# Opposition Brief — Barsky v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1948
- **Citation:** 334 U.S. 843

## Text

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; INDEX
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Statutes and resolution involved_-_....-....---------------- 3
stn ncn pap skp aeeivadtasautheabmbedanme sawn ee 5
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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.

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_1669%3A02. Public record. Not legal advice.