# Brief for the United States — Yellin v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386410_0242%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the United States - **Published:** January 1, 1963 - **Citation:** 374 U.S. 109 ## Text Questions a ee eee ue Statutes and rules nidiued. .. ap ey he hee ‘Statement... SFP er rere > Summary of ome... Ne, co DU cf: goes I. The Committee's inv estigation of C om- munist activity in basic industry was ‘pursuant to a valid legislative purpose and did not violate the First Amend- . ment- A. The gov ernment: al interests at stake outweigh the -individual ' interests in _ these ‘particular r adil circumstances: Auree as B. The trial court properly excluded expert testimony concerning | | the First. Amendment issue _- II. The statute under which petitioner was convi¢ted is not unconstitutionally . vague... .__- , _ ITI. The Committeg’s rules did not “require the Committee to grant petitioner’ 8 request | to. appear at - an executive | session ._.._.----_._. a _ FV. The questions which were . the basis for Counts. 2 and 4 were not too vague to support the indictment. - wer eiae Conclusion... ---.....----- Peas ake eens 2 29022421 a why — _ | 16 c te nz 23 26 33 II ' CITATIONS Cases: ; ) ( Page © American Communications Ass’n v. nn s yf. 5 eee ae 32 Barenblatt v. United States, 360 U. Ss. 109. yes . 16, 12, ¥9,-21, 22, 28, 24, 27, 32, 33, 35, 41, s. “42, 45. Braden v. United States, 365 U.S 431__- ae = — oo eae . 19, 22, 23, 32, 33, 35 Carlen Vv. Senin 342 U.S. 524..._:_-.__-:: . 3 ‘Dennis v. United States; 341 U.S. 494_______- . 2 Deutch v. United States, 367 U.S. 456_.._._._ 42, 43 Kessler v. Strecker, 307 U.S. 22...-...--.--- ‘40 United States v. Debrow, 346 U.S. 374... __. 40 Sacher v. United States, 356 U.S. 576_ . Ji Watkins v. United States, 354 U.S. 178____- 34 W ilkinson v. United States, 365 US. 399. 17, SA ' * 19, 22, 23, 24, 32,33, 35 Constitution: : ; : First Amendmnt_- 4, UL, 16, 18, 22, 24, 26, 31, 32, 35 ‘Sixth Amendme:...----. 2-2. . - 20,39, 40 - Statute and rules: - Subversive Activities: Control. Act of 1950, Title I, § 2, 64 Stat. 987-989..-.._. | 32 2 U.S:C. 192... ; 2, 19, 33, 40, 43 Federal Rules of Criminal Procedure, Rule 7 Oe .:. | 20, 39, 40; 41 Rules of the Supreme Court of the United States Rule 40(1)(d)(2)_-_.- Serena: ee F Congressional material: ~ : Hearings before the Committee on Un-Ameri- can Activities, House of Representatives, * _ 85th Cong., 2d Sess., entitled “Investigation of Communist Infiltration and Propaganda Activities in Basic Industry (Gary, Inc., |g PN a 3, 4, 5, 6,7, 8, 9, 10/11, 14, 43, 44 a Congressional material—Continued Rules of Procedure, House Committee on Un- - American Activities, Rule IV-A__ 2, 19, 20, 37, 38 Rules of the House of Representatives, as amended by the Legislative Reorganization, ~ Act of 1946, Chap. 753, Sec. 121, 60'Stat.: Rule XI... .--.-.. 2-2 -------- 2,19, 34, 35 Rule XI, Sec. 26(m)_......_.........- 2,38 Page In he Supreme Court oh fhe whit Bites OcTOBER TERM, 1961 ma 4 No. 477. Epwarb YELLIN, PETITIONER > | Ny ae / v’. : Unitep Staves or AMERICA 2 - the ns ' z ‘ “ ¢ 7 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS: i THE SEVENTH CIRCUIT BRIEF FOR THE UNITED STATES “a ; | » OPINION BELOW The oe. ‘of the court. of appeals i is id at 987 F. 2d 203. i ay: a ee , JURISDICTION * . . The judgment of the court. of appeals was entered ’ on February 16, 1961, and a petition for rehearing was denied on April 3, 1961. On April 21, 1961, Mr. J ustiee Black ‘conte ded the time to file the peti- _ tion for a writ of certiorari ‘to and including , June | 2 1961. The petition was filed on May 31, 1961 and certiorari was granted on October 9, 1961 (R. 299). . as The jurisdiction of this Court is invoked under 23 aa | GSC.12554(1). 0 2 a. | fl) eee enireman QuEsriows PRESENTED nee; as ‘, House Un-American Activities Committee concerning - was pursuantto. ayalid legislative purpose consist- ent with petitioner’ s rights under the: First J endment. 7 * 2. ‘Whether the trial “eourt: ‘erred, i in ‘exchiding ex: ~pert. testimony on the factors which should be con-' pe under the First Ameridment. \ | - . 8. Whether petitioner was. convit cted under a stat- ute which is thednstitutionally vague... \o- ee \ oo Whether the_ Committee siobited, oe own rules eae refusing to question petitioner i in m exeeyhive STATUTES AND| RULES INVOLVED — ah sey Seetion 192 of “Title 2, USC. (RS. Be eaerEKE and the ele portions of als ‘in petitioner’ s brief at pages a4. | . | “STATEMENT. aa te ot ie Petitioner’ “was charged in‘ a‘ five- count: indictment with having refused, in violation of. 2 U8. C. 192, to \ } sani ansyer, questions \pertinent’ to” the matter under. in- quiry asked himi by, the -Committee gn. Sey voor * Activities ‘of the Hotise of Representatives. / Count 5 ~ 7 was distfissed on motion of, the: government (R. a8). - ‘ tioner r guilty - as” “char rged ‘in Counts ‘1,2, 3, ‘and 4, ' Upon a trial without a jury, the court found peti-. -~ pie. ‘The c ase mens a sentence of one vear on each ch count, ; ae —_ 1. “Whether the questioning of | titioner by the ae his: membership . in the Communist | Party and the oo. Party s program of “eolonization”? of the oe and se ~ sidered by the court in determining petitiqner” Ss rights ees. 7 The ‘the: mone sinning: pr a. _o of $250 (RV 116-118). The court i es uae the. con- viction. : | v . The pertinent facts. may be summarized as follows: pe ommittee on Un-American — Activities ithe asséd a resolution on January 15, 1958, providing that hearings would be held:in Gary, Indiana,’ ‘to i inquire’ ; into (Hearings,’ p: 1956) : : ¢ > 1: The éxtent, character, and ‘dijo ts. of Com: ’ ~‘munist infiltration and Communist Party prop» " aganda activities ‘in basi¢ industry_i in the Gary, Indiana,.area, the legislative purpose ‘being to’ obtain ° additional informationsfor use by the Committee in its. consideration of Section 16 _ Of H.R. 9352,. relating to the propos amend- ° ment .of ‘Section 4 ‘of the Comm ‘ist’ Control. 53 Act of 1954, prescribing. a penalty for know-. _ ingly and willfully becoming or remaining a member -of the. Communist Party with -knowl-, edge of the. , Purpose or objective thereof; arid — for the additional legislative purpose of adding | _. to’ the Committee’ s- overall ‘knowledge on the ~ a. subjeet=s0 tha Congress maybe kept. informed and thus prepared to enact remedial legisfation in the. national, defense. and. for internal -secu- -Tity’ ‘when ang f the exigencies of the situation Cis i "require __ nee 2. Executio “by” decal agencies: | _coneer red. of Public Law 637, of the: isl Con- > — -1 Hearings before the Cor mittée on Un- heinhiitg Actiti ies, House of Representatives, 45th Cong., zd Sess., entitled “In- . _ Yeatigation of Communist Infiltration and Propaganda “Activi- ties in Basie Industry (Gary, Ind., Areax“ This document, ‘which is hereinafter _teferretl to fo as-“Hearings,” constitutes Gov. Ex. 15. . 3 : Leer aa i ~ designate. | subcommittee was A eee vod ee! gress known as the “Communist Control Act - of 1954’’, relating to the eligibility to exercise . the’ rights and privileges provided under the National Labor Relations Act of labor organi- Bee zations determined ‘by. the Subversive Activities Control Board. to be Commynist-infiltrated or- ganizations. The legislative purpose is to .as- ‘sist Congress in appraising the administration of the Communist Control Act of 1954 and * to, enact - such amendments ‘thereto as the : exigencies of the situation require. inted to ‘eonduct this hearing, send _ Petitioner was arc ‘appear. ‘a the hear- _ ings in Gary on February 10, 1958. His counsel sent a telegram to. the Committee’s. counsel on February 6, 6, 1958; asking that petitioner be questioned in execu- | tive sersion because “[t]estimony needed. for legisla- ) 3, Any other matter within the juriadiction s f the Committee which it or any subeommittee tive, purpases can be secured in executive session — _without exposing: witnesses to publicity” ( Def. Ex. 1). ‘On that same date, the Staff Director of the Commit- ° tee telegraphed. petitioner Oying the request. — nie |, Sas eae Public. hearings were held in Gary, Indiana, by a aubeommittee on February 10 and 11, .1958.. At-the opening of the hearing on February 10; the chairman of the Committee, in petitioner’s presence. (Hearings, p. 1977), read the abave-qnoted . resolution. of the : Committee authorizing the hearings and explained. at . lencth the purpose of tl e hearings in Gary (id. at 1955-1957). ‘The’ elipirn stated, inter alia, that the wn ‘in Gary. for’ the — of re- | ; + oie ee * rat -y 5 ceiving testimony concerning’ Communist techriiques and tactics of