*1 Sll neis while full of lem purposes. molten metal is inherent” are admissible for such patent. in this However, particular instance, it is in this nothing experimenter clear that knew We shall not further extend discussion furnace, of the German not clear it is prior art; after careful considera- prior that he knew about other contribu- tion it, of all of wholly we think that we are Furthermore, tions to the art in evidence. unjustified in concluding that the court’s dispute Wyatt there is no that not teach findings clearly erroneous. As we how proper to build a furnace for induction said in Mfg. Hamilton Surgi- Co. v. Illinois melting dealing aluminum. He was cal Supply, Cir., 193 F.2d 942-943: entirely an possessing en- different metal any event, “In even if we entertained tirely qualities. different Defendant has doubt, we would justified refusing Wyatt’s made no claim that art was such accept findings by the District to instruct a furnace-maker how melt upon which its invalidity decision of aluminum. pre- His contribution to art rests.” ceded all attempts pre- to build a furnace or Defendant also alleged relies re- process scribe a for melting aluminum duction of metal, turbulence in the molten an induction proffered furnace. The evi- as one oif Tama’s par- contributions. The dence, therefore, would have thrown agree any ties molten bath of aluminum light upon the issue involved here. Fur- in a properly operated inevitably furnace thermore, if we having treat it as been re- develops surface, a skin of oxide on its having been considered ceived which, broken, if results serious trouble court, wholly rebut the insufficient to resulting due to oxidation. tends This court, documentary evidence before the frothy develop make the metal and to hard wholly part unknown large of which was spots castings. Apparently prob- in the this error, any, wholly witness. if lem recognized workers unprejudicial. pat- art. But we do find Tama judgment affirmed. suggestions upon subject real ents this matter, any discussion of turbulence or accompanying problems.
solution of its properly
We think the trial court found patentable
Tama made no contribution in respect. al. v. UNITED STATES. BRIDGES et complains Defendant of the ex No. 12597. experiments clusion evidence of one attempting early Klein in to utilize the Appeals United States Court of Wyatt patent, which, observed, as we have Circuit. Ninth brass, furnace covered a for melting Sept. 6, 1952.
melting experiments aluminum. These oc Rehearing Denial of As Amended on years from time time curred over the Nov. to 1943. from 1930 Defendant offered to Rehearing Second Petition for Denied prove testify the witness would Dec. attempts adapt Wyatt in his thus to successfully, furnace he was unsuccessful. clogged froze, furnace and he was satisfactorily
unable to devise method of channels. The
cleaning the evidence was theory objective
offered on such
experiments finding tend rebut a that one could have skilled art achieved what .in accomplished. patentee
Obviously, circumstances, under certain
prior prob- unsuccessful efforts to solve a *2 also, F.Supp.
See *4 Gladstein, Andersen Leonard, & Norman
Leonard, Vincent Hallinan, W. James *5 Maclnnis, Martin San Francisco, Cal., for appellants. Chauncey Tramutolo, Atty., U. S. Robert B. McMillan, Asst. Atty., U. S. San Fran- cisco, (James Mclnemey, Cal. M. Asst. Gen., Atty. Beatrice H. Rosenberg, Carl Imlay, Wilkins, Attys., Dept, R. John C., Justice, Washington, Boyd, D. P. John Sp. Gen., Atty. ap- Asst. of counsel), for pellee. STEPHENS, Before BONE, and
POPE, Judges. Circuit STEPHENS, Circuit Judge. day May, On the 25th single indictment was returned a United States charging Harry Grand Jury Bridg- Renton es, Schmidt, Henry and R. Robertson J. with the of conspiracy crime to fraudu- lently Bridges’ naturalization, secure Count I; 18 U.S.C.1946 ed. now 18 § U.S.C. 371; 1948Rev. charging Bridges § knowingly crime of making a false state- ment under relating oath to>his naturaliza- proceedings, II; tion Count 8 U.S.C.1946 746(a) (1), ed. now 18 § U.S.C.1948 Rev. § ; 1015(a) charging Schmidt and Robertson each with crime of fraudulently aiding abetting alien an (Bridges) procure naturalization, III; Count 8 U.S.C.1946 746(a) (5), ed. now 18 § U.S.C.1948 Rev. of the charges All § contained the indictment were submitted together to jury which returned verdicts guilty against each defendant as charged in each count; judgment and followed; sentence appeals each defendant on numerous persons 88. “If two or con- more § grounds judgment.1 spire as to each either to commit offense any the United or to de- I Count fraud the United States in manner I Count Title laid under U.S.C. any purpose, or for one or more (now ed. 18 U.S.C. 1948 Rev. § parties such do act to effect the 371) in which Rob- Bridges, Schmidt and object conspiracy, of the of the each conspired charged were having ertson parties to such conspiracy shall be fined together to secure the naturalization $10,000, more 'than imprisoned Bridges, alien, repre- by fraudulently years, more than two or both.” senting that he had never belonged Count, The texts of the alleged Communist United States. acts, overt margin.2 are set out applicable statute as follows: knew, well false were fraudulent was sentenced to: this, Harry years that said imprisonment defendant Ren- two on Count I years ton had in truth in fact be- the indictment and on Count five longed to commencing and been a indictment, II member running concurrently. United States year up including from the Schmidt was to: sentenced day September, 1945; imprisonment years said 17th I of Count two the indictment representation years said statement and two on Count proceed- indictment, commencing said naturalization material III of the ing. concurrently. running conspiracy, pursuance of such “That to: Robertson sentenced *6 during thereof, in the existence and and years imprisonment on I of Count two objects furtherance, and to effect the years Count and two on the indictment thereof, defendants, respectively, said did commencing indictment, of III and following performed acts: overt and concurrently. running day June, the 23rd of “1. On Jury charges: I: “The Grand 2. Count Bridges Harry filed defendant Renton Henry Bridges, Harry Renton That Immigration and Nat- at office (herein- Schmidt, Robertson and J. R. Service, City in uralization of San defendants’) on or ‘said after called appli- Francisco, California, an State of day June, 1945, and of about the 23rd continuing for a Arrival cation of and Certificate about until or thereafter preliminary petition form for nat- for prior 1, 1945, some time and for October uralization. being thereto, time to the exact day August, about the “2. On or 8th of City Jury unknown, and at Grand Harry 1945, said defendant Renton Francisco, County of Cali- of State San Lloyd Bridges appeared before H. Gar- District, fornia, Division and within said ner, a Naturalization Examiner of the other, conspire with and each did Francisco, San State at United Jury persons Grand to the other divers California, in of of the Coun- the office unknown, States the United to defraud County ty City Clerk in and for the and defeating obstructing impairing, by and Francisco, gave testimony in of and San proper of its natural- administration application the matter of the of said de- following, laws, manner in ization Harry Bridges Renton for nat- fendant Harry By having defendant said wit: uralization. petition fraudulently for Renton day about the Au- “3. On or 8th of a naturaliza- naturalization obtain and Henry gust, 1945, said defendants Superior proceeding of Court tion the Robertson, R. Schmidt and J. and each California, in and for of State County them, of the office of the Francisco, County City of San and City County for the Clerk in and and stating rep- fraudulently falsely and Francisco, California, State of San pro- resenting in said Court said signed petition witnesses a as for nat- ceeding the records numbered in the case uralization ry of defendant Har- he, Court, Superior said de- said Bridges. Renton Bridges, Harry had never Renton fendant day on about the 17th “4. On belonged to the Communist Harry September said defendants States; statement said United Bridges, Henry Schmidt, made, agreed Renton representation to be so Robertson, ap- defendants, them, and each aforesaid, J. R. made, as said Superior peared in the Court of the- herein mentioned all times them at each or Government States II Count not— Section 346 II is laid under Count “(1) Knowingly to make a false 876; Stat. Nationality Act c. oath, orally either or statement 746(a) 1163, Title 8 ed. U.S.C.1946 § case, writing, proceeding, or (1), (now 1015(a), Rev. U.S.C.1948 § to, under, relating matter or or alone, Bridges, charged in which is any law of the United States virtue of state- fraudulently made a false having naturalization or relating to citizen- pro- naturalization oath in his ment under ship.” of Cali- Superior Court ceedings in II is set Count out in text fornia, follows: margin.4 Mr. Question III Count you now, you or Bridges: “Do laid under 'Count III Section 346 ever, belonged Par- to the Communist Nationality Act c. 54 Stat. ty the United States?” 