Before CLARK, Chief Judge, and FRANK and HINCKS, Circuit Judges.
Defendant, William L. Patterson, has been convicted of criminal contempt for his failure to produce certain records demanded by a subpoena duces tecum issued by a duly authorized grand jury. The defendant concedes that any records of the Civil Rights Congress which presently exist are in his control as Executive Secretary of that organization. His main contention, also advanced below, but rejected by the district court, is that the government has not sustained its burden of proof that the records it demands are still in existence.
The present proceedings arise out of an investigation initiated by the Internal Revenue Department last spring to audit the books of the Civil Rights Congress. At that time Patterson had prepared detailed statements of 1953 income from the 1953 receipt books, but refused to submit the receipt books themselves which contained the names of contributors. This refusal, which concerned at that time only the 1950, 1951, and 1952 books, led to a ninety-day sentence for criminal contempt by Judge McGohey in June. Matter of Tax Liability of Civil Rights Congress for the years 1950, 1951 and 1952, D.C.S.D.N.Y., 124 F.Supp. 68. This sentence was served from July 1 to September 28, 1954. Immediately after release from prison, defendant was again asked for the receipt books, this time including the 1953 ones, by an Internal Revenue agent. Upon noncompliance the matter was referred to a grand jury for investigation of possible violation of I.R.C. § 145(a), 26 U.S.C. § 145(a), which provides penalties for failure to file tax returns, keep books, or supply information for federal tax purposes. Pursuant to a grand jury subpoena dated October 28, 1954, testimony was taken on November 5, 9, and 16, 1954. At that time the defendant testified that he had not had possession of the documents since July 1, 1954; and other witnesses attested to destruction of earlier records in April or May of this same year. Judge Weinfeld on November 16 directed production of the 1952 and 1953 records and imposed a contempt sentence on November 19 when they were not produced. Application of Patterson, D.C.S.D.N.Y., 125 F.Supp. 881.
The law of criminal contempt is clear that no individual may refuse to surrender existing documents of a corporation or association if they be within his control. United States v. Fleischman, 339 U.S. 349, 70 S. Ct. 739, 94 L. Ed. 906; United States v. White, 322 U.S. 694, 64 S. Ct. 1248, 88 L. Ed. 1542, 152 A.L.R. 1202; Wilson v. United States, 221 U.S. 361, 31 S. Ct. 538, 55 L. Ed. 771, Ann.Cas.1912D 558; United States v. Field, 2 Cir., 193 F.2d 92, certiorari denied 342 U.S. 894, 72 S. Ct. 202, 96 L. Ed. 670, certiorari dismissed 342 U.S. 908, 72 S. Ct. 303, 96 L. Ed. 679.*fn1 There was sufficient evidence to support the finding of the trial judge that the receipt books for 1952 and 1953 were still in existence in June, 1954, when the statements based upon them were produced for agents of the Bureau of Internal Revenue. From this, and from the fact that the defendant had made contradictory statements about the whereabouts and existence of the records in June, Judge Weinfeld concluded that the government had made out a prima facie case for October, 1954, when the subpoena issued, and November, 1954, when the alleged contempt occurred. And, going on this assumption, he held that the defendant had not met the burden thus thrust upon him by testifying: "I have no knowledge of the whereabouts of the books called for, nor whether they are in existence. * * * I have not seen those books since July." Judge Weinfeld then sentenced the defendant for contempt, despite the fact that he held that the defendant had been justified in invoking the privilege against self-incrimination when asked about the whereabouts of the books from July to November.*fn2 Legal basis for resort to the privilege was found in the fact that testimony as to destruction of the records might lead to prosecution for violation of I.R.C. § 145(b) and evasion of the tax or for perjury with regard to a prior affidavit, made in June, 1954, denying knowledge of the whereabouts of the records at that time.
The decision below thus rested primarily on a presumption of continued possession and existence held sufficient to constitute a prima facie case for the government. Neither the existing precedents nor the facts of this case warrant such a drastic shifting of the burden of proof in a criminal case. As the Supreme Court said in Maggio v. Zeitz, 333 U.S. 56, 65, 68 S. Ct. 401, 406, 92 L. Ed. 476: "Language can, of course, be gleaned from judicial pronouncements and texts that conditions once existing may be presumed to continue until they are shown to have changed. But such generalizations, useful enough, perhaps, in solving some problem of a particular case, are not rules of law to be applied to all cases, with or without reason. * * * Under some circumstances it may be permissible, in resolving the unknown from the known, to reach the conclusion of present control from proof of previous possession. Such a process, sometimes characterized as a 'presumption of fact,' is, however, nothing more than a process of reasoning from one fact to another, an argument which infers a fact otherwise doubtful from a fact which is proved." The presumption is thus no more than a common-sense inference, as strong or as weak as the nature of the surrounding circumstances permits. Brune v. Fraidin, 4 Cir., 149 F.2d 325. That also has been the established rule in this circuit. In the two cases where we have upheld a factual inference of present from past possession, the time period so spanned was short, and outside motivation for destruction of the particular records there involved was lacking. United States v. Goldstein, 2 Cir., 105 F.2d 150; In re Arctic Leather Garment Co., 2 Cir., 89 F.2d 871.
