UNITED STATES v. WELDEN

Print this transcript Transcript: 

Argument of Irwin A. Seibel

Chief Justice Earl Warren: Number 235, United States, Appellant, versus William C. Welden.

Mr. Seibel.

Mr. Irwin A. Seibel: May it please the Court.

This is a direct appeal from a judgment of the District Court for the District of Massachusetts, dismissing an indictment on the ground that appellee had obtained immunity by virtue of testimony he gave before a congressional subcommittee.

The issue on this appeal is whether a person testifying before a congressional subcommittee is testifying in a preceding suit or prosecution under the antitrust laws and thereby obtains immunity under the 1903 Act applicable here with respect to all matters covered by his testimony.

Appellee is a member of the senior board of executives of H.P. Hood & Sons, a processor and distributor of milk and dairy products from the New England area.

He's also in charge of three of its departments, government relations, economic research and purchasing.

In February 1960, he was subpoenaed to testify before a Special Subcommittee of the House Select Committee on Small Business.

The House Select Committee had been authorized by a House Resolution to study and investigate the problems of small business and its Chairman had appointed a special subcommittee to look into the problems of small business in the dairy industry.

On February 18, 1960, appellee appeared with his counsel in Boston before the Special Subcommittee and gave testimony.

During the course of his testimony at no time did he claim his privilege against self-incrimination, although we recognize that such a claim was unnecessary if this were a proceeding, a hearing before a congressional committee, were a proceeding to which the statute in question were applicable.

Appellee's testimony contained --

Justice Potter Stewart: In other words, if the statute is applicable -- if this is a proceeding --

Mr. Irwin A. Seibel: Precisely.

Justice Potter Stewart: -- it's not necessary to make the claim or the privilege in order to -- for the immunity to become an operative procedure.

Mr. Irwin A. Seibel: That's right, sir.

Right.

Justice John M. Harlan: It's automatic (Inaudible)

Mr. Irwin A. Seibel: Yes, Your Honor.

Justice John M. Harlan: In other words the (Inaudible).

Mr. Irwin A. Seibel: No, Your Honor, this Court in the Monia case which we have cited in our brief so held.

Justice John M. Harlan: (Inaudible)

Mr. Irwin A. Seibel: Yes, Your Honor.

Appellee's testimony contained no admission of wrongdoing but it bore a sufficient relationship to the matters covered by the indictment so that if this were a proceeding to which the statute is applicable, such as a grand jury proceeding for example, appellee would have obtained immunity.

So, the problem on this appeal, Your Honors, is whether a hearing before a congressional committee is the kind of proceeding to which the immunity provision here in question is applicable.

In April 1962, an indictment was returned against appellee, his company and others, charging the violation of the Sherman Act and of the conspiracy statute.

The indictment charged the defendants with, among other things, with price fixing and of engaging in collusive bidding for contract awards from federal state and municipal institutions.

Appellee moved to dismiss the indictment on the ground that he had -- he had obtained immunity by virtue of his testimony before the congressional committee.

The District Court granted his motion and dismissed the indictment as to appellee.

It held that a hearing before a congressional committee is a proceeding under the antitrust laws within the meaning of the statute here in question and that therefore appellee had obtained immunity.

The District Court felt that it would be unfair to require a man to stand trial for conduct about which he had given testimony before a special committee of -- before a committee of Congress pursuant to its subpoena power.

Our position is that the immunity provision here in question was never meant to apply to a congressional hearing, that it was only intended to apply to a judicial proceeding in which the claimant of immunity was called to testify at the instance of the Attorney General, a judicial proceeding as distinguished from a congressional hearing.

Justice John M. Harlan: (Inaudible)

Mr. Irwin A. Seibel: Well, we think so but that question needn't be to -- need to be resolved on -- on this appeal, Your Honor.

Unknown Speaker: (Inaudible)

Mr. Irwin A. Seibel: He would have to -- yes, Your Honor.

