McPhaul v. United States

PETITIONER:McPhaul
RESPONDENT:United States
LOCATION:Alabama General Assembly

DOCKET NO.: 33
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 364 US 372 (1960)
ARGUED: Oct 13, 1960
DECIDED: Nov 14, 1960

Facts of the case

Question

  • Oral Argument – October 13, 1960 (Part 2)
  • Audio Transcription for Oral Argument – October 13, 1960 (Part 2) in McPhaul v. United States

    Audio Transcription for Oral Argument – October 13, 1960 (Part 1) in McPhaul v. United States

    Earl Warren:

    Number 33, Arthur M. McPhaul, Petitioner versus United States.

    Mr. Goodman you may proceed.

    Ernest Goodman:

    Mr. Chief Justice and members of the Court, this is a certiorari from the Sixth Circuit Court of Appeals which affirmed a conviction of the petitioner in this case for contempt of the House Committee on Un-American Activities.

    The petitioner was subpoenaed by a subcommittee of the House Committee in February 1952 in Detroit to appear on February 27th of that year.

    He was subpoenaed in his own name, Arthur McPhaul, and the subpoena called for him to bring certain records of the Civil Rights Congress.

    He appeared before the committee with an attorney and in response to a number of questions directed to him by a counsel for the committee.

    He claimed the privilege under the Fifth Amendment upon being pressed by the attorney for the committee as to whether he would produce the records sought by the subpoena.

    His final answer was “I will not”.

    Potter Stewart:

    Could you tell us that he did have the counsel with him.

    Ernest Goodman:

    Yes, he did.

    Following that, a citation was issued by Congress and an indictment was issued in July of 1954 on which the petitioner was arraigned.

    Felix Frankfurter:

    What was the date of the original hearing?

    Ernest Goodman:

    February 1952, the indictment was issued two and a half years later.

    Felix Frankfurter:

    It was the citation.

    Ernest Goodman:

    Citation was at some —

    Felix Frankfurter:

    I’m interested in why (Inaudible).

    Ernest Goodman:

    Well, it took two and a half years for the indictment and then two and a half years for the trial.

    I only asked for that is that I have nothing to do with that though I was just waiting for the Government to act and I assumed they didn’t act because they were apprehensive of the nature of the case they had.

    It might only —

    Felix Frankfurter:

    You mean it’s not through the indictment.

    The case has been tried for two and a half years.

    Ernest Goodman:

    That’s right.

    Felix Frankfurter:

    Any motions by you for delay?

    Ernest Goodman:

    I have filed a motion —

    Felix Frankfurter:

    Any bill of particulars?

    Anything that’s (Voice Overlap) —

    Ernest Goodman:

    I filed a — I filed a motion to dismiss which was argued expeditiously and determined against me but it didn’t hold up the matter very long.

    I just have no —

    Felix Frankfurter:

    Does that brought you down — that brings you down to assist the court (Inaudible)?

    Ernest Goodman:

    That’s right, December 1956 when the trial took place before Judge Freedman and the jury.

    Felix Frankfurter:

    How long was it tried?

    Ernest Goodman:

    Two days.

    Felix Frankfurter:

    Two days.

    Ernest Goodman:

    There was one witness presented by the Government and there were no other witnesses.

    Felix Frankfurter:

    Thus, four years since they entered the trial.

    Ernest Goodman:

    Four years, almost four years since they entered the trial.

    I can’t account for that on anything done on my part.

    It’s just that the Government, I think, does not press the matter for reasons of its own.

    I am sure that every time I was called upon to argue this case, but not —

    Felix Frankfurter:

    If the appeal is not — meaning the appeal is not required by the (Inaudible).

    Ernest Goodman:

    I would say in this case, the Government did not — did not seek a speedy determination of this case.

    I have nothing to do with any defense tactic at all.

    I was in the case (Inaudible).

    The trial itself consisted of the following.

    The Government introduced in evidence through a single witness, the following facts.

    First, that the committee has been lawfully constituted.

