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Russell v. United States (369 U.S. 749)/Opinion of the Court

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United States Supreme Court

369 U.S. 749

Russell  v.  United States (369 U.S. 749)

 Argued: Dec. 6, 7, 11 and 12, 1961. --- Decided: May 21, 1962

In these six cases we review judgments of the Court of Appeals for the District of Columbia, [1] which affirmed convictions obtained in the District Court under 2 U.S.C. § 192, 2 U.S.C.A. s 192. [2] Each of the petitioners was convicted for refusing to answer certain questions when summoned before a congressional subcommittee. [3] The cases were separately briefed and argued here, and many issues were presented. We decide each case upon a single ground common to all, and we therefore reach no other questions.

In each case the indictment returned by the grand jury failed to identify the subject under congressional subcommittee inquiry at the time the witness was interrogated. The indictments were practically identical in this respect, stating only that the questions to which answers were refused 'were pertinent to the question then under inquiry' by the subcommittee. [4] In each case a motion was filed to quash the indictment before trial upon the ground that the indictment failed to state the subject under investigation at the time of the subcommittee's interrogation of the defendant. [5] In each case the motion was denied. In each case the issue thus raised was preserved on appeal, in the petition for writ of certiorari, and in brief and argument here.

Congress has expressly provided that no one can be prosecuted under 2 U.S.C. § 192, 2 U.S.C.A. § 192 except upon indictment by a grand jury. [6] This Court has never decided whether the indictment must identify the subject which was under inquiry at the time of the defendant's alleged default or refusal to answer. [7] For the reasons that follow, we hold that the indictment must contain such an averment, and we accordingly reverse the judgments before us.

In enacting the criminal statute under which these petitioners were convicted Congress invoked the aid of the federal judicial system in protecting itself against contumacious conduct. Watkins v. United States, 354 U.S. 178, 207, 77 S.Ct. 1173, 1189, 1 L.Ed.2d 1273. The obvious consequence, as the Court has repeatedly emphasized, was to confer upon the federal courts the duty to accord a person prosecuted for this statutory offense every safeguard which the law accords in all other federal criminal cases. Sinclair v. United States, 279 U.S. 263, 296-297, 49 S.Ct. 268, 272-273, 73 L.Ed. 692; Watkins v. United States, supra, 354 U.S. at 208, 77 S.Ct. at 1189; Sacher v. United States, 356 U.S. 576, 577, 78 S.Ct. 842, 843, 2 L.Ed.2d 987; Flaxer v. United States, 358 U.S. 147, 151, 79 S.Ct. 191, 193, 3 L.Ed.2d 183; Deutch v. United States, 367 U.S. 456, 471, 81 S.Ct. 1587, 1595, 6 L.Ed.2d 963.

Recognizing this elementary concept, the Sinclair case established several propositions which provide a relevant starting point here. First, there can be criminality under the statute only if the question which the witness refused to answer pertained to a subject then under investigation by the congressional body which summoned him. '(A) witness rightfully may refuse to answer where * * * the questions asked are not pertinent to the matter under inquiry.' Sinclair v. United States, supra, 279 U.S. at 292, 49 S.Ct. at 271. Secondly, because the defendant is presumed to be innocent, it is 'incumbent upon the United States to plead and show that the question (he refused to answer) pertained to some matter under investigation.' Id., at 296-297, 49 S.Ct. at 273. Finally, Sinclair held that the question of perti nency is one for determination by the court as a matter of law. Id., at 298, 49 S.Ct. at 273.

In that case the Court had before it an indictment which set out in specific and lengthy detail the subject under investigation by the Senate Committee which had summoned Sinclair. The Court was thereby enabled to make an enlightened and precise determination that the question he had refused to answer was pertinent to that subject. Id., at 285-289, 296-298, 49 S.Ct. at 269-270, 272-273.

That the making of such a determination would be a vital function of the federal judiciary in a prosecution brought under 2 U.S.C. § 192, 2 U.S.C.A. § 192 was clearly foreseen by the Congress which originally enacted the law in 1857. [8] Congress not only provided that a person could be prosecuted only upon an indictment by a grand jury, but, as the record of the legislative debates shows, Congress was expressly aware that pertinency to the subject under inquiry was the basic preliminary question which the federal courts were going to have to decide in determining whether a criminal offense had been alleged or proved. The principal spokesman for the bill, Senator Bayard, repeatedly made this very point:

'The bill provides for punishing a witness who shall refuse to answer any question 'pertinent' to the matter of inquiry under consideration before the House or its committee. If he refuses to answer an irrelevant question, he is not subject to the penalties of the bill. The question must be pertinent to the subjectmatter, and that will have to be decided by the courts of justice on the indictment. That power is not given to Congress; it is given appropriately to the judiciary.' Cong. Globe, 34th Cong., 3d Sess. 439 (1857).