infiltration and the extent, character, and objects: of Communist Party propaganda activi- © ties in basic industries”; that such an inquiry had great importance to‘ interhal security; that the hear- ing was intended as part of the Committee’s ‘“sur- veillance over existing security legislation,’ including . the Internal Security Aet, the Foreign Agents Regis- tration Act, the Communist Control Act, and various espionage statutes ‘‘for the purpose of recommend- : ing any needed ‘legislative amendments”’; and that the | Commitfeé hoped to secure information useful in its © consideration of H.R. 9352, an omnibus bill to amend the Internal Sécurity. Act of 1950, which was pending before it (id. at pp. 1956-1957). a 2 ‘Petitioner was present (Hearings, p. 1976) at the ~~ —~time_Joln Lautner, the-first_witness at the hearing, — testified (id. at pp. 1958-1974). Mr. Lautner, who | was ‘an- organizer and high functionary in the Com- °° munist. Party from 1930. to 1950, testified that in 1945 the Party condemned the “revisionist” policies which it had followed under its ‘former leader, Earl “Browder, and returned) to the basic principles of !Marsism-Lemaism ; thaf, after the Party was recon- - stituted, it re-established its policy of concentration in bas'> industry;.that as a result of this policy “eolonization™ was begun, and Party “colonizers’’ were sent to.all parts of the country-to coordinate Party me _ work in basic industries: including the steel industry Ud, at pp. 1964-1965) ; and that these colonizers were 4 Se geuerally young Party, members from colleges and — universities who left ‘to become “professional revo-: ‘ =. ose, | — / - | 6 . aa a) \ ets, : i | lutionaries\’ €id. at p..1967): Mr. Lautner further testified ‘that (id. at p. 1968) : 3 Lenin said: ; ‘It is necessary to be dhe to withstand all _ this, to agree to'any and every sacrifice, and)... = 'éven—if need be—to resort to all sorts of de- i » Vices, manoeuvres, dnd illegal. methods, to evasion and subterfuge, i in order to penetr ate into the trade unions, to remain in them, and. to carry-on Communist work i in them at all ‘eosts.”’ , 7 ° This is the underlying prinéiple’ on the: hasis | of which: these people [the colonizers] will deny their name, will deny their education, will - ‘deny ever ything,, because that denial furthers — ‘the aims and object ives of the Communist ° ‘Party. It would be a liability’ for him ‘to be a worker in the mill‘if he has a college de-- gree; it wouldn’t look ,good. ,There would be immediately a suspicion of an ulterior motive in that,..so thev are carrying out a Leninist policy when they do, that. Petitioner, the second witness appearing on Febru- vary. 10, was questioned’ immediately after Lautner (Hearings, pp. 1974-1988). Petitioner answered pre- liminary @iiestions as to. his name and present resi- ‘dence. ‘When the Committee chairman refuséd to allow petitioner's counsel to read into the record the telegrams between himself. and the Committee, peti- tioner’s counsel stat ge he ‘would be satisfied if the record showed that the exchange of telegrams tad octurred (id. at }p. 1974). Petitioner then re- fused to answer the some “Where did you feside. 7 prior to’ ‘September, 9571" (Count 1) (id. af. pp. 7 / . ~ 1974-1975). He nan as his grourids for ‘refusing « v ° : i os . 5 to answer that the First’ Amendment forbids Con- gress to investigate opinions and beliefs; that the authorizing resolution. of the Committee is so vague that it might deprive him of due process of law; and that’ the question was not pertinent to any legislation (id. at pp. otb-1977). After pe titioner was directed to answer the question, he explicitly stated that he relied/on the First Amendment and not the privilege against self-incrimination (id. at p. 1977). Appar- _ently i in_doubt Whether petitioner was challenging the pertinency of the question to the subject under in- quiry, the couimittee counsel ascertained that peti-” tioner Was present-avhen-the chairman, made his open-, ing statement which explained the purpose of the hearing and then stated” (id. at p. 1977): | ~ This is a hearing whieh involves a subject ~deseribed by the chairman, and it. ‘relates to Communist Party activities | ‘within the area of Gary. As far as pertinency of the question is concerned, as to which you seem to express some. doubt, it ‘would be impossiblg_for us to learn anything from you regarding Commu- nist’ Party activities in this area without ascertaining whether or not you were here for a period: of time. = Fetitione ‘r then was again directed to neni . the question and: he again refused (id. at p. 1978). Petitioner. next was asked: ito state his formal edu- cation. / He refused to answer becaese ‘the question could serve no legislatiye purpose and. violated’ his ‘First Amendment rights (Hearings, p. 1978). When -asked whether -he aeay 4 student at the College of the . ‘= : » ms / . 7 4 . ‘A ‘ p ae ae 4 ‘ . 8 City of New York for several vears. prior to 1948 he invoked the same grounds and said (ibid.) : [I]f the committee knows all these things, 1 can't see the purpose or the pertineney of ask- — ing me what they consider a known fact. Furthermore, it kind of appears to meas if. this line of questioning is merely trying to — create an impression and expose me for the sake of merely exposing me and not ee to any valid legislative purpose. The Committee chairman then assured petitioner that it was not the purpose of the question to expose him. ‘The Committee received in evidence copies. of peti- tioner’s. college reeord showing that he transferred from the College é6f the City of New York to the University of Michigan and from the College of Literature, Science and Arts at the University of. ‘Michigan to its ineering Department in 1948 (Hearings, pp. 1979, 1981) and petitioner's ap- " plication for employment at the Carnegie-IIlinois Steel - Corporation dated June 23, 1949, whieh left blank the line asking for the applic ant’s: college educ ation (sd. at pp. 1982, 1983-1984 ). _ Petitioner refused to o answer whether his name.was at the bottom of the latter application, where he was. residing on June 23, 1949, whether he lived at a specified address in Garv at that time (as the application for employment said), whether he was: ever employed at the Reo Motor Company in Lansing, Michigan (the application stated that petitioner had been-employed at Reo from 1946 . to February 1948), ‘whether he had been employed by Modern Distributors from February 1948 to April _ Ves / ee oe 1948 (as the employment application showed despite the statement in the University of Michigan records that he was at the. University from February 1948 until] June 1949), wether he was employed by Iteo from April 1948 to May 1949 (as the. employment application alsu said), why he had failed to include on his employment application his education at the College of the Cite of New York or the University vf Michigan, and whether “at the time you sought that empiovinent in Gary, Indiana, in steel, you aa 8 doing it at the instance or under counseling from the Communist) Party or leaders in oo “Party” (id. at pp. 1982-1985). Petitione éfused to camswer all these qitestions for the same reasons he had eabaer ~.ateu. Bw ‘tithoner Wie then asked, ‘*Will you tell the eom- mittee please,-whether or not incidents came to your , attention of the colonization of the steel unions in Gary by. the Cofamunist ‘Party at any time prior to | September 1937 7" (Count: 2) (Hearings, p. 1985). When petitioner refused to answer for the sume rea- ; sons, the Committee counsel again explained the per- Armency of the question (id, at p. 1986) : It has been testified here ‘that colonization of ‘voung men in the middle of their educational courses in industry was: a deep-seated plan of » the Communist Party: to strengthen itself ~ Within basic industry. The chairman’s opening statement itidicated that the activities of the Communist ‘Party within basic’ industries was the subject of inquiry here. St , Py — ; * . * % % ne / ~ 10 : ‘The statement was made here of the practice ; of the Communist Party in colonizing industry at Flint, Michigan; at the University of: Colo- rado, which, is at Fort Collins, € wlarddo,. where you now reside; and other places. In order to understand the full tacties of the Communist: Party in its operations here in Gary, it is necessary the committee understand fully the extent of such practices, the full pur- | poses of it, and the methods by which it is put into effect: That is the connective, reasoning | ‘of the committee in asking the question. ‘On the grounds already stated, petitioner dec'inéd to answer whether he was a member of the Neafus Club : of the Communist Party