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March 6, 1964

Frank GRUMMAN. UNITED STATES of America v. Bernard SILBER

The opinion of the court was delivered by: YOUNGDAHL

These defendants have been tried in companion cases by the Court sitting without a jury, by the agreement of all parties. Both defendants have been indicted for contempt of Congress, 2 U.S.C. § 192, in refusing to answer certain questions propounded to them as witnesses during public hearings of a subcommittee of the House Un-American Activities Committee in 1957. The present indictments were returned after convictions based upon previous indictments for the same offense were reversed per curiam by the Supreme Court as to defendant Grumman, 370 U.S. 288, 82 S. Ct. 1560, 8 L. Ed. 2d 501 (1962), and as to defendant Silber, 370 U.S. 717, 82 S. Ct. 1287, 8 L. Ed. 2d 798 (1962). Both reversals rested upon the authority of Russell v. United States, 369 U.S. 749, 82 S. Ct. 1038, 8 L. Ed. 2d 240 (1962), decided only a few weeks previously, which had held that an indictment for contempt of Congress must specify the subject under Congressional subcommittee inquiry at the time the witness was interrogated. In these new indictments, the subject under inquiry is alleged to have been:

'considering whether or not members of the Communist Party or persons subject to its discipline are employed in various media of communications used in the transmission of vital communications, and the advisability, in the national defense and for internal security, of the adoption of remedial legislation authorizing the Defense Department and other Government agencies to adopt and enforce appropriate regulations designed to protect and preserve inviolate secret and classified Government information, and investing in appropriate Government agencies, power to preclude access to vital communication facilities in time of war or other national emergency, persons who probably will engage in, or probably will conspire with others to engage in, acts of espionage or sabotage * * *.'

 Neither defendant disputes that the above was the subject under inquiry at the time he was interrogated, although they do dispute the authority of the subcommittee to inquire into his subject. Both, moreover, advance other grounds for a judgment of acquittal -- grounds which were not considered by the Court of Appeals when it affirmed the convictions (based upon the earlier, defective indictments) of Grumman, 111 U.S.App.D.C. 79, 294 F.2d 708 (1961), and of Silber, 111 U.S.App.D.C. 331, 296 F.2d 588 (1961). *fn1" Because of a case decided by the Supreme Court on June 17, 1963, Yellin v. United States, 374 U.S. 109, 83 S. Ct. 1828, 10 L. Ed. 778 (1963) and for other reasons which the Court finds compelling, this Court has concluded that findings of not guilty must be made in both cases. Each case will be discussed separately.

 The Silber Case.

 In Yellin v. United States, 374 U.S. 109, 83 S. Ct. 1828, 10 L. Ed. 2d 778 (1963), the Supreme Court reversed a contempt of Congress conviction because the House Un-American Activities Committee had failed to comply with its own rules regarding the choice between executive and public sessions. Rule IV of the Committee's own Rules provided, at the time Yellin was questioned (and at the time both defendants Silber and Grumman were questioned):


 '(1) If a majority of the Committee or subcommittee, duly appointed as provided by the rules of the House of Representatives, believes that the interrogation of a witness in a public hearing might endanger national security or unjustly injure his reputation, or the reputation of other individuals, the Committee shall interrogate such witness in an Executive Session for the purpose of determining the necessity or advisability of conducting such interrogation thereafter in a public hearing.

 '(3) All testimony taken in Executive Sessions shall be kept secret and shall not be released or used in public sessions without the approval of a majority of the Committee. 'B -- Public Hearings:

 '(1) All other hearings shall be public.'

 The Supreme Court held in the Yellin case that this rule had been violated in two respects:

 'First, it does not appear from Congressman Walter's (the Committee Chairman) testimony that the Committee considered injury to the witness' reputation when it decided against calling Yellin in executive session. * * * By Congressman Walter's own admission, the Committee holds executive sessions in only two of the three instances specified in Rule IV, i.e., when there may be injury to the reputation of a third party or injury to the national security. Injury to the witness himself is not a factor. * * * 'Secondly, the Committee failed to act upon petitioner's express request for an executive session. A Staff Director, who lacked the authority to do so, acted in the Committee's stead.' 374 U.S. at 118-119, 83 S. Ct. at 1834-1835, 10 L. Ed. 2d 778.

