TRAVIS v. UNITED STATES

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Argument of Telford Taylor

Chief Justice Earl Warren: Number 3, number 10, and number 71, Maurice E. Travis, Petitioner versus United States.

General Taylor.

Mr. Telford Taylor: Mr. Chief Justice, members of the Court.

This case comes here on certiorari to the Tenth Circuit and it involves an appeal from a conviction for filing false affidavits under the Taft–Hartley Law, false non-Communist affidavits.

Section 9 (h) of the Taft–Hartley Law, since repealed is the statute proscribing that such affidavit shall be filed by the officers of unions which wished to utilize the provisions of the Taft–Hartley Law.

The statutes under which he petitioner was tried and convicted are the same as those that were involved in two cases that had been here three or four years ago, the Jencks case and the Ben Gold case.

Although the questions that are involved in this case are on the whole different from the ones involved there.

There are in fact one or two questions that overlap -- that were in Gold and will recur in this case.

Now, I should explain at the outset that this case has three numbers but it's all one case.

The appeal from the conviction, which is the main part of the case, is number 10 and the record in number 10 is contained in these two some of the ponderous volumes.

After the petitioner was convicted, there were two separate motions made for a new trial based on newly discovered evidence.

And those motions were separately denied by the trial court and separately affirmed by the Court of Appeals and separately petitioned for here and that is why they bear different numbers.

Numbers 3 and 71 are the certiorari -- the writs running to the Court of Appeals decisions denying those motions for a new trial.

But the main part of the case and the main problems are those associated with the -- the appeal from the conviction itself which is in number 10 with a two volume records.

Justice Felix Frankfurter: Just as a matter of curiosity, Mr. Taylor, is it customary in cases in which -- for appellate procedure of Second Circuit to break up --

Mr. Telford Taylor: Tenth Circuit.

Justice Felix Frankfurter: -- every new case?

I beg your pardon, the Tenth Circuit.

Mr. Telford Taylor: To break up that way?

Justice Felix Frankfurter: Yes.

Mr. Telford Taylor: Well, there was a question in 10 here.

Actually, the first motion for a new trial was decided by the Court of Appeals before it affirmed the appeal from the conviction itself.

The -- it took them longer to decide the appeal and therefore, they denied the first motion for a new trial.

Justice Felix Frankfurter: Did they all went up together?

Mr. Telford Taylor: No, they didn't all go up together.

The -- the motion for the first new -- first motion for new trial went up and is acted --

Justice Felix Frankfurter: Before the day --

Mr. Telford Taylor: No, it didn't.

Justice Felix Frankfurter: Is it up there before?

Mr. Telford Taylor: It was acted on before yes.

Justice Felix Frankfurter: Yes.

Mr. Telford Taylor: I must ask the counsel.

They got up there after the main case, Mr. Justice Frankfurter, but it's decided sooner.

That's again why the first motion has an earlier number than the main appeal, why it's got number 3 and the main appeal number 10.

Now, the petitioner was in fact tried twice.

His conviction after the first -- his conviction after the first trial was reversed by the Court of Appeals for the Tenth Circuit on grounds that are no longer relevant here.

And it had to do with certain evidentiary rules in the trial and those questions are no longer in the case.

The appeal from the second conviction was affirmed by the Court of Appeals with Judge Murrah dissenting.

And the questions that are presented by our petition with one exception are all questions relating to events at the trial.

The various matters pertaining to the trial proceedings, that one exception being the question of venue which I will be dealing with first after a little more about the case itself.

I will have occasion later on to refer to the certain portions of the evidence with some particularity but I think at the outset, a very brief statement of what this case is about will be -- will be enough.

The details of the evidence were of course quite different but in the large, the case is not unlike the Ben Gold case.

It's not unlike it in this sense that the petitioner here, like Gold, was an open and avowed member of the Communist Party and openly avowed his membership prior to the passage of the Taft–Hartley Law.

And again, like Gold, the Taft–Hartley launched at the fact and couple years thereafter, the petitioner issued a public statement in which he said that he was resigning, that he had resigned from the Communist Party for the specific purpose of enabling him to maintain his status as a union officer so that he could then file an non-Communist affidavit and his union would have compliance state as under National Labor Relations Board.

And after having made that public statement that he was resigning from the Communist Party, he did sign non-Communist affidavits.

They were filed to the National Labor Relations Board and the compliance status was obtained.

And therefore, the ultimate question for the jury here was whether despite that statement of public -- that public statement of resignation, the petitioner had maintained a clandestine relation or connection with Communist Party amounting to membership or affiliation.

I should say too that the petitioner here had been an employee of this union, the International Union of Mine, Mill and Smelter Workers for a number of years and he became secretary of treasurer in 1948 and that was the office he occupied at the time he signed these affidavits though he no longer does.

The headquarters of this union which is the principal union dealing with nonferrous metals, headquarters is in Denver and the petitioner's statement of resignation from the Communist Party, which is in exhibit in the record here, I'll refer to it later on, was issued in August, 1949 about two years after the Taft–Hartley Law took effect.

As I've already mentioned that the provision of the Taft–Hartley law requires these affidavits, and it's set forth in the appendix to our brief.

What the affidavit must cover is a specific denial of Communist Party membership, a denial of affiliation, and a further denial that the -- that the defiant is not a member of and he does not support any organization that believes and/or teaches the overthrow of Governments.

The two affidavits on which the indictment is based here were filed respectively in December, 1951 and December, 1952.

And these affidavits were executed by the defiant in Denver.

They were then combined with the other -- the affidavits of the other union officers and were sent under cover of a letter from the union presidents to the National Labor Relations Board in Washington where they were received and filed in the offices here, a word about the indictment which recurs on the first four pages of the big record.

The Court will see that it originally contains six counts.

The first three counts were based on the 1951 affidavit.

The second three counts were based on the 1952 affidavit.

The first count charged a false statement as to the membership.

The second count, a false statement as to the affiliation and the third count charged that he in fact kind of supported an organization that talk about overthrow.

And counts four and five and six were the same, except they related to the second affidavit in 1952.

Now, we only have left in the case count one, two, four and five because one -- one, two -- yes, that's right.

Because counts three and six which are the support counts were dismissed by the Government before a trial and so they played no part in the proceedings.

The petitioner was nonetheless convicted on these four counts that remained.

The two counts on membership and affiliation relating to the 1951 affidavit and the two on membership and affiliation relating to the 1952 affidavit, and he got four years on each count but the membership and affiliation, counts one and two on the 1951 affidavit ran concurrently and the two counts on the 1952 affidavit where it began after that, so he's got eight years to serve in all in the sentences on the counts and then he was also fined on the membership counts but not on the affiliation counts.

Now, as I have said all but one of the issues pertaining to proceedings in the trial court.

Let me just mention in advance or we're coming back to them, two of these issues that are maybe especially important.

One of them is the question of access to grand jury minutes and the questions there grow out of questions dealt within the Pittsburgh Plate Glass case.

And another question is whether the special rules on pardon of proof in perjury cases should be applied -- should or should not be applied here, the so called "two witness rule."

This has not been a technical perjury case but nonetheless involving a false statement.

The issue was whether those rules peculiar to perjury should be applied here.

That question was before the Court when the Gold case came up and was briefed and fully argued when the Gold case was here, although the Court didn't pass on it because they sent it back, here they reversed that case on other grounds.

Now, these two points relating to the grand jury minutes and perjury rule are the two matters on which Judge Murrah dissented below.

There are several other questions pertaining to the trial, couple of them growing out of the Jencks statute and then there are of course these questions, count with the -- the question of the denial of the motion for a new trial in cases 3 and 71.

I'll be coming back to those but I want to deal first with the question of venue and I want to deal with it first of course because if we are right in our position that there was no jurisdiction in Colorado and the proper -- the only proper venue is here in Washington, then of course, the indictment has to be dismissed and all these other questions pertaining to the trial will fall away because that will -- that would require a dismissal of the entire indictment.

Now, our challenge to the venue is based on the fact that the petitioner was tried not in the District of Columbia where these affidavits were filed as they had to be, but in Denver, where the union had its headquarters and from where these affidavits were mailed.

And other things should be explained at this point and that is that under the Board's regulations, officers of local unions are required to file their affidavits at the regional offices of the National Labor Relations Board, the nearby regional offices or wherever the nearest one may be, whereas officers of national unions or as they're more often called international unions.

They are required to file affidavits at the main offices of the Labor Board here in Washington.

Now, in Government's general practice, in bringing proceedings against people who're accused for falling -- filing false affidavits, has been to bring the indictment where the affidavit was filed, not from where it was mailed.

The Gold case itself came up from the District of Columbia here where the affidavit was filed, though Gold had made and mailed the affidavit from New York.

The Jencks case, Jencks was tried in the Western District of Texas where the regional office of the Board is at El Paso and not in New Mexico where he had been an officer of the local union and where he had made and from where the affidavit had been mailed.

And the same is true of all the other cases except one and this one that the -- that the indictment has been brought at the place of the filing, not at the place of mailing.

In the present case, the Government has sought to establish venue in Denver on the basis of the mailing.

The petitioner, then the defendant, made timely challenge to venue, there's no question about that, on this very ground.

The District Court upheld venue in Colorado and the Court of Appeals affirmed that.

Now, that decision on the venue is on the appeal from the first conviction, not the second.

And therefore, you won't find any mention of venue in the Court of Appeals opinion from which we are now coming.

And for some reason, that first opinion of the Court of Appeals is not in the records but it is in the appendix to our petition for certiorari and of course it is reported in the federal court.

And the decision below sustaining the venue in Colorado is one of two Court of Appeals decisions dealing with this.

The other case is the -- one other case where the defendant was indicted at the place of mailing and that is the Valenti case, which went to the Third Circuit.

And the Court appeals for the Third Circuit in the Valenti case held that there was venue only at the place of filing and therefore, sent the case back to be dismissed on the ground that the venue was improper.

I should add that Judge Hastie, in the Valenti case, wrote a concurrent opinion.

He concurred because the proof of mailing was insufficient, but he expressed views in his concurrent opinion which are more like the views expressed in this case below, whereas Judges Biggs and Maris held that venue would lie only where the affidavit is filed.

Now, our position is that the Valenti case was rightly decided and the decision below is wrong and that there's venue only here in Washington.

And I think in addressing myself to this issue, it would be helpful if I state first that part of the analysis on which there is no dispute between the petitioner and the Government, and then come to the point at which we part ways.

And may I now therefore invite the Court's attention to the statutes that are directly involved here which are in the appendix to our brief, pages 1 (a) and 2 (a).

The third paragraph of that appendix sets forth 9 (h), and the Court will see that the statute specifically says that the union can't use the facilities of the Board unless there is an affidavit on file, unless there is on file with the Board, an affidavit.

That's in the third line on the top of page 2 (a).

So the requirement is expressly placed on the filing then.

Now then, the penalty is contained in the last sentence further down there.

The provisions of Section 35 (a) of the Criminal Code shall be applicable in respect to such affidavits, meaning clearly affidavits which are on file with the Board.

Now, 35 (a) of the Criminal Code has been since broken down into a number of different Code provisions but the one that's involved here is set forth on page 1 (a) just back of the page, 18 U.S. Code 101, that's the well known false statements statute which makes it an offense to make or use a false statement in a matter within the jurisdiction of any government agency.

Justice John M. Harlan: Has 9 (h), Mr. Taylor, ever had its own criminal provision?

Mr. Telford Taylor: Not that I know of.

The -- the sentence with 35 (a) and to the best of knowledge came in to deal with the time.

Justice John M. Harlan: (Inaudible)

Mr. Telford Taylor: 35 (a) is no longer the governing statutory reference as the Code explains.

Now, there's no doubt that there is no matter within the jurisdiction of the -- of the Board until the affidavit gets there and there's no doubt that what -- that what is made an offense here is the -- is the filing.

The Government doesn't dispute any of that.

It's also plain enough that Congress was not concerned about union officers generally speaking made any falls at affidavits.

The only thing they are concerned about was --

Justice Felix Frankfurter: Was this Act --

Mr. Telford Taylor: -- if it was used as a representation for the Board and filed there in order to get compliance status.

The essence the crime here is the filing and there's no crime unless it is filed, and I don't understand whether the Government disputes any of that.

It's equally plain that the one and only place that this affidavit could properly be filed was Washington.

The Boards' regulations which the Government's brief refers to and the instructions on the back of the affidavits themselves, say to the place to file these affidavits is the affidavit compliance branch Washington D.C.

You could not get compliance -- you have to file this affidavit in Washington if you're a national officer as the petitioner was.

And finally, there's no dispute that there is venue to prosecute this offence here in Washington.

The Government couldn't dispute that because as I say in every other case except this and one other, they have prosecuted the defendants at the place of filing and anyhow they don't dispute it.

So, this is not a problem of venue in Washington or in Colorado.

There is no question that there is venue in Washington.

And the only issue is whether this is a case of multiple venue and that the petitioner can be tried in Colorado as well as in Washington.

And that is now the point at which the Government and the petitioner diverge.

The Government sets that there is additional venue in Colorado under the statute that the Court will find set out on the very last page of our brief, appendix page 6 (a).

That is 18 U.S. Code 3237, the commonly referred to as the continuing offence statute.

The first paragraph of that is the – it has been on the books a long, long time and that is the governing paragraph here from the Government's view point.

It specifies, the Court will see, that any offence which has begun in one district can complete it in another or committed in more than one maybe in part and persecuted it in any district in which such offense was begun or completed.

Just for clarity, let me say that the second paragraph has no bearing here.