If he were given immunity under the District Court's decision, the Committee could require -- could compel testimony, self-incriminating testimony.

This Court --

Justice Potter Stewart: He might -- he might be able the -- to successfully refuse to testify on some other --

Mr. Irwin A. Seibel: Oh, yes.

Justice Potter Stewart: -- constitutional or otherwise.

Mr. Irwin A. Seibel: Oh, yes.

Justice Potter Stewart: Sixth Amendment or First Amendment?

We've been hearing about a good name.

Mr. Irwin A. Seibel: It's the privilege against self-incrimination that would be lost to him by -- by giving him immunity, yes, Your Honor.

In fact, this Court has so held in Hale versus Henkel which -- to which I will refer, although some three years after this statute was passed.

That in a -- in giving testimony before a grand jury, the witness was required to give self-incriminating testimony because immunity is given in that type of proceeding.

Now, in support of our position that immunity is given only in a judicial proceeding, we rely on the language of the statute which we think is compelling.

We rely on the legislative history.

We rely also, more important, on the history of what Congress did when it focused specifically on the problem of whether or not to grant its committees the power to give immunity.

I -- I shall draw briefly in the course of my argument with the language and the legislative history, but I should like to dwell at some length on the history of what Congress did when it focused specifically on the problem whether or not to give its committees the power to confer immunity.

If Your Honors will turn with me to page 9 of the Government's brief, we have set forth the pertinent language of the provision Your Honors are called upon to construe.

This paragraph, which we have set -- which is set forth in indented fashion on page 9, was enacted as part of the General Appropriations Act of 1903 and follow immediately after the general appropriation for the Department of Justice.

Your Honor will note that the first clause of that sentence, which is quoted, provides that for the enforcement of the various Acts there specified, the Sherman Act etcetera, a special additional appropriation is made for the Attorney General to conduct proceedings, suits and prosecutions under said Acts namely, the Sherman Act etcetera, in the courts of the United States.

And then in the immediately next clause, the immunity provision is -- is follows, it gives immunity for a testimony in any proceeding suit or prosecution under said Acts.

Now, if we were to confine ourselves alone to the immunity provision, we see the testimony -- that immunity is given only for testimony in a proceeding suit or prosecution under said Acts, under the Sherman Act etcetera.

Justice William O. Douglas: -- provision became 15 U.S. Code 32.

Mr. Irwin A. Seibel: I think it was codified --

Justice William O. Douglas: Is this reenactment or is this revision or what?

Mr. Irwin A. Seibel: No, this is not a reenactment, Your Honor.

This is not positive law in 15 U.S.C. 32.

This is just codification -- it hasn't been --

Justice William O. Douglas: What -- when did the phrase in the courts of the United States drop out?

Mr. Irwin A. Seibel: It hasn't dropped out, Your Honor.

It -- it didn't appear in the immunity provision in -- in -- the immunity provision, Your Honor, is contained in the latter half of the sentence.

Justice William O. Douglas: I understand that.

Mr. Irwin A. Seibel: It never contained in the courts of the United States.

Justice William O. Douglas: Yes.

But it -- it dropped out from -- from the -- suddenly on 15 U.S. Code 32.

Mr. Irwin A. Seibel: Yes, Your Honor, that -- that -- the first part applied only to the appropriation.

Justice William O. Douglas: Yes.

Mr. Irwin A. Seibel: And so it -- it was never included in 15 U.S.C. 32.

If we confine ourselves to the immunity provisional alone --

Justice William O. Douglas: But does the revision throw any light upon the -- that phrase in the courts of United States?

Mr. Irwin A. Seibel: I don't know, Your Honor.

Looking at the immunity provision alone, we see that immunity is given only for testimony in a proceeding under said Acts, namely the Sherman Act etcetera.

Now, hearings of congressional committees are conducted under the rules adapted by either House and or as in the instant case, under a special resolution.