Here, in contrast, several significant facts make continued existence and possession of the 1952 and 1953 records on the whole unlikely. Patterson's own possession was undeniably interrupted by his jail sentence from July to September. During that time other officials of the Civil Rights Congress might well have taken it upon themselves to do away with these records. The very existence of these records had already once sent their Executive Secretary (and others) to jail. Furthermore, the Civil Rights Congress was being investigated by the New York Legislative Committee to Investigate Charitable Agencies and Philanthropic Organizations; and a hearing before the federal Subversive Activities Control Board concerning listing as a Communist-front organization was pending. In the light of all this hostile official scrutiny it would have been natural for the officers of the Civil Rights Congress to have thought it advisable to destroy records which might lead to identification and exposure of their contributors. There is nothing to show that, given this motivation, these officers could not have destroyed these records, since they were never in the exclusive physical custody of Patterson, even when he was not in jail. See Healey v. United States, 9 Cir., 186 F.2d 164.
The government contends that an impossible burden will be placed on it if in cases like this it must introduce positive proof of continued existence. While it is true that the prosecution need not negative every self-exculpatory suggestion of a recalcitrant witness, it cannot completely sidestep its burden of proving guilt beyond a reasonable doubt.The tests recently reiterated in United States v. Fleischman, 339 U.S. 349, 361, 70 S. Ct. 739, 745, 94 L. Ed. 906, emphasize that before the burden of proof may be shifted, the government's case must be independently established to some extent, and there must be a "manifest disparity in convenience of proof and opportunity for knowledge." Outside of the challenged inference and temporally remote contradictory statements by the defendant,*fn3 independent evidence for conviction is lacking here. More important, there is no "manifest disparity in convenience of proof" when the defendant can extricate himself from his predicament only by opening the door to criminal prosecution on other charges. The defendant can here legally be jailed only for a contempt in failing to produce the sought-after books when they are fairly shown to be presently within his power and control. He cannot legally be jailed for contempt for invoking his constitutionally protected privilege not to be a witness against himself. But that in effect is what has happened. The result is the more strange, since court and counsel below respected his privilege and did not press him further or beyond the point stated. There is thus nothing to fill the gap in the proof; hence his conviction must be reversed. Healey v. United States, supra, 9 Cir., 186 F.2d 164, 170, 171. We therefore remand the proceeding for his release.*fn4 This should be effected at once in order that the case not become noot. See Patterson v. United States, 75 S. Ct. 256, per Acting Circuit Justice Frankfurter.
The judgment is reversed and the proceeding is remanded for the immediate discharge of the defendant from custody. The mandate of this court will issue at once.
HINCKS, Circuit Judge (dissenting).
As the majority opinion discloses, "There was sufficient evidence to support the finding of the trial judge that the receipt books for 1952 and 1953 were still in existence in June, 1954". The evidence also showed that these receipt books were indeed "books" as distinguished from loose papers; that each of them contained records of transactions extending at least over several months; that it had been the practice of the Civil Rights Congress (CRC) to preserve such books for a period of years; and that these particular books had not been destroyed when inspection thereof was first demanded by an Internal Revenue Agent in April 1954 but on the contrary were still in existence in June - several weeks after a subpoena had actually issued on May 12, 1954 calling for the production of the 1950-1952 receipt books.
Defendant's own testimony of May 27, 1954 showed that as Executive Secretary and national head of the CRC he, and no other official or individual, had authority to produce the records. In November he testified that he had been head of CRC from April 1948 continuously to date, including the 90-day period of his jail term which had terminated on September 28, 1954; that he had responsibility for the books and records; that "there is not an available record in my office which would not be produced at my request"; and that the heads or secretaries of CRC chapters "have a responsibility to carry out my directives."
In April 1954, a revenue agent in the course of an audit of the CRC books demanded to see its receipt books for 1950-1952 and was told by the CRC bookkeeper that the books were available but that she would never give them to him or that he would never see them. On June 17, 1954, the defendant filed an affidavit in opposition to a contempt citation in which he swore that he then believed that the books for 1950-1952 had been contained in cartons which had been destroyed while in storage. But the government produced credible evidence that the cartons thus referred to had been destroyed in April 1954: yet, as noted above, the books for 1952 and 1953 were still in existence in June 1954.
The defendant himself throughout took the position that the government had no right through inspection or production to see the receipt books. On October 22, 1954, when he appeared before the Grand Jury in response to its subpoena, he testified that the books called for "were not possessed by us or available to us in June, last June." As to this, his counsel now concedes by brief "that there was evidence from which the court might logically infer that the duplicate receipt book for the year 1953 was in existence in June. * * * and that there was further evidence (although inadequate in the opinion of the writer - i.e. appellant's counsel - ) from which the court below might have inferred that the 1952 records as well as the 1953 records existed in June 1954." He then proceeded to testify that the records "are not available now." He gave as further reasons for noncompliance an assertion that the subpoena was part of a national "witch hunt" against progressive organizations not in pursuit of any legitimate government function and, lastly, that the Internal Revenue Service had no valid interest in the CRC because CRC was exempt from taxation under the Internal Revenue Code as a civil league. As to the receipt books, he testified "We do not have them, I do not know who possesses them if they exist - they are not available and in so far as my knowledge is concerned are not in existence." And when asked what steps he had taken to locate the records since September 28, 1954 (when he had completed his prior sentence for contempt) he testified that "on advice of counsel, I myself made a most extensive search of ...