The opinion of the court was delivered by: MATTHEWS
The defendant, Marcus Singer, is before this Court charged in a multiple count indictment under Title 2 of Section 192 of the United States Code Annotated with unlawfully refusing to answer certain pertinent questions when he appeared as a witness before a subcommittee
of the Committee on Un-American Activities of the House of Representatives on May 26 and 27, 1953, in the District of Columbia. Having waived a jury, the defendant was tried by the Court. At the close of the evidence offered by the government, the defendant moved for a judgment of acquittal, and his motion was granted as to counts 2 and 12 through 22. At the close of all the evidence the defendant moved for a judgment of acquittal as to the remaining counts which are 1, 3, 4, 5, 6, 7, 8, 9, 10 and 11.
When the defendant appeared as a witness he told the Committee that he was not then a member of the Communist Party but had met with a Communist group when he was at Harvard University, first in late 1940 or early 1941 and through the war years until perhaps 1944 or 1945. At that time he considered himself a Communist, and supported the Communist program. He stated that the group was autonomous and that its members did not follow any 'slavist' policies. He discussed the size of the group, referred to its members as professionals associated with universities and among other things described group activities. He stated also that in immediate proximity to the war years, the postwar years and the subsequent years of 1946, 1947 and 1948, his interest dwindled to the point where he disassociated himself completely from the group, and that his basic loyalties always were and would be with his country.
The defendant gave considerable information but declined to tell the Committee who invited him to become a member of the Communist group, whether he knew 'as a member of the Communist Party' certain individuals with whom he had admitted acquaintanceship, and whether these individuals attended the meetings which he had mentioned. It was the defendant's position that he would talk freely about himself but that in honor and conscience he could not talk about his colleagues and associates who he alleges did nothing subversive. The defendant further stated that to answer such questions would tend to incriminate him.
Three main issues have been raised: (1) whether the Committee specifically overruled the defendant's objections, or specifically directed him to answer despite his objections; (2) whether the questions he would not answer were pertinent to the inquiry authorized; and (3) whether he waived his privilege against self-incrimination with respect to the questions he refused to answer.
To lay the necessary foundation for a prosecution under Section 192 of Title 2 of the United States Code Annotated a congressional investigating committee before whom a witness appears must specifically overrule the objections of the witness or specifically direct him to answer despite his objections. Bart v. United States, 349 U.S. 219, 75 S. Ct. 712, 99 L. Ed. 1016; Quinn v. United States, 349 U.S. 155, 75 S. Ct. 668, 99 L. Ed. 964. Whether the Committee in the instant case laid the requisite foundation turns on a colloquy which took place at the hearing.
The background leading to the colloquy will now be related.
Four questions then followed which were answered by the defendant without objection. Next a question was propounded as to whether nine named individuals attended the (Communist) meetings about which the defendant had testified, the text of that question (set out in count 11) being:
'Now, these people we have mentioned up to this time -- Robert G. Davis, Wendell H. Furry, Isador Amdur, Norman Levinson, John H. Reynolds, Dirk Struik, William Ted Martin, Lawrance Arguimbau, and Helen Deane Markham -- did they attend these meetings to which you testified yesterday?' (Count 11.)
On the same grounds Mr. Singer declined to answer the question. Nevertheless, the same inquiry was again made but in a different way, nine questions being used and each constituting a part of the single question in count 11. The defendant on the same grounds declined to answer the nine questions. They are set out in counts 12 through 20 of the indictment.
Immediately after the defendant had declined to answer the questions included in counts 11 through 20 this colloquy took place:
'Mr. Kunzig. I request, sir, that the witness be directed to answer that series of questions, as they are completely pertinent and relevant to the matter before this committee. (Emphasis added.)
'I know you are represented by able counsel, and I hope you will realize there is a possibility that you will be cited for contempt of this committee and contempt of Congress.
'Bearing that in mind, the Chair feels that these questions put to you by counsel,
which you declined to answer, are pertinent to this committee's work; and, therefore, ...