Marcus Singer v. United States

EDGERTON, Chief Judge

(dissenting).

. Appellant, having waived a jury, was convicted by a District Judge of refusing 4o answer a question asked by a subcommittee of the House of Representatives Committee on Un-American Activities. 52 Stat. 942, 2 U.S.C.A. § 192. At a Committee hearing in 1956, appellant testified he was not then a Communist ^ut that when he was at Harvard in 1940 or 1941 and until perhaps 1944 or 1945, he had considered himself a Communist and had supported the Communist program ’ because he was interested in it” and “believed in it”. He sadd ^ad me^ w*th a Communist Par- ^ SrouP” which was engaged in study and discussion of Marxism and which “did nothing subversive”. He denied having supported any program that involved violence. He said: “we were not subversive * We didn t follow any slavish policy. We were intellectuals. We were scholars. * * * We were autonomous.”

He refused, on grounds both of “hon- or and conscience” and of the Fifth Amendment, to answer several of the Committee’s questions regarding other persons. He was indicted on several counts. He was convicted only on Count 11, which charged him with refusing to say whether nine named persons, all but one of whom he acknowledged that he knew, attended the meetings he attended. The court ruled that his refusal to answer that question was not privileged, because, in the court’s opinion, an an *353 swer would not have subjected him to “any real danger of further incrimination”.

I think the court erred. The privilege against self-incrimination protects a refusal to answer unless it is “ ‘perfectly clear, from a careful consideration of all | the circumstances in The case, that the)5 witness is mistaken, and that the answerj * * * cannot possibly have such ten-1 dency’ to incriminate.” Hoffman v. United States, 341 U.S. 479, 488, 71 S.Ct. 814, 819, 95 L.Ed. 1118 (Italics in original). For two distinct reasons, it is by no means “perfectly clear” that an answer to the question could not “possibly” have a “tendency to incriminate”.

1. If appellant had answered in the affirmative, he would thereby have contributed directly to a “link in the chain of evidence needed in a prosecution * * * for violation of * * * the Smith Act.” Blau v. United States, 340 U.S. 159, 161, 71 S.Ct. 223, 224, 95 L.Ed. 170. The Smith Act makes it unlawful to be a member of a “society, group, or assembly of persons” who advocate overthrow of the government of the United States, or the government of any State, by force or violence, “knowing the purposes thereof”. 54 Stat. 671, 62 Stat. 808, 18 U.S.C. § 2385. To convict a man under this section of Hie Act, the government would have to convince a jury (1) that there had been such a society, group, or assembly of persons, (2) that the defendant had been a member of it, and (3) that he had known its illegal purposes.

Testimony before the Committee had some tendency to show that the nine persons named in Count 11 had the purposes the Smith Act condemns. Five of the nine had testified that they had been Communist Party members. All nine had been publicly identified before the Committee as Communist Party members. One of the nine, Davis, had testified in effect that the members of the group to which Davis belonged were under strict Party control and were not mere rank-and-file Party members: “All the members used aliases on their cards, and the party membership of his group was kept secret from the rank-and-file members of the Communist Party •» * * un(jer instructions from the Communist Party.” There was testimony that one of the nine persons named in Count 11 had been treasurer of the Harvard branch of the Party. One of the nine was actually under indictment for conspiring to advocate overthrow of the government of Massachusetts by force.

The fact that all this testimony was insufficient to convict anyone of anything is immaterial. Although Communist Party members, even if they are under strict Party control, and even if they are more than rank-and-file members, and even if they are under indictment, may have no purpose of overthrowing the government by force, the existence of a popular belief that they are much more likely than most people to have such a purpose is too notorious to be questioned or ignored. The premise that they may be innocent, and may never be prosecuted, is sound. But it does not support the conclusion that they are no more likely than ordinary people, or even ordinary “students of Marxism”, to be prosecuted under the Smith Act.

The Smith Act term “society, group, or assembly of persons” is broad. It is not a term of art. It implies no more about the “persons” than that they repeatedly meet. If the nine persons named in Count 11 repeatedly met, they were members of a “society, group, or assembly of persons”, and their membership had some tendency to show that the group had the purposes the Smith Act condemns. If appellant attended the meetings of such a “society, group, or assembly of persons”, he also was a member of it. An affirmative answer to the question in Count 11 would therefore have tended to show both (1) that there had been the sort of group the Smith *354 Act condemns and (2) that the appellant had been a member of it.