    Second that the subpoena have been issued by this subcommittee also lawfully constitute upon Mr. McPhaul that he had appeared before the subcommittee that he had used the Fifth Amendment with respect to a number of questions and that finally he had answered in order to produce the record, “I will not”.

    And that the Congress had duly and properly cited him for contempt.

    This was all the evidence that was introduced at the trial before the jury.

    There was other evidence introduced on a separate record dealing only with the issue of pertinency, since I think it would be confusing to bring in those facts at this point of my argument, I would prefer to present the facts introduced on its separate record dealing with pertinency when I make the argument concerning pertinency.

    Felix Frankfurter:

    I don’t want to avoid or introduce the conclusion which you avoid.

    Was that a separate record meaning, what do you mean by that?

    Ernest Goodman:

    Meaning the jury was excused.

    The Government requested that a separate record on the issue of pertinency be made in view of the decision of this Court —

    Felix Frankfurter:

    And that’s not in this —

    Ernest Goodman:

    Yes, that is —

    Felix Frankfurter:

    But before us?

    I mean it’s —

    Ernest Goodman:

    Yes.

    Felix Frankfurter:

    — pertinent to our —

    Ernest Goodman:

    Yes, that — that record dealing with the issue of pertinency is a part of the record that’s before you from pages 13 to 29.

    That is the — when I say separate record, what I mean is that it was taken outside of the presence of the jury.

    Earl Warren:

    Did I understand you to say there was but one witness in this case?

    Ernest Goodman:

    That’s right.

    Earl Warren:

    A witness who would be difficult for the Government to produce?

    Ernest Goodman:

    Senator Potter who at that time was a Congressman, member of the Subcommittee.

    Through him, all of the various records showing the constitution of the committee and the legality of the action appointing the subcommittee and then citing the petitioner was introduced together with a certain portion of the transcript of testimony taken before the Subcommittee.

    It was all introduced through the one witness without any objection.

    That testimony took a very short time.

    If you will read the record, you will note that most of it, the argument, consists of legal argument and matters relating to the separate record — record on —

    Felix Frankfurter:

    Is there any other — was there any other witness?

    Ernest Goodman:

    No other witness.

    Felix Frankfurter:

    The petitioner didn’t — nobody on his behalf?

    You were right and in other words, on the Government’s case.

    Ernest Goodman:

    That’s right.

    As soon as the Government presented this testimony, the defendant rested, introduced no evidence and a motion for directed verdict of “not guilty” was made orally by myself, argued and we spent the rest of the day in discussing it.

    The judge issued an oral opinion which appears in the record on — beginning with page 54 of the transcript.

    I want to emphasize advising the Court as to what evidence was introduced by the Government that there was no evidence of any kind of the existence of the record sought by the subpoena, no evidence of any relationship between the petitioner here and the Civil Rights Congress that this record was sought.

    There is nothing at all in this record taking before the jury —

    Felix Frankfurter:

    (Voice Overlap) justification of any office in there has held?

    Ernest Goodman:

    No.

    The Government sought to present evidence in that area by offering Exhibit 9 and because it was unable to do so to any witness who could identify the petitioner as being the person who allegedly was an officer of the organization.

    The exhibit was objected by the trial court, so that there is no evidence of any kind on those two facts.

    Earl Warren:

    No evidence that the petitioner had any record in this division?

    Ernest Goodman:

    No.

    No record — no evidence that were ever any such record in any such organization ever in existence nor any evidence that the petitioner has anything to do with any such records if they ever were in existence.

    Felix Frankfurter:

    Was the transcript — the full transcript of the proceedings before the committed or subcommittee is there as well, introduced the evidence?

    Ernest Goodman:

    No, the Government only introduced portions of that matter.

    Felix Frankfurter:

    And from that, nothing appeared as to take the existence of documents or books and record and be the relation of the petitioner to those —

    Ernest Goodman:

    That’s correct.

    Ernest Goodman:

    There’s nothing in that transcript which is part of the record before the jury that contains any such information.

