BIGGS, Chief Judge.
This is an appeal from a conviction for contempt of a Subcommittee of the United States Senate's Special Committee to Investigate Organized Crime in Interstate Commerce.
It is desirable in this case to make a detailed statement of the circumstances so that the reader may not only perceive the operative facts but also may be aware of the background of the case. On July 3, 1951, the Subcommittee caused a subpoena to be issued commanding the defendant Orman to "produce all your records, papers, statements and documents concerning business, employment and financial transactions and a copy of your income tax returns for the years 1947, 1948, 1949 and 1950." Orman appeared before the Subcommittee on July 6, 1951, with the required copies of the tax returns; he produced no other records prior to 1951 for he had destroyed them after making his tax returns. At the hearing on July 6 it developed that Orman was keeping a book containing notes of his business transactions for 1951. Mr. Lane, of counsel for the Subcommittee, expressed his desire to see this book, and Senator Hunt formally stated: "The acting chairman of the subcommittee directs the witness, Mr. Orman, to produce his book containing the records of his business transactions for the year 1951."
On the following day, July 7, 1951, Orman brought the book before the Subcommittee.
Counsel asked: "Will you let me have the book?"
Orman replied: "No. I do not think I will let you have the book unless I know my business is not going to be made public. I think I am entitled to that courtesy."
Senator Hunt then directed Orman to read the entries, warning him that he might be in contempt of the Subcommittee if he refused. Orman said that the entries did not "mean a thing" and he declined to read the entries or to deliver the book to the Subcommittee.
On July 10, 1951, a second subpoena was issued commanding Orman to appear before the Subcommittee on July 17, 1951, and specifically directing him to produce his 1951 book of financial transactions. Orman again brought the book to the hearing, but when Mr. Moser, Chief Counsel to the Committee, asked him "Will you please produce that book?", he replied "No; I will not." Mr. Moser asked: "And why do you refuse to show it to the committee?" Orman replied: "Because I do not want it to become public property, to be given to the newspapers. That is my personal business." Counsel then inquired: "Is it giving it to the newspapers to give it to us?" and Orman replied: "I think so." Counsel for the Subcommittee then asked: "You do?" Orman replied: "Yes." The Committee's counsel then inquired: "You refuse to produce it before this closed session of the committee on that ground?" Orman stated: "Unless I have an assurance that it will not be given to the newspapers. I must be assured of that first. First of all, this is not pertinent to this investigation, as far as I could determine, but I was very nice and gracious enough to sit through two and a half hours of my income taxes, which I think have nothing to do with this investigation, as far as crime and what this investigation is headed under. I had nothing to do with that. I sat here and tried to be very helpful. * * *"
The colloquy went on. Counsel asked: "Will you please let me see the book?" Orman replied: "I will let you see the book." Counsel said: "Then please do so." Orman asked: "Is it not going to be read into the record?" Counsel said: "I am not going to decide now whether it will go into the record. If it is material, it will certainly go into the record." Orman then said: "I refuse to give you the book." Counsel asked: "You refuse to give me the book on the sole ground of your not wanting to go into the record?", and Orman replied: "I don't care about it going into the record." Counsel then said: "I want an exact statement of the ground for refusing to show us the book." Orman replied: "I don't want the contents of this book to be published in the newspapers and made public property as there have been some other statements made before about myself. I do not know by whom. I am in business in this town."
On the same day, July 17, 1951, the following colloquy also took place:
Counsel for the Subcommittee asked: "You borrowed $25,000 [in December, 1950]?" Orman said: "That is right." Counsel asked: "From whom did you borrow that?", and Orman replied: "From a friend of mine." Mr. Moser inquired: "What is his name?" Orman said: "I cannot tell you." Counsel asked: "You do not know?" Orman said: "I won't tell you; no." The inquiry was then made: "Why?" Orman simply stated: "I don't want to tell you." Counsel said: "You refuse to answer? On what ground?", and Orman replied: "It is my personal affairs." Counsel then said: "You just refuse to answer?"