That second paragraph has been added later and that is restricted in this application to offenses in which the use of the mails or challenge an interstate commerce as the essence of the offence.

That was passed after this Court's decision in the Johnson case, but it has no bearing here.

The question which the Government's position raises is whether this offense was begun in Colorado within the meaning of that first paragraph.

We say that that this offense was a single offense of filing.

That it wasn't, in a legal sense, begun anywhere else, and that under the Sixth Amendment of the Constitution, there is no constitutional basis for jurisdiction in Colorado.

And as authority for our position, what we rely on primarily is the long established rule which this Court laid down in the Lombardo case, in 241 U.S.

That where the offense relates to the filing the thing as it does here and where it is proscribed by law where the document shall be filed that there is venue only at the place of filing.

We think that rule squarely governs here.

I will make some couple of comments in conclusion as to the policy considerations at work here.

We don't think that -- we think the policy considerations back at this rule are sound and the Court should adhere to it and apply them here, and I will come back to those policy grounds in a few moments.

I'd like to say a word first about 3237, 18 U.S. Code 3237 that's contained in the offense statute.

It has been on the book since 1867 and it came into the statutes at large along with the well known statute that punishes conspiracy to commit an offense against the Unites States or to defraud United States.

They were born in a single paragraph together in the statute in 1867.

Therefore, there have been a great many decisions construing this statute.

We have dealt with those decisions in our brief at some length.

We've also set forth what little can be established from the legislative history which is not enormously helpful either way on this.

And that is all in our brief, the legislative history, and the case history of this statute and I don't see any reason to take the Court's time by tracing all that through.

But two things do emerge from the study of the background of 3237.

One is that it clearly was not intended to as indeed it could not limit a defendant's constitutional right to be tried in the district where he committed his offense.

And the second is that this statute, except of that second paragraph, which relates to that narrow oppressive offenses, this statute does not specifically make any particular federal offense a continuing offense or say that any particular offense has a beginning nor a middle or an end.

On those matters, we have to look to the statutes, the criminal statutes themselves to see what is the Act that is proscribed and then to the indictment to see what of the proscribed acts are charged.

It is only by that method that one can ascertain whether an offense is a continuing one and therefore has a beginning which would -- or in ending a completion which separately would provide a basis for venue.

One other general consideration, if the Court please, and that is that in determining the bearing of the Sixth Amendment involving the guarantee of a right to trial in the district where you committed the offense.

It's important I think to bear in mind that that Sixth Amendment is in no sense a restriction on the power of Congress to punish criminal acts and that is not our point here.

We have no doubt that Congress could have said that it shall be an offense to put a false affidavit in the mail or put a false affidavit and challenge an interstate commerce, or if you put a false out to make a false affidavit intending to file it before the Labor Board.

But the point is, it hasn't set any of those things.

It has put the criminal impact on the filing.

There are a number of other statutes where Congress has made a lot of different steps in a chain criminal.

For instance, the statutes' relation to income tax returns, make the preparation criminal as well as the filing.

In our brief at page 15, we've referred to a number of statutes like this.

There are statutes that make it criminal to post a ransom letter or to deposit lottery material in the mail or to transmit false pension papers.

When you have a statute like that, you don't have any constitutional problem because there, the Congress has put the criminal impact on the Act.

It's the Act which has been done where the indictment is brought.

But here, the criminal impact has been put on the -- on the file, and we do get a constitutional problem and a problem under this section of the statute.

When Congress has punished one Act and the Government seeks to establish venue on the basis of a different Act committed either before or after and in some different place.

Quite a few such cases have been here.

The Cores case was here not long ago involving alien seamen who land unlawfully and remained in the country.

Thus, the remain constitute a continuing offence.

Earlier, there was the case the dentures that had not passed -- had not been approved by the state to which they are being shipped, it was that offence committed in two places.

There are many such cases, but we don't have to really bother with those in this one because Congress has put the criminal sanction on the filing, the place of the filing is proscribed by law, and under those circumstances, the rule is well established and we think the Lombardo case governs.

Now, the Lombardo case --

Justice John M. Harlan: I think the Lombardo case specifically made that filing a criminal act, did it not?

Mr. Telford Taylor: The Lombardo case made either a failure to file or a false filing --

Justice John M. Harlan: Or a false filing.

Mr. Telford Taylor: -- criminal if you harbor an alien prostitute and did not file within 30 days after the (Inaudible) began.

Justice John M. Harlan: But is it quite -- is it quite accurate to say that the gist of this offense is the filing?

Mr. Telford Taylor: It seems to me, Justice Harlan that that is the only thing that Congress had any interest in here.

The only effect in statutory terms that this affidavit has is that when the Labor Board has got affidavits in its files from all the officers of the union.

At that point, they -- they give you what they call a certification of compliant status.

The record complains, the letter going back saying, "Your affidavits are here and now there is compliance."

Congress had absolutely no interest in whether a false affidavit was made or mailed or anything on any umber of subjects except if it was filed with the Board and thereby became the basis for compliance.

That is the sole scope of the statutory policy, and therefore, I would say yes that the only thing Congress was concerned with here was the filing.

Just as in Lombardo, the impact was put entirely on the filing.

And in that case, the Government endeavored to make exactly the same arguments that are being made here.

They said there was a beginning at the place where the alien -- where the alien prostitute was harbored.

Justice William O. Douglas: As I remember that was a favorite spot.

Mr. Telford Taylor: That is correct.

And the Government and the court below had endeavored to draw a distinction between a failure to file and a false filing.

We can't see any basis in the distinction on that ground.

The Government reasons it out this way as I understand it that if you -- that once you have put your false affidavit in the mails, it's irrevocably out of your control and therefore, that's the place where the act is done.

But I would suppose that a failure to file within the time limit is really even more irrevocable than putting something in the mail.

As a matter of fact, here that first affidavit took nearly eight days to get to Washington.

It would have been possible for the union to telegraph or phone and say “We're withdrawing our request for compliant status, send us our affidavits back and disregard this application.”

And at any event, as far as the policy and reason for this rule, Justice Douglas, to draw a distinction based on whether it's misfeasance or nonfeasance, doesn't seem to me to have meaning in terms of the policies that are at work here which I would like to come to -- come to now.

Let me say before I do that that rule in the Lombardo case and there's general rule that where the offense is the filing and where the filing placed proscribed by law that there's venue only there.

That has been followed as far as I know consistently since and before Lombardo.

There is no lack of authority for that general principle.

The cases cited by the Government are cases where there was no place of filing fixed by law or as I indicated the moment ago, where the statute did specifically punish the earlier act like the posting (Inaudible) letter or the transmitting of pension papers which we don't have here.

Is there any reason to change the rule?

The Government in its brief says something about residents and endeavors the ground on argument on the stack that the petitioner here, lived in Denver so that in the point of fact, he was being tried closer to home there than he would've been here.

Well, that argument has an initial appeal but if anything is well settled under the Sixth Amendment, it is that the Sixth Amendment policy relates to the locus of the offense and not to the residence of the defendant.

Justice Felix Frankfurter: No, but if you consider the policy of the Sixth Amendment, the tenderness towards the defendant and the benefit to him has not been led to cause to compliment, I -- I put to you that the Johnson case, in expounding the policy of the Sixth Amendment as a basis of construing the situation like this one whereas Congress didn't make clear or is not inconsiderably influenced by those merciful considerations on behalf of the defendant.

Mr. Telford Taylor: There is language in the Johnson opinion which refers to being taken away from home and facilities for defense.

I had always read that passage as I thought I must in the light of other decisions of the Court which you said time and time again that the policy here is a policy to try where the offense is committed in the vicinage of the offense if --

Justice Felix Frankfurter: The two are not inconsistent, Mr. Taylor.

Mr. Telford Taylor: The two are not inconsistent.

Justice Felix Frankfurter: The two -- the two considerations are not inconsistent.

Mr. Telford Taylor: But the Court has said specifically that the residence does not play a part in the policy of the Sixth Amendment in House against Finkle years ago, and it's been repeated in many other cases.

There, it -- however, if were to look residence, let me point this out too.

Justice Felix Frankfurter: That would have been a single -- I mean House against Finkle was the conspiracy in great other facts.

Mr. Telford Taylor: It did however say quite, the plea there was made that he was being taken away for residence.

Justice Felix Frankfurter: -- all I'm suggesting is that the Sixth Amendment wasn't concerned with the abstract problems of locating the offense.

It was concerned with protection of a defendant or the accused.

Mr. Telford Taylor: By locating him for trial where he committed the offence and not somewhere else.

Justice Felix Frankfurter: Right.

Mr. Telford Taylor: It seems to me the way they were seeking to protect him was --

Justice Felix Frankfurter: Possibly --

Mr. Telford Taylor: -- by giving him a right to trial where it was committed.

Justice Felix Frankfurter: Of course, it -- that it isn't rationally arguable that the offense even in part was committed in more than one locus, there's no problem.

The problem arises because typically here, as here in the Johnson case, you had an initiation.

I'm not -- not talking about technical issues.

Mr. Telford Taylor: I understand.

Justice Felix Frankfurter: You had a stretch of events.

Mr. Telford Taylor: In the case of this petitioner, that would have worked out if we came to the other conclusion to try him at his residence.

But may I point out, Mr. Justice Frankfurter that what was done here was the affidavits of all the union officers were assembled in Denver and mailed to Washington.

Now, as the records shows, other union officers lived all over the country so this -- if you apply this principle based on mailing, you might in the case of this petitioner, happened in his residence.

But in the case of most of the other people that filed, you wouldn't have at all.

They would have been living in Cleveland or Connecticut, made their affidavit, mailed it to Denver then it would've been mailed in from there.

So, we're going to make a triple venue and have them where they live and where the union mails it in and in Washington.

Justice Felix Frankfurter: Well --

Mr. Telford Taylor: I'm supposing not --

Justice Felix Frankfurter: -- living as such where that -- the residence of the defendant as such --

Mr. Telford Taylor: He has nothing to make.

Justice Felix Frankfurter: -- is irrelevant.

Mr. Telford Taylor: That is my point.

That is my point.

Justice Felix Frankfurter: The evidence as such but the relation of some share in the outward event which constitutes, which has some part in the ultimate crime, some part.

I mean, if it isn't filed in the District of Columbia and reached in the District Columbia then certainly, speaking as a matter of phenomenon, a natural phenomenon that something takes place outside of the District.

Mr. Telford Taylor: We have all the policy considerations at work here that seem to me to bear upon the problem you raised.

And that is that if we do begin to establish additional venues based on beginnings and initiations of offenses where the statutory impact is something else.

The -- the certainty in the field of venue is going to be very much reduced.

Now, the Government of course likes multiple venue.

The Government uses multiple venue theories to espouse inconsistent positions on this.

We referred in our brief to the Kashin (ph) case, recently decided in the Second Circuit.

The decision there itself is not strictly relevant but there, the offense was false prospectuses under the Securities Act which we're going to -- to which the congressional impact attaches if the mails or interstate commerce are used.

There was no question down there that the whole -- that the prospectuses were all prepared and utilized widely in Louisiana, I think it was.

But there was the -- the first mailing was in New York and the Government said no offense until it hits the channels of interstate commerce in New York.

So, the Government, if you give them wide option then multiple venue can pick around at this thing.

It seems to me that the real policy here --

Justice Felix Frankfurter: If you get us the --

Mr. Telford Taylor: -- is in favor of certainty.

Justice Felix Frankfurter: May I suggest, you cannot escape that in a number of offenses.

You cannot escape that in conspiracy charges.

You cannot escape it in violations under the Interstate Commerce Act.

And there, I suggest that -- I quite agree with you, the Government likes to pick the -- and sometimes not so to me --

Mr. Telford Taylor: No.

Justice Felix Frankfurter: -- a very desirable reason, picketing one venue rather another.

There are always the additional considerations or namely, that there is a discretionary problem on the trial judge where the defendant operates to serve as the defendant was so involved to transport to another place.

Mr. Telford Taylor: The cases you mentioned, Justice Frankfurter conspiracy and continuing offense in interstate congress are the very ones for which 3237 was devised.

It was born, as I said, with the conspiracy statute.

It has been applied most frequently in cases where the use of the mails or of interstate commerce was the essence of the offense.

And you -- as you rightly say, those are cases where we cannot avoid the problem.

But we can avoid it in cases where the offense is fixed and the Court in the Lombardo case says, "We will fix it," where the filing occurs and if it's required to there and nowhere else.

And that has been pretty well followed and this problem had been laid to rest in the lower federal courts --

Justice Felix Frankfurter: Now, remember that Mr. Justice Homes --

Mr. Telford Taylor: -- until this one.

Justice Felix Frankfurter: -- he said it in the conspiracy cases.

It would be -- he thought it was so unfair.

In other words, he fastened on fairness or unfairness of the defendant.

Mr. Telford Taylor: There, you had a particular problem involving whether a conspiracy is complete before the overt acts come and the difference of opinion in the Court which lies and revolving around that.

There again, 3237 was meant for conspiracy cases.

It wasn't meant for this kind of case to submit and that the established rule that we find in Lombardo seems to me gives us certainty.

It has been the question that's pretty well trashed out and if you'll now overturn that principle here, it seems to me, the result will not be good from the standpoint of general administration.

Justice Hugo L. Black: Do you say, any federal statute which would've been violated had this man simply filed -- made this affidavit, swore to it, kept it in Denver.

Mr. Telford Taylor: No, no.

Not -- no, Mr. Justice Black, not at all, not at all.

Now, I have taken perhaps more time than I meant on venue and I would like to proceed to the problems waiting for trial.

