PRETTYMAN, Circuit Judge.
Appellant was indicted for refusing to answer a question asked by a subcommittee of the Committee on Un-American Activities of the House of Representatives. The question was whether he was or ever had been a member of the Communist Party. He was tried by a judge of the District Court without a jury and was convicted.
The record shows that on the day preceding that of the interrogation of appellant, the subcommittee had questioned one Thomas Fitzpatrick, who had made an extended statement.
Having been indicted for refusal to answer the question put to him, Quinn moved to dismiss the indictment upon a number of grounds. The motion was denied.
1. Quinn says that he claimed the Fifth Amendment protection against self-incrimination. He says he did this by personally adopting the form of claim made by the prior witness, Fitzpatrick.
The trial court found as a fact that at no point did Quinn, while before the sub-committee, assert the privilege in explicit terms. The court then posed the question: "Can one claim a personal privilege against self-incrimination by reference to a position that another took?". The court said:
The trial court therefore concluded that Quinn had not asserted his personal privilege in respect to self-incrimination.
We are of opinion that a witness may claim the constitutional privilege by referring to and adopting language used by another, so long, of course, as that other's language is identified. On that point we think the District Court was in error, and the Government so concedes. It is true that the privilege is a personal one
Then the question is whether Quinn, by adopting Fitzpatrick's statement, asserted a privilege against self-incrimination. Basically, of course, that question concerns what was in Quinn's mind. But courts cannot act upon unrevealed intentions, and so the inquiry must be whether Fitzpatrick did or did not claim the privilege. If what he said did not amount to such a claim, Quinn's adoption of the statement did not amount to one. The trial court made no ruling upon the meaning or the sufficiency of Fitzpatrick's statement.
The issue as to Fitzpatrick's statement, as we see it, is whether a reasonable auditor would understand from what Fitzpatrick said that he (Fitzpatrick) was claiming the right to refuse to answer because his answer might tend to incriminate him. The words which Fitzpatrick used are known, are in this record, and are not in dispute. What did those words mean as he uttered them?
Fitzpatrick's discussion, which was lengthy, related chiefly to First Amendment rights. He did not at any point make a clear and unequivocal statement that he claimed the privilege against self-incrimination. The closest he came to it were two references to the Fifth Amendment in the course of his long discussion of rights of free speech and thought. Once, before any questions had been asked him, he said, "This is a protection of the First Amendment to the Constitution, supplemented by the Fifth Amendment." And once he said, "I stand on the protection of the Constitution, the First and Fifth Amendments." There was no context indicating that a claim of the privilege was meant.
We think the words "Fifth Amendment", considered alone, do not constitute a formula which invokes the privilege against self-incrimination. The Fifth Amendment contains more than one clause. It contains two which are possibly pertinent here, the privilege against self-incrimination and the due process clause. The expression "I claim the protection of the First Amendment, supplemented by the Fifth" may well and reasonably mean "I claim the protection of the First Amendment to my rights of free speech and thought, supplemented by the guarantee of due process of law." The combination of First and Fourteenth Amendment protection is not unusual,
In our opinion the question here is whether Fitzpatrick's statement, in full text and context, related only to the claim of the rights of free speech and thought under the First Amendment, or whether an auditor could detect an intention to claim the privilege against self-incrimination, protected by the Fifth Amendment.
Words do not always have indisputable meanings. When they do not, their interpretation is a matter of law in some instances and a matter of fact in others. If an ambiguous phrase appears in a statute, its meaning is a question of law. If one occurs in a contract, its meaning depends upon the intention of the parties; and that may be an unalloyed question of fact. If the dispute concerns the meaning of the whole of a lengthy recital by a witness on the stand, the meaning is a question of fact.
Whether Fitzpatrick's meaning is a question of fact or a mixed question of law and fact is close to the borderline. Our opinion is that, in either event, the conclusion ought to be drawn in the first instance by the trial court. In the setting of a criminal case (which is all we have here), we do not think that strict analysis of whether a given inquiry presents a question of law or of fact or a mixed one of law and fact is controlling as to whether it may be determined in the first instance by an appellate court, especially where that inquiry concerns the main issue in the case.
Perhaps, if we were of clear opinion that Fitzpatrick, and therefore Quinn, did claim the privilege and so must be acquitted, we should dispose of the matter finally here and now. Under such circumstances we would reverse a judgment of conviction. But a majority of the court are not of that clear opinion.
