘spurred the exercise of that power“ (Baren-

blatt, 360 U.S. at 132).

A

15

B. The record shows that the particular investiga-

tion involved in this case had a valid legislative pur-

pose. The Comittee had information that the union

of which petitioner Was an important official was

dominated by Communists. The Committee reason-

ably believed that petitioner could supply information

concerning Communist activities in the union: This

purpose was stated to petitioner at the heafings. The

only suggestions at the hearings that the Committee’s

purpose was to bust“ the union, to expose petitioner,

or try and convict him, were petitioner's own claims

which the Committee repeatedly denied.

Petitioner relies on newspaper stories concerning

statements made by members of the Committee. But,

as we have noted, this Court has rejected attempts to

investigate the motives of Committee members based

on official statements on the floor of Congress, at Com-

mittee hearjngs, ‘and in Committee reports; a fortiori,

a defendant cannot challenge the legislative purpose

of a Congressional committee on the basis of state-

ments made to the press.

C. The hearings did not constitute a bill of at-

tainder. Only a legislative act which punishes a per-

son by depriving him of a civil or political right

4

without a judicial trial constitutes a bill of attainder. .

The publication of facts concerning petitioner’s activ-

ities was not a deprivation of such a right. In any

event, even if his exposure did in fact deprive him

of a recognized right, this disability must have been

the intended object of Congress in order to violate

920763 61—3

—

the bill of attainder clause. Flemming v. Nestor, 363

U.S. 603, 613-614. As we have seen, however, the

Committee’s aim was to secure information from peti-

tioner as to Communist activities in labor unions, not

to 3 him.

‘ 11

e e the

First Amendment. This Court has held in Barenblatt

v. United States, supra, that the Committee can, con-

-sistent with the First Amendment, investigate all

aspects of Communist activity. Thus, the Committee

did not violate the First Amendment when it ques-

tioned petitioner about Communist activties in labor

unions—a subject about which it could reasonably be-

lieve he possessed pertinent information.

III

As we have shown in our brief in Shelton v. United

States, No. 9, this Term, pp. 25-32,-a witness before a

' Congressional committee cannot claim for the first

time at his trial that he was not apprised by the Com-

mittee of the pertinency of the questions. Here, peti-

tioner made numerous objections to the authority of

the Committee to conduct the hearing and to ask par-

ticular questions, but he never even suggested that he

was in doubt about the pertinency of the questions he

refused to answer., His preliminary atement, a gen-

eral challenge to the power of the Committee, came be-

fore any questions were asked and therefore could not,

and did not, claim that the questions were not perti-

nent. In Barenblatt, this Court held that a similar

general statement, attacking the jurisdiction and

17 :

power of the Committee, did not properly raise the

issue of pertinenoy.

B. In any event, petitioner was clearly apprised of

the pertinenoy of the questions. He was apparently

present when, at the start of the hearing, the chairman

of the subeommittee explicitly stated that the investi-

gation was intended to secure information on Commu-

nist activity in labor unions. This statement was re-

peated by Congressman Doyle during the testimony of

the first witness, which petitioner admitted hearing,

and twite during petitioner’s own testimony.

The question whether petitioner was then a member

of-the Communist Party was on its face pertinent to

the subject of Communist activities in labor unions.

The pertineney of an identical question was held in

Barenblatt to be “clear beyond doubt’’ to the subject

of Communist activity in education (360 U.S. at 125).

Since petitioner was given a general sentence on all

Six counts, which was less than the maximum author-

ized under any one count, the judgment below must be

affirmed if his conviction on any one count was valid.

Moreover, the questions involved in the other six

counts were, either on their face or as shown by state-

ments made to petitioner at the time, clearly pertinent.

IV

Petitioner claims that he was entitled to dismissal

of the indietment 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

—

2

y

*

18 ,

unless he ean show specific and convincing evidence

of strong bias in individual grand jurors. ‘Here, as

in Shelton, petitioner made no allegations with re-

spect to individual grand jurors and did not even

state any specific facts of bias among gov ernment

employees generally. — =

3 8

Petitioner contends that the indictment was re-

quited to specify the subjects under inquiry and

to allege that his refusal to answer was wilful. We

point out in our brief in Shelton, supra, pp. 78-83,

that under Rule 7(c) of the Federal Rules of Crim-

inal Procedure and the decisions of this Court and

the courts of appeals, an indictment need not specify

the subject under inquiry. And we have shown- in

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

indictment need not allege that the witness’ refusal

to answer the questions was wilful if, as here, the

indictment alleges that the witness has unlawfully“

refused to answer.

2 ARGUMENT *

I

THE COMMITTEE WAS ACTING PURSUANT TO A VALID

5 _ LEGISLATIVE. PURPOSE:

Petitioner l that the courts below erred in

holding that the Committee was acting pursuant to a

For the convenience of the Court we have included, as an

appendix to this brief (the last of our briefs in this set of six

contempt-of-Congress cases), a chart showing the principal con-

tentions made by the petitioners and the government. The

chart also shows the government brief in which the main argu-

ment appears as to each point common to more than one case.

See infra, p. 45.

2 0

valid legislative purpose. More specifically, he argues

that the purpose ‘Of the Committee, generally is ex-

_ posure; (Pet. Br. 28-94); that the particular purpose

of the Committee in calling him was exposure (Pet.

Br. 34-47); that the purpose of the hearings was to

attaint petitioner Het. Br. =); and that the trial

court erroneously excluded evidence showing the in-

valid legislative purpose of the Committee, (Pet. Br.

53-56). These contentions are all without merit.

