Bart v. United States/Dissent Harlan

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.