Bart v. United States/Dissent Harlan

by by John Marshall Harlan

United States Supreme Court

349 U.S. 219

Bart  v.  United States

 Argued: April 5, 1955. --- Decided: May 23, 1955

Mr. Justice HARLAN, dissenting.

I would affirm the judgment of conviction in this case, on the reasoning stated in part II of my dissenting opinion in the Emspak case, 75 S.Ct. 704, at page 709. To what is said there I should add what follows.

Even under the Court's standard of 'apprisal', the record in this case is convincing that Bart must have understood that the Subcommittee was insisting on his answers to the questions involved in the indictment. I need only refer to the fact that four of the counts of the indictment charge Bart with refusing to answer what was in substance the same question, namely, what Bart's name had been before he changed it. As to these questions the record shows the following:

'Mr. Case (Committee Member). What was your name at the time you came to the United States?

'Mr. Bart. I have already answered this question.

'Mr. Walter (Committee Chairman). What was it?

'Mr. Unger (Bart's Counsel). Mr. Chairman, I think we are spending a good deal of time, with all due respect to the Chair, on a point that has absolutely no bearing on any issue here.

'Mr. Walter. That is only your opinion.

'Mr. Unger. I said that was my opinion.

'Mr. Case. Mr. Chairman, I don't know what the question will lead up to, but it certainly has been customary, when we have been interrogating witnesses who have come to the United States from other countries, to know when they came to the United States, and to know under what name they came, and to know the name shown on the passport. There is nothing improper or out of the way in asking such a question. I think we should have an answer to the question of the name he had when he came to the United States.

'Mr. Unger. Are you suggesting the inquiry has to do with what this man did when he was 10 years old? You are talking about a 10-year-old boy.

'Mr. Walter. Just a moment. I think Mr. Tavenner should be able to proceed, and after his questions, Mr. Case, you may ask such questions as you may desire. May I suggest, Mr. Tavenner, that you refresh the witness' recollection by telling him what his name was before he assumed his present name? Proceed.

'Mr. Tavenner (Committee Counsel). You are a naturalized American citizen?

'Mr. Bart. Yes.

'Mr. Tavenner. How did you become naturalized?

'Mr. Bart. Through process of my father.

'Mr. Tavenner. What was your father's name?

'Mr. Bart. I have already dealt with this question.

'Mr. Tavenner. When was your father naturalized?

'Mr. Bart. I do not remember.

'Mr. Unger. Just a minute.

'(Witness confers with his counsel.)

'Mr. Bart. About 30 years ago.

'Mr. Tavenner. Do you refuse to tell the committee your father's name?

'Mr. Unger. Mr. Tavenner, he doesn't refuse to tell the committee. He is trying to tell the committee that this line of inquiry is a highly improper one.

'Mr. Walter. That is not within his province. The committee determines what is proper and what is not proper, and it is not up to you to determine that.

'Mr. Unger. That is true.

'Mr. Case. Mr. Chairman, it seems to me the counsel should advise his client and not the committee.

'Mr. Unger. I am not trying to advise the committee. I tried to advise the committee. I tried to respectfully point out why it is an improper question. He is not ashamed of his father's name or his mother's name. What difference can it possibly make what his name was when he came here?

'Mr. Walter. We are not going to have you arguing with the committee or giving us your legal opinion, which may or may not be worth anything.

'Mr. Unger. I have no further comment on the question.

'Mr. Walter. All right.

'Mr. Bart, you claim citizenship by virtue of your father's citizenship; is that right?

'Mr. Bart. That is right.

'Mr. Walter. Under what name did your father become a citizen of the United States?

'Mr. Bart. Under his own name.

'Mr. Walter. What was that name?

'Mr. Bart. I have already stated my reply to this question as far as I am concerned.

'Mr. Walter. How can you claim citizenship by virtue of your father's citizenship if you don't know what name you father used when he became a citizen?

'Mr. Unger. Mr. Chairman- 'Mr. Walter. Let the witness answer the question. You may advise your client.

'Mr. Bart. I have answered I am a citizen by virtue of that fact, and that this is my legal name by which I vote and am registered and am known.

'Mr. Walter. When did you legally change your name?

'Mr. Bart. Many years ago.

'Mr. Walter. Where?

'Mr. Bart. In the city of New York.

'Mr. Walter. Did you have your name changed in court?

'Mr. Bart. Yes; about 15 years ago.

'Mr. Unger. His answer is about 15 years ago.

'Mr. Walter. I understand. What name did you change your name from?

'Mr. Bart. I have already stated my reply to this question.

'Mr. Harrison (Committee Member). I understand you refuse to answer the chairman's question?

'Mr. Bart. My answer is that I have answered what my name is here, which is the only question pertaining to the inquiry, it seems to me.

'Mr. Walter. Of course all of this is a matter of public record?

'Mr. Bart. Correct.

'Mr. Walter. And then I suppose you know that under the law a question innocent on its face can't be arbitrarily ignored. You can't refuse to answer such a question without running the risk of the consequences.

'Mr. Unger. I think, again, Mr. Chairman, Mr. Bart has indicated very plainly he has not been contumacious in any regard. He states his name has been Philip Bart for a large number of years.

'Mr. Walter. Don't argue with the committee. You advise your client as you see fit.

'Mr. Case. Mr. Chairman, it seems to me the witness should be advised of the possibilities of contempt when he fails to answer a question as simple and as proper as your question as to what his name was before it was changed.

'Mr. Walter. No. He has counsel. Counsel knows that is the law. Proceed, Mr. Tavenner.'

The very fact that the same answer was sought in four different ways must have impressed upon a man of Bart's intelligence that the Committee considered his objections unfounded, and wished him to answer.

For the reasons stated in my Emspak dissent, I do not deal with any of the petitioner's other contentions, save to say that on this record I consider them all untenable.

I would affirm the judgment of conviction.

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