Russell v. United States (369 U.S. 749)/Dissent Clark

Mr. Justice CLARK, dissenting.

Although I have joined Brother HARLAN in dissenting on the grounds ably expressed in his opinion, the Court today so abruptly breaks with the past that I must visually add my voice in protest. The statute under which these cases were prosecuted, 2 U.S.C. § 192, 2 U.S.C.A. § 192, was originally passed 105 years ago. Case after case has come here during that period. Still the Court is unable to point to one case-not one-in which there is the remotest suggestion that indictments thereunder must include any of the underlying facts necessary to evaluate the propriety of the unanswered questions. Following the universal art and practice, indictments under this statute have commonly phrased the element of pertinency in the statutory language, i.e., the unanswered question was 'pertinent to the question under inquiry.' This Court in Sacher v. United States, 356 U.S. 576, 78 S.Ct. 842, 2 L.Ed.2d 987 (1958), had an opportunity to put a stop to this widespread practice but instead reversed on other, rather unsubstantial grounds without even acknowledging that numerous defendants were being denied 'one of the significant protectioins which the guaranty of a grand jury indictment was intended to confer.' In requiring these indictments to 'identify the subject which was under inquiry at the time of the defendant's alleged default or refusal to answer,' the Court has concocted a new and novel doctrine to upset congressional contempt convictions. A rule has been sown which, as pointed out by Brother HARLAN, has no seeds in general indictment law and which will reap no real benefits in congressional contempt cases. If knowing the subject matter under investigation is actually important to these recalcitrant witnesses, they can utilize the right recognized in Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273 (1957), of demanding enlightenment from the questioning body or the time-honored practice of requesting a bill of particulars from the prosecutor. Let us hope that the reasoning of the Court today does not apply to indictments under other criminal statutes, for if it does an uncountable number of indictments will be invalidated. If, however, the rule is only cast at congressional contempt cases it is manifestly unjust.

By fastening upon indictment forms under § 192 its superficial luminosity requirement the Court creates additional hazards to the successful prosecution of congressional contempt cases, which impair the informing procedures of the Congress by encouraging contumacy before its committees. It was only five years ago in my dissenting opinion in Watkins that I indicated the rule in that case might 'well lead to trial of all contempt cases before the bar * *  * ' of the House of Congress affected. Watkins v. United States, supra, 354 U.S. at p. 225, 77 S.Ct. at p. 1199. In that short period the Court has now upset 10 convictions under § 192. This continued frustration of the Congress in the use of the judicial process to punish those who are contemptuous of its committees indicates to me that the time may have come for Congress to revert to 'its original practice of utilizing the coercive sanction of contempt proceedings at the bar of the House (affected).' Id., at 206, 77 S.Ct., at 1189. Perhaps some simplified method may be found to handle such matters without consuming too much of the time of the full House involved. True, a recalcitrant witness would have to be released at the date of adjournment, but at least contumacious conduct would then receive some punishment. The dignity of the legislative process deserves at least that much sanction.

Mr. Justice HARLAN, whom Mr. Justice CLARK joins, dissenting.

The ground rules for testing the sufficiency of an indictment are twofold: (1) does the indictment adequately inform the defendant of the nature of the charge he will have to meet; (2) if the defendant is convicted, and later prosecuted again, will a court, under what has been charged, be able to determine the extent to which the defense of double jeopardy is available? United States v. Debrow, 346 U.S. 374, 74 S.Ct. 113, 98 L.Ed. 92.

Rule 7(c) of the Federal Rules of Criminal Procedure, effective in 1946, 18 U.S.C.A., was of course not intended to abrogate or weaken either of these yardsticks. Its purpose simply was to do away with the subleties and uncertainties that had characterized criminal pleading at common law. The rule provides in pertinent part:

'The indictment * *  * shall be a plain, concise and definite      written statement of the essential facts constituting the      offense charged. * *  * It need not contain *  *  * any other      matter not necessary to such statement.' The rule was 'designed to eliminate technicalities' and is 'to be construed to secure simplicity in procedure.' Debrow, at 376, 74 S.Ct. at 115.

An essential element of the offense established by 2 U.S.C. § 192, 2 U.S.C.A. § 192, is that the questions which the defendant refused to answer were 'pertinent to the question under inquiry' before the inquiring congressional committee. Each of the indictments in these cases charged this element of the offense in the language of the statute, following the practice consistently employed since 1950 in the District of Columbia, where most of the § 192 cases have been brought. The Court now holds, however, that without a statement of the actual subject under inquiry, this allegation was inadequate to satisfy the 'apprisal' requisite of a valid indictment. At the same time the allegation is found sufficient to satisfy the 'jeopardy' requisite.

