DENNIS ET AL. v. UNITED STATES
No. 502
Supreme Court of the United States
Argued April 20, 1966. Decided June 20, 1966.
384 U.S. 855
Nathan Lewin argued the cause for the United States. With him on the brief were Solicitor General Marshall,
Gerhard P. Van Arkel, Charles F. Brannan, John F. O‘Donnell, Joseph L. Rauh, Jr., Eugene Cotton, Melvin L. Wulf, Jacob Sheinkman, Joseph M. Jacobs and John Ligtenberg filed a brief for the American Civil Liberties Union et al., as amici curiae, urging reversal.
MR. JUSTICE FORTAS delivered the opinion of the Court.
The six petitioners and eight others were indicted in the United States District Court for the District of Colorado on a charge of violating the general conspiracy statute,
Section 9 (h), which was later repealed,2 provided that labor unions could not secure Labor Board investigation of employee representation or the issuance of a complaint unless there was on file with the Board so-called
Four of the six petitioners—Dennis, Dichter, Travis and Wilson—were officers of the union. Each is alleged to have filed false non-Communist affidavits. Petitioners Sanderson and Skinner were, at relevant times, union members but not officers. They are charged with participation in the conspiracy. All were alleged to be “members of and affiliated with the Communist Party.”
The indictment was returned in 1956. At the first trial, petitioners and others were convicted. On appeal, the Court of Appeals for the Tenth Circuit sustained the validity of the indictment, but reversed the judgments on the ground that prejudicial hearsay evidence had been admitted in evidence. 302 F. 2d 5.
On retrial, the petitioners were again convicted and each was sentenced to three years’ imprisonment and fined $2,000. This time, the Court of Appeals affirmed. 346 F. 2d 10. We granted certiorari (382 U. S. 915) limited to three questions:
“1. Whether the indictment states the offense of conspiracy to defraud the United States;
“2. Whether, in the comparative light of American Communications Assn. v. Douds, 339 U. S. 382, and United States v. Archie Brown, 381 U. S. 437, Section 9 (h) of the Taft-Hartley Act is constitutional;
“3. Whether the trial court erred in denying petitioners’ motions for the production, to the defense or the Court, of grand jury testimony of prosecution witnesses.”
I.
We first discuss the question, considered both in the District Court and in the Court of Appeals,4 whether the
Four of the petitioners—those who filed the affidavits alleged to be false—presumably could have been indicted for the substantive offense of making false statements as to a “matter within the jurisdiction of” the Board, a violation of
Nor can it be concluded that a conspiracy of the described nature and objective is outside the condemnation of the specific clause of
Petitioners argue, however, that their conduct cannot be considered as fraudulent for purposes of
The facts are, according to the indictment, that petitioners and their co-conspirators could not have obtained the Board‘s services and facilities without filing non-Communist affidavits; that the affidavits were submitted as part of a scheme to induce the Board to act; that the Board acted in reliance upon the fact that affidavits were filed; and that these affidavits were false. Within the meaning of
Still another argument is advanced to defeat the indictment. Petitioners submit that this case does not involve a conspiracy to defraud, but rather, under the alternative clause of
In the present case, on the other hand, the allegation as to conspiracy to defraud, as we have discussed, properly reflects the essence of the alleged offense. It does not involve an attempt by prosecutorial sleight of hand to overcome a time bar.8 The fact that the events in-
We conclude, therefore, that the indictment properly charged a violation of the conspiracy-to-defraud clause of
II.
