# United States v. Fleischman/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinions Black Frankfurter
United States Supreme Court
339 U.S. 349
United States v. Fleischman
Argued: Dec. 15, 1949. --- Decided: May 8, 1950
Respondent Fleischman is a member of the executive board of an organization known as the Joint Anti-Fascist Refugee Committee (hereinafter referred to as the association), which, during 1945 and 1946, was under investigation by the House Committee on Un-American Activities. In furtherance of its investigation, the Committee issued subpoenas on March 29, 1946, to each of the members of the executive board and to Helen R. Bryan, the executive secretary of the association, demanding that they produce certain of the association's records in the Committee's chamber on April 4, 1946. Fleischman and the other members of the board appeared on that date in response to the subpoenas but did not produce the records. The Committee thereupon reported to the House that the members of the executive board were in contempt of that body. After debate, the House voted to direct the Speaker to certify the Committee's report to the United States District Attorney for legal action.
Respondent and the other members of the executive board were jointly indicted for wilful default under R.S. § 102, but Fleischman was tried separately from the others. Her defense, like that of Bryan, consisted in part in the contention that she could not be guilty of wilful default because a quorum of the Committee had not been present when she appeared in response to the subpoena. The trial court withdrew that issue from the jury, holding 'as a matter of law, that the Committee on Un-American Activities of the House of Representatives was a validly constituted committee of Congress, and was at the time of the defendant's appearance.' The Court of Appeals for the District of Columbia reversed, one judge dissenting, 84 U.S.App.D.C. 388, 174 F.2d 519, on the ground that presence of a quorum of the Committee at the time of respondent's appearance was a material question of fact for the jury. The court also divided on the question of whether there was sufficient evidence to support the conviction, a majority holding the evidence sufficient. We granted a writ of certiorari, 338 U.S. 846, 70 S.Ct. 86, to consider these important questions arising under R.S. § 102.
The quorum question is governed by our decision this day in United States v. Bryan, 339 U.S. 323, 70 S.Ct. 724. Like Bryan, respondent testified before the Committee on the return day of the subpoena without making any suggestion of lack of a quorum. That issue was raised for the first time at the trial, two years after her appearance before the Committee, where she had given other reasons for her failure to produce the documents. Under the circumstances disclosed by this record, we think the defense of lack of quorum was not available to her.
The question of the admissibility of her testimony before the House Committee at her trial for wilful default is likewise governed by our decision in the Bryan case where we held that R.S. § 859, 18 U.S.C. § 3486, 18 U.S.C.A. § 3486, cannot be read to prevent the introduction of testimony of this kind at a trial for wilful default under R.S. § 102.
There remains the question of the sufficiency of the evidence to support the verdict of guilt in this case. That evidence consisted in part of the record of the Committee's unsuccessful efforts over a period of four months to obtain the books and papers of the association from its chairman and executive secretary, of which there is evidence of respondent's knowledge. Other evidence introduced may reasonably be taken to establish the following facts: Following its unsuccessful attempts to obtain the records from the chairman and executive secretary, the Committee issued subpoenas to all sixteen members of the executive board of the association, commanding them to appear on April 4, 1946, in the Committee's chamber, there to produce the records. The subpoena served on respondent was addressed to her as 'a member of the executive board of the Joint Anti-Fascist Refugee Committee.' The board had power, its members acting jointly, to direct Miss Bryan to produce the records, to transfer custody of the documents to some other person, or to remove her from office. But during the interval between March 29, when the subpoenas were issued, and April 4, when its members appeared before the Committee, no meeting of the executive board was held to discuss compliance. A number of members of the board met in an attorney's office in New York on April 2, when he gave to each a typewritten statement to read to the Committee.
All of the members who had been subpoenaed appeared at the time and place specified in the subpoenas. No one produced the records. Each of the sixteen members of the board, including respondent, read or handed to the Committee the identically worded statements prepared by the association's attorney. These statements read: 'I individually do not have possession, custody, or control over any of the material requested in the subpoena which was served upon me. The books, rescords, and correspondence of the Joint Anti-Fascist Refugee Committee are in the possession, custody, and control of Miss Helen R. Bryan, the executive secretary of our organization, and she is the legal custodian of the material. Since I do not have either in my possession, custody, or control the books, records, and documents described in the subpoena, I am unable to comply with your order to produce them.'