They have never been considered proceedings under the antitrust laws.

So that even confining ourselves to the latter portion of that sentence, we have trouble with the District Court's decision.

If we read it in context in relation to the clause immediately preceding it on page 9, we think that District Court's error becomes quite apparent.

The first clause, Your Honors will recall, makes a special additional appropriation for the Attorney General to conduct proceedings, suits and prosecutions under said Acts in the courts of the United States.

And in the next succeeding clause, an immunity is given for testimony in a proceeding suit or prosecution under said Acts.

Now, unless the same phrase "proceeding, suit or prosecution" in the two successive clauses of the same sentence was intended to have different meanings and there's no indication of any such intention, then we submit that the immunity provision, like the appropriation provision in the immediately preceding clause, was intended to apply only to a proceeding in the courts of the United States.

Justice John M. Harlan: (Inaudible)

Mr. Irwin A. Seibel: Yes, Your Honor, and I will come to that but first, immunity statute ever past was a one relating specifically to testimony before a congressional committee.

I should like to come to that in a minute.

Not long after this statute was passed, this Court had occasion in Hale versus Henkel to consider the applicability that the type of proceeding to which this immunity applies.

And it was taken for granted in that case that it applied only to a judicial proceeding.

The only question there was whether a grand jury proceeding was a judicial proceeding.

I should like to say a word about the legislative history.

I think Your Honors will find I -- that the legislative history shows that in tacking on this particular paragraph to the General Appropriations Act, that Congress meant to give the Attorney General two weapons, one, a special additional appropriation over -- over and above that which had been given to the Department of Justice and two, the power to compel testimony.

There isn't the remotest suggestion that immunity was intended to be given, isn't the remotest suggestion of the legislative history that immunity was ever meant to apply to a hearing before a congressional committee.

Now, if there were any doubts left as to whether or not Congress meant for its committees to have this power, we think those doubts will be dispelled by a reference to the history of what Congress did when it was focusing on the problem of whether or not to give its committees this power.

Unknown Speaker: (Inaudible)

Mr. Irwin A. Seibel: Now I come to your question, Mr. Justice Harlan.

This history shows that after some rather unhappy experiences under an 1857 statute, applying specifically to testimony given before congressional committees, Congress, by unanimous vote of both Houses, repealed it and refused some 20 years later to reinstate the provision because it concluded, and I will spell this out in detail, that it would rather not give its committees the power to confer immunity even though this meant, they would be without the power to compel a testimony, than give its committees this power and risk serious abuse by having indictments quashed and so forth.

That when it finally did give its committees the power in 1954, in the Immunity Act of 1954, which is not involved here for construction, it did so reluctantly and only under carefully prescribed safeguards, and I shall spell that out.

The 1857 statute to which I referred, applied specifically to testimony before a congressional committee and gave complete immunity from prosecution.

This was repealed in five years by unanimous vote -- vote of both Houses as a result of many indictments being quashed because of the indictees appearing before congressional committees.

One was a very dramatic case of a person in interior stealing or being accused of stealing some millions of dollars worth of bonds and the other was a former Secretary of War who had been indicted and obtained immunity by being called before a congressional committee.

The problem came up again in 1876 in connection with the impeachment proceedings of Secretary of War Belknap.

The House passed a bill, which in substance, sought to reinstate the 1857 broad immunity provisions.

And the Senate fiercely resisted the passage of this bill, recalled in its lengthy adverse report, the unhappy experiences under the earlier immunity provision which applied specifically to congressional committees, pointed out that the course of justice would better be served with -- without this provision and with it, made reference to the fact that there are 75 standing committees, this was in 1876, 50 special committees, members of both political persuasions on this committees and referred to the serious risk of abuse of this power given to its committees.

Now, there was no other legislation which was passed between 1862 at the time of repeal of the 1857 provision.

