dissenting.
I agree with the majority that the trial judge erred in holding as a matter of law .that Quinn could not adopt Fitzpatrick’s statements for whatever they were worth. But, for reasons to be stated later, my view is that Quinn was not prejudiced by that erroneous ruling, and therefore I think my brothers of the majority are wrong in reversing his conviction and remanding the case for the trial judge to say whether Fitzpatrick did or did not claim the protection of the Fifth Amendment against -being compelled to testify against himself.
The court’s action in reversing and remanding seems to me to arise from, and to depend entirely upon, the following statements in the majority opinion:
*39“ * * * The trial court made no ruling upon the meaning or the sufficiency of Fitzpatrick’s statement. Having held that Quinn could not as a matter of law adopt it, the court was not called upon to consider it.”
Perhaps the trial judge was not “called upon to consider it,” but I cannot believe the judge’s erroneous legal conclusion, that Quinn could not claim immunity by adopting Fitzpatrick’s language, precluded him from considering whether that language was legally sufficient as a claim of immunity from self-crimination. If the trial judge actually considered Fitzpatrick’s statements and held them insufficient as a claim of privilege, my view is that we should regard that holding as an alternative basis for the finding of guilt, which after all was the ultimate finding of the trial judge. I do not believe we should set aside a correct ultimate finding that a defendant is guilty because the trial judge gave two reasons for it, one of which was wrong and one of which was right.
With those considerations in mind, I suggest the majority are incorrect in saying the district judge made no- ruling upon the meaning or sufficiency of what Fitzpatrick said in attempted justification of his refusal to answer the question. If I am correct in that belief — that is to say, if the district judge did make such a ruling — then the sole basis for reversal disappears, and the remand is for the futile purpose of permitting the trial judge to make a finding which he has already made.1
Moreover, while I do not stress the point, I think it extremely doubtful whether the District Court was required, in the circumstances, to make a special finding concerning the sufficiency of Fitzpatrick’s remarks as a claim of the privilege. Rule 23(c) of the Federal Rules of Criminal Procedure provides: “In a case tried without a jury the court shall make a general finding and shall in addition on request find the facts specially.” The general finding referred to in the rule is a finding o-f either guilty or not guilty.2 Here the trial judge announced the general finding of guilty as charged. No request for special findings was submitted.
I question whether, under Rule 23(c), a trial judge is required to make special findings on all the factual issues involved, when none had been requested, merely because he announced findings on some of the issues of fact in the course of the opinion which preceded his general finding of guilty. Be that as it may, however, I think it quite clear that in this case the trial court stated, while -delivering his opinion, a finding that Fitzpatrick’s statements did not amount in legal effect to a claim of the privilege against self-incrimination.
The erroneous legal ruling by the district court that Quinn could not adopt Fitzpatrick’s language did not mean the judge had not read and considered that language, nor that he had not formed and expressed an opinion as to whether Fitzpatrick had actually claimed the privilege. The contrary appears. The trial judge’s opinion shows he had read and considered Fitzpatrick’s statements. He noted their nature and found them insufficient as a claim of immunity against compulsory self-incrimination. I quote from the District Court’s opinion:
“ * * * the Court will not go into detail of the -position which Mr. Fitzpatrick took, other than to say that it certainly left much to be desired as *40to whether he was actually claiming self-incrimination or not.
“It is to be observed that his answers — and I speak of Mr. Fitzpatrick’s — were long and rambling. They had a major théme, which seemed to be that the committee was prostituí- ' ing its office and seeking to aid a rival group in a forthcoming [local union] election.”
To- be sure, the judge did not apply the “finding of fact” label to this evaluation of Fitzpatrick’s language, but that is immaterial. Whether the issue was oné of fact or law, the judicial observations just quoted were tantamount to a finding that Fitzpatrick’s remarks to the subcommittee did not' amount’ to a reliance upon- the shelter of • the self-incriminaition clause. For, when the judge said those remarks “certainly left much to be desired as to whether he was actually claiming self-incrimination or not,” he Was clearly saying Fitzpatrick had not asserted the claim in the way the cases say a witness must invoke it in order to be entitled to its protection. So, the erroneous legal ruling did not prejudice Quinn., .
