United States v. Peter Seeger , 303 F.2d 478 ( 1962 )

KAUFMAN, Circuit Judge.

Peter Seeger appeals from a judgment of conviction entered after a trial before Thomas F. Murphy, District Judge, and a jury, on an indictment charging him with a refusal to answer ten questions asked by a subcommittee of the Committee on Un-American Activities of the House of Representatives, in violation of 2 U.S.C.A. § 192. Appellant was sentenced to imprisonment for the maximum term of one year on each of the ten counts in the indictment, to be served concurrently, and to pay the costs of his prosecution.¹

Seeger, a musician and folk singer, appeared as a witness before the subcommittee on August 18, 1955 during hearings which were being conducted on the subject of communist infiltration in the field of entertainment in New York.² Although he answered a number of questions asked by members of the subcommittee and the subcommittee’s counsel, Seeger refused to discuss allegations that he was connected with communist activities or had participated in functions allegedly sponsored by the Communist Party. The refusal was not based on a claim of constitutional privilege under the Fifth Amendment,³ but generally on Seeger’s expressed belief that the questions were either “improper” or “immoral.”⁴

Nearly one year later, on July 25, 1956, appellant’s refusal to answer those questions was reported to the House of Representatives; and the House thereupon voted to certify the report to the United States Attorney for prosecution. On March 26, 1957 the ten count indictment, predicated on appellant’s refusal to answer ten stated questions, was filed.⁵ Seeger pleaded not guilty, and subsequently moved to dismiss the indictment. In support ’of this motion it was argued, inter alia, that the indictment was defective because it failed “to state the authority of the sub-committee to conduct the inquiry before which the defendant was summoned as a witness.” The motion was denied in an oral opinion delivered from the bench.⁶

On appeal, Seeger contends that his conviction should be reversed on several grounds. Among them he challenges the authority of the subcommittee, the manner in which the hearings were conducted, the Grand Jury proceedings, and the adequacy of the indictment; moreover, he urges us to consider several errors allegedly committed by the court below during trial. Some of these contentions pertain to claimed violations of appellant’s rights under the First⁷ and Fifth Amendments to the Constitution. However, we find it unnecessary to consider the merits of any of these arguments, except one: that the indictment was defective because it failed to properly allege the authority of the subcommittee to conduct the hearings in issue, and to set forth the basis of that authority accurately.

The “Contempt of Congress” statute under which this prosecution was brought, 2 U.S.C.A. § 192, states in part:

“Every person who having been summoned as a witness by the authority of either House of Congress to give testimony * * * upon any matter under inquiry before * * * any committee * * * willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor * * * ” (italics added).

A conviction for a violation of Section 192 cannot be sustained unless it appears (1) that Congress had the constitutional power to investigate the matter in issue or to make the particular inquiry, Watkins v. U. S., 354 U.S. 178, 187, 77 S.Ct. 1173, 1 L.Ed.2d 1273 (1957); Sinclair v. U. S., 279 U.S. 263, 292, 49 S.Ct. 268, 73 L.Ed. 692 (1929); McGrain v. Daugherty, 273 U.S. 135, 173-174, 47 S.Ct. 319, 71 L.Ed. 580 (1927); Kilbourn v. Thompson, 103 U.S. 168, 196, 26 L.Ed. 377 (1880); (2) that the committee or subcommittee⁸ was duly empowered to conduct the investigation, and that the inquiry was within the scope of the grant of authority, U. S. v. Rumely, 345 U.S. 41, 42-43 (1953) 73 S.Ct. 543, 97 L.Ed. 770; U. S. v. Lamont, 236 F.2d 312, 315 (2d Cir. 1956), affirming 18 F.R.D. 27, 33 (S.D.N.Y.1955); U. S. v. Orman, 207 F.2d 148, 153 (3d Cir. 1953); U. S. v. Kamin, 136 F.Supp. 791, 793 (D.Mass.1956); (3) that the question was pertinent to the authorized inquiry, Barenblatt v. U. S., 360 U.S. 109, 123, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (1959); Sacher v. U. S., 356 U.S. 576, 577, 78 S.Ct. 842, 2 L.Ed.2d 987 (1958); and (4) that the refusal to answer was deliberate and intentional, Quinn v. U. S., 349 U.S. 155, 165, 75 S.Ct. 668, 99 L.Ed. 964 (1955).

