Harry Sacher v. United States

252 F.2d 828, 102 U.S. App. D.C. 264, 1958 U.S. App. LEXIS 3783

• Court: Court of Appeals for the D.C. Circuit
• Decided: January 31, 1958
• Docket: 13302
• Status: Published

Opinions

BURGER, Circuit Judge.

Appellant Harry Sacher was convicted in the District Court under a three count indictment which charged him with violation of 2 U.S.C.A. § 192 for having refused to answer three questions¹ of a subcommittee of a Senate Committee which questions were found to be pertinent to a subject then under inquiry.² Appellant was sentenced to six months imprisonment and $1000 fine. Thereafter this court affirmed the District Court³ and while a petition for certiorari was pending in the Supreme Court, the case of Watkins v. United States⁴ was decided. Shortly thereafter, the Supreme Court granted certiorari and remanded the instant case ⁵ for reconsideration in light of Watkins v. United States. This court then set the appeal for reargument before the court en banc, received additional briefs and heard arguments.

On remand appellant raises four issues which he contends are controlled by the Watkins case: (1) the indictment failed to allege essential elements of the offense; (2) the inquiry infringed First Amendment rights of privacy; (3) the Senate Resolution 366, which established the subcommittee, is invalid; (4) it was not indisputably clear to appellant that the questions were pertinent to the subject matter of the inquiry.

I. Sufficiency of Indictment.

While conceding that the “Watkins case does not, of course, deal directly with the sufficiency of the indictment,” appellant urges his indictment was constitutionally insufficient because it did not recite “the nature of the matter under inquiry and that the matter under inquiry was within the subcommittee’s delegated authority.” In our view nothing said or implied in the Watkins opinion suggests the Court intended to interpret Rule 7c, Fed.R.Crim.P., 18 U.S.C.A., to require that an indictment under 2 U.S.C.A. § 192 recite details of the authority and scope of the inquiry. We see no reason to alter our earlier holding that the indictment is sufficient.⁶

II. Infringement of First Amendment.

Appellant urges that “even if pertinent,” information as to membership in the Communist Party or the “Lawyers’ Section” thereof, “was altogether too remote from the subject under inquiry [the Matusow recantation] to justify an invasion of his protected freedoms,” under the First Amendment. The Supreme Court has indicated that where the exercise of the investigative powers of Congress comes into conflict with the rights to freedom of expression and (presumably) freedom of association, the need for clarity in the congressional Resolution becomes more acute. “The delegation of power to the committee must be clearly revealed in its charter.” United States v. Rumely, 1953, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770, cited in Watkins. The Watkins opinion [354 U.S. 178, 77 S.Ct. 1185] also emphasizes that “not all such inquiries [which impinge on First Amendment freedoms] are barred” and that they are not invalid unless “unrelated to any legislative purpose.” It is plain that the courts must find the presence of a valid purpose related to lawmaking to justify “compelled disclosure.” Congress is not permitted to expose only to embarrass. We considered this contention carefully in our earlier opinion, saying, “It is difficult to imagine a clearer ‘overriding public interest’ than an inquiry into an alleged conspiracy to discredit the congressional and judicial processes by suborning witnesses and by procuring recantations of testimony upon which Congress and the courts have theretofore relied.” 99 U.S.App.D.C. 360, 366, 240 F.2d 46, 52. We hold that appellant’s right to refuse to say whether he is a member of the Communist Party is not greater than the right of the Senate to inquire into the conspiracy just described and to know appellant’s connection, if any, with Communist action groups provided the answer might shed light on the primary inquiry. Even if we were to assume that the right to engage in Communist Party activity is a right protected by the First Amendment, which of course we do not concede, that right, not being absolute, must yield to a superior public need, such as that presented here. Nothing in the Watkins ⁷ opinion suggests that our prior holding in this respect should not be adhered to.