The affirmance of a judgment of conviction involves some considerations different from those involved in the reversal of such a judgment. Basically, an accused can be convicted only upon a trial, and the function of an appellate court in affirming a conviction is circumscribed by that principle. A reversal may result in another trial. Generally determinations upon which a judgment of conviction finally rests ought to be made in the first instance by the trial court, not by the appellate court. It is upon this phase of the problem presented by this appeal that members of this court differ.
The judgment of the court is that the case should be remanded to the trial court for a new trial, at which the issue, if then raised, would be whether Quinn claimed the privilege by adopting the statement made by Fitzpatrick. Either or both of two views lead us to that judgment. One view is that in a criminal case an appellate court has no authority to make the initial determination of an issue such as this one, whether it be called a question of fact or a mixed question of law and fact, upon which a judgment of conviction would rest; that an initial decision upon such an issue must be made by the trial court, if a judgment of conviction
Two reasons are suggested why it might be appropriate, in the peculiar circumstances of this case, for this court to determine whether the privilege was in fact asserted by Fitzpatrick. The first is that trial by jury was waived and the case was tried by a judge alone. The second is that the evidence consisted primarily of a reading, by counsel for the subcommittee, of the transcript of the hearings before the sub-committee. But when a defendant waives trial by jury he does not thereby consent to a determination of his guilt or innocence by an appellate court. As to the second reason we think it is confused with the rule as to civil equity cases.
The Government urges that we affirm the conviction on the theory that the error of the trial court was harmless,
2. Appellant's second point is that, before a witness before a congressional committee can be held in contempt for refusing to answer a question, he must be specifically directed to answer and his reasons for refusing to answer rejected or overruled. We have passed upon the point contrary to appellant's contention in Emspak v. United States, 91 U.S.App.D.C. 378, 203 F.2d 54, decided today. As was pointed out in Bart v. United States, 91 U.S. App.D.C. 370, 203 F.2d 45, also decided today, to constitute an offense refusal to answer must be intentional. It must appear that Quinn was aware of the intention of his inquirer that answers were required despite his objections. He said he adopted all of Fitzpatrick's statement. Fitzpatrick made a full statement before he was asked any questions, stating that he would refuse to answer, and before the questioning began the Chairman of the Subcommittee explained to him the necessity for answers. When Quinn himself was questioned, and after he had refused to answer, adopting Fitzpatrick's statement, the Chairman twice asked him to answer the question. The deliberate and intentional character of the refusal is an element of the offense, to be determined from all the circumstances by the trier of the facts. That issue will be before the trial court if the case is retried.
3. Appellant's third point is that, since ten members of the grand jury which indicted him were Government employees and two were wives of Government employees, he was entitled to a hearing on his motion to dismiss the indictment as void for that reason. We have also passed on this point contrary to appellant's contention in Emspak v. United States, supra.
Reversed and remanded.
BAZELON, Circuit Judge, with whom EDGERTON, Circuit Judge, joins, concurring in the result.
While I agree to the reversal of the conviction and the remand for a new trial, I take a differing view with respect to some important questions.
The court concludes that there was no error in denying appellant a hearing for the purpose of demonstrating that Government employees were not qualified to act as grand jurors in this case. This conclusion rests on this court's view in Emspak v. United States, 91 U.S.App.D.C. 378, 203 F.2d 54, that appellant "did no more than assert existence of a `miasma of fear' so clearly rejected in the Dennis case."
The Government says, "It is not free from doubt that partiality in a grand juror is per se disqualifying. * * * Historically, grand jurors were chosen for what they knew about affairs in the community, which in the case of a petit juror would be disqualifying."
What the Government is proposing is pro tanto repeal of the Fifth Amendment's assurance of "a presentment or indictment of a Grand Jury."
The grand jury "is designed as a means, not only of bringing to trial persons accused of public offenses upon just grounds, but also as a means of protecting the citizen against unfounded accusation, whether it comes from government, or be prompted by partisan passion or private enmity."
An ordinary citizen has slight protection from the activities of a grand jury. For example, he may be indicted without the benefit of a preliminary hearing before a committing magistrate,
Preservation of the integrity of the grand jury system is not merely a matter of individual concern. It touches our democratic insistence on the fair administration of law. When the grand jury is not properly constituted, "reversible error does not depend on a showing of prejudice in an individual case. * * * The injury is not limited to the defendant — there is injury to the jury system, to the law as an institution, to the community at large, and to the democratic ideal reflected in the processes of our courts."