In order to determine whether an indictment which charges a violation of 2 U.S.C.A. § 192 is valid, the Court must examine it in light of the requirement of the Sixth Amendment to the Constitution, that “in all criminal prosecutions, the accused shall enjoy the right * * * to be informed of the nature and cause of the accusation” made against him. Procedurally, this means that an indictment must set forth an offense “with clearness, and all necessary certainty, to apprise the accused of the crime with which he stands charged,” U. S. v. Mills, 7 Pet. 138, 142, 8 L.Ed. 636 (1833). Thus, it has been long recognized that “every ingredient of which the offence is composed must be accurately and clearly alleged in the indictment * * * ” U. S. v. Cook, 17 Wall. 168, 174, 21 L.Ed. 538 (1872).⁹

“The object of the indictment is, first, to furnish the accused with such a description of the charge against him as will enable him to make his defence, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had.” U. S. Cruikshank, 92 U.S. 542, 558, 23 L.Ed. 588 (1875).

U. S. v. Debrow, 346 U.S. 374, 377, 378, 74 S.Ct. 113, 98 L.Ed. 92 (1953); Hagner v. U. S., 285 U.S. 427, 431, 52 S.Ct. 417, 76 L.Ed. 861 (1932); Wong Tai v. U. S., 273 U.S. 77, 80-81, 47 S.Ct. 300, 71 L.Ed. 545 (1927); Evans v. U. S., 153 U.S. 584, 587, 14 S.Ct. 934, 38 L.Ed. 830 (1894); U. S. v. Hess, 124 U.S. 483, 487, 8 S.Ct. 571, 31 L.Ed. 516 (1888); U. S. v. Achtner, 144 F.2d 49, 51 (2d Cir. 1944).

In view of this constitutional mandate, and the undisputed fact that the Government must establish that a committee or subcommittee was duly authorized and that its investigation was within the scope of the delegated authority, an indictment under Section 192 is defective if the authority is not pleaded, U. S. v. Lamont, supra.

“The cornerstone of the Government’s case in any prosecution under § 192 must be a lawfully constituted committee engaged in an inquiry within the scope of its authority when the refusal to answer occurred. This is the hard core of its case against the defendant and he is entitled to have it pleaded in the indictment.”¹⁰

Furthermore, as Judge Weinfeld pointed out in the lower court opinion in the Lamont case,

“There is an added reason why this element should be pleaded. With pertinency also an essential element, it is important for the defendant in preparing his defense to know the claimed source of authority since ‘The initial step in determining the pertinency of the question is to ascertain the subject matter of the inquiry then being conducted by the subcommittee.’ [Bowers v. United States, 92 U.S.App.D.C. 79, 202 F.2d 447, 448.] Or, as stated by Mr. Justice Frankfurter in the Rumely case, the resolution under which the committee purports to act is the ‘controlling charter’ of its powers and governs ‘its right to exact testimony.’ [United States v. Rumely, 345 U.S. 41, 44, 73 S.Ct. 543, 545, 97 L.Ed. 770.] Since pertinency must be and has been pleaded, there is no logical reason why the authority of the com,mittee should not likewise be pleaded.” Id., 18 F.R.D. pp. 33-34 (italics added).¹¹

The Government does not appear to contest this.¹² Instead, it seeks to have us disregard and overrule the pertinent and correlative holding of U. S. v. Lamont, supra, that it is not enough to allege the subcommittee was “duly authorized,” but that “the source of its claimed authority, whether it be a resolution of the [House of Representatives] or the parent committee [Cf. United States v. DiCarlo, D.C.N.D.Ohio, 102 F.Supp. 597] should be alleged in the indictment.”¹³

