Mr. Flaxer. I think it is an improper command, sir.
'Senator Watkins. That is the reason you have refused to bring them here today, because you think it is improper? Mr. Flaxer. That is the reason I haven't got them.
'Senator Watkins. That is the main reason. You are directed by the committee to produce those records according to the terms of the subpoena. * * *'
It appears to the court that the offense of contempt was complete at this point. The defendant had been duly summoned to appear before the subcommittee and to bring with him the specified records and the offense of contempt matured when he willfully failed to comply on the return date of the subpoena. U.S. v. Bryan, 339 U.S. 323, 330, 341, 70 S. Ct. 724, 94 L. Ed. 884. The defendant often iterated his view that the subcommittee had no right to the union membership lists but consistently his view was rejected by the subcommittee. The following statement in Bart v. U.S., 91 U.S.App.D.C. 370, 203 F.2d 45 at page 49 is applicable here:
'A witness does not insulate himself from contempt by asserting a reason for a refusal to answer, or by objecting to the question, or by querying its propriety. When he deliberately and intentionally refuses to answer upon a stated ground, he assumes the risk that the ground is unsound.'
The subcommittee's subsequent command to defendant to produce the information sought within ten days was a new order, the validity of which need not now be considered.
Had the defendant respected the new order he probably would not have been cited for contempt for failure to comply with the subpoena on October 5, 1951 albeit such failure on that day made out a case of willful default.
The other main contention of the defendant concerns a quorum. The setting in which the quorum query arises will first be given. After the defendant was sworn as a witness he said: 'I notice that we do not have a quorum of the committee here.' When told by Senator Watkins that 'one present makes a quorum' the defendant responded: 'I am not sure about that. I would like to have the record show that I object to the fact that I think there is no quorum.'
The subcommittee had as members seven senators. The resolution creating the subcommittee declares that a quorum for the transaction of business is a majority of its members except that a lesser number to be fixed by the subcommittee shall constitute a quorum for the purpose of administering oaths and taking testimony.
That lesser number was fixed by the subcommittee for the purpose stated to consist of one Senator of the subcommittee.
The defendant takes the position that only a subcommittee consisting of at least a majority of its members possesses the power to rule on his objections to the production of the records named in the subpoena; that therefore the purported adverse ruling on them by the one-man subcommittee was a nullity, and that since the objections were 'never passed on in any way' by a subcommittee validly constituted for that purpose a judgment of acquittal should be entered.
Before the one-man subcommittee the defendant did not state that he would produce the records if a majority of the members of the subcommittee were present to rule on his objections. It is perfectly plain from his testimony at the hearing that he would not have complied with the subpoena no matter how many members of the subcommittee had been present. There he grounded his objections to producing the documents on 'the rights of unions to the privacy of their membership records' and he insisted that the command of the subpoena 'constitutes a wholesale invasion of such privacy and 'the right to be let alone' which is protected by the Fourth Amendment' and is 'in conflict with the basic union tradition of this country now incorporated into Federal law'.
The defendant did not have the right to withhold the records. The command for their production was proper in view of the subject matter entrusted to the subcommittee for investigation. It is common knowledge that communists contemplate acquiring a powerful leverage on the population by the undercover capture of control of strategic labor unions meanwhile concealing the communist tie from the union membership. In other words the grounds stated at the hearing by the defendant for his refusal to produce the records are unsound and at the trial he completely abandoned them.
It is true as already indicated that the defendant mentioned the matter of a quorum at the hearing. That was at its start and previous to any mention of the records. What the defendant said did not apprise the subcommittee that he deemed essential a quorum of a majority of its members to hear and pass upon his objections to the subpoena. Apparently the defendant did not consider the alleged quorum defect of any importance for he definitely stated and relied on other grounds for his refusal to produce the records, the grounds not being tenable. Moreover, the defendant did not bring on October 5 the membership lists subpoenaed, and therefore, he put himself in a position where he would not comply in any event. In the opinion of the court the defense of lack of a quorum (if there was such a lack) is not available to the defendant under the circumstances of this case. U.S. v. Bryan, 339 U.S. 323, 70 S. Ct. 724, 94 L. Ed. 884
It is ironic that the defendant's two main contentions for a judgment of acquittal one is grounded on the power, the other on the lack of power, of the one-man subcommittee to perform a function other than taking testimony. On the one hand defendant asserts that the one-man subcommittee had power to alter the terms of the subpoena by enlarging the return date. On the other hand he states the subcommittee did not have the power to pass on objections to that subpoena.
In support of the motion for a new trial the defendant says that in instructing the jury it was error for the court to state the subjects committed to the subcommittee for investigation. Specifically, the defendant objects to the mention of communist activities. There is no substance to this contention. In numerous inquiries of the jury on the voir dire the counsel for defendant indicated that the case touched on communism.
The motions are denied.