MCPHAUL v. UNITED STATES

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Argument of Ernest Goodman

Chief Justice Earl Warren: Number 33, Arthur M. McPhaul, Petitioner versus United States.

Mr. Goodman you may proceed.

Mr. 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".

Justice Potter Stewart: Could you tell us that he did have the counsel with him.

Mr. 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.

Justice Felix Frankfurter: What was the date of the original hearing?

Mr. Ernest Goodman: February 1952, the indictment was issued two and a half years later.

Justice Felix Frankfurter: It was the citation.

Mr. Ernest Goodman: Citation was at some --

Justice Felix Frankfurter: I'm interested in why (Inaudible).

Mr. 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 --

Justice Felix Frankfurter: You mean it's not through the indictment.

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

Mr. Ernest Goodman: That's right.

Justice Felix Frankfurter: Any motions by you for delay?

Mr. Ernest Goodman: I have filed a motion --

Justice Felix Frankfurter: Any bill of particulars?

Anything that's (Voice Overlap) --

Mr. 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 --

Justice Felix Frankfurter: Does that brought you down -- that brings you down to assist the court (Inaudible)?

Mr. Ernest Goodman: That's right, December 1956 when the trial took place before Judge Freedman and the jury.

Justice Felix Frankfurter: How long was it tried?

Mr. Ernest Goodman: Two days.

Justice Felix Frankfurter: Two days.

Mr. Ernest Goodman: There was one witness presented by the Government and there were no other witnesses.

Justice Felix Frankfurter: Thus, four years since they entered the trial.

Mr. 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 --

Justice Felix Frankfurter: If the appeal is not -- meaning the appeal is not required by the (Inaudible).

Mr. 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.

Justice 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?

Mr. 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 --

Justice Felix Frankfurter: And that's not in this --

Mr. Ernest Goodman: Yes, that is --

Justice Felix Frankfurter: But before us?

I mean it's --

Mr. Ernest Goodman: Yes.

Justice Felix Frankfurter: -- pertinent to our --

Mr. 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.

Chief Justice Earl Warren: Did I understand you to say there was but one witness in this case?

Mr. Ernest Goodman: That's right.

Chief Justice Earl Warren: A witness who would be difficult for the Government to produce?

Mr. 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 --

Justice Felix Frankfurter: Is there any other -- was there any other witness?

Mr. Ernest Goodman: No other witness.

Justice Felix Frankfurter: The petitioner didn't -- nobody on his behalf?

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

Mr. 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 --

Justice Felix Frankfurter: (Voice Overlap) justification of any office in there has held?

Mr. 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.

Chief Justice Earl Warren: No evidence that the petitioner had any record in this division?

Mr. 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.

Justice Felix Frankfurter: Was the transcript -- the full transcript of the proceedings before the committed or subcommittee is there as well, introduced the evidence?

Mr. Ernest Goodman: No, the Government only introduced portions of that matter.

Justice 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 --

Mr. Ernest Goodman: That's correct.

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

Justice William J. Brennan: Well, that is acceptable to the answer that you gave that may justify inference --

Mr. Ernest Goodman: That's right.

Justice William J. Brennan: Is that it?

Mr. Ernest Goodman: Yes --

Justice William J. Brennan: He said "I will not”.

Mr. 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 --

Justice William J. Brennan: Would the Government's theory of the crime that this is a matter of affirmative defense --

Mr. Ernest Goodman: No.

Justice William J. Brennan: -- at the trial?

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) --

Mr. Ernest Goodman: Yes.

Justice William J. Brennan: -- or that these records were not --

Mr. 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.

Justice William J. Brennan: 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?

Mr. Ernest Goodman: That's right.

I think that --

Justice William J. Brennan: You mean that that would have forced closure or even offer on your point (Voice Overlap) --

Mr. 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 --

Justice 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?

Mr. 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 --

Chief Justice Earl Warren: Is that the Government's argument in the Court below too --

Mr. Ernest Goodman: No, it was not.

Chief Justice Earl Warren: -- in the Court of Appeals?

Mr. Ernest Goodman: No, it was not.

Chief Justice Earl Warren: It wasn't.

Mr. 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.

Justice 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).

Mr. Ernest Goodman: I think there could.

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

Justice 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?

Mr. Ernest Goodman: If you're convicted without anything further?

Justice Felix Frankfurter: Just that.

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

Mr. 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) --

Justice 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.

Mr. 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.

Justice Charles E. Whittaker: But suppose he --

Mr. Ernest Goodman: Pardon?

Justice 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?

Mr. Ernest Goodman: Right.

Justice Charles E. Whittaker: And has he made an admission that he has the records?

Mr. 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.

Justice 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 --

Mr. 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 --

Justice Felix Frankfurter: He didn't have to say yes if it's going to incriminate him.

Mr. Ernest Goodman: Well, he does not have to say yes to that.

He does not have to answer that question.

Now then the ques --

Justice 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).

Mr. 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.

Justice Felix Frankfurter: But the case I put wasn't between (Inaudible) then you're going to the question.

Mr. Ernest Goodman: That's right.

Justice 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.

Mr. Ernest Goodman: Yes.

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

Justice Felix Frankfurter: Your point here is that (Inaudible).

There must be some showing that -- of producibility.

Mr. 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 --

Justice Felix Frankfurter: So they impliedly admitted that he's got the record but won't produce it.

Mr. Ernest Goodman: They claimed --

Justice Felix Frankfurter: (Inaudible)

Mr. 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.

Justice Felix Frankfurter: What -- what does the court decide on what's the ruling on thisw (Inaudible).

I beg your pardon -- charged to the jury.

Mr. Ernest Goodman: The charge to the jury --

Justice Felix Frankfurter: (Inaudible)

Mr. Ernest Goodman: The charge to the jury on this was precisely this.

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.

Justice William O. Douglas: Is there any -- any indication that they charge the jury that they consider as evidence of his possession (Inaudible).

Mr. Ernest Goodman: No, the Court clearly --

Justice William O. Douglas: That's the only portion.

Mr. Ernest Goodman: This is the only portion.

Justice Charles E. Whittaker: Did the Government stand on this trial?

Mr. Ernest Goodman: The Government --

Justice Charles E. Whittaker: Must stand.

Mr. Ernest Goodman: Yes, they didn't take any exceptions.

I took --

Justice Felix Frankfurter: Here, they defend the legal record --

Mr. 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.

Justice Felix Frankfurter: (Inaudible)

Mr. Ernest Goodman: Well, I don't see that at all.

I don't think that the Court --

Justice Felix Frankfurter: The words presumption and shifting and burden (Inaudible) but isn't that what this charge says.

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

Justice Felix Frankfurter: This charge (Voice Overlap) --

Mr. Ernest Goodman: Yes, I'm talking about the charge.

Justice 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.

Mr. Ernest Goodman: Well, he told the jury that if he did -- if he did not make an explanation and (Inaudible)

But --

Justice William J. Brennan: At the committee.

Mr. Ernest Goodman: At the committee.

Justice Potter Stewart: It wasn't allowed with this petitioner -- I thought it isn't allowed to make any explanation on the trial.

Mr. Ernest Goodman: No, it's obviously --

Justice Potter Stewart: You don't really know that he did the crime.

Mr. 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 --

Justice Felix Frankfurter: (Inaudible)

Mr. Ernest Goodman: I -- I don't think it is, because I asked the Court to charge the jury in my request to charge.

Justice Felix Frankfurter: (Inaudible)

Mr. 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.

Justice 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.

Mr. 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.

Justice 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.

Mr. 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.

Justice Hugo L. Black: In existence for the fact.

Mr. Ernest Goodman: Yes, the Government makes this --

Justice Hugo L. Black: (Inaudible)

Mr. 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.

Justice Potter Stewart: This was the same witness under Senator Potter.

Mr. 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.

Unknown Speaker: Do you mean that (Inaudible)

Mr. 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.

Justice Hugo L. Black: (Inaudible)

Mr. 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.

Justice 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?

Mr. 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.

Justice Hugo L. Black: If you said that was pertinency.

Mr. Ernest Goodman: That was on pertinency.

Justice Hugo L. Black: Is the Government insisting that any of that can be used for the purpose of proving there were records?

Mr. 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.

Justice Hugo L. Black: To do it (Inaudible)

Mr. Ernest Goodman: They say, that is the basis the Congress have put in.

Print this transcript Transcript: 

Argument of Ernest Goodman

Mr. Ernest Goodman: At the recess, I was indicating the nature of the evidence introduced by the Government on the separate record dealing with pertinency.

And the question was raised as to whether any of this evidence was used by the Government in asserting in its provision here that it has established its claim of possession and existence.