And at this point, I think I should recur briefly to the evidence, just to give the Court a very brief picture of what the evidence here was like bearing in mind that there was no problem about his having been a Communist.

This was admitted and that there is no doubt that he made a public statement of resignation.

The test -- the evidence against him are consisted four main parts.

There was a lot of testimony about what he had done before his resignation as a Communist.

This really wasn't germane in our view because there was no dispute about his prior status of a Communist.

Then there was expert testimony of an interesting and unusual kind.

There was expert testimony that the Communist Party has a policy that no one can resign from it, they can only be expelled.

That testimony was admitted over sharp objection and is one of the things that I will be coming to in my trial points.

There was also the resignation statement itself which indicated that the petitioner continue to have a sympathetic belief in communism as a doctrine, although he didn't say quite specifically that he was resigning from the Party.

All of that that I have referred to so far was evidence about things that happened two years or more before his first affidavit was filed.

And the only evidence which is a total contemporaneous with the affidavits themselves is the evidence of approximately six conversations that Travis is supposed to have had with two of the Government's three witnesses.

There were just three prosecution witnesses and two of them testified chiefly about these conversations that took place in 1951, 1952 and 1953 which the Government regards as in the nature of admissions of continued membership.

Those, therefore, are of crucial importance, those -- that testimony about those conversations.

And it is in the light of that kind of a record that we have to approach these questions waiting to trial.

The first one of which I want to take up being the matter of the grand jury minutes because the defendant here did request access to the grand jury testimony of these three prosecution witnesses.

And there was particular need for it here because of the fact that the crucial and only contemporaneous testimony against him related to these conversations that he'd had with the two witnesses at which other people -- wherein no other people were present.

So these were uncorroborated conversations.

Now, this case is different in two very essential respects from Pittsburgh Plate Glass.

Firstly, in that case as the Court's opinion pointed out, the defendant was asserting what he -- what the Court referred to as an absolute right to the testimony under the Jencks decision.

Here, we have no such assertion of absolute right.

The petitioner appealed to the trial court's discretion.

There are long colloquies in the record in which petitioner's counsel is pointing out, the crucial nature of these conversations.

They need to check the grand jury testimony to see if they were described in the same manner before the grand jury as he had in Court.

And the matter was thrashed over very fully with all kinds of appeals to the trial court's discretion.

The second difference is that the petitioner here did what he did not do in the Pittsburgh Plate Glass.

That is that after he had been refused when he requested access to the minutes.

He then said, “Alright, if you won't give them to me, will the trial court please take them and see if they contain anything which should be turned over to me for impeachment purposes."

In other words, the request was made and that question as Mr. Justice Clark always say in the Pittsburg Plate Glass cases, it's here now.

There is no doubt that in the second circuit, petitioner's request for grand jury minutes would have been honored almost automatically.

Indeed it is probable that it would have never arisen because in the Southern District of New York, the Government counsel no longer seem to have an automatic opposition, turning testimony over.

At -- at the time of Pittsburg Plate Glass, there had been one Second Circuit decision to spangle that case referred to in there.

Since that time, there's been a whole series of Second Circuit decisions in which where you have a witness whose testimony about the thing in light of conversation is important and where the particular words he uses are important.

And where the defendant says that, "We would like the minutes examined to see whether this thing was described in the same way to the grand jury," the testimony is made available.

It was first produced in Camera and then made available to the defense.

The most recent such decision is not yet reported, the Hernandez case, decided on December -- in August of this year.

And that case cites all the previous Second Circuit decisions.

Now, may I just stress again that there was a special need for this testimony here.

The -- the contemporaneous evidence was all these uncorroborated conversations and the wording was important, the credibility of the witness was important.

If the witness wasn't making it up out of ballpark, he still might be embroidering or varying these conversations in a way that made it look more as if the petitioner had retained his clandestine membership.

The defense first made rather general request for grand jury testimony and then when these were denied, they were limited down, limited down, limited down, and then upward request for just two of these conversations.

So, the requests were made with particularity.

Nonetheless, they were denied.

I would like to -- the next to point I am going to embark and will take so long, Mr. Chief Justice, shall I go ahead?

Chief Justice Earl Warren: We've arrived at recess time.

Print this transcript Transcript: 

Argument of Telford Taylor

Chief Justice Earl Warren: You may continue your argument.

Mr. Telford Taylor: Mr. Chief Justice, when the Court rose for lunch, I was in the course of discussing this request for access to the grand jury testimony of the prosecution witnesses.

And before concluding on that, I would like to give one illustration of which seems to me to bring out the practical importance of this in the standpoint of the -- of the trial.

I mentioned this six conversations which are about the only contemporaneous evidence that indicates -- it could be taken indicate continued membership on the petitioner's part, and one of those conversations is described in the record, Volume 1 of the big record at page 443, where the witness Gardner who is one of the three prosecution witnesses and who had been a fellow employee of the Mine, Mill and Smelters Workers of -- this witness Gardner was in Cleveland.

Travis came to Cleveland and he and Travis, the petitioner, made a trip to Canada together.

And the conversation in the course of this trip is what is discussed in those two paragraphs, beginning the bottom of 443 and running over the top 444.

And in that first paragraph there, it's reported that Travis has indicated that he was having trouble going back and forth across the border, because of his connection with the Communist Party and his public resignation and so forth.

Then page 444 there, Gardner says that he asked Travis if the -- other unions are having the same difficulties and here is where the crucial part.

He said, no, the Canadian authorities in the Maine were putting the clamps down on the left wing union such as Mine, Mill and UE.

And we very briefly discussed his resignation from the party in which he pointed out that he believed that resignation, that public resignation, was a mistake because it gave the enemies of the party an opportunity to use that.

And pointing out that it wasn't a true resignation from the party, but actually it was done to conform to the Taft-Harley affidavits.

And they recognized, the enemies of the party recognized that this was not an actual resignation and in substance that is above what we discussed.

Well, the Court will see that the wording of that is not 100% self-explanatory.

He doesn't precisely admit that he was a member.

He says the enemies to the party regarded it as not a true resignation.

The Government, when it is describing this episode in their brief, I'm looking at page 52 of the Government's brief, summarize this episode by saying, "He”, that is Travis, “confided to Gardner that his formal resignation from the party in 1949 was not an actual resignation."

Well, it may please (Inaudible) from the kind to begin with, the word, "formal" isn't used in there at all, he said his public resignation and when you change that into formal that is putting a very different twist in meaning on the -- on the thing.

He said not a word about formal resignation and he did not confide that his -- that it wasn't an actual resignation.

What he said was that the enemies of the party so regarded.

Unknown Speaker: (Inaudible)

Mr. Telford Taylor: The Government in their brief in describing in this episode, whereas in fact what -- when he said it was public, which is really quite different in this -- in this context.

And this -- I say this chiefly to illustrate how important the words used in describing such a conversation maybe here.

And why this is therefore, a particularly important instance where access to the grand jury minutes would have been valuable.

Now interestingly enough, this same witness Gardner has testified about this conversation in a later proceeding before the SACB, which we quoted in our brief of page 35, and there he puts it quite differently.

He says there that he was quite convinced, that is Travis, that neither the American nor the Canadian authorities believed his resignation was genuine.

And as a result, he had this difficulty in getting over the boarder.

Well, of course to say that the American and Canadian authorities didn't regard his resignation as genuine is really not much news.

The fact that this prosecution was brought in the case that the Government didn't think his resignation was genuine and as you can see so forth that is very much less like an admission than the way he put it in this trial and very much less like it in the way the Government described it in their brief.

So as I say, I brought out the details about this conversation, because it seems to me that if there ever were circumstances where access to the minutes of the grand jury would have been useful to compare what he said about this episode there to what he said before the jury.

This is such an illustration.

Now, I think there can be no defense of the way the trial court handled this whole matter of the request for access to these minutes.

To begin with, although this Court had made it clear in Pittsburgh Plate Glass that you do not have to have a preliminary showing of inconsistency.

The trial judge said that in his opinion, even a possible inconsistency was not enough that it had to be an inconsistency going to the basis of the case.

Then, when the petitioner's counsel tried to particularize further the possible need for this testimony and endeavored to question the witnesses about what they had talked about before the grand jury and whether they had described these conversations, the trial judge cut him off and would not allow that line of testimony -- of questioning to be pursued, so that there he was very much hampered in efforts to show by examining the witnesses that there might be need for access to the testimony.

And then finally, both the trial court and the prosecution simply took a blanket position of opposition to any and every request for any grand jury testimony, no matter how limited.

As I read the Government's brief, it doesn't seem to me that they have made any very serious effort to defend these rulings in this trial.

The main burden of their brief on this point is that if it should be ruled that there was an abusive discussion here and a reversal on that ground, they ask that this Court not lay down any absolute rule, any rule of absolute right to access to minutes.

Well, what they call, they don't want to rule an automatic disclosure.

We have not asked here for any such rule of automatic disclosure.

In our brief, we have tried to analyze the factors that should come into play in handling a request for grand jury testimony, what should be considered and what shouldn't.

And what the differences are between the grand jury problem and the 3500 problem, they aren't on all force in a review.

But far short of any rule of automatic disclosure, it does seem to us that in circumstances such as this case presents, where the crucial evidence is discussions to which nobody but the witness and the defendant were purvey, where the wording of these -- of these descriptions of the conversations is in importance, that there is no sound reason why the minutes should not be examined.

And as I said earlier, in the Second Circuit, there is a whole line of decisions that would clearly cover a situation like this.

And it seems to us that the practice of the Second Circuit is sound.

Justice John M. Harlan: Now the Second Circuit decision would not go beyond the situation that this goes to the --

Mr. Telford Taylor: Beyond it?

Perhaps, the best answer Mr. Justice Harlan will be to read one paragraph from this last decision, which is in the Hernandez case decided in August.

That was a narcotics case and the witness for the Government was an agent of the Bureau of Narcotics.

And described a conversation with the defendant in which the defendant had referred to another person as one of his suppliers.

Alright, it's very much like this case, because it's just such a conversation.

The Court says and this is a per curiam opinion, Judges Clark, Waterman and Moore.

The Government's case rested largely upon new Newkirk's (ph) testimony, so that any doubts cast upon his credibility by a variance between such testimony and that given before the grand jury, undoubtedly, would have influenced the juries liberations.

It was thus incumbent upon the trial court to inspect the minutes as requested by the defendant in order to ascertain whether any material inconsistencies existed.

Justice John M. Harlan: All of that would have automatically (Inaudible) automatically comply an exam to this new witness irrespective of (Inaudible) declare.

Mr. Telford Taylor: I don't think so.

They have never said so.

That the practice as a matter of fact now, has become pretty standard there, and as I indicated before the U.S. Attorney's office there now often turns over the minutes voluntarily.

It seems to us that a lot of trouble in this field is caused by a sort of automatic attitude.

If the -- if the Government automatically resists every request for testimony, you get these questions precipitated, when there is no -- really no good reason why the testimony shouldn't have been looked at.

May I then turn to the matter -- to some of the other matters that our petitioner seeks to review.

And the next few, I'm going to speak very briefly about the matter of the perjury rule.

That the rule requiring either two witnesses or one witness plus corroboration on the falseness of the oath.

The Government says that rule is not applicable here because this is not technically a perjury case.

Now, as I indicated before, this question was up in the Gold case.

It was briefed then and although I didn't hear argument, I assume it was a full argument.

And I'll be frank to say that having read the briefs in that case, I do not think that we have been able to add very much to what was said on behalf of the petitioner there and I don't think the Government has been able to add much to what the Government said before.

And for that reason, I would refer not to take the Court's time to go over all these considerations that must be pretty familiar by now.

This point was dissented.

This was a point of Judge Murrah's dissent here.

In the Gold case, Judge Bazelon expressed himself to the effect that perjury rule should apply.

It seems to us the Government's position is over technical, that this is, in all essential respects, like a perjury trial, and that there is no good reason why the same requirements shouldn't apply.

To be on that, I would further rely on our brief on what is said there.

Justice Felix Frankfurter: I look at your brief or the Governments either, so you'll make it beyond to the Government's brief, but I was wanting to attach great weight to what happens, that prior in these cases leading to crucial evidence, what I like to know from you is what the face of the two-witness rules as to perjury has been in non-perjury false statement cases throughout the State and other jurisdictions.

As the rule of man from earth, I am speaking from old memory and I may be older, the rule was not -- was not favored throughout, as the general proposition.

Mr. Telford Taylor: Not favored.

It is true --

Justice Felix Frankfurter: It is not as an exception to the generality of principle to affect --

Mr. Telford Taylor: I think it's fair to that it is regarded as such an exception, yes Mr. Justice Frankfurter, and for that reason, I suppose it was that the Government came into this Court -- I don't know just how long ago, six or eight years ago in the Weiler (ph) case and urged all these considerations and said, we think it's time you change your minds, the rule is old and out of date.

Let's have done with it.

It was argued I know, by very able counsel and the Court said, no, that we will adhere to the rule.

So having -- so completely, I say that issue recently, it seems to me that the Court is not likely to again pour the whole question over from the roots.

Even though it --

Justice Felix Frankfurter: (Voice Overlap) need to imply that.

Mr. Telford Taylor: Yes.

Even -- therefore, it seems to us that if the rule is accepted as part of the paraphernalia with the federal judicial system, the evidentiary system that a matter ended as being overly technical to say, it doesn't apply unless it's technically perjury.

That the reasons conspire here --

Justice Felix Frankfurter: My starting point is right, it hasn't been applied except distinctively in perjury cases that it technically confines or confined to -- if you want to put an appropriate through the case --

Mr. Telford Taylor: We have put in our brief --

Justice Felix Frankfurter: -- but it has been confined to technical perjury.

