Russell v. United States
Decided on May 21, 1962; 369 US 749


I. ISSUES II. CASE SUMMARY III. AMICI CURIAE IV. DECISION V. WIN OR LOSS?
I. ISSUES:

A. Issues Discussed: 5th Amendment, 6th Amendment, Legislative investigations

B. Legal Question Presented:

Can the federal government quash an 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?

II. CASE SUMMARY:

A. Background:

"The petitioners in these six cases were convicted of violating 2 U.S.C. § 192, which makes it a misdemeanor for any person summoned to testify before a committee of Congress to refuse to answer 'any question pertinent to the question under inquiry.' In each case, the indictment returned by the grand jury stated that the questions to which answers were refused 'were pertinent to the question then under inquiry' by the subcommittee; but it failed to identify the subject under subcommittee inquiry when the witness was interrogated. In each case, a motion was filed to quash the indictment before trial for failure to state the subject under inquiry; but in each case, the motion was denied, and the issue thus raised was preserved and properly presented in this Court."

B. Counsel of Record:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Joseph A. Fanelli argued the cause for petitioner in No. 8. With him on the briefs was Benedict P. Cottone.

Joseph L. Rauh, Jr. argued the cause for petitioner in No. 9. With him on the briefs was John Silard.

Gerhard P. Van Arkel argued the cause for petitioner in No. 10. With him on the briefs was George Kaufman.

Harry I. Rand argued the cause for petitioner in No. 11. With him on the briefs was Leonard B. Boudin.

Leonard B. Boudin argued the cause for petitioner in No. 12. With him on the briefs was Harry I. Rand.

Frank J. Donner argued the cause for petitioner in No. 128. With him on the brief was David Rein.
Kevin T. Maroney argued the causes for the United States in Nos. 8 and 128. With him on the briefs were Solicitor General Cox, Assistant Attorney General Yeagley, Bruce J. Terris and (in No. 128) Doris Spangenburg.

Bruce J. Terris argued the cause for the United States in No. 9. With him on the briefs were Solicitor General Cox, Assistant Attorney General Yeagley and Kevin T. Maroney.

J. William Doolittle argued the cause for the United States in Nos. 10, 11 and 12. On the briefs were Solicitor General Cox, Assistant Attorney General Yeagley, Bruce J. Terris, Kevin T. Maroney and Lee B. Anderson.




C. The Arguments:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Unavailable Unavailable
III. AMICI CURIAE:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Nanette Dembitz filed a brief for New York Civil Liberties Union, as amicus curiae, urging reversal in No. 10. No amici curiae briefs were filed on behalf of Respondent.
IV. THE SUPREME COURT'S DECISION:

"Congress has expressly provided that no one can be prosecuted under 2 U.S.C. § 192 except upon indictment by a grand jury... 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.

For the reasons that follow, we hold that the indictment must contain such an averment, and we accordingly reverse the judgments before us.

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 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.

We need not pause to consider whether an offense under 2 U.S.C. § 192 is an 'infamous crime,' Duke v. United States, 301 U. S. 492, 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, '[i]n 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.

The vice which inheres in the failure of an indictment under 2 U.S.C. § 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...' 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, 333 U. S. 201-202. 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."

Held: The grand jury indictment required by 2 U.S.C. 194 as a prerequisite to a prosecution for a violation of 192 must state the question which was under inquiry at the time of the defendant's alleged default or refusal to answer, as found by the grand jury; and the judgment affirming the conviction of each of the petitioners is reversed.

Justice Vote: 5 Pro vs. 2 Con

  • Stewart, P. Pro (Wrote majority opinion)
  • Black, H. Pro (Joined majority opinion)
  • Warren, E. Pro (Joined majority opinion)
  • Brennan, W. Pro (Joined majority opinion,
    took no part in the decision process for petitioner No. 10) 
  • Douglas, W. Pro (Wrote concurring opinion)
  • Clark, T. Con (Wrote dissenting opinion)
  • Harlan, J. Con (Wrote dissenting opinion)
  • Frankfurter, F. Took no part in the decision process
  •  White, B. Took no part in the decision process
V. A WIN OR LOSS FOR THE ACLU?

The ACLU, as amicus curiae, urged reversal of the judgments of the lower court; the Supreme Court reversed in a 5-2 vote, giving the ACLU an apparent win.