I call the court's attention to the argument of the Government on page 16 of its brief under which it argued that it had established a prima facie case where it says that when the committee subpoenaed petitioner to produce certain designated records of the Civil Rights Congress, it "had the information that Mr. Mcphaul was the executive director or Executive Secretary of the Civil Rights Congress."

And it cites from the record, pages17 and 21, now those two pages of the record which it cites support of this legal proposition are parts of the separate record dealing only with pertinency.

I -- I point that out to indicate that apparently the Government does rely on the separate record for proof of a -- in support of its argument that it had established a prima facie case.

Unknown Speaker: (Inaudible)

Mr. Ernest Goodman: No, I do not.

Unknown Speaker: (Inaudible)

Mr. Ernest Goodman: No.

It was not part of the record.

Now, at that trial (Inaudible).

I don't believe so.

No, I'm quite -- I'm quite sure it was not.

Unknown Speaker: (Inaudible)

Mr. Ernest Goodman: That's right, at the --

Unknown Speaker: (Inaudible)

Mr. Ernest Goodman: It does not.

There's no indication on the subpoena that McPhaul has any relationship with the organization through records he is directed to produce.

And I -- in my brief, I point to many other cases that have come up in this Court before where the subpoenas have been directed either to the individual in his descriptive capacity as an officer or to the organizations served upon him in his official capacity.

This is apparently the usual way in which such subpoenas are issued if they're -- it's intended to bring in that person as -- in a representative capacity for the organization.

This case, that was not done and the Government in absence of this kind of procedure relies again upon this statement apparently on the separate record of pertinency that where Senator Potter testifies that they had evidence that he had and that is McPhaul as the Executive Secretary of the Civil Rights Congress.

Now, he was asked by the way by his own -- by the District Attorney to whether there is anything that he could show or any basis upon which he could support his statement that Arthur McPhaul had any relationship or was a member of the Civil Rights Congress.

And that question directed by the Government to Senator Potter appears on page 18 of the record.

I will ask you whether or not either the so-called the Executive or Closed Sessions or the public hearings, Mr. McPhaul was ever identified as a member of the Civil Rights Congress.

That question was never answered and no proof was presented to show that McPhaul, who -- the defendant in this case was ever identified in any capacity a member or otherwise of the Civil Rights Congress other than this conclusory statement by Potter -- on a separate record that they had evidence that he was an Executive Secretary so that --

Unknown Speaker: (Inaudible)

Mr. Ernest Goodman: That he at one time, yes.

The record is not clear even on the separate record because there Senator Potter says that in 1947, or thereabout, they had several letterheads to indicate that McPhaul was Executive Secretary.

That of course, even if they had such evidence would have been five years before he was subpoenaed.

So, in so far as the Government can rely upon this separate record dealing with pertinency, which they -- it was -- it was had outside the presence of a jury and I don't see how they can rely upon that to establish their claim that they proved the elements of the crime before the jury, but even if they were permitted to do it on the reasoning which they present here, it seemed to me that that is hardly a proof of the kind that would be required in any circumstances to show that the defendant here was in a representative capacity of the organization or that there were such records.

On the two other questions search and seizure and pertinency, I'm only going to make one comment.

I think I'll read that as it covers the subject and that is that on reflection, it seems to me that really both of these matters can be covered under the Fourth Amendment search and seizure rather than separate.

Both the Government and ourselves deal with them separately but further study of the case has seemed to indicate that under the Fourth Amendment, all issues relating to pertinency can be as readily raised with respect to the reasonableness of the subpoenaing as by trying to bring it under one of the other amendments so that pertinency and the scope read from the subpoenaing I think can more properly and clearly be considered as a argument dealing with the same problem.

I'd like --

Unknown Speaker: (Inaudible)

Mr. Ernest Goodman: Yes sir.

Unknown Speaker: (Inaudible)

Justice Charles E. Whittaker: You say that even if the inference was sufficient to establish the matter of law or if this man's statement, "I will not", either one, admits that he had possession (Inaudible) -- there wasn't -- legitimately had possession of records.

Still there's no showing that this was not personal.

And having claimed the Fifth Amendment, he could not be guilty of contempt for failure to produce, is that it?

Mr. Ernest Goodman: That's one of our observations, yes.

Thank you (Inaudible)

I'd like to reserve --

Chief Justice Earl Warren: You may --

Mr. Ernest Goodman: - the time I have --

Chief Justice Earl Warren: -- reserve your time.

Mr. Friedman.

Argument of Daniel M. Friedman

Mr. Daniel M. Friedman: Mr. Chief Justice, may it please the Court.

I would like at the outset summarize what the Government's position in this case is.

The petitioner was convicted of willfully refusing to produce documents before the House of Subcommittee.

It's admitted he didn't produce it.

So the whole question in each case is whether this failure to produce is refusal to produce was a willful one.

We think that the Government establishes a showing of willfulness when it proves first that the subcommittee had a reasonable basis upon which to subpoena these records from this individual.

And second that when this individual appeared in response to the subpoena, he offered no justification or explanation or excuse for his non-production of the documents, but merely said, "I will not."

And therefore, we think in these circumstances in the absence of any explanation, it was a reasonable inference by the jury that this was a willful refusal to produce.

That is, it was a deliberate and intentional clouting of the Commission's authority.

And we think that in these circumstances, where there is no questions raised, and I want to emphasize that at no time either before the Subcommittee, before the District Court, before the Court of Appeals or before this Court has petitioner ever suggested that he had any excuse for non-production.

He's never claimed that he doesn't have the documents.

He couldn't have produced it.

He was not connected with the association.

The whole argument is that it was incumbent on the Government as part of its affirmative case to prove that he had capacity to produce.

And our basic position is that I'm showing that we may, it was incumbent upon the petitioner to come forward with some explanation.

And I will develop that in the course of my argument.

Now, I would first like to turn to the question of the -- whether the subcommittee had a reasonable basis for issuing this subpoena to this petitioner to call upon him to produce this record.

Now, the evidence on this which Mr. Goodman keep referring to as a separate record was in fact taken before the judge out of the presence of the jury because the judge held in accordance with the decision of this Court that pertinency is a matter for the court not for the jury.

And similarly we think the question of the pertinency of the reasonableness of the Commission's committee seeking to obtain the records from this man is comparable perhaps in many ways different but fundamentally comparable to the showing of probable cause to the issuance of a warrant.

We know it is a question of law whether the Committee had any basis in seeking the records from this man.

Now what has the record shown us?

The record on this is based on the testimony of then Senator Potter who was then member of the Committee.

To begin with, at pages 17 and 22 of the record, Senator Potter testified that the Civil Rights Congress had been declared a subversive organization both by the Attorney General and by the Committee itself.

Now we're contending Mr. Justice Black in answer to a question that this evidence is sufficient to prove that the Civil Rights Congress was or was not some subversive organization.

All that we say is the Committee on the basis of this information was justified in saying it wanted to have a look at these records.

That's all it was asking the man to do and have a look at them.

Now the Committee also, the testimony by Senator Potter particularly at page 22 -- sorry, page 21 and also at page 17, Senator Potter stated, "The committee had information that Mr. McPhaul was Executive Director or Executive Secretary for Civil Rights Congress."

Now one basis for this information was the letterhead in the Committee files showing that in 1947, this man was the Executive Secretary of the association.

There is nothing in this statement that limits this statement, this testimony indicating that was the only thing.

And significantly I think when Mr. Goodman read to the Court this question that Senator Potter where there was any evidence taken at the executive hearing whether Mr. McPhaul was ever identified as the member of the Civil Rights Congress.

Mr. Goodman neglected to read the very next sentence on page 18 which is Mr. Goodman's statement, "I will object to that on the ground of that it constitutes hearsay."

Now, if the petitioner question the basis of the Committee for subpoenaing Mr. McPhaul, I petition the question that the Committee had any basis for taking this man was in fact connected with the organization, he could have cross-examined Senator Potter at this hearing before the judge, cross-examine on one peripheral issue.

At no point did he-cross examine Senator Potter on this issue.

Now as I shall indicate briefly later in my argument.

Justice Hugo L. Black: I don't understand (Inaudible)

It seems to me that you're saying (Inaudible) the Committee had made something (Inaudible) and found out that they have reason to believe that there were papers (Inaudible) that this man was an officer (Inaudible)

And that you can take that with his refusal to answer prima facie evidence that they did have (Inaudible) of prima facie evidence that they did have papers telling he was not.

Mr. Daniel M. Friedman: Mr. Justice --

Justice Hugo L. Black: That was -- that was -- they're using it to prove the case.