I turn now to the court's application of the Dennis case. Like Dennis, the present case is one "inherently touching the security of the Government, at a time when public feeling on these matters is notoriously running high * * *."
This court, like the trial court, relies on the line of cases culminating in Dennis v. United States as a basis for the denial of a hearing on bias. Because I think this court misreads Dennis,
When the Dennis case was called for trial, the accused moved for a transfer to another district on the ground that prejudice against him in the District of Columbia would prevent a fair trial.
In the present case, however, counsel by extensive affidavits, request for hearing, and proffer of proof sought to develop and prove for the record certain circumstances bearing on the issue of bias. His attempt to show the impact of the loyalty and security programs on Government employees
In marked contrast, the indictment in the present case was returned in November of 1950, by which time the Loyalty Order had been in full operation for more than three years. The affidavits in support of appellant's motion contain a recital of some generally known events and procedures, and allegations as to others, relating to the operation of that Order.
Moreover, instead of the argument in the Dennis brief in the Supreme Court that the Un-American Activities Committee had given lists of federal employees to the Attorney General,
There would be no point to a more detailed comparison of the record in this case with that in Dennis. It suffices that appellant's affidavits went considerably beyond Dennis in attempting to demonstrate that "Government employees * * * have been the subject of an active campaign to determine whether they are in any way sympathetic or tolerant to `Communism' or `Communists,' or sympathetic to any person who in turn is associated with `Communism' or `Communists' or with organizations which have been called `Communist Fronts' or with persons who may have been called `Communist fellow travelers.'"
Resolution of the disqualification issue does not depend upon whether the loyalty program or investigations by Congress have exceeded lawful bounds. No such question is before us. It depends instead upon whether these activities prevent Government employees from exercising the free will essential to the impartiality required for their service as grand jurors in this case. "The problems of security are real. So are the problems of freedom. The paramount issue of the age is to reconcile the two."
Despite the differences between Dennis and the instant case, the Government argues that an attack on the qualifications of grand jurors must be "based on facts and not mere conclusions." The Government further asserts, without citing any authority, that unless appellant can advance a reason for "not making his whole showing in the usual form of affidavits * * *" the trial judge can properly deny a hearing.
It is well understood that a trial judge has wide latitude in disposing of objections to the qualifications of the grand jury. Where the grounds advanced in support of a motion to quash an indictment are clearly insufficient in law, a hearing would be without purpose. This was the situation in United States v. Rintelen,
A motion to quash an indictment should not, of course, be granted merely on legally sufficient allegations. The movant cannot insist that his allegations stand admitted in the absence of a denial.
Since appellant's legally sufficient allegations were supported by affidavits of circumstances which cannot be said to be frivolous, the foregoing principles required that his request for a hearing be granted in this case. It may well be that appellant will be unable to prove his allegations or to show such facts as would result in his securing the relief which he seeks. His burden of proof will undoubtedly be great. We might be unwilling to accept the sort of proof he may offer. But I cannot bring myself to concur in a view which forecloses all opportunity of showing the extent to which basic rights may have been infringed.
The difficulty with the subject generally seems to result from lack of clarity as to the substantive grounds for disqualification. This lack of clarity appears in the trial court's statement on the one hand that "Government employees * * * might be barred from implied bias"
"For the ascertainment of this [disqualifying] mental attitude * * *, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula."
The view I take of another question might dispose of the entire case upon retrial. Appellant contends, in substance, that a charge of contempt cannot lie since he was not "specifically directed to answer * * * and his reasons for refusing to answer * * * were not rejected or overruled."
This problem is discussed in the opinion of the court in Bart v. United States.
A conclusive presumption of intent to violate the statute might attach to a naked refusal to answer, i. e., a refusal without a statement, at the time, of the reason therefor.
It is only after an intent to refuse has been established in accordance with the foregoing principles that the witness is "bound rightly to construe the statute."
The foregoing construction of the key phrase "refuses to answer" is clearly indicated by an examination of the legislative history and of the cases decided under this statute.
In 1857 Congress enacted the contempt statute to supplement its inherent powers.
The intent of Congress is confirmed by what it has done since enacting the statute of 1857. It continued to deal with contempt under inherent powers and with the same procedures for 37 years, up to 1894,
It was 30 years after the Chapman case and 67 years after enactment that the next indictment under the statute was obtained.
