Mesarosh v. United States

MESAROSH, NELSON, et alias al. v. UNITED STATES. Argued 10, Opinions No. 20. and decided October delivered 1956. November argued support of the Gov- General Rankin Attorney Gen- motion to remand. Assistant ernment’s Tompkins him on the motion. was with eral argued opposition Frank J. Donner Govern- support petitioners’ of motion ment’s motion and trial. to the District Court for new the case be remanded Delany Kinoy, T. Perlin and Hubert Arthur Marshall supporting petitioners’ and a with him on motion were memorandum.

MR. Chief opinion delivered the Justice Warren the Court. only

The decision herein on the passes integrity criminal trial the federal courts. It does not determine guilt petitioners, or innocence of the and we do other or propounded lengthy reach issues briefs may present 5,147 in the trial record pages. which The Solicitor General States United moved for proceedings remand the case court further of untruthful before other given because tribu- D. by Joseph Mazzei, a in this nals Government witness case. The counter-motion of asked for a new entirely upon trial. representa- The decision is based tions of the its the Government written motion and on the the during argument statements of Solicitor General on the motions.1 petitioners charged were in a one-count indictment Pennsyl- Court the of the District for Western District conspiracy They

vania with the violate Smith Act.2 1 argument The Court directed that oral on the motions be heard previously argument at the time for .on scheduled the the merits. believing U. 352 S. 808. the motion Frankfurter, Mr. Justice granted argument, should be without filed dissent. argument hearing motions, 10, 1956,

After on the October the following matter, Court consider recessed to the which its decision to order a new trial was announced from the bench. 352 862. U. S. merits, therefore, Argument the not on was heard. Mr. Justice dis- Frankfurter, Burton, Mr. Justice Mr. Justice Harlan from denial of the motion to sented the Government’s remand. opinion amplify has been the This written to decision announced It should be that Mr. October noted Minton Justice voting participated motions, in the consideration and decision of the 15, 1956, prior of the of the Court. October favor order On writing opinion, the of this the Court. he retired from Therefore participate opinion. of this did consideration 2 alleged It was the date the between of indictment petitioners conspired the the of the had advocate overthrow Gov- for the Third Appeals of and the Court convicted, were banc, by affirmed a divided court. sitting en Circuit, petition for writ the granted 2d 449. This Court F. for scheduled 922, and the case was certiorari, 350 U. S. 10,1956. on October argument the 27, 1956, the General of September On calling a motion the attention of the filed States United by given proceedings in other Court for the Gov- one seven witnesses Mazzei, who was motion, In he stated this case. ernment has possession, on the information its now Government, Mazzei’s testi- to doubt the truthfulness of serious reason adhering posi- to its mony proceedings. in those While given trial that “the Mazzei at the tion entirely credible,” truthful and case] [in incidents, taken cumulatively, motion stated “these suggest that the issue his truthfulness lead us should be determined these now a hearing.” District Court after indicating cited The material untruthfulness Mazzei occasions other than this presented by setting trial can forth verbatim the best presented these in Motion of description of incidents the Government to Remand: 18, 1953,

“On June Mazzei testified before Investigations, Senate Permanent Subcommittee on in Washington, C., that, meeting D. a of the Civil Rights 4, one Congress 1952, on December Louis by organize ernment of the United States force and violence and society group, Party, purpose. or a the Communist to that devoted judge organization charge The trial ruled that the was barred limitations, concerning the statute of but that the 1945 evidence organization Party, events, the of Communist as well as earlier was determining in conspired admissible had whether advocate violence. him he, Bortz,

Bortz told had been ‘selected Party a job liquidation to do Communist McCarthy.’ Joseph Mazzei further Senator testi- Party said fied that the Bortz conducted Communist in Pittsburgh Party classes to familiarize members handling with the of firearms and to instruct them the construction of bombs. 14, pleaded

“On November Mazzei 1952, guilty adultery bastardy Pennsylvania in a charges state court. This fact brought during was out his at the petitioners’ cross-examination trial. On Octo- 2, completion ber 1953—after of the trial— a petition Mazzei filed court the state to have the guilty plea set aside. One grounds set forth that he petition guilty charge his was ‘was not * ** to which was to plead induced but did only so in his a capacity (as official Government informant) superior at the insistence of his FBI to a testifying.’ hearing avoid At on the above petition 6, 1953, Special on October Agent FBI allegations denied Mazzei’s under oath. Maz- petition zei’s on 6, dismissed court October 1953, “In November Mazzei, proceeding, at a secret identified certain official as long-time Party active Communist member. 1955, June 10 Mazzei