at the University of? Miehi- gan, whether he | Was acquainted with: Franeis X. T. 4 rowley at the University of Michigan, aml w hether Crowley. was correct when he testified before the Committee in 1954 that petitioner Wi AS 3 member with him of the NeafusClith (id.at p.1987). y Petitioner refused, for the same reasons, to answer ‘the question; “Were vou a member of the C ommunist Party on the 23rd day of June, 1949, whieh is the date of application filed in your name for employment in » Gary?” (Count 3) i Hearings, p. 1987). He similarly: refused to answer whether he was active in the Amer- ‘ean Neterans Committee prior to June 1949, ‘and whether he was acquainted with Edward: Shaffer. of — Pittsburgh. Petitioner was shown a copy.of the — Detroit News dated’ Jannary 7, \1949, reporting, that three students, including Edward Shaffer of Pitts-_ burgh and petitiorer, resigned froin the University of | 11 b-—Michigan Chapter of the American Veterans Commit- tee after the Committee in_ its annual eonvention adopted a resolution calling fer the ouster of members belonging fe the Communist Party. Petitioner re- fused to answer whether this report was correct Cid. af pp. 1987-1988). He then declined to answer, “Will vou tell the committee. whether or not ity 1957 there Vere present in any of the: steel unions at Gary, In- diana,. persons who were known to vou to have ikea. colonizers: of the Communist Party’? (Count 4) (cd. Jat p. 1988). Finally, petitioner 1 refused’ to. answer | three more questions : whether he was a member of the Communist Party in August 1957; what stand did the * Party take in Gary regarding the acts of the Soviet Cnion in Hungary in 1956: and whether he was at the time of the hearing a niember of the Communist Party (ibid.). . ; Latter on February 10, the subcommittee heard the testimony of Joseph LaF leur, who worked in the steel ‘industry in Gary and had joined the Communist’ Party at the request of the F.B.T. He discussed at ‘length. Communist activities in the Gary area and im the steel industry in particulars Mr. LaFleur deseribed peti- tioner as one of several well-educated, young Party. members who had come to Gary to help organize Party activities in the steel mills (Hearings, pp. 2016-2017). Subsequently, the ‘Committee asked two. other. wit- nesses Who worked in the steel industry. whether they - were acquainted with petitioner. Both refused to answer this question, as well as numerous other ques- tions concerning Communist activities, on the a Of the First Amendment (id. at pp. 2055, 2063).” > c "42 -2. At petitioner’s trial, the government 's sole wit- : ness was Frank S. Tavenner, counse] for the Com- mittee, who was present at the Gary hearings and interrogatéd petitioner.: .He testified that the-purpose . of the hearings was, ‘‘to find. out how serious the Com- . munist propaganda activities and infiltration were in -° basie industry, particularly. with ‘regard to the steel industry in this area’ (R. 18); that the reason that ’ the Committee wanted the information was that it had held a series ‘of hearings on:this subject in Baltimore, Youngstown, Ohio, ‘and’ other places; and the Com- _* mittee was of the opinion that it might, be necessary to amend various acts of Congress to “tighten up laws ; "with regard to Communist activities in this field’’ (R. 18); and that the Committee considered the steel in- dustry to be the most important basic industry in the — country, and Gary, Indiana, was one of. the centers of the steel industry (R: 25). . © Tavennér further testified that members of the Com- mittee iritroduced several bills around the time of these hearings ‘relating to the internal security field: H.R. 2369, sponsored by Congr essman Walter, the - Chairman\of the Committee and of the subcommittee , holding the shearings in Gary; to redéfine the, term | “organize” ‘as used in’ the Smith Act so as to include tS ‘ continuing acts of organizing (R.27); ° - ‘ The Defense Facilities Protection Act of 1959, in- ‘troduced by Congressmai Scherer (who was one of the members of the ‘subcommittee holding the hear- ings in Gary), to permit the federal government to guard strategic defense -fecilities against espionage, 2 sabotage, and other subversion (R. 23) ; . - J J 4 ~My : 13 -— H.R. 935 2, an omnibus bill introduced by Congress- man Walter to amend the Internal Security Act of 1950 (Gov. Ex. 14; R. 23-24); - H.R. 8121, a bill-to amend the Subversive Activ- ities Control Act of 1950 by authoyizing the Secretary. of ‘Defense to provide: for a security: program with respect to defense. cont actors. and their en dloyees ; } (Gov. Ex. 18; R. 65). - Tavenner stated ‘at the trial that prior ‘to ‘ealling PD Naat the Cour mittee. had information that peti-: tionér was a member of the Communist Party while cat the University of Michigan in. 1949; that he had previously attended City College of New York: and that he had’ filed an application for employment in 1949 at the Carnegie-Illinois Steel Corporation in , Gary, Indiana, in which he failed to set out ‘his col- lege and university, education i 34-35): Tavenner testified that. the Committee warited to find out from _ petitioner what knowledge, he had of the execution of the Communist Party’s plan to colonize the steel in- ¢.™ . dustry (R. ¢ Ss: .* Didi ea % On cross-examination, Tavenner st that. it wis “the practice of the Committee ‘to interview” prospec- tive witnesses before subpoenaing them “if there is any chance in the world of obtaining co-operation from them’ (R. 53). Peti loner Was not: interviewed since. he was then in ae Tavenner admitted, _howéver, that 4f petitioner had heen in Gary, he prob-_ ably would. not have been Interviewed, even though» the Comnitte e did not know whether he would coop- erate, since the Committee had information that he Was a member of the Communist Party (R. 53, 58, semen 62 — ° ond 4 ail : mao rai e+ 7 any Ye ‘ 2 i TAS, ; - ¥ . * ape ° . ; * . 2 aA j ° " ae ay . : oa gts fa 14 : : * boos ye. pane er : ialoaiaad: ‘that: the Co wnittee. aia: _. poenaed petitioner to’ testify with the hope he would J Tooapernte (R.. 52-54) and, inform the Committee -.whether. he had concealed -; facts-on- his employ meit: ; oe aa ~ application ‘“pursuant’'to-a Communist Party plan.to ~ ". eolonize [the steel] industry,’ aiid ‘the.extent to ‘which: that colonization. was progressing” (R.. 53). Taven- exc: ner ‘explained that the Committee bélieved . that peti- ss “1 toner, had‘ information which had not been presented by any, of the witnesses at. ‘the Committee’ Ss previous iy hearings on the. — s clio concentration pro- ° - gram (R..55): ee , ne ge We ‘knew ‘dian about the: actual activities. any 0 "the. ‘Communist Party in the steel -plarits in ~ ‘ Indiana ‘as of the tinte ‘of ‘this hearing, or _ shortly ‘before. ‘Mr., LaFleur; who did testify. [at ‘the Gary hearings], according to my recol-" — = Jeetion’ got out of the. Communist Party: in 1950.7 © This- witness, Mr. Yellin, as ‘to whom “we had testimony by several: people, had been "a member of the Communist Party at, Michigan. University, and had ‘left: thére: and come ‘down ‘and takeh ‘employnient i in Gary. Pavenner later testified (R. 57) : Now, with that .information’ relating: té Mr. Yellin, we. felt. certain that Mr. ‘Yellin was in - .. a position, if he would do so;"to.tell this Com-" -. - comnittee: a. great many things regarding: the plan |” of the*Communist Party toNinfiltrate the steel se ook industry here, and’ to, biilding up the Conimu- ee Ys ‘Party from its grass roots level, and just. 9. - | “4 7 “this: Court. in :-Barenblatt: v. . United States: 360 U S. =, 109, Ww iikinson v; United States, 35 &.S. 399, and. Braden v. United States 365 U.S, 431. ‘There, the we ‘Court, held that, in. circumstances comparable to. the - “pe sent case, Congr essional inv estigation of Com- munist’ activities has ‘a valid legislative purpose and? “committees conducting such investigations may com- ea -pel witnesses to testify converning their: Communist, -aetivities without violating their, rights under thé First _ Amendment. vs Pn gee fx. -Fhe governmental batacent in ‘this casé ey en more. clearly: outweighs the individual: interests than in the * Barenblatt’ ease. Here, as in Barenblatt,- there is no iridication that the subcommittee was attempting: to pillory. the witness ; the wittfess did not appear as a -— yesult of indiscriminate dragnet procedures lacking ieee probable cause for belief that he possessed inf. ‘ormation which might be helpful to-the Committee ; and ‘fhe relevancy of the’ questions * * * is not. open to * doubt.’ - Moreover here\the Committee was investigat- ‘ing Communist activities in basie industry, an. area ~ which jis less directly. protected. than the field of educa- ~ tion that w as involved in Barenblatt; and which is .of°" abviously great importance to the national security. _ Petitioner contends that the Committee liad no gov- ernmental interest. in. questioning him because it had: all the \nformation: concerning ‘Communist activities ~ which petitioner eould have’ supplied. Even if, how- _ ever, the. witness had no new information, there is.a + ee strong’ governmental. interest in having the witness ’ corroborate previous testimony —partienlarly since the “existing evidence, is in ‘a controversial area and is S r ° ‘ 5 -? ) -S a therefore likely to be challenged. In addition,, while the Committee had conducted hearings on Communist. activities in the ‘steel industry in other localities, it | | had ‘conducted no such investigation oh the related, but distirict, subject of ‘Communist activities in the steel industry in Gary, Indiana. There is no evidence in the-record that petitioner could not have provided tn - valuable information on this subject. Petitioner could not unilaterally determine—by comparing: his own . knowledge which, he ‘has not disclosed with the in-- formation possesspd by the Committee—that he could supply no new information. B. The. trial court properly satin the testimony of Professor Emerson ‘concerning petitioner’s s claim . which the court might at stake.”’ Professor that his, rights: under the First Amendment had been | - violated: ‘The - questions asked Professor Emerson sought: his “opinion\” “as to the various factual con- | siderations which have to be taken into account in balaneing the compethg public and private interests Smerson’s answer principally described what legal faktors ‘the. courts should con- sider and what weight ide be given to each of these factors, not - ‘factual evidence relating to. the factors nsider. While this state- ment could properly be presented .as legal argument, the trial court correctly: held.that. it was not evidence. Even if, however, Professor Emerson’s statements . were properly admissible, petitioner's conviction 7 should still be sustained. . The statement was offered | solely i in relation to the First Amendment issue, which - was a question of law. “ Since the entire statement is in the record, it can properly be considered by this. Wee Court. _ Professor Emerson, however, added . little cas to the basi¢ conténtions. already. “considered by this Jourt. in’ the Barenblatt, Wilkinson, ‘and Braden eases, ‘Therefore, we submit: that “here, as in those 7. Cases, the: Congressional investigation’ of Communist activities ‘did not violate the First Amendment. - é f is | : = ; i IT Petitioner contends that ‘the statute iinder hie “he w as. convicted is unk constitutionally ‘vague., Pet tioner, however, Was conv icted of violating 2 U.S.C. 492, ‘the contempt-of-Congress statute and this: Court : has repeatedly uplield convictions. under that. statute. The argument is in reality aimed, not at the statute under which petitioner was convicted, but at the House. resolution authorizing the Committee. _ House Rule XI is, of course, not a cr iminal statute, and therefore this _ Court ‘has never construed it as one. The Court has three times held that House Rule XJ is sufficiently. clear to authorize the Committee | to compel testimony in an investigation into Communist activities. Barenblatt . v. United States, supra, 360 U. S. at ‘117; Wilkinson Vv. Ui nited States, supra, 365 U: S. at 409; Braden V. nee nited: States, mes, 365 U.S. at 433. Td | ‘Rule IV-A of the. Committee’ S rules did not re/ quire that. petitioner’ ~ request to appear: ‘at ay execu- * tive session be eranted.) Rule 1V-A prov ides that a ‘witness may be heard im exceutive ses sion whenever “a majority of the Conmittee adie believes that the inter rogation of a witness in a publie ‘he aring might / | 20 ees injure his reputation.” Clearly, this rule does not give a witness a right, upon request, to appear at an executive session ; instead, the rule leaves it to the discretion of a majority of the Committee whether: to interrogate the witness in executive session. The evi- dence here showed that the Committee had. considered the matter and decided tliat petitioner should not be . ealled in executive session. Even if Rule IV implicitly ' provided for judicial review—which we do not think it does—there is nothing in this record to. suggest that the Committee. abused its discretion. ; _ . Petitioner contends that. the questions involved in Counts 2 and 4 are too vague to meet the require- ments of the Sixth Amendment and Rule 7(c) of the .-Federal Rules of Civil Procedure. Petitioner, how- ever, is precluded \from ‘raising this issue because it ‘was not presented i ‘his petition for a-writ of certi rari. Rule 40(1) ¢ ) (2) of the Rules of, this Sok In any event, the ‘Sixth Amendment and Rule 7(¢) require ‘that “Tt}he indictment * * * be a plain, con- cise and definite written statement of the essential - faets constituting the offense charged” (Rule 7(¢)), so that the aecused can adequately defend -himself and prevent a second prosecution for the same of- fense. ‘The indictment clearly stated all.the elements | of the offense, including the questions which ‘peti- tioner refused to answer. The fact that the indict- ment did not spell out the meaning of the questions — did not prejudice petitioner since no possible defense r 2) turns on their meaning peer that the. reason peti- . - tioner had not answered’ the questions is that he did _ rs not understand them. But that issue—which peti’ tioner | specifically refuses to ‘elaim—depends — on whether the witness understands the question ‘at’ the time he refused to answer before the ¢ ge it would do no good, on that issue, to explain the ques- tion subsequently in the indietment. ARGUMENT f . Petitioner was convicted for refusing to. answer four questions asked hitn by a Congressional commit- ~ tee during an investigation of Communist activities in basic industry, and particularly in the steel industry, in the Gary, Indiana, area. Two. of these: questions— -where he resided prior to September 1957 (Count 1),. and whether he was a Party member on June 23, 1949 | (Count 3)—concerned only his own Party activ ities. The other two questions *_whether he knew of Pafty colonization in the steel unions in Gary before 1957 (Count 2) and whether there were Party ‘colonizers in the steel unions in Gary in 1957 (Count 4)—con- cerned the Party activities of other persons but did not require the divulgence of their identity. Since, petitioner was senteneed to serve concur rent terms of ‘imprisonment and to pay ‘a°fine which was less than ~ ‘the maximum authorized by the statute under any one éount, the judgment below must be affirmed if peti- tioner’s refusal to answer any one of the questions was unlawful. E.g., Barenblatt v. United States, 360 U.S. 109, 119. a ~ 3 The indictment contained five counts, but Count 5 was dis- missed on motion of the gov ernment ce 11). 62922624 I THE COMMITTEE’S INVESTIGATION OF COMMUNIST ACTIV- “|TY. IN BASIC INDUSTRY WAS PURSUANT TO A VALID LEGISLATIVE PURPOSE AND DID NOT VIOLATE THE FIRST AMENDMENT As he himself admits (Pet. Br. i415, 34), peti- tioner’s basic contentions that the Committee was not acting pursuant to a valid legislative purpose and that’ it violated his rights under the First Amendment have been answered by this Court in Barenblatt v. United States, supra, Wilkinson v. United. States, 365 U.S. 399, and Braden v. United States, 365 U.S. 431. Those cases established that Congressional investigation of © Communist activities, in circumstances comparable to the present ease, has a valid legislative purpose and - ' that committees conducting such investigations may compel witnesses to testify concerning their Commu-' nist activities without violating their rights: under the First Amendment. | Petitioner also raises First Amendment contentions _- which are based .on the particular circumstance of | the present case. In Barenblatt, supra, 360 U.S. at/126, this Court adopted the rule that “‘[w]here irst. Amendment rights are asserted to bar gove ental, _ interrogation resolution. of the issue always irivolves a _ balancing by the coutts of the competing private and _ public interests at stake in the particular circumstances ~_shown:”’ Petitioner contends that, unlike in Baren- ‘ blatt, the record in this case establishes that the in- "dividual interests outweigh the governmental interests. | In addition, he claims that the trial court erred in ex- cluding the testimony of Professor Thomas I. ‘Emerson 3 of Yale University: concerning the balance to be struck. We submit that these contentions are without merit. | Th } A. THE GOVERN MENTAL INTERESTS AT STAKE. OUTWEIGH THE INDI- VIDUAL inTenasrs IN. THESE PARTICULAR .. CIRCUMETANCES The Court in Barenblatt, as well as in Wilkinson and Braden, found that ‘‘the balance between the in- dividual and the governmental interests here at stake must be struck in favor of the latter, and * * * there- fore the provisions of the First Amendment have not been offended”’ (360.U.S. at 134; see 365 U.S. at 413- 415; 365 U. S..at 435). We submit that the govern- mental. interests in this ease even more clearly out- . weigh the individual interests involved tian in the Barenblatt, Wilkinson, and Braden cases. | The Court in Barenblat mentioned three particular considerations in weighing the private and public in- terests (360 U.S. at’ 134). First, the Court found. that ‘‘[t]here is no indication in this record that the : Subcommittee was attempting to pillory witnesses’: . (ibid.). Similarly, there 1s no such indication in this ord. The subcommittee allowed petitioner to state _ his objections fully, and then made a considerable effort to persuade him to testify, even explaining the’ pertinency of the questions despite the absence of any | specific objection that their pertinency was unclear | . (see supra, pp. 7, 9-10). Second, the Court found in Barenblatt that the wit- ness did not appear as a result-of “ indiscriminate dragnet. procedures, lacking in probable , cause for _ belief that he possessed information whieh might be helpful to the | Subcommittee’”’ (360 U.S. at _— - 2 Here, the Committee! ‘had information that petitioner was a long-time Party member who had actively par- ticipated in the Party’s s organization of the steelin-. dustry in the Gary, Indiana, area (see su pra, 13, 14), * which was a vital part of the subco ’g investiga- tion of Communist activities in basic industry in Gary __ (see supra, pp. 3, 4-5, 7, 9-10, 12). And, third, the Court-in Barenblatt said that. “the ~ “relevancy of ~ the questions *: oes. is not. open ‘to doubt’’ (360.U.S. at 134).” The same is equally true. ‘a in this case ; indeed, the pertinency of the questions 4 to the subject under inquiry was not only .clear on the ‘face of the.questions, but was explained to — at the hearing even though he did not explicitly ‘claim ‘any lack of pertinency tothe ‘subject under inquiry then. a or at any time during the judicial proceedings. ae “In addition to these considerations, an even more important circumstance supports the same result here -. asin Barenblatt. In the latter case, the witness was a college teacher by profession and the investigation sus- tained by this Court was into Communist infiltration in the field of education. In Wilkinson and Braden, the Court upheld Congressional inquiry into Commu- nist propaganda activities. Thus, the fields of educa- . tion and propaganda, although clearly within the gen- . eral area protected by the First Amendment, neverthe- / ~ Jess may be the subjects of a proper investigation ; fortiort, the. Committee could investigate Communist activity in basic industry, which is less directly pro- tected by the First Arendment and which has obviously great — nee to the national security... Petitioner suggests (Pet. Br. 18-21) that the Com-: “mittee had no governmental interest in questioning © oe Toes me \n" , iis since it had all the information concerning Com- munist activities. whieh ‘petitioner could possibly have supplied. | He ‘argues that the Committee had. eon- duc ‘ted hearings in other localities on the same or sim- ilar subject matter; that. other witnesses at the Gary hearing testified concerning all the information known to petitioner; and that therefore the. Committee sought only, corroboration from petitioner. But even if peti- tioner’s conclusion is correct and the Committee ex- pected to receive only ‘corroborating testimony from him, there is am important governmental interest in having a well-informed witness confirm previous testi- : mony—particularly when the existing evidence ,is in a controversial area and therefore is likely, to be challenged. In the. present ¢ case, moreover, it is clear that the ‘Committee was not merely seeking to confirm evidence that it already possessed. Petitioner offered no proof that he could not have contributed new information to the investigation. He did not prove at his trial what information he-had at the time the Committee quéstioned him. . ” He cammot unilaterally determine— by comparing his own knowledge which he has not disclosed with the information he now élaims was pos- sessed by the Committee—that he could supply the Committee with no new information.’ *Even if petitioner had ‘testified at his trial concerning the information he possessed at the time of the hearing: we do not think a defense would have been established merely because the | Committee already had the information. At the least, petitioner , would hate had to give’ this reason for his refusal to answer at the time he appeared before the Commitfee. Even then, we think that-the value of petitioner’ ‘s infor mation—whether it was ~The hearings which investigated Party colonization activities in other parts of the eountry (see Pet. Br. 19) were, on their face, principally concerned with different, although related subjects. Although the Committee had information concerning two of the questions (petitioner’s residence in 1957 and whether he was a Party member in 1949), these were only pre- liminary questions to establish that petitioner. had knowledge of Party activities ‘in the. steel industry in the Gary, Indiana, area. Petitioner's answers to the other two “questions concerning his own knowledge of Party activities in the steel industry in Gary. (whether: he knew of Party colonization in the ‘steel unions in Gary before 1957 and whether. there wére Party col: onies in the steel’ unions in Gary in 1957) might merely 1 repeat previous testimony before the’ Commit- tee. On the other hand, as the Committee hoped and expected (see supra, pp. 14-15), petitioner's Ss answer might well provide new information in view of his active ° participation in these Party activities The Commit- tee had reasonable gcound to helieve that petitioner had information on Communist infiltration in- the steel industry. : \ B. THE TRUAL COURT PROPERLY EXCLUDED EXPERT TESTIMONY CONCERNING -THE FIRST > AMENDMENT: ISSUE - Petitioner also argues (Pet. Br. 21 ~25) that the trial court erred in refusing to consider, the. prof- fered expert testimony. of -Proféssor Emerson in weighing private and public interests in order to de- a merely cumulative or not—was for the C omiittee to deternene. These issues, however, are not present in this case sinee peii- fioner has never shown what information he did have. — y 4 / . Vi : 7 . : { , 27 a ; ! termine. petitioner's First Amendment rights. This - contention is likewise erreneous. | iL Professor Emerson's qualific ations as an-expert were that he was a professor of law at Yale Uni- versity and had made extensive, studies in the field _of civil liberties (R. 93-97). He testified that he had “concerned [himself] a good deal with the Committee on Un-American Activities” (R. 97). His attention . was fhen directed to this Cout’s decision in Baren- blati \ . Enited States, with — he stated he was fatpilia®, and he was asked Ci. 97): * Have yeu an opinion. as to. the Various ¢on- * siderations Which have to be taken into account in balancing the pie interests at stake in jf resented ¢ ‘Phe government objected on the ground that the question sought te stimony from the Witness on a mate | ter of law, not of fact: “The question, invades the prov- ince of the Court. It is asking for an interpretation of existing cases, which it is for this Court to decide, not for oe witness to. decide, whetl Tor not he is an expert.” (Tr. 228).” : : , | ~The trial court held that the qiestion — in ef- fect su involved Jegal ppiniga (RR. 98) end sustained the government ‘s objection ‘to its admis: on (R. 99). The court, however, permitted petitione K to put the testimony tito the record as an ‘offer of {proof for purposes of appeal. -Petitioner’s counsel rephrased the question to insert-the word “Taetual hifore the word “considerations” (R. 9). The zoyernmie “ely, refers to the reporter” s tVpewritten tr snse ripy lof the trial _ proc veedings ; ‘ / j a ej: ‘ ing pablie and private. he circumstances here |, again objected. and the’ objection” was. sustained . i | ° (R.. 100)... aie ee ee id : PeoPsadr’ Emerson testified that the. government's : “A interest in: seeking. ‘information from petitioner was |» | | “to to pass’ legislation ! protecting against ‘over throw . ~ the government’ by force’ and violence (R. 100):°. & : stated that in weighing this interest the court a | "consider ‘SIX. ‘factors. First, present ‘statutes: (which oh he_ _ deseribed) already performed - this purpose:- ain “Seeond, the. country was. strong economically, -politi- * cally, and socially. : prego a according to Profes-, \sor Emerson, made. an eed homie collapse’ unlikely; no strong radical © groups exit téd which: ‘constituted. a anger to internal: ‘security, articularty.