Mr. Daniel M. Friedman: Mr. Justice, if I may restate your formulation of the issue somewhat, the Committee had evidence, had a basis for thinking, one, that this was subversive organization and two, that this man was an officer of that organization.

Justice Hugo L. Black: I can understand that if you open that as a basis for showing that it shouldn't challenge the subpoena being (Inaudible) it could but not to prove anything on which they make this --

Mr. Daniel M. Friedman: We're -- no --

Justice Hugo L. Black: -- against him in a trial.

Mr. Daniel M. Friedman: We're not attempting to use this to prove that his refusal was willful.

We're using directly -- we're using this as the basis to show --

Justice Hugo L. Black: Are you -- (Inaudible)

Mr. Daniel M. Friedman: We're using it to show that the Subcommittee had a reasonable basis.

Justice Hugo L. Black: What?

It doesn't make any difference where -- whether they had a reason or basis that when you charged him for the willful failure to produces papers and the presumption I suppose some (Inaudible) of the case that we had to take him and had some (Inaudible)

Mr. Daniel M. Friedman: We think Mr. Justice that where he raises no issue as to whether he has possession or custody and whether there's a reasonable basis for the tribunal, the issues, the subpoena to believe that he has these papers affirms then on him to come --

Justice Hugo L. Black: You -- you return each time when you're talking about the evidence against him to prove that there were papers and that he had it.

You return each time to what was plainly history in a trial where the man with a criminal case, after what the Committee had heard.

You return each time.

If you leave that out, what is the evidence here?

Mr. Daniel M. Friedman: The evidence -- leaving out the evidence as to why he was (Inaudible)

Justice Hugo L. Black: Leaving out the evidence -- leaving out of the key statement that Senator Potter and the Committee had heard from somebody else.

What is the basis of your proof in the charge made?

Mr. Daniel M. Friedman: Well Mr. Justice I don't think we can leave those statements out of the case because we think they were pertinent on this issue of whether the Committee had a reasonable basis.

But whether -- I'd like to turn now to what the evidence shows with respect to --

Justice Hugo L. Black: Suppose they had no reason to proceed, and we charge him of refusing to bring paper that -- and you prove that he had the paper, that he was an officer, having been charged and that he refused to bring, and then you would prove he's guilty.

Mr. Daniel M. Friedman: If the Committee had --

Justice Hugo L. Black: (Voice Overlap) any different whether they had a reasonable basis so far as his guilt was concern or not.

Mr. Daniel M. Friedman: Its -- it was within the -- it was within the Committee's proper function.

Justice Hugo L. Black: Yes.

Mr. Daniel M. Friedman: But I'd like to come now to the evidence in the record dealing with his appearance before the Subcommittee, the precise transcript of the proceeding.

That's reprinted in the record at pages 31 to page 34 and I'd like to first read to the Court from the early part of his appearance in middle of page 31.

This is when he appeared, accompanied by counsel before he was sworn and about half way down, Mr. Wood, Congressman Wood, the Chairman of the Subcommittee, "Are you prepared to produce the documents and papers that have been called upon for you to produce under the subpoena?"

The witness answered, "Mr. Wood I refuse to answer this or any question which deals with the possession or custodies of the books and records called for in the subpoena.

I claim my privilege under the Fifth Amendment of the constitution."

Now then after some further colloquy the witness was sworn.

He had some certain preliminary questions as to his age and birth --

Justice Felix Frankfurter: I don't see why you skipped the next question in the (Inaudible) -- have in those remarks in answer.

Mr. Daniel M. Friedman: I would like to ask the witness if he has any other reason for refusing to produce the documents called for in the subpoena.

The answer is I think my answer covers.

Justice Felix Frankfurter: Well, I get out of that is that he has no other answer except the privilege against self-incrimination?

Mr. Daniel M. Friedman: But Mr. Justice my point is, I will come to in a moment he did not refuse to produce the documents under any claim of self-incrimination.

I'd like to read to the Court at page 34, in the middle of the page the circumstances under which he actually refused to do it.

Mr. Tavenner: The question is as to whether or not you were refusing to produce the records directly to be produced on this subpoena.

Mr. McPhaul: My answer for that is, I refuse to answer this or any questions which deal with possessions or custody of the books and records called for in the subpoena.

And again he claimed his privilege under the Fifth Amendment.

Mr. Tavenner says, "My question to you was not answered.

My question is whether or not you are refusing to produce the record."

And Mr. McPhaul said, "I have answered."

Mr. Tavenner said, "No sir.

You have stated that you refused to answer any questions pertaining to that.

I have not asked you a question that pertains to that.

I have asked you to produce the record.

Now will you produce it?"

Answer by Mr. McPhaul, "I will not."

Mr. McPhaul did not say I will not produce these records because their production I tend to incriminate it.

Mr. McPhaul specifically put his claim of privilege on the refusal to answer questions with respect to the possession and custody of the record.

His answer to the question will you produce and was I will not.

And there's no explanation.

Unknown Speaker: (Inaudible)

Mr. Daniel M. Friedman: Now, it seems to us that --

Justice Felix Frankfurter: I don't -- I don't quite (Inaudible)

Go back to page 31.

I refuse to answer this or any question (Inaudible) in the record or to the subpoena.

I claim my privilege under the Fifth Amendment.

Then it's the word, after you (Inaudible) Mr. Tavenner, I would like to ask (Inaudible) there's any other (Inaudible) in the subpoena.

I think my answer is covered.

Now, if I were not then the (Inaudible) and because of my possession, I would get out of here (Inaudible) that he had standing, he had on the privilege of getting self-incrimination, the record to every question that he was asked?

Mr. Daniel M. Friedman: With reference to every question that he was asked.

Justice Felix Frankfurter: Yes.

Mr. Daniel M. Friedman: That's correct.

Justice Felix Frankfurter: That's his answer to every question.

Have you got any other reason?

Now, for me that means he has no other reason.

Mr. Daniel M. Friedman: But its --

Justice Felix Frankfurter: (Inaudible) he didn't say he hasn't got them.

That he doesn't want to produce any sort of claims by Fifth Amendment.

Mr. Daniel M. Friedman: But he claims the Fifth Amendment Mr. Justice with respect to questions.

Justice Felix Frankfurter: Pardon me?

Mr. Daniel M. Friedman: He claims his Fifth Amendment privilege with respect to answering the question as to the possession and custody of the documents.

He keeps repeating questions with respect to the possession of custody.

He does not --

Chief Justice Earl Warren: (Inaudible)

Unknown Speaker: (Inaudible)

Mr. Daniel M. Friedman: Well, I don't know whether he means in this circumstance that he is claiming the Fifth Amendment ground for refusing to produce.

He was claiming the Fifth Amendment as a ground for refusing to answer a question whether he has any excuse.

I -- I think Mr. --

Chief Justice Earl Warren: But Mr. Friedman, the fact that Mr. Tavenner said my question to you was not answered by that statement, in my judgment does not mean that it was not answered and isn't this -- isn't this an answer?

The question is as to whether or not you are refusing to produce the records directed to be produced under the subpoena.

Mr. McPhaul: My answer to that is, I refuse to answer this or any questions which deals with possession or custody of the books and the records called for in this subpoena.

I claim my privilege under the Fifth Amendment of the United States Constitution.

Now please tell me why that isn't a definitive answer?

Mr. Daniel M. Friedman: Because I think Mr. Chief Justice he was subpoenaed.

This subpoena directed on both to produce the records and to testify.

Now I think if he claims this privilege with respect to producing the records.

He is required so to state to make it explicit to the Committee that he is refusing to produce these records because of a claim that their production might tend to incriminate him.

Chief Justice Earl Warren: Well doesn't -- doesn't this question deal with his possession or custody of the books and records called for in the subpoena?

Mr. Daniel M. Friedman: We don't know.

He -- there maybe any number of reasons why he refused to produced them.

But he --

Chief Justice Earl Warren: No.

No, but doesn't that question itself have to do with his possession or custody of the books and records called for in the subpoena?

Mr. Daniel M. Friedman: We then --

Chief Justice Earl Warren: Then he says he refuses to answer that.

Mr. Daniel M. Friedman: He said, whether he's prepared to produce them.

He may be -- not be willing to produce them because he doesn't think the Committee has any authority to ask him to produce them.

That may be the reason, Mr. Chief Justice.

Chief Justice Earl Warren: Well --

Mr. Daniel M. Friedman: He may just think this Committee has no business to be conducting this investigation.

All that I'm suggesting --

Chief Justice Earl Warren: His reason is that he claims the Fifth Amendment.

Mr. Daniel M. Friedman: With respect to the questions.