The Court's holding is contrary to the uniform course of decisions in the lower federal courts. The Court of Appeals for the District of Columbia Circuit, sitting first as a panel and later en banc, has upheld 'pertinency' allegations which, like the present indictment, did not identify the particular subject being investigated. Barenblatt v. United States, 100 U.S.App.D.C. 13, 240 F.2d 875 (panel); Sacher v. United States, 102 U.S.App.D.C. 264, 252 F.2d 828 (en banc). The Court of Appeals for the Second Circuit is of the same view. United States v. Josephson, 165 F.2d 82; United States v. Lamont, 236 F.2d 312. And so, quite evidently, is the Court of Appeals for the Fifth Circuit. Braden v. United States, 272 F.2d 653. No Court of Appeals has held otherwise. And nothing in this Court's more recent cases could possibly be taken as foreshadowing the decision made today.

The reasons given by the Court for its sudden holding, which unless confined to contempt of Congress cases bids fair to throw the federal courts back to an era of criminal pleading from which it was thought they had finally emerged, are novel and unconvincing.

It is first argued that an allegation of 'pertinency' in the statutory terms will not do, because that element is at 'the very core of criminality' under § 192. This is said to follow from what 'our cases have uniformly held.' Ante, 369 U.S., p. 764, 82 S.Ct. p. 1047. I do not so understand the cases on which the Court relies. It will suffice to examine the three cases from which quotations have been culled. Ante, 369 U.S., pp. 765-766, 82 S.Ct., pp. 1047-1048.

United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588, involved an indictment under the Enforcement Act of 1870 (16 Stat. 140) making it a felony to conspire to prevent any person from exercising and enjoying 'any right or privilege granted or secured to him by the Constitution or laws of the United States.' Most of the counts were dismissed on the ground that they stated no federal offense whatever. The remainder were held inadequate from the standpoint of 'apprisal,' in that they simply alleged a conspiracy to prevent certain citizens from enjoying rights 'granted and secured to them by the constitution and laws of the United States,' such rights not being otherwise described or identified. Small wonder that these opaque allegations drew from the Court the comment that the indictment "must descend to particulars." Id., at 558. Indeed, the Court observed: 'According to the view we take of these counts, the question is not whether it is enough, in general, to describe a statutory offence in the language of the statute, but whether the offence has here been described at all.' Id., at 557. (Emphasis supplied.)

United States v. Simmons, 96 U.S. 360, 24 L.Ed. 819, was concerned with an indictment involving illegal distilling. Revised Statutes § 3266 made it an offense to distill spirits on premises where vinegar 'is' manufactured. One count of the indictment charged the defendant with causing equipment on premises where vinegar 'was' manufactured to be used for distilling. This count was dismissed for its failure (1) to identify the person who had so used the equipment or to allege that his identity was unknown to the grand jurors; and (2) to allege that the distilling and manufacture of vinegar were coincidental, as required by the statute. What is more significant from the standpoint of the present cases is that in sustaining another count of the indictment charging the defendant with engaging in the business of distilling 'with the intent to defraud the United States of the tax' on the spirits (R.S. § 3281), the Court held that it was not necessary to allege 'the particular means by which the United States was to be defrauded of the tax.' Id., at 364.

United States v. Carll, 105 U.S. 611, 26 L.Ed. 1135, held no more than that an indictment charging forgery was insufficient for failure to allege scienter, which, though not expressly required by the statute, the Court found to be a necessary element of the crime. Hence a charge in the statutory language would not suffice. Section 192 of course contains no such gap in its provisions. What the Court now requires of these indictments under § 192 involves not the supplying of a missing element of the crime, but the addition of the particulars of an element already clearly alleged.

To me it seems quite clear that even under these cases, decided long before Rule 7(c) came into being, the 'pertinency' allegations of the present indictments would have been deemed sufficient. Other early cases indicate the same thing. See, e.g., United States v. Mills, 7 Pet. 138, 142, 8 L.Ed. 636; Evans v. United States, 153 U.S. 584, 587, 14 S.Ct. 934, 936, 38 L.Ed. 830; Markham v. United States, 160 U.S. 319, 325, 16 S.Ct. 288, 291, 40 L.Ed. 441; Bartell v. United States, 227 U.S. 427, 433-434, 33 S.Ct. 383, 384-385, 57 L.Ed. 583. I think there can be no doubt about the matter after Rule 7(c).