Mr. Telford Taylor: We have put on our brief everything we confined on.

I don't -- I don't think that's quite accurate Mr. Justice Frankfurter.

We have found some cases there where it's applied in proceedings related to bankruptcy, which are not technically perjury.

We have looked high and low for cases under the false claims -- false statement statute, because of course, that's where we hope to find it, but question doesn't seem to have arisen.

Now, what's actually happened to a lot of these trials, I cannot say.

But the only cases that it has been thoroughly pursued by the lower courts have been on these 9 (h) cases, and there's division of opinion among the circuit judges on it.

Policy considerations seem to me, have been pretty well explored.

On the evidence, once again, I would like to restrict my argument to one of the -- of the evidentiary points here.

We do complain quite seriously of rulings that restricted the cross-examination, but I think, everything is well covered in the brief as I can hope to do here.

The thing I would like to talk about appears in our brief at page 51.

It's this expert testimony that I referred to earlier in my argument.

It was given by the witness Eckert and the testimony is set forth there at page 51 of our brief, where Eckert is asked based upon his experience and his membership and so forth.

Whether there was a party policy on resignation from the Communist Party.

He said, yes.

And then was asked to state the policy.

The policy of the party was that once having joined the Communist Party, you could not leave without being expelled.

Now, that evidence was offered by the Government and was used by the Government before the jury to try to convince them that since there was such a party policy, that Travis' public statement of resignation could not have been bona fide.

It must have been phony because it was out of accord with his party policy.

May I say in a preliminary respect that the Douds case, in which these provisions were upheld, was very explicitly based on the assumption that you could avoid the requirement of this statute by resigning from the Communist Party and remaining an officer of the union.

So that a rule of -- I mean, accepting this evidence for the purpose for which it was offered, would seem to make it pretty impossible to resign and comply with what said in the Douds case.

It would almost mean that once in, you were in for good and there was no effective way of getting out so that you could continue your union membership.

The Government does endeavor to make a more limited justification for this testimony by saying that it is relevant to the petitioner's own state of mind.

That if it is a fact that he had been a Communist for several years and if it is a fact that there is such a party policy, this would indicate that his frame of mind when he resigned was not a sincere frame of mind.

That he was doing a phony act.

If one assumes that the testimony might bear such an inference, it nonetheless seems to me very clear that you could not use the testimony that way, unless it were shown that the petitioner knew of this policy and felt bound by it, that he subscribed to it.

And with that in mind, the petitioner asked the trial judge to instruct the jury that in weighing this testimony on the -- this expert testimony on party policy, that they should disregard it unless they were satisfied that Travis knew of this policy and subscribed to it.

The trial judge refused to so instruct and he made what seems to me, a bad matter worse by then affirmatively instructing the jury that they could give such weight as they saw fit to this expert testimony, without questioning them.

That if Travis didn't know anything about it of course, that it shouldn't be binding on it, so that we complain of that --

Justice Hugo L. Black: Did you say, it could be binding on him if he doesn't want it to be, even if he knew about it?

Mr. Telford Taylor: I suppose it's quite possible --

Justice Hugo L. Black: (Voice Overlap) because of that.

Mr. Telford Taylor: It is possible that he couldn't have known about it and still not agreed with it.

He could have known about it and said I'm going to defy it and resign.

All these things are possible but certainly, if he didn't know anything about it at all, the fact that there was such a policy couldn't be used as showing what his state of mind about his resignation was.

And all we wanted was for that be made clear for the jury.

That unless it was shown that Travis had some knowledge of this supposed policy that it shouldn't be held against him.

Now furthermore, our other complaint is that in fact there is absolutely no evidence that he knew about this policy.

The trial court seemed to think to the fact that he had been a member of the party was sufficient proof that he knew of this policy but that, under many past rulings, is not a proper inference, the mere fact of membership would not establish that he knew of the particular policy like this.

Then the Court of Appeals seemed to think that because he did know about the party's policy on compliance or noncompliance of the Taft-Hartley Law, that maybe this shows that he knew about the non-resignation policy.

But there again, I don't think you can infer a knowledge of one policy from the fact that he knows another.

So that we say that there was no evidence tying this suppose policy of petitioner and that even if their had been some evidence, we were entitled to a cautionary instruction here that -- to straighten the jury out on the matter.

I would like to speak of one more thing before going to the motions for a new trial.

We have here two problems under the Jencks statute, 18 U.S.C. 3500.

There are two quite distinct problems.

I think they're both quite simple and I'm at a loss to know why the trial court encountered so much difficulty in coping with them that it did.

The first of these problems relates to the handling of documents which were in the possession of the prosecution.

The prosecution in other words, had these FBI reports, conversations with the -- with the Government witnesses, but there was question about some of them, as to whether they were statements within the meaning of 3500 (e), maybe they weren't sufficiently verbatim, maybe they had some other effect.

In any event, the prosecution had these statements and they began to embark on the policy that this Court approved in the Palermo case.

That is to say, if they had doubt about particular statements, they wanted to submit it to the trial judge in camera, so that he could determine whether or not, it was a statement with the unmeaning of 3500 (e).

The trial judge inexplicably, to my way of thinking, ruled that he would not rule under 3500 (e).

He said his only function was in 3500 (c), that if the Government brought him a statement, he'd examine it to see if it contained irrelevant material and then he would excise the irrelevant material under the 3500 (c).

But he would not make any determinations as to whether it was or was not, a statement within the meaning of 3500 (e).

Justice William J. Brennan: (Inaudible)

Mr. Telford Taylor: Before Palermo came down, we were informed to try to establish that.

I don't -- I don't know offhand.

Justice William J. Brennan: (Inaudible)

Mr. Telford Taylor: In any event --

Justice William J. Brennan: (Inaudible)

Mr. Telford Taylor: Yes.

Justice William J. Brennan: (Inaudible)

Mr. Telford Taylor: That's correct.

They did in the Palermo, did just that.

It was tried before that, I'm told, but the Government, nonetheless, is prepared to go down this path and to submit them for in camera examination.

The trial court said, no, don't do that.

Don't bring in any documents unless you are prepared to assume that they are statements under 3500 (e).

Then I will approve them for irrelevant portions, but I won't look at them to determine whether they fall within 3500 (e).

And having said that to the Government, the Government said, alright we'll then have to reappraise our position.

And so far as the record shows they thereafter brought in only those documents which they thought were clearly 3500 (e) and not those which they otherwise would have brought in for in camera inspection to determine whether or not they should be turned over.

Now that's one point which relates entirely to documents that were admittedly in the prosecution's hands.

Of course, we do not know whether in fact, they would have qualified under 3500 (e).

Since they weren't produce at all, they are not sealed and delivered up here so that this Court can't look at them either.

We do have the sealed excisions of irrelevant matter from the statements that were turned over, but we don't have the doubtful statements that might or might not have been produceable under 3500 (e), they never came.

Our other point under 3500 relates to the possibility of there being other statements that the prosecution did not know about but could find out about.

The prosecution witnesses had testified in other proceedings and they, under cross-examination, said, yes, before their testimony and these other proceedings they have talked to government agents, government attorneys.

Also, one of them had talked to a Senate Committee investigator when he was down on some other proceeding.

The request that the defense made for these statements was broad enough to comprehend and specifically was intended to comprehend any statements that might have been made in the course of these interviews with government attorneys, Senate Committee investigator.

The Government took the position that 3500 does not cover Senate Committee agents.

And the Government further took the position that it was not responsible to make inquiry to other government attorneys to see if they had produceable statements under 3500.

It's quite clear on the record that the prosecuting attorneys said, I'm not -- I don't know what other government attorneys may have.

Justice William J. Brennan: (Inaudible) United States, to the district meaning --

Mr. Telford Taylor: In the case of the Senate Committee agent, it appears to have been on the idea that 3500 doesn't cover committee agents, legislative agents.

Justice William J. Brennan: (Inaudible) issued then by the United States.

Mr. Telford Taylor: Yes, but it has a more particular word here that I guess would be the governing word Mr. Justice Brennan and that is agent of the Government, any statement made by a government witness to an agent of the Government.

More broadly, I think it was his position that all he had to do was to find out whether the witness has made statements to the FBI, to make inquiry in Washington for whatever they might have and that was the end of his responsibility in the matter.

And he talked about how he couldn't be responsible for what other government attorneys might have done and he didn't see how the Court could ask a Senate Committee to turn over documents and so forth.

So it seems to have been a legal objection that he made.

As a result, the Court never did rule on this.

They never did require the prosecution to find out whether there were any such statements in the hands of Senate Committee or other government attorneys and the prosecution was never made to explore the thing.

What we see -- once again, we do not know whether there may or may not be any such statements.

If they exist, they might or might not be of the kind that would be producible under paragraph (e), might or might not be verbatim or not.

But at least it seems to us, inquiry should have been made to find out and the government attorney should not have taken the position that this wasn't his job.

The result of this was that instead of a simple request for information to these places, defense counsel had no recourse but to try to examine at length, the witnesses in camera to see if they recalled having made any statements, what are the circumstances or their talks were, and so forth, which wasn't the satisfactory procedure because the witnesses themselves could not be sure whether or -- whether there was or wasn't any statement of their interview.

There could have been a recording made that they knew nothing about.

The Government would know whether they did or didn't have any statement emanating from those conversations.

Justice William J. Brennan: (Inaudible) this far in this procedure?

Mr. Telford Taylor: No, they're not Your Honor.

They are not.

They were not produced in the camera.

They are not produced to defense.

They are not produced at all and they're -- they're not part of the record or available here.

Justice Felix Frankfurter: I may have -- and probably you've stated it, I missed it if you had.

The applicability of the perjury rules that assuming the perjury rule governs, is there a defect in the charge --

Mr. Telford Taylor: Yes.

Justice Felix Frankfurter: -- on the assumption that the perjury rule didn't govern?

Mr. Telford Taylor: That's correct Your Honor.

If the perjury rule governed, then there should have been a charge, and the charge was submitted embodiment.

Justice Felix Frankfurter: (Inaudible)

Mr. Telford Taylor: That's right, yes.

We have one other point about the trial which I wish -- I would've otherwise liked to talk about, but I think I'm going to pass over the point relating to the instructions on membership.

Let me just state briefly that the point of our complaint is that in the charge the jury on membership, the indicia of membership as set forth in the Communist Control Act of 1954 were used, were stated to the jury as basis from which membership where -- as things to be considered in determining whether or not he had remained a member.

The Court at the moment has the SACB case which was argued in October, in which the constitutionality of those indicia comes up in quite a different context.

That is there constitutionality or not, in terms of the Internal Security Act of 1950.

Here you have the question whether those indica can validly be used as instructions to the jury in a criminal case involving the issue with membership.

And we say that in the first place, we complain about the fact that instead of -- if you're going to give the indicia at all, it seems to me you should have given all of it, but you didn't.

But we do complain about the indicia themselves on the ground that they are so vague and so sweeping that they cannot validly be used as the basis for a jury determination on this issue.

All that is we set forth in our brief, I hope.

Now, I then, deal with cases 3 and 71, the motions for a new trial.

And may I say quite frankly that No. 3 is by far the more important of two, it is doubtful whether No. 71 would have been made, except for its cumulative interests coming on top of the motion in No. 3.

The motion No. 3 concerns the same witness Gardner, whose conversation used from another connection.

And Gardner also testified in a case in Cleveland, in a federal court in Cleveland, the West case, which is a case involving a conspiracy to make false affidavits under Taft-Harley Law.

That case is pending on petition for certiorari here at the moment and not yet acted on.

And in that case in Cleveland, Gardner was asked whether he had had any military service.

And he replied with the flat denial that he'd been ever in the Armed Forces.

The attorneys in the West case then wrote to the Government to make inquiry and the result of their inquiry, you'll -- the Court will find at page 3 of the record in No. 3.

The Department of Justice wrote back saying that inquiry now disclosed that the he had served in the Armed Forces from 1922 to 1925 and the course of which he was absent on -- without leave and he was court-martialed and confined at hard labor.

He then reenlisted in 1925, I beg your pardon, in January 1926 and had then deserted on May 11.

And so, he had a somewhat lengthy and checked military history.

The false -- the false answer on his ties into another thing which is referred to at page 4 of the record and that is the FBI report which was furnished to the defense now in this case, in the Travis case, under 3500.

And the essential facts of which were at the top of page 4 there that he had no military service and that he'd been employed by the DuPont Chemical Company from 1925 to 1929.

The discrepancy on that date, a check revealed that he went to work there in 1926, not 1925 and the mistake on that date of course, exactly coincides with the year 1926, when he in fact deserted from the Armed Forces.

Now, admittedly, these matters are not directly on the issue of the trial.

They could be described as being collateral in that sense.

And the Government says that they provide no basis for a new trial for that reason.

We think that the decisions in (Inaudible) and other cases have -- well, they haven't eliminated at all the question of collateral -- collateral proof.

They do indicate that under some circumstances, collateral evidence which is destructive of the witness' credibility, maybe the basis for a new trial.

And this again, I think must be viewed in the light of the kind of case this is, where really the only direct evidence we have to go on are these conversations to place the time in the affidavits and Gardner's version of what those were, coupled with the fact that has admitted hostility to this union of this defendant and that his credibility became a vitally important matter.

Well now, this is certainly very damaging to his credibility and we think would have been a vital -- might have been a vital impact on the jury.

The Government makes one other argument here in the West case itself when this test -- this information was uncovered.

They made a motion for a new trial in the West case, which was denied and the denial of that motion is one of the grounds for certiorari which has been urged here.

