Earl Warren: Number 8, Norton Anthony Russell versus Unites States. Mr. Fanelli.
Joseph A. Fanelli: Mr. Chief Justice sir, may it please the Court. I appear on behalf of the petitioner, Mr. Russell. His case is here on the summary calendar for review of his conviction by the District Court here in Washington, which had been affirmed by the Court of Appeals for the District of Columbia Circuit. Our first contention which has absolutely nothing to do with the powers of Congress is that the indictment was invalid for failure to specify the subject of inquiry. And the question, in view of something that Mr. Silard said in the Shelton case which preceded in this case is not whether the indictment failed precisely to -- to specify a subject of inquiry, but rather whether it has to say something about the subject of inquiry because in this case, as is true in the other five contempt cases now before the Court, there was nothing stated as to the subject of inquiry. Here, the questions upon which your petitioner was indicted are set forth in individual counts and then with respect to all of them, the indictment merely says that the questions were pertinent to the question then on under inquiry. Nothing further, just that. In the course of this argument, I shall use the term subject of inquiry rather than question of inquiry. In the Cruikshank case decided as well to go as the 92 volume of your official reports, this Court established a rule which had been prefigured and foreshadowed by decisions in the lower federal courts that when a statute defines an offense in generics terms, as the contempt statute does, that an indictment setting forth an offence pursuant to that statute must dissent its -- such an act were, must dissent to particulars. In the 85 years since this Court's decision in Cruikshank, that case has been applied repeatedly and continuously and up until just last year in the lower federal courts to invalidate indictments attempting to allege various types of crime for failure to state factual particulars instead of statutory generic terms. And a basic reason even in this Court and in the law of federal courts for such invalidation is that where an indictment uses generic terms instead of particulars, the defendant is deprived of his right under the Sixth Amendment to be apprised with reasonable certainty of the accusation against him so that he may prepare his defense. Now, we do not reduce from the Cruikshank case and the long line of cases that have followed it and applied it. We do not reduce and we do not urge that any indictment is invalid if for any generic statutory term, all of the particulars are not given. We readily admit that so broad a rule, applied in some cases wouldn't make much sense (Voice Overlap)
Felix Frankfurter: Where -- where is that indictment Mr. Fanelli?
Joseph A. Fanelli: It's at about page 6 of the record Your Honor, page 2, record 2. For example --
Felix Frankfurter: Did you ask bills of the particulars?
Joseph A. Fanelli: No, we did not but I will reach that point in just about five minute, sir. Your Honor, I may just now in its real question that the Government made an opening statement that was quite revealing at the trial. For example, in terms of a case where the Cruikshank rule might not make any sense is a -- that at the periphery of a -- the statutory offence of perjury is the requirement, that a witness had been sworn, that an indictment which fails to state the name of the person who administered the oath is not fair for that reason. The name of that person is a simple, easily identified fact. It is open to the defendant's easy investigation or to being obtained from the prosecution upon a bills of particulars and the name of the person who administered the oath is the same whether the indictment states it, whether the defendant obtains it on his own investigation or whether the prosecution supplies it by interrogatory. That essentially is the Debrow case upon which the Government relies as being applicable here but that case which makes, we don't doubt, considerable sets in the context in which it would have -- was applied, makes no sense in the context of this case. Of course, this Court does not set to apply by rule, even the well established Cruikshank line of cases or a somewhat new and novel rule that the Government suggests here that the indictments in statutory terms are generally good. We take it that that this case like other cases must be decided in its own context and I turn to that context. But I note in passing that as to the point that I am now discussing namely, whether this statute is invalid, I'm sorry this indictment is invalid for failure to specify the subject of inquiry, the context of this case is not so far as I am aware significantly different for any of the other five cases now before this Court.
Charles E. Whittaker: Mr. Fanelli?
Joseph A. Fanelli: Yes sir?
Charles E. Whittaker: May I ask you to understand, when you say indictment is invalid, I take it is that you mean it is void?
Joseph A. Fanelli: Yes sir.
Charles E. Whittaker: Is that what you mean?
Joseph A. Fanelli: Yes sir, vitiated, void, invalidated, yes sir. Yes, Your Honor.
Charles E. Whittaker: And the reason is because the petitioner (Inaudible) statement of terms, the question under or subject under inquiry.
Joseph A. Fanelli: Yes, Precisely sir.
Charles E. Whittaker: You mean that is not evidentiary?
Joseph A. Fanelli: Yes sir, precisely sir. The first important aspect of the subject -- of the context to this case is -- that in this type of contempt case and by type, Mr. Justice Frankfurter, I mean contempt of Congress' cases, the subject of inquiry is generally a very difficult thing to ascertain. It is true that those who believe that they have ascertained it, stated with confidence but different charges with equal confidence state different subjects of inquiry in the same case.
Charles E. Whittaker: May there'd be (Inaudible)?
Joseph A. Fanelli: I think they might, yes Your Honor. One need only compare the opinions of this Court in the Watkins and Sacher cases with the opinions of the court below in those same cases or as another example, one need only compare the majority and dissenting opinions of this Court in Deutch, but in any event in this case, the subject of inquiry was a very difficult thing to ascertain. As to the Government's position on it, they have always been confident that the subject of inquiry has been very clear, but it's been a different subject of inquiry at every level of this case. At trial, the Government's basic position was that the subject of inquiry was no less than House Resolution Number 5, the resolution which empowers a House Committee on un-American activities. At the same time at trial in a feeble to prove something which the Government calls special pertinence, some dozen-and-a-half possible subjects of inquiry were introduced but they were not hooked up in any way to this petitioner or the questions asked of him. On appeal to the Court of Appeals, the Government again was asserting of what the subject of inquiry was. I must take that in their brief in the Court of Appeals, it was stated somewhat ambiguously, but apparently the subject of inquiry was infiltration of communism among the leadership of the United Electrical Radio and Machine Workers of America or just possibly communist policy of colonization in essential industry. In this Court, the Government has remained confident of what was the subject of inquiry at the time the petitioner testified. In its brief and opposition that subject of inquiry according to the Government very clear, Communist activity at Anitoch College and now on its brief on the merits, the Government at least is consistent on the confidence with which it defines the subject of inquiry, now on its brief on the merits, the subject of inquiry has become communist activity and the Dayton Yellow Springs area. On the congressional side, there has been somewhat more confusion. The chairman of the subcommittee made an announcement that the outset of the hearings at which petitioner appeared. The announcement covers some six pages of the record. It recites a number of subjects that are not claimed to have any connection with the petitioner or the questions which he was asked and the (Inaudible) began in a time that must have been some five seconds, it mentions, as the chairman mentions in his announcement, that there was some sort of controversy in the Dayton Yellow Springs area. He doesn't state what the controversy was and he explicitly states that Committee is going to stay out of it. Then he goes on the say that complaints and just that complaints, not from whom or what about but just complaints from the Dayton Yellow Springs area had left to the series of hearings at which your petitioner testified. But at the trial, when we sought to ascertain what these complaints from the Dayton Yellow Springs area were about, counsel for the Government objected made the explicit statement that our questions seeking to ascertain what was the nature of these complaints was “not relevant to any issue in this case” stated that we were just on a remote fishing expedition. The Court agreed with them and we were unable to ascertain what the complaints were about. And Committee counsel who testified at the trial, at the behalf of the Government testified that the hearings at which petitioner testified or appeared that the subject of inquiry that there wasn't any particular subject of inquiry or in other words that the Committee was pursuing no subject less than House Resolution Number 5. So that at the beginning of the trial by the opening statement, during the course of the trial by our attempts to ascertain what these complaints from the Yellow Springs, Dayton Yellow Springs area were about and at the end of the trial when Committee counsel, who was the Government's last witness to testify, the Government consistently took the position at trial that the subject of inquiry was no different from, no more than, no less than but was House Resolution Number 5, the so called shadow of the House on American activities.