III. Validity of Senate Resolution 366.

In a prosecution for contempt of Congress under 2 U.S.C.A. § 192, such as presented here, the resolution of the parent body must show that there was a valid legislative purpose for the inquiry. Unless this is shown, the courts cannot determine whether the inquiry was pursuant to a valid legislative purpose and whether the inquiry was within the authority delegated by the parent body. The Watkins case dealt with a resolution criticized by the Supreme Court for its vagueness. We are dealing with a different resolution. Senate Resolution 366 so far as we rely on it provides as follows:

“Resolved, That the Committee on the Judiciary, or any duly authorized subcommittee thereof, is authorized and directed to make a complete and continuing study and investigation of (1) the administration, operation, and enforcement of the Internal Security Act of 1950; (2) the administration, operation, and enforcement of other laws relating to espionage, sabotage, and the protection of the internal security of the United States * * *

Bare recital of this portion of the resolution discloses that it is not subject to the same criticism as was directed at the House Resolution under which Watkins was questioned. It sufficiently describes “the kind of investigation that the committee was directed to make.” When appellant was before the subcommittee the Internal Security Act of 1950, 50 U.S.C. A. § 781 et seq., was recent legislation; in many respects it was novel, and its enforcement, and that of related laws was of acute interest and concern to the Congress, the Executive Branch and the public. The enforcement or lack of enforcement could be studied in various ways, including checking the truth or falsity of reports of conspiracies to frustrate the law and its enforcement by suborning witnesses. Such inquiries are important in amending and improving laws. We are satisfied that the resolution was valid, that investigation into the Matusow recantation was authorized by the resolution, and that the Matusow inquiry was pursuant to the valid legislative purpose plainly revealed by the resolution.

IY. The Pertinency of the Questions.

The final argument urged by Sacher is three-pronged. First, he contends that the questions were not even intended to be pertinent to the Matusow inquiry, but were intended to be pertinent to an altogether different subject,⁸ and so he cannot be held to have known the questions were pertinent to the Matusow inquiry. Second he urges that the questions were not in fact pertinent to the Matusow inquiry, and so he cannot be held to have known that they were pertinent. Finally, he argues that even assuming the questions were intended to be pertinent to the Matusow inquiry, and further assuming the questions were in fact pertinent to the Matusow inquiry, still, he was not aware of these two factors at the time the questions were put to him; he correctly points out that under the Watkins case, to sustain a conviction it must appear that pertinency was made clear to the witness.

Intended Subject Matter: Appellant’s contention is that the questions were not even intended to be pertinent to the Matusow inquiry, but instead, were intended to be pertinent to an inquiry relating, as he describes it, to “a measure * * * barring Communists from practice in the Federal courts.” The determination of this issue is essentially one of fact the resolution of which depends entirely upon the record in the case.

As with almost any examination of a witness whether in court or before a committee, we find in this record a main thread of examination which is readily followed, and also occasional digressions. One digression was made from that main thread. In the original transcript this main thread, which is the Matusow inquiry, runs for 18 pages before the Count 1 question was asked. During ¿he course of those 18 pages the witness resisted various questions, raised the issue of pertinency and after exchanges with the Chairman, gave answers covering in general his contacts with Matusow and with Communist leaders. Appellant contends the Count 1 question was asked in the context of this digression.

Shortly before the Count 1 question, a single question digressed into the subject of possible legislation controlling admission of Communist Party members to practice in Federal courts. However, the record conclusively shows that as a result of objections from appellant, the digression or “excursion” was promptly terminated and the line of questions brought back to “whether Matusow lied when he testified.” The colloquy between the Chairman and appellant indisputably informed appellant that the digression was not approved by the Chairman and that he directed his counsel to ask the Count 1 question in order to “lay the foundation for this,” (emphasis added) i.e., the inquiry into “whether Matusow lied.”⁹ In this context the Count 1 question was asked. Shortly following, the Count 2 question was asked.

The questions following those covered by Counts 1 and 2 related generally to contacts with Communist Party leaders, attendance at gatherings where Communist Party members were present, including such gatherings which appellant explained as professional conferences or meetings with clients he was defending and inquiries specifically about being with named Communist Party members or leaders. As to most of these questions appellant said he could not recall. In this context he was asked the Count 3 question.