Chief Justice Earl Warren: Exactly.

Mr. Daniel M. Friedman: That's right, with respect to the question.

Well, let me -- let me --

Chief Justice Earl Warren: And all questions he says is connected with the custody and -- and --

Mr. Daniel M. Friedman: (Inaudible)

Chief Justice Earl Warren: -- possession.

Mr. Daniel M. Friedman: But he wasn't --

Chief Justice Earl Warren: I don't suppose --

Mr. Daniel M. Friedman: He --

Chief Justice Earl Warren: I don't suppose that a committee has the right to put questions and put in -- in a great number of forms so that a man at his peril will have to -- will have to analyze every single one of them to see whether he is -- has covered every single phase of it with his -- his claim of self-incrimination.

He stated at the outset here, did he not, that he was not going to answer any questions because he claimed the privilege of the Fifth Amendment.

Now are you going to let the Committee twist the question around in such a way that -- that finally it will be left up to the -- to the question of will you or will you not and when he says, "I will not."

You say, "Well, you didn't claim the Fifth Amendment as to that", where you said all along that he claims the Fifth Amendment.

Isn't that enough in my sympathy in those?

Mr. Daniel M. Friedman: Well I think Mr. Chief Justice, I fully agree that the Committee should not try to trap the witness if the witness claimed --

Chief Justice Earl Warren: I didn't say they didn't try to trap him.

Mr. Daniel M. Friedman: I understand.

If the Committee -- if he -- if he does anything which makes clear to the Committee that he is claiming the privilege refusing to either produce documents or answer questions --

Chief Justice Earl Warren: Yes.

Mr. Daniel M. Friedman: -- because of the claim of privilege which informs the Committee that he is refusing to do it on that basis.

That is the Fifth.

On the other hand we think a witness also has an obligation to make clear to the Committee the basis on which he is refusing to produce this document.

Unknown Speaker: (Inaudible)

Mr. Daniel M. Friedman: Well I --

Unknown Speaker: (Inaudible)

Mr. Daniel M. Friedman: I think -- I think it's somewhat ambiguous there but I -- I would like to come to something else Mr. Justice --

Justice Felix Frankfurter: But before you come to something else and I don't -- do not want to dislocate your argument.

Now I fully understand at least, not mine to decide it, sure enough to answer my question, (Inaudible)

What I want to know is this.

Coming across all this -- all the close interpretations that you might want to -- do you have a right to make because I take that what you're here to make.

I want to ask you this.

Assume he did claim -- assumed that he properly, adequately invoked the privilege against self-incrimination, to the productions of books, these records rather, could he make that claim?

Mr. Daniel M. Friedman: We don't think so.

Justice Felix Frankfurter: Well, then why don't you argue that?

That would be (Inaudible) of putting these words under a microscope.

Mr. Daniel M. Friedman: We don't -- we don't think he could invoke the claim because these were not his personal records.

These were the records that the Civil Rights Commerce we think under the precedence of this Court, the records of a noncooperative association, the claim of self-incrimination cannot be made by someone who is called upon to produce those records.

Unknown Speaker: (Inaudible)

Justice Felix Frankfurter: But that show me a lot.

That that answer (Inaudible) of Mr. Tavenner, if that's his name.

Does this mean, in obtaining these -- stretching the whole context, (Inaudible), it doesn't mean when you search -- when you produce them, he said, "I claim this privilege of the Fifth Amendment."

Mr. Daniel M. Friedman: Well, as --

Justice Felix Frankfurter: He'd have to --

Mr. Daniel M. Friedman: Assume --

Justice Felix Frankfurter: -- for a great deal of persuading that (Inaudible) that policy means?

Mr. Daniel M. Friedman: As -- assuming -- it wasn't -- let's assume that that -- that he invoked his -- properly invoked his privilege with respect to the production of these books and records, even assuming that, we don't think this was any excuse for his non-compliance.

Justice Felix Frankfurter: Well if that, if you're right about that, that's an end of the case, isn't it?

Mr. Daniel M. Friedman: That's an -- that's an end of the case except for the argument, the basic argument that it's necessary for us nevertheless to show that he had possession, custody and he'll -- able to produce the books.

Justice Felix Frankfurter: Well, if -- well, I should think for me it's the end of the case because of the answer, I have no other excuse except that.

He doesn't have the excuse for not having them.

Chief Justice Earl Warren: What is in the record Mr. Friedman to establish that there were books of the association or that he hasn't and had the obligation to do it.

What is there in the record of the trial?

Mr. Daniel M. Friedman: The -- there is no affirmative evidence to prove that he had -- either that he had possession of these books or that these books and records ever existed.

And our position is that when he was called upon to produce the books and record, if in fact he didn't have to if in fact there were no such books and records, it was obligatory on him so to advice the Committee.

Now I would like to come to this point.

The argument that has been made by petitioner --

Chief Justice Earl Warren: Oh wait, what cases do you rely on for -- for that if any?

Mr. Daniel M. Friedman: We -- we relied basically we think on the rationale of the Bryan and Fleischman cases.

Chief Justice Earl Warren: Do you think those are applicable here?

Mr. Daniel M. Friedman: We think they -- the reasoning is answered.

In other words --

Chief Justice Earl Warren: No.

I -- on -- under these facts, under the -- do you think that the -- that the judgments in those cases are -- are pertinent to this judgment in this case?

Mr. Daniel M. Friedman: I think they are pertinent (Voice Overlap) --

Chief Justice Earl Warren: I'm not talking about the reasoning (Inaudible)

Mr. Daniel M. Friedman: Well, I -- I think they're pertinent in the light of the basis on which the Court reached its judgment in those cases.

Chief Justice Earl Warren: In that -- in that case -- in those cases wasn't there proof, adequate proof that they -- that they did exist and -- and that they did have -- the man did have possession of them?

Mr. Daniel M. Friedman: The -- there was and that -- but however--

Chief Justice Earl Warren: Is -- isn't that different from this?

Mr. Daniel M. Friedman: Well the facts are different conceivably Mr. Chief Justice.

The facts are different but we think the same reasoning, the same reasoning which lead to the holding in those cases that a claim that the Subcommittee did not have a forum (Inaudible) couldn't be raised in Court for the first time.

It wasn't read in the courts.

The Subcommittee also indicate to us that when a demand is made on a person who for whom there was a reasonable basis to believe that he has the record, that is obligatory on him to come forward and to state either that he doesn't have or he can't.

Unknown Speaker: (Inaudible)

Mr. Daniel M. Friedman: I want to emphasize that if this man had the records, one of two possibilities.

One, he had the records, he could've produce it.

If he had the records, he could've produced.

It seems to us he clearly was in contempt when he stated, "I will not."

Number two, let's assume for the sake of argument this organization had no records or this man could not have produced them.

If that were the facts, we don't see any basis on which he could possibly claim that he will be incriminated if he told the Committee, "I'm sorry, I can't produce them, I don't have it."

Now he doesn't deny that.

He says, if he came before the Committee and told the Committee, "I don't have them."

That wouldn't be the end of it.

The Committee will say, well then, who has it?

Why don't you have it?

And so on.

We think a line can be drawn.

We think he could fairly claim a privilege once he has told the Committee that he does not have the books and records.

He -- the privilege under the decision in the (Inaudible) case to refuse to answer questions, any questions with respect to the possession or custody of the record.

But we don't think when he is subpoenaed to produce the records, he has any claims to say under the claim of privilege.

I'm not even going to tell you that I don't have them.

We think if he doesn't have them, he has got a burden at least to tell that to the Committee.

To give the Committee a chance if in fact he does not have the records --

Justice John M. Harlan: Can he be forced to say that against this privilege of self-incrimination?

Can you at least, covering what (Inaudible)

Mr. Daniel M. Friedman: I think so Mr. Justice because I don't see how that would tend to incriminate.

Justice John M. Harlan: (Inaudible) the corporation, the normal way he has denied this -- asking questions to witnesses before a grand jury.

Normally you would ask the witness, are you the secretary of -- to the X corporation?

Or you're issuing the subpoena, can you produce the record?

Now, none of that appears in this record at all.

The question now, I'll put it to you is that, is he entitled to under his plea of self-incrimination to say in effect, I will not disclose my identity.

(Inaudible) was an officer of this corporation which is an element of proof, the security is necessary to (Inaudible)

Mr. Daniel M. Friedman: I would think he could refuse to disclose this connection or identity with the corporation but I don't believe he can refuse to state that he doesn't have the documents that if he was (Inaudible)

Justice John M. Harlan: Can he refuse to say that I am -- I'm a -- or answer the question, "Are you the secretary of the corporation?"

