Opposition Brief — Barsky v. United States

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Statutes and resolution involved_-_....-....---------------- 3

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4 CITATIONS

: Cases:

Bozza v. United States, 330 U. 8. 160__...-------------- 20

Collins v. United States, 20 F. 2d 574___..-------------- 20

Fields v. United States, 164 F. 2d 97, certiorari denied, 332

RM a ati 2s ie he ween nM abe e ua oak seak 21

Glickstein v. United States, 222 U. 8. 189___.__..___--_-- 16 ©

Harris v. United States, 273 Fed. 785, certiorari denied, 257

MWR aes anche ee oe ieee adc ON tobhnwce nuk 20

Heike v. United States, 227 U. S. 181__..--------------- 16

Jin Fuey Moy v. United States, 254 U.S. 189_.________-- 20

Josephson v. United States, No. 535, this Term, certiorari :

een, MMe SO SOUR. ects ecco ce 12, 21

Melling v. United States, 25 F. 2d 92_.........--..------ 20

Nardone v. United States, 308 U. 8. 338__...-.-.-------- 16

Sinclair v. United States, 279 U. 8. 263_.......---.------ 21

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

February 16, 1948, rehearing denied, March 15, 1948,

Py ee: WANA Sees oc oes Siete 12

Statutes:

Revised Statutes § 102, as amended, 52 Stat. 942, 2 U. 8. C.

Cpls d hn Welh nach aneaes naeias bsnl aakinueeneton 8

Revised Statutes § 859, as amended, 52 Stat. 943, 28 U.S. C.

Siac uk cdoadtebantuiedecddubutues 3, 14, 15, 17

RE Re Reyer rire 2 Me eee ee 20

Miscellaneous:

a House of Representatives Rule XI (q) (2), as amended by

3 Section 121 (b) of the Legislative Reorganization Act of

q 1946, Pub. L. No. 601, 79th Cong., 2d Sess., 60 Stat. 812,

E 828 (adopted by the House of Representatives, 80th

Congress, H. Res. No. 5, 80th Cong., Ist Sess.) ..__--_-- 4, 13

$ (1)

789860-—48——-1

Juthe Supreme Gourt of the Wnited States

OctToBER TERM, 1947

No. 766

Epwarp K. BARSKY ET AL., PETITIONERS

Vv.

Unitep States oF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE DISTRICT OF

COLUMBIA

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The majority (R. 632-643) and dissenting (R.

644-655) opinions in the court of appeals are not

yet reported. The opinion of the district court

denying the motion for a bill of particulars (R.

14-17) appears at 7 F. R. D. 38; the opinion deny-

ing the motion to dismiss the indictment prior to

trial (R. 614-624) appears at 72 F. Supp. 58;

and the opinion denying the claim of immunity in

relation to the admissibility of the stenographie

transcript of the hearing before the Congressional

Committee (R. 23-31) appears at 72 F. Supp. 165.

(1)

PPI Re tte yee os

es

2

JURISDICTION

The judgment of the court of appeals was en-

tered March 18, 1948 (R. 656), and a petition for

rehearing was denied March 29, 1948 (R. 657).

The petition fur a writ of certiorari was filed

April 27, 1948. The jurisdiction of this Court is

invoked under Section 240 (a) of the Judicial

Code, as amended by the Act of February 13,

1925. See also Rules 37 (b) (2) and 45 (a),

F. R. Crim. P. .

QUESTIONS PRESENTED

The principal questions presented are:

1. Whether Public Law 601, prescribing the au-

thority of the Committee on Un-American Activi-

ties, is unconstitutional.

2. Whether the books and records which peti- ©

tioners were directed to produce before the Con-

gressional Committee were pertinent to the in-

quiry.

3. Whether evidence showing that petitioners

appeared before the Congressional Committee and

refused to produce the books and records was ad-

mitted in violation of R. S. § 859, which extends

immunity to ‘‘testimony given by a witness”’ in a

Congressional hearing.

4. Whether the evidence supports the verdict

of the jury that petitioners could have complied

with the subpoenas if they had desired to.