On September 18, 1951, the Special Committee to Investigate Organized Crime in Interstate Commerce submitted a report to the Senate describing the above proceedings and included a resolution that the United States Attorney for the District of New Jersey should be required to proceed against Orman in the manner prescribed by law. This resolution was adopted and became Senate Resolution 211, dated October 1, 1951.
Orman was then indicted on four counts for violation of Section 192, Title 2, U.S.C.A.
At the trial the jury returned a verdict of guilty on each count of the indictment. The court below sentenced Orman to twelve months imprisonment on Counts 1 and 3, the terms to run concurrently, and to a suspended sentence and one year's probation on Counts 2 and 4, the probationary periods to run concurrently but commencing at the expiration of the sentences imposed on Counts 1 and 3.
On this appeal Orman contends broadly that under all the circumstances his refusal to disclose the items in his 1951 book of accounts did not constitute a willful default within the indictment and the statute. He also argues that it was not pertinent to the investigation undertaken by the Senate Crime Committee either to demand his 1951 book of accounts or to ask the name of the person from whom he had borrowed the $25,000. We will discuss these contentions.
Orman challenges the pertinency of the book and of the name of the person who loaned him $25,000. Specifically, Orman
Acting consistently with this view, the trial court had excluded all evidence of the actual contents of the book and of the name of the man who loaned Orman $25,000. Orman contends that this exclusion was erroneous. Orman also argues that since the question of pertinency was one of law, it was error for the trial court to submit this question to the jury. His view is that as a matter of law, taking into consideration the contents of the book and the name of the lender, the requirement of pertinency was not met.
Pertinency under Section 192 has been much discussed in the cases. "Pertinent," as used to describe a requisite for valid congressional inquiry, means "pertinent to a subject matter properly under inquiry, not generally pertinent to the person under interrogation." Rumely v. United States, 1952, 90 U.S.App.D.C. 382, 197 F.2d 166, 177, affirmed, 1953, 345 U.S. 41, 73 S.Ct. 543. Because of the scope and purpose of congressional investigations, pertinency in this context is necessarily broader than relevancy in the law of evidence. "A legislative inquiry may be as broad, as searching, and as exhaustive as is necessary to make effective the constitutional powers of Congress. * * * A judicial inquiry relates to a case, and the evidence to be admissible must be measured by the narrow limits of the pleadings. A legislative inquiry anticipates all possible cases which may arise thereunder and the evidence admissible must be responsive to the scope of the inquiry, which generally is very broad." Townsend v. United States, 68 App.D.C. 223, 95 F.2d 352, 361, certiorari denied, 1938, 303 U.S. 664, 58 S.Ct. 830, 82 L.Ed. 1121.
As indicated in these definitions, two separate elements must appear before pertinency is established: (1) that the material sought or answers requested related to a legislative purpose which Congress could constitutionally entertain; Kilbourn v. Thompson, 1880, 103 U.S. 168, 26 L.Ed. 377; McGrain v. Daugherty, 1927, 273 U.S. 135, 173, 47 S.Ct. 319, 71 L.Ed. 580; Barsky v. United States, 83 U.S.App.D.C. 127, 167 F.2d 241, certiorari denied, 1948, 334 U.S. 843, 68 S.Ct. 1511, 92 L.Ed. 1767, rehearing denied, 1950, 339 U.S. 971, 70 S.Ct. 1001, 94 L.Ed. 1379; and (2) that such material or answers fell within the grant of authority actually made by Congress to the investigating committee; Bowers v. United States, D.C.Cir., 202 F.2d 447; Rumely v. United States, supra. Although Section 192 does not use the word "pertinent" in referring to the production of papers, both of the elements referred to are required in establishing contempt for refusal to produce papers as well as for refusal to answer questions. Marshall v. United States, 1949, 85 U.S. App.D.C. 184, 176 F.2d 473, certiorari denied, 339 U.S. 933, 70 S.Ct. 663, 94 L.