Mr. Daniel M. Friedman: Depending on the circumstance, I think that might well in some circumstance.

Justice John M. Harlan: Well in -- no in these circumstances where he's being asked to produce corporate record?

Mr. Daniel M. Friedman: I think he might well claim that privilege but I don't think that question is necessary in order to obtain the records.

In other words, if -- if he's got the records, it seems to me he can't offer as the excuse for not producing them but it hasn't been proven that he is the secretary according in the hypothetical situation.

Chief Justice Earl Warren: But if he answered to the question, isn't he in exactly the same position that defendant was in the Rogers case?

Mr. Daniel M. Friedman: I don't think so.

Chief Justice Earl Warren: Why?

What's the distinction?

Mr. Daniel M. Friedman: The distinction is that in the Rogers case, the defendant had admitted her membership in the Communist Party.

Chief Justice Earl Warren: Correct.

Mr. Daniel M. Friedman: And the question was, having admitted the membership in the Communist Party could she then refuse to state to whom she had turned the records?

And this Court held that she in effect having admitted the broad thing that she was a member of the Communist Party, she couldn't claim that the disclosure of the details of how she got to that office would tend to incriminate.

He --

Chief Justice Earl Warren: Alright.

Well, if he had answered, I no longer have the records, that needn't be an hypothetically the position of Ms. Rogers, wouldn't it?

Mr. Daniel M. Friedman: Mr. Chief Justice, we don't think it has to say, I no longer have the record.

I think if all he says is, "I do not have the record.

I cannot produce the record."

He doesn't indicate whether it's because he doesn't have them, because he's not connected with this association, because for all we know, whatever happened.

All we're saying is that it was the burden on him to come forward and state the simple fact if he did not have the record, that he could not produce them, that he could not without any explanation as to why not.

The statement of that fact would be sufficient we think to bring it to the Committee's contention that a man that they believe could've produced the record said he couldn't do it.

Now it's been enough to the Committee to take other steps to claim this record.

For all the Committee could tell, here was a man who has the records who was just refusing the (Inaudible)

Justice Felix Frankfurter: Mr. Friedman, I think (Inaudible) closely to Mr. Goodman, (Inaudible) yet I may have missed but he isn't arguing here that he was protected by the privilege against self-incrimination.

That isn't the argument here.

Your argument states that it isn't here.

Mr. Daniel M. Friedman: I -- I thought that he had argued and that some of the questions from the bench could indicate it that some members of the Court were very troubled by this question of privilege.

Now --

Justice Felix Frankfurter: But I -- that's a different story.

All I'm saying is the claim here, that the issue here is whether there was a proof by the Government under its duty of proof that these records are traced to these individuals and therefore he was not then entitled to not produce them.

And so that's the burden of the case.

Mr. Daniel M. Friedman: Well I think Mr. Justice if I may --

Justice Felix Frankfurter: And maybe -- and when for me, when a man is asked, "Can you produce them?

He says, "I claim the privilege", he negated all other reasons for withholding proof predominantly.

Mr. Daniel M. Friedman: The question we think is basically whether in the Circuits.

Justice Felix Frankfurter: There's no word of that in the brief of this, doesn't it?

There's none of the (Inaudible) he doesn't claim, that's a different -- that was beyond totally different problem namely that he was at no time so pressed or so add that he couldn't claim this privilege against self-incrimination under the view of his relation of being asked to produce some other (Inaudible) doctrine.

And that thing -- that wouldn't be a good claim.

All I'm saying, I don't find it (Inaudible)

Mr. Daniel M. Friedman: The -- the claim I think basically.

Justice Felix Frankfurter: Maybe your answer to that isn't in the litigation.

Mr. Daniel M. Friedman: The -- the basic claims as I understand that Mr. Goodman is that he has not willfully failed to produce the records despite this refusal to produce them without any explanation unless the Government affirmatively show that he is in fact able to produce, and that is the books and records are in existence and that he is the custodian or has the --

Justice Felix Frankfurter: (Inaudible) somehow rather with these documents?

Mr. Daniel M. Friedman: With these documents and we think that when we prove that the Subcommittee had a reasonable basis for subpoenaing the documents from him and that he in turn then came and didn't offer any explanation, I don't have.

It didn't say any, he just said, I will not produce it.

But that was enough to make out a prima facie case of a willful refusal to produce, an intentional filing of the Commission -- with the Committee's authority.

Now, the cases in which this --

Justice Hugo L. Black: But I understand -- suppose I -- I can't understand the problem, it's just (Inaudible)

Because I understand you, that you're saying that (Inaudible) by his statement to the Committee, (Inaudible) to the Committee, that I refuse to (Inaudible)on the grounds that -- I refuse to (Inaudible)

Would that amount as confession on his part of two essentials elements of the offense to which he was charged?

First, that there are such papers (Inaudible) and second, that the he is an officer or has some part (Inaudible)

But now, I don't see how that would be helpful when the fact if the Committee has reasonable grounds that he should've produced it.

Mr. Daniel M. Friedman: Well --

Justice Hugo L. Black: And do you believe that in a criminal case, I -- I don't suppose you believe that they could've waived this (Inaudible) to prove this charges of a criminal (Inaudible) of what he said before the Committee, could you?

Mr. Daniel M. Friedman: No, certainly not.

Justice Hugo L. Black: Alright.

Then if he don't, this is admissible if it's a confession of two essential elements of the crime but do you believe that those two essential elements of the crime can establish beyond a -- or can be established beyond a reasonable doubt by such a attenuated inference as it must be drawn for the statement of (Inaudible)

Mr. Daniel M. Friedman: We don't think Mr. Justice that in the context that this case -- that these are the two essential elements of the crime.

We think if an issue is raised, if there was an issue raised.

If he denies that he has possession, now what -- if he comes in and says, "I don't have it."

That raises an issue really as to whether his refusal to produce them was intentional --

Justice Hugo L. Black: Asked by the Committee.

Mr. Daniel M. Friedman: By the Committee.

Justice Hugo L. Black: But the -- the law should be -- it's a different thing.

It's an indictment for a crime.

And this has to be filed what takes place in the court and under a long established use of evidence in other types of cases that evidence has to be proven not by hearsay but by evidence.

And you don't think it's in a -- (Inaudible) to measure, to prove that the way you have to prove (Inaudible)

Mr. Daniel M. Friedman: No, we have to -- we of course have to prove beyond a reasonable doubt that he has willfully refused to produce the documents.

Justice Hugo L. Black: Well of course, if it -- if he had made the statement, no once could deny that he made the statement before the Committee.

That wouldn't have been waived as I see it.

Now, I have those (Inaudible) and I could produce but I'm not going to do it.

(Inaudible)

Then I suppose there'd be no doubt that it had to be offered as a confession even though that he was not in open court.

But here, you have to -- (Inaudible) problem to mean is if its to mean what he says that the -- that he -- could that lead to his burden of proof as to why in to these charges not to require that the -- it should be -- not have been given even as to that in the case, the basis on which the Government as to this case.

Mr. Daniel M. Friedman: No Mr. Justice, I think that the question really here is what the Government has to prove to make out a prima facie case of willful refusal to do it.

Justice Hugo L. Black: Well, of the prima facie cases in a criminal court where you just have to allege things in the indictment and it's essential to the conviction unless they make out a case beyond a reasonable doubt --

Mr. Daniel M. Friedman: But the -- the only --

Justice Hugo L. Black: -- as a whole?

Mr. Daniel M. Friedman: The only thing I think we have to show beyond the reasonable doubt in terms of the statute to say willful refusal to produce.

The question is what elements must be shown as part of our affirmative case beyond a reasonable doubt to establish this willful refusal to do it.

Justice Hugo L. Black: And you've got to show how we do that.

This identical question was presented to the jury, I suppose.

And so whether they could find even if they find (Inaudible) whether they could find here, number one, that the presumption, number two, it is prima facie in here to refuse (Inaudible) and he could've brought them.

And they didn't.

But all those would have to be submitted to the jury in some way, wouldn't it?

You couldn't go simply on the basis that we had before the Committee taken some (Inaudible) made it unnecessary to prove the case.

Mr. Daniel M. Friedman: I -- I -- Mr. Justice, I think that the latter two elements that the documents are in existence that he had them that the burden was shifted to him to come forward with some explanations to why he didn't produce.

That those -- in other words that absent any challenge by him and absent -- then he raised -- by him of these questions.

Those are not essential elements to prove a willful refusal to produce, that's our basis --

Justice Hugo L. Black: You -- there'd been a lot of talk about shifting the burden specifically so that the plaintiff (Inaudible) to say the least of it, the courts have been rather weary haven't they about adopting the rule of shifting the burden of proof from the Government to defendant charged with a crime?