'This law does not propose to give to this miscellaneous political body the power of punishment; but one of its greatest recommendations is, that it transfers that power of punishment to a court of justice after judicial inquiry. All that is to be done in the case of a refusal to testify is to certify the fact to the district attorney, who is to lay it before the grand jury, and if the party is indicted he is bound to answer according to the terms of the law, as any other person would for an offense against the laws of the land. * * * I am aware that legislative bodies have transcended their powers-that under the influence of passion and political excitement they have very often invaded the rights of individuals, and may have invaded the rights of coordinate branches of the Government; but if our institutions are to last, there can be no greater safeguard than will result from transferring that which now stands on an indefinite power (the punishment as well as the offense resting in the breast of either House) from Congress to the courts of justice. When a case of this kind comes before a court, will not the first inquiry be, have Congress jurisdiction of the subject-matter?-has the House which undertakes to inquire, jurisdiction of the subject? If they have not, the whole proceedings are coram non judice and void, and the party cannot be held liable under indictment. The Court would quash the indictment if this fact appeared on its face; and if it appeared on the trial they would direct the jury to acquit.' Cong. Globe, 34th Cong., 3d Sess. 440 (1857).

'* * * The law prescribes that, in case of such refusal, the House shall certify the fact to the district attorney, and he shall bring the matter before the grand jury. When that comes up by indictment before the court, must not the court decide whether the question put was pertinent to the inquiry? Of course they must; and they cannot hold the party guilty without doing it.' Cong. Globe, 34th Cong., 3d Sess. 444-445 (1857).

These forecasts of the office which the federal courts would be called upon to perform under 2 U.S.C. § 192, 2 U.S.C.A. § 192 have been amply borne out by the cases which have arisen under the statute. The crucial importance of determining the issue of pertinency is reflected in many cases which have come here since Sinclair, supra. Watkins v. United States, 354 U.S. 178, 208, 77 S.Ct. 1173, 1189, 1 L.Ed.2d 1273; Sacher v. United States, 356 U.S. 576, 577, 78 S.Ct. 842, 843, 2 L.Ed.2d 987; Barenblatt v. United States, 360 U.S. 109, 123-125, 79 S.Ct. 1081, 1091-1092, 3 L.Ed.2d 1115; Wilkinson v. United States, 365 U.S. 399, 407-409, 413, 81 S.Ct. 567, 572-573, 5 L.Ed.2d 633; Braden v. United States, 365 U.S. 431, 435-436, 81 S.Ct. 584, 587, 5 L.Ed.2d 653; Deutch v. United States, 367 U.S. 456, 467-471, 81 S.Ct. 1587, 1593-1595, 6 L.Ed.2d 963. Our decisions have pointed out that the obvious first step in determining whether the questions asked were pertinent to the subject under inquiry is to ascertain what that subject was. See, e.g., Deutch v. United States, supra, at 469, 81 S.Ct. at 1594. Identification of the subject under inquiry is also an essential preliminary to the determination of a host of other issues which typically arise in prosecutions under the statute. In Wilkinson v. United States, supra, for example, the Court pointed out that in order properly to consider any of the many issues there presented, 'the starting point must be to determine the subject matter of the subcommittee's inquiry.' 365 U.S., at 407, 81 S.Ct. at 572.

Where, as in the Sinclair case, the subject under inquiry has been identified in the indictment, this essential first step has presented no problem. Where, as in the more recent cases, the indictment has not identified the topic under inquiry, the Court has often found it difficult or impossible to ascertain what the subject was. The difficulty of such a determination in the absence of an allegation in the indictment is illustrated by Deutch v. United States, supra. In that case the members of this Court were in sharp disagreement as to what the subject under subcommittee inquiry had been. Moreover, all of us disagreed with the District Court's theory, and the Court of Appeals had not even ventured a view on the question. 367 U.S., at 467, 81 S.Ct. at 1593. In Watkins v. United States, supra, the Court found it not merely difficult, but actually impossible to determine what the topic under subcommittee inquiry had been at the time the petitioner had refused to answer the questions addressed to him. 'Having exhausted the several possible indicia of the 'question under inquiry,' we remain unenlightened as to the subject to which the questions asked petitioner were pertinent.' 354 U.S., at 214, 77 S.Ct. at 1193. [9]

To be sure, the fact that difficulties and doubts have beset the federal courts in trying to ascertain the subject under inquiry in cases arising under 2 U.S.C. § 192, 2 U.S.C.A. § 192 could hardly justify, in the abstract, a requirement that indictments under the statute contain averments which would simplify the courts' task. Difficult and doubtful questions are inherent in the judicial process, particularly under a system of criminal law which places heavy emphasis upon the protection of the rights and liberties of the individual. Courts sit to resolve just such questions, and rules of law are not to be made merely to suit judicial convenience. But a proliferation of doubtful issues which not only burden the judiciary, but, because of uncertainties inherent in their resolution, work a hardship upon both the prosecution and the defense in criminal cases, is hardly a desideratum. And the repeated appearance in prosecutions under a particular criminal statute of the same critical and difficult question, which could be obviated by a simple averment in the indictment, invites inquiry into the purposes and functions which a grand jury indictment is intended to serve. The cases we have discussed, therefore, furnish an appropriate background for the inquiry to which we now turn.