Upon being questioned by the Committee as to whether she, individually, would give her consent to production of the books, respondent's answer was that that question was 'not pertinent'; that she would decide only at a meeting of the board.
Respondent and the other members of the board were jointly indicted on a charge that they 'appeared before the Congressional Committee in the City of Washington, District of Columbia, on April 4, 1946, but failed to produce the records called for in the subpoenas, as they had power to do, and thereby wilfully made default.' As we have pointed out, there is evidence to support the charge that the records were under the joint control of the members of the executive board and that the individual members, acting together, had power to produce them. It is contended, however, that respondent (in this respect no different from any other member) had no individual control over the records, and that there is thus no evidence that the nonproduction of the records resulted from anything she personally did or omitted to do.
It seems elementary that the only manner by which a duty requiring the joint participation of several persons may be performed is by a combination of individual performances. And conversely, the failure to perform such a duty is the result of a failure by some or all of the persons who have been ordered to act together to discharge their responsibilities. This failure is not necessarily the result of a conspiracy, which premises an agreement of some kind. One may, either alone or in concert with others, fail to perform his individual part of a task requiring joint participation.
When one accepts an office of joint responsibility, whether on a board of directors of a corporation, the governing board of a municipality, or any other position in which compliance with lawful orders requires joint action by a responsible body of which he is a member, he necessarily assumes an individual responsibility to act, within the limits of his power to do so, to bring about compliance with the order. It may be that the efforts of one member of the board will avail nothing. If he does all he can, he will not be punished because of the recalcitrance of others. Commissioners v. Sellew, 1879, 99 U.S. 624, 627, 25 L.Ed. 333. But to hold that, because compliance with an order directed to the directors of a corporation or other organization requires common action by several persons, no one of them is individually responsible for the failure of the organization to comply, is effectually to remove such organizations beyond the reach of legislative and judicial commands. This Court and the state courts which have considered the matter have adopted a contrary view. In Wilson v. United States, 1911, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771, Ann.Cas.1912D, 558, Mr. Justice Hughes stated the proposition thus: 'A command to the corporation is in effect a command to those who are officially responsible for the conduct of its affairs. If they, apprised of the writ directed to the corporation, prevent compliance or fail to take appropriate action within their power for the performance of the corporate duty, they, no less than the corporation itself, are guilty of disobedience, and may be punished for contempt.' Id. 221 U.S. at page 376, 31 S.Ct. at page 543. (Emphasis supplied.) See also Commissioners v. Sellew, supra.
Nor is a distinction to be drawn on the ground that a corporation was there involved while the Joint Anti-Fascist Refugee Committee is an unincorporated association. Brown v. United States, 1928, 276 U.S. 134, 141-142, 48 S.Ct. 288, 289, 72 L.Ed. 500, makes it clear that a subpoena directed to an unincorporated association and its officers is equally valid. If the legislative committee had a right to demand the records, the directing officers of the association are quite as responsible for their production as if they were corporate officers. Cf. United States v. White, 1944, 322 U.S. 694, 64 S.Ct. 1248, 88 L.Ed. 1542, 152 A.L.R. 1202.
The question that remains is whether, after introducing evidence that the board had power to produce the records, that it had not done so, and that each member of the board had read the identical statements quoted above as his reason for noncompliance, the Government has the further burden of proving that each individual member had not done that which was within his power to bring about compliance with the Committee's order. It may well be that respondent's prepared statement before the Committee and her answers to the Committee's questions are sufficient in themselves to satisfy that requirement. For they indicate clearly that respondent had assumed no personal duty to do anything. The prepared statement was, of course, a patent evasion of the Committee's demands. While stating that each member of the executive board individually did not have control over the records, it does not deny, as it could not, that the members had power jointly to comply with the subpoenas. Since the subpoenas required that they act jointly-the previous demands on the chairman and the executive secretary individually having been of no avail-the statement that the members individually had no power to comply is completely irrelevant.