“On testified before Security Senate Subcommittee Internal regarding possible motivating Communist influences attempts to discredit Justice Michael Musmanno of Supreme Pennsylvania. Court of In the course of Mazzei John testimony, Mullen, identified J. National Director, Committee, Political Action Steel Workers of America, as a member of the Communist Party period Mazzei Pittsburgh during 6 Mazzei also informant. testified

awas Government times a met Mullen ten or fifteen he that since 1942 Party member. a fellow year, as Communist in July Mazzei testified disbarment 2, 1956, “On Leo before the Cir- against one Sheiner proceedings Florida, of the Eleventh Judicial Circuit Court cuit cross-examination, Mazzei reiterated in Miami. On plead guilty he induced to his that was charge bastardy Pennsylvania in charge adultery and Agent an of the in November 1952 state court alleged Commu- Items of FBI. activity he visited Dade are as follows: —that nist Party Florida, on behalf the Communist County, that during years 1952; from each Party attempted in Miami had to lease Communist Opa-locka Air Base; line served the a bus which Party plans for the Communist made on orders the armed invasion of the United States he, and that Mazzei, from the Soviet was Union go to Miami in it was a sea- selected to 1948 because Party took port; that he courses Communist handling and arms and sabotage, espionage, that he officers of ammunition; taught Party in to blow Pittsburgh bridges, Communist how poison reservoirs, people; water and to eliminate off’ ‘knocking he discussed with Sheiner Judge (a judge) they (presum- Holt Florida whom ably Party) having the Communist were trouble with, importing Bortz, strong-arm and one Louis job; man Party, for Communist do Party and the plans Communist had made assassi- nate Senators, Congressmen, and even went to Wash- Senator; and ington up that, beat to his knowl- extensively edge, Sheiner was engaged Communist Party 1947, 1950, 1951, activities of the proceeding None Florida supported by or corroborated in the information possession Government. FBI arranged

“Mazzei likewise testified that the Army him get into so that he could watch a cer- Party tain Communist that he never member; wore he discharged day uniform and that was after Party the Communist member he was to watch was In discharged. fact, actual Mazzei’s in the career Army operation was the result of the of the Selective Training Service Act of 1940 and FBI had nothing to do with his service the armed forces. also paid He testified that sometimes the FBI him $1,000 expenses. about a month for From the pe- 1952, according riod to the records, Bureau paid Mazzei was the total of expense $172.05 as money.

“Mazzei likewise that he testified had never been fact, in his In arrested life. he was arrested con- paternity brought nection with the case against him Pennsylvania one by Irene Corva. has He been subsequent arrested several times to this for his make support payments failure to to this woman.” argument On the of the motion the General, response questions Court, stated with commend- able candor that he believed the testimony given 18, 1953, Mazzei on June before the Senate Committee concerning liquidation “the Joseph McCarthy” Senator was untrue. He likewise stated that he believed testi- mony given by July 2, 1956, Mazzei in the Circuit Court of Florida was untrue. And in addition to the personal Solicitor General’s opinion, text of the motion itself Department shows that of Justice is certain that some of Mazzei’s post-trial testimony was contrary Pennsylvania the facts. The statement of adultery concerning his conviction 1953, October hearing at that under oath bastardy controverted was Flor- again FBI. Mazzei asserted an agent plead guilty induced to proceeding ida an the FBI. In the Florida adultery charge by agent of him a paid the FBI sometimes he said that testimony, expenses, month for whereas thousand dollars paid showed he was total of the Bureau records expense money. $172.05 He also there testified a Army spy FBI him in to on arranged put the the FBI Party member, nothing the had to do with whereas in Army service; his he had been inducted accordance with All are discrepancies the Selective Service Act. these in pointed quoted out as above. motion, testimony proceeding- to his bizarre As the Florida sabotage, espionage, handling and concerning of arms ammunition, plots to assassinate Senators, Congress- judge, and a state men, suggests Government’s motion worthy of it of belief by stating that none is therein: testimony proceeding sup- “None the Florida is ported by or possession corroborated information of the Government.” argument, however,

At the oral the Solicitor General all although stated that he believed of this not untrue, prepared say be was the witness Mazzei perjury guilty giving testimony; been a might by psychi- untrue statements have caused might such have condition, atric condition arisen trial. The subsequent to the time of this Solicitor Gen- light position, of this asked to have the eral, on the main case stricken from the calendar argument to the District Court for a full and the case remanded credibility of the of the of wit- consideration of the Solicitor ness Mazzei. Commendable as action our bringing the matter promptly General was attention when it came the attention office,3 of his disposition suggested by we do not believe the of the case him should be made. or accept

Either this Court the District Court should the statements of the indicating Solicitor General unreliability of this Government The question witness. proceedings of whether his untruthfulness these other perjury psychiatric or was aby constituted caused condi- make tion can no material difference here. Whichever be explanation might found to be correct in this regard, credibility wholly Mazzei’s has been discredited No disclosures Solicitor General. other conclusion possible. dignity is United States Govern- ment not permit any person will the conviction testimony. tainted, tainted This conviction and there just can be no other result than to accord new trial.