Any discussion of the purpose served by a grand jury indictment in the administration of federal criminal law must begin with the Fifth and Sixth Amendments to the Constitution. The Fifth Amendment provides that 'No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; * * *.' We need not pause to consider whether an offense under 2 U.S.C. § 192, 2 U.S.C.A. § 192 is an 'infamous crime,' Duke v. United States, 301 U.S. 492, 57 S.Ct. 835, 81 L.Ed. 1243, since Congress has from the beginning explicitly conferred upon those prosecuted under the statute the protection which the Fifth Amendment confers, by providing that no one can be prosecuted for this offense except upon an indictment by a grand jury. This specific guaranty, as well as the Fifth Amendment's Due Process, Clause, are, therefore, both brought to bear here. Of like relevance is the guaranty of the Sixth Amendment that 'In all criminal prosecutions, the accused shall enjoy the right * * * to be informed of the nature and cause of the accusation; * * *.'

The constitutional provision that a trial may be held in a serious federal criminal case only if a grand jury has first intervened reflects centuries of antecedent development of common law, going back to the Assize of Clarendon in 1166. [10] 'The grand jury is an English institution, brought to this country by the early colonists and incorporated in the Constitution by the Founders. There is every reason to believe that our constitutional grand jury was intended to operate substantially like its English progenitor. The basic purpose of the English grand jury was to provide a fair method for instituting criminal proceedings against persons believed to have committed crimes.' Costello v. United States, 350 U.S. 359, 362, 76 S.Ct. 406, 408, 100 L.Ed. 397. See McClintock, Indictment by a Grand Jury, 26 Minn.L.Rev. 153; Orfield, Criminal Procedure from Arrest to Appeal, 137-140, 144 146.

For many years the federal courts were guided in their judgments concerning the construction and sufficiency of grand jury indictments by the common law alone. Not until 1872 did Congress enact general legislation touching upon the subject. In that year a statute was enacted which reflected the drift of the law away from the rules of technical and formalized pleading which had characterized an earlier era. The 1872 statute provided that 'no indictment found and presented by a grand jury in any district or circuit or other court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant.' 17 Stat. 198. This legislation has now been repealed, but its substance is preserved in the more generalized provision of Rule 52(a) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., which states that 'Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.' [11]

There was apparently no other legislation dealing with the subject of indictments generally until the promulgation of Rule 7(c), Fed.Rules Crim.Proc., in 1946. The Rule provides:

'The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. It shall be signed by the attorney for the government. It need not contain a formal commencement, a formal conclusion or any other matter not necessary to such statement. Allegations made in one count may be incorporated by reference in another count. It may be alleged in a single count that the means by which the defendant committed the offense are unknown or that he committed it by one or more specified means. The indictment or information shall state for each count the official or customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or information or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.'

As we have elsewhere noted, 'This Court has, in recent years, upheld many convictions in the face of questions concerning the sufficiency of the charging papers. Convictions are no longer reversed because of minor and technical deficiencies which did not prejudice the accused. (Citing cases.) This has been a salutary development in the criminal law.' Smith v. United States, 360 U.S. 1, 9, 79 S.Ct. 991, 996, 3 L.Ed.2d 1041. 'But,' as the Smith opinion went on to point out, 'the substantial safeguards to those charged with serious crimes cannot be eradicated under the guise of technical departures from the rules.' Ibid. Resolution of the issue presented in the cases before us thus ultimately depends upon the nature of 'the substantial safeguards' to a criminal defendant which an indictment is designed to provide. Stated concretely, does the omission from an indictment under 2 U.S.C. § 192, 2 U.S.C.A. § 192 of the subject under congressional committee inquiry amount to no more than a technical deficiency of no prejudice to the defendant? Or does such an omission deprive the defendant of one of the significant protections which the guaranty of a grand jury indictment was intended to confer?

In a number of cases the Court has emphasized two of the protections which an indictment is intended to guarantee, reflected by two of the criteria by which the sufficiency of an indictment is to be measured. These criteria are, first, whether the indictment 'contains the elements of the offense intended to be charged, 'and sufficiently apprises the defendant of what he must be prepared to meet," and, secondly, "in case any other proceedings are taken against him for a similar offense whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.' Cochran and Sayre v. United States, 157 U.S. 286, 290, 15 S.Ct. 628, 630, 39 L.Ed. 704; Rosen v. United States, 161 U.S. 29, 34, 16 S.Ct. 434, 480, 40 L.Ed. 606.' Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 419, 76 L.Ed. 861. See Potter v. United States, 155 U.S. 438, 445, 15 S.Ct. 144, 146, 39 L.Ed. 214; Bartell v. United States, 227 U.S. 427, 431, 33 S.Ct. 383, 384, 57 L.Ed. 583; Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314; United States v. Debrow, 346 U.S. 374, 377 378, 74 S.Ct. 113, 115-116, 98 L.Ed. 92.