3

. STATUTES AND RESOLUTION INVOLVED

Revised Statutes § 102, as amended, 52 Stat.

942, 2 U.S. C. 192, provides:

Every person who having been summoned

as a witness by the authority of either

House of Congress to give testimony or to

produce papers upon any matter under in-

quiry before either House, or any joint com-

mittee established by a joint or concur-

rent resolution of the two Houses of Con-

gress, or any committee of either House of

Congress, willfully makes default, or who,

having appeared, refuses to answer any

question pertinent to the question under

inquiry, shall be deemed guilty of a misde-

meanor, punishable by a fine of not more

than $1,000 nor less than $100 and impris-

onment in a common jail for not less than

one month nor more than twelve months.

Revised Statutes § 859, as amended, 52 Stat.

943, 28 U.S. C. 634, provides:

No testimony given by a witness before

either House, or before any committee of

either House, or before any joint committee

established by a joint or concurrent reso-

lution of the two Houses of Congress, shall

be used as evidence in any criminal proceed-

ing against him in any court, except in a

prosecution for perjury committed in giv-

ing such testimony. But an official paper

or record produced by him is not within the

said privilege.

mp cme pone aw

4

House of Representatives Rule XI (q) (2),

as amended by Section 121 (b) of the Legislative

Reorganization Act of 1946, Pub. L. No. 601, 79th

Cong., 2d Sess., 60 Stat. 812, 828 (adopted by the

House of Representatives, 80th Congress, H. Res.

No. 5, 80th Cong., Ist Sess.), provides:

The Committee on Un-American Activi-

ties, as a whole or by subcommittee, is au-

’ thorized to make from time to time in-

vestigations of (i) the extent, character,

and objects of un-American propaganda

activities in the United States, (ii) the

diffusion within the United States of sub-

versive and un-American propaganda that

is instigated from foreign countries or of a

domestic origin and attacks the principle

of the form of government as guaranteed

by our Constitution, and (iii) all other

questions in relation thereto that would

aid Congress in any necessary remedial

legislation.

The Committee on Un-American Activi-

ties shall report to the House (or to the

Clerk of the House if the House is not in

session) the results of any such investiga-

tion, together with such recommendations

as it deems advisable.

For the purpose of any such investiga-

tion, the Committee on Un-American Ac-

tivities, or any subcommittee thereof, is

authorized to sit and act at such times and

places within the United States, whether

or not the House is sitting, has recessed,

or has adjourned, to hold such hearings, to

5

require the attendance of such witnesses

and the production of such books, papers,

and documents, and to take such testimony,

as it deems necessary. Subpenas may be

issued under the signature of the chairman

of the committee or any subcommittee, or

by any member designated by any such

chairman, and may be served by any person

designated by any such chairman or mem-

ber.

STATEMENT

Petitioners, members of the Executive Board

of the Joint Anti-Fascist Refugee Committee,

were convicted in the United States District Court

for the District of Columbia on the second count

of a two-count indictment for violation of R. 8.

§ 102." Count 2 (R. 5-6) charged that defendants,

having been summoned to produce certain records

of the Joint Anti-Fascist Refugee Committee be-

fore the House Committee on Un-American Ac-

tivities,’ appeared before the Committee but

failed to produce the records called for as they

had power to do and thereby wilfully made de-

fault.

1 The trial court directed a judgment of acquittal on the

first count, which charged the defendants with conspiracy to

defraud the United States and to commit an offense against

the United States by depriving a Congressional Committee

of records called for in subpoenas issued by the Committee

(R. 589).

® To avoid confusion in referring to the two committees, we

shall refer to the Un-American Activities Committee as the

“Congressional Committee” and to the other as “JAFRC.”

Ta

6

The facts are not in dispute, for none of the

defendants testified at the trial and the defense

testimony consisted chiefly of character evidence.