A. THE COMMITTEE'S INVESTIGATIONS OF COMMUNIST ACTIVITIES

HAVE BEEN FOR A VALID LEGISLATIVE PURPOSE

It is established that the House Un-American Ac-

tivities Conimittee, in conducting extensive investiga-

tions into Communist ‘activities in this country, has

been acting pursuant to a valid legislative purpose.

This Court held in Barenblatt v. United States, 360

U.S. 109, 120-121—which was decided after the hear-

ings involved in this case—that “it can h ardly be

seriously argued that the investigation of Communist

activities generally, and the attendaut use of eompul-

sory process, was beyond the purview of the [House

Un-American Activities] Committee’s intended au-

thority under Rule XI.“ The Court upheld the

power of Congress to conduct such investigations of

Communist activities on the ground that the investi-

gations have a valid legislative purpose (id. at 127-

128) : 3

That Congress has wide power to legislate in

the field of Communist activity in this Coun-

try, and to conduct appropriate investigations

in aid thereof, is hardly debatable. The exist-

ence of such power has never been questioned

f

*

54

20

by this Court, it is sufficient to say, with-

out ization, that Congress has enacted

or considered in this field a wide range of

legislative measures, not a few of which have

This holding was reiterated in Wilkinson v. United

States, 365 U.S. 399, 409-411, and again in Braden v.

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

Petitioner, however, claims (Pet. Br. 28-34), rely-

ing on statements of the Chairman of the Committee

and its employees and what he alleges are the Com-

mittee’s methods of operation, that the Committee

investigations are conducted for the purpose of expo-

sure, not legislation. The identical argument, based

on the same or similar evidence,” was also made in

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

this argument, the Court stated (id. at 199-200) :

Petitioner has earnestly suggested that the

difficult questions of protecting these rights

{rights guaranteed by the Bill of Rights] from

infringement by legislative inquiries can be sur-

mounted in this case because there was no

public purpose served in his interrogation. His

conclusion is based upon the thesis that the

Subcommitise was engaged in a program of

exposure for the sake of exposure. The soie

3 purpose of the inquiry, he.contends, was to

* Compare the record (pp. 160-214) and petitioner's brief

(Pet. Br. 28-34) in this case with the record (pp. 11-16, 58-64,

98-168) and the petitioner’s brief (pp. 12-34) in Watkins, No.

261, Oct. Term, 1956.

&

21

lence of publi¢ reaction because of their past

beliefs, expressions and associations. In sup-

port of this argument, petitioner has marshalled

an impressive array of evidence that some Con-

greasmen have believed that such was their

duty, or part of it.

We have no doubt that there ix no congres-

~ sional power to expose for the sake of exposure.

The public is, of course, entitled to be informed

concerning the workings of its government.

That cannot be inflated into a general power to

expose where the predoniinate result can only

be an invasion of the private rights of indi-

viduals. But a solution to our problem is not

to be found in testing the nunti ves of committee

members for this purpose: Such is not our

function. Their motives alone would not viti-

ate an investigation which had been instituted

by a House of Congress if that assembly 's legis-

lative purposes is being served.

The contention rejected in Watkins was renewed in

Barenbiatt—that the “true objective of the Committee

and of the Congress was purely ‘exposure’ (300 U.S.

at 132)—on the basis of virtually the same evidence.

See id. at 153-159 (Mr. Justice Black dissenting) ."

This Court, however, again held that (id. at 132-133) :

So long as Congress acts in pursuance of its

constitutional power, the Judiciary lacks au-

thority to intervene on the basis of the motives

which spurred the exercise of that power. * * *

It is, of course, true, as was said in MeC ray v.

United States, 195 U.S. 27, 55, “that if there

See also the record (qf) and the petitioner's brief (pp.

51-52) in Barendlatt. No. 35, Oct. Term, 1958. ‘

a

>

e+,

1757 >

phe

eS

eit

Ii

Ar

feat

etd

el

ele

in the exercise of a

principles of course ap-

to committee investigations into the

legislation as to the enactments which

* — may produce. Cf. Tenney

v. Brandhove , 341 F. S. 367, 377-378.

Similarly, in Wilkinson, this Court held that “it is

not for us to speculate as to the motivations that may

have prompted the decision of individual members

of the subcommittee to summon the petitioner.” 365

U.S. at 412. g

i

if

10

11

rf

. THE RECORD SHOWS THAT THIS PARTICULAR INVESTIGATION HAD

A VALID LEGISLATIVE PURPOSE

After the government had introduced evidence at

7 | petitioner’s trial showing the Committees sustained

4

oe

legislative purpose (R. 2 2), the distriet court found

“that the committee was engaged in a valid legisla-

tive purpose (R. ). The court of appeals stated

— that [t Ihe record clearly demonstrates that the Com-

mittee hearing was one constituting a continued in-

vestigation which the Committee was conducting into

Communist activities in the labor field, including in-

filtraticn into labor ‘organizations and Communist

.

23

propaganda (R. 219). Upon a thorough review of

the record (R. 219-229), the court concluded (R.

229):

Exposure no douht- resulted from the. in-

quiry. But no one can fairly read the record |

without pereeiving that the dominant purpose

of the Committee was a legislative one, namely,

to learn the extent of Communist infilt ration

or domination of labor unions, |

. e submit that the court of appeals’ holding is fully

supported by the evidence.

At the time of the issuance of the subpoena the

Committee had reason to believe that petitioner would’

have u.fermation concerning Communist activities in

the labor field: The Committee had information that

petitioner was a general vice-president of the United

Electrical, Radio, and Machine Workers of America,

and president of District No. 9 of the union, The

Committee had received sworn testimony in 195T from

a long-time district president of U. E. that alntost all

the important officials of the union were Communist

Party members: In July 1953, a former Communist

who had been an organizer for The L. E., testified

that all of the organizers for the U. E. who attended

meetings were members af the Communist Party (aee

supra, h. 3). K alear that when petitioner was

su ed the Committee reasonably believed that

would have information concerning Communist

~ activities in labor unions, which was a subject of the

Committee's legislative interest.