A random check of the citations for contempt of Congress for each year since the Sinclair episode of 1924 further supports this construction of the statute.
Although United States v. Murdock
This question has, however, been directly considered in three recent district court cases. In United States v. Browder,
This view was followed in United States v. Fox
And again in United States v. Kamp,
Although the Supreme Court has not ruled directly on this question, there is support for this construction in United States v. Bryan.
Considerations of fundamental fairness support this construction of the statute.
The court below adopted the erroneous view that appellant could not claim the privilege against self-incrimination by reference and adoption of the language used by another.
FAHY, Circuit Judge, concurring.
I agree with Judge Prettyman's opinion that appellant was not entitled to a hearing on his motion to dismiss the indictment as void because ten members of the jury which indicted him were Government employees and two were wives of Government employees, but that the case should be remanded for a new trial (1) so that the issue whether or not Quinn claimed the privilege by adopting the statement made by Fitzpatrick may be initially decided in the trial court, and (2) for determination whether or not Quinn was aware of the intention of his inquirer that answers were required despite his objections. As the opinion states, the deliberate and intentional character of the refusal is an element of the offense. The necessity for awareness by the witness of the intention of his inquirer to require answers despite the witness' objections, and the necessity for a deliberate and intentional refusal, are shown by the analysis in Section II of Judge Bazelon's opinion. The formulation in Section III of his opinion of the issues involved furnishes a practical guide to the trier of the facts.
WILBUR K. MILLER, Circuit Judge, dissenting.
I agree with the majority that the trial judge erred in holding as a matter of law that Quinn could not adopt Fitzpatrick's statements for whatever they were worth. But, for reasons to be stated later, my view is that Quinn was not prejudiced by that erroneous ruling, and therefore I think my brothers of the majority are wrong in reversing his conviction and remanding the case for the trial judge to say whether Fitzpatrick did or did not claim the protection of the Fifth Amendment against being compelled to testify against himself.
The court's action in reversing and remanding seems to me to arise from, and to depend entirely upon, the following statements in the majority opinion:
Perhaps the trial judge was not "called upon to consider it," but I cannot believe the judge's erroneous legal conclusion, that Quinn could not claim immunity by adopting Fitzpatrick's language, precluded him from considering whether that language was legally sufficient as a claim of immunity from self-crimination. If the trial judge actually considered Fitzpatrick's statements and held them insufficient as a claim of privilege, my view is that we should regard that holding as an alternative basis for the finding of guilt, which after all was the ultimate finding of the trial judge. I do not believe we should set aside a correct ultimate finding that a defendant is guilty because the trial judge gave two reasons for it, one of which was wrong and one of which was right.
With those considerations in mind, I suggest the majority are incorrect in saying the district judge made no ruling upon the meaning or sufficiency of what Fitzpatrick said in attempted justification of his refusal to answer the question. If I am correct in that belief — that is to say, if the district judge did make such a ruling — then the sole basis for reversal disappears, and the remand is for the futile purpose of permitting the trial judge to make a finding which he has already made.
Moreover, while I do not stress the point, I think it extremely doubtful whether the District Court was required, in the circumstances, to make a special finding concerning the sufficiency of Fitzpatrick's remarks as a claim of the privilege. Rule 23(c) of the Federal Rules of Criminal Procedure provides: "In a case tried without a jury the court shall make a general finding and shall in addition on request find the facts specially." The general finding referred to in the rule is a finding of either guilty or not guilty.
I question whether, under Rule 23(c), a trial judge is required to make special findings on all the factual issues involved, when none had been requested, merely because he announced findings on some of the issues of fact in the course of the opinion which preceded his general finding of guilty. Be that as it may, however, I think it quite clear that in this case the trial court stated, while delivering his opinion, a finding that Fitzpatrick's statements did not amount in legal effect to a claim of the privilege against self-incrimination.
The erroneous legal ruling by the district court that Quinn could not adopt Fitzpatrick's language did not mean the judge had not read and considered that language, nor that he had not formed and expressed an opinion as to whether Fitzpatrick had actually claimed the privilege. The contrary appears. The trial judge's opinion shows he had read and considered Fitzpatrick's statements. He noted their nature and found them insufficient as a claim of immunity against compulsory self-incrimination. I quote from the District Court's opinion:
To be sure, the judge did not apply the "finding of fact" label to this evaluation of Fitzpatrick's language, but that is immaterial. Whether the issue was one of fact or law, the judicial observations just quoted were tantamount to a finding that Fitzpatrick's remarks to the subcommittee did not amount to a reliance upon the shelter of the self-incrimination clause. For, when the judge said those remarks "certainly left much to be desired as to whether he was actually claiming self-incrimination or not," he was clearly saying Fitzpatrick had not asserted the claim in the way the cases say a witness must invoke it in order to be entitled to its protection. So, the erroneous legal ruling did not prejudice Quinn.
