as to their own affiliation with the Communist Party or any other subversive group but also tell about the operations of that particular group, tell who were members, and so forth.
'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, I direct you to answer these questions. (Emphasis added.)
'Mr. Singer. * * * I wish to restate my position: That, in honor and conscience, I just cannot, and also for fear of incrimination --
'Mr. Clardy. Since you have directed the witness to answer the questions it would probably be well, in view of that direction, if counsel would again ask him either singly or collectively as to whether or not those members attended any single meeting. In other words, I think they should be repeated now that the direction of the Chair has been given so this record may be clear.'
Mr. Clardy's suggestion was not followed by the Chairman, the latter declaring that 'the record is clear enough with reference to his refusal to answer relative to those people he knew.'
It is clear that the Committee made no specific ruling on the objections of the defendant but did give the direction to answer indicated in the colloquy. A query arises as to the scope of that direction. The request of Mr. Kunzig, committee counsel, was that the defendant be directed to answer 'that series of questions' without otherwise identifying the questions. Thereupon the Chairman directed the defendant to answer 'these questions' after referring to them as 'these questions put to you by counsel which you declined to answer.' Two views of the scope of the direction are possible. One is that the direction applied to all questions which the defendant up to that time had declined to answer, considering all such questions as one series. The other possible view is that there were two series of such questions and that the direction applied only to questions in the second series, considering the first series as the questions in counts 2 through 10 (as to whether the defendant knew named individuals as members of the Communist Party) and the second series as the questions in counts 11 through 20 (as to whether these named individuals attended Communist meetings about which the defendant had testified). Mr. Clardy in his quoted statement appears to regard the direction as applying only to the second series, being the series immediately preceding the Chairman's direction to answer.
This being a criminal case the defendant is presumed to be innocent. If from the evidence two theories are equally consistent -- one of innocence and one of guilt -- the court must adopt that of innocence. As to counts 1, 3, 4, 5, 6, 7, 8, 9 and 10 the proposition that the defendant was directed to answer finds no more support in the evidence than the contrary proposition that he was not directed to answer. Clearly the Chairman's direction to the witness and the surrounding circumstances leave in doubt the appliance of that direction to the questions in the specified counts. It follows that the requisite foundation for prosecution for a deliberate, intentional refusal to answer was not laid as to these counts. Quinn v. United States, 349 U.S. 155, 75 S. Ct. 668, 99 L. Ed. 964; Emspak v. United States, 349 U.S. 190, 75 S. Ct. 687, 99 L. Ed. 997; Bart v. United States, 349 U.S. 219, 75 S. Ct. 712, 99 L. Ed. 1016.
The question in count 11 is in a different category. It is the first question in the second or last series of questions
which the defendant had declined to answer just before he was directed to answer by the Chairman. From the direction and the setting in which it was given as shown by the evidence, the court concludes that beyond a reasonable doubt the defendant was specifically directed to answer the question in count 11 despite his objections, and that he adhered to his refusal to answer.
With respect to count 11, there remain to be considered the question of pertinency and defendant's plea of self-incrimination.
The statute under which the indictment was returned provides in part:
'Every person who having been summoned as a witness * * * to give testimony * * * upon any matter under inquiry before * * * any committee of either House of Congress * * * refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor * * *.'
When a witness refuses to answer a question and the government undertakes to convict him of a criminal offense for not answering, then pertinency must be established. Sinclair v. United States, 279 U.S. 263, 292, 49 S. Ct. 268, 73 L. Ed. 692. Bowers v. United States, 92 U.S.App.D.C. 79, 202 F.2d 447.
The first step in determining pertinency is to ascertain the subject matter of the inquiry conducted by the Committee. The Committee before whom defendant appeared was authorized to make investigation of '(1) the extent, character and objects of Un-American propaganda activities in the United States, (2) the diffusion within the United States of subversive and Un-American propaganda that is instigated from foreign countries or of a domestic origin and attacks the principle of the form of government as guaranteed by our Constitution, and (3) all other questions in relation thereto that would aid Congress in any necessary remedial legislation.'
The pertinency of the question covered by count 11 depends upon whether the answer to that question would aid the Committee in its investigation of the matters just mentioned.
On its face, the question covered by count 11, which concerns whether certain named individuals attended meetings mentioned by the defendants, does not appear pertinent to the inquiry. The government, however, has shown that this question was pertinent.
