BLACK, J., dissenting. 339 C. S. quired 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, 216 F. 107, 111–112, quoting Lord Ellenborough's opinion in Amey v. Long, 9 East 473, 483; see the general discussion in Notes, 1915B L. R. A. 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, 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 349 BLACK, J., dissenting. 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.1 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. 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.3 1 The two components of this general principle and their application to this case are discussed in II (A) and II (D) infra. 2 The Court's attempt to offset this deficiency is discussed in II (D) infra. 3 Whether joint action would have been required by a subpoena addressed to the board is completely irrelevant for the reasons set out in note 4 infra. It should be noted, however, that an order to the board as an entity necessarily implies joint action; one addressed to an individual member does not. Moreover, the former is sufficiently 874433 0-50-28 BLACK, J. dissenting 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. 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 mem specific if it tells the board exactly what to do; the latter must tell the individual what to do. In either case, the recipient must have power to do what is ordered before punishment is justified. 349 BLACK, J., dissenting. ber 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, 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 that 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, 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 re While a subpoena was also addressed to the board as an entity, there is utterly no evidence that Fleischman ever knew of it. Therefore, like the Court, we treat the case as if no board subpoena had ever been issued. 5 The string of mandamus cases cited in note 6 of the Court's opinion are equally inapplicable for the same general reason. No case cited supports the Court's position. BLACK. J., dissenting. 339 U.S. fused 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 It should be noted that the directors appeared in response to a subpoena addressed to the corporation. Unlike Fleischman, they were not subpoenaed individually. See note 3 supra. |