And when the Committee asked respondent whether she, personally, would permit the Committee to have access to the books, her answer again was an evasion. She said: 'I don't think it is pertinent to say what I should do a week from now.'
The difficulty with the position is that it is not for her nor any other member of the board to say that she would make up her mind next week. The return day of the subpoena had arrived. No one so much as hinted that there had been no time to act. The members had gathered in an attorney's office on April 2, when they received their statements. There was evidence that some members had gathered informally elsewhere to discuss the question of compliance. In fact all were present in the anteroom of the Committee's chamber on the morning of April 4. If there had been the slightest bent toward compliance, the opportunities were there. When respondent appeared before the Committee, she was asked in effect, as of that time, whether she was a party to the joint refusal to produce the records: 'Would you now, right here now, give your consent to this committee to (see the books and records)?' As one of the members of the Committee stated to respondent: 'That is the main thing, the whole case.' Her answer was no answer.
It may be argued, however, that respondent may have adopted the position of the other members of the board only after she had tried in good faith to bring about compliance with the subpoena. Or perhaps she had been ill or necessarily out of town immediately prior to April 4. Granting that these or other excuses for nonaction may exist, must the Government negative each, or was the burden on respondent to advance them as defensive matter?
We think that the circumstances of this case fairly bring into play the familiar doctrine in criminal cases that 'it is not incumbent on the prosecution to adduce positive evidence to support a negative averment the truth of which is fairly indicated by established circumstances and which, if untrue, could be readily disproved by the production of documents or other evidence probably within the defendant's possession or control.' Rossi v. United States, 1933, 289 U.S. 89, 91-92, 53 S.Ct. 532, 533, 77 L.Ed. 1051, and authorities cited. The considerations that govern this question have been well stated by Mr. Justice Cardozo in discussing a similar question-the constitutionality of a statute which shifted the burden of proof in a criminal prosecution to the defendant. He said:
'The decisions are manifold that within limits of reason and fairness the burden of proof may be lifted from the state in criminal prosecutions and cast on a defendant. The limits are in substance these, that the state shall have proved enough to make it just for the defendant to be required to repel what has been proved with excuse or explanation, or at least that upon a balancing of convenience or of the opportunities for knowledge the shifting of the burden will be found to be an aid to the accuser without subjecting the accused to hardship or oppression.
'* * * For a transfer of the burden, experience must teach that the evidence held to be inculpatory has at least a sinister significance * * * or, if this at times be lacking, there must be in any event a manifest disparity in convenience of proof and opportunity for knowledge, as, for instance, where a general prohibition is applicable to every one who is unable to bring himself within the range of an exception. Greenleaf, Evidence, Vol. 1, § 79. The list is not exhaustive. Other instances may have arisen or may develop in the future where the balance of convenience can be redressed without oppression to the defendant through the same procedural expedient. The decisive considerations are too variable, too much distinctions of degree, too dependent in last analysis upon a common sense estimate of fairness or of facilities of proof, to be crowded into a formula. Once can do no more than adumbrate them; sharper definition must await the specific case as it arises.' Morrison v. People of State of California, 1934, 291 U.S. 82, 88-91, 54 S.Ct. 281, 284, 78 L.Ed. 664.
In this situation, manifestly, the prosecution is under a serious practical handicap if it must prove the negative proposition-that respondent did not or had no good reason for failing to try to comply with the subpoena insofar as she was able. The possibilities of time and circumstance are of such wide range as to defy inclusive rebuttal. On the other hand, the burden of the affirmative was not an oppressive one for respondent to undertake; the relevant facts are peculiarly within her knowledge. She was called upon merely to introduce evidence as to what steps she took after receiving the subpoena, or, if she took no action, any evidence tending to excuse her omission. Respondent does not lose the presumption of innocence that surrounds the defendant in a criminal prosecution. That presumption continues to operate until overcome by proof of guilt beyond a reasonable doubt and is not to be confused with burden of proof, which is a rule affecting merely the time and manner of proof. See 1 Wharton, Evidence (11th Ed.) §§ 199-204.