The rerord shows that on February 9, 1955, when

the Committee announced that hearings would be

}

aa?

24

held at Fort Wayne, Indiana,” neither the Chair-

man of the Committee, nor the Committee counsel,

nor the members of the subcommittee had any knowl-

edge that an N.L.R.B. election was pending at the

Magnavox plant in Fort Wayne and had been set for

February 24, 1955 (R. 76-77, 91, 155). However, on

February 10,.1955, Mr. Walter received from peti-

tioner a highly abusive telegram (R..86-88). In his

telegram, petitioner stated that, in view of the sched-

uled N.L.R.B. election at the Magnavox plant on

February 24, and in view of the criminal conviction

of former Committee Chairman Thomas for brib-

ery, he had every right to ask whether the Commit-

tee had been bribed by management to help it in

union busting. On February 14, 1955, George

Goldstein, Washington representative of the U. E.,

sought a continuance of the hearing until after the

union election at Magnavox. Because of the nature

of the telegram sent by petitioner on the 10th, Chair-

man Walter determined to hear, Mr. Goldstein only

at a reported session (R. 79).

Petitioner suggests (Pet. Br. 8-9) that the colloquy

which developed during the interview is evidence

that the Committee was not furthering a legislative

purpose. The material portions of the interview are

as follows (R. 77):

__Chairman Walter. Not until we received

an imsulting telegram. After I received that

telegram, then I becariie aware of the fact that

there was an election being held. We had

previously absolutely no knowledge of it, and

The Committee counsel testified that no newspaper release

was prepared by ithe Committee (R. 155).

25 >

the only reason we decided on this hearing

there was because these people are there. If

they are well enough to be in Fort Wayne,

Indiana, working, they are well encugh to tes-

tify. That is our attitude.

Chairman Walter. I do not care if you

accuse me or not. I do not care what you have

to say about me. But this telegram said very

definitely that this was a case of union-busting.

Now, there is no one on this committee inter-

ested in busting unions. All of us have very

established records, but all of us are interested

in seeing your union go out of business, be-

cause we do not believe it is good for the United

States.

Commenting on this colloquy, the court below stated

(R. 225):

[I]t can be gleaned that Mr. Walter showed

some displeasure which, under the cireum-

stances, and having in mind the abusive and

insulting telegram * * * can be understood

and as readily be excused. Congressmen are

more fortunate than judges in at least this re-

spect, that when attacked unjustly, they are at

liberty to defend themselves and to express

themselves forcefully and vigorously.”

in Petitioner points (Pet. Br. 8-9, 36) to tétimony. of a

newspaper reporter who wrote a story to the effect that at the

meeting of February 14, 1955, the “House Un-American Ac-

tivities Committee members frankly declared today they are out

to break the alleged Communist-led Independent United Elec-

trical Workers Union (R. 199).” The reporter admitted, how-

ever, the accuracy of the stenographically reported conference

between Mr. Walter and Mr. Goldstein on February 14, al-

though he thought something more was said by Mr. Walter

or another representative of the Committee (R. 79-80).

While a continuance of the scheduled hearing was

at first denied (R. 23), it was later granted and the

hearing was set for February 28 (R. 23-24). On that

date the hearings opened with an announcement from

the Chairman of the subcommittee that the subject of

the inquiry was “Communist Party activities within

the field of labor, the methods used by the Communist

Party to infiltrate labor organizations, and the dis-

semination of the Communist Party propaganda?

(see supra, p. 6). The questions asked petitioner

showed clearly that the Committee was continuing its

investigation of Communist infiltration in the labor

field. No (member of the Committee nor its counsel

indicated that the Committee was engaged in “union

husting or was attem ing merely to expose peti-

tioner. Instead, e Ferne claimed that the

Committee was engaged in union busting and in at-

tempting to try him for a criminal offense, the sub-

committee members and counsel repeatedly stated that

the subcommittee was seeking information on Com-

munist activities. And more specifically, Congress-

man Doyle four times stated that the purpose of the

hearings was to oo information on Communist

infiltration and eontrol of labor unions (see supra,

pp. 7, 10, 12, 13).

In response to this clear-proof during the hearing

itself that the Committee was pursuing a valid legis-

tative purpose, petitioner relies almost entirely on

newspaper stories (Pet. Br. 35-36). We submit that

such evidence constitutes merely an attempt to leok

into the motives of the Committee members, which,

as we have seen (pp. 19-22), petitioner is not per-

27

mitted to do. In Watkins and Barenbiatt this Court

held that a defendant is not entitled to challenge the

motives of committee members on the basis of their

official statements on the floor of Congress, at com-

mittee hearings, and in committee reports; a fortiori,

he cannot do so on the basis of unofficial statements

made to the press. Moreover, even if petitioner could

look into the motives of the Committee, the newspaper

stories are at most only unpersuasive bits-and-pieces

that cannot outweigh the proof in the — of

the hearing itself. 5

It is of course true that exposure of petitioner, as

well as other persons, resulted to some extent from

the‘ hearings. But this is an inevitable result of any

Congressional investigation into secret or unpublicized

activities, whether they are criminal or net. Thus,

“petitioner's argument is in effect that any exposure

resulting from an inquiry is exposure “for the sake

of exposure, and that, since exposure results from an

inquiry, the inquiry must therefore be for a non-

legislative purpose. On the contrary, exposure of

problem areas is one of the preliminary steps to re-

medial legislation, and personne! is often a vital part

of the problem (see our brief in Whitman v. United

States, No. 10, this Term, pp. 35, 49-50). It was

of obvious importance to this investigation of Com-

munist activities in labor unions, and particularly the

U.E., to determine what officers of the union were

Party members. Such information would show the

extent to which the unions were Communist-controlled

and therefore the need, or lack of any need, for leg-

islation. In short, it is only exposure unrelated to the

furtherance, of a legislative purpose which is pro-

hibited. Watkins v. United States, supra, 354 U.S.

at 200; Barenblatt v. United States, supra, 360 U.S.

at 132.