Without doubt the second of these preliminary criteria was sufficiently met by the indictments in these cases. Since the indictments set out not only the times and places of the hearings at which the petitioners refused to testify, but also specified the precise questions which they then and there refused to answer, it can hardly be doubted that the petitioners would be fully rotected from again being put in jeopardy for the same offense, particularly when it is remembered that they could rely upon other parts of the present record in the event that future proceedings should be taken against them. See McClintock, Indictment by a Grand Jury, 26 Minn.L.Rev. 153, 160; Bartell v. United States, 227 U.S. 427, 433, 33 S.Ct. 383, 384, 57 L.Ed. 583. The vice of these indictments, rather, is that they failed to satisfy the first essential criterion by which the sufficiency of an indictment is to be tested, i.e., that they failed to sufficiently apprise the defendant 'of what he must be prepared to meet.'

As has been pointed out, the very core of criminality under 2 U.S.C. § 192, 2 U.S.C.A. § 192 is pertinency to the subject under inquiry of the questions which the defendant refused to answer. What the subject actually was, therefore, is central to every prosecution under the statute. Where guilt depends so crucially upon such a specific identification of fact, our cases have uniformly held that an indictment must do more than simply repeat the language of the criminal statute.

'It is an elementary principle of criminal pleading, that where the definition of an offence, whether it be at common law or by statute, 'includes generic terms, it is not sufficient that the indictment shall charge the offence in the same generic terms as in the definition; but it must state the species,-it must descend to particulars." United States v. Cruikshank, 92 U.S. 542, 558, 23 L.Ed. 588. An indictment not framed to apprise the defendant 'with reasonable certainty, of the nature of the accusation against him * * * is defective, although it may follow the language of the statute.' United States v. Simmons, 96 U.S. 360, 362, 24 L.Ed. 819. 'In an indictment upon a statute, it is not sufficient to set forth the offence in the words of the statute, unless those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished; * * *.' United States v. Carll, 105 U.S. 611, 612, 26 L.Ed. 1135. 'Undoubtedly, the language of the statute may be used in the general description of an offense, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offense, coming under the general description, with which he is charged.' United States v. Hess, 124 U.S. 483, 487, 8 S.Ct. 571, 573, 31 L.Ed. 516. See also Pettibone v. United States, 148 U.S. 197, 202-204, 13 S.Ct. 542, 545, 37 L.Ed. 419; Blitz v. United States, 153 U.S. 308, 315, 14 S.Ct. 924, 927, 38 L.Ed. 725; Keck v. United States, 172 U.S. 434, 437, 19 S.Ct. 254, 255, 43 L.Ed. 505; Morissette v. United States, 342 U.S. 246, 270, n. 30, 72 S.Ct. 240, 253, 96 L.Ed. 288. Cf. United States v. Petrillo, 332 U.S. 1, 10-11, 67 S.Ct. 1538, 1543, 91 L.Ed. 1877. [12] That these basic principles of fundamental fairness retain their full vitality under modern concepts of pleading, and specifically under Rule 7(c) of the Federal Rules of Criminal Procedure, is illustrated by many recent federal decisions. [13]

The vice which inheres in the failure of an indictment under 2 U.S.C. § 192, 2 U.S.C.A. § 192 to identify the subject under inquiry is thus the violation of the basic principle 'that the accused must be apprised by the indictment, with reasonable certainty, of the nature of the accusation against him, * * *.' United States v. Simmons, supra, 96 U.S. at 362. A cryptic form of indictment in cases of this kind requires the defendant to go to trial with the chief issue undefined. It enables his conviction to rest on one point and the affirmance of the conviction to rest on another. It gives the prosecution free hand on appeal to fill in the gaps of proof by surmise or conjecture. The Court has had occasion before now to condemn just such a practice in a quite different factual setting. Cole v. Arkansas, 333 U.S. 196, 201 202, 68 S.Ct. 514, 517, 92 L.Ed. 644. And the unfairness and uncertainty which have characteristically infected criminal proceedings under this statute which were based upon indictments which failed to specify the subject under inquiry are illustrated by the cases in this Court we have already discussed. The same uncertainty and unfairness are underscored by the records of the cases now before us. A single example will suffice to illustrate the point.