The privilege against self-incrimination, when invoked ■ properly, is liberally construed and applied; but the language of the witness which is said to constitute a claim of the privilege is strictly construed and appraised. This will appear from cases hereinafter cited. Nor is the privilege automatically applicable to every question which requires an incriminating answer. It is personal to the witness, and is waived unless he claims it at the time when, and in the tribunal where, the question is asked. The Supreme Court said in United States v. Monia, 1943, 317 U.S. 424, 427, 63 S.Ct. 409, 410, 87 L.Ed. 276:
“The Fifth Amendment declares that ‘No person * * * shall be compelled in any criminal case to be a witness against himself.’ * * * The Amendment speaks of compulsion. It does not preclude a witness from testifying voluntarily in matters which may incriminate him. If, therefore, he desires the protection of the privilege, he must claim it or he will' not be considered to have been ‘compelled’ within the meaning of the Amendment.”
What must a witness say in order to claim the privilege ? He must in some manner fairly bring to the attention of the tribunal which must pass upon it, the fact that he is invoking and relying upon the constitutional privilege. He must claim it in no uncertain terms. He must use some expression directly indicative of the intention to claim this particular protection of the Fifth Amendment, as distinguished from other constitutional rights. In United States ex rel. Vajtauer v. Commissioner of Immigration, 1927, 273 U.S. 103, 113, 47 S.Ct. 302, 306, 71 L.Ed. 560, the Supreme Court said:
“ * * * The privilege may. not be relied on and must be deemed waived ’ if not in some manner fairly brought to the attention of the tribunal which must pass upon it. See In re Knickerbocker Steamboat Company, D.C., 139 F. 713 [716]; United States v. Skinner, D.C., 218 F. 870, 876; United States v. Elton, D.C., 222 F. 428, 435.”
In the Knickerbocker Steamboat case, cited by the Supreme Court, it was said:
“ * * * Incriminating matter may appear but a party may not desire to resort to the privilege of not answering with respect thereto. If he does, he must say so in unmistakable language and give the reasons for shielding himself.”
In the later case of Rogers v. United States, 1951, 340 U.S. 367, 370, 71 S.Ct. 438, 440, 95 L.Ed. 344, the Court said:
“If petitioner desired the protection of the privilege against self-incrimination, she was required to claim it. United States v. Monia, 1943, 317 U.S. 424, 427, 63 S.Ct. 409, 410, 87 L.Ed. 376. The privilege ‘is deemed waived unless invoked.’ United States v. Murdock, 1931, 284 U.S. 141, 148, 52 S. Ct. 63, 64, 76 L.Ed. 210. Furthermore, the decisions of this Court are explicit in holding that the privilege against *41self-incrimination ‘is solely for the benefit of the witness/ and 'is purely a personal privilege of the witness.’ ”
The following is from the opinion of the Eighth Circuit in Phelps v. United States, 1947, 160 F.2d 858, 872:
“There is, of course, no prescribed or crystalized formula for claiming the privilege against self-incrimination. The provision in 50 U.S.C.A. Appendix, § 922(g), (and in other recent statutes) that the privilege against self-incrimination must be ‘specifically’ claimed, would seem to imply, however, that there must he some expression, directly indicative of the intention to claim the particular privilege, as distinguished from other possible rights, and reasonably communicative of the fact that this is what is being done.”
The District Court for the Eastern District of Pennsylvania, in United States v. Miller, 1948, 80 F.Supp. 979, 982, said:
“ * * * The witness, upon oath, must claim his privilege in no uncertain terms at the proceeding in which the information is sought or he will not thereafter he considered to have been ‘compelled’ within the meaning of the Amendment.”
To this the court cited the Vajtauer case, supra, United States v. Murdock, 1931, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210 and United States v. Benjamin, 2 Cir., 1941, 120 F.2d 521, 522.