Potter Stewart: What did the District Court find that -- that the subject under inquiry was or didn't -- or wasn't there any subject?
Joseph A. Fanelli: The District Court Mr. Justice Stewart -- The District Court, the Court of Appeals, and the grand jury all found that the questions were pertinent to the subject of inquiry, but they all managed to do so without stating what it was.
Earl Warren: We'll recess now, Mr. --
Joseph A. Fanelli: -- Mr. Chief Justice, may it please the Court. Just before the recess, I was covering the aspect of the context here which is namely that the subject of inquiry in this case was a very difficult thing to ascertain. And in that connection, I have one more item to mention on the congressional side namely that the annual report of the Committee which was again introduced by the Government at the trial in this case states that the subject under inquiry when petitioner was testifying was, “Communist infiltration in basic industries throughout the United States.” At the same time, however, the annual report goes on to say that during the course of these hearings at which petitioner testified, several witnesses from institutions of higher learning were called apparently as site excursion. As I have already noted in answer to Mr. Justice Stewart's question, the grand jury, the trial judge, the Court of Appeals all found that the questions here were pertinent to the subject of inquiry but all managed to do so without statement of what it was. In short Your Honors, the subject of inquiry here is so difficult to ascertain that grand jury, trial judge and Court of Appeals stood silent on the subject and now, the Government clearly discerns a subject of inquiry namely communist activity in the Dayton Yellow Springs area which it specifically disavowed at trial as not related to any issue in this case and therefore part of a fishing expedition by the defense. The second important aspect of the context here with -- with relation to this point is that this elusive thing, this thing that is so difficult to ascertain, this subject of inquiry is essential as the Court noted in Deutch to the -- to determination and therefore also to defense on at least four central issues in a contempt of Congress case. Three constitutional issues namely, whether the subject transgresses First Amendment limitations, a second constitutional issue as to whether the subject of inquiry found was delegated by the Congress to this Committee and then again to the subcommittee, a third constitutional issue namely the due process, one as to whether the witness was appraised of the pertinence of the questions and the non-constitutional issue, part of the statutory offense whether the questions were pertinent to the subject of inquiry. Again, to get the real color and flavor of this, contrast a perjury case, there the ascertainment of the inquiry is not at all related to two basic issues in a perjury case, the two central issues of truth or falsity and intentional falsity or honest error. And yet, there is still a fair and important aspect of the context here on this question and that is that the failure of the grand jury to specify in this indictment, the subject of inquiry. Prejudice is not only the defendant's defense in violation of his rights pursuant to the Sixth Amendment, but also the performance by the trial court, by the Court of Appeals and by this Court of their Article 3 functions of decision -- judicial decision and review.
John M. Harlan II: You're trying to raise the questions (Inaudible)
Joseph A. Fanelli: We don't argue that he did, Your Honor.
John M. Harlan II: (Inaudible) he did?
Joseph A. Fanelli: That's right. We're not arguing here that --
John M. Harlan II: (Inaudible)
Joseph A. Fanelli: Well, when -- we're making no point of it, Your Honor --
John M. Harlan II: That means to your witness?
Joseph A. Fanelli: Well, it doesn't necessarily mean that he -- that he didn't. We're willing to assume for the purpose of this case that he did not. I don't want a prejudice other cases where someone maybe arguing differently on -- on the same set of facts or similar set of facts. So far as the petitioner is concerned, it is the failure of the grand jury to specify the subject of inquiry in this indictment that makes it possible for the prosecution to convict petitioner on House Resolution Number 5 as the subject of inquiry to get the conviction affirmed on another subject of inquiry and to argue here for affirmance on a third subject of inquiry that was disavowed as -- at trial as unrelated to any of the issues in part of a fishing expedition. The prosecution now says that we should have asked for a bill of particulars, but in answer to that suggestion, we say first, that it is the only grand jury's specification of the subject under inquiry that effectively confines the prosecution to one due process channel of prosecution for one charged offense. Second, if we had asked for a bill of particulars instead of relying on the Government's position throughout the trial and in its opening statement, I suppose that the Government would now be arguing as it doesn't show them that it's not bound by opening statements and by bill of particulars. But furthermore fundamentally we say, the persecution was clear enough on what it thought the subject of inquiry was at trial. Our trouble is not that the prosecution failed to reveal its hand on the subject of inquiry that essential part of one element of this offense rather what we sought it from is that in deprivation of petitioner's rights both under the Sixth Amendment and under the Due Process Clause and here, I have in my mind such cases as Giordenello, Stirone, Cadiacos, namely that you can't be convicted of one offence and have it affirmed on another, that in deprivation of his rights, the Government has revealed a different hand as to the subject of inquiry at every adjudicatory level of this case, as to the prejudice to this Court, to the Court of Appeals and to the trial court resulting from the failure of the indictment to specify the subject of inquiry. This Court in Watkins had verdict to the troubles on review arising from the vagueness of House Resolution Number 5, but -- yes sir?