In United States v. Debrow, supra, the Court in reversing the dismissal of perjury indictments which had gone on the ground that they had not alleged the name or authority of the persons administering the oath, said (346 U.S., at 376-378, 74 S.Ct., at 114-116):

'The Federal Rules of Criminal Procedure, 18 U.S.C.A., were     designed to eliminate technicalities in criminal pleading and      are to be construed to secure simplicity in procedure.

'The charges of the indictments followed substantially the     wording of the statute, which embodies all the elements of      the crime, and such charges clearly informed the defendants      of that with which they were accused, so as to enable them to prepare their defense      and to plead the judgment in bar of any further prosecutions      for the same offense. It is inconceivable to us how the     defendants could possibly be misled as to the offense with      which they stood charged. The sufficiency of the indictment     is not a question of whether it could have been more definite      and certain. If the defendants wanted more definite     information as to the name of the person who administered the      oath to them, they could have obtained it by requesting a      bill of particulars. Rule 7(f), F.R.Crim.Proc.' (Emphasis     supplied.)

It is likewise 'inconceivable' to me how the indictments in the present cases can be deemed insufficient to advise these petitioners of the nature of the charge they would have to meet. The indictments gave them the name of the committee before which they had appeared; the place and the dates of their appearances; the references to the enabling legislation under which the committee acted; and the questions which the petitioners refused to answer. The subject matter of the investigations had been stated to the petitioners at the time of their appearances before the committees. And the committee transcripts of the hearings were presumably in their possession and, if not, were of course available to them.

Granting all that the Court says about the crucial character of pertinency as an element of this offense, it is surely not more so than the element of premeditation in the crime of first degree murder. If from the standpoint of 'apprisal' it is necessary to particularize 'pertinency' in a § 192 indictment, it should follow, a fortiori, that, contrary to what is prescribed in Forms 1 and 2 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., a first degree murder indictment should particularize 'premeditation.'

The Court says that its holding is needed to prevent the Government from switching on appeal, to the prejudice of the defendants, to a different theory of pertinency from that on which the conviction may have rested. Ante, 369 U.S., pp. 766-768, 82 S.Ct., pp. 1048-1049. There are several good answers to this.

To the extent that this fear relates to the subject under investigation, the Government cannot of course travel outside the confines of the trial record, of which the defendant has full knowledge. If what is meant is that the Government may not modify on appeal its 'trial' view of the 'connective reasoning' (supra, 369 U.S., p. 784, 82 S.Ct., p. 1058, note 6) relied on to establish the germaneness of the questions asked to the subject matter of the inquiry, surely it would be free to do so, this aspect of pertinency being simply a matter of law, Sinclair v. United States, 279 U.S. 263, 299, 49 S.Ct. 268, 273, 274, 73 L.Ed. 692. Moreover the Court does not find these indictments deficient because they failed to allege the 'connective reasoning.'

Beyond these considerations, a defendant has ample means for protecting himself in this regard. By objecting at the committee hearing to the pertinency of any question asked him he may 'freeze' this issue, since the Government's case on this score must then stand or fall on the pertinency explanation given by the committee in response to such an objection. Deutch v. United States, 367 U.S. 456, 472-473, 81 S.Ct. 1587, 1596, 6 L.Ed.2d 963 (dissenting opinion); cf. Watkins v. United States, supra, 354 U.S. at 214-215, 77 S.Ct. at 1193, 1 L.Ed.2d 1273; Barenblatt v. United States, 360 U.S. 109, 123-125, 79 S.Ct. 1081, 1091, 1092, 3 L.Ed.2d 1115. If he has failed to make a pertinency objection at the committee hearing, thereby leaving the issue 'at large' for the trial (Deutch, ibid.), he may still seek a particularization through a bill of particulars. Cf. United States v. Kamin, D.C., 136 F.Supp. 791, 795 n. 4.

It should be noted that no pertinency objection was made by any of these petitioners at the committee hearings. Further, no motions for a bill of particulars were made in No. 12, Price, to which the Court especially addresses itself (ante, 369 U.S., pp. 766-768, 82 S.Ct., pp. 1048-1049), or in No. 8, Russell, No. 10, Whitman, and No. 11, Liveright. In No. 9, Shelton, and No. 128, Gojack, such motions were made. However, no appeal was taken from the denial of the motion in Gojack, and in Shelton the sufficiency of the particulars furnished by the Government was not questioned either by a motion for a further bill or on appeal.