C. THE HEARING DID NOT CONSTITUTE A BILL OF ATTAINDER

“Petitioner claims (Pet. Br. 47-49) that, since the

hearing was intended to expose him, it was also a

bill of attainder. He reasons that such a proceeding

results in “a judgment handed down without judicial

trial that the witness is guilty of subversion.“ This

contention is clearly erroneous.

A bill of attainder is a legislative act which inflicts

punishment without a judicial trial. E. g., Cum-

mings v. Missouri, 4 Wall. 277, 323; United States

v. Lovett, 328 U.S. 303, 315-317. The punishment

inflicted, however, need not be punishment in the

usual sense of fine or imprisonment. It may consist

of deprivation of the privilege of pursuing a certain

profession (Ez parte Garland, 4 Wall. 333, 377), or,

in some circumstances, of working for the govern-

ment (United States v. Lovett, supra, 328 U.S. at

316), or, in general, of ‘‘any rights, civil or politi-

eal, previously enjoyed,“ depending upon the cir-

cumstances attending and the causes of the depriva-

tion. Cummings v. Missouri, supra, 4 Wall. at

320; Garner v. Los Angeles Board, 341 U.S. 716, 722.

We know of no case, however, in which the publie

presentation of the facts concerning an individual

or exposure as petitioner terms it—has been held

to be a bill of attainder. The publication of facts

29

concerning petitioner’s activities did not deprive him

of any recognized civil or political right.

In any event, even if petitioner were correct that

his exposure“ deprived him of a recognized right,

it is settled that not all disabilities constitute punish-

ment within the meaning of the bill-of-attainder

clause. This Court has recently held that whether

a statute is a bill of attainder depends upon the pur-

pose of the statute. In Flemming v. Nestor, 363 U.S.

603, 613-614, ihe Court stated that: .

In determining whether legislation which

bases a disqualification on the happening of a

certain past event imposes a punishment, the

Court has sought to discern the objects oh

which the enactment in question was focused.

Where the source of legislative concern can be

thought to be the activity or status from which

the individual is barred, the disqualification is

not punishment even though it may bear

harshly upon one affected. The contrary is

the case where the statute in question is evi-

dently aimed at the person or * class of persons

disqualified.

Similarly, the plurality opinion of the Chief Justice

in Trop v. Dulles, 356 U.S. 86, 96, stated :

If the statute imposes a disability for the pur-

poses of punishment—that is, to reprimand the

wrongdoer, to deter others, ete.—it has been

considered penal. But a statute has been con-

sidered nonpenal if it imposes a disability, not

to punish, but to a¢complish some other legiti-

mate governmental purpose. The Court has

recognized that any statute decreeing some

adversity as a consequence of certain conduct

*

may have both a penal and a nompenal effect.

The controlling nature of such statutes nor-

\ mally depends on the evident purpose of the

legislature.

See also the opinion of Mr. We Frankfurter in

De Veau v. Braisted, 363 U.S. 144, 160.

Apparently recognizing that-he must show that the

disability he claims to have suffered was the purpose

of the hearing, petitioner rests his contention that

the hearing was a bill of attainder on his allegatiof®_

that the Committee’s purpose was exposure (Pet. Br.

47). Thus, petitioner in effect admits—as the de-

cisions of this Court discussed above require him to

do—that the mere fact that exposure may have re-

sulted from the hearing cannot make the hearing a

bill of attainder. But, as we have shown above (pp.

22-28), the record clearly shows that the hearing was

intended to secure information concerning Communist

activities in labor unions, not to expose petitioner.

D. THE TRIAL COL RT PROPERLY EXCLUDED THE NEWSPAPER erunies

WHICH PETITIONER OFFERED TU PROVE THAT THE COMMITTEE HAD

AN INVALID PURPOSE

Petitfbner contends (Pet. Br. 53-56) that the trial

court erred in excluding newspaper stories allegedly

iending to show that the hearing was called for the

purpose of exposure, Similar evidence (in some in-

stallces the identical evidence) — relating to the pur-

poses of the Conumittee in general—was offered in

Watkins v. United States, supra, and rejected by the

trial court.“ In upholding the court’s decision the

court of appeals stated (233 F. 2d 681, 687) :

“See the record in Watkins, No. 261, Oct. Term, 1956.

pp. 92-134, 164-174.

—

31

Appellant would have us judge, the present

controversy upon the basis of speeches made by

members of, Congress and others, and upon

newspaper articles, ete. We cannot do So. Such

material is not evidence. The question is an

individual one, whether the inquiry is indeed

pertinent to a valid legislative purpose. It.

cannot BE solved by generalities culled from

speeches—many of ‘them no doubt partially ex-

temporaneous—or from partisan assailants,

crities, friends or defenders of some project or

cause. Moreover, even if the unbridled power

of exposure were claimed by some members of

Congress, the claim would not establish its use

in any particular inquiry. We must judge each

inquiry in its own setting and upon its own

facts.