In No. 12, Price v. United States, the petitioner refused to answer a number of questions put to him by the Internal Security Subcommittee of the Senate Judiciary Committee. At the beginning of the hearing in question, the Chairman and other subcommittee members made widely meandering statements purporting to identify the subject under inquiry. It was said that the hearings were 'not * * * an attack upon the free press,' that the investigation was of 'such attempt as may be disclosed on the part of the Communist Party * * * to influence or to subvert the American press.' It was also said that 'We are simply investigating communism wherever we find it.' In dealing with a witness who testified shortly before Price, counsel for the subcommittee emphatically denied that it was the subcommittee's purpose 'to investigate Communist infiltration of the press and other forms of communication.' But when Price was called to testify before the subcommittee no one offered even to attempt to inform him of what subject the subcommittee did have under inquiry. At the trial the Government took the position that the subject under inquiry had been Communist activities generally. The district judge before whom the case was tried found that 'the questions put were pertinent to the matter under inquiry' without indicating what he thought the subject under inquiry was. The Court of Appeals, in affirming the conviction, likewise omitted to state what it thought the subject under inquiry had been. In this Court the Government contends that the subject under inquiry at the time the petitioner was called to testify was 'Communist activity in news media.' [14]

It is difficult to imagine a case in which an indictment's insufficiency resulted so clearly in the indictment's failure to fulfill its primary office-to inform the defendant of the nature of the accusation against him. Price refused to answer some questions of a Senate subcommittee. He was not told at the time what subject the subcommittee was investigating. The prior record of the subcommittee hearings, with which Price may or may not have been familiar, gave a completely confused and inconsistent account of what, if anything, that subject was. Price was put to trial and convicted upon an indictment which did not even purport to inform him in any way of the identity of the topic under subcommittee inquiry. At every stage in the ensuing criminal proceeding Price was met with a different theory, or by no theory at all, as to what the topic had been. Far from informing Price of the nature of the accusation against him, the indictment instead left the prosecution free to roam at large-to shift its theory of criminality so as to take advantage of each passing vicissitude of the trial and appeal. Yet Price could be guilty of no criminal offense unless the questions he refused to answer were in fact pertinent to a specific topic under subcommittee inquiry at the time he was interrogated. Sinclair v. United States, 279 U.S. 263, at 292, 49 S.Ct. 268, at 271, 73 L.Ed. 692.

It has long been recognized that there is an important corollary purpose to be served by the requirement that an indictment set out 'the specific offence, coming under the general description,' with which the defendant is charged. This purpose, as defined in United States v. Cruikshank, 92 U.S. 542, 558, 23 L.Ed. 588, is 'to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had.' [15] This criterion is of the greatest relevance here, in the light of the difficulties and uncertainties with which the federal trial and reviewing courts have had to deal in cases arising under 2 U.S.C. § 192, 2 U.S.C.A. § 192, to which reference has already been made. See, e.g., Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273; Deutch v. United States, 367 U.S. 456, 81 S.Ct. 1587, 6 L.Ed.2d 963. Viewed in this context, the rule is designed not alone for the protection of the defendant, but for the benefit of the prosecution as well, by making it possible for courts called upon to pass on the validity of convictions under the statute to bring an enlightened judgment to that task. Cf. Watkins v. United States, supra.

It is argued that any deficiency in the indictments in these cases could have been cured by bills of particulars. [16] But it is a settled rule that a bill of particulars cannot save an invalid indictment. See United States v. Norris, 281 U.S. 619, 622, 50 S.Ct. 424, 425, 74 L.Ed. 1076; United States v. Lattimore, 94 U.S.App.D.C. 268, 215 F.2d 847; Babb v. United States, 5 Cir., 218 F.2d 538; Steiner v. United States, 9 Cir., 229 F.2d 745; United States v. Dierker, D.C., 164 F.Supp. 304; 4 Anderson, Wharton's Criminal Law and Procedure, § 1870. When Congress provided that no one could be prosecuted under 2 U.S.C. § 192, 2 U.S.C.A. § 192 except upon an indictment, Congress made the basic decision that only a grand jury could determine whether a person should be held to answer in a criminal trial for refusing to give testimony pertinent to a question under congressional committee inquiry. A grand jury, in order to make that ultimate determination, must necessarily determine what the question under inquiry was. To allow the prosecutor, or the court, to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection which the guaranty of the intervention of a grand jury was designed to secure. For a defendant could then be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him. See Orfield, Criminal Procedure from Arrest to Appeal, 243.

