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January 31, 1951

EMSPAK (and nineteen other cases)

The opinion of the court was delivered by: KIRKLAND

The first sixteen above-named defendants were indicted by the Grand Jury of this Court for contempt of Congress, 2 U.S.C.A. § 192, for failure to answer questions before a duly created sub-committee of the Committee on Un-American Activities of the House of Representatives, pursuant to Section 121(b) of the Legislative Reorganization Act of 1946, subsection (q)(2), Rules of House of Representatives, rule 11, 60 Stat. 828, and House Resolution 5 of the 81st Congress; the last three above-named defendants were indicted by the Grand Jury of this Court for contempt of Congress for failure to answer questions before a duly created sub-committee of the Committee on Foreign Relations of the United States Senate which was conducting hearings pursuant to Senate Resolution 231, 81st Congress, 2nd Session. Title 2, Section 192, of the United States Code Annotated provides: 'Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, * * * or any committee of either House of Congress, wilfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor * * *.' (Emphasis supplied.)

Defendants herein have filed motions to dismiss the indictments pursuant to Rule 12 of the Federal Rules of Criminal Procedure, 18 U.S.C.A.

 Each indictment contains several counts ranging up to as high as 68 counts in one case. Counsel for defendants urge that these indictments are duplicitous in that they charge one crime in several counts and also that they put the defendant in jeopardy of being convicted and punished more than once for the same act. The Government counsel argues that since the statute, 2 U.S.C.A. § 192, supra, defines the crime as the refusal to answer 'any question', then each refusal to answer a different question would be a separate violation.

 In Upshaw v. United States, 10 Cir., 1946, 157 F.2d 716, the Court set out the test for determining the identity of offenses as follows: 'And the generally recognized test for determining whether the offenses charged in two or more indictments or in different counts of the same indictment are identical or separate is whether the same proof would sustain a conviction under both or whether each requires proof of one or more facts which is not required of the others. Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306; Gilmore v. United States, (10 Cir., 124 F.2d 537).' Id., 157 F.2d at page 717.

 As contended by the United States in this proceeding if a witness refuses to answer any question he has violated the statute. Clearly it is necessary to prove a different fact to sustain the charge for each different question. Applying the above test to the indictments in these cases, the refusal to answer each question must be charged in a separate count since the same proof would not sustain a conviction under each count, and an indictment charging more than one offense in any one count is as defective as an indictment charging a single offense in multiple counts. In several recent cases involving contempt, indictments setting forth the several questions which the defendants refused to answer were held valid. Alexander v. United States, 9 Cir., 1950, 181 F.2d 480; Doran v. United States, 9 Cir., 1950, 181 F.2d 489; Kasinowitz v. United States, 9 Cir., 1950, 181 F.2d 632, 633; Trumbo v. United States, 1949, 85 U.S.App.D.C. 167, 176 F.2d 49.

 Counsel for defendants go a step further, however, and urge that a conviction on each count would allow the Court to incarcerate some of these defendants for the balance of their lives. Although the problem of the sentence after conviction is not before the Court at this time, it does appear that a short discussion of this problem as collateral to the allegation of duplicity may be helpful.

 Diligent effort on the part of counsel has produced a series of cases which are pertinent here. One of the earliest cases to consider this precise problem was Maxwell v. Rives, 1876, 11 Nev. 213. In this case the defendant was held in contempt of court for refusing to answer a number of questions. In considering the trial court's action in imposing a separate penalty for each refusal the court said: 'A penal statute must be strictly construed. Upon that principle at least, if not upon more liberal principles of construction, the mere refusal of a witness to testify on the same trial of the same issue cannot be deemed more than one contempt, no matter how many questions he may refuse to answer * * * The district judge erred in finding that each separate refusal to answer a question was a distinct contempt * * *.' Id., 11 page 221. The Court there cited People ex rel. Tweed v. Liscomb, 1875, 60 N.Y. 559, in which opinion may be found a collection of English and early American cases which involved multiple penalties for a single act.

 Recently the United States District Court for the District of Hawaii considered indictments identical in substance to those before the Court now, and that court held in respect to the multiple count indictments as follows: 'As to objections to the number of Counts, the Court is of the opinion that the Government has the right to frame each refusal to answer in a separate Count. Rule 8 Federal Rules of Criminal Procedure, 18 U.S.C.A. However, as the questions appear to be directed all to one subject of inquiry and the answers were simultaneous during the proceedings, and continuous acts, the indictments therefore charge only one alleged offense. Kerr v. Squier, 9 Cir., 151 F.2d 308; Price v. United States, 5 Cir., 150 F.2d 283-285; Upshaw v. United States, 5 Cir., 157 F.2d 716, strongly indicate that no matter how many refusals to answer may occur in an examination such as is alleged, the maximum sentence that could be imposed pursuant to the Statute involved, Sec. 192, Title 2, U.S.C.A., would be punishment for not more than one refusal.' United States v. Yukio Abe, D.C., - F.Supp. - Accordingly, the District Court of Hawaii refused to dismiss the indictments on the ground of duplicity, and deferred ruling on the motion to dismiss until after a trial on the general issue.

 Two recent State cases, Fawick Airflex Co. v. United Electrical, Radio & Machine Workers of America, 1950, Ohio App., 92 N.E.2d 431, 436 and People ex rel. Amarante v. McDonnell, Sup. 1950, 100 N.Y.S.2d 463, considered a charge of separate contempts for refusal to answer a series of questions. Both courts held that only one contempt was committed and the defendant could receive only the maximum penalty for one contempt after conviction. In the Fawick case, the court rationalized the problem as follows:

 'As heretofore noted in this opinion, the appellant was found guilty of three separate acts of contempt based upon his refusal to answer three separate questions.

 'It appears to the members of this court that the questions were of such character that they should be treated as an inquiry into but a single subject. The first question asked the witness directly was whether he was a member of the Communist Party. When he refused to answer, other questions were then asked, which, if answered in the affirmative, would have established an inference that he was such a member. In fact, the entire inquiry was directed toward the establishment of but one fact. The witness' refusal to answer the three questions under discussion constituted, in the opinion of the members of this court, but a single contempt, for the reason that they all had to do with the same subject matter.' (92 N.E.2d 436.)

 The New York court considered the problem in the same light, saying:

 'The question then presents itself as to whether or not by refusing to answer seven questions relating to the same subject matter the relator was guilty of seven separate and distinct contempts. If this question be answered in the negative, then the County Judge acted in excess of the jurisdiction conferred upon him in sentencing the relator to a term in excess of the maximum provided by law for a criminal contempt.

 'The court is of the opinion that the relator committed but one contempt. To hold otherwise would enable a prosecutor to ask an unlimited number of questions concerning the same subject matter of even to ask the same question in various forms, with the net result that a witness ...

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