    William J. Brennan, Jr.:

    Well, that is acceptable to the answer that you gave that may justify inference —

    Ernest Goodman:

    That’s right.

    William J. Brennan, Jr.:

    Is that it?

    Ernest Goodman:

    Yes —

    William J. Brennan, Jr.:

    He said “I will not”.

    Ernest Goodman:

    If that were to justify the inference, he has possession of the documents, of course that will be it as I will come to that in the argument.

    On the motion for directed verdict, the trial court held, agreed with the position that I will state here now, that there were no such evidence, but he held that it was not necessary for the Government to introduce any such evidence, nor in fact, could the issue even be litigated at the trial at all, by reason of the fact that the petitioner, when he appeared before the committee, did not make an explanation before the committee as to the records which he was directed to bring.

    It was the trial court’s opinion that under circumstances where a person is subpoenaed to bring in records of an organization.

    He must make an explanation if he does not bring the records as to why he does not bring them or as to whether he has them or not.

    Some explanation is required in the absence of that, it foreclosed from raising the issue at the trial and the Government may not — must not have to introduce any other, the Court said they did not hear.

    The Court relied on the Bryan and Fleischman cases to support his position.

    And before I discuss those two cases, which I think is crucial to this decision here.

    I want to indicate to the Court that I filed a request to charge, which appeared in the transcript on page 74 after he overruled my motion for directed verdict that the jury be constructed, that they have to find that there were records in existence and that the defendant of the case had the possession of it all — of them.

    And the — the Court did not give the charge.

    He rejected it and instead he gave a charge which on page 67 of the transcript told the jury that they were not to concern themselves with whether the defendant have the record or whether there were any records in existence or whether he, the defendant, had any relationship to the Civil Rights Congress, because not having and made an explanation before the committee that he could not present the matter in the Court.

    And the jury was in fact, advise that they could determine, but without any relationship to existence or possession of record whether the defendant was guilty of willfully refusing to produce the records before the committee and in fact, I think it was a charge almost or a directed verdict because no other issues in the case were in dispute here and everything else was conceded.

    Now, that comes to the question of the meaning of the Bryan and Fleischman decision.

    In Bryan and Fleischman, this Court held that where a witness appeared before a congressional committee for the purpose of using records called for by subpoenaing and did not produce the records.

    But later, when brought to trial for contempt, the witness sought to raise the issue of lack of a quorum before the committee at the time the witness appeared there that the witness would not be permitted to raise that issue at the contempt of trial, because the witness had not advised the committee at the time of her appearance of her claim of lack of a quorum.

    Now, it is our position here that if the Bryan and Fleischman — that the Bryan and Fleishcman rule applied — as applied by this Court, in the situation where the claim may dealt with a procedural matter.

    The question of a quorum or the lack of a quorum was a procedural matter and that the defendant in that case or in those cases not having raise the procedural issue which the committee had a right or was in a position to resolve or correct at the time of the appearance, could not be later raised as a defense of a trial.

    But we think that it is extending the rule far beyond the intent of the Court in announcing it in the first place and would if applied to a situation like this, take away for the defendants in a criminal action.

    The presumption of innocence to apply it to several — to eliminate, to the essential elements in the proof of guilt in this case, because to prove the defendant guilty of willfully refusing or failing to produce records, two of the elements in that case, which have been held in many decisions of this Court to be essential elements of the crime.

    First, that there are such records in existence and second, that the defendant was in a position to produce and did not do so.

    And yet, by using the rule announced in Bryan and Fleischman with respect to a procedural point, standing to two of the essential elements in the crime, I think the Court has — the Court felt or the law must concede to hold purpose of contempt to Bryan and Fleischman and would be drafted into the criminal law to a rather noble and new and far-reaching concept by which a person could wave his rights to a trial by jury with the presumption of innocence and the burden upon the Government to prove the essential grounds of a crime.

    Now, the —

    William J. Brennan, Jr.:

    Would the Government’s theory of the crime that this is a matter of affirmative defense —

    Ernest Goodman:

    No.

