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July 6, 1956

Diantha HOAG

The opinion of the court was delivered by: PINE

The defendant stands indicted in an eight-court indictment for violations of 2 U.S.C.A. § 192, which makes it an offense, under certain circumstances, for a person to refuse to testify before a committee of either house of Congress. More specifically, the indictment charges that the Senate Permanent Subcommittee on Investigations, of the Committee on Government Operations of the Senate, was conducting hearings, and that defendant appeared as a witness before this subcommittee and was asked questions which were pertinent to the question under inquiry, which she unlawfully refused to answer. Each of the eight counts relates to a separate question. Trial by jury has been waived.

It appears undisputed that defendant appeared before a quorum of this subcommittee pursuant to subpoena, and was duly sworn and interrogated. The transcript of these proceedings consists of eight printed pages. She answered some questions, but refused to answer approximately 29, specifically invoking the Fifth Amendment to the Constitution. Among these 29 questions which she refused to answer on this ground are the eight made the basis for the indictment. Her claim of privilege in each case was clear and unequivocal, and she was directed to answer in equally clear and unequivocal language. In find that the questions propounded which were included in the indictment were pertinent to the question then under inquiry, and that this question was within the purview of the authority of the subcommittee, and had a legislative purpose.

 The point for determination, and on this hinges defendant's guilt or innocence, is whether she was required, under the law, to answer the questions after having refused so to do in reliance on the Fifth Amendment. The Government concedes that, standing alone, this reliance would offer a complete defense, but claims that she waived her rights under the Fifth Amendment by virtue of an answer she gave to a previous question. That question was as follows:

 'If the Communist Party ordered you to sabotage the work you are doing, assuming that we were at war with Communist Russia, would you obey those orders or would you refuse to obey them?'

 On that question defendant said she would make a statement. The Chairman agreed that she might, and then she answered as follows:

 'I have never engaged in espionage nor sabotage. I am not so engaged. I will not so engage in the future. I am not a spy nor saboteur * * *'

 The issue, therefore, is whether, by giving that answer, she waived her rights, under the Fifth Amendment, to the questions subsequently propounded. These, generally speaking, had to do with whether she had given information about her work to members of the Communist Party, whether she had discussed at a Communist Party meeting classified Government work, whether she received any clearance before 1947 to work on classified work, whether she did some espionage for the Communist Party seven and one-half years before, the character of work she was doing before 1947, and the city where she worked before her present job.

 It is the Government's contention that these questions come within the area of her answer above quoted, and having given that general answer, she waived her right to refuse to answer the specific questions thereafter propounded on the ground that they might incriminate her. It is defendant's contention that her answer, which the Government claims is a waiver, was not incriminating and therefore did not foreclose her from claiming her privilege under the Fifth Amendment to the specific questions involved; in other words, that it did not constitute a waiver.

 The answer to these opposing contentions is found, in my opinion, in the decisions of the Supreme Court, which I shall now discuss.

 In Arndstein v. McCarthy, 254 U.S. 71, 41 S. Ct. 26, 65 L. Ed. 138, Arndstein had been adjudged an involuntary bankrupt and was called before special commissioners for examination under the Bankruptcy Act, 11 U.S.C.A. § 1 et seq. He refused to answer a long list of questions, claiming that to do so might tend to incriminate him. The District Judge upheld this contention, and denied a motion to punish for contempt. He thereafter filed schedules purporting to show his assets and liabilities. When interrogated concerning these, he set up his constitutional privilege and refused to answer many questions. He was held in contempt, and applied for a writ of habeas corpus, which was refused upon the theory that, by filing the schedules, he waived his constitutional privilege and could not thereafter refuse to reply when questioned in respect of them. The Supreme Court, by Mr. Justice McReynolds, held that this view of the law was erroneous, stating that 'The schedules, standing alone, did not amount to an admission of guilt or furnish clear proof of crime, and the mere filing of them did not constitute a waiver of the right to stop short whenever the bankrupt could fairly claim that to answer might tend to incriminate him.'

 Later, in McCarthy v. Arndstein, 262 U.S. 355, 43 S. Ct. 562, 67 L. Ed. 1023, this case was again before the Supreme Court on appeal from an order of the District Court sustaining a writ of habeas corpus and discharging Arndstein from custody. This later decision came about in this manner. After the case had been remanded to the District Court for further proceedings in conformity with the opinion about mentioned, that court vacated its former order and issued the writ of habeas corpus, to which the marshal made return exhibiting a transcript of the entire proceedings before the commissioner. Aside from general denials of the illegality of Arndstein's commitment, the only ground set up by the marshal as a reason for holding him was that he had, before refusing to answer the questions, testified of his own accord, without invoking any privilege, to the very matters with which these questions were concerned, thereby waiving his privilege upon further examination concerning them.

 Upon a hearing on the petition and return, the District Court was of opinion that, although in certain answers made without objection, Arndstein had denied that he had any stocks or bonds in his possession, the conclusion to be drawn from the decision of the Supreme Court in reference to the schedules was that his denials or partial disclosures as a witness did not terminate his privilege so as to deprive him of the right to refuse to testify further about his property, and that he was at liberty to cease disclosures, even though some had been made, when there was just ground to believe the answers might tend to incriminate him. The District Court accordingly sustained the writ and discharged him from custody.

 The Supreme Court, in an opinion by Mr. Justice Sanford, 262 U.S. 355, 43 S. Ct. 562, 563, 67 L. Ed. 1023, found no error in the District Court's decision.

 In discussing the question presented, the Court referred to four cases. The first was Brown v. Walker, 161 U.S. 591, 597, 16 S. Ct. 644, 647, 40 L. Ed. 819, where the Court said that 'if the witness himself elects to waive his privilege * * * and discloses his criminal connections, he is not permitted to stop, but must go on and make a full disclosure.' The second was Foster v. People, 18 Mich. 266, 274, in which the Michigan court held that a witness who has voluntarily admitted his guilt of a criminal offense is not protected from further disclosures on the same subject, but that if he has not actually admitted criminating facts, he 'may unquestionably stop short at any point and determine that he will go no further in that direction.' The third case was People ex rel. Taylor v. Forbes, 143 N.Y. 219, 230, 38 N.E. 303, 306, which held that 'a witness, by answering questions exonerating himself in general terms from all connection with a criminal transaction, does not thereby waive his right to remain silent when it is thereafter sought to draw from him circumstances which might form another link in the chain of facts capable of being used to his ...

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