As we have shown above, this Court held in Watkins

that it was not the function of the Court to test the

motives of Congressmen: “Their motives alone would

not vitiate an investigation which had been insfituted

by a House of Congress if that assembly’s legislative

purpose is being served” (354 U.S. at 200) (see supra,

pp. 19-22). Similarly, extemporaneous statements to

the press by members’ of the Committee could not. |

prove in this case that the investigation was- being!

conducted for an invalid purpose when the inquiry

into Communist infiltration into the field of labor

clearly served a legislative purpose of Congress.”

— — &

* Petitioner also objects e le 56) to the trial court's

refusal M- to allow him to introduce evidence showing

the Inbor relations director of the Magnavox plant knew

that petitioner was going to be subpoenaed three days before

he was actually sub; and that hecannounced this fact to

employees at the plant. If these allegations are true, they can-

n. *

ae 2

32

I 4,

THE COMMITTEE'S INVESTIGATION DID NOT VIOLATE THE

FIRST AMENDMENT

Petitioner claims (Pet. Br>~50-53) that the Com-

_ mittee’s investigation violated his rights under the

First Amendment. As he himself suggests (Pet. Br.

52), h this issue is controlled by enblatt v.

pi es, supra; 360 U.S. at 125-134. is Court

eres the constitutionality of a Congressional

ene e of Communist activities in education. It

necessarily follows that this investigation of Commu-

nist activities in labor unions we fru pp. 36-38)

was likewise valid under the First Amendment,’

Petitioner contends that the Committee did not have

probable cause to subpoena him. As we have shown in

our brief in Shelton v. United States, No. 9, this Term.

pp. 50-55, the rule laid down. by this Court is that a

Congressional committee can properly subpoena. a

witness when it has reasonable basis for believing that

the witness has information related to the subject

under investigation which would be of value to the

committee. Barenblatt v. United States, supra, 360

U.S. at 134; Wilkinson v. United States, supra, 365

U.S. at 412. We submit that the Committee clearly

had such a reasonable basis for subpoenaing peti-

tioner.

not possibly prove that the investigation erved no lexislative

purpose. The most this evidence would tend to show is that

some members or employees of the Committe® had an improper —

motive. But even this inference is extremely weak since peti-

tioner does not claim how or from whom the Magnavox official

received the information. Certainly that official’s use of the

information cannot be attributed to the Committee.

2

8 33

At the time petitioner was subpoenaed, the Commit-

tee had information that the United Electrical Radio

and Machine Workers of America had been infiltrated

by the Communist Party. Indeed, the Committee had

heard sworn testimony that virtually all the union's

officers were Communists (see sapra, b. 3). Petr

tioner was admittedly general vice-president of that

union and president of District No. 9. The Com-

mittee had further information linking petitioner

with Russell Nixon, a lobbyist for the union who had

heen identified by a witness as a member of the Com-

munist Party, and with the American Peace Crusade,

which the Committee believed to be a Communist-

front organization (see supra, pp. 10-11, 13). In the

light of this information, it.cannot be seriously con-

tended that the Committee lacked reason to believe

that petitioner had information which would aid in

its investigation of Communist activities in the labor

field. 75

III

PETITIONER, HAVING FAILED TO CHALLENGE THE PERTI-

NENCY OF THE QUESTIONS BEFORE THE COMMITTEE,

CANNOT CLAIM FOR THE FIRST TIME AT HIS TRIAL. THAT

HE WAS NOT APPRISED OF THEIR PERTINENCY. IN

ANY EVENT, PETITIONER WAS APPRISED OF THEIK

PERTINENCY

A. THE Isst E OF PERTINENCY WAS NOT PROPERLY RAISED BEFORE

THE COMMITTEL

Petitioner claims (Pet. Br. 57-58) tht he was hot

adequately apprised by the sube ‘omunittee of the sub-

ject under inquiry so that he could determine whether

the questions asked him were pertine nt to this subject.

But petitioner failed to raise this objection before the

»

— —

9

3

subcommittee and, under this Court’s decisions, he is

precluded from raising it for the first time in the

contempt proceeding.

1. As we have shown in our brief in Shelton v.

U'nited States, supra, pp. 25-32, a witness before a

~ Congressional committee rannot claim that the com-

mittee has failed to apprise him of the subject under

inquiry and the pertinency of the questions to this

subject, unless he raises the issue of pertineney before

the committee itself. Barendlatt 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.

2. Petitioner; Sho appeared before the subeommit-

tee with counsel, did not make even the “contem)-

plated and buried objection to the pertinency of

the questions which was made by the witness in Baren-

blatt nor did he indicate an doubt as to the impor-

tance of the questions such as was stated by the

witness in Deutch. .Petitioner’s preliminary state-

ment wis no more than a general Challenge to the

péwer of the subcommittee to hold any hearings or

to ask any questions of the witnesses before it. The

statement claimed that the Committee had no valid

legislative purpose, that the hearing violated the bill-

of-attainder clause of the Constitution and the First

Amendment, and that the Committee s authorizing

resolution did not authorize the hearing and was un-

constitutionally vague. (see supra, pp. 6-7). This

did not, and could hot, constitute an objection to the

pertineney of questions not yet asked.) A similar

statement attacking the jurisdiction and power of the

— N

committee was made by the witness in Barenblatt,

but the Court concluded that this “general challenge

to the power of the Subcommittee” was not adequate

“to trigger what would have been the Subcommittee's

reciprocal obligation had it been faced with a perti-

nency objection” to apprise the witness of the per-

tineney of the questions. 360 U.S. at 124." While in

Barenblatt the memorandum contained “contem-

plated and “buried” objections on the ground of

pertinency (although this Court did not consider

them sufficiently clear), here petitioner’s statement

did not make even those “contemplated” and “byried”

objecteuns.