It must here dealing remembered we are defense, for a with motion new trial initiated under 33 of Procedure, Rule the Federal Rules of Criminal untruthful presenting statements Government wit- subsequent ness as newly discovered evidence credibility affecting allegation at the trial. Such an by ordinarily support the defense will not a motion for “merely new new is trial, because evidence which cumula- or impeaching” not, according often-repeated tive adequate of the an basis courts, grant statement for trial.4 new 3 into The stated that his office came Solicitor General’s motion history testimony” post-trial than possession of “the of Mazzei’s less exception, the days one ten before the motion was filed. With Department of not other of the motion does indicate when units acquired their of Mazzei’s conduct. Justice information 4 588, 592, g., Johnson, See, United States v. 142 F. 2d cert. e. 647, 806; Rutkin, dismissed, States v. 208 F. 2d U. S. United 323 10 The wit- entirely an different situation. we have

Here informer of the Government —he paid Mazzei was ness for purpose 1942 to 1953 employ from had been in its Party reporting infiltrating the Communist capacity, case He testified facts found. now It is which the Government a Government witness. of its own witness because credibility questions activity gave same field of proceedings other parts positively of it established testimony certain —some parts of it believed the Solicitor and other as untrue The conceded Solicitor General untrue. General testimony this case the conviction Mazzei’s that without argued that stand, but he cannot of two may have had evidence three Mazzei’s as to other Mazzei’s judge effect. But the trial believed a substantial for, objection, over against material them defendants. There were against all the he admitted Mazzei, least, The only seven witnesses. reality the mass of Communist gave flesh-and-blood advocacy of violence jury read to the show literature Party.5 being so, This it cannot be deter- the Communist Frankfeld, aff’d sub nom. 919, 923, 654; Supp. F. States v. United Meyers States, States v. United see v. United 207 F. 2d 413. But Lee, 201 F. 2d 722, (dissenting opinion). On 725-726 Johnson, 110-111, n. See also United States v. 327 U. S. and n. case, in Although in this we have not examined the evidence disposition made, appropriate we deem it to consider view of the testimony, petitioners’ counter- of Mazzei’s since herein nature pages transcript. appropriate referred motion us parties in pages in the main briefs of both had also been cited same summarizing the evidence. quite specifically about statements defendants

Mazzei testified taught Dolsen, in classes each had at a Com- Careathers and made private in Party he had 1943 or in conversa- munist school attended with him at that time. tions each had had class, testified, taught part Mazzei Careathers in about conclusively by mined any court that his testimony in insignificant general against case the defendants. Thus it has tainted the trial petitioners. as to all As we said last Term in Communist Party v. Subversive Activi ties Control Board:

“When uncontested is challenge made that a find- ing of subversive design by petitioner part was in product perjurious of three witnesses, it does not re- move the taint for a reviewing court to find that there ample testimony innocent support the Board’s If findings. these witnesses in fact per- committed jury in testifying other cases on subject matter substantially like that of their pres- ent proceedings, their proceeding is inevitably discredited and the Board’s determina- tion must duly take this fact into account.” 351 S.U. 115, 124.

There we remanded to the Subversive Activities Control Board for reconsideration of its original determination in Negro people play bringing would about a revolution. [Tr. class, Dolsen told his with present, Careathers 1940-1941.] only way a revolution could come about would be violent overthrow government, Party with helping. the Communist Mazzei teaching, related other details of [Tr. 1923.] Dolsen’s passages jury were read to the which he said Dolsen had read History the class Party from the Communist the Soviet 1922-1923, Union. [Tr. 1936-1938.] Mazzei given told how Dolsen and pri- Careathers had each him class, vate instruction after because each was unsatisfied with his understanding of a lesson Dolsen’s class. Mazzei related that each separate private had told him in these sessions that a revolution country only in this could violence, come armed and that help Party would be with the of the Communist and the Soviet Union. Mazzei also testified that [Tr. 1943.] Dolsen had told him, trip, on an about, auto that if a revolution came he would not kill, hesitate to China, as he had done in where he had with worked Party. the Communist [Tr. 1945.] 12 testimony. of the tainted light of the record shorn

the agency, an administrative was the Board, But there the Here, hand, on the other a original finder of fact. jury. a The case, original the finder of fact was criminal to determine that proper agency is not the judge district at other than that trial, was sufficient evidence the there any a Mazzei, to sustain conviction of the given by it Only petitioners. jury the can determine what would body evidence, jury and the can no do on a different reason, in this case.6 For as well as that longer act a if on remand preceding paragraph, stated in against District Court should rule that the verdict some petitioners stand, obliged, could we would be on a subsequent appeal, and, to reverse late date, a granted.7 direct that new trial be This was insti- case States, 414, 6Cf. Gordon v. United 344 S. 422-423. U. present in United States v. situation different from that Flynn, 412, reargument denied, Supp. Supp. 130 F. 131 F. 742. There a which the defense moved for new trial on the basis of an affidavit in after the The Government witness recanted trial. charged recantation, testimony it rather than the contra dicted, lie. Hence there was factual issue to determined outset, present case, at the unlike the where there is no conflict subsequent brought matter for between bearing credibility. This difference ward the Government recognized by calling application the courts as has been for the passing trial, different tests in on motion for new even without the ques added distinction of this case that is the Government which credibility. See, g., e. Johnson, States v. tions witness’s United 588, 591-592, dismissed, 806; 142 F. 2d cert. 323 U. S. United States 136, aff’d, Hiss, Supp. 128, Therefore, F. F. v. 107 201 2d 372. we opinion procedure by Judge express no as to the followed Dimock Flynn case. 7 904, States, Cf. Remmer v. United 347 U. S. S. U. U. S.