    William J. Brennan, Jr.:

    — at the trial?

    William J. Brennan, Jr.:

    In other words, was there any indication that the trial court would’ve prohibited you from using evidence at the trial — criminal trial that the defendant did not have (Inaudible) —

    Ernest Goodman:

    Yes.

    William J. Brennan, Jr.:

    — or that these records were not —

    Ernest Goodman:

    I think it’s not by anything that was said, because no offer to introduce in the evidence is made.

    But if the Court will read from the trial court’s decision in denying the motion for directed verdict and compare — it appears on page 61 of the transcript of record.

    I think it is clear that the court’s rationale was same — is the same as this Court in Bryan and Fleischman.

    That is that when the witness appears before a committee, it is necessary at that time to make an objection or to make an explanation so as to give the committee at that time an opportunity of correcting the defect or irregularity, and the Court so said.

    And therefore, the Court said, in this case, McPhaul when he appeared before the committee, should have made an explanation concerning the records with their existence or whether he have them or whether he was related to the Civil Rights Congress, because if he had done so, the trial court said, then the committee could have done something else to find those records.

    William J. Brennan, Jr.:

    But then referring to — perhaps to page 52 and that’s not to have made such an explanation before the Subcommittee at the time he appears, does not entitle him now to review these matters by way of defense in this case?

    Ernest Goodman:

    That’s right.

    I think that —

    William J. Brennan, Jr.:

    You mean that that would have forced closure or even offer on your point (Voice Overlap) —

    Ernest Goodman:

    Because after all the trial took place two and a half years after it appeared before the committee and the Court’s reasoning and logic was correct.

    It wouldn’t help the committee very much for him to prove at the trial two and a half years later, that he didn’t have the record or where the records could be found, because the committee was thinking to find those records two and half years earlier.

    So I think the whole rationale of the Court’s decision based upon Bryan and Fleischman who have said exactly the same thing well, that you couldn’t litigate the issue at all of the trial.

    I think that’s the —

    Potter Stewart:

    These words of the court were — came after — draw a motion and after, it was clear that you’re not going to put on a defense at the trial?

    Ernest Goodman:

    That’s right.

    It was made after — after we had rest with our case and without introducing him yet.

    But I think that it is also clear with respect to this matter that if the Court was of the view that this was a matter of substantive proof and that the issue could be litigated at the trial, the Court would’ve allowed the matter to go to the jury for determination as a jury question.

    And I think logically from his point of view, he did not permit it to go to the jury even though he requested that would be done after he denied our motion to dismiss.

    It was logical from his point of view because his position was he couldn’t even be litigated to file.

    Therefore, the jury couldn’t determine the issue whether there were more or less facts.

    It wouldn’t make any difference through the entire issue for consideration from the jury.

    Now, the Government in its brief here on appeal, does not accept this rationale of the trial court nor of the Court of Appeals to form down the same ground on defining Bryan and Fleischman.

    As I understand the Government’s argument here, it is that while it is true, the Government says that a witness owes a duty for the committee when subpoenaed before to present some kind of an explanation with respect to the records where there is a reasonable basis for issuing the subpoena and for believing that the person to whom the subpoena is issued, could bring the record.

    That at that point, assuming there is in the record a reasonable basis for the issuance of the subpoena to this particular person, the Government argues then the burden shifts at the trial to the defendant at the trial.

    In other words, I think what in fact the Government has done here is — I think the position that the issue could be litigated at the trial.

    The defendant could have introduced the evidence in the trial upon this issue would be so desire.

    By that —

    Earl Warren:

    Is that the Government’s argument in the Court below too —

    Ernest Goodman:

    No, it was not.

    Earl Warren:

    — in the Court of Appeals?

    Ernest Goodman:

    No, it was not.

    Earl Warren:

    It wasn’t.

    Ernest Goodman:

    This is the first place that argument as far as I know had been dissented.