- since there . ee was no ‘indication. that | ithe, olice - or. military’ awere, > | ae, { * » Sympathetic to datcinite to” overthrow the . .govern- . Mi e ; and there. was no- -seridus social tinrest~ CR. . “Third, Professor Emerson testified, Yhe Com: Soa “munist Party was x éxtremely: weak ‘in 195 8 both in. era _ “numbers and positions: of importance ;; security pro- : : ‘grams prev ented ‘the: ‘infiltration, of government and : ; ‘industry ; and Communist power in labor unions, re- eee ligious and educational institutions, and the Negro. Se | “3 ".* community was extremely Small. (R: 103-106). The , eee ea: “fourth. factor in determining the government's | in- eo elena terest was the activity, of the-A. F L. -C.1.0. and other CN Een unions in, preventing. Communist infiltration of Tabor *: “7°. (ORY 106-107)... Fifth, Professor Emerson stated that | ‘the House U n-American Activities Committee, as shown. by its reports, already “had taken substantial testimony- ety, . : ' be s-tein-———_—_§. i ae Gary: proceedings” (R. 107). And; finally, the | Lat ‘ PS ac gs ®. ‘ ; . ‘ ot : 2 ‘ \ e ? cog ‘ = \ e . = o ao * ° id i s . . . ‘ Y - eae , ‘ : 3 : ae . + . , : ‘ . ia = ee ——" ¢ ae fet ; Committce could ‘obtain: substantial’ information from voluntary witnesses cR. 108). “ / _ Professor Emeisor then sidnouned his opinion con- : auane the factors which the district court should. os ‘consider. in determining» the individuals’ interest in refusing: to testify. . First, eiting “Milton, Jefferson, Mill, “Chaffee, HolmespBrandéis, s, and recent ‘psychologi-. ‘cal studies, he testified that. the “freedom. of expres. ‘sion is essential to individual integrity | ‘and dignity” and to. the right to dev elop ‘arid-realize the indiv¥ idual’s . potentialities. (R, 108). right of silence. **reco sgnized in the classi¢ flag” salute e case’ sig. particularly important in modern sotiety *% where’ so many pressures tend toward confor mity’ (. 109). And, third, the. individual has the right of : Assoc iation | which ‘is based on: the. weakness of ‘the _-~ individual ais a single persqn ‘to _acedmplish political or social ehange’’. (R. ieee Professor’ Emerson em- | phasized that society, as “well as the individual has : an important interest in’ “freedom of. expression- since -it “‘is a. basie and absolutely fundamental pr inciple of the de smocratic: proc ess”. (R. 104). He described | the serious “eMeet on the indivédual’ s interest from ““ Congressional | investigation . of ‘beliefs and associa-— _ tions: the -mere questioning of the witness inltibits him from: freely expressing himself; économie harm .° often results such as the loss of employ ment; and i | witness is ofter socially « istracized (R. 110-111). addition, other: people besides the witness ae afraid to- -engage.in similar political activity and -as- sociations (R. 111): These’ effects are not confined, Second, the witness said, the . raat Pl according to. Professor — to the Comminnist at ‘et o* See ia ! | 4 é P \ . -° \. : . : ‘, \ 30 . ¥ / Party since it is ‘impossible: to ro any clear line; ° the ‘‘whole area left of center * * * becomes smeared * * * with the same color’”’ (R. 111- 112). Finally, Professor: -Emersor stated that he thought that the ‘forces in this country tending ‘toward ‘a . ~ closed society ‘restricting independent thinking and . activity were: now: stronger than those supporting. an. oper society (R. 113). In support of this judgment, | he noted the great number of government employees - , subject to loyalty tests, the large units which domi- nate the. economy, and the unanimity | of opinion €x- i pressed by mass media and educational institutions | Mee i 113-114). He therefore stated that ‘‘as of this — time. what: ‘is needed, in terms of freedom of expres- ‘ sion, is ‘that. ‘society encourage. independence, un- orthodoxy and. differences * * 2” (Kh. 114)... Professor Emerson concluded (R. 115) : ' My answer is, on the ‘hasis of the toate considerations, it is my opinion, that the inter- ests of the. Government. in obtaining! answers to, the questions put. to this defendant as an. -aid- in developing further legislation to pro- tect ‘internal security - are substantially out- | ‘s _ weighed by the :interest. of the individual - in ' | “freedom of speeeh or sileri¢e, as he-may prefer, ‘and by the interest of the community: in main- er taining freedom of political expression and | other conditions essential to. maintaining. an ‘open ‘society. | | te ter hearing Professor Emerson’s testimony, the "- government renewed the objection. to its admission, on the same grounds, as prev er stated (R. 115). x $l An: finally excluding the proffered testimony, the trial © court said (R. 116): ee 2 fI}t seems to me that, expert. testimony of this . kind is not material in that it is not. a ques- ‘tion of fact‘as to what elements go to make up the balance of interests, public and private, but _a legal matter, which is. w ithin the prov ince of the Court to dec ‘ide; and it is not a stibject - expert testimony. 2, Petitioner's contention that thie trial ‘euurt’ $ re-- fusal to allow the introduction of Professor Emer- son’s testimony was reversible error is without merit - for at least two reasons. First, we submit that, as the two courts below held, the testimony was not properly admissible. It. consisted principally of. ar- ruments concerning what legal factors the court - should consider and what weight: should be given to » each of these factors, not W ith factual ev ‘idenee relat- ing to the f factors: which the court might consider. “Thus, Professor Emerson’s statement, coming at the _ close of petitioner's case, reads like the closing argu- ment ‘of ‘able .counsel summarizing his chent’s. legal - position under the First Amendment. W hile ysuch a statement could be properly presented by petitioner’s vounsel as: legal argument, the trial court correctly held that it was ‘not. evidence. ; ee | Second, even if Ttrofessor Emerson's testimony were properly admissible, we submit that petitioners conviction should nevertheless, be sustained. This . testimony was offered solely in relation to petitioner's claims under the First Amendment. | ~The | issue oe ; : 5 ass a “92 ; have heen violated by a Congressional committee is, as. the Barenblatt, Wilkinson, and Braden cases — ‘plainly show, a question of law. Therefore, - this - Court can consider Professor Emerson’s testimony which is fully set forth in the-reeord—in determining . ' . petitioner’s First Amendment claims (assuming con- -trary to our contentions above, that the testimony is admissible for this purpose). | : There is no need for the district court Pm make the _ initial determination of the issue whether petitioner's First Amendment rights have been violated on the basis of the record including Professor Emerson’ s testi- ‘mony. Not only is the issue, as stated above, a ques: tion of law, but: we think its: resolution is perteetly, -elear, Professor Emerson’s testimony gave no few ‘legal or factual consider ations which were not “consid- ered by this Court in Barenblatt.: There the Court _ relied’ heavily on numerous earlier decisions which deseribed the seriovis danger to the: country arising. . from Communist activities (360 U. S. at 127-129)." E.g., American Communications Ass’ nv. Douds, 339 . US. 382, 388-389: Dennis y. United States, 341 US. 494, 498; Carlson v. Landon, 342 U.S. 524, 535-536 :. ~ gee Subversive Activities ‘Control Act. of 1950, Title I, § 2, 64 Stat. 987-989. On the other hand, Mr. Justice Black, .in dissenting in Barenblatt, emphasized the in- terest ‘“in being ‘able to join organizations, 2 adv ocate — ¢ The Court also noted, in weighing the gov ernment’s interest, the valid, legislative purpose of the committee, the relevance ‘y of | the questions asked the witness, and the lack of any indication that the committee was trying to pillory the witness, or was 33 causes and make political ‘mistakes’ "and contended _ that the interest of the-government in ‘sel f-preserva- > tion’? was ‘‘vastly overstated’’ (360 U.S, at 144). Professor Emerson's testimony added little to these basic contentions except to spe!l out the competing - considerations in greater detail. ‘Thus, he ‘presented no evidence which could change, the Court’s, deter ‘nation in Barenblatt, Wilkinson, and: Braden that Congressional committees ean compel. witnesses to testify concerning their Communist activities without ‘violating the First Amendment. Andj as we have _gshown earlier (pp. 23-24), the particulay circumstances ‘of this ease are even stronger in-favor of the govern- “mental as opposed to the private interests than in those three cases. : t Oe Cs THE STATUTE UNDER WHICH PETITIONER WAS CONVICTED 18 NOT UNCONSTITUTIONALLY YAGUE Petitioner contends (Pet. Br. 30-32) that. the statute under which he was convicted, #.