This underlying principle is reflected by the settled rule in the federal courts that an indictment may not be amended except by resubmission to the grand jury, unless the change is merely a matter of form. Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849; United States v. Norris, 281 U.S. 619, 50 S.Ct. 424, 74 L.Ed. 1076; Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252. 'If it lies within the province of a court to change the charging part of an indictment to suit its own notions of what it ought to have been or what the grand jury would probably have made it if their attention had been called to suggested changes, the great importance which the common law attaches to an indictment be a grand jury, as a prerequisite to a prisoner's trial for a crime, and without which the Constitution says 'no person shall be held to answer,' may be frittered away until its value is almost destroyed. * * * Any other doctrine would place the rights of the citizen, which were intended to be protected by the constitutional provision, at the mercy or control of the court or prosecuting attorney; for, if it be once held that changes can be made by the consent or the order of the court in the body of the indictment as presented by the grand jury, and the prisoner can be called upon to answer to the indictment as thus changed, the restriction which the constitution places upon the power of the court, in regard to the prerequisite of an indictment, in reality no longer exists.' Ex parte Bain, supra, 121 U.S. at 10, 13, 7 S.Ct. at 786. We reaffirmed this rule only recently, pointing out that 'The very purpose of the requirement that a man be indicted by grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge.' Stirone v. United States, supra, 361 U.S. at 218, 80 S.Ct. at 273. [17]

For these reasons we conclude that an indictment under 2 U.S.C. § 192, 2 U.S.C.A. § 192 must state the question under congressional committee inquiry as found by the grand jury [18] Only then can the federal courts responsibly carry out the duty which Congress imposed upon them more than a century ago:

'The question must be pertinent to the subject-matter, and that will have to be decided by the courts of justice on the indictment.' [19]


Mr. Justice FRANKFURTER took no part in the decision of these cases.

Mr. Justice BRENNAN took no part in the consideration or decision of No. 10, Whitman v. United States.

Mr. Justice WHITE took no part in the consideration or decision of these cases.


^1  108 U.S.App.D.C. 140, 280 F.2d 688; 108 U.S.App.D.C. 153, 280 F.2d 701; 108 U.S.App.D.C. 226, 281 F.2d 59; 108 U.S.App.D.C. 160, 280 F.2d 708; 108 U.S.App.D.C. 167, 280 F.2d 715; 108 U.S.App.D.C. 130, 280 F.2d 678.

^2  '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.' 2 U.S.C. § 192, 2 U.S.C.A. § 192.

^3  No. 8 and No. 128 grew out of hearings before subcommittees of the House Committee on Un-American Activities. The other four cases grew out of hearings before the Internal Security Subcommittee of the Senate Judiciary Committee.

^4  The indictment in No. 8 is typical:

'The Grand Jury charges:


'On November 17, 1954, in the District of Columbia, a subcommittee of the Committee on Un-American Activities of the House of Representatives was conducting hearings, pursuant to Public Law 601, Section 121, 79th Congress, 2d Session, (60 Stat. 828), and to H.Res. 5, 83d Congress.

'Defendant, Norton Anthony Russell, appeared as a witness before that subcommittee, at the place and on the date above stated, and was asked questions which were pertinent to the question then under inquiry. Then and there the defendant unlawfully refused to answer those pertinent questions. The allegations of this introduction are adopted and incorporated into the counts of this indictment which follow, each of which counts will in addition merely describe the question which was asked of the defendant and which he refused to answer.'

(The questions which Russell allegedly refused to answer were then quoted verbatim under separately numbered counts.)

^5  The motion in No. 9 is typical:

'The defendant moves that the indictment be dismissed on the following grounds:

'1. The indictment fails to plead the following essential and material elements of the offense:

'c. the nature of the 'question then under inquiry' to which the questions addressed to defendant are alleged to be relevant.'

^6  2 U.S.C. § 194, 2 U.S.C.A. § 194 provides:

'Whenever a witness summoned as mentioned in section 192 (of this title) fails to appear to testify or fails to produce any books, papers, records, or documents, as required, or whenever any witness so summoned refuses to answer any question pertinent to the subject 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 or subcommittee of either House of Congress, and the fact of such failure or failures is reported to either House while Congress is in session, or when Congress is not in session, a statement of fact constituting such failure is reported to and filed with the President of the Senate or the Speaker of the House, it shall be the duty of the said President of the Senate or Speaker of the House, as the the case may be, to certify, and he shall so certify, the statement of facts aforesaid under the seal of the Senate or House, as the case may be, to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action.'

^7  The question was presented but not reached in Sacher v. United States, 356 U.S. 576, 78 S.Ct. 842, 2 L.Ed.2d 987, where the conviction was reversed on other grounds. The question was also raised in the petition for certiorari in Braden v. United States, 365 U.S. 431, 81 S.Ct. 584, 5 L.Ed.2d 653, but was abandoned when the case was briefed and argued on the merits. Although the question was decided by the lower court in Barenblatt v. United States, 100 U.S.App.D.C. 13, 240 F.2d 875, it was not raised in this Court, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115.