Charles E. Whittaker: (Inaudible)
Joseph A. Fanelli: Oh, we also make that argument. But I'm trying to point out the reasons, Your Honor, why this Court should hold that an indictment in this type of case should give the nature of the subject of the inquiry. We also make an another argument independently that the proof of subject under inquiry, that is the proof of a subject -- that is a permissible subject of inquiry failed in this case.
Charles E. Whittaker: (Inaudible) indictment (Inaudible) to establish is adequate to (Inaudible) in presence of deliberate (Inaudible)
Joseph A. Fanelli: Your Honor, in answer to that question, I would like to refer you to the cases -- no, it is not the general law in our view, if I may differ with Your Honor. But I would like to refer you to the cases we have collected, beginning at page 41 of our brief and particularly, the cases cited in footnote 27 of page 43. Every one of those cases will be contrary to the suggested statement you've just made, Your Honor.
Hugo L. Black: You say foot -- footnote on page 40, what?
Joseph A. Fanelli: Footnote 27 on 43, Mr. Justice Black. But here, the situation is much worse than the difficulties of Court faced in Watkins because the indictment does not specify the subject of inquiry, this Court can be almost certain but not absolutely certain that the grand jury found House Resolution Number 5 as the subject of inquiry from which it found probable cause for pertinence because that was the Government's position at that time in the pre-Watkins phase, that is in the days before this Court's decision in Watkins. That was the Government's uniform and basic position in this case and in every other contempt to Congress case. This Court can be almost certain, but not absolutely certain that the trial judge also convicted on the basis of House Resolution Number 5, which under the Watkins case is impermissible subject of inquiry, being too vague and third, this Court can be almost certain but not absolutely certain that the Court of Appeals impermissibly in view of Cardiaco and Stirone and etcetera affirmed that conviction on the basis of still a -- another subject of inquiry although we don't know what it was because by that time, this Court had decided the Watkins case. A fourth and important aspect of this context is that to approve of this indictment is to sanction a most extraordinary violation of the well-settled rule against amendments of indictments by trial court or by prosecutor. Here, the grand jury left the blank at the very center of this case that settle upon which at least those four important questions depend which the Government, the trial judge and the Court of Appeals could fill in at will and did. And fifth and lastly and maybe most importantly is that once the grand jury has done its duty and ascertained a subject of inquiry on the basis of which it confined the probable cause to charge an offence pursuant to the contempt statute which of course is the grand jury's function and we don't understand that the Government denies that. The subject of inquiry is stated in the indictment simply without difficulty and in just a few words as Mr. Terris said to in the course of the Shelton case argument, its communist activity and infiltration of news media or here, communist activity in the Dayton Yellow Springs area. It is no difficulty at all for the grand jury or the Government to state it once the grand jury has performed its function and found it. Indeed, that is just the case of Lorch. Lorch testified at the same hearings of which petitioner testified. He was first indicted by precisely the same sort of amendment as here, but the trial court out in the Southern District of Ohio dismissed that indictment for failure to specify the subject of inquiry. The Government went back to the grand jury and got an indictment which states that the subject of inquiry at the time was communist activities in the Dayton Yellow Springs area. And if the subject of inquiry stated in just a few words, the defendant can prepare his arguments in defense and the Courts can intelligently decide on such issues has is the subject of inquiry sufficiently definite, is it within the Committee's delegated powers, is it one which outweighs the concomitant First Amendment transgressions, were the questions pertinent to it? Was the witness had far as of that pertinence? In fine, the Government insists on indictments which do not specify the subject of inquiry although there is every reason in affording the defense an opportunity for defense and in affor -- and affording the Courts an opportunity for intelligent review to insist on that specification and no reason at all for not specifying it except that prosecution can be obtained and affirmed more readily because of the very prejudice to the -- to defense and to the Courts in their Article III duty which results from non-specification. In the Sinclair case, the Court stated that the Government must plead pertinence in a contempt of Congress case and surely in view of the considerations we have advanced this Court must have meant more than the empty ritual of having the Assistant United States Attorney who's accredited to the grand jury read the statute and see that it's quoted accurately in the indictment. The Government relies heavily on the Markham case. This was a perjury case. The Government says that it holds -- that in a perjury case, you don't have to state the inquiry. And the Government says further the perjury case is just like contempt of Congress cases. We say first that in the Markham case, the opinion explicitly states and the record shows that the inquiry in the Markham case was, as this Court stated, manifest on the face of the indictment. Moreover, as we've already noted, in a contempt of Congress case, unlike a perjury case, knowledge of the subject of inquiry is the touchstone to defense and judicial solution on practically all of the important issues in the case. We might note further that per --
Earl Warren: Your time is up but I'm going to give you five minutes to respond if you -- if you should wish it Mr. Fanelli and the Government may have five minutes. (Voice Overlap)
Joseph A. Fanelli: Thank you very much.
Felix Frankfurter: Mr. Fanelli may not have the time. If I may miss -- the comment you were going to make about the bill of blank -- about the bill of particulars.
Joseph A. Fanelli: I -- I did refer to that in the course of my argument but when I get up again, I'd be glad -- glad to refer to it again, Mr. Justice unless (Voice Overlap)
Felix Frankfurter: I guess what I know whether -- may I ask this question and you can answer later? Would no bill of particulars cure, assuming you're right about the defect, is this is an incurable defect?
Joseph A. Fanelli: Well, I don't see how it can cure --
Felix Frankfurter: Well, I just -- just want to know what --
Joseph A. Fanelli: In our case --
Felix Frankfurter: Yes, in -- in this case.
Joseph A. Fanelli: Well, I don't see how a bill of particulars would have been any different from the opening statement, Your Honor and also, I don't think it would cure it in any case because --
Felix Frankfurter: I don't know if --
Joseph A. Fanelli: -- we're entitled, Your Honor, even if they haven't made an opening statement, we're entitled to be tried on what the grand jury found as this offense, not on what the Assistant United States attorney thinks it is and therefore, his statement to us doesn't supply that the effect on the indictment --
Felix Frankfurter: But whatever difference there maybe between an opening statement, I suppose there were some difference between talk and the deliberateness of a bill of particular, but waiving that you say this is -- this was an incurable inadequacy --
Joseph A. Fanelli: Yes, sir.
Felix Frankfurter: -- falling short of the requirement of the constitutional provision?