 The Court concluded that Rule IV was designed for the protection of witnesses, 374 U.S. at 115-116, 83 S. Ct. at 1832-1833, 10 L. Ed. 2d 778, that it entitled the witness to the exercise of the Committee's discretion in accord with Rule IV's standards, 374 U.S. at 120, 83 S. Ct. at 1835, 10 L. Ed. 2d 778, and that failure on the part of the Committee to adhere to its own rules requires the reversal of any subsequent conviction for contempt of Congress, even if the witness did not invoke Rule IV at the time he refused to answer the question propounded, 374 U.S. at 123, 83 S. Ct. at 1836-1837, 10 L. Ed. 2d 778. 'The Committee prepared the groundwork for prosecution in Yellin's case meticulously. It is not too exacting to require that the Committee be equally meticulous in obeying its own rules.' 374 U.S. at 124, 83 S. Ct. at 1837, 10 L. Ed. 2d 778.

 Under the clear authority of Yellin, a judgment of acquittal must be entered so far as defendant Silber is concerned. Silber, like Yellin, after receiving a subpoena to appear before the subcommittee of the House Un-American Activities Committee, requested an executive session in a telegram sent (and received) prior to his appearance before the subcommittee. Silber's request, like Yellin's was denied by the Staff Director without consultation either with the Committee or with the subcommittee or with the chairman of either. Silber, like Yellin, was thereafter required to appear for interrogation at a public session.

 The telegram requesting an executive session was sent by Victor Rabinowitz (an attorney who appeared with Silber at the public hearing and who has represented Silber in all subsequent proceedings growing out of Silber's refusal to answer certain questions, including the instant trial) in behalf of four subpoenaed witnesses, including Silber. The existence of this telegram was first revealed on August 2, 1957, at the beginning of the questioning of Louis J. Stallone, one of the four witnesses in whose behalf it was sent. Silber appeared for interrogation later the same morning. The following exchange between Mr. Rabinowitz, Congressman Clyde Doyle (chairman of the subcommittee, now deceased), and Richard Arens (Staff Director) demonstrates that neither the subcommittee nor the subcommittee chairman had known of the existence of the telegram before the request for an executive session has been turned down and the witnesses had appeared for public interrogation:

 'Mr. Rabinowitz: I wonder, Mr. Chairman, whether I might not at this time introduce into the record with the consent of Mr. Arens a telegram I sent to him yesterday which I would like to read, if I may. It is addressed to --

 'Mr. Doyle: On what subject?

 'Mr. Rabinowitz: On the subject of these hearings.

 'Mr. Arens: Is that the telegram, Mr. Rabinowitz, in which you requested that the hearings be taken in executive session?

 'Mr. Rabinowitz: Yes.

 'Mr. Arens: Mr. Chairman, Mr. Rabinowitz has made a request that the hearings be taken in executive session and pursuant to the policy of the committee as announced, and the direction from the chairman, I advised Mr. Rabinowitz that the request would be denied.

 'Mr. Rabinowitz: May I read the telegram just so that as a matter of record it appears before the committee. I don't know whether the subcommittee even knew about the telegram, and I think it ought to pass on the request, rather than counsel.

 'Mr. Doyle: No.

 'Mr. Rabinowitz: It is a short telegram. I could have finished it by this time.

 'Mr. Doyle: No, counsel. You see, our director acts on these formal requests in a matter of established policy by the committee. It is not a matter that has to be presented to the subcommittee.

 'Mr. Rabinowitz: I don't want to argue it.

 'Mr. Doyle: I know. But there is no need in encumbering the record with a telegram that is not ...

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