It has also been said by the Supreme Court that a witness before a congressional committee is bound to judge rightly as to pertinency. His honest mistake of law is no defense. Sinclair v. United States, 1929, 279 U.S. 263, 299, 49 S.Ct. 268, 73 L.Ed. 692. But since a conviction for contempt may be had only for refusal to respond to pertinent inquiries, pertinency is an element of the offense to be proved, and the burden of proof is on the United States. Bowers v. United States, supra; see Sinclair v. United States, supra, 279 U.S. at pages 296-297, 49 S.Ct. at page 272-273. It is for this reason that a defendant cannot be held to have waived his objection to the pertinency of an investigating committee's inquiries. In the instant case it is therefore immaterial that Orman did not explicitly raise this objection at each hearing he attended.
Orman does not contend here that the Senate Special Committee to Investigate Organized Crime in Interstate Commerce was gathering material for unconstitutional legislative purposes. Such a contention could not succeed. See U.S. Const. Art. 1, § 8; United States v. Di Carol, D.C.N.D.Ohio 1952, 102 F.Supp. 597. Contrast Rumely v. United States, supra. He does challenge the pertinency of the inquiries made of him to the Committee's grant of authority. This authority is set forth in Senate Resolution 202, 81st Cong., 2nd Sess. (May 3, 1950), creating the Committee and directing it: "* * * to make a full and complete study and investigation of whether organized crime utilizes the facilities of interstate commerce or otherwise operates in interstate commerce in furtherance of any transactions which are in violation of the law of the United States or of the State in which the transactions occur, and, if so, the manner and extent to which, and the identity of the persons, firms or corporations by which such utilization is being made, what facilities are being used, and whether or not organized crime utilizes such interstate facilities or otherwise operates in interstate commerce for the development of corrupting influences in violation of law of the United States or the laws of any State * * *."
Orman contends that the United States has not sustained the burden of proof required of it that the contents of his 1951 book of accounts and the name of the person who loaned him $25,000 were pertinent to this investigation of interstate crime.
We conclude first that the trial court's charge to the jury on the question of pertinency was a correct statement of the law. As the trial court stated during the trial, "* * * the question is: was the question and the possible answer pertinent at that time to the [Committee's] inquiry?" (Emphasis added.) This of course applies equally to the request to disclose the entries in the 1951 book of accounts. Orman, however, prepared his defense on the assumption that the actual contents of the book and the name of the person who loaned him $25,000 were evidence to be considered in determining pertinency. This assumption was wrong. Under Section 192 it is the question which must be pertinent. Marshall v. United States, supra; see Sinclair v. United States, supra, 279 U.S. at pages 296-297, 49 S.Ct. at pages 272-273; United States ex rel. Cunningham v. Barry, 3 Cir., 1928, 29 F.2d 817, reversed on other grounds, 1929, 279 U.S. 597, 49 S.Ct. 452, 73 L.Ed. 867. An innocent, true answer does not destroy the pertinency of the question. It was therefore not erroneous for the trial court to keep Orman's evidence from the jury, even assuming that this evidence disclosed no criminal conduct related to the inquiry into interstate crime.
This does not mean that a congressional committee possesses the power to examine private citizens indiscriminately in the mere hope of stumbling
Orman's counsel at the trial made no attempt to deny this, stating: "I don't say he is not a gambler but, I say, that is not his principal business." The Court replied: "Well, aren't we arguing about a distinction without a difference."
This, taken in conjunction with the Committee's knowledge of the methods of operation of gamblers over state lines,
We approve this charge. It was certainly pertinent under the circumstances for the Committee to seek facts which might show whether Orman was linked with unlawful interstate gambling. Although his responses might have proved that he was not, it was not his right to deny this knowledge to the Committee.
In Bowers v. United States, supra, somewhat similar questions asked a witness by this same Committee were held not pertinent to the Committee's investigation in a unanimous decision by the United States Court of Appeals for the District of Columbia. The distinction from the instant case, however, is that in the Bowers case the United States failed to produce sufficient evidence to prove the pertinency of questions not prima facie pertinent. Cf. also United States ex rel. Cunningham v. Barry, supra. Orman here might well have been justified in refusing to answer many of the early questions asked him — for example, those relating to his employment as a teenager — but once he admitted substantial income from gambling, the more detailed inquiries now before us became pertinent.