The privilege against self-incrimination, when invoked properly, is liberally construed and applied; but the language of the witness which is said to constitute a claim of the privilege is strictly construed and appraised. This will appear from cases hereinafter cited. Nor is the privilege automatically applicable to every question which requires an incriminating answer. It is personal to the witness, and is waived unless he claims it at the time when, and in the tribunal where, the question is asked. The Supreme Court said in United States v. Monia, 1943, 317 U.S. 424, 427, 63 S.Ct. 409, 410, 87 L.Ed. 276:
What must a witness say in order to claim the privilege? He must in some manner fairly bring to the attention of the tribunal which must pass upon it, the fact that he is invoking and relying upon the constitutional privilege. He must claim it in no uncertain terms. He must use some expression directly indicative of the intention to claim this particular protection of the Fifth Amendment, as distinguished from other constitutional rights. In United States ex rel. Vajtauer v. Commissioner of Immigration, 1927, 273 U.S. 103, 113, 47 S.Ct. 302, 306, 71 L.Ed. 560, the Supreme Court said:
In the Knickerbocker Steamboat case, cited by the Supreme Court, it was said:
In the later case of Rogers v. United States, 1951, 340 U.S. 367, 370, 71 S.Ct. 438, 440, 95 L.Ed. 344, the Court said:
The following is from the opinion of the Eighth Circuit in Phelps v. United States, 1947, 160 F.2d 858, 872:
The District Court for the Eastern District of Pennsylvania, in United States v. Miller, 1948, 80 F.Supp. 979, 982, said:
To this the court cited the Vajtauer case, supra, United States v. Murdock, 1931, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210 and United States v. Benjamin, 2 Cir., 1941, 120 F.2d 521, 522.
The opinion in the Benjamin case was written by Judge Augustus N. Hand and was concurred in by Judges Learned Hand and Swan. The following quotation therefrom supports my belief that a witness cannot claim the privilege by announcing that he stands on his constitutional rights, thus leaving it to the court to guess the provision upon which he relies; and that he cannot claim it by saying he relies upon the First and Fifth Amendments without pointing out the particular protection which he seeks out of the several afforded by those two Amendments:
From these authorities I deduce the principle that a witness waives the privilege unless he claims it clearly, distinctly, expressly, specifically and in unmistakable terms. When the district judge said Fitzpatrick's position "certainly left much to be desired as to whether he was actually claiming self-incrimination or not," he was finding that Fitzpatrick had not claimed the privilege in the fashion the cases say it must be invoked if waiver is to be avoided. In order
The majority of this court agree, I note, with the trial judge's appraisal of Fitzpatrick's statement. They say:
We should not let the fact that Quinn and Fitzpatrick would have been entitled to the privilege, had it been invoked,
A brief analysis of the statements made to the subcommittee by Quinn and Fitzpatrick will suffice to show adequate support for the District Court's holding that neither claimed the protection of the Fifth Amendment against being compelled to testify against himself. I agree with the majority that their statements should be considered and evaluated "in full text and context." When Quinn was asked the crucial question, his immediate reply was this:
When the question was repeated, Quinn said:
Thus Quinn gave his understanding of Fitzpatrick's reason for refusing to answer the question: he understood Fitzpatrick to have relied upon the constitutional right of the American people to keep secret their political beliefs, opinions and associations. This was an obvious reference to the freedom of speech clause of the First Amendment and its correlative freedom of silence, and was by no means an assertion of a personal claim by Quinn to refrain from answering on the ground that in doing so he might incriminate himself. Having stated that Fitzpatrick's statements could be regarded as the expression of his own views, Quinn said:
This about covers Quinn's examination except for this further statement by him:
Far from invoking a constitutional protection for himself, Quinn conceived that he was defending the Constitution against the encroachment of the subcommittee.
In the light of the foregoing, I suggest that no matter what Fitzpatrick had said, Quinn demonstrated his understanding of the statements he adopted as being that all the American people, including himself, had the right to keep secret their political beliefs, opinions and associations, and that he was prepared to defend this First Amendment freedom against the attack of the subcommittee.