Mr. Daniel M. Friedman: They have were but there are cases which have indicated that in situations where certain facts had shown justify the inference of certain conclusion and where the rebuttal of those fact lies peculiarly within the control of the defendant, that's not unreasonable act of the Government puts forward it's affirmative case to ask the defendant if he has an explanation or excuse to come forward.

I think the Rossi case which we've cited with the prosecution for operating this still without a bond.

And I said that where the Government to prove the operation but still but it was not necessary for the Government to prove affirmatively that the man had not obtained a bond.

That was something within his knowledge that if in fact he hadn't obtained the bond, he should come forward.

Mr. -- Mr. Justice, if I may suggest another example of a hypothetical case which I think is somewhat akin to this.

Suppose for the sake of argument a witness was summoned to appear before a congressional committee and testified, to testify that's all.

The day of his appearance goes by and he doesn't even show up.

Now I think that of itself ordinarily would be a clear contempt of the committee.

He doesn't show up at all.

Now in fact he may have a valid excuse.

He may have been sick on his bed in a hospital on the day of the --

Justice Hugo L. Black: But that's undoubtedly would be a valid contempt to the Congress.

Mr. Daniel M. Friedman: Yes.

Justice Hugo L. Black: But does it -- would that be covered by the federal statute against (Inaudible)

Mr. Daniel M. Friedman: I believe it would it Mr. --

Justice Hugo L. Black: In my -- does my -- I'm just wondering, there's a difference of course.

Mr. Daniel M. Friedman: The statute specifically --

Justice Hugo L. Black: The contempt there would be that he had failed to the Congress.

Mr. Daniel M. Friedman: That's --

Justice Hugo L. Black: Now the statute may cover that but it -- you'd have to look at the statute.

Mr. Daniel M. Friedman: The statute specifically says every person having been summoned as a witness by any committee willfully makes default, Section I, Title 2, Section 192 covers both failing to produce documents and records for failing to appear the summon.

But my suggestion was that in that case the Government prosecuted this man under this statute for failing to appear.

I would think the burden would be on the defendant to come forward with the excuse that he was sick in the hospital on the day that he was subpoenaed to appear before the committee.

And yet in that situation too I suppose, you could say it's an essential element of the offense that he had the ability to comply with the subpoena.

Yet, I wouldn't think the Government was required as part of this affirmative case to show that the man was healthy.

I think this is the kind of thing that is peculiarly within the control of the defendant and that if he can explain it away he is obligated to do so.

Justice Hugo L. Black: And you are saying that even if you cannot draw the inference which Mr. Justice Frankfurter suggested, you could be wrong in making that I refuse on the ground of self-incrimination.

You're saying -- and even if he couldn't draw that, it wouldn't be necessary because the burden is on him to show that there were no papers and that -- and that he was not connected with somebody that he couldn't (Inaudible)

Mr. Daniel M. Friedman: That's correct.

The burden is on him.

Mr. Justice, I suggest that in the ordinary situation, if someone is subpoenaed to produce books and records before a committee or any tribunal and he is unable to do so, he would normally come forward and state so.

I would -- if I were subpoenaed into one of the House Committee to produce some books and records of some organization that I either had no connection or that I didn't have, I would tell them that.

I wouldn't --

Justice Hugo L. Black: You can't go off in that statement to determine or to make out a case against you, wouldn't they?

Mr. Daniel M. Friedman: Well I -- I think --

Justice Hugo L. Black: On what you are doing.

Mr. Daniel M. Friedman: No.

But I think the -- it's a reasonable inference that when a person is subpoenaed to produce these books and records and offers no excuse that this on its face seems to be unintentional clouting the Commission's authority which is what the statute prohibits.

Justice Hugo L. Black: But what you're saying now is (Inaudible) covered in this contempt cases that they find yourself waiving every (Inaudible) before you know that.

Justice Felix Frankfurter: (Inaudible) of this prosecution was under the old section (Inaudible) the old statute which Congress -- the reason (Inaudible) by which Congress had (Inaudible) on to the court making it a criminal offence and saving them from direct (Inaudible) from direct citations to contempt as -- so far as the House of the Senate, is that right?

Mr. Daniel M. Friedman: Well that's just to augment, to make it easier for Congress to convict, for Congress to punish for contempt, yes.

Justice Felix Frankfurter: Now, to make it easier to prevent them from doing the -- the punishing.

Justice Hugo L. Black: (Inaudible)

Justice Felix Frankfurter: Up to that time, it had to be done by Congress itself (Inaudible) district jail whatever was (Inaudible) by Congress itself.

Mr. Daniel M. Friedman: Correct.

Justice Felix Frankfurter: And I don't suppose there's any doubt (Inaudible)

Mr. Daniel M. Friedman: No.

Justice Felix Frankfurter: They -- they passed this statute whereby automatic, automatic.

We've got the courts to do what they're supposed they had to do, is that right?

Mr. Daniel M. Friedman: I think that's the first thing.

Before -- among other -- other reasons Mr. Justice that the fact that since this Court had held long ago that co -- Congress have no power to permit a recalcitrant witness beyond the expiration of a session.

Congress had discovered just before the Civil War that it was unable effectively to propose efficient sanctions.

Justice Felix Frankfurter: Well that for various (Inaudible) because these commitments, (Inaudible)

Mr. Daniel M. Friedman: At least that was the stated reason.

Justice Felix Frankfurter: (Inaudible) they -- they didn't want go and just decided that opinion, let go (Inaudible) the judiciary.

Mr. Daniel M. Friedman: Now I want to reiterate again a point that if petitioner had offered an excuse to the Subcommittee, if he had told the Subcommittee that he does not have any basis for not producing, the Subcommittee would have had an opportunity to pass it on this thing which it was not given the opportunity to pass on when he just said, "I will not produce."

Now --

Unknown Speaker: (Inaudible)

Mr. Daniel M. Friedman: In that situation, the Committee would then not have been placed to this situation if this inquiry being blocked of as a threshold by reason of this witness' recalcitrant (Inaudible).

Chief Justice Earl Warren: Mr. Friedman, if -- if he had answered the -- the question that was, at the time, asked to him by saying, "I do not have the record."

Now, if they asked him who -- if he knew who have this and he refused to testify, would you be here?

Mr. Daniel M. Friedman: I don't think so.

Chief Justice Earl Warren: Do you think that would be alright?

Mr. Daniel M. Friedman: I think so.

Chief Justice Earl Warren: Do you think he could stop any place he wanted after he once said that he didn't have the -- have the records or that he did have it.

Mr. Daniel M. Friedman: Well he would -- if Mr. Chief Justice, I think so because if he had them, he didn't have to say you had them, it seems to me, just produce them.

If he didn't have them, a simple statement that he didn't have them would go to the question whether he could have complied with the subpoena.

And once he went beyond that, I think he could've stop at that point.

Chief Justice Earl Warren: Then he said, "I don't have control of it."

Mr. Daniel M. Friedman: That was (Inaudible) he didn't -- he wouldn't even have to see -- he wouldn't have to explain in that detail to just say, "Will you produce the records?"

"I cannot, I do not have it."

Now I think when he has then asked, "Well, why don't you have them?

Do you know who has them?

Did you have them yesterday?

Will you have them tomorrow?"

A whole series of questions as to that, I think he could properly claim this privilege.

Our point is that the mere statement that he didn't have them, the mere inability to comply but not possibly incriminate him and that would have given the Committee an opportunity to take whatever steps was necessary.

Chief Justice Earl Warren: Would you say that -- that you've made a crime a basic case to the effect that that -- that the association did have the books, did have books, and that he had control on them.

Now, if he said he didn't, why wouldn't he be in the same position as defendant Rogers in that colloquy after you have as you say made a prima facie case of these other thing?

Mr. Daniel M. Friedman: Well then, if he said he didn't, he is then injected into the case on a question whether he can or cannot comply, whether he had power to comply with the subpoena.

And if he raised that issue would then be incumbent on the Government to come forth with evidence to prove beyond a reasonable doubt that he could've produced, but he raised no such issue.

He raised no such issue.

But he's never contented that he doesn't have the record.

He's never to this day suggested that he doesn't have the records of the (Inaudible).

His whole argument basically is that even though he said, "I will not produce them", the burden was on the Government to prove that he could have produced them.

And what the --

Chief Justice Earl Warren: If there were such record (Voice Overlap) --

Mr. Daniel M. Friedman: If there was such record.

Chief Justice Earl Warren: -- which the Government has not proved.

