United States v. Fleischman/Dissent Frankfurter
Mr. Justice FRANKFURTER, dissenting.

Any one who 'willfully makes default' in obeying a valid subpoena to produce records before a committee of Congress has, ever since 1857, been guilty of a federal offense. Act of January 24, 1857, 11 Stat. 155; R.S. § 102, as amended by Joint Resolution of June 22, 1938, 52 Stat. 942, now 2 U.S.C. § 192, 2 U.S.C.A. § 192. This was the offense for which respondent was prosecuted. The trial court thus put to the jury the theory of the prosecution: 'If you find that the members of the executive board, directly or indirectly, had custody or dominion and control over the records subpoenaed and could have produced the records called for, but wilfully failed and refused to do so, and that the defendant Fleischman acted in concert with other members of the executive board, either throughout or at any point, to prevent the committee from getting the subpoenaed records, then you may find the defendant Fleischman guilty, if you find that the other elements hereinafter set out have been proved by the United States beyond a reasonable doubt.'

The only 'other element' that bears on the issue of the sufficiency of the evidence was the court's explanation that the requirement that the default be made 'willfully' means that the default must be 'deliberate and intentional.'

The indictment against respondent also had a count charging her and others with conspiring to make willful default of congressional subpoenas. It is inappropriate to consider whether the evidence would have been sufficient to bring respondent within the expansive range of a conspiracy charge or whether evidence that could have been admitted under such a charge but was not admissible in this trial would have sufficed to prove guilt. For its own good reasons the Government dismissed the conspiracy charge against Fleischman. A careful study of the record compels the conclusion that Edgerton, J. conveyed fairly and in balance all that the Government proved against respondent on the charge on which she was tried: 'Appellant testified without contradiction that she could not produce the records because they were not in her possession or control. She refused to express either willingness or unwillingness that they be produced.  Even this refusal did not occur until she was questioned by members of the Congressional Committee on April 4. The records were in possession of one Bryan, subject to control by an Executive Board of about 18 members of whom appellant was one. Long before April 4 Bryan, directed by other members of the Board but not by the appellant, had determined not to produce the records. There is no evidence that appellant ratified or approved the action of the other members of the Board. The government says 'In taking part in a combined action to withhold records from a Congressional Committee the appellant acted at her own peril.' But I have not been able to find any evidence, and no evidence has been pointed out, that the appellant took part in a combined action to withhold records. It has been suggested that she might have asked the Board, or Bryan, to produce the records. But there is no evidence that if she had asked them they would have complied. There is no evidence that the nonproduction of the records in the committeeroom resulted either from anything the appellant did or from anything she omitted to do.' 84 U.S.App.D.C. 388, 390, 174 F.2d 519, 521.

The respondent was summoned to produce papers before a congressional committee and did not produce them. For this non-action she was prosecuted as a person who 'willfully makes default' in not producing the papers. I believe in giving penal statutes a scope their words would receive 'in everyday speech.' McBoyle v. United States, 283 U.S. 25, 26, 51 S.Ct. 340, 75 L.Ed. 816, and see Roschen v. Ward, 279 U.S. 337, 339, 49 S.Ct. 336, 73 L.Ed. 722. If language in a criminal statute is to be read with the normal meaning of English speech, 'willfully makes default' surely conveys the thought of a substantial tie between the non-production of papers and the non-action to which it is attributed. This record is barren of the proof which under our system of punitive justice would have warranted a jury to find that respondent was actively or passively responsible for the non-production of the papers she was asked to produce.

This conclusion does not imply the slightest relaxation of the duty of obedience to the lawful commands of congressional committees in exercising their power of testimonial compulsion. McGrain v. Dautherty, 273 U.S. 135, 47 S.Ct. 319, 71 L.Ed. 580, 50 A.L.R. 1. But regard for that power does not call for the slightest relaxation of the requirements of our criminal process. A penal statute must not be applied beyond its terms, and the crime defined by it and charged in an indictment must be established by proof beyond a reasonable doubt.

It may well be that the House committee should have asked respondent to try to have convened a meeting of the executive board with a view to asking the custodian of the records to produce them. Such a procedure is suggested by what was done in Wilson v. United States, 221 U.S. 361, 370-371, 31 S.Ct. 538, 540, 55 L.Ed. 771, Ann.Cas.1912D, 558. Had respondent refused she would have subjected herself to a contempt proceeding for disobedience of a command of the committee. But this is not such a proceeding. As to the offense for which she was prosecuted, I agree with Judge Edgerton that an acquittal should have been directed. 

Notes

"Mrs. Fleischman: That is expressing my opinion, Mr. Chairman. I cannot say what the board will do.

"The Chairman: I am not asking what the board will do. I am asking what you will do.

"Mrs. Fleischman: I do not know, because the thing comes to the board to discuss, and I don't think it is pertinent to say what I should do a week from now. It is a special meeting.'

'I know of nothing else in the record that comes nearer than this to supporting an inference that appellant refused to produce the records or expressed unwillingness to produce them.'