1137, 1163, 746(a) Title 8 ed. U.S.C.1946 Bridges: “I have Answer Mr. (5). In Count Schmidt Robertson not; I not.” do knowingly encouraging, are accused advising, aiding, assisting applicable statute is as follows: through secure fraud. his naturalization 746(a). “It U.S.C.1946 ed. § applicable statute is as follows: felony hereby for any made a alien or applicant person, other whether 746(a). an “It U.S.C.1946 ed. § citizenship, naturalization other- hereby felony alien or wise, employee applicant and whether person, other whether an City California, Harry State of in and for the that defendant Renton County Francisco, wilfully knowingly of San and there then gave testimony support peti- make a false statement under oath in Harry tion of defendant Renton certain matters which were material to proceeding *7 for naturalization.” the issues of said there then and following being heard, giving reading follow, 3. In the authorities which asked, questions answers to to wit: necessary keep it is to in mind “ ‘Q. you now, you ever, Do have or charged was not crime belonged Party to the Communist in the perjury charged sep- of but was with the United States? having fraudulently of arate offense a “ not; ‘A. I I not.’ do statement oath in false under his natu- That said answers so stated and tes- proceedings. ralizatipn Harry by tified to defendant Renton Jury 4. Count II: “The were, Grand further was, and them each of charges: Sep- day That on 17th of knew, said defendant then and there wil- City County tember, fully at the and contrary oath, of false and his said Francisco, California, in San the State of and said then defendant did not and there Superior them, answers, any of of State Cal- said or believe of City County ifornia, in and for true, were, and and said answers be Francisco, of San Honorable Thomas was, M. and each of them then and there Superior Foley, Judge, presiding, by there believed and known him to be false. hearing pro- for came on ceeding, naturalization “That and in in truth fact said defend- testifying belonged numbered records ant at of the time so Superior Court, petition of said on the to and was a member of the Communist Harry of defendant Renton in the United and had be- Nationality longed naturalization Act and been a member of said 14, 1940; of October Har- that defendant the United States ry up including Renton then and there and said 17th produced day as a September, called witness of 1945. proceeding hearing, said testimony then on “That said statement and he, defendant, took an oath said giv- before Court that of said en and said answers defendant, truly testify by aforesaid, the said him as were a ma- proceeding, said matter, said Court then terial material were in and competent authority proceeding.” there had to admin- of to the issues said oath, it; said ister and did administer citizenship, or naturalization or other- since indictment was returned wise, employee May 25, 1949, period and whether an of the on year pro- the three by limitations,6 Government States or vided the general statute of not'— n prosecutions within legally which could be assist [*] “(5) obtain, any To [*] accept, person not encourage, [*] or receive [*] entitled aid, advise, J [*] any thereto [*] cer- or missed must be reversed and the period. instituted, if the had prosecution expired and the judgments is indictment limited such dis- arrival, of inten- tificate declaration government The prosecution thinks the naturalization, tion, or certificate not so Congress, limited because the aware citizenship, docu- or other certificate prosecuting frauds com- difficulty or mentary naturalization evidence of against government during war- mitted citizenship— time, enacted the so-called Wartime Sus- to have been “a. same Knowing pension three- provided Act7 ** fraud; procured until year period begin would not to run set text Count out official- hostilities been cessation war margin.5 proclaimed. ly Limitations Statute opinion Appellants not are of one fraud alleged offenses acts are the bases of Suspen- government cognizable period performed within charges Act, therefore institution 23 to sion intervening October between June Jury Act of 6. June c. Stat. further III: “The Grand Count Henry defendants, charges: Title OFFENSES § U.S.C. 3282: said That “Except Robertson, NOT CAPITAL. as otherwise R. about J. Schmidt and person expressly provided law, September, 1945, day County shall at 17th prosecuted, tried, punished Francisco, City of San State offense, capital, California, indictment unless the Division and within said wilfully knowingly District, instituted found or the information is en- is within three years courage, person, aid, next after such offense and assist advise Bridges, Harry wit, shall have committed.” Renton then obtain, thereto, entitled and there accept Act June e. Stat. of Nat- Certificate and receive Title U.S.C. WARTIME 3287: procured, uralization, which was to be OF LIMITATIONS: SUSPENSION “When the United States is procured fraud, said defend- at war ants, them, all here- times and each running of of limitations (1) the applicable statute *8 knew, said fraud con- in mentioned well any involving offense sisting fraudulent statements of false and attempted or fraud fraud the representations a naturaliza- made in and any agency in or States thereof Superior proceeding before the tion any conspiracy manner, by whether of of the State California in not, (.2) or in or committed connection City County San Fran- of for the care, handling, acquisition, the with tody, cus- cisco, records of numbered in the disposition any of real control or Harry Superior Court, said said personal property of or the United belong Bridges did not Renton States, (3) or committed in connection Party in United States Communist the procurement, negotiation, belonged the to the Communist had never performance, award, payment States, for, Party in- in whereas in the United financing, Harry cancelation, terim or in fact Renton other said ter- truth settlement, contract, there, mination or as said then defend- purchase Robertson, subcontract, Henry R. or order which is ants Schmidt and J. prosecu- them, connected with or related to the each of and there well .and then any disposition war, knew, belonged to or with and was member tion the by inventory in the United of termination war con- the belonged agency, or and had tractor Government shall be suspended years until member of said Communist in the three after the up proclaimed in- from 1933 to and of hostilities as United States cluding termination September, by by day 17th the said President or a concurrent reso- ” * * * Congress. lution of 1945.” Silt prosecution ex- existing not abilities now these was under such sec- offenses parts tended it. tions be af- thereof shall fected repeal.” (Emphasis this The first count of the is under indictment ours.] the conspiracy, and substantive offense of the de second and third counts are offenses sections of the laws under which fined to Counts commonly in the statute referred II and III were laid are enumer- gov therefore, clear, as the ated in Nationality Act of 1940. schedule. that the opinion ernment is of laws charges statute under which in years case provided effectively limitations five were laid continued Nationality until the applies existing rights of 19408 then Act Counts or liabilities were extinguished II stat independently general and III running aof Act, limitations, statute of Suspension ute of and the limitations or otherwise. ap appellants while that it does not claim The Nationality Act contained a section ply that the of limita statute general provided limitation, five-year for a limita applicable is the years of three tions Title 8 U.S.C.A. 746(g), the insti- § con immediately to tion, shall go we tution of criminal proceedings for offenses problem. the latter sideration of defined therein. That section was includ- ed in repealed the schedule of sections but Repeal Clause Saving code; it was not carried over into the new Charged Counts Offenses new instead omnibus section of the code and III II applicable included limitation to the of- of the United Title 18 On June fenses in suit. The section reads: Code, Criminal entitled “Crimes States Except as 3282. otherwise ex- “§ effec- became Procedure” was enacted pressly law, person provided by Act September as tive law tried, punished prosecuted, shall be adop- By 62 Stat. June tion of any offense, capital unless criminal laws of the code the indictment is found or informa- brought nation, far practical, so years tion is instituted within three orderly through manner together next after such offense shall have been reen- repeal and method simultaneous committed.” Title 18 U.S.C.A. § code By the new Congress. actment 25, 1948, Act of c. Stat. June Nationality Act of the section 746(a)(1), under which Title U.S.C.A. § apparent It is five-year that if the limita- laid, suit Count II the indictment in Nationality tion in old Act, Title 1015(a) brought into the new code as § 746(g), U.S.C.A. remained effective § and in the same manner Title through provision in the repealing and Act, Nationality Title 8 section of Act, reenacting both and III were Counts II under III 746(a)(5), which Count C.A. § laid time it. It remained effective laid, was indictment suit “rights if reservation of or liabilities” into new 1425 of brought code preserved limitation, as well as the sub- phraseology change with some Title stantive offenses then existing, as of- *9 important in this case. fenses which prior committed to 25, 1948, provid- the However, Act June the effective date of the new code. The following: by 21 thereof ed the § pre- court held that the limitation trial was government supports the served and the parts sections or thereof of the “The holding. Large Statutes or Statutes at Revised following purpose Keeping the schedule in mind the remedial enumerated hereby repealed. Any rights revisors, Iv- are or the and Congress, of we think the arising Nationality 346(g), punished for of Section crime Act 1137, 1167, provisions chapter 876, 54 Stat. Title 8 U.S.O. the of this unless the c. 746(g): LIMI- is STATUTE OF indictment the information is § 1946 ed. found or years filed after within five next the TATIONS. person tried, prosecuted, “No shall be commission of such crime.” Saving into the given Clause cannot be the new code as 18 U. brog.d 3287 of Title
effect claimed
S.C.A.
government.
for it
the
We turn to the
of
consideration
done,
said,
What was
as we
the
and to
the
have
statute
whether it effected
suspension
transfer of
relating
running
laws
to
one
crime into
the
three-
the
year
code of
charged
laws. The offenses
statute of limitations.
Counts II and III were so
transferred
The Applicability of the Wartime
in order that no doubt should
to
arise as
Suspension Act
their
continuity
effective
orig-
from their
Suspension Act,
The Wartime
inal
Stat.
setting
Saving
to the new one the
828, is cast in three
Clause
numbered classes.
was added. The revisors saw no
government
(1),
suspends
reason
class
period
for
views
years
the
which
five
in-
stituting prosecution
running
general
limitation statute
for violation
until proclamation
offenses
hostilities
defined in
cessation of
Nationality
Act and
periods
attempted
shorter
as
offenses
fraud or
“involving
for certain other offenses.