Petitioners next urge that we set aside their convictions on the ground that § 9 (h) of the Taft-Hartley Act is unconstitutional. In particular, they rely upon United States v. Brown, 381 U. S. 437, in which the Court held unconstitutional as a bill of attainder the statute enacted by Congress in 1959 to replace § 9 (h). The new statute made it a crime for a member of the Communist Party to hold office or any other substantial employment in a labor union.9 They contend that Brown in effect over-
We need not reach this question, for petitioners are in no position to attack the constitutionality of § 9 (h). They were indicted for an alleged conspiracy, cynical and fraudulent, to circumvent the statute. Whatever might be the result where the constitutionality of a statute is challenged by those who of necessity violate its provisions and seek relief in the courts is not relevant here. This is not such a case. The indictment here alleges an effort to circumvent the law and not to challenge it—a purported compliance with the statute designed to avoid the courts, not to invoke their jurisdiction.¹¹
In Kay v. United States, 303 U. S. 1, this Court upheld a conviction for making false statements in connection with the Home Owners’ Loan Act of 1933, without passing upon the claim that the Act was invalid. The Court said, “When one undertakes to cheat the Government or to mislead its officers, or those acting under its authority, by false statements, he has no standing to assert that the operations of the Government in which the effort to cheat or mislead is made are without constitutional sanction.” 303 U. S., at 6. See also United States v. Kapp, 302 U. S. 214, involving a false claim for money under the subsequently invalidated Agricultural Adjustment Act of 1933. Analogous are those cases in which prosecutions for perjury have been permitted despite the fact that the trial at which the false testimony was elicited was upon an indictment stating no federal offense (United States v. Williams, 341 U. S. 58, 65-69); that the testimony was before a grand jury alleged to have been tainted by governmental misconduct (United States v. Remington, 208 F. 2d 567, 569 (C. A. 2d Cir. 1953), cert. denied, 347 U. S. 913); or that the defendant testified without having been advised of his constitutional rights (United States v. Winter, 348 F. 2d 204, 208-210 (C. A. 2d Cir. 1965), cert. denied, 382 U. S. 955, and cases cited therein).
It is argued in dissent, see pp. 876-880, post, that we cannot avoid passing upon petitioners’ constitutional claim because it bears upon whether they may be charged with defrauding the Government of a “lawful function.” At the time of some of the allegedly fraudulent acts of the conspirators, this Court‘s decision in Douds had been handed down. It was flouted, not overlooked. This position loses sight of the distinction between appropriate and inappropriate ways to challenge acts of government thought to be unconstitutional. Moreover, this view assumes that for purposes of
Because the claimed invalidity of § 9 (h) would be no defense to the crime of conspiracy charged in this indictment, we find it unnecessary to reconsider Douds.
We turn now to petitioners’ contention that the trial court committed reversible error by denying their motion to require production for petitioners’ examination of the grand jury testimony of four government witnesses.13 Alternatively, petitioners sought in camera inspection by the trial judge to be followed by production to petitioners in the event the judge found inconsistencies between trial testimony and that before the grand jury.
The trial judge denied the motions, made at the conclusion of the direct examination of each of the witnesses, on the ground that no “particularized need” had been shown. See Pittsburgh Plate Glass Co. v. United States, 360 U. S. 395, 400. On appeal, the Court of Appeals held that the denial of the motions was not reversible error. The court recognized “the inherent power and the inescapable duty of the trial court to lift the lid of secrecy on grand jury proceedings in aid of the search for truth,” and that its obligation was “not [to] hesitate to inspect and to disclose any inconsistencies if it is likely to aid the fair administration of criminal justice through proper cross-examination and impeachment.” 346 F. 2d, at 17. It went so far as to express the view that “it would have been safer to have inspected the grand jury testimony.” Id., at 18. But because “the witnesses were
In his brief in this Court, the Solicitor General concedes that “there is substantial force to petitioners’ claims that the interest in secrecy was minimal in light of the oft-repeated testimony of the witnesses and that the arguments they now advance, if made at trial, might have suggested in camera inspection as an appropriate course.” Brief for the United States, p. 51. But the Government argues that it was not error for the trial judge to have denied petitioners’ motions. With this latter proposition we disagree, and we reverse.
This Court has recognized the “long-established policy that maintains the secrecy of the grand jury proceedings in the federal courts.” United States v. Procter & Gamble Co., 356 U. S. 677, 681. And it has ruled that, when disclosure is permitted, it is to be done “discretely and limitedly.” Id., at 683. Accordingly, the Court has refused in a civil case to permit pretrial disclosure of an entire grand jury transcript where the sole basis for discovery was that the transcript had been available to the Government in preparation of its case. Procter & Gamble, supra. And, in Pittsburgh Plate Glass Co. v. United States, supra, the Court sustained a trial court‘s refusal to order disclosure of a witness’ grand jury testimony where the defense made no showing of need, but insisted upon production of the minutes as a matter of right, and where there was “overwhelming” proof of the offense charged without reference to the witness’ trial testimony.