Joseph A. Fanelli: You have stated our contention precisely. Thank you.
Earl Warren: Mr. Maroney.
Kevin T. Maroney: Mr. Chief Justice, may it please the Court. It is our view that the indictments in each of these cases which are for purposes of the argument just made substantially identical conform to the requirements of Rule 7 (c) of the Federal Rules of Criminal Procedure in that they are plain, concise and definite written statements of the essential allegations of the offense. As Justice Whittaker suggested, it is well-established that indictments in the statutory language are ordinarily sufficient. That was the rule enunciated by this Court in the Debrow case. It was also repeated in the Markham case, which is particularly apposite here because the Markham case involved a determination by the Court of the sufficiency of an averment in the indictment that the alleged false statement, that was perjury case, the alleged false statement was material to a question on an -- then under inquiry by the Veterans Administration.
Hugo L. Black: What case is that?
Kevin T. Maroney: That's --
Hugo L. Black: Is that cited in your brief?
Kevin T. Maroney: Markham. Yes, sir. It was cited in -- in our Shelton brief.
Hugo L. Black: The Shelton brief?
Kevin T. Maroney: Yes, sir. This -- this argument is made in Shelton and since this was the first brief or the first case set for argument, we have developed this point primarily in the Shelton brief and refer to it and incorporated in the -- in the other briefs where the question is raised. It's referred to on page --
Earl Warren: I suggest Mr. Maroney that you don't force us to -- to read two or three or more sets of briefs in order to know what your issues are in the -- in the case. I think if you -- if you at least give us a -- fair citations of your -- of your point on the brief that would be adequate and if you want to refer us further to other briefs, but don't -- don't leave us in a point where we position -- where we read this brief and we can't -- can't get your case from it unless we -- we go back to some other case that -- that isn't --
Kevin T. Maroney: Well, Your Honor --
Earl Warren: -- consistent with our rules, I think.
Kevin T. Maroney: Your Honor it is argued our essential position is set forth in our brief in this case at pages 38 and 39 in which we incorporate the developed argument as set forth in the Shelton brief.
Earl Warren: But he asked you -- Justice Black asked you if this case was cited in your brief -- in this brief and you said, “No, it was cited in the Shelton brief,” but if you rely on it this case, why isn't cited here?
Kevin T. Maroney: Well, we were -- we were trying to -- to make it for the convenience of the Court so that we wouldn't be unnecessarily repeating legal arguments in each brief which were common to several cases. And our -- we tried to -- to -- to develop a -- a master brief so called since these cases were all set together and to try to eliminate, insofar as possible, unnecessary duplicate reading as to what our position is. At any rate, Your Honor, the Markham case which -- which we do refer to in -- at -- in the Shelton brief at page 80, the Court there held that the mere averment that the false statement was material to the matter under inquiry by the Veterans Administration was sufficient. The averment of materiality in a perjury case is directly analogous it seems to us, to the averment of subject matter and pertinency in a contempt of Congress case. And it is our position that in -- in light of the established principles of these cases, the allegation that the -- there was a subject under inquiry and that the questions refused of answer were pertinent to those -- to that inquiry is a sufficient averment. What the subject under inquiry was -- is a matter of proof. The -- the circumstances which demonstrate the pertinency of the particular questions is that -- to the subject under inquiry is a matter of proof. Now, we think it also well-established that -- as established in the Markham case and in the Debrow case that the -- the test for the sufficiency of an indictment is whether or not it sufficiently appraises as a defense of the specific charge for which he is to be tried and enables him to prepare a defense and whether it is sufficiently precise to enable to him to plead it in bar of a subsequent prosecution for the same offense and we submit the indictments in these cases, particularly in this case meets that test. Now, the contention is made that because the subject under inquiry is a nebulously, that -- in view of that particular of circumstance in this type of case, the Court should depart from the general principle as to the sufficiency of indictments and require, especially as concerns contempt of Congress cases that the Government or that the grand jury set fourth in the indictment what the subject under inquiry was. On the other hand, we think that when the -- when a defendant is appraised as he was in this indictment and in the other indictments of the subcommittee or the Committee concerning which he is alleged to have appeared and to have refused to answer questions, when the specific questions are set forth in the indictment as they are all of these cases, together with the allegations that they were pertinent to the subject then under inquiry that he is in a position to prepare his defense. The record here -- the -- the hearings of the Committee which are available to him in connection with the preparation of -- for trial, in this particular case leave no room for doubt so as to confuse a defendant with what he has to meet in a -- in the criminal trial. The -- this record shows that the Committee or that -- the Committee which conducted the hearings in Dayton as distinguished from a subsequent Committee which followed up on those hearings here in Washington and that which the petitioner appeared. The -- the Committee in Dayton announced at the beginning of the hearings that it was going to investigate communist activities generally in the Dayton and Yellow Springs area. Now, the opening statement does refer to a lot of things. It refers to legislation. It refers to the communist conspiracy and the international situation and so forth, but I don't think there can be any doubt from an overall reading of that as to what the Committee intended to do at these hearings in Dayton that is to investigate communist activities in that area, Dayton and Yellow Springs area. Now, if there where any doubt from the opening statement, the hearings themselves and the questions which were put to the particular witnesses demonstrate beyond all question that the Committee's interest and that the Committee's area of inquiry was communist activities in the Dayton, Yellow Springs area. They -- they interrogated the witness Strunk concerning his knowledge of the organizational structure in the Dayton area, his knowledge of certain leaders of the Communist Party in that area, his knowledge of Communist Party infiltration in -- in that particular area. There were other witnesses called who testified as to communist activities in the Yellow Springs area, as to the existence of a young communist leagues cell at Antioch College which is in Yellow Springs, as to the petitioner's membership in the Communist Party. All those things and only that type of thing were developed throughout the hearings conducted in Dayton. Now, if that weren't enough, and I think that this Court clearly, in the Watkins case and in the Barenblatt cases, said that the subject done under inquiry can be determined from the statement of the chairman at the outset of the hearings, from the resolution of the Committee here concededly as the Court has held in the Watkins case, the resolution itself does not add materially to a determination of what the subject under inquiry was. What the opening statement does and properly can, the interrogation of the witnesses at the hearings do in this case unquestionably, establish that this Committee was inquiring into communist activities generally in the Dayton and Yellow Springs area and in conducting such a general investigation, it necessarily, as any such investigation would, encompassed within such a general investigation certain, more specialized, more particularized subjects, infiltration of the Communist Party in to the UE the United Electrical Workers' union.