The Court of Appeals for the District of Columbia Circuit has passed on the question, holding that the indictment need not set forth the subject under committee inquiry. See Barenblatt v. United States, 100 U.S.App.D.C. 13, 240 F.2d 875; Sacher v. United States, 102 U.S.App.D.C. 264, 252 F.2d 828. Indictments returned in that circuit of course reflect this rule. See cases cited in Mr. Justice HARLAN'S dissenting opinion, post, 369 U.S., p. 782, 82 S.Ct., p. 1057, n. 2. The Court of Appeals for the Second Circuit sustained an indictment under 2 U.S.C. § 192, 2 U.S.C.A. § 192 which did not set forth the subject under inquiry in United States v. Josephson, 165 F.2d 82. However, Josephson appears to have been substantially limited by the same court in United States v. Lamont, 236 F.2d 312, and indictments under 2 U.S.C. § 192, 2 U.S.C.A. § 192 currently being returned in the Second Circuit do in fact set forth the subject under inquiry. See the unreported indictments in United States v. Yarus (D.C.S.D.N.Y.) No. C 152-239 (the opinion acquitting defendant Yarus is reported at 198 F.Supp. 425); United States v. Turoff (D.C.W.D.N.Y.) No. 7539-C (the opinion of the Court of Appeals reversing defendant Turoff's conviction is reported at 2 Cir., 291 F.2d 864).

No other Court of Appeals has passed squarely on the point. In Braden v. United States, 272 F.2d 653, the Court of Appeals for the Fifth Circuit ruled that the indictment need not explain how and why the questions were pertinent to the subject under inquiry, but did not discuss whether the subject itself had to be specified. In a number of other recent cases arising under 2 U.S.C. § 192, 2 U.S.C.A. § 192 the indictments have stated the subject under inquiry. See, in addition to the examples cited above, the indictment set forth in United States v. Yellin, 287 F.2d 292, 293, n. 2 (C.A.7th Cir.); the indictment described in Davis v. United States, 269 F.2d 357, 359 (C.A.6th Cir.); and the unreported indictment in United States v. Lorch (D.C.S.D.Ohio) Cr. No. 3185 (an indictment arising out of the same series of hearings in which Russell, the petitioner in No. 8, was initially summoned to testify).

^8  11 Stat. 155-156. The statute, now 2 U.S.C. §§ 192-194, 2 U.S.C.A. §§ 192-194, was enacted to supplement the established contempt power of Congress itself. Jurney v. MacCracken, 294 U.S. 125, 151, 55 S.Ct. 375, 379, 79 L.Ed. 802. The specific background of the statute's adoption is sketched in Watkins v. United States, 354 U.S., at 207, n. 45, 77 S.Ct. at 1189. See Cong.Globe, 34th Cong., 3d Sess. 405. See also id., at 403-413, 426-433, 434-445. Except for a basic change in the immunity provisions in 1862, 12 Stat. 333, the legislation has continued substantially unchanged to the present time, with only a slight modification in language in R.S. §§ 102 and 104. The only other amendment in the substantive provisions was made in 1938, 52 Stat. 942, so as to make the statute applicable to joint committees. The provision requiring grand jury indictment has been amended twice since 1857. The original legislation provided for certification only to the United States Attorney for the District of Columbia. In 1936 an amendment was made to permit certification to any United States Attorney, 49 Stat. 2041. In 1938, the provision was amended to bring it into accord with the joint committee amendment of the substantive provisions of the law.

^9  In the Watkins case the Court's primary concern was not whether pertinency had had been proved at the criminal trial, but whether the petitioner had been apprised of the pertinency of the questions at the time he had been called upon to answer them. These two issues are, of course, quite different. See Deutch v. United States, 367 U.S., at 467-468, 81 S.Ct. at 1593. But identification of the subject under inquiry is essential to the determination of either issue. See Barenblatt v. United States, 360 U.S., at 123-125, 79 S.Ct. at 1091-1092.

^10  See I Holdsworth, History of English Law (7th ed. 1956), 321-323; I pollock and Maitland, History of English Law (2d ed. 1909), 137-155, and Vol. II, pp. 647-653.

^11  The 1872 statute became Rev.Stat. § 1025 and ultimately 18 U.S.C. (1940 ed.) § 556. The statute was repealed in the 1948 legislative reorganization of Title 18, 62 Stat. 862, because its substance was contained in Fed.Rules Crim.Proc. 52(a).

^12  Rosen v. United States, 161 U.S. 29, 16 S.Ct. 434, 40 L.Ed. 606, heavily relied upon in the dissenting opinion, is inapposite. In that case the Court held that an indictment charging the mailing of obscene material did not need to specify the particular portions of the publication which were allegedly obscene. As pointed out in Bartell v. United States, 227 U.S. 427, 431, 33 S.Ct. 383, 384, 57 L .Ed. 583, the rule established in Rosen was always regarded as a 'well recognized exception' to usual indictment rules, applicable only to 'the pleading of printed or written matter which is alleged to be too obscene or indecent to be spread upon the records of the court.' Under Roth v. United States, 354 U.S. 476, 488-489, 77 S.Ct. 1304, 1310-1311, 1 L.Ed.2d 1498, the issue dealt with in Rosen would presumably no longer arise.