At the trial, the prosecutor said: “of course, it is going to incriminate Mr. Singer to admit that Struick, Amdur, and the rest were in his party. We don’t say that is not incriminatory. We say that he cannot avail himself of the silence with respect to it. Of course, he is going to be worse off. He is going to be far worse off. I concede that.” This concession was fair and appropriate. No testimony the appellant had given was so incriminating as an affirmative answer to the question in Count 11 would have been. The Internal Security Act of 1950 provides that “Neither the holding of office nor membership in any Communist organization by any person shall constitute per se a violation * * * of this section or of any other criminal statute.” 64 Stat. 992, 50 U.S.C.A. § 783(f). The appellant had not said, but an affirmative answer to the question in Count 11 would have said, that he had belonged to a group containing numerous Communists who were under strict Party control and were more than mere rank- and-file Party members, a group that contained an officer of a Communist organization, a group that even contained a person who was afterwards indicted for attempting to overthrow a government by force. The appellant testified that his group was autonomous.1 He testified he did not know Davis. He testified in effect that his group was simply one of the “Marxist study groups” which, according to Davis, were conducted by Communist Party “instructors”. On this appeal the parties have stipulated that at appellant’s trial, “Davis said one of the functions of his group was to conduct Marxist study groups. He said ‘It was fairly easy to form them because at this time * * * there was lively interest in Marxism; and though I think persons joining these groups had some idea that the instructors were close to the Communist Party they, nevertheless, were ready to discuss Marxism with them, and in some cases actually the persons whom the party secured were not actually party members but were intellectual social scientists who knew a good deal about Marxism and were willing to discuss it before a group.’ ”

It does not matter whether the testimony the appellant had given is or is not regarded as having some incriminating tendency. Giving testimony that has some incriminating tendency does not obligate a witness to give other testimony that will subject him to a “ ‘real danger’ of further crimination.” Rogers v. United States, 340 U.S. 367, 374, 71 S.Ct. 438, 95 L.Ed. 344. Arndstein v. McCarthy, 254 U.S. 71, 41 S.Ct. 26, 65 L.Ed. 138; McCarthy v. Arndstein, 262 U.S. 355, 43 S.Ct. 562, 67 L.Ed. 1023; United States v. Courtney, 2 Cir., 1956, 236 F.2d 921; Jackins v. United States, 9 Cir., 1956, 231 F.2d 405; Starkovich v. United States, 9 Cir., 1956, 231 F.2d 411. Our District Court has applied this principle in other cases. United States v. Nelson, D.C.1952, 103 F.Supp. 215; United States v. Hoag, D.C.1956, 142 F.Supp. 667.

2. The privilege against self-incrimination is not confined to testimony which tends directly to establish a fact the government would have to prove in a possible criminal prosecution of the witness. The privilege extends to testimony that might be used “to search out other testimony to be used in evidence against him * * * in a criminal proceeding * * It extends to testimony that might lead to “the obtaining and the use of witnesses and evidence * * * on which he might be convicted * * This is what the Supreme Court expressly held in Counselman v. Hitchcock, 142 U.S. 547, 564, 12 S.Ct. 195, 35 L.Ed. 1110. It seems to me clear that Counselman v. Hitchcock covers this case and requires us to reverse the present conviction. I know of no argument to the contrary.

*355 If the appellant had told the Committee that the persons named in Count 11 attended the meetings he attended, it might have enabled the government to , “search out” from them, and also con- , cerning them, evidence that could be ^used against him. It might have led to “the obtaining and the use of witnesses and evidence * * * on which he might be convicted * * * ” either (1) of violating the Smith Act, or (2) of perjury in the testimony he had previously given the Committee. It would certainly have tended to validate any testimony against him which any of the persons named in Count 11 might give. Though the appellant had attributed an innocent character to his group, it did not follow that the government would not be able, in a prosecution under the Smith Act, to convince a jury that his group was not what he said it was but actually advocated overthrow of the government by force.2 3 It did not follow that the government would not be able, in a prosecution for perjury, to convince a jury that he had given the Committee testimony which was false and which he knew to be false.

The prosecutor recognized the fact that if the appellant had said the persons named in Count 11 attended the meetings he attended, it might have enabled the government to get from them evidence that would incriminate him. The prosecutor recognized the importance of this fact. In arguing a motion preliminary to appellant’s trial, he said: “the committee surely had the right to inquire into whether or not he was telling the committee the truth when he made [his] denial of subversion, and in doing so to find who was there who would either refute it or affirm it.”

I do not imply that I think appellant’s other contentions unsound.

. Though he accepted the prosecutor’s suggestion that he “met with a Communist Party group”, he immediately asked to explain the nature of the group.

. Similarly, in a Smith Act prosecution the jury might not have before it, or might disbelieve in view of other testimony, the statements Singer made to the Committee regarding the year when he ceased his Communist activities. Accordingly the Statute of Limitations has nothing to do with this case. The government does not suggest otherwise.