As to each of the indictment questions, as well as others, appellant protested against the alleged lack of pertinence or relevance of any inquiry about “political beliefs.” He repeatedly and emphatically equated inquiries about Communist Party membership to “political” beliefs and professional associations.¹⁰ As to the Count 3 question the Chairman explained :

“This question was not related to your defending anyone in court. The question was related to your being present or being a member of a group of lawyers, presumably, ostensibly from the question — I do not know what the answer is — dedicated to the Communist Party.”

Thus the record shows, indisputably, that the Count 1 question was plainly related by the Chairman’s statement to the announced subject matter, “whether Matusow lied” both in point of its timing and in relation to the colloquy which immediately preceded it. Similarly the succeeding questions were in that same context, and similarly after the brief “excursion.” Consequently, we hold that the questions involved here were intended to elicit answers which would throw light on the Matusow recantation inquiry; it was to the Matusow inquiry, and not to any other inquiry, that the questions were intended to be pertinent and to which they were in fact highly pertinent.

Pertinence in Fact: Appellant argues that Communist Party membership, even if shown, “could not conceivably have shed any light on the inquiry before the subcommittee.” We do not concede this for a moment. It needs no discussion to see that it was pertinent to the Matusow inquiry to find out whether appellant had any connection with a Communist conspiracy to induce Matusow to recant.¹¹ Whether appellant was a Communist was logically one of a series of questions designed to disclose the nature of his connection, if any, with the conspiracy.

In a legislative inquiry we do not find the conventional pattern of direct examination followed by cross-examination. There are no pleadings which serve to narrow the inquiry toward proof of specific issues framed in advance. The prime purpose of questions must be to get information rather than prove previously asserted claims. The witness is given wide latitude in making a statement of his own framing. A necessary preliminary is to identify the witness, his residence, occupation, general background, etc., for the record so as to give meaning to his testimony for members of the full committee or the entire Congress, few of whom ever see the witnesses. Once the witness is so identified and qualified by these “background” questions, interrogation as to the main subject matter takes place, covering the central facts, events, etc. A third phase of questions may then become pertinent, which like the background questions are pertinent on their face. This third phase is the process of testing the reliability of the witness or his possible bias and prejudice.

The Watkins case dealt with questions falling in the second phase or the main subject matter. The indictment questions fall within the third phase having to do with “testing” of answers previously given. Certainly no one would seriously suggest that the subcommittee must explain why it wants a witness to identify himself with any more explicitness than that the questions are preliminary or for background. Questions concerning a possible bias or the reliability of a witness are also pertinent on their face and if any explanation is called for it need be in terms no more explicit than that they are to test bias or reliability, i.e., are for cross-examination.

Appellant had announced his fixed position “that Matusow lied when he testified” in the Flynn case. In refusing to answer the Count 1 question he said that “an inquiry to me concerning this matter [Communist Party membership] is not pertinent to anything with which this committee is concerned, and is not relevant to any inquiry that may properly be made of me.”

The Chairman was not bound to accept this statement, for he had already explained to appellant concerning his earlier objections: “* * * you are subject to cross-examination on” statements made to the committee.¹²

In his statement immediately before and immediately after the Count 1 question, appellant was referring to the Matu-sow inquiry. His objection took fundamental issue with the subcommittee’s right to test his answers for possible bias by cross-examination as to connection with the alleged Communist conspiracy under study. Evaluation of appellant’s entire testimony would be highly influenced by the fact that he was a Communist, if indeed he was, and the best evidence on this crucial matter was the first hand knowledge of the witness. If he was a member of a party or organization reported to have conspired to discredit disaffected former Communists who appeared as witnesses against the Communist Party, it would be vital for the Subcommittee to know that fact.