Therefore,
against
fraud
they
the United States or
did not move the five-
year
manner,
agency
in any
limitation
whether
section
thereof
into the new code
* * *
conspiracy
”,
covering
or not
as
law,
and did not
they
continue it as
rights
frauds to obtain
privileges
defining
sections
the offenses under
gov
or which obstruct
government
In-
Counts II and III
were laid.
stead, they
agencies
the due execution
period at ernment or its
fixed the limitation
gov
years
pecuniary9 loss
through
operation
three
of law. And
Class
course,
necessary
omnibus
Of
element.
section.
of ernment is
statutes
apply
against
all
frauds
subject
(3)
limitations
are at
times
to es (2) and
change,
though change
government agency
government
never
revives a
right
pecuniary
specific
involve
a limitation has entire-
instances which
ly
government.
run.
loss to
legislation
skillfully
drawn
Appellants,
govern
opposing
prevent
al-
prosecutions
nullification
view,
apply
ejus
the rule of
ment’s
seek
ready begun by providing for
continuity
since
generis
argue
Act
to the
dem
through
the offenses
revision and
(3)
refer
frauds
(2)
classes
prevent
amnesty
an effective
as to viola-
nature,
(1)
class
is limited to frauds
same
tions
than three
less than five
more
pass
We
this conten
the same nature.
years
by postponing
old
the effective date
Gilli
quoting
tion
from United States v.
long
government
enough for the
un-
to act
land, 1941,
86, 93,
five-year
old
der the
limitation.
821
pecuniary
any
made as to
the case was
loss of the
proceed
at
look
We shall
to
government.
so,
part,
it
court
doing
The
said in
authorities. But before
every
page
fraud F.2d at
368:
not
well to
mind that
inherent
against
government, whether
argument
[by appellants]—
“The
ly
otherwise,
within
pecuniary or
comes
Congressional
drawn
debates
There
Suspension Act.
the effect of the
language
—is that this
should be con-
specific
for
statutes
are offenses
which
fined to frauds of those who contract-
apply
limitation
and there are offenses
ed with
supplied
the United States or
encompass
inherently fraudu
acts
materials,
it
that
it does not
which the
government
lent as to the
but in
include
interference
though
even
fraud is not an
and need
ingredient
fraudulent
pecuni-
which results in no
does
Suspension Act
proved.
be
ary
Textually
loss.
this reasoning has
deci
if the
such circumstances
apply
nothing
it,
to
except
commend
far
so
provisos considered
to sions relative
‘fraud,’ may
pecuni-
imply
word,
Scharton, herein
Noveck,
McElvain
and,
loss;
might
ary
whatever
be said
15a.
cited,
See our note
to rule.
are
after
matter for so circumscrib-
new
as a
Authorities
Case
law,
word,
been
ing,
it has
that
Gottfried,
1948,
Cir.,
1910, that
in the
States v.
since
statute
United
least
were
80,
360: Gottfried
others
165 F.2d
Title 18
under which
U.S.C.A.]
[§
sugar
drawn,
more
in frauds to obtain
in-
involved
indictment
‘fraud’
and his
legal
Gottfried
any conduct,
than their
ration.
‘calculated to ob-
cludes
making
for
indicted
corporation
(the
were
impair
its’
or
struct
statement, and Gottfried
destroy
fraudulent
States’) ‘efficiencyand
the val-
conspiracy to
for
were indicted
operations
reports.’
two others
its
ue of
specific
government.
Henkel, 1910,
462,
defraud the
v.
216 U.S.
[Haas
alleged
government
569],11
was that
54 L.Ed.
fraud
We
S.Ct.
reading
words,
reason
deprived
one
see no
the services of
should be
‘defrauding the United
ac-
States’
in order to
enforcement officers
of its
question
limitations now in
purpose.
statute of
illegal
No mention
complish the
446, 451-452,
which,
when
56 Stat.
here
that when a
L.Ed.
demonstrates
in 1944
the Act
amended
became
Congress during
considered)
statement made
to the need for time
referred
pendency
pur-
investigate,
gather
discover,
of a
mentions
bill
but one
evi-
“to
against
pose
prosecute
be
an
to
served
enactment
to
frauds
dence
enough
accomplish
language
gigantic
broad
It alluded
Government”.
purposes
well,
“[h]uge
program,
it
other
cannot be as-
fact
war
express
“being expended
sumed,
money”
in the absence of
lim-
were
sums
enactment,
equipment”,
itations
it
materials
purposes
dealings
present
to serve the other
not intended
would
doubt
these
unscrupulous
persons
as well.
opportunities
appears
legislative
us that
defraud
or
some
“to
the Government
history
equivocal
is too
to be determina-
suggest
agency”.
allusions
fraud
These
n
here.
tive
causing pecuniary
On
other
losses.
report
hand,
fact
the same
mentions the
referring
11. The court
in Gottfried was
“[t]he
law-enforcement
branch
following
Henkel,
in Haas
found
v.
busily engaged
is also
Government
30 S.Ct.
including
many duties,
the enforce-
its
:
569
espionage,
enough
sabotage, and oth-
“The statute
is broad
in its
ment
agen-
suggests
conspiracy
This
these
er laws”.
terms
include
for the
busy
currently
purpose
impairing, obstructing,
too
war
cies
de-
feating
depart-
problems
be
devote
time
able to
the lawful function of
* *
government
necessary to
frauds
discover
ment
*.
That
Government,
charge
prove
is not essential
condition
property
fraud
one
as anoth-
financial or
character
actual
true
loss to make
a ease
the statute has
more
er.
Porello, 1947,
[citing many
than once
cases].”
American Stevedores
ruled
*11
ingredient
certainly
necessary
there
is
element of
comprehensively;
less
proof.
is,
the
for that in
That
since the crime in Noveck
enough ground
was not
Besides,
may
perjury,
proved
the was
a crime which
be
Congress.
debates of
independently
not to
of or in
of fraud
purpose of the
was
the
amendment
absence
against
government,
pass unpunished which
the
fraud against the
let crimes
government
is an
hurly-burly
the
immaterial
committed in
incident.
per-
war,
overriding motive
an
United
McElvain, 1926,
States v.
272 U.
fectly
the
bar.”
fits
situation
S.
47 S.Ct.
823 nately, rather or, acts to confuse. See acy accord- another distinct constitutes note court, crime.13 13a. ing to “substantive” any Under the of the proviso offense doctrine McElvain case
The
cannot relate
it is
part of the
clear
not within the terms of the main
that since
I of our case
Count
excepting
conspiracy,
concerns
proviso
an
offense
statute because the
is
substantive
of which
part
is not
clause
the rule
laid down in
excluded from the
or law
main
applicable
proviso,
limitations,
main
statute
part.
main
of
Without
proviso
every
apply.14
part
would
The
the statute
its
covers
decision
of
terms
opinion in
except capital
McElvain,
United States v.
offense
offenses and offenses
su-
pra,
except-
is
authority
not
arising from the
laws.
for excluding
revenue
our
offenses, Count I
Suspension
from the
proviso)
ing
(the
clause
takes all
Act.
“involve”
part which
main
by the
covered
Scharton, 1932, 285 U.
United
v.
States
agen-
its
States or
United
against
fraud
518,
416,
52
(cid:127)order
be covered
15a.
general
Suspension
plication
of
Act to the
to the
statute
limitations
very
language
is under
is cast
involved in this case
inclusive
indi-
fenses
proviso
Congress
assumption
stat
cates
intended to avoid
covering
against
Noveck,
frauds
the limitations written into
of limitations
ute
opinions.
during
World
the first
McElvain and
United States
Scharton
deporta-
We conclude as
issued a warrant for the
follows:
arrest
Bridges,
alien,
tion
charging
the United
against
Since fraud
he
time he entered the
States
in
any agency
States or
was an
thereof
was a member
a de-
of or
affiliated
charged
gredient of each one of
offenses
fined class of
over-
aliens who advocated
required
and such
fraud was
vio-
government by
force
throw
pecuniary nature,
Suspension
the Wartime
(g).
Title
lence.
