Before EDGERTON, Chief Judge, and PRETTYMAN and WILBUR K. MILLER, Circuit Judges.
UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT.
Judgment Vacated June 28, 1957.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MILLER
WILBUR K. MILLER, Circuit Judge.
In May, 1953, the Congressional Committee on Un-American Activities was investigating, through a subcommittee, the activities of Communists in the field of education. Marcus Singer, called as a witness, testified freely that some years before, when he was on the teaching staff of Harvard University, he had been a member of a Communist Party group and had frequently attended its meetings. But he repeatedly refused to answer when asked about others with whom he had associated in that activity, basing his refusal on honor, conscience and fear of self-incrimination. The subcommittee rejected his reliance on the Fifth Amendment and directed him to answer. He continued to refuse.
The House of Representatives adopted a resolution *fn1 directing that his contumacy be certified to the United States Attorney for presentation to the grand jury. As a result Singer was indicted in 22 counts for refusing, in violation of 2 U.S.C. § 192, *fn2 to answer as many questions propounded to him by the subcommittee. We are concerned here only with Count 11, under which Singer was convicted, fined $100.00, and given a suspended jail sentence of three months, from which conviction he appeals. This count was based on his refusal to answer the following question:
"Now, these people we have mentioned up to this time - Robert G. Davis, Wendell H. Furry, Isador Amdur, Norman Levinson, John H. Reynolds, Dirk Struik, William Ted Martin, Lawrence Arguimbau, and Helen Deane Markham - did they attend these meetings to which you testified yesterday?"
The principal reason for reversal urged by the appellant is that the District Court erred in rejecting his reliance on the Fifth Amendment as justifying his refusal to answer. He suggests that an affirmative answer to the question in Count 11 would have subjected him to real danger of prosecution under the Smith Act, 54 Stat. 671 (1940), 62 Stat. 808 (1948), 18 U.S.C. § 2385. The pertinent portion of this statute is:
"Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof -
"Shall be fined not more than $10,000 or imprisoned not more than ten years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction."
Singer's previous disclosures to the subcommittee, briefly noted above, will be more fully summarized. The Communist Party group with which he met fairly regularly when he was teaching at Harvard University numbered 14 or 15 at the most, with seven or eight usually present at the meetings. The group was not disciplined as to attendance. Its members discussed Marxian philosophy, believed in its application, and attempted to apply it to present-day events. Singer considered himself a Communist, had supported the Communist program, and had contributed money to the Daily Worker and the Communist Party. He agreed that, from a long range viewpoint, Communism is a conspiracy to overthrow the government, but said that he himself did not conspire with anybody, and that he and the other members of his group did nothing subversive. The person who solicited him to join the group was on the staff at Harvard and those who attended its meetings were associated in some capacity with Harvard or Massachusetts Institute of Technology.
Whether this testimony, freely given by the appellant to the subcommittee, was in itself incriminatory, we need not decide. For if it was, an answer to the Count 11 question would not have increased the danger of prosecution under the Smith Act, as we shall show.On the other hand, if the freely-made disclosures were not incriminating, an affirmative answer to the critical question could not have made them so, as will appear. The result is the same in either event.
We consider the first alternative: that Singer's testimony already given concerning his Communist Party group had stamped it as a "society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence" within the meaning of the Smith Act. If his testimony had that effect, Singer had incriminated himself before he was asked the Count 11 question, for he had also said he had affiliated with the group and knew its purposes. He told the subcommittee flatly that he considered himself a Communist. He thus indubitably identified himself with the Communist cause. An admission that certain named persons, no matter who they were, attended the meetings could not have added to the self-incrimination which was already complete.
We turn to the second alternative: that Singer's testimony already freely given concerning his Communist Party group did not identify it as a "society, group, or assembly" of the sort described in the Smith Act. He insists it was not such an organization but was an innocent assembly of intellectuals; and that his disclosures to the subcommittee were therefore not incriminatory under the Smith Act. But he argues he might have incriminated himself by an affirmative answer to the Count 11 question because the nine persons about whom he was asked were what he terms "hardcorps3" ...