This we cannot do. The Federal Rules of Criminal Procedure unmistakably require the Government to plead “the essential facts constituting the offense charged,” Rule 7(c), Fed.R.Crim.P., 18 U.S.C.A. (italics added), and not mere legal conclusions. As we have already noted, the basic function of an indictment is to inform the defendant so that he may defend himself. See, Scott, A Fair Trial for the Accused, 41 Minn.L.Rev. 509, 518 (1957).¹⁴ “For this, facts are to be stated, not conclusions of law alone,” U. S. v. Cruikshank, supra. Anxious as we are to avoid over-elaboration and formalism, we cannot condone “a formalism of generality.”¹⁵

Moreover, unless we disregard as mere surplusage certain allegations in the indictment before us, a course not urged by the Government, it is perfectly clear that the prosecutor recognized that it was necessary to allege facts indicating the subcommittee’s authority. The first paragraph of the indictment purports to relate the substance of a resolution passed by the Committee on Un-American Activities on June 8, 1955 directing the subcommittee to conduct the investigation.¹⁶ The second paragraph then states that “pursuant to said direction” the subcommittee conducted the hearings at which Seeger appeared as a witness. But the resolution of June 8, 1955 (Government Exh. 9, p. 2260) was not such an authorization to the subcommittee. It was merely a direction to the parent Committee’s clerk to proceed with an investigation. See U. S. v. Yarus, supra, 198 F.Supp. at p. 427. The resolution of July 27, 1955 (Government Exh. 8), which actually purports to authorize the subcommittee to proceed with the hearings was nowhere mentioned. In other words, instead of a “clear,” “accurate” and “unambiguous” allegation of the essential facts indicating the subcommittee’s authority, the indictment contained a wholly misleading and incorrect statement of the basis of that authority.¹⁷ This not only runs afoul of accepted notions of fair notice, but goes “to the very substance of whether or not any crime has been shown.” U. S. v. Lamont, 236 F.2d 316.

The possibility that a defendant might obtain this essential information by means of a bill of particulars does not affect our conclusion. A bill of particulars cannot repair a fatal defect in an indictment, U. S. v. Lamont, supra, at p. 315, because the defendant has a constitutional right to a fair and accurate accusation by indictment; and there is no unconditional right to a bill of particulars, U. S. v. Bentvena, D.C., 193 F.Supp. 485, 498 (1960). Furthermore, in the instant case, although the trial court did order the Government to specify the basis of the subcommittee’s authority in a bill of particulars, the vital resolution of July 27, 1955 (Government Exh. 8) was not produced in compliance with that order.¹⁸

There can be no doubt that it is the duty of every citizen to help Congress obtain information which it needs to legislate intelligently and effectively. It should be expected that persons summoned before a Congressional committee will respect its dignity; and a witness has an “unremitting obligation * * * to testify fully with respect to matters within the province of proper investigation.” Watkins v. U. S., supra, 354 U.S at pp. 187, 188.

When Congress believes that its authority has been flouted by improper behavior of a witness who has refused to give testimony before one of its subcommittees, and has voted that the witness be prosecuted for contempt, it is incumbent upon the courts to apply the sanctions provided by law for that offense. “But when Congress seeks to enforce its investigating authority through the criminal process administered by the federal judiciary, the safeguards of criminal justice become operative,” U. S. v. Sacher, 356 U.S. 577, 78 S.Ct. 843. The issue then is not only whether Congress, or the prosecutor, or even a judge might believe that the defendant is guilty of contempt; it is whether he has been accused and tried in full compliance with the transcending principles of fairness embodied in our Constitution and protected by our law.

“When society acts to deprive one of its members of his life, liberty or property, it takes its most awesome steps. No general respect for, nor adherence to, the law as a whole can well be expected without judicial recognition of the paramount need for prompt, eminently fair and sober criminal law procedures. The methods we employ in the enforcement of our criminal law have aptly been called the measures by which the quality of our civilization may be judged.” Coppedge v. U. S., 82 S.Ct. 917.