Because the raised General’s situation motion is quite ordinary trial, distinct from that of the defense motion for new pp. 9-11, supra, see we would not consider ourselves bound on a years tuted four and one-half ago; have been proceeding pauperis. justice The interests of forma a could not be served prove remand that must futile. might It if be different we could in this any see case upon factual issue which the on Court, District a remand, could make an finding unassailable that Mazzei’s other falsehoods were differentiated from his herein. itBut is not within the realm of expect reason to the dis judge determine, trict to as the it indicated him do, would ask to the witness Mazzei testified truthfully in this case in 1953 anas undercover informer concerning the of activities the Communist conspiracy, yet concurrently appeared in the in same role another tribunal falsely possibly and testified a psychiatric because of — plan condition —about different members of the Com conspiracy munist to assassinate a United States Senator.8 That an would be unreasonable determination to make though even judge might believe that Mazzei's bizarre testimony in concerning plans for the assassination of other officials, destruction of bridges, training sabotage handling arms, poisoning and the of water all reservoirs, destroy the Government of the United States, the product of a or mental emotional con- ruling review of the District Court’s in this situation the limita- expressed tions with reference defense motion in United States Johnson, v. 327 U. S. 106. 6, supra. note

See also 8 petitioners February 24, The trial of started 1953. Mazzei testi against petitioners 26, 27, fied on March and 30. It was on June 18 July testified before Senate Committee. On a motion for a prejudice alleged mistrial was made on the basis of the publicity given caused the June 18 concerning McCarthy. Mazzei the assassination of Senator Mistrial jury petitioners guilty August They was denied. found on August 25, on were sentenced new which date motions for were denied. this developed only the time of had after

dition that trial. testimony, poisoned has the water

Mazzei, by reservoir, and the reservoir cannot be cleansed with- impurity. This is a federal draining out it of all first supervisory jurisdiction has case, criminal and this Court any If it has of the federal courts.9 proceedings over the regard, in this is see that the waters duty perform having place polluted. are not Pollution taken justice earliest should be remedied here, the condition opportunity. justice is cer-

“The untainted administration aspects our insti- tainly of the most cherished one proudest is one of our boasts. tutions. Its observance charged supervisory with functions This Court federal courts. See proceedings relation States, Therefore, McNabb United v. 318 U. S. 332. for the honor of the administration regard fastidious that to make certain requires the Court justice of only so manifest justice be made doing disregard or claims of its can perverse irrational Activities Party v. Subversive Communist asserted.” Board, 124. Control 115, 351 S. U. free nation does strong and

The government testimony. It cannot such upon based need convictions call justice them. The interests abide with afford to to with direction judgments below for a reversal petitioners a new trial. grant

It is so ordered. in the consideration part took no Mr. Justice Brennan case. or decision Thiel v. 340-341; States, 332, S. v. 318 U. McNabb United

9Cf. Co., 217, U. S. Southern Pacific 328 Harlan, Justice with whom Mr. Justice Frank- Mr. furter join, and Justice Burton dissenting. Mr.

When Court’s denying order the Government’s motion remand, trial, to and granting the a new by 10, was announced The Chief Justice October Frankfurter, Mr. Justice Mr. Justice I Burton and dissented.1 to right opinion stating We reserved our file an our reasons for thinking that the Government’s motion granted. should have been This is opinion. On August lengthy jury after 20, 1953, trial, peti- tioners violating were convicted of and the Smith Act conspiracy federal general statute, 671, Stat. 670, 371, by S. C. conspiring U. advocate the over- §§ throw of the force United States Government Circuit, Appeals violence. The Court of for the Third banc, sitting en affirmed a divided vote.2 This Court granted certiorari.3 27, 1956,

