Bart v. United States/Opinion of the Court

by Earl Warren

United States Supreme Court

349 U.S. 219

Bart  v.  United States

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

On November 20, 1950, the petitioner was indicted under 2 U.S.C. § 192, 2 U.S.C.A. § 192, for refusing to answer thirty-two questions put to him by a subcommittee of the Committee on Un-American Activities of the House of Representatives. During the trial in the District Court for the District of Columbia, the Government abandoned twenty-four of these counts. The District Judge, sitting without a jury, found Bart guilty of the remaining eight charges. ^[1] On appeal, the Court of Appeals for the District of Columbia Circuit reversed the judgment upon three of the counts and, one judge dissenting, affirmed as to the others. ^[2] From that decision, we granted certiorari ^[3] and set the case down for argument along with the two companion cases. Quinn v. United States, 349 U.S. 155, 75 S.Ct. 668, and Emspak v. United States, 349 U.S. 190, 75 S.Ct. 687.

In response to a subpoena, petitioner appeared before the subcommittee on June 21, 1950. He was then general manager both of Freedom of the Press Co., Inc., which publishes the Daily Worker, and of the Daily Worker itself. During the course of the interrogation, members of the committee and the committee counsel posed various questions dealing with Bart's background, his activities, and alleged associates. Among these were the five questions which, because of petitioner's refusal to answer, led to the convictions now under scrutiny. The particular inquiries involve petitioner's name when he came to this country as a child, his name before it was changed years ago to Philip Bart pursuant to a New York court order, ^[4] his father's name, and the identity of officials of the Ohio section of the Communist Party in 1936. ^[5] To the questions concerning name or family background, he raised objections of pertinency; to the other, he unequivocally pleaded the privilege against self-incrimination.

In finding petitioner guilty, the trial court rejected these defenses as without merit. Before the Court of Appeals, petitioner abandoned his defense as to lack of pertinency. The majority thought that this abandonment in effect erased petitioner's objections from the committee record and that they were thus faced with 'naked refusals to answer' ^[6] which did not require affirmative rulings from the committee. We cannot agree. The objections were in fact made before the committee and the witness was entitled to a clear-cut ruling at that time, even though the claims were later abandoned or found to be invalid. Quinn v. United States, supra. Without such a ruling, evidence of the requisite criminal intent to violate § 192 is lacking. An abandonment made two and one-half years after the objections were raised cannot serve retroactively to eliminate the need for a ruling. If the requirement of criminal intent is not satisfied at the time of the hearing, it cannot be satisfied nunc pro tunc by a later abandonment of petitioner's objection. ^[7] Therefore, the issue before us is, upon the record as it stood at the completion of the hearing, whether petitioner was apprised of the committee's disposition of his objections.

At no time did the committee directly overrule petitioner's claims of self-incrimination or lack of pertinency. Nor was petitioner indirectly informed of the committee's position through a specific direction to answer. At one juncture, Congressman Case made the suggestion to the chairman that the witness 'be advised of the possibilities of contempt' ^[8] for failure to respond, but the suggestion was rejected. The chairman stated:

'No. He has counsel. Counsel knows that is the law. Proceed, Mr. Tavenner.' ^[9]

A few moments later, when committee counsel inquired as to certain details of petitioner's marriage, the following colloquy took place:

'Mr. Unger (Counsel for petitioner). Mr. Chairman, what concern is it of anybody here-

'Mr. Walter. We permit you to appear with your client for the purpose of advising your client. You apparently are old enough to have had some experience in court.

'Mr. Unger. Yes, indeed.

'Mr. Walter. Of course, you know there are many preliminary questions asked witnesses, leading up to some point. As they are propounded you will readily learn what the purpose is. Just advise your client and don't argue with the committee, because we don't rule on objections.' ^[10]

The questioning proceeded on this basis.

Because of the consistent failure to advise the witness of the committee's position as to his objections, petitioner was left to speculate about the risk of possible prosecution for contempt; he was not given a clear choice between standing on his objection and compliance with a committee ruling. ^[11] Because of this defect in laying the necessary foundation for a prosecution under § 192, petitioner's conviction cannot stand under the criteria set forth more fully in Quinn v. United States, supra.

Our disposition of the case makes it unnecessary to consider petitioner's other contentions. The judgment below is reversed and the case remanded to the District Court with directions to enter a judgment of acquittal.

Reversed.

Mr. Justice REED, with whom Mr. Justice MINTON joins, dissenting.

Notes

1. United States v. Bart, unreported, Criminal No. 1746-50 (D.D.C.). The opinions of the District Court, denying petitioner's motions to dismiss the indictment, appear sub nom. United States v. Emspak, D.C., 95 F.Supp. 1010, Id., D.C., 95 F.Supp. 1012.
2. 91 U.S.App.D.C. 370, 203 F.2d 45.
3. 347 U.S. 1011, 74 S.Ct. 872, 98 L.Ed. 1134.
4. Hearings before House Committee on Un-American Activities Regarding Communist Infiltration in Labor Unions, 81st Cong., 2d Sess. Part III, 2636.
5. As phrased in the indictment, these questions were as follows:
6. 91 U.S.App.D.C., at page 372, 203 F.2d at page 47.
7. Cf. United States v. Rumely, 345 U.S. 41, 48, 73 S.Ct. 543, 547, 97 L.Ed. 770: 'In any event, Rumely's duty to answer must be judged as of the time of his refusal.'
8. Hearings, supra, note 4, at p. 2636.
9. Ibid.
10. Id., at 2637 (Italics added.)
11. In one instance, committee counsel observed that in his opinion the question asked was not incriminating, but this was disputed by counsel for petitioner and not ruled upon by the chair. When petitioner repeated the objection, stating that he felt the question to be of an incriminating nature and that he therefore refused to answer, the question was immediately abandoned. See id., at 2638-2639.