# Brief for the United States — United States v. Brown (No. 128) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386410_0094%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the United States - **Published:** January 1, 1961 ## Text INDEX % cv aviiviakintpchabebiebvnatevacnne sacha PE acbapdecdedipvbcerudehatcdcsndpacdap 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. 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386410_0094%3A3. Public record. Not legal advice.