On two September about weeks before the was scheduled for argument, case the Solicitor General asking filed a motion case us remand the Dis- a hearing trict Court for as the truthfulness Mazzei, of one informant and credibility government for this witness at the trial. occasion motion was before, office, days General’s some ten had into of information which it seri- possession come led ously given certain to doubt correctness of independent proceedings, Mazzei various all but one trial, of which occurred after the relations with Investigation.4 the Federal Bureau of Communists and 1 352 862. U. S. 2 2d 223 F. 449. 3350 U. S. episodes place these One of took before the Senate Permanent 18, Investigations, Washington, C., on D. on June Subcommittee (while progress). the trial was still in There Mazzei had Congress meeting Eights testified that at a of the Civil on December stated that while papers (cid:127)In its motion the Government testimony Mazzei’s at the trial had been believed that still “entirely credible,” post-trial testimony his truthful and suggest such as to “lead us to proceedings other was these peti- the trial of these issue of his truthfulness at that the by District Court be determined tioners should now to this motion was hearing.” Petitioners’ answer after judg- themselves entitled to they while considered that, or a trial on the basis of the Govern- acquittal new ment disposition of the Government’s motion disclosures, ment’s on the this decision nevertheless await Court’s should by of certiorari. brought here the writ issues the Court directed that Government’s 8, On October orally threshold of the main case. heard at the motion be felt the motion My who Frankfurter, brother dissenting forthwith, granted have been filed should matter heard the Court memorandum.5 When the was the Government 10, positions taken on October was as follows: The Government the defense were Mazzei had committed say yet prepared not functionary) alleged Party (an 4, 1952, Communist one Louis Bortz Party he, Bortz, been “selected the Communist told him that had McCarthy.” liquidation Joseph On job in of Senator to do a that the argument the General told us the oral Solicitor testimony regard prepared time of the was at the trial fabrication, questioned on this sub- as a because Bortz when Mazzei stating pleaded privilege, had ject before the Senate Committee questions appears him. It "would” incriminate that the answers brought to the attention of that Mazzei’s Senate defense motion judge and that it was the basis an unsuccessful that it was not General further stated for a mistrial. discovery in the other of Mazzei’s later until recent given certain proceedings particularly post-trial collateral — proceedings July depart- 1956—that his Florida disbarment began truthfulness or doubts as to Mazzei’s ment have serious credibility. 5352 U. S. 808.

perjury any either at the trial or in collateral proceedings.6 Conceivably, thought, the Solicitor General might psychiatric it turn out that Mazzei was a case. pointed that The out Solicitor General had testimony, 6As to Mazzei's trial the Solicitor General stated: presented court, “Before the witness was [Mazzei] [trial] testimony carefully appraised his was as whether or not was supported by Department any had, other material the he was and Although not contradicted. witnesses took the stand in behalf testimony all, defendants his was not at that contradicted was one of the factors that bothered the Government in connection subsequent with these events have caused us conclude testimony carefully this man’s should be reexamined lower regard validity trial, court in time of because of what which, since, ordinarily, though has occurred even there actual validity perjury, testimony would not determine the of the at the trial, depending upon what the circumstances were.” testimony proceedings,

As to Mazzei’s in the collateral the Solicitor General stated: believe that his “We Senate] [1953 regard McCarthy light was not credible [the incident] happened proceedings]. what later the Florida disbarment We [in point something do not psychi- know at this whether or not there is atric about this situation. are disturbed We about that.” that, “personal Solicitor General further stated his is he while belief McCarthy was not truthful” in his as to the [Mazzei] “I episode, don’t it left want record that I believe man you perjurer, perjury to be because I think in a order to commit intent, have to have the and that is what disturbs me about this accept testimony, whole situation. I can’t all events over these [referring testimony], being to Mazzei’s Senate valid. and Florida knowingly But whether or not he does it with the intent commit [to something perjury] through.” else and that is what I can’t follow possibility being psychopath: As to of Mazzei’s The Gov- papers pleaded ernment’s motion showed that in Mazzei had guilty charges adultery bastardy Pennsylvania state court, brought petitioners’ been and that this fact had out at trial. ended, They petitioners’ further showed that in after trial had Pennsylvania Mazzei had moved in the court to set aside his former plea, alleging guilty charge to that he “was not which he was (as plead only capacity induced to . . . but did so in his official informant) FBI superior at the of his insistence grounds re- for a new trial on the moved previously motion, although much upon lied Government’s was known to them as to Mazzei the later information reargument in the Court at of their motion for the time that the Solicitor General felt Appeals. so, Even duty pursue justice it was his to broader interests of knowledge that as it came to his the matter as soon or credi- Mazzei’s truthfulness upon a was cast cloud a per- that Mazzei was If been satisfied bility.7 he had us, allegations, the informs testifying.” These Government to avoid application the F. B. I. and Mazzei’s denied under oath were Further, Pennsylvania plea court. to was denied set aside papers in the 1956 Florida motion here show that the Government’s the F. B. I. had ar- proceedings Mazzei testified disbarment Army a get that he watch certain ranged him into the so could Party member, drafted into whereas in fact Mazzei was Communist nothing B. do with it. The Govern- Army, the F. I. had proceedings Mazzei testified that ment that in the same states $1,000 expenses, a month for whereas over paid F. B. I. him about paid B. him total period to 1952 the F. I. had the entire from 1942 only $172.05; he had expense money of and that Mazzei testified he arrested, had been arrested several been whereas fact never episodes the stated at the oral As to these Solicitor General times. very certainly peculiar argument: action, “It to me that that a seems anticipated, have even if he wanted he should and that [Mazzei] promptly it, agent FBI would be there to lie about very person so it is to me that a testifying to the facts. And unusual wanting falsify, thing. But, I normally, think would do such times, good many competency into the trial courts have examined or not every day, and be able to determine whether and do it should competent he the time.” The Solicitor General also stated psychopathic it he whether was “disturbed about condition] [a petitioners], these and I think the occurred even back at the trial [of carefully.” (The above, into that and similar court should examine recording tape quotations, taken from the of the Solicitor Gen- are Court, interpolations argument the writer’s eral’s oral before by brackets.) being indicated say may “If I one As to this the Solicitor General stated: word regard new to that failure of defense move for a more [the trial], obligation I in a situation of feel that jurer, the Solicitor General he have recom- stated, would mended that this Court reverse the convictions two of the petitioners (Careathers Dolsen). he was Since satisfied, thought procedure not so was to proper exploration remand the case to the District for full Court of the truthfulness and of this As credibility witness.8 petitioners, other three the Solicitor re- General garded Mazzei’s importance trial of so little that the if court, even Mazzei was perjurer, found against would have review entire them before case a new trial. ordering position Petitioners’ was that if unwilling this Court was to hear the main case the merits, should, more, deny without the Government’s motion and reverse the convictions with directions for acquittal at least a new trial. At the or conclusion of the argument oral on the motion Court remand, to re- beyond rights particular defendants, this kind reaches far of these duty Court, country, and it is its to this and to the it is our obli- and gation try kind, justice in a situation of this to and see that is being may late, I done. . . . We be criticized for too but think it is late, try justice. Having to never too to do come to that conclusion validity testimony doubt], I open of this is think we [that courts, try proper, should before the one is and come whichever get wrong, if there correction is one.” “Well, The Solicitor General stated: we would have recommended if we that Court had been satisfied ourselves that [reversal] Mazzei's at the time of trial —which we think was the deter mining proceedings point proper judicial conduct of [was— untruthful], . . . feel because we at least to these two defendants [petitioners Careathers was no basis and there for Dolsen] [other] possible something happened their conviction. But it is that has [Mazzei], this man that his uncontradicted was valid at trial, long and it with a tried like time of seemed us that case jury involved and the court and the courts of and the trial appeal, on, proper thing and so to do to send it back to the carefully question its trial court for examination into this deter is, mine fact assume what the and then would court] [the duty, will, properly do his which I think he the ease handled have point.” at that following its decision matter, which to consider

