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U.S. Supreme Court

United States v. Fleischman, 339 U.S. 349 (1950)

United States v. Fleischman

No. 98

Argued December 15, 1949

Decided May 8, 1950

339 U.S. 349


Respondent was a member of the executive board of an association which was under investigation by the Committee on Un-American Activities of the House of Representatives. The Committee issued subpoenas to each of the members of the executive board, demanding that they produce in the committee room at a stated time certain of the association's records which were in the custody of the executive secretary of the association. The members of the executive board, acting together, had power to direct the executive secretary to produce the records and to remove her from office, but they held no meeting to consider compliance with the subpoena. They appeared in response to the subpoenas, but the records were not produced. In identical prepared statements to the Committee, each asserted that he did not individually have custody of the records, and was therefore unable to comply with the subpoena. Asked whether she personally would permit the Committee to see the books, respondent answered: "I don't think it is pertinent to say what I should do a week from now." She was indicted, tried, and convicted for willful default under R.S. § 102, 2 U.S.C. § 192.


1. The question of the lack of a quorum of the Committee, raised for the first time at the trial, and the question of the admissibility of testimony given before the Committee at the trial for willful default, are governed by the decision in United States v. Bryan, ante p. 339 U. S. 323. P. 339 U. S. 352.

2. The fact that respondent had no individual control over the records was no defense. Pp. 339 U. S. 356-358.

(a) When one accepts an office of joint responsibility, in which compliance with lawful orders requires joint action by the body of which he is a member, he necessarily assumes an individual responsibility to act, within the limits of his power, to bring about compliance with such an order. Pp. 339 U. S. 356-357.

(b) The fact that the organization here involved was an unincorporated association, rather than a corporation, is immaterial. P. 339 U. S. 358.

3. After introducing evidence that the executive board had power to produce the records and that it had not done so, the Government chanroblesvirtualawlibrary

Page 339 U. S. 350

did not have the further burden of proving that each individual member had not done that which was within his power to bring about compliance with the Committee's order. Pp. 339 U. S. 358-364.

(a) The doctrine that it is not incumbent on the prosecution to adduce positive evidence to support a negative averment the truth of which is fairly indicated by established circumstances and which, if untrue, could be readily disproved by the production of documents or other evidence probably within the defendant's possession or control is applicable here. Pp. 339 U. S. 360-361.

(b) In the absence of evidence that respondent made some effort to bring about compliance with the subpoena or had some excuse for failing to do so, the evidence adduced by the Government amply sustained the conviction. P. 339 U. S. 364.

4. The subpoena was not defective by reason of the fact that it was addressed not to the association by name, but to respondent as a member of the executive board. Pp. 339 U. S. 353-354, n. 4.

84 U.S.App.D.C. 388, 174 F.2d 519, reversed.

Respondent was convicted of willful default under R.S. § 102, 2 U.S.C. § 192, for failure to comply with a subpoena of the Committee on Un-American Activities of the House of Representatives. The Court of Appeals reversed. 84 U.S.App.D.C. 388, 174 F.2d 519. This Court granted certiorari. 338 U.S. 846. Reversed, p. 339 U. S. 365.

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