Mary Jane Keeney v. United States

218 F.2d 843

• Court: Court of Appeals for the D.C. Circuit
• Decided: October 22, 1954
• Docket: 11752
• Status: Published

Opinions

EDGERTON, Circuit Judge.

Appellant, a former employee of the United Nations, was a witness before a Subcommittee of the Committee on the Judiciary of the United States Senate. She was asked whether anyone in the State Department had aided her in obtaining employment with the United Nations.' She did not answer, and asserted a privilege not to answer by reason of the Charter and the Staff Rules of the United. Nations. On the theory that she had “refused” to answer, she was prosecuted for contempt of Congress. Rev. Stat. § 102, as amended, 52 Stat. 942, 2 U.S.C.A. § 192. The District Court overruled her claim of privilege and she was convicted. United States v. Keeney, D.C., 111 F.Supp. 233.

Appellant was not asked whether anyone in the State Department told her he would try to aid her. Perhaps it was a mistake not to ask her that question, but if so, the mistake was not hers. We need not speculate whether she would have answered that question if it had been asked, or whether she would have been punishable ’ if she had not answered it. She was asked whether anyone in the State Department did aid her-: “Did anyone in the State Department aid you in obtaining employment with the United Nations?” Whether she realized it or not, this was equivalent to asking her whether the United Nations officials who decided to appoint her had received and been influenced by communications from anyone in the State Department recommending that she be appointed.

Staff Rule 7 of the United Nations provides that “Staff members shall exercise the utmost discretion in regard to all matters of official business. They shall not communicate to any other person any unpublished information known to them by reason of their official position except in the course of their duties or by authorization of the Secretary-General.” In my opinion both the first sentence and the second sentence of this Rule support appellant’s failure to answer. (1) Since the appointment of official personnel is official business, appellant could not answer without violating her obligation to “exercise the utmost discretion in regard to all matters of official business.” She could not, consistently with “the utmost discretion”, even answer that she did not know, for that would have meant that her superiors had not told her. Whether officials do or do not tell an employee who aided her in obtaining employment is a matter of official policy and official business. (2) The question related to “unpublished information”. The United Nations does not tell the world what recommendations underlie appointments of staff members. The United Nations Administrative Manual even defines “unpublished information” to include “the appointment * * * [of] or any other confidential information concerning” a staff member. I think it plain that staff members would not have such unpublished and confidential information unless it had been made “known to them by reason of their official position”.

The Charter of the United Nations supports Staff Rule 7. The Charter provides :

“Article 100

“1. In the performance of their duties the Secretary-General and the staff shall not seek or receive instructions from any government or from any other authority external to the Organization. They shall refrain from any action which might reflect on their position as interna- ' tional officials responsible only to the Organization.

“2. Each Member of the United Nations undertakes to respect the exclusively international character of the responsibilities of the Secretary-General and the staff and.not to seek to influence them in the discharge of their responsibilities. * * *

“Article 105

“1. The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfillment of its purposes.

“2. Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization.” 59 Stat. 1052, 1053.

Compulsory disclosure of the persons who influence appointments to the staff of the United Nations would not be consistent with the independence of the Organization or “the exclusively international character of the responsibilities of the Secretary-General and the staff * * * ” (Art. 100, Par. 2.) And the prospect of such disclosure might influence staff members, in one degree or another, to regulate their official conduct with a view to avoiding embarrassment of sponsors. The privilege of nondisclosure is therefore “necessary for the independent exercise of their functions in connection with the Organization.” (Art. 105, Par. 2.)

Thus the Charter and the Staff Rules of the United Nations establish, in my opinion, the privilege on which appellant relied. And her failure to answer is within the spirit if not the letter of the International Organizations Immunities Act, which provides in § 7(b), 59 Stat. 672, 22 U.S.C.A. § 288d(b) : “Representatives of foreign governments in or to international organizations and officers and employees of such organizations shall be immune from suit and legal process relating to acts performed by them in their official capacity and falling within their functions as such representatives, officers, or employees except insofar as such immunity may be waived by the foreign government or international organization concerned.”

So far in this opinion I speak only for myself. But we all agree that appellant’s conviction must be reversed because of errors in the admission of evidence. The government had to prove that the question the Subcommittee asked was “pertinent to the question under inquiry” before the Subcommittee, i. e. to the subject of “subversive activities”. If the Supreme Court had not ruled otherwise, we should have thought this a matter for the jury to decide, like any other element of the crime with which the appellant was charged. But the Supreme Court has squarely held that the “question of pertinency under § 102” is a question for the court. Sinclair v. United States, 279 U.S. 263, 298, 49 S.Ct. 268, 73 L.Ed. 692. Cf. Bowers v. United States, 92 U.S.App.D.C. 79, 81, 202 F.2d 447, 449. Since pertinency did not concern the jury, the court erred in permitting the jury to hear testimony about the appellant’s activities which bore only on pertinency and tended strongly to prejudice the jury. Appellant’s counsel repeatedly objected to the taking of such testimony in the jury’s presence. We disagree with the government’s contention that counsel “invited” the error and that, for this reason, it does not require reversal.

I agree with Judge Prettyman that there was no obvious refusal to answer. In my own opinion there was clearly no deliberate and intentional refusal.

The result of our several opinions is this. The conviction is reversed with instructions to grant a new trial. In so far as the answer depends upon data in the files of the United Nations or upon information derived from those files, it was privileged by the Charter and the Staff Rules and could not legally be revealed. Evidence as to pertinency will be taken in the absence of the jury. The question whether the appellant’s action was under all the circumstances a deliberate and intentional refusal to answer will be put to the jury with the other jury issues.

Reversed.