8 U.S.C.A.
137(c)
applies
Act
limitations
the statute
Landis,
Dean
N.
official
acting
anas
James
entirely
had not
count of
run
department
govern-
executive
returned.
indictment when it was
*15
ment but
judicial
not as an
de-
arm the
of
partment, heard
the evidence
held
Res Judicata
it established neither membership-
affili-
nor
gov-
Department
Executive
deportable
ation
Secre-
class. The
with Mr.
ernment has long been concerned
tary
approved
of Labor
Dean Landis’ re-
Bridges.
concern
of that
And
take note
we
port and dismissed the warrant.
appel-
solely
by the
it
because
is claimed
against Bridges
lants that the actions taken
holdWe
that the
do not
proceedings
prosecu-
legal
effect a
instant
bar to the
act
estoppel to,
of,
as an
judicata
nor res
important
legal
this
Because
tions.
of
prosecutions
present action,
pri
proceedings
prior
point,
turn to
we
marily because the
apply
cases
Bridges.
case, supra, do
rule
Southern Pacific
that, prior
appellants
estoppel
not extend the doctrine of
is contended
indictment,
beyond
it had been judgment
findings
court
of “a
return of the
not,
Furthermore,
Bridges
competent jurisdiction”.
at
adjudicated that
he never
Supreme
specifically
has
Court
said that
of his
time
naturalization
Par-
been,
since an
board
an instru
member of the Communist
'administrative
a
had
process
of due
a denial
power
that it is
a
ty; and
ment
executive
to re-
Amendment
Fifth
court,
law under the
judicata
the doctrine
res
cannot
judicata
res
apply
the doctrine
fuse to
applied
to its decisions. Pearson v. Wil
case.
liams, 1906,
281,
202
608,
U.S.
50
26 S.Ct.
L.Ed.
An
administrative decision
quote brief
it sufficient
We think
preclude
subsequent
does not
a
administra
opinion in
Supreme
ly
Court
matter,
tive consideration of the identical
United
v.
Pacific R. Co.
Southern
Cahill,
1938,
Song
Cir.,
Mock
v.
Kee
9
94
48,
S.Ct., 18,
1,
page
18
168 U.S.
Flynn
F.2d 975;
Loy Wong
ex rel. Ham
“* * * Bridges’ subj for the ect same offence contention that he has been de- process nied due put jeopardy twice life or law to be virtue alone of * * deportation proceedings limb the several and the present conviction, criminal indictment and Bridges’ It is in effect contention that the is without merit. may Whatever be said attempts past were two proceed- as institution the several deport him as an undesirable alien in ings, Bridges every Mr. has been accorded reality placed jeopardy him in “life right constitutional instant case. The consequently limb”, he is shielded phases circumstance former present Constitution conviction hearings and of this case are to some ex- conspiracy to defraud the United States. interrelated, tent no afford for the ground subjected Bridges not been has process claim due had not been accord- At time jeopardy. during no double every ed each and defendants-appel- proceedings deportation sub- lants. Materiality Third Count: Aid and Abet suit, was, the time There at Schmidt and present Robertson theory naturalization statutory bar to alien’s that the third count the indictment membership Com account of does not state an offense because there is Party,17 mem possessing nothing munist such in the indictment which indicates was, how bership not a crime. There citizenship. was not entitled to ever, against a bar naturalization of one The argument intent of the is that even if govern who adhered to belief that Schmidt and Robertson aid and abet changed by vio ment should force or in his naturalization proceedings, lence, legal adherence and such was -a only alleged fact as disqualifying deportation. ground for denials of Bridges False was that he was a member of the membership pro such naturalization Party, a and that such member ceedings material. Russian ship offense, was no citing Schneiderman, Karl works of Communism Hence, brand of supra. there could have been known and their were well Lenin Marx no fraud. overturning of the doctrine teachings very fallacy theory in this lies close and violence was force government our true that to the surface. It is as the time Bridges an knowledge. Had common suit, Communist Par- membership in the question in the affirma court’s swered the ty being Communist was not crime. a logi questions which tive, next line of however, was, It crime commit a fraud cally would have followed would agency the United States or vio Bridges believed to whether abetting an Aiding thereof. alien to- government. From overthrow lent great securing privilege ward citizen- received, the court de fact, answers through misrepresentation ship of a applicant whether the devoted termine could well be refusal basis Constitution, and the United States it,19 grant is well within terms of fact whether as matter and law argue indictment. is idle nonsense person entitled to citizens qualified as a plan government to a that adherence *18 hip.18 The case of Schneiderman v. Unit contradictory inconsistent as Com- 1943, 118, 1333, States, ed S.Ct. plan government our of munism to 1796, point. not in 87 L.Ed. inconsequential improper or subject be an Nationality * * 17. see Amendment to law, But 137(c) § U.S.O.A. 705, Code, 1950, 64 Stat. (g). language § 8 U.S.C.A. The identical is found in Immigration 1013, and the and National- 705(b) Title 8 U.S.O.A. wherein § ity 27, 1952, 1952, grounds denying Act of Act of June for naturalization to an 212(a) Law No. Although § c. Public are forth. alien set Harisiades (28) (28) (O), 1182(a) longer been, was, § 8 U.S.O.A. but no a Com- (O). munist, nevertheless he was ordered de- ported under the mandate of the Act. Shaughnessy, 1952, 18. Harisiades v. Therefore, if had confessed Supreme a recent U.S. membership in the Communist at deportation dealing case with the Court hearing, the time of his naturalization Registration Alien of aliens under the subject would have been he too to de- § 54 Stat. 8 U.S.O.A. Act of portation. In view of the fact that Com- certainty ques- a court, that the settles to places munist affiliation an alien within as to Communist tions membership, coverage Registration Alien nat- were material Bridges spoken Act, had the truth at proceeding. uralization hearing, the naturalization it would have Registration Act of 1940 The Alien good for constituted the cause the denial of deportation provides aliens for the statutory petition. For the definition advocate, in, advise, or “believe who deportable an alien which makes also teach, affiliated members of or or who are ineligible citizenship. him makes organization, association, socie- 137(e) 705(b). §§ 8 U.S.C.A. advises, in, group, ty, ad- believes or supra. footnote 18 vocates, (1) teaches: the overthrow Shaughnessy, of the Government of 19. See Harisiades v. force or violence our supra. or of all forms of States footnote 18 the United any event, whether inquiry a Naturaliza- connection with Father regard court’s conduct to proceeding. tion error, Meinecke constituted it was not so Father Meinecke prejudicial For as to warrant reversal. a defense called as Father was Meinecke Meinecke, Father valid in order to be a regarding testify character witness, witness testify character must as to honesty, truth, reputation Bridges’ reputation community. defendant’s ex- part court took integrity. The only per Father Meinecke as to his testified witness, defendant and the amination of the opinion, sonal generally inadmis questions contends that the nature Evidence, Wigmore ed., sible. on 3rd phrased as so asked court were Meinecke, And addition Father be- testimony discredit the witnesses there were eleven other character witnesses jury. fore the Bridges’ who testified in behalf.21 might questions While the the court Limit Scope on of Cross-Examination danger subj misunderstanding, ect to In the course of the trial the gov subsequent instructions was cured put ernment Kessler, Lawrence agent R. Supreme Furthermore, jury.20 of the Bureau Naturalization, on the wit in Glasser said purpose ness stand identifying L.Ed. 680. 60, 83, 62 S.Ct. govern registration card which the hotel at did not attain “Perhaps the court placed in evidence. to have ment wished impartial- thorough-going all times that evidentiary card value was intimate ideal [we ity which is Michener, Jr., Lewis another show here], our ex- but the kind nothing witness, Francisco government was in San a whole the record August, amination to attend a Communist which, testified, the sub- meeting the conclusion he leads petitioners present. were examination On direct was also rights stantial testimony long and to iden Kessler’s confined trial affected. tifying exhibit. Counsel for defendant by petitioners on relied incidents Bridges sought to attack credibil mag- Kessler’s guard must We few. ity ground on the on cross-examination instances appeal of on nification testimony only of Kessler’s purpose set- importance in their little testimony. The bolster Michener’s ting.” curiosity my pie question, Appeal, pages not born of on 4385-4387: Record * * you gen- part, provide but born of a desire *. Ladies *19 “The Court: * * father, surrounding jury, with all facts the the *. of the tlemen might to I and it was the end that in- my “Latterly, Father examination Very many quire peo- as to his health. mention was made some Meinecke large metropolitan ple to leave areas impro- concerning asserted the counsel parishes go to to less burdensome and that my part question the to priety on aof my underlying question.” reason was the you say might that that to I father. part, my on desire testimony born was not The of each character wit- inquire designed Fath- into to page was it nor ness is found at the number of the processes. Nor mental Appeal Meinecke’s er on cited after Record his name: integrity. upon his (page 4699), reflect was it to question Frank M. Andrews out of and conceived Bailey 4483), born Stanley (page part my fairness accord (page 4049), on Brown a desire Hubert witness, (page men- 3921), reason that for the E. Walter Buck to the during (page 4199), course of this F. Daniel Del Carlo tion testimony (page 3839), Francisco for left San Dr. Leo Eloesser he that might (page Finnesey 4058), Kenneth Nevada; drawn H. be inference Augustin Gaynor (page departure 4207), some- F. that Kenny (page 4258), union- Robert W. thing activities trade do Dewey (page 3998), on the wit- Mead The father like. and the ism (page 4036), he asked to Oscar Pearson W. volunteered stand ness prominent merely in- wanted to all men in their I various voca- transferred. very professions. gentlemen, a sim- tions and quire, ladies
831 scope court limited the of the cross-exami- rulings comments or of the court pertaining nation to card matters to the the court intending convey precluded impeachment as it is within jury manner whatever its discretion of the trial Glasser opinion court to do. view or toas what verdict States, 1942, v. United 62 jury decision be. should Such 680; S.Ct. 86 L.Ed. United States v. may comments as the court have made Fotopulos, Cir., 1950, 631, 640; 9 180 F.2d regard only pursuant States, Cir., 1946, v. United power and, Chevillard indeed, duty 929, 935; Toner, 3 F.2d United States supervise v. court to the trial of the case Cir., 1949, expedite F.2d and to it.”