    But I presume that the reason that the Government now has somewhat changed his position is because if it does not do so, it would have to set the position to the trial court, which that two essential elements of the crime namely in possession and existence of the record can be waived if that is the legal basis upon which the trial court made its decision.

    And I don’t think that the Government was prepared to argue that point in a criminal case, it will certainly be a noble position and it does not argue that position here.

    Felix Frankfurter:

    Can I ask you this Mr. Goodman?

    Suppose the committee or the Congress issued me — a subpoena to me, directing me to produce (Inaudible) the XYZ Corporation (Inaudible).

    Ernest Goodman:

    I think there could.

    I think there would be a conviction if the Government could approve —

    Felix Frankfurter:

    No, the Government doesn’t prove anything except that I stand (Inaudible) the Congress has the statute to say that anybody subpoenaed or guilty for the committee of Congress, authorized to make an investigation in putting up — putting from one side all the questions (Inaudible).

    There’s no reason that it’s not done (Inaudible) do you think that could be violated for the Constitution?

    Ernest Goodman:

    If you’re convicted without anything further?

    Felix Frankfurter:

    Just that.

    But I say no, I won’t introduce these records.

    Ernest Goodman:

    No I will not produce the record says.

    I think that if that’s all that were an evidence.

    There was no evidence to show that you were in a position to do similar that you had any official provision with the corporation.

    The record was to be subpoenaed (Voice Overlap) —

    Felix Frankfurter:

    The Government couldn’t require that the man has been subpoenaed, I could say, and I couldn’t require that demand in subpoena should say I never heard of that corporation, you’ve got the wrong man.

    Ernest Goodman:

    No, I don’t think the person who’s subpoenaed before a committee needs to answer any questions that might intend to incriminate him.

    Charles E. Whittaker:

    But suppose he —

    Ernest Goodman:

    Pardon?

    Charles E. Whittaker:

    But suppose he don’t answer and in his answer he said when — in answer to the question, “Will you produce these records?”

    Answer: No, I will not.

    He has therefore not kept still.

    He has thought, doesn’t he?

    Ernest Goodman:

    Right.

    Charles E. Whittaker:

    And has he made an admission that he has the records?

    Ernest Goodman:

    No.

    I have several answers to that question.

    I — I would like to develop them now.

    I was going to come to that point.

    In answer to your question I will do that right now.

    In this case, the Court says exactly what he did.

    He was subpoenaed and the name, Arthur McPhaul, present the record in the Civil Rights Congress.

    He came there and only said, “Will you produce the records?

    No, I will not.”

    Now, there are several suppositions that one may make in the absence of any testimony.

    One is that he did have a record, but he held them not in the representative capacity but in an individual capacity.

    Now if he did hold the records belonging to an organization in an individual capacity and not in a representative capacity under the many decisions of this Court, he could refuse to produce those records.

    And he will not be in contempt to the committee for refusing to do so if he asserted his constitutional privilege.

    Of course, he had asserted the constitutional privilege all through this.

    And his final answer then, I will not produce the records if based as I think it could well be said here on this constitutional privilege would be one for which he could not be held in contempt.

    So that — that’s one possibility that he was not holding the records in any official capacity, which eventually will not be guilty of contempt.

    Now, in this case, there is no evidence of any kind that McPhaul get hold any records in any representative capacity, none at all.

    And in the absence of such a connecting link between the individual who said I will not produce the record then has a right to say so if they’re not in a representative capacity.

    And — and the failure to produce them cannot result in the contempt conviction.

    Felix Frankfurter:

    And you think the improvised (Inaudible).

    You think that if the committee of Congress has got a subpoena and asked you to produce certain records which the Constitution so circumscribe my pleading to let alone that it would be a violation of due process enclosed upon me saying, you’ve got the wrong man.

    Do you think — that’s what the Constitution protected me.

    That is — that is exactly too much of me with reference to other (Inaudible) the Congress of United States —

    Ernest Goodman:

    I think that many decisions of this Court.