The Committee at the time defendant appeared before it was attempting to ascertain the character, extent and objects of Communist Party activities when such activities are carried on by members of the teaching profession who are subject to the directives and discipline of the Communist Party.
It cannot be disputed that the Communist movement is a threat to the form of government guaranteed by our Constitution.
It is well known that schools and colleges are a target of infiltration and activity in the program of World Communist leaders to destroy the United States, and that the Communist Party is keen to organize educators and intellectuals because they are molders of public opinion. The teaching profession is capable of being an effective medium of Un-American propaganda activities, and therefore an investigation of its members who are or who have been subject to the directives and discipline of the Communist Party is clearly pertinent to the investigation which the Committee was authorized to make.
The defendant had informed the Committee prior to the time the question covered in count 11 was asked that he had been employed as a teacher since 1938 and that he was so employed at Harvard from 1938 to 1951, that when at Harvard, during the years 1940-1945 he met with a Communist Party group, that the meetings were held at the homes of members of the group, that a maximum of 7 or 8 persons attended the meetings, that approximately 14 of 15 different persons attended the meetings during those years, that the group discussed Marxian philosophy and attempted to apply what they could to present-day events on the theoretical level, that they read Communist literature, that there were discussions about the dictatorship of the proletariat, and how it was to be achieved, that he contributed money for Communist purposes, and that the person who invited him to join the group was a member of the staff of Harvard University.
The identity of individuals other than Mr. Singer who attended these meetings would be valuable to the Committee in securing additional information with respect to the character, extent and objects of activities carried on by members of the teaching profession who are subject to the directives and discipline of the Communist Party. It is true that the meetings took place some years ago, but the court is of the view that the past is clearly pertinent to the present nature of an organization. Communist Party of U.S. v. Subversive Activities Control Board, 96 U.S.App.D.C. 66, 223 F.2d 531, 570, certiorari granted, 349 U.S. 943, 75 S. Ct. 872, 99 L. Ed. 1270.
Under the constitutional privilege against self-incrimination a witness may rightfully refuse to answer questions as to his connection with the Communist Party as calling for disclosure of facts tending to incriminate. Blau v. United States, 340 U.S. 159, 71 S. Ct. 223, 95 L. Ed. 170. The defendant when he appeared as a witness did not exercise his privilege of remaining silent concerning facts tending to connect him with the Communist Party. He freely described his Communist membership, activities, and contributions. His claim of privilege against self-incrimination was asserted in relation to the identification of other persons present at Communist meetings which he had voluntarily testified he attended.
Clearly this is a case where the defendant claimed the privilege against self-incrimination, but the issue is whether he waived his privilege of silence when he freely answered questions relating to his own connections with Communism.
In Rogers v. United States, 340 U.S. 367, 71 S. Ct. 438, 442, 95 L. Ed. 344, Mrs. Rogers appeared before a grand jury and testified without objection that she had been Treasurer of the Communist Party of Denver, had been in possession of its records and had turned them over to another person. She refused to identify the person to whom she had delivered the records. At the time of her second refusal to answer in the presence of the court she claimed the privilege against self-incrimination. Her conviction of contempt for refusal to answer was affirmed by the Supreme Court in an opinion stating in part:
'Requiring full disclosure of details after a witness freely testifies as to a criminating fact does not rest upon a further 'waiver' of the privilege against self-incrimination. Admittedly, petitioner had already 'waived' her privilege of silence when she freely answered criminating questions relating to her connection with the Communist Party. But when petitioner was asked to furnish the name of the person to whom she turned over Party records, the court was required to determine, as it must whenever the privilege is claimed, whether the question presented a reasonable danger of further crimination in light of all the circumstances, including any previous disclosures. As to each question to which a claim of privilege is directed, the court must determine whether the answer to that particular question would subject the witness to a'real danger' of further crimination. After petitioner's admission that she held the office of Treasurer of the Communist Party of Denver, disclosure of acquaintance with her successor presents no more than a 'mere imaginary possibility' of increasing the danger of prosecution.'
The court finds that Mr. Singer waived the privilege by his answers to prior questions concerning his Communist Party affiliation and activities, and that the answer to the question in count 11 (as to whether named individuals were present at Communist meetings which he had previously admitted attending) would not subject him to any real danger of further incrimination.
The court finds the defendant, Marcus Singer, guilty as to count 11 and not guilty as to counts 1, 3, 4, 5, 6, 7, 8, 9, and 10 of the indictment.