Speaker: Dayton?
Kevin T. Maroney: Sir?
Speaker: In Dayton?
Kevin T. Maroney: In the Dayton and area, yes sir and several leaders of the UE were called and were asked to testify concerning certain strike activities. I think particularly concerning a Univis -- a strike at the Univis Lens Corporation which is in that area at which the Committee tried to develop to what extent the Communist Party and its leaders had been sent in during that strike to, you sir so to speak, the functions of the union in the conduct of the strike. Now, as I say, if that were not enough, when the witness -- this witness himself, the petitioner came before the Committee, he was not left floundering at all for what the Committee was trying to find out from him when he first -- he answered preliminary questions, and these statements which I'll try to paraphrase begin in the record of pages 123. He has -- he was -- he asked preliminary questions as to his attendance at Antioch as to his working in Yellow Springs during the critical time period, his working in Antioch and his residence there. He -- he was told by both Committee counsel and by the members of the Committee, and beginning down at the bottom of 123, they made reference to two witnesses who would appear the date of the hearings, John O'Brien and BB O'Brien, husband and wife who had testified as to their prior membership in the Communist Party and who had testified as to the existence of a young communist league cell at Antioch College in about 1942. Their testimony also demonstrated that the leader and the organizer of this young communist league group at Antioch was Herbert Reed, who was a Communist Party functionary from Dayton, who had no connection with Antioch College as such. But that he had come in to the -- to the campus and had organized this YCL group. They also referred the witness to testimony that had been given before the -- the Committee at the Dayton hearings, testimony of Professor Robert Matchan who was on the faculty at Antioch and which indicated to the Committee's satisfaction the existence of a Communist Party group in 1945 or 1946. And they -- they said after having made those points to the petitioner, they said on page 126 of the record at the -- at the top, having referred to the YCL group in 1942 at Antioch and the 1945 Communist Party Cell at which certain members of the faculty or of which certain members of the faculty were members. They say, now there's an important link in between the actual organizers; Communist Party organizers in 1945 were not known. You may be in a position to supply that information to the Committee. We know what it was in 1942. We are asking you now to supply the missing link to that testimony. The -- the -- the other evidence that Committee had, had already demonstrated that he -- he had been or at least he was identified as having been a member of the Communist Party at about this time, he's working in this area and certainly there was the likelihood that he could furnish for the committee. If he would -- whatever information he had, which might shed -- shed information on the three-year period of Communist activities between Dayton and Yellow Springs and Antioch of which the Committee had a void. He was told that he -- he was told I think very clearly, that is the information we're trying to get from you. This is the reason why we think you can give it to us. Will you answer this question, or several questions and his reply was that he refused on the basis of the First Amendment. Now we think no circumstances that there is just no question at all that this petitioner in preparing his case for trial on the criminal contempt charge certainly was in a position to properly prepare his defense and to make whatever defenses he had available to him, and that being the case we submit that this indictment meets quite far the test for the sufficiency of an indictment.
Potter Stewart: How far is the Yellow Springs from Dayton, 20 miles?
Kevin T. Maroney: They're 20 miles apart, yes sir. The record -- the record contains that information and I think the petitioner -- this petitioner is during the course of his testimony before the Committee, they asked him if he -- he went back and forth, and he said they were about 20 miles apart and that he did go back and forth during this time and Antioch -- Antioch College is in Yellow Springs. Now, the -- another point which is -- which was not made orally, but which has been extensively briefed in this case, and which is also raised in several of the other cases which are to be heard after this concerns motions of the petitioners in a number of these cases including this case made before trial to dismiss the indictments, to dismiss this indictment, I'll confine it to this case, motion to dismiss this indictment or in the alternative for a hearing on the ground that more than -- that 13 or more of the indicting grand jurors were employees of the Federal or District Government, and therefore, according to affidavits submitted in support of the motions, affidavits which are principally I might say, based on the opinions of their counsel and in this case, on a preliminary survey resulting in opinions expressed by Professors Jahoda and Cooke, opinions to the effect that a government employee in 1954 necessarily would have been so intimidated and so fearful as a result of the Government Loyalty Program that he ought to be held as a matter of law to be a biased grand juror in this kind of case. Now, basically our primary contention is that the supporting affidavits in these cases which were submitted in support of the motion to dismiss, and in the alternative for a motion, for a preliminary hearing on that question do not contain any specific facts as to actual bias by these particular grand jurors, and we think that since that is so at the under the -- under the case law and under the -- what appears to us to be the prevailing rule with respect to challenges to grand juries that these petitioners -- this petitioner was not entitled either to a hearing, certainly was not entitled to a dismiss along the indictment.
Charles E. Whittaker: (Inaudible)
Kevin T. Maroney: No sir. There originally was a statute or a provision which disqualified government employees from service as jurors in the District of Columbia, and because of the difficultly of getting grand jury -- jury panels, Congress passed a statute in I think it was 1908 or thereabouts, which was the subject of this Court's decision in the case of Wood v. United States which is cited also in our Shelton brief, it's 299 U.S. 123. In -- in that case, this Court held that that statute authorizing government employees to sit as jurors in criminal cases in the District of Columbia was constitutional. The question of government employees sitting in criminal -- as jurors in criminal cases in the District also was considered by this Court in the Frazier case, which is also cited in the brief. The Frazier case involved a -- a prosecution of an individual for violation of the narcotics laws I believe. The defendant challenged the impartiality as a -- as a matter of implied bias of a government employee rendering a fair and impartial verdict in a case where the Government, where his employer was the -- was the prosecutor, was the party to the case. And this Court held that the fact of government employment did not render a government employee impartial as a matter of law, as a matter of showing in any particular case with respect to any particular juror that he -- he was in fact intimidated by virtue of his employment could be shown on voir dire examination and of course would be a proper question for voir dire examination. But in the absence of such is showing as to actual bias or fear on the part of the particular juror, the Court would not impute from the circumstances of employment alone that he was not an impartial jury.
Charles E. Whittaker: (Inaudible)
Kevin T. Maroney: No sir, the -- that's -- that's another important distinction we think applies here. There is no prevision that we know of in the federal system for voir dire examination in the usual sense as to determine bias with respect to grand jurors. The rules -- Rule 6 of the federal rules criminal procedure do provide for challenges to the grand jury or to any grand jury on the basis that the grand jury lacks legal quali -- the legal qualifications, that is that some of the grand jurors don't meet the residence requirements or the age requirements and so forth.