In general, however, the Court has confirmed the trial court‘s power under
These developments are entirely consonant with the growing realization that disclosure, rather than suppression, of relevant materials ordinarily promotes the proper administration of criminal justice. This realization is reflected in the enactment of the so-called Jencks Act,
Certainly in the context of the present case, where the Government concedes that the importance of preserving
1. The events as to which the testimony in question related occurred between 1948 and 1955. The grand jury testimony was taken in 1956, while these events were relatively fresh. The trial testimony which petitioners seek to compare with the 1956 grand jury testimony was not taken until 1963. Certainly, there was reason to assay the latter testimony, some of which is 15 years after the event, against the much fresher testimony before the grand jury.19
2. The motions in question involved the testimony of four of the eight government witnesses. They were key witnesses. The charge could not be proved on the basis of evidence exclusive of that here involved.
3. The testimony of the four witnesses concerned conversations and oral statements made in meetings. It was largely uncorroborated. Where the question of guilt or innocence may turn on exactly what was said, the defense is clearly entitled to all relevant aid which is
4. Two of the witnesses were accomplices, one of these being also a paid informer. A third had separated from the union and had reasons for hostility toward petitioners.
5. One witness admitted on cross-examination that he had in earlier statements been mistaken about significant dates.
A conspiracy case carries with it the inevitable risk of wrongful attribution of responsibility to one or more of the multiple defendants. See, e. g., United States v. Bufalino, 285 F. 2d 408, 417-418 (C. A. 2d Cir. 1960). Under these circumstances, it is especially important that the defense, the judge and the jury should have the assurance that the doors that may lead to truth have been unlocked. In our adversary system for determining guilt or innocence, it is rarely justifiable for the prosecution to have exclusive access to a storehouse of relevant fact.20 Exceptions to this are justifiable only by the clearest and most compelling considerations. For this
In Pittsburgh Plate Glass, supra, the Court reserved decision on the question whether in camera inspection by the trial judge is an appropriate or satisfactory measure when there is a showing of a “particularized need” for disclosure. 360 U. S., at 401. This procedure, followed by production to defense counsel in the event the trial judge finds inconsistencies, has been adopted in some of the Courts of Appeals. In the Second Circuit it is available as a matter of right.21 While this practice may be useful in enabling the trial court to rule on a defense motion for production to it of grand jury testimony—and we do not disapprove it for that purpose—it by no means disposes of the matter. Trial judges ought not to be burdened with the task or the responsibility of examining sometimes voluminous grand jury testimony in order to ascertain inconsistencies with trial testimony. In any event, “it will be extremely difficult for even the most able and experienced trial judge under the pressures of conducting a trial to pick out all of the grand jury testimony that would be useful in impeaching a witness.” Pittsburgh Plate Glass, 360 U. S., at 410 (dissenting opinion). Nor is it realistic to assume that the trial court‘s judgment as to the utility of material for impeachment or other legitimate purposes, how-
Because petitioners were entitled to examine the grand jury minutes relating to trial testimony of the four government witnesses, and to do so while those witnesses were available for cross-examination, we reverse the judgment below and remand for a new trial.
It is so ordered.
MR. JUSTICE DOUGLAS, while joining the opinion of MR. JUSTICE BLACK, also joins Part III of the majority opinion.
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, concurring in part and dissenting in part.
This prosecution, now approaching its second decade and third trial, is a natural offspring of the McCarthy era. For reasons set out in Part III of the Court‘s opinion I agree that it was reversible error for the trial court to deny petitioners’ motion to examine the Grand
I.