Counsel challenged for defendant It appears that the court recognized that right scope court’s to limit the of the cross- the reading was in poor discretion and suffi- examination in this in ciently instance. court admonished the disregard jury it. reply prepared read jury from a memorandum The system faulty would be indeed if point on the reading of law. And while it must be jurors held that are so easily mis- presence memorandum in the ju led. There are few cases of long tedi- ry, quoted the court from Morton United ous sessions with contentious counsel Cir., 60 F.2d as fol States, which the judge has acted in true idealism. Ap of the Record on page 3609 lows Moreover, [at since the criticism of counsel in peal] : connection point with a technical of evi- dence does not reflect parties, continued, not to
“The battle
ascer-
court’s statement
prejudicial
was not
truth,
hope
in the evident
but
tain
defendants.
Goldstein v. United
injected
might be
into the
that error
Cir., 1933,
609, 612-614;
thereby
63 F.2d
Mansfield
ultimate conviction
record and
States, Cir., 1935,
v. United
76 F.2d
But avoidance
convic-
avoided.
231-233,
certiorari denied 296
tion, upon
evidence
uncontradicted
es-
pathy
any-
Cir.,
Ed.
States,
or out
Fredrick
defendant
v. United
9
a
1947,
536, 550,
163
thing
than
candid consideration
certiorari denied
a
F.2d
other
775,
332
presented.”
of all the
87,
evidence
U.S.
68
833 requires proof misstated “It of a more than elements of the offense passive charged mere crime on cognizance of a in Schmidt Robertson part of sustain a defendant to third count. The indictment was charge conspiracy phrased to commit it. provisions within the Title 8 you And find must that the defendant U.S.C.A. 1946ed., 746(a) (5)a. There was agreement did some act made no some reversible error explana- in the court’s showing participate expression means, intention to tion that the “to abet” “ * * way conspiracy.” some * in such knowingly and with crim- aid, inal intent promote, encourage We Moreover, find no error here. instigate, counsel, act or or both objection was made the second instruc- counsel, act and the commissionof such conspiracy tion on under Rule Federal criminal offense.” Procedure, U.S.C.A., Rules of Criminal 18 or otherwise. There objection was no to this instruction Rule Federal Rules of Criminal 5. Comment on Evidence Judicial Procedure, U.S.C.A., or otherwise. Error is claimed because the court 8. Criminal Intent witnesses, said a certain number naming forAs the trial court’s instructions them, testified on the Bridges’ issue of intent necessary to convict defendants membership in the Schmidt and Robertson of any of the counts government, certain number charged, they were favorable to the defend- issue, naming the defendant on the same ants. For while Schmidt and Robertson Neither in the witnesses. what was said aiding admitted Bridges to obtain citizen- said, nor the context in which it was from ship, the court charged that such aiding suggestion that the any was there number would not be a crime an, unless it was with should taken into considera witnesses “ * * * part intent jurors the effect on the tion rather than either of these defendants to deceive testimony. their full instructions very and defraud the Government of the presumption in given the jury as States.” nocence, the government, burden of the Materiality 9. weight and credibility given to be
testimony
negative
witnesses
idea
Appellants argue
the trial
might
jurors
have understood that court’s instruction that the false statements
mere
any point
number
of witnesses
proceed
were material to the naturalization
fact should
judgment
rule over their
law,
ing
a matter
erroneous.
reference to it.
Erie
See
Railroad
v.Co.
question materiality
always
Fritsch, Cir., 1934,
72 F.2d
certiorari
court.
States,
Sinclair v. United
denied 293 U.S.
55 S.Ct.
263, 298,
692;
49 73 L.Ed.
708.
Cir., 1941,
Travis v. United
F.2d
And
that'is also the rule
Wixon
v.
despite
appellants’
circuit
miscon
That
trial
court
was correct
ex-
struction of the
holding
Luse United
v.
jury
cluding
consideration
States, Cir., 1931,
When the various having the case of one such contacts. cisco, 'purportedly Party meet- be no Communist taken ings, by are Bridges, and attended It is a number of witnesses true that the account, they up add several score. into to meetings which described some of these pur- They described as held for two attended, Bridges which he at some of poses one, plan : to a Communist-directed meetings. presided, as “closed” Communist other, strategy activity; the to of union fallacy logical concluding from this plan for the election of Communist mem- Bridges must been a therefore have sympathizers bers or to offices at various Party member is that it 'assumes truth the union elections.5 If, of proven. that which is sought to be fact, Bridges Party member, was not a course, Of under the instructions of the presence his at such meeting a would mean court, previously mentioned, Bridges’ par- no more than that attended .meeting he a at ticipation activities, alone, in these taken every person which present other was a proof would fall short of of actual Com- Party member. Party munist membership. only sig- Bridges deny nificance of himself they such acts is what value made no effort to have, may frequent his circumstantially, meetings attendance as at attend- evidence by opportunity, ed Party members, through frequent Communist associa- or his acceptance tion, of aid Bridges actually a assistance from reach deci- the to Party leaders, join sion to its Party. sympathy the his One so situated many objectives.6 would its likely, be more as a matter natural monger praising great and later him a down favor a as non-Communist. given leader. But proposal somehow the for this Communists reason was that exploitation Angeles propaganda have Council, adroit the Los Industrial Union logic defied controlled, which tried to was use of their Communist each positions strengthen reputation to some their members on the national C.I.O. champion poor op by making payroll, as a the this and that conces- Sidney pressed.” Connolly, Party Prom a review of as to the sion Lens’ “The Counterfeit Revolution” to control those have a better chance Douglas positions. William Justice O. in “The Michener and salaried Progressive”, p. 30, June, opposed proposal V. No. until Hudson both pointed See, also, 1952. the statement of Mr. decision had out top Justice Jackson in American Communi Com- made leaders Douds, Party cations Ass’n v. page 430, at York. munist at New proceeded 70 S.Ct. then to make the Michener carry arrangements to decision into early testified to the efforts of Connolly’s resignation effect, was organize himself and his associates to secured. workers, waterfront .and in con- this working nection told the sub-standard of what witnesses 5. The activities long- units, which Party conditions shoremen, confronted the “frac- called inadequate pay, assuming leadership tions”, the lack the trade job security, company-controlled movements union unions, the unfair connected, discriminations in re- in much was were described spect hiring, “shape-up”, general activities would detail. these system blacklists, speedup, recognized by jury making as be likely required bosses, fitting pattern behavior, as a con- in- “kickbacks” employment. recog- generally He it said that dition has now to what become shape other claimed eliminate these and as the of Communist mis- nized called, sionary enterprise. the strikes were “In the countries evils required great part effort on the have Communists Russia outside under-dog; champions union leaders to hold the strikers of the posed situation, together. pro- espoused In this he they democratic sought help purported they union leaders wherever grams; other have indeed gladly accepted they find it. He could of the cause advocates faithful be the said: exploited the Communists.. He every To offered race and class. aid stage try going zig-zag late am sure, they “I have followed away they Hitler, are condemning credit take then the praising Line— they to, again; condemning did contribute because him, entitled him then helping something strike. towards fascist and calling war- Roosevelt Pass, Oregon, as to union near Grants stated Bridges further testimoiiy given. He some support the Communist was offered numerous other Daily Work effort to take paper “The issue. and of its daily bulletin stated he printed meetings at which witnesses er” which *25 He present, strikes. described as Com- during the union its and which were use of accepted offer of meetings. his associates this munist help.7 evidence some record also contains deny present at being a few did expression by Bridges if from time to fifty meetings which vari- or more opinions time of national and world on particularity, ous witnesses described with sym affairs which of his indicative are meetings. them He all of Communist de- pathy point .with the Communist of view. meeting night nied the account of a held at evidence, like Bridg Such the evidence of prune County in a orchard in Santa Clara meetings es’ attendance at with Communist a where witness testified and oth- members, party not in itself suffice ers met Earl denied He Browder. required proof to furnish Commu he attended a Communist convention at party membership. nist Fresno, attending and he denied meeting a police persons many grateful time; in which We shot were for it at that were grateful it, just and two men men were were killed. and I Some of the crawfishing ingrati- Haight wounded men were taken think it would to 128 try Street, Francisco, say tude to San which to kiss was a it off now and Com- headquarters anything them, never munist we which to do with was used hospital they way help aas because said, did as it was I made available only helping print to the with the strikers. The battle led to call- ing out the bulletin and tions well financial National Guard what dona- but the Party they proceed- as union and the as food Communist donations could get, they ed well as to hold a mass funeral we called for the two —when killed, organizations, particularly all men who were a labor feature of which organizations, parade picket up help was a man Market us Street and a lines, grave-side Party responded speech by Darcy the Communist Sam call, too, parties, the burial of so other the man who that so did—not was a Com- Republican munist. or Demo- Parties; they darned cratic were con- Bridges’ December, 1945, union, by spicuous absence, their but I mean day ILWU, called a coastwise work one minority political parties. smaller I stoppage purpose propagandiz- for the at that time was recall there Prole- hasty ing troops return American here, Party around there was tariat from overseas. testified he did Party, the Workers the Socialist Work- not know this was the Communist Par- Party; ers there were several. ofMost ty line, care, but said he did not radical, they left-wing parties, those either then or now. try or less more vied with each other to pub- In an article written him and prove longshoremen to er strikers and the oth- 14, 1947, lished under date of November they helping. how much were Bridges said, stripped “Thus of all cam- large, of all And pretty that was role ouflage the Marshall Plan is a scheme magnified, particularly, much money to use food the American played Communist was role people purchase and turn over Wall purposely by shipowners up In- practically pri- Street at no cost to the city depart- Association dustrial and the interests, vate basic industries and ments, reason, a the reason Germany raw materials of and all west- hysteria so that break it was easier to European ern nations.” screen of the strike that smoke At a convention of the ILWU in San hysteria.” April, 1947, Francisco a resolution During proposed stated, among strike San Francisco the 1934 other anti-picketing things: had an ordinance effect “Communism is not an issue in picket the men on the union lines the political economy, nor are our charged by police democracy who attacked or civil liberties gas. July by agents clubs and tear On with 1934, threatened of the Soviet Union. 