¢., House Rule XI, the Committee’s authorizing resolution, was un- constitutionally vague. In fact, however, the _ peti- tionergwas convicted of violating 2 U.S.C. 192 .(see Pet. Br.-3), the contempt-of-Congress statute, which - _ is perfectly clear. .Convictions under this statute * have been repeatedly upheld by this Court, as in the - Barenblatt, Wilkinson; and Braden cases. FS " -Petitioner’s argument is. therefore not ‘aimed at. the statute under which he was: conyicted, but rather at the resolution*of the House of Representatives authorizing the Committee to eonduet investigations of Communist activities. Rule Xf, Rut } ‘ i ° ¥ 34 ‘ ‘House of Representatives, 60 Stat. 823, 828 (see Pet. Br. 3). -Rule XT, however, is riot a criminal statute ; é it does not prohibit: or punish any .. con- duct. Instead, -it merely confers authority on the ‘Committee - to conduct investigations: within a par- ticular area. Thus, the rules for construiig: ¢riminal statutes do not apply to the constriction of Rule XI. Although petitioner was served with the: Céemmit-- tee’s subpoena on January 23, 1958 (Gov. Ex: 2, p. 2), . he did not ask the Committee:to appear at an execu- tive session until February 6, 1958, the T1. ursday pre- ceding the Monday on which he appeared as a witness. On that date, he sent a telegram which was addressed . to the Committee counsel, not to the Committee or — its chairman (R. 284a), which stated (Def. Ex. 1): Undersigned represents Edward Yellin and Nicholas Busic. On their behalf I request exec- — session in — * pare session. Testimony | |. 3 in exec utive session without eX posing witnesses. - to publicity. | Since the telegram arrived in Ww iailiad after the Committee chairman and counsel had left for Gary, Indiana, to conduct the hearings (R. 37, 39). it was an- -gwered by the Committee staff director, who denied the request (Def. Ex: 2). The record shows’ that the staff director had no authority to act on petitioner ’s request (R. 286a). fae \ Petitioner- relies on Rule IV-A of the Rules of - Procedure of the House Committee on Un-American Activities as requiring the Committee to grant his request for an executive session. Rule IV —A states: _ If a majority of the Committee or Subeommit- tee, duly appointed as provided hy the ‘rules of the House of Representatives, believes that the interrogation of a witness in a public hear- ing might endanger national REC -urity or ufijustly ‘injure his reputation, or the re putation of other “individuals, the committee shall interrogate such witness Im an exec utive session for the purpose of determining the necessity or advisability of -eondueting such interrogation: thereafter in a public hearing. Rule 1V-A: does not give a witness a right upon re- quest to an executive session whenever specified eir- cumstances are present so that the Committce’s re- fusal to provide this right is reviewable in the courts. Instead, the rule-leaves it to a majority of the Com-_ mittee, or subcommittee, to decide whether to interro- — gate the witness in executive session. Thus, the rule provides that a witness he questioned in executive ses- sion whenever “a majority af the Committee-* * * | 38 | believes that the interrogation of a witness in a. public hearing might * * * unjustly injure his reputation ** **" (emphasis added). This language gives the Committee ‘diseretion whether to hear a witness in executive session. | | Here, the Committee decided not to have petitioner testify at an-exgcutive Session even though it did not know that petitioner had requested such an appear- ance. Congressman Walter testified that ‘‘the Com- mittee * * * passed on the question of whether or not .we would hear Mr. Yellin: at-a session when the purpose of calling him was discussed, and it, was decided then that the rule: with respect to_an execu- tive session was not applicable * * * (R. 70). We have emphasized that Rule IV-A confers no right on petitioner -to have this determination re- viewed by the courts. Even if. Rule IV-A did im- plicitly provide for.a right of review, it is clear than a. Congressional committee has broad discretion in ~~. determining its own procedure upon such questions as whether to hear a witness in an executive or publie ‘session. There is nothing in this record to suggest that the Committee abused its discretion in this case.” * Petitioner also suggests (Pet. Br. 27, footnote) that Rule XI{m) of the House Rules gave him the right to appear in executive session. .The language of this provision indicates that it was intended to protect persons other than the witness himself from being injured since jt allows the injured person “an opportunity voluntarily to appear as a witness * * *." As the Committee ‘counsel testified at the petitioner's ‘trial (R. 88—/ 90), this was the Committee's interpretation of the Rule. .More- : over, Rule XI(m), like Rule IV-A of the Committee’s own rules, confers no right on anyone to appear in executive ses- sion unless the Congressional i nines ~ mination which was not made in this case. : 3u av THE QU ESTIONS WHICH WERE THE BASIS FOR COUNTS 2 AND 4 WERE NOT TOO VAGUE TO sU PPORT THE INDICT- MENT Petitioner claims (Pet. Br. 32-34) ‘that the ques- tions contained in, Counts 2 and 4 are too rague - .to satisfy the Sixth ‘Amendment and Rule 7(c). of the Federal Rules of Criminal Proc -edure, which require “that in all criminal prosecutions the aceused shall be ‘informed of the nature and eause of the accusation.’ The question involve din Count 2 was: “Will you tell the Committee, please, whether or not incidents came -to your attention of. the colonization of the steel unions in Gary by the Communist Party at any time prior to Se sptember- 1957?” The question involved in Count 4 was: “Will you tell the Committee. whe ther or not in. 1957 there, were present in any of the steel —unions.at Gary, Indiana, persons who were known to “you to have ‘been colonizers of the Communist Party?’ . **. ae baat ae es | Petitioner specifically does not question.the fact that -he. understood the meaning of these questions. Rather, he states that “[t]he issue was not whether he. under- stood the question, but whether the indictment met the requirements of the Sixth Amendment and of Rule 7(c) of the Rules of Criminal Procedure” (Pet. Br. 33). A. First, petitioner is precluded from raising this - issue ‘because it was not presented—or even ‘sug> | gested—in his petition for a writ of certiorari. Therefore, under Rule 40(1) (a) (2) of the Rules of this Court, he « ‘annot raise it in his brief on the merits- 40 7 "ie ’ unless ' there was ‘‘plain. érror.’ yg, Kessler v. Strecker, 307 U.S. 22, 34. Mendis _- B..In any event, petitioner’s contention is clearly without merit. The Sixth Amendment and Rule 7(c) require that “[t]he indictment * * * be a plain, concise and definite written statement of the essential facts con- | stituting the offense charged”? (Rule 7(c)), so that the accused can adequately defend himself and can plead a conviction or acquittal in bar of a subsequent prosecution for the same offense. E.g., United States _v. Debrow, 346 U.S. 374, 377-378. The indictment set out clearly the Committee’s investigative author- ity, the subject under inquiry, the facts “concerning ~ the hearing, the subpoenaing of petitioner, his appéar- | ance, and his wilful- refusal to answer five pertinent ‘questions, each of which was quoted (R. 1-3). Tha - whether or-not the questions themselves were vague, . these allegations clearly and sufficiently allege | that ‘petitioner violated 2 U.S.C. 192 by wilfully refusing to answer pertinent questions asked by a 0 sional committee. "The fact that the indictment not spell out the meaning of the qucstioris did vt prejudice petitioner either in preparing his defense jor by allowing the Possibility of a new “Prosecution or the same offense. : Tie: As to. prepani his defense, it ‘end not have hclped petitioner to have the indictment specify the _ Meaning of the questions. The charge was that. he | had refused to. answer the questions. The only possi- blé. defense which could turn upon their meaning is | that petitioner refused to answer the questions be- — cause he did not understand them. __But that defense en Fi depends on whether petitioner understood their mean- ing when he appeared before the: Committee; if. he did not understand the questions at that time, it would oe do no good to acquaint him of their meaning in the indictment.” As to a second prosecution, the indict- © ment specified the Committee holding the hgaring, the _ time of the hearing; and the questions petitioner re- fused ‘to answer. There — was no possibfli / these same questions. /. The indictment Was not required to detai the mean- ing of the questions, which petitioner ref sed to /an- swer cither by describing their context in {he hearing ok by defining the various words w hich jwere. used. Frequently, questions standing alone are{vague and ‘ambiguous. For example, in ‘the Barenblatt case, this” Court upheld the conviction of a witness for refusing _ to answer the question, “Were you ever Jmember. of © the Haldane Club of the Communist Party while at . the University of Michigan ?”’ (360 U.S. at}114).. The indictment never described the Haldane (lub or its — exact ccunection w ith the Communist Party. A re- peer ne that such questions be explained’ in. the indictment would be contrary to the language and purpose of Rule 7(c) that the indictment be a con- cise statement of the essential facts. The ion of . - the question is not an essentiai element of the ¢rime of ‘contempt; it is the wilful refusal to answer W hich. - constitutes the crime. ~ 1” We show below (pp. 42-45) that petitioner. did understand - the questions at ‘he time he refused to answer them and that, in any event, this defense is not open to him since he did not _claim that the questions were vague at that time. Pa eae a 42 ‘ | ©. It is appareiit, despite the denial. in his. brief, a petitioner’s real contention is‘ that. the questions _ did not adequately: apprise him of ‘the information | sought by the Committee and that therefore hecan- - not be convicted of. ‘contempt. ‘We agree: that, a wit- | ness ‘before a Congressional committee. cannot be con- Yieted. of: wilfully refusing to answer questions asked by a Congressional committee if the witness informs . the Committee that he cannot understand | what in- a formation the Committee i is séeking and the Cominittee - nevertheless. fails to- state or explain the questions * with reasonable. clarity. W e. emphisize; however, that - the witness is . required to. object on.the ground of. - a vagueness at the time, the questions are asked by the . committee. Just as: with regard to, the pertinency : of the questions. to the subject under inquiry, the com. . "mittee ‘can easily explain the. meaning of its questions 7 ‘if the witness’ is in doubt. Therefore, the issue ‘Of © vagueness, like the issue whether ‘the committee suffi- " ciently apprises the witness of the pertinéney of the ‘questions, cannot be raised for the first time at trial. Cf. Barenblatt v. United States, supra, 360 U.S. at ie 123-124; Deutch v. United States, 367 U.S. 456, 469. Here; petitioner, although he made several objections sh tothe questions: he refused ‘to answer; did not even indicate that he failed to understand them. ; On the other: -hand, unlike the. situation With re- gard to. the. issue.of pertinency, we- ‘do not think that re the . government. is\requited to prove the meaning of the questions at. the Witness’ trial for contempt when =~ . he fails to. raise the issue before the. committee. . an - De ‘utch, this Court t held, even though the e pertineney yon, oe A eee a Go -d . ‘ of the (tiestions was ‘not ae at the hearing, that the goverment As required eto prove’ pertine! ney.’ at the trial. 367 US. 468." This holding ‘the _ entirely on the explicit requirement of 2 1 UBT 192 that the questions be ‘*pertinent to the question: under inquiry.” - Since. 2 U.S.C. 192: does’ not make | the | clarity of the question an. element aot the offense, we ‘do not think -that the governme nt is required to prove it unless H was timely raise d be fore the conmitittee itself. * area nee a In ay event, in this case, the meaning of the ques- tidtas in Counts 2 and 4, was made cléar, to petitioner “at the hearing and the introduction , of the transcript . of the hearing ‘satisfied “ae burden the ‘government » ‘may have -had to’ show their meaning ‘at petitioner s ~ trial. The only possible vagueness in the two ques-" tions eonce) rus the words °* ‘colonization in Count P and * “eolonizer”’ * Connt 4. Petitioner admitte «d * that he was present + anita Join Lautner, -a long+time high official in the, Communist Party. testified before: the Committee (Hearings, p: 1976). During this testi- : mony, the Party's s colonization progr am was repeatedly described. : ier testified that, after the 1945 -reconi- "colonizers /tr ained Party. ine ae we who were asstencd co : organize l arty activities in the steel industry in the Middle West (1d. ‘at pp. 1965-1966). Lautner further testified that after the 1948 Party convention “one. ; a J. Peters “ore i — v members”” and that in the spring of 1949 Party Inembers, who had just graduated from college, he. me a number ‘of classes: for. colonizing ef ae ee ad - -strnetionof Ine arty, a policy of colonization was he- ete Be sop: gun, (id. at/ pp. 4964-1969). He described, as. Party 2 & 0 44 . . : -came ‘colonizers in various industries (td. at p. 1967). At this point, Lautner defined a ‘‘colonizer’’ (id. at *'p. 1968) 2° eo ee A eolonized Communist is oné who is a pro-_ -» . feastonal revolutionary, who has uprooted him- Self from his home environment and carried cout a party instruction, one who may have - . had ,personal-problems, family problems, but ' that was secondary. - The -first was the prob- _... + fem of the party, and he submitted himself \ « */to become a person who will solve for the party their ‘problems and hecome a: colonized Com- - ; _ ° munist to carry out Communist workin a basic: \ industry. [Emphasis added. |. 7 | Lautner said that colpnizers get johs in a major in- dustry by misrepresenting their college education -(ibsd.). ‘Subsequently, ‘the goufisel of the Commit- - tee summarized Lautner’s testimony about Péters: “You told us about *°* * classes that were con- ducted by J: Peters, training young men in the uni- versities to’ go out ‘and engage in colonization -in _ Industry”’ ‘(id.-at p. 1968). -Lautner: said that the - Party believed that. ‘‘the best way to get back into the main stream of labor would be to colonize capable. Communist organizers in the basic industries * * *”” dlat pM). G0 nd Before petitioner, was, finally ordered to answer - the question involved i. Count 2 concerning whether _he knew of colonization hy the Communist Party in _ steel unions: in. Gary, Indiana, prior to September . 1957, the Party’s program ‘of colonization was ex-. ° plicitly. described to him. The counsel of the Com- a ’ 3 ° 9 mittee stated (Hearings, p. 1986) : ak It ine heen testified liere that colonization of young men in the middle of their educational courses in industry was a deep seated plan of the Communist’ Party to’ strengthen _ itself within basic, industry. | “After petitioner then - told the Committee that he was present then. Lautner testified, the Comnittee counsel ‘said that [t]he statement wis made “here of the practice of the Communist Party’ in colonizing: in- dustry at. Flint, Mich higan: at the University of Colo- . rado, which is at Fort Collins, Colorado, where you | ‘now reside: and other plaees”’ (ibid.). In short, we submit thatsthe record of the hearings shows that petitioner was fully: acquainted with the claim as to the Party's colonization progré am in basie > industries before he refused to answer the questions. involved in Counts 2 and 4. He clearly knew that the Committee’ s questions sought to ‘obtain information of Party organizing activ ities in. the. steel industry in Gary, Indiana.” ™ Even if, contr: ary .to our contenti ions above, Cots 2 2 and 4 are eianee because of the vagueness of thé questions, peti® tioner’s conviction. still must be ‘effiemed. Ile received concur-- rent sentences on all four counts and therefore his conviction must be, sustained -if any -one count is valid. 4.g., Barenblatt v. 0’ nited States, 360 ©, S. 1005115. . , ~s 46 | CONCLUSION = _ For the. foregoing reasons, we respectfully submit ithat the judgment of the court of — should. be affirmed. : Beer oe ARCHIBALD Cox, | a Solicitor General. J. WatTer YEAGLEY, a | Assistant Attorney General. : | ~ Bruce J. TERRIS, | Po Assistant to the Solicitor oncbel: Kevin TC Maroney, 1 Lee B. ANDERSON, Attorneys. Fesruary 1962. } US GOVERNMENT PRINTING OFFICE 1968 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386410_0242%3A4. Public record. Not legal advice.