In 1954, when Congress again for the first time passed the Immunity Act of 1954 and the lengthy debate as to the 1954 Act was on the issue of whether or not any immunity should be given to its congressional committees.

And when it was finally enacted, the statute was hedged with careful safeguards.

If -- if congressional committees were limited in their power to confer immunity only in areas of the national defense or security, the witness had to make an affirmative claim of his privilege against self-incrimination.

Two-thirds of the full committee had to vote on an application to grant immunity.

An order of court was necessary.

The Attorney General had to be noted -- notified at each proposed grant and of each application before the Court and given an opportunity to be heard in Court on the application for the grant.

Contrast this history, Your Honors, and the care -- the care with which Congress safeguarded the grant of the immunization power when it finally made it and the consequences of the District Court's decision, under the District Court's decision, all that a witness needs to do is testify in response to a subpoena.

No need to claim his privilege under the statute, there's no need for a vote by the Committee, no order of court is necessary, the Attorney General need not be notified, all he does is testifies and he gets immunity.

We submit, Your Honor, that such a construction of the statute should not be made unless the language were compelling.

And here, as we have urged, a contrary construction is compelling.

My brother, Lewald, will refer to the oral opinion of a district judge in the Armour case decided in 1906.

He places a great deal of reliance on that case, however, that was a case, Your Honors, which did not involve testimony before a congressional committee.

It is true that in that case, the investigation made by the Commissioner of Corporations of the Beef Trust was made pursuant to a resolution of Congress.

However, in that case, the investigation was made by the Commissioner of Corporations.

And this is a vital distinction because the whole history of what Congress wanted done, when it focused on the problem of testimony -- of giving its committees that power, was to draw a sharp distinction between a proceeding before a congressional committee and that -- before any proceeding in the courts or before an administrative agency.

Justice Potter Stewart: The Commissioner of Corporations was -- was what the -- is that an executive branch in this (Voice Overlap)?

Mr. Irwin A. Seibel: Yes, Your Honor.

The Commission of Corporations was the predecessor of the Federal Trade Commission and was a -- he was a creature of the Act which created the Department of Commerce in 1903.

And the Commissioner of Corporations was given the same powers to compel testimony as the Interstate Commerce Commission had given by the Compulsory Testimony Act of 1893.

Now, the case -- this particular case, the Armour case involved other factors with which I didn't want to burden the Court.

But in that case, since Your Honors asked, in that case, the Commissioner of Corporations had investigated some of the meatpacking companies and on the assurance that he would not disclose the information he obtained to other federal agencies, specifically the Department of Justice, he was given this information.

It was not a proceeding before a congressional committee.

We think that fact is dispositive.

Nevertheless, according to the District Court, the Commissioner of Corporations didn't turn that over to the depart -- the information over to the Department of Justice and that is a fact to which the district judge in his oral opinion, refers as carrying some weight in the course of this decision.

Thank you.

Chief Justice Earl Warren: Mr. Lewald.

Argument of George H. Lewald

Mr. George H. Lewald: Mr. Chief Justice, may it please -- may it please the Court.

First of all, the question here decided by the District Court, ruling of the District Court, was not that anybody, who testified before a congressional committee pursuant to subpoena and under oath, acquired immunity but before a congressional committee investigating violations of the antitrust laws, of course with an ultimate and a primary purpose, for legislation.

The Government contends and seeking to overturn the decision below that the witness did not obtain immunity from prosecution as to matters about which he testified before a congressional committee, specifically investigating the antitrust laws.

Now, argument can be grouped into three headings, one, a plain reading of the statute involved, two, that the statute applies only to judicial proceedings brought under the direction of the Attorney General and three, reasons of history and policy.

We submit that the Government has to -- the first section of their argument has proved too much.

In attaching the immunity provision to the appropriations section of the statute and to read the immunity proviso, as if it said such proceedings, would mean that the immunity proviso would run out when the $500,000 appropriation ran out and certainly that -- the Government doesn't contend with that at all.