Petitioner likewise did not question the pertinency

of any of the particular ions asked him during

the course of the hearing. he- repeated the

objections in his statement: that the hearing was not

within the power given the Committee by its author-

izing resolution; that the hearing was intended to

bust the union, or to expose petitioner, or to try

and convict him, and therefore did not have a valid

legislative purpose; and that the hearing as a whole

and particular questions violated the First Amend-~

ment. In addition, he claimed that the Committee re-

lied on informers who were liars (see supra, pp. 7-15).

Obviously, none of these objections even suggested to

the subcommittee that petitioner was claiming that he

did not understand the pertinency of the questions.

Compare the legal memorandum filed by the petitioner in

Barenblatt (see the record in No. 35, Oct. Term, 1958, pp.

227-235) with the memorandum in this case (R. 201 202). +

u. PETITIONER WAS APPRISED OF THE FERTINENCY OF THE

QUESTIONS

in any event, even if petitioner had properly ob-

jected to the pertinency of the questions, it is clear

that he was apprised of their pertinency.

1. Petitioner was apprised, from at least three dif-

ferent sources, that the subject under inquiry at the

i was Communist activity in labor unions.

vat ‘the Start of the hearings on February 28,

the day petitioner first testified, the chairman of the

qrubcommittee specifically stated (B. 60-68):

There will be considered at thix hearing testi-

mony relating to Communist Party activities

within the field of labor, the methods used by

the Communist Party to infiltrate labor organi-

aations, and the disewination of the Commu: _

nist Party propaganda.

This statement was made immediately before Julia

Jacobs was called as the first witness. Petitioner, at

the beginning of his testimony, indicated that he had

heard Miss Jacobs’ testimony (Gov. Ex. 8, p. 72) and

subsequently reaffirmed this fact (id. at p. 93). More-

aver, counsel representing petitioner had also repre-

sented Julia Jacohs und was certainly present when

the opening statement was made.”

Petit toner contends (Pet. Br. 57) that the presence of his

counsel when the opening statement was made is not sufficient.

G As we have shown, however, there is-every indication that peti-

‘ober was present when the statement was made. In addition,

it would certainly seem that petitioner could be charged with

the knowledge of his counsel when counsel appeared for each

of three witnesses (Miss Jacobs, Henry Kron, and petitioner)

i ‘who appeared on the opening day of the hearings and the three,

through counsel, filed a joint statement objecting to the (Com-

mittee’s authority 4 see cupra, pp. 6-7).

22

ee

37

Second, as we have just noted, petitioner admitted

“knowledge of the testimony of Julia Jacobs. The

questions asked by the Committee of Miss Jacobs—

concerning the witness’ employment and work in the

labor movement and her possible Communist Party

membership—clearly showed that the subject of the

Committees inquiry was Communist activity in labor

unions. (Gov. Ex. 8, pp. 20-56). Miss Jacobs was

questioned as to many of the same activities about

D strike (id: at p. 31), the pilgrimage to Washington

organized by the American Peace Crusade (id. at p.

38), and petitioner’s passport problems (id. at p. 39).

Moreover, Congressman Doyle explicitly restated the

purpose of the hearings during Miss Jacobs’ test:-

‘mony (id. at pp. 43-44) :

[M]y questions are directed to you because we ;

are interested in finding out the extent and

through what persons, and bew, the Communist’

Party in your experience has undertaken to in-

- fluence labor unions wherever vou know any-

thing about them.

May I make this further statement: I am not

interested in asking any question or getting you

to answer any question that deliberately or

otherwise is intended to hurt any organization

which is patriotic and law-abiding. That 18

whether it is a labor union, or whatever it 18.

But J am interested, as I stated before, in get

ting your cooperation if you will give it to us on

helping to uncover any person or any group of

persons wh are undertaking to subvert the

labor union of which yop are secretary or any

3

vlher group-Ww ther own Communist Party

vhjects veo.

The purpose of this committee sitting here

under Public Law 601 is to get that informa-

tion, if we can, from you and others, looking

toward amendments to or strengthening legis-

lation dealing with subversive activities.

Third, during petitioner's appearance before the

subcommittee, he was twice told hy Congressman

Doyle the precise question under inquiry. Before

petitioner was asked the question involved in count

seven, Congfessman Doyle told him that the subeom-

mittee was “trying to find out the extent to which

Communists have infiltrated your union, if they have

the union of which you are the executive vice presi-

dent (see supra, p. 10). Subsequently, at the time

_ petitioner was directed to answer the question in-

mim Sgn, Congpenman eyte dinted (see

supra, p. 12):

* * * T am also interested in knowing what the

witness knows about the extent to whith the

American Communist Party, in connection with

these peace moves or otherwise, was using the

leadership of American labor unions, @specially

any labor union that the witness might have

been a member of at that time of had any con-

nection with. Th® question is the extent to

which the A‘ommunist Party had infiltrated

American labor unions * the extent to

which they were using it then and are using it

new for their conspiratorial purposes.

See also the statements of Congressman Doyle at the

start of petitioner's testumeny and after petitioner

had refused to auswer all the questions involved in

the indictinent (see supra, pp. 7. 13).

—

2. All six of the questions on which petitioner was

convicted were, either on their face or as shown by the

statements made to petitioner at the time, pertinent

to the subject of Communist activity in labor unions.

However, since petitioner was given a general sen-

tence and a fine on all six counts which was less than

the maximum authorized by 2 U.S.C. 192 u any

one count, the judgment below must be affirmed if his

conviction on any one of the counts was valid. E. g.,

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

The question involved in count three—whether pe-

titioner was a the time of the hearings a member of

the Communist Party—was on its face pertinent to

the subject under inquiry. This Court in Barenblatt

stated that the pertinency of an identical question

(see 360 U.S. at 114) ‘‘was clear beyond doubt“ (id.

at 125) to the subject of Communist activity in edu-

cation. It is equally pertinent to the subject of

Communist activities in the labor field.