The Government says, the West case has therefore -- the judge there has waived this and found it insufficient as the judge did in our case.

But the two things are not -- are not on the same bottom here, because in the West case when they held -- they'd had their hearing on a motion for a new trial, it was brought out that one of the defense attorneys in the West case had known about Gardner's military service at the time he testified.

Therefore, says the trial judge, it's very unlikely that Gardner testified deliberately falsely because he knew that this defense attorney knew about it.

He probably thought the question was directed only to World War II in which he didn't serve.

And therefore, we don't think he deliberately falsified.

Well that explanation might have been all right in the West case, but it obviously doesn't fit the fact that in this case, we also have the FBI report.

He certainly wasn't called into any error on that because of presence of -- the presence of the defense attorney and the fact that the dates of employment are falsified in exactly the right way to cover up the year of his desertion, is further a very strong evidence that this was deliberate falsification.

So we say for all those reasons, the motion in No. 3 was sufficient grounds for a new trial, the motion in No. 71 is based on other discrepancies in Gardner's testimony about the time of his marriage and divorce, which standing by themselves, wouldn't have supported the motion.

But they do accentuate the impression that you get from the motion in No. 3 that this -- there's a man who was capable of a very deliberate and extensive falsification.

Mr. Chief Justice with the Court's permission, I'll reserve the balance of my time.

Chief Justice Earl Warren: You may.

Mr. Searls.

Argument of George B. Searls

Mr. George B. Searls: Mr. Chief Justice and may it please the Court.

Because Mr. Taylor spoke first on the venue point, I shall cover it, but briefly.

If the petitioner had not mailed or caused to be mailed, the letter in Denver containing these affidavits, they wouldn't have been filed to the Board in the District of Columbia.

He acted, we think, in Denver to produce a result in effect in Washington.

He started a force going that ended up in Washington.

Now, the Lombardo case is what the offense was the failure to file.

And while petitioner's scarce at the distinction -- I think we can't overlook at the fact, there is a difference between action and inaction and between malfeasance and nonfeasance.

If you're required to file something at a given place and you never do it, you don't do it on the appointed date, the courts haven't pushed any rule to the point of saying that you commit a failure in your home.

That was an argument the Government made in Lombardo.

But there have been a great number of cases in which false statements had been mailed from distant points to Washington and the offense has been held subject to prosecution in the district of the mailing.

Justice John M. Harlan: Supposing he had sworn to the statement in Colorado and then instead of putting it in the mail, he has gotten on a train and delivered it in person in Washington, could you have indicted him in Colorado?

Mr. George B. Searls: I don't think so, sir.

Justice John M. Harlan: You don't think so.

Mr. George B. Searls: I think it's when --

Justice John M. Harlan: It's the use of the mail that you --

Mr. George B. Searls: Well, no, it's not so much this use of the mail that he has put it out of his control.

Now there are some cases cited in the briefs where men made a false affidavit or a false statement.

In New Jersey, let's say, and then took it across the river, filed it in a government office in New York.

Now, up until the time when he handed that in, he could've withheld it or he could've corrected it.

And the Court held in those cases and I think correctly that the place of filing was the only possible jurisdiction.

But here, neither the Lombardo case nor any other case that I know, says that false filing and non-filing are in the same category.

Justice William J. Brennan: (Inaudible) after the affidavit has arrived (Inudible)?

Mr. George B. Searls: I think Your Honor it would have been saved by the hand of province.

Justice William J. Brennan: In other words, that actual violation of the (Inaudible) element that they administer --

Mr. George B. Searls: Actual filing is evidence of what Your Honor?

Justice William J. Brennan: The element of the (Inaudible)

Mr. George B. Searls: That -- that is correct.

But he began the course of events in Colorado.

Chief Justice Earl Warren: Suppose Mr. Searls you -- we take the situation that General Taylor spoke of.

He says that all his affidavits were given by various officers living in different parts of the country and they were assembled at Denver.

Then they were put in the mail and before they reached Washington, the union said, we would -- we don't want those filed.

We want them returned to us and we're not going to ask for a certification.

What -- what would be the situation there?

Mr. George B. Searls: I don't think then Your Honor there would be an offense.

Chief Justice Earl Warren: There would be any filing?

Mr. George B. Searls: If the notification not to take them arrived before the letter containing the affidavits.

Chief Justice Earl Warren: Well, how can you -- how can you say to them that this is irreparably beyond his control when he puts it in the -- in the mail.

There is -- is it --

Mr. George B. Searls: Well, it's a --

Chief Justice Earl Warren: -- beyond his control --

Mr. George B. Searls: This is a question --

Chief Justice Earl Warren: -- until it is actually filed?

Mr. George B. Searls: This is a question Your Honor, of his personal control.

What he did, what the officer did in this case was to prepare the affidavits or secure, I'd call it.

They were apparently given to the president of the union, who mailed them.

And in other words, a stipulation I believe that they were caused to be mailed or at least that was admitted.

I suppose up to the time that the affidavit actually left the union officers in Denver, Mr. Travis would have had the right to recall it.

Justice Hugo L. Black: What would you mean then?

Couldn't he have done this?

Mr. George B. Searls: Would have the right to recall it.

I mean to say, don't send in my affidavit.

Justice Hugo L. Black: But I'd -- I saw it and I have acted on the assumption a number of times that I could go to the post office to get my letter back, that I didn't want it to be delivered.

Mr. George B. Searls: ell of course, the fact here is that he made no effort to get it back.

Justice Hugo L. Black: What is that answer?

Mr. George B. Searls: The fact here is he made no effort to get it.

Justice Hugo L. Black: Well, I'm not talking about that.

I -- I thought you said it was beyond recall and I thought that was rather -- for whatever it was, it may not be what you think here, but I thought it was quite customary for some people to mail a letter and then find out that didn't want them to go or mail something else, then go down and get it.

Mr. George B. Searls: Well, of course the -- I understand there has been a practice in recent years of post office whereby you can get letters back.

We have to act very quickly.

Justice Hugo L. Black: And that's right.

Mr. George B. Searls: You have to act very quickly.

Justice Hugo L. Black: I agree to that [Laughs].

Mr. George B. Searls: And I suppose [Laughs] --

Justice Hugo L. Black: That's right.

Mr. George B. Searls: And I think it's quite a complicated procedure.

I've never had to do it.

Justice Felix Frankfurter: You can't get it back if it's delivered at the other end, can you?

Mr. George B. Searls: No, sir.

And now, to go on -- before going on to something else, I want to (Voice Overlap).

Justice Felix Frankfurter: I take it -- I wouldn't suppose that would be possible to get it back to the post office as they've delivered it to somebody.

Mr. George B. Searls: It wouldn't be filed [Laughs]

Justice Charles E. Whittaker: Mr. Searls, is there any legislation requiring the mailing of such affidavits?

Mr. George B. Searls: I don't think they're required to be mailed, Your Honor.

Justice Charles E. Whittaker: They maybe carried in and then filed.

Mr. George B. Searls: Yes, I think so.

Justice Charles E. Whittaker: Then whose agent would the mails be if they were elected to be used?

Mr. George B. Searls: I'm sorry, I didn't get --

Justice Charles E. Whittaker: Whose agents would the mails be in a case like this?

Mr. George B. Searls: I suppose it's the agent of the mailer.

Justice Charles E. Whittaker: The defendant?

Mr. George B. Searls: Yes.

Justice Charles E. Whittaker: Now, as an affidavit of these towns in Denver, when he handed it over to the agent for mailing, how (Inaudible)?

Mr. George B. Searls: Well, I think it's a case within the language of the statute.

He began the offense.

Justice Charles E. Whittaker: An offense?

Mr. George B. Searls: By causing it to be mailed.

Justice Charles E. Whittaker: Now, what was the offense there?

Mr. George B. Searls: The offense making or using a document containing a false statement.

Justice Charles E. Whittaker: The statute says, the offense shall be the -- well, it requires that the affidavit shall be on file with the Board.

Mr. George B. Searls: Well, Your Honor I think, we have to take into account, we have two statutes here leaving out of -- account from a -- the continuing offense statute.

1529, doesn't require any affidavit to be filed anywhere.

It says the Board shall not take certain proceedings unless an affidavit is on file with the Board.

Then the section ends up with the words, "The provisions of Section 35 (a), that's now 1001 of the criminal code, shall be applicable in respect to such affidavits."

Now, that is the statute which I referred when I said it penalized the making or using of a document containing a false statement.

And I think when it seems to us -- when Mr. Travis caused to be mailed a false affidavit, if false it was, that he was then putting the affidavit to the use for which it was designed.

There was no --

Justice Hugo L. Black: He was getting ready to file it?

Mr. George B. Searls: Yes, Your Honor.

Justice Hugo L. Black: Mr. Searls, what's the significance of this (Inaudible), what's the significance of the (Inaudible), it's left beyond the court to submit these letters (Inaudible)?

Mr. George B. Searls: Well, his action -- his action has ended.

I mean, I have in mind of course that the mails might be viewed as his agent and in that sense, he was continuing to act.

But the -- as far as Travis was concerned, the thing was over and done with, when the affidavit was mailed.

Justice William J. Brennan: Well, then I suppose the bearing on the question that Mr. Justice Harlan asked, he's just -- supposing (Inaudible)

Mr. George B. Searls: Yes.

Justice William J. Brennan: (Inaudible) he had given it to union president (Inaudible).

Well, there's some fragment (Inaudible)

Mr. George B. Searls: I don't think that would be quite as strong as the mail because of the possibility of recovery would be greater.

Justice William J. Brennan: But them you do exercise the possibility of recall as an element then whether it was sent to namely --

Mr. George B. Searls: I think I -- I think that is one element, Your Honor.

Justice William J. Brennan: Now, that (Inaudible) namely that one man who is caused it to mail, recovers from post office before delivery a letter (Inaudible), I take it that (Inaudible) Washington Post Office, when it arrives at Washington before delivery to the Board.

Mr. George B. Searls: I'll assume that's so, Your Honor.

I don't -- I'm not sufficiently familiar with the procedure.

I would have -- I would have supposed that you had to make a ratification at the post office where you mailed it.

But at any rate, if he --

Justice William J. Brennan: Well, you'd assume that, if you assume that might be the cause for a delivery --

Mr. George B. Searls: Yes.

Justice William J. Brennan: -- from Washington Post Office, then certainly (Inaudible) Washington would be no basis for (Inaudible) in Colorado.

Mr. George B. Searls: I think there would be Your Honor, since he had made no effort to recall it.

Justice Felix Frankfurter: If -- if the affidavit -- if the affidavit doesn't reach its destination, there is no offense.

And therefore, it's idle to call as to where this prosecution should be brought, there's no offense.

Mr. George B. Searls: That's --

Justice Felix Frankfurter: If the affidavit is filed, then the problem arises whether the fact that it had -- I'm not now speaking legally, but I'm speaking physically.

Something that had a beginning or -- and an end in the outlived world, wether that comes within the statute which allows prosecution to be brought at either place.

All the -- all the hypothetical cases where the stuff hasn't arrived, doesn't get you anywhere because there's no offense.

Mr. George B. Searls: I agree -- I think that's a correct statement.

Justice William J. Brennan: (Inaudible) trying to find out the significance of your argument of the approaching to (Inaudible) and certainly (Inaudible) the meaning of that then there is that (Inaudible)

Mr. George B. Searls: Well, I think you also have taken to account perhaps, Your Honor that when we mail a letter, we figure that's done.

That's the ordinary reaction.

We don't consider the possibility that we could rush around to the post office and get a stop order or whatever they call it.

As far as we're concerned, the act is complete.

And I think that is the situation here.

Now, there's been some mention made in some of the other cases under this statute.

Well --

Chief Justice Earl Warren: Before you get to those cases, could I give you one more hypothetical and this is a case where -- where it does get to Washington.

But suppose this petitioner instead of living in Denver, Colorado lived in Washington, DC and he sent his affidavit back to Denver and it was sent from Denver by the union to Washington where it was filed, would you prosecute him back in Denver?

Mr. George B. Searls: I don't know, Your Honor.

Chief Justice Earl Warren: You don't know?

Mr. George B. Searls: Well, I think we could, but I wouldn't regard it as a strong case because if you send it to the union, while you -- it's instruction, now you take this and mail to Washington.

You're making the union your agent to that extent.

Chief Justice Earl Warren: But wouldn't it be doing that whether he lived in Denver or whether he lived in Washington, DC?

Mr. George B. Searls: Yes, sir.

Chief Justice Earl Warren: So what's the difference between the two cases from a standpoint of venue under the statute?

Mr. George B. Searls: I don't know if there is any Your Honor, but --

Chief Justice Earl Warren: Then why were you saying --

Mr. George B. Searls: -- except in the case you put, I'm sure he would've been indicted after all in Washington.

Chief Justice Earl Warren: Now, you say, you're sure he would, but I say, could you indict him, don't we have to know whether a man under those circumstances, could be indicted, as this man was, at the place where -- where it was deposited in the mail?

I thought it was your theory that when he put it in the mail, the crime -- there was a beginning of the crime there.

Mr. George B. Searls: Your Honor, as far as whether --

Chief Justice Earl Warren: Why wouldn't it -- why wouldn't it be --

Mr. George B. Searls: -- whether it's put in the mail addressed to the place where it is intended to be filed.

Chief Justice Earl Warren: Yes, whether it would be there just -- it would be done, just in exactly the same situation in either case.

Mr. George B. Searls: No.

Chief Justice Earl Warren: Except one fellow lived in Denver and the other one lived in Washington, DC.

How do you differentiate those two cases?