Charles E. Whittaker: (Inaudible)
Kevin T. Maroney: That's right sir.
Charles E. Whittaker: (Inaudible)
Kevin T. Maroney: That's correct sir, or that a particular grand juror may not be legally qualified.
Charles E. Whittaker: (Inaudible)
Kevin T. Maroney: That's right sir, or at least it might -- it might of showing that grand juror was not legally qualified, I'm -- I'm not sure, would necessarily disqualify the entire panel, but there is a provision at any rate under the rule for a challenge to the grand jury on the basis of legal qualifications only. There is no provision for a challenge to a grand jury on the basis of bias. Now, we think that that rule also carries over following the return of an indictment, so that you can challenge or at least embark that -- we think this much is clear anyway that what they would like to do, and that is to embark on a fishing expedition trying to probe the grand jury that returned an indictment, trying to probe its motives and its fears, and its biases hoping that something will turn up so that they can then use that as a basis for challenge. We think that that certainly is not prohibited and has no support whatever in any of the case law in the federal system or in the State system. Now, certain other cases, which we cited in our brief, do hold and we think properly so, that where a defendant can show that a particular grand juror or group of grand jurors were biased as a result of corruption or malice that the Court will -- and upon such as showing, upon an actual, factual demonstration that that was the case that the Court would in the -- certainly in the exercise of its powers to supervise criminal justice will set aside such an indictment (Voice Overlap)
Earl Warren: Suppose the -- suppose the grand jurors that are complained off here were relatives of members of the Committee, would you have to -- would you have to prove those actual bias in their minds from something they had said or done before the validity of the indictment that they challenged?
Kevin T. Maroney: If it were just one grand juror?
Earl Warren: No I said if these were --
Kevin T. Maroney: All 13 of these were relatives?
Earl Warren: Yes, yes.
Kevin T. Maroney: Oh I think, probably that would be a sufficient showing of -- of actual bias which -- for example I think some of the cases have held that a showing of financial interest on the part of a -- of a grand juror.
Earl Warren: But I -- I realize that that would be an actual -- actual bias, but suppose their employees of the Congress?
Kevin T. Maroney: Well of course, in that kind of case Your Honor.
Earl Warren: Would they -- would you have to show them that they were -- they had actual bias if it -- if it was demonstrated that they were employees of the Congress?
Kevin T. Maroney: Well, -- well the Court will, depending on what the underlying circumstances are, find actual bias by virtue of the circumstances of a case, for example.
Earl Warren: (Voice Overlap) the relationship to the prosecution, isn't that -- isn't that relevant?
Kevin T. Maroney: That's right, that's right. For example in the Frazier case, which -- we mentioned earlier, several of the -- this is the petit jury now in the Frazier case, and the Court held that the Government employees were not -- should not be held to be biased by virtue of the fact that they're Government employees alone. Two of the particular Government employees were later shown to have been employed by the Treasury Department which was the -- the very department which had investigated this offense -- the Narcotics Bureau or the Treasury Department. The Court pointed out in Frazier that neither of these employees of the Treasury Department were employed in the Narcotics Bureau. They were employed in some other -- I think if they were employed in the Narcotics Bureau then it might be said that that particular juror should be held to be sufficiently close to an interested party that he should be disqualified.
Earl Warren: But suppose they were not employees of the Congress, but were employees of some department that was under programs that were initiated by and investigated by and -- and supervised by Congress.
Kevin T. Maroney: Well, to a certain extent I suppose that applies to all government employees.
Earl Warren: That was I -- that was I was getting at.
Kevin T. Maroney: And of course, we rely on this Court's decision in the Dennis Case, which was later Case of -- of Frazier, and the Dennis Case involved contempt of Congress Case, involved an individual who like -- this petitioner was charged with having to refuse to testify concerning Communist Party activities. There, it was the petit jury. The petit jury which was indeed determined the guilt or innocence of the particular defendant and in this Court in the Dennis case held that fact and even in view of the newly -- of the then newly existing loyalty order that the -- the -- there shouldn't be imputed two government employees such as a bias as to make them disqualified.
Earl Warren: Well, were those grand juries or trial juries?
Kevin T. Maroney: Petit juries Your Honor and we think that is on a very important distinction.
Earl Warren: There you can have -- there you can have a voir dire and you can -- you can test a man's mind.
Kevin T. Maroney: That's -- well --
Earl Warren: You can find out what he's got in his mind, but here you cannot do it.
Kevin T. Maroney: That's true Your Honor, but that is because of the traditional view of the Court with respect to grand jury proceedings. The grand jury, unlike the petit Jury of course, is strictly an accusatory body. Certainly, traditionally, there is no impediment to a grand juror, or several grand jurors taking part in proceedings of which they may have personal knowledge for example. In a small community, it may -- it may happen from time-to-time, whereas presumably somebody like that might be disqualified from a petit jury, but we think that the distinction that the Courts -- that the actual distinction between the function of a grand jury and the function of a petit Jury makes it far less imperative that the Court allow an inquiry of voir dire based on such general assumptions as we have here, such general opinions has have been shown in these affidavits supporting the motions and exploratory inquiry into the fears or the motives of grand jurors.
Felix Frankfurter: Mr. Maroney, have we got any figures -- Government got figures to indicate the total potential jury qualified versus in the district and the total number of government employees that could be taken out of that pool?
Kevin T. Maroney: I -- we can certainly get them Your Honor. I -- I think that it would be clear to all of us that it would certainly be 50%.
Felix Frankfurter: If it is -- if it's -- if it's very easy to get, would you mind?
Kevin T. Maroney: Certainly wouldn't Your Honor.
Felix Frankfurter: I'm not making -- there's no (Inaudible), I'm just curious.
Kevin T. Maroney: Oh, no, no, no. No, but I think as Your Honor knows that it was that problem--
Felix Frankfurter: I know (Voice Overlap)
Kevin T. Maroney: -- that arose -- that gave rise to the statute which -- which didn't make federal employees, competent juries in the District of Columbia.
Felix Frankfurter: But what you're getting to a greatest social magnet for people who come here because it's such a wonderfully interesting place, with all the wonderful things going on, cultural center, 103 embassies, etcetera, etcetera, lots of leisured bias people now make it their home.
