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April 5, 1961


The opinion of the court was delivered by: Miner, District Judge.

  Edward A. Hintz was indicted on October 31, 1958, for violation of Section 192 of Title 2 of the United States Code Annotated (Revised Statutes Section 102, as amended by 52 Stat. 942), which provides:
    "Every person who having been summoned as a witness
  by the authority of either House of Congress to give
  testimony or to produce papers upon any matter under
  inquiry before either House, or any joint committee
  established by a joint or concurrent resolution of
  the two Houses of Congress, or any committee of
  either House of Congress, willfully makes default, or
  who, having appeared, refuses to answer any question
  pertinent to the question under inquiry, shall be
  deemed guilty of a misdemeanor, punishable by a fine
  of not more than $1,000 nor less than $100 and
  imprisonment in a common jail for not less than one
  month nor more than twelve months."

The indictment charged, in substance, that the Committee on Banking and Currency of the United States Senate had been conducting hearings pursuant to Public Law 601, 79th Congress, Sections 102(1)(d) (Rule XXV(1)(d) of the Standing Rules of the Senate) and 134(a) (60 Stat. 815, 831), 2 U.S.C.A. § 190b (a), and pursuant to Senate Resolution 155, 84th Cong., 2d Session; that the defendant had been duly summoned to testify before the Committee at its hearing on October 9, 1956, in Chicago, Illinois; that the defendant had come before the Committee, where he was duly directed to be sworn and to testify; that the defendant had refused so to be sworn and to testify; and that the defendant thereby willfully had made default in violation of the statute.

Defendant subsequently moved to dismiss the indictment, presenting several important legal issues. Both parties filed detailed, comprehensive briefs on all questions raised by the motion. This memorandum will deal with two of those questions.


The defendant complains that there is a fatal inconsistency in the charge of the indictment. He points to the allegation that he had "come before" the Committee pursuant to summons, and then to the conclusory charge that he "wilfully did make default." He next points to the allegation that he refused "to be sworn and to testify," and the supposed failure of the indictment to allege that he refused "to answer any question pertinent to the question under inquiry." Finally, he views the "wilful default" and "refusal to answer" branches of the statute as defining completely discrete and distinct offenses, and contends that activity coming under one must ipso facto be deemed non-violative of the other. In substance, the defendant interprets Section 192 as proscribing only conduct falling within one of two categories: (1) wilful disregard of summons, which defendant says is all that is meant by the statutory phrase "wilfully makes default," and (2) refusal, after having appeared, to answer questions which concern the substance of the subject under investigation, which defendant says is all that is meant by the statutory phrase "pertinent to the question under inquiry."

This Court is unable to adopt the propositions so urged, predicated as they are upon a misapprehension of both the purpose and the provisions of Section 192. The "default" which, when wilful, violates the statute, refers to a failure "to give testimony or to produce papers" upon a matter under inquiry before the Congress or its Committee. Such default can as well occur by refusal to testify as by refusal to appear. The statute proscribes every wilful failure to comply with summons, not merely the failure to appear pursuant to summons.

This interpretation of the provisions of the so-called "first branch" of Section 192 accords with its purpose as expressed by Mr. Chief Justice Vinson in United States v. Bryan, 1950, 339 U.S. 323, 329-330, 70 S.Ct. 724, 729, 94 L.Ed. 884, rehearing denied 339 U.S. 991, 70 S.Ct. 1018, 94 L.Ed. 1391:

    "It is clear that R.S. § 102 is designed to punish
  the obstruction of inquiries in which the Houses of
  Congress or their committees are engaged. If it is
  shown that such an inquiry is, in fact, obstructed by
  the intentional withholding of documents, it is
  unimportant whether the subpoenaed person proclaims
  his refusal to respond before the full committee,
  sends a telegram to the chairman, or simply stays
  away from the hearing on the return day. His
  statements or actions are merely evidence from which
  a jury might infer an intent to default. A proclaimed
  refusal to respond, as in this case, makes that
  intent plain. But it would hardly be less plain if
  the witness embarked on a voyage to Europe on the day
  before his scheduled appearance before the committee.
    "Of course a witness may always change his mind. A
  default does not mature until the return date of the
  subpoena, whatever the previous manifestations of
  intent to default. But when the Government introduced
  evidence in this case that respondent had been
  validly served with a lawful subpoena directing her
  to produce records within her custody and control,
  and that on the day set out in the subpoena she
  intentionally failed to comply, it made out a prima
  facie case of wilful default."

The allegation in the indictment that defendant refused to be sworn and to testify is sufficient to charge, not only that he made wilful default, but also that, having appeared, he refused to answer questions pertinent to the question under inquiry.*fn1 See United States v. Josephson, 2 Cir., 1947, 165 F.2d 82, certiorari denied 333 U.S. 838, 68 S.Ct. 609, 92 L.Ed. 1122, rehearing denied 333 U.S. 858, 68 S.Ct. 731, 92 L.Ed. 1138; Eisler v. United States, 1948, 83 U.S.App.D.C. 315, 170 F.2d 273, certiorari granted 335 U.S. 857, 69 S.Ct. 130, 93 L.Ed. 404, certiorari dismissed 338 U.S. 883, 70 S.Ct. 181, 94 L.Ed. 542. Indeed, the mere charge of refusing to be sworn sufficiently charges a violation of the so-called "second branch" of the statute. There is no question more pertinent to a subject under investigation than the question whether the witness before the tribunal will answer truthfully.

The defendant is mistaken in his view that, having appeared before the committee pursuant to a subpoena requiring that he appear and testify, he could be charged only for refusing to answer pertinent questions rather than for wilful default. He further errs when he urges that his refusal to be sworn and to testify is not sufficient to charge a refusal to answer pertinent questions.


Defendant further attacked the indictment by asserting that the circumstances under which he was being asked to testify were such that any attempt to punish him for his refusal would constitute an unlawful interference with his "legal" and "moral" rights. In substance, he contends that such refusal cannot be contumacious when it is made in the presence of, and purports to be predicated upon an inability to testify ...

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