After Mrs. Ehrlich had testified as to the defendant Cross's assault upon her and her husband in their room at the Clift Hotel on the morning of October 21, the Committee counsel asked the further question (Tr., p. 3032):
'Mr. Kennedy. But his testimony before this committee that he was not present at that time, and he was in bed, is not true, is that right?
'Mrs. Ehrlich. I could just swear on anything that is dear to me that he was there * * *.'
Following Mrs. Ehrlich's testimony as to the assaults on her and husband, the defendant Cross was recalled to the stand. The Chairman of the Committee addressed the witness (Tr., pp. 3032-3033):
'The Chairman. You have heard the testimony, I assume, of Mrs. Ehrlich who has just testified regarding your presence in her room, the room of she and her husband in the hotel in California, in San Francisco, Calif., on the date she stated.
'Did you hear her testimony?
'Mr. Cross. Yes, sir.
'The Chairman. Is that the same occasion that you previously testified about when you were on the witness stand before this committee?
'Mr. Cross. Well, in regards to this matter, yes.
'The Chairman. In other words, the time and place that she testified to is the same time and place you testified to when you previously appeared?
'Mr. Cross. Yes, except of course, that that is not the time of our convention and our convention did not open for 3 or 4 or 5 days later.
'The Chairman. You have heard her testimony that you were present in the room and you came with the others who came in some time early that morning, about a quarter to six I believe she said, and demanded entrance into the room and after which some altercations took place.
'You testified before, positively, that that was not true, that you were in your own hotel at the time. Now, having heard this testimony of this lady, who says she has known you for many years and that she could not be mistaken in her identity, do you wish to further refute her testimony by further denial?
'Mr. Cross. Not by further denial. I stand on the same testimony that I gave before. * * *'.
Starting with the presumption that the Committee was pursuing a valid legislative purpose when it questioned the witness on subjects relevant to matters within the scope of its investigatory authority, what does the record disclose on its face as to the Committee's purpose in recalling the witness Cross? Counsel for the government has argued that the denial in his earlier testimony related only to his presence at the alleged assault on Joseph Kane in the Olympic Hotel, and that prior to his recall Cross had not been interrogated as to the alleged assaults in the Ehrlichs' room at the Clift Hotel. Read alone, the defendant's first denial may be ambiguous. It might be interpreted as applying only to the assault on Kane, or as applying to the whole 'fracas' or 'incident', including the series of assaults described by Kane. The statement of the Committee counsel prefatory to Mrs. Ehrlich's testimony on July 16th and the Chairman's questioning of the defendant Cross upon his recall leave no doubt that the Committee interpreted the defendant's previous testimony as a denial that he was present at any of the alleged assaults, including whatever transpired in the Ehrlichs' room. The record further shows that the Committee's interpretation of his previous testimony was not challenged by the defendant Cross when he stood on his previous denial of any personal knowledge of the whole incident.
The Committee's intent in recalling the defendant Cross may be gleaned from the things said and done by its chairman, counsel, and members. Before the questions were propounded to the defendant on July 16th the Committee had before it not only the directly contradictory testimony of Mr. Kane and Mrs. Ehrlich and the statements of several other witnesses as to strong-arm tactics by Cross on the occasion in question, as well as the police reports and a statement from the office of the District Attorney of San Francisco that it was 'of opinion that Cross, contrary to his statement, was in the hotel room when the argument and alleged beating took place,'
but also had heard a prior flat denial under oath by Cross that he was present at or had any direct knowledge of the alleged series of assaults on October 21, 1956.
What facts then could the Committee expect to elicit from Cross upon his recall? What legitimate legislative purpose could be served by questioning him again regarding the incident? If the witness adhered to his prior testimony the Committee gained no additional facts. If he admitted that he was present at the time of the Ehrlich assault, it would merely corroborate the information the Committee already had in its possession. If the witness refused to answer, invoking the protection of the Fifth Amendment,
the Committee gained no new information -- certainly none which would tend to influence legislation. Whichever course the witness should take, what aid to the legislative purpose could be hoped for by the Committee? As shown by the statements of its Counsel and Chairman, the Committee, on Cross's own prior testimony, had no doubt of his position as to the occurrences concerning which they sought to interrogate him again. The whole tenor of the examination of the witness Cross concerning the many subjects upon which the Committee had already questioned him at length, demonstrates that body had little confidence in his veracity.
If the Committee believed him there was no need to recall the witness Cross, as it did, for testimony on this one subject. If they disbelieved him, no legislative purpose was to be furthered by hearing him reiterate his prior false statement. Should the witness recant, no legislative purpose would be served, although there would be a firmer basis for a perjury indictment than was afforded by the prior denial.
As stated earlier, it is elementary that committees of the Congress may not usurp the functions of a committing magistrate or prosecuting attorney in the guise of legislative investigation.
The validity of this perjury case must be tested by the purpose of the Committee in propounding the specific questions upon which the indictment is based, at the time they were asked.
Giving due weight to the presumption of a valid legislative purpose in asking questions relevant to a permissible area of investigation, this court finds, as a matter of law, from a reading and realistic construction of the questioning of the witness Cross on July 16, 1957, in the setting of the record as a whole, and particularly in the light of the information which the Committee had on that date, the interpretation of Cross's former testimony on this subject by the Chairman and Counsel of the Committee, as well as the defendant, and the form of the specific questions put to the witness Cross on July 16th, that the recall of Cross was for the purpose of emphasizing the untruthfulness of his prior denial and to render him more liable to criminal prosecution. The Government, therefore, has failed to establish two essential elements of the perjury charged in this indictment: that the alleged false statements were before a competent tribunal, and that they were material.
Inasmuch as the Government has the burden of proving beyond a reasonable doubt each and every one of the elements of the criminal offense charged, it would have failed to sustain its burden even if it be held that it is equally likely that the Committee's purpose in recalling Cross was to elicit from him facts which might aid in legislation.
The ruling in this case is not to be interpreted as holding that a witness may never be recalled before a committee for additional testimony on a point already testified to, or that he may not be questioned about a prior denial, or that a committee may never address questions to a witness which are not clearly in aid of legislation. This court merely holds that a perjury indictment may not be found on false testimony in response to questions which are not asked for the purpose of eliciting facts material to the committee's investigation, that is, facts sought in aid of the legislative purpose.
The situation in this case is analogous to that in Bowers v. United States, 92 U.S.App.D.C. 79, 202 F.2d 447, 448, where a contempt conviction was reversed on the ground that the questions asked were not pertinent to the legislative purpose. There the Court stated:
'* * * It may often be proper, justifiable and ultimately helpful in the accomplishment of its investigative purposes for a Congressional committee to address to witnesses questions which it cannot demonstrate to be pertinent. But in branding a refusal to answer as a misdemeanor, Congress was careful to provide that the question must be 'pertinent to the question under inquiry.' It follows that, 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. Presumption or possibility of pertinency will not suffice.' 92 U.S.App.D.C. at page 80, 202 F.2d at page 448.
The rationale of the Bowers decision has even stronger application to prosecutions for the felony of perjury. If there is probative evidence to the contrary, mere presumption or possibility of materiality will not suffice in a criminal prosecution where materiality is an essential element of the offense charged.
For the foregoing reasons, the court will grant the defendant's motion for a judgment of acquittal.