Orman also contends that pertinency is a question of law and as such may not be submitted to the jury. Courts have said that the question is one of law. Sinclair v. United States, supra, 279 U.S. at page 298, 49 S.Ct. at page 273; Morford v. United States, 1949, 85 U.S.App.D.C. 172, 176 F.2d 54, 57, reversed on other grounds, 1950, 339 U.S. 258, 70 S.Ct. 586, 94 L.Ed. 815. But in Sinclair the Supreme Court explained that the "question of pertinency * * * was rightly decided by the court as one
The court below interpreted rightly the law concerning pertinency. It could be urged that the language of Counts 1 and 2 of the indictment alleging "which records were pertinent to the matter under inquiry by the * * * Committee" (Emphasis added), was at variance from the correct view that the single issue for determination at the trial was whether the demand made for the production of records was pertinent to the matter under inquiry by the Committee. As we have stated it is immaterial that the contents of the book might prove eventually to lack pertinency to the matter under inquiry. The book was "pertinent" in the sense that it was the kind of record which under all the circumstances could be and was properly called for by the Committee. As we have said, its pertinency did not depend on its contents. Once it was established by the evidence that the demand made for Orman's book was pertinent and that he had refused compliance with this demand he could be found guilty of contempt.
But another view properly may be taken of the allegations in Counts 1 and 2 that the "records were pertinent." These allegations can well be treated as surplusage and for this reason the United States did not have to prove them. See
Finally on this aspect of the case, the record is devoid of any indication that Orman was prejudiced by reason of the allegations referred to. He has asserted no error in respect to them and made no objection to the indictment on this ground.
Orman also suggests that the Committee went beyond the scope of any contemplated legislation and assumed the functions of a grand jury. Cf. Kilbourn v. Thompson, supra. But when the general subject of investigation is one concerning which Congress can legislate, and when the information sought might aid the congressional consideration, a legitimate legislative purpose must be presumed. See Morford v. United States, supra, and McGrain v. Daugherty, supra, 273 U.S. at page 178, 47 S.Ct. at page 330. The motives of the individual members of the Committee may not be impugned. United States v. Josephson, 2 Cir.1947, 165 F.2d 82, certiorari denied, 333 U.S. 838, 68 S.Ct. 609, 92 L.Ed. 1122 rehearing denied, 1948, 333 U.S. 858, 68 S.Ct. 731, 92 L.Ed. 1138; Eisler v. United States, 83 U.S.App.D.C. 315, 170 F.2d 273, certiorari granted, 1948, 335 U.S. 857, 69 S.Ct. 130, 93 L.Ed. 404, certiorari dismissed, 1949, 338 U.S. 883, 70 S.Ct. 181, 94 L. Ed. 542.
We come now to Orman's contention that it was his right to refuse to respond to the inquiries made by the Committee unless the Committee agreed not to publicize the information he would give them. As the Supreme Court in Sinclair v. United States, supra, 279 U.S. at page 292, 49 S.Ct. at page 271, has so cogently said: "It has always been recognized in this country, and it is well to remember, that few if any of the rights of the people guarded by fundamental law are of greater importance to their happiness and safety than the right to be exempt from all unauthorized, arbitrary or unreasonable inquiries and disclosures in respect of their personal and private affairs." Moreover, to "compel an individual to produce evidence, under penalties if he refuses, is in effect a search and seizure, and, unless confined to proper limits, violates his constitutional right to immunity in that regard. Boyd v. United States, , 116 U.S. 616, 621-622, 6 S.Ct. 524, 29 L.Ed. 746." Annenberg v. Roberts, 1938, 333 Pa. 203, 213, 2 A.2d 612, 617. See Zimmermann v. Wilson, 3 Cir., 1936, 81 F.2d 847, 849; Id., 3 Cir.1939, 105 F.2d 583.