Now, the Government's contention that this immunity statute applies only to judicial proceedings brought under the direction of the Attorney General, was disposed of with the passage of the Act of June 30, 1906, wherein the Congress saw it in the light of the Armour decision, so the decision by District Court in Northern District of Illinois to declare its intent and define the right to immunity of witnesses under this Immunity Act, the Act of February 25, 1903.

Now, the Armour case result -- arose as a result of a resolution of the House of Representatives requesting that the Secretary of Commerce and Labor investigate the low prices of beef cattle and to report his findings as to whether or not these prices resulted or had resulted from any combination in restraint of trade.

Now, in obedience to this resolution, the Secretary directed the Commissioner of Corporations to conduct the inquiry and thereafter the Commissioner traveled to Chicago and he met with the officers of the leading meatpacking companies.

And he explained his mission as it had been set out in a congressional resolution.

He informed the meatpackers that he was acting independently and that he was not acting in cooperation with the Attorney General.

And he proceeded with the investigation.

A few months after his report reached the Congress, an indictment was returned under the Sherman Act.

The defendant meatpackers claimed immunity on the basis of the informal discussions that they have had with the Commissioner of Corporations during his investigation of the low prices of beef cattle.

They asserted immunity under two statutes, one, the Act here in question, the Act of February 25, 1903 and also under the Act setting up the Department of Commerce and Labor which had incorporated in that Act the immunity provisions of the compulsory testimony of statute of 1893.

The Government urged that this latter Act was not applicable when no defendant in the investigation conducted by the Commission of Corporations had been subpoenaed or had testified under oath as required by that Act.

The District Court sustained the defendant's pleas immunity on both -- under both statutes.

And while finding that the necessary degree of compulsion was, nevertheless, present, despite the absence of a subpoena and despite the absence of an oath, the Court further noted that under the Act here in question, no such prerequisites were required.

The Act of February 25, 1903 at that time did not require a subpoena or an oath in order for immunity to attach.

This case became a national consulate.

The President, in a special message, called upon the Congress to pass a declaratory act to set aside the District Court's misconception of the congressional purpose.

A bill to declare the true intent and meaning of the Immunity Act was drafted by the Attorney General and introduced in the Congress.

Now, what is of significance here is that with the attention of the President, the Attorney General and the Congress riveted on this Armour decision, the District Court's holding in that decision that immunity under the Act here in question, was available to a witness appearing before an investigatory body in proceedings outside of the courts and not under the direction of the Attorney General but conducted for primarily a congressional purpose that is with an aid to legislation.

All of these things were taken for granted.

What was upsetting however was that immunity had been extended to witnesses who were in effect volunteers and as stated by this Court in Monia -- United States-Monia, 317, United States 424.

The decision attracted public interest since if it stood, one could immunize himself from prosecution by simply volunteering information to investigatory bodies.

The result of all this was the Act of June 30, 1906, defining the right to immunity of witnesses.

And where the Armour decision directly before it, the only change in the immunity statute which Congress saw fit to make, was to impose a requirement that henceforth, testimony be given pursuant to subpoena and taken under oath.

Summing up the congressional policy as to this legislation, this Court stated in Monia at page 429, "It is evident that Congress, by the earlier legislation, opened the door to a practice whereby the Government might be trapped into conferring unintended immunity by witnesses volunteering to testimo -- to testify.

The amendment was thought, as a congressional record demonstrates, to be sufficient to protect the Government's interest by preventing immunity, unless the prosecuting officer or other Government official concerned, should compel the witness -- witnesses' attendance by a subpoena and have them sworn."

And going on to spell out the meaning of this statute in Monia at page 430, this Court said, “The legislation involved is plain in its terms and on its face mean to the layman that here, if he is subpoenaed and sworn, he is to have immunity."

Unknown Speaker: (Inaudible)

Mr. George H. Lewald: No, sir, it was not.

