John T. Gojack, Appellant, v. United States of America, Appellee, 348 F.2d 355 (D.C. Cir. 1965)

On February 28 and March 1, 1955, appellant testified at a subcommittee hearing of the House of Representatives Committee on Un-American Activities. At that hearing he refused to answer certain questions, for which he was convicted for contempt of Congress.¹  That conviction was reversed by the Supreme Court for insufficiency of the indictment.²  Appellant was then convicted on a new indictment, which alleged refusal to answer six questions asked by the subcommittee.³  This appeal followed.

Appellant argues that the subcommittee had no proper legislative purpose and that he was not adequately informed by the subcommittee of the legislative pertinency of its questions. These arguments are foreclosed by Barenblatt v. United States, 360 U.S. 109, 79 S. Ct. 1081, 3 L. Ed. 2d 1115 (1959). Appellant further contends that the indictment was insufficient because it did not specifically recite the subcommittee's authority to conduct the investigation here, and that there was no adequate proof at trial of the subcommittee's authority. We find no merit in these contentions.

There is one serious question presented by this record which appellant has not alleged as grounds for reversal. At the beginning of the February 28 hearing, appellant's counsel submitted a written motion to the subcommittee contesting its jurisdiction to question appellant.⁴  At that time, the subcommittee chairman stated, "You may file the motion; and then whatever action the committee desires to take upon it, we will take." No explicit ruling was made on this motion until the conclusion of the March 1 hearing, when the chairman stated:

[A]t the beginning of the hearings, counsel for John T. Gojack * * * filed a statement of objections to hearing and a motion to vacate the subpoenas. At that time the members of the subcommittee unanimously voted to overrule the objections and the motion to vacate the subpoenas. Therefore, I want the record to show that at that time, nunc pro tunc, the objections and motion to vacate subpoenas are overruled.

This ruling was made after appellant's refusal to answer the questions for which he was here convicted.⁵ 

Although the subcommittee did specifically direct appellant to answer the questions at issue, its failure specifically to overrule appellant's motion may have left ambiguous whether the subcommittee had considered the objections raised in appellant's motion or whether it was ignorant of them before it directed an answer. " [A] clear disposition of the witness' objection is a prerequisite to prosecution for contempt * * *." Quinn v. United States, 349 U.S. 155, 167, 75 S. Ct. 668, 675, 99 L. Ed. 964 (1955). The subcommittee must "advise the witness of [its] position as to his objections * * * [to give him] a clear choice between standing on his objection and compliance with a committee ruling." Bart v. United States, 349 U.S. 219, 223, 75 S. Ct. 712, 714, 99 L. Ed. 1016 (1955).⁶ 

On the previous appeal, this court ruled, "That [appellant's motion] was in fact denied is clear from the fact that [appellant was] * * * called, sworn and queried."⁷  It is not clear whether we are bound by that ruling. But since appellant's experienced counsel does not challenge that ruling on this appeal,⁸  we are not disposed to consider the matter.

The judgment of the District Court is

Affirmed.

BURGER, Circuit Judge (concurring in the result).

I cannot agree that the issue concerning denial of Appellant's motion to the Committee is open. The point was not raised to the Committee; it was not raised in the District Court; it was not raised in this court.

The orderly and efficient administration of the business of the courts ought to preclude — and I think it does preclude — a litigant from ignoring a point which is obvious even though not valid only to have it raised sua sponte by a member of the reviewing court.

That the point discussed by the court has no merit is shown by our own holdings that a ruling may be implicit in the conduct of a tribunal. Judge Wright pointed this out in Cooper v. United States, 119 U.S.App.D.C. 142, 143, 337 F.2d 538, 539 (1964), where he articulated the reasons underlying the summary affirmance of the conviction where the District Court proceeded to trial without entering an order or formally ruling on the Defendant's competence to stand trial. "The court did not in terms hold that Cooper was competent. But its ruling to this effect is clear from its actions [in proceeding to trial]."

Appellant here moved to vacate the subpoena and "set aside" the hearing. His objection went to the fact of any questioning at all. To suggest that continuance of the hearing did not dispose of Appellant's motion by denying it is to ignore the realities of the situation. Nor is the rule of the Quinn and Bart cases, cited by the court, to the contrary. Those cases significantly did not involve express directions to answer such as Gojack here received. See 349 U.S. at 222, 75 S. Ct. at 714. Moreover, we expressly held the Quinn rule unavailable to Appellant on his former appeal. Gojack v. United States, 108 U.S.App.D.C. 130, 139, 280 F.2d 678, 687 (1960).

For these reasons I am bound to express my disagreement with the court's discussion of this point.