On the other hand, there can be no question of the power of Congress to undertake fact-finding inquiries in aid of legislation. McGrain v. Daugherty, supra. This necessitates some curtailment of the individual's right to be let alone, just as the efficient exercise of judicial power imposes upon private citizens a duty to submit their conduct to its scrutiny. See Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harv.L.Rev. 153, 219 (1926). Indeed, Section 193, Title 2, U.S.C.A., recognizes that "No witness is
As shown above, the Committee had reason to investigate Orman as it did. Cf. Marshall v. United States, supra. There could be no doubt in Orman's mind as to what information the Committee desired, or the general purpose for which the Committee had been appointed. Therefore Orman is in error in claiming a violation of his right under the Fourth and Fifth Amendments
There is, however, another aspect to Orman's refusals to cooperate with the Committee. As we read his testimony, his refusals were not absolute claims of right to conceal information from the Committee. He stated his willingness that the Committee should have his information provided it was not given to the public. As he testified, he was in business in Atlantic City and was therefore unwilling that the public should have access to his financial records particularly since, in his view, there was nothing in these records which could help the Committee. The condition which he sought to impose upon his responses to the Committee's inquiries seemed reasonable to him. This raises a problem quite unlike that raised by an outright refusal to give information to the Committee under any circumstances.
In general a witness before a congressional committee must abide by the committee's procedures and has no right to vary them or to impose conditions upon his willingness to testify. Eisler v. United States, supra; United States v. Costello, 2 Cir., 198 F.2d 200, certiorari denied, 1952, 344 U.S. 874, 73 S.Ct. 166. It has been held, however, that witnesses before the Senate Crime Committee properly refused to testify in a hearing room filled with television and newsreel cameras, news photographers with flashbulbs, radio microphones and a large crowd of spectators. United States v. Kleinman, D.C.D.C.1952, 107 F.Supp. 407, 408. Like Orman, the witnesses in Kleinman objected that their constitutional rights would be violated by being compelled to testify under circumstances of such publicity. But the court in Kleinman sustained their objection on the ground that the atmosphere of the hearing room was calculated "necessarily so to disturb and distract any witness to the
We think the Kleinman case is not persuasive here. Orman's testimony was given at a closed session of the Committee. There were no distracting circumstances alleged which might have jeopardized the accuracy and truthfulness of his answers. Orman simply feared that following the hearings of July 7 and 17, 1951, his testimony would be given to the newspapers, as it apparently had been at the close of the session on July 6, 1951. We cannot see that this fear would affect his ability to give the information requested. It would certainly have nothing to do with his ability to produce his 1951 book of accounts.
Orman insists upon his right to make what was called a "closed" session of the Committee, a closed session in fact. He urges the court to take judicial notice of the purpose of the Committee to obtain maximum publicity for all its hearings, regardless of the nature of the information received. This brings before us the question of the extent to which a court can and should regulate the procedures of a lawful congressional committee making pertinent inquiries. As we have said, the individual motives of the members of such a committee cannot be impugned. On the other hand, there is much to be said for a cooperating witness' right to demand that information which cannot aid the committee in its legislative purpose be withheld from the public. We conclude, however, that this is a matter for legislative rather than judicial control. Unless a court were to receive the entire record of a committee's hearings, it would be almost impossible to tell which items of testimony should properly be included in the committee's report to Congress, or otherwise publicized, and which should not. It might well be proper for the committee to report, over the objection of the witness to this publicity, that certain persons, previously suspected, were not connected with the matters investigated, and to give reasons for this conclusion. The Senate Crime Committee was authorized to ascertain the identity of persons using the facilities of interstate commerce in furtherance of criminal activities. Orman cannot be permitted to prevent the Committee from reporting its investigation of him, and including his testimony in its report.
The Committee was entitled to refuse to accept Orman's condition before it knew what information Orman had to give. As we have said, this is not a case where the inquiries themselves were not pertinent. Perhaps it would be desirable for Congress to limit the newspaper and television publicity given to the testimony of witnesses — we believe that in some investigations this has been the practice — but in accord with the Eisler and Costello cases, supra, we hold that a court will not enforce a condition imposed upon committee procedure by a witness, at least where no circumstances appear which might affect the ability of the witness to give clear and truthful testimony.
We conclude therefore that Orman's refusal to identify the source of the $25,000 loan was deliberate and intentional.
