FLAXER v. UNITED STATES.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT. No. 60.
Argued November 19, 1958.
Decided December 15, 1958.
Petitioner, president of a labor union, was subpoenaed to appear on October 5, 1951, before the Senate Subcommittee on Internal Security and to produce certain of the union's records, including lists of its members who were employed by the Federal Government or by any state, county or municipal government. He appeared on that date and produced some of the records but not the lists of members. The Senator who conducted the hearing directed him to produce the records "according to the terms of the subpoena." Later, after a colloquy, the Senator said, "Since you have made the reply that it could be done in a week, that will be the order of the committee, that you submit that information as requested by counsel for the committee within 10 days from this date." Petitioner was indicated under 2 U.S.C. 192 for willfully failing to produce the lists on October 5, 1951. Held: Since petitioner was not clearly apprised that he was required to produce the lists on October 5 rather than at a later time, there was no default on October 5, and the District Court should have directed an acquittal. Pp. 147-152.
103 U.S. App. D.C. 319, 258 F.2d 413, reversed.
David Rein argued the cause for petitioner. With him on the brief was Joseph Forer.
William Hitz argued the cause for the United States. On the brief were Solicitor General Rankin, Acting Assistant Attorney General Yeagley and Philip R. Monahan.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Petitioner was found guilty, after jury trial, of failure to produce, pursuant to a subpoena duces tecum issued by a Subcommittee of a Senate Committee, 1 records of a [358 U.S. 147, 148] union 2 showing the names and addresses of members of that organization who were employed either by the United States or by any state, county, or municipal government in the country. 3 The District Court denied a motion for acquittal or new trial. 112 F. Supp. 669. The Court of Appeals, sitting en banc, affirmed by a divided vote. 98 U.S. App. D.C. 324, 235 F.2d 821. On petition for a writ of certiorari we vacated and remanded for consideration in light of Watkins v. United States, 354 U.S. 178 , an intervening decision. 354 U.S. 929 . The Court of Appeals, sitting en banc, once more affirmed by a divided vote. 103 U.S. App. D.C. 319, 258 F.2d 413. We again granted certiorari. 357 U.S. 904 .
The Senate Committee on the Judiciary or a duly authorized Subcommittee was authorized 4 to investigate the administration, operation, and enforcement of the Internal Security Act of 1950. 5 The Committee created a Subcommittee which adopted a resolution to the effect that a single member would constitute a quorum for the purpose of taking testimony. [358 U.S. 147, 149]
Petitioner was head of the union under investigation. The Chairman issued a subpoena duces tecum directing him to produce, inter alia, the names and addresses of the union members mentioned above. Petitioner appeared before Senator Watkins, sitting as the Subcommittee, and produced some of the records of the union; but he failed to produce the membership lists. He made several objections to disclosure of them, maintaining that they were protected by a right of privacy. He did not maintain that the lists were unavailable to him. Indeed, he responded to further interrogation, giving the approximate number of members and indicating that about 5 percent were in the employ of the Federal Government, the balance being in state, county, and municipal governments. He also named the federal agencies where the bulk of the 5 percent were employed. But he persisted in his refusal to produce the lists. At this point in the interrogation Senator Watkins said: "You are directed by the committee to produce those records according to the terms of the subpena."
Petitioner continued to state his objections.
Committee counsel asked petitioner how long it would take him to prepare the lists. Petitioner finally said, "I imagine it could be done in a week."
Committee counsel then said:
We read the record as showing no default on that date. As we read the colloquy, petitioner, though adamant in his position, was given 10 days from October 5, 1951, to deliver the lists. It does not appear whether at the end of that 10-day period any additional steps were taken against him. Yet, for all we know, a witness who was adamant and defiant on October 5 might be meek and submissive on October 15.
We stated in Watkins v. United States, 354 U.S. 178, 208 , in reference to prosecutions for contempt under this Act that "the courts must accord to the defendants every right which is guaranteed to defendants in all other criminal cases." One of these guarantees is proof beyond a reasonable doubt that the refusal of the witness was deliberate and intentional, as Quinn v. United States, 349 U.S. 155, 165 , holds. In the Quinn case the witness was "never confronted with a clear-cut choice between compliance and noncompliance, between answering the question and risking prosecution for contempt." Id., at 166. The rulings were so imprecise as to leave the witness "to guess whether or not the committee had accepted his objection." Ibid.
In the present case, the position of the Committee was clear in one respect: it was plain it wanted the membership lists. But, to say the least, there was ambiguity in its ruling on the time of performance. The witness could well conclude, we think, that he had 10 days more to consider the matter, 10 days to face the alternative of compliance as against contempt. Certainly we cannot say that petitioner could tell with a reasonable degree of certainty that the Committee demanded the lists this very day, not 10 days hence.
We repeat what we said in the Quinn case:
[ Footnote 2 ] United Public Workers of America.
[ Footnote 3 ] 2 U.S.C. 192 provides:
[ Footnote 4 ] S. Res. 366, 81st Cong., 2d Sess.; 96 Cong. Rec. 16872.