The Government’s evidence falls into two broad

categories—testimony showing the issuance and

service of the Congressional Committee’s sum-

monses on the defendants and their failure to

comply, and testimony showing that in undertak-

ing to investigate the Joint Anti-Fascist Refugee

Committee the Congressional Committee had

ample basis for believing that JAFRC was en-

gaged in propaganda activities of the kind made

subject to investigation by the authorizing resolu-

tion. Evidence of the first category was adduced

in the presence of the jury and the issue was

decided by them. The other evidence was heard

by the trial judge, who ruled that the books and

records in question were pertinent to the matter

under inquiry by the Congressional Committee

and that the Committee had a reasonable basis for

investigating the Joint Anti-Fascist Refugee Com-

mittee (R. 607). |

The Government’s evidence may be chronologi-

cally summarized as follows:

The Joint Anti-Fascist Refugee Committee, an

unineorporated association (R. 423), has for its

avowed purpose the raising and distribution of

funds and other activities for the relief of anti-

fascist refugees (see R. 536-537). In practice, its

governing officials consist of the Executive Board,

of which petitioner Barsky is chairman and the

— |

T

\

other petitioners are members, and its Executive

Secretary, a Miss Helen R. Bryan (see R. 424-

425). , ,

Congressman Wood, then Chairman of the Con-

gressional Committee, testified that when he be-

came a member of the Committee in July 1945, an

investigation already had been undertaken into the

activities of JAFRC (R. 211). As a result of

complaints received, the Congressional Committee

inquired of the President’s War Relief Control

Board concerning JAFRC. That Board, which

had authorized JAFRC to collect funds, informed

the Congressional Committee that it had learned

that JAFRC was ‘‘carrying on political propa-

ganda, instead of relief, and using the funds that

they were collecting from the public for that pur-

pose’? and expressed satisfaction that the Con-

gressional Committee was carrying on an investi-

gation, inasmuch as the Board was unable to

conduct one (R. 326-327). The Board supplied

the Committee with a letter written to it by a

Vermont newspaper publisher, in which it was

stated that ‘‘It is my sincere belief that the Joint

Anti-Fascist Refugee Committee is not an Ameri-

can group but one dominated by a foreign govern-

ment and serving that government’s purpose, and

that it has as its main purpose the spreading of

doctrines and ideas completely in variance with

those for which this war is being fought, and with

the principles on which this country was founded”’

(R. 318-319). Congressman Wood further testi-

_ 789860—48——2

fied (R. 338) that they had learned from the State

Department ‘‘long before the subpoenas were

issued that this organization, Joint Anti-Fascist

Refugee Committee, had been making applications

for transit visas for people to come through this

country en route to Mexico, who, upon their in-

vestigation, were found to be outstanding Com-

munists * * *.’? A book written by petitioner

Fast stated that JAFRC had financed the return

of Tito (R. 327). :

With the foregoing information in its files, the

Congresssional Committee on December 1, 1945,

addressed a letter to JAFRC requesting permis-

sion to make a preliminary investigation of its

records (R. 214). JAFRC responded by letter

signed by petitioner Barsky on December 5, 1945,

stating that the request would be considered by

the Executive Board (R. 215). In the meantime,

on December 4, the Congressional Committee

issued its first subpoena in this matter, directing

Helen R. Bryan, Executive Secretary, or peti-

tioner Barsky to appear before the Congressional

Committee on December 19, 1945, to testify and

to produce records showing the receipt and dis-

bursement of money and correspondence with

persons outside the United States (R. 221-222).

The subpoena was served on Miss Bryan on

December 14, 1945 (R. 222), and on the same

day the Executive Board of JAFRC met and

*“The Incredible Tito,” by Howard Fast, published by

Magazine House, 114 East 32d Street, New York 16, N. Y.

en

aa

v

by resolution, reciting that JAFRC was not a

fit subject for investigation by the Congressional

Committee, directed petitioner Barsky and Miss

Bryan to advise with counsel and to take any

necessary steps to protect its rights (R. 540-542).

Miss Bryan appeared before the Congressional

Committee on January 24, 1946, in response to

the subpoena and petitioner Barsky accompanied

her, but was not a witness (R. 227). She did not

produce the records called for in the subpoena

(R. 223).