In this instance we have concluded that the prosecutor cannot put a gloss on the essential and basic teachings of the Lamont case, fortified by constitutional holdings of the Supreme Court. A defendant, faced with possible loss of liberty, should not, at the commencement of the prosecution, be made to guess whether the inquiring body had power to exact his testimony. The burden placed upon the prosecutor by a requirement that he adequately and accurately allege facts indicating the existence of this element of the crime is minor; and the Government is in no way prejudiced in its attempt to vindicate the authority of Congress. On the other hand, the benefit derived from that requirement by the accused is substantial; and the benefit is wholly consistent with, and we believe dictated by principles of fundamental fairness.

The Government would dispose of appellant’s argument as a “hypertechnical” challenge to a conviction warranted by the evidence. But an assertion that a prosecution must begin with a fair and accurate accusation involves more than mere technicality or form. It goes to substance. We are not inclined to dismiss lightly claims of constitutional stature because they are asserted by one who may appear unworthy of sympathy. “Once we embark upon shortcuts by creating a category of the ‘obviously guilty’ whose rights are denied, we run the risk that the circle of the unprotected will grow.” U. S. v. Tribote, 297 F.2d 598, 604 (2d Cir. 1961).

Reversed and indictment dismissed.

1 . Bail pending appeal was denied by the District Court, but granted by a panel of this Court on April 4, 1961.

2 . Two other persons summoned by this subcommittee (during the same hearings involved in the instant case) were indicted for violations of 2 U.S.C.A. § 192. They were acquitted after trials before Judge Sugarman, who held that the Government had not introduced sufficient competent evidence of the subcommittee’s authority to conduct an investigation. The Government’s principal evidence of authority, a resolution by the parent committee dated July 27, 1955, was held inadmissible because it was not included in a bill of particulars given to the defendants before trial. (As in this case, it was not mentioned in the indictment either.) U. S. v. Sullivan, C 152-238, S.D.N.Y. (Oct. 28, 1961); U. S. v. Yarus, 198 F.Supp. 425 (S.D.N.Y.1961).

3 . U.S.Const, amend. V. Shortly after the questioning began, the following colloquy took place:

“Mr. Scherer. Let me understand. You are not relying on the fifth amendment, are you?

“Mr. Sceger. No, sir, * * * I simply feel it is improper for this committee to ask such questions.

“Mr. Scherer. And then in answering the rest of the questions, or in refusing to answer the rest of the questions, I understand that you are not relying on the fifth amendment as a basis for your refusal to answer?

“Mi’. Seeger. No, I am not, sir” (Government Exh. 10, p. 2450).

4 . When asked the question specified by Count 1 of the indictment, the witness stated:

“I am not going to answer any questions as to my associations, my philosophical or religious beliefs or my political beliefs, or how I voted in any election or any of these private affairs. I think these are very improper questions for any American to be asked, especially under such compulsion as this” (Government Exh. 10, p. 2449). The questions which form the basis of Counts 2, 3 and 4 were not answered for the “same” reason (id., pp. 2450-51). In response to the question named in Count 5, Seeger informed the subcommittee that he felt it was “immoral to ask any American this kind of question” (id., p. 2452). Questions cited in Counts 6, 8, 9 and 10 were not answered for the “same” reasons given earlier (id., pp. 2453-54, 2458, 2460). When asked to identify a photograph of himself (Count 7) the witness replied, “Let someone else identify it” (id., p. 2454).

5 . The relevant portion of the indictment states as follows:

(caption omitted)

“The Grand Jury charges :

“Introduction

“The Committee on Un-American Activities of the House of Representatives, having been duly created and authorized by the Legislative Reorganization Act of 1946, Public Law 601, Section 121 (q) (1) (A) (2) (60 Stat. 828), and House Resolution 5, 84th Congress, on or about the 8th day of June, 1955, pursuant to said authorization, directed that an investigation be conducted of Communist infiltration in the field of entertainment in New York.

“Pursuant to said direction, in or about August, 1955, in the Southern District of New York, a duly constituted and authorized subcommittee of said Committee was holding hearings. In the course of said hearings, and on or about the 18th day of August, 1955, defendant Peter Seeger, having been summoned by the authority of the House of Representatives to give testimony, appeared as a witness before said subcommittee and was asked certain questions pertinent to the question under inquiry which pertinent questions the defendant deliberately and intentionally refused to answer.