That was the investigation that was conducted pursuant to a congressional resolution by the Commissioner of Corporations whose report was returned -- was sent to the Congress.

Now, the -- but the parallel of the foregoing to the case at bar is precise, except that here, in this instance, Congress elected to have the investigation, conducted by one of its own committees.

The only difference, we submit, in the Armour case and the case here at hand, both started by congressional resolutions from the House of Representatives, both seeking to inquire as to violations of the antitrust laws.

And the only difference here is that in this case, Congress elected to have the investigation conducted by one of its own committees.

Now, while it is true that congressional committees no longer have blanket independent immunity power of their own with respect to all investigating proceedings, it doesn't follow from this, that a committee investigating violations of the antitrust laws somehow changes the existing legislation in this field as been interpreted by this Court.

And that this legislation is somehow to receive a different construction simply because the investigatory body also happens to be a congressional committee.

Now, here, in this case, the appellee was subpoenaed.

And he gave sworn testimony before an investigatory body, which was investigating antitrust violations as was conceded by the Government.

Concededly, his testimony was substantially connected with the indictment, as the Government concedes in its brief.

Now, under these facts as stated in Monia, applying the test of what this legislation means in Monia, he -- the appellee here is to have immunity.

If the Government asks in effect and seeks to have this Court read into this immunity legislation under the antitrust laws, which Congress itself hasn't seen fit to change for over 50 years, an exception, the result of this exception would not only deny the appellee immunity here but will able -- enable the Government to treat the appellee's testimony as if he were a volunteer before the committee in the first instance, as if he sought out the Committee and wanted to testify the Committee, testify before the Committee, as obviously the record shows he is not.

Justice John M. Harlan: Does -- does the record indicate one way or the other, whether your client or -- when he appeared before the congressional committee, didn't claim his privilege against this self-incrimination and reliance on this immunity statute?

Mr. George H. Lewald: The -- the record has been certified to this Court but doesn't and hasn't been printed.

There is no mention of a claim of Fifth Amendment of self-in -- claim against --

Justice John M. Harlan: Oh, I realized that in --

Mr. George H. Lewald: -- giving self-incriminatory.

Justice John M. Harlan: -- in failing to make such a claim, it is -- is there anything to indicate whether he -- nobody likes to claim the Fifth Amendment as they have to?

Mr. George H. Lewald: We read the record -- record a little differently from -- from the Government.

The counsel present here was counsel of the appellee's employer, not counsel for -- for Mr. Welden, the appellee.

And there -- we -- there is nothing in the record itself as to what Mr. Welden's state of mind was --

Justice John M. Harlan: Yes.

Mr. George H. Lewald: -- at the time he appeared before this Committee.

But it was conceded by the Government that there were no factual matters in issue.

This concession was made below.

The only thing that the Government contested was the legal sufficiency of the evidence.

So, I think we can assume from them -- from that, that we must or if this Court is to infer what the defendant felt or the appellee felt at that time he testified.

We must infer from the state of the record that he thought he had immunity as a result of being subpoenaed and testifying under oath under this legislation, before an investigatory body, investigating violations of the antitrust laws.

Justice Byron R. White: (Inaudible) I gather you wouldn't really have to testify before the congressional committee, would you?

You'd -- if you just furnish documents under subpoena, you have to stay with the immunity.

Mr. George H. Lewald: No, sir.

No, it would have -- on --

Justice Byron R. White: You have to actually be sworn and testify.

Mr. George H. Lewald: Be sworn and testify as to matters substantially connected with the indictment as is conceded here under the rule on the Hickey case.

Unknown Speaker: (Inaudible)

Mr. George H. Lewald: This is reported 227 United States.

Chief Justice Earl Warren: Mr. Seibel.

Rebuttal of Irwin A. Seibel

Mr. Irwin A. Seibel: I have nothing further, Your Honor.