The opinion of the court was delivered by: WEINFELD
Upon his appearance before the Grand Jury in response to the subpoena, the witness failed to produce the records, stating he was without knowledge as to their present whereabouts or their existence; further, he refused to answer specific inquiries with respect to them, asserting his privilege against self-incrimination. Hearings were thereupon had before the Court at which the witness was represented by counsel. His refusal to answer in large part was based upon an order by Judge McGohey
adjudging him in contempt of Court and sentencing him to ninety days imprisonment following his failure to produce the same records (except those for the year 1953) before the Commissioner of Internal Revenue pursuant to a summons issued under Title 26 U.S.C. § 3614. He was confined from July 1st to September 27th. Shortly following his release the present Grand Jury subpoena duces tecum was served.
His basic contention was that answers to specific questions with respect to the location or the existence of the records prior to July 1, 1954, or the production at this time of the sought-for records, confronted him with the danger on the one hand of again being found in contempt of Court, or, on the other, of having perjured himself, or having violated 26 U.S.C. § 145(a).
During the progress of the hearings the Court sustained his refusal to answer questions put to him as an individual and which he declined to answer under the privilege against self-incrimination. In view of his testimony given before the agents of the Bureau of Internal Revenue and the statements in his affidavit submitted in the prior proceeding,
the answers to the questions propounded before the present Grand Jury might well serve as a link in the chain of evidence supporting either a perjury charge or a prosecution for violation of § 145(a) of Title 26.
There remains, however, the issue of the production of the detailed record receipts of the Civil Rights Congress.
The law is well settled that the privilege against self-incrimination under the Fifth Amendment is available only to natural persons and is unavailable to one in possession of papers or documents in a representative capacity, even though their production might tend to incriminate him personally.
The witness contends that this rule does not extend to situations where, as here, the mere production of the sought-for documents, regardless of their contents,
may tend to incriminate. It is true that United States v. Field, 2 Cir., 193 F.2d 109, did not pass on this contention, but Mr. Justice Murphy in United States v. White, 322 U.S. 694, 64 S. Ct. 1248, 88 L. Ed. 1542, states the rule in terms that foreclose any contention that an exception exists where the production of documents, as distinguished from their contents, may tend to incriminate:
'Individuals, when acting as representatives of a collective group, cannot be said to be exercising their personal rights and duties nor to be entitled to their purely personal privileges. Rather they assume the rights, duties and privileges of the artificial entity or association of which they are agents or officers and they are bound by its obligations. In their official capacity, therefore, they have no privilege against self-incrimination. And the official records and documents of the organization that are held by them in a representative rather than in a personal capacity cannot be the subject of the personal privilege against self-incrimination, even though production of the papers might tend to incriminate them personally.'
Moreover, the considerations advanced in support of the denial of the privilege to those appearing in a representative capacity are as applicable to one situation as to the other. If the exception were allowed, a previous sworn denial of possession would insulate the records of associations from examination.
Thus the issue remains: Whether the records are in the possession of the witness or subject to his control or direction. And if so, has the witness wilfully and contumaciously failed to produce them? In determining this issue, it must, of course, be remembered that in a criminal contempt proceeding the burden is upon the government to prove its charges beyond a reasonable doubt.
And while 'A court will not imprison a witness for failure to produce documents which he does not have',
the government may rely on an inference of present possession from facts proving past possession.
And we are reminded that the 'process of drawing inferences is to be governed, as ordinarily, by human experience'
and that circumstantial evidence is on no different or lower plane than other forms of evidence.
Once the government with or without the aid of the inference has established a prima facie case, it is for the witness to go forward and show that the papers are not in his possession or control. And a mere categorical denial of knowledge of the whereabouts or existence of the records is certainly not conclusive, and may be insufficient to overcome the prima facie case,
particularly so where his credibility is impaired by prior contradictory statements. As the Supreme Court has pointed out, it is not incumbent on the prosecution to negative every possible excuse for non-action upon its mere assertion by the witness.
Upon a careful review of the testimony, the exhibits received in evidence, including the testimony and Patterson's affidavit submitted in the prior proceeding, and upon an appraisal of the witnesses who appeared before me, I am satisfied that the government has sustained its burden of proof but only as to some, but not all, of the records called for in the subpoena. True, there is no direct proof that they are in his immediate physical possession, but the record abundantly establishes that the 1953 and part of the 1952 receipt books, despite his assertions to the contrary, were in existence as of June 1954 and no evidence other than denials of knowledge of their whereabouts or existence has been presented to overcome the inference of continued existence.
As to the 1950 and 1951 records, the government has failed to sustain its burden.
At the outset, it should be noted that the witness, according to his own testimony, has an all-pervasive power with respect to the records of the Civil Rights Congress. He has been its principal executive officer from 1948 down to the present. His incarceration for the period of his contempt sentence did not alter or diminish his power or control. He describes himself alternatively as the 'Executive Secretary,' the 'titular head,' or the 'senior executive' and appears to be the sole officer of the organization. He has had, and continues to have, full responsibility for all its books and records and his control is so complete that he has power to command any record in the possession of any of its chapters. Thus, we are not dealing with a case of divided responsibility
or of a person whose tenure of office is in issue.
As pointed out by the government, Patterson from time to time has given varied and conflicting statements with respect to the records.
He has said that:
'(a) he would not give them up;
(b) he was making listings ...