Referring to certain language in the Cruikshank case, supra, the Court suggests that the present holding is supported by a further 'important corollary purpose' which an indictment is intended to serve: to make 'it possible for courts called upon to pass on the validity of convictions under the statute to bring an enlightened judgment to that task.' Ante, 369 U.S., pp. 768, 769, 82 S.Ct., pp. 1049-1050.

But whether or not the Government has established its case on 'pertinency' is something that must be determined on the record made at the trial, not upon the allegations of the indictment. There is no such thing as a motion for summary judgment in a criminal case. While appellate courts might be spared some of the tedium of going through these § 192 records were the allegations of indictments to spell out the 'pertinency' facts, the Court elsewhere in its opinion recognizes that the issue at hand can hardly be judged in terms of whether fuller indictments 'would simplify the courts' task.' Ante, 369 U.S., p. 760, 82 S.Ct., p. 1045.

The broad language in Cruikshank on which the Court relies cannot properly be taken as meaning more than that an indictment must set forth enough to enable a court to determine whether a criminal offense over which the court has jurisdiction has been alleged. Cf. McClintock, Indictment by a Grand Jury, 26 Minn.L.Rev. 153, 159-160 (1942); Orfield, Criminal Procedure from Arrest to Appeal, 222-226, 227, n. 107. Certainly the allegations of these indictments meet such requirements.

The final point made by the Court is perhaps the most novel of all. It is said that a statement of the subject under inquiry is necessary in the indictment in order to fend against the possibility that a defendant may be convicted on a theory of pertinency based upon a subject under investigation different from that which may have been found by the grand jury. An argument similar to this was rejected by this Court many years ago in Rosen v. United States, 161 U.S. 29, 34, 16 S.Ct. 434, 435, 480, 40 L.Ed. 606, where an indictment charging the defendant with mailing obscene matter, only generally described, was upheld over strong dissent (id., at 45-51, 16 S.Ct. at 480-483) asserting that the accused was entitled to know the particular parts of the material which the grand jury had deemed obscene.

This proposition is also certainly unsound on principle. In the last analysis it would mean that a prosecutor could not safely introduce or advocate at a trial evidence or theories, however relevant to the crime charged in the indictment, which he had not presented to the grand jury. Such cases as Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849; United States v. Norris, 281 U.S. 619, 50 S.Ct. 424, 74 L.Ed. 1076, and Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252, lend no support to the Court's thesis. They held only that, consistently with the Fifth Amendment, a trial judge could not amend the indictment itself, either by striking or adding material language, or, amounting to the latter, by permitting a conviction on evidence or theories not fairly embraced in the charges made in the indictment. To allow this would in effect permit a defendant to be put to trial upon an indictment found not by a grand jury but by a judge.

If the Court's reasoning in this part of its opinion is sound, I can see no escape from the conclusion that a defendant convicted on a lesser included offense, not alleged by the grand jury in an indictment for the greater offense, would have a good plea in arrest of judgment. (Fed.Rules Crim.Proc. 34.)

In conclusion, I realize that one in dissent is sometimes prone to overdraw the impact of a decision with which he does not agree. Yet I am unable to rid myself of the view that the reversal of these convictions on such insubstantial grounds will serve to encourage recalcitrance to legitimate congressional inquiry, stemming from the belief that a refusal to answer may somehow be requited in this Court. And it is not apparent how the seeds which this decision plants in other fields of criminal pleading can well be prevented from sprouting. What is done today calls to mind the trenchant observation made by Mr. Justice Holmes many years ago in Paraiso v. United States, 207 U.S. 368, 372, 28 S.Ct. 127, 129, 52 L.Ed. 249:

'The Bill of Rights for the Philippines giving the accused     the right to demand the nature and cause of the accusation      against him does not fasten forever upon those islands the      inability of the seventeenth century common law to understand      or accept a pleading that did not exclude every      misinterpretation capable of occurring to intelligence fired      with a desire to pervert.'

No more so does the Bill of Rights of the United States Constitution 'fasten' on this country these primitive notions of the common law.

On the merits these convictions are of course squarely ruled against the petitioners by principles discussed in our recent decisions in the Barenblatt, Wilkinson, and Braden cases, as was all but acknowledged at the bar.

I would affirm.