cessed announced from motion was denying Government’s bench. re- properly agreement the Court are full We this cloud of the case until pass on the merits fused to had been dissolved. integrity of the convictions upon the Board, Control Activities Party Communist Subversive v. this Court object to is that 115. What we U. S. with the subtle and deal should have undertaken to itself mo- presented by the Government’s issues complicated District Court back to the sending instead of case tion a full investi- issues after for the determination of these this view. our reasons for fitting It that we state gation. these convic the reversal of 1. We believe depar unprecedented dangerous represents tions an principles judicial administration. from sound ture complex, of a the results has overturned The Court any investigation expensive trial before protracted, and suspicions which the made of the has been promptly Court brought to the attention of the General to them came to his notice. the facts rise giving after summary action justification the Court’s its We find unconvincing. is that “either this Court justification given

The basic accept should the statements or the District Court indicating General as the unrelia- of the Solicitor effect, this witness.” In bility of as if the Court has treated case Solicitor General Mazzei’s the untrustworthiness testi- had conceded a misunderstanding us this reflects mony at the trial. To position. As to Mazzei’s of the General’s Solicitor testimony, the Solicitor General-—whose forth- trial no whose doubt, and candor one could rightness has been commended this conduct this situation represented that the Government did not con- Court — it had basis for such testi- regarding sider sufficient yet mony as testimony untruthful. As to Mazzei’s in col- General, stating lateral while proceedings, personal belief that some of it untruthful, repre- was responsibly say sented that he could not whether such testimony than perjury involved rather psychopathic imbalance, if the first and, latter, when condition or arose whether it was of such a affect character as to as a In competency Mazzei’s witness. think short, we abundantly clear the Solicitor General conceded more than no that the situation one that called for was thorough investigation.

alsoWe observe that the Court finds that “no other credibility than possible” conclusion is that “Mazzei’s been wholly discredited,” parts has and that some of his have as post-trial “positively been established see be untrue.” We do not how these conclusions can representation reached face Government’s hg,ve it still Mazzei’s believes been “entirely truthful and credible,” pro- and without any evidence, or the examination and duction cross- him, examination of Mazzei and those who contradicted episodes post-trial as to the which have been called agree Nor can we the manner in question. with which with the Court has dealt the Solicitor General’s conten- Mesarosh, tions Albertson Weissman. says simply testimony against Court that Mazzei’s and Dolsen was of such a character hav- that, Careathers against defendants, been all it tainted the ing admitted trial. cannot this can But we understand how whole of the entire painstaking appraisal said short record acknowledges it has not read. The the Court Court which read the for our quite right record, not to view was of this that of Court, not the business but the District was token, think, we the decision Court; but the same first justified also, whether a trial was as to new of District Court. instance, the business 22 supra, where there were Party case, the Communist