The opinion m the Benjamin case was written by Judge Augustus N. Hand and was concurred in by Judges Learned Hand and Swan. The following quotation therefrom supports my belief that a witness cannot claim the privilege by announcing that he stands on his constitutional rights, thus leaving it to the court to guess the provision upon which he relies; and that he cannot claim it by saying he relies upon the First and Fifth Amendments without pointing out the particular protection which he seeks out of the several afforded by those two Amendments:
“The appellant filed a plea in abatement in which he alleged that he had been subpoenaed to appear before a grand jury investigating the subject matter of the above indictment. He alleged that he thereupon appeared and asserted his constitutional .immunity against being compelled to testify, but notwithstanding this was examined and compelled to give testimony. Upon the trial of the plea it was shown that when he came before the grand jury he was told that he was at liberty to assert his privilege in respect to any answers to questions which might tend to incriminate him. He thereupon stated that he was going to stand upon his constitutional rights. In response to questions relating to his dealings with .Bob he answered the questions freely without raising constitutional objections. He was not only a lawyer himself but appears to have been advised by counsel. We have no doubt that his rights were not invaded. It is to be remembered that the appellant had not the constitutional privilege to refuse to testify which belongs to a defendant on trial. He was subject to call as a witness and only had the right of any witness to decline to give answers when interrogated which might tend to incriminate him. O’Connell v. United States, 2 Cir., 40 F.2d 201, 205; Mulloney v. United States, 1 Cir., 79 F.2d 566. As Professor Wigmore has said, the privilege is ‘an option of refusal and not a prohibition of inquiry’. Wigmore Evidence, 2d Ed., § 2268. The appellant is apparently under the erroneous impression that a general statement that he would stand upon his constitutional rights was a substitute for objections to answering specific questions.”
From these authorities I deduce the principle that a witness waives the privilege unless he claims it clearly, distinctly, expressly, specifically and in unmistakable terms. When the district judge said Fitzpatrick’s position “certainly left much to be desired as to whether he was actually claiming self-incrimination or not,” he was finding that Fitzpatrick had not claimed the privilege in the fashion the cases say it must he invoked if waiver is to be avoided. In order *42to amount to a claim, the language of a witness must leave nothing to be desired.
The majority of this court agree, I note, with the trial judge’s appraisal of Fitzpatrick’s statement. They say:
“Perhaps, if we were of clear opinion that Fitzpatrick, and therefore Quinn, did claim the privilege and so must be acquitted, we should dispose of the matter finally here and now. * * * But a majority of the court are not of that clear opinion.”
We should not let the fact that Quinn and Fitzpatrick would have been entitled to the privilege, had it been invoked,3 color our thinking as to whether the privilege was claimed. The question is not whether immunity should have been granted if claimed ; it is whether the privilege was claimed. For, as the Supreme Court said in United States v. Murdock, 284 U.S. at page 148, 52 S.Ct. at page 64, 76 L.Ed. 210:
“ * * * The validity of his justification depends, not upon claims that would have been warranted by the facts shown, but upon the claim that actually was made. The privilege of silence is solely for the benefit of the witness and is deemed waived unless invoked. Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 113, 47 S.Ct. 302, 71 L.Ed. 560.”
A brief analysis of the statements made to the subcommittee by Quinn and Fitzpatrick will suffice to show adequate support for the District Court’s holding that neither claimed the protection of the Fifth Amendment against being compelled to testify against himself. I agree with the majority that their statements should be considered and evaluated “in full text and context.” When Quinn was asked the crucial question, his immediate reply was this:
“I would like to make a statement along the lines that Mr. Fitzpatrick made yesterday’ in regard to a question of that nature. I feel that the political beliefs, opinions, and associations of the American people can be held secret if they so desire.”
When the question was repeated, Quinn said:
“I decline to discuss with the committee questions of that nature.”
Thus Quinn gave his understanding of Fitzpatrick’s reason for refusing to answer the question: he understood Fitzpatrick to have relied upon the constitutional right of the American people to keep secret their political beliefs, opinions and associations. This was an obvious reference to the freedom of speech clause of the First Amendment and its correlative freedom of silence, and was by no means an assertion of a personal claim by Quinn to refrain from answering on the ground that in doing so he might incriminate himself. Having stated that Fitzpatrick’s statements could be regarded as the expression of his own views, Quinn said:
“* * * I may add I feel I have no other choice in this matter, because the defense of the Constitution, I hold sacred. I don’t feel I am hiding behind the Constitution, but in this case I am standing before it, defending it, as small as I am.”
This about covers Quinn’s examination except for this further statement by him:
“Yesterday one of the Congressmen on the committee made the statement that people brought down here were being given an opportunity to clear themselves-, as it were. I would like to say I don’t feel it is an opportunity to. clear myself. I feel the opportunity I am given here is a -choice of clearing myself at the price of assisting this committee and destroying the Constitution, and I could not join the committee in doing that.
* * * * * ' *
*43“I think it is clear this hearing was called solely for the purpose of interfering with our election.”4
Far from invoking a constitutional protection for himself, Quinn conceived that he was defending the Constitution against the encroachment of the subcommittee.
In the light of the foregoing, I suggest that no matter what Fitzpatrick had said, Quinn demonstrated his understanding of the statements he adopted as being that all the American people, including himself, had the right to keep secret their political beliefs, opinions and associations, and that he was prepared to defend this First Amendment freedom against the attack of the subcommittee.