Putting that suggestion aside, however, and assuming that Quinn's adoption of Fitzpatrick's language was without qualification on his part, so as to entitle him to the privilege if Fitzpatrick had in fact claimed it, I now consider Fitzpatrick's statements in full text and context. As the district judge observed, Fitzpatrick's remarks were long and rambling. He began by asking and obtaining permission to make a few preliminary remarks. After a diatribe against the committee, he said:
Following this, Fitzpatrick was asked the question whether he was or had ever been a member of the Communist Party. His immediate response was this:
Upon insistence by the committee counsel that he answer "yes" or "no," or decline to answer, Fitzpatrick said:
After this statement the following colloquy occurred between Fitzpatrick on the one hand and the chairman and counsel on the other:
During the remainder of his testimony Fitzpatrick made such statements as:
I find nothing in Fitzpatrick's testimony which even indicates that he refused to say whether he was or ever had been a member of the Communist Party because he feared his answer might incriminate him, or that he relied on the self-incrimination clause of the Fifth Amendment in declining to respond. It is true that he mentioned the Fifth Amendment twice. His first reference to it was a preliminary remark which I have quoted above, when he said people can have unpopular opinions or beliefs and hold them secret if they so desire. "This," he said, "is a protection of the First Amendment to the Constitution, supplemented by the Fifth Amendment."
Thus he described his reference to the two Amendments as being the freedom of speech and silence guaranteed to all people by the First Amendment, as somehow supplemented by the Fifth, — perhaps the due process clause. His point was that all people have the right to keep silent as to their political opinions because the freedom of speech clause guarantees that right; that he shared in that right and refused to answer because of it, — not at all because to speak of his political opinions and associations might incriminate him.
A second time Fitzpatrick referred to the First and Fifth Amendments, when he was asked whether he had solicited one Copeland to join the Communist Party, and responded by saying:
The chairman of the committee then inquired:
In this instance also, Fitzpatrick made it abundantly clear he was not invoking the two Amendments to avoid giving an incriminating answer, but that he thought the Amendments barred the committee from asking the question which would pry into his mind and would violate his constitutional right to be silent if an answer were compelled. I find it impossible to regard Fitzpatrick's statements as amounting to a claim to the constitutional immunity from self-incrimination. Measured by the strict standards announced in the cases I have cited, by which the language of a witness must be measured in determining whether he actually intended to and did claim the privilege, Fitzpatrick's statements fall far short of constituting such a claim. As the trial judge said, they certainly leave much to be desired. Cf. Emspak v. United States, (1952) 91 U.S.App.D.C. 378, 203 F.2d 54.
I conclude, therefore, that the district judge not only did in fact find that Fitzpatrick did not claim the privilege, but also that he was amply justified in so finding, despite the fact that, after Quinn's conviction, Fitzpatrick himself was found not guilty by a different district judge, 1951, 96 F.Supp. 491, who seems not to have considered Fitzpatrick's statements "in full text and context," but acquitted him solely because he used the words "Fifth Amendment." I think it is impossible to spell out a claim of the privilege from Fitzpatrick's references to the Fifth Amendment, when they are considered in full text and context. Considered in that realistic way, they show Fitzpatrick had no intention of invoking the Amendment's privilege against self-incrimination. I would affirm the judgment of the District Court.
I am authorized to say Judge PROCTOR concurs in this dissenting opinion; and that Judge CLARK also concurs except that, being of the opinion that the claim of privilege is a highly personal one and must be made by the person claiming it and not by reference, he thinks the trial judge was right in holding Quinn could not adopt the statements of Fitzpatrick.
In United States v. Remington, 2 Cir., 1951, 191 F.2d 246, 252, appellant moved to quash the indictment contending "that the foreman, one Brunini, had a financial interest in a book which the government's chief witness was writing * * *." The Court of Appeals reversed for further proceedings pointing out that "[t]he indictment should not be quashed unless undue influence is shown" by Brunini on the other grand jurors. Ibid. (emphasis supplied). And cf. United States v. Wells, D.C.Idaho 1908, 163 F. 313 (plea in abatement sustained — prosecuting attorney voluntarily appeared before grand jury and urged finding of indictment, stating views on law and sufficiency of evidence, etc.); but see United States v. Belvin, C.C.E.D.Va.1891, 46 F. 381, 384-385.
