United States v. Fleischman/Dissent Black
Mr. Justice BLACK, with whom Mr. Justice FRANKFURTER concurs, dissenting.

The Court holds that there is sufficient evidence in this record to support the conviction of respondent Fleischman under R.S. § 102. I cannot agree. Whether the evidence is sufficient depends primarily on what conduct is made criminal by R.S. § 102 and what action is required by a subpoena duces tecum. My views on these questions differ so drastically from those of the Court that I shall present them, and the conclusions which they dictate, before turning to the Court's opinion.

I. R.S. § 102 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 * * * willfully makes default, * * * shall be deemed guilty of a misdemeanor.' This criminal statute is limited by its terms to just two types of congressional orders: (1) a subpoena to give testimony, and (2) a subpoena to produce papers. The latter type of order is involved here.

Refusal to comply with a subpoena to produce papers can be punished only if the witness has power to produce. It is a complete defense for him to show that the papers are not in his possession or under his control. For a subpoena duces tecum does not require a witness 'to sue and labor in order to obtain the possession of any instrument from another for the purpose of its production afterwards by himself. * * *' Munroe v. United States, 1 Cir., 216 F. 107, 111-112, L.R.A.1915B, 980, quoting Lord Ellenborough's opinion in Amey v. Long, 9 East 473, 483; see the general discussion in Notes, L.R.A.1915B, 980-985; 32 Am.St.Rep. 648. A command to produce is not a command to get others to produce or assist in producing. Of course Congress, like a court, has broad powers to supplement its subpoena with other commands requiring the witness to take specific affirmative steps reasonably calculated to remove obstacles to production. But even though disobedience of such supplementary orders can be punished at the bar of Congress as contempt, Jurney v. MacCracken, 294 U.S. 125, 55 S.Ct. 375, 79 L.Ed. 802, it does not come within the limited scope of R.S. § 102. Only by importing the broad contempt powers of Congress into this criminal statute can this Court say that it does. I cannot agree to such cavalier expansion of any criminal provision.

Prosecution under R.S. § 102 is thus limited to a range far narrower than is a proceeding for contempt, either in court or at the bar of Congress. And even under the notoriously broad contempt power, punishment is justifiable only when a person has failed to comply with an order specifying precisely what he must do, and when he has power himself to do what is ordered.  Certainly no less precise standard should be established in prosecutions for violation of a criminal statute. Cf. Pierce v. United States, 314 U.S. 306, 310-311, 62 S.Ct. 237, 239, 86 L.Ed. 226.

Viewed in this light, the evidence in this case unmistakably falls short of proving that Fleischman disobeyed the subpoena or violated the statute. The Government did succeed in establishing that she had received the subpoena, knew approximately what documents she was required to produce, and yet failed to produce them. But an essential ingredient of the offense-that she had power to produce those records on April 4-remains completely unsubstantiated.  The Government does not contend that Fleischman had power to produce except by acting jointly with other members of the board. And, for the reasons stated above, the subpoena addressed to Fleischman as an individual board member imposed on her no duty to prod others to produce, or to initiate joint action aimed at production. 

Because of the limited scope of R.S. § 102 and the complete absence of proof that Fleischman had power to produce the subpoenaed documents, her conviction of the crime created by that statute should be set aside.

II. The Court does not dispute that the evidence is insufficient to uphold Fleischman's conviction under the established principles outlined above. Rather it constructs a novel legal theory which, however plausible on the surface, will not stand detailed analysis.

The chain of reasoning on which its legal theory hangs appears to be this: Fleischman and other members of the executive board were served with separate subpoenas ordering each to produce papers of the association on April 4; Bryan, the executive secretary, had possession of the papers; the individual subpoenas imposed on each board member a personal duty to do all each could to bring about joint action that would cause production; had Fleischman performed her individual part of this joint task, she might have prevailed on the board to pass a resolution which might have forced Bryan to produce; Fleischman failed to show that she had done all she could to bring about that result; therefore Fleischman was properly convicted of the crime of wilfully disobeying the subpoena addressed to her as an individual member of the board.

In this intricate chain, certain crucial links are entirely missing and others are far too weak to sustain a criminal conviction:

A. The foundation of the Court's theory is that a subpoena duces tecum addressed to an individual board member, includes the command that he do 'all he can' to bring about joint board action to produce the subpoenaed papers.  This doctrine expands the scope of the subpoena duces tecum far beyond its traditional boundaries, which are outlined in Part I supra. No precedent for such an expansion can be found in the two cases relied on by the Court.

Commissioners v. Sellew, 99 U.S. 624, 25 L.Ed. 333, merely approved issuance of a writ of mandamus to a county commission ordering specific action on a specific date as specifically required by Kansas statutes. Such is the traditional function of mandamus. Seldom has a judicial order been more explicit. In sharp contrast to Fleischman, the commissioners were not required to hazard the least guess as to what action would satisfy the judicial mandate. Both the mandate and the applicable state statutes told them precisely what to do. 