One problem remains, which we raise of our own accord, for it is not set out in Orman's grounds for appeal. The court below imposed a twelve months sentence on Counts 1 and 3, the terms to run concurrently, and suspending imposition of sentence on Counts 2 and 4, placed Orman on probation for one year, the terms of probation to run concurrently, and to commence at the expiration of the sentences imposed on Counts 1 and 3. The statute under which Orman was tried and was found guilty is set out in note 3, supra. It provides for punishment both by fine and imprisonment but specifies that the imprisonment shall not be less than one month nor more than twelve months.
We must now consider whether there was not a multiplying of penalties by the sentences imposed for what are not in substance more than two separate contempts. Where there are separate refusals to produce documents or to answer separate questions it is proper for each refusal to be set forth in a separate count of the indictment. United States v. Emspak, D.C.D.C.1950, 95 F.Supp. 1012. But where the separate questions seek to establish but a single fact, or relate to but a single subject of inquiry, only one penalty for contempt may be imposed. See United States v. Yukio Abe, D.C.Hawaii 1951, 95 F.Supp. 991, 992. Cf. Trumbo v. United States, 1949, 85 U.S.App.D.C. 167, 176 F.2d 49, certiorari denied, 339 U.S. 934, 70 S.Ct. 663, 94 L.Ed. 1353, rehearing denied, 1950, 339 U.S. 972, 70 S.Ct. 995, 94 L. Ed. 1379; Fawick Airflex Co. v. United Electrical Radio & Machine Workers of America, Ohio App.1950, 92 N.E.2d 431; People ex rel. Amarante v. McDonnell, Sup.1950, 100 N.Y.S.2d 463. Where the witness has refused to give any testimony, a committee cannot multiply his contempt by continuing to ask him questions each time eliciting the same answer. United States v. Costello, supra. Counts 1 and 2 and Counts 3 and 4 concern different phrasings of two questions. Orman's refusal to produce the book and to answer each form of the question as to the source of the $25,000 does not amount to four contempts. It follows, therefore, that Orman can legally receive but two sentences, each not in excess of the statutory maximum. The court, however, has imposed two penalties: one, a sentence of twelve months imprisonment, and two, a year's probation commencing at the end of the twelve months imprisonment.
As we have said, Counts 1 and 2 were based on refusals to produce the book. Counts 3 and 4 were based on refusals to respond to questions respecting the $25,000 loan. The court selected Count 1 (book) and Count 3 (loan) for the imposition of the maximum prison sentence prescribed by the statute. In doing so the court exhausted its sentencing power and could not — at least under the form of its existing judgment — impose probation. The court intended to impose a prison sentence of twelve months on Orman and to put him on probation for one year following the expiration of his prison term. The sentence of probation imposed is illegal for as we have said the court had no sentencing power left.
Accordingly, we will affirm the judgments of conviction on all four counts and will affirm the judgments of sentence on Counts 1 and 3. To clear the record we will vacate the judgments of sentence on Counts 2 and 4. These are nullities since the court was without the power to impose them.
Orman's contention respecting the difference between the meaning of the phrases "produce" and "turn over" is without merit. To carry a book into a hearing and to assert compliance with a subpoena to produce by saying in effect: "I produce the book and here it is. But you may not put it into the record.", is to render the statute nugatory. Orman's alleged right to make the production of the book conditional upon a promise not to publicize its contents is discussed at a later point in this opinion under the heading "II".
As to Orman's refusal to divulge the source of the $25,000 loan, the validity and scope of the subpoenas served on him are immaterial since he appeared before the Subcommittee without contesting the summons. See United States v. Josephson, 2 Cir., 1947, 165 F.2d 82, certiorari denied 333 U.S. 838, 68 S.Ct. 609, 92 L.Ed. 1122, rehearing denied, 1948, 333 U.S. 858, 68 S.Ct. 731, 92 L.Ed. 1138; Eisler v. United States, 83 U.S.App.D.C. 315, 170 F.2d 273, certiorari granted, 1948, 335 U.S. 857, 69 S.Ct. 130, 93 L.Ed. 404, certiorari dismissed, 1949, 338 U.S. 883, 70 S.Ct. 181, 94 L. Ed. 542.