In the interval between the issuance of the

subpoena and Miss Bryan’s appearance, the in-

vestigation had continued and information was

obtained relating particularly to petitioner

Barsky, showing that he was an active Com-

munist leader in the Spanish Civil War (see

R. 41-98). On the next day, January 25, 1946,

a subpoena was issued directing petitioner Barsky

to appear and testify and to produce the records

previously called for (R. 223-225). Two days

before Barsky was scheduled to appear before

the Congressional Committee, the Executive

Board of JAFRC met and unanimously directed

Barsky not to produce the records called for by

the subpoena (R. 542-544). Accordingly, Barsky

appeared before the Congressional Committee on

February 13, 1946, and testified that he did not

have possession or custody of the books and

records. However, he stated that the Executive

Board, of which he was Chairman, did have >

ultimate authority to produce the documents

which were the subject of the subpoena (R. 427).

At this juncture of the investigation, Mr.

Robert ©. Alexander, Assistant Chief of the

Visa Division of the Department of State, testi-

fied before the Congressional Committee on

. February 15, 1946 (R. 246-258). He stated that

JAFRC ‘‘was a Communist organization, at least

a Communist front organization’ (R. 251), be-

cause “‘it has among its members and influential

officers or members, a number of persons that we

regard as Communists” (R. 252); and that peti-

tioner Barsky was a known Communist, having

been on the Executive Committee of the Com-

munist Party in the United States (R. 247). The

Congressional Committee also was informed from

the files of the President’s War Relief Control

Board that the Federal Bureau of Investigation

had received reports that JAFRC had engaged

in political activities in corinection with its fund

raising campaign and that speakers using sound

trucks in New York City had urged the breaking

of diplomatic relations between the United States

and Spain ‘‘and to have also tied in with their

appeal labor controversies then current in the New

York City area’ (R. 306-307).

It was in this context that the Congressional

Committee undertook to require the members of

the Executive Board, which petitioner Barsky had

testified had ultimate control of the books and

records of the organization (R. 427), to make

il

those documents available. On March 29, 1946,

subpoenas were issued for all of the defendants,

except Barsky who had already been subpoenaed,

and for the JAFRC directing them to produce on

April 4, 1946, the organization’s books. and

records relating to the receipt and disbursement

of money and correspondence and memoranda of

communications with persons in foreign countries,

for the period from January 1, 1945, to the date .

of the issuance of the subpoenas (R. 228-229).

Each of the defendants was served with a sub-

poena (R. 134, 136, 137, 142-143, 146-147, 149,

151, 153, 156-157, 161-162, 167), and the organ-

ization was served by leaving a subpoena with Miss

Bryan, its Executive Secretary (R. 181).

On April 1, 1946, three days before they were

required to appear before the Congressional Com-

mittee, several of the defendants consulted with

one Benedict Wolf, an attorney, and received from

him identical written statements to the effect that

they could not produce the books and records be-

cause they did not have custody of them. Each

defendant appeared before the Congressional Com-

mittee on April 4, 1946, and each declined to pro-

duce the books and records on the ground that

Miss Bryan had custody of them. Miss Bryan

refused to produce them on the ground that the

Congressional Committee had no right to them (R.

230). (See printed transcript of the testimony of

witnesses before the Congressional Committee on

ee

12

April 4, 1946, Government Exhibit 6, pp. 6, 11, 16,

24, 26, 30, 36, 53-54, 61-62, 66, 96-105.)

The jury convicted all sixteen defendants for

having failed to produce the books and records

and all except Barsky were sentenced to imprison-

ment for three months and to pay a fine of $500

(R. 32-37). Barksy was sentenced to imprison-

ment for six months and to pay a fine of $500

(R. 31-32). The trial court suspended execution

of the sentences of five of the defendants and they

are not parties in the appellate proceedings (see

Pet. 8).