    Curcio versus U.S. is the last one, has made very clear that a person who does not have to answer any questions concerning records that are subpoenaed and if — if a witness were asked to — if a witness were asked before a committee, “Are you the president of XYZ Corporation?”

    And if he —

    Felix Frankfurter:

    He didn’t have to say yes if it’s going to incriminate him.

    Ernest Goodman:

    Well, he does not have to say yes to that.

    He does not have to answer that question.

    Ernest Goodman:

    Now then the ques —

    Felix Frankfurter:

    That’s not my case.

    I’m not invoking the privilege against self incrimination because of the danger involved in there.

    I invoke it because I don’t have anything to do with it, so that (Inaudible).

    Ernest Goodman:

    Of course, if you refuse to answer the question without any basis or claiming the privilege against self-incrimination, then you maybe — you’re maybe guilty of contempt under the circumstances shown in that particular record for having answered — refused to answer a question which you should have answered.

    But not for failing to produce the records unless it can be shown that the records were in existence.

    He could be excited for contempt for failing to answer that question, yes.

    That is not the case here.

    If McPhaul recited the contempt of refusing to answer a question here, he might have an entirely different situation, but we don’t have that.

    The Government has only proceeded on one aspect of the — of the possible indictment in this case and that is the failure to produce the records, not for failure to answer questions.

    Felix Frankfurter:

    But the case I put wasn’t between (Inaudible) then you’re going to the question.

    Ernest Goodman:

    That’s right.

    Felix Frankfurter:

    I then would have to say I would answer that question because if I did answer, you’d have to say why you’ve got the wrong man.

    Ernest Goodman:

    Yes.

    In that case, if you refuse to answer any relevant question, you would be in contempt to court.

    Felix Frankfurter:

    Your point here is that (Inaudible).

    There must be some showing that — of producibility.

    Ernest Goodman:

    Right.

    Now, the Government forced this man, if he had the records, if they were available or any evidence from which a fair inference of existence and control could be made for jury determination then a defendant of this case or any person would be guilty of contempt.

    What the Government is arguing for is a proposition that they don’t have to produce any evidence of any kind.

    They can rely to Government —

    Felix Frankfurter:

    So they impliedly admitted that he’s got the record but won’t produce it.

    Ernest Goodman:

    They claimed —

    Felix Frankfurter:

    (Inaudible)

    Ernest Goodman:

    They claim that there is a reasonable basis for the issuance of the subpoena to him originally and in view of that, there — the reasonable basis forms a prima facie case.

    Felix Frankfurter:

    What — what does the court decide on what’s the ruling on thisw (Inaudible).

    I beg your pardon — charged to the jury.

    Ernest Goodman:

    The charge to the jury —

    Felix Frankfurter:

    (Inaudible)

    Ernest Goodman:

    The charge to the jury on this was precisely this.

    Ernest Goodman:

    That’s on page 67 in the transcript.

    That if you find from the evidence in this case and beyond reasonable doubt that the defendant appeared before the said subcommittee and then refused or failed to make any explanations with respect to the existence of the records designated in the subpoena or with respect to whether or not such records were under his possession or control are charged you that you may not consider the questions of whether the records and documents designated in the subpoena were actually in existence or under the possession or control of the defendant, because if the defendant had legitimate reasons for failing to produce said record, he should have stated his reasons for noncompliance with the subpoena when he appeared before the Subcommittee.

    So that the committee as a jury in effect was told that they could convict the defendant even though there were no such records and even though if there were, he had no possession or control.

    William O. Douglas:

    Is there any — any indication that they charge the jury that they consider as evidence of his possession (Inaudible).

    Ernest Goodman:

    No, the Court clearly —

    William O. Douglas:

    That’s the only portion.

    Ernest Goodman:

    This is the only portion.

    Felix Frankfurter:

    Did the Government stand on this trial?

    Ernest Goodman:

    The Government —

    Felix Frankfurter:

    Must stand.

    Ernest Goodman:

    Yes, they didn’t take any exceptions.