In not undertake of we did charges perjury, undented sent the case back but instead charges here, those resolve a similar course exploration. for We think Board sug Court case. The followed been have should from that in differs presented here the situation gests that there the Board Party case, that Communist jury, for here it was facts, whereas the trier credibility of weigh the truthfulness court, to testimony. however, overlooks This, trial Mazzei’s it must first be to a new trial preliminary as a fact testimony, any of Mazzei’s collateral whether determined the truthfulness upon reflects question, drawn in so now of trial as warrant submis credibility or preliminary deter jury. a new That of the case to sion of always recognized been function mination has Johnson, United States v. 106; 327 U. S. the trial court. Troche, 401; States v. United 213 2d United States v. F. States, Rutkin, Gordon v. F. United F. 647; 2d denied, 339 S. 935.9 2d cert. U. a suggests might different result

Finally, Court a required dealing if it were with defense have been However, why for a trial. fail to see motion new we prompted motion, which was desire Government’s ramifications, the true facts in all their ascertain possibility aimed at the of a new calls for a trial, which is procedure than a defense motion for different result or suspicions. new trial based on similar proper The District Court was the forum for the kind investigation have of which should been conducted here. Court, Appeals, This and for matter the Courts are may governing between the rules be the differences Whatever upon or motion for a new trial based recantation of evidence, ante, 12, 6, certainly “newly p. types other n. discovered” suggest proper that the trial court not the none those differences presented such a motion. tribunal for resolution the issues ill-equipped for such task. say We need no more than that appellate courts have no facilities for the examina tion of witnesses; nor the nature things they can have that intimate knowledge of the evidence and “feel” of the trial scene, which are so essential to sound judgment upon matters of such complexity subtlety and as those involved here, and possessed which are the trial court alone.

3. Certainly there is no room for doubting the Solicitor good General’s faith this matter, or for supposing that the conduct of the further proceedings below would fall highest short of the justice. standards of criminal We have the Solicitor General’s assurance that all of the Gov ernment’s information bearing upon Mazzei’s truthfulness credibility and would be made defense, available to the subject appropriate to safeguards.10 As to the result, end response question In to a as to whether the defense would be bearing with furnished all of the Government’s information the testimony relating McCarthy incident, truth of Mazzei’s Senate “Well, depend the Solicitor stated: General would on what the thought done, think, trial court should be I in the conduct of the only suggest possibly I case. The reason it should be made problem to them is that available this whole there are several people might get public airing involved who hurt of their con bad, very nection with this matter. And it would be too unfor and tunate, injure people if it wasn’t handled so as not to those when necessary proper handling problem. it isn’t of this ... We do, will do whatever this Court thinks we but I had in should what lay judge mind was to before the all of the information Govern matter, pro ment then he has about entire and can sort out and persons, files, the various who are tect innocent described proceeding, yet give should not be hurt in them such a [the complete protection the benefit of the full and in such a defendants] proceeding as to what the facts are in this matter. ... I had in portions judge mind that certain would handle in so as camera protect people. others, innocent And all that would into reach situation, certainly the merits of the would handled court way give adequate parties opportunity in such as to an all present their defense.” his view the court General stated petitioners Careathers and Dolsen acquit

would have perjured had himself at the trial if found that Mazzei incompetent testify, and as to or had then been a new trial.11 We might have to order other at this whether Solicitor Gen not consider time need might all of the factors that exhausts eral’s statement say regard it to that we require new trial. Suffice situation to difficult approach General’s Solicitor that the hardly it to be assumed and is unexceptionable; into duty full or would fall its District Court would do only that had the Government’s need add error. We “Yes, testi without his The General stated: [Mazzei’s] Dolsen], I do not think mony and as to those defendants [Careathers I the court would have had they think could have been convicted. favor, three As to the other in their at least. to direct a verdict testimony by It is practically no this witness. defendants, there is . n . give . to very slight. to Court. seems me I could [It] . . . whether the situation and see court would have examine lower testimony] on the conviction of had an effect or not it [Mazzei’s . seem to me that . . every defendants. ... It would one of the that this witness the extent of the effect trial court could determine large might defendants, was a the other because there have had on testimony regard that bore to the other defendants volume conspiracy, overt directly upon participation in the and their their as to acts; of this witness was so limited even and the money him, they two of from reference —he said solicited slight any it, with that it is so as to direct connection them —and not, weigh have to whether or under to me the court would seems mind, situation, he that there a doubt his would decide a new In the absence I sure he would which case am trial].” [direct record, we are unable an exhaustive examination voluminous adequate any could made of these how evaluation understand Mesarosh, Albertson, as to the Weiss- considerations that the trial find he was asked to “assume” court would man. When perjurer, and have been Mazzei to been a have petitioners, three of these the Solicitor importance in conviction that he was “satisfied” that the court would promptly stated General these their “if came conclusions.” set aside convictions granted motion been this Court no would doubt have accompanied its remand with appropriate instructions to guide coping the District complicated Court with this problem. surely And the fact that long- this case has been justify drawn-out does not short-circuiting normal and orderly judicial procedures. procedure adopted Flynn, United States Supp. v. F. 131 F. Supp. 742, commends itself us as a proper dealing means of problems with such as those raised the Solicitor not, course, remotely General’s motion. do We even imply any that we give tolerance to the notion criminal conviction found to be infected tainted testi mony say should be allowed to do stand. We that ascer tainment of where the truth requires lies here the kind of beyond that is the facilities probing practices of this Court.