Mr. George B. Searls: I don't know that I do, Your Honor.

I think it -- as I said that in the case you put, an indictment could be laid in Denver.

Chief Justice Earl Warren: You say it could?

Mr. George B. Searls: I think so, Your Honor.

Chief Justice Earl Warren: Well, I understood you to say that (Voice Overlap)

Mr. George B. Searls: First, I change my answer, Your Honor.

Chief Justice Earl Warren: Oh, I see.

I see.

Justice Hugo L. Black: I understand that your argument is that if a man gets ready to commit a crime in Colorado, then it's committed here, that's a continuing crime and that you can try it at either place?

Mr. George B. Searls: Well, I don't like the term continuing crime --

Justice Hugo L. Black: Well, whatever it is.

Mr. George B. Searls: It's begun in Denver --

Justice Hugo L. Black: To get ready --

Mr. George B. Searls: -- begun in Denver and completed in Washington.

Justice Hugo L. Black: I read this morning about a decision of the district where a man got ready up in Philadelphia and bought himself a gun, got on the train and came Denver here and killed his wife.

It's cited down here.

Do you think that that was a right place for trial?

Mr. George B. Searls: I think so in that case, Your Honor.

Justice Hugo L. Black: Well, he got ready to commit the crime, before he came here.

Mr. George B. Searls: Well, that's a difference with the cases though I suppose between preparation and beginning.

Justice Hugo L. Black: That's -- you said a while ago in an answer to my question that this man get ready to commit the crime up there then filing which is a crime.

And therefore --

Mr. George B. Searls: Well, I thinking he has to -- not only get ready, he has to do an act.

Justice Hugo L. Black: But this man did an act, he bought himself a pistol up in Philadelphia, for the expressed purpose of shooting his wife, it's according to the paper.

At least I've seen so is the case.

Mr. George B. Searls: Oh, I think Your Honor in that case, that would be the only case he could be tried would be -- he didn't begin to commit -- shoot his wife in Philadelphia.

Justice Hugo L. Black: No, well, he -- he didn't begin it.

This man didn't begin to file this there.

He gave it to the --

Mr. George B. Searls: Well, as far as trial --

Justice Hugo L. Black: He wrote it out.

Mr. George B. Searls: -- is concerned I think the filing began or the beginning of the filing was when the letter was put in the post office.

Justice John M. Harlan: Well, isn't it equally begun when he swears to the statement in Colorado?

Mr. George B. Searls: I'm sorry, Your Honor.

Justice John M. Harlan: Why is it not equally begun, in your theory, when he swears to the statement in Colorado?

Mr. George B. Searls: Because Your Honor -- I don't know, Your Honor, but I suppose the difference is this that until he relinquishes the affidavit --

Justice John M. Harlan: That the statute covers both making and using?

Mr. George B. Searls: Making and using.

Yes, Your Honor, but my impression is that the cases, not in this Court, but I don't know if this Court was ever presented on the question, have interpreted making in the sense of presenting or something in sense of sort of presenting of making false testimony in the sense, you don't do it until you give it.

But I say that he made it and used it in Denver at least to the extent of beginning of filing which was a violation of 1001, not a violation of 159 (h), except insofar as to two statutes are read into each other.

Justice Charles E. Whittaker: If I gather your argument, you make your point then of (Inaudible) similar to a negotiable instrument or a deed that one might prefer as long as he holds it in his hands had part admitted, not his act.

But when he delivers it to put in the record or transfer it, then that's a beginning of a crime that's involved, it's the beginning of a crime.

Is that your position?

Mr. George B. Searls: I'm not sure that I got the first part of the question, Your Honor.

Justice Charles E. Whittaker: Well, I will -- I want you to (Inaudible) lightening your position to that of delivery of an instrument.

Mr. George B. Searls: Well, I --

Justice Charles E. Whittaker: (Voice Overlap)

Mr. George B. Searls: -- I suppose it prospers your resemblance to the -- some resemblance to the point in the law of contracts, I understand the majority rule there is an acceptance -- effective when mailed.

Justice Charles E. Whittaker: And that to mail it was -- was it the -- was the --was the delivery or for the purpose --

Mr. George B. Searls: The mailing was a necessary part of the delivery.

There's nothing in either statute that uses the word "delivery".

I would like to point out on that point most of the prosecutions, as far as I know, have concerned -- well that, I think the exception of Ben Gold case, officers of local unions, under the Board's regulation, those unions are to filed in a regional office of the Board where the union is located.

And I think that is probably the explanation why most of those prosecutions have been doubted around in different districts.

Chief Justice Earl Warren: As I -- I understood General Taylor to say that all except two of these prosecutions had been commenced here in Washington.

Mr. George B. Searls: All but two of the -- oh no, Your Honor.

I --

Chief Justice Earl Warren: I -- I may have misunderstood it in my --

Mr. George B. Searls: I -- I didn't understand him to say that.

Chief Justice Earl Warren: All but this and one more, I understood him to say.

Mr. George B. Searls: No, theres been a -- perhaps, he was limiting at the cases of national officers.

Chief Justice Earl Warren: Yes, that's right.

Mr. George B. Searls: Well in that case that maybe true.

I don't know, but I'm saying that a lot of the cases under the statute are indictments of local officers --

Chief Justice Earl Warren: Oh, yes.

Mr. George B. Searls: -- where the filing is not to be in Washington, but in the regional office which maybe in Philadelphia or Cleveland, any one or the other regional offices.

Chief Justice Earl Warren: Well, how does that strengthen your position?

Mr. George B. Searls: Well, no.

I --

Chief Justice Earl Warren: In -- in most or once -- if the national (Voice Overlap)

Mr. George B. Searls: It doesn't strengthen the position at all, Your Honor.

It only explains why these cases have been doubted around the country.

Chief Justice Earl Warren: Well, he as I understood was not complaining because they were doubted around the country as you say.

Mr. George B. Searls: I don't think Your Honor.

Chief Justice Earl Warren: He -- he said that those -- the national officers that were prosecuted under this Act with the exception of this in one other case, were all prosecuted here in Washington.

Mr. George B. Searls: I don't think, Your Honor.

There have been many cases of indictment of national officers.

The Gold case I think was one and this was one.

The Valenti case, which was also mentioned, I think, was the case of a local officer which wouldn't have been brought here anyway.

Offhand, I can't claim to be familiar with all these cases.

I do not know of any prosecution except this, the Gold case of a national officer.

Justice Felix Frankfurter: You mean, not -- you can't of any case that were litigated, but are you saying there were no prosecutions brought at all in the district or anywhere else?

Mr. George B. Searls: No, Your Honor.

I'm saying there -- the two prosecutions of national officers.

Justice Felix Frankfurter: Yes.

Mr. George B. Searls: One brought here and one brought in Denver.

Justice Felix Frankfurter: But they weren't brought, not that the question was litigate at the national office.

You say that's the total record of prosecutions begun.

Is that what you say?

Mr. George B. Searls: Of national officers I think, Your Honor.

Justice Felix Frankfurter: That's what I'm talking about.

Mr. George B. Searls: Yes.

Justice Felix Frankfurter: Because the other one presents a different problem.

Mr. George B. Searls: Well now, with the Court's permission, I would like to go on to develop the evidence somewhat.

We think that the evidence has to be looked at as a whole, to see the way the parts tie in with one another.

That it is not reasonable as the petitioner's brief does to take each isolated utterance and try to explain it away in the terms of what it might have meant.

It might mean one thing.

If there was no background, it might mean quite another thing against the certain background.

Now, for example, I would like to start with this talk that Gardner testified to that he had with petitioner in the fall of 1951.

Now that was on the return from a trip to Canada.

Travis came and I think John Clark, the president of the union, came to Buffalo.

Gardner went over there from Buffalo and drove them in his car across the Canadian border.

Then later, I don't know where Clark went, Travis and Gardner drove back alone.

And it was then that the conversation took place.

Now at that time, Gardner was a member, an active member, of the Communist Party.

And it was in that context that the conversation occurred, which Travis told Gardner that he started out by calling him, "You come with excellent recommendations from the Communist Party in Cleveland."

I don't know why the Communist Party in Cleveland would recommend one of their members to a non-member in another city, but that is one little brick, I think, in the structure.

Then, there was the testimony that Gardner -- that Travis said that he realized that his public resignation had been a mistake because some enemies, he gave the enemies of the Party, in outcome, they are pointing out that it wasn't real.

We think the jury could infer from that that Travis meant two things.

One, that his resignation was not really bona fide; and two, that Travis was a member of the Communist Party; he was talking as one Communist to another in the fall of 1951.

Now, the jury could relate that back to Eckert's testimony that in 1948, at a meeting in his home which was then in Chicago.

Chief Justice Earl Warren: That was before the affidavit?

Mr. George B. Searls: That was before the affidavit, Your Honor.

Before the resignation, too.

Chief Justice Earl Warren: Yes, yes that's --

Mr. George B. Searls: Travis asked a Communist official, Green, who was present at the meeting, whether the policy of Lenin to the effect that it was important, all important for the Communist to remain in the trade union and to use every trick or artifice to accomplish that and whether that applied to the situation and they were talking about the Taft-Hartley affidavits.

Justice Hugo L. Black: What page is that Mr. Searls?

If you have it before you, can you give me this? If you haven't, that's alright.

Mr. George B. Searls: Well, it's referred to on our brief on pages 15 and 16, Your Honor.

And according to the testimony at that conversation, Green said, "Well, if you resign, the officers can join something like a social" and he meant, union officers, “social -- Thursday afternoon social club”, which wouldn't necessarily be the same thing as the Communist Party.

The jury could also tie up both of those items or the other item, a testimony by Mason in 1949 that he talked with Travis and that Travis told him, showed him his resignation statement.

This was before this -- I mean statement that was published.

This was before it was published, and said it has been cleared with Ben Gold and with the party people in New York.

In other words that it was being published with the approval of the Communist Party.

That also had some bearing, we think, on the fact to that up to 1948 according to Eckert's testimony, the Communist Party had a no resignation policy.

Justice Hugo L. Black: What difference does that make so far as he was concerned?

Mr. George B. Searls: I only think --

Justice Hugo L. Black: He could resign if he wants to, couldn't he?

Mr. George B. Searls: It makes a difference if we can show reason for inferring that he knew of it.

And also, Your Honor, I point out that in 1948 and 1949, between 1948 and 1949, the Communist Party changed its policy on the Taft-Hartley affidavits.

Justice Hugo L. Black: So that's a different thing, what happened (Voice Overlap)

Mr. George B. Searls: Yes, but I mean, they apparently were compelled under the pressure of the Act to modify their noncompliance standard -- stand, which they took in 1948.

And then by 1949, according to what Mason, I mean, Travis told Mason, their policy was to have union officers submit -- file the affidavits.

Now that --

Justice Hugo L. Black: What I don't understand is the expert testimony in that connection or the purpose of expert testimony to show that the (Voice Overlap)

Mr. George B. Searls: I don't think, Your Honor has --

Justice Hugo L. Black: It had a policy that members couldn't resign.

It couldn't bind them, could it?

Mr. George B. Searls: No, of course not for purposes of the law Your Honor, for purposes of the statute like this.

It could, however, have this bearing that it would show the degree of attention that Travis paid to the Party orders and the Party policies.

That he thought that in 1949, when he claimed he was resigning, he had to get the agreement of the Party to it.

I take it the no resignation policy didn't exclude the possibility that the Party might agree to let somebody resign.

Justice Hugo L. Black: Well, it didn't have to agree, that's what I don't understand.

Mr. George B. Searls: Well, I'm -- that --

Justice Hugo L. Black: Unless you are saying, as you have the evidence that there was some kind of a policy under which this man agreed with them and showed some way that he agreed with them that he wouldn't resign, when he did, although it was a fake.

Mr. George B. Searls: I don't think, Your Honor, that the --

Justice Hugo L. Black: I don't understand how you can prove that by the fact that the Party had a policy that didn't want its members to resign?

Mr. George B. Searls: Well, I think the very -- only bearing in has upon is whether when he agreed with the Party on a resignation whether -- well it has some slight bearing on the question whether it's a bona fide resignation or whether the Party had agreed to it for purposes of his own -- of its own, which might well mean that it was not --

Justice Hugo L. Black: I can understand the relevance he lived and would pretend to show them, but I don't understand that producing of an expert to show that the confidant -- the Party didn't let its members -- didn't want its members to resign and said they couldn't – it couldn't keep them permanent if they wanted to, could it?

Mr. George B. Searls: No, Your Honor, but they could -- I suppose their only -- you're looking at it from the, we're looking at it from the wrong end of the telescope.

I mean, the Party says, you can't resign if it does.

That means that if you submit a resignation and they don't accept it, they're going to consider -- consider you a member but that doesn't -- going to mean you're going to be a member for purposes of a false affidavit under the Taft-Hartley Act or for other legal purposes.

Justice Hugo L. Black: It doesn't mean you'll be member at all, does it, if you resign, without regard to what we --

Mr. George B. Searls: No, Your Honor.

I would -- I would say, it does not mean he is a member at all.

Justice John M. Harlan: I understood from what you said that you agree with the General Taylor that this evidence was pf no significance, unless the knowledge of this policy -- this alleged policy --

Mr. George B. Searls: I don't --

Justice John M. Harlan: -- brought home to the defendant.

Mr. George B. Searls: I don't think, even if he knew it whether have much significance, Your Honor, for the reason that --

Justice John M. Harlan: You don't think that this evidence --

Mr. George B. Searls: There's evidence that the Party policy in other respects, I'm speaking of the Taft-Hartley affidavits, they changed very significantly between 1948 and whenever they did change it in 1949 and it would seem to me logical that at that time they would also, if they had had a no resignation policy, make a change in that too, because whether a resignation of a union officer was going to be bona fide or not from the Party point of view, they'd have to modify this so-called policy, if they were going to agree to it.