    I took —

    Felix Frankfurter:

    Here, they defend the legal record —

    Ernest Goodman:

    Here they — here they defend the legal position and the legal correctness of the charge, but I think they modified their position as taken below and in fact to disagree with the trial court because they say that there was a prima facie case created by virtue of sufficient evidence on this separate record dealing with pertinency by which the Subcommittee had a reasonable basis for issuing the subpoena to fall on the assumption or the inference that he probably had the record and once that reasonable basis for the issuance of the subpoena has been established in this set of record, they say that the burden then shifted to the defendant.

    Felix Frankfurter:

    (Inaudible)

    Ernest Goodman:

    Well, I don’t see that at all.

    I don’t think that the Court —

    Felix Frankfurter:

    The words presumption and shifting and burden (Inaudible) but isn’t that what this charge says.

    Ernest Goodman:

    Well, I think the Court there said that the issue could not be raised at this trial at all.

    Felix Frankfurter:

    This charge (Voice Overlap) —

    Ernest Goodman:

    Yes, I’m talking about the charge.

    Felix Frankfurter:

    The court said that that implied — that should have been (Inaudible) if he didn’t have issue specifically.

    Isn’t that — that’s then cast out as a term or presumption which have occurred.

    Is that what this is about that there is enough there from the jury that if he were to say and have reasons for not delivering them and told he didn’t have them.

    Ernest Goodman:

    Well, he told the jury that if he did — if he did not make an explanation and (Inaudible)

    But —

    William J. Brennan, Jr.:

    At the committee.

    Ernest Goodman:

    At the committee.

    Potter Stewart:

    It wasn’t allowed with this petitioner — I thought it isn’t allowed to make any explanation on the trial.

    Ernest Goodman:

    No, it’s obviously —

    Potter Stewart:

    You don’t really know that he did the crime.

    Ernest Goodman:

    Well, if the Court’s language means anything that the jury had to determine whether he made an explanation before the committee, obviously, the only testimony that will determine that question would be the transcript of testimony taken before the committee would show simply this, that when asked, “Will you produce some?”

    He said, “I will not.”

    There was no other evidence.

    Now presumably, I could’ve introduced other evidence to show that something else had been said before the committee by way of an explanation, that I’m sure would’ve been permitted because the transcript was incorrect.

    But I don’t think if this language means what it says that a jury had to determine what was said before the committee, that evidence could be introduced at the trial other than what was said before the committee by way of explanation and so the Court —

    Felix Frankfurter:

    (Inaudible)

    Ernest Goodman:

    I — I don’t think it is, because I asked the Court to charge the jury in my request to charge.

    Felix Frankfurter:

    (Inaudible)

    Ernest Goodman:

    On page 74.

    Before you can find the defendant willfully refused to produce the record, the documents and records is charged in the indictment.

    You must first find beyond the reasonable doubt that such records, documents or records were in existence at the time of the service of the subpoena as one charge relate to that.

    Second, before you can find the defendant willfully refused to produce the documents and record as charged with the indictment, you must first find beyond a reasonable doubt to search documents or records, were in the custody of control of the defendant timely service of the subpoena.

    Third, upon all the evidence, you are unable to conclude beyond a reasonable doubt that documents or records called for by the subpoena were in existence and in the custody are controlled by the defendant at the time of the service of the subpoena, then you cannot find the defendant willfully refused to produce such documents or record and you must return the verdict of not guilty.

    Now, all of these charges were designed to permit the jury to make a finding as to whether actually such records or documents were in existence and actually whether the defendant had possession or control as a fact.

    The Court refused to permit the jury to consider the question of whether the documents were in existence or whether he had control and told the jury all you consider is whether he had made an explanation.

    Felix Frankfurter:

    You know how far it goes but you did not answer what court has charged, meaning, at that time even if you have a good reason for not refusing at that time.

    So if a man may have a good reason for not producing them at that time, it may have been erroneous.

    There may have been a little misapprehension.

    I think (Inaudible) some documents are not in my possession and even told you if they are in my possession.

    Ernest Goodman:

    Well, I think the Court simply instructed the jury on that.