^13  United States v. Lamont, 2 Cir., 236 F.2d 312; Meer v. United States, 10 Cir., 235 F.2d 65; Babb v. United States, 5 Cir., 218 F.2d 538; United States v. Simplot, D.C., 192 F.Supp. 734; United States v. Devine's Milk Laboratories, Inc., D.C., 179 F.Supp. 799; United States v. Apex Distributing Co., D.C., 148 F.Supp. 365.

^14  Brief for the United States, p. 26.

^15  This principle enunciated in Cruikshank retains undiminished vitality, as several recent cases attest. 'Another reason (for the requirement that every ingredient of the offense charged must be clearly and accurately alleged in the indictment), and one sometimes overlooked, is to enable the court to decide whether the facts alleged are sufficient in law to withstand a motion to dismiss the indictment or to support a conviction in the event that one should be had.' United States v. Lamont, D.C., 18 F.R.D. 27, 31. 'In addition to informing the defendant, another purpose served by the indictment is to inform the trial judge what the case involves, so that, as he presides and is called upon to make rulings of all sorts, he may be able to do so intelligently.' Puttkammer, Administration of Criminal Law, 125-126. See Flying Eagle Publications, Inc., v. United States, 1 Cir., 273 F.2d 799; United States v. Goldberg, 8 Cir., 225 F.2d 180; United States v. Silverman, D.C., 129 F.Supp. 496; United States v. Richman, D.C., 190 F.Supp. 889; United States v. Callanan, D.C., 113 F.Supp. 766. See 4 Anderson, Wharton's Criminal Law and Procedure, 506; Orfield, Indictment and Information in Federal Criminal Procedure, 13 Syracuse L.Rev. 389, 392. See also Orfield, Criminal Procedure from Arrest to Appeal, 226-230.

^16  In No. 128, Gojack v. United States, the petitioner filed a timely motion for a bill of particulars, requesting that he be informed of the question under subcommittee inquiry. The motion was denied.

In No. 9, Shelton v. United States, the petitioner filed a similar motion. The motion was granted, and the Government responded orally as follows:

'As to the second asking, the Government contends, and the indictment states, that the inquiry being conducted was pursuant to this resolution. We do not feel, and it is not the case, that there was any smaller, more limited inquiry being conducted.

'This committee was conducting the inquiry for the purposes contained in the resolution and no lesser purpose so that, in that sense, the asking No. 2 of counsel will be supplied by his reading the resolution.'

In the four other cases no motions for bills of particulars were filed.

^17  See also Smith v. United States, 360 U.S. 1, 13, 79 S.Ct. 991, 998, 3 L.Ed.2d 1041 (dissenting opinion); Comment, 35 Mich.L.Rev. 456.

^18  The federal perjury statute, 18 U.S.C. § 1621, 18 U.S.C.A. § 1621, makes it a crime for a person under oath willfully to state or subscribe to 'any material matter which he does not believe to be true.' The Government, pointing to the analogy between the perjury materiality requirement and the pertinency requirement in 2 U.S.C. § 192, 2 U.S.C.A. § 192 recognized in Sinclair v. United States, 279 U.S. 263, 298, 49 S.Ct. 268, 273, 73 L.Ed. 692, contends that the present cases are controlled by Markham v. United States, 160 U.S. 319, 16 S.Ct. 288, 40 L.Ed. 441, where the Court sustained a prejury indictment. But Markham is inapposite. The analogy between the perjury statute and 2 U.S.C. § 192, 2 U.S.C.A. § 192, while persuasive for some purposes, is not persuasive here, for the determination of the subject under inquiry does not play the central role in a perjury prosecution which it plays under 2 U.S.C. § 192, 2 U.S.C.A. § 192. But even were the analogy perfect Markham would still not control, for it holds only that a perjury indictment need not set forth how and why the statements were allegedly material. The Court carefully pointed out that the indictment did in fact reveal the subject under inquiry stating that 'as (the fourth count of indictment) charged that such statement was material to an inquiry pending before, and within the jurisdiction, of the commissioner of pensions; and as the fair import of that count was that the inquiry before the commissioner had reference to a claim made by the accused under the pension laws, on account of personal injuries received while he was a soldier, and made it necessary to ascertain whether the accused had, since the war, or after his discharge from the army, received an injury to the forefinger of his right hand, we think that the fourth count, although unskillfully drawn, sufficiently informed the accused of the matter for which he was indicted, and, therefore met the requirement that it should set forth the substance of the charge against him.' 160 U.S., at 325-326, 16 S.Ct. at 291. (Emphasis added.) This has been equally true of other perjury indictments sustained by the Court. See Hendricks v. United States, 223 U.S. 178, 32 S.Ct. 313, 56 L.Ed. 394; United States v. Debrow, 346 U.S. 374, 74 S.Ct. 113, 98 L.Ed. 92 (the indictment in Debrow is set forth in the opinion of the Court of Appeals, 5 Cir., 203 F.2d 699, 702, n. 1).

^19  See 369 U.S., p. 757, 82 S.Ct., p. 1043, supra.

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