Nothing could be plainer than that one of the purposes of the indictment questions was to test the reliability of appellant’s answers concerning his relationship to the Matusow recantation and his possible connection with a suspected conspiracy to discredit prosecution of Communist Party members. In view of this we have no doubt that the questions asked were in fact pertinent to the Matu-sow inquiry, and we so hold.

Appellant’s Awareness of Intended Subject Matter and Pertinence: We reach last the heart of Sacher’s case, which is the contention that even if the questions were asked with reference to the Matusow inquiry, he was not aware that they were pertinent to that inquiry. We have seen that the questions were intended to be pertinent to the Matusow inquiry, and were in fact pertinent thereto. But, under the Watkins case, it must also appear that Sacher was aware of these two elements at the time the questions were posed.

At the threshold we must resolve the question of how awareness is to be demonstrated. Must it be shown that the witness himself experienced cerebral processes which included consciousness of this element, i.e., that he was indeed actually aware, or is it sufficient to show that a reasonable person in the same circumstances would have been so aware? The latter, of course, is the historic standard of proving criminal intent.

While not expressly so stating, we think the Watkins opinion contemplates that the demonstration of pertinency must be of such clarity that a reasonable person in the situation of the witness would have understood the connection between the question and the subject matter.¹³ To interpret the Watkins opinion as establishing a purely subjective test would place the scope of legislative investigation largely, if not entirely, within the control of the witness. While a witness might, as we think this witness did, disclose his grasp of pertinency by his own responses, a witness who sat mute before a committee in the face of all explanations of “connective reasons” would place himself beyond the reach of compulsory process for all practical purposes. We do not think the Watkins opinion implied any such absurd result, sub silentio nullifying all power to compel testimony. Such a test would make a defendant in a contempt case the judge of his own guilt. Moreover it would remove control of legislative investigations from the Congress and place control in the witnesses.

The test of pertinency rationally must, therefore, be an objective test in these terms: on the whole evidence can it be said, beyond reasonable doubt, that a reasonable man in the situation of the particular witness would have known the question asked was pertinent to the subject under inquiry? Pertinence in this sense means that the specific question posed contemplates an answer which will shed some light on the subject under inquiry.

With this test in mind, we turn to whether appellant knew or should have known that the subject matter to which the questions were intended to be pertinent was the Matusow inquiry, and that the questions were in fact pertinent to that inquiry and the manner in which they were pertinent.

The Watkins case application to this situation arises out of the following statement in that opinion [354 U.S. 178, 77 S.Ct. 1193]:

“Unless the subject matter has been made to appear with undis-putable clarity, it is the duty of the investigative body, upon objection of the witness on the grounds of pertinency, to state for the record the subject under inquiry at that time and the manner in which the propounded questions are pertinent thereto. To be meaningful, the explanation must describe what the topic under inquiry is and the connective reasoning whereby the precise questions asked relate to it.” (Emphasis added.)

In other words, unless it is clear the witness knows, he is entitled to an explanation of what the subject matter is, and how the questions are pertinent.

We have already shown that the bar admission “excursion” was ended, and the thread of inquiry was back on the Matusow case, when the questions were posed. Appellant’s first words after the Count 1 question were that he understood he was called to testify about the Matu-sow recantation and he was prepared to answer questions concerning his participation in connection with that matter, but he simply was not going to discuss his “beliefs, religious, political, economic or social.” Thus he demonstrated he knew the subject was the Matusow case, but claimed he did not think questions as to his possible Communist Party membership were pertinent to it. In so doing appellant showed he was taking the risks inherent in refusing to answer. Of course we are not foreclosed by appellant’s statement that he could see no pertinency or relationship between Communist Party affiliation, if any, and the Matusow recantation. It is enough for our purpose that he should have seen the relationship and hence the pertinency.

In order to accept appellant’s thesis, that he could not reasonably be held to be aware of pertinency, we must believe that an experienced lawyer could not understand that Communist Party membership would be important in judging the value of the testimony and the credibility of a witness called to testify about his part, if any, in an alleged Communist conspiracy to subvert justice.