“The allegations of this Introduction are adopted and incorporated into the counts of this indictment which follow, each of which counts will in addition designate the particular pertinent question which was asked of the defendant and which he refused to answer * * * ”

6 . U. S. v. Seeger, C 152-240, S.D.N.Y. (May 27, 1957).

7 . U.S.Const. amend. I.

8 . Section 192 applies to subcommittees as well as to committees of Congress. Barenblatt v. U. S., 100 U.S.App.D.C. 13, 240 F.2d 875, 878, vacated on other grounds, 354 U.S. 930, 77 S.Ct. 1394, 1 L.Ed.2d 1533 (1957), aff’d on rehearing, 252 F.2d 129 (1958), aff’d, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (1959).

9 . “[E]very ingredient * * * must be clearly and accurately set forth, and * * * the indictment must be free from all ambiguity, and leave no doubt in the minds of the accused and the court of the exact offence intended to be charged * * *.” Ledbetter v. U. S., 170 U.S. 606, 609-610, 18 S.Ct. 774, 42 L.Ed. 1162 (1898); see also, Cochran and Sayre v. U. S., 157 U.S. 286, 290, 15 S.Ct. 628, 39 L.Ed. 704 (1895).

10 . 18 F.R.D. 35.

11 . “The holding in the instant ease [Lamont] is not contrary to the modern design of pleading. If the authority of the tribunal will be considered prior to the elements of pertinency and constitutionality, the grant of authority should be a separate element and should be alleged in the indictments brought pursuant to section 192.” Note, 24 Geo.Wash.L.Rev. 342, 344 (1958).

12 . In U. S. v. Josephson, 165 F.2d 82, 84-85 (2d Cir. 1947), cert. denied, 333 U.S. 838, 68 S.Ct. 609, 92 L.Ed. 1122 (1948), this Court seems to have approved an indictment which failed to plead the authority of a subcommittee which conducted hearings out of which the contempt arose. However, an examination of the briefs on appeal in that case reveals that the issue had not been raised, and that the challenge made to the adequacy of the indictment was based upon other grounds. Therefore, the blanket approval given to the indictment cannot be considered a holding on this particular point.

13 . 18 F.R.D. 33.

14 . Cf. U. S. v. Pape, 144 F.2d 778, 781 (2d Cir.), cert. denied, 323 U.S. 752, 65 S.Ct. 86, 89 L.Ed. 602 (1944).

15 . Clark, J., in U. S. v. Lamont, 2 Cir., 236 F.2d 317.

16 . See n. 5, p. 1872, supra.

17 . The U. S. Court of Appeals for the District of Columbia has held that an indictment under Section 182 need not recite “details of the authority” of the committee. Sacher v. U. S., 102 U.S.App.D.C. 264, 252 F.2d 828, 831, rev’d on other grounds, 356 U.S. 576, 78 S.Ct. 842, 2 L.Ed.2d 987 (1958). The Sacher opinion offers no rationale in support of its conclusion; and it makes no reference to the Lamont case. Furthermore, the Court was concerned with the issues raised by a remand of an earlier decision in that case (240 F.2d 46 (1957)) by the Supreme Court for reconsideration in light of Watkins v. U. S., supra. Hence, it would seem that this particular issue was considered primarily in terms of questions raised in Watkins, rather than the question squarely presented to us.

18 . In addition to the Government's failure to allege the resolution of July 27, 1955 in the indictment (filed March 26, 1957), the absence of any reference to it in the bill of particulars served October 13, 1959, and the lack of any indication that it existed until two weeks before trial in March, 1961, i. e., four years after the Grand Jury proceedings, suggest that the Grand Jury may not have received evidence on the issue of the subcommittee’s authority. “If the Grand Jury did not have before it prima facie evidence that the committee was empowered to conduct the inquiry whether by resolution or otherwise, there was no basis for the return of the indictment. ‘[A] wrongful indictment inflicts a substantial harm on the indicted person * * * ’ [In re Fried, 2 Cir., 161 F.2d 453, 465, 1 A.L.R.2d 996].” U. S. v. Lamont, 18 F.R.D. 35.