On appeal to the United States Court of Ap-

peals for the District of Columbia, the judgments

were affirmed, with one judge dissenting. In an

exhaustive opinion the court, speaking through

Justice Prettyman, reached conclusions substan-

tially in accord with those earlier announced by

the Second Circuit in United States v. Josephson,

165 F. 2d 82, certiorari denied, February 16, 1948,

rehearing denied, March 15, 1948, No. 535, this

Term.

ARGUMENT

1. The petition for a writ of certiorari in this

case renews the arguments concerning the consti-

tutionality of the resolution establishing the con-

gressional committee which were pressed upon this

Court in Josephson v. United States, No. 535, cer-

tiorari denied, March 15, 1948. The denial of cer-

tiorari came after those arguments had been

13

rejected upon full and careful consideration by

the Second Circuit. And now they have been ex-

amined again by another court which has likewise

carefully weighed them and found them wanting.

Our views, in agreement with these decisions, are

set forth in our brief in opposition in the Joseph-

son case, pp. 11-18. For the reasons stated in

that brief, as well as for the reasons stated by both

courts of appeal, we respectfully submit that the

contention is without merit.

2. There can be no serious question that having

been authorized to investigate “the diffusion

within the United States of subversive and un-

American propaganda that is instigated from for-

eign countries * * *,’’ the congressional com-

mittee had ample basis for inquiring into the activ-

ities of JAFRC and for demanding production of

its records showing receipts and disbursements

and communications with persons in foreign coun-

tries. As probable cause for its investigation, the

congressional committee had in its files informa-

tion showing that although JAFRC purported to

be a relief organization, it was in fact engaged

‘It may be noted in this respect that on the facts of this

case the court below need not have gone any further in its

opinion on this issue than the last full paragraph which

appears at page 633 of the record. The remaining discussion

assumes that questions possibly might have been asked of

petitioners which would have demanded disclosure that they

are believers in communism or members of the Communist

Party. But such questions were not asked, and the case

thus does not present that question.

14

in political propaganda activities. This was at-

tested to by the President’s War Relief Control

Board. Coupled with this information, the con-

gressional committee. had information from a re-

sponsible official of the State Department that

JAFRC ‘‘was a Communist organization”’ or, at

the very least, a ‘‘Communist front organization,’

and that some influential members of JAFRC

were known as Communists. And it had other in-

formation that petitioner Barsky, Chairman of

JAFRC, was an active member of the Communist

Party, having been on its Executive Committee.

On this information alone—and it was not alone

(see supra, pp. 6-11)—the congressional commit-

tee had a reasonable basis for believing that the

propaganda activities in which JAFRC was ap-

parently engaged derived from a foreign source,

and that an investigation was therefore warranted.

This being so, it obviously was pertinent to the

authorized inquiry to start, as the congressional

committee did, by seeking to examine those books

and records of JAFRC which disclosed the organ-

ization’s receipts and disbursements and its com-

munications with persons in foreign countries.

Both courts below had no difficulty in finding that

the congressional committee had sufficient basis

for investigating JAFRC and that the subpoenaed

books and records were pertinent to the inquiry, |

and we agree.

3. Revised Statutes § 859 (28 U. S. C. 634) pro-

vides that—

15

No testimony given by a witness before

either House, or before any committee of_

either House, or before any joint committee

established by a joint or concurrent resolu-

tion of the two Houses of Congress, shall

be used as evidence in any criminal pro-

ceeding against him in any court, except in

a prosecution for perjury committed in giv-

ing such testimony. But an official paper

or record produced by him is not within

the said privilege.