Chief Justice Earl Warren: I wonder when Congress passed that law requiring those affidavits to be filed that -- did it contemplate that no man who had ever been a Communist could file such an affidavit or did it contemplate that by resigning, he could -- he could file the affidavit?

Mr. George B. Searls: I think it was -- I think it's pretty clear that it was contemplated that by resigning, he could file, providing it was the real and bona fide resignation.

Chief Justice Earl Warren: Well then I see, if the jury believed that he could not, under any circumstances resign, then it wouldn't -- it would believe that he had no right, having once been a Congress -- a Communist to do so, you think?

Mr. George B. Searls: I don't think, Your Honor, in view of the instructions of the court that the jury could have reached that conclusion, because they were very plainly instructed that membership, in the sense on which it was relevant to the indictment, was a matter of mutual consent.

Chief Justice Earl Warren: Well, but if the Communist Party would not let him get away, then how could it be a mutual consent?

Mr. George B. Searls: Well, I can give the same answer I gave Mr. Justice Black.

He would not be a member although the Communist Party would -- might consider him one.

They might carry him on their role still as a member, but he would not be member if he resigned in good faith, and --

Chief Justice Earl Warren: -- then whether, whether they have this policy or not --

Mr. George B. Searls: Well, that's right.

Chief Justice Earl Warren: -- it makes no difference.

Mr. George B. Searls: But I don't think, under the instruction of the Court that evidence prejudice -- had any real chance of prejudice in the defendant.

Now, I like to go to one more thing and that is, the jury could also take into account, the conduct of the defendant -- of the petitioner before 1949 and during the period 1952 and 1953, in which -- during which times, he was acting as an active member of the Party and as one of the leaders of the Party in the union.

Now, in March 1952, he had a conversation with Mason, I think, in which about some proposal which the Communist in Russia had made or the Russian delegation to some convention in Europe, that a third federation of labor be set up in the United States.

The term was used the expelled unions by which I take it to mean, the unions like Mine Mill, which ultimately was cast out of the CIO, and I gathered there were probably some others.

Travis was the man selected apparently by the Party to pass -- discuss that matter with the members or the leaders of the union and to report back to the French Communist who was delegated to receive the news.

Then in 1953, Travis was apparently important and active in both the Party and the union, because according to Mason's testimony, Travis had to say as to what went on the agenda at the annual staff conference of the union.

And it was at that time that Travis made the statement in regard to apply to something Mason said that "when they get us Communist, they will be after people like you."

Later in 1953, Gardner who was still a member of the Party was transferred by Mine Mill from Cleveland to Idaho.

He was instructed on his way west to stopover at Denver to be briefed by Travis.

And Travis told him that there was a serious factional dispute in the Party going on in the District in Idaho to which he was going.

And until that dispute was resolved, he was to refrain from any active party activities in the district to which he was going.

Now, that suggest that at that time, Travis was not only a member of the party, but was at a position of authority in it so that the man who didn't -- who was an employee of a union, could be instructed to stop over and see him and get his instructions from him.

Now, then in 1953 later, Mason complained to Travis about the tactics of Travis and what Mason called, his party watchdogs, in regard to a -- some collective bargaining that was going on in Montana.

And he said that he spoke to -- he told Travis that, "I am speaking to you as the leader of the Party in the union."

Again, later on they had another conference and Mason says that he discussed with Travis, Travis' party activities, as leader of the Party forces, meaning in the union.

And that during that discussion, Travis said "Well you and Joe, Mason's brother, had your chance, you were invited to join the Party.

Had you done so, you would be sitting high in the council of this organization with us."

Now, we submit that on that evidence, taking it all together, the jury could find, there was a continuous course of Party activity of such a nature as to justify the inference that Travis, in the one narrow period, which hasn't been covered by evidence, 1950 and the part of 1951, that Travis was a member throughout there.

He only claimed he resigned in 1949.

He never made any claim that he resigned at any other date.

And we think that the evidence brackets the affidavit dates, December 1951 and December 1952, so that the jury could properly find that he was a member of the Party on the date when he signed.

Your Honor, I urge with the permission of the Court, I should like to leave to our brief the argument on what is claimed to be errors in the admission or exclusion of evidence.

Mr. Taylor paid very brief attention to it.

And I think our position is adequately set out there --

Justice John M. Harlan: (Inaudible)

Mr. George B. Searls: -- and I want to come to another factor of the case which I regard as more important matters, the question of the production of the grand jury members.

Our position is that whether it's for purposes of production direct to the defense or for purposes of in camera inspection, the trial court has discretion in handling a motion for either or both of those forms of relief.

And I think to judge whether the trial court here abused its discretion, we have to read the record carefully because well I would almost say, there are as many pages of argument and colloquy in chambers on this subject and related subjects as there are of testimony in court in the record.

It was explored extensively and you can't rest on any one statement, either by the trial court or by a counsel for the defense or by the United States attorney.

Position shifted a little bit as the trial went on.

Now, we say that the trial judge did not abuse his discretion and we have several reasons.

The first reason is that plaintiff's motions for production, except in possibly one or possibly two instances, were too broad.

Plaintiff's briefs, despite speaks in terms of a request for the minutes of the grand jury testimony, which is the way in which one would speak or write of a request for the minutes of the jury which returned the indictment, which is on trial.

Chief Justice Earl Warren: What would you say this minute, instead of these minutes?

Mr. George B. Searls: No, Your Honor.

What he started off by saying was he wanted transcript with respect to Eckert, of his testimony before any grand juries and he named a number of cases in which Eckert had testified and he wanted transcript before any of those juries, only two of which were in the District of Colorado.

That ties up with what Your Honor just said about these grand juries, that's on page 424 of the record.

Chief Justice Earl Warren: I see.

Mr. George B. Searls: At that time, I think counsel had not modified his previous motion.

So he was still asking for the testimony of all the grand juries before which, it could be found out, that Eckert had testified.

Now, later on, he did modify his request.

He came down, this is on page 425 of the record, to a request for the transcript of Eckert's testimony before three grand juries.

Before the grand jury that indicted Travis in 1954, before the grand jury which indicted Travis and 13 other people for another -- and another -- for another offense in 1956, and for the Travis' testimony before the grand jury in the Gold case which was here in the District of Columbia.

Now, as to Mason, the motion was for any grand jury testimony this witness has given and is -- I am not entirely sure, but I think, it was at that time that counsel for the defendant said, the United States attorney has told me he's testified before a number of them.

I think that was in connection with Mason.

Now as to Gardner, there was also originally, a motion for a test -- production of testimony before any grand juries.

There's also one time where the counsel attempted to question Gardner about his testimony or whether he had testified in the 1956 grand jury hearing as to each of the 19 -- of the 14 defendants, named in the 1956 indictment.

He finally came down, however, as with respect to Gardner to a request to examine his 1956 grand jury testimony as to two episodes of Canadian trip, which I have mentioned and the talk with Travis in Denver when Gardner was on his way to Idaho.

Now, the court -- there's been some discussion argument in the briefs as to whether the court sustained improperly questions as to examination before grand jury.

I think in a great many instances that was sustained, where it was a testimony before another grand jury than the one which returned this indictment in 1954.

I might also point out that it is clear that what the defense was looking for was not the ordinary case of the -- as I advised, we expect of moving to see the grand jury minutes in the grand jury which indicted the defendant.

But in most of his request, were addressed to all, as many as grand juries as he could think of.

Now, I think that all the instances cited in plaintiff's brief on page 32, of -- objections being sustained to questions asked witnesses as to testifying before grand jury.

I think, all the items listed on in that refer to the 1956 grand jury, which had indicted Travis for another crime and indicted 13 other defendants.

Now that case, at that time, was still pending, according to a statement in the record here, in the District Court of Colorado on a motion to dismiss the indictment.

It hasn't apparently even reached the trial stage.

Now, I understand that it is implicit in this Court's decision in Palermo possibly, in some other decisions that to get grand jury minutes or even perhaps to have the judge look at them in camera, the defendant has to show a need.

Now, perhaps the reason defendant's counsel was asked more questions, that it seems to me, about the 1956 grand jury and about the 1954 grand jury was that he has in his hands transcripts of the testimony of Eckert and Mason at the first trial of the petitioner which took place in 1955 and which -- of which he may have very little use in any attempt to show inconsistencies.

Now, as to Eckert, he had also transcripts of some six other proceedings or hearings in which Eckert had testified.

They're listed in the brief.

And as to Mason he had an addition to the 1955 transcript, transcript of his testimony in an NLRB hearing.

Now, we usually need something that we don't have.

And in this case, he did have transcripts of the testimony at the first trial of Eckert and Mason.

Gardner did not testify at the first trial or in the 1954 grand jury.

And the only inconsistencies that he showed were of this nature.

He'd asked Eckert, “You testified in the Gold case in the District of Columbia, did you not?”

“Yes.”

“Did you tell about this 1948 meeting where the Communist policy on not signing Taft-Hartley affidavits was set?”

“Yes.”

“In your transcript -- in the transcript of the testimony -- your testimony in the Gold case, you did not mention that James Durkin was at that meeting, did you?”

“No, I didn't.”

“Why didn't you?”

“Well, I just didn't happen to think of him at that time.”

Now, he -- there are a large number of such so-called inconsistencies; none of them, however, relate to Travis.

There was no pointing out that did he had ever testified in any other hearing or proceeding that Travis was not at a meeting to which he was -- he testified in this trial.

There was no testimony that he ever omitted Travis' name.

Most of these meetings were of a sizable number of people and in a number of cases, Eckert said something like there were a large number of people there and a number of people that, then he listed name and that's all I can remember.

In no instance I think, was he -- where the cross-examiner able to show that he had -- Eckert had previously said that Durkin, for example, was not at a particular meeting when he -- and said later on that he was.

It was just a matter of omission or is not of a matter of contradiction.

As I have just been pointing out full cross-examination of the plaintiff's -- of the plaintiff's witnesses.

The defense had a large amount of material even without any grand jury minutes.

Now, there was -- Mr. Taylor made a remark about the trial court said that you have to show some rather definite -- I'm quoting, "certain likelihood of material contradiction to get the grand jury minutes."

And that that is not in accordance of what this Court said in Palermo.

He did not mention, however, that at the trial, the defense counsel said, "I agree with the Court."

Also, defense counsel suggested that the burden on the Court of examining all these minutes would be too great.

And we think that the district judge was not unreasonable in refusing to examine the testimony of these witnesses in maybe six or eight other grand jury hearings.

When the defense had a large number of transcripts available to it and when there was no showing of real need, we think it's a matter of discretion and the trial court had a difficult time with all of motions that were filed.

As the case in the Second Circuit, as we read and they do not hold, there is no discretion.

I mean in -- even while they're going to look at it or not.

In the Zborowski case, the Court examined the record and the evidence in detail.

They discovered reasons why the trial court should have examined the record and it found them.

In the McKeever (ph) case, it said there had to be some reason for supposing that there is inconsistency between the trial testimony and the grand jury testimony.

In fact, I'm not at all sure what the Second Circuit rule is because I think you will find that the trial judge, who was reversing the Hernandez case to which Mr. Taylor referred, was the circuit judge who wrote the opinions in the Zborowski and McKeever case, so that apparently, the rule is not too clear even there.

Justice Felix Frankfurter: The trial judge, in this case, did he profess the exercise of his question or did he find there is no basis calling upon -- called upon him to exercise the discretion, which was it?

Mr. George B. Searls: I would say it was the first Your Honor, but I can't refer you to page --

Justice Felix Frankfurter: The he exercised the discretion?

Mr. George B. Searls: In fact I think that falls from the opportunities that were given to counsel to cross-examine about -- in whether they -- whether the witness had testified for a grand jury or not.

Justice Felix Frankfurter: But -- but he exercised his discretion without looking at the grand jury minute, did he not?

Mr. George B. Searls: I think he could, Your Honor and I think --

Justice Felix Frankfurter: No, no.

In fact he -- he didn't look at it.

He didn't say, let me have the minute now and take a look at him and see if there's any basis for the motion.

Mr. George B. Searls: No, sir.

Justice Felix Frankfurter: But on the basis of the arguments of counsel and the testimony to which he had listed you say, he found no papers for calling for the minute.

What was that on the ground that no basis for contradiction has been laid or --

Mr. George B. Searls: No, I think he took into account all these factors that I've mentioned, Your Honor.

Of course, when we got there and must remember that there are three minutes -- I mean, three witnesses in three different sets of grand jury minutes that were being called for, and what I have said my not necessarily come out with the same corroboration in each instance.

Now, a related part of the argument is that whether the trial judge committed error in its rulings on Section 3500 of Title 18.

Now, I say that's related, because you will find through the record that the cross-examination of witnesses on whether they had testified before grand juries or not, it's intermixed with the examination of witnesses as to whether they had given statements to agents of the Government.

There's one instance -- I think it's page 6 -- I think it's referred to in the defendant's brief in one -- no, if I may -- may go back for a minute to the grand jury, defendant's brief, I think, cites the record of 686, 687 for the authority that the trial judge improperly sustained objections to examination of witnesses about grand jury testimony.

If you turn over to the next page, on page 688, you find the witness was permitted to be asked and answered a question as to whether he testified before the 1954 grand jury or the 1958 -- 1956 grand jury.

Now on 3500, there has been some criticism of the trial court on the ground that by telling the Government that he was going to take whatever they turned over as being admitted to be a statement.

