UNITED STATES of America, Plaintiff-Appellee, v. William L. PATTERSON, Defendant-Appellant, 219 F.2d 659

CLARK, Chief Judge. 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. Elis 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.l912D 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.

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.

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, 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. 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. . The last case cited, together with United States v. Meld, 2 Cir., 193 F.2d 109, and Green v. United States, 2 Cir., 193 F.2d 111, are all affirmances of convictions for contempt for failing to produce records of the Civil Rights Congress, though not touching the issue here crucial of their continued existence. See also United States v. Patterson, 92 U.S.

App.D.C. 222, 206 F.2d 433, affirming dismissal of an indictment against this defendant for failure to produce such records in response to a Senate committee subpoena on the ground of lack of juris- ■ diction in the committee. . The defendant Invoked the Fifth Amendment on several different occasions: “Q. Mr.

Patterson, where are the books that are called for by Grand Jury Exhibit 1? [After direction to answer] “The Witness: I must decline to answer on the grounds anything that I might say might tend to incriminate me. “Juror: How will it tend to incriminate you? “The Witness: Not because anything in the books themselves are incriminating, but that it creates the impression that I have personally, or through direction, either destroyed or made the books inaccessible. That would, of course, tend to incriminate me.” “Q. Mr.

Patterson, are the books called for by Grand Jury Exhibit 1 of today’s date; the subpoena, in the possession of any head of any of your chapters ? [After direction to answer] “Witness: I must decline on the ground that anything that I might say might tend to incriminate me. T would just like to also say this to the Grand Jury, that such a question implies that I did away with the books, and I want clearly to have such a question not placed on the record which would tend to put me in a position of perjury.” .

Since the defendant was undoubtedly correct in denying physical custody of the records from July 1 on, when he was in jail, his prior inconsistent statements . about their whereabouts before July 1 lose their probative force. They may have been relevant to his first conviction for contempt in June, but can hardly be said to carry pyer in substitution for proof of guilt in this case. . The defendant’s further contention that he was not afforded notice and a fair hearing as guaranteed by Eed.RuIes Crim.Proc., rule 42(b), we find without substance.

He was always represented by counsel, with every opportunity to cross-examine . witnesses. Significantly he never requested further hearings or extensions of time to prepare his defense. United States v. Bryan, 339 U.S. 323, 70 S.Ct. 724, 94 L.Ed. 884; Lang v. United States, 2 Cir., 55 F.2d 922, certiorari dismissed 286 U.S. 523, 52 S.Ct. 495, 76 L.Ed. 1267.