30,000 undertook directly men on strike The real threat stems from the picket greed imperialistic mass on the line and this was and desire for world day an all battle with the monopo- followed control of American trusts and Bridges, Trade Unions. In 1949 Federation was chairman
lies.” who long meeting, when from this withdrew World a statement CIO the support Unions it Federation of Trade the course because of the resolution in organiza- “communist-controlled he said: “Communism opposed” tion”, Bridges government, “bitterly state it is a form of system, society, move and it the CIO. At the trial and on system people ex- said holds that cannot cross-examination simply ploit adopted people profit. CIO constitutional amendment other ship prohibiting November, you factory means can’t own a or a serving nothing and live the fat members officers and do somebody clip coupons or members of committee land and while the executive you living.” for a and slaves “But if would ask sweats CIO: *26 it, Wa- me when the and what I would term I In ILWU the signed would term Employers racketeering, corrupt, crooked, a it a terfront Association cover up contract, Bridges’ dirty on, goings union demanded a lot so cer- had of that people great longshoremen organiza- tain would that be could use a any obligation personal handle tion to vessel or own serve like CIO their cargo political by unfair the World declared advancement.” prove Party, attempting to Communist met danger Bridges and person solicited membership to a Communist evidence the latter’s be in happen Party. his to expression of views which He testified after that considerable conversation, program of Bridges agreed join, with the the Commu- coincide and nist to re- Party, well understood Bridges too agreeing after on a name However, cannot Party, it here. quire should as a member comment assume de- far produced application evidence thus printed card. that a be said Jones associa- of continued scribed, temporarily left the and the evidence room Schomaker cooperation with Communist his exhibited after return the card tion and Jones apparent ad- the evidence groups Bridges’ sig- and who observed Schomaker line, is, Party the Communist and herence to nature Schomaker thereon. Jones in it- insufficient although Party headquarters inconclusive at took the card to the before to the issue self, wholly irrelevant applica- and turned the Street Grove disclose, shortly For, jury. as we shall Darcy. tion over Schomaker tes- to Sam of evidence amount there was a substantial tified numerous occasions saw that on he joined became a in fact Bridges that Bridges pay Party his Communist dues Party. Ob- Communist member of the secretary the unit and that he had on oc- actually the likelihood viously Bridges’ Party casion received Communist party joining would affected Party book which in to was turned If the Commu- mentioned. matters thus headquarters year at the end of each so plant .which Party sought nist seed that a new book “Harry could be issued to springing member in a new would result Dorgan”, Bridges’ party name. depend up, the effort would the success of In the winter of 1935 fell the seed great a whether deal on neighbors. Schomaker were Schomaker ground. fertile testified evening that on one during that Schomaker, longshoreman, former a crowd in front of year Bridges’ he saw a positions of- numerous who had held Bridges then told him that home and long union, who had Bridges’ fices in fallen Bridges’ wife had out the win- Bridges, testified associate been a close go dow and asked his Schomaker Communist had a himself that he Party his Communist get house and book Thanks- About Party since member reporters” got snooty “before the there. editor became Schomaker giving of testimony paper pub- There Worker”, August also a of the “Waterfront September, longshoremen who or made a talk at group of by a lished Party. the home meeting held at Communist one were members John Francisco which an occasion Shaw San was attend- testified Schomaker people, year ed to 35 including he William December November Schneidermann, organizer district Jones, also a member for the B. B. and one Party, which, fell application writing other Communist an if Communist Party attending agent, members. Also were some into the hands a Government persons During put mercy who were not Communists. him who at the of those pursued Mrs. meeting, as it had was described him. Harris, witness, Bridges a Government respect contention, it must With to this speech. got made a “He She testified:' appli- be observed that when the up and talked about the conditions on signed, cation was said to have been progressing they waterfront how series prove Bridges of efforts Com- people, how the Commu- Communist yet begun. munist that, nist also helping, meeting, residence time the Shaw about writings editorials and Immi- knew that course People’s World, plea and made a us he ques- gration after him. The Bureau was that were there to become members of jury determine was wheth- tion for Party, and he also stated Communist testimony that the they would credit the er Party, he was member This would statement was in fact made. * * * I was flabber- not only consideration of the relia- involve say that, gasted I heard him because when *27 bility the recollection of the witnesses accused, I de- had heard it he had been credibility, general consid- their a but statement, he that nied. And when made in eration of whether the circumstances impression why, a on very it much made it Bridges could be believed that was so Substantially the account of the me.” same rash or so incautious as to make such a Schomaker, given affair the Witness was statement in surroundings. those present. who was also question whether these did or events appellants did typically ju- argued It is on behalf occur was the one for ry. general presents testimony this case no cir- respecting the recruitment the cumstances different from Party in those which in the Communist constantly appear testimony where the the concerning testimony the sharply is witnesses spe- conflict. residence, speech Shaw at the John cial function jury, system, in our improbable and incredi- inherently so so is to deal with appellate such matters. No evi- must ble that be discarded. judge position is ever in a to reconstruct the processing the dence toas himself, for printed from a record, application it had to membership was that multitude things which bring conviction membership committee be submitted a juror’s to a mind —the demeanor of the persons investigation and group or witness, apparent his candor or evasive- approval. pointed out It ness, hesitation, his assurance or and even by Bridges in 1938 that claimed admission expressions his facial or the sound of his he a the Commu- was himself member voice. presence of a in the Party was made nist whom were some of persons Even cold record here group of discloses that whom were un- trial, presence and some and in the very Communists in- jury that it is Bridges. said which was to determine known to whether he who Bridges, knew that had had not a or been conceivable Communist years had for member, Bridges Bureau singularly Immigration lacking in prove caution, giving a Communist him a attempting to demonstration which the ground, jury might him on that well deport consider and to more remarkable by making public open actions than the laid himself Mrs. Harris testi an very before such fied that character “made impression much statement on would have turned me.” audience, that he this: was or had been a 9. The circumstance member; stand, jury his conduct was he knew that on who many days good during observing judges, him were were his observed yet apparently oppor- the Govern- He knew he overlooked the trial. prove attempting tunity during process that he ment was of cross-exam- 8á0 vieyvs Revolution, he olution
That
to the American
entertained
respect
comparing
expressed
Rev- which
volunteered in
the Chinese
he
Rus-
jury
speeches
way
collapsed,
make
ment
it,
ination to
I
looked at
they
country
steps
what
must have understood was
of Russia she took
prove
prevent
eventually
soundness
effort
of
to them the
or to
meet what
expressed by-
generally
figured
transpired, namely,
World
views
her coun-
she
respect
try
Communism
to national
was to
took cer-
invaded and she
As
Speaking
steps.”
affairs.
tain
international
other coun-
conquest
say
mentioned,
said,
China he
the Communist
tries
that
he
“I would
people
jury:
democracy
said to the
have
things,
“I think the
is more
in those
there
changed
finally
they
taken over
countries now than before
were
they
something
seized
they
like
here
Prior
Soviets.
they
dictatorships.”
think
the United
have had a
I
were
States
all
peoples’
down
revolution
Explaining
position
he
taken
.there,
they
wrong,
and if
are
then
“fought bitterly” against
when he
wrong
people of the United States were
calling
resignation
resolution
for the
in 1776.”
executive board members who
un-
discoursing
this sub-
Further in
willing
to abide
anti-Communist
ject Bridges
same
stated:
“We had the
constitution,
amendment
to the C.I.O.
thing
Revolu-
American
occur after the
he said:
me
“The C.I.O. doesn’t elect
Remember,
American
tion.
after
My
to the executive board.
union elects
‘rev-
in—17—this word
here
Revolution
by my
me.