Legislation has been introduced in the Senate "to authorize * * * the appointment of special counsel and investigators to assist grand juries in the exercise of their powers." S. 2086, 82d Cong., 1st Sess. (1951).
"A motion before trial raising defenses or objections shall be determined before trial unless the court orders that it be deferred for determination at the trial of the general issue. An issue of fact shall be tried by a jury if a jury trial is required under the Constitution or an act of Congress. All other issues of fact shall be determined by the court with or without a jury or on affidavits or in such other manner as the court may direct."
It should be noted that Congress under its inherent powers and in furtherance of its investigative activities afforded the contumacious witness a continuing opportunity to purge himself prior to and following conviction. See, e.g., Cong. Globe, 34th Cong., 3d Sess. 413 (1857) (James W. Simonton); Cong.Globe, 37th Cong., 2d Sess. 831 (1862) (Henry Wikoff); and Potts, Power of Legislative Bodies to Punish for Contempt, 74 U. of Pa.L.Rev. 691, 780, 808-9 (1926). The statute makes no provision for a purge proceeding following conviction for contempt.
"* * * (4) The Judiciary are entitled to define and declare the limitations of the power." 8 Wigmore, Evidence § 2195, pp. 80-1 (3d ed. 1940).
House Journal, 34th Cong., 3d Sess. 241, 271 (1857) 2; House Journal, 35th Cong., 1st Sess. 258, 371 (1858) 2; House Journal, 35th Cong., 2d Sess. 411 (1859) 1; Senate Journal, 36th Cong., 1st Sess. 159, 178, 242 (1860) 5; House Journal, 37th Cong., 2d Sess. 210, 298, 498, 948 (1862) 4; Cong.Globe, 37th Cong., 3d Sess. 314, 370 (1863) 1; House Journal, 39th Cong., 2d Sess. 166, 252, Senate Journal, 40th Cong., 1st Sess. 186 1867) 3; House Journal, 40th Cong., 2d Sess. 729 (1868) 1; House Journal, 40th Cong., 3d Sess. 226, 250, 392 (1869) 4; Cong.Globe, 42d Cong., 3d Sess. 952, 956 (1873) 1; House Journal, 43d Cong., 1st Sess. 716, House Journal, 43d Cong., 2d Sess. 51-2 (1874) 2; House Journal, 43d Cong., 2d Sess. 159, 205 (1875) 2; House Journal, 44th Cong., 2d Sess. 534, 588, 1189 (1876) 3; Id. at 149, 219, 313, 631, Senate Journal, 44th Cong., 2d Sess. 87, 196, 228 (1877) 9; Senate Journal, 46th Cong., 2d Sess. 73 (1879) 5; 22 Cong. Rec. 1973, 2150 (1891) 1; 26 Cong.Rec. 5458, 6146, 6643, 8121, Senate Journal, 53d Cong., 2d Sess. 214-16, 238, 254 (1894) 7; 50 Cong.Rec. 1431-52 (1913) 1; 53 Cong.Rec. 9639 (1916) 1; 65 Cong Rec. 4785-91, 7216 (1924) 1; 69 Cong. Rec. 2439, 5286, 5353, 7239 (1928) 2; 78 Cong.Rec. 1914 (1934) 4; 79 Cong. Rec. 13077 (1935) 2; 80 Cong.Rec. 8222 (1936) 3; 81 Cong.Rec. 953 (1937) 6; 86 Cong.Rec. 3694, 3856, 4152, 4153, 4156 (1940) 5; 90 Cong.Rec. 8163 (1944) 2; 92 Cong.Rec. 2744, 3762-73, 7591, 10592, 10748 (1946) 20; 93 Cong.Rec. 1128, 3804, 3814, 10770, 10780, 10794-802 (1947) 13.
1950-June 1952 117 citations for contempt:
96 Cong.Rec. 12237, 12256, 12260, 12286-89, 12296-382, 13873, 13894, 14639, 15727 (1950) 64; 97 Cong.Rec. 499, 506, 507, 1096, 1453, 3038, 3039, 7014, 8702, 9803, 12406, 12407 (1951) 45; 98 Cong. Rec. 836-43 (Feb. 5, 1952), 1338 (Feb. 25, 1952), 2397 (March 17, 1952), 2537 (March 19, 1952), 3904 (April 9, 1952), 8675-83 (June 30, 1952) 8.