Mr. Daniel M. Friedman: The Government has not proved.

The Government -- again, if there was no such record, he'd have a full excuse for not -- to produce this.

He'd have a full excuse for not complying.

Mr. Chief --

Justice Hugo L. Black: So if that -- if that's true, the full effect of what you had (Inaudible) by claiming his privilege of self-incrimination doing no more (Inaudible) the charge with the failure to produce papers if he had them without proof that he had ever had the papers.

Mr. Daniel M. Friedman: No, I didn't --

Justice Hugo L. Black: Or did it.

Mr. Daniel M. Friedman: I think --

Justice Hugo L. Black: He -- he lost (Inaudible) because he claimed his privilege --

Mr. Daniel M. Friedman: No, Mr. --

Justice Hugo L. Black: -- because that's the only statement you have.

Mr. Daniel M. Friedman: Now Mr. Justice, he lost this case once because his claim of privilege is invalid insofar as he personally sought to claim a privilege against the production of the organization records and two, he offered no other excuse for not producing.

In other words --

Justice Hugo L. Black: Now, you assume with that argument is (Inaudible) and he claimed his privilege, could that amount to contempt?

Mr. Daniel M. Friedman: No, I --

Justice Hugo L. Black: (Inaudible)

Mr. Daniel M. Friedman: I think that's --

Justice Hugo L. Black: (Inaudible) refusal to (Inaudible) ask him why he didn't raise that claim, that privilege under the Fifth Amendment?

Then you say by that, you could subject him although if he had said, I don't have them, (Inaudible)

Mr. Daniel M. Friedman: Because he didn't say I don't have them Mr. Justice Black.

Justice Hugo L. Black: No, of course no.

Mr. Daniel M. Friedman: I think that's a significant path whether he did or didn't say.

We claim that he could not possibly incriminate himself by merely stating, "I do not have these records."

He could not have been -- it's never been suggested that he could incriminate himself by stating, I don't have the records.

Justice Felix Frankfurter: Supposing -- suppose he had said any number of things?

Suppose he said, "I don't produce because I think (Inaudible)

I don't produce them because I think (Inaudible) finished unconstitutional and it is a disgrace to Americanism.

I don't produce them because in other reasons, not remotely related to anything except he refused to produce records without the slightest intimation and indeed of (Inaudible) claim, rational implications that those are the reasons he gives not the reason he doesn't give.

Mr. Daniel M. Friedman: I think --

Justice Felix Frankfurter: Could you therefore say that entirely he didn't mean any of these things particularly when he had a lawyer to accomplish (Inaudible) defense to this Court.

How many times did he claim the privilege against self-incrimination?

I have encountered them (Voice Overlap) --

Mr. Daniel M. Friedman: Several times.

Justice Hugo L. Black: -- 15 --

Mr. Daniel M. Friedman: (Inaudible)

Justice Felix Frankfurter: Not only, that's insinuated.

That means nothing.

Mr. Daniel M. Friedman: No, that means he was refusing to answer any questions with respect to have possessions of the book.

I would like very briefly now to refer to two other arguments which is a question I want to touch on with any -- like of the breadth of the subpoena and the pertinency of the questions.

Justice Potter Stewart: Before you get to that Mr. Friedman, am I right in understanding this that the trial court and the Court of Appeals had a theory that since this petitioner had not offered any explanation, it is not anyway indicative that he has them, that the records were not in existence, so that they -- so they were not in his control.

At the -- at the Committee hearing, since that it happen, therefore, this was no longer available even as a defense, even if he wanted to bring them at the trial.

Wasn't that the theory of the trial court (Voice Overlap)?

Mr. Daniel M. Friedman: Well that seems to be what the trial court was stating but that statement was made after the defendant rested without introducing any evidence.

So that the practical matter, he had not attempted to introduce any evidence.

There's nothing to indicate that if he had sought to justify it on a claim of incapacity to do it, the trail court would have not permitted him.

Justice Potter Stewart: And your theory now is as -- as to the -- what the law ought to be, this is that the -- had he wanted to do so, at -- at the defense of this criminal indictment, he would've been free to do so --

Mr. Daniel M. Friedman: Well, I --

Justice Potter Stewart: -- rather than a valid defense.

Mr. Daniel M. Friedman: Let me think candidly Mr. Justice, that I think is a harder question.

There is language certainly in the Fleischman case which suggest that at the trial of the case, the defendant may introduce evidence showing a ground for noncompliant with the subpoena.

But in this case, there was no attempt made to introduce that evidence, I suppose if I were pressed, I would probably concede that he could in that situation to introduce evidence.

Unknown Speaker: (Inaudible)

Mr. Daniel M. Friedman: Well, I will prefer not to if I'm forced to, I'd say I would, I think.

Because I think that if in fact there were some valid grounds for non-production --

Unknown Speaker: (Inaudible)

Mr. Daniel M. Friedman: Because then -- that was not offered.

There's no -- there's never been any suggestion that there was any valid excuse for non-production.

Justice Felix Frankfurter: Are you -- are you taking the contention that he -- that he shut off at the trial because he gave no -- because of what happened at the -- before the Committee?

Mr. Daniel M. Friedman: No, I'm suggesting --

Justice Felix Frankfurter: (Inaudible) Mr. Goodman or Mr. Crockett had said, I'd like to explain why he didn't produce them.

Mr. Daniel M. Friedman: I -- I am not --

Justice Felix Frankfurter: And -- can you think of any justification for shutting off the defendant?

Mr. Daniel M. Friedman: Well, I think it could -- it's arguable.

I'm not attempting to --

Justice Felix Frankfurter: I'm not asking whether it's arguable, (Inaudible)

I want to know whether you with your responsibility to say that if you shut off (Inaudible) put against such a (Inaudible)

Mr. Daniel M. Friedman: Well I would -- I -- again, I -- I -- I cannot -- I personally think that if he would be permitted to introduce that, so I emphasized that that's no -- not before this Court.

Justice Felix Frankfurter: But that's a different story than what I asked you.

I asked you whether with your responsibility not just as an individual having a private meeting whether you are here to say that if at this trial, no matter what position, no matter -- taking the record as we have it, if at the trial, an offer has been made to explain why he didn't produce them.

Would you say that he'd be shut off in making that defense?

Mr. Daniel M. Friedman: I wouldn't think so much, Mr. Justice.

Justice Felix Frankfurter: Alright.

Justice Hugo L. Black: The trial court did (Inaudible)

Mr. Daniel M. Friedman: Well, it --

Justice Hugo L. Black: Isn't that the way he submitted it to the jury?

Mr. Daniel M. Friedman: He submitted it that way to the jury in the face --

Justice Hugo L. Black: Right.

And then that's what he's charged to do.

Mr. Daniel M. Friedman: In the face however, Mr. Justice --

Justice Hugo L. Black: I'm not talking about any face of any kind.

Mr. Daniel M. Friedman: But there was the --

Justice Hugo L. Black: Wasn't that this issue that was submitted to the jury?

Mr. Daniel M. Friedman: The issue --

Justice Hugo L. Black: If he say that whether the records and documents as he mentioned in the subpoena were actually just (Inaudible) the prevention of (Inaudible) of defendant.

Because if the defendant had a legitimate reason for failing to produce said records, he should state it as reason for noncompliance to the subpoena when you fail -- before the Subcommittee?

Mr. Daniel M. Friedman: That was the trial judge charged the (Voice Overlap) --

Justice Hugo L. Black: And even when he refused charges, it would've shown that the papers do not exist because they haven't proven that they did exist.

Mr. Daniel M. Friedman: That there was no -- there was no claim by --

Justice Hugo L. Black: I'm not come talking about the claim but what in this case they submitted to the jury on -- precisely the basis of that (Inaudible)

Mr. Daniel M. Friedman: The case was submitted to the jury on the theory that there was no issue to -- before the jury as to whether in fact he had possession of the document.

Justice Hugo L. Black: Gave the general charge on that issue in effect, it was -- was a civil case.

Mr. Daniel M. Friedman: No, I think not Mr. Justice.

Justice Hugo L. Black: Well, did he leave anything to the jury about it?

Mr. Daniel M. Friedman: He left to the jury to decide the ultimate question of willfulness.

Justice Felix Frankfurter: But the jury had passed on anything, could a jury, even a criminal jury, would it be proper for a trial judge to submit (Inaudible) to a jury that hasn't been established or haven't been intended or haven't even suggested as to which there was nothing in the record for him to guide the jury about.

Mr. Daniel M. Friedman: I would -- I would --

Justice Felix Frankfurter: (Inaudible) to the charges of putting the abstract to juries or issues they dealt with in the abstract after the jury gets through with it.