Petitioner was also apprised of the pertinency of

the question involved in count four [y lou have

left us under the impression at this point by reading

the newspapers you knew that Johnson was thair-

man of the Communist Party of Indiana and Tam

asking you if that is the only way you knew Jobn-

n' (see supra, p. 9). This question, when asked

of an important labor official residing in Indiana,

is clearly pertinent to an investigation of Commu.

nist activities in labor unions. Similarly, petitioner

was apprised of the pertinency of at least half of the

information sought by the question involved in count

six—whether Elmer Johnsun or Henry Aron ever

40

addressed a group of people while petitioner was

present. ,

Before petitioner was asked the question involved

in count seven—whether he knew Russell Nixon to

be a Party member—petitioner had been told by Con-

gressman Doyle that the/subcommittee was investi-

gating Communist control of the U.E. Petitioner

had admitted that he was acquainted with Mr. Nixon

and that he knew that Nixon was legislative repre-

sentative of the U.E. in Washington (see supra,

pp. 10-11). This question concerning the Communist

Party membership of a high union official was just as

pertinent to the subject of Communist activities in

labor unions as the question concerning whether pe-

titioner himself was a Party member.

The subcommittee also explained to petitioner the

question involved in count eight—whether he had “an

active part in the peace pilgrimage to Washington

which was organized by one of the ‘front’ organiza-

tions known as the American Peace Crusade (see

supra, pp. 11-12). The Committee counsel told peti-

tioner that fhe question was directed to discovering

“the extent to which the Communist Party was en-

gaged in manipulating peace moves in this country in

behalf of a foreign power.” And Congressman Doyle

stated that he wished to discover (see supra, p. 12):

a * * * [W]hat the witness knows about the

extent to which the American Communist

Party, in connection with these peace moves or

otherwise, was using the leadership of Ameri-

ean labor unions, especially any labor union

REIS N

?

41

, that the witness might have been a member of

at that time or had any connection with. The

question is the extent to which the Communist

Party had infiltrated American labor unions

* * * the extent to which they were using it

then and are using it now for their conspira-

torial purposes. :

In addition, before petitioner was asked the question

involved in count nine—who had solicited him as a

sponsor of the American Peace Crusade—he was

shown an article of the Daily Worker listing a “John

_Gojack, international vice-president, CERWMA” as

initial sponsor of that organization (see supra, p.

193

IV

PETITIONER WAS NOT ENTITLED TO DISMISSAL OF THE IN-

DICTMENT OR A HEARING ON THE BASIS OF BROAD ALLE- -

GATIONS THAT GOVERNMENT EMPLOYEES GENERALLY ARE

BIASED’

Petitioner contends (Net. Rr. 66) that the indict-

ment should have been dismissed since the grand jury

included government employees who were iased

against him because of the government’s loyalty and

18 Petitioner does not raige the distinct issue whether the gov-

ernment proved at his trial that “the questions propounded by

the congressional committee were in fact ‘pertinent to the ques-

tion under inquiry’ by the committee.” Deutch v. United States.

367 U.S. 456, 468. And since this issue was not presented in the

petition for certiorari, it is not before the Court. In any event.

the evidence which we have relied upon to show that petitioner

was apprised of the pertinency of the questions when he ap-

peared before the subcommittee likewise demonstrates that the

questions were in fact pertinent to the subject under inquiry.

Moreover, the record at the trial included additional evidence

showing that the questions were pertinent to the subject under

inquiry (see supra, 3, 9 at note 5, 10 at note 6, 11 at note 7).

42

security programs. Alternatively, petitioner claims

that he was entitled to a hearing in the district court

to allow him to prove bias. We have shown, however,

in our brief in Shelton v. United States, supra, pp.

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

an indictment merely because government employees

were on the grand jury. We have also shown in Shel-

ton, pp. 64-76, that the defendant is not entitled to a

hearing to inquire into the motives and beliefs of

grand jurors—even if we assume contrary to the hold-

ing of numerous cases that the defendant is sometimes

entitled to such a hearing—only when he alleges spe-

' cific and convincing facts of strong bias in individual

grand jurors. Here, like in Shelton (see our brief in

Shelton, pp. 77-78), Liveright v. United States, No.

11, this Term, and Price v. United States, No. 12, this

Term, petitioner’s affidavit (R. 5-12), accompanying

his Motion to Dismiss the Indictment and for Other

Appropriate Relief (R. 4-5), did not state any facts

underlying his contention of fear and intimidation

among government employees generally resulting from

the security program which petitioner would show if

a ing were granted. Similarly, aszin Shelton,

Liveright, and Price, petitioner did not allege bias or

fear with respect to any individual grand jurors (see

our brief in Shelton, pp. 76-77). In these eireum-

stances, the trial court properly refused to grant peti-

tioner a hearing to conduct a general exploration of

the motives and beliefs of the grand jurors.“

While petitioner relies on the contentions made by the peti-

tiomer in Russell v. United’ States, No. 8, this Term, in that

case the petitioner did state some facts which, if proved, would

43

V

‘THE INDICTMENT WAS NOT REQUIRED TO SPECIFY THE

SUBJECT UNDER INQUIRY OR TO ALLEGE THAT PETITION-

ERS REFUSAL TO ANSWEL WAS WILFUL

The indictment upon which petitioner was con-

victed alleged that the questions petitioner refused

to answer “were pertinent to the question then under

inquiry and that “the defendant unlawfully refused 9,

to answer those pertinent questions“ (R. 1). Peti-

tioner claims (Pet. Br. 59-65) that the indictment

was invalid because it failed to specify the subject

under inquiry when petitioner testified or to allege

that his refusal to answer was wilful. =

As we have shown in our brief in Shelton v. United

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

the indietment was required, to state the specific sub-

ject under inquiry is inconsistent with Rule 7(c) of

the Federal Rules of Criminal Procedure and with

decisions both of this Court and the courts of appeals,»

As to petitioner’s 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 indictment alleges that the witness has “unlaw-

fully“ refused to answer. ;

tend to show thst government employees would be biased in

cases involving Communism. ‘In Russell, however, as in this

case, the petitioner was not entitled to a hearing betause he

did. not allege any facts as to the bias of any individual grand

jurors. See our brief in Russell, pp. 37-38.

