Abram Flaxer v. United States

PRETTYMAN, Circuit Judge.

In 1956 we affirmed the conviction of Flaxer for contempt.¹ The Supreme Court vacated our judgment and remanded² “for consideration in the light of Watkins v. United States”.³

In Barenblatt⁴ upon similar remand we held that the Supreme Court in Watkins did not vitiate in toto the resolution of the House establishing the Un-Ameri-can Activities Committee. We came to that conclusion for four reasons: (1)

The Court did not say the resolution is invalid; (2) the Coux’t discussed at length other points regarding pertinency, which discussion we deemed not to be dictum; (3) the Court cited and did not overrule a number of cases upholding convictions for contempt under the same resolution; and (4) the Court remanded the case to us for further consideration, a useless gesture if the resolution itself is invalid.

As we pointed out upon remand in Sacher⁵ the Senate resolution here involved⁶ is more precise than the House resolution criticized in Watkins. A for-tiori this resolution was not struck down by the Court in its Watkins opinion.

We have, then, only the questions posed by Watkins as to pertinency. Even if the resolution is vague, Flaxer’s responses to questions demonstrated that he knew what the subject of the inquiry was. In response to the subpoena he produced the financial and various other records of his union and, without objecting, presented them to the Committee on the record. He thus indicated that he recognized the nature of the question under inquiry. He refused to produce the membership lists but not upon the ground they were not pertinent. He objected on the ground that the Government as an employer is not entitled to know which of its employees belong to unions; he made an extensive statement of his position on that point.

Flaxer now seizes upon the word “irrelevant”, used by him in one answer, as support for his claim that he objected to the question upon pertinency grounds. The Chairman had pointed out that the Committee was in executive session and that the records would not be public upon presentation unless so ordered by the Committee. The whole of Flaxer’s answer was: “Sir, on that I don’t see any good pui’pose that these records would serve, even if I were to produce them. I think they are wholly irrelevant, if you say they are not to be made public.” In using the word “irrelevant” Flaxer was merely expressing his view of a presentation in private. The only meaning reasonably inferrable from his answer is that if not made public the records were irrelevant.

We affirm the judgment of the District Court.

Affirmed.

WASHINGTON, Circuit Judge, concurs in the result, finding no impediment in Watkins, or other controlling authority, to affirmance of the conviction.

1 . Flaxer v. United States, 98 U.S.App.D.C. 324, 235 F.2d 821.

2 . Flaxer v. United States, 354 U.S. 929, 77 S.Ct. 1392, 1 L.Ed.2d 1533 (1957).

3 . 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273 (1957).

4 . Barenblatt v. United States, 102 U.S.App.D.C. 217, 252 F.2d 129 (1958).

5 . Sacher v. United States, 102 U.S.App.D.C. 264, 252 F.2d 828 (1958).

6 . S.Res. No. 366, 81st Cong., 2d Sess. (1950).