Nor does the opinion in Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771, Ann.Cas.1912D, 558, support today's holding that an order to produce papers requires a person, without further orders, to take action getting others to produce. The Court relies on a dictum that corporate officials can be required to take 'appropriate action' to secure performance of a corporate duty. Even the dictum, however, must be read in the context of that case. Wilson, the president of a corporation to which a subpoena was addressed, had actual custody of the subpoenaed records. Appearing before the grand jury with several corporation directors, he refused to produce. The directors denied power to make him do so. In the resulting contempt proceedings, the prosecuting attorney complained that the Government had been after the records 'in one way or another before this same grand jury for nearly a month.' He emphasized that many of the directors had frequently appeared before the grand jury, and indeed had spent the entire preceding day there.  In view of the frequent and prolonged appearances of the directors before the grand jury, even a passing acquaintance with how a grand jury operates would make it inconceivable that 'one way or another' did not include oral orders to take action aimed at forcing Wilson to turn over the records. Whether such orders were specific enough to justify holding the directors in contempt, or whether failure to take any action would justify punishment for violation of the subpoena itself without first ordering the directors to take specific steps, became immaterial when the directors passed a resolution ordering Wilson to produce. The directors were found innocent, and the only issues before this Court involved Wilson's guilt. Read in this context, the dictum on which the Court relies affords no support whatever for its conclusion here that a subpoena, of itself, imposes the amorphous duty of 'appropriate action' to get others to produce. Moreover, citation of the Sellew case as authority for the dictum clearly indicates that the 'appropriate action' would have to be designated and commanded by specific orders. Nothing in the Wilson opinion can fairly be interpreted as supplanting, or even casting doubt on, the traditional rule that failure to take action required by an order can be punished only if the action is clearly, specifically, and unequvocally commanded by that order. 

Apparently the only reason given for discarding this rule is the Court's statement that failure to construe an individual subpoena as requiring joint action by members of a board would 'remove such organizations beyond the reach of legislative and judicial commands.' That fear is without foundation. A custodian wilfully failing to produce records can be prosecuted under R.S. § 102. And under 18 U.S.C. § 2, 18 U.S.C.A. § 2, any one 'aiding or abetting' her also becomes a principal in that offense and is similarly subject to R.S. § 102. Moreover, a conspiracy to prevent production would certainly provide grounds for conviction. Thus there is no question that Fleischman's conviction could be sustained if there had been sufficient evidence that she actually aided or encouraged the custodian's refusal to produce, or conspired to accomplish that result.  And in the rare instance where these sanctions seem unlikely to secure compliance, Congress can always fall back upon its arsenal of supplementary orders enforced by congressional contempt proceedings:  officers with authority to call a board meeting can be ordered to do so, and board members can be ordered to vote for resolutions calculated to foster production. It can be safely presumed that any organization capable of escaping this barrage would not be brought into line by today's expansion of R.S. § 102. A subpoena is not made 'sterile' by holding that it commands only what it says it commands.

In fact, the Court's new doctrine creates a danger far more genuine than what it allegedly avoids. While in contempt proceedings a witness in doubt as to just what action is demanded can be given more precise orders before a tribunal decides to punish him for noncompliance, no such flexibility exists in criminal prosecutions under R.S. § 102. As applied to such prosecutions, the sweeping requirement that a witness not having custody or control of subpoenaed documents must do 'all he can' to secure their production places him in an unfair dilemma. Caution dictates that he 'sue and labor' to obtain the papers, however great and however useless the effort and expense. On the other hand, common sense counsels that he make such practical efforts as would satisfy a reasonable jury-and not until the jury has spoken will he know whether he guessed right.

Not even after today's opinion can Fleischman-or, for that matter, anyone else-know precisely what steps were required of her to encourage production of documents which she herself could not produce. 

B. Even if the theory on which this Court upholds Fleischman's conviction were tenable, it is, as might be expected from its novelty, completely different from the theory on which the case was tried. An essential element in the trial judge's charge was his instruction that the jury could find Fleischman guilty only if it found that she had 'acted in concert with other members of the executive board' to prevent production. But the Court, without even attempting to support her conviction on this theory, substitutes a theory involving completely different problems of proof and evidence.  The issue of whether Fleischman had failed to attempt to persuade others to produce was not being tried, and there was no reason for her to introduce evidence concerning it. The question on review is not whether the record as a whole exudes a general impression of guilt, but whether the evidence supports a finding of guilt of the issues presented to the jury by the trial judge's charge, Bollenbach v. United States, 326 U.S. 607, 614, 66 S.Ct. 402, 405, 90 L.Ed. 350. This Court should heed its mandates forbidding state appellate courts to uphold convictions on any theory materially different from that on which the case was presented to the jury. See Cole v. State of Arkansas, 333 U.S. 196, 201-202, 68 St.Ct. 514, 517, 92 L.Ed. 644.