Kevin T. Maroney: So that -- we think that, certainly on -- on the showing that they may, and the lack of any specific facts, the lack of even of any allegations of actual bias on the part of anyone of the grand juror, that's the indicting grand jurors, that they were not entitled to the relief request, in this case and in the other cases where that question is raised.
Earl Warren: Mr. Maroney, may I ask you just one other question on that -- on -- on that bias. Assume, let's just assume for the sake of argument that these 15 jurors who work for the Government were frightened then would be -- would be afraid of their jobs. For instance if they fail to indict at first in this -- in this area, let's just assume that they were, how could a man under your theory ever attack that and ever get it -- ever get it grand jury that would not be composed of people who were guided by those fears?
Kevin T. Maroney: Well, he either has to have some kind of evidence from which he can make a preliminary showing to that effect or he can't make the showing. The law --
Earl Warren: But you wouldn't (Voice Overlap) -- you wouldn't let him have a hearing to determine -- to determine that.
Kevin T. Maroney: Our -- our view is, when we think that it's -- it's clear that the law makes no provision for interrogation of grand jurors on voir dire and in the cases which do recognize that indictments will be invalidated by a virtue of corrupt action or a malicious action on the part of grand jurors are dependant as most situation such as that upon the defendant being in a position to come forward and make a demonstration that that was the case. There's no --
Earl Warren: Well, I suppose here -- I suppose here their showing was that -- that these men do work for the Government, that there are these loyalty programs, that there are certain practices that -- that government employees are discharged at times on -- on confidential information that is not available to them and that they have no way of defending themselves on their jobs. And -- and so therefore, they say these people by -- by operation of law are biased and they want to show -- they want to show through -- through hearing where they would examine the jurors that fear does possess them.
Kevin T. Maroney: Well that's -- well, that's what they wanted to do Your Honor.
Earl Warren: What else could they do, would they have -- would the man have to say -- would I tell somebody in the defense that I'm afraid and that's the reason I indicted your -- voted to indict your client?
Kevin T. Maroney: Your Honor that's -- we think that's the only remedy they have. The law does not give them any other remedy other -- because of the nature of the grand jury. They have a protection at trial, it isn't as if they're left to the wolves. They have a trial coming up. They have a trial coming up before petit jurors. At that time, they will be allowed to make a detailed exploration into the actual bias of particular petit jurors and after all, it is the petit jury that is going to render the verdict as to whether there is guilt or innocence. The grand jury has not done that. It doesn't -- that's not the function of the grand jury. All the Grand Jury says is, “This man will be put to trial”, that's all.
Earl Warren: Yeah, but in this kind of a case, there is nothing -- there is nothing open to him to defend on in your -- in your view, if -- if he actually refused to answer the questions, that's -- that's all you concede that he has a right to show at the trial.
Kevin T. Maroney: Well I am -- he has his (Inaudible) defenses that he can -- I mean like any other defenses that he can prove they've got the wrong man. He can prove an alibi that it was somebody else who refused to answer these questions. I mean undoubtedly, if he -- if he was there -- if he was -- and if he did refuse --
Earl Warren: But the only elements of the crime were -- where that he failed to answer the questions and it seems to me that its -- there's no one he can cross-examine on the subject and if the -- if the grand jury was biased against him, he's -- he's guilty when he -- when -- when he goes into Court.
Kevin T. Maroney: Well, not Your Honor --
Earl Warren: On this kind of a case, it's different (Voice Overlap)
Kevin T. Maroney: Not Your Honor.
Earl Warren: -- case is different (Voice Overlap)
Kevin T. Maroney: Not if he isn't guilty Your Honor.
Earl Warren: -- felony case or a -- or a murder case, but here what is open to him other than the fact that he wasn't the man who's there.
Kevin T. Maroney: Well, he has a jury trial.
Earl Warren: Yeah, but what -- what's -- according to your theory he's not -- he's not able to prove anything.
Kevin T. Maroney: Well, I mean it may well be and I think it frequently is in these cases that the issues are fairly -- and certainly the factual issues of fairly cutting drive, the defendant who subpoenaed, he appeared he refused to answer questions. The only thing left really, as a practical matter, is whether or not he made legal objections which he's entitled to make. If he did those things and if he didn't make proper legal objections, he has violated the statute. He has the same defense that anybody else has in any kind of a criminal case. Thank you Your Honor.
Earl Warren: Mr. Fanelli.
Joseph A. Fanelli: Mr. Chief Justice sir first, I want to thank you for the graciousness of permitting me the extra time, I think that's the first time that's ever happened to me in my life. I'd like to state while I have the time and while it hasn't run out that we argue not only the invalidity of this indictment for the failure to specify the subject under inquiry, not only the subject that Mr. Justice Whittaker referred to, that is failure to prove a permissible subject of inquiry, not only the subject that my brother counsel touched on in the latter part of his argument that the indictment was invalid for an additional reason, but we also argue that the defendant was called for the purpose of punishing him for contempt rather than on legislative aid, on the particular facts of this case. Also, under the Yates Case that he committed one indict -- one offense which was a committed one -- one offense for -- unlike Yates, not the offense for which he was indicted and that therefore, this conviction must be reversed for that reason and four reversible in prejudicial errors that occurred at trial in a particular aspect of this case. Now, I'd like to take a -- and we think they're all good, but I just don't have the time to argue them all. I would like to spend just one moment on the specification of subject of inquiry in the indictment and then touch for a few moments on the grand jury point. That is the business of government employees on it. I'm afraid that my brother counsel has pretty well-demonstrated what has always been my feeling about this subject of inquiry that once you think you have it, you're very confident about it. I will repeat that the subject of inquiry now claimed was specifically disavowed at trial and I might point out in addition that as to the Univis Lens -- Univis Lens strike, the United Electrical and Radio Workers which occupied a lot of time in this hearing have no relation at all to the questions ask to the petitioner, and that the only statement as to petitioner was, that he was not involved in that strike. I want to say in the end that as to Markham, as I've stated, the Court found the inquiry manifest on the face of the indictment and record supports the Court on that.
Felix Frankfurter: I suppose Mr. Fanelli, your argument and (Inaudible) is that if indictment had specified what the subject that the inquiry was, the Government would be nailed down to that.
Joseph A. Fanelli: Yes sir, that's --
Felix Frankfurter: But --
Joseph A. Fanelli: -- a very important part of our argument.