<=

—

.

CONCLUSION

For the foregoing reasons, we ‘respectfully submit

that the jndgment of the court of appeals should be

affirmed.

Anna Cox,

Solicitor General.

J. Warten YEAGLEY,

Assistant Attorney General.

5 Bavce J. Tn.

ao. Assistant to the Solicitor General.

Kevix T. Maroney,

Doss Sram,

Rosger L. Kevcn,

cn Attorneys.

—

——— ee ee ee en

i

j

—

* ‘

- 72 APPENDIX:

Shelton, No. U | Russell, No. *

N Senate House =

Pet. Br Oo. r. Pet.Br. | Gov Br. | i

- | 55

: I. Avtwonity oF THe Commirrex 7 a

1. Enabling resolution is vague __. Not raised Not raised Not raised | Not raised

2. Subcommittee was not authorized by parent committee Not raised . Lot raised | Not raised | Not raised

3. Committee did not authorize hearing Not raised Not raised | 57 2

4 Subcommittee was not a competent committee Not raised Not raised 1 Not raised | Not taised

5. Subcommittee did not apprise witness of its authority Not raised Not raised Not raised | Not raised

II. Pextinency .

| 5

1. Government failed to prove pertinency at trial 58 63 22 24 84 66 32 36

2. Witness failed to object to pertinency before committee 58-63 25-32° | Not raised | No: raised

3. Committee failed to apprise witness of pertinency a 58-63 32-41 | Not raised | Not raised

III. Constitetionat Question |

i 2

1. Inquiry violated the witness’ First Amendment rights 53 57 4 62° | Not raised | Not raised

2. Committee was not acting pursuant to a valid legislative purpose Not raised Not raised 51 355 20 41

3. Committee was acting withont probable cause 29 37 4 48.“ 50 62“ Not raised Not raised

— IV. INpicTMENT * |

1. Indictment was invalid because grand jurors were government employers 4 62 64° 23-41 37 38

2. Defendant was denied a hearing to examine a on 2 64 64 78% 40-41 *

3. Indictment failed to allege subject under inquiry | 63-64 | 78-83" 41-50 3 |

4. Indictment failed to allege pertinency of questions _- | Not raised Not raised 50 3 39

5. Indictment failed to allege aut horit g of subcommittee. g Not raised Not raised Not raised | Not raised |

6. Indictment failed to allege wilful refusal to anawer : Not raised Not raised | Not raised | Not raised

7. Witness was indicted and co. victed on separate counts for each refusal to Not raised Not raised 60-64 15

answer ; |

V. Taran 8 | 5 |

= i t

Trial court denied right of cross-examination _ - Not raised Not raised Not raised No raised |

2. Trial court denied motion to subpoena co umittée’s files 29 59-60 i

Kot raised |

een argu . more than one ease, are indicated in this chart by asterisks.

—

Whitmon, No. 10 Liveright, No. 11 Price, No. 12 Gojack, No. 128

Pet. Br. | Gov. Br. Pet. Br Gov. Br Pet. hr. Gov. Br Pet.Br. | Gov. Br. |

5 N se

| 4 7

47 46 21 34 19 28 34-36 @ 19-22 Not- raised | Not raised |

4-47 21 23 Not raised Not raised | Not raised | Not raised | Not raised | Not raised |

48-50 23 25 Not raised Not raised | Not raised Not raised | Not raised | Not raised |

Not raised Not raised , 35 42 28 33° 43 44 22-23 Not raised | Not raised

50-52 70 31 Not raised Not raised Not raised | Not raised Not raitd | Not raised

200 42 43 50 16 28, 47 4 4448 | 22-27 20 31 Not raised Not raised

4246 340006, 28-31 36 37 28-29 =. 2426 | 57-58 |-. 33-86 =

5 as 40 4:; | 28-341 37 44 28 29 Not argued 57 58 36 41

| . 2 ee

l |

52-58 23 37 $5 34-35 7-43 23 42-50 32 33

Not raised ¢ Not reed Not raised Not raised | Not-raised Not raised 24 49, 53 56 18 31

ot raised Not raised Not raised , Not raised * 22 8 41 Not raised Not raised

7

8 > ae

— - *

Not raised Not raised | 42-47 48 49 445 , (31 32 66 41 42

Not raised: Not raised | 46 48 49 44 (31 2 tf 41 42

8 8 32-58 16 50 16-18 32 33 59 65 43

53 | 16 * 18 n Not raised Not raised

aoe 16- | Not Taised ; 18-19 33-34 Fot raised Not raised

Not raised Noi raised | 16 je 1“ 20 33 65 43 5

Not raised Not raised No sate Not raised Not raised | Not raised Not raised . Not raised —

4

7

x5 eer a

Not raised®) Not raised 31-34 85-57 0 % 3% 3% Not raised | Not raised

Not raised | Not raised 31-34 318 30-34 | 34-48 Fot raised Not raised

JJ! eee Ae ee Reed

„ 42076361 (Pace'p. 447 Fe

* . — f ts 5

4 — g . 5

\ : op

a” N 1