In these circumstances we think the explanations, including the Chairman’s statement, “You are subject to cross-examination * * * and that is what the committee is proceeding to do,” would constitute a sufficient explanation even if addressed to a layman; addressed to a seasoned litigation lawyer of thirty years’ experience, it was actually superfluous. Nevertheless it was given “for the record” and fully meets the criteria laid down by the Watkins case. If any witness could ever be in doubt about the pertinency of the instant questions to the inquiry into “whether Matusow lied when he testified” and whether there was a Communist conspiracy to discredit prosecution of Communist Party members, this appellant is not that man. By the véry answers given and statements made in his testimony and which he formally argued in his briefs, appellant demonstrated that no explanation could possibly have satisfied him or added to his knowledge.¹⁴

A witness may not frustrate the legitimate process of inquiry by shutting his mind to explanation any more than he could do so by stuffing his ears with cotton to prevent hearing the explanation. And where it is plain and clear that any reasonable man would grasp the perti-nency of the question without explanation it would be sheer nonsense for courts to say that none the less someone must, as by playing a mechanically recorded message, parrot to the witness a recital of that which the evidence shows he knows.

We hold appellant’s responses make manifest his actual awareness that the Matusow recantation was the subject matter to which the questions were related and that he was fully aware of the manner in which those specific questions were pertinent to that subject. Apart from appellant’s actual state of mind, a witness so situated reasonably should have known and could not fail to have known that the subcommittee asked these questions intending to secure information bearing on the Matusow inquiry and bearing on his own reliability as a witness and such witness should have understood that the questions were therefore pertinent to that subject.

The dissenting opinion argues that “[t]he courts should be slow, however, to hold that a person shall be ‘compelled’ over his objection publicly ‘to be a witness against himself’ by supplying obviously self-incriminating information, particularly when the area protected by the First Amendment is threatened, though he does not rest his objection on the Fifth.”

The short and simple answer to this is that every witness who thinks any answer will or may incriminate him has as absolute protection in the Fifth Amendment. Unconsciously, perhaps, the dissent shrinks from “forcing” a witness to raise the Fifth Amendment because some people may draw dark inferences from its use. Over recent years the frequent employment of the Fifth Amendment has, in the minds of some, brought it into “disrepute.” The Fifth Amendment plainly — and properly — was intended as a shield against self inerimi-nation; the First Amendment was not. The use of the First Amendment to shield one from supplying “obviously incriminating information about himself” would be a perversion of the Constitution, needless so long as the Fifth Amendment stands. Should this perversion be sanctioned it would not be long before repeated use of the First as a haven from incrimination would “contaminate” that Amendment. Mere recital of these factors demonstrates the folly of trying to adjust constitutional interpretation to meet the shifting breezes of segments of public opinion and the prevailing modes of witnesses before legislative committees.

Appellant’s conviction is

Affirmed.

1 . Count 1: “Are you, Mr. Sacher, a member of the Communist Party, U.S.A.?”

Count 2: “Have you ever been a member of the Communist Party of the United States?”

Count 3: “Are you now or have you ever been a member of the Lawyers’ Section of the Communist Party, U.S.A.?”

2 . The announced subject under inquiry was the Matusow recantation.

On several occasions after his defection from the Communist Party and prior to the time of Sacher’s appearance, Harvey Matusow had appeared before the Internal Security Subcommittee and described Communist infiltration activities. Early in 1955 Matusow recanted his testimony and said be had “lied when he testified before the [Internal Security] subcommittee and on other occasions.” Subsequently he executed affidavits, one of which was used by Sacher in a motion for a new trial for the defendant Elizabeth Flynn, who was convicted under the Smith Act, 18 U.S.O.A. § 2385, in a trial in which Matusow had been a witness against her.

3 . 1957, 99 U.S.App.D.C. 360, 240 F.2d 46.

4 . 354 U.S. 178, 77 S.Ct 1173, 1 L.Ed.2d 1273.

5 . 354 U.S. 930, 77 S.Ct. 1396, 1 L.Ed.2d 1533.