    He has the one — one instruction on that that the meaning of willfulness means knowing consciously.

    Felix Frankfurter:

    I’m not saying you can (Inaudible) that.

    All I’m saying is that the petitioner does not put either affirmatively the denial by the trial judge or the denial of the district judge.

    Ernest Goodman:

    Explicit — explicitly no.

    Implicitly, I would say, yes.

    Now, the Government takes the position here among other things that — that within the meaning of the Fleischman case, for the Government to have offered evidence of actual possession and actual existence of the documents would have referred the Government to prove it negative.

    This is the argument that makes connection with the — the reason why it should not be required to introduce evidence of possession and existence.

    This is what the Government says.

    Hugo L. Black:

    In existence for the fact.

    Ernest Goodman:

    Yes, the Government makes this —

    Hugo L. Black:

    (Inaudible)

    Ernest Goodman:

    This is what the argument is that the Government made.

    Of course, I — I — in my reply brief, state that to prove the existence of record and to prove possession or control if not requiring the Government to prove it negative, but it’s requiring the Government to prove it positive.

    These are the two essential elements of the crime which the Government must prove to get a conviction.

    To say that these elements of the crime are negative as the Government argues the brief, would mean that in every criminal offense, the Government could be — could be excused from proving one of the elements of the crime that would make up the crime by this argument that it’s difficult to make such proof that’s really what (Inaudible)

    But, I don’t think that it comes within the Fleischman rule of the proof of a negative by the Government.

    Now, with respect to the question of pertinency and search and seizure, I — I want to just allude to the fact that there was a separate record made.

    I have requested the Government on the issue of pertinency.

    The Government asserting and we agree that this was an issue of the law for the Court to determine.

    And on that separate record dealing with pertinency, there were some evidence — the following evidence was introduced in addition to what I have already given.

    First, the purpose of the committee hearing that is to determine whether there was communist activity in the Detroit area as a major extent.

    The testimony of the witness of the Civil Rights Congress have been declared as subversive organization by the Attorney General without any support of proof over there, that the purpose of the committee was to determine the scope of communist activity in the area and that was the reason for subpoenaing the records of the Civil Rights Congress in accordance with the statement of the witness who was a member of that Subcommittee at that time.

    Potter Stewart:

    This was the same witness under Senator Potter.

    Ernest Goodman:

    The same witness.

    Also testimony that — of Senator Potter that they had of — of 1950 — 1947 that the committee have certain letterheads which indicated that Mr. McPhaul was the Executive Secretary of the Civil Right Congress.

    Do you mean that (Inaudible)

    Ernest Goodman:

    No, that was offered as evidence to show pertinency.

    It was offered as evidence on the — on the record before the jury, but the Court excluded the letterhead, which was offered, because there were no proofs of it.

    But on the separate record, the Court held that hearsay evidence of this kind was admissible for the purpose of showing the pertinency with respect to the issuance of the subpoena to McPhaul.

    Hugo L. Black:

    (Inaudible)

    Ernest Goodman:

    Well, I think that’s the argument of the Government here, at least in part upon this evidence taken on this record with respect to pertinency.

    Hugo L. Black:

    Do you mean that the Government read impart through the record (Inaudible) in the basis of the facts the committee has heard facts from somebody that led them to believe that there was such record?

    Ernest Goodman:

    Just this one statement that Potter said, the committee had information according to a certain letterhead in 1947, that Mr. McPhaul was the Executive Secretary of the Civil Right Congress.

    Hugo L. Black:

    If you said that was pertinency.

    Ernest Goodman:

    That was on pertinency.

    Hugo L. Black:

    Is the Government insisting that any of that can be used for the purpose of proving there were records?

    Ernest Goodman:

    The Governments position on that as I understand it is that they told — they can use it for the purpose of supporting the reasonable grounds for the issuance of the subpoena.

    Hugo L. Black:

    To do it (Inaudible)

    Ernest Goodman:

    They say, that is the basis the Congress have put in.