The indictment charges, as it was compelled to charge in order to show that the offense of conspiring to defraud the Government had been committed, that the petitioners’ alleged fraud interfered with “lawful” and “proper” functions of government. Had the indictment failed to charge that the functions obstructed were “lawful” and “proper,” it would have been fatally defective under our prior cases accepted by the Court today which state that an essential element of the crime of defrauding the Government is the obstruction of a “lawful” and “legitimate” governmental function. United States v. Johnson, 383 U. S. 169, 172; Glasser v. United States, 315 U. S. 60, 66; Hammerschmidt v. United States, 265 U. S. 182, 188; Haas v. Henkel, 216 U. S. 462, 479. Accordingly, in holding that petitioners have no right to challenge § 9 (h), the Court must conclude that even if § 9 (h) is a bill of attainder, petitioners have nevertheless conspired to interfere with some lawful and legitimate function of government. Yet the Court nowhere points out any governmental function that could have been interfered with by the false affidavits except functions performed under § 9 (h) which the Court for purposes of this argument assumes is a bill of attainder.
Our Government has not heretofore been thought of as one which sends its citizens to prison without giving them a chance to challenge validity of the laws which are the very foundation upon which criminal charges against them rest. Yet the Court refuses to allow petitioners to attack § 9 (h) on the ground that “the claimed invalidity of § 9 (h) would be no defense to the crime of conspiracy charged in this indictment. . . .” It is indeed a novel doctrine if the unconstitutionality of a law which forms the very nucleus of a criminal charge cannot be a defense to that charge. Certainly the Court does not deny that violation of the § 9 (h) requirement for non-Communist oaths is an essential if not indeed the only ingredient of the crime for which the Government seeks to place petitioners in jail. The indictment properly charged unlawful compliance with § 9 (h) as an essential element, if indeed not the whole crime laid at petitioners’ door. Congress has passed no law which requires the Court to refuse to consider petitioners’ challenge to the constitutionality of § 9 (h). Nor are there any prior cases of
The cases relied on by the majority cannot, in my judgment, properly be stretched to support the Court‘s holding that petitioners have no right to challenge § 9 (h) as a bill of attainder. In United States v. Kapp, 302 U. S. 214, relied on by the Court, the defendants conspired through use of false statements to secure benefit payments under the Agricultural Adjustment Act to which they were not entitled under the Act itself. For this they were indicted. At trial they contended that they could not be prosecuted because the Agricultural Adjustment Act had been declared unconstitutional. This Court properly rejected that defense. In that case Kapp was convicted of conspiring to get money out of the Treasury to which he had no possible right whether the statute was constitutional or unconstitutional. The alleged conspiracy was to defraud the Government of money by people who, under no circumstances, had or could have had any legitimate claim to the money. So also in Kay v. United States, 303 U. S. 1, as in Kapp, the defendants made false statements in order to get benefits from the Government which were not due them whether the Home Owners’ Loan Act was constitutional or unconstitutional. In none of the other cases relied on by the Court today do we have the situation present in this case. Here, if § 9 (h) is unconstitutional, petitioners’ union has always been entitled to services of the Labor Board before any affidavits were filed, when they were filed, or after they were filed. By filing false affidavits petitioners got for their union no more than it was entitled to if the statute is unconstitutional. In
Let us consider for a moment other similar cases in which efforts might be made to deprive citizens of their right to challenge unconstitutional laws bearing down upon them. For example, what if a State wanted to impose racial or religious qualifications for voting in violation of the Fourteenth and Fifteenth Amendments and that State refused to register people to vote until they had filed affidavits swearing that they were not of a proscribed color or religion? If a person filed a false affidavit under such a law could it be possible that this Court would hold the person had defrauded the State out of something it was entitled to have? Take another example.
II.
In 1959 Congress repealed § 9 (h) of the National Labor Relations Act and enacted § 504 of the Labor-Management Reporting and Disclosure Act. 73 Stat. 536,
Petitioners now face their third trial and possible prison sentences just as though the Court had today upheld § 9 (h). I must say with considerable regret that future historians reporting this case may justifiably draw an inference that it is the petitioners, whatever may be their offense, and not the Government who have been defrauded. For petitioners, if convicted and sentenced again, unlike the Government, actually will have been deprived of something—their freedom. They will be in jail, having been denied by their Government the right to challenge the constitutionality of § 9 (h) which, when it is challenged, must in my judgment be held to be the constitutionally doubly prohibited freedom-destroying, legislative bill of attainder.