Licavoli v. United States

Licavoli v. United States

Opinion

 [*207]  Appellant was indicted, tried by jury, and convicted of failing and refusing to appear before the Senate Select Committee on Improper Activities in the Labor or Management Field, after having been subpoenaed to appear. His principal point here is that the trial judge erred in refusing to instruct the jury that if the accused acted upon the advice of counsel they should acquit; indeed the judge instructed to the contrary.

Appellant says the offense with which he was charged, ¹ willfully making default, includes as an element a specific intent, i.e., willfulness. The statute says 'willfully makes default'. Therefore, he says, good faith reliance upon advice of counsel is a defense. He does not say so, but an essential [**2]  part of his premise is that an evil motive, which can be negatived by bona fide advice of counsel, is an element of 'willfully' under this statute.

It has been established ever since the Sinclair case ² that reliance upon advice of counsel is no defense to a charge of failing to answer a pertinent question, an offense under another clause of this same statute. ³ [**7]  But appellant  [*208]  points out that the statute does not mention willfulness in the clause respecting failure to answer questions, whereas it notably and expressly uses 'willfully' in describing the offense of making default. Therefore, the argues, there is a critical difference between the two offenses and, while reliance on counsel may not be a defense to the charge of which willfulness is not an element, it is a defense when an offense with a specific intent (i.e., willfulness) is charged.

It was established by the Bryan ⁴ and Fleischman ⁵ cases that ] he who deliberately and intentionally fails to respond to a subpoena 'willfully makes default'. ⁶ Evil motive is not a necessary ingredient of willfulness under this clause of the statute. A deliberate intention not to appear is sufficient.  It was established [**3]  by the Quinn case ⁷ that a deliberate, intentional refusal is an element of the offense of refusing to answer a pertinent question under the other clause of the statute.  We discussed this in United States v. Deutch. ⁸ So it is established that the intent essential to constitute an offense under these tow clauses is the same in nature --  a deliberate, intentional failure, without more, in each case.

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