That he discouraged the Government possibly from producing at least for examination, other documents that they might have produced.

Well, its urge for production in all instances wherein the language of the statute, they say, "You produce documents required -- statements comes in 3500."

And the remark about you're having admitted to these statements, was when the United States attorney after having submitted a large number of documents in chambers one day later, was trying to back out of it and say, "I think we have given you some things that aren't really statements within the statute."

And apparently they have, but the trial judge said, "No, you've handed them over and I haven't looked at them, the next item, and I'm not going back over that again."

Now, furthermore, the trial judge permitted extensive cross-examination of witnesses as to whether you had given -- whether they had given statements, whether notes were taken, whether transcripts were made to various government attorneys, to the NLRB, to the McCarran Committee and the Court denied the motions for additional production, not because he thought that, although he may have, that a Senate committee couldn't be forced to hand over any statement.

Or not because, he thought the attorney for the Government in say the Jencks case in Texas couldn't be forced to hand over a statement, but he denied the motion for the simple reason that he just felt they are not made out a factual case of any additional statements having been made.

And the United States attorney stated categorically on more than one occasion and he produced everything he had and everything he knew about it.

Mr. Taylor did not mention in his argument the Court portion of the argument in the brief on the use of uncorroborated admissions.

I'd like to add to what we've said in the brief, this case I reread recently, the case of Bram against the United States in 168 U.S.

A decision by I think was then Justice White.

In which he goes into the reasons for the rule, and he pointed out that Bram, at that time of the statement which he gave was -- which was used against him, was in a position where he was naturally anxious, he was naturally afraid.

He was anxious to win favor.

He was then in a position where he might think to own up would be a material help to him.

As Justice Fuller put in one place, he was not a free agent.

Now in these cases, all these statements that witnesses testified to that Gardner made, Gardner was certainly -- I mean, Travis made.

Travis was certainly a free agent.

He was an official in the union.

He was travelling around.

He was giving orders.

He had no reason to be afraid of these people to whom he was talking.

He wasn't trying to curry favor with them.

We think that just as was the -- to it in this rule, so-called perjury rule, that the trial court ruled correctly in this case.

Now, I would like to take up very briefly the motions for a new trial, there were two.

Neither was based -- both related to Gardner, neither was based on anything Gardner said in the Travis case.

Both relating to matters he had said in the West trial which is going on in Cleveland, normal simultaneously with the Travis trial in Denver.

Defendant's reply brief makes a some -- the false testimony which it supposed to have given in Denver, consisted in the main of two statements.

One, he was asked on cross-examination, “You were never in the armed forces were you?”

And he said, “No, sir.”

And the cross-examiner dropped it and went on to another subject.

It is true as it turned out later on after both trials that Gardner had been unknown to anybody in the U.S. Attorney's office or in the department that was working on either of these cases.

He had been in the army for a period between 1922 and 1926 and had deserted in 1926.

Now, in the West case, the trial judge held a three and a half day hearing.

Gardner went back on the stand, various attorneys testified, FBI agents testified.

And the trial judge wrote a somewhat lengthy opinion which is in 170 Federal Supplement, in which he found first Gardner had not committed perjury.

In second place, that he thought that the question about his military service on the stand, related to World War II and that he had reason to think so.

And he concluded that Gardner had not been convicted on -- that the defendants in that case had not been convicted on false testimony.

Now, the petitioner brings up the fact that in an FBI report in 1955 after Gardner had, I think, been expelled from the Communist Party, the occurrence is this, this is a sort of biographical statement.

It's not written by Gardner, it's into sort of tabular form.

It's on file in this Court in the cases brought by West and Haupt which are, I think, No. 93 and -- No. 73 and No. 74 miscellaneous.

This term, as to -- it says, under military service, there's the word, "None."

Now we don't know what questions the agent asked Gardner.

We don't know what answers Gardner gave.

This is a report.

Justice Potter Stewart: What kind of a report?

Mr. George B. Searls: FBI report sir --

Justice Potter Stewart: Just a --

Mr. George B. Searls: -- of an investigation.

Justice Potter Stewart: I see.

Mr. George B. Searls: I gather, this was the initial report on Gardner and I suppose when they contact the witness for the first time, they got a good deal of biographical data.

It's in -- begins at page 1270 of the second volume of the joint appendix in the Haupt case which is I think on file in this case.

Furthermore, not only did the defendant have this -- that report, a copy of that report at the trial of this case, but a copy was also put in at the hearing on a motion for new trial in the West case.

And when the judge found that Gardner had not testified falsely, he took into consideration that he must have taken into consideration the FBI report as well as the other evidence.

Now, the second matter is that Gardner told different stories about his marital history.

What turns out at the different stories -- the differences were related to two things, one, the date of his divorce from his first wife; and second, the date of his marriage to the second wife.

Now, he wasn't asked to produce any copy of a decree.

In fact, I think he testified in the West case, he wasn't sure he had one, although he was sure he'd been divorced.

And while there's a statement in the record -- this is in No. 3, the record in No. 3 by a United States attorney somewhere, there was a decree in 1946.

I don't think -- it doesn't appear what kind of a decree it was or whether it was a final decree or an interrogatory decree or what.

Now, the other thing that Gardner is supposed to have misrepresented is the date of his second marriage.W

ell, that was a common law marriage?

I don't know of what the effective date of a common law marriage.

Gardner didn't know.

He and his wife talked it over and finally came up with the notion, they'd been married in November 1945, but I don't suppose the man really knows to this day whether he was actually married on that date or not, unless his engaged expert opinion.

It also seems to us that both these things are so inconsequential.

So, not -- I'm not putting it on grounds so much that they're irrelevant to the issue of the case, but even -- that the jury even if it had known of them, even if they'd been brought out at the trial, it wouldn't have taken any different result.

Are we going to disbelieve a man because he deserted from the army in 1926, disbelieve him on the stand in 1958?

Are we going to disbelieve him because he hasn't been able to get straight dates of his marital history under the circumstances I have described?

I don't think that it would affect the jury one way or another.

And certainly, the trial judge who -- decided at the trial, was in a better to judge than I am here.

It just doesn't seem to us that that kind of evidence could make the showing that is necessary to grant a motion for a new trial.

I might also point out that during the trial, counsel had in his possession a transcript, a daily transcript of Gardner's testimony in the West case in which some of these inconsistencies as to his marital history appear, but he didn't knew that.

It was not -- it also appears that counsel had, at that time, a copy of the FBI report I've mentioned, because it's referred to in the record in No. 3 as defendant's Exhibit J for identification.

So I take it that it was not introduced in evidence, but it was present.

That is all Your Honor, unless the Court has some further questions.

Chief Justice Earl Warren: Thank you.

Thank you, Mr. Searls.

General Taylor.

Rebuttal of Telford Taylor

Mr. Telford Taylor: I thought it might be helpful for me to try to clear the matter of where these prosecutions have been brought before as a matter of practice, which I think both the Chief Justice and Mr. Justice Harlan asked about.

Mr. Chief Justice, I did not mean to say and I don't think I said that all but two of these cases have been brought in Washington.

What I think, I said and meant to say was that all but two of these cases have been brought where the affidavit was filed, not where it was made.

Chief Justice Earl Warren: I -- I misunderstood you, that's all.

Mr. Telford Taylor: Now, that of course means in the case of the national officers would be Washington, but in the case of the local officers, it would be different.

If a national officer lives in Washington, obviously mailing and filing are in the same district.

Similarly, if he lives in the same place where the regional office is, a local officer will have no venue problem.

Both will be in the same district, but the two examples I gave were one from each.

The Ben Gold case was a case to a national officer and was brought here in Washington.

The Jencks case, I averted to, which was a local officer case, but the West is wide and the distances between the place of mailing and the place of filing was all the way from New Mexico to El Paso.

The prosecution was in El Paso, where the regional office was located and where the affidavit was filed.

The affidavit was in fact mailed from New Mexico, silver mine or somewhere like that, where he had his union headquarters just as here.

Now, my statement was right I think that putting all of these together, that the only other case where the prosecution has been brought at the place of mailing is the Valenti case where the Third Circuit came with the other conclusion.

There is one other case that is -- that is rather more complicated.

There had been three national officer cases, this one, the Ben Gold case and the Bryson case.

The Bryson case was marine cooks and stewards and was a union officer -- national union officer who lived on the west coast.

He was first indicted on the west coast where the affidavit was mailed, but as soon as he challenged venue in the west coast, the Government withdrew the indictment representing to the court that there was doubt about there being venue in California and therefore, they would withdraw the indictment in California and bring the case here in the district, and they did that.

And Bryson was then indicted here in the district where his affidavit was filed, he being a national officer.

Bryson then said, "It's a hardship for me to be tried in Washington.

Please send the case back to California." And Judge Morris sitting here in the District Court did.

So he was tried in California on a Washington indictment.

When he got back to California again, the District Court there said, well, we don't think we have venue and we don't think the case should be sent back out here, but he has waived his objection to this by asking for it to come.

So that was the long history on the -- on the Bryson thing.

Justice Felix Frankfurter: Well, then it's the lock that we have on the -- had only three indictments of national officers.

Mr. Telford Taylor: That's correct.

That's correct.

As far as I know, they've been three of national officers.

Justice Felix Frankfurter: So that it could have been drawn any kind of inference or practice so far as that is relevant.

Mr. Telford Taylor: Yes, because the local cases, if you have a difference between place of mailing and place of filing present, the same problem, as in the case Jencks.

Justice Felix Frankfurter: How many of those have there been?

Mr. Telford Taylor: Pardon me.

Justice Felix Frankfurter: How many of those there have been?

Mr. Telford Taylor: There has been Sells, Fisher, Hoffman, Killian, Jencks, Valenti, I'm sorry, I haven't made a complete list, but there have been quite a number.

Justice Potter Stewart: Well, how many of it kind that you mentioned where the -- the place of residence or the place of mailing, the place filing were in different traditional district?

Mr. Telford Taylor: It was different in Valenti and it was different in Jencks.

Now, I would have to check.

Oh, I beg your pardon.

I'm reminded, the Killian case also which is now pending here on petition, is similar and that there he was tried in Chicago, where filed and not in Milwaukee where he lived, different district there too.

Perhaps, these others presented no problem because the office may have been in the same district.

Justice Potter Stewart: (Inaudible)

Justice Felix Frankfurter: This isn't a case where for (Inaudible) a lengthy period --

Mr. Telford Taylor: Oh, it isn't a long sustained practice like that Mr. Justice Frankfurter, but it is nonetheless, a fact that the only other case where they have gone on the filing basis is Valenti, as far as I know.

Justice Felix Frankfurter: And -- and well that might be as was the suggestion that I made to you as an old prosecutor (Inaudible)

Mr. Telford Taylor: There is no doubt.

Justice Felix Frankfurter: (Voice Overlap) the indictment presented to a more convenient place in favor of the defendant.

Mr. Telford Taylor: There is not doubt that the defendant may try to play between jurisdictions just as the Government may and take advantage of both is a devise in counsel did there.

However, the views of the California courts in this thing were that there was no venue out there and the only reason they would entertain it when it came back, was on the theory that he waived it.

Justice Felix Frankfurter: Waiver and stopple of an easy resort to lack of analysis.

Mr. Telford Taylor: There is no question however that he had lack -- that he had endeavored to get back out there, so that it -- it does seem to me it can be -- so that he had waived it.

If the Court will indulge me another minute or two, I can, I believe, complete on this and I wanted to say another word about the grand jury thing chiefly because of the references to different grand juries here.

For the most part, the request for grand jury minutes related to the minutes of the grand jury that indicted Travis in this case.

But there was one other grand jury importantly involved and one other peripherally involved.

The witness Gardner, one of these three, had not testified in the first trial or before the grand jury that indicted Travis in this case.

He had testified in the same court before the grand jury that indicted Travis and 13 others for conspiracy to file false affidavits.

And so in the case of Gardner, these requests ran to that jury which was in the same court, in the same district and same defendant involved and not the one that indicted him in this case.

Now, we point -- we discussed this circumstance in the brief and point out that this might have been a reason for examining the testimony in camera, to see if it related to matters involved in the other case and not in this case and exclude irrelevancies.

But there the court expressly said that he was not denying the motion for grand jury minutes because it was other juries, that wasn't the point with him at all.

Mr. Justice Frankfurter, he said, the best place to look for his reason --

Justice Felix Frankfurter: Where --

Mr. Telford Taylor: -- Your Honor, is and as to the your question, was this around page 492 and 494 of the record, where you will see that he says in substance that responses to request for grand jury testimony have rarely been granted.

He seemed to me to exhibit the feeling that as a matter of law, this wasn't the right thing to do and that he never had any feeling that he really got to balance the equities and see whether it be a good or bad idea.

Justice Felix Frankfurter: But he -- he didn't do -- what Judge Learned Hand as you well know, did until he retired, never allow.

Mr. Telford Taylor: Never what?

Justice Felix Frankfurter: He never allowed inspection of the grand jury.

During your days --

Mr. Telford Taylor: Oh this --

Justice Felix Frankfurter: What?

Mr. Telford Taylor: -- this judge didn't to it ever either, as far as I know.

Justice Felix Frankfurter: But I don't -- but he didn't profess the -- Judge Hand made no boast about it, as you well know.

Mr. Telford Taylor: Yes.

Well, Judge now obviously took a very dim view of the whole idea of ever looking at grand jury minutes, and therefore, I think his discretion, if exercised at all, was restrained by the notion that this wasn't really a sound idea.

Thank you, Mr. Chief Justice.