Even though we assume, therefore, contrary to the reasonable inferences to be drawn from respondent's statements before the Committee, that she may have made some effort to bring about compliance with the subpoena, or had some excuse for failing to do so, we think that under the circumstances here presented the burden was upon her to present evidence to sustain such a defense. And, in the absence of such evidence, we conclude that the evidence adduced by the Government amply sustains the conviction. Respondent is no more or less guilty than any other member of the board. If she can escape prosecution by remaining quiescent, so can all the others. If hers is a valid defense, then all that the directors of a corporation need do when they and the corporation are served with subpoenas is to refrain from discussing compliance with the order. No one need make any attempt to comply, for none of them 'individually' has control over the action-or nonaction-of the corporation. A stratagem so transparent does not cast a shadow of substance.
It should be emphasized that we are not dealing with the duties of witnesses summoned by one committee but with the obligations owed by persons summoned by authority of the Senate or House of Representatives to appear before any person or group designated by that authority. Reforms in the practices and procedures of certain committees are vigorously demanded by persons both within and without Congress. We would not be understood in this case as expressing either approval or disapproval of those practices. But the remedy, if any is needed, is certainly not to destroy the effective operation of all committees, which is the necessary result if they cannot compel the disclosure of facts. A subpoena is a sterile document if its orders may be flouted with impunity.
Respondent advances a number of contentions which were not passed upon by the Court of Appeals. We do not decide them at this time. The judgment of the Court of Appeals is
Reversed.
Mr. Justice DOUGLAS and Mr. Justice CLARK took no part in the consideration or decision of this case.
Mr. Justice BLACK, with whom Mr. Justice FRANKFURTER concurs, dissenting.

## Notes

* ↑ 11 Stat. 155, as amended, R.S. § 102, 2 U.S.C. § 192, 2 U.S.C.A. § 192. 'Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, 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, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.'
* ↑ See United States v. Bryan, 339 U.S. 323; 70 S.Ct. 724.
* ↑ This evidence consisted of a resolution passed by the executive board on December 14, 1945, condemning the Committee's investigation and directing Miss Bryan to consult with an attorney with a view toward protecting the records from the Committee, and the minutes of a meeting of February 11, 1946, at which the executive board voted to instruct Dr. Barsky not to produce the records before the Committee, as he had been ordered to do. While respondent did not participate in either of these actions, her knowledge of the Committee's efforts to obtain the records and the board's previous actions with respect thereto was shown by evidence of her attendance of a board meeting in March, 1946, when Dr. Barsky reported concerning his appearance before the Committee on February 13, and the association's attorney was present and talked to the board about its legal position in the matter.
* ↑ The subpoena served on Mrs. Fleischman read as follows:
* ↑ Mrs. Fleischman's testimony concerning the powers and authority of the executive board was as follows:
* ↑ For applications of this principle in the analogous situation presented by noncompliance with a mandamus, see State ex rel. Gulf Life Ins. Co. v. City of Live Oak, 1936, 126 Fla. 132, 170 So. 608; Littlefield v. Town of Adel, 1921, 151 Ga. 684, 108 S.E. 56; Smith v. Lott, 1923, 156 Ga. 590, 119 S.E. 400, 30 A.L.R. 145; McCulloch v. State, 1910, 174 Ind. 525, 92 N.E. 543; Middle States Utilities Co. v. City of Osceola, 1942, 231 Iowa 462, 1 N.W.2d 643; Kentucky Culvert Mfg. Co. v. Elliott County Fiscal Court, 1931, 239 Ky. 797, 40 S.W.2d 375; State ex rel. City of Minneapolis v. Minneapolis Street R. Co., 1923, 154 Minn. 401, 191 N.W. 1004; Heather v. City of Palmyra, 1927, 317 Mo. 1320, 298 S.W. 750; Commonwealth ex rel. Brown v. Schmidt, 1926, 287 Pa. 150, 134 A. 478; Butler County v. Pittsburgh, H., B. & N.C.R. Co., 1929, 298 Pa. 347, 148 A. 504.