I am instructed
union that
shy away
people
seem to
olution’—
in these
wages
carry
pays my
elects me and
days.
word.
I didn’t invent
policies to
I am
this board.
out certain
days
Rev-
of the American
But
olution,
representative my
voice, the
union
Revolution,
French
like
Tou come in
this C.I.O. board.
*28
America,
went
the United
say
I
unless
now and
that
a resolution
thing.
through
world
All the
same
Murray,
you,
not-
Mr.
take orders
withstanding
pointing
jumping
out the
it and
on
was
membership
my
tells
what
States, mean-
in the United
Communists
me,
eligible
this
am
to serve on
I
not
Washington,
George
ing
and oth-
Paine
said, ‘That is
violation of
a
board.
I
happening,
thing
was
The same
ers.
phoney,
constitution,
is a
that
the CIO
our
happen
more.
-So
it will
more
you
going
racket,
to
a
and if
it is
are
any responsibility. And
bear
can’t
union
you
carry through
policy
that,
are
a
like
trade with
advocated
we have
because
destroy
going
And that is what
to
CIO’.
getting more
interests
in the
China
being
happening
today;
is
is
to CIO
longshoremen
water-
on the
for our
work
pol-
types
destroyed because of those
they get work, of
front,
course,
unless
who
icies.”
union,
they
union
have a
can’t
maybe
“So I took this
to
continued:
apart,
I
have
will
fall
will
back,
myself,
resolution,
ings my
else,
I
I called
something
meet-
came
even
—that
do
thinking
said,
of—
own local union
and I
I am
what
much
not so
‘Listen, fellows,’
‘Look,
port
said,
simple
I
here’s the
as that. The
as
it is
but
way
Francisco,
City
believe
the National CIO wants it. In order
here,
San
get along
them,
say
a
let’s
we do
That
to
me,
waterfront.
its
lives
Murray appoint
simple
let Phil
And the
Let’s
this.
economics.
matter
anyone
rep-
fifty per
trade,
wants
from the ILWU
to
cent
he
of our
bulk
board,
through
on
resent
ILWU
and let
foreign
moves
that
trade
resign.
And let
trade.
us furthermore
port
was China
Francisco
San
trade,
representatives
got
instruct the
ILWU
to reestablish
have
We
otherwise
employment
prosperity
any
executive board that
on
CIO
time
have
can’t
we
States,
says,
yes,”
yes;
Murray
“Vote
vote
in the
here
Murray
any
no,”
says,
port
Francis-
time
particularly
co,
of San
“Vote
vote
in the
any
Murray
no;
says, “Abstain,”
people
would
time
around here
lota
people
job,
have that.’
are out of
abstain. Let
them
And
and if
of a
be out
course,
my membership
city,
said,
‘Look, Bridges,
here,
our
around
work
you feel,
you carry'
way
prosperous
if
times and
if that is the
have
will
not
will
program
get
that,
security.”
a
like
out
we will
have
not
president.
views
ourselves another
We
his
didn’t
volunteered
he
After
you
express
program
Now,
for a
China,
like that.
elect
was invited
he
about
you
you
got
guts,
“rape
if
haven't
if
opinion
of Poland”
on the
got enough
you
get
coun-
haven’t
and Balkan
in there
of Baltic
seizure
the
tries
said,
Poland,
fight, we
find
will
someone
he
who
As for
Russia.
will
”
job
govern-
country
for us.’
do the
where
awas
“Here
Murray’s
very
satellites,
the 1936 convention
regard
sian
or in
at the
time
to Phil
Stockton,,
held,
being
Bridges was in
effort to oust
members was
Communist
California, making
speech
positions
CIO,
a
at
union
from official
is not
a
meeting.
what
do
he
there
have
significant
point.
seems
at
was
he could not
We
If
convention,
regard
present
at the
two
the circumstance here related
it,
importance.
controlling
Without
the three witnesses
he
said was.
the question
jury.
would still be
'for the
one
We
feel called
do
worthy
But it is
without
of note that
speculate as to whether these two witnesses
apparent effort
an-
to confine himself to
might
presence
have been mistaken
toas
his
swering, briefly,
point,
ques-
to.
there, or
proof
whether
definite
put
tions
cross-examination,
to him on
presence
Bridges’
conclusively
in Stockton
Bridges went on
great length
with dis-
testimony relating
demonstrates that the
which,
apprehend,
courses
must have
we
convention,
perhaps,
-and
as to the
jury
they
caused the
to wonder whether
convention,
was
think,
We
false.
missionary
were watching a
filled
man
previously mentioned,
reasons
we
commonly
zeal for expounding the views
that there was sufficient other evidence to
up
understood to make
warrant
jury
finding
Party line, or
supremely
who
in-
one
was
in fact
a member of the Communist
different to
gave
jury
he
whether
the Party.
impression
he
if
not Communist
a
Appellants
contend
as mat
member,
he
must at
rate
a fel-
ter of law the evidence was
insufficient
say
We cannot
that in these
low traveler.
satisfy
perjury
that in
rule
there
cases
jury
obliged
bé
circumstances
testimony
must be at
least
two inde
impossible
disregard as
incredible the tes-
pendent
testimony
witnesses
of one
timony
what
said and
plus independent evidence
witness
described
these witnesses.
occasions
with the
inconsistent
innocence
the de
Perhaps man who
caution when
lacked
Cf.
fendant.