C. The Court relies heavily on statements made by Fleischman before the congressional committee. But these statements are expressly made inadmissible by 18 U.S.C. § 3486, 18 U.S.C.A. § 3486, which provides that no testimony given by a witness before any committee of either house 'shall be used as evidence in any criminal proceeding against him in any Court, except in a prosecution for perjury committed in giving such testimony.' See United States v. Bryan, 339 U.S. 323, 346, 70 S.Ct. 724, 738.

Nor does Fleischman's testimony, even if admissible, support the inferences drawn from it by this Court. Weighty significance is attached to her refusal to say how she would vote on the question of production if a board meeting were held. Suffice it to say that no meeting had been held following her receipt of the subpoena, no future meeting had any relevance whatever to the past offense with which she was charged, and the subpoena did not order her to take action at a board meeting anyway. See part I supra.

Equally unwarranted is the inference drawn by the Court from the fact that Fleischman and other board members read the same statement denying individual possession or control over the subpoenaed documents. The Court refers to this statement, prepared by a lawyer, as a 'patent evasion' of the committee's order. On the contrary, I regard the denial of individual power to produce as a complete and adequate response to the individual subpoenas. And surely, although the Committee would not permit counsel for witnesses to enter the committee room, witnesses have always been entitled to get advice from a qualified lawyer and present a statement prepared by him without having inferences of guilt drawn from that fact.

D. Power to produce is an essential ingredient of any offense under R.S. § 102, and the indictment necessarily alleged that 'each and all' of the board members had such power. Thus proof of Fleischman's power to produce the subpoenaed papers is undeniably vital to the Court's theory of the case.

The only evidence tending to show power in the board itself to produce is that it had authority over the policies and activities of the association, and had power to suspend Bryan at any regular board meeting.  Assuming that the board could have ordered Bryan to produce under threat of suspension, the Wilson case demonstrates that prospective obedience to such a potential board order cannot accurately be inferred merely from the supremacy of a board. And this record is barren of any evidence to support a finding that Bryan would have complied on April 4th with a board order.

Equally important under the Court's theory is the question of Fleischman's own power to bring about production. The Court holds that membership on the board gave her one-eighteenth of the board's official 'power,' which it considers enough to support conviction. But her fraction of official 'power' could be exercised only at an official meeting. There is no showing that any meeting was held between March 29 and April 4, or that Fleischman had power to call such a meeting.  And I do not understand the Court to say that the 'power to produce' which Fleischman criminally failed to exercise was solely some imagined personal ability, unconnected with her official capacity, to attempt to cajole the chairman into calling a meeting or ordering production.

Upon a showing merely that the board controlled the 'policies and activities' of the association and that she was a board member, the Court imposes on Fleischman the burden of disproving the crucial allegation of 'power to produce' by establishing that she had done 'all she could' to bring about production. In effect it has set up a presumption that every board member automatically has such power, and has saddled Fleischman with the burden of proving her innocence by showing that the presumption should not apply to her.  In the absence of some showing that she had authority to call or an opportunity to vote at an official board meeting, or at least had substantial influence over other board members, this is every bit as arbitrary as the presumption rejected in Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519.  That case directly bars use of such a device to shift the burden of proof, however convenient it would be for the prosecutor. And without that device, the Government's case was clearly insufficient to support the verdict.

The time-honored rule, that the Government is required to prove every essential ingredient of an offense it charges, provides a safeguard essential to preservation of individual liberty against governmental oppression. It should not be sacrificed in order to sustain the conviction of a single defendant whose guilt the Government has plainly failed to prove.

If the Court's theory merely had any one of the above flaws, its chain of reasoning would break. With all four, it collapses. The judgment of the Court of Appeals should be affirmed. 

Notes

Under the Tot rule, the minimum justification for such a presumption would be general experience that the most insignificant member of a board has power, if she 'does all she can,' to secure board production of documents held by its custodian. Experience not only fails to support this premise; as any one familiar with the loose-jointed structure of nonprofit associations should know, most members or most boards are wholly subordinate to the executive secretary and the chairman. This is one of the 'many significant respects' in which such associations obviously differ from business corporations. See United States v. White, 322 U.S. 694, 697, 64 S.Ct. 1248, 1251, 88 L.Ed. 1542, 152 A.L.R. 1202. Not a single line in Rossi v. United States, 289 U.S. 89, 53 S.Ct. 532, 77 L.Ed. 1051, or Morrison v. People of State of California, 291 U.S. 82, 54 S.Ct. 281, 78 L.Ed. 664, supports the 'presumption' retroactively created here. As a basis of 'power to produce,' mere board membership is no substitute for possession, custody or control.