Before WASHINGTON, BASTIAN and BURGER, Circuit Judges.
UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT. 1960.CDC.103
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WASHINGTON
WASHINGTON, Circuit Judge.
This is a contempt of Congress case, under Section 192 of Title 2 of the U.S.C.A. Appellant, after a trial before a judge sitting without a jury, was convicted and sentenced. This appeal followed. *fn1
The record shows that appellant appeared before a subcommittee of the House Committee on Un-American Activities. After stating her name and occupation, she refused to answer five questions propounded to her, the first of these being "Have you ever been a member of the Communist Party?" She replied: "I will not answer any other question I am asked about membership in organizations, associations, societies, people I have met with, or anything else." She explained that such questions in her view were "in violation of my constitutional rights," and that she particularly relied on the First Amendment. Four more questions were asked, along similar lines to the first, receiving a similar response from appellant. The indictment was in five counts, specifying refusal to answer the five questions. She was found guilty on all counts.
No attempt was made by the subcommittee or its counsel to explain to appellant the basis for asking these questions, the nature and scope of the subcommittee's inquiry, or the pertinency of these questions to the inquiry. The Chairman simply said that the hearing was being held as a continuation of one held some months earlier. There is no showing that appellant was apprised of (or knew) the nature of these earlier hearings, or that the subject matter under inquiry on the day she appeared was conveyed to her in any fashion. "[Knowledge] of the subject to which the interrogation is deemed pertinent . . . must be available [to the witness] with the same degree of explicitness and clarity that the Due Process Clause requires in the expression of any element of a criminal offense." Watkins v. United States, 1957, 354 U.S. 178, at pages 208-209, 77 S. Ct. 1173, at page 1190, 1 L. Ed. 2d 1273. And see Barenblatt v. United States, 1959, 360 U.S. 109, at pages 116-117, 79 S. Ct. 1081, at pages 1087-1088, 3 L. Ed. 2d 1115.
At the trial, the Government endeavored to show that the subject under inquiry was "communism in Education." It argues to us that appellant was admittedly a school teacher, and that the subject matter of the inquiry appeared from the reference by the Chairman to the earlier hearings, and from the nature of the proceedings themselves. We are unable to agree. It is entirely possible that appellant knew exactly what was going on, and that she took a calculated risk in adopting an uncooperative attitude. But that possibility is not enough. The requirements of due process are not so easily satisfied. *fn2
For these reasons, the conviction must be reversed and the case remanded with instructions to dismiss the indictment.