When petitioners appeared before the congres-

sional committee they refused to produce the sub-

poenaed books and records of JAFRC. The tran-

script of the proceedings before the congressional

committee showing this refusal was adduced in

evidence at petitioners’ trial (R. 370). Relying

on the above quoted statute, petitioners urge that

the transcript showing their refusal was improp-

erly received in evidence. Curiously, petitioners

do not contend that oral testimony showing their

refusal to produce the books and records before

the congressional committee is also forbidden by

R. S. § 859. Indeed, they urge that the Govern-

ment could prove its case in this manner, and this

view, it appears, is dictated by the fact that a con-

trary argument would place them in the position

of arguing that they obtained immunity from

prosecution for contempt of the congressional

committee, because the grant of immunity fore-

closes the courts from receiving any evidence

showing what they said before the congressional

OE ee

16

committee. In our view, if the immunity statute -

comes into play, it must necessarily extend not

only to the stenographic transcript of the proceed-

ings but as well to any other use of the testimony

which was given. See Nardone v. United States,

308 U. 8S. 338, 340-341. The immunity which is

granted is a matter of substance and the form in

which the testimony is used—whether it be a

stenographie record or an oral report—is imma-

terial. Thus the critical question which peti-

tioners present is whether Congress by the im-

munity provision foreclosed the prosecution of

petitioners under R. 8S. § 102 for defiance of one

of its committees.

To state the question is to answer it. The trial

judge carefully and exhaustively examined the

problem (see R. 23-31) and on the basis of the

legislative history of the immunity provision,

analogous decisions of this Court stating that an

- immunity provision does not preclude prosecu-

tion for perjury in the course of the proceedings,’

and the plain purpose of the immunity statute, he

held that it ‘“‘does not bar the use of all testimony

taken at a Congressional hearing in a prosecution

for contempt or conspiracy leading to contempt”’

(R. 31). The court of appeals adopted the trial

judge’s opinion on this question (R. 642-643). In

our view, no other construction of the statute is

reasonably possible.

5 Glickstein v. United States, 222 U. S. 189, 148; Heike v.

United States, 227 U.S. 131, 141.

17

Moreover, we reach the same result by another

approach to the question. In our view, peti-

tioners’ statements to the congressional committee

declining to produce the books and records were

not testimony within the meaning of the immunity

statute. Obviously, if petitioners had ignored

the subpoenas completely and had so informed the

congressional committee by letter, R. S. § 859

would in no way have any application to this case.

The situation is hardly any different where, as

here, petitioners responded to the subpoenas in

person for the purpose of declining to produce

the books and records which the congressional

committee sought. R. S. § 859 seeks to aid con-

gressional investigations by facilitating the dis-

closure of information. By no stretch of its

purpose or its words can it be said to extend to

defiance of a congressional committee by a decli-

nation to disclose the information sought. It is

difficult to believe that a witness who, having been

sworn, refuses to testify before a congressional

committee could insist that the transcript of the

proceeding could not be received at his trial for

contempt of Congress on the ground that this was

made immune by R. 8S. § 859. The present case

is no different. Only where testimony called for

by the inquiry is given does R. 8. § 859 come into

play. Any other view would pervert the statute

completely so as to grant immunity from prosecu-

tion for contempt to those who fail to disclose

information, notwithstanding that the plain pur-

18

pose of the statute is to facilitate the securing

of information by extending immunity to facts

disclosed before a congressional committee. There

is no basis in reason for petitioners’ argument

that notwithstanding that Congress has provided

for the criminal punishment of those who defy its

authority, it also has foreclosed the courts from

receiving the most persuasive evidence of the vio-

lation by extending immunity to petitioners’ state-

ments declining to comply with the subpoenas and

produce the demanded books and records.