Felix Frankfurter: I suggest the same -- the same restriction, the same confinement for maneuvering on part of the Government is served by the bill of particulars.
Joseph A. Fanelli: I don't think so Your Honor because --
Felix Frankfurter: I mean if you --
Joseph A. Fanelli: No.
Felix Frankfurter: -- if you will list it, if you ask for bill of particulars, you may say that subject -- the scope of the inquiries asked him so the bill of particulars hold him to that, doesn't it?
Joseph A. Fanelli: Well, they say no, we say yes, but Your Honor --
Felix Frankfurter: They say no?
Joseph A. Fanelli: Yes, they do in the Shelton case.
Felix Frankfurter: (Voice Overlap) bill of particulars.
Joseph A. Fanelli: Yes, so they argue, but I say this Mr. Justice, that it isn't just a question of nailing down the prosecution. It's the question of nailing down the prosecution to the crime which the grand jury has charged and this is not taken care of by bill of particulars.
Felix Frankfurter: No. In other words the -- the specificity doesn't come from the grand jury, but so far as any fairness or unfairness, waving the question whether a grand -- an indictment can be amended. I appreciate that argument, but on the question of fairness, the bill of particulars has the same purpose.
Joseph A. Fanelli: In terms of not -- not having the Government jump around them, but it doesn't --
Felix Frankfurter: I'm -- I'm giving you notice. I'm giving you notice.
Joseph A. Fanelli: That -- that -- that may be true also, but it doesn't take care of a good part of our argument Mr. Justice because it doesn't nail down the Court of Appeals to what the grand jury said, and if I may say so with all the --
Felix Frankfurter: In the -- in the Court of Appeals, in the interest of time of I'm interrupting you -- in the Court of Appeals, say although the bill of particulars bound into this. Although, the Government says the bill of particulars restricts are put to this, the Court of Appeals can go beyond that or differ from it?
Joseph A. Fanelli: Well, it apparently did in Shelton. It departed -- well, I don't know what it did, to tell you the truth I mean because I didn't state it. That's why -- this is the -- this is the prejudice to courts, that is also not taken care of by bill of particulars on -- I see a red light here on.
Earl Warren: You state your other -- other quite quickly briefly because I wanted to hear it.
Joseph A. Fanelli: I did -- I did want to make one other comment if I may, about as this -- this point namely that the Government has not suggested one single reason from their point of view as to why this indictment should not specify the subject of inquiry. And it was until the most recent era of cong -- congressional contempt cases, it was traditional to state and the cases are cited in our brief, to state the subject of inquiry in contempt of Congress cases and they state no reason now for departing from that traditional approach in a more dragnet procedure of not stating it and if there were not the constitutional issues involved, this case boils down, if there were no constitutional issues related to this point, to this Court's supervisory powers over the federal courts and whether it's going to permit a conviction obtained by procedures so unfair stemming from this failure of specification to spare. Now, to come to the grand jury point with Your Honor's permission for a moment, I -- if I understand the Government's argument correctly, the Government admits that a grand juror like a petit jury must be impartial. As the Chief Justice drew from the Government, they don't seem to provide any avenue for testing this, but at least they concede that much and then in any event, this Court has said again and again that one of a defendant's rights is to an impartial, or rather the word that has been used is unbiased or non-biased grand jury. I want to say to Mr. Justice Whittaker that it is not our contention that government employees are prohibited from sitting in prosecutions by the United States and I want to say to Mr. Justice Frankfurter, that we are not arguing anything but a grand jury which sat in Washington D.C., in or about 1954, as this grand jury did with a majority of government employees in a case related to the National Security of the United States or more specifically to communism and we say as to that type of case and not grand jury that it was not qualified to pass upon probable cause in this case.
John M. Harlan II: (Inaudible)
Joseph A. Fanelli: No sir, I'm sorry I didn't -- apparently, I failed to make myself clear. I will state it again. What we are saying is that for a grand jury in 1954, to have honored in a case involving the National Security, or communism if you will, the two are frequently acquitted although I think there are differences, a majority of government employees who have just been through seven years of the intimidation and oppression of loyalty-security programs, that a grand jury sitting at that point could not validly have honored a majority of government employees.
John M. Harlan II: (Inaudible)
Joseph A. Fanelli: Well, let me -- I was just going to go on Mr. Justice Brennan to the proposition that in Frazier, Mr. Justice Jackson had the insight to foresee what was beginning to happen, that in Dennis, in 1952 and Dennis rejected a contention there be -- specifically noting that the -- the loyalty order had been in effect for just two months, but even there, two Justices of this Court dissenting, took judicial notice of what I am complaining about in 1954. Now, I'm told that in dissenting opinions, you must have paid too much attention to those, but I don't believe that. The in most dissenting opinions, those Justices took judicial notice of what we have proven in this case, and what became obvious by 1954 when we reached the stake in this nation. I wish I could evoke it but one need only read Mr. Justice Frankfurter's opinion in Dennis or Mr. Justice Black's also, when we reached the period, when one could say what the profit might give that hunts every men his brother with a neck and we're just slowly emerging from that, but I'm not arguing about a grand jury sitting today or in another type of case, no one that sat in 1948. We do argue with subsidiary contention namely that we were at least entitled to a hearing, and that to grant us a hearing today under bias is not the same as a hearing then because as we put it, when the battle is over, all men would pray, and you can extract this fear now, and that therefore the indictment should be dismissed on that ground.
Hugo L. Black: I understood you to say you proved it, did you say you proved what you are saying?
Joseph A. Fanelli: I think we did. Now he refers to the opinion of two --
Hugo L. Black: Where – where is the proof in the record if you will?
Joseph A. Fanelli: There -- if you would start with record number 9. This was an affidavit with counsel and the case that --
Hugo L. Black: So that -- is that affidavit of the court that you -- to which you refer?
Joseph A. Fanelli: Well, it incorporates two affidavits by two social psychologists who -- who made a survey. Well, it wasn't just an expression of opinion Mr. --
Hugo L. Black: How far does that go now? I just want to know in fact the (Voice Overlap) affidavits?
Joseph A. Fanelli: Well, as to those two affidavits.
Hugo L. Black: I don't want to -- your time is up.
Hugo L. Black: Well, I know it is sir, Your Honor and if you begin with record number 12, 12 and 13 particularly and read the quoted material.
Hugo L. Black: (Inaudible)
Joseph A. Fanelli: Yes, thank you very much.