6 . This court previously considered the sufficiency of the indictment in connection with Saeher’s now abandoned point that the indictment failed to recite his failure to answer was “willful.” 99 U.S.App.D.C. 360, 367, 240 F.2d 46.

7 . In the Watkins opinion the Court emphasized that the indictment questions related to past activities of other persons, not of the witness.

8 . Viz., the admission of Communists to practice in Federal Courts, which subject, be argues, was beyond the scope of the subcommittee’s powers.

9 . Appellant objected to the digression saying he had understood he was called to testify about Matusow’s recantation and argued that he had demonstrated in the Federal Court that Matusow lied. In the course of Ms statement he repeated three times that “Matusow lied” concluding:

“Get there not be made here an attempt to prejudice the determination not only by Judge Dimoek, but by the people of the United States as to whether or not Matusow lied when he testified at the Flynn trial. * * * this is doing a disservice to the administration of justice.

“Senator McClellan. That is what we are trying to find out. Now let us proceed, Mr. Counsel, and ask the proper questions to lay the foundation for this. “Mr. Sourwine. Are you, Mr. Sacher, a member of the Communist Party, U.S.A.?” (Emphasis added.)

10 . We arc unwilling to say that appellant’s membership in the Communist Party, if ho is a member, is “political” activity or a simple exercise of rights of association protected from Congressional inquiry in all circumstances. Indeed in the light of repeated pronouncements by all three branches of Government, we would not be free to do so even were we inclined, which we are not. Participation in the work of the Communist Party, U.S.A., is not a simple matter of flexing one’s political ideas and beliefs.

11 . We pointed out in our original opinion that when the subcommittee called Sacher it had (1) reports linking Sacher with the Communist Party, (2) reports linking the Communist Party with a conspiracy to bring about Matusow’s recantation, (3) reports linking Sacher as one of the lawyers party to this conspiracy.

12 . A key to appellant’s state of mind with respect to pertinency is disclosed in his pre-Watkins brief (filed July 1956) in which he stated, “Once it had been established that appellant had no information to give the subcommittee on the question under inquiry before it, i. e., the circumstances leading to Matusow’s recantation, the appellant obviously should have been excused. In this context, the probing into appellant’s political beliefs and affiliations had no conceivable relevance to the subject matter under inquiry.” (P. 23.)

At another point in appellant’s pre-Watkins brief he said, “The scope of the investigation or the ‘question under inquiry’ was defined by the Chairman of the subcommittee, at the opening of the investigation, as dealing with the truth or falsity of the testimony given by one Harvey Matusow. * * *

“ * * * The questions put to the appellant which formed the subject matter of the indictment must be tested for pertinency as against this [the Matu-sow] subject matter as stated by the Chairman.

“Tested against this criterion the questions clearly were not pertinent since the answer to the questions could not conceivably have' shed any light on the inquiry before the subcommittee * (Pp. 18, 19, 20; emphasis added in above excerpts.)

13 . Cf. 43 Va.L.Rev. 803 (1957); 26 Geo.Wash.L.Rev. 98 (1957).

14 . “I refuse categorically, Mr. Chairman, to discuss my beliefs, religious, political, economic, or social. I do not do so on the ground of the Fifth Amendment. I do so because it is inconsistent with the dignity of any man to be compelled to disclose his political, religious, economic, social, or any other views. And I respectfully submit that an inquiry to me concerning this matter is not pertinent to anything with which this committee is concerned, and is not relevant to any inquiry that may properly be made of me.” (Emphasis added.)

Also “I shall not, under your eompulsion or anybody else’s compulsion, make any disclosure of any of my beliefs, political, religious, economic, or social, past or present, and I decline to answer your question.”

We note that Sacher appears not to have meant entirely what he said, for a few sentences later he abandoned this ground and revealed his “political” views to the extent: “I will say to the Chair that I have never been a member of any organization which I believed to be a teacher or advocate of the forceable or violent overthrow of the Government of the United States.” (Emphasis added.)