Weiler v. United
jury,
but
acting
before
similar
Appel
Of if falsity in fact became statement made under body the governing member of na- oath was testified to the witness Scho- tional permit this would application an inference maker who told of the for mem- Party. that he was a member of bership party subsequent Con- pay- aspect siderable doubt is thrown on this of ment independent of dues. Mrs. Harris, an reason witness, case of the fact that it was Bridges’ testified to admission of established, apoercntly beyond controversy, party membership made by him public at the ship, meeting they prosecution at the Shaw It is to be subject were residence. prior noted this to hence subject pressure .part admission was made on alleged date of the agents who, asserted, Government crime there it is held authority to the effect that so threats prosecution admissions of such over heads require made do not these corroboration to the naturalized witnesses. wit- Some money same extent nesses as others. Unit received Warszower v. substantial sums of ed States, on expenses account of 61 S.Ct. witness fees and case, L.Ed. event, in this connection with their attendance at trial where the Government did not rest case. In the case of witness not one witness, only testimony uncorroborated he paid of one but his fees wife were witness but brought forward an argued accumulation period covering long of time. evidence, otherwise, circumstantial and paid so substantial were the sums thus supplemented recipients direct evidence that it inferred that must be joining Party testify anything evidence would be willing (heir admission, we think that the rule was positions as wit- order to maintain fully Maragon satisfied. v. United nesses. certiorari U.S.App.D.C. F.2d brought on All of out matters these denied 341 U.S. developed great cross-examination They were the length during trial. sundry reasons enumerate Appellants subject counsel argument of much that the evi- should hold (hey we why think appellants argued at the time the case behalf of the Government on dence offered course, jury and, they to the are matters point to they unworthy Thus of belief. respect jury final to which was the wit- of the Government some fact would, judge. of these circumstances None having been former admitted who nesses law, require as a us to matter of throw out prior oc- admitted also Communists testimony these en- witnesses in its be- testifying oath casions when tirety. Committee Activities un-American fore the alleged As to the First Count—The con- Investigating Tenney Committee or the (cid:127) spiracy. they denied had Legislature the California Party. conten- being members proceed question We next prior perjury on who admits one tion is that sufficiency of the evidence as to first occasions, credited now. cannot charges count of the indictment.10 This Bridges, Schmidt Robertson con- developed that some of it was Again spired to defraud the United States im- testimony given witnesses Government *30 pairing, defeating prop- obstructing and large in number a witnesses as Government er administration of its naturalization laws to involving issues similar cases of other petition for and Bridges obtain by having wit- is said that such It case. in this those falsely fraudulently and to naturalization witnesses as professional were nesses representing Bridges that stating had places and in various activities Communist Party; belonged the Communist worthy never to of credit. they were hence that conspiracy pursuance of the the de- that a number the fact that called to Attention is performed four fendants did and overt were natural- witnesses Government 1, by Bridges applica- filing his acts: argued since some is that and it ized citizens and prelimi- for of arrival tion a certificate obtained had themselves witnesses of those naturalization; nary petition for form of they when themselves citizenship at a time day August, 2, appearance the 8th his on Party member- Communist falsely denied count, on either dealing sustain conviction and third the first 10. In sufficiency on evidence of the other counts, Schmidt both convicted, be considered. need not Sinclair count and on were Robertson they length, equal v. United sentences received concurrently, borne in S.Ct. it must be run to is sufficient to if evidence that mind suffi- spiracy charged. the naturalization examiner There evidence before long-stand- cient gave testimony where he matter of to show the of a existence Schmidt, naturalization; application ing his between close association respects. signing day, Bridges on the same Schmidt Robertson and in two witnesses, Bridges’ pe- in- place long Robertson as first three were all naturalization; appear- tition for timately associated in the I.L.W. as officers named, September ance of the three men on U. evidence labor union. There also was 17, 1945, Court, sufficient, Superior believed, in the their that if demonstrate to then testimony support peti- Bridges’ all mem- three them were associated as only tion naturalization. bers party. Not Communist was there very evidence extensive It is contended that there is neither direct Robertson, Schmidt Bridges, as well as nor any circumstantial such evidence had many attended Com- of the numerous conspiracy; that until when June munist meetings has to which reference Supreme Bridges the case made, testimony but was there Wixon, 89 L.Ed. Schmidt had himself witness solicited court, reversed the decision of this Henry Schrimpf join Communist deportation Bridges’ based on warrant of Party, Schrimpf and had handed mem- membership in or affiliation alleged bership card outstanding which he executed. It was Party Communist member of a testified that Robertson was a five him. This reversal was but top C.I.O. fraction of the State Communist prior Bridges’ applica .days filing Party consisting of Communist members Hence, citizenship 23,1945. on tion June executive who were members of the C.I.O. said, days applica up five before the it is board, facetiously Com- made, group known in deportation tion was the warrant munist circles Committee.” Bridges’ as “God’s bar naturalization up conspiracy therefore there could be no jury could infer from the evi then because naturalization was time only dence that Schmidt and Robertson not impossible. argued there knew that was a Communist and a Bridges, nothing show either Party member of the Communist but that Schmidt or Robertson had reason long controversy there had existed be Bridges’ anticipate questions concerning tween Government officials membership Party in the Communist charge citizenship relating of matters Septem prior hearing time to the actual on 17, 1945, and naturalization characterized ber at which the naturaliza re time prompted peated attempts deport tion examiner was to make the in. party quiry membership he as to because ground alleged membership of his in or as received, days previously, a few an sociation with Party. the Communist Bridges’ affidavit estranged wife, Schmidt and Robertson therefore knew that divorce, whom he was then obtaining a Bridges’ membership if fact which stated that was a member of developed Communist under the name of his naturalization course proceedings, it *31 “Dorgan”. is the mere contended that application. would be fatal to his Both of question fact that the was then was asked these testified defendants that they knew bring conspiracy insufficient to about a to handing of the down of the decision in the through obtain naturalization the unlawful 18, 1945, Wixon case11 on and the June giving question. answers such a of false to testimony of both of these defendants dis they closes that alleged It is true that the of the had the evidence decision in that case conspiracy entirely circumstantial, very they was much in mind proceed as when first invariably give testimony is almost case ed Bridges’ the where con- to behalf and opinion 11. The is in that case was not a to decided, the fact that case the had been part excluded, record, favorably Bridges, of the for it was and to mat- have noted. is we What here referred ters which were in evidence. Sáá hereby him “It procuring citing assist his citiz that ordered that each
otherwise in enship.12 petitioners hereby said be ordered and to become a citizen oí United States of the that evidence inference warrants .the America.” There was no that evidence the all of these that that defendants now knew performed clerk of that court his ministeri- the decision in the had come Wixon case duty al Bridges to issue and deliver down, to day was to arrive when about certificate naturalization described § Bridges finally citizenship, up could sew his 736 Title 8 U.S.C.A. think that view We and that Schmidt and then Robertson were of the fact that the certifi- issuance that, so and permit to do proceeding to him cate the clerk mere act is a ministerial by testifying, they did assist undertake to following the judgment, as as the soon falsely, not a member that was citizenship admitting to judgment Party. the Communist had accom- there been had been entered is clear that Under circumstances it these required obtain” a plished “to all that was to warrant a there was sufficient evidence citizenship meaning within certificate of conspiracy count, and under the conviction under which the 746(a)(5) of Title conspiracy suffi- charge of a was laid, truth was and that in count third proven. ciently then, “ob- had mentioned certificate , 'Count, alleged As to Third aid —The evidence argument tained”. and Robertson. assistance Schmidt with- insufficient is third count is as to the merit. out which we. to
The evidence just that there discloses sufficiently referred As Glasser v. stated proof sustain abundance 60, 80, 62 charge the effect that third count to of the evi weigh “It is not for us wilfully Schmidt and Robertson credibility determine wit dence aid, knowingly encourage, and assist advise jury sus must be verdict of nesses. person, Bridges, not then and namely, evidence, tak if there substantial tained thereto, obtain, accept and entitled there to the Govern ing the view most favorable naturalization, receive certificate support ment, it. United v. Man States procured procured and was which was be Cir., 834, 839, cases ton, 2 107 F.2d fraud, consisting of false and fraud said conspir Participation in a criminal cited. a naturaliza fraudulent statements evidence; acy proved be direct need not proceeding. tion plan may in purpose a common ‘development collocation ferred from a that there is evi It is contended has fol of circumstances’ This court ”. of naturalization certificate that a dence lowed the same rule. Henderson v. United introduced issued. There fact States, Cir., F.2d copy judgment certified in evidence a respect jury’s Generally, with Superior reciting that Court complied weighing, testimony and deter- persons function in and other had mining credibility each of witnesses this laws was en naturalization regard citizenship, said: fore- and re- court has “With titled admitted to to be Party; Supreme enumerat 12. Thus Robertson testified something gave ing answers United States is he the bases authority.” citizenship speaks concerning I think transcripts hearing, he read course his similar answer trial, question “Secondly, trial, Sears Schmidt testified: Landis investigations Supreme then said: I had read decision of the 'Other thought well, Court, long finally, I as the a decision of the S. “And TT. *32 highest Supreme I tribunal came States out. studied United majority has America I studied the decision decision with re- decision. concurring decision, spect case, to this is now I matter :and studied my time; up for all and I then and settled had no hesita- I made mind there not, had never tion to recommend this man for citizen- President ship.” been, and was never affiliated with the
845 testimony, much of going as well as appellants,
other discussed evidence question should -borne in mind that weight jury for the credibility States, Coplin court.” v. United Cir.,
9 88 F.2d Accord: Pasadena 664. States, Research 9 Laboratories v. United
Cir., 169 F.2d 380. these Tested rules, followed, long this court ha? States, Cir.,
Craig v. United 9 81 F.2d certiorari denied 298 U.S. 56 S.Ct. 1408; Hemphill L.Ed. v. United
States, Cir., certiorari de F.2d
nied 314 U.S.
503; Cir., Stillman v. United 607, 616,
F.2d the evidence here was suffi
cient to sustain the convictions on all
-counts.
BONE, Circuit Judge (concurring). complete accord with all that has
I am my associates. exhaus- Their said opinions reflect unanimous conclusions tive only thorough
reached after discussion independent
conference and after consider- judge ation all issues each of this
n divisionof our court.
Judgments affirmed. v. UNITED STATES.
BRIDGES
No. 12607. Appeals States Court of Ninth Circuit. Gladstein, Leonard, Andersen & Nor- Sept. 6, 1952. Leonard, Hallinan, Vincent man W. James Rehearing Denied Nov. Maclnnis, Francisco, Cal., Martin San appellant. Rehearing Second Petition for Denied Tramutolo, Chauncey Atty., U. S. Robert Dec. McMillan, Atty., B. Asst. U. San Fran- S. cisco, (James Cal. M. Mclnerney, Asst. Gen.,
Atty. Beatrice Rosenberg, Carl H. Imlay, Wilkins, Attys., R. Dept, of John Justice, Washington,' C.,D. Boyd, P. John Sp. Gen., Atty. Asst. of counsel), ap- pellee. STEPHENS, Before BONE, . and POPE, Judges. Circuit