For the foregoing reasons we dissent. We think that the Government’s motion to remand should have been granted.

Mr. Justice Frankfurter. in v. Party

Less than six months Communist Con ago, Board, important trol U. case that raised S. pass refused to on those issues, constitutional this Court alleged was newly issues when discovered evidence those issues that the record out which demonstrate following language: in arose tainted. It did so the is that a find- challenge made “When uncontested part by petitioner was ing design of subversive it witnesses, does not product perjurious of three that reviewing for a court to find remove the taint support ample there is innocent If in fact com- findings. Board’s these witnesses subject cases on perjury testifying mitted other testimony in substantially like that of their matter pro- their this present proceedings, inevitably and the Board’s ceeding is discredited this fact into duly must take account. determination containing record such chal- pass upon cannot We .” 351 at 124—125. testimony. S., . . U. lenged of the case, protest The Court over Govern- proceedings to the Activi- ment, remanded the Subversive allega- might Board so that consider ties Control if and, necessary, tions the witnesses reassess against purged evidence of taint.

In has case, presented itself one of its case, alleging motion to remand the case, in this witnesses, Joseph Mazzei, he testified since tri- testimony (before “has certain other given sworn bunals) Government, which the on the basis reason to information in its now has serious possession, the motion on which doubt.” Some of occurrences go (It should be noted based back 6, in on October for certiorari was filed this Court petition this time at 1955.) Thus the action the Government disposition may This is irrelevant to the appear belated. history of Mazzei’s The fact is that of this motion. testimony Solicitor Gen- post-trial did not come eral’s than days notice until less ten before the presenta tion of this It I would, believe, motion.* have been a disregard responsibility of the of the law officer of the charged especially representing Government with Government before this Court to bring not these dis turbing they facts to the Court’s attention once came attention. And it so, unbecoming would be speak of the candor of the Solicitor General sub mitting by way these facts to the Court of a formal motion ought for remand. It to be assumed that a Solicitor as a matter General would do this of course.

The in its Government motion sets forth the facts which lead it remand. The urge lists testimony five incidents of Mazzei 1953 and between alleged 1956 about the activities of Communists about his own activities behalf the Federal Bureau of “has Investigation which it now serious reason to doubt.” at the the motion to be heard It at this time. retains tion as heretofore set down. of the case argument outset the motion procedure more appropriate I it a deem the Court District forthwith, with directions granted I this motion. feel incum- raised the issues to hear Argument for this conviction. the reasons bent to state on which to base further information hardly disclose can may be Furthermore, there on the motion. a decision for judicial and the methods controversy facts, over here. The facts are not available sifting controverted Party allega- case that Communist principle of basic testimony must be resolved before this tions of tainted Indeed, is decisive. the situation pass on case Court will prin- of that stronger application one for here is an even by the us a statement Govern- for we have before ciple, has to doubt” that it “now serious reason ment of its specialists one proceedings Mazzei, given other activities, and a further statement on Communist “directly in this case that Mazzei’s petitioners.” two of the involved hypothetically not even assume the This Court should on other pass order to of evidence trustworthiness affording There more at stake here even than issues. particular for the District Court case. guidance on a unre- pass containing not record This Court should testimony. The allegations integrity solved tainted is at stark judicial process stake. The issue rudi- morality prosecutions mentary criminal should than a melange be lost in the of more dozen other issues by petitioners. importance And the of thus presented vindicating scrupulous justice administration of process outweighs disadvantage continuing far possible delay disposition ultimate of this case. hearing for a before case should be remanded now trial judge. notes Government also trial of this case “gave testimony directly Mazzei which involved two of Although Careathers and Dolsen.” petitioners, testimony given by Government.maintains “that the Maz- entirely credible,” zei the trial was truthful and significant deems the incidents it forth so that it asks sets the issue of Mazzei’s truthfulness be determined hearing the District Court such as was held in a after Flynn, similar situation States v. 130 F. Supp. United dispose How to motion raises a Government’s question appropriate judicial procedure. The Court not pass has concluded Solicitor General’s mo- complete Mazzei’s *The motion for states: “The details of remand Florida, motion, forth as set did come Department September attention of the of Justice until history post-trial did not come to Mazzei’s days ago.” less than ten Solicitor General’s until attention

Case Details

Case Name: Mesarosh v. United States

Court Name: Supreme Court of the United States

Date Published: Nov 5, 1956

Citation: 352 U.S. 1

Docket Number: 20

Court Abbreviation: SCOTUS