Putting that suggestion aside, however, and assuming that Quinn’s adoption of Fitzpatrick’s language was without qualification on his part, so as to entitle him to the privilege if Fitzpatrick had in fact claimed it, 1 now consider Fitzpatrick’s statements in full text and context. As the district judge observed, Fitzpatrick’s remarks were long and rambling. He began by asking and obtaining permission to make a few preliminary remarks. After a diatribe against the committee, he said:
“I will answer all honest questions put to me, but l have no intention of joining with the people who seek to destroy the Constitution of this country, whether witnesses or anybody else. To me, the Constitution of this country is not a scrap of paper.' It is something to be maintained. I have two sons. I want them to have the same freedoms and rights that I have enjoyed.- If I can’t leave this world a better world, I want to leave it just as good.
“The Constitution of this country provides certain protection for minorities and gives the privilege for people to speak and think as they feel they should and want to. It also gives the privilege that people can have opinions or beliefs that may be unpopular. In my opinion, it gives them the right to hold those opinions secret if they so desire. This is a protection of the First Amendment to the Constitution, supplemented by the Fifth Amendment.”
Following this, Fitzpatrick was asked the question whether he was or had ever been a member of the Communist Party. His immediate response was this:
“Mr. Chairman, in my opening remarks I gave quite a bit of my attitude on this question. I say that this committee has no right to pry into my mind.”
Upon insistence by the committee counsel that he answer “yes” or “no,” or decline to answer, Fitzpatrick said:
“I will answer the question. The Constitution guarantees the right to me and every other citizen to have beliefs, whether they are popular or unpopular, and to keep them to themselves if they see fit, and I have no intention of being a party to weakening or destroying that protection in the Constitution. I feel when I take this position that I am one of the real Americans, and not like some of the phonies who appear here.”
After this statement the following colloquy occurred between Fitzpatrick on the one hand and the chairman and counsel on the other:
“Mr. Wood. Now will you answer the question?
“Mr. Fitzpatrick. I have answered the question.
“Mr. Wood. It is not an answer at all.
“Mr. Fitzpatrick. That is my answer.
“Mr. Wood. Do you mean that is the only answer you are going to give ?
“Mr. Fitzpatrick. That is the way it ha-s to be answered, according to my conscience.
“Mr. Wood. Is that the only answer you will give to the question whether you are now or ever have been a member of the Communist Party?
*44“Mr. Fitzpatrick. That is the only-answer I can conscientiously give you.
“Mr. Tavenner. Mr. Fitzpatrick, you were present yesterday during the testimony here. You heard it stated under oath that you are a member of the Communist Party. Do you deny that accusation ?
“Mr. Fitzpatrick; The answer to my previous question is the answer to this question. I have no intention of permitting this committee to abridge my constitutional rights on political opinions, associations, who I work with, who I meet with, what I read or think, or anything of that kind.
“Mr. Tavenner. So, in other words, you refuse to answer the question?
“Mr. Fitzpatrick. I don’t refuse to answer the question. I have answered the question.”
During the remainder of his testimony Fitzpatrick made such statements as:
" * * * I have no intention of discussing my political actions or activities with this committee, for the reasons that I have stated before.”
“I say it is no affair of the committee what organizations I belong to. The previous answer applies.”
" * * * So far as my beliefs, my political activities, my associations, affiliations, what I read, those are rights guaranteed to me and every other citizen of this Nation.”
" * * * The opportunity you give me is to join with you and these other witnesses who appeared here yesterday and say the Constitution is a scrap of paper and it gives no protection to the people and you fellows have a right to delve into the mind of everybody who comes here.”
“ * * * Do you have thought control in the United States now? Are you going to convict people oh thinking? I think maybe you fellows should read that Constitution.,” ‘
I find nothing in Fitzpatrick’s testimony which even indicates, that he refused to say whether he was or ever had been a member of the Communist Party because he feared his answer might incriminate him, or that he relied on the self-incrimination clause of the Fifth Amendment in declining to respond. It is true that he mentioned the Fifth Amendment twice. His first reference to it was a preliminary remark which I have quoted above, when he said people can have unpopular opinions or beliefs and hold them secret if they so desire. “This,” he said, “is a protection of the First Amendment to the Constitution, supplemented by the Fifth Amendment.”