* ↑ It is suggested that the Wilson case is distinguishable because it may be inferred from the fact that, according to Government counsel, the Government had been after the records 'in one way or another' for nearly a month that the subpoenas duces tecum served upon the directors had been supplemented by oral orders. There is not one word in the Wilson record that supports such an inference. On the contrary, the grand jury's presentment was not for failure to obey any oral commands but 'for failure to obey a certain subpoena issued out of this Court, dated October 28, 1910.' Vide the following:
* ↑ The argument that respondent was tried and convicted upon a theory different from that upon which the evidence is here found sufficient to sustain the conviction is refuted by the record, which is full of discussion concerning the import of the Wilson case. The following is representative:
* ↑ See also Williams v. United States, 1943, 78 U.S.App.D.C. 147, 138 F.2d 81, 153 A.L.R. 1213. In Tot v. United States, 1943, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519, this Court refused to uphold a federal statute creating a presumpton that firearms found in the possession of one who has previously been convicted of a crime of violence were received by him in interstate or foreign commerce after July 30, 1938, on the ground that the presumption is 'inconsistent with any argument drawn from experience.' Id. 319 U.S. at page 468, 63 S.Ct. at page 1245.
* ↑ This conclusion is buttressed by the fact that such a burden ordinarily is cast upon members of the governing boards of corporations and associations which have not complied with court orders, when they are brought into court on contempt charges. In Wilson v. United States, 1911, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771, Ann.Cas.1912D, 558, where Wilson, the president of the corporation, had custody of the books and had removed them to his home, the corporation and five of its directors were served with subpoenas to produce. The directors appeared in court and were not held in contempt although they did not produce the books because, as this Court noted in its opinion: 'On behalf of the directors before the court, it was stated that they had made efforts to obtain the books for production before the grand jury, but that Wilson had declined to surrender them. They presented the minutes of a meeting of the board of directors held on that day, at which these directors, (i.e. those who had been served with subpoenas) constituting a majority of the board, had passed a resolution demanding of Wilson the possession of the letterpress copy books called for by the subpoena 'for the production of the same before the Federal grand jury." Id. 221 U.S. at page 371, 31 S.Ct. at page 540. Again, in contrasting Wilson's actions with those of the directors, the Court stated: 'The appellant did not attempt to assert any right on (the corporation's) part; his conduct was in antagonism to the corporation, so far as its attitude is shown. A majority of the directors, not including the appellant, appeared before the court and urged their solicitude to comply with the writ. They presented their formal action, taken at a meeting of the board, in which they demanded of the appellant the delivery of the books for production before the grand jury.' Id. 221 U.S. at page 376, 31 S.Ct. at page 542. In considering this practice it should be noted that in criminal contempts, as in criminal cases, the presumption of innocence obtains; proof of guilt must be beyond a reasonable doubt; and the defendant may not be compelled to be a witness against himself. Gompers v. Bucks Stove & Range Co., 1911, 221 U.S. 418, 444, 31 S.Ct. 492, 499, 55 L.Ed. 797, 34 L.R.A., N.S., 874; United States v. Goldman, 1928, 277 U.S. 229, 235-236, 48 S.Ct. 486, 487, 488, 72 L.Ed. 862; Michaelson v. United States ex rel. Chicago, St. P., M. & O.R. Co., 1924, 266 U.S. 42, 67, 45 S.Ct. 18, 20, 69 L.Ed. 162, 35 A.L.R. 451.
* ↑ The proposition that one who tries but fails to obtain compliance with a subpoena requiring the joint action of several persons has made a useless and 'empty gesture' which should not be compelled by the courts overlooks the fact that if enough members of the governing body make the attempt required by the subpoenas their joint effort will ordinarily be successful. In the Wilson case itself the difference between imprisonment of the directors for contempt and their acquittal was their 'empty gesture' of calling upon Wilson to produce the records. See note 10, supra.
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