4. Petitioners’ argument (Pet. 19-20), in effect,

that they were strangers to the books and records

and were incapable of producing them hardly

justifies comment. The record shows that peti-

tioner Barsky, Chairman of JAFRC, had earlier

informed the congressional committee that ‘‘the

Executive Board would have the ultimate au-

thority to produce the records’? (R. 427). The

correctness of this statement is borne out by what

petitioners as members of the Executive Board

did. Thus, on December 14, 1945, when the first

subpoena was served on Miss Bryan, the Execu-

tive Secretary of the organization, the Executive

Board met immediately and formally instructed

petitioner Barsky and Miss Bryan to consult

with counsel, at the same time denying the au-

thority of the congressional committee to investi-

gate JAFRC (R. 540-542). Miss Bryan did not

produce the books and records (R. 223). There-

Re ere

19

after a subpoena was served on petitioner Barsky,

and two days before he was scheduled to appear

before the congressional committee, petitioners

met again and this time by formal resolution di-

rected Barsky not to produce the records called

for by the subpoena (R. 542-544). It was at this

juncture that Barsky justified his failure to com-

ply with the subpoena on the ground that he did

not have possession of the books and records and

that ‘“‘ultimate authority’? was in the Executive

Board. Thereafter, when the members of the

Executive Board were directed to produce the

books and records, they declined to do so on the

ground that Miss Bryan had custody of them. _

The short of the matter is that petitioners

indisputably could have complied with the sub-

poenas if they had been so inclined. Their failure

to produce the books and records on the ground

that they were incapable of complying is directly

in the teeth of their formal resolution, acting as

the Executive Board, directing petitioner Barsky

not to furnish them to the Congressional Com-

mittee. Their conduct demonstrates an obvious

and studied effort to shift legal responsibility

for defying the Congressional Committee from

themselves to their subordinate, Miss Bryan.

The trial judge instructed the jury that they

could not convict unless they found that each

“‘defendant, alone or in concert with one or more

of the defendants, had custody or dominion and

~

20

control over such records”’ (R. 610). And in this

respect the jury were further instructed that

(R. 610):

* * * it is the law that when two or

more persons act in concert or participate

in an illegal activity, each is responsible,

irrespective of the part he plays in the

activity; or if one person aids or abets,

advises, or counsels, or encourages another

to commit an offense, he is equally liable

under the criminal law with the one who

physically commits it. * * **

The jury could not reasonably have concluded

other than that the Executive Board was fully

capable of producing the books and records and

that petitioners acting in concert as members

of that Board wilfully refused to honor the de-

mand of the Congressional Committee. The

soundness of this conclusion is strikingly illus-

trated by the fact that these same petitioners

who purportedly could not produce the books and

records for the Congressional Committee had no

* Since anyone who aids, abets, procures or commands an-

other to commit a crime is liable as a principal (18 U. S. C.

550), it is settled that it is unnecessary that the indictment

“specifically charge him as an aider and abettor. It is sufficient

that the evidence discloses guilt on an aiding and abetting

basis and the jury is correctly instructed. That was the situ-

ation in Bozza v. United States, 330 U. S. 160, 164. See Jin

Fuey Moy v. United States, 254 U. S. 189, 192; Melling v.

United States, 25 F. 2d 92, 93 (C. C. A. 7) ; Collins v. United

States, 20 F. 2d 574, 578 (C. C. A. 8) ; Harris v. United States,

273 Fed. 785, 790 (C. C. A. 2), certiorari denied, 257 U.S. 646.

— |

eV

21

difficulty in offering them, even without a sub-

poena, at their trial (see R. 233; Pet. 8).’

CONCLUSION

In its essential aspects this case is no different

from Josephson v. United States, supra. The

reasons which led to the denial of the petition

for a writ of certiorari in that case compel the

same result here.

Respectfully submitted.

Puitie B. PERLMAN,

Solicitor General.

T. VINCENT QUINN,

ssistant Attorney General.

Rosert 8S. ERDAHL,

Irvine 8S. SHAPIRO,

Attorneys.

May, 1948.

* Petitioners suggest (Pet. 18-19) that the wilfulness re-

quired by R. S. § 102 is a specific intent, which they say was

not shown. It is plain that they knew that they were re-

quired to comply with the subpoenas and that pursuant to

advice of counsel they intentionally did not place themselves

in compliance. This was wilful misconduct within the mean-

ing of the statute. Fields v. United States, 164 F. 2d 97, 100

(App. D. C.), certiorari denied, 332 U. S. 851. Pure motive,

if petitioners had it, does not relieve them from their inten-

tional misconduct. See Sinclair v. United States, 279 U.S.

263, 299, which involved a prosecution for refusal to answer

a pertinent question at a Congressional inquiry.

©. S. GOVERNMENT PRINTING OFFICE: 1948