Thus he described his reference to the two Amendments as being the freedom of speech and silence guaranteed to all people by the First Amendment, as somehow supplemented by the Fifth, — perhaps the due process clause. His point was that all people have the right to keep silent as to their political opinions because the freedom of speech clause guarantees that right; that he shared in that right and refused to answer because of it, — not at all because to speak of his political opinions and associations might incriminate him.
A second time Fitzpatrick referred to the First and Fifth Amendments, when he was asked whether he had solicited one Copeland to join the Communist Party, and responded by saying:
“I will not talk about my association and actions with people who I know, what I did, or anything else. I don’t think it reflects on my loyalty or disloyalty or anything else.”
The chairman of the committee then inquired :
“Mr. Fitzpatrick,’ did you ever at any time during, the year 1943 furnish an application blank and request Clarence D. Copeland to sign and make application for membership in the -Communist Political Association, or the ‘Communist Party?
“Mr. Fitzpatrick. Mr. Chairman, do I have to give you my answer again?
“Mr. Wood. I just want to know, whether you did that one thing.
*45“Mr. Fitzpatrick. I say if I did or if I did not, regardless of what I did, it is not the affair of this committee to pry into this kind of action.
“Mr. Wood. And for that reason do . you decline to answer the question?
“Mr. Fitzpatrick. I stand on the protection of the 'Constitution, the First and Fifth Amendments.
“Mr. Wood. And for those reasons decline to answer the questions further?
“Mr. Fitzpatrick. I have answered the question.
“Mr. Wood. I say, do you decline to answer it further?
“Mr. Fitzpatrick. I have no further comment on it.”
In this instance also, Fitzpatrick made it abundantly clear he was not invoking the two Amendments to avoid giving an incriminating answer, but that he thought the Amendments barred the committee from asking the question which would pry into his mind and would violate his constitutional right to be silent if an answer were compelled. I find it impossible to regard Fitzpatrick’s statements as amounting to a ■claim to the constitutional immunity from self-incrimination. Measured by the strict standards announced in the cases I have ■cited, by which the language of a witness must be measured in determining whether he actually intended to and did claim the privilege, Fitzpatrick’s statements fall far short of constituting such a claim. As the trial judge said, they certainly leave much to be desired. Cf. Emspak v. United States, (1952) 91 U.S.App.D.C. 378, 203 F.2d 54.
I conclude, therefore, that the district judge not only did in fact find that Fitzpatrick did not claim the privilege, but also that he was amply justified in so finding, ■despite the fact that, after Quinn’s conviction, Fitzpatrick himself was found not guilty by a different district judge, 1951, 96 F.Supp. 491, who seems not to have considered Fitzpatrick’s statements “in full text and context,” but acquitted him solely because he used the words “Fifth Amendment.” I think it is impossible to spell out a claim of the privilege from Fitzpatrick’s references to the Fifth Amendment, when they are considered in full text and context. Considered in that realistic way, they show Fitzpatrick had no intention of invoking the Amendment’s privilege against self-incrimination. I would affirm the judgment of the District Court.
I am authorized to say Judge PROCTOR concurs in this dissenting opinion; and that Judge CLARK also concurs except that, being of the opinion that the claim of privilege is a highly personal one and must be made by the person claiming it and not by reference, he thinks the trial judge was right in holding Quinn could not adopt the statements of Fitzpatrick.
. Furthermore, I doubt if the question whether Fitzpatrick’s statements amounted to a claim of immunity is a question of fact at all. There is no issue as to what Fitzpatrick’s language was, — there is no contrariety of proof as to what words he used. The question was, did that language, those words, constitute a claim of immunity? Counsel for Quinn conceded during oral argument that this is a legal question and not an issue of fact. But whether so or not, it is in my view unnecessary to decide, since I think the issue of fact (if it be such) which the majority say the trial court should have determined, and for the determination of which they remand the ease, was actually decided by the trial judge, as I shall show later in this opinion.
. 4 Barron, Federal Practice and' Procedure, § 2124.
. The Supreme Court in Blau v. United States, 1950, 340 U.S. 159, 71 S.Ct. 223, 95 L.Ed. 170, held that questions as to connections with the Communist Party are subject to the privilege against self-incrimination as calling for disclosure of facts tending to criminate under the Smith Act, 18 U.S.C.A. § 2385.
. Quinn and Fitzpatrick were, at that time, candidates for office in a local union at Pittsburgh. The union election, to be held soon thereafter, was that to which the appellant referred.