Justice Hugo L. Black: Well suppose that, do you mean then that -- that this implied confession from this input, one sentence, this implied confession that he had the paper, he could've produced them but didn't, that gives the court to deprive the jury of submitting that issue to the jury entirely.

Mr. Daniel M. Friedman: I think there was no issue Mr. Justice (Voice Overlap) --

Justice Hugo L. Black: Well, he didn't to -- what -- the indictment charge did and the only evidence you had to prove it if you had any was the fact that he had said, "I refuse to answer on the ground of self-incrimination."

Mr. Daniel M. Friedman: I think Mr. --

Justice Hugo L. Black: And they wanted charges to submit to the jury on whether or not there was proof that the (Inaudible)

Mr. Daniel M. Friedman: And we say that --

Justice Hugo L. Black: And he declined to give it, didn't he?

Mr. Daniel M. Friedman: That's right, because under the statute, he felt that that was not a pertinent issue to be --

Justice Hugo L. Black: Oh, no.

Mr. Daniel M. Friedman: -- decided by the jury.

Justice Hugo L. Black: Under the statute?

Mr. Daniel M. Friedman: Yes Mr. Justice, I think under the statute, is that --

Justice Hugo L. Black: In other words, he felt that there was no issue, that wouldn't have been a defense because he didn't raise it before the Committee.

Mr. Daniel M. Friedman: Or -- or before we know --

Justice Hugo L. Black: Wasn't that the reason?

Mr. Daniel M. Friedman: That's the stated reason but he also offered no evidence --

Justice Hugo L. Black: (Inaudible)

Mr. Daniel M. Friedman: -- before the jury Mr. Justice.

He -- if -- if he had a defense, if he had been -- not had these things, he could've tendered this issue before the jury.

He could then produce evidence to show that he did not have the records.

If --

Justice Hugo L. Black: Wouldn't that -- that's about the time (Inaudible) that the Government were so sure that he was an officer that it's so easy that the Committee (Inaudible) that they might have suggest -- they might have suggested to the Court that he was (Inaudible) he was an officer.

(Inaudible)

Justice Felix Frankfurter: In a murder case, this -- there's no suggestion of the self-defense, would it be error for a judge not be charged -- not to tell the jury of course if we find you -- this is actually self-defense, (Inaudible) convict him of murder in the first degree?

Mr. Daniel M. Friedman: I wouldn't think so.

I would --

Justice Felix Frankfurter: (Inaudible)

Mr. Daniel M. Friedman: I wouldn't think in a criminal case the judge has to (Inaudible) possible defenses that are outraged by the defense.

Justice Hugo L. Black: But suppose they offered tending to the confession?

This man said yes, he -- I -- I killed him over his (Inaudible)

Can the court then charge the jury there was nothing left to be decided by whether his guilty in a criminal case.

Mr. Daniel M. Friedman: No, but that I don't think is this case.

I think the -- the argument that we make with respect to the need for bringing these matters to the attention of the Committee permeates this whole case.

The issue with respect the pertinency, the scope of the subpoena similarly if in fact this man had any objection that he claims the subpoena was unduly broad.

If he claimed that the material sought was not pertinent, again, he should have given the Committee an opportunity to pass on these things.

The same basic problems we think exist with respect to whether in fact he does or does not have possession or custody of the documents.

I won't burden the court with that.

We've argued at length in our brief despite it to say that if he thought this was too burdensome, if he thought the subpoena was too broad, again, he should've brought it --

Unknown Speaker: Yes.

Mr. Daniel M. Friedman: -- to the Committee's attention and let the Committee have an opportunity to pass on it.

If he claimed the subpoena was not -- the documents were not pertinent, he could have then brought it before the Committee and given the Committee a chance to explain to him.

He didn't do either.

We think this Court's decision in the Barenblatt case indicates quite clearly that when you object to pertinency, and that of course too is an element of defense.

If it's just the pertinency, you got to make the objection before the Committee.

And that when you raise no objection before the Committee on these particular grounds, in effect you're telling the Committee you're not really very concerned about this.

And then as we go on to prove it in any event the subpoena in this case was not unduly broad and the documents in view of the broad scope that the Commission's inquiry were pertinent to the investigation.

Chief Justice Earl Warren: Mr. Friedman, I understood Mr. Goodman to read some portion of the charge to the effect that the -- the question of whether he had such records could not be an issue on that trial.

Mr. Daniel M. Friedman: That's correct.

He said it was not an issue.

He told that -- if I may Mr. Chief Justice, on page 67.

Chief Justice Earl Warren: Well then -- then how is that -- if that is true, how does that square with your opinion or your statement rather that -- that they could've introduced such testimony.

Mr. Daniel M. Friedman: Well, I think that charge has to be read in the line of the evidence before the Court.

Chief Justice Earl Warren: Well, I know, but -- but the -- a plea of not guilty raises every issue.

It raises every issue under -- under the indictment.

Mr. Daniel M. Friedman: The issue in the case was whether he had willfully refused to produce, that's --

Chief Justice Earl Warren: Yes.

Mr. Daniel M. Friedman: -- the indictment charge.

Chief Justice Earl Warren: Yes.

And -- and if he willfully failed to produce, it means that he had the documents and that there were such documents and -- and you were going to infer his guilt from the fact that he didn't deny that he had them at the Committee hearing.

Mr. Daniel M. Friedman: I -- I would suggest -- I mean, I suggest Mr. Chief Justice that the element as the elements of whether he had the documents and whether in fact the documents were in existence only need to be proven if he tended some issue as to whether as to whether -- as to those questions.

That when he does not raise any issue in the case and he's never raised any issue as to whether he did or did not have the power to produce these documents.

That when that issue is not tendered, that its never been tendered in this case, that there's no need for the Government to (Inaudible) this thing.

I want -- I'd like to close on this note if I may Mr. Chief Justice.

There's never been any contention in this case by the petitioner that he did not have the document whether the documents had not existed.

He's never made that contention at any point in this proceeding.

This whole contention has been that even though he refused to produce the documents without any explanation, the burden was upon the Government to affirmatively establish that he could've produced.

Now we thinking in the normal situation when someone is subpoenaed to produce documents, it's a reasonable inference that if he had an excuse for not producing, he would have said so.

And in these circumstances, we don't think the Government was required to affirmatively establish that policy.

Thank you.

Chief Justice Earl Warren: Very well.

Rebuttal of Ernest Goodman

Mr. Ernest Goodman: I don't -- I don't think I have any further argument but if there're any questions that the Court feels -- would like to ask or any explanation, I would (Inaudible).

Justice Potter Stewart: There's no self-incrimination in that issues Mr. Goodman?

Mr. Ernest Goodman: That is not an issue in the case, it only arises by reason of the argument of the issue.

Justice Potter Stewart: Only what?

Mr. Ernest Goodman: By reason of the argument that is made by the Government.

The Government's argument raises the issue as to whether in fact he did use the Fifth Amendment properly or whether he did not, the implication of the word, "I will not" raises the right of the witness before the Committee to use the Fifth Amendment.

Because of that argument, the issue was raised in a case in that way.

Justice Hugo L. Black: And also it might raise the question of what inference (Inaudible)

In fact, the case might (Inaudible)

Mr. Ernest Goodman: That's right.

And I -- perhaps I ought to just say this, counsel has repeatedly said that somehow (Inaudible) this man's attorney should have specifically as a special defense or an affirmative way raised the question of -- of possession and existence.

As a lawyer who has handled many criminal cases, this is the first time I have been told that other than a plea of not guilty, an attorney has to affirmatively raise the question of the failure of the prosecution to establish essential elements of a crime.

If, I as an attorney have that duty, I certainly then unaware of it and I -- I would --

Justice Charles E. Whittaker: Wouldn't that -- that construes however the conditions existing that (Inaudible) at the trial.

(Inaudible) whether that thing then apply, I'm asking you.

Of this question the Committee (Inaudible)

Was it not fair (Inaudible) for relief, asked to comply, was there something of that kind?

Was that raised (Inaudible)

Mr. Ernest Goodman: With respect to the issues of (Inaudible) subpoenaing and pertinency, I agree we have somewhat a different question and it's a more difficult.

We tried to answer it but we -- but with respect to the other matters to whether he has to say, "I -- I don't have the document", words to that affect, I don't think that he is required to do that at all.

He of course, if he has the documents in a representative capacity and does not produce them, he will be found guilty of contempt once the Government establishes that.

That is the chance a man takes.

But in the absence of such proof, a man doesn